You know the old adage, “necessity is the mother of invention?” Necessity is also the mother of change in attitudes. When young men headed to the California gold fields, with few exceptions, they left the women behind. Most expected to get rich quick and return home with their plunder.
In the late 1840s, men in California outnumbered women by better than nineteen to one. Even at that, many of the women who made the hazardous journey to California sought their fortunes, not by mining California’s rivers for gold, but by selling their companionship to the highest bidder.
Back east, most states followed English common law and bestowed very few rights to women – forget the right to vote – most women enjoyed few property rights, their lot in life dictated by the whims of their husbands.
At the 1849 Monterey, California constitutional convention, California’s early leaders sought to improve their own marital chances by enacting liberal divorce and property laws. They adopted divorce laws that lowered the bar for an unhappy spouse to win court dissolution of an unhappy marriage.
The delegates also adopted the Spanish community property law model rather than the English common law model. This protected women’s property rights in two respects: (1) a woman controlled the property she acquired before marriage or by gift or inheritance during marriage; and (2) a husband and wife were treated as partners, each of whom would share equally in wealth accumulated during their marriage. Thus, a husband could not use his wife’s separate property as his own in some risky venture nor could a creditor go after the wife’s separate property to collect her husband’s debt. If a marriage ended in divorce, half of the property accumulated during the marriage was hers. [Caroline B. Newcombe, The Origin and Civil Law Foundation of the Community Property System, Why California Adopted It and Why Community Property Principles Benefit Women, 11 U. Md. L.J. Race, Religion, Gender, and Class, Volume 11, Issue 1 (2011); http://digitalcommons.law.umaryland.edu/rrgc/vol11/Iss1/2%5D
The delegates clearly wished to motivate women to join them in California. The risk of losing a bride to divorce or losing property acquired during marriage paled in comparison to the enhanced opportunity of bringing members of the opposite sex to California’s shores. As one bachelor delegate said, “It is the very best provision to get us wives….” [Jo Ann Levy, They Saw the Elephant, p. 190 (Archon Books 1990)]
Henry Halleck, future Union general and thorn in General Grant’s side after the Battle of Shiloh, echoed the sentiment:
I am not wedded either to the common law or the civil law, nor, as yet to a woman; but having some hopes that some time or other I may be wedded, and wishing to avoid the fate of [an unmarried friend], I shall advocate this section in the constitution, and I would call upon all the bachelors in the convention to vote for it.
H. W. Brands, Age of Gold, pp. 283-284 (Anchor Books 2002).
The bachelors got their wish. By 1860, the ratio of men to women in the state dropped from 19:1 to 2:1.