"Each life helps to make up the sum of all history . . . ." 1
J.J. Ayers, Delegate to the California Constitutional Convention of 1879
Within a year of Sail'er Inn, the women's movement swept me into fulltime teaching as the first woman on the regular faculty at Stanford Law School. Upon arriving in California, I asked some of the people involved in the case about the old constitutional section, but they knew nothing of its origins.
Many years and cases passed: Sail'er Inn went from flagship to footnote case while our nascent field of "women and the law" evolved into sex discrimination, gender bias and feminist theory. More women than ever before came as students to law school (1970: 8.6%; 1990: 42%) necessitating the appointment of additional women to law faculties (1970: 3%; 1990: 24%). These changes relieved me, I felt, from front-line action, so while maintaining loyalty to the women's movement I turned to writing and teaching based in the criminal defense practice that had been my other cause back in 1971. 3
Then, a few years ago, by chance or fate, I learned that it was a woman who had first conceived and promoted the idea of a public defender for indigents accused of crime. This was the "Portia of the Pacific," Clara Shortridge Foltz (1849-1934), who in 1878 had become the first woman lawyer in California and one of the first in the country. Over a long career, she had many causes; among these public defending was important and women's rights, central.
Drawn by this intersection of my own disparate interests with another life, I decided to write Clara Foltz's biography. But early on, I found that the biographer's chief instrument, the subject's own papers, had been lost or destroyed. One of the few surviving primary sources is a fragmentary memoir, entitled "Struggles and Triumphs of a Woman Lawyer," that appeared in a magazine Foltz published between 1916 and 1918. Reading through one of its installments, I was struck by a reference to the constitutional equal employment section I had first seen in Sail'er Inn: it was, she said, "Proposed by the writer"! 4
Initially this seemed a biographer's epiphany: the unsought answer to my long-forgotten question about how a modern women's rights section had appeared in the 1879 California Constitution. Like most biographers' epiphanies, though, this was more Delphic than revelatory. How did Clara Foltz "propose" the section? To whom? When? Why? There are no Foltz papers to supply the answers, nor has anyone else written on the subject. Setting yet another puzzle, Foltz also took credit for a section guaranteeing women access to education in all departments of the University of California, and called it a companion measure, though it appeared much earlier in the Constitution. 5
The annotations to these two sections showed their slight use in what seemed small matters. Sail'er Inn was the only modern case of any significance. Yet, as a biographer, I could not easily dismiss what Clara Foltz said: to her, the provisions were the "first streak of dawn" guiding woman into "larger fields of opportunity." I wondered whether their apparent insignificance in history might be one more instance of the failure to take women's claims seriously. 6
Reflecting, I realized that the two sections were actually the first guarantee of equal rights for women in the public arena ever to appear in any American constitution. In this sense, they were indeed the milestones that Foltz thought them: woman's "relation to the body politic" had changed from the "very hour of their adoption." In today's idiom, she might say that, with the passage of these sections, gender took its place beside class and race, the other great national divisions, in the American constitutional discourse.7
Thus, having defined an historical mission which could fortify my biographer's curiosity, I turned to the context that produced the unprecedented constitutional sections: California in the 1870s. It was a decade of crop, bank and moral failures; of unemployed workingmen, despised Asians, silver kings and railroad barons all on the edge of class and race war, fueled by an unrestrained press and flamboyantly manipulative politicians. By the end of the decade even Karl Marx was moved to say of California: "nowhere else has the upheaval most shamelessly caused by capitalist concentration taken place with such speed."8
In a situation ideal for the rise of a demagogue, Denis Kearney, an Irish drayman, formed the Workingmen's Party of California ("WPC"). Kearney joined denunciations of corporate privilege with rabid rhetoric directed against the Chinese, who had been brought to the state in large numbers to build the railroads and remained as racially despised competition for low-paying jobs. On the sandlots in front of city hall, Kearney spoke to thousands of unemployed men and marched at their head to build bonfires before the mansions of San Francisco's Nob Hill.
In September 1877, the same month that Kearney founded the WPC, Californians voted to call a constitutional convention empowered to reform their organic law. With the election of Convention delegates approaching in June, the threat posed by Kearney's Workingmen drove the Democrats and Republicans into a coalition calling itself "the Non-Partisans." Despite this novel and desperate fusion of the major parties, the Workingmen still captured one-third of the delegates statewide and all of the seats from San Francisco.
In late September 1878, the Constitutional Convention assembled in Sacramento. There it would stew and wrangle for nearly half a year, debating every issue of the day and finally producing a document said at the time to be the world's longest written constitution. After a campaign that renewed the apocalyptic themes raised in the delegate election, the new constitution was ratified by a narrow margin.
If women appear at all in the historian's usual version of the years 1877 to 1879, they are mentioned as the objects of peripheral Convention debates about enfranchising them. Yet through my lens as Clara Foltz's biographer, women surface as major actors in the constitutional drama, launching their own significant movement in California politics, bringing the Convention within ten votes of a suffrage provision in 1879, and winning the unprecedented anti-discrimination sections on employment and education. In these same two years, Clara Foltz progressed from obscure housewife to famous lady lawyer.
The convergence of her story and California's constitution-making is the subject of this article--the end of a journey I started, unsuspectingly, when I wondered so many years ago about the old clause that showed up in the new case. Let me summarize here, as a guide through the narrative, the events of Foltz's life that directly bear on the passage of the women's sections.
In 1877, the year Denis Kearney started speaking on the sandlots and the people voted to call a constitutional convention, Clara Foltz lived in San Jose with her husband and five children under the age of eleven. She had eloped at 15, spent harsh years on an Iowa farm, and then followed Jeremiah Foltz west, arriving just in time for the "terrible seventies." Even with Clara Foltz's contributions from sewing and taking in boarders, the family was hard-pressed. Driven as much by economic necessity as by ideology, Clara Foltz acted on a long-deferred dream and determined to become a lawyer.
The first obstacle was a California statute providing that only white males could join the profession. Foltz drafted the Woman Lawyer's Bill and spent days at the capital lobbying the legislature. In Sacramento, she joined with Laura DeForce Gordon, a sister-suffragist and newspaper publisher also planning to be a lawyer. After a struggle I have detailed elsewhere, the bill passed and the governor signed it in the waning hours of the session.9
Back in San Jose, Foltz read law, and in early September 1878 joined the bar--an event attended by nationwide publicity. Later that month, the Constitutional Convention opened in the Assembly chamber so familiar to the women from their lobbying efforts. The same legislature that had passed the Woman Lawyer's Bill and the Convention-Enabling Act had also accepted a gift from Serranus Clinton Hastings to establish a law school as part of the University of California. Clara Foltz thought that the state's first woman lawyer should have formal legal training at the state's first law school. With Laura Gordon (soon to become California's second woman lawyer), she registered and attended a few lectures before receiving an official rejection.
After trying unsuccessfully to negotiate their admission, Foltz and Gordon, representing themselves, turned to the courts. The suit pitted two women without wealth, social connections, education or political power against the pillars of the San Francisco Bar who made up the Hastings Board of Directors and served as its counsel. Following every move in the case was an aggressive and alert press which sided with the underdogs.
Foltz filed her suit on February 10. It was set for hearing five days later, but at the appointed hour, as reported by one paper, "an aged masculine attorney" asked for a continuance. February 15 was a Friday. On the following Monday, the Constitutional Convention adopted, without amendment or debate, Section 18 of Article 20:
In ruling for the women in early March, the judge relied partly on the constitutional clauses, as well as on the Woman Lawyer's Bill. The Hastings Board decided to appeal the decision, and by the time the case was argued and decided in the California Supreme Court, the constitution had been ratified. Foltz v. Hoge et al., Directors of the Hastings College of the Law, was the first case decided under the access-to-employment section. As plaintiff's lawyer, Clara Foltz won that case.12
The biographer's perspective thus reveals the historic anti-discrimination sections as, at least in part, a side-effect of the Hastings case. Other connections also appear from a focus on Foltz's experience. The influence of the woman suffragists on the constitutional proceedings, for instance, is apparent for the first time. "There were many splendid women in those days" wrote Clara Foltz, "the peers of the men at the convention." Male allies, idealistic and instrumental, also emerge as characters central to the passage of the constitutional sections.13
As I search for Clara Foltz, constitution-maker, I know the biases a biographer brings to history, and the dangers of exaggerating a subject's role. Foltz herself warned against putting "dimmers on fourflushers, and mak[ing] minnows talk like whales." (For her own chronicler, though, she suggested no restraints: "Let wreaths of triumph my temples twine.").14
Clara Foltz's cautionary exhortation forces her biographer to recognize that the tale is not the unadulterated triumph that she (and I) might have wished. The biographer's method--making the subject the main historical witness-- also reveals the ignoble side of her success. The political support that gave Foltz and her colleagues their chance from 1877 to 1879 drew on an anti-Chinese racism of such virulence that the women's complicity in it is impossible to ignore. No rhetoric of historical relativism can justify their failure to recognize the common humanity they shared with the Chinese immigrants. The complicated part that pervasive racism played in the relationships among the Workingmen, the women and the former Copperhead Democrats at the Convention is a major part of the story. It, too, has not been told previously.
The late 1870s in California is an under-chronicled period even though its events provide a remarkable preview of the race, class and gender politics that have since dominated the history of American constitutionalism. The Workingmen's agitation did arouse nationwide, even worldwide, interest. Yet the few contemporary accounts of its constitutional impact were tendentious, most of them bent on stifling its significance. And in the twentieth century, not many historians have responded to Carl Swisher's 1930 effort to open a dialogue on Motivation and Technique in the California Constitutional Convention. The constitution's centennial year passed quietly.15
Among the possible explanations for this inattention are the eastern and national bias of the American historical profession, the unpromising sprawl of the actual text of the 1879 Constitution, and the disregard until very recently of the politics of nineteenth-century state constitution-making. Kearney has quite naturally been judged a mere demagogue; the WPC does not fit neatly into the established categories of labor history; the open racism of the California Workingmen renders them inapt heroic precursors for later populist movements.16
The process of historical denial, which began very soon after the events of 1877 to 1879, has made the story difficult to unearth, further contributing to its neglect. In 1881, James Bryce journeyed to California especially to investigate Kearneyism and its relation to the new constitution as part of the research for his celebrated book, The American Commonwealth. He found the educated and established San Franciscans to whom he spoke both dismissive and evasive concerning their famous radicals.17
Bryce's informants said, for instance, that he could learn what really happened ("the facts in detail") only by laboriously reading three years worth of newspaper backfiles. Not surprisingly, Bryce relied instead on what he could "pick up in conversation" and on Henry George's essay, "The Kearney Agitation in California." George's essay was insightful, but as we shall see, he was a player in the events and not entirely objective. None of Bryce's sources seem to have drawn his attention to the women's constitutional sections, or to have put the Workingmen's Party in any favorable light.18
Foltz once promised to "place in conspicuous honor the names of those noble and gallant Californians who long years before suffrage for women had been won, voted to extend many privileges." She never got around to it--nor has anyone else until now documented the passage of the employment and education sections, or the near-achievement of woman suffrage. Neglect of California constitution-formation and inattention to women's history are not the only reasons. It would be hard for a general political historian to proceed from the few clues in the constitutional text and debates to the women's unprecedented victories. Yet for a biographer travelling in the opposite direction--from Foltz toward the events of her time--the story of the women's sections and their full significance emerge plainly.19
Consider, for just one example, this little newspaper item tucked away among stories unrelated to the Convention:
One of the main lessons a biographer learns is to follow the thread of chronology. In the order of events lie most of the answers to the questions that Clara Foltz's fragmentary memoir first posed for me: why, how, and to whom did she propose the women's rights clauses more than a hundred years ago? This article's contents, as summarized below, follow the temporal order of events; a more detailed chronology of the Convention itself appears at the head of Part IV.
Table of Contents
C. A Speaker for Woman Suffrage
2. The Debate Shifts from Spheres to Choice
2. The Convention Acts on the Women's Anti-Discrimination Sections
B. The Constitution Before the People
D. The Interregnum Between Constitutions: May 1879 - January 1880
Diners in a splendid hall consume a sumptuous feast while in the streets below people starve; newspaper columns first framed this allegory for the 1870s when accounts of Nob Hill dinner parties appeared next to the latest crop failures in the San Joaquin valley. But the California novelist, Frank Norris, took the comparison to its limits when he juxtaposed descriptions of a railroad baron's banquet with the last famished hours of a fictional "Mrs. Hooven," widowed and homeless because of the railroad's rapacity. Following the "Londonberry pheasants, escallops of duck, and rissolettes a la pompadour," as well as the asparagus for which the train made a special stop, the scene shifts: "Mrs. Hooven fell. Luckily she was leading Hilda by the hand and the little girl was not hurt." After "the dessert of alternate layers of biscuit glaces, ice cream, and candied chestnuts," Hilda "repeatedly tried to raise the inert eyelids with the point of her finger." Finally a glass of the finest Madeira is raised in the mansion, and the doctor bending over Mrs. Hooven pronounces her "dead . . . from exhaustion and starvation."22
J.J. Ayers, a newspaper publisher, told of experiencing a real life version of the allegory one night in the fall of 1877, when he dined with Leland Stanford, who showed him the rare and costly works of art in "the India room, the Pompeii room, etc." The tour concluded with "an immense Sevres vase that stood under a great illuminated candelabra" --a bargain Stanford boasted at $100,000. Ayers related that he had just read the vase's gold inscription De Marie Antoinette au dernier Marquis de Villette when "a great howl went up in the street nearby. To my look of inquiry, [Stanford] answered: 'Oh, that's nothing unusual. It is Kearney and his crowd, [giving us] a taste of their peculiar oratory."'23
Impressed by such coolness, Ayers nevertheless wondered whether "the mutterings that reached us" portended a bloody class war, "the legitimate offspring of the abuse of power." Well he might have thought so. The mob outside were unemployed workers, who numbered in the thousands in San Francisco. Denis Kearney was a drayman who had risen to their leadership within a few months through his inflammatory speeches on the sandlots in front of city hall. Denouncing the "shoddy aristocrats" and "bloated bondholders," Kearney demanded justice from "Judge Lynch" to which the crowd roared in refrain: "Hemp, Hemp, Hemp."24
But the outcome was not to be a new-world reign of terror with the gallows replacing the guillotine. Rather, agents of the mob in the street assembled with representatives of the mansion owners, and others (including James J. Ayers himself) in a convention which wrote a new constitution for the state. Enabling this uniquely American resolution of class struggle was a unifying surrogate for the social ills of the terrible seventies: the Other, the Chinese immigrant, the "indispensable enemy."25
As the climax of every speech, Kearney shouted not: "Off with the Capitalists," but "The Chinese Must Go." The Chinese, even more than their importers and employers, became the organizing focus for the Workingmen's Party. The tactic of blaming "the yellow peril" for all of California's ills was one both regular parties had used throughout the decade. But Kearney turned up the volume and the vituperation.26
The attacks sounded ostensibly in economics: in the effects on labor markets of the uncontrolled importation of workers accustomed to a low living standard. Some Chinese arrived under contract in a system of indentured labor, and all were denied the chance to become naturalized citizens. Thus, they looked toward returning home and lived in great privation while here. "They have no families, build no houses; live on rats . . . and even transport their bones to the celestial empire for burial," cried Denis Kearney in a passage whose denigration of the Chinese for conditions imposed on them is typical of the twisted racism that lurked just below the arguable economic case.27
Henry George, whose historic persona is one of gentle reformer, provides another example of how economics and racism combined for Californians of all stripes on the issue of Chinese immigration. In 1869, when the completion of the transcontinental railroad released ten thousand Chinese laborers into the market, George wrote of the impending takeover of all American industry by these "servile and debased workers." Their "inexhaustible supply," he said, would drive wages down and in the process replace American values with "cruelty and cowardliness" and other "unnameable vices."28
George predicted that the rich and their alien "serfs" together would "crush" the white working class. Later rhetoricians abandoned any attempted economic analysis and simply spoke in the same breath of the Chinese and "the smug highbrows, men and women, who terrorized the State with their lavish, vulgar show of wealth." These last in fact are the words of Clara Foltz, who summarized the history of the period as a background to her own story in the March 1917 installment of Struggles and Triumphs of a Woman Lawyer. Although written many years after the events, Foltz's words track the rhetoric of the 1870s; she wrote in the same language as the newspaperman J.J. Ayers, the reformer Henry George and the Workingman Denis Kearney when she recalled the "terrorizing" effects of great wealth in a context where "Chinese were everywhere fattening upon our soil, consuming our industries, while American labor went hungry."29
The rhetoric of the 1870s insisted as well on the contrast between fair California and the foul deeds done there. Like her contemporaries, Foltz found things worse because California deserved better. She infused the landscape with moral qualities--it was an "Eden of loveliness"--and extolled "the cosmopolitan character of the people . . . the incomparable variety of its climate, the marvelous products of its soil, . . . exceeding in beauty the farfamed valley of the Nile!"--all defiled by "corruption in high places, malfeasance in office, immorality everywhere."
Looking back, Clara Foltz blamed the hard times on local villains: swindlers, land grabbers, the vulgar rich and their Chinese slaves. She omitted the nationwide aspects of the depression, which had started in the East in 1873 and moved west by mid-decade bringing bank failures and unemployed workers in its wake. Neglected as well in her later explanations were the ruinous gambling in silver mining stocks and natural causes like drought and crop failure. But sketchy as her causal theories were, her life experience of the hard times was thoroughly frightening.30
B. The 1870s in Clara Foltz's Experience
When Clara Foltz described the times as "fearful," she was twenty-eight years old and no novice to hardship. Since her marriage thirteen years earlier she had borne five children and helped her unreliable husband support them, mostly through demanding physical labor on a farm. The last relatively carefree days she had known were as a young girl in Mt. Pleasant, Iowa, where the Shortridges had settled from 1860 to 1863.
Elias Shortridge was a charismatic preacher of the Campbellite (Disciples of Christ) sect. For this brief period, he had stopped travelling circuit and ministered to an established church. He sent his only daughter to Howe's Academy, a progressive school whose founder believed in coeducation (with the same rigorous curriculum for both sexes), in women's rights, and in the abolition of slavery. "Carrie" Shortridge thrived in this setting, and her teachers remembered her many years later as a "bright, ambitious, hardtoiling" girl. She loved learning partly because it afforded her first chance to excel. In later years, she would often tell how she had mastered the first two books of Latin by the age of twelve.31
Elias Shortridge lost the Mt. Pleasant post because of his doctrinal unorthodoxy. The demotion meant the family's departure from the area; Elias returned to the circuit, and Clara became, at fourteen, a teacher in Keithsburg, Illinois, and the next year a wife and mother.32
She taught for only one term before she eloped with Jeremiah Foltz, a handsome Union soldier. They settled on an Iowa farm where she bore her first three children and helped to plant and plow, developing strongly muscled hands that later no silk fringe or lace cuff could quite conceal. In the early 1870s Jeremiah Foltz left for Oregon and his wife soon followed, crossing the Rockies in the winter with the three children and a baby of nine weeks. She found her husband working at starvation wages, and immediately she began taking in sewing and boarders so the family could live. Several years later, they moved to San Jose, California, where Jeremiah found work as a sales clerk, and Clara bore a fifth child. But the fresh start did not take; Jeremiah returned frequently to Oregon and a certain Katie, destined to become his second wife.33
Realizing that she must soon support herself and her five children alone, Clara Foltz reached back to Mt. Pleasant times, when her dreams had been of "oratory, fame, political recognition." In those days, her father had often said that only her sex prevented her from becoming "a great lawyer." To which her mother rejoined: "Elias, you should not tell that girl that . . . for [someday] she will take it into her head to study law, and if she does, nobody on earth can stop her." Driven now by sharpest necessity, Clara Foltz took it into her head to read law and attempt to join the bar. At the same time she resolved to try public lecturing for money.34
Even to the desperately courageous, the obstacles looked insuperable. "[W]ithout education or learning, burdened with the cares of a large family, and against the prejudice of sex," Foltz attempted "to step from cradleside into the ranks of one of the profoundest professions," so a contemporary described the difficulties she faced. Yet Clara Shortridge Foltz brought great resources to the task.35
Physically she was strong, energetic and good-looking. Tall, and still graceful after five full-term pregnancies, she had beautiful skin and hair. Mentally, she was exceptionally quick and free from neurotic blocks to the use of what she knew. She also had immense charm and capacity for friendship and fun--all driven by ebullient optimism that, even when unjustified, was still overpowering.
The Shortridge family was another important asset as she stepped into the public sphere. Although her parents disapproved her precipitate marriage, they were never estranged from her. In fact, Elias and Talitha, along with Clara's four brothers, moved first from the Midwest, and then from Oregon to San Jose in tandem with the Foltzes.
The Shortridges vaunted the "mental and physical vigor" of the lawyers, judges and preachers from whom they descended, and drew upon a connection with Daniel Boone to confirm their "heroic stock." They believed, moreover, that they inherited a special oratorical genius--which must have comforted Clara Foltz when she first stepped forth on a public platform. She had seen her father preach many times and had observed the power of his oratory in numbers baptized on the spot. Elias Shortridge had also been an exceptional political speaker, twice stumping Illinois and Indiana for Abraham Lincoln. He raised his children on the Biblical and Shakespearean diet that fed his oratory, and passed on to his daughter his own passion for reading.36
In addition to her own extraordinary person and family, Clara Foltz brought to public life the consciousness of a great cause. Woman suffrage provided the text for her lectures and the framework for her experience. Spiritually, Foltz found inspiration in the sense of acting from motives grander than personal necessity. Practically, her suffrage friends helped support her children and fill her lecture halls. Later they sent her cases; always they gave purpose to her life.
C. A Speaker for Woman Suffrage
Foltz came early to the movement. As a girl, she heard Lucy Stone speak on woman suffrage; in school, she learned that women's oppression and negro slavery were political and moral evils. By the time she moved west, she was a "ready advocate for suffrage" and in both Oregon and California soon made connections with others of like mind.37
In San Jose some of the leading citizens were woman suffragists, including the editor of the main newspaper and Sarah Knox (later Knox-Goodrich), a wealthy widow who admired Foltz and aided her early career. Among the disinterested majority, there was at least good will and tolerance--something not always true in San Francisco, where the press particularly was hostile to suffrage. In many other towns, notably Sacramento, it would take the ferment of the Constitutional Convention to start the women's movement.38
Foltz opened her public lecturing career in San Jose where she could find an audience of family, friends and suffrage supporters. For her maiden lecture, she spoke on "The Political Emancipation of Women." Over the next two years in dozens of California and Oregon towns, Foltz honed her reasoning and heightened her rhetoric. The words she wrote, emended, polished and memorized, appeared in lectures she delivered under many titles. She used the same words in petitions and pamphlets, arguing and lobbying not only for suffrage, but also for the right to practice law. The carry-over was easy because the arguments on the other side were always essentially the same.39
At the outset, she faced the issue of constituency. Ideally, she spoke for all women when, echoing images of slavery, she cried: "We are weary of sitting in the cellar of the temple of liberty and listening to the . . . feet of our brothers overhead." Yet she faced the response that most women did not see themselves as shackled in some basement, but rather as the inhabitants of a higher sphere. To these Foltz responded in words "hard as rocks." Those who cared more for privileges than rights were labelled "daughters of fashion and frivolity," outside the body of "earnest, thinking men and women" who could hear the appeal of the suffrage movement.40
Beyond the thinking minority, she pleaded for "the toiling millions of working women who cannot and dare not speak for themselves." "It is said," she continued, "that men support women and women's sphere is the home. We claim that nine-tenths of women support themselves." Speaking from within a shared assumption that armed with the ballot women would change their lives, Foltz specified no social platform, but referred to women as a "purifying power" and the "great reformatory force of every age," and left her audience to fill in the blanks. For self-supporting women, a better life would mean employment in a wider field and in better paying occupations, the same wage as a man for the same work, earning enough to live in a clean place and send the children to school. For all, Foltz proclaimed the good day coming when "men and women meet upon the level and part upon the square."41
D. Denis Kearney and the Suffrage
Clara Foltz was not
the only California orator urging the efficacy of the ballot in 1877. Denis
Kearney's Manifesto was built on this peroration:
Denis Kearney first delivered his Manifesto in September 1877, on the sandlots in front of city hall, a peculiarly appropriate space for agitation because public construction on a grand design was mired in bribe-taking and boodling. The previous summer had seen the rough plaza become a public forum, often with speakers from the radical socialist Workingmen's Party of the United States ("WPUS"). But in late July the great national labor strike led by the WPUS degenerated in San Francisco into anti-Chinese rioting. When the WPUS urged its followers to "direct their struggles against the ruling class, not against their victims, the Chinese," its days were numbered as a viable organization on the sandlots.43
By the time of the Workingmen's visitation to Nob Hill in October 1877 (when J.J. Ayers wrote that he visited Leland Stanford), Kearney had ousted the socialists from the sandlots, and ensconced instead his own Workingmen's Party of California ("WPC"), also known as Kearneyites and Sandlotters. The WPC took some of the pro-labor rhetoric of its predecessor and added calls for destroying land monopoly, taxing the rich out of existence and using the money to provide decently for the poor and unfortunate. But most of all, the WPC proposed to "rid the country of cheap Chinese labor," as its first official platform put it in phrasing more decorous than Kearney used on the sandlots.44
Very soon, Kearney's message reached beyond the unemployed on the sandlots. By early 1878 the WPC had expanded its platform into ward clubs and lecture halls where "Judge Lynch" was seldom mentioned. Rather, the incitement was to elect "their friends" who would, in the increasingly broad-based formulations, control corporations, regulate railroads, guarantee the eight- hour day, provide free public education, as well as drive the Chinese from California. White-collar and skilled blue-collar workingmen, lawyers, teachers and doctors joined the party. At an organizational meeting for the WPC in San Jose, a former Campbellite minister, Elias Shortridge, was on the platform with Denis Kearney.45
Clara Foltz, in her description of the period, remembered Denis Kearney as the "[s]elf-appointed, intrepid representative of the weak as against the mighty," who within months had brought about "a new order" and prevented "a result most awful to contemplate [that] would certainly have transpired." Writing in 1917, Foltz surely knew history's verdict on Denis Kearney: guilty of demagoguery; guilty of brutish racism; guilty of failure. Yet she made no effort to balance her portrait, which may show how certainly she experienced the events at the time in the way she later portrayed them.46
Denis Kearney and Clara Foltz began public speaking in the same year, driven by fearful times, drawn to the same solution--the ballot. Foltz had no rhetorical or analytical problem in urging the vote as the very source of power and respect for women. Kearney, on the other hand, faced the dilemma of disproportion between means and ends. He worked the crowd into a revolutionary frenzy and then told them "to cast their ballots aright"--obviously an inadequate response to a system half as corrupt as the one he excoriated. Votes were, as everyone knew, bought and sold, both before elections, and after. But in 1877, social unrest was so widespread that a revolution through the ballot box seemed possible. In September 1877, as Kearney began his sandlot agitation, the people by referendum voted to call a constitutional convention. There was to be a momentous statewide election in which Workingmen could use their votes to reconstitute California.47
E. Citizens for a New Constitution
The Workingmen's Party did not originate the call for a new constitution, yet many of the same impulses supported the referendum vote and the rise of the WPC. First was resentment of the rich, who in a decade of hard times flaunted their wealth in what Foltz called "vulgar, lavish shows." Moreover, as Bryce observed, California millionaires "excited irritation" because (even more than elsewhere) their wealth did not seem to flow from unusual talents, nor did they tend to give thanks for their good luck by bestowing largesse on "useful public objects." Feeding the prevalent unrest was a peculiarly Californian sense of loss--of grand objects grown dim--that gave the move for a new constitution the tone of a moral crusade. Reform was not enough; the people wanted rebirth.
Lord Bryce summarized the classic American arguments for a constitutional convention as the voice of direct democracy: Delegates "go straight from the election to their work, have not time to forget or to devise means of evading their pledges, are less liable to be 'got at' by the capitalists . . . . The rarity and importance of the occasion fixes public attention." He also wrote that "good citizens" had failed to see "the danger of framing a new Constitution at a time of such excitement." But in this, unlike his other observations, Bryce was mistaken.48
Good citizens were part of the excitement, joining in the call for a "new departure." Added to the "decent working people" (whose existence Bryce acknowledged, distinguishing them from the Kearneyites), were good citizens among the farmers some organized in the Grange, who also saw constitution- making as a means to restrain (or "cinch") capital and the railroads. Democrat good citizens, including some who had supported the Confederacy, cheered the Constitutional Convention as a potential path back to the power they had lost when California backed the Union.
Suffragists, whose case ultimately rested on women's claims to good citizenship, sensed a main chance in the Constitutional Convention. Almost a decade had passed since the fifteenth amendment guaranteed the vote to "citizens"--not "men," or "male citizens"--without regard to "race, color, or previous condition of servitude." In California, the force of women's just claims as citizens was joined to the fear that the amendment's wording might also someday enfranchise races other than blacks--as it already had a few Chinese born in America. White women's votes could be needed as an offset.49
Many forces of mixed moral and political complexions were rising in 1877-- the Workingmen, the women suffragists and other social reformers, the Grangers, the resurgent Democrats. Before they converged for more than 150 days of constitution-making, the last legislature met under the 1849 Constitution. This session passed the enabling legislation for the Convention. It also set the scene for the women's constitutional sections by enacting the Woman Lawyer's Bill, which provided that any person of good character could practice law.
Clara Foltz was in Sacramento often during the session, and there met an older suffragist, Laura Gordon; the two joined in the struggle to enable men and women to "meet upon the level and part upon the square" in the body politic and in the legal profession.
Among the lobbyists was a little band of determined women who had been there seeking suffrage for the last few sessions. Their only palpable success so far had been passage of a bill in 1874 that allowed women to serve on elected school boards. For the 1878 session Clara Foltz joined them seeking another kind of office: admission to the bar. This extension was a natural one because access to the professions was an early goal of the women's movement, and the arguments for opening the vote and the practice of law were often congruent.51
Foltz added a sense of personal urgency to the women's pleas for recognition. The California Code provided that only white males could be lawyers and because of the intervening Constitutional Convention, the legislature would not meet again until 1880. Unless there was action at this session, she would have to give her children to others to raise; they could not continue to live as a family on her lecture fees and the charity of friends and relatives.
She drafted a Woman Lawyer's Bill and persuaded her local Senator to introduce it. But Foltz feared leaving its passage to his kindly intentions. Travelling to Sacramento more than once "in the caboose of a cattle train, without a dollar in her pocket," she watched over the bill "with maternal solicitude." In later years, Foltz sounded incredulous herself when she spoke of the "toil, hardship, poverty, and even hunger" involved in the struggle.52
She had behind her the support of the suffragists. Among them was Laura DeForce Gordon, who Foltz referred to alternatively as "the noblest Roman of them all" and "my beloved friend." In 1871, Gordon had been the first woman to appear in Sacramento on behalf of suffrage, and at this session she was also a newspaper correspondent, with a desk assigned in the Assembly chamber. [53]
Laura Gordon provided Clara Foltz a model in the art of lobbying, and later of political oratory. But her greatest gift was near perfect understanding, enhanced by the extraordinary events that joined their lives. There were few women anywhere like these two, while they were very like each other. Without fully appreciating their good fortune in meeting, they became friends immediately.
Both wanted to be lawyers. In the mid-seventies, Gordon had been the publisher of a newspaper and had enjoyed local celebrity as the first "female newspaper editor in the world." But she had found the business a constant "hassle for money," and believed that the legal profession would offer a better living, a freer schedule and a more impressive platform from which to urge women's rights, and perhaps even to run for elective office.54
Both were talented orators. Gordon initiated her lecturing career on the Spiritualist circuit in the East, especially Pennsylvania which was her home. But since moving west in 1865, she had taken woman suffrage as her life's work. In 1868, she delivered the first public lecture in California on the subject.55
Both had recently failed marriages and were seeking to support themselves and their dependents. Gordon had no children, but was devoted to her parents whom she maintained at her farm in Lodi, where her sister and other family members also lived. She had divorced her husband, after twenty years of marriage, on the grounds of adultery, "realizing what anguish the heart can endure from the loss of those nearer and dearer than life."56
Partly because they
were unprotected women, heads of their households, Clara Foltz and Laura
Gordon were ambiguously connected to that ideal world of nurturance and
tender feeling that nineteenth-century women were supposed to inhabit.
Thus, although both tried to display the virtues associated with hearth
and home, their male audience often treated them as pretenders to the domestic
sphere:
"Bold," whose meanings shade from brave through brazen, is the operative, final, most telling indictment. By any definition, it was bold to propose that women be lawyers and thus necessarily associate with men in an unprecedented way. Clara Foltz always tried to smooth the boldness over by arguing that knowledge of the law would enable women to be "the helpmeets of men," to meet on "a plane of common sympathy and thought," and would in fact make them "better wives and better mothers."58
In the 1870s, especially among women, she had few converts. Most hastened to dissociate themselves from a charge of boldness. "Everyone in those days seemed to 'hate a woman with a career,"' Foltz wrote, adding wistfully: "I wanted to be loved by women--and men too for that matter. At least, I craved their approval."59
The social disapproval Foltz and Gordon experienced was partly founded in class prejudice. Generally, it was still unusual to find suffragists among the cultured and well-educated women, or the wives of professional men, and certainly there were none among the rich ladies of fashion, the "smug highbrows" against whom Clara Foltz railed. Nor did these two women, in particular, have the connections to counter snobbery. Neither had married well. Gordon's husband practiced medicine but without much success, and in his later years there was a constant rumor that he was a quack. She was, moreover, from a working class family, one of nine children, and had attended only a few years of public school.60
Foltz wrote that her
career caused her to be ostracized despite the fact that her "father's
family had always moved with the best people." But this was back in Indiana,
where Shortridges are prominent to this day. In 1878, the clan was not
established in California. Her desire for social standing partially accounts
for one of Clara Foltz's most characteristic statements:
Laura Gordon more closely united mien and method. She was earnest and relentless, and spoke in a mode others found "Websterian." The comparison may have meant only that Gordon was impressive, rather than unusually plain and powerful in style. But no one described Foltz in similar terms. Her manner was decidedly not that of any man. Rather, reviewers stressed her feminine public persona, her warmth, her profound womanliness. One even declared, "there is nothing of the strong-minded woman about her." Foltz cloaked her force and ambition beneath graceful and disarming gestures.62
One revealing instance--in 1877, she tried to join a legal club for aspiring practitioners. Several members objected and she sat in the back, humiliated, while the men debated women's capacities and limitations. At the end she felt "actually afraid of those law students who had contemptuously ignored me." She contemplated slipping away, but instead stepped forward and congratulated an elected leader of the club, presenting him with a bouquet of roses she wore at her waist. Others then gathered around, and thus she conquered "their prejudices by pleasing compliment and tact."63
At the 1878 legislature, Foltz applied the full force of her personal magnetism to the countless individual appeals that lobbying involved. "I never knew," wrote one legislator, "how . . . a woman could plead for the privilege of making the battle of life . . . [so] gently and eloquently." The gentle Clara gave no inkling at the time of how outrageous she found the need for such persuasion: "Think of it! I had to beg . . . to be allowed to earn a living-- had to beg it as a privilege."64
In Lawyers, one
of her most popular later lectures, Foltz ridiculed her opponents:
B. Passage of the Woman Lawyer's Bill
Given that Foltz and Gordon were in no sense representative of many women burning to be lawyers, why was there enormous opposition to the bill? Why in this legislature especially, so hard pressed by the times and the approach of the Constitutional Convention, were precious hours spent debating whether these two odd women should have a chance to practice law?
Today's reader might think that the opposition sprang from the wording of Foltz's bill, which simply replaced "white male" with "person" in the existing legislation, thus allowing Blacks, Mexicans and even Chinese to join the bar if they met the other qualifications of character, citizenship and residency. But in 1878 this was apparently not a realistic threat to the status quo. The debates referred only to the "Woman Lawyer's Bill."66
It was not a multi-racial bar that the legislators feared, but women's full participation in public life for which bar admission was a potent symbol and toward which it seemed a certain first step. Thus, in the foreground of the debate over the Woman Lawyer's Bill were the arguments against women voting, sometimes invoked regardless of fit. For instance, a powerful anti-suffrage image was the unwilling woman voter: most good women did not want to vote, but as exemplary citizens would feel compelled to do so.
Obviously, the unwilling woman voter has no counterpart reluctant woman lawyer. Yet Foltz reported that legislators made much "of the great wrong to the women of California who did not desire to enter upon the law as a profession to thrust such a duty upon them." How many times did Clara Foltz explain to Captain M. or Colonel S. that his wife or daughter, so handsomely provided for, would not have to be a lawyer?67
On the other side, the best arguments for suffrage--those based on simple justice, such as no taxation without representation, and the entitlement of citizens--did not resonate so clearly as reasons for admitting women to law practice. Similarly unavailable to Foltz and Gordon was the promise that allowing women to be lawyers would gain added votes for farsighted legislators.
But in larger terms, the two debates covered the same terrain and converged on the question of spheres. Here is where the "cooing doves" that so aggravated Folts played their part among the "preconceived ideas of the male superiority . . . beginning with the barnyard and from there to the forests and the wild beasts therein, all, all." Though Foltz wrote these lines thirty-two years after she won the right to practice law, they still echo her irritation at the rote, stylized quality of anti-women's rights polemic.68
As applied to the practicing
of law, the discourse of spheres sounded like this in the California legislature
of 1878:
Anti: These are peculiar, unnatural women. We should not legislate for or encourage their types. True women, even if unmarried, would not even want to leave the higher and finer sphere they by nature inhabit.
Pro: God alone designates women's sphere and God surely intended that they be more than "hewers of wood and drawers of water." (This Biblical reference to slaves, often cropped up to demonstrate that women's sphere included hard labor.) In a free country women should be able to do whatever they have the God-given talents to do.
Anti: The lawyer must be bold and aggressive and often deals with sordid human dramas and life's basest motivations. Women would be un-sexed by practicing law.
Pro: Women are the experts on life and death, naturally equipped to deal with the harshest realities. The fact is that some women will be better suited than some men to the profession. It is unmanly to oppose women because of fear of competition.
Today the Woman Lawyer's Bill stands as a landmark in the history of women's professional progress. As one of the earliest statutes of its kind, and probably the first to emerge entirely from the legislative process (rather than being a response to a court refusal of bar admission), the California bill arguably involved a liberal recognition of women's capabilities.70
On the other hand, most of the impetus for its passage was a simple human response to the supplications of two earnest women and their allies: an uncomplicated act of courtesy, rising perhaps to "gallantry" as one newspaper put the motive for Senate passage. Yet within a year this personal triumph would gain constitutional dimensions. An unbroken chain of events stretched from the passage of the Woman Lawyer's Bill to the enactment of the sections guaranteeing women access to education and employment. The strongest of its links is the friendship forged between Clara Foltz and Laura Gordon at the 1878 legislature.
From San Jose, Clara
Foltz wrote in early May to Laura Gordon in phrases bristling with ungrammatical
optimism and energy:
Before there had been any real response to the fund-raising pleas, Laura Gordon had a different idea for promoting the cause. With about ten days left before the election, she decided to run for Convention delegate from San Joaquin County. No woman could vote for her, but no law explicitly prevented Gordon from standing for or serving in the office.75
She telegraphed for help to Clara Foltz, who took the next morning's train for "the scene of the conflict." Alacrity aside, Foltz had not envisioned actual campaigning when she talked of "stump speaking." She had seen her father canvass for Abraham Lincoln and knew the peculiar intensity of political crowds when votes were at stake. It both attracted and unnerved her.76
Her fears quickly faded, however, and after the election (but before the returns were in), she wrote again to her Oregon friends. Reporting triumphantly that Gordon and she had met "large," "delighted" and "respectful" audiences throughout the county, she concluded that "great good and no harm has been done in the agitation of woman's inherent right to assist in framing the organic law . . . . [W]e will not despair, even should we be defeated." With her perpetual optimism fed by large attentive audiences, Foltz treated the certain defeat hypothetically. But victory had never been an incentive; they set out, as Gordon said from the first, to "scare the politicians and have some fun." And Clara Foltz added "we have admirably succeeded in both."77
In a somewhat anxious tone, Foltz maintained throughout the letter that they had done no harm to the cause and repeatedly intimated that the campaign had been dignified. Yet in the public eye it was not just dignity, but virtue that was at stake when women stepped into the "filthy pool" of politics. Opponents argued that active participation in public life--such as campaigning for their own election or even voting--would corrupt and unsex women.
Over time, Foltz had developed a number of stock answers to the "filthy pool" argument in her lectures. She often contended that women would purify politics, rather than politics defiling women, and sometimes she added with a hint of mockery that if men were unfit for women's companionship in the political domain, they were unfit elsewhere also. But even the best-crafted arguments could not reach the visceral objections to women campaigning. These were based in the special relation between speaker and audience--in the politician's supplications and manipulations. Many people found this kind of speech simply improper for women; others feared that women would be so naturally good at it that they would corrupt the process.78
But Gordon's late entry into this special election did not allow time for such animosity to gather. Instead of fostering objections, the irregularity of the whole process only added to its novelty and interest, which held through the brief campaign. Audiences already primed by weeks of political oratory were ready for variety, and often crowds would walk over to hear the ladies after, and even before, the others were done.
Clara Foltz described just such a scene at that highest hour of any campaign--election eve. The women had filled Mozart Hall in Stockton "to its utmost," and "notwithstanding the bonfires and immense excitement" at the other rallies, "the crowd adjourned and came over to hear the constitutional issues discussed from a woman's standpoint." Foltz related that the "politicians and office seekers" followed their audiences to attend the women (and incidentally "the sweet music discoursed by Professor Hausman's Silver Cornet Band").79
Among the candidates campaigning that night in Stockton was David Terry, personal friend to Laura Gordon. He was elected on the Non-Partisan ticket and became, according to Foltz, the "gallant knight . . . who championed [the women's constitutional sections] in his incomparable manner." As matters fell out, next best to pleading their own cause in the Convention was having David Terry there as friend and gallant knight.80
The Non-Partisan Party was the oxymoronic name of the establishment coalition organized to defeat the Workingmen. Its stereotypical candidate was a conservative corporate lawyer. Yet the nature of California in the 1870s was such that many Non-Partisan delegates would be unconventional men. Among these was David Terry, an able lawyer and a Southerner of violent temperament whose life was a series of outlandish events, ending with his shooting by a bodyguard to a United States Supreme Court Justice.81
As a young man, Terry served the Texas Rangers in the Mexican War, read law in his uncle's office and joined the Gold Rush to California, arriving in 1849. Soon, he abandoned mining for practicing law in Stockton, and in 1855 at the age of thirty-three was elected to the California Supreme Court. Terry became the Chief Justice two years later; while in that office, he stabbed a member of the San Francisco Vigilance Committee, which imprisoned Terry until the victim recovered. In 1859, he resigned from the court to duel with David Broderick, the United States Senator from California, and killed him. It was widely believed that they clashed over Broderick's opposition to slavery.
In the aftermath of the duel, Terry left California for ten years, first briefly joining the silver rush to Nevada, then fighting for the Confederacy, and finally ranching in Mexico. He returned in the early 1870s to Stockton and by the time of the Convention had overcome his disabling political past sufficiently to be elected as a Non-Partisan delegate.
Terry was a "Chivalry" or Copperhead Democrat--a supporter of the Confederacy during the Civil War. Most of the other "Chivs" ran on the ticket of the Workingmen's Party, which generally drew mostly from the Democrats. Terry could have been a Workingman in his attitudes toward the Chinese, unequal taxation and greedy corporations. At the Convention he often joined and eventually came to lead the Workingmen delegates; for a striking example, Terry pushed through a section forbidding corporations to employ Chinese, vouching for its constitutionality. What he accomplished for the women, he also did through his natural bonds with the Workingmen's Party.82
Although Terry was far from the only unorthodox Non-Partisan, its representative type was the conservative San Francisco lawyer, Samuel Wilson. Counselor to banks and railroads, self-made and immensely rich, a bar association founder and Director of Hastings College of the Law, Wilson held it his duty at the Convention to prevent any real revision. Dryly correct, tenacious and thorough, he could exhaust the most ardent reformer.83
In his opposition to constitution-making, as in everything, Wilson was consistent. Two years earlier he had engineered the defeat of a proposed convention; at the end of this one, he refused to sign the document and campaigned against its ratification. Many people believed Wilson's railroad clients paid well for his consistency and purchased the resistance of other Non-Partisans, particularly lawyers, as well. Noting sarcastically that he would much "prefer to deal with principals rather than agents," one Workingman nominated railroad baron Leland Stanford for a vacant place at the Convention.84
That men as different as Samuel Wilson and David Terry campaigned under the same banner is one measure of the fear the Workingmen's Party struck in the political establishment of California in 1878. While some candidates ran as Democrats, Republicans or Independents, most of the regulars from both parties, and many of the renegades as well, joined the Non-Partisans with their single- issue platform: Kearneyism must go.
Just as their opponents came together under election pressure, the Workingmen's Party split into pro- and anti-Kearney factions. Frank Roney, a genuine Irish revolutionary, led the opposition. Though he was not a sandlot orator, Roney was a compelling organizer and as a skilled iron moulder had wage-labor credentials that Kearney, an employing drayman, or teamster, lacked. Ideologically much closer to the socialist Workingmen's Party of the United States, Roney had nevertheless joined the Kearneyites after they drove the WPUS from the sandlots in 1877.85
The inevitable competition between the two forceful men erupted over the election of delegates to the Convention. Roney wanted to serve and thought that other experienced leaders should be candidates as well. Kearney declared that no WPC officers should run, thus barring both himself and Roney. The reasons for Kearney's decree have never been clear. Explanations range from his own feelings of inadequacy to concern that the delegates be accountable to the mass of workingmen. The results were, however, all negative for the party: an alternative slate of Workingmen ran in a critical electoral unit; there was general confusion and lost solidarity; and the schism contributed to the historical judgment that the Kearneyites were unstable political fumblers.86
According to the standard story, the Kearney delegates were "utterly ignorant and inexperienced." Henry George wrote the words; James Bryce echoed them in his chapter on "Kearneyism in California"; subsequent generations have largely and uncritically accepted the characterization. The only contemporary challenge came from the eponymous leader himself. After The American Commonwealth was published in 1888, Kearney wrote to Bryce protesting: "Our delegates were equally divided among inteligent [sic] farmers, mechanics, merchants and lawyers." He added that George was prejudiced because he had unsuccessfully sought the Workingmen's nomination for delegate.87
But Henry George was hardly alone in reviling the Workingmen delegates. The mildest charge was that they paid no taxes (true of those who owned no property). More typically abusive was a cartoon in a popular magazine showing the Workingmen as grotesque illiterates. They were pictured also as violent hoodlums (a word coined in San Francisco at this time); comparisons were drawn to the Paris Communard of 1871. The historian Hubert Howe Bancroft called the Workingmen "more fit to clean legislative halls than to sit in them." "Vicious, idle foreign rogues" was a casual appellation from the weekly Argonaut.88
Twenty-three of the fifty-one Workingmen delegates were indeed immigrants from other countries (compared to just five of the remaining 152 delegates). But the charge of being foreign had less to do with birthplace than with harboring un-American ideas, and in this respect, it was misplaced. The foreign-born were often the most earnest in their individualistic Americanism. For instance, Alphonse Vacquerel returning to his native Paris in 1857 found the government so "averse to his Americanized feelings" that he quickly re- immigrated to California "where he could express himself freely." At the Convention, he did exactly that--most cogently on the issue of suffrage for women.89
Among the Workingmen who fought for woman suffrage, there were none who actually fit the cruel stereotypes current in 1878. Even at the time, a few critics acknowledged some talent in the WPC ranks, but usually they focused on the eight lawyers, or on the delegates from outside San Francisco. Yet it was not one of these, but a clerk in the city's delegation without former political experience, whose "skillful diplomacy" the women suffragists would finally credit for the passage of the employment clause.90
Charles Ringgold liked to say he came from Maryland "colonial stock." Before joining the Workingmen's Party "at its inception," he had been a Chivalry Democrat. In education and attainments he was no match for the Non-Partisan corporate lawyers, yet as we shall see, he bested them at a point critical for the women's cause, and he was generally an active and constructive Convention member.91
Although their platform was unpolished and its impressiveness undermined by anti-Chinese rant, the actual proposals on which the WPC candidates ran included: the regulation of banks and railroads; the equalization of taxes; the eight-hour day; compulsory free public education; the direct election of United States Senators; equal pay to women for work of equal value. While reformist these were hardly revolutionary and certainly not communistic propositions; Henry George huffed that there was no real questioning of property rights. In the delegate election, as in Kearney's original Manifesto, the Workingmen's program was entirely traditional: Vote our honest candidates into office and all else will follow.92
But their concrete message was often lost as people heard only the threat of a "new order of things," and saw, in Foltz's description, the "forbidding presence of thousands of men" marching in the streets and meeting on the sandlots. Democrats and Republicans alike were scared, their anxiety fanned by press warnings of avenues full of blood--probably theirs--if the Workingmen prevailed. Only primal fear could have united extreme partisan politicians as they were united against the Workingmen.
On the other side, the Workingmen also apprehended annihilation--political rather than personal--from defeat. They feared that their opponents in the Convention would impose a substantial property qualification on suffrage, stripping the party of its only legal weapon. Thus, amid millennial rhetoric on both sides, the Workingmen and the Non-Partisans met in the Convention delegate election on the third Wednesday in June 1878.93
The first returns were from San Francisco where the Kearneyites took all thirty places. With his usual blend of legalism and terrorism, Kearney proclaimed that the Workingmen would cinch capital, frame a constitution "and shove it down their throats." But in the rest of the state the Workingmen gained only twenty-one more delegates. The Non-Partisans elected seventy-seven, the Republicans eleven, the Democrats ten and the Independents three. When the regular party members voted with their Non-Partisan colleagues, the Workingmen would stand no chance at the Convention.94
The clincher was the thirty-two at-large delegates elected from the state's four congressional districts. Not one Workingman was elected from these more broadly drawn units, where election required more than local reputation. Defeat of the Workingmen had presumably been the legislature's purpose in adding the at-large delegates to an already unwieldy body of 120 locally elected members.95
Yet even in these at-large elections, the Workingmen lost by only a fraction of the votes cast. In the at-large district embracing San Francisco, the Workingmen's schism may have thrown this victory to the Non-Partisans; it was here that Roney's slate ran. Seven of the eight Non-Partisans elected at large from San Francisco were conservative lawyers, including Samuel Wilson. Altogether there were 57 lawyers among the 152 delegates. Farmers (39) were next most represented, followed by merchants (8), carpenters (5), physicians (5), miners (4), journalists (3), plumbers (2) and clerks (2).96
It was thus a convention of lawyers with two-thirds of the delegates calling themselves Non-Partisans and more than half the state's population--women, Chinese, Spanish, Mexicans and Indians--totally absent. Nevertheless, the Convention delegates were more representative than most legislative bodies of the time. Spurred by the Workingmen's rise and reaction, the white male California citizens chose a group more diverse politically and personally than any previously elected assembly. Even among the Non-Partisans were many delegates militantly set on change. An astute observer said of the majority of Non-Partisans: "If you would place these instinctive radicals alone on a mountain to produce a constitution they would astound the sandlots."97
James Joseph Ayers, last seen musing about abuses of power as the Workingmen roared outside Leland Stanford's window, was one such instinctive radical among the Non-Partisans. A newspaperman who had followed the common route from printer to publisher, Ayers was the editor of the Los Angeles Express, a journal he described as having "weight and character and of almost metropolitan influence." In its pages, Ayers attacked the railroads so harshly that they withdrew advertising. At the same time, he virulently inveighed against Chinese immigration.98
Running at large, Ayers narrowly defeated a Workingman candidate from whom he likely differed little in views and in lack of elective experience. Yet as a Non-Partisan, Ayers was able to obtain a hearing unavailable to most Workingmen; he also showed a natural bent for oratory and parliamentary maneuvering. Women became the beneficiaries of both talents as Ayers led the major floor fight for suffrage, and played a leading role in the adoption of the women's education and employment sections.99
E. Foltz and Gordon in the Post-Election Period
Woman suffrage had been a serious issue only in Gordon's canvass; thus the women could not guess from the election campaigns or the returns that they would find support from the likes of Non-Partisan Ayers or Workingman Vacquerel. But they had a few known friends among those elected and they planned to make others by extensive personal lobbying.
Clara Foltz wanted to do more: stump the state over the summer; mount a mass petition drive; call a great suffrage meeting during the opening days of the Convention. Her goal was to counter--by the numbers who turned out and signed up--the common argument that only a few strong-minded women actually wanted suffrage. But these plans trickled out and, except for an occasional local speech, Foltz dropped from public view for two months. She was concentrating on bar preparation, but a quarrel with Gordon undoubtedly contributed to the break in the action.
Laura Gordon yearned to attend the July meeting of the National Woman Suffrage Association in the East. She and Clara Foltz sought support from their suffrage friends to go together. Finding herself unable to leave, Foltz wrote that she could raise no more funds, adding gratuitously: "I asked several of my friends who said they . . . were not acquainted with Mrs. Gordon, etc. . . . no doubt your own friends would talk the same were they asked to give me money to travel on."100
Offended, Gordon wrote at bitter length to Sarah Knox returning money contributed for the trip. From "the tenor of Mrs. F.s letter," Gordon inferred that the contributors thought they had been asked for "money for me to travel on, as tho I was going East on a regular junketing trip or merry making instead of sacrificing my own comfort, time and money." Soothingly, Knox rejoined that the eastern summer heat might have left Gordon "unable to do as much at the Constitutional Convention as you will now." Knox was not alone in focusing on the importance of the Convention. Earlier when Gordon had appealed to suffrage friends in Santa Barbara, they too had responded that the concentration must be on laying the "claims of women before the members of the constitutional convention."101
Surely these elder suffragists were right, Gordon and Foltz should save their energies for the Constitutional Convention. Yet the national suffrage meetings meant a great deal to women who often felt isolated and eccentric. Gordon gained many years' worth of sustenance from standing next to Susan B. Anthony and gazing over a huge throng of brave and resolute women at one of the first such meetings. Foltz, who never went to one, always regretted the loss of "the sweet comradeship which must exist among so many earnest women united in a common purpose."102
Although the hard feelings faded and by the time of the Constitutional Convention Foltz and Gordon were pulling together once more, this was not the last conflict they had, and not even the last over attending national suffrage meetings. They disagreed mostly on matters of personal precedence and national politics, however, and never on the ideology of women's rights.
After a relatively quiet ten weeks, Clara Foltz emerged in early September to pass a court-administered examination and become California's first woman lawyer. The date was September 4, 1878, and the publicity was nationwide. As she told an admiring reporter, Foltz had always wondered "whether my name would go down on the page of history for some personal achievement." Now she knew it would.103
She rented offices from her suffrage friend in the "Knox Block" of San Jose and ordered fancy letterhead with a comma after "Clara Shortridge Foltz," to carry the eye on to "Attorney at Law." By the end of September when the Constitutional Convention assembled, she had handled her first cases.
Near the beginning of the Convention, the suffragists met in San Jose to urge "engrafting into the new State Constitution . . . the God-given right to self government." They planned to petition and lobby the delegates who were convening in the same Assembly chamber where Foltz and Gordon had so lately won the right to practice law. The women's rights advocates knew the way to Sacramento well enough, and they planned to use it now.104
| October 30 | Laura Gordon and others appear before the Committee on Suffrage. |
| November 13 | Committee on Suffrage reports to Convention.
Recommends future legislature may remove
disabilities on account of sex
(legislative empowerment). |
| December 24 | First suffrage debate on the floor. Led by Workingmen. |
| January 9-10 | Foltz and Gordon attend classes at Hastings College of the Law. |
| January 11 | Women receive notice dated 1/10 that they are excluded on account of sex. |
| January 13-15 | Convention debates woman suffrage sitting
as Committee of the Whole.
Led by Workingmen; Steele and McFarland also prominent. Defeated. |
| February 10 | Foltz files suit against Hastings in San Francisco District Court. |
| February 13 | Renewed suffrage debates. Ayers supports re-instatement of legislative empowerment. |
| February 14 | Hastings successfully moves for a continuance. Legislative empowerment defeated 55 Ayes; 67 Noes. |
| February 15 | Saturday newspapers report continuance of Hastings case. |
| February 17 | Ringgold introduces employment clause. |
| February 18 | Sacramento women organize in favor of suffrage. |
| February 20 | Employment clause passes without debate by voice vote. |
| February 24 | Hastings case argued. |
| February 25 | Extensive newspaper accounts of Hastings arguments. |
| February 26 | Education clause passes without debate. 103 Ayes; 20 Noes. |
| February 27 | Last-ditch suffrage efforts on Convention floor. Debate cut off by a motion for the previous question. |
| March 5 | Women win Hastings case. Opinion cites Woman Lawyer's Bill and employment section of newly drafted constitution. |
On September 28, 1878, the delegates assembled in Sacramento. Among them were good friends, total strangers and more than a few sworn enemies; there were recent immigrants and Argonauts (forty-niners) and two men born in California. They met with a sense of mission in a time of intense societal stress. One- third were members of the Workingmen's Party; many had never held public office of any sort. Also present were most of the leading lawyers of the state. Joseph Hoge, a conservative San Francisco attorney and partner to Samuel Wilson, was elected President of the Convention.105
The Convention was barely under way before the first resolutions and petitions for woman suffrage came to the floor. Their number and diverse sponsors presaged a real contest and hinted at the complexity of motivation on this issue. First on the floor with a suffrage resolution was a conservative Non-Partisan lawyer, Thomas Bard McFarland. Initially he proposed that only propertied women should vote, but five months later he led the last Convention effort to enfranchise all women. Another Non-Partisan lawyer (and former judge) who weighed in early for suffrage was James Shafter. This was out of character for an establishment Republican--unless he had been married to the late "Mrs. Judge Shafter," one of California's earliest suffragists.106
"Old father McComas" from Santa Clara, a Non-Partisan farmer, offered a resolution, partly from friendship to the local suffragists. Hard-pressed to support his own eight children, he was especially sympathetic to his neighbor and single mother of five, Clara Foltz. Eli Blackmer, a Workingmen's delegate from San Diego, submitted a thousand signatures for the common phrasing of the issue: "no disfranchisement on account of sex."107
Though sometimes standard
in locution, these petitions bore traces of individuality. With their distinct
signatures in many inks, some strong, others trembling, many men but most
women, they offer mute testimony to nights like this in hamlets like Mayfield:
By definition, lobbying occurs outside the legislative hall and the public view--usually we can only infer its influence, as with Delegate Van Voorhies. But there are occasional glimpses of the work in progress. Early in November, one member wrote his constituents that "Mrs. Knox of San Jose has been in the lobby this week . . . . Many of the delegates have been introduced to her." Then he portrays her approach to the "young and sprightly member from San Francisco, Mr. Stedman . . . . [S]he appealed to his gallantry and future prospects but seemed quite set back when the young delegate informed her . . . he was the father of two cherubs."110
Whatever the effect on his "prospects," John Stedman, a 27-year-old Workingmen's delegate, voted for woman suffrage at every critical stage and then for the education and employment sections. He probably knew Sarah Knox before this encounter; she was the richest woman in San Jose where he spent some time after college as a clerk in a grocery house.111
At the end of the month, we can again sight the women lobbying--this time in a letter from Foltz to Gordon informing her that Mrs. Knox was awaiting a "telegram from E.O. Smith which would instruct her to come" to Sacramento. Smith was a Non-Partisan Democrat, who with Rush McComas and D.W. Herrington (a Workingman lawyer) represented Santa Clara County, where San Jose is located. Sarah Knox, Clara Foltz and the other suffragists pressed these three from election day forward and all three voted steadily in women's favor at the Convention.112
2. The Committee on Suffrage: November
The Committee on Suffrage was chaired by a notably fair Non-Partisan lawyer, John Eagon of Amador, and was politically balanced among Non-Partisan Republicans, Democrats and Workingmen. Only one member entered with a fixed position in opposition to woman suffrage. The threshold question for the undecided, a burning one throughout the Convention, was whether most women (or perhaps most "good and intelligent women") really wanted to vote.113
In order to demonstrate their desires, the women led by Laura Gordon appeared before the Committee on Suffrage one evening in late October. The cavernous chamber where the whole Convention regularly assembled was filled, "more than half the audience being ladies." They came to confirm that women wanted the vote and their speakers sought "justice, not favor." After this session, the Committee, which had expected to focus on proposals for retreating from universal male suffrage, found itself occupied instead with the question of extending the vote to women: "impartial suffrage."114
The press responded to the shift and awarded woman suffrage prominence if not plaudits over the next few weeks. In a cartooned version of a woman suffrage meeting, for instance, a group of angry and ugly women (two holding the umbrella--token of militant spinsterhood) surround a speaker whose clenched fist casts a menacing androgynous shadow on the wall. It is a group that requires reckoning and the picture is on the cover of the popular weekly, The Wasp.115
After much deliberation, the Committee on Suffrage put forth a proposal that would confine the suffrage to men, but would explicitly authorize the legislature to grant women suffrage in its discretion. This "legislative empowerment proviso" to the proposed male suffrage clause was a tribute in itself to the women's lobby. If enacted by the Convention, it would enable women to win impartial suffrage in the same way they had won the right to practice law only a few months earlier.116
But opponents quickly turned their success against the women charging their lobbying would become "a standing vexation and impediment to business." James Caples, the sole anti-proviso vote on the Committee, pictured "the future legislative hall [as] a beleaguered fortress" subject to "the attacks of crinoline and silk sophistry, and blandishments, smiles and tears." A Non- Partisan from Sacramento, Caples was the women's chief opponent in the floor debates as well, where he continued to warn against their "corrupting, degrading, demoralizing lobby."117
Why corrupting and degrading? Rather than explain, he implored each delegate to "bring it home . . . see what it looks like . . . . Imagine . . . [y]our wife, a candidate for the Legislature, stumping the county; your daughter locked up in the jury box all night." Continuing his fantasy, Caples has the wife elected, the husband at home with the babies. "You come up here [and] see . . . a bevy of gallant gentlemen around your wife paying great attentions to her." This image--a politicized woman at the center of a male circle--was one the delegates had seen recently when suffragists worked the lobby.118
But what Caples viewed as demoralizing, a pro-suffrage delegate found uplifting. After describing how courageously women had breached the wall against their entering the professions, he proclaimed:
On November 13, the Suffrage Committee issued its proposed Article empowering the legislature to remove the gender disability without constitutional amendment. A few days later Caples circulated his minority report charging that: "This radical innovation [is demanded] by a few professional agitators and schismatic propagandists . . . ." One newspaper said he was only getting back at Laura DeForce Gordon for claiming before the Committee that women would elevate the politics men had degraded. But the reference to radicals and agitators might reveal as well that Caples had identified woman suffrage with the Workingmen's Party, which he abhorred.120
3. Laura Gordon's Friends Offer Support
On November 20, David
Terry wrote to Laura Gordon enclosing the "eloquent and convincing"
Caples' report for her "delectation," and urging her to challenge its author
to a public discussion of the contents. Terry informed Gordon that he had
approached the fair-minded Eagon to urge that Gordon should have a chance
to respond in public debate:
But disclosure was not generally Terry's style. Further, in mid-November when he wrote to Gordon, the Convention was heading into the critical three weeks of the cathartic debate about regulating corporations. By the end of this battle that joined farmers, Workingmen and such Non-Partisan populists as J.J. Ayers against the conservative lawyers and other corporate supporters, David Terry had emerged as the unofficial leader of the Workingmen alliance. He was one of those "agrarians and communists" said the Argonaut "of a type more dangerous and less respectable than that of the sandlot leaders, whom they are anxiously endeavoring to replace." By the end of the year, there was widespread conjecture that Terry was using the Workingmen's Party to advance his own return to the California Supreme Court.122
Whatever Terry's private purposes, they would not be fostered by open sponsorship of the suffrage confrontation. In debating Laura Gordon, James Caples was heading for a rout; indeed that was Terry's design: "I . . . would rather like to witness his defeat by a woman." But he could not openly arrange the humiliation of his fellow Democrat Non-Partisan (and vocal WPC opponent) without stoking the gossip about his own allegiances.
Even writing a letter which might later connect him not only to a Caples defeat but to woman suffrage violated Terry's usual modus operandi of extreme secrecy--and thus is an important index of his friendship with Gordon. Earlier letters from Terry in this period confirm their on-and-easy-going relation and most, like this one, are jocular. He was the lawyer for the purchase and sale of her newspaper; he gently conveyed news of her estranged husband. Later he referred clients to her.123
The debate never happened, and there is no further evidence of communication between Terry and Gordon on the subject. Through the next two months, Terry continued his support of the Workingmen on issues such as regulating stock speculation and railroads, and equalizing taxation. By early 1879, he had become their actual though unacknowledged leader. There was some paradox here; Senator Broderick, whom Terry had killed in a duel, rose from and represented the working class. But nineteenth-century Californians were not long on history. In many of his views and in his temperament (including his aura of potential violence), Terry was a natural lieutenant for men desperately seeking change. For the former Chivalry (or Copperhead) Democrats among the Workingmen, Terry had special appeal--the slain Broderick had after all opposed slavery.124
On the same day that David Terry sent Laura Gordon the Caples report, Clara Foltz also wrote her a letter of much-needed sympathy and support. For two months, except for occasional help in the lobby and with the Committee, Gordon had been alone in her efforts--alone in a milieu so intensely male that she must sometimes have felt like the earth's last woman as she circulated on the Capitol grounds, watched the proceedings from the balcony or sought an introduction in the lobby.
It was expensive as well as lonely for Gordon in Sacramento. Having sold her newspaper in May, she had no regular income and was trying to finish her studies so she could practice law. To be effective, she needed to maintain herself in Sacramento, which meant renting a room and probably a parlor where the delegates might come for tea and talk.
In mid-November Gordon had written to Sarah Knox complaining about the lack of financial backing for her efforts. Foltz responded:
Though following on her offer, Foltz made the familiar run to Sacramento several times during the Convention, by mid-December the women had largely given up lobbying and petitioning until the new year. No one expected the Article on suffrage to come to the floor before January.
4. Woman Suffrage on the Convention Floor in December
On the day before Christmas, the women suffragists were at home and so were many of their supporters. Barely a quorum was stirring at the Convention. After passing over several matters as too important for immediate action, the delegates (in an attempted anti-woman suffrage coup) took up the report of the Committee on Suffrage.127
The abbreviated Christmas Eve debate that followed was a microcosm of what occured in January and February. Workingmen led the proponents against a strikingly silent opposition. Not one of the conservative lawyers spoke against impartial suffrage, either in December (when many were missing from the floor) or later when they voted overwhelmingly to defeat it.
The Workingmen for woman suffrage ranged from the most idealistic, who argued for simple justice, to the most instrumental, who urged that white women could cancel out the potential Chinese voters. In December, the prime mover was the premier idealist, Eli T. Blackmer from San Diego. As soon as the suffrage clause was read to the Convention, he took the initiative to the women's side by proposing to eliminate altogether the word "male."128
Massachusetts-born, thoughtful and against all political violence, Blackmer did not fit the disparaging stereotype of the Workingman. More: He was a shopowner, superintendent of schools and previously a Republican, clearly one of those "better sort of workingmen" that Lord Bryce later heard were the hidden strength of the WPC.129
But Blackmer identified himself as primarily a wage-earning music teacher and said his nomination by the Workingmen was a result of his advocacy ("con spirito" and in "no minor key") of their claim to "respectful attention." Like some other delegates, Blackmer was swept into this historical moment by the Workingmen and afterwards returned to ordinary and local times. He differed from most of his fellows, though, in active, even agile, participation throughout the Convention.130
Though surprised by
the attempt to debate suffrage on December 24, Blackmer was able to rattle
off the basic arguments. He then spoke of his mother, "whose steps are
fast approaching the entrance of that 'low green tent whose curtain never
outward swings."' She had borne her ten living "sons and daughters to positions
of honor and trust" and was a school teacher as well. But, he said:
B. Winter 1879: The Causes Converge
On January 6, 1879 the Convention passed the 100 days for which the legislature had appropriated funds. But the delegates had determined to continue to completion three days earlier when a motion to adjourn until January 1880 won only five votes. Every session from then on--the 97th to the 157th day--had a quorum on the floor, though some delegates stopped attending regularly, and others returned home for good.133
The same legislature that had set 100 days for constitution-making had also established a new department of the University: Hastings College of the Law. It was to be, in the words of its founder: "a temple of the law, which shall extend its arms and draw within its portals all who shall be worthy to worship at its shrine." But scarcely had the law college opened before two white women and a Chinese man were rejected on grounds of sex and race.134
In the winter of 1879 the efforts of Foltz and Gordon to prove their worth converged with the Convention debate over the place of women in reconstituted California. Facilitating the joinder of these two stories was an active press corps. Initially attracted by Foltz's bar admission after her legislative victory, they now followed her every move in the attempt to attend Hastings.
Generally, the stories were favorable, if occasionally ironic. Foltz herself always spoke gratefully of the "free and generous press of San Francisco" during the early years of her career. In late January, a reporter for the most widely circulated newspaper in California's largest city wrote a long story about Clara Foltz and Hastings. His conceit was a search for the heroine of "many paragraphic adventures" in the daily press; thus, he conveniently summarized all the coverage to date. The piece, moreover, reveals Foltz as a master of press management.135
The story opens by tracing the co