Although women played no direct role in California law and politics until 1870, both their interest in law reform and their later entry into the political arena can be traced in part to two sections of the constitution that went into effect at statehood in 1850, one excluding women from the franchise and the other purporting to grant wives liberal property rights. Around 1870, California women joined their eastern sisters in organizing for suffrage rights and began seeking as well a more equitable implementation of the constitutional guarantee to marital property rights. This chapter will explore the circumstances that led California women to become involved in law reform, and their persistent fight over the next twenty years for equal political, property, and occupational rights, waged of necessity within the masculine arenas of law and politics.
WOMEN IN THE FORMATION AND DEVELOPMENT OF STATE GOVERNMENT
The Constitutional Convention of 1849
While the inaugural constitution excluded women (and nonwhite men) from suffrage, it did grant married women certain property rights by providing 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, shall be her separate property, and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property." (1)
At the point when California's constitutional convention met, in 1849, two very different systems of marital property law were in force across the United States. One, operating most notably in Louisiana and Texas, could be traced to the civil law of European continental countries, including Spain and France, which had governed these regions before the United States acquired them. California, as a Spanish (and then Mexican) territory, was also governed by this system. In the civil law, a woman's status was unaffected by marriage. Both spouses retained separate ownership of all property acquired prior to marriage, while property acquired during marriage through the efforts of either spouse was considered to be owned by the marital community, in which each spouse held an equal interest. Upon the death of either spouse, this marital property, known as common or community property, was kept intact and managed by the survivor, after which it descended to the couple's heirs. Spouses had testamentary power over only their separate property yet they had equal power, as wives were allowed to execute wills. Under the community property system, the spouses' contributions to the marriage were equally valued, and widows exercised real power over marital property. (2)
The other system, holding sway in most American jurisdictions, was an outgrowth of the common law of England and was part of that system's law of coverture. Under these rules, a woman's legal status changed dramatically upon marriage. She became invisible in the eyes of the law, her identity subsumed under (or covered by) that of her husband. Lacking a legal identity, a wife could not own property. Consequently, the husband acquired ownership of any property the wife brought to the marriage and owned as well any property (such as wages) that her efforts might produce during the marriage. In exchange, a wife was given limited rights in a set portion of the husband's property, known as dower rights, regardless of the duration of the marriage or how or when the property was acquired. These rights could not be defeated by the husband during his lifetime or by will, but they were meant only to protect a wife in her widowhood. (3)
By the mid-nineteenth century, the law of coverture concerning marital property was coming under attack for its harsh treatment of women as well as its inability to guard families …