Rebels at the Bar

by Jill Norgren

  Myra Bradwell would have rolled her eyes if she had heard Ellen Martin state that women lawyers had been almost uniformly well treated by the bench and the bar. Even as late as 1893, in the planning of the Congress of Jurisprudence and Law Reform, male colleagues had resisted the inclusion of women speakers, saying that “women had not earned a place among the top judges, professors, and lawyers.”72 And so Bradwell, only months before her death, along with several other female Chicago lawyers, battled, successfully, to counter that opinion. At the last moment, too late for travel by the foreign women to whom invitations were extended, Foltz and Mary Greene of Massachusetts were asked to speak.73 Foltz used the opportunity to present her public defender proposal on a platform filled with male jurists from around the world.

  The radical idea behind “Public Defenders” took only half an hour to outline. Foltz portrayed the power of the state arrayed against a defendant: “[A]round and behind [the prosecutor] is an army of police officers and detectives ready to do his bidding and before him sits a plastic judge with a large discretion often affected by newspapers.”74 This defendant contended with what Foltz argued was the tendency of prosecutors and police to “mistakenly believe that ‘it is the duty of the State to convict whoever is arrested.’” Drawing upon fifteen years of service defending indigent and disabled clients, and often humanizing her legal abstractions with anonymous descriptions of these defendants, Foltz called upon her audience to recognize the price paid by people against whom all the powers of the government are turned, saying, “even if acquitted he ‘comes from the court-house a changed man. … Disgrace has crushed his manhood and injustice murdered his patriotism.’” She asked for the reorganization of the criminal courts to shield defendants by balancing the scales of justice, scales that would become exact and equal. Such reform would bring about “[c]onstitutional obligations conscientiously kept and government duties sacredly performed.”

  The legal arguments behind her proposal for an office of public defender were straightforward: prosecutors, Foltz said, had fallen into partisan advocacy, “making a defender necessary for a fair presentation of the case.”75 She argued further that the state had a duty to the accused to provide a defense. The counsel would be a “skilled adversary to equalize the sides and make the presentation fair.”76 It was an entirely new and original solution. Those eligible included all defendants, as the law presumed every person to be innocent until proven otherwise. Drawing upon John Locke’s social contract theories, Foltz posited that “[e]ach citizen surrenders his natural right to defend himself and pays his share for the support of the State, under the implied contract that … the government will defend his life and liberty from unlawful invasion.”77 She concluded that when “the rights of a person are assailed it is the duty of the government to provide him defense.”78 Foltz, Barbara Babcock argues, was “many generations ahead of her time” in speaking and writing of a constitutional right to free counsel,79 and anticipated the landmark 1963 U.S. Supreme case of Gideon v. Wainwright, holding that “‘lawyers for the defense are not luxuries but necessities in criminal cases’ and that the state must provide free counsel for the indigent.”80

  Foltz was very much trying to make a go of San Francisco when she returned from the World’s Fair. She pressed ahead with her law practice, did some lecturing, and founded the Portia Club. She aimed, in this enterprise, to bring “together the establishment ladies and the movement women … [in] law study … to attack the ‘poverty and distress’ that resulted from women’s ‘ignorance of the most common legal principles.’”81 While women’s clubs in the later part of the nineteenth century had many objectives, a few women attorneys had specifically taken on the task of empowering women through education in law and civics. In 1876, several Washington women, including Belva Lockwood, incorporated the Women’s National University, as noted earlier, but failed to capitalize the institution, which would have had a law department. A decade later, young Boston attorney Lelia Robinson, having virtually no clients, sat in her office and wrote Law Made Easy: A Book for the People. In 1896, Lockwood’s colleagues Ellen Spencer Mussey and Emma Gillett started the small Women’s Law Class, which they built into the Washington College of Law.82 Later still, Edward Gardner Lewis, a St. Louis publisher with a flair for understanding, and cultivating, women’s interest in self-improvement, launched the American Woman’s League with its political arm, the American Woman’s Republic (AWR). The league drew upon Marietta Stow’s decades-old idea for a woman’s republic and political party. In the AWR, Lewis offered women a platform from which they could be trained in law and civics and from which, at the moment of universal suffrage, they could organize a political party.83

  Foltz made a modest start with weekly “Portia” classes at her office. She attracted only wealthy San Francisco women because the classes were not free, and because Foltz wanted to train these “elite” women and have them pass their learning along to other classes of women.84 She demanded disciplined reading and discussion from her students. Foltz hoped that eventually the Portia Club would morph into a law college for women. Although she had sued to assure coeducation at Hastings, she had no trouble making the argument that “[a]t the previously male schools … a woman was ‘like a skeleton at a feast,’ who ‘feels that both professors and students wish she were not there.’”85 By its second season, Portia had clubrooms in different parts of San Francisco, with the intention of fitting one of them out as a moot courtroom. Foltz had made a success of the lectures and discussions, which she augmented with regular attendance at court trials. She agreed with earlier suffragists on the need for women to attend court in order to support women litigants, and in her comments sagely underscored the obvious: the woman litigant “faced by a male judge, flanked by a male jury, surrounded by male lawyers … with a male clerk and bailiff and a mob of male bipeds in the lobby. … A woman, especially if she is a timid one, is at a terrible disadvantage in such a place.”86

  Courtrooms, civil and criminal, were the setting of many of Foltz’s great moments. Anticipating acclaim and hoping for success and a “handsome” contingency fee, in February 1895 she invited the Portias to the Alfred Von Schmidt trial.87 Von Schmidt had appeared in Foltz’s office, badly beaten, eyes bloodshot, front teeth missing. He was an escapee from the Home for Inebriates.88 On his behalf, Foltz filed a civil suit against the home for false imprisonment, asking one hundred thousand dollars in damages. Alfred claimed that a poor relationship with his father had led to the commitment, one the hospital extended after learning about the father’s wealth and, therefore, ability to pay the bills for his son’s “care.” Alfred testified to the administration of barbarous restraints, beatings, and brain-deadening drugs. He said he did not drink alcohol, but had experienced “a few malarial episodes.” Foltz was commanding, and in closing arguments she was sensational, with the courtroom under her spell and heavy applause after her last words. After four hours of deliberation, the jury returned a verdict for Von Schmidt, but with damages of only one dollar, leaving Foltz without her lawyer’s fee. The jury apparently had not understood the rules governing awards in the superior court. Jurors returned to the court the following day to try to correct the verdict, but there was nothing to be done.89

  With ash in her mouth, willing, at least for the time being, to abandon “Portia,” late in 1895 Foltz decided to “start over” in New York City. She moved thinking that the New York City legal community would welcome her in ways that San Francisco had not. By January 1896 Foltz had established a general practice in Manhattan. Reporters were attracted to her, and liked her, but the male bar, men who followed in the footsteps of George Templeton Strong, while making no objection to her bar admission, refused to refer clients, or to collaborate.

  Gotham held Foltz for barely four years despite the opportunity to spend time with her eldest daughter, Trella, an actress living in the city. She had an insufficient number of clients. With time on her hands she turned to writing more extensively about
public defense. Foltz published two law journal articles on the topic, drafted a model statute, and campaigned for its introduction in a number of state legislatures, including personal visits to the state capital in Albany.90 By the end of the century, having denounced the “ill-concealed, often rude opposition of the legal fraternity,” Foltz had moved on—first to Denver and then back to San Francisco, where she tried, and failed, to “create a western version of the New York corporate practice,” while also promoting oil and oil fields.91 In December 1906, after the great San Francisco earthquake and fire, Foltz decamped for Los Angeles, where she spent the last thirty years of her life. Her mother and grandson, William, came with her, and other members of the family followed.

  Her years in Los Angeles brought Foltz some, if not all, of the professional and political rewards that she had sought. She found young women who openly admired her accomplishments and joined her in lobbying for suffrage. In 1910, James Gillett, the Republican governor, appointed Foltz to the State Board of Charities and Corrections. She was the first woman appointed to the seven-year-old board. Several months later she was appointed to be a deputy district attorney, again the first woman in California to hold the position. Both appointments came as the result of lobbying by organized clubwomen.92 In 1912, she received another appointment as district attorney, but shortly thereafter Los Angeles prosecutors became full-time employees subject to civil service rules and she lost the position.93

  In 1911 Foltz was in Sacramento promoting woman’s statutory right to vote. Revealing a split in the movement, other suffrage activists had come to the capital proposing a state constitutional amendment, scorning Foltz’s statutory strategy. The legislature approved the constitutional approach, setting the stage for a ratification campaign, the second in California since the mid-1890s. Despite their initial strategic differences, Foltz joined the pro-amendment suffragists and stormed the state, saying that California women were “too busy to sit on … pedestals.”94 The suffrage amendment passed, barely, by two percent of votes cast.95 In the 1912 election, for the first time, Foltz joined the queue of voters.

  The appointments that Foltz won from Governor Gillett also gave her a new platform from which to renew her argument that the state should provide a defense for the individuals it accuses.96 She continued to insist upon the importance of individual advocacy, that the public defender be a “capable jury lawyer, the equal of the public prosecutor in resources and respect,” and available to all.97 As the idea was debated, she resisted an alternative proposal of an appointed counsel system to serve (only) the indigent. She acknowledged that occasionally good lawyers agreed to defend, but “[i]n practice appointees come from the loafers in court and from the young, the untried and inexperienced in the profession.”98 The state, she said, should not be in the business of furnishing victims to young lawyers.99

  Foltz lobbied for public defense from her criminal justice positions and in her campaigning for suffrage. With women’s votes, the first office of public defender was established in 1913 in Los Angeles as part of a new city charter. Around the country the idea was debated and offices, or appointed counsel, became accepted. Babcock argues, Foltz, however, remained silent on these differences and enjoyed the growth of the important movement that she had started.

  The Progressive-era public defender was, however, quite different from Foltz’s original conception of the office. Instead of equal adversaries putting on the best case for the defense, they were officers of the court protecting the factually innocent and pleading the rest guilty. At trial, they would present the evidence in a balanced and fair way—their interest not solely that of clients, but of truth and justice. Foltz’s adversarial defender had no place in the Progressive vision.100

  Like Lockwood, Foltz found no appeal in the quiet life she had earned as she advanced in age. From February 1916 to July 1918 she published The New American Woman, a monthly magazine that took up issues of politics and culture, and provided Foltz with a venue for autobiographical columns. She was mentioned for various elective offices and judgeships, including, in 1920, assistant attorney general of the United States. She considered running for the U.S. Senate in 1920 since Jeannette Rankin of Montana had been elected to the U.S. House of Representatives in 1916, Anne Martin of Nevada had run—unsuccessfully—as an independent candidate for U.S. Senate in 1918, and numerous women in nearby western states recently had won election to their state legislatures. Foltz, however, deferred to her brother Sam Shortridge, who ran successfully in 1920 for the U.S. Senate. In 1930, at the age of eighty-one, she ran for governor of California in the Republican primary, receiving eight thousand votes. She advocated various reforms, including equal pay for equal work, fewer jails, and sabbaticals for teachers.101

  In 1934, Foltz died of heart failure. She stood out among the early women lawyers not least because of her intensely restless nature. She used this energy to forge a path for women at the state bar and state law school. She demonstrated that a single mother could build a law practice, one that included trial work before all-male juries, yet she resisted settling in long enough to make her several law offices all that they might become. Like a number of women lawyers, she wrote articles about law and reform issues and took to the lecture circuit to earn money and to garner a larger reputation. Like Goodell, Foltz insisted that changes in the criminal justice system were essential. Among this first generation of women attorneys, a few deserved to be called public intellectuals. Foltz’s colleague in the East, Mary Greene, was one, and so, because of the manner in which she argued for an office of public defender, was Clara Foltz.

  7

  Not Everyone Is Bold

  Mary Hall and Catharine Waugh McCulloch in Conversation

  Petticoats instead of breeches. … Brains and mentality are [often] measured by the formation of the wearing apparel. This will not do for an enlightened and a leading state like our own. We must admit feminine lawyers if they apply for admission.

  —“The Advance of Women,” Chicago Legal News, 1879

  THE COURTROOM SUITED Foltz, Lockwood, and Goodell, but not every female, or male, lawyer sought the light and fight of trial work. The back office appealed to many attorneys, including Mary Hall, who believed that public opinion would be against a woman trying cases in court.

  Hall, the first woman attorney in Connecticut, was one of seven children born to Louisa and Gustavus Hall of Marlborough, a town less than twenty miles from the state capital of Hartford. Her birth, on August 16, 1843, occurred at the beginning of the dramatic transformation in women’s civic life. The public agitation for women’s rights at Seneca Falls in 1848, and other conventions, included demands for access to education and to the professions. Hall benefited from that agitation by receiving an education that included a rigorous seminary degree. From there, her professional aspirations led to a landmark state judicial decision holding that qualified women lawyers were entitled to equal opportunity under the laws of Connecticut.

  Mary Hall (1843-1927). (Courtesy of Richmond, Connecticut, Memorial Library.)

  Catharine Waugh McCulloch (1862-1945). (Courtesy of the Evanston, Illinois, History Center.)

  Hall’s wealthy father owned several mills on the Black Ledge River and was both able and willing to educate his daughter, a young woman who wrote and published poetry.1 After local schooling, she attended Wesleyan Academy in Wilbraham, Massachusetts, graduating in 1866. The school, like several of the earliest Methodist educational institutions, was coeducational and appealed to Hall because it had a strong mathematics and chemistry curriculum. The academy provided her with a good education and, later, a network of “notable” alumni friends who proved important allies in Hall’s bid to break into the Connecticut bar.2

  As a prized student, Hall had no difficulty staying on at Wesleyan to teach mathematics until she was lured away by Lasell Seminary for Women, some eighty miles to the east, near Boston. Eleven years into this teaching career, thirty-four years old and chair of her department, Ha
ll made the decision to study law. She kept her reasons private, but it is possible that news of Lockwood and Goodell had reached her, or even closer, reports on the two women who had started the law program at Boston University. Living near Boston, she may have met Lelia Robinson, who was about to matriculate in the Boston University law program.3

  Although the Boston University program was open to women, for financial or personal reasons Hall chose to pursue her legal education in the more traditional manner, apprenticing with a family member. In July 1877 she approached her brother Ezra, a lawyer and Connecticut state senator. He did not encourage her, but she persevered, and he made her a gift of James Kent’s Commentaries on American Law, the same treatise that started Clara Foltz on her quest to become an attorney. Believing the gift signaled that Ezra had warmed to the idea of having her as an apprentice, Hall began reading the Commentaries, intending to enter Ezra’s office in the autumn. His sudden death in November 1877 frustrated that plan.4

  The tragedy of Ezra Hall’s death might have aborted his sister’s bid to join Connecticut’s legal fraternity. As Goodell had discovered, few male attorneys were inclined to take on female apprentices who were not family members. Even Ezra had not been wholly enthusiastic. Unlike Goodell, however, Mary Hall was blessed by an acquaintance with John Hooker, a prominent Hartford lawyer. The colony of Connecticut had been founded by a forebear of Hooker’s, a man whose liberal theological and civic views had caused him to differ with the leaders of the theocratic Massachusetts colony. John Hooker inherited this progressive and questioning mind. He married Isabella Beecher, daughter of Lyman Beecher, the famous Congregational minister. She was a woman similarly ready to question established laws and mores. The Hookers were active members of the women’s rights community, lobbying for suffrage and reform of the state’s married women’s property laws. Ezra Hall’s death gave John Hooker a very personal and concrete opportunity to demonstrate his commitment to equality.