Tag Archives: Barristers

A historical re-enactment with a twist: Bradwell v. Illinois

I do like devoting posts to books and archival records as sources for legal history, and thus it was really by chance that I saw a notice on the website of the Yale Law School about the re-enactment of a historical case from 1873. When reading about the re-enactment and viewing the video recording of it my curiosity grew. One of the headings I used in a post this month was “Less is more?”. After that really long post I have decided to keep this new contribution rather short.

At the 2011 Judicial Conference of the Ninth Circuit, held from August 15 to 18, 2011, a number of lawyers re-enacted the case of Myra Bradwell versus the State of Illinois before the United States Supreme Court (83 U.S. 130 (1872). Among the performers was Yale law professor Judith Resnik who pleaded the case of Myra Bradwell (1831-1894), a married lawyer who wanted in 1869 to be admitted to the bar in Illinois, but her request was denied. It took some time before her case was finally heard by the Supreme Court. The re-enactment was presided by Supreme Court Justice Ruth Bader Ginzburg. In 1873 Bradwell lost her case, but last month Judith Resnik pleading for Myra Bradwell convinced Justice Ginzburg and won her admission to the Illinois bar.

Women’s legal history in the United States

Until now I have only mentioned women’s legal history very briefly, but the few things noted in that earlier post helped me to get quickly more information about Myra Bradwell. The Women’s Legal History (WLH) project at Stanford Law School has a page with lots of online references about materials on Bradwell and literature about her. Thus I could link here to an online version of the case. The page on Bradwell at Stanford University brings a lot more than the brief notice in the online exhibit of the Columbia Law School library, The Rise of Women in the Legal Profession. In fact the WLH project is a model of its kind, but not a model you can easily follow. The combination of biographical matters, be it in an admittedly very concise but consistent way, with full references to documents and literature, makes many biographical websites a bit shallow and bleak.

One of the elements in Bradwell v. State of Illinois making this case still interesting is that it involves interpretation of the 14th Amendment to the constitution of the United States. Does denying a married woman the right to be admitted to the bar impair the “privileges and immunities” of a United States citizen? On April 15, 1873, the Supreme Court ruled that this was not “obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States”. In 1890 the Illinois Supreme Court, acting on its own, finally allowed Myra Bradwell to practice law. Long before 1890 Bradwell had become a well-known lawyer as founder of the Chicago Legal News (1868).

I could easily continue reaping the fruits brought together at the WLH project and elsewhere, like the short notice in the online exhibit Outspoken: Chicago’s Free Speech Tradition of the Newberry Library, Chicago, but it is more interesting to read the case, to ponder the arguments used in the nineteenth century, to look at the video of the re-enactment and to consider the new arguments presented. Of course much more can be said about American women lawyers, but for today I leave it to you to start further research for example at the history section of the website of the American National Conference of Women Bar Associations.

A Dutch twist

For your convenience I will end here with more information about the other links on women’s history I wrote about earlier, giving this post, too, the customary Dutch twist. The International Institute for Social History (IISH) in Amsterdam has a fine links selection on women’s history. The IISH maintains the Virtual Library Women’s History, a gateway to women’s history, and ViVa Women’s History, an online current bibliography of women’s and gender history, both indispensable research tools. I noticed earlier on also the IntLawGrrls blog where Bradwell figured in 2009 in the On this Day sectionAletta, formerly known as the International Archive for the Women’s Movement, also based in Amsterdam, has an open access image database. The name Aletta comes from the first Dutch female physician Aletta Jacobs (1854-1929), a pioneer of women’s liberation. She married to the Dutch politician Carel Victor Gerritsen (1850-1905). The Gerritsen collection with early books on the history of the women’s movement has been digitized, but is accessible only at subscribing libraries and their card holders, and for card holders of the Aletta Institute. This enables you to use two other digital collections at the Aletta Institute as well.

All those who would like to know more about women’s legal history outside the United States should perhaps have a look at the program of next month’s conference in Chicago (October 13 and 14, 2011) with the theme Women’s Legal History: A Global Perspective.

A postscript

While searching for other matters an Italian website, Donne e diritti. Osservatorio di storiografica giuridica [Women and rights. An observatory of juridical historiography] came to my attention. It is a portal for women’s legal history with articles, sources in translation, detailed bibliographies, a calendar of events and a link selection with an international orientation.

Facing the past

Jede Epoche ist unmittelbar zu Gott, every period is for God at the same distance. This dictum by Leopold van Ranke has often been used to harshly criticize and ridicule his views. It has definitely harmed his reputation. How close are historical periods to a historian? Are some periods not closer to them because of a familiarity fostered by years of research? Are some periods not much farther away from us because we do not readily respond to them? Specialisation can be a hindrance to perceive other subjects, periods and approaches. Historians have to face the temptation to behave like Gods at a safe distance, with the ultimate view and judgment of history and people. Doing academic history is not always and automatically a safeguard against bias and prejudice, but it definitely can help preventing the worst excesses.

A few weeks ago Eric Hennekam, a Dutch archivist who devotes much time to his blog, a website with news on archives and several other online activities including Twitter, almost lamented the launch of www.tweedewereldoorlog.nl, a new Dutch portal about the Second World War. Again a website on this period! At first I intended to share his view, but after visiting this portal I changed my mind. I am afraid I am a medievalist, with admittedly knowledge of and interests in other periods and subjects, but there’s no undoing my focus on medieval history. I have my copy of the multi-volume official history of The Netherlands during the Second World War by Lou de Jong, but apart from that I have only a few books on this period. The services of a portal which leads you to both written and audiovisual sources, to both educational resources and research institutes, can be really useful. Combining the strengths of the National Institute for War Documentation (NIOD), the audiovisual archives of the Dutch broadcasting organizations and other institutes is not in itself a bad idea. The use of the term erfgoed, “heritage”, on this portal is probably more alarming. It points to the different perceptions and representations of history which can lead you away from a more distanced way of doing history.

It is now four weeks since the appearance of a new study on the role and behavior of Dutch barristers during the Second World War by Joggli Meihuizen, Smalle marges. De Nederlandse advocatuur tijdens de Tweede Wereldoorlog (Amsterdam: Boom, 2010). Meihuizen is a researcher at the NIOD. The research for this study was supported by the Dutch Bar Association. The reactions on Sans égards, a study published in 2007 by Meihuizen on Adriaan Pitlo, a famous law professor at the University of Amsterdam, and his behavior towards Carel Polak, a Jewish lawyer, during and after the Second World War, contain for me the warning to keep here a safe distance. In Dutch historiography about the Second World War much stress has been put on the discernment between morally justifiable and immoral behavior. In 1983 former NIOD director Hans Blom gave his inaugural lecture at Amsterdam University the title In de ban van goed en fout? (Enthralled by good or wrong?). Chris van der Heijden’s Grijs verleden: Nederland en de Tweede Wereldoorlog (Grey past: Holland and the Second World War) (Amsterdam 2001) was often seen by the general public as a defamation of historical truth.

Using words as accomodation, indicating the many hues and grey zones, is difficult to swallow when this does not seem to fit in with one’s own recollections of the war period. Few things are probably more confronting than comparing your own memories with more general views of any event: your own view might appear to be biased, you might have created your vision of things, others might have a very different view of affairs. Things are perhaps made more heavy for Dutch people because of the sheer impact of the first war on Dutch territory since 1813. The Second World War has become The War. However, it is normal for historians to distinguish between continuity and change, and it is perfectly sensible to look for both also when studying the Second World War. Two generations after the end of this terrible war it is still living memory, a period to which people are sensitive.

The Dutch Bar Association wanted the NIOD to do research on Dutch barristers precisely because of the diminishing powers of memory, the small number of lawyers still living who were practising at the bar in these years, and because archival records about barristers are relatively scarce and difficult to trace, and finally to break the silence and to penetrate the mists of time. Meihuizen entitled his study Narrow margins. How much scope for behaving differently actually existed? How much scope could one perceive? Only after reading his study carefully one can say whether he has succeeded in bringing to light in a valid and consistent way the officium nobile during a most challenging period. What can we really ascertain at this distance in time, with the particular difficulties of the sources used, with due respect to the people living in a period where angels fear to tread? Facing the questions of war in the midst of a war is different from looking at it from a safe distance in time or place. I have no idea of my own response to such challenging situations.

As for portals on particular historical periods, some periods are indeed almost hidden behind portals and websites, others suffer from unjust neglect by the world of virtual access to information. Bringing together information, giving judicious comments on websites, and pointing to easily overlooked information available online, is really important.