CLARA SHORTRIDGE FOLTZ: 
"FIRST WOMAN" *

  Copyright  1988 by the Arizona Board of Regents 

INTRODUCTION

    Clara Shortridge Foltz (1849-1934) fought for the vote for forty years and lived to cast a legal ballot. She was not equally gratified in her long struggle to gain acceptance for women in the legal profession. Admitted to the Bar in September, 1878, the first woman lawyer in California, she initially made her name as a jury lawyer and then went on to fifty years of successful practice.

    Although she frequently entered new fields in her quest for status and recognition, she herself knew that whatever she did, there were insuperable barriers to woman's progress. In her day, no woman could be counsel to large corporate interests, hold high public office, or even be a trusted legal advisor to those who did. By the time a few women were made judges, Foltz was old and infirm. The first female federal judge took office the year Foltz died.
 
    Nevertheless, over her long life, Clara Foltz witnessed the real improvement in how the legal profession received women, especially during the Progressive Era, when women professionals had a bright moment. Foltz put out a magazine from 1916-1918 called the New American Woman to celebrate these women, and in it she wrote a monthly column entitled "The Struggles and Triumphs of a Woman Lawyer."¹ 
 
    "They called me the lady lawyer," she wrote in one of these columns, "a dainty soubriquet that enabled me to maintain a dainty manner as I browbeat my way through the marshes of ignorance and prejudice."²  But favorable notice and dainty soubriquets often masked an undertone of censure and suspicion; many who uttered the phrase "lady lawyer" considered it an oxymoron. What was a lady doing, after all, out in the marshes?
 
    The stories of early women lawyers are full of strategies--though not always acknowledged as such--for dealing with the small slights and the large exclusions. Humor has, for instance, often served as a shield. For Clara Foltz, it was a sword as well. She once retorted to a trial opponent's ridicule by exclaiming: "Counsel intimates with a curl on his lip that I am called the lady lawyer. I am sorry I cannot return the compliment, but I cannot. I never heard anybody call him any kind of a lawyer at all."³
 
    Though she told these stories with gusto, Clara Foltz wanted to be remembered by more than hastily recorded personal anecdotes. She was convinced that she and the other pioneer women lawyers she knew were making history. She could not guess how long it would take before anyone was sufficiently interested to write it.
 
    In this Article, I have reconstructed Clara Foltz's dramatic entry into the legal profession in 1878-1879.⁴  Much of the story is drawn from nineteenth century newspaper accounts. Some of it is based on her letters, found in the collections of other people's papers, and some on her own telling in the "Struggles" column. No doubt my interpretations are also colored by my own experience as a first woman.
 
    Clara Foltz had to lobby for a bill allowing "woman lawyers" and then was first to take advantage of the new legislation. The victory for women was cemented in unparalled clauses assuring women access to education and employment in the 1879 California Constitution. Although this is a success story, the subject is also how partial and how restricted her triumphs really were.
 
    She could read law as an apprentice, but not in the fancy, uptown firm of San Jose's preeminent practitioner; she could pass a rigorous examination, but not be admitted to California's first law school; she could become a great trial attorney and still face the constant charge that her very presence in the courtroom would skew the processes of justice. As she won grudging admission to the outward forms, but was denied access to the inner reaches of the profession, Clara Foltz had no one to look back to, no one who had been there first to lay the groundwork.
 
    For feminist lawyers today, this need not be true. We are in the process of reclaiming the stories of our forbears,⁵ and this issue of the Valparaiso University Law Review adds a distinguished contribution to the growing literature.

WESTERN WOMEN 1868-1875

    In legal forums, on lecture platforms, in the press and in private, nineteenth century women seeking change contended with arguments that cut across all their immediate goals, whether to vote, own property or practice law. The issue always became the nature and place of Woman: her sphere. The global terms of the battle roused opposition too great for any individual to meet and made all victories emblematic. Without the aid of a newly organizing women's movement in California, Foltz could not have succeeded. As a movement member and because the struggle was partly over symbols, Clara Foltz's achievements were greater than the accomplishments of an extraordinary individual. Thus, her story has an important context.
 
    In 1868, an enthusiastic audience of about fifty people heard the first public speech in California advocating votes for women.⁶  Clara Foltz was not in the audience. Instead, she was barely surviving on an Iowa farm with two children and Jeremiah Foltz, whom she had married three years earlier at the age of fifteen. As she later recalled, "the life of the child-wife was a troubled one ... time which could be spared from the cares of maternity was devoted to manual labor, necessitated by family needs."⁷ 
 
    It was a bitterly different life from that she had envisioned for herself in younger days when she had talked of being a famous orator, perhaps even a lawyer.⁸  As a girl, Clara Shortridge had heard Lucy Stone speak of woman's "disappointment ... in education, in marriage, in religion, in everything."⁹  Now those words resonated with her own experience.

    By the time she moved west in 1872, Clara Foltz was ready to proclaim with Lucy Stone: "Leave women ... to find their sphere. And do not tell us, before we are born even, that our province is to cook dinners, darn stockings, and sew on buttons."¹⁰  In her new western home, Foltz found a movement that would support her grandest ambitions; it was forming around the cause of suffrage.

    An issue from the beginning of the women's rights movement,¹¹  suffrage emerged after the Civil War as the focus.¹²  The fourteenth and fifteenth amendments assuring the "privileges and immunities" of citizenship and giving former slaves the vote, made women activists assume that their rights would soon follow. Around 1870, the woman suffrage cause drew many new adherents to an idea whose time seemed very near.¹³ 

    But at the very moment that women in new numbers agreed upon suffrage as the goal, they divided over methods and ideology.¹⁴  Susan B. Anthony and Elizabeth Cady Stanton were outraged that the fourteenth amendment in section two restricted the word "citizen" with the word "male" for the first time in the Constitution. Thus, although they had worked for abolition and Negro rights, they campaigned against the amendment's ratification. They and their followers also opposed the fifteenth amendment because it dealt only with male suffrage. In contrast, other great women leaders, notable Lucy Stone and Julia Ward Howe, accepted the promises of the Republican party that the vote for women was next on the agenda, and supported the amendments. These differences led to the formation in 1869 of two national suffrage associations which remained separate for more than twenty years.

    Originally, the difference between the Stanton-Anthony National Women Suffrage Association and the Stone-Howe American Women Suffrage Association centered on continued support of the Republican party as the instrument of reform. But other disagreements fueled the division over the years, ranging from the American's reliance on male leadership to the National's willingness to use racist and nativist arguments in woman's cause. Moreover, the National Association addressed a wide range of issues affecting women, while the American Association pinpointed the vote as the answer to women's oppression and feared diluting suffrage efforts.

    The schism among the national leaders was reflected at the state level. Thus, in 1870, at the convention to establish a California suffrage society, there was "much anxiety" about affiliation.¹⁵ An attempt at compromise did not satisfy one group, and many delegates either dropped away from suffrage activities after the convention or formed separate societies. Divisions based directly on those at the national level, and indirectly on similar political and tactical differences, continued to plague the California suffragists until well into the 1890s. And, as in all political movements, especially radical ones, personality conflicts added to, and sometimes obscured, philosophical disagreements.

    Despite dissension from the outset, the first suffrage convention was a great success, well-attended and respectfully reported in the press.¹⁶ One of the most active conventioneers was Laura deForce Gordon. Born in Pennsylvania in 1838, Gordon was eleven years older than Foltz and was married to a doctor, whom she divorced in 1877.¹⁷ As a young woman, Gordon had lectured on Spiritualism, but turned to women's rights after her post-war move west. By the close of the decade her story was so joined with Clara Foltz's that their achievements were truly mutual. It was Laura Gordon who, on February 19, 1868, made the first suffrage speech in California. Prophetically, one newspaper reported: "She is a pleasing speaker, but her doctrines don't suit these orthodox times just yet."¹⁸

    In the same year as Gordon's first suffrage speech, Anthony and Stanton started publishing their women's rights newspaper, fearsomely entitled The Revolution. The early California suffragists eagerly read and circulated the paper, and one of them, Emily Pitts (later Stevens), was inspired to initiate a Northern California suffrage organ, the Pioneer.¹⁹ In turn, Abigail Scott Duniway, visiting San Francisco from Oregon, was inspired by Pitts' example to launch the major suffrage publication of the Pacific Coast, the New Northwest.²⁰

    Like Clara Foltz, Duniway was "disappointed in marriage, in education ... in everything." Although she was fifteen years older than Foltz, their histories have many parallels.²¹ Both were raised on mid-western farms and had fathers who were well-read and interested in politics. Both married romantically at an early age to men who could not support them, and tried to live within woman's sphere before they turned to "path-breaking," (the title of Duniway's autobiography). Duniway involved her six children in her women's rights work, just as Foltz enlisted her three daughters and two sons. In temperament, they shared traits of obstinacy, forthrightness, physical and moral courage, and, particularly in their later years, vanity.²²

    When Duniway's husband lost the family ranch by generously but foolishly co- signing a friend's note, she opened a school to support their family. Later she started a millinery shop which deepened her appreciation of women's situation through contacts both with her customers and the women who sewed for her on contract. On regular buying trips for the store, Duniway met with the northern California suffragists and gathered information and ideas.²³

    On one of her San Francisco trips Duniway was prompted to start a suffrage newspaper in Oregon. On another in 1871, she talked to Laura Gordon, who for four years had been stumping California, Nevada, and Washington for the suffrage cause.²⁴ On the same 1871 trip, Duniway met Stanton and Anthony who were in California to stir converts for their National Association, and for suffrage generally.²⁵  Duniway persuaded Anthony to come to Oregon and join her speaking for suffrage there and in the Washington territory.

    Duniway was established in her new vocation as suffrage leader, lecturer and publisher in January 1872, when Clara Foltz arrived in Oregon. With two small children and an infant, she followed her husband and found him in Portland, "clerking at starvation wages." Immediately she "went to making dresses and keeping boarders."²⁶

    Clara Foltz had an uncanny, or perhaps canny, ability in any new place to find those who could help her. Very soon after her arrival, she met Duniway, perhaps by sewing for money through Duniway's shop. However they first met, Foltz was soon writing for New Northwest, and the friendship of the two women remained firm long after Foltz left Oregon.

    There is little information about Foltz's time in Oregon, although after she became famous, two men had occasion to reflect on those years in her life. One, a newspaper editor, wrote that he first knew her "as a dressmaker ... working her life out to support herself and her little family."²⁷ The other, a correspondent in a Sacramento paper, reminisced that Foltz had arrived in Oregon "in search of her husband. She was ... very self- possessed, besides being rather attractive.... She has no timidity or shrinking delicacy ... and is a ready talker, sharp and quick-witted."²⁸ In Oregon also, another admiring man, an attorney, presented the young mother with the complete commentaries of Kent, urging her to study them because she "would make a good lawyer."²⁹

    In 1875, the Foltz family moved to California and Clara wrote to Duniway of her regret at "tearing myself away from the many friends whom I had learned to love so dearly...."³⁰ Also decamping for California was the Shortridge family, Clara's parents and four brothers who had followed her to Oregon.

CLARA FOLTZ IN SAN JOSE 1875-1878

    In this three year period, Clara Foltz moved from Oregon with four children, bore another, connected with the most influential people in San Jose, entered the public lecturing field, and embarked on law study.³¹ It was, moreover, a turbulent time in her fifteen-year marriage, soon to end.³²

    In one of her first letters from San Jose, Foltz described San Jose as "an Eden of loveliness' and informed New Northwest readers that she had attended a suffrage meeting "at the elegant home of the president, Mrs. S.L. Knox ... a widow of commanding personal appearance, an abundance of bank stock, and a wealth of ... common sense."³³

    Again with alacrity, Foltz attached herself to an older woman suffragist, this time one who could give financial as well as spiritual aid. When they first met, Sarah was the widow of William Knox, a successful businessman, who as a state senator had "secured the passage of a bill, drafted by himself, giving to married women the right to dispose of their own separate property by will."³⁴ In 1879, she was re-married to an architect, also wealthy and also "fully in sympathy with all of her progressive views."³⁵ She subsequently honored both her husbands by signing herself Knox-Goodrich.

    Sarah Knox-Goodrich comes to us through her writing and contemporary descriptions as maternal, sweet, and very tough. Duniway, not usually long on praise, said of her: "Gentlemen admire her, as they always do bright women who have courage to want to be free, and ladies like her in spite of themselves because of her goodness of heart."³⁶
 
    Knox's regular correspondence with suffrage publications and the San Jose papers shows her rhetorical talents.³⁷ Often she spoke with a western accent, invoking the "pioneer mothers of a common country ... who had transformed the howling wilderness into a garden of beauty ..."³⁸ or noting that women could fight if necessary because "we can fire a gun and hit a mark about as well as the average man." ³⁹

    Shortly before Clara Foltz arrived in San Jose, Knox had spearheaded the first legislative victory for organized women in California: a bill making women eligible for educational offices, such as school boards. She and other leaders of the Santa Clara suffrage society journeyed to Sacramento, "remaining there for weeks, urging the measure."⁴⁰ This proved an important lesson in  method for Foltz.

    Sarah Knox-Goodrich had the wealth and social standing that Clara Foltz and many of the other early suffrage activists lacked. These assets enabled her to offer herself as a model in ways that were bold for a nineteenth century woman, such as lobbying the legislature, and appearing at the polls to try to vote in every election after 1869. Of her role, the History of Woman Suffrage observed: "she has nerved the weak and encouraged the timid by her example of unflinching devotion."⁴¹

    Always open to the influence of mentors, Clara Foltz readily followed Sarah Knox to the polls⁴² and rejoiced in the conversation of suffrage celebrities like Mary Livermore and Lillie Deveraux Blake at the home of her friend.⁴³ Foltz wrote of Knox as her "earliest appreciative friend" in San Jose, who "believed in me and never ceased to proclaim me as the 'coming woman'."⁴⁴ In 1876, she named her last-born after the only child of her benefactor: Virginia Knox.

    Generally, the suffrage scene Clara Foltz found in San Jose was supportive and relatively conflict-free. In 1872, the Woman's Journal noted that there were about 200 members in the San Jose suffrage association, including "some of the most intelligent business men" and "educated and refined happy wives and mothers."⁴⁵ Among the male suffragists was J.J. Owen, editor of the leading San Jose newspaper, the Mercury. He admired Foltz from the beginning and reported her activities approvingly.⁴⁶

    The suffragists, Foltz and Knox particularly, shared a spirit of fun and sense of occasion. Conventions and meetings included beautiful food, dancing, dramatic and musical renditions. For years California suffragists told of the Centennial Fourth of July celebration when Sarah Knox and others she inspired decorated their houses and paraded with placards ranging from "No Taxation without Representation" to the more humble "The Class Entitled to Respectful Consideration." In the center of Knox's carriage sat "a little daughter of Mrs. Clara Foltz ... dressed in red, white and blue ... carrying a white banner with silver fringe, ... and in letters large enough to be seen at some distance, the one word 'Hope'."⁴⁷

    Clara Foltz needed hope in 1876 because she had little income from her husband and no savings. In California, as in Oregon and Iowa, Jeremiah Foltz could not support his growing family. The seventies were hard times for many working people, but worse for the Foltzes because Jeremiah made frequent trips back to Portland, apparently to see another woman.⁴⁸

    In the past, Clara helped support her children through traditional women's work, but taking in boarders and sewing proved inadequate. Now she resolved to try lecturing for money, a decision that moved her into a public sphere she never left.⁴⁹ Foltz took "Impartial Suffrage" for her subject and filled a San Jose hall. The Mercury reported that the "lecture was a well written production, and was well delivered, frequently calling out protracted applause."⁵⁰ Visiting in California soon after Clara started her new career, Abigail Duniway wrote: "Our old friend from Salem ... has given several lectures ... before good audiences ... [and is] highly praised, many saying they have never been excelled ... in San Jose."⁵¹

    Her maiden lecture showed the pragmatism that characterized Foltz's style of argument, as well as her other efforts. "Whatever works" could have been her creed.⁵² First, she argued for suffrage because women were men's equals: "Did God fail in his last crowning work when he made woman, that she is not the equal of man? Genius, talent, hard labor know no sex." With no sense of inconsistency, she shifted to praising women, with frequent examples, as the "better half." "Women have been the great reformatory power in every age. If woman's influence is purifying in all other relations what sophistry to exclude her from the polls, the sacred shrine of liberty."

    As most movement speakers did, Foltz drew on the Seneca Falls Declaration⁵³ by referring to taxation without representation. She also quoted Blackstone on the supremacy of "natural law" and argued that legislation disenfranchising any class was void as a violation of natural rights. From personal experience, she exclaimed: "It is said that men support women, and women's sphere is the home. We claim that nine-tenths of women support themselves."⁵⁴

    This percentage may have been high, but Clara Foltz well knew one case of a woman who had to support herself and five children. She soon sought to extend her resources beyond lecturing by reading law. Duniway drily observed that "if she lives, she will prove to the world that a woman can do some things as well as others."⁵⁵ With her usual sense for the direct route, Foltz originally tried to study with a very prestigious lawyer, Francis Spencer. The son of an eminent physician, Spencer had been financially blessed from the start and he had earned a statewide reputation by winning a number of celebrated cases.⁵⁶

    Foltz envisioned "beginning my student work in his big fine offices," and wrote seeking the privilege: "I waited patiently.... My mother shook her head with a sigh as day after day, I ran to meet the letter carrier." Almost forty years later, Foltz printed Spencer's reply in her autobiographical column-- another document in the record of women's disappointment:

My dear young Friend:--
    Excuse my delay in answering your letter asking permission to enter my law office as a student. My high regard for your parents, and for you, who seem to have no right understanding of what you say you want to undertake, forbid encouraging you in so foolish a pursuit--wherein you would invite nothing but ridicule if not contempt.
    A woman's place is at home, unless it is as a teacher. If you would like a position in our public schools I will be glad to recommend you, for I think you are well qualified.
    Very respectfully,
    Francis Spencer⁵⁷
Instead of joining Francis Spencer, she studied in the more modest offices of C.C. Stephens, an early male feminist, with whom her father occasionally practiced law.⁵⁸

    Neither institutional training nor a formal statewide examination was required to join the Bar; the only prerequisites were that an applicant be a twenty-one year old white male citizen of good moral character, and possess the necessary "learning and ability."⁵⁹ Clara Foltz was not worried about acquiring learning, and her ability was as great as her ambition, but she had to do something about the limitation of law practice to white males.

    She drafted what became known as "The Woman Lawyer's Bill,"⁶⁰ simply substituting "person" for "white male" in the Code provision, and chose the most influential man in town to introduce it. Barney Murphy was a wealthy banker, a graduate of Santa Clara College, "short, but exceedingly good  looking."⁶¹ In 1869-70, when only twenty-nine, he had been elected to the State Assembly and managed, with some difficulty, to situate the state normal school at San Jose, an achievement that sealed his popularity.⁶² Foltz wrote that he was "beloved by everybody because of his big warm Irish heart."⁶³

    When Foltz arrived in town, Murphy was the Mayor and they first became allies through their successful efforts in 1876 to establish a paid fire department.⁶⁴ In 1877, he was newly elected to the state Senate, set to convene in Sacramento in early December. Foltz planned to be there; from the opening day to the close of the session on April 1, 1878, her life's concern was the Woman Lawyer's Bill.⁶⁵

    The Bill's passage entailed great energy as well as physical hardships: "night journeys to Sacramento in the caboose of a cattle train, without a dollar in her pocket and a little bag of biscuits and boiled eggs for her refreshment."⁶⁶ Once in Sacramento, she "liv[ed] on next to nothing, in order to stay ... and get her bill through, eking out in every possible manner, cooking her food on a tiny alcohol lamp, while her friends cared for her little ones temporarily."⁶⁷

CLARA FOLTZ IN SACRAMENTO 1878

    On December 3, the Twenty-Second Session of the California Legislature opened in Sacramento.⁶⁸ It was the last legislature before the Constitutional Convention, set for the following September. Establishing procedures for the convention consumed much of the time, but the session was also noteworthy for the introduction of over fifteen hundred bills, more than in any previous legislature.⁶⁹ Adding to the general confusion was an unusual number of new members, who had "scarcely become inured to the legislative harness."⁷⁰

    Two weeks after the Senate convened, Barney Murphy introduced the Woman Lawyer's Bill. The Sacramento Bee offered lukewarm support, adding to its endorsement that women "are not successful in their professions [because] all women hope to marry and be supported by their husbands."⁷¹  Two women whose husbands did not support them were present at the twenty-second session, however, and were planning to take advantage of legal permission to become lawyers as soon as possible: Clara Foltz and Laura deForce Gordon.

    Gordon attended as a press representative for her own paper, the Oakland Daily Democrat.⁷² The only familiar female figure in this bearded, booted assemblage, she had not only covered previous legislative sessions for the press,  but had lobbied for suffrage when the movement was just starting in California. After spending the early seventies stumping for suffrage throughout the West, as well as attending several national conventions, Gordon had become in late 1873 the publisher and editor of the Stockton Weekly Leader, which she made a daily, and moved to Oakland. By 1878, she was discouraged with the newspaper business and planned to study law because she believed it would offer a better living, a freer schedule and a more impressive platform from which to urge women's rights.

    Foltz and Gordon joined in what Foltz called their "desperate struggle" to obtain passage of the Woman Lawyer's Bill.⁷³ This language was not one of Foltz's frequent exaggerations; she was desperate. Without the Bill, she could not become a lawyer, and the profession offered the best hope for supporting her children. Her desperation echoes still in words written long after the event: "I coaxed, I entreated, I would have reasoned had they been reasonable men.... I had to beg--not for a living, but to be allowed to earn a living."⁷⁴

    Contemporaneous accounts do not record exactly what the women did and when. But a newspaper columnist wrote that the 1878 legislative session was heavily marked by the activity of lobbyists:
 

... circulating through the halls and chambers, whispering in corners, closeted in alcoves, consulting in knots, buzzing in groups, bending over legislators at their desks, buttonholing, counselling, advising, plotting, working every plan, pulling every wire, bringing to bear every influence....⁷⁵
 
    Although Clara Foltz had no previous experience as a lobbyist, she was gifted at it. One legislator commented admiringly:
 
I never knew before how much pluck and energy there was in a woman--how they could urge their claims, plead for the privilege of making the battle of life--for such our friend Mrs. Foltz did, gently  and eloquently.⁷⁶
    The two women were not alone in their efforts. The State Suffrage Society sent Sarah Knox-Goodrich, among others, "to visit Sacramento during the session and use their influence to secure the passage of the 'Woman's Lawyer Bill' ... and to petition for suffrage."⁷⁷ The women also had help in collecting hundreds of signatures on petitions.⁷⁸

    Some of the arguments Foltz and Gordon encountered were the same ones raised against suffrage. Voting or practicing law would move women into the public sphere, "unsexing" them, and thus making them unfit for domestic life. In 1878, the argument presupposed that women would somehow be forced to exercise these rights, absorbing all their time and energy and thus destroying the home. Patiently, Clara Foltz explained to Captain M. or Colonel S. that his wife, so handsomely provided for, would not have to be a lawyer.

    Her own situation, with her husband unable to support the family, and on the brink of desertion, made this standard argument particularly galling to Clara Foltz. It was painful for Laura Gordon, too, the main breadwinner for her family now that her twenty-year marriage had ended.⁷⁹

    Many of the objections were, of course, specific to the women's desire to be lawyers. A frequently expressed concern, for instance, was that women lawyers would sway juries to acquit the guilty and award the undeserving.⁸⁰ The only solution would be to place women on juries: "upon such a panel [the woman lawyer's] seductive and persuasive arts would be wasted." Some  opponents considered it a telling argument that if women became lawyers, they would next become jurors, perhaps even judges.⁸¹ Others painted the picture of a woman lawyer undone by the necessity of cross-examining on some indelicate subject.⁸²

    Over the opposition, the Bill passed the Senate in mid-January with a "decided" vote of 23-11 including all but two of the lawyers. According to one Sacramento paper, the lawyers voted "with a degree of liberality which does credit alike to head and heart."⁸³ All of the prominent lawyers of San Jose signed a supportive petition which Foltz carried to Sacramento.⁸⁴ "[N]early every Member of the Bar of Sacramento" requested that the Bill pass.⁸⁵ And the lawyers of Stockton, near Laura Gordon's home, also petitioned for passage.⁸⁶

    In the Assembly, however, the chief opponents were lawyers, and the Bill's prospects were more precarious than in the Senate.⁸⁷ Yet ultimately it was a  lawyer, Grove L. Johnson, who saved the Bill.⁸⁸ None of the characters in this story is more engaging, or more improbable as a champion of women's rights, than the Assemblyman from Sacramento. The 1877-78 legislature was Grove Johnson's first term, but he was not one to sit on the back benches or slowly ascend the seniority ladder. In a "scholarly and elaborate" first address, he opposed a gag law directed at the radical Workingmen's party. The Sacramento Bee termed it "the most eloquent [speech] ever heard in the chamber...."⁸⁹

    In 1880, Grove L., as he was known, ran successfully for the state senate. In the mid-nineties, he was a U.S. congressman, and in 1901 returned to the state assembly where he served for a decade.⁹⁰ By the time he became a congressman, he was taking directions, and perhaps more, from the Southern Pacific Railroad; his maiden speech for the Workingmen was in the definite past. Grove's son, Hiram Johnson, the Progressive Governor of California from 1911 to 1916, later broke the power of the railroads over the state. The son split from the father over Grove's allegiance to the railroad during his congressional term. The break was so bitter that Hiram and his brother Albert campaigned against their father's candidate in local elections, and Grove L. did not support his son for Governor.⁹¹

    But in 1878, Grove L. had not yet made his railroad connection, and his politics were as personal as his force.⁹² Through his advocacy of the Woman Lawyer's Bill, Grove L. and Clara formed a bond that survived her later support of the Progressive Party founded by his estranged son. The source of their alliance is uncertain; perhaps it was simply the result of friendship and sympathy. They shared the same intense work ethic, the same seemingly boundless physical energy, and even the same number of children, of the same ages and sexes.⁹³

    Contemporary descriptions of Johnson convey a startling fierceness:
 

His mental powers are nearly always at white heat, and I wonder that his intense mind has not long since shattered his body.... [Always] ... Johnson's mind is on the leap, like a greyhound after a hare.... He is terrible in sudden repartee, and it is hardly safe to provoke him.⁹⁴
 
His grandson wrote that "he was known to be particularly belligerent and ferocious."⁹⁵

    A short man, he was always dressed in striped "diplomat" pants, a frock coat, fine leather boots to the knee and a broad brimmed black hat. In his lapel was "an exquisite nosegay" watered from a small vial specially sewed into his coat.⁹⁶ But the power of his intellect and oratory made Grove L. more than a fierce little dandy. An omnivorous reader with a photographic memory, he  delivered speeches rich with biblical and classical allusions, in a distinctive anguished voice, that fell like physical assaults on his opponents.

    Johnson entered the Assembly in late February determined to pass the Woman Lawyer's Bill. Mr. May of San Francisco opened the support, calling for the abolition of "all class distinctions."⁹⁷ Then, Mr. Anderson of San Francisco, Chair of the Judiciary Committee which had reported the Bill without a recommendation, moved its indefinite postponement. At this point, Grove L. entered the debate, mildly stating that he saw no reason why women should not have a chance to make a living at practicing law.⁹⁸

    Immediately came the answer: three Assemblymen launched into the standard argument, the more powerful for its familiarity, that women lawyers would move out of the ordained female sphere. Speaking as a "friend of the fair sex," one man protested that the feminine domestic sphere was "infinitely" the "more important." Mr. May rose again, implying that the opponents wanted to keep women in the sphere of "hewers of wood and drawers of water."⁹⁹

    Joining issue, Johnson demanded of the opponents "what law of God or man had given them the right to fix the sphere of women." God alone had ordained women's sphere and men like these had "no right to circumscribe  it."¹⁰⁰ He closed by challenging opponents to name "a single instance of a woman attempting any position in life where she did not acquit herself well."¹⁰¹ No one responded, but the Assembly, by a majority of three, voted down the Woman Lawyer's Bill.¹⁰² Making use of the Assembly rules, Grove Johnson switched his vote from yea to nay so that he could move reconsideration of the Bill.¹⁰³ The next day, with only a month left before adjournment, the reconsideration was postponed.

    Clara Foltz had not been present during the February Assembly debate. Soon after the Bill's easy Senate passage, she left for a six week tour of Oregon, where she met with her suffrage friends and displayed her new role as lecturer to "large, critical and delighted" audiences.¹⁰⁴ Although her return to Oregon as a public person was doubtless satisfying, she had a heavier reason for the trip, which probably accounts for her leaving during the pendency of the Bill that meant her livelihood. Her husband's visits to Portland to see the eventual second Mrs. Foltz had become both frequent and extended.¹⁰⁵ But while Clara Foltz attended her failing marriage, her Bill nearly expired.

    The Bill's reconsideration was finally set for the last of March, two days before the end of the session. Having returned from Oregon in mid-month, Foltz rose to the penultimate struggle. She went on the floor of the Assembly to illustrate the compatibility of woman's role as lawyer and as mother. As she described it:
 

[O]ne Captain M., member from San Francisco, declared in stentorian tones, "This bill to give women the right to practice law is fostered by the Woodhulls and the Claflins, women without husbands, who have no little children clinging to their skirts and--" his speech was cut short by old father McComas of Santa Clara County, who rapped the assemblyman for his false charges, and turning to me, where I sat near the Speaker's chair with my two little boys standing near [Foltz's sons were then 9 and 7], he pronounced such a eulogy upon me and upon all women who sought to qualify themselves for useful careers as made my heart ache with gratitude.¹⁰⁶
    Grove Johnson took command of the reconsideration, set for March 29, a Friday.¹⁰⁷ The last session would be on Saturday, and all bills had to be signed into law by midnight April 1. For the concluding scramble, the Assembly had agreed that each member in alphabetical order could take up one bill and dispose  of it. It was already late Friday afternoon when the "J's" were reached and Grove L. brought up the Woman Lawyer's Bill. He opened with a fulsome argument and took more time presenting supporting petitions, one signed by hundreds of men and women, and another by virtually the entire Sacramento Bar, including the judges. When he finished speaking the applause was so great that the Speaker had to rap the house to order. No one spoke in opposition. The final count was 37 Ayes to 35 Noes; a crucial five votes were swayed.¹⁰⁸

    One last obstacle lay before Clara Foltz; she could not be a lawyer unless the Governor signed the Bill. She joined the last-minute melee of legislators and lobbyists fighting for his attention, and actually managed an audience.¹⁰⁹ Foltz wrote to her Oregon friends that when she asked him to sign the Bill, he "smiled complacently and replied: 'Very well, madam, when the bill comes in I will examine it.' "¹¹⁰ On the last possible day, in the waning hours of the session, Governor Irwin signed the Woman Lawyer's Bill.

    Forty years after the events, Foltz wove a more exciting tale about the meeting with the Governor in which some of the details do not jibe with contemporary accounts, including her own.¹¹¹ Yet her re-telling gives the best sense of these events for the young woman. I reconstruct the typical Foltzian melodrama from her words.
 

     The Scene: "The closing day of the session ... midnight, lacking three minutes.... Outside the doors of the Executive Chambers," and inside where "the chandeliers shone fiercely, the oil paintings ... seemed to frown ..."
    Minor Players: "a husky politician" (also known as "great big ignoramus"); the Assistant Sergeant at arms, "a fine large Negro"; a doorkeeper: "Governor Irwin surrounded by the Attorney General and many prominent members of the Senate and the Assembly."
    The Heroine: Thirty year old mother of five, notable for her "unconquerable soul."
    The Play:
    Husky politician (emerging from Executive Chambers): "That Woman Lawyer's Bill dead and buried."
    Heroine: "Is it, very well then. Only the good are raised from the dead."
    Speedily and gracefully, Heroine slips by two guards, and confronts Governor Irwin surrounded by other minor characters. Silence as minor characters take no notice of heroine.
    Heroine: ("Trembling") "Governor, won't you please sign the Woman Lawyer's Bill?"
    Governor: (Gazing first at heroine then at large stack of unsigned bills) "What is the number of that Bill?"
    Heroine: "Senate Bill 277."
    Governor: (lifts up bill after bill in huge stack of discarded ones, aided by a clerk, the bill is fished out and laid all but dead before him) "This bill to entitle women to practice law is wise and just and I take great pleasure in signing it."
    "AND RIGHT THEN THE CLOCK STRUCK TWELVE"
 
    Clara Foltz would use the Woman Lawyer's Bill and two others signed at the legislature's close to make the coming year her most glorious. On March 26, 1878, Governor Irwin signed the legislation creating Hastings College of the Law, to be affiliated with the University of California.¹¹² Then on March 30, the much-debated bill establishing the Constitutional Convention became law. CLARA FOLTZ JOINS THE BAR APRIL-DECEMBER 1878

    Returning to San Jose, Clara Foltz accelerated her preparation for the Bar, driven now by financial necessity as much as by ambition or a cause. Jeremiah had been in Portland most of the year, and Clara feared final desertion. In the San Jose city directory for 1878, she is listed as a widow.¹¹³ Friends and family members offered to take her children while she established her career, though no one was able to maintain all five. She considered it one of her life's major accomplishments that she kept her family together during this period.¹¹⁴

    The press agreed with her and the stories uniformly related that she "attended to her family" and "did her own housework" while she studied for the Bar.¹¹⁵ A Chicago paper took a moralistic tone advising "young men who moan and groan because they have not the means to acquire an education" that "it is not money they need--it is pluck and energy of a woman like Mrs. Foltz."¹¹⁶ The New York World made this learned comparison with Foltz's situation:
 

Perhaps the very possession of the children may do for her what Erskine's offspring did for him.... Erskine turned to the law as Mrs. Foltz went--because he was in straitened circumstances.... During his first case ... he obtained renown for a fierce onslaught upon Lord Sandwich.... "How had you courage to attack so great a man?" inquired one of Erskine's friends. Replied he: "I felt my little children tugging at my stuff robe and whispering, 'Now is the  time to get us bread.' "¹¹⁷
Clara Foltz herself wrote that her five children, "by their very dependence spur me onward in my profession."¹¹⁸

    How did Foltz combine the roles of law novice and single mother of five? First, her mother was with her. Perhaps the only advantage Clara gained from marrying at fifteen was that Talitha Shortridge was only fifty in 1878, young enough to be a real help with small children. "My precious mother!," Foltz wrote, in gratitude for "her uniform faith ..., her great patience, her ready soothing words" and noted that she "was a wonderful housekeeper [who] relieved me of many duties."¹¹⁹ Foltz claimed, moreover, that her children were "the most beautiful and healthy babies ever born; those indeed were 'Better Babies.' In fact, from that day to this I have never seen babies like them."¹²⁰ As they grew, the children remained, at least in memory, "robust and well-behaved."¹²¹

    But the main answer presumably lies in Clara Foltz herself. Her mind was quick and retentive. Physically, she was strong and energetic, able to study long hours with little sleep. Finally, she had a special affinity for the law. She said at the outset of her career: "[I]f I knew I should never be permitted to practice law I should still make the law my study till I had mastered it. I do so love it."¹²²

    Nevertheless, Clara Foltz felt the conflict between career and motherhood. Early in her public life, she wrote about unease at separating from her baby, Virginia, for the first time in order to lecture in Gilroy.¹²³ In an 1885 case, her testimony shows her emotionally torn because she had to leave her children  while travelling on a client's behalf.¹²⁴ Years after they were grown, she wrote of time's treachery that "converted my little lads and lassies into men and women, making the good times I had promised them forever impossible of enjoyment" and adding, "I hav[e] lost more for myself that I have gained for all women. All the pleasure of my young motherhood I sacrificed for woman's cause...."¹²⁵

    Against the advice of her family, who feared that she was not fully prepared, she decided to apply for admission to the bar at the court's first sitting in September. The judge of the Twentieth District Court, which sat in San Jose, appointed a committee of three lawyers to administer an oral bar examination. The committee included, as was the custom, her official mentor, C.C. Stephens, along with two others--D.W. Herrington, a prominent San Jose lawyer, and Francis Spencer, the man who had refused to accept her as a student and advised that she "would invite ridicule, if not contempt" by studying law.¹²⁶

    The examination was not pro forma: it lasted 3 hours, and Foltz said a few months later that several young men who had begun studying at the same time as she had not yet passed.¹²⁷ Clara Foltz passed with the committee's unanimous certification.¹²⁸ The next day, September 5, 1878, she became California's first woman lawyer.

    Her story was ideal human interest press copy: plucky little mother of five gathers fruit of legislative victory. A typical approving description of Foltz soon after she became a lawyer reads: "There is nothing of the strongminded woman about her. Her bearing is that of a brave, cheerful, enthusiastic little woman, modest, dignified and self-reliant."¹²⁹ Clara and her mother laughed over the publicity because as a girl, she often wondered "whether may name would go down on the page of history for some personal achievement."¹³⁰

    Some of the press notices claimed she was the third woman lawyer in the United States, others that she was the fifth. In fact, she was probably one of a few dozen, but there is no complete consistent chronology of the first American women lawyers even today.¹³¹ In 1887, Lelia Robinson, a lawyer,¹³² attempted a biographical survey of women at the bar. Not at all satisfied that her work was complete, she complained: "the newspapers publish and republish little floating items about women lawyers along with those of the latest sea-serpent, the popular idea ... be[ing] that one is about as real as the other."¹³³ Robinson's article, as well as squibs in contemporary magazines and newspapers, show that a number of women joined the bar with a small flurry of publicity and then fell from public view as they practiced in the local, largely unchronicled, fashion of most lawyers.¹³⁴

    Aided by first-woman publicity and her influential friends, Foltz had clients almost immediately. One was a "high-spirited German girl, [who] had been discharged without cause" from her job as a servant. Her employers seized her trunk containing all her worldly possessions to pay for dishes that Foltz maintained were broken in "the ordinary course of things." Foltz sued to recover the trunk and for damages for its detention. J.J. Owen and Sarah Knox-Goodrich signed a bond so that the girl could have her goods pending the outcome of the case. Foltz won, after the suit was hotly contested in the Justice Court.¹³⁵

    Soon after, she represented "a young English woman," deserted by her husband. Alone in a strange town, the woman fell sick; her desolation was complete when the doctor seized her baggage for his fee. Foltz sued, again in the Justice Court, to recover the woman's personal effects. Again, she won, "severely handling" the doctor and the officer who had confiscated the luggage.¹³⁶ That these cases for unprotected women would be Foltz's first is striking because in Oregon, only a few years before, a sheriff had taken her sewing machine to pay Jeremiah's debts. No lawyer was there to argue that the machine, which she used to support her children, was legally exempt from seizure.¹³⁷

    By the end of October, Foltz had her first case, a contested divorce, in the more prestigious District Court. One paper reported that "the bar was thronged with its best talent, all intently watching her": that she was "calm and dignified," and that she seemed "not in the least out of place."¹³⁸ Paying clients with property matters soon came, and Foltz noted with particular enthusiasm "proceedings to set aside a fraudulent survey" in which her old nemesis, Frank E. Spencer, was her opponent: "It is an intricate and important case, but I feel master of it ... and am satisfied I am going to win it."¹³⁹

    Despite these early successes, Foltz felt insecure because her three years of schooling at an Iowa seminary was less than standard for the profession. Many California attorneys had law degrees from institutions in the states from which they migrated. Most of them had a college education. Foltz thought that the first woman lawyer in the state should attend its first law school, Hastings College of the Law, established by the same legislature that had passed the Woman Lawyer's Bill. She applied to the first class, but did not appear personally because she was otherwise occupied in the fall of 1878.¹⁴⁰

    At the beginning of the second semester of instruction, however, Clara Foltz was at the door demanding entrance. She told an inquiring reporter: "I came here intending to qualify myself further.... My friends offered to pay my rent ... for a few months and then I could better go on with my practice."¹⁴¹ Laura Gordon who was still reading law, on her path to becoming California's second woman lawyer, joined her.

    Foltz moved to San Francisco with her three older children, intending to be a student, but as it turned out, to be a litigant. Through her court battle to gain admission to law study, Clara Foltz became a major public figure. If she had not tried to attend law school, she might have remained a locally accepted, successful practitioner. As it happened, she entered the history of women's professional progress as the "Portia of the Pacific."¹⁴²

THE HASTINGS CASE AND THE CONSTITUTIONAL CLAUSES 1879

    On January 9, 1879, Clara Foltz registered at Hastings, paid the ten dollar fee, and attended the term's opening lectures. Laura Gordon joined her on the second day, but at the end of the third, Foltz received from the Registrar a letter, dated January 10, informing her that the Directors had "resolved not to admit women to the Law School."¹⁴³

    Her three days as a Hastings student became part of Clara Foltz's anecdotal lore, which she used in her popular lecture on "Lawyers":
 

The first day I had a bad cold and was forced to cough. To my astonishment every young man in the class was seized with a violent fit of coughing. You would have thought the whooping cough was a raging epidemic among the little fellows. If I turned a leaf in my note book, every student in the class did likewise. If I moved my chair--hitch went every chair in the room....¹⁴⁴
 
    Foltz could later dismiss the young men as "an inferior lot, for ... I have never ... heard tell of one of them [since]."¹⁴⁵ But their disruption was bitter at the time in light of Judge Hastings' expressed fear that the women would distract the male students by their rustling garments.¹⁴⁶ That night, she "crept into the room where my little ones slept ... and cried myself to sleep." Of this time in her life, she revealed: "I often refreshed myself by a good cry, which a woman could enjoy without getting out of her 'sphere'...."¹⁴⁷

    Foltz felt excluded, watching as "the students hurried up the steps arm in arm, their faces aglow with enthusiasm--all the world opened its arms to them, law schools and colleges were built and endowed for men."¹⁴⁸ She had the same experience a year earlier in San Jose, when her attendance at a "law club" for aspiring practitioners occasioned a debate over the capacity of women for the profession. One fellow law student argued that "Women are smart in some things, but ... it is the smartness of the educated dog or monkey, without the originality to conceive and execute for themselves...."¹⁴⁹ Then, too, she had been on the outside "away back in a corner, thinking, thinking how all the world was open to men, how every opportunity for service to the State, for personal achievement was theirs...."¹⁵⁰

    When she received the Registrar's rejection notice, Foltz, good lawyer that she already was, tried to negotiate a solution. She and Gordon went to see the Founder-Dean, Clinton Hastings, as well as several members of the Board. While negotiating, the women resolved to continue attending classes, but "... all the students drew up around the entrance and stared us so out of countenance that we retreated."¹⁵¹

    After this confrontation, Foltz made one last effort at persuasion. She spoke with Professor John Norton Pomeroy, the renowned legal scholar whom Hastings had brought from the East to design the curriculum and teach at the new law school.¹⁵² Undeterred by the Professor's eminence, Foltz told him that "the best legal minds" said the women had a "right to attend the college." He replied: "You have no rights in the matter at all. If we have a mind to let you come you can, but you have no right to."¹⁵³

    The Foltz-Gordon team turned to litigation reluctantly because courts had consistently refused women access to the legal profession during the previous few years. Three well-known adverse cases were particularly troublesome. Myra Bradwell's in Illinois; Lavinia Goodell's in Wisconsin; and Belva Lockwood's in Washington, D.C.¹⁵⁴ Like Clara Foltz, these women successfully began law careers and the court cases arose when each attempted a further professional step that was routine for a man.

    Myra Bradwell, most celebrated of early women lawyers, started a weekly newspaper, the Chicago Legal News in 1868.¹⁵⁵ A "brilliant success" from the first issue, the News quickly became the most important legal publication west of the Alleghenies.¹⁵⁶ Even before she inaugurated the paper, Bradwell was studying law with her husband, a judge. In 1869, she easily passed the bar examination. But the Illinois Supreme Court denied her admission, mainly on the ground that as a married woman without sole legal authority to contract, she might disavow agreements that she alone had made for, and with, her clients.¹⁵⁷

    Bradwell took her case up to the United States Supreme Court, relying on the newly ratified fourteenth amendment, which proscribed state abridgement of the "privileges and immunities" of national citizenship. Occupational choice, she plausibly urged, was such a privilege. Her point was virtually the same as that made by certain Louisiana butchers who were also relying on the privileges and immunities clause in their attack on the state's slaughterhouse monopoly.¹⁵⁸ The butchers argued that it was a privilege of all citizens to pursue their professions, immune from unreasonable government regulation.

    Argued a week apart, the cases were decided on consecutive days. The Court held that occupational choice was not a constitutional privilege of federal  citizenship.¹⁵⁹ The majority in Bradwell did little more than cite the Slaughterhouse Cases and the holding technically meant only that women were not federally protected against state refusal to admit them to practice. Of course the opinion imported to the public that the Supreme Court found women unsuited for the practice of law.

    This popular interpretation fed on a concurring opinion by Justice Bradley. Having vigorously dissented in Slaughterhouse, he distinguished Bradwell's case because "the divine ordinance" and "the nature of things" decreed "a wide difference in the spheres and destinies of man and woman." He found the "domestic sphere" the proper one for women and added:
 

The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.¹⁶⁰
    Such language, also used by the Illinois court in Bradwell's case, did not apply to Lavinia Goodell of Janesville, ¹⁶¹ Wisconsin, an unmarried woman. Easily admitted to the bar at the trial court level, she successfully practiced law for a year before applying to the Wisconsin Supreme Court in order to argue a case before it. A State Assistant Attorney General appeared with her to read her  petition for admission.¹⁶²

    Chief Judge Ryan denied Goodell's application in a long opinion that made Justice Bradley in Bradwell's case sound progressive. On the rights of unmarried women, he said: "it is public policy to provide for the sex, not for its superfluous members; and not to tempt women ... by opening to them duties ... unfit for female character."¹⁶³ In Goodell's case as in Bradwell's, the legislature responded to the court's recalcitrance by passing a law allowing women to practice in all the state's courts. Over Judge Ryan's dissent, the Wisconsin Supreme Court admitted her.¹⁶⁴

    Remedial legislation also followed the third case standing as a barrier to Clara Foltz when she went to the courts. Belva Lockwood was a woman of remarkable persistence. When denied entrance in 1869 to law school at the Columbian College (later George Washington) because "her presence would distract the young men," she tried unsuccessfully to attend Georgetown and Howard. Finally the newly formed National University Law School admitted her, and she completed the course in 1873. But the school would not disgorge her degree. She wrote to the ex-officio President, Ulysses S. Grant, at the White House: "If you are the President [of the school] ... I demand my diploma. If you are not its President, then I ask that you take your name from  its papers, and not hold out to the world to be what you are not."¹⁶⁵ The President did not reply, but a few days later she received the degree and immediately joined the bar.

    Like Clara Foltz, Lockwood had clients practically at once. Her career went smoothly until 1874, when she took an important case against the government, requiring her to appear in the Court of Claims. Refusing her admission, the court held that women's "legal position is interwoven with the very fabric of society," and "immemorial usages ... forbid such a far-reaching change."¹⁶⁶

    Lockwood next sought to join the bar of the United States Supreme Court, thinking she would then bring a case there against the Court of Claims, but again she was refused.¹⁶⁷ Finally, in a fight spanning several sessions, she obtained legislation from Congress opening the federal courts to women lawyers.¹⁶⁸ In March, 1879, she used "her bill" to become the first woman member of the Supreme Court Bar.¹⁶⁹

    When she lobbied for her bill and when she sued Hastings, Clara Foltz in California was fully aware of the cases of these three women. Their example may have convinced her to obtain legislation before seeking bar admission, despite the inconvenience of traveling to Sacramento. Going to the legislature first was risky because failure there would have weakened a court case. Yet, legislatures had proved more receptive than courts to women's claims in nineteenth century America. As it happened, the Woman Lawyer's Bill was central to the success of Foltz's suit against Hastings.

    Foltz's first move in court met a negative response. When she presented her bar admission certificate, Judge Morrison of San Francisco refused to honor it. She requested that he appoint a committee to examine her for admission, which he could hardly refuse.¹⁷⁰ Thus, in late January she underwent a second bar examination, like the one she passed earlier in San Jose. Foltz's hometown newspaper commented that this procedure was "not particularly gallant to the lady, nor indicative of much respect for a sister Court."¹⁷¹

    As soon as she passed the examination, Foltz gave full attention to her petition for a writ of mandamus against the Hastings directors. At the same time, Gordon brought an original action in the California Supreme Court.¹⁷² These were hectic days in which the women prepared documents of a sort neither had ever seen before. The press attention was constant. Foltz later remembered this aspect of the affair with pleasure: "My name was on every  tongue; the daily papers and the monthly magazines were filled with flattering mention of my exploits."¹⁷³

    Foltz filed her petition on February 10, 1879. Several days before the hearing, set for February 15, Gordon wrote to her parents at Lodi about the status of their cases:

My darling Ma and Pa:
    Little Trella [Clara's oldest child, 13] came home last night and brought me your good letter ... [and] clothes. I never needed clean clothes so much.... You will see by the papers that my application for writ of mandamus has been denied by the Supreme Court, but Mrs. Foltz's application to the lower court was granted and the writ is returnable Friday a.m.
    I want to be there with her, tho it is not at all probable they will come to trial. They intend to make us all the trouble and delay possible but I really believe we shall win in the end....¹⁷⁴
 
    As Gordon predicted, the Hastings lawyers engaged in delaying tactics; they moved for a continuance, which Judge Morrison granted along with the request that Gordon's case be consolidated with Foltz's.¹⁷⁵ Reporting on their first joint appearance in court, the newspapers carried the first of many fashion-page-style accounts of the impression they made:
 
Mrs. Foltz, with yellow hair, crimped and plaited, and Mrs. Laura deForce Gordon, with dark brown hair, in Coke-upon-Lyttleton curls down her back, sat at the bar table, and the former evinced her knowledge of Court practice by answering "Ready." However, an aged masculine attorney asked the Court that the hearing of the motion go over till next Friday....¹⁷⁶
    On the next Friday, February 21, Hastings counsel again sought a postponement. "The lady opposed the delay but neither her argument nor her tears availed": the Judge gave the distinguished gentlemen the weekend, until Monday, February 24.¹⁷⁷ Clara Foltz did cry in court--tears of frustration, and perhaps rage. Delay was devouring her study time; six weeks of the semester had already passed. Soon it would be too late to catch up in the coursework.

    Yet even as the passage of time undermined any personal advantage Foltz could gain from victory, the women's suit had important consequences in the Constitutional Convention, meeting in Sacramento. In response to developments in the case, the convention delegates added to the new proposed constitution two provisions on women's employment and education. The story of their passage set against the background of California history in the 1870s requires a more complete discussion than is possible here, but a brief account is in order. These unprecedented constitutional clauses were not least among the laurels Clara Foltz and Laura Gordon gained in their joint efforts to become California's first women law students and lawyers.

    The first continuance of the Foltz case showed that Hastings meant to fight the women's suit. Immediately after this court proceeding, the Convention adopted without amendment or debate a section providing:
 

No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation or profession.¹⁷⁸
This was the very first provision in any American constitutional guaranteeing women equal rights in the public arena.¹⁷⁹

    Though it lacked legal force before ratification, the constitutional clause nevertheless added weight to the Foltz-Gordon argument about the absurdity of  allowing women to practice law but not to learn it. Its passage demonstrated that the opening of careers to women was not a sport of the 1878 legislature. Once ratified, it secured the right to practice law against "the caprice of future legislatures,"¹⁸⁰ which might repeal the Woman Lawyer's Bill.

    The Convention acted again to support the women immediately after their case against Hastings was argued, and before it was decided. In another first for the constitution of any American jurisdiction, the delegates adopted a provision that:
 

No person should be debarred admission to any of the collegiate departments of the university on account of sex.¹⁸¹
    When the clause was offered, one member objected to it as unnecessary since both sexes were already taught at the University. But the clause's sponsor responded that "recent history" showed its "necessity."¹⁸² The Convention adopted that clause immediately by a vote of 103 Ayes to 20 Noes.¹⁸³

    The "recent history" of which the delegate spoke was the highly publicized argument in the Hastings case on February 24, 1879. Many newspapers carried front page stories the next day, covering in extraordinary detail the arguments  and the scene.¹⁸⁴ The room was filled with lawyers who "were much interested and amused at THE NOVEL SPECTACLE of women arguing at the bar of justice."¹⁸⁵ Many women supporters also attended, described variously as "prominent adherents of the woman suffrage movement" and as "the aggressive female sex." The audience was supportive in more than presence. A "beam of pleasure seemed to float over the place when a point was made in favor of the ladies, and a sense of disappointment at anything that told against them."¹⁸⁶

    When the subject was women, much of the story was, as always, about dress and hair. Thus is preserved Clara Foltz's wonderful attire:
 

[She wore] a business suit of black silk, trimmed with velvet. A scarf or band of black lace was passed around her neck and crossed in front, over which peeped a standing collar of white linen of the Piccadilly pattern. Her wrists were ornamented with fringes of black silk, partially concealing hands not lacking in bone and muscle, and with bands of black velvet fastened with golden butterflies. At her throat was a modest gold brooch. Her profuse hair was done in braids, which fell backward from the crown of her head like an Alpine glacier lit by the setting sun.¹⁸⁷
    Two of Hastings Board of Directors, Thomas B. Bishop and Delos Lake, represented the school; their clothing was not reported. These giants of the San  Francisco Bar were both very rich and quite famous in the state.¹⁸⁸

    Responding to the drama of the situation, one reporter enlivened his account of Foltz's opening argument: "she spread out a dozen or more ponderous volumes, raised her lithe figure to its full proportions, swept an eagle eye about the Courtroom, bestowed one earnest glance on the shrinking Judge, and then plunged head foremost into her argument."¹⁸⁹

    Dividing her straightforward presentation into three parts, Foltz first argued that she met all the requirements for admission to Hastings; she then argued that Hastings was part of the University of California, which welcomed women students.¹⁹⁰ Finally, she urged that given the recent passage of the Woman Lawyer's Bill, it would be an "anomaly to enact that women might practice in all the law courts of the state, and yet in the same session establish a law school from which they were excluded."¹⁹¹

    Foltz continued by responding to the main argument in the Hastings papers that the University's policies did not govern the college of law and that affiliation was for degree-granting only. Opposing counsel claimed in their brief  that the law school was the creature of a special trust established by Judge Hastings' loan to the state, upon which he was to receive interest. Only its own Board of Directors controlled the Hastings College of the Law.

    Foltz answered that even if such a self-governing non-corporate trust was intended, allowing the institution to discriminate against women violated public policy, in part because (and Sarah Knox-Goodrich must have loved this) all inhabitants of the state, irrespective of sex, were taxed to pay the interest on Judge Hastings' donation. The female property owners of her own Santa Clara County paid taxes on two million dollars; those of Alameda County, Laura Gordon's business base, on four million dollars.

    The law was on her side, especially since the 1878 Act creating Hastings gave no hint that the law school stood in a different relation to the University than any other department. There was little occasion for Foltz's wit or for eloquence in her opening remarks, but without exception, the news stories agreed that she did well, speaking with "force and polish."¹⁹²

    Foltz spoke for a half hour and then "gracefully gave way to her opponents." To the surprise of Foltz and Gordon, since the point was not in the Hastings brief, counsel for defendants raised the argument that women should not be lawyers at all. Somewhat awkwardly, Bishop worked his remarks into a legal framework by urging that the Board had exercised its discretion in finding that law study was not proper for women, and then saying that courts may not interfere with discretionary acts.

    Relying heavily on Judge Ryan's unrestrained opinion in Lavinia Goodell's case,¹⁹³ Bishop read these words in his own elocutionary style.¹⁹⁴
 

The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibilities, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife....
    [Law] has essentially and habitually to do with all that is selfish and extortionate, knavish and criminal, coarse and brutal, repulsive and obscene, in human life. It would be revolting ... that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice; all the unclean issues, all the collateral questions, of sodomy, incest, rape, seduction,  fornication, adultery, pregnancy, bastardy, legitimacy, prostitution, lascivious cohabitation, abortion, infanticide, obscene publication, libel and slander of sex, impotence, divorce--all the nameless catalogue of indecencies.
    Reverence for all womanhood would suffer in the public spectacle of woman so engaged....¹⁹⁵
    The spectacle was Bishop himself, reading the whole of Judge Ryan's lengthy disquisition on what a mocking reporter labeled the "various difficulties, disabilities, inabilities, objections, troubles and impossibilities of a woman's practicing law."¹⁹⁶

    Delos Lake continued in the same vein, first excusing what might appear to be a lack of gallantry, and complimenting Foltz on "her grace and beauty." He raised the argument previously invoked against the women in the legislature: "lady lawyers were dangerous to justice inasmuch as an impartial jury would be impossible when lovely woman pleaded the case of the criminal." Suavely, so he surely thought, he added that this very case proved his point since "the question involved was one of dry law ... and yet ... if this lady should go before a jury with as good a speech as she made in her own behalf, she would have an advantage of which the Bar might well complain."¹⁹⁷

    In answer to the women's main point that the same legislature created Hastings and enabled women to practice, Lake argued that the Hastings bill passed first. Thus, he said, there was no intent to include women in the law school.

    Clara Foltz rose in rebuttal. In her opening remarks, she followed her idea of a male lawyer: careful and correct, but also technical and tedious. Her opponents had opened the door for passionate persuasion, and she gladly entered. First, she chided "learned and prolix" counsel for going "all through the social scale to get argument," when the issues was "a strict question of law." Then she addressed defendants' claim that, as she put it, "broader education would make woman less womanly" and thus "destroy our homes." In words that she was to repeat for half a century, she cried: "That is not the legitimate effect of knowledge of any kind. On the contrary, a knowledge of the law of  our land will make women better mothers, better wives, and better citizens."¹⁹⁸

    Finally, Foltz treated the 1876 opinion in Goodell so disdainfully that one reporter thought it must be a very old case. The audience, he wrote, "quaked somewhat at the disregard which the fair advocate manifested for the musty old records of by-gone ages, and the sarcasm with which [she referred to] the opinion of some ancient wearer of the ermine."¹⁹⁹

    Next, Laura Gordon, with the permission of the court to speak though she was not yet admitted to the bar, reiterated their basic arguments and "added some that were new and ingenious," notably, a correction of Lake's legislative history. Emphasizing that she had been in Sacramento, she said that the Woman Lawyer's Bill had been introduced before the Hastings bill, although the latter had passed first. In fact, she added, the Hastings legislation would not have succeeded without the backing of the women's supporters.²⁰⁰

    She argued that "when Judge Hastings gave his money he could not fail to know" of the relationship of the law school to the co-educational university. In the summary of one observer: "she quoted glibly from the law books to show the intention of the lawgivers, the powers of the Regents, [and] the subjection of the branches [of the University] to the parent institution."²⁰¹

    At the day's end, Delos Lake commented that if the "fair ladies" were to be lawyers, "he would rather have them as associates than as opponents."²⁰² Jovially, Judge Morrison suggested a partnership.

    Clara Foltz acquitted herself brilliantly, yet she was disappointment by the opposition of the great men of the bar. Her idealism about proper professional  conduct was undiminished years later when she wrote of the Hastings lawyers: "[T]hey strove to defeat the letter of the law and to overcome its intent and spirit by arguments unworthy of the profession they adorned."²⁰³

    Ten days after the argument, Judge Morrison issued an opinion with a writ directing the women's admission. Its curt tone validated Foltz's feeling that the opposition had neither law nor justice on its side. After discussing the University's admission policies, and the 1878 legislation creating Hastings, the court stated:
 

When the Legislature designates who shall be admitted the Directors have no power to superadd the qualifications ... when arbitrary regulations are made which are not for the good of the institution, the Court will not hold them to be valid.²⁰⁴
He made short work of the opinion in Goodell's case:
 
[Judge Ryan] points out numerous reasons why women should not try cases in court. There are, perhaps, many things ... which would disgust a woman, but the Court has nothing to do with that. It is sufficient for the Court that the Legislature authorizes women to practice law. That Act was pending at the [same] time [as] ... the Act to establish Hastings.²⁰⁵
In addition to this strong citation of the Woman Lawyer's Bill, Judge Morrison relied on the work of the Constitutional Convention, finding the "intention ... to put women on the same footing ... as men" and to give them "the same facilities to practice law that males possess."²⁰⁶

    In defeat, the Hastings Board remained ungracious, and Clara Foltz  thought, unethical. They decided almost immediately to appeal to the California Supreme Court, despite Judge Hastings' acknowledgement that the women, supported now by the court's cogent opinion, were correct on the law.²⁰⁷ Foltz's bitterness was unrelieved many years later as she wrote: "they knew that though I had much law I had little money, and they hoped ... to wear out my courage or cool my ardor."²⁰⁸

    The appeal turned Clara Foltz's personal victory to ashes. It would be months before the case could be briefed, argued and decided in the supreme court, and the Directors obtained a stay of the writ directing her admission until then. She had spent her "scholarship" from her friends and family to study in the city. After trying for a few weeks to establish a practice in San Francisco, she returned to San Jose where she had a network that assured her a living at her chosen profession.

    Before her departure in early May, Foltz wrote to Laura Gordon, who was back in Lodi:
 

I am all packed up ready to leave for home and away from the scene of so much storm and conflict. I have been very happy in your society, my own sweet friend; and I have formed pleasant acquaintances that will be life long pleasure, but amid my sweet joy, I had mingled the bitter dregs of heartache.²⁰⁹
 
    As the letter continues, she cherishes a moment of respite, and rises from it with her typical optimism:
 
I slept this morning until ten, then went to office, got my letter and papers and came back to Hotel and am enjoying a world of rest here in this quiet and pleasantly furnished room at the Russ. I think I will stay here until day after tomorrow. Then I go home to my nest of  young ones and study for dear life. The future seems just brighter than ever before and I can believe that the good angels are shaping it all to suit themselves.²¹⁰
    Back in San Jose, Foltz prepared her appellate argument, practiced law, lectured, worked for ratification of the new California Constitution, and with Laura Gordon and others, planned a great suffrage convention for the fall. She also prepared to join the bar of the state supreme court so that she could argue her own case when it was reached. "Worn and spent with the heavy cares of my growing children," she wrote of this strenuous period, "I ... studied night and day amid the noise of my populous nursery."²¹¹

    On December 6, 1879, Foltz passed her third rigorous bar examination, this time before the supreme court.²¹² Several weeks later, she argued Foltz v. Hoge. Afterwards, a justice who knew her from her San Jose days told her: "You are not only a good mother; you are a good lawyer. I have never heard a better argument, for a first argument, made by anyone."²¹³

    In the supreme court, Judge Morrison's forceful opinion in her favor gave Foltz the advantage.²¹⁴ In late December, the high court issued its opinion, making short work of the Hastings case. The court implicitly relied on the Woman Lawyer's Bill pointing out that the school existed to train lawyers and that women were admitted to all courts "upon the same terms as men."²¹⁵  The doors of California's only law school were finally opened to Clara Foltz,²¹⁶ but it was too late. The moment has passed when she might enjoy the pleasures of learning and reflection, protected from clients' demands and her own economic needs.²¹⁷ She was leaving for Sacramento in January to be a clerk, the modern equivalent of counsel, to the Assembly Judiciary Committee, the first woman to hold this lawyer's job.

    But as Foltz herself often noted, her suit blazed a path for all women. The first woman to graduate from Hastings was Mary McHenry in 1882. She was chosen to give a graduation address and Clara Foltz wrote congratulating her:
 

[Y]ou scored one for your sex in carrying off the honor of an institutional that but recently scanted the idea of a woman aspiring to be a lawyer.... As a sort of mother of the institution [citing Foltz v. Hoge], I rejoice in your success ... that at the first public graduating exercises of Hastings College of Law, a bright and beautiful young girl comes off with the honors of the class.²¹⁸
    Through a career of fifty years filled with memorable cases and notable events, Foltz always returned to the Hastings lawsuit as her finest moment.²¹⁹ Of all victories, the first is the sweetest, but beyond this I think she found in its memory the best images of herself: brave, idealistic, hopeful. CONCLUSION

    Access to professions was one of the great early goals of the women's rights movement.²²⁰ Vocations such as teaching and even medicine saw a steady increase in the numbers of women from mid-century on, but the legal profession was second only to the ministry in its resistance. As the paradigmatic public profession, law had little connection with the domestic sphere, or with the ideal world of nurturance and tender feeling that nineteenth century women were supposed to inhabit.²²¹ Nothing could be more inconsistent with the social image of the true woman than the type of the good lawyer: bold, brilliant, aggressive, incisive, and ruthless in the interests of justice or of a client.

    On the one hand, lawyers were the architects of government, the spokesmen of politics and philosophy--Tocqueville's American aristocracy. Law at its best was conceived as a scientific, highly technical skill. Paradoxically co- existing with these ideas was the picture of law as a dirty business, involving the rankest deeds and basest motivations, and lawyers as the amoral hired guns of wealth and power.

     Whether women were found unfit for the law or the law unfit for women, the result in the early contested cases was denial of access to the profession. The opposition was bitter, broad and so deep that Clara Foltz "sometimes felt wholly discouraged, disheartened and altogether distraught."²²²

    She overcame such feelings partly through her commitment to the women's movement.²²³ Its purposes were her inspiration, its adherents her allies. Yet the women's movement did not provide her, or she the movement, with a coherent, sustaining vision. Clara Foltz's focus was on the solution of immediate problems rather than on harmonizing her results, exploring root causes, or creating theories. She was, in short, a lawyer.

    Practicing lawyers, like politicians, mainly deal with persuasion--what will sell, and with the possible--what will work. Thus, their arguments seldom descend from theory, but rather arise as the inventions of necessity. Foltz's call was to action, not reflection; she wrote partisan briefs, not philosophy.

    What sustained Clara Foltz was not a lucid image of a better world in the future, but being "the first woman" in her present. As lonely as it is to be first, as much as it draws attack, it has one towering advantage. There is no standard for comparison, and thus no room for failure. Being first is success itself.

_____________________________

^* This article, other than the Introduction, has been reprinted from Barbara Allen Babcock, Clara Shortridge Foltz: "First Woman," 30 ARIZ.L.REV. 673 (1988). Copyright (c) 1988 by the Arizona Board of Regents. Reprinted with permission of the publisher and the author.

^** Ernest W. McFarland Professor of Law, Stanford University, LL.B. 1963, Yale University A.B. 1960, University of Pennsylvania. Professor Babcock was the first woman to head the Public Defender Service in Washington, D.C., the first woman professor at Stanford Law School, and the first to hold an endowed chair.
     I wish to thank the dedicated and creative Stanford law students whose research assistance was made possible by a bequest from the Dorothy Redwine Estate: Judith Carrithers, Mary Erickson, Frances Scibelli, Linden Joesting, Lisa Lindalef, Catherine Ruckelshaus, Paula Solario, and Karen Zobell.
     The staff of the Stanford Law Library has offered continuous support, and has been imaginative and proficient in locating uncommon materials. A grant from the National Endowment for the Humanities allowed me to accept a fellowship from the Stanford Humanities Center, where much of this Essay was conceived and completed. I appreciate also the valuable support and suggestions of the Stanford Biographer's Seminar. Final thanks are to Thomas C. Grey, colleague, husband, and world-class editor.
 

¹ Clara Shortridge Foltz, The Struggles and Triumphs of a Woman Lawyer, THE NEW AMERICAN WOMAN [hereinafter Struggles].
 
² Struggles, supra note 1, Oct. 1916.
 
³ Id., Feb. 1918.
 
⁴ Other major secondary sources on Foltz's life include Barbara A. Babcock, Reconstructing the Person: The Case of Clara Shortridge Foltz, in REVEALING LIVES: AUTOBIOGRAPHY, BIOGRAPHY AND GENDER 131-40 (Susan Groag Bell & Marilyn Yalom eds., 1990) [hereinafter Babcock, Reconstructing the Person], Barbara A. Babcock, Clara Shortridge Foltz: Constitution-Maker, 66 IND.L.J. 849 (1991) [hereinafter Babcock, Constitution-Maker]; Barbara A. Babcock, A Place in the Palladium: Women's Rights and Jury Service, 61 U.CIN.L.REV. 1139 (1993); Barbara A. Babcock, Western Women Lawyers, 45 STAN.L.REV. 2179 (1993). Corinne Gilb wrote the Foltz entry in NOTABLE AMERICAN WOMEN: A BIOGRAPHICAL DICTIONARY, 1607-1950, at 641 (Edward T. James et al. eds., 1971) [hereinafter NOTABLE AMERICAN WOMEN]. Two contemporary summaries of her life work appear in 1 NATIONAL CYCLOPEDIA OF AMERICAN BIOGRAPHY, CURRENT VOLUME C 308 (1930) and OSCAR T. SHUCK, HISTORY OF THE BENCH AND BAR OF CALIFORNIA 828 (1901). For numerous newspaper, periodical, and other contemporary articles, see sources cited in Babcock, Constitution-Maker, supra at 849. For a discussion of events in Foltz's later career, see generally Mortimer D. Schwartz et al., Clara Shortridge Foltz: Pioneer in the Law, 27 HASTINGS L.J. 545 (1976). See also Virginia Elwood-Akers, Clara Shortridge Foltz: California's First Woman Lawyer, 28 PAC.HISTORIAN 23 (1984); Nicholas Polos, San Diego's "Portia of the Pacific," 2 J.SAN DIEGO HIST. 185 (1980).

⁵ Because admission to the Bar was governed by the states, through their courts and legislatures, there are many "first-women" stories, and of course contentions about who was actually first. Was it the first woman to join the highest court or any court, for instance, who has the ultimate claim to the top spot?
    In addition to the citations found in the articles and essays of this collection, I want to note CALLED FROM WITHIN: EARLY WOMEN LAWYERS OF HAWAII (Mari Matsuda ed., 1992); VIRGINIA G. DRACHMAN, WOMEN LAWYERS AND THE ORIGINS OF PROFESSIONAL IDENTITY IN AMERICA (1993); Catherine B. Cleary, Lavinia Goodell, First Woman Lawyer in Wisconsin, 74 WISC.MAG.HIST. 243 (1991); Karen Tokarz, A Tribute to the Nation's First Women Law Students, 68 WASH.U.L.Q. 89 (1990) (Phoebe Couzins and Lemma Barkeloo).

⁶ 3 HISTORY OF WOMAN SUFFRAGE 751 (Elizabeth Cady Stanton et al. eds., 1881) (In six volumes covering the years 1848-1920. Volumes 1-3 were edited by Elizabeth Cady Stanton et al., volume 4 by Susan B. Anthony and Ida H. Harper; and volumes 5 and 6 by Ida H. Harper) [hereinafter HWS].

⁷Cummins, Clara Shortridge Foltz, SAN FRANCISCAN (circa 1883). A reprint of the Cummins article, undated and without a source for the reprint, is in a "Foltz Biographical" file at the California State Library, Sacramento. The ages of her children, mentioned in the article, place it at about 1883. Cummins, one of the leading women journalists of the West Coast, seems to have inspired Foltz's confidence and reports details of her marriage and divorce that are not included in later interviews and official biographical entries. Parts of the Cummins story about Foltz were widely reprinted in newspapers. See, e.g., SAN JOSE MERCURY, Oct. 15, 1884, at 2 n. 7. A second, extensive story with many personal details from her early life appeared in the San Francisco Post with subtitles such as A Self-Educated Toiler for Years; A Child Wife; A Young Mother; reprinted in SAN JOSE MERCURY, Aug. 20, 1882, at 5.

⁸ Cummins, supra note 7.

⁹ In interviews, Foltz often spoke of hearing Lucy Stone speak. See, e.g., A Sketch of Clara Shortridge Foltz, 13 WEST COAST MAGAZINE 42, 43 (1912). Stone's speech from which the quotes are drawn is reproduced in FEMINISM: THE ESSENTIAL HISTORICAL WRITINGS 106 (Miriam Schneir ed. 1972) [hereinafter FEMINISM].
    Another formative experience for Foltz was her three years of schooling at Howe's Academy in Mount Pleasant, Iowa. Samuel L. Howe was an abolitionist and a suffragist. 2 NOTABLE AMERICAN WOMEN, supra note 4, at 492 (Arabella Mansfield entry). See infra note 134 for discussion of Mansfield.

¹⁰ FEMINISM, supra note 9, at 107.

¹¹ The women's rights movement began in 1848 at Seneca Falls, New York. At the call of Elizabeth Cady Stanton and Lucretia Mott, about 300 people met and passed a Declaration of Sentiments, based on the Declaration of Independence, as well as twelve resolutions. 1 HWS, supra note 6, at 67-73; BARBARA A. BABCOCK ET AL., SEX DISCRIMINATION AND THE LAW: CAUSES AND REMEDIES 1, 1-4 (1975). Woman suffrage was included in the document, but was considered the most radical of the demands. The Seneca Falls convention set the terms of the discourse for almost a hundred years. Many of the arguments made by Foltz and her coadjutors in their California battles reflect the Declaration of Sentiments. See infra text accompanying notes 53, 100, 220.

¹² On the beginnings of the woman suffrage movement in California, see 1-3 HWS, supra note 6; contemporary newspapers, especially the San Jose Mercury and the San Jose Pioneer, and the women's rights press, notably the Woman's Journal (Boston), for the decade. The Woman's Journal was one of the earliest and the longest-lived of the suffrage newspapers.
    The analysis of early suffragism that I found most illuminating is ELLEN C. DUBOIS, FEMINISM AND SUFFRAGE: THE EMERGENCE OF AN INDEPENDENT WOMEN'S MOVEMENT IN AMERICA 1848-1869 (1978) and The Radicalism of the Woman Suffrage Movement: Notes Toward the Reconstruction of Nineteenth-Century Feminism, in WOMEN, THE LAW, AND THE CONSTITUTION (Kermit Hall ed. 1987).
    See also BABCOCK ET AL., supra note 11; R. Davis, Women's Republic (unpublished manuscript, available in California Historical Society); SANDRA L. MYERS, WESTERING WOMEN AND THE FRONTIER EXPERIENCE 1800-1915, at 213-37 (1982) (chapter 8, entitled Suffering for Suffrage).
    The text infra at notes 13-15 draws upon all the above listed sources.

¹³ The optimism that caused many women to believe that universal suffrage was near at this point was particularly pronounced in the West because Wyoming extended the vote to women in 1869, and Utah in 1870. See B. BEETON, WOMEN VOTE IN THE WEST: THE WOMAN SUFFRAGE MOVEMENT, 1869-1896, at 157-58 (1986).

¹⁴ For the standard descriptions of the split in the movement, see ELEANOR FLEXNER, CENTURY OF STRUGGLE: THE WOMAN'S RIGHTS MOVEMENT IN THE UNITED STATES 145-66 (1968); WILLIAM O'NEILL, EVERYONE WAS BRAVE: THE RISE AND FALL OF FEMINISM IN AMERICA 18-21 (Rev. ed. 1975).

¹⁵ 3 HWS, supra note 6, at 754. The early leader on the "National" side was Elizabeth Schenck, who attended the organizational meeting of that association in New York in May, 1869 and was appointed vice-president for California. Schenck, who wrote most of the California chapter for 3 HWS, started suffrage meetings in her parlor immediately on her return from that convention. Laura deForce Gordon was a strong voice joining Schenck for affiliation with the more radical of the organizations. See infra notes 24, 200.
    On the "American" side, Reverend Charles Ames and his wife Fanny were the leaders. Fanny Ames attended the founding convention of the American society in Cleveland in 1869. The Ames couple soon withdrew from the suffrage cause in California, "when its loyalties proved to be not with the Lucy Stone organization but with the rival movement." 1 NOTABLE AMERICAN WOMEN, supra note 4, at 39-40 (Fanny Baker Ames entry). Reverend John Collins, a noted abolitionist, and his wife were also early suffrage activists in California who dropped away, apparently because of the schism. 3 HWS, supra note 6, at 754- 55; Davis, supra note 12, at 224.
    DuBois argues, against the general historical view, that the split did not significantly weaken the suffrage movement. When looked at from the "perspective of the growth of feminism ... the political conflict ... significantly advanced the movement, liberated it from its subservience to abolitionism, and propelled it into political independence." DUBOIS, supra note 12, at 200-01.
    Support for the DuBois thesis is found in the letter of a correspondent for the Woman's Journal, the organ of the American Association, which reported that separate suffrage societies had formed in California and asked: "Why should it weaken our cause at this stage to have organizations that naturally range themselves on the sides of conservatism on the one hand and radicalism on the other? ... [I]n California ... they believe that more converts can be made by both parties by separation than by union...." H.M. Tracey Cutler, Letter from California, WOMAN'S J., (circa 1874) at 371. See also infra note 40.

¹⁶ "[L]ong before ... the evening session, the hall in every part, platform, floor and gallery, was crowded, and large numbers were unable to gain entrance." 3 HWS, supra note 6, at 753 (quoting "The San Francisco dailies").

¹⁷ 2 NOTABLE AMERICAN WOMEN, supra note 4, at 68 (Gordon entry); Obituary, WOMAN'S TRIB., May 26, 1907, at 2-3. Gordon's activities are frequently reported in 3-4 HWS, supra note 6.

¹⁸ Davis, supra note 12, at 203.

¹⁹ 3 HWS, supra note 6, at 752.

²⁰ RUTH B. MOYNIHAN, REBEL FOR RIGHTS: ABIGAIL SCOTT DUNIWAY 85 (1983).

²¹ Duniway is well recorded in history, most recently by MOYNIHAN, id. Her activities are covered in suffrage histories, and her career and thought can be followed through the pages of her newspaper, New Northwest, published from 1871 to 1887, and her autobiography, ABIGAIL S. DUNIWAY, PATH BREAKING: AN AUTOBIOGRAPHICAL HISTORY OF THE EQUAL SUFFRAGE MOVEMENT IN PACIFIC COAST STATES (1914). See generally HELEN K. SMITH, THE PRESUMPTUOUS DREAMER: A SOCIOLOGICAL HISTORY OF THE LIFE AND TIMES OF ABIGAIL SCOTT DUNIWAY (1974).

²² The most important difference in temperament was that Duniway was subject to rages while Foltz was, at least outwardly, extraordinarily even. On the public platform, their message was much the same, but their styles were dissimilar. Abigail Duniway was down-home and anecdotal, substituting "force for excessive polish." MOYNIHAN, supra note 20, at 95. Clara Foltz was dramatic, elevated and abstract and delivered her lectures from written texts. The two women even had a hero in common: Colonel Edward Baker. Duniway wrote an epic poem about him and Foltz had a lecture about him in her portfolio.

²³ Duniway's store brought her into contact with numerous other women, and she discovered that many of her customers endured as much subjection as the poor widows and other housewives to whom she gave out her sewing.... Women throughout the Williamette Valley began coming to Mrs. Duniway as a benefactor and woman's advocate, simply because of the nature of her work. She made trips to San Francisco for the latest fabrics and styles, and accumulated ideas too.
Id. at 80-81.

²⁴ Moynihan records that "Gordon ... told Duniway that 'Eastern invaders' were attempting to undermine her leadership," and says Gordon was referring to the "National" and "American" association split. Moreover, says Moynihan, the word "Easterners," "often implied women of New England religion and gentility who had been trying to impose their refined, cold-water life-style on the West throughout the nineteenth century." Id. at 86.

²⁵ They were more successful at arousing interest in suffrage than in gaining adherents for their association. Anthony, in particular, was not well- received by the public on this trip because she became embroiled in the great "Laura Fair affair." Laura Fair was the disappointed mistress of a well-known lawyer, A.J. Crittenden, who allegedly promised to marry her. When he reneged, she killed him. The more radical suffragists, notably Emily Pitts of the Pioneer, attended the trial, unusual in itself for women to do, and befriended Fair, arguing that it was unjust for a woman to be judged in an all-male system. In one of her early lectures in California, Anthony said: "if all men had protected all women ... you would have no Laura Fair in your jail tonight." Her reference to Fair caused the worst press notices of her suffrage career. IDA H. HARPER, THE LIFE AND WORK OF SUSAN B. ANTHONY 391-92 (1898), KENNETH CHURCH LAMOTT, WHO KILLED MR. CRITTENDEN? 142, 284 (1963).

²⁶ Cummins, supra note 7. Foltz arrived in Oregon after what she later described as "a fortnight's detention in the snow blockage (a serious detention to us, but one upon which the pioneers of Oregon would smile)." NEW NORTHWEST, Sept. 17, 1875, at 3.

²⁷ Letter from Wells Drury to Governor Markham of California (Apr. 10, 1891) (on file in the archives of the California Secretary of State, Sacramento) (recommending Foltz's appointment as a Notary Public).

²⁸ Letter from Oregon, RECORD-UNION (Sacramento), Feb. 25, 1879, at 1. The anonymous correspondent wrote about Foltz at the time of the Hastings suit when her fame as California's first woman lawyer was spreading. Of Jeremiah Foltz in early Oregon days, the correspondent noted that when Clara arrived he was clerking at a store, was unpopular, and "not of much force and whatever became of him I cannot tell." Id.

²⁹ SHUCK, supra note 4, at 828. Shuck was the biographer of 19th century Californians and wrote several volumes collecting largely laudatory, though often revealing, articles.

³⁰ NEW NORTHWEST, Sept. 17, 1875, at 2. The letter does not mention the reason for the move. Foltz noted that when she last wrote, "I did not dream of changing my place of residence so soon." Id.
    Several years later, Foltz told Duniway that the arrival of the New Northwest "reminded me in every line of the lovely Oregon home that for a few fleeting years was mine, and of the friends that there labor for the advancement of human rights." She continued by assuring Duniway that she promoted "our paper" as the best "published on the Pacific Coast, not even excepting the Mercury of this city." NEW NORTHWEST, June 15, 1877, at 2.

³¹ One of Foltz's other activities during this period was as a temperance worker, work she also did in Oregon. By the time she arrived in San Jose, however, she viewed suffrage as "the great issue on which all other reforms depend." Letter from San Jose, NEW NORTHWEST, Sept. 17, 1875, at 2. While she used anti-liquor arguments to promote the ballot and argued that women lawyers would be more sober and industrious than men, temperance was not one of her main concerns at this time.

³² See infra notes 48, 113. I tell the story of Foltz's divorce in BABCOCK, Reconstructing the Person, supra note 4.

³³ NEW NORTHWEST, Sept. 17, 1875, at 2.

³⁴ 3 HWS, supra note 6, at 765-66.

³⁵ Id.

³⁶ NEW NORTHWEST, Apr. 6, 1877, at 2.

³⁷ Knox-Goodrich was a frequent contributor to the Women's Journal, the San Jose Mercury, and the New Northwest, as well as transient women's rights publications like Marietta Stow's Women's Herald of Industry. Her letters are thoughtful and persuasive. When Laura Gordon, in 1881, was gathering material for The History of Women Suffrage, Knox-Goodrich sent her an undated clipping from the San Jose Mercury in 1874, of which she was particularly proud. It makes a convincing case for suffrage, concluding by citing John Stuart Mill. Letter from Sarah Knox-Goodrich to Laura Gordon (1881), Gordon papers (on file at Bancroft Library, University of California) [hereinafter Gordon papers].
    In her 1877 annual protest against "taxation without representation," Knox- Goodrich employed an argument that became a mainstay in both the battles for suffrage and for women lawyers: "Special laws, or laws specially defined for one particular body of people on account of race, color or sex or occupation are class legislation which bears the seeds of death within itself." Annual Protest of Mrs. Knox, WOMAN'S J., May 5, 1877, at 141 (quoting from the San Jose Mercury) (emphasis added).

³⁸ J.P. MUNRO-FRASER, HISTORY OF SANTA CLARA COUNTY 768 (1881).

³⁹ WOMAN'S J., May 5, 1877, at 141.

⁴⁰ The California Law, WOMAN'S J., Apr. 18, 1874, at 128. The Santa Clara Suffrage Association was separate from either of the rival states societies. See supra note 15. The passage of this bill is evidence for DuBois's thesis that the division into separate societies was not necessarily harmful to the suffrage cause. Id. Sarah Knox was reported in the Woman's Journal in the early 1870s as being one of the group that sided with the Stone-American society, and split off from the original suffrage organizers. See, e.g., CALIFORNIA CORRESPONDENCE, Feb. 11, 1871, at 48. However, she seems to have given her time and money without discrimination to whoever had a suffrage project going at the moment. Like her mentor, Clara Foltz apparently did not engage the division between the national societies as it played out in California, although she greatly admired Anthony.

⁴¹ 3 HWS, supra note 6, at 765. An essayist in 1888 described her role in this way: "For years Mrs. Goodrich has devoted her time, her money, and her social influence to the cause of equal rights for women." H.S. FOOTE, PEN PICTURES FROM "THE GARDEN OF THE WORLD" 226 (1888).

⁴² See WOMAN'S J., May 5, 1877, at 141 (quoting the San Jose Mercury which reported: "The following ladies offer