Echoes of Spanish-Mexican Women in California’s Constitutional Debates of 1849
The de Haro de Tissol civil suit underscores the need to research Spanish–Mexican women’s lived experiences and how they shaped political debates about women’s position within the family, marriage, and society in the U.S. Spanish and Mexican civil law in California recognized the contributions of marriage partners to the marital estate, popularly known as community property. Wives were entitled to half of the community property when a husband died. Property held by wives at the time of marriage remained their own, as did gifts or bequests made to them after marriage. While Californio husbands customarily administered their wives’ separate property, wives could (and did) pursue legal remedies due to their husbands’ mismanagement, as the de Haro de Tissol case suggests. Indeed, Californianas had a history of deploying legal tools to defend their interests in the Mexican era, a practice they continued after U.S. conquest. They did not shy away, either, from critiquing Anglo American proponents of Manifest Destiny and civilizing projects in California, as my new JER forum article, “Voices from California: Spanish–Mexican and Indigenous Women’s Interventions on Empire and Manifest Destiny,” explores further.
Examining women who lived through geopolitical conquest can reveal the legacies of Spanish (and French) law in the formation of U.S. territorial and state governments during the early republic and antebellum period. The significance of state-building was not lost on California’s constitutional convention president, who noted in 1849, “The eyes not only of our sister and parent States are upon us, but the eyes of all Europe are now directed toward California.” Although Californianas did not serve as convention delegates, their lives shaped the debates over proposed section 13 (later adopted as section 14, Article XI) of the constitution.Delegates disagreed about whether Anglo American common or civil law should prevail and to what degree the legal traditions of native-born Californios should endure. Kimball H. Dimmick of New York noted that separate property rights for women “has been found to work well here.” Henry A. Tefft, another New Yorker, warned that failure to include protection for married women’s property rights “would be a very decided invasion upon the people of California.” Some saw marriage as a civil contract and supported a partnership or companionate marriage model. Respect for married women’s separate property rights was a necessary component in that model. Others, like Charles T. Botts of Virginia, saw marriage as a sacrament underpinned by notions of female frailty and deference to patriarchal authority: “Nature did what the common law has done—put her under the protection of man. . . . When she trusts him with her happiness, she may well trust him with her gold.” He warned that too much power for wives caused marital discord. Francis J. Lippitt, a northeastern lawyer, expressed fear of encroaching feminism: “I am inclined to think that all wives may be divided into two classes: those who wear the breetches[sic], and those who do not.” Lippitt worried that creditors would be denied a right to recovery if husbands manipulated laws protecting wives’ separate property or the homestead.
All agreed that California’s rapid influx of people, industries, and its boom-and-bust economy presented delegates with challenges about how best to promote societal stability and commercial interests. Certainly for Californianas, interethnic marriage posed heightened risks in the Gold Rush era due to difficulties vetting foreign suitors’ backgrounds. Along these lines, delegate Myron Norton, a native of Vermont, cited married women’s need for protection from husbands who pursued risky ventures: “We are peculiarly situated here; in a country where wealth is acknowledged to be abundant, and where lucrative speculations are made every day. . . . No man can tell how soon he may tumble down . . . she [the wife] should be protected against the recklessness of speculation.” Some considered women’s property rights as necessary to attract emigration and development. H. W. Halleck of New York noted, “I do not think we can offer a greater inducement for women of fortune to come to California. It is the very best provision to get us wives.” Halleck spoke from personal experience as a self-proclaimed bachelor, all too aware that California’s sex ratios at this time skewed heavily male.
The proceedings reflected the influence of delegates from states east of the Mississippi. More than a dozen were lawyers, merchants, traders, and bankers. Eight delegates were native Spanish speakers, and a requirement to translate legal and government proceedings was enshrined in the 1849 constitution for the benefit of Californios, men and women alike. Transcripts of convention proceedings do not reflect any native-born Californian weighing in on married women’s property rights, although they weighed in on other matters during the convention. Logistically, monolingual Spanish speakers were hindered in their ability to follow debate threads in real time due to the predominance of English at the convention.
Ultimately, California’s Constitution of 1849 enshrined women’s separate property rights into its Miscellaneous Provisions (Article 11, Section 14). As stated earlier, motivations for its support ranged from a general belief that modern civilized societies should recognize women’s intellectual capacities and improvements; because of the risky conditions of California’s economy, which made wives vulnerable; because it could lure Anglo women’s migration; and because Californianas had already lived with such rights and delegates recoiled against rescinding existing rights. Notably, the constitution’s final adopted language about married women’s property rights included the statement “laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as to that held in common with her husband.” This left room for future recalibrations of married women’s rights, but also shows that broader debates about women in U.S. society remained unresolved.
California’s first constitution reflected national conversations about women’s citizenship rights, their competence as economic actors, and their affective obligations in society. The lived realities of Californianas and their Mexican-era legal rights complicated Anglo American attempts to impose common law traditions wholesale. Californianas loomed large in commercial and political leaders’ notions of progress and additional studies of Spanish–Mexican and French women who lived through geopolitical conquest point to intellectual goldmines about gender, expansionism, and state-building still awaiting discovery.
 “Letter from San Francisco,” Sacramento Daily Union, May 11, 1857: 3; “Maria Natividad de Haro y Sanchez,” FamilySearch, The Church of Jesus Christ of Latter-Day Saints, https://ancestors.familysearch.org/en/LLCQ-QS9/maria-natividad-de-haro-y-sanchez-1829-1919.
 For Californianas’ deployment of legal options, see Miroslava Chavez-Garcia, Negotiating Conquest: Gender and Power in California, 1770s to 1880s (Tucson, AZ, 2004); and Erika Pêrez, Colonial Intimacies: Interethnic Kinship, Sexuality, and Marriage in Southern California, 1769–1885 (Norman, OK, 2018).
 J. Ross Browne and California, “President’s Address,” Report of the Debates in the Convention of California on the Formation of the State Constitution, in September and October, 1849 (Washington, 1850), 18.
 Delegate debates and quotes that follow can be found under “Thursday, September 27, 1849,” Report of the Debates, 257–69; California Secretary of State, “Constitution of the State of California [digitized],” Records of the Constitutional Convention of 1849, https://archives.cdn.sos.ca.gov/pdf/1849-california-constitution-for-website-9-16-20.pdf.
 Rosina A. Lozano, An American Language: The History of Spanish in the United States (Oakland, CA, 2018).
 California Secretary of State, “Constitution of the State of California.”
6 February 2024
About the Author
Erika Pérez is Associate Professor of History at the University of Arizona and a NEH fellow at the Huntington Library. Her first book Colonial Intimacies: Interethnic Kinship, Sexuality, and Marriage in Southern California, 1769–1885 was published in 2018.