Women in The California Gold Rush - Property Rights

Property Rights

Delegates at the 1849 California Constitutional Convention considered and adopted California's first constitution. It provided that "All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent, would remain her separate property". Delegates advanced various arguments in favor of the provision, including that it reflected the existing law of California as well as that of other states. The language of the proposal was taken nearly word for word from the Texas constitution, reflecting the civil law tradition there and in other states historically under the sway of French- or Spanish-based legal systems. The English-based common law under which many American jurisdictions operated then, women upon marriage had little or no property rights beyond provisions for one-third of the household goods and land in the event of death of the husband.

There were arguments both for and against this provision. A delegate recently arrived from New York warned against granting women separate property rights, based on his experiences in France. There, he argued, such rights promote "the spectacle of domestic disunion.... There the husband and wife are partners in business, raising the wife from head clerk to partner. The very principle is contrary to nature and contrary to the married state." One delegate who supported the provision declared, "We are told, Mr. Chairman, that woman is a frail being; that she is formed by nature to obey, and ought to be protected by her husband, who is her natural protector. That is true, sir; but is there any thing in all this to impair her right of property which she possessed previous to entering into the marriage contract? I contend not." Another argued that it would empower women and attract them to the state, where marriageable Anglo-American women were scarce: "Having some hopes that I may be wedded...I shall advocate this section in the Constitution, and I will call upon all the bachelors in this convention to vote for it. I do not think that we can offer a greater inducement for women of fortune to come to California. It is the very best provision to get us wives that we can introduce into the Constitution."

While interpretations of the constitutional provision varied, according to scholar Donna C. Schuele, "A consensus emerged whereby the constitutional guarantee of married women's property rights was viewed as a progressive enactment boldly distinguishing the Golden State from eastern jurisdictions struggling to emerge from the grips of antiquated notions of law and patriarchy." In 1850, however, the California State Legislature enacted property laws that expressly undermined certain aspects of the constitutional guarantee. In particular, one statute provided that the husband had management and control even of the wife's separate property, although he could not sell or encumber the property without the wife's consent made in writing and confirmed outside the presence of the husband.