150th Anniversary
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CHIEF JUSTICE GEORGE:
Thank you very much. As you can see, Jake truly
has become the resident historian of the court,
and we are most fortunate to have his assistance.
An exhibit showing all the sites just described
is set up for permanent display on the fourth
floor of the Earl Warren Building in San Francisco,
just outside the public entrance to our courtroom
there. And I also should note that Jake personally,
at home, framed not only most of those photographs
but many of the other items on display in the
court. In this endeavor, he was ably assisted
by someone in the audience today — his
son, Adam.
Next we shall hear from Mr. Lawrence Schei,
who practiced law in Sacramento for almost five
decades, beginning in 1940 and retiring several
years ago. During that time he argued cases
before the United States Supreme Court, this
court, and our Courts of Appeal, and he has
been very active in community matters as well
as local and statewide bar groups. He has, for
example, been significantly involved in continuing
education of the bar, and has served as president
of the Sacramento County Bar Association.
MR. LAWRENCE SCHEI:
Chief Justice and Justices of the court: Thank
you for giving me the privilege and the honor
of participating in this celebration of the
court's 150th anniversary. The people of Sacramento
are pleased to see you here today. I am sure
that you know that we welcome your presence
here, as often as you want to come and for as
long as you want to stay.
On February 2, 1855, just six days more than
145 years ago, the Supreme Court of California
met in this room and listened to arguments in
cases on appeal. What brought the court to Sacramento
that day? Let us look at the record.
California's first Constitution, adopted on
October 10, 1849, established a system of government
for the state, including a judicial system consisting
of trial courts and a three-judge Supreme Court.
The Constitution of 1849 also provided: "The
first session of the legislature shall be held
at the Pueblo de San José; which place
shall be the permanent seat of government, until
removed by law: Provided, however, that two
thirds of all the members elected to each House
of the legislature shall concur in the passage
of such law."
In 1851, two-thirds of the members of the Legislature
voted to move the capital from San Jose to Vallejo.
In 1853, they voted to move the capital again,
this time to Benecia. On March 24, 1854, the
Legislature, by majority vote, designated Sacramento
as the capital of the state. The next day, March
25th, the Legislature decreed that the Supreme
Court meet at the state capital.
Two days later, on March 27, the three justices
of the court met in chambers. Associate Justice
Alexander Wells, a resident of San Jose, and
Associate Justice Solomon Heydenfeldt believed
that the legislation making Vallejo the state
capital had not been effective because Vallejo
had not met conditions imposed by that legislation,
and therefore San Jose was still the capital.
Without calling for a hearing and without written
opinion, Wells and Heydenfeldt voted to move
the court's operations to San Jose. Chief Justice
Hugh Murray dissented. Wells and Heydenfeldt
then signed a minute order requiring the Sheriff
of Santa Clara County to rent quarters in San
Jose and to move the court's furnishings, books,
and records into those quarters.
The Daily Alta California for March 31, 1854,
describes the move in these words: “The
archives, and a portion of the furniture of
the Supreme Court, accompanied by the Clerk,
took their departure yesterday for San Jose,
in accordance with the decision recently rendered
by the majority of the court. The court went
off in a style in keeping with its supremacy.
A handsome Express wagon of Messrs. Adams &
Co., to which was harnessed the private horses
of the proprietors, drew up before the door
of the City Hall, and received the legal lore,
handsomely bound, which has been accumulating
in the Court since its organization. The Court
went off in dashing style, and we fancied that
we saw the shades of Blackstone and Coke looking
out of one of the windows of the City Hall.”
The court met in San Jose on the first Monday
in April and for the rest of 1854.
John Bigler, a resident of Sacramento and Governor
of California, filed suit in the district court
in San Jose, challenging the Supreme Court's
action of March 27. The district court ruled
for San Jose. Bigler appealed. On October 31,
1854, while Bigler's appeal was pending, Justice
Alexander Wells died. That gave Governor Bigler
the opportunity to appoint a replacement for
Wells, and on November 20 he appointed Charles
Bryan as associate justice. In early January
1855, Chief Justice Murray and Justice Bryan
reversed the district court. Murray's carefully
reasoned opinion held: The vote of two-thirds
of the members of the Legislature to move the
capital from San Jose to Vallejo was effective;
after that, a majority vote was all that was
needed to move the capital again; the power
to move the capital belongs to the Legislature,
not the Supreme Court; the Legislature's act
of March 24, 1854, made Sacramento the capital
of California. Justice Heydenfeldt dissented.
What motivated the actors in this play? We can't
be sure, but it is worth noting that Justice
Wells, who lived in San Jose, voted for San
Jose, and that Governor Bigler, who lived in
Sacramento, played a large part in bringing
the capital to Sacramento. If any of us had
been in Wells's or Bigler's shoes, it seems
likely that we would have acted as they did.
Most of us do what we can for our home town.
If it prospers, so do we.
On November 2, 1852, a terrible fire destroyed
more than half of the buildings in Sacramento,
including the first building put up on this
corner of Second and J Streets. Soon after that
fire, Benjamin F. Hastings bought the property
and built the building in which this court meets
today. When the work was finished, Hastings
opened a bank on the first floor and rented
the rest of the building to others.
In January 1855, shortly after it decided the
Bigler case, the Supreme Court rented the second
floor of this building from Hastings. By the
end of January, courtroom and offices were ready,
permitting the court to start hearing cases
on February 2.
In 1857, feeling a need for more space for its
library, the court moved all of its operations
to the larger Jansen Building, at Fourth and
J Streets, two blocks east of the Hastings Building.
Late in 1859, the first floor of the Hastings
Building became available and the court moved
back here.
Devastating floods hit Sacramento and most of
the rest of California's Central Valley in December
of 1861 and January of 1862. Heavy rains in
the lowlands and deep snow in the mountains
were followed by warm rains. Water from the
rain and melted snow filled the rivers to overflowing.
Most of Sacramento's streets and buildings were
flooded. Legislators had to hire rowboats to
get to their sessions in the Sacramento County
Courthouse. In mid-January, the Legislature,
the Governor, and most state officers decided
to move to San Francisco.
Did the Supreme Court move to San Francisco
too? No definite answer to this question has
been found. There is no order to move or to
rent other quarters in the Supreme Court's minute
book. Those minutes show that the court heard,
considered, and decided cases during January
and February of 1862, without interruption.
Newspapers that I have seen contain many editorials
criticizing or praising the move from Sacramento
to San Francisco by the Legislature, the Governor,
and other state officers, but I found no mention
of a similar move by the Supreme Court. The
"City Intelligence" column of the
Sacramento Union, which reported news of a strictly
local nature, contains several reports of actions
taken by the Supreme Court. This evidence, while
not conclusive, certainly indicates that the
Supreme Court stayed in Sacramento throughout
1862.
The newspapers also report efforts to move the
capital out of flood-prone Sacramento. The Legislature
was not persuaded. In May, the Legislature and
other state officers moved back to Sacramento.
While it had been apparent from the middle 1850’s
that the Legislature and other state agencies
needed a home of their own, no such home was
available to them until 1869. On April 4, 1860,
the City of Sacramento gave the state the six
blocks bounded by L, N, 10th, and 12th Streets
as a site for a state capitol building, closing
all streets and alleys in that area. On September
10, 1860, a contract to build was signed, and
on May 15, 1861, "a cornerstone was laid
with imposing Masonic ceremonies." The
first two contractors failed to fulfill their
contracts. The flood of 1861-1862 and a host
of other difficulties slowed work to a crawl.
At long last, on November 26, 1869, the building
was finished. The Governor moved in on November
26, the Supreme Court on December 3, and the
Legislature on December 6, 1869.
The Supreme Court maintained its offices and
held all of its hearings in the new State Capitol
Building until early 1874, when it rented quarters
in San Francisco and moved its operations there.
Later in 1874 the Legislature gave its approval
to that move.
It has been said, “The impetus for the
movement of the Court's headquarters is not
clear, but it appears that weather, water and
whiskey had a lot to do with it.” So far
as weather is concerned, most Sacramentans prefer
our clear and warm summer days to the cold and
foggy summer days and nights of San Francisco.
And we firmly believe that our water and whiskey
are at least as good as San Francisco's.
The California Constitution of 1879 did not
specify where the Supreme Court was to meet.
This left the court free to stay in San Francisco
and it has stayed there.
Since 1874, the court had held some hearings
in Sacramento and some in Los Angeles. I am
advised that from now on, the hearings in Sacramento
will be held in early February and early November.
In 1917, feeling the need for more space in
the capitol building, the Legislature employed
architects to design two new buildings to be
built on the two blocks just west of the capitol
grounds. One of these would be for the use of
the Supreme Court, the Court of Appeal for the
Third District, and the state library. Construction
of the Library and Courts Building began in
1923, but the building was not completed until
1928. Dedication ceremonies were held November
28, 1928. During construction, efforts were
made to persuade the court to move its offices
back to Sacramento. The justices were not persuaded.
The Court's headquarters remain in San Francisco.
It is entirely fitting that the Supreme Court
of California has chosen to begin the celebration
of its 150 years of existence in this historic
B.F. Hastings Building. The court was five years
old when it came to Sacramento in 1855. The
Hastings Building was an infant aged two. The
court's earlier homes are long gone, but this
historic monument survives. Using just a bit
of imagination, we can fancy that we hear these
old timbers saying: “Welcome back! And
come again soon!”
CHIEF JUSTICE GEORGE:
Thank you very much, Mr. Schei.
Barbara Babcock is the Judge John Crown Professor
of Law at Stanford Law School. She is a graduate
of Yale Law School, clerked on the District
of Columbia Circuit of the United States Court
of Appeals, practiced criminal defense law for
nine years, and headed the District of Columbia
Public Defender Service. In 1972, she arrived
at Stanford as the first woman hired on tenure
track.
Professor Babcock is an expert in the field
of criminal and civil procedure and, while on
leave from Stanford, served as Assistant Attorney
General for the Civil Division of the Justice
Department in the administration of President
Carter. She currently is writing about the first
woman lawyer on the Pacific Coast, Clara Shortridge
Foltz, and her research has touched on a great
deal of California legal history. She serves
as a member of the Board of Directors of the
California Supreme Court Historical Society.
Today she will share some of what she has learned
about the role of women as related to the history
of the California Supreme Court.
PROFESSOR BARBARA BABCOCK:
Mr. Chief Justice and Associate Justices—I
am honored to be here today.
A hundred and fifty years ago, the first California
Legislature selected the first Supreme Court.
One year later, the Legislature provided for
California lawyers: “Any white male citizen
of the age of twenty-one years, of good moral
character, and who possesses the necessary qualifications
of learning and ability” could be admitted
to practice after a “strict examination.”
For the next 39 years, only white males were
eligible for the California bar.
Then in 1878, women activists, led by an obscure
San Jose housewife, lobbied a “Woman Lawyer’s
Bill” through the Legislature. Fearing
repeal by some future Legislature, the same
women placed their right to practice law in
the 1879 Constitution, where it still appears
today: “No Person shall on account of
sex be disqualified from entering upon or pursuing
any lawful business, vocation, or profession.”
1
Clara Shortridge Foltz was the housewife who
led the lobbying effort. She then used “her
bill” to become California’s first
woman lawyer: The Portia of the Pacific, as
the nationwide press coverage dubbed her. A
year later she was the first woman lawyer to
argue before the California Supreme Court. That
is the story I offer today in celebration of
the sesquicentennial of this great court. 2
The story opens in “the terrible seventies”_
a decade of crop, bank, and moral failures;
of unemployed working men, despised Asians,
silver kings, and railroad barons; all on the
edge of class and race war fueled by an unrestrained
press and flamboyantly manipulative politicians.
Almost overnight, the radical Workingmen’s
Party of California sprang up, with a program
of redistributing wealth and eliminating Chinese
labor. Despite the racism, and initial tendencies
toward mob action, the WPC gained increasing
middle-class support. By 1879, Karl Marx himself
was impressed. “Nowhere else has the upheaval
most shamelessly caused by capitalist concentration
taken place with such speed,” he wrote.
Instead of Marxian revolution, however, Californians,
including the Workingmen’s Party, turned
to constitution-making as their change agent.
The campaign for a new constitution had the
qualities of a moral crusade. Reform was not
enough; the people wanted rebirth.
Though women are not usually mentioned in the
accounts of this period, they were very much
in the fray. With their male allies, they pressed
for the three great goals of their movement:
suffrage, jury service, and access to the professions—especially
the legal profession. The women, like everyone
else, believed that they would at last find
their rightful place in the re-constituted California.
One woman, Laura DeForce Gordon, actually ran
for delegate to the Constitutional Convention,
aided by her friend Clara Foltz. No woman could
vote for her, but no law prevented her from
serving. After a spirited campaign, Gordon lost
to a man, of course. David Terry was the man.
Terry had been on the California Supreme Court
before the Civil War, had resigned to duel with
United States Senator David Broderick, and fled
the state after killing him. By the late 1870’s,
Terry was back practicing law in Stockton, and
a forgiving, or perhaps forgetful, public elected
him as a delegate to the convention.
At the convention he became the unofficial leader
of the Workingmen —and a friend to the
women’s cause. The convention started
in September 1878, the same month Clara Foltz
became a lawyer, and also the same month that
the first law school opened in California. Hastings
College of the Law was established with a grant
from Serranus Clinton Hastings, the first Chief
Justice of the California Supreme Court.
The first woman lawyer greatly desired to study
at the first law school in order to improve
herself and better serve her clients. Having
eloped at fifteen, and borne five children,
Foltz had little previous opportunity for formal
education. She and Laura Gordon (who was to
become California’s second woman lawyer)
signed up for the January term and paid the
$10 tuition. But after three days, they were
expelled. No reason was given, but unofficially
they learned that the rustling of their skirts
bothered the other students.
When all their efforts to negotiate failed,
Foltz and Gordon sued the Hastings board of
directors, the cream of the bar, which included
a former justice of the Supreme Court, W.W.
Cope, and a future justice, J.R. Sharpstein.
Though their opponents had all the prestige,
Foltz and Gordon had all the good arguments.
Hastings was part of the University of California,
coeducational from its founding. And the recent
passage of the Woman Lawyer’s Bill enabled
Foltz to scoff at the idea that California would
be a state where women might practice law but
not learn it.
The case was assigned to Judge Robert Morrison,
of the San Francisco district court, who within
the year would be elected Chief Justice of the
Supreme Court under the new Constitution. After
a dramatic and highly publicized courtroom hearing,
while Morrison was considering the case, the
convention passed the women’s employment
clause and added another, providing that that
all departments of the University of California
should be officially open to women. This was
partly a consolation prize for the narrow defeat
of suffrage, and partly David Terry’s
behind-the-scenes efforts to help the women. 3
Foltz said of Judge Morrison that though “he
did not believe in women lawyers, he did believe
in the law.” Citing the Women Lawyer’s
Bill, “pending at the same time as the
bill to establish Hastings,” and the constitutional
clauses, Morrison issued a writ of mandamus
ordering the women’s admission. But to
Foltz’s dismay, he stayed the writ pending
appeal.
The San Francisco Chronicle “hunted up
S.C. Hastings to get his opinion about admitting
Mrs. Foltz and Mrs. Gordon among a lot of innocent
law students who had never seen a woman.”
Hastings said he thought Judge Morrison was
right and opposed the appeal. His main concern
was how to separate the sexes once women prevailed,
as they inevitably would in the Supreme Court.
The reporter had a lot of fun with this—imagining
a gilt-edged balcony, or a simple pine platform
in one corner, and noting that conception of
“the details required a judicial intellect.” 4
Clara Foltz did not see any humor in the matter.
Years later, she was still steaming at her opponents
“who strove to defeat the letter of the
law and to overcome its intent and spirit by
arguments unworthy of the profession they adorned.”
Even though she was sure of victory in the end,
the semester would be over before her case could
be heard in the Supreme Court. She had spent
the “scholarship” put together by
family and friends, and never would again have
the chance for study and reflection, freed from
the interests of a client or a cause.
She returned to San Jose, and prepared to argue
her case. Meanwhile, the Constitution was ratified
by the people. It created a new seven-member
Supreme Court, but Clara Foltz’s case
came before the old institution in its last
month of existence. Chief Justice Wallace said
her argument was the best for a first argument
that he had ever heard. She won without dissent. 5
So ended the first appearance by a woman lawyer
before the California Supreme Court. As to the
characters and institutions, here is the rest
of their story.
Clara Foltz and Laura Gordon practiced law and
had many more firsts, though Foltz always thought
of the Hastings case as her finest hour.
Hastings College of Law graduated its first
woman, Mary McHenry, in 1882. She was chosen
to give the graduation address and Foltz wrote
to her: ”You scored one for your sex [today].
As a sort of mother of the institution, I rejoice
in your success that at the first public graduating
exercises, a bright and beautiful young girl
comes off with the honors of the class.”
David Terry was killed in 1889 by a United States
Marshal who was protecting United States Supreme
Court Justice Steven Field (also a former member
of the California Supreme Court).
In 1888, the papers reported that Miss Alice
Parker of Santa Cruz became the third lady lawyer
admitted to practice by the Supreme Court. When,
before the examination, Chief Justice Searls
reminded the applicants they must be 21 years
of age, she “blushed and smiled, and the
Chief Justice with a merry twinkle in his eyes,
relieved her embarrassment by stating that if
they were not all twenty-one, they would be
by the time the court finished with them.” 6
The women’s employment clause of the Constitution
was cited in an 1881 Supreme Court case allowing
Mary Maguire to be a barmaid. It then fell into
desuetude for almost a hundred years. In 1971,
the old clause played a large part in one of
the first legal victories of the renewed women’s
movement: the same movement that brought the
first women to the bench of the California Supreme
Court and many other courts as well; the same
movement whose effects on the profession, on
the polity, and on the culture are being written,
even as we meet here today. 7
Endnotes:
(For a detailed account of the events portrayed
here, see Babcock, Clara Shortridge Foltz: Constitution-maker
(1991) 66 Ind. L.J. 849; Babcock, Clara Shortridge
Foltz: “First Woman” (1994) 28 Val.U.
L.Rev. 1231; Women’s Legal History Biography
Project, Clara Shortridge Foltz (Summer 1998)
Robert Crown Library, Stanford Law School -
http://www.law.stanford.edu/library/wlhbp/
1. California Constitution of 1879, article
XX, section 18. In 1970, the wording was changed
to, “A person may not be disqualified
because of sex, from entering or pursuing a
lawful business, vocation or profession.”
2. Foltz was not, however, the first woman to
argue before the court. In 1878, Jeannette Frost,
a temperance worker and anti-suffragist, argued
in pro per in a property case before the court.
Despite the fact that Frost was opposed to women’s
rights generally, proponents of the Woman Lawyer’s
Bill used her example to show that women have
the capacity to be lawyers.
3. On Terry’s advice, Gordon filed her
action directly in the Supreme Court, arguing
that mandamus should issue in order to have
a quick, conclusive decision on this issue “of
great public interest.” At the same time,
Foltz filed hers in the San Francisco district
court. The Supreme Court refused to hear Gordon’s
action and it was joined with Foltz’s.
4. San Francisco Chronicle (Mar. 6, 1879) p.
3.
5. Foltz v. Hoge (1879) 54 Cal. 28.
6. Daily Alta California (Sept.5, 1888) p. 2.
7. Matter of Maguire (1881) 57 Cal.604; Sail’er
Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 485 P.2d
529.
Please proceed to Page 3
Celebration
of the 150th Anniversary of the Supreme Court
(complete .PDF file)
