'A robbery to the wife': Culture, gender and marital property in California law and politics, 1850-1890.

摘要

This dissertation examines the development of California's marital property system from 1850 through 1890, focusing on the wife's rights to property acquired during marriage (known as common or community property), and challenges scholars' nearly exclusive reliance on. the experience of common law jurisdictions to explain the history of this area of American law. California's initial constitutionalization of marital property rights was conceived both to protect expectations arising from the Spanish/Mexican marital, property system then in force, and to require the legislature to adopt civil law reforms which would ameliorate the harshness of the common law. Although the civil law called for relatively equal treatment of spouses, the entrenched common-law mindset of Anglo male lawmakers led the legislature and the California Supreme Court to ignore the constitutional guarantee of married women's property rights and eviscerate the wife's lifetime interest in the community property. California Anglo women joined together to protest this arrangement, after the development of a collective feminist consciousness which prompted the formation of an organized suffrage movement in 1869. Recognizing the possibility of female empowerment embedded in the category of common property, these women attempted to build on the state's nominal commitment to the community property system, drawing less on the law's Spanish/Mexican roots, and more on joint property ownership rhetoric which had emerged in the Eastern-based women's rights movement beginning around 1850. Through 1890, California women advocated a broad-based legislative and constitutional reform agenda in which the call for marital property rights and the call for political rights were inextricably intertwined. The result was a sustained, but mostly unsuccessful, lobbying effort previously unmatched by any disenfranchised group. Debates and votes in the legislative sessions and the Constitutional Convention of 1879 reveal lawmakers' unwillingness to accord empowering rights to women, or even to provide protective rights to families, ultimately exposing women and children to dependence on the emerging welfare state. This invites speculation that the focus of Progressive-Era activists on developing public law programs such as mothers' pensions may actually represent a shift in focus from efforts to reform the private law of marital property rights.