by Jill Norgren
Foltz studied law with Elias because, like Goodell, she was refused as a student by the town’s best lawyer, Francis Spencer. Spencer declined with a stinging letter, calling her desire to be a law student a “foolish pursuit” and her practice of law something that would bring “ridicule if not contempt.”9 Her place, he wrote, was at home. Foltz zinged back with a lecture titled “Equality of Sex,” in which she argued that “woman must be either man’s equal or his slave. There is no middle ground.”10
California did not make it difficult for white men to become lawyers. The state code required six months’ residence and said nothing about the length, or nature, of an applicant’s course of study. The lack of standards made the state a reasonable butt of criticism to eastern lawyers like George Templeton Strong who, nevertheless, would have praised the code’s prerequisite that any applicant wishing to join the bar be a “white male citizen.” Nellie Tator, temporarily living in Santa Cruz, had passed the bar examination in 1872, only to be refused admission because of her sex. Tator had drafted legislation to defeat this discriminatory requirement, but the bill died in the California Senate.11
Obviously, for Foltz, there was no middle ground on the issue of bar admission. The law had to be amended if she was going to have the opportunity to earn a living in California as an attorney. Tator had failed in 1872, and in the same year a highly orchestrated right-to-vote case had resulted in an adverse ruling.12 Foltz knew, however, that California had an active and expanding women’s rights community that encouraged reform policies. Indeed, she was very much a part of this community, having befriended Sarah Knox, president of the San Jose woman suffrage society. Susan B. Anthony and Elizabeth Cady Stanton had toured the state in July 1871 on behalf of woman suffrage, and in the same year Congressman Aaron Sargent, subsequently Belva Lockwood’s ally, spoke in favor of women’s right to vote as he began his campaign for a U.S. Senate seat. A statewide woman suffrage society was incorporated in 1873, its success resting on the active involvement of numerous women, including Lockwood’s eventual 1884 running mate, Marietta Stow. Foltz was also heartened by reform bills in the 1873-74 legislative session. Sarah Knox and other activists had successfully lobbied for a bill making California women eligible to hold school offices, along with another law that provided for women employed in the public schools to receive the same pay as men with the identical credentials.13
Foltz judged that approaching the legislature made more sense than challenging the “white males” law in court. She knew the defeat that Bradwell, Goodell, and Lockwood had each encountered with their judicial appeals. Early in January 1878, Foltz drafted a “Woman Lawyer’s Bill,” simply replacing the words “any white male citizen” with “any citizen or person.”14 Despite negative racial attitudes, the removal of “white” caused no discussion, perhaps because of the ten-year-old Fourteenth Amendment. Rather, the debate, in committee, on the floor of the legislature, and back at boarding houses, centered upon the question of women in public life—women as professionals and women as voters. Foltz’s bill had nothing to say on the issue of enfranchisement. Yet, in these years, it was the harsh truth that any women’s rights legislation was viewed by legislators—in California and elsewhere—as nothing more than a slippery slope leading to woman suffrage. The fact that Sarah Knox, and other noted suffrage women, had joined Foltz in Sacramento only exacerbated this view.
As the new session opened, a record number of bills were introduced and, while Foltz’s bill was controversial, she had to fight to get attention for it. The “Woman Lawyer’s Bill” was introduced in the Senate by former San Jose mayor Barney Murphy, who had worked with Foltz on professionalizing the town fire department. After successfully lobbying Congress for her women lawyers bill, Belva Lockwood told reporters, “[N]othing was too daring for me to attempt.”15 Persuading the California legislature required the same boldness from Foltz, who reported, “I coaxed, I entreated, I almost went down on my knees before them asking for the pitiful privilege of an equal chance to earn an honest living in a noble profession. … I would have reasoned. … [B]ut I had to beg.”16 Getting by on next to nothing, she spent two weeks living in Sacramento arguing against doomsayers who said such change was against woman’s true nature, that it would “unsex” them and would be unhealthful for domestic life. Other opponents contended that women lawyers would work their wiles on male jurors, who would then acquit the guilty. Still others joined Wisconsin’s Judge Edward Ryan in thinking that exposing a woman lawyer to all the nastiness of a courtroom was “revolting.”
Despite this opposition, Foltz’s entreaties and Murphy’s support resulted in Senate approval. Needing money, Foltz went off to Oregon, accompanied by her oldest daughter, to lecture. Foltz had lobbied members of the state assembly before leaving, and had assurances from representative Grove L. Johnson that, in her absence, the “Woman Lawyer’s Bill” would pass. She left her new friend Laura Gordon to monitor assembly debate. Gordon had significant interest in the outcome, both as a women’s rights leader and as a new student of law. Despite Assemblyman Johnson’s support, on an initial vote, the bill’s opponents prevailed. Only persistent lobbying and a successful motion by Johnson to have the bill reconsidered resulted in the ultimate legislative victory, by a slim vote of thirty-seven to thirty-five. Now, one hurdle remained: Foltz and Gordon had to win Governor William Irwin’s signature before the end of the legislative session. By Foltz’s telling, some Lockwood-like “daring” was required as she (recently returned from Oregon) virtually flung herself at the governor, called out the number of the bill, and held her breath until he signed it into law.17 At last, California, like Illinois, Wisconsin and Washington, D.C., forbade the exclusion of qualified women from the bar.
Foltz hurried to study for the bar examination that would occur at the next term of the court at San Jose. The customary panel of men met with her on September 4, 1878, administering, as had also become the custom in the matter of women, an extra-long exam of three hours. She passed, subsequently receiving “highly colored compliments.”18 Foltz became the first woman lawyer on the Pacific Coast when Judge David Belden administered the oath to her. The public called her “Portia of the Pacific.” Like Lavinia Goodell, she rented a “jewel” of an office in San Jose, ordered office stationery, and made the space feminine with flowers rather than spittoons. Unlike the childless Goodell, Foltz personalized the space with photographs of her five children.
Goodell’s practice began with her saloon cases; Foltz’s earliest clients sought to reclaim personal property seized for the payment of alleged debts. A month after going into practice she confidently faced Francis Spencer, the grand old man of San Jose, in “proceedings to set aside a fraudulent survey.”19 Women and the poor commanded much of her time. Divorce cases were entered in her logbook. Foltz’s biographer, Barbara Babcock, later concluded, “[I]f Foltz had continued with small cases like these first ones, she would never have become famous, though she eventually might have established a modestly viable local law business.”20
Cartoons lampooning female lawyers became more common as women continued to join the profession. In this 1909 spoof, part of a postcard series, Walter Wellman suggests that if women gain power, men will be, quite literally, diminished. (Private collection of Jill Norgren and Wendy Chmielewski.)
Political interests (primarily issues of justice), ambition, and the need for a better income quickly drew Foltz to a life larger than one defined by local practice. In the autumn of 1878 Foltz, along with Laura Gordon, threw herself into two battles. At the newly convened state constitutional convention, she joined the interesting mix of supporters submitting resolutions and petitions for woman suffrage.21 Arguments ranged from the simple justice of the proposal to a nativist theme of white women voters canceling out the impact of potential Chinese voters. Debate continued through the winter months, but ultimately none of the proposals for woman suffrage prevailed.
In January 1879, Foltz moved to San Francisco with her t
wo boys and eldest daughter. The younger children stayed in San Jose with Talitha Shortridge. Foltz set up a new law office, but the raison d’être for the change lay in the opportunity to become a university law student. Months earlier the state legislature had established the first law department in the West, to be known as Hastings College of the Law, at the University of California. Foltz, California’s first woman lawyer, hoped to earn the honor of becoming the state’s first female law school graduate. She wished to be “learned in the law … to master its sources and its theoretical underpinnings, to argue great constitutional cases and to be a famous trial advocate.”22 Wealthy activist Sarah Knox, along with a few other suffrage women friends, helped to make the enterprise possible with a private grant.
Foltz sought to register at a pivotal moment in the history of legal education. While many eastern law schools were years from accepting female students, in the Midwest, in particular, a spirit of equal treatment was finding its way into law school admissions policies. Foltz obviously hoped that Hastings would prove progressive and welcoming. In fact, Foltz’s experience mirrored that of Belva Lockwood at the National University Law School. Hastings’ board of directors and male students felt that the presence of female students would undermine the value of the school, and the degrees that it would confer.
Before this happened, Foltz felt good about San Francisco and optimistic about law school admission. On the train from San Jose the conductor had referred her to a fellow traveler in need of an attorney. The client, a “Mr. DeWitt,” was headed to the United States Land Office to defend ownership of public property assigned to him as a settler.23 Foltz negotiated a good fee, made her way to the Land Office for copies of the relevant regulations, pulled an all-nighter, and won her first case in San Francisco.
She did not do as well at Hastings, where, after three days of attending lectures, she was barred from returning. She appealed to Judge Serranus Hastings, founder and first dean, who acquiesced with a note requesting that the lecturer admit her until the board established a policy. Laura Gordon joined Foltz for the third day of classes, but at the end of lectures, the women received a “Dear Madam” letter from the registrar. Formally, no explanation was proffered; informally, officials told the two women that “their presence, particularly their rustling skirts,” bothered the male scholars.24 With resolve, they nevertheless continued to audit, holding fast to the fact that the University of California, by law, was coeducational. Several weeks went by before men from the school physically blocked their entrance.
This left the women two options: retreat or sue. They sued. Foltz attempted to join the San Francisco bar in order to argue the case. The presiding judge refused to honor routine reciprocity. Foltz demanded an examination, which she passed with distinction—and became a local bar member. With the state constitutional convention still in session, she and Gordon also drew up, as added ammunition, an amendment to the constitution stating, “No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation or profession.”25 Next, they constructed their legal arguments for the court, asserting that the university, and therefore Hastings, was coeducational by law. They sought, as a remedy, mandamus, a writ ordering the board of directors (public officials) to do their duty and admit the two qualified students.
Both women were running out of the funds required to live in San Francisco. They desperately needed a legal strategy that would minimize the time needed for a judicial decision. Their goal was to be back in class. On February 10, ready to try anything, Foltz brought legal action in the trial court while Gordon went directly to the California Supreme Court.26 The high court rejected Gordon’s suit, but Foltz won a decision from the trial court that the Hastings board had either to admit her or show cause why not. The board’s lawyers attempted to delay, but Judge Robert Morrison, initially compliant, eventually set February 24 as the trial date and permitted Gordon to consolidate her petition with Foltz’s. Although frustrating, the delay worked to their advantage because in this period the constitutional convention added Foltz and Gordon’s women’s employment section as well as an education clause to the new state constitution.27
Before the court Foltz, the petitioner, made a simple argument, repeating the points she had been insisting upon for weeks: that the state university was coeducational; that she met the school’s requirements; and, as the Daily Alta had reported, given the recent passage of the Woman Lawyer’s Bill, that it would be “an anomaly to enact that women might practice in all the law courts of the state, and yet in the same session [of the legislature] establish a law school from which they are excluded.”28
Attorney Thomas B. Bishop followed Foltz, arguing for the Board of Directors. He drew on the line of reasoning set out by Justice Joseph Bradley in Bradwell, social ideas that had, in turn, inspired Wisconsin’s Judge Edward Ryan’s opinion in the Goodell case. Indeed, Bishop read Ryan’s text verbatim, and did not acknowledge that Illinois and Wisconsin had since liberalized their codes and admitted women to practice.29 Delos Lake continued the argument for the board, and then Foltz and Gordon rebutted.
Judge Morrison handed down his decision in Foltz v. Hoge on March 5. He accepted Foltz and Gordon’s reasoning, cited the Woman Lawyer’s act as well as the constitution’s new employment section (awaiting ratification), and ordered that the petitioners be admitted to Hastings. Morrison lived three thousand miles from Washington, D.C., but he knew that only two days before Belva Lockwood had been admitted to the U.S. Supreme Court bar after winning her contest with Congress. Foltz later said that Morrison did not “believe in women lawyers … but he did believe I was right in the law.”30
Serranus Hastings also thought that the law was on Foltz and Gordon’s side. He did not wish an appeal, and must have believed that his financial contribution to establish the school gave him some clout, but the school’s directors, also prominent and conservative pillars of the community, ignored him and appealed. This permitted Judge Morrison, who had been grudging in support of the Woman Lawyer’s Act, to stay his order, again keeping the women out of Hastings. The semester would now be long over before the appeal was argued.
Her grant spent, Foltz returned to San Jose to study for the California Supreme Court bar exam, and to prepare her appellate brief in the Hastings case. In December she passed the difficult state supreme court bar examination, which qualified her to argue her case a few weeks later. The high court quickly issued an opinion favorable to women. Drawing upon the education and employment clauses for which Foltz and Gordon had lobbied, it ordered that the law school be opened to qualified women. Foltz was doubly rewarded: the chief justice later told her, “You are not only a good mother; you are a good lawyer. I have never heard a better argument for a first argument, made by anyone.”31 Nearly broke, however, Foltz gave up her dream of a formal legal education and went back to the practice of law. She had brought about this victory for women but had to watch from the sidelines as the first women students, Mary McHenry Keith and Mrs. Marion Todd among them, reaped the benefit of her persistence and talents.32
The Foltz family was reunited in San Jose in 1879 after the Hastings appeal. This was the year when Clara divorced Jeremiah on grounds of desertion, just when critics were attacking California’s liberal divorce laws as weakening the family while fattening the pockets of lawyers. Foltz did accept divorce cases, but generally avoided speaking in public on the subject. Early in her career she had said that married partners could never really be divorced, particularly when there were children. After years of practice, however, she no longer found “the sacredness of marriage … a sound argument against divorce,” saying, “[W]hen love is slain, the civil contract is but the husk and shell of marriage.”33
Seeking to lift her social and professional status, Foltz never referred to the stigmatizing divorce and always called herself a widow. This did not stop her from having a very good male friend, Charles (“C. E.”) Gunn, who was always at her side: “Gos
sip had it that they were lovers; in any case, they were certainly the closest of friends.”34
By 1880 Foltz had made a name for herself as a lecturer, a reform lobbyist, and the attorney who argued the Hastings cases. She did not, however, want the considerable success of beating reform legislation out of state representatives, and teasing the doctrine of equal educational opportunity from the courts, to be the capstone of her career. Rather, she intended, at the beginning of this new decade, to reach higher and further, to achieve the status of a great jury lawyer, and to become wealthy. This meant not accepting a lifetime of small cases in San Jose.35 Belva Lockwood and Lavinia Goodell had settled for local practices. Lockwood drew on her knowledge of Washington bureaucracy to solicit veteran pension and patent cases that she combined with other civil, and criminal, work. Goodell’s short career mirrored Lockwood’s, with fewer southern belles claiming breach of marriage promise and more court-appointed criminal defense cases. Neither achieved significant financial success; each turned to other serious pursuits, both to earn money and to forward their particular reform agendas.
Whatever Foltz’s ambition as a lawyer, whatever heft she brought to any endeavor because of her intelligence, personality, and pluck, she was doomed to fail in her larger ambitions. Foltz would not have admitted this. On the one hand, men had stepped forward with strategic counsel, legislative votes, and personal encouragement. On the other hand, at every turn professional and political men had also opposed her ambitions. As a “first woman” Foltz was in terra incognito. She chose to believe that whether her course was one opened by the extraordinary changes occurring in post–Civil War America—including those promoted by the women’s movement—or one achieved by her as a unique woman, she would prevail as an outstanding attorney.
