Introduction

Clara Foltz (1849–1934) was the first woman admitted to the California state bar in 1878 and among the earliest proponents of the idea of the public defender—state-sponsored legal defense to those without the financial means to pay for their own legal aid. A single mother to five children, Foltz was a fierce advocate for women’s rights and regularly spoke and wrote about the attendant legal, political, and social consequences of the movement in areas that others preferred to avoid discussing, such as carrying out the death penalty on women.


Source: Albany Law Journal 54, no. 20 (November 14, 1896): 309–10.


. . . The question of the policy of capital punishment or the electrocution of criminals is not involved. . . . The people of this state have deliberately decided that it is now and then necessary for the state to judicially kill someone in the interest of public morals. Whether this is wise or not is for the consideration of the legislature. The existence of the law raises a presumption of its necessity, and while it stands we must assume its propriety and enforce its provisions. If we do not like it, we should repeal it or modify it to meet our views; but while it stands it should be obeyed.

Should it be enforced as to men and women alike? Most certainly it should. Crime has no sex. It seizes, controls, and impels men and women alike. If a man needs killing for it, so does a woman. If crime is a disease, it still attacks both sexes in the same way. If we must kill the man to cure the disease, the woman’s death is equally necessary. If the electric chair is essential to the public good to prevent a murderer reproducing himself in a criminal progeny, its use is equally required to prevent an evil brood from a murderess. If punishment is retributive justice for the deed done, there can be no distinction. The victim [is] equally dead, whether by a man’s pistol or a woman’s poison. If punishment is to deter others from crime it must certainly be administered with an equal hand in these days of poisoning, throat-cutting, and shooting by women.

There is nothing, therefore, either in the necessities of the law or the character of the deed to distinguish the crimes of men from those of women, or to call for a different punishment. Nor is there anything in the nature of men and women themselves to require it. They are possessed of the same moral perceptions, the same reason, the same passions, the same volition, and the same self-control. Whether these exist in the same degree is immaterial. They exist in a sufficient degree both in fact and in law, as a rule; and if they do not, that is a good defense. . . .

I know some advocates of equal rights have declared that women are not amenable to laws, because they have had no voice in their making. The position is utterly defenseless and vicious. Such a theory put in actual practice would release every foreign tramp and criminal from all obligation to obey our laws and save them from punishment, though they committed every crime in the criminal code, for, surely, they have no voice in our law-making. . . .

. . . Worse still, not one law in twenty has ever been the subject of our approval or disapproval. The laws were here when we were born and will be here for the next generation.

In most instances, no living person had any voice or vote in their adoption, and to say that, therefore, these laws shall not be enforced against them is ridiculous to the last degree. It is good anarchy, but bad law. I, too, believe in equality of men and women before the law, and it would be utter stultification to make such claim as a right, and in the same breath, to deny equal responsibility.

Equality before the law is the spirit of our Constitution. The old system of exempting lords from the law and preachers from punishment worked untold evil, and is dead, as all unequal laws ought to be. . . .

. . . Unless laws bear equally on all classes, and are enforced against all classes, they become more mocked than feared by those who are relieved from their operation; but when enforced with an equal hand justice is promoted, courts are respected, and stability is secured. . . .

Study Questions

A. Does Foltz believe men and women ought to be treated as fundamentally different or fundamentally the same in the eyes of the law? Why?
B. Would Foltz argue for or against the Equal Rights Amendment?