Law Practice in the West

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

Current revision as of 00:03, 18 December 2010

This Note reflects my investigations into the general practice of law in the West during Foltz's life. It reflects historical accounts of the period including biographical sketches of lawyers along with newspaper and archive research on legal cases tried during the time.

General Works

GORDON BAKKEN, PRACTICING LAW IN FRONTIER CALIFORNIA (1991) is a path-breaking study (Clara Foltz is described and pictured at pp. 15-17). But as he urges, much more needs to be done to understand the day-to-day practice and how it differed from the work of Eastern lawyers. See Clare V. McKanna, Practicing Law in the Mad Hatter's West, 21 REVIEWS IN AMERICAN HISTORY 442 (1993), pointing out that Bakken’s narrative does not take California lawyers much beyond the real estate and debt collection practices that were their early fare. More needs to be written especially about the growing corporate and tort law practices of the late nineteenth century. See also GORDON MORRIS BAKKEN, BRENDA FARRINGTON, LAW IN THE WEST: THE AMERICAN WEST SERIES (2001) (a wide-ranging anthology of articles about various aspects of western law such as the development of mortgage law, mining and water law, anti-Chinese laws, community property and divorce law, and many other fields).

CHRISTIAN G. FRITZ, FEDERAL JUSTICE IN CALIFORNIA: THE COURT OF OGDEN HOFFMAN, 1851-1891 (1991) relates the experience of the first federal judge in the west, including a detailed account of his docket (19,000 cases) over forty years on the bench. The work of his court gives a good view of law practice in California. Maritime law dominated in the fifties; disputed land titles were a constant, and for several decades the court dealt with private and public measures against the Chinese immigrants.

DAVID C. FREDERICK, RUGGED JUSTICE: THE NINTH CIRCUIT COURT OF APPEALS AND THE AMERICAN WEST, 1891-1941 (1994) enlarges the story to cover the work of the federal appellate court established in 1891. Like Fritz’s work, this book reveals a lot about the work of the lawyers in the far west and the development of a federal jurisprudence in areas such as mining law and discrimination against the Chinese. His biographical work on the judges also shows how varied were the backgrounds of the Western Lawyers.

LAWRENCE M. FRIEDMAN AND ROBERT V. PERCIVAL, THE ROOTS OF JUSTICE: CRIME AND PUNISHMENT IN ALAMEDA COUNTY, CALIFORNIA, 1870-1910 studies the basic criminal records (police and newspaper reports, court filings, docket entries) rather than appellate cases to give a close account of the daily business in the trial courts. Clara Foltz is mentioned as co-counsel in a criminal appeal. She was the only woman lawyer who appeared at all in their extensive data base, at p. 60.

KENNETH M. JOHNSON, THE BAR ASSOCIATION OF SAN FRANCISCO: THE FIRST HUNDRED YEARS, 1872-1972 discusses the founding of the Bar Association, and has an account of Foltz and Gordon in the Hastings case, with a cartoon of them pictured as ballet dancers (misidentifying Gordon as Mary McHenry Keith). Women were not accepted to membership in the Bar Association for some years after its founding. The organizing Call for a Bar Association stated that believing in “the honor and dignity of the profession,” their purposes were “to further the due administration of justice and for the cultivation of fraternal and social spirit and to establish a library.” JOHNSON, at 12.

The Recorder Company put out an anthology of articles about the Bar, with short biographical entries, including one about Foltz, the only woman in the book, at 109. HISTORICAL AND CONTEMPORARY REVIEW OF BENCH AND BAR IN CALIFORNIA (1926). The stereotype of Western court practice, especially in the early days, is that it might involve life threats, actual physical assaults, and spittoons hit and missed during argument. It is not clear that the stereotype had much truth to it by the time that Foltz started practicing, though the argument that the courtroom was no place for women was used against her in the Hastings case. "What counsel meant by saying that women were unfitted for the rough and tumble of legal disputes is somewhat obscure,” commented the Sacramento Record-Union. “We should have supposed that wherever the law is practiced after civilized methods and by educated men, the amenities of life would be preserved . . . " Feb. 26, 1879.

At the Congress of Jurisprudence and Law Reform held in conjunction with the 1893 World’s Fair, a California judge was quoted as saying that: "Court jokes, bawdy stories, and badgering witnesses in the West have largely passed away.” Belva Lockwood, The Congress of Law Reform, 3 Am. J. Pol., 321-33 (1893).

Biographical Works

Individual and collective biographies afford the best access to the realities and particulars of law practice. Bakken, PRACTICING LAW IN FRONTIER CALIFORNIA, relied on biographical material relating to 1,168 lawyers in the last three decades of the nineteenth century, at p. 2 and notes. See Ralph James Mooney, Pride and Precedent in Early California: Christian Fritz’s Ogden Hoffman, 18 Law and Social Inquiry 731 (1993) for astute comments on the use of biography. The biography of Thomas Fitch is especially illuminating as to law practice in Foltz’s time; he was “one of the best known legal and political figures on the frontier in the 1880’s although hardly remembered today.” STEVEN LUBET, MURDER IN TOMBSTONE: THE FORGOTTEN TRIAL OF WYATT EARP (2004) at 80. Fitch was the chief defense lawyer in the legal proceedings following the famous gunfight at OK Corral in 1881. Overall, these proceedings held in a rough part of Arizona Territory come across as both civilized, legally fair, and sophisticated. Ten years older than Foltz, Fitch overlapped with her in the late 1880’s when both were lawyers and journalists in San Diego. Indeed, Fitch became the editor of the Bee after Foltz sold it. See Chapter Two. Fitch’s career was like Foltz’s in his many moves and occupations secondary to law practice (journalist, political orator, miner and real estate boomer). He was an elected official in two states and two territories. WESTERN CARPETBAGGER, THE EXTRAORDINARY MEMOIRS OF “SENATOR” THOMAS FITCH 175 (Eric N. Moody ed., 1978).

Biographies of Stephen J. Field, who practiced in California for fifteen years before he became the first Justice of the U.S. Supreme Court appointed from the far western states (in 1863) also reveal a good deal about the daily practice of law. CARL BRENT SWISHER, STEPHEN J. FIELD: CRAFTSMAN OF THE LAW, (1930). PAUL KENS, JUSTICE STEPHEN FIELD: SHAPING LIBERTY FROM THE GOLD RUSH TO THE GILDED AGE (1997).

Oscar Shuck's Work

My best sources for understanding the men among whom Foltz practiced and her legal milieu, are the publications of Oscar Tully Shuck. A lawyer himself, he became the Boswell of the California Bar, collecting and writing news stories and articles as well as detailed and personal biographies of hundreds of lawyers over a fifty year period. OSCAR SHUCK, HISTORY OF THE BENCH AND BAR OF CALIFORNIA (1901) [HEREAFTER, SHUCK, BENCH AND BAR].

Most of Foltz’s lawyer friends and opponents are represented in this work, many with pictures. She is the only woman lawyer in its thousand-plus outsized pages. Her entry was drawn from an 1882 sketch that Shuck did for the newspapers, writing under the name “Scintilla Juris.” SHUCK, BENCH AND BAR, Clara Shortridge Foltz, a Leading Lady Lawyer; A Self-Educated Toiler for Years: A Child Wife-A Young Mother—How She Came to Study Law –Hastings Law College Contest, San Jose Daily Mercury, Aug. 20, 1882, at 5 (reprinted from the San Francisco Post). Like the article, the Foltz entry is very positive about her legal abilities. It is, however somewhat dated, concluding that the Wheeler case, (1881) (see chapter 2) was her greatest accomplishment in court, though by Shuck’s publication date of 1901 she had tried many more notable cases.

Unlike most nineteenth century collections, which relied mainly on material and language supplied by the subject, Shuck seems to have written many of the entries himself, or at least to have edited them enough to bring about a uniform (and generally engaging) style. The volume’s subtitle described the contents: Biographies of Many Remarkable Men (sic), a Store of Humorous and Pathetic Recollections, Accounts of Important Legislation and Extraordinary Cases Comprehending the Judicial History of the State. On the front page, Shuck identified the non de plume under which he sometimes wrote, “Scintilla Juris”, meaning a spark of light, which is a legal fiction in the law of estates. See 4 KENT’S COMMENTARIES ON AMERICAN LAW, Section 238 for more on the concept.

Before writing the 1901 volume of BENCH AND BAR, Oscar Shuck had published a smaller work, BENCH AND BAR IN CALIFORNIA: HISTORY, ANECDOTES, REMINISCENCES (1889), which had chapters on 44 of the best known San Francisco lawyers and discussions of their most noted cases and their associates. These were all repeated in the 1901 work, with the addition of many hundreds more. Notable among these was Foltz’s hero, Edward Baker, whom Shuck also admired. See OSCAR SHUCK, ELOQUENCE OF THE FAR WEST: MASTERPIECES OF E.D. BAKER 287-318 (1899) [See Chapter Two for more on Baker]. Shuck made a similar collection of the oratory and jury speeches of D.M. Delmas, considered the best trial lawyer in the West. SPEECHES AND ADDRESSES OF DELMAS (1901). See Chapter Three for more on Delmas as a jury lawyer.

In addition to the lawyer biographies, the 1901 BENCH AND BAR also has articles written by Shuck and other notables on various aspects of the law practice. Some representative titles: The Broderick Will case; the History of Mining Laws of California; the Early Bench and Bar of San Jose. Perhaps the most striking of the articles is entitled The Field of Honor, which has full accounts of a number of historic duels in which lawyers were involved.

Shuck’s collection as well as other biographical work on the pioneer lawyers reveals a great range of education and ability among the early members of the Bar. At one end of the spectrum is David Terry, who rose to the State’s highest court and had a successful trial practice (see Chapter One, and Online Note: Friends and Allies). Terry had virtually no formal training for the law, having spent a few years (at most) as a young man in his uncle’s Texas office. E. G. Waite, An Estimate of the Life and Character of David S. Terry, 15 Overland Monthly 434 (Oct. 1889) described Terry’s lack of learning.

In Shuck’s 1901 compilation there are many other men like Terry with little education while there are also others such as D.W. Delmas, at 625 and William H.L. Barnes, at 617 who were Yale law graduates, and Ogden Hoffman, at 472 from Harvard Law. Many others were college educated and had apprenticed for years or had come to California from a background of successful practice in other states. Stephen Field had studied and practiced with his distinguished brother David Dudley Field in New York. Foltz’s opponents in the Hastings case, Joseph Hoge, at 565 and Samuel Wilson, at 566 had successful Midwestern practices before moving to California.

Before 1880 there was no law school in the state, but once Hastings was established it provided a source for rigorous legal education for future generations of California lawyers. THOMAS GARDEN BARNES, HASTINGS COLLEGE OF LAW: THE FIRST CENTURY (1978) gives a good picture of the vision and practices of the men who founded the law school and of John Norton Pomeroy, the prominent Eastern professor who organized the school’s curriculum.

Clara Foltz’s Practice

Clara Foltz’s cases, shaped by her position as a woman lawyer, offer good examples of the work of a hustling solo practitioner. Divorce suits, in which she usually appeared for the plaintiff-woman, criminal cases representing both paying clients and defendants who came to her by unpaid court appointments, personal injury litigation, patent infringement suits, and property disputes were all cases she tried in the western courts.

Foltz advertised different specialties at various periods in her life, including corporate, mining, and oil and gas law in the early part of the century. I have read a number of her appellate briefs, transcripts on appeal, and newspaper descriptions of her trials and concluded that she was an excellent lawyer. Examples are spread throughout the text, but I will mention several here. People v. Morrow, 60 Cal. 142 (1882) described in Babcock, Inventing, at nn. 160-168 in which she challenged an instruction routinely given in criminal cases, is a good example of her legal thinking. She made an original argument about why the instruction violated both the presumption of innocence and due process; both arguments were sophisticated for her time. Brief of Appellant, at 4, People v. Morrow, 60 Cal. 142 (1882) (Cal. State Archives).

Another case which shows her high-order legal skill was Newman v. Smith, 77 Cal. 22, 18 P. 791 (1888), in which Foltz represented a woman who claimed that potential purchasers of her property had promised to build a Spiritualist retreat there and then reneged and planned to sell it to a large corporation. When she lost in the trial court on the ground that the facts did not support a legal claim, Foltz appealed and won rescission of the contract. The Spook Home, L.A.TIMES, May 8, 1889; Spirit Thieves, L. A. TIMES, Apr. 9, (1888). On behalf of an old widow, Foltz made the legally advanced point that there should be damages for emotional distress and harm in fraud cases. Though she did not win on this issue, she was much in advance of her time and the case is still cited for originating the concept. Andrew L. Merritt, Damages for Emotional Distress in Fraud Litigation: Dignitary Torts in a Commercial Society, 42 VAND. L. REV. 1 (1989), at 11 (describing Foltz’s case).

In her civil work, Foltz was almost always representing an individual, often a relatively poor one, rather than a corporation, business, or even a rich man’s estate. I have found no indication that she was employed for one of the lucrative will cases for which San Francisco was famous. (Western people tended to re-invent themselves, but rather often, at least when they died rich and testate, earlier families and relatives would appear to claim a share; breaking and defending wills was a specialty in itself). See e.g., Chapter Four for the description of the epic Martin Will case, which Foltz led the Portia club in attendance.

The Cogswell case, discussed in Chapter 2, in which Foltz successfully sued a client for her fee was important in establishing that as a woman lawyer she would not be taken advantage of when it came to payment. Foltz v. Cogswell, 86 Cal. 542, 25 P. 60 (1890). Framed as a suit about the contract between lawyer and client, the case became important in California jurisprudence for its definition of legal lobbying. The question was whether a contract to use personal influence to obtain passage of legislation was enforceable or void as against public policy. In Foltz v. Cogswell, the court held that it was enforceable unless “dishonest, secret or unfair means” were used. A Note in the California Law Review in 1914 criticized the rule in Foltz v. Cogswell as “anamolous” and argued that one’s personal influence should not be hired out but used for the public weal. Validity of Contracts for Services in Connection with Elections, 2 CAL. LAW REV. 499 (1914), at 501. A later Note in the Penn law review approved Foltz v Cogswell. Right to Recover Compensation for Services Rendered under a Lobbying Contract, 78 U. PENN. L. REV. 4 (1930).

In a case in which a local government board paid a lobbyist to work for passage of a bill in the U.S. Congress which the board thought would be of benefit, the California Supreme Court upheld the board and described Foltz v. Cogswell approvingly: "In that action the plaintiff sought to recover for services rendered by her in the preparation of a certain bill to be presented to the legislature of the state of California and in making arguments before the various committees of that body, in order that the justice and merits of defendant's demand for the passage of the bill might be fully understood." The Court said it drew a distinction in the Foltz case “between the use of personal, or any secret or sinister, influence upon legislators, by one who seeks the passage of an act which it holds to be contrary to public policy, and the open advocacy of the same before the legislature or any committee thereof.” Crawford v. Imperial Irrigation Dist., 200 Cal. 318 (1927).

Also at issue in Foltz v. Cogswell was the meaning of the clause of the 1879 California constitution which forbade lobbying. The case confirmed the clear history of the clause which was to prevent secret bribes and corporate lobbying. See Babcock, Constitution-Maker, at n. 111. I explain there that the Workingmen’s party presented a number of ill- drafted provisions that would have made all personal solicitation of legislators a crime. But the intention of the clause that passed CAL. CONST. art. IV, § 35 (1879, repealed in 1966) (current version at CAL. CONST. art. IV, § 15) was to prevent only improper influences by “bribery, promise of reward, intimidation, or any other dishonest means."

Women and Criminal Law Practice

As noted throughout the text, Foltz, like her friend Laura Gordon and many other pioneers, did a great deal of criminal defense work. See Chapter Seven. I have discussed the reasons for this and some of the leading cases in the careers of Lavinia Goodell, Lelia Robinson, and Laura Gordon as well as Foltz in Women Defenders in the West, 1 NEV. L. J. 1 ( 2001); WLH website; text excerpted below; see article for detailed footnotes.

Most of the 208 women lawyers captured in the 1890 census did office work, in association with their husbands, brothers, or fathers. Few went to court, and fewer still specialized in criminal defense. Despite the fact that women defenders were a miniscule number within a tiny group, the dark image of a woman appearing on behalf of the criminally accused was commonly invoked against women becoming lawyers at all. Why this was so, and what special qualities women brought to criminal defense is the subject of this essay.

Lelia Robinson

Lelia Robinson, who was herself an historian of women lawyers, offers an ideal starting point. She defended criminals in Washington Territory in the mid-1880s. In order to gain this experience, she had migrated from Massachusetts, where she was the first woman lawyer in the state. It was an arduous journey to a wild destination and Miss Robinson traveled alone in 1884. Certainly no one would have predicted only a few years earlier that she would be capable of such a journey. At that point, when she matriculated at Boston University law school, her great worry had been about daily student life: how was she to deal with fellow students given that no lady should speak to a man unless they had been formally introduced.

She worked out this problem and did well at her studies, finishing fourth in a graduating class of thirty-two. But the Massachusetts court would not admit her to practice on account of her sex. In 1880, following the path of other first women (in fact, citing Clara Foltz’s case in California), Robinson turned to the legislature, lobbied through a woman lawyer's bill and became the first to take advantage of it.

Even duly licensed, she had no offers of employment in Boston. So she hung out her shingle, and found, as she later wrote, that the "embarrassments and difficulties" she encountered without prior training “in an established office are such as none but those who have experienced them can ever realize." Frustrated because the little business she had was office work, and feeling that "the public judges a woman lawyer, as it does a man, largely by his success in court," Robinson set out for the West. Washington Territory had adopted woman suffrage, and women served on juries there. She counted on courtroom opportunities in a place so liberal on the “woman question.”

Practically upon her arrival in Seattle, Robinson was appointed by the Territorial judge to represent the indigent accused. Though “the sound of my own voice in public [was] quite unknown to me, ” she was soon defending poor men before “mixed juries”, i.e. containing men and women. She was the first woman to have this experience and later wrote that if woman jurors “failed in either direction, it was in sometimes being a trifle too logical, not allowing sweet pity to have its fair influence.” Robinson complained of a particular woman juror who "thought my Chinaman client to be guilty . . .. Whereas he was really quite innocent. [T]he following week on another case, my first peremptory challenge was expended on this lady, whom I did not dare trust again." Thus, in Washington Territory in 1885, Lelia Robinson became not only the first woman lawyer to argue to a mixed jury, but the first to strike a woman from the panel.

Robinson found that she was good at criminal jury work, and she was also “delighted with the place, climate, people and the bright new civilization” in Washington Territory. But she grew lonely for her parents and sister in Boston, who had reneged on their promise to follow her. By 1888, she was back practicing in Massachusetts, not doing much in the criminal line. Yet, she found it easier to get established at home this time around because she had been “so broadened and liberalized by my experience in the . . . west that . . . my own greater self-confidence helps people more readily to place confidence in me.”

Her story sets the themes here—the immense difficulties faced by early women lawyers, enlarged if they wanted to do trial work, further magnified if the work involved criminal defense. In order to argue before juries, Lelia Robinson left her family and social connections in Massachusetts and traveled alone across the continent. In the West, she found opportunity never before known to women.

Women Defenders: The Negative Image

Because Lelia Robinson tried her first criminal cases in a place where women, for a brief, bright interlude, had suffrage and served on juries, she did not face one of the main arguments against women lawyers: the fact that they must appear before, and seek favor from, all-male juries. Opponents conjured up a seductive woman defender pleading passionately and personally to twelve men, skewing justice and shaming herself and all womankind in the process. (This image had more rhetorical force than a woman lawyer in a cozy office-parlor, writing a will for another lady—a picture closer to reality for most early women lawyers).

The negative image of the woman advocate in a criminal case was constantly raised against Clara Foltz and her friend Laura Gordon when they were trying to become lawyers and attend law school in California in the late Seventies. “Impressionable male jurors,” their opponents argued, would return “a verdict of acquittal without leaving the box,’’ and “the law and the facts would be simply ignored.”

When Foltz and Gordon sued Hastings Law school for admission, an opposing counsel forthrightly stated his fear: “lady lawyers were dangerous to justice inasmuch as an impartial jury would be impossible when a lovely woman pleaded the case of the criminal.” Behind the “honeyed compliment” as Foltz called this kind of thing, was a primal terrible image: a woman lawyer wins an acquittal (by using her feminine charisma) for a guilty man (a murderer perhaps) from an all-male jury (chivalry defeats justice).

Women defense lawyers would produce the wrong results, and at the same time, they would degrade themselves. When Lavinia Goodell, the first woman lawyer in Wisconsin, sought to join the bar of the state supreme court in 1876 in order to appeal a criminal case, Chief Justice Ryan wrote a long opinion denying her the right to practice in the higher court. He said, “Reverence for all womanhood would suffer in the public spectacle of woman so engaged.” The criminal law itself was especially wrong for women, and women wrong for it. “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, bastardies, illegitimacy, prostitution, lascivious cohabitation, abortion, infanticide, obscene publication, libel and slander of sex, impotence, divorce.”

Missing from his parade of horribles were most common law crimes. He did not inveigh against women “mixing professionally” with the more general mine of criminal cases: not a word of violence and murder, train robberies and saloon hold-ups. All his “unclean issues” intimately involved either the female sex, sex itself, or both—things women knew as much about as men. Yet it is not what they knew, but mentioning it in public, or in mixed company, that the chief justice found so repellant.

In another part of the opinion, Judge Ryan cited an old English case involving sodomy committed on a young girl. The question was whether the criminal statute, written in terms of a male victim, covered the case. Justice Ryan found this case relevant to whether the Wisconsin Code allowed Lavinia Goodell to be a lawyer. With ill-disguised satisfaction, he pointed out that “no modest woman could without pain and self abasement” even read this important precedent, much less “so overcome the instincts of sex as to publicly discuss it.”

In the same vein, one of the arguments used against Foltz and Gordon was that women lawyers would be embarrassed at trial by the necessity of cross-examining on some indelicate subject. As Justice Bradley of the U.S. Supreme Court had written, concurring in the opinion that Myra Bradwell had no constitutional right to practice law, “the natural and proper delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”

Women Defenders and Women Jurors

The women lawyers themselves were not the only ones who would be defiled by allowing women to defend in criminal cases. Other women, symbolically and actually, would be corrupted. The opponents had several well-elaborated arguments about how this would occur. First was the assumption that once women invaded the courthouse as lawyers, then the only way to offset their bad effects on justice, would be to put women on juries. “Upon such a panel the woman lawyer’s seductive and persuasive arts would be wasted.”

Though this argument -- that women lawyers would produce women jurors-- might initially appear far-fetched, it gained credibility from the women lawyers themselves. Clara Foltz, Laura Gordon, Lelia Robinson, and Lavinia Goodell were working for the day when women would be jurors. Becoming lawyers and serving on juries were joined as causes, along with voting, in the movement for equal citizenship.

To their male adversaries, the prospect of women jurors was as ugly as that of women lawyers. Many believed that jurors, like women lawyers, would be degraded by "all the unclean" evidence they would be forced to hear in criminal cases. Even worse, they would hear this evidence in the forced company of men. Also raised was the specter of the woman mingling in a new social relationship with men in that most intimate setting: the jury box.

Another set of arguments against women jurors had to do with their competence. These arguments were not perfectly consistent. First, it was said that women had special expertise and could help the jury overcome the feminine wiles of women lawyers. On the other hand, some adversaries urged that women as jurors would tend to support their fellow women; others argued, often in the same breath, that jurywomen would vote for the handsomest man. Either way, the argument was that women jurors would not be deciding on the basis of the evidence.

The contentions were often reduced to a syllogism: women lawyers will bring on women jurors (and that’s what you strong-minded women want); women jurors will be defiled by hearing dirty evidence and by being sequestered with male strangers; therefore there should be no women lawyers. All of the early women defenders met this argument repeatedly. Few of them were able to refute it from actual experience with women jurors. Thus, when Clara Foltz passed through Washington Territory on a lecture tour, she rushed to the courthouse as soon as she arrived in Seattle—in order to see the wondrous sight and to experience the vision of mixed juries that had drawn Lelia Robinson across the continent.

The sight -- the “grand evidence of progress” -- moved her so much that Foltz ”had hard work to maintain my self-control.” Responding to the common claim that that there was something indecent, even lewd, about a woman being on the jury, Foltz went on to describe one of the "ladies of the jury: a motherly-looking, intelligent woman, with hands encased in cotton gloves and bonnet strings tied snugly under her chin, listening with conscientious intent to the argument." "This earnest woman,” Foltz continued indignantly, was "the reality, the fiction of which has been made the theme of ribald jest and unseemly denunciation for lo! these many years."

Laura Gordon and the Sproule Case

Remember the central image against the woman as lawyer: that she would use her feminine charisma before an all-male jury to win for a guilty man. Some said that Laura Gordon did just that in the Sproule case. Her client had shot and killed another man by accident when he was actually aiming for Espey, the seducer of his wife.

It happened in the raw little mining town of Oroville in 1883, and the whole community turned on Sproule. They did not give him the benefit of the unwritten law (justifying a man who kills his wife’s seducer) because of the carelessness of his aim—Oroville did not approve an incompetent cuckold—and because the deceased had been young and popular. Against the advice “of the most distinguished lawyers in the state,” Laura Gordon said, she took the case.

She had her hands full: Sproule had premeditated murder and committed it. He just missed his intended victim. Not exactly a dream case for the defense—but Gordon focused on the wrong done to Sproule. In showing how he had been driven half mad by his wife’s affair, Gordon managed to insinuate that the man he had intended to kill actually deserved to die at his hand. Gordon knew that for this defense to succeed, the wife must be the star witness, revealing the affair and how it drove her husband to a murderous state (and perhaps even interfered with his aim). Unfortunately, Sproule's wife had fled to San Francisco after the murder. Gordon convinced her to return to Oroville.

Heightening the drama, the other man and his wife were witnesses to the shooting. In Gordon’s words, “the man he had intended to shoot—the man who had wronged him beyond reparation—was trying in every way to see this woman [Mrs. Sproule]. And she—well her husband was on trial for his life, and she loved the other.” Through the trial Gordon kept Mrs. Sproule in the room next to her at the hotel and "never left her for fear they would influence her to testify against her husband.” All Mrs. Srpoule had to do to assure Sproule’s execution was to deny the affair.

By the force of her personality, and her oratorical skills, Laura Gordon won the acquittal of Sproule—to the amazement of all. In telling of the victory, she said: “Before the trial they were anxious to lynch Sproule, but when the jury brought in the verdict of ‘not guilty’ the crowd in the courtroom cheered and carried him on their shoulders through the town. That, I think, was the hardest case I ever had and that was the greatest victory.”

The Sproule case illustrated one of the hazards for these movement women who were also criminal defense lawyers. In the course of the representation, loyalty to client often clashed with feminist politics. Gordon, for instance, pilloried Mrs. Sproule on the witness stand. Years later, in the same breath in which she related her triumph, Gordon recalled Mrs. Sproule: “the woman fairly groveled at my feet begging me not to prosecute the man she loved. It was awful.”

In a case in the early 90's, [State v. Wells, Chapter Seven] Clara Foltz experienced the same clash of values and drew much press attention by publicly destroying a young woman, a reformed prostitute trying to start a new life, who was the chief witness against her male client. When she was in Washington Territory, Lelia Robinson found herself in a similar situation arguing on behalf of her criminal client that his conviction should be reversed because women had served on his jury (a denial of due process). Later she ruefully explained that “my business associations made it necessary . . . so that while my sympathies were on one side of the question, my work was done on the other, as sometimes must happen.”

Why Women Became Defenders

Given that the female criminal defense lawyer was so detested a figure, and given the difficulties of their actual experiences, why did women choose, and remain in, that branch of practice? Necessity is a large part of the answer. Though in the last decades of the nineteenth century it was easy for white males to become a lawyer, in terms of formal requirements, it was much harder to make a living at it. To put “Esquire” after his name in most of the West, a man needed only to reside and read law for a little while and then to answer a few questions orally asked by the court where he wished to practice. Comity or courtesy among the courts usually secured admission on motion everywhere in the admitting states, and in neighboring locales as well.

But a man who was not socially connected, who had neither stake nor established partner, might well fail before he got started. Gordon Bakken in his evocative picture of practice in California from 1850-1890 points out how often lawyers found it necessary to supplement the practice of law with other occupations—notably office holding and newspaper editing. Men also used the strategy of banding together in their practices—enabling the purchase of a library and enlarging the client base. These options, particularly office holding, were not as open to women lawyers, though Foltz and Gordon tried the male strategies of running for office and of newspaper publishing. Both also lectured for money to help provide the overhead for their practices in the early days.

Adding the obstacle of being a woman to the difficulties of being a new lawyer makes it clear why women turned to criminal defense. Criminal cases were the only ones that came their way. Laura Gordon, for instance, said that she sought no specialty, but “seemed to drift into criminal practice as a result of successfully defending a Spaniard charged with murder, within two months after admission to the bar.”

The women who became defenders were almost all on their own as lawyers—they did not practice with fathers, husbands, or brothers. Without a male lawyer to bring in cases or appear in court when that was necessary, these women did not have the option of specializing in office work or writing wills for other ladies. Instead, they took what clients they could get; this was often a desperate man accused of crime, desperate enough to hire a woman, or too poor to pay a man’s fee.

Criminal clients were sometimes sent to the women by other lawyers (after the client’s funds and his family’s funds were exhausted). “My office became a sort of rendezvous for the poor and the weak and the despairing” — so Clara Foltz wrote of her early practice. Poor women accused of crime, especially prostitutes, or soiled doves as they were called in the West, came to the women lawyers. Foltz referred to these clients as “our weak little sisters of the so-called underworld.”

But the main way that women became defenders was by court appointment, which was the way male lawyers usually acquired their indigent clients as well. Though there was no formal statutory appointment system, a judge might call upon a member of the bar to represent a defendant facing a serious charge. Clara Foltz described how, when she went to court on her paying cases, the judges would often summon her forward to represent an indigent criminal defendant while she was there. In her diary, Lavinia Goodell described her first criminal appointment:

"I was sitting in my office one day, drafting a will when the sheriff called with a message. 'Judge Harland has given you a criminal to defend. You will find your client at the jail . . . charged with stealing a watch.' It took me rather by surprise. I had had but one criminal defense before; that of a most excellent and highly respectable lady wrongfully accused by enemies . . . . But to defend a thief and a ramp was by no means so romantic a prospect. However business was business, and I wended my way to the jail in a pouring rain, only wondering whether my client would take a fancy to my watch.”

Representing the criminally accused in these circumstances was considered part of a lawyer’s duty as an officer of the court. Often, however, the method did not result in the best representation. Clara Foltz described the appointment system: “Those whose ability commands a law business are seldom chosen. …They have no money to spend in an investigation of the case, and come to trial wholly unequipped either in ability, skill or preparation to cope with the man hired by the State.”

Foltz’s picture was accurate of most appointed counsel and their hapless clients, but anecdotal evidence of the pioneer women defenders shows them doing a lot better in routine criminal matters than the men did. Though driven partly by necessity in their representation, women defenders had an ideological stake in the work beyond the officer-of–the-court rationale available to men.

The Contributions of Women to Criminal Defense

Close examination of the individual lives of the early women lawyers reveals a self-conscious feminist in virtually every one of them. They considered themselves part of a great movement to transform American society. This motivating philosophy carried over to criminal defense in a number of ways—on the most basic level; in everything they did they were representing all women. Each woman bore on her shoulders the reputation of every woman in all public performances. This naturally made for better performances.

As radical as it was to seek the vote, jury service, or the right to pursue a profession, the late 19th century suffrage movement included even more extreme elements. Many of these socialistic, populist, progressive movements-within-the-main-movement considered inequality and oppression as the root causes of crime, and criminal defendants as victims of a cruel and corrupt system. Nationalism, which sprang up in the late 80s, was an example of one of these sub-movements. Based on Edward Bellamy’s novel, LOOKING BACKWARD, it envisioned a classless society without want and with work for all. In such a world, crime would be largely eradicated, and what remained would be treated as mental illness. Many of the movement women were Nationalists; Clara Foltz, for instance, was President of the Nationalist club in San Diego.

Leftist politics was not the only ideological force driving women to criminal defense. Prison reform became a cause for many around the same time as abolition and women’s rights. Moreover, prisoners had long been objects of Christian charity (of which women were the main dispensers), and religious tradition was reinforced by the new vocation of social work for women. Prison reform work naturally led to helping the men with the charges that had landed them behind bars.

For some women, work among the poor was joined with the temperance movement, which had as a central tenet that liquor caused most crime, and that criminals were pitiable victims of a terrible addiction. Lavinia Goodell found daily proof of this theory among her clients. Of one of her criminal trials, she commented: “I found that whiskey was at the bottom of all [my client’s] woes, and resolved to take the occasion of his defense to administer a strong dose of temperance to the twelve good and true men who would sit as a jury.” In seeking a pardon for a client, she urged the governor that the community itself was responsible for his crime (and most others) because it licensed the sale of liquor.

The women defenders felt and exhibited a special empathy with their clients—partly generated by the outsider status they shared, but springing also from maternal feelings. These were forgiving mothers. Toward the end of her life, Laura Gordon spoke in elegiac terms about representing the criminally accused:

"The man, poor helpless wretch, gives you his life—practically lays it in your hands and says: Save it. He tells you his every thought and motive. He takes you into his confidence and shows you the dark corners and unseals the closed doors and holds the lanterns of his understanding so that you may examine along the ways his soul has trod and witness the obstacles it has stumbled over. Each life, my friend, each life has so much we cannot understand that sometimes I have looked upon the human being and I have thought, 'Oh, no one is to blame—no one.'

Lavinia Goodell’s diaries likewise reveal her close identification with the criminally accused and her desire to save them from their fates. A courtroom artist rendered one of Clara Foltz’s clients with his head in her lap, sobbing after a guilty verdict: surely a new scene in law’s annals.