Rebels at the Bar

by Jill Norgren

  Legal professionals judged Foltz to have “superior skill” as a trial lawyer.36 Her personal and professional handicaps, however, overwhelmed this talent. She lacked a depth of legal training thanks to the Board of Directors of Hastings. No established male law firm would take her on as a partner because of her sex and, perhaps also, because of her outspoken support of woman suffrage. This limited her ability to acquire further mentoring as well as her access to a larger pool of clients. She came from a family of strivers, but they lacked extensive social connections. For many male attorneys in nineteenth-century America this did not matter, but for Foltz, lacking access to the wealthy elite of California was one more disability. In 1892, she ran for the office of San Francisco city attorney as the candidate of the People’s Party (having failed four years before in her bid to be appointed a prosecutor in San Jose). The position would have provided a steady income, reputation, and possible steppingstones to other opportunities, but she did not win.

  Frustration shadowed Foltz throughout the 1880s and early 1890s. She nearly always had legal work but not the lucrative corporate consulting or well-paying criminal defense that she craved. The men in her circle, men like self-made lawyer James G. Maguire and her brother, Samuel, turned legal training and political loyalty into opportunities beyond her reach. In 1882, at the age of twenty-nine, her friend Maguire became a superior court trial judge in San Francisco, serving for six years. In 1892, as the nominee of the Democratic Party, he won the first of three terms in the U.S. House of Representatives.37 Clara’s baby brother, Sam, twelve years her junior, entered the legal profession after several years spent as a teacher. He became wealthy as the partner of Delphin Delmas, one of the best lawyers on the Pacific Coast.38 Active in Republican clubhouses, early in the twentieth century he was elected twice to the U.S. Senate, and later served in the Justice Department. Clara helped him to campaign.

  The journey of the 1880s and 1890s took Foltz to many cities, including San Jose, San Francisco, San Diego, and New York, in a restless search for a community open to an ambitious woman. Late in 1880 Foltz hired on as special counsel to the San Francisco district attorney—the first woman to serve in this position—in a sensational murder case. George Wheeler, “respectably dressed and middle aged, voluntarily appeared at the police station to confess that he had killed Adelia Tillson and stuffed her body in a steamer trunk.”39 He said that they had been lovers. His lawyers encouraged him to enter a plea of insanity. Foltz, well known as “an uncompromising exponent of the rights of women,” was brought in to convince the male jury members of their duty to the female victim.40 In a dramatic counter-move, the defense hired Laura Gordon, Foltz’s friend, who had just won an acquittal in a jury murder trial.41 In Wheeler Foltz and Gordon presented strong summations. Foltz prevailed, with Wheeler sentenced to death.

  Foltz did not win all of her cases. In 1880 she failed to win the commutation of a death sentence in an appeal by Charles Colby. His was one of a number of pardon cases she handled in this period. Babcock argues that the attorney’s “real gain from her pardon practice … was a firsthand look at the injustice of harsh sentencing after a trial without adequate counsel, entered without credit for rehabilitation or hope for mitigation.”42

  Foltz, of course, was not alone in appreciating the significant failings of the criminal justice system. Before her early death, Lavinia Goodell, believing jails were “schools of vice and crime,” had been developing a theory—and practice—of prison reform. In Washington, D.C., lawyer Marilla Ricker drew her friend Belva Lockwood into her campaign on behalf of prisoners’ rights. Like Ricker, Foltz became a student of criminal courts. Observing the woefully inadequate counsel available to those who were poor, unpopular, or not savvy, and the difficulties of mounting a defense without funds for proper depositions or expert witnesses, in the early 1880s she began to shape a proposal for an office of public defender, which would be staffed by lawyers paid by the government “for the defense of those charged with a crime, just as it did for the prosecution.”43

  Despite her superb skills as a criminal attorney, Foltz found her law work insufficient to support her family and meet the overhead for her office. Often, she inherited the “hopeless” cases of “those who could not afford a male attorney.”44 She advertised as a probate and divorce lawyer, and in the mid-1890s said that more than three hundred women had been her clients.45 Juries already knew her to be a gifted speaker. Like many prominent women, including Laura Gordon, she therefore turned to paid platform speaking for additional income. Her public recognition, and family affiliation as a Republican, led to Foltz’s recruitment in 1880 by state party leaders to campaign for presidential candidate James Garfield. In a maneuver mirroring the Wheeler trial, Laura Gordon, a Democrat, was hired to counter her impact by stumping for Winfield Hancock, the Democratic Party candidate. Both women were successful in bringing out large crowds. Foltz spoke throughout California and for her nearly forty political appearances was paid three thousand dollars.46 The party brought her back four years later to speak for the candidacy of Republican presidential nominee James G. Blaine. In 1886, however, she moved over to the Democrats, and was paid to campaign for their gubernatorial candidate. Her motives are unclear: possibly a Republican made a slurring remark about women in politics, possibly the Republicans refused to meet the price of her oratory.47

  Foltz had been keeping her law office open six days a week, trying cases throughout the state.48 She called it a “laborious practice” and sought relief, and money, in national lecture tours that, in the 1880s, became the core of her financial well-being.49 Foltz made three tours in the decade of the 1880s. She registered at the best hotels, to “indulge herself and project an image of success.”50 Hers was a world in which railroads had changed the nature of travel. It was also, however, a world without radio, television, or the internet. The public craved education and entertainment, and the women and men who traveled the lecture circuit provided both. Foltz joined with, and competed against, women like Gordon, Lockwood, and Frances Willard, and prominent men like Henry Ward Beecher.

  Foltz first rolled out a talk entitled “Lawyers,” in which she extolled, and defended, the profession, and the role of women lawyers who would “improve the profession because they would practice at a high humanitarian level, with mother-love and solicitude.”51 Explicitly answering Justice Bradley and Judge Ryan, she declared, “[T]he law is woman’s sphere.”52 Seeking a topic with broader appeal, she researched the life of Civil War hero, lawyer, and public servant Edward Dickinson Baker, a man she had long admired. She also spoke about women’s rights in a lecture called “A Woman and Her Partner.”53

  While touring, Foltz earned money, escaped the daily grind of her practice, and met a number of women pioneers in various professions. In Portland, she encountered attorney Mary Leonard, who, after having been admitted to practice in Washington Territory, had come to Portland seeking reciprocity for her Washington credentials. The state supreme court turned her down, “citing the absence of a statute to overcome the ‘generally understood’ disqualification of women to practice law.”54 Foltz arrived at the time of this decision, “dashed” off a version of her earlier “Woman Lawyer’s Bill,” used her old contacts to obtain a hearing, and had the bill on the governor’s desk in a matter of hours. Leonard was admitted to practice in Oregon, stayed in Portland, and for twenty years handled a large number of criminal cases.55 Foltz’s time in Portland also afforded her the opportunity to visit with her old friend Abigail Duniway, a well-known suffrage agitator. Early in life, Duniway had earned her living as a milliner and dressmaker. She now lectured, ran the New Northwest, a newspaper well known in women’s reform circles, and invested in real estate. Duniway’s economic proclivities may have influenced some of Foltz’s later business decisions.

  Foltz used San Francisco as her home base during her first two lecture tours. In 1887, however, she moved her family to San Diego. The city was experiencing a land boom that Foltz, like D
uniway, would have loved to use to her financial betterment. Unhappily, she lacked the capital to buy land. Perhaps inspired by Duniway’s New Northwest, or the newspapers run by Marietta Stow, Myra Bradwell, or Clara Colby, she thought to make money by starting a suffrage weekly. Instead, however, in May 1887 she took advantage of equipment belonging to friends who were publishing a monthly magazine to inaugurate a daily newspaper, the San Diego Bee, of which she became the owner and editor. The venture lasted only six months. Foltz had underestimated the work involved in running a daily paper. She had also antagonized powerful business interests over questions of land claims policy.56

  The years 1888 and 1889 proved largely unsatisfactory, and Foltz surely saw the possibility of wealth and notice slipping away although she was only in her late thirties. With Laura Gordon, she continued to lobby the state legislature on women’s rights bills. Paying clients, however, had been scared off by Foltz’s land claims politics, and added disappointment came when she failed to secure a position as a prosecutor (with its safe, regular salary). City officials considered women ineligible, as the law required that prosecutors had to be voters.57 Perhaps influenced by the acting career of her eldest daughter, Foltz even gave a moment’s thought to becoming an actress.58 Then she settled down and combined her law practice with brokering real estate. This offered her opportunity to search and clear titles and draft sales contracts. The timing, however, was poor as the real estate market had gone into a steep decline. Foltz did some lecturing, returned to San Diego, dug in once again, and attempted to make her law practice pay. She made headlines as the press followed her in a client’s messy divorce trial but, in a stinging loss, Foltz could not convince the jury to grant the much-abused wife a divorce and family property.59

  In 1889, it appeared that Foltz’s law practice would fail. In the face of this crisis, however, she was buoyed by her involvement in a movement that, in its short life, swept the country and helped to lift Populism and its political arm, the People’s Party, into a position of considerable notice. The year before Edward Bellamy had published his utopian socialist novel, Looking Backward: 2000-1887. Bellamy, a Massachusetts lawyer, portrayed a benign American society in which every citizen was an equal partner in a state to which he or she contributed, one that in turn cared for each citizen. Bellamy appealed to Americans tired of Gilded Age inequality and democratic hyperbole that ignored the rights of women, workers, African Americans, and Asian Americans. Suffrage women were drawn to the ideas of “Bellamy Nationalism” and formed Nationalist clubs all over the United States. In San Diego Foltz headed a branch claiming six hundred members. Laura Gordon presided over the Nationalists in Lodi, California.60 While the sensation of Nationalism waned, its principles and plan of action for a more just society influenced Foltz both in her short-term affiliation with the Populists and in her development as a public thinker.

  Foltz presented one of her most important, and impassioned, lectures in Washington, D.C., at the February 1890 meeting of the newly formed Woman’s National Liberal Union (WNLU). The WNLU, a progressive women’s reform organization led by New York State suffrage leader Matilda Joslyn Gage and philanthropists William and Josephine Aldrich, had its first (and only) convention in 1890. On the second day the focus of the meeting turned to the reform of the legal system, and the need for an office of public defender. William Aldrich and Foltz each addressed the delegates, pleading for publicly supported attorneys who would provide a proper complement to the existing system of free juries, witnesses, and courts.61 Belva Lockwood was also there. She stepped forward after Foltz and Aldrich spoke. She identified herself as a veteran criminal attorney and told the audience that “perfectly innocent” men and women were often sentenced to time in jail, emphasizing, as Aldrich and Foltz had not, the particular burden experienced by “colored men and women.”62 From the convention, Foltz headed back to the West Coast after being admitted to the U.S. Supreme Court bar. She hoped that the WNLU audience, along with the press, would embrace the idea of public defense as a public policy whose time had come.

  In 1890 the peripatetic Foltz abandoned San Diego for San Francisco. She still hoped to break into the city’s establishment bar. Instead, she found increased unemployment and other signs of what would become the great national depression of 1893. Her law practice did not flourish but, as consolation, Foltz found the state political branches receptive to a number of her reform proposals. Several decades before the founding of the civil liberties and human rights organizations of the twentieth century, she identified critical issues affecting not just women but also individuals brought before the criminal justice system. After the early contests needed to join the California bar, Foltz’s work lobbying reform ideas became her enduring legacy.

  In 1891 she revived legislative proposals to allow parole for prisoners. At the time, California had a rather corrupt parole system. Foltz argued for a parole board composed of citizens and prison professionals, rather than political appointees, with the intention of ending the bribery that created scandal after scandal. The new process would permit all inmates, including murderers, to be eligible for parole, and each prisoner to have a right to a parole hearing after serving a minimum sentence.63 The legislation did not pass until 1893 when Foltz was credited with “pioneer[ing] the movement for the establishment of the prison parole system in California.”64

  With Gordon, Foltz also continued to use her time at the legislature to petition for women’s right to vote. They failed year after year. California women had to wait until 1911, when voters adopted Proposition 4, granting woman suffrage. Foltz and Gordon did succeed in influencing the passage of a law enabling married women to be executors of estates. In 1891, Foltz also saw the enactment of legislation to limit a husband’s control of property acquired during marriage.65

  Perhaps taking her cue from Marilla Ricker’s successful action in Washington, D.C., Foltz pushed for a bill to allow California women to become notaries public. As the likelihood of success increased, a practical Clara Foltz aggressively lobbied the governor for a patronage appointment. She received it only after an important endorsement from one of the leading newspaper owners in the state. When the governor signed her commission, she became the first woman notary in the state, joining women like Ricker in having what was, in the nineteenth century, an important position.

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  A year later, now associated with the People’s Party, Foltz ran unsuccessfully for city attorney of San Francisco. The press paid attention to her campaign, which featured a number of issues, including the rights of women. The disfranchisement of women meant that many of Foltz’s supporters could not vote for her on Election Day. Her campaign was also dogged by those who reminded voters of a statute that required that government officials, including city attorney, hold suffrage. Had she won, Foltz “probably … planned to argue that the 1879 constitutional clause enabling women to pursue any calling or vocation would allow her to serve. … [S]he had made [this point] when Marion Todd was running for district attorney on the Greenback-Labor ticket in 1881.”66

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  In 1893 the United States hosted a world’s fair in Chicago, a coming-of age party for the nation. Clara Foltz was there contributing, as a public thinker, two important talks, the first at the Congress of Women Lawyers, followed by a presentation to the international Congress of Jurisprudence and Law Reform.

  The Congress of Women Lawyers was the brainchild of Chicago attorney Ellen Martin, who believed that her sisters-in-law, now more than two hundred in number, needed to form an association “to control their representation in the general organizations of women.”67 On August 3, 1893, Martin opened the three-day meeting, speaking with optimism about the place of women attorneys in the profession: “Women lawyers have no wrongs to right so far as the bench and bar are concerned, having been almost uniformly well treated by both everywhere.”68 This was a curious conceit at a time when many government and corporate legal positions were not open to women—as Foltz, Be
lva Lockwood, and others present well knew. Many women spoke, often reminiscing about their early struggles to enter the profession. Lockwood, however, an active member of the Universal Peace Union, avoided autobiography. She came to the podium next to last, and used her time to present the case for a permanent international court of arbitration. Foltz followed her. She, too, put aside her polished “Lawyers” lecture, with its many opportunities to discuss contesting with recalcitrant men, to deliver a new, esoteric talk titled “Evolution of the Law.”69 For both women, the choice of topics said a great deal about how they defined themselves and wanted others to see them.

  “Evolution of the Law” was more abstract and intellectual than Foltz’s previous talks.70 It was a “broad jurisprudential survey, culminating in a concrete proposal for legislative reform of the law’s institutional mechanisms … anticipating the legal thought of the twentieth-century Progressive movement.”71 Foltz began with an honest appraisal of the profession, moving on to five areas of law where she saw progress. Tellingly, she spoke first about freedom of speech, not women’s rights. She outlined the “slow steps” from a “bigoted past” to the present where the right to speech is acknowledged and secured by the Constitution. Next, Foltz pointed to women’s legal emancipation; “she was ‘no longer man’s slave.’” And workers, she said, “had been freed from the more humiliating incidents of the feudal regime of master and servant.”

  Foltz then shifted to an analysis of reforms in civil procedure, “the statutory replacement of the common-law writs, with their jargon, and fictions, by a ‘more rational’ system based on ‘plain statement’ and providing that ‘facts’ be pleaded.” She followed her discussion of the civil system with a consideration of the criminal justice system. While often critical, she stayed with her theme: the progress to be seen from a historical perspective. Foltz spoke of the reduction in capital crimes; brutal punishments and trial by ordeal abolished; and torture of witnesses outlawed. Perhaps most surprising for a lawyer who was shaping a proposal for an office of public defender, she noted that “defendants could testify, call witnesses, and be represented by counsel.” She anticipated Progressive policy by insisting that “democratic public opinion [was] the driving force behind change in the law, and the legislature its primary agent.” Constrained by “their central duty to apply existing law,” courts were not a force for progress—as so many women in the room had learned when trying to become attorneys. Despite this conclusion, Foltz proposed a “regular review of existing laws” that would be led by state supreme courts acting as advisory councils to suggest annual improvements in the statutes.