California Constitutional History

From Woman Lawyer: The Trials of Clara Foltz -- Online Notes For The Book

This Note discusses the California Convention of 1879, the passage of the anti-discrimination clauses (and women's role in their enactment), and the 1879 Convention (including prominent opponents to it). Much of this Note relies on my article Constitution Maker.

Convention of 1879

Babcock, Constitution-Maker contains detailed notes on the historiographical sources. See also the Note on Documentation, at 911.

THE DEBATES AND PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF CALIFORNIA, SACRAMENTO STATE OFFICE (1880-1881) (3 vols.) [hereafter DEBATES] is practically a verbatim transcript of the public proceedings. It has a serviceable index by subject matter and delegate name but does not include party affiliations and committee assignment. On these and other points behind the scenes, see WINFIELD DAVIS, HISTORY OF POLITICAL CONVENTIONS IN CALIFORNIA, 1849-1892; D.G. WALDRON & T.J. VIVIAN, BIOGRAPHICAL SKETCHES OF THE DELEGATES TO THE CONVENTION TO FRAME A NEW CONSTITUTION FOR THE STATE OF CALIFORNIA (1878).

Carl Swisher’s monograph, MOTIVATION AND POLITICAL TECHNIQUE IN THE CALIFORNIA CONSTITUTIONAL CONVENTION, 1878-79 (1930) is a concise monument of clarity and thorough research. But like other histories of the period, it refers only briefly (at 96) to the role of the women and their cause in the constitutional events. D. MOORHEAD, Sectionalism and the California Constitution of 1879 (1941) (unpublished Ph.D. dissertation, Stanford University; a shorter work under the same title is published in 12 PAC. HIST. REV. 287 (1943)). Moorhead notes women’s suffrage on the WPC’s platform and has a chart on the nativity of all delegates showing that none of the 28 foreign-born WPC delegates was a “raw immigrant” and all were gainfully employed. Id. at 239-47. For other sources, see Noel Sargent, The California Constitutional Convention of 1878-9, 6 CAL L. REV. 1 (1917); TINKHAM, CALIFORNIA MEN AND EVENTS: TIME 1769-1890 (1915); Harry N. Scheiber, Race, Radicalism, and Reform: Historical Perspective on the 1879 California Constitution, 17 HASTINGS CONST. L.Q. 35 (1989) is an important, more recent treatment.

Passage of the Anti-Discrimination Clauses

Until the last few decades, few standard histories mentioned the women’s role in achieving the historic anti-discrimination clauses. See, e.g., BEAN & RAWLS, CALIFORNIA: AN INTERPRETIVE HISTORY 255 (5th ed. 1988). But see TAMING THE ELEPHANT: POLITICS, GOVERNMENT, AND LAW IN PIONEER CALIFONIA (John F. Burns & Richard J. Orsi eds., 2003) an anthology of essays on the period between constitutions, 1849-1879, that cites Babcock, Constitution-Maker for the detailed account of the women’s contribution.

A few contemporary historians mentioned the clauses. See 7 H. BANCROFT, HISTORY OF CALIFORNIA (1890) [hereinafter H. BANCROFT, HISTORY OF CALIFORNIA] at 393 n.32, explaining that the Hastings Directors “submitted” to allowing women in light of the constitutional clauses, and the admission of a woman to the Supreme Court bar. See also GEORGE TINKHAM, CALIFORNIA--MEN AND EVENTS (1915) at 229, for a reference to the employment clause. WOMEN OF THE WEST: A SERIES OF BIOGRAPHICAL SKETCHES OF LIVING EMINENT WOMEN (Max Binheim & Charles A. Elvin eds., 1928) (Foltz the “author” of the employment section); Collver, The American Woman's Battle for the Ballot, S.F. CALL, July 4, 1901, at 5 (Foltz the author of the constitutional sections, suffrage lobby described as a “brave little body of ‘fanatics’… aiming at the skies”). LUCILE EAVES, A HISTORY OF CALIFORNIA LABOR LEGISLATION, WITH AN INTRODUCTORY SKETCH OF THE SAN FRANCISCO LABOR MOVEMENT (1910) has brief discussion of the clauses, noting that the employment section was probably a “compromise measure to satisfy” proponents of “more radical provisions on women's rights.” Id. at 313.

Though they lost suffrage, the women wanted to preserve in the constitution the Woman Lawyers Bill. Limiting the realm of future legislative action by increasingly specific constitutional provisions was not unusual in 19th century. JAMES WILLARD HURST, THE GROWTH OF AMERICAN LAW: THE LAW MAKERS (1950). Both Foltz and Gordon claimed authorship of the women’s clauses at various times. See, e.g., Foltz, Struggles, Mar. 1917 (Foltz the author of the clause); Who’s Who in Los Angeles County (1928-29); 3 HWS, at 759-60 (crediting Gordon completely but she was probably the main informant for this part of the history, as explained in Babcock, First Woman, at n.111).

Prominent Pro-Woman Delegates at the 1879 Convention

Babcock, Constitution-Maker has detailed descriptions and notes on both supporters and opponents. These sections below add further sources or commentary not covered in Constitution-Maker or WOMAN LAWYER.

James J. Ayers

See Babcock, Constitution-Maker. SWISHER, at 48; WALDRON & VIVIAN, at 99 (Ayers entry). Ayers was a founder of the SAN FRANCISCO CALL and moved to Los Angeles in 1872. JAMES J. AYERS, GOLD AND SUNSHINE (1922) (published posthumously) describes the revolutionary fervor surrounding constitution-making.

Eli T. Blackmer

See Babcock, Constitution-Maker. Blackmer was one of the leading supporters of woman suffrage among the WPC delegates. As soon as the suffrage clause was read to the Convention, he took the initiative to the women’s side by proposing to eliminate the word “male.” As detailed in Babcock, Constitution-Maker, he presented one of the first petitions for suffrage in the opening days of the convention. WALDRON & VIVIAN, supra at 121. He also led the effort to block a vote on suffrage on Christmas Eve. DEBATES, at 832.

For biographical sketches of Blackmer, see entries in ILLUSTRATED HISTORY OF SOUTHERN CALIFORNIA 271 (1890); ILLUSTRATED FRATERNAL DIRECTORY 218 (Smythe ed., 1889), reprinted in HISTORY OF SAN DIEGO 656 (1916).

Charles Ringgold

See Babcock, Constitution-Maker at nn.138-140.

“The adoption of this clause [the employment section], so valuable to women, was mainly accomplished by the skillful diplomacy of Hon. Charles S. Ringgold, delegate from San Francisco, who introduced it in the convention and worked faithfully for its adoption.” 3 HWS, at 760. Ringgold was a Confederate sympathizer and follower of Terry at the convention. WALDRON & VIVIAN, at 23 n.89; see also J. STEDMAN & R. LEONARD, THE WORKINGMEN'S PARTY OF CALIFORNIA: AN EPITOME OF ITS RISE AND PROGRESS 78-86 (1878) at 80 (crediting Ringgold with passage of the employment clause). Charles Ringgold liked to say he came from Maryland “colonial stock.” Before joining the Workingmen’s Party “at its inception,” he had been a Chivalry or Copperhead Democrat. Indeed, he had been twice arrested because of what he termed “[a] too freely expressed belief in State rights.” His biographical sketch says that he was arrested first as an accessory in the fitting out of the schooner J.M. Chapman and later as a secessionist and Confederate officer. Both charges were dropped as unsubstantiated but only the second was designated as “fanciful.” WALDRON & VIVIAN, at 22-23.

The saga of the schooner J.M. Chapman was this: It was purchased in 1863 with a letter of marque signed by Jefferson Davis and fitted with a cargo concealing a large quantity of weapons. The alleged plan was that it would privateer in the Pacific and collect gold and silver for the Confederacy. The J.M. Chapman was captured as it embarked on its maiden privateering voyage, and the capture and subsequent trials created a sensation in the state. R. CLELAND, A HISTORY OF CALIFORNIA: THE AMERICAN PERIOD 357 (1922); 4 Z. ELDREDGE, HISTORY OF CALIFORNIA 214-15 (1915).

Ringgold was one of those elected as a result of Kearney’s decree forbidding leaders of the WPC from running for convention delegates. “The Delegate . . . considers his nomination due to making a successful effort, to prevent professional politicians from entering the Party. A representative man of the people, he will keep a strict watch on all important measures requiring his support, and endeavor to be honest and fair to all." WALDRON & VIVIAN, at 23; see also STEDMAN & LEONARD, at 80.

For more on Kearney's tactic to prevent party leaders from running, see Babcock, Constitution-Maker, at nn.85-86.

David Terry

Clara Foltz wrote that Terry was “the gallant knight of the Convention” who “championed” the causes “in his incomparable manner.” Struggles, Mar. 1917. But what he did for the women was largely hidden from the public record. It seems likely that he lined up his follower, Ringgold, to introduce the employment clause. Terry also proposed a public debate between Laura Gordon and the main opponent of woman suffrage, James Caples. Letter from David Terry to Laura Gordon (Nov. 20, 1878) in Gordon Papers. See also Babcock, Constitution-Maker, at nn.121-24 (describing friendship of Gordon and Terry). Constitution-Maker, at nn.146-148, assembles the evidence that both Gordon and Foltz mentioned Terry’s help on the Hastings case.

ALBERT RUSSELL BUCHANAN, DAVID S. TERRY OF CALIFORNIA: DUELING JUDGE 171 (1956) is a modern biography of Terry. It quotes the OAKLAND ENQUIRER, at 187 for the proposition widely accepted at the time that Terry became the “acknowledged” leader of Workingmen. ALEXANDER E. WAGSTAFF, THE LIFE OF DAVID TERRY 254-55 (1892) gives the same interpretation. See also Editorial Comment, ARGONAUT, Dec. 7, 1878. Terry was “more dangerous and less respectable” than the “sandlot leaders.” GEORGE H. TINKHAM, CALIFORNIA MEN AND EVENTS: TIME 1769-1890 (1915) relates that Terry became the leader of the “most rabid Chinese haters, anti-monopolists and anti-railroad men.” Id. at 228. As to Terry's motives, Tinkham said the best guess was his “hatred for corporations and his desire again to sit upon the supreme bench. As a leader on the working man's measures he believed he could command their votes.” Id.

For more On Terry’s life, see CARL SWISHER, The Terry Tragedy, in STEVEN J. FIELD: CRAFTSMAN OF THE LAW; J. Edward Johnson, David S. Terry, 22 CAL. S.B.J. 516 (1947); Charles S. Potts, David S. Terry: The Romantic Story of a Great Texan, SW. REV. 19 (Apr. 1934); SHUCK, BENCH AND BAR (Terry entry). For accounts of the Althea Hill-William Sharon trial, see OSCAR LEWIS & CARROLL HALL, BONANZA INN 116-214 (1939); ROBERT H. KRONINGER, SARAH AND THE SENATOR (1964); PAUL KENS, JUSTICE STEPHEN FIELD: SHAPING LIBERTY FROM THE GOLD RUSH TO THE GILDED AGE 277-90 (1997).

On Terry’s death: Justice Stephen Field, who earlier had served on the California Supreme Court with Terry, was the Justice whose bodyguard, David Neagle, shot Terry. See generally In re Neagle, 135 U.S. 1 (1890), 39 Fed. 833 (opinion below with review of the Sharon case); JOHN E. SEMONCHE, CHARTING THE FUTURE, THE SUPREME COURT RESPONDS TO A CHANGING SOCIETY 1890-1920 (1978); J. Edward Johnson, David S. Terry, 22 CAL. S.B.J. 516 (1947); Walker Lewis, The Supreme Court and a Six-Gun, the Extraordinary Story of In re Neagle, 43 A.B.A.J. 415 (May 1957) (excellent telling of story).

Alphonse Vacquerel

Vacquerel was a native of Paris, France, a WPC delegate, and a proponent of woman suffrage. Vacquerel was said to be the only real radical among the WPC delegates. George, at 449. His support was not, however, on completely utopian ground. Women’s votes could “save” the republic in the face of the risk that Chinese men might gain citizenship and hence enfranchisement under the Fifteenth Amendment. Urging women’s votes as “a legal and constitutional way to prevent the Chinese power in this State,” he challenged those who were “opposed to Chinese . . . in earnest” to prove it by voting for woman suffrage. DEBATES, n.10, at 1010. 4 HITTELL, at 625.

Vacquerel also gave a distinctive class twist to the debate when he objected: “Now sir, it has been said that only low class women would vote. I want to know what is the meaning of such a word. Because a woman is poor is she low? I hope, gentlemen, that you do not think that poverty is a crime. When I hold for the right of suffrage for women, I hold it for all women, rich or poor, in whatever class of society they belong.” DEBATES, at 1010. After all other woman suffrage efforts had failed at the January debates, Vacquerel sought a last amendment that also failed: “[W]henever the Courts shall grant to Mongolians the right of citizenship, the Legislature shall remove all disabilities from exercising the elective franchise on account of sex.” Id. at 1018. At one point Vacquerel fell out with the WPC Convention caucus, but he continued to take WPC positions on the Convention floor, as in the woman suffrage debates.

Prominent Opponents

Joseph Hoge

The women’s main opponents at the Convention were also on the Hastings Board and so were defendants in Foltz v. Hoge, 54 Cal. 28 (1879). Babcock, Constitution-Maker, at n.105. THOMAS GARDEN BARNES, HASTINGS COLLEGE OF THE LAW—THE FIRST CENTURY 45 (1978). Joseph P. Hoge was the President of the Convention, elected as a Non-Partisan, though he was a Democrat. Sixty-five years old at the time of the Convention, he was an accomplished parliamentarian who generally won the respect of the delegates. Hoge had emigrated from Illinois where he had twice served in Congress. SHUCK, BENCH AND BAR, at 565-66. Clara Foltz said of Hoge: “He was opposed to women in public life, opposed to women in any place except possibly in their homes—just as though every woman had a home then any more than she has now!” Struggles, Mar. 1917.

Samuel Wilson

Babcock, Constitution-Maker, nn.83-84. Hoge’s law partner earlier in Illinois, and in San Francisco, Wilson was counselor to banks and railroads, self-made and immensely rich, and a bar association founder. Dryly correct, tenacious and thorough, he could exhaust the most ardent reformer. SHUCK, BENCH AND BAR, at 566-69.

Thomas Bishop

A former judge and founder of the San Francisco Bar Association. See KENNETH M. JOHNSON, THE BAR ASSOCIATION OF SAN FRANCISCO: THE FIRST HUNDRED YEARS, 1872-1972 (1972) (repeated references to Bishop). Johnson recounts that Bishop was among the top six lawyers listed as “the best at the bar” by “a great number” of fellow attorneys polled in 1899. Id. at 151. BARNES, at 19.

Delos Lake

Described as “brilliant,” “profound,” possessed of a “singularly fine presence, a rich voice and a great command of language,” as well as a “keen wit,” A. PHELPS, CONTEMPORARY BIOGRAPHY OF CALIFORNIA’S REPRESENTATIVE MEN (1881), Lake was hardly a good sport about losing to Foltz. BARNES, at 55, describes his effort to exclude Foltz from the law school despite her victory.