Bradwell v. Illinois: Chief justice Chase's dissent and the "Sphere of women's work"

Louisiana Law Review

Volumn 59, Issue 2, 1999, Pages 521-541

  Aynes, Richard L ^a  

^a UNIVERSITY OF AKRON   (United States)

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EID: 26444510371     PISSN: 00246859     EISSN: None     Source Type: Journal    
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References (161)

1. Albert Bushnell Hart, Salmon P. Chase 435 (Boston and New York, Mifflin & Co. 1899).
2. Alice Hunt Sokoloff, Kate Chase for the Defense 15 (1971)
3. (quoting Carl Schurz, The Autobiography of Carl Schurz 154, 118 (1961)).
4. Sokoloff, supra note 2, at 26 ("True democracy makes no inquiry about the color of the skin . . . the exclusion of the colored people from the election franchise [is] incompatible with true democratic principles.").
5. Mary Towne, The Salmon P. Chase Papers, Vol. 1 Journals, 1829-1872, at 162 n.34 (John Niven ed., 1993).
6. See Richard L. Aynes, Constricting the Law of Freedom: Justice Miller and the Fourteenth Amendment, and the Slaughter-House Cases, 70 Chi.-Kent L. Rev. 627, 677 n.315 (1994).
7. John Niven, Salmon P. Chase 119, 122 (1995).
8. At the time, he was known as "the Attorney General of runaway slaves . . . ." Chase was counsel in a variety of runaway slave cases, including Jones v. Van Zandt, 13 F. Cas. 1047 (C.C.D. Ohio 1843) (No. 7502)); 46 U.S. 215 (1847); 13 F. Cas. 1054, 4 McLean 599 (C.C.D. Ohio 1849) (No. 7503); 13 F. Cas. 1056, 4 McLean 604 (C.C.D. Ohio 1849) (No. 7504); 13 F. Cas. 1056, 5 McLean 214 (C.C.D. Ohio 1851) (No. 7505); Birney v. Ohio, 8 Ohio 230 (1837) (involving Matilda); State v. Hoppess, 2 West L.J. 279; Driskill v. Parrish, 7 F. Cas. 1100 (C.C.D. Ohio 1845) (No. 4089); 7 F. Cas. 1093 (C.C.D. Ohio 1847) (No. 4087); 7 F. Cas. 1095 (C.C.D. Ohio 1849) (No. 4088); 7 F. Cas. 1068 (C.C.D. Ohio 1851) (No. 4075); Towne, supra note 4, at 162 n.34.
9. Harold M. Hyman, The Reconstruction Justice of Salmon P. Chase 168 (1997).
10. See also Michael Les Benedict, Salmon P. Chase and Constitutional Politics, 22 L. & Soc. Inquiry 459 (1997) ("Chase was the leading expositor of the Republican argument about the relationship between the federal government and slavery.").
11. 11 U.S. Op. Att'y Gen. 37 (1864).
12. This was Dr. John Swett of Massachusetts. Towne, supra note 4, at 519 and 521.
13. Chase was the first Republican Governor of a major state.
14. Niven, supra note 4, at xxvii and Stewart Sifakis, Who was Who in the Civil War 117 (1988).
15. Michael Les Benedict, Salmon P. Chase as Jurist and Politician: Comment on G. Edward White, Reconstructing Chase's Jurisprudence, 21 N. Ky. L. Rev. 133, 135 (1993).
16. 74 U.S. (7 Wall.) 700 (1869).
17. 79 U.S. (12 Wall.) 457 (1870).
18. Felix Frankfurter, The Commerce Clause Under Marshall, Taney, and White 74 (1937).
19. Charles Fairman, Reunion and Reconstruction, Part I (1971), and Part II (1987).
20. Hyman, supra note 7; Frederick Blue, Salmon P. Chase, A Life in Politics (1987); Niven, supra note 5;
21. and biographical essays by a variety of important legal historians and scholars in a symposium sponsored by Northern Kentucky's Salmon P. Chase College of Law, 21 N. Ky. L. Rev. 1 (1993).
22. Benedict, supra note 7, at 480.
23. 83 U.S. (16 Wall.) 36 (1873). See generally Benedict, supra note 7.
24. 83 U.S. (16 Wall.) 130 (1873).
25. Thomas Graham Belden and Marva Robins Belden, So Fell the Angels 139 (1956)
26. (quoting Herbert Agar, The Price of Union 324-25 (1950)).
27. Niven, supra note 5, at 374.
28. Hyman, supra note 7, at 9.
29. Fairman, supra note 16, at 1476-77.
30. Aynes, supra note 4, at 687.
31. For an account of Clifford's background and his opposition to the Fourteenth Amendment, see id. at 664-67.
32. For a summary of Miller's background, see Aynes, supra note 4, at 655-65. Miller had only rudimentary apprentice education in law which may explain his seeming contempt for the use of legal authorities and his reliance upon what he considered to be "justice."
33. G. Edward White, Reconstructing the Constitutional Jurisprudence of Salmon P. Chase, 21 N. Ky. L. Rev. 41 (quoting Miller as saying of Chase that there was "no one against whom I would attempt to measure myself with more diffidence.").
34. Charles Fairman, Mr. Justice Miller and the Supreme Court 1862-1890, at 110-71 (1939).
35. E.g., Aynes, supra note 4 and articles cited at 628 n.7; Michael Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter House Case Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. Rev. 1 (1996).
36. Aynes, supra note 4, at 655-78.
37. See Jane M. Friedman, America's First Woman Lawyer, The Biography of Myra Bradwell (1993).
38. Id. at 18.
39. The brief submitted to the United States Supreme Court on Mrs. Bradwell's behalf defined the "precise question" before the Court as follows: "Can a female citizen, duly qualified in respect of age, character, and learning, claim, under the XIVth amendment, the privilege of earning a livelihood by practicing on the bar of a judicial court?" Argument for Plaintiff in Error, at 5.
40. There is, of course, a way to distinguish those opinions. The majority might have argued that the butchers were not precluded from pursuing their occupation, they were only regulated through the monopoly. Hence, the majority could have logically voted to deny the claim of the butchers in the Slaughter House case and still support the claim of Ms. Bradwell. So, it may be the difference of gender, the difference of different occupations, or some other reason rather than consistency which motivated the majority's opinion.
41. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873). There were contrary examples. Iowa had admitted a woman to the bar in 1869, Michigan in 1871, and Maine in 1872. Karen Berger Morello, The Invisible Bar: The Woman Lawyers in America 1638 to Present 11-12 and 37 (1986).
42. After Bradwell, North Carolina admitted its first woman to the bar in 1878. Michael Kent Curtis, Albion Tourgee: Remembering Plessy's Lawyer on the 100th Anniversary of Plessy v. Ferguson, 13 Const Comm. 187, 192 (1996).
43. In the subsequent opinion of Chief Justice Ryan, the Wisconsin Supreme Court reached a similar conclusion: The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of law, are departures from the order of nature; and, when voluntary, treason against it. In re Goodell, 39 Wis. 232, 245 (1875).
44. David F. Hughes, Salmon P. Chase: Chief Justice, 18 Vand. L. Rev. 569, 613 (1965).
45. J.W. Schuckers, The Life and Public Services of Salmon Portland Chase 622 (1874).
46. Id. at 622.
47. Id.
48. Meredith Kolsky, Justice William Johnson and the History of the Supreme Court Dissent, 83 Geo. L.J. 2069, 2075 (1995).
49. Niven, supra note 4, at 517 (Chase's diaiy entry of Jan. 16, 1865) (emphasis added).
50. Niven, supra note 5, at 192.
51. Cathryn L. Claussen, Gendered Merit: Women and the Merit Concept in Federal Employment, 1864-1944, XL Am. J. Legal Hist 229, 230 (1996).
52. Id. The manpower needs of the war caused the rebellious states to adopt the same policy and employ a large number of women. Janet Kaufman, Treasury Girls, XXV Civil War Times Illustrated 32 (May 1986). I am indebted to Jennifer E. Aynes for calling this article to my attention.
53. Donna M. DeBlasio, Down from the Pedestal: Kate Chase. A Subtle Feminist, 34 (M.A. History, Youngstown State University 1976). The terms of the employment are not clear. Citing 13 Stat. 22 (1864), Cathryn L. Claussen, supra note 44, at 230 indicates that women were paid less than men. However, Professor Hyman indicates that Chase's policy was "equal-pay-for-equal-work." Hyman, supra note 7, at 78.
54. Hyman, supra note 7, at 80 (citing Chase to A.F. Boyle, Dec. 11, 1872, Chase Letterbooks, ser. 4 (Washington, D.C.: Manuscripts Division, Library of Congress), 121:15).
55. Hyman, supra note 7, at 79. Harold Hyman suggests that Chase's actions in hiring women and blacks hurt him politically with the conservative factions of both the Republican and Democratic parties and male voters; and that he knew his actions hurt his chances to be President Hyman, supra note 7, at 78.
56. 24 F. Cas. 337 (C.C. Md. 1867) (No. 14, 247).
57. Hyman suggests that Chase may have held some special empathy for Elizabeth Turner because he too had served an apprenticeship and/or because she was from Maryland like one of the run-away slaves, Matilda, Chase had unsuccessfully represented many years before. Hyman, supra note 7, at 124.
58. Hyman, supra note 7, at 119.
59. Id. at 80.
60. Id. at 73.
61. Id. at 163.
62. Id. at 81.
63. Schuckers, supra note 38, at 602.
64. S. P. Chase to G. Smith, Feb. 13, 1873, Library of Congress. I am grateful to James P. McClure, Senior Associate Editor of the Salmon P. Chase Papers, for calling this letter to my attention and providing a typescript of the letter.
65. Id.
66. Salmon P. Chase to Elizabeth Miller, n.d., quoted in DeBlasio, supra note 46, at 88 (quoting Ishbel Ross, Proud Kate, Portrait of an Ambitious Woman 221-22 (1953)).
67. Id. (emphasis added).
68. Id.
69. I National Party Platforms 1840-1956, at 47 (Donald Bruce Johnson 1978). I want to acknowledge my debt to Akhil Amar for calling this provision to my attention. It has recently been suggested that there were significant differences in the way in which the Democratic and Republican parties of the Nineteenth Century viewed women. The Democrats presented their candidates as "manly" and independent of women. By contrast, the Republican Party claimed its candidates had become virtuous men because they had "good mothers" and "virtuous" and "intelligent" wives.
70. Jeffrey R. Young, The Historical Coattails of Family Values, the Chronical of Higher Education A14 (November 6, 1998)
71. (reviewing Rebecca Edwards, Angels in the Machinery: Gender in American Party Politics from the Civil War to the Progressive Era (1997)).
72. Chase's general views on equality could be logically applied to women as well as African-Americans. It is therefore possible that his general views on equality naturally led to his views with respect to women. Yet this application was not inevitable as is shown from the fact that many anti-slavery advocates did not embrace women's rights. It seems likely that Chase's relationship with his daughter Kate helped Chase take a further step in the application of his views that others were unable to take.
73. Mary Merwin Phelps, Kate Chase, Dominant Daughter 18, 23 (1935).
74. Virginia Tatnall Peacock, Famous American Belles of the Nineteenth Century 210 (1901).
75. Ross, supra note 59, at 10.
76. Peacock, supra note 65, at 211. See Belden and Belden, supra note 21, at 22 and Ross, supra note 59, at 37.
77. Peacock, supra note 65, at 209.
78. Niven, supra note 5, at 200; Peacock, supra note 65, at 212; and Phelps, supra note 64, at 75. She was sent to boarding school at eight, not seven as usually reported. See Sokoloff, supra note 2, at 296 n.8.
79. Phelps, supra note 64, at 75.
80. At the age of eight Chase sent Kate to be educated at Miss Haines' school in New York City. Miss Haines was the sister of a one-time governor of New Jersey. Phelps, supra note 64, at 69. When she was fourteen, Kate was enrolled in a school outside of Philadelphia. Sokoloff, supra note 2, at 35. When Chase became Governor of Ohio, Kate and Nettie attended the Esther Institute in Columbus. Sokoloff, supra note 2, at 38.
81. Sokoloff, supra note 2, at 36.
82. Niven, supra note 4. Vol. 3, at 226-27.
83. Peacock, supra note 65, at 211. See also Ross, supra note 59, at 10.
84. Peacock, supra note 65, at 211.
85. Id.
86. Id. at 221.
87. Belden and Belden, supra note 21, at 88.
88. See generally Nicky Marone, How to Father a Successful Daughter (1988).
89. Sokoloff, supra note 2, at 15.
90. Phelps, supra note 64, at 28.
91. Belden and Belden, supra note 21, at 16.
92. Niven, jupra note 4, Vol. 3, at 226 (Salmon Chase to Kate Chase, July 13, 1862). See also Phelps, supra note 64, at 226 reproducing a "My darling Katie" letter from her father dated May 4, 1869.
93. Ross, supra note 59, at 203, 207.
94. Niven, supra note 5, at 202.
95. Peacock, supra note 65, at 212.
96. Niven, supra note 4, Vol. 3, at 10 n.4.
97. I am thinking particularly of the role Jessie Benton Freemont played in her husband's career and the role which Elizabeth Bacon Custer played in orchestrating the preservation of her husband's memory.
98. Peacock, supra note 65, at 214.
99. Phelps, supra note 64, at 90.
100. Id. at 104. The Treasury Department was considered second only to the State Department.
101. Peacock, supra note 65, at 216-17.
102. Niven, supra note 5, at 307.
103. Peacock, supra note 65, at 216 (emphasis added). See also Belden and Belden, supra note 21, at 349.
104. Belden and Belden, supra note 21, at 203 (emphasis added).
105. Sokoloff, supra note 2, at 13 and Ross, supra note 59, at 289 (emphasis added).
106. Peacock, supra note 65, at 210.
107. Id. at 214.
108. DeBlasio, supra note 46, at 52 (quoting 1 Henry Villard, Memories of Henry Villard, Journalist and Financier 175 (1904)).
109. Sokoloff, supra note 2, at 39. See also id. at 133 ("Her magnetism pervaded the room.") and Ross, supra note 59, at 289 (quoting the New York Tribune ("rare personal magnetism")).
110. Kate and Sprague were married in 1863, in a wedding which drew international attention. Sprague, reputed to be the wealthiest man in Rhode Island, was an early war hero. As governor he personally led Rhode Island troops to help protect Washington, D.C. and in the first Battle of Bull Run had a horse shot out from under him. Kate and William Sprague were widely considered the two most eligible single people in Washington, D.C.
111. Ross, supra note 59, at 37, 150.
112. Benedict, supra note 7, at 460.
113. Niven, supra note 5, at 431.
114. Ross, supra note 59, at 202.
115. Yet "there were boundaries even" for Kate Chase - as a woman she was not allowed to go on the floor of the convention and work among the delegates while the convention was in session. Belden and Belden, supra note 21, at 214.
116. Niven, supra note 5, at 431. Such was the father/daughter relationship, that when Chase learned he would not be nominated his first question was: "Does Mrs. Sprague know and how does she bear it?" Id. at 432.
117. Phelps, supra note 64, at 286 (quoting the Philadelphia Record at the time of Kate's death in 1899).
118. Peacock, supra note 65, at 215 (emphasis added). See also Sokoloff, supra note 2, at 42 ("she had an intelligence which was essentially more masculine than feminine"); Belden and Belden, supra note 21, at 6 ("with a masculine regard for hard logic"); Ross, supra note 59, at 202 ("'brains of almost masculine fibre'").
119. DeBlasio, supra note 46, at 2. While never identified publicly with the women's suffrage movement, Kate had hosted a "parlor lecture" for suffrage advocate Julie Ward Howe. Id. at 63. In an 1886 newspaper interview Kate indicated she was sympathetic with the movement for women to vote and that she believed "they [women] will do whatever they want to do; whenever they want to vote they will vote, and no power on earth will stop them." Sokoloff, supra note 2, at 267.
120. Ross, supra note 59, at 186.
121. John Niven to Richard L. Aynes, Nov. 14, 1995 (letter on file with author). Dr. Niven doubted that any such discussion took place.
122. Phelps, supra note 64, at 90.
123. Peacock, supra note 65, at 220.
124. Sokoloff, supra note 2, at 31.
125. Id. at 76.
126. Phelps, supra note 64, at 226 (quoting S.P. Chase to Kate Chase Sprague, May 4, 1869).
127. Niven, supra note 5, at 424 (quoting S. P. Chase to Kate Chase Sprague, May 10, 1868).
128. Sokoloff, supra note 2, at 156 (quoting S.P. Chase to Kate Chase Sprague, Aug. 9, 1868).
129. Friedman, supra note 32, at 37.
130. Friedman, supra note 32, at 37 (quoting Barbara Welter, The Cult of True Womanhood: 1820-1860, 18 Am. Q. 151, 152 (1966)).
131. Friedman, supra note 32, at 37.
132. Id. at 40 (emphasis by Professor Friedman eliminated).
133. Id. at 18.
134. Id. at 38-39.
135. By 1873, when Bradwell's case was decided, Kate was 33 years old and the mother of two children.
136. Hyman, supra note 7, at 164.
137. Id.
138. Id.
139. Hyman reads much into the simple words. "In effect, Chase stipulated by his dissent in Bradwell v. Illinois that he still stood on the far broader ground of race-free and gender-free access to life's opportunities, benefits, and hazards." Id. at 165.
140. Niven, supra note 5, at 440.
141. Belden and Belden, supra note 21, at 273.
142. The traditional account is that Kate married Sprague "to use his influence and money to make her father President" Belden and Belden, supra note 21, at 122. But one of Chase's biographers concluded that Sprague was an "unworthy" and "dissolute" man. In accepting her father's apology for missing her birthday, Kate revealed much about herself: "I fear I am a good deal of a child about such things yet, though yearning for love is hardly one of the childish things one would wish to put away." Id. at 165-66 (emphasis added). Indeed, the most modern biographer of Kate Chase, with access to new original documents, concluded that while Kate loved her father and wanted him to be successful, her "tradegy was not ambition, but love." Sokoloff, supra note 2, at 7. See also id. at 91-92 (quoting from Kate Chase's diary) and at 95 (quote from a letter to William Sprague). Indeed, in a diary entry on March 29, 1868 Kate Chase refers to love as "the great treasure my soul craves." Id. at 139-40. Alice Sokoloff concluded that Kate was "an incurrable romantic . . .," id. at 161, with "an overpowering need to love and be loved." Id. at 163.
143. Peacock, supra note 65, at 225.
144. Phelps, supra note 64, at 213 and 262; Belden and Belden, supra note 21, at 169. (Hay consulted Kate before turning down a position as Secretary of State Seward's secretary.).
145. Peacock, supra note 65, at 215.
146. Belden and Belden, supra note 21, at 275.
147. Obituary from the Washington Evening Star, quoted in Phelps, supra note 64, at 286.
148. Friedman, supra note 32, at 28. This undoubtedly means that the case before the Supreme Court was moot. But it appears that the Court was unaware of the Illinois statute.
149. Id. at 129-32.
150. Id. at 29.
151. Id. at 29.
152. Id. at 12.
153. Id. at 30.
154. Id.
155. Charles Fairman, Mr. Justice Miller and the Supreme Court 1862-1890 (1939). But we can look forward to Michael Ross's fresh work on Miller.
156. Aynes, supra note 4, at 627 n.4.
157. Charles Fairman, American Constitutional Decisions (1948). See also Richard L. Aynes, Charles Fairmon, Felix Frankfurter and the Fourteenth Amendment, 70 Chi.-Kent L. Rev. 1197, 1224 (1995).
158. 92 U.S. 542 (1875).
159. The Civil Rights Cases, 109 U.S. 3 (1883).
160. Plessy v. Ferguson, 163 U.S. 537 (1896).
161. 404 U.S. 71 (1971).