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in its support such shabby subtilties—we might even say, such pitiful quibbles. [For a full account of Signora Poet's case, with the decrees thereupon, see La Donna e l'Avvocatura, by Signor Santoni-de Sio, Roma, 1884. Translator.]
(A fuller account of this case, with, perhaps, some translations from the Italian, will appear in a subsequent number of the “Law Times.”—Ed.)
PORTUGAL has not yet solved the problem of the introduction of women to the universities.
The woman lawyer, like the woman physician, is a thing unknown there.
In Russia, women are excluded from university courses.(There is, however, a school of medicine, which was founded for women.) This fact reveals nothing surprising for a country where the students are organized as a part of the military, wearing uniforms, and obeying military chiefs. Although exclusion from the universities might be pronounced against women, the Czar rightly judged that they could possibly claim the right to become members of the bar, so long as their incapacity had not been formerly expressed. Hence the Emperor of all the Russias sanctioned the decree of January 7, 1876, which forbaue women access to the functions of advocate. As early as 1871, the question of the admission of women to the offices of Russian public administration, was decided in the negative.
IN SWEDEN, women can attend university courses and the schools of law, and obtain there the degree of Doctor.
No Order of Advocates exists in that country. Neither the Civil Code, nor that of Civil and Criminal Procedure of 1734, still in force, compels professional jurists to plead for another before the tribunals. The Code, (Sect. Procedure, ch. XV, 2), expresses itself thus: “Those who demand or defend for another before the tribunals, should be men of good reputation, honest, and endowed with intelligence. In general, the tribunal should in each case, receive the defenders.”
As M. the Count K. d’Olivecrona, Counselor of the Supreme Court of Sweden has written to us, the legislature certainly never dreamed, in 1734, that women might present themselves before the tribunals, in the character of advocate.
Up to the present time no woman has appeared before the
Swedish Courts of Appeal, or before the Supreme Court, to fill the office of advocate. Before the nisi prius tribunals, especially the provincial ones, women frequently appear, armed with full power from their husbands, and the tribunal allows them to plead.
According to information sent to us from another source, by the Rector of the University of Upsala, a woman who has completed her legal studies and received her diploma, bas an incontestable right to practice as advocate before any tribunal whatever in the country.
IN TURKEY, the law of January 13, 1876, concerning advocates, evidently does not trouble itself about the woman lawyer. Turkey is the only country in Europe where the women still live in special apartments, and are compelled to veil their faces when they go out. In the country of the harem alone, a court of appeal would be authorized to invoke, against the admission of women to the bar, the text of Lex 21, Cod. II, 13 (12): ne feminæ persequendæ litis obtentu in contumeliam matronalis pudoris irreverenter irruant, et conventibus virorum vel judiciis interesse cogantur.
As to SWITZERLAND, where there is no federal legislation concerning the practice of the profession of advocate, we cannot think of analyzing here all the local laws, whose provisions vary exceedingly from one canton to another. For instance, in the canton of Neufchatel, a woman would be admitted to plead before the tribunals, the profession of advocate being free, but in Geneva, on the contrary it would be otherwise; for the law of June 22, 1878, grants the right to practice as advocate only to Swiss citizens enjoying civil and political rights.
In all Switzerland—we might even say in all the German countries, one woman alone has obtained the diploma of a Doctor of Laws. This is Mme. Emelie Kempin-Spyri of Zurich, concerning whom several judicial decisions have been rendered, which we shall now consider in detail.
In the Canton of Zurich, the profession of advocate is free; the first man who comes, be he shoemaker or stonebreaker, can set up as advocate, though he may not have the least idea of law or of right. The only condition imposed is that of
possessing “the right of active citizenship.” The advocates of Zurich form a Society (Advocatenverein) but not an Order.
On the 24th of November, 1886, before the tribunal of the Second Arrondissement of Zurich appeared Mme. KempinSpyri, at the time a candidate in law, who preferred a request, to the end that she might be heard as attorney for, or at least, as assignee of the rights of her husband. Basing itself on Article 174 of the Code of Civil Procedure of the canton of Zurich, by the terms of which the right of active citizenship (actifburgerrecht) is essential in order to represent a third party in civil causes, the tribunal rejected Mme. Kempin-Spyri’s petition, and refused to recognize her right to represent her husband in court.
As all the magistracy of Zurich was hostile to the admission of women within the bar of the tribunals, Mme. Kempin, without addressing herself to the intermediate jurisdiction of the Court of Appeal (Obergerịcht) adopted the method of redressing public grievances before the Swiss Federal tribunal. The petitioner based her application upon the ground that the cantonal tribunal of Zurich had violated Article 4 of the Federal Constitution.—(This Art. 4 proclaims that there exists in Switzerland no privilege of position, of birth, of family, nor of person.) The contest was against a Swiss citizen of the feminine sex, denying the possession of the right of active citizenship, on the sole ground that this citizen was of the feminine sex.
Article 18 of the Constitution, she further stated, which subjects every Swiss to military service, does not constitute any exception to the fundamental equality of all the citizens, for one cannot but conclude that this Article 18 applies to the male sex only, except that, in time of war, a certain number of women might be called into the sanitary service (sanitatsdienst), and the remainder be subjected to a tax for military reimbursement. (Militarpflichtersatzsteuer.)
The petitioner, basing her argument further upon Articles 16 and 18 of the cantonal law of Zurich, according to which every person capable of transacting business and having attained his twentieth year, is in possession of the right of active
citizenship, so long as this right is not taken away from him by. reason of crime, default, bankruptcy or perpetual poverty, contended that these articles made no distinction as to persons on account of sex; that if women had not up to that time claimed the right of suffrage in the canton of Zurich, they had not thereby lost it; that, even if it be granted that women do not enjoy all political rights, it did not follow that they did not possess the right of active citizenship; that the right of suffrage does not suppose the right of active citizenship, but on the contrary the right of active citizenship is a condition of the existence of the right of suffrage; that, finally, “right of active citizenship” is synonymous with “capacity for civil honor” (burgerliche Ehrenfahigkeit), and that this capacity belongs equally to him who has not the right of suffrage.
Lastly, the petitioner maintained, that, contrary to the judgment of the Zurich tribunal, she did possess the right of active citizenship, although she found herself placed, as a wife, under the tutelage of her husband.
Consequently, Mme. Kempin prayed that the Swiss Federal tribunal would reverse the decision of November 24th, 1886,
a. By recognizing her right of active citizenship;
b. By recognizing her right to act, from the time when she became Doctor of Law, and freed herself from the marital tutelage by carrying on, independently a profession, a business or a trade.-(By force of law in Zurich, the tutelage of the husband ceases at the moment the wife begins to perform independent functions. The tribunal of the canton had held that this provision did not apply to the practice of the profession of advocate.)
(To be continued.)
CONSPIRACY AGAINST THE REPUBLIC.
BLAIR AMENDMENT TO THE FEDERAL CONSTITUTION.
Too many amendments to the Constitution are contemplated, and it is not clear that too many have not already been made.
The first eight amendments, which may be called the National Bill of Rights, were of doubtful necessity or utility. Alexander Hamilton who, on account of his consummate wisdom, and because of his tact and skill in carrying the grand work through some of its most difficult stages, has been called "the Father of the Constitution,” thought, that as the very purpose of the Constitution was to secure the blessings of liberty, this declaration was a better recognition of popular rights than that contained in the elaborate declaration of rights in every State Constitution. The same idea is embodied in the reason given in “The Federalist,” why the Constitution had not given a bill of rights; because the reservation of powers without a bill of rights, was larger than a reservation of powers with a bill of rights.
Several of the States however, were fearful that too much power would be claimed and exercised by the new government which was being formed. They insisted upon amendments, which should guard the rights of the States and of the people against encroachments of federal power. Such amendments were proposed by several of the States, and though they were not made conditional to the ratification of the Constitution, there was a general understanding that those of them which were considered of most importance, would be adopted.