The Journal of San Diego History
SAN DIEGO HISTORICAL SOCIETY QUARTERLY
Summer 1980, Volume 26, Number 3
Thomas L. Scharf, Managing Editor
By NICHOLAS C. POLOS
Professor at the University of LaVerne
and Judge Jacob Weinberger Award Winner
at the San Diego Historical Society 1980 Institute of History
“A people that take no pride in the noble achievements of remote ancesters will never achieve anything worthy to be remembered with pride by remote descendants.”
Califronia from 1867 to 1899 was a foundation period for Montalvo’s “El Dorado” or “Califerne” in the world of the arts, the development of self-government, culture, science and technology. California was no longer isolated from the world at large, indeed this was a period of railroad building or the coming of what some Californians called “The Octopus.”1 It was also the period of the building of California’s agricultural empire. During this time of growth in California men like John Swett and David Starr Jordan, and other educational statesmen were building the basis for the magnificent system of education which California enjoys today.2 Yet in this period “The Golden State” still suffered from the frontier characteristics of a new state in transition.
In its early days, for more than a decade (1850-1865) the people of California were often on the threshold of violence.3 There was a looseness of social forms which encouraged day-to-day hedonism. The disturbances that were brought about by the Gold Rush were in a short period intensified by the bitter feelings of hostility brought about by the War Between the States. Wave upon wave of population continued to pour into the State.4 It was difficult to create a social consciousness from such diverse groups. One writer explained California during its foundation period in this way: “The result was . . . . what perhaps might be called legal lawlessness. All the machinery and forms of orderly government were set up and in operation. But instead of serving justice they became merely convenient and conclusive instruments for legalizing injustice.”5 California suffered for many years with this political chaos. By the time of the Boom of the 1880s, California offered the promise of becoming the Eden of the West. Indeed, one Californian from San Francisco who visited San Diego was so convinced that he was “on the site of a future great city,” that he moved to San Diego, and in time was instrumental in helping to build that city.6 Like all booms the bubble was bound to burst and California settled down to developing a reform spirit in government.7 One historian wrote in regard to Southern California and the 1880s period: “In fact, San Diego, like the rest of Southern California suffered much less than it deserved for the part it played in the boom.”8
By the 1880s many people had been attracted to California. When California asked for “men to match her mountains,” she gathered within herself not only the outcast, the reckless and abandoned, but also many of the most vigorous, enterprising, and progressive among the unsettled spirits of America. Fortunately for California, America sent many women who in time measured up to California’s mountains.
When Horace Greeley supposedly issued his famous invitation to “Go West, young man,” not many women cared to accept this offer. One writer described 1855 California as a place where: “The men were reckless, the women few and not wholly select. The conventionalities of older communities were ignored.”9 The civilizing, or refining, or elevating influence of women was missing from the environs of the male horde that poured into California after 1849. In regard to women in California in the early 1850s, Christiane Fisher wrote:
Their sphere (women’s) was the home; they were not seen in the streets much, and they were excluded from the saloons, which were meeting places for politicians and businessmen, and where much of the public life was conducted, in the early years especially. Women were respected and revered, but were kept away from the avenues of power.10
By the 1870s, and 1880s women’s position had not changed very much in California, and the folkways and mores were still such that California’s opportunities were very limited for women. This is what makes the story of Clara Shortridge Foltz, San Diego’s “Portia of the Pacific,” and California’s first woman to practice law in this state so fascinating.11 Many years later one writer wrote: “Mrs. Foltz is California’s pioneer woman lawyer and equal suffragist. The history of her state could not be written without her name therein.”12
In his historical analysis of the bench and bar in California J.C. Bates gives only a brief and terse account of Mrs. Foltz. He stated her residence as 253 South Normandie Avenue, and her office as the Merchants Trust Bldg, Los Angeles. Then follows a most narrow description: “Mrs. Foltz was the first woman admitted to practice law in California. Spec. Probate and Corporate Law. Deputy D.A., (sic) (L.A. Cty), 2 terms, first woman to serve as such in the world. Republican – State Board of Trustees of State Normal School . . . .”13
One must admit, however, that the above is much better than Rodman’s analysis. In the Preface of his work he wrote: “During the transition period, men of mighty brain have distinguished the California bar, and added to the fame of a fair State.”14 Not one woman is shown in his biographical section, and he should have titled his book Men in California Law! Yet one of the ironies of history is that in the Western World the woman (albeit blindfolded) is depicted as the symbol for “Justice.”
Clara Shortridge Foltz was born in Henry County, Indiana of a family that produced several great lawyers and preachers, and claimed to be a lineal descendant of Daniel Boone. Early in her childhood the family moved to Mount Pleasant, Iowa, and she attended Howe’s Seminary. She was apparently a strong student and earned honors in Latin, philosophy, history and rhetoric. As a good student she was naturally attracted to teaching and taught school (she was fifteen years of age) for two terms in Mercer County (Keithsburg), Illinois. Her early biographers do not shed any light on why Clara, without parental advice or blessing, at the early age of fifteen, quickly married Jeremiah D. Foltz and moved to California in 1872.15 She read law in the office of the Hon. C. C. Stephens of San Jose, and on the fourth of September, 1878 she was admitted to the bar. Prior to 1878 women could not practice law in California, but Clara, breathing the free air of the frontier unhampered by the heavy hand of custom authored a bill (which changed C.C.P.275) to amend the California law, and thus became the first woman lawyer in California!16 One writer described her struggle of trying to study via a coal oil lamp in the middle of her populous nursery, and then concluded by writing:
From the day of her admission to the bar Mrs. Foltz had all the business she could attend to . . . . she was the one woman who with keen insight and natural ability broke down the barriers of conservatism which had been raised against her sex, and won the highest respect and consideration, as well as attaining high honors in the profession as a public speaker.17
Women were also denied admission to the Hastings College of Law (created by Stats. 1877-78, p. 533). When she was denied admission to Hastings College of Law, she sued out a writ of mandamus – “mandamus is the proper and only remedy,” Code Civ. Proc Sec. 1085-6—appearing as the Respondent in propria persona and won her case. In Foltz v. Hoge et al (No.6581) the Court ruled:
The College was founded for the purpose of affording instruction to those who desire to be admitted, as well as those who have been admitted, to practice as attorneys and counsellors . . . . and the same general policy which admitted females as students of the University, opened to them as well the doors of the College of Law. Judgment affirmed. Remittitur forthwith.18
Ever since this case women have been free to enter and study law with men on equal terms. This was a monumental victory for all California women. A short time later Mrs. Foltz prepared herself for admission to the Supreme Court and was successful. She practiced law in San Francisco and gained a reputation as a competent and skilled lawyer who charged her clients fair fees. Many men had high praise for her oratorical ability and her charm and diplomacy. Oscar T. Shuck in his reminiscences of the bar wrote about Mrs. Foltz praising her virtues in this way:
In court she (Mrs. Foltz) is self-reliant, her argument is terse and condensed, her speech fluent. Having a good voice, engaging manners, and dressing with excellent taste, displaying constant evidence of strict and careful parental training, and always wearing the jewel of true womanhood, she has become a favorite of the bar, whose leading members are pleased at all times to give her counsel.19
The last statement seems a bit patronizing; however, the author goes on to explain that Mrs. Clara Shortridge Foltz was no damsel in distress or female shrinking violet, but could easily hold her own in the open court. She was very quick at repartee, and in one instance when she felt it was necessary she did not hesitate to open fire on an opposing attorney. Shuck reported that:
An opposing attorney once suggested to her in an open court that she had better be at home raising children. She replied: ‘A woman had better be in almost any business than raising such men as you.”20
Mrs. Foltz was no stranger in the business of raising children—after all she had had five children. If one wonders how she was able to achieve and accomplish all that she did, perhaps one should assume a very understanding and unusual husband married to a very extraordinary person.
In 1880 she was Clerk of the Judiciary Committee of the Assembly – the first woman to hold that important position.21 It was during that season that she prepared a brief on the constitutionality of a bill she had introduced. The purpose of the bill was to enable women to vote at elections for school officers and in all public school matters. This was only the beginning of her overt efforts as a capable suffragist and a leader in the movement for women’s rights. Unfortunately, the bill was defeated due to political pressure rather than for lack of constitutional support. In regard to sex discrimination Bean wrote:
For decades such women had struggled against sex discrimination in various fields. The first women to practice law in California, for example, were Clara Shortridge Foltz and Laura de Force Gordon, whose vigorous lobbying induced the Legislature in 1878 to repeal the law that had denied them admission to the bar. Not until 1890 did the San Francisco Medical Society admit its first woman member, Lucy Maria Field Wanzer. The organized suffrage movement in California began in 1869.22
Mrs. Foltz lived in San Diego during the boom years at 1223 Front Street (near the present County Law Library), and while managing a newspaper she also practiced law.23 In the two San Diego city directories 1887-88, and 1888-89 Mrs. Foltz was listed as both resident and as an attorney. The third city directory (1892-93) does not contain Mrs. Foltz’s name. Note that in the 1888-89 city directory there is an S.C. Foltz listed (her son who lived with her) as the clerk of Superior Court No. 2; Judge George Puterbaugh presided.24
In the short time that Mrs. Clara Shortridge Foltz lived in San Diego she enjoyed her position as “San Diego’s first woman lawyer.” She was invited to many civic functions and often played a large role in them. One writer paints the picture of launching of the city garbage-scow “Utilissimo,” by writing:
A rather large attendance of the town’s officialdom and socialites graced the occasion, and Mrs. Clara Foltz, noted ‘lady lawyer,’ then resident of San Diego, officiated as sponsor. In so doing, she broke over the stubby bows a bottle of champagne contributed by Mr. W. E. Hadley, manager of the Horton House.25
Lest one be left with the picture of Mrs Foltz lost in some civic Siberia consigned to dedicating civic white elephants it becomes necessary to point out that Mrs. Foltz was the principal speaker at the Fourth of July (1888) celebration in San Diego.26 It seems that when San Diego celebrated Independence Day it was a fete to be remembered! The newspaper (San Diego Union) printed the eloquent and patriotic speech made by Mrs. Foltz in its totality. At the conclusion of her stirring speech Mrs. Foltz revealed her strong sympathies for the Union by declaiming:
A union of hearts, a union of hands,
A union of principles none may sever
A union of lakes, a union of lands —
The American Union forever.27
There is no doubt that Mrs. Foltz was a most unusual woman, for in addition to her large family, which required a great deal of attention, she continued all her life to be very active in community and political activities.
When she left San Diego for Los Angeles she served for two terms as deputy district attorney in Los Angeles. She was the first woman in America to hold such a position. As the older sister of Samuel M. Shortridge she also successfully worked in his campaign to get him elected as one of the United States Senators from California (1920-1933).28
Even in her seventies Mrs. Foltz could put up a good fight. In 1930 she unsuccessfully ran for governor of California. While living in Los Angeles she decided to run for the state Senate. Under the headline “Mrs. Foltz Will Be Candidate for Senate,” one newspaper described in detail the definite principles of Mrs. Foltz whom the paper called “The Woman Lawyer and Suffrage Leader.” Her views reveal a touch of modernity and call for reform. Mrs. Foltz had criticized the penal laws as they related to all classes, especially women and children, and she demanded immediate change. The newspaper quoted her as saying:
Our criminal procedure must be remodeled. Men and women must not be treated as brutes. Those who are merely sick must be cured, not subjected to horrible, cruel and brutalizing discipline.29
Mrs. Foltz, always a fighter for equal justice, insisted on reforms of statutes relating to all classes, especially women. “The women,” she said, “are still far from having an equal standing with men before the law, and it shall be my continued effort to remedy these conditions.”30 She felt that men were unduly favored in regard to the law in California regulating the disposition of community property because, she argued, a woman is only allowed one-half of the property upon the death of her husband, and yet upon this must pay an inheritance tax. One of the main reasons that Mrs. Foltz sought political office was to remedy some of these evils. For example, she wanted to introduce a bill to amend the existing law so that upon the death of a husband a woman would acquire all the community property.31 She had taken on a task fit for Hercules. No small wonder Madge Morris in her poetic praise of Mrs. Foltz, wrote:
And thou hast proved that woman can —
Who has the nerve and strength and will —
Work in the wider field of man,
And be a woman still.32
Clara Shortridge Foltz was more than just a feminine crusader, or California’s first woman to practice law or even San Diego’s first woman lawyer—she was the pioneer who broke the barrier for all the California Portias to come. No one would bar her from the Blackstone Hall of Fame because she set the pattern for others like Mrs. Eveleen K. Bryan, Mrs. Estelle W. Kirk, and even Sarah Fitzpatrick Harden to follow.33 Also, she was more than a pioneering Portia; she openly campaigned for equal rights for women, for reforms in our prisons, and for election procedure reforms. She accepted as axiomatic the Periclean maxim: “We differ from other states in regarding the man who holds aloof from public life not as ‘quiet’ but as useless; we decide or debate, carefully and in person, all matters of policy, . . . .”34
It is difficult for us today to understand the climate of opinion of the late nineteenth century in regard to women in the legal profession. Many law schools, particularly in the Northeast, the Columbian College of Law (now George Washington University) in 1869 and in 1887 refused to admit women on the grounds that coeducational classes would be an “injurious diversion of the attention of the students,” and that women “had not the mentality to study law.”35 In California, the law schools and the state bar admitted women only after a long and expensive legal contest brought a judicial ruling in their favor (supra). Yet the instability of the California frontier provided a flexible attitude on the part of Californians who were now willing to accept new reforms and ideas. This did not, however, extend to giving women the vote, and after several failures many Californians began to develop a new political consciousness. One writer explained: “Many early suffrage leaders had extraordinary careers. Clara Foltz, president of the first California suffrage association, was a Los Angeles bank executive . . . . In 1884, Foltz was a candidate for president elector, and she was active for thirty years in Democratic party politics.”36 Success came slowly, and it was not until October 10, 1911, that suffrage was formally granted to California women.
If Mrs. Foltz were alive today she probably would have applauded the efforts of the National Organization for Women (NOW), and would certainly have agreed with the statement by justice Raymond E. Peters, of the California Supreme Court who concluded in Sail’er Inn, Inc., v. Kirby that: “The pedestal upon which women have been placed has all too often . . . . been revealed as a cage.”37 She would no doubt be dismayed by the fact that members of the NOW activist group will celebrate Susan B. Anthony day by holding a rally and wearing “594” buttons to dramatize the fact that women earn an average of 59 cents for each dollar earned by men.38 Many years after Clara S. Foltz began her equal rights fight we still find that there are many state laws still on the books that forbid women to sit on juries, limit their right to make contracts and to hold property, in short to keep women in the position of the second-class citizen.39 There will always be a great pressing need for women like Clara Shortridge Foltz, and these will have to come from the rising ranks of young women lawyers of tomorrow. A long time ago David Starr Jordan wrote about California’s promise, and he said:
California is the most cosmopolitan of all the states of the Union and such she will remain. Whatever the fates may bring her, her people will be tolerant, hopeful and adequate, sure of themselves, masters of the present, fearless of the future.40
It will be difficult to achieve this future unless we can achieve the real equality for all citizens. This is the goal that Clara Shortridge Foltz worked for so hard all her life. It is the promise of America.
1. Frank Norris, The Octopus (New York, 1901); see also, Richard Orsi, “The Octopus Reconsidered: The Southern Pacific and Agricultural Modernization in California, 1865-1915,” California Historical Quarterly, LIV (Fall, 1975), 197-220; and, Manse] G. Blackford, The Politics of Business in California, 1890-1920 (New York, 1977).
2. On education and San Diego see William W. Ferrier, Ninety Years of Education in California, 1846-1936 (Berkeley, Calif., 1937), pp. 155-159; see also Nicholas C. Polos, John Swett: California’s Frontier Schoolmaster (Washington, D.C., 1978), pp. 1-33.
3. Warren Franklin, “A History of Lynching in California,” Unpublished MA Thesis, University of California, 1935, #24, The Tacho Case, dated April 30, 1890, pp. 52-53 which described a criminal from San Diego County who was lynched while being returned to the County to stand trial. See also “The Redlands Citograph,” May 3, 1890. See also Eugene W. Hollon, Frontier Violence: Another Look (New York, 1974), and Stanton A. Coblentz, Villains and Vigilantes (New York, 1936).
4. According to H.H. Bancroft’s estimate California’s total population in 1848 amounted to 14,000. Cited by Rodman Paul, California Gold (Reprinted; Lincoln, 1969), p. 16. Note that the Federal Census in 1850 showed 7,017 females as against 85,580 males, but by the 1890 Census the figures were females (in California), 508,071 and males 700,059. From Christiane Fisher, “Women in California in the Early 1850s,” Southern California Quarterly, LX, (Fall, 1978), 232-233. Note that the “Growth of Population in Modern San Diego,” from the San Diego History Center Quarterly, VI, No. 1, p. 37, went from 2,637 in 1880 to 16,156 by 1890.
5. Stewart E. White, The Forty-Niners (New Haven, Conn., 1918), p. 101; and Franklin Tuthill, The History of California (San Francisco, 1866), p. 630. See also Douglas Gunn, Picturesque San Diego with Historical and Descriptive Notes (Chicago, 1887), and also by the same author, A Historical Sketch of San Diego, San Diego County, California (n.p., 1876).
6. Robert Mayer, ed., San Diego: A Chronological and Documentary History, 1535-1976 (Dobbs Ferry, N.Y., 1978) p. 101, titled “The Founding of Modern San Diego, 1867.” The Original Document is in the San Diego Public Library.
7. See Grace L. Miller, “The Origins of the San Diego Lincoln-Roosevelt League, 1905-1909,” Southern California Quarterly, LX. (Winter, 1978), pp. 421-443.
8. Glenn S. Dumke, The Boom of the Eighties in Southern California (San Marino, 1944), p. 143.
9. C.P. Fitzgerald, California Sketches (Nashville, Tenn., 1881), p. 32.
10. Christiane Fisher, “Women in California,” 250; and, Elinor Richey, Eminent Women of the West (New York, 1975). See also Leland G. Stanford, “Early Women Jurors in San Diego,” Times Gone By: The Journal of San Diego History, XI, (April, 1965), pp. 16-27; and Joan N. George, “Fire Lilly,” Westways, LXXII, (February, 1980), pp. 21-23, and 78, the story of a woman’s struggle to become a doctor in the nineteenth century.
11. See Leland G. Stanford, San Diego’s L.L.B., Legal Lore and the Bar: A History of Law and Justice in San Diego County (San Diego County Bar Asso., Law Library Justice Foundation, 1968), p. 186; and, by the same author, Footprints of Justice in . . . . San Diego and Profiles (San Diego County Law Library, 1960), p. 70.
12. “Californian and Canadian Pioneer Women Lawyers,” The Women Lawyer’s Journal, III, (June, 1914), p. 72.
13. J.C. Bates, A History of The Bench and Bar of California (San Francisco, 1912), pp. 311-312. Note that Mrs. C.S. Foltz is not mentioned in Carl H. Heilbron, The History of San Diego County (San Diego, 1936), nor in H. Lawton, The History of San Bernardino and San Diego County (San Francisco, 1883).
14. Willoughby Rodman, The History of the Bench and Bar of Southern California (Los Angeles, 1909), Preface, and pp. 121-267; see also C.W. Taylor Jr., The Bench and Bar of California (San Francisco, 1949).
15. Illustrated History of Southern California, p. 110; and L.G. Stanford, Tracks On the Trial Trail (San Diego, Law Library Justice Foundation, 1963), p. 36.
16. Oscar Tully Shuck, The History of the Bench and Bar in California (San Francisco, 1901), p. 828.
17. The Bay of San Francisco: A History (Chicago, 1892), I, p. 670; Note that Ella S. Mighels, Literary California: Poetry, Prose and Portraits (San Francisco, 1911) p. 411 lists: “Foltz, Clara Shortridge” (orators, Divines (sic) and Speakers Connected with Law, Politics and Social Matters).
18. See Foltz v. Hoge et al, 54 Cal.28 (Nov. 1879, #6581), and 35; and Gordon M. Bakken, “The Development of the Law of Tort in Frontier California, 1850-1890,” Southern California Historical Quarterly, LX, (Winter, 1978), pp. 405-419.
19. Oscar T. Shuck, Bench and Bar, p. 831.
20. Ibid., p. 832.
21. Illustrated History of Southern California, p. 111.
22. Walton Bean, California: An Interpretive History (New York, 1978), p. 281; and see Ronald Shaffer, “The Problem of Consciousness in the Woman Suffrage Movement: A California Perspective,” Pacific Historical Review, XLV, (November, 1976), pp. 469-494.
23. L.G. Stanford, Tracks on the Trial Trail, p. 37; see also Edward J.P. Davis, Historical San Diego: The Birthplace of California (San Diego, 1953), pp. 33-35.
24. Illustrated History of Southern California, p. 111; see also “A Glimpse at Nineteenth Century San Diego,” American West (September and October, 1979).
25. Herbert C. Hensley, “A Swell Yachting Party,” San Diego Historical Society Quarterly, III, (October, 1957), p. 52.
26. Speech by Clara S. Foltz, Fourth of July 1888, San Diego, found in Foltz File, San Diego County Law Library, San Diego, Calif.
27. Ibid., p. 7.
28. L.G. Stanford, Tracks on the Trial Trail, p. 37.
29. Undated Newspaper File, C.S. File, San Diego County Law Library, San Diego, Calif., p. 75.
30. Ibid., p. 75. See also San Diego Union, July 6, 1888.
31. Ibid., p. 75.
32. O.T. Shuck, Bench and Bar, p. 832. Found also in Illustrated History of Southern California, p. 111.
33. See L.G. Stanford, San Diego’s L.L.B., Legal Lore and the Bar, pp. 187-188.
34. From Thucydides, The History of the Peloponnesian War (New York, 1946, R. Livingston ed.,) p. 113, II.
35. Karen Meyer Willcox, “Women Lawyers in the United States, 1870-1900,” Unpublished Senior Honors essay, Douglass College, 1973, p. 28.
36. Howard A. DeWitt, California Civilization: An Interpretation (Dubuque, Iowa, 1979), p. 177; see also Barbara L. Armstrong, “Women in Law,” Harvard Law School Record, Pt. I (December 6, 1951).
37. Walton Bean, California, p. 436; see also Hubert H. Bancroft, Chronicles of the Builders of the Commonwealth (San Francisco, 1892), pp. 23-24, in which Bancroft presents an excellent argument for women’s suffrage.
38. “NOW Rally to Observe Susan B. Anthony Day,” Los Angeles Times, Feb. 11, 1980, V, p. 3. See also L.G. Stanford, Tracks on the Trial Trail, p. 37, in which he relates the delightful anecdote of an Italian procuratore-general in Turin, Italy who cited the case of “Signora Foltz of San Jose;” cited in 30 Alb. L.I. 464.
39. Nicholas C. Polos, “The Legal Status of the American Homemaker,” deposited in the A.M. Schlesinger Collection, Women’s History, Radcliffe College Library, 1979.
40. David Starr Jordan, California and the Californians (San Francisco, 1907) pp. 178-79.