each other,20 and the court (judge or jury) decides as a matter of fact whether or not at the time of the second marriage the first wife was alive;21 the leaning however is generally towards the presumption of innocence."'22 "The mere fact that there are no circumstances leading to the inference that the absent party has died, does not raise a presumption of law that such party is alive. The prosecution must satisfy the jury that, as a matter of fact, such party is alive."23 And Field, J., in Montgomery v. Bevans," said in substance, that in criminal cases, the presumption of innocence would prevail as against the presumption of life.

It is apparent, therefore, that in prosecutions for bigamy, there is no presumption of law that the first wife was alive at the date of the second marriage, arising from the fact that she was shown to have been alive, but, on the contrary, the presumption will be that she was then dead, otherwise the presumption of life would countervail not only the presumption of innocence, but also that of the ⚫ validity of the second marriage.

Defenses. If the prosecution should be successful in proving beyond a reasonable doubt a valid first marriage, a second marriage valid in form, and that the first wife was living at the time of the celebration of the second nuptials, what defense, if any, can the defendant interpose to protect himself against a verdict of guilty for the outrage upon society which the prosecution has shown to have been committed? Ignorance, pure and simple, as to whether or not the first husband or wife was alive, or had obtained a divorce, as well as obtaining a divorce which was fraudulent and void, I presume would not be a defense. True it is that, while not knowing that the decree of divorce was void, would be ignorance of law, which excuses no one, and ignorance upon the other propositions would be ignorance of fact, which generally excuses, yet the usual holding in cases of this character has been that ignorance of fact, so far at least as these facts are concerned, will not excuse. Will, then, a reasonable and well-founded

belief that the former spouse was dead, or had obtained a divorce, at the time of the second marriage be a complete defense? And will there be a presumption of divorce in support of the presumption of innocence?

1st. Divorce (a) Valid Divorce. — Mr. Bishop says:25 "When the indicted party relies on a dissolution of the first marriage by divorce, he should prove it; or at least, bring forward circumstances raising a presumption of it," as explained by the author elsewhere.26 If a valid divorce has been granted in the State where the criminal action is pending, it can easily be proved by a certified copy of the record; and, if granted in some other State or territory, it can be proved by a copy of the record certified to as provided by act of congress, or in accordance with the statutory requirements of the place of trial; and, in either instance will be a complete defense.

(b) Invalid Divorce.—"The validity of a decree being a question of law, one's knowledge of which is conclusively presumed, a divorce invalid in law will not avail him."'27

As stated by Mr. Bishop, every man is presumed to know the law (a violent presumption indeed), and he is presumed to know whether, if a divorce has been granted, the proceedings were legal and the divorce valid. The general rule of law is that fraud vitiates every proceeding into which it enters, and if a divorce has been fraudulently obtained in a court, which had no jurisdiction of the parties, or of the subject-matter of the suit, it will be absolutely void, and cannot avail as a defense to a charge of bigamy.28

(c) Reasonable Ground to Believe Divorce Granted.-Mr. Bishop says: "But, since men who are duly cautious, and otherwise mentally free from blame, may lawfully act on facts as they appear, the erroneous belief of a divorce, founded on proper inquiry conducted with due care, may be shown in defense the same as though it truly existed." 25 Bishop on Stat. Cr. § 609.

29

26 1 Bishop on Marriage and Divorce, §§ 514, 518. 27 Bishop on Stat. Cr. § 609, citing, Davis v. Com., 13 Bush. 318.

28 State v. Whitcomb, 2 N. W. Rep. 971, 52 Iowa, 85; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21; Sewall v. Sewell, 122 Mass. 156, 23 Am. Rep. 299; People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260; People v. Baker, 76 N. Y. 78, 32 Am. Rep. 274; Tucker v. People, 13 N. E. Rep. 809, 812, 122 Ill. 583; Murray v. Murray, 6 Oreg. 17.

20 Bishop on Statutory Crimes, § 609, citing, Squire v. State, 46 Ind. 459.

Even in taking human life a man has a right to act upon appearances as they present themselves to him as a reasonable man, and having done so, he cannot be found guilty of murder because appearances turned out to be false and he was deceived thereby, if he would have been guiltless if facts and circumstances had been in reality what they appeared to be; and I can see no good reason why a man who has married a second time, and who, prior to such second marriage, had instituted diligent inquiry, and, based upon appearances which would have satisfied any reasonable man, believed that a valid divorce had been granted to his first wife, should not be entitled to an acquittal on this defense in law, just as he would have been if his information had been strictly correct. The tendency of judicial decisions is in this direction.30 And in some of the cases cited in note 30 it was held that the presumption of divorce would obtain in aid of the presumption of innocence, rather than a presumption of the continuance of the marriage relation, which would result in holding one party guilty of the crime of bigamy.31

It

Death of Spouse-Defendant's Belief in.It seems from the authorities already cited that there is no presumption of law that the absent husband or wife is dead, unless he or she has been absent and not heard from for the length of time prescribed by statute. seems also in a criminal case at least, that proof that the absent husband or wife was heard from not later than two or three years prior to the second marriage is not sufficient to convict, and that there is no presumption that she was alive at the time of the second marriage.32 But, if the courts will presume a divorce so that the second marriage may be considered inncocent rather than criminal, why should they not for the same purpose presume that the marriage has been dissolved by death, where the absent spouse has not

30 State v. Stank, 10 Cin. Law Bul., 16; Watson v. State, 13 Tex. App. 76; Boulden v. McIntyre, 21 N. E. Rep. 445, 119 Ind. 514; Blanchard v. Lambert, 43 Iowa, 228, 22 Am. Rep. 245; Coal Run Coal Co. v. Jones' Adm'x, 8 N. E. Rep. 865, 868; approved in 22 N. E. Rep. 89; Johnson v. Johnson, 3 N. E. Rep. 232, 114 Ill. 617; In re Edwards, 10 N. W. Rep. 793, 795, 58 Iowa, 431.

4.

31 See, also, 14 Am. & Eng. Ency. of Law, 521, note

321 Roscoe's Cr. Ev., 469; People v. Feilen, 58 Cal. 218, 41 Am. Rep. 258.

been heard from for a considerable length of time, or has not been shown to be alive within a period of several years, instead of leaving the question to be determined as one of fact by the jury, and then, after the jury has returned a verdict of guilty (and thereby found in favor of the continuance of life), and judgment has been rendered thereon, reverse the judgment on appeal and remand the case for a new trial because the evidence was not sufficient. If the jury is the exclusive judge of the weight of the evidence and of the credibility of the witnesses (as is generally held), their finding is conclusive and not subject to be reviewed on appeal, unless there was a failure of proof, and the verdict was evidently the result of passion and prejudice. Let the presumption be one of law and not one of fact, or let the courts refuse to interfere with the verdict of the jury, where there is evidence from which it can be inferred that the absent party is still alive. It is better that a question be finally settled and determined, though the determination be erroneous, than for it to be left in an unsettled condition, and so that parties can never know just what they can rely on, but be compelled to await the determination of the particular proceeding in which the question arises, and which, when determined, settles the question for that proceeding, but cannot be relied on as a precedent in any other case. But as the courts will allow, as a defense, a belief based on reasonable grounds, that a divorce has been duly granted, so it seems also, they will allow as a complete defense a belief in the death of the former husband or wife, if that belief is formed after diligent inquiry, and the appearances are such as would warrant a reasonable man so to believe. Thus it was held in Reg. v. Tolson, 34 that "a bona fide belief on reasonable grounds in the death of the husband at the time of the second marriage afforded a good defense to the indictment, and that the conviction was wrong.'

35

Thus it will be seen that, in cases of this character although the defendant may be unquestionably guilty, it will be a very difficult matter to establish his guilt beyond a reason

33 State v. Fitzhugh, 2 Oreg. 230; State v. Clements, 15 Oreg. 243.

34 12 Crim. Law Mag. & Rep. 96.

35 Reg. v. Moore, 13 Cox, 544, 3 Crim. Def. 509; Bishop on Stat. Crimes, § 596a, 3 Crim. Def. 601, § 187.

able doubt; for it seems that the prosecution, if it attempts to make the necessary proof' by record evidence, must prove:

1. The laws of the State or territory, where the alleged first marriage was celebrated, on the subject of marriage.

2. That the record of which a certified copy is offered, was required to be kept by the laws of such State or territory, and that the officer certifying was the legal custodian of such record.

3. The identity of the parties.

4. In all probability, the authority of the party purporting to have solemnized the marriage to do so.

5. The second marriage, or a living and cohabiting together as husband and wife without an actual, valid marriage.

6. That the first spouse was alive at the time of such second marriage, or at the time of such living and cohabiting together, and this must be proved as a matter of fact; it is not a presumption of law.

7. The copy of the record must be certified in the manner required by the act of congress, or the statute of the territory or State where the trial is had.

If the first marriage is proved by an eyewitness, then, in lieu of the second requirement above set forth, it must appear as follows.

2nd. That the witness saw a ceremony performed between the party named and the defendant, that the person performing such ceremony was generally recognized as, and reputed to be, an officer or person authorized by law to solemnize marriages, and that the ceremony was such as was usually performed under similar circumstances in that jurisdiction and was generally considered valid and binding.

First Wife as Witness.-Under no circumstances can the first husband or wife be a witness against the defendant;56 unless by consent of the defendant, or where the crime charged is personal violence by one upon the other. But the incompetency to testify, because of the marital relation, extends only to

37

36 Turpin v. State, 55 Md. 462, 477; Byrd v. State, 57 Miss. 243, 34 Am. Rep. 440; Hussey v. State, 87 Ala. 121, 6 South. Rep. 420; Salter v. State, 9 South. Rep. 550; Wharton's Cr. Ev. §§ 390, 397; Bassett v. U. S., 11 Sup. Ct. Rep. 165.

37 Finney v. State, 3 Head, 544; Johnson v. State, 61 Ga. 305.

the lawful wife ;38 therefore, a valid first marriage having been proved, the alleged second wife is a competent witness, because the "alleged second wife is no wife at all." The statute of Utah is in substance that either husband or wife is a competent witness against the other "in a proceeding for a crime committed by one against the other." In Iowa and Nebraska, under similar statutes, the courts have held that the husband or wife is a competent witness against the other in a criminal proceeding for bigamy or adultery;40 on the other hand the courts of Texas and Minnesota have held that, by the use of these words, no departure from the common law rule was intended, and that neither husband nor wife was competent as a witness against the other.4 41 Such also seems to have been the holding of the California court. 42 And the Supreme Court of the United States, in a case appealed from the territory of Utah, followed the holding in Minnesota, Texas and California. 43

The Indictment.-Where the exceptions as to absence and divorce are contained in a subsequent section of the statute, they nor either of them need be negatived in the indictment.44 And it is presumed that, as in other cases where the offense is defined by statute, if the indictment follow the language of the statute it will be sufficient.45

D. R. N. BLACKBURN.

38 Williams v. State, 44 Ala. 24. 39 Martin v. Martin, 24 Ala. 86.

40 State v. Sloan, 55 Iowa, 217, 7 N. W. Rep. 516; Lord v. State, 17 Neb. 526, 23 N. W. Rep. 507.

41 State v. Armstrong, 4 Minn. 333; Compton v. State, 13 Tex. App. 274; Overton v. State, 43 Tex. 616. 42 People v. Langtree, 64 Cal. 259; People v. Mullings, 83 Cal. 138, 23 Pac. Rep. 229.

43 Bassett v. U. S., supra.

44 State v. Abbey, 25 Vt. 60, 67 Am. Dec. 754; State v. Tamler, 19 Oreg. 528, 25 Pac. Rep. 71; State v. Kansas City, S. & M. R. Co., 16 S. W. Rep. 567.

45 State v. Sam, 14 Oreg. 347; State v. Lee, 17 Oreg. 489.

WOMEN LAWYERS-ADMISSION TO PRACTICE.

IN RE THOMAS.

Supreme Court of Colorado, Sept. 14, 1891.

1. The common law disabilities of women being removed in Colorado by legislation there is no reason in the absence of statutory prohibition why they should not be enrolled as attorneys.

2. The provision of Const. Colo. art. 7, § 6, that "no person except a qualified elector, shall be elected or

appointed to any civil office in the State" does not apply to attorneys at law and will not be held to exclude women from admission to the bar.

HELM, C. J.: Petitioner, Mrs. Mary S. Thomas, asks to have her name placed upon the roll of attorneys practicing before this and other courts of the State. She tenders credentials attesting the prescribed professional qualifications, and a compliance with all express requirements of the statute and rules of court regulating access to the legal profession. The question is therefore squarely presented, are women entitled to admission to the bar of this State on equal terms with men? By ancient and universal usage, women have been denied the right to practice before the English courts. The two or three exceptions cited in petitioner's brief, such as that of Anne, countess of Pembroke, are not well authenticated. During the early history of this country a like exclusion from the profession generally prevailed, though a few instances are recorded, as in the case of Margaret Brent, also mentioned in petitioner's brief, where they were permitted to appear specially in particular proceedings. In the District of Columbia and in Massachusetts, Illinois and Wisconsin, within a period comparatively recent, such applications have been rejected, the courts promulgating learned opinions in connection therewith. Fifteen years ago the Supreme Court of the United States also denied the right. The case was not reported, but the chief justice, in orally epitomizing the reasons for adverse action, declared that the court had concluded to adhere to the uniform custom since its organization of licensing men only, till "a change is required by statute or a more extended practice in the highest courts of the State." In re Lockwood, 9 Nott. & Hop. 346, 1 Cent. L. J. 254; Ex parte Robinson, 131 Mass. 376, citing the above ruling of the United States Supreme Court; In re Bradwell, 55 Ill. 535; Ex parte Goodell, 39 Wis. 232. See 3 Cent. L. J. 186. The written opinions mentioned marshal all objections to conferring this privilege upon women, dwelling with especial force and clearness upon those existing outside of constitutional and statutory provisions. They ably discuss questions of impropriety and inexpediency based upon the laws of nature, the bearing of historical customs and usages, and the impediments growing out of woman's legal status at the common law. With all deference to those learned courts, we decline to imitate their example in the latter regard. We shall not indulge in speculation concerning the natural aptitude and physical ability of women to perform the duties of the profession, nor shall we dwell upon considerations of propriety or expediency in the premises. These are matters as to which wide differences of opinion exist, and we conceive that they have little, if any, bearing upon similar applications now presented in this State, however pertinent they may have been in the Commonwealths referred to when the above rulings were made. We shall likewise decline to give control

ling weight to historic custom or usage in England, in the American colonies and in the republic during its infancy. Reasoning, predicated upon the latter ground, possesses the inherent weakness of ignoring, to a greater or less extent, the marvelous changes throughout the country during the last fifty years in the legal status of women. It is a significant circumstance, indicating the trend of popular sentiment on the subject, that each of these cases above referred to was speedily followed by a statute providing for the admission of women to the profession. The Supreme Court of the United States, and the courts of the District of Columbia, Massachusetts, Illinois and Wisconsin, no longer adhere to the rule of discrimination on the ground of sex. Women are now licensed without question to practice in these courts as well as in those of several other States upon the same conditions as men, save only that the act of Congress requires three years' membership of the bar of the highest court in some State or Territory as a condition precedent to their appearance before the Supreme Court of the United States. In this Commonwealth, women of sufficient age, married or single, may make contracts, form partnerships, inherit, acquire and dispose of property in all respects substantially the same as men. The policy of our legislative and judicial action has tended constantly toward conferring upon them the same property rights and business status as are enjoyed by men. They may undoubtedly pursue all vocations and enterprises of a business character. They may also become ministers, physicians or educators, and if any limitation in regard to the learned professions exists, such limitation applies solely to the bar. The privilege of practicing this profession and sharing in its emoluments is alone questioned. Hence we contend with none of the difficulties encountered by the courts above mentioned arising from the disabilities of women, especially married women, at the common law. Applications like the one before us may therefore be regarded with the judicial favor usually extended when equality of rights is involved, unless some restrictive provision be found in our statutes or constitution.

Turning to the act regulating the licensing of attorneys, and defining their duties, liabilities, etc., we find nothing that, in our judgment, fairly shows a legislative intent to bestow this privilege upon men exclusively. The substantive phrases used throughout the act, when speaking of applicants, cover both sexes, They are "no person" and "any person," as "no person shall be permitted to practice, * * "no person whose name is not subscribed, * 99 "any person producing a license from any court of record, "if any person not licensed as aforesaid shall receive any money. * * *99 The pronouns employed with reference both to applicants and licensed attorneys are, it is true, masculine, but this fact standing alone is a matter of very little significance. The masculine pronoun is constantly used in legal and secular literature

*

*

to designate both sexes, besides it is expressly provided by law here, as in other States, that unless the language contains something inconsistent therewith, this rule may be followed in construing statutes: "Every word importing the masculine gender only, may extend to and be applied to females as well as males." Mills Ann. St., § 4185. There is no language in the act under consideration inconsistent with the application to its construction of this statutory guide. We are not unmindful of the rule that a statute is to be interpreted in the light of other statutes constituting a part of the same legislative system. But as already suggested the uniform and unmistakable policy of our legislation, as shown in numerous provisions, has been to extend the legal rights of women, and enlarge their sphere of occupation and usefulness. The proposition however is advalced with plausibility and force that section 6, article 7 of the constitution indirectly but clearly forbids licensing women to practice law. This section reads: "No person except a qualified elector shall be elected or appointed to any civi! or military office in the State." It is argued that attorneys are civil officers, and that since women are not electors they cannot become attorneys. Women may participate in school elections, and hold certain offices connected with the public schools, but they are not such electors as this section of the constitution contemplates. The constitutional term "qualified elector" is here used in its broadest sense, meaning a person qualified to vote generally. In re Notaries Public, 9 Colo. 628. The limitation declared by this provision is plain, and if attorneys at law are civil officers within its meaning the objection must be sustained.

The phrase "civil office," as thus employed, is frequently used interchangeably with the term "public trust." It undoubtedly relates to public offices; that is, to those offices which involve an election or appointment by or on behalf of the general public, and the performance of duties essentially public in their nature. See Cohen v. Wright, 22 Cal. 293; also Weeks Attys., § 39, citing cases from Alabama, Virginia, New York and South Carolina. Attorneys at law are constantly spoken of as "officers of the court." The designation is not inaccurate. Their special researches and general legal knowledge enable them to aid the courts, and thus to contribute somewhat toward the due administration of justice. The office is therefore an important one, and the attorney incidently performs a quasi public duty. But admission to the profession is purely a private matter, and is secured solely for the advancement of private interests. By virtue of such admission, attorneys are not required to perform specific public acts, nor are specified duties devolved upon them in behalf of the general public. The duties they assume and the labor they perform are usually in pursuance of personal contracts with private litigants. Admission to the bar is an essential prerequisite to

the filling of certain offices, such as prosecuting attorney and judges of supreme, district and other courts. But these public trusts, and the functions connected therewith, devolve only upon members of the profession by virtue of an independent election or appointment. Until thus designated, they can no more enter into offices where the functions are of a public nature than can unlicensed persous wholly ignorant of the law. Our conclusion is that attorneys at law are not per se civil officers within the meaning of the constitutional phrase under consideration. See authorities last above cited. The major premise of the argument in support of a constitutional inhibition thus proves upon examination to be untrue, and of course the conclusion falls. instrument, so far as we are aware, contains nothing inconsistent with the admission of women to the bar. If there were any thing in the rules or usages of the court involving inconsistency, we would feel that a modification of such rules or usages should now be made. We have no disposition to postpone falling into line with the Supreme Court of the United States and other enlightened tribunals throughout the country, that have finally, voluntarily or in obedience to statutory injunction, discarded the criterion of sex, and opened the door of the profession to women as well as men.

That

The prayer of the petitioner will be granted. It is ordered that her name be placed upon the roll of attorneys.

NOTE.-In re Bradwell, 55 Ill. 535, decided in 1869, the earliest of the cases cited in the principal opinion the refusal rests chiefly on the incapacity of the applicant arising from the fact of her coverture, though the court goes further and instances the ancient usage of the law and the distinct social functions of the sexes as reasons why no woman, married or single, should be enrolled as an attorney. On appeal to the Supreme Court of the United States it was held that the right to practice law in a State court is not a privilege or immunity within the constitution of the United States. Bradwell v. State, 16 Wall. 130. In re Lockwood, 9 Mott. & H. 346 (1873), the next in order of time, marital disability and the common law unity of the husband and wife is the controlling reason. In Matter of Goodell, 39 Wis. 232, 3 Cent. L. J. 186, the applicant was unmarried, but the court held that the use of the masculine pronoun in the statute prescribing the qualifications for admission to the bar, sufficiently indicated a purpose that men only should be licensed; that the rule in the construction of statutes that "words of the masculine gender may be applied to females" is permissive only. The court also dwells upon the impolicy of extending to women an opportunity to mingle in forensic strife. In Robinson's case, 131 Mass. 37, the court, Gray, J., confines itself to the construction of the statutes and holds with the Wisconsin court that the rule of construction that "words importing the masculine gender may be applied to females" will not authorize the court to so interpret a statute as to introduce a fundamental change in long established principles of law.

Besides these decisions cited in the principal case, we have discovered but two others upon the question. In Re Leonard, 12 Oreg. 93, 20 Cent. L. J. 330, the