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Affirmative action 1850s style

On the 29th of December 1856, Catherine Underwood went into court in San Mateo County, California, and swore to a remarkable statement:

That from this date henceforth she intends to carry on business in her own name. That said business which she intends to so carry on is the business of General Merchandizing … That said Merchandizing consists in the buying and selling of groceries dry goods shingles Posts and Rails &c …1

“So what’s so remarkable about that?” you might ask. Look at the date again. It was 1856. And a woman — a woman! — was going into business for herself.

And not just any woman, mind you, but a married woman. A married woman who, by 1860, would have not just a husband, Charles, by then age 32 and a farmer, but two small children — a girl age 3 and a boy just a year old.2

And she — she, not he — would be shown on that 1860 census with real property valued at $2,000 and personalty valued at $7,000.3

Nor was she alone.

On 19 November 1856, Anna Dorothea Panke went into court and swore she was going into business in her own name — the business of “arranging and giving of balls and concerts in the keeping of a barroom and saloon and in the buying and selling of wines and liquors also in the farming of land raising of crops and produce.”4

On 2 November 1857, Lucinda Ford told the local judge she was going into business for herself “ranching and sawing lumber, raising produce, buying and selling stock, manufacturing & selling lumber shingles posts & Rails.”5

And on 20 October 1859, Emma Church — then still a teenager — went into court and said she was going into business in her own name “farming and raising stock.” And on the 1860 census, you can find Emma, then 20, and her doctor-husband W. D. Church, and their five-month-old son William — and it’s Emma with the assets: $200 in real property; $500 in personal property.6

Okay… what’s going on here? Women — married women — in the 1850s just didn’t go into business for themselves.

Except, that is, in California.

Because on the 12th of April 1852, the California Legislature approved a statute that proclaimed, in section 1, that “Married women shall have the right to carry on and transact business under their own name, and on their own account, by complying with the regulations prescribed in this act.”7

Now a married woman had to jump through a lot of hoops in order to do this. She had to publish her intention for four weeks in the newspaper, she had to appear in court and prove that she wasn’t doing it to defraud her husband’s creditors, she had to get court approval and had to swear she was going into business with her own money to support herself and her children.8

If she managed to jump through all the hoops, then “the property, revenues, moneys, and credits, so invested, shall belong exclusively to such married woman, and shall not be liable for any debts of hor husband; and said married woman shall be allowed all the privileges, and be liable to all legal processes, now or hereafter provided by law against debtors and creditors, and may sue, and be sued, alone, without being joined with her husband.”9

And, if she pulled it off, she — and she alone — was responsible for supporting her children10 and her husband wouldn’t be responsible for any of her debts.11

California wasn’t the only state to recognize sole trader status for women. Colonial Pennsylvania and South Carolina had also done so,12 and Massachusetts passed a sole trader law in 1787.13

But nowhere was the law as expansive as early as in California. The woman’s husband didn’t have to be absent. She didn’t have to show she needed the money or she and her kids would starve — just that she would use the proceeds to support herself and the children. Many women with good and enduring marriages took sole trader status. It protected them — and their family asserts — just in case… and it gave them rights other states didn’t grant for decades.

Now not everybody played by the rules here. Clearly some of these women went into business in name only. For example, in 1857, Hannah Duffy, wife of James Duffy, went into court and swore that she was going into business in her own name, into buying and selling real estate and farming.14 But on the 1860 census, it’s James who was the farmer with $2000 in real estate and $500 in personalty. Hannah was undoubtedly occupied with their five children, ranging in age from 15 down to 3.15

And Bridget McEvoy, wife of John McEvoy, told the court in December 1857 that she was going into the “ordinary business of Farming and raising Stock.”16 Yet it was John who showed up on the 1860 census as the farmer with all the assets — $6,000 in real property and $4,000 in personalty. He and Bridget by then had six kids ranging from 12 down to one.17

For many California women, however, it was a means to the end of financial stability… and some independence… in their own names and their own right.

Affirmative action 1850s style.


  1. San Mateo County, California, Separate Property of Married Women and Sole Traders, Book 1: 3, Affidavit of Catherine Underwood, 29 Dec 1856; County Recorder, San Mateo County, Redwood City, California; digital images, “California, San Mateo County Records, 1855-1991,” ( : accessed 19 Feb 2013).
  2. 1860 U.S. census, San Mateo County, California, population schedule, p. 73 (stamped), dwelling 218, family 204, Underwood household; digital image, ( : accessed 18 Feb 2013); citing National Archive microfilm publication M653, roll 65; imaged from FHL microfilm 803065.
  3. Ibid.
  4. San Mateo Co., Separate Property of Married Women and Sole Traders, Book 1: 7, Affidavit of Anna Dorothea Panke, 19 Nov 1856.
  5. Ibid., Book 1: 10, Affidavit of Lucinda Ford, 2 Nov 1857.
  6. 1860 U.S. census, San Mateo Co., Cal., pop. sched., p. 47 (stamped), dwell. 4, fam. 4, Church household.
  7. § 1, “An Act to authorize married women to transact business in their own name as sole traders,” 12 April 1852, in Theodore H. Hittell, The General Laws of the State of California: from 1850 to 1864, Inclusive (San Francisco : Bancroft & Co., 1872), I: 1024; digital images, Google Books ( : accessed 19 Feb 2013).
  8. Ibid., § 2.
  9. Ibid., § 3.
  10. Ibid., § 4.
  11. Ibid., § 6.
  12. Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Pres, 1986), 44-46.
  13. Jone Johnson Lewis, “Property Rights of Women:
    A short history of women’s property rights
    ,” Women’s History ( : accessed 19 Feb 2013).
  14. San Mateo Co., Separate Property of Married Women and Sole Traders, Book 1: 6, Affidavit of Hannah Duffy, 1 July 1857.
  15. 1860 U.S. census, San Mateo Co., Cal., pop. sched., p. 74 (stamped), dwell. 230, fam. 216, Duffy household.
  16. San Mateo Co., Separate Property of Married Women and Sole Traders, Book 1: 11, Affidavit of Bridget McEvoy, 19 Dec 1857.
  17. 1860 U.S. census, San Mateo Co., Cal., pop. sched., p. 94 (stamped), dwell. 407, fam. 393, McEvoy household.
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