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Woman Lawyer: The Trials of Clara Foltz

Woman Lawyer: The Trials of Clara Foltz

by Barbara Babcock

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Woman Lawyer tells the story of Clara Foltz, the first woman admitted to the California Bar. Famous in her time as a public intellectual, leader of the women's movement, and legal reformer, Foltz faced terrific prejudice and well-organized opposition to women lawyers as she tried cases in front of all-male juries, raised five children as a single mother, and


Woman Lawyer tells the story of Clara Foltz, the first woman admitted to the California Bar. Famous in her time as a public intellectual, leader of the women's movement, and legal reformer, Foltz faced terrific prejudice and well-organized opposition to women lawyers as she tried cases in front of all-male juries, raised five children as a single mother, and stumped for political candidates. She was the first to propose the creation of a public defender to balance the public prosecutor. Woman Lawyer uncovers the legal reforms and societal contributions of a woman celebrated in her day, but lost to history until now. It casts new light on the turbulent history and politics of California in a period of phenomenal growth and highlights the interconnection of the suffragists and other movements for civil rights and legal reforms.

Editorial Reviews

From the Publisher
"By rescuing Clara Foltz's story from relative obscurity, Babcock has provided a powerful reminder of women's strength in the face of adversity, their will to overcome difficulties, and, together with sympathique brothers-in-law, to work toward a system of justice accessible and fair to all. Women Lawyer should engage feminists of my era and my children's generation, and history buffs of any age; most of all, the book should amaze and inspire young women and public defenders just embarking on their lives in the law."—Ruth Bader Ginsburg, Stanford Law Review

"Stanford Law professor Barbara Babcock enriches our knowledge of women and the law in California history with this single volume, Woman Lawyer: The Trials of Clara Foltz. . . Chapters devoted to her writings in law reviews and model statutes investigate and reveal Foltz's thinking and her impact on public life. . . [R]eaders will find in them extensive detail and compelling analysis."—Brenda Farrington, Western Legal History

"For Barbara Babcock, a distinguished legal historian who is herself a feminist pioneer . . . this book is clearly a labor of love, but also of identification. Babcock recognizes that the women we write about are not always model heroines; they have flaws, make mistakes, and choose differently from what we might have chosen. She tells Foltz's tale with commendable dispassion, never too close to her subject nor too critical, yet with her own perspective 'as a trial lawyer, a public defender, a first woman, and a feminist' shaping the account in both the selection and treatment of her material."—Rosemary Auchmuty, Feminist Legal Studies

"Babcock is at her best in Woman Lawyer . . . giving just enough information to whet the appetite."—Tracy Thomas, Journal of American History

"The book is rich in history, and as entertaining and lively as its subject."—Barbara Kate Repa, California Lawyer
"[T]his is a magnificent book establishing Clara Foltz's foundational work for women's employment rights, female suffrage, and the public defender's office."—Gordon Bakken, H-Net Reviews
"Barbara Babcock is one of our leading legal historians. Woman Lawyer gives voice to Clara Foltz's long and fascinating life, making vivid her important contributions as a reformer, 'first' woman lawyer, and legal thinker. It will establish itself as a classic in legal studies, women's studies, and American biography."—Jill Norgren, City University of New York
"Beautifully written and meticulously researched, Woman Lawyer provides a riveting portrait of a remarkable woman and her journey as a mother of five to becoming one of the first women lawyers in United States. Yet even more memorable is this book's evocation of another frontier: California on the brink of its modern identity, forged in the middle of an economic challenge and intense racial and class conflict. Unflinching in its assessment of the temptations of demagoguery to the pioneering Clara Foltz, Barbara Babcock has produced a compelling book of enormous and enduring insight into how even gifted and visionary individuals navigate, shape, and reflect political and social contests."—Martha Minow, Dean of Harvard Law School
"Barbara Babcock's wonderful book only reinforces my view that being a public defender has been the most rewarding part of my professional career. Clara Foltz is my hero, and this book chronicles the challenges and achievements of perhaps the greatest public defender ever." —Charles Ogletree, Harvard Law School
"In her engrossing new book, Woman Lawyer: The Trials of Clara Foltz, Barbara Babcock acknowledges that, for her, full detachment from her courageous, charismatic subject—California's first woman lawyer—is not possible. In fact, full detachment from Clara Foltz is not possible for any of her 'daughters in the law,' and beyond the law. Foltz's struggles to gain a foothold in several all-male worlds, powerfully told, connect to so many of us, across the nation and across the centuries."—Judith S. Kaye, Chief Judge of the State of New York"
"Barbara Babcock conjures and brings to life a nearly-forgotten feminist hero. This account of Clara Foltz's rise from an under-educated farmer's wife to an icon of the California women's movement and a national public intellectual is both riveting and strangely familiar. That a single mother of five could have exploded into the hurly-burly world of California in the 1870s and—through mastery of the media, manipulation of her public image, and dogged hard work—become a national force for early progressive jurisprudence is astonishing. That women in 2011 could have no collective memory of Foltz is tragic. Babcock brings Foltz back to us with great tenderness and subtlety, reclaiming a place in American legal history for a working mother and national thinker who has much to teach us still."—Dahlia Lithwick, Senior Editor, Slate

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Woman Lawyer

By Barbara Babcock


Copyright © 2011 Board of Trustees of the Leland Stanford Junior University
All right reserved.

ISBN: 978-0-8047-4358-7

Chapter One

Becoming a Lawyer, 1878–1880

Telling Her Own Story

Clara Foltz often had to explain why she became a lawyer—to justify an occupation that many people thought wrong and even unnatural for a woman. In response to repeated questioning, she developed various accounts of "how a sensitive conventional young woman" broke out of woman's accepted "sphere." Foltz's stories, related in interviews, lectures, and her autobiographical writings, provide much of what we can know about the events and motives behind her dramatic entry into the California bar in 1878.

Foltz was born Carrie Shortridge in 1849 in Indiana, the middle child between two older and two younger brothers. Her father, Elias Shortridge, was a lawyer who apprenticed with Oliver Morton, subsequently the Civil War governor of the state, an important Unionist, and an early supporter of Abraham Lincoln. Shortridge left the law when, according to one of his stories, he won an acquittal for a guilty murderer. He turned to itinerant preaching in the "Campbellite" or "Christian" Church (today known as the Disciples of Christ) and then during the war became head of its congregation at Mount Pleasant, Iowa. Though the town was small (thirty-five hundred in 1860), it had a good road connecting it to Iowa Wesleyan University in Burlington and a railroad station that made it an agricultural and business center. Altogether, Mount Pleasant deserved its reputation as a prosperous and progressive community.

Sometimes Foltz started with Mount Pleasant days when telling why she became a lawyer. Her father, she would say, "delighted in his only daughter's talent for abstruse thinking" and sighed: "Ah, if only you had been a boy, then I would have trained you for the law." Foltz remembered that she "did not like this opinion of my father's." Her mother was alarmed at how Clara might respond to such comments and warned against telling the girl such things, because, she said, "one of these days she will take it into her head to study law, and if she does, nobody on earth can stop her." "Indeed that was prophecy!" Foltz would add. As she later told it, the young Carrie thrived in the aptly named Mount Pleasant. She attended Howe's Academy there from 1860 to 1863 and loved school. Years later, her teachers remembered her as "a bright, ambitious, hard-toiling girl," and Foltz herself recalled with pride that she mastered the first two books of Latin by the age of twelve.

The academy's founder (in 1841) and principal, Samuel L. Howe, was a classic mid-nineteenth-century reformer, of a kind often found in the small towns settled by idealistic believers in education and equality throughout the Midwest. He was an abolitionist, and his home was a station on the underground railroad for escaping slaves coming over the border from Missouri. A suffragist, he also believed in equal rights for men and women. Though coeducation was not widely practiced at the time, both Howe's Academy and nearby Iowa Wesleyan admitted women from their founding.

In the atmosphere of such a town, it seemed at least possible for a girl to think she might do great things. Another young woman from Mount Pleasant, Arabella Mansfield, who also attended Howe's Academy, would become the first woman lawyer in the United States. Years later, the two women from the same small community would meet at the Chicago World's Fair, both on the program at the first-ever nationwide meeting of female attorneys.

But by 1869, when Mansfield broke the sex barrier for the American legal profession, Carrie Shortridge had taken steps that would seem to have forever foreclosed any such pioneering role for herself. She had become Clara Foltz, was bearing children every two years, and was running a farm household. The story of her marriage was not one Foltz often told, though early in her career she shared it with at least two sympathetic interviewers. As she "drifted into young lady-hood," Foltz said, she shifted her ambitions from fame and glory to the traditional feminine dream of "a handsome, noble husband, who would cherish her and keep her sheltered from the unknown world in a happy little home. Against her parents' wishes and without their knowledge," she eloped with twenty-five-year-old Jeremiah Foltz, a good-looking Union Army soldier. Carrie Shortridge was fifteen.

Before she eloped with Jeremiah, however, Carrie left Howe's Academy and became a schoolteacher herself for almost a year in Keithsburg, Illinois. She never explained this move, though she often spoke with regret of her interrupted and "imperfect" education. Throughout her long career, it would both fuel and bedevil her aspirations to be a serious jurisprudential thinker and a successful practitioner.

Leaving the academy was probably connected with her father's expulsion from the Mount Pleasant church for heresy—which Foltz never mentioned either. Elias Shortridge apparently started preaching the doctrine of "soul-sleep," which holds that the spirit does not go directly to God upon death but has no conscious existence until the resurrection of the body at the Last Judgment. These views are heterodox according to most Protestant denominations as well as Roman Catholics. Since Shortridge "was a preacher of much more than ordinary ability, numbers were carried away by the strange doctrine," according to church history.

After being removed from the congregation, Foltz's father returned to his previous camp meeting and revival preaching, and the family moved to Keithsburg, Illinois. There, perhaps volunteering in a hospital near where she taught, the young girl met Jeremiah Foltz, who had left the Union Army because lumbago had disabled him. In her one extended account of her elopement, Foltz said that when she realized "the gravity of her course," she sorrowed most at disappointing her parents, for whom she held "childlike devotion." Nonetheless, at age fifteen, she became a woman "resolved to bend all the energies of her young being to marital happiness" and told herself, "I will be a perfect wife, as near as in me lies, and then all will be well." Foltz passed quickly over the eight years she spent on farms in Illinois and Iowa with Jeremiah, and the "little ones that came so fast."

Her firstborn was Trella Evelyn in 1866, then Samuel Cortland in 1868, followed by Bertha May in 1870. In 1871, David Milton was born and Jeremiah left for Oregon. He may have been intending to desert his family, but if that was so, he failed this time. An observer in Portland later wrote about Clara Foltz's arrival "in search of her husband" with "three little children tugging at her skirts and a babe in arms." Her parents and younger brothers migrated with her, and they were settled in Salem, the state capital, by 1872. There, Jeremiah sold feed and farm machinery, and Clara sewed dresses and made hats. She also took in boarders. When the legislature was in session, many of the members would stay with Clara Foltz because her table was lively and afforded, some said, the best talk in the state. To keep everything running, Foltz rose before dawn to care for a house full of men and children. Then she spent hours cleaning and washing, sewing and cooking.

At the end of one such day, as she sat mending by the fire, a boarder made her a costly present—the four volumes of James Kent's Commentaries on American Law, the American equivalent of William Blackstone's famous exposition of English law. "I wish you would take these and read them: I think you would make a good lawyer," he said. Foltz often told this tale about her first professional recognition when she explained why she had taken up the study of law.

In an 1882 interview, she related less pleasant personal experiences in Oregon that also drew her to the law. When the sheriff seized her sewing machine to pay Jeremiah's debts, a lawyer friend recovered it by arguing that the machine was a basic household good (like a cookstove) and thus not subject to attachment. When the same thing happened again, Foltz represented herself and added the argument that her sewing machine was a "workman's" tool used to support the family—a separate statutory exemption.

In other versions of the story of how she became a lawyer, Foltz would skip the girlhood dreams, the Iowa farm, the Oregon boardinghouse and go straight to San Jose, California, where the Shortridges and the Foltzes moved around 1874, and where in 1876, Foltz delivered her last child, Virginia Knox. They had a neighbor who kept "a fine Jersey cow" in the backyard adjacent to theirs. "The heavy rains of winter had softened the rich deep soil and the cow waded in mud to its knees," Foltz later wrote. She felt that these unsanitary conditions jeopardized "my children's health, as also that of my neighbor." When neighborly requests failed, Foltz looked up the law and learned that a cow maintained in these conditions was an illegal nuisance. She called in the health department, which sent an officer "forthwith to lead the cow over to the common and stake her fast." As Foltz told it, the story revealed both the power of the law and its limitations. "In vain I sought to renew the former pleasant relations with the neighbor" (and the milk donations for the children), "but she was obdurate and unforgiving."

Foltz also sometimes said she became a lawyer in order to help other women protect their families "when the shadow of death falls upon the head of the household." This followed from a life-altering experience of her own—Jeremiah's successful desertion in 1878, which left her at age twenty-nine a single mother of five children aged two to eleven. He moved to Portland, apparently for another woman. In 1879, Clara divorced him. She did not depict herself as abandoned and divorced, however, but said she was widowed by Jeremiah's sudden death.

"Keeping boarders, dress-making and millinery are the first refuge of women so situated; and so she fell into line behind the army of women who preceded her," wrote an interviewer. Unable to make enough to support her children, the story continued, Foltz saw that she must do something different or lose her family. Not from ambition and defiance of the norms of womanly conduct, but out of desperation, she decided to become a lawyer. Depicting herself as forced onto a path she would not have chosen made her move more acceptable, especially to the men whose help she needed. And no doubt economic need was part of the story of why Clara Foltz decided to become a lawyer.

But she framed her decision as if she had gone down the checklist of traditional alternatives facing a woman suddenly required to support herself and her children: try school teaching, try dressmaking, try taking in boarders, and, if those don't do the trick, then take your last resort and become a lawyer. This was a deliberate concealment, made for good strategic reasons, of the world-altering boldness of her choice. Many women had tried dressmaking, many had taken in boarders; no woman in Clara Foltz's situation had ever decided to be a lawyer. In 1878, fewer than fifty women practiced as lawyers in the United States, and none of these was a single head of a family with five young children. None lived in California, either, where a section in the Code of Civil Procedure provided that only a "white male citizen" could apply to the bar.

It was far against the odds that the young mother of five would be able to bring her daring choice to fruition. How she did it is a story with a large cast of characters—women suffragists and their male allies, helpful and hateful lawyers, judges and politicians, an attentive and, on the whole, admiring press. And the story's setting is California in the midst of an economic depression and on the verge of class and race war. During this perilous period, Clara Foltz and her movement comrades lobbied through a bill allowing women to become lawyers, then won two unprecedented clauses in the state constitution guaranteeing women the right to equal employment and public education. At the same time, she brought a court challenge to the exclusion of women from the state's first law school. For the rest of her life Foltz would call this her greatest case, and becoming a lawyer her best story.

Fearful Times for California

"The times are fearful; never so hard in California within the memory of the oldest inhabitant," wrote Clara Foltz in 1877. She and Jeremiah and their children, with her parents and two younger brothers, had settled in San Jose, a pleasant agricultural town of about sixteen thousand—some fifty miles from San Francisco and connected to it and to Sacramento (the state capital) by rail. Like so many of the midwesterners who went there, Clara Foltz took to California immediately; its people were "cosmopolitan," its landscape an "Eden of loveliness ... exceeding in beauty the far-famed valley of the Nile!"

Attractive though its orchards and surrounding mountains were, San Jose was a hard place to make a living in the decade called "the terrible seventies." The Shortridges and Foltzes had probably moved, as many did, because they thought the recently completed transcontinental railroad was about to transform the California economy. But it soon became clear that no boom was in sight. Instead, an economic depression in the East had propelled an army of workers across the continent only to find that the completion of the railroad had released thousands of laborers, many Chinese, into the market. Adding to the labor glut were drought and crop failures, ruinous gambling in silver stocks, banking collapses, and flamboyantly manipulative and dishonest plutocrats and politicians. "Capital threatened labor and labor menaced capital," as Foltz told the story many times, also noting "corruption in high places, malfeasance in office, immorality everywhere."

Speaking of the subsidy-enriched railroad magnates and the corruption of the land office for allocating public property among settlers, Foltz complained of "vast landed estates [which] were the exclusive holdings of three or four men, technically acquired by law but really nothing short of the methods of highwaymen who take because they dare." Karl Marx, writing from London, used the California crisis as an object lesson: "nowhere else has the upheaval most shamelessly caused by capitalist concentration taken place with such speed."

The political scene was set for the entrance of a demagogue, and Denis Kearney, an Irish drayman, assumed the part. In the summer of 1877, just when Foltz wrote to her friends about the "fearful times," Kearney started speaking on the sandlots in front of San Francisco's unfinished city hall. Thousands of unemployed workers, who became known as "sandlotters" or "Kearneyites," gathered there every day. Foltz remembered that their "forbidding presence in such vast numbers struck amazement if not fear in the breasts" of those who "terrorized the state with their lavish vulgar show of wealth." Kearney denounced the newly rich as "shoddy aristocrats" (soon shortened to "shoddies") and "bloated bondholders" and called for justice from "Judge Lynch," summoning from his followers roars of "Hemp, Hemp, Hemp." But the conclusion of every Kearney speech was not "Down with the Bosses" but "The Chinese Must Go."

Driving out the Asian workers remaining in the West after the completion of the railroad was the founding principle of the Workingmen's Party of California (WPC). The Chinese immigrants were an easy target because most were single men who lived in segregated Chinatowns, spoke no English, and did not attempt to assimilate. It was with a racial rather than a class appeal that Kearney originally won control of the sandlots from the national Workingmen's Party, which had called on its followers to "direct their struggles against the ruling class, not against their victims, the Chinese."

Employers argued that the Chinese were filling jobs no one else wanted, but many Californians believed they were depressing the wages of all workers. Moreover, so soon after the Civil War, the system of indenture under which some Chinese labored to pay for their passage to America appeared to be another form of slavery. Their presence also reprised the sentiments of those who had objected to the spread of slavery more because it brought the Negro to "white man's country" than on humanitarian grounds.

Denis Kearney and the WPC were particularly virulent in their anti-Chinese rhetoric, but they were hardly alone. A respectable reformer like the socialist Henry George, for instance, could write of the "servile and debased workers," "alien serfs" to the rich, who threatened to "crush" the white working class. Clara Foltz fell in with the pervasive sentiment among white Californians and included the Chinese among "the swindlers, land-grabbers and vulgar rich" who were ruining the state.

From today's perspective, Foltz's anti-Chinese views seem to conflict with her lifelong devotion to outsiders and underdogs. Nor were they consistent with her stance toward the former slaves whose full citizenship she supported. An assessment of her position must await the account of her overall political ideology in the context of the larger women's movement (see Chapter 6). Suffice it to say here that the anti-Chinese position was widely held by Californians of otherwise progressive views and that Foltz deployed the point only in the context of the assumed tendency of Chinese labor to undercut the wages of white working-class citizens.


Excerpted from Woman Lawyer by Barbara Babcock Copyright © 2011 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Meet the Author

Barbara Babcock, Judge John Crown Professor of Law, Emerita, at Stanford University, is the first woman appointed to the regular faculty at Stanford Law School. She served as an Assistant Attorney General and was the first Director of the Public Defender Service in Washington, D.C.

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