Women and property across colonial America: A comparison of legal systems in New Mexico and New York

William and Mary Quarterly

Volumn 60, Issue 2, 2003, Pages 355-381

  Rosen, Deborah A ^a  

^a NONE

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EID: 34547396402     PISSN: 00435597     EISSN: 1933-769     Source Type: Journal    
DOI: 10.2307/3491767     Document Type: Review

References (75)

1. On the general history of colonial New Mexico, see Marc Simmons, New Mexico: A Bicentennial History (New York, 1977);
2. Ramón A. Gutiérrez, When Jesus Came, the Corn Mothers Went Away: Marriage, Sexuality, and Power in New Mexico, 1500-1846 (Stanford, 1991);
3. David J. Weber, The Spanish Frontier in North America (New Haven, 1992);
4. Ross Frank, From Settler to Citizen: New Mexican Economic Developmentand the Creation of Vecino Society, 1750-1820 (Berkeley, 2000).
5. On the general history of colonial New York, see Patricia U. Bonomi, AFactious People: Politics and Society in Colonial New York (New York, 1971);
6. Michael Kammen, Colonial New York: A History (New York, 1975);
7. Robert C. Ritchie, The Duke's Province: A Study of New York Politics and Society, 1664-1691 (Chapel Hill, 1977);
8. Edwin G. Burrows and Mike Wallace, Gotham: A History of New York Cityto 1898 (New York, 1999), chaps. 1-14. The appendix contains graphsillustrating population data from colonial New Mexico and colonial New York.
9. Mary Beth Norton, "'Either Married or to Bee Married': Women's Legal Inequality in Early America, " in Carla Gardina Pestana and Sharon V.Salinger, eds., Inequality in Early America (Hanover, N. H., 1999), 25, observedthat historians have not yet adequately explored the question of "whatwere the practical consequences for a woman whose identity was subsumed by lawinto her husband's identity." This article makes a start in addressing thatquestion.
10. William Willis Reese, comp., Collections of the Dutchess County Historical Society, vol. 6: Eighteenth Century Records of the portion of Dutchess County, New York, that was included in Rombout Precinct and theoriginal Town of Fishkill, ed. Helen Wilkinson Reynolds (Albany, 1938), 44-126(deeds), 127-207 (mortgages). The New Mexico documents are all in the standardarchival collection for colonial New Mexico, the Spanish Archives of New Mexico(SANM), manuscripts and microfilms at New Mexico State Records Center and Archives, Santa Fe. The SANM contains 31 wills written by women, 12 inventoriesof women's property, case files for 17 lawsuits and petitions involving femaleplaintiffs or defendants, and deeds for 20 sales of land with female grantors orgrantees. The documents relate to property located throughout New Mexico, mostly in Santa Fe but also in the two other major jurisdictions, Albuquerqueand Santa Cruz de la Canada. The document date from the time of the reconquestof New Mexico in the 1690s until the end of the eighteenth century. The vastmajority of the documents involve women of full or part Spanish ancestry, but afew of the women are Pueblo Indians.
11. Weber, Spanish Frontier, 313-14.
12. For laws governing women and property in Las Siete Partidas, see esp.Part VI (Titles I, III, IV, XIII, XV) on wills and intestacy and Part IV (Title XI) on dowries. For laws relating to women and property in the Leyes de Toro, see laws LI through LXI. For secondary sources on this subject, see Silvia Marina Arrom, The Women of Mexico City, 1790-1857 (Stanford, 1985);
13. Edith Couturier, "Women and the Family in Eighteenth-Century Mexico:Law and Practice, " Journal of Family History, 10 (1985), 294-304;
14. Asunción Lavrin, "In Search of the Colonial Woman in Mexico:The Seventeenth and Eighteenth Centuries, " in Lavrin, ed., Latin American Women: Historical Perspectives (Westport, Conn., 1978), 23-59;
15. Beatriz Bernal de Bugeda, "Situación jurídica de lamujer en las Indias Occidentales, " in Condición Jurídica dela Mujer en México (Mexico City, 1975), 21-40;
16. José Maria Ots y Capdequí, "Bosquejohistórico de los derechos de la mujer en la legislación de Indias, " in Biblioteca de la Revista General de Legislación y Jurisprudencia, vol. 132 (Madrid, 1918).
17. For a description of the laws in practice in colonial Venezuela, see Gary M. Miller, "Bourbon Social Engineering: Women and Conditions of Marriagein Eighteenth-Centuty Venezuela, " The Americas, 46 (1990), 261-90.
18. Normal Spanish practice allowed a testator to dispose of 1/5 of his orher property as he or she wished before the equal division among the children.This did nor, however, appear to be the practice in colonial New Mexico, or atleast none of the women's wills mentioned disposition of the quinto. Couturier, "Women and the Family in Eighteenth-Century Mexico, " 296-97, alsofound that most testators in 18th-century Mexico elected not to leave an extrafraction of the assets to one favored heir.
19. For example, French law that governed Louisiana and the Mississippi River Valley shared many characteristics of Spanish law. Consequently, it appearslikely that women in those regions probably had more control over property than English colonial women did. Susan C. Boyle, "Did She Generally Decide?Women in Sre. Genevieve, 1750-1805, " William and Mary Quarterly, 3d Ser., 44 (1987), 775-89, a fine study of Ste. Genevieve between 1750 and 1805, describes some of the benefits of French law for colonial women. She found thatlegal protection of brides' property, combined with equality of propertydistribution among children regardless of sex, resulted in French colonial womenenjoying "appreciable economic independence."
20. LeCompte, "The Independent Women of Hispanic New Mexico, 1821-1846, " Western Historical Quarterly, 12 (1981), 26.
21. Proceedings in lawsuit by Antonia de Moraga against Juana de Sosa Canela, Nov. 1712-Mar. 1713;
22. Proceedings in lawsuit by Juliana de Sandobal against Lugarda Tafoya, Aug.-Sept. 1768;
23. Petition by Juana Padilla, 1772;
24. See, e.g., deed from Thorivio Ortiz to Manuel Rodriguez, 1772, SANM I, no. 795.
25. Other scholars have found similar benefits for women in other areas of Spanish America. For example, Lavrin and Coututier, "Dowries and Wills: AView of Women's Socioeconomic Role in Colonial Guadalajara and Puebla, 1640-1790, " Hispanic American Historical Review, 59 (1979), 303-04, foundthat the dowry system provided women with financial security, and "thebilateral inheritance system prevented the absorption of the woman's personalityby the conjugal union and provided her with the means to exert her will andchoice." Overall, they concluded, "the restricted traditional pictureof lethargic women in conventional literature as objects of male oppressionneeds to be qualified." There was room for women to express themselves, toact on their own behalf, too.
26. See also Lavrin's essay "In Search of the Colonial Woman." Forother studies of women and property that make use of the documents in the SANMcollection, see Angelina F. Veyna, "'It Is My Last Wish That ...': A Lookat Colonial Nuevo Mexicanas through Their Testaments, " in Adela de la Torreand Beatríz M. Pesquera, eds., Building with Our Hands: New Directionsin Chicana Studies (Berkeley, 1993), 91-108,
27. Richard Eighme Ahlborn, "The Will of a New Mexico Woman in1762, " New Mexico Historical Review, 65 (1990), 319-55.
28. For other studies of property-owning women in colonial New Mexico, see Myra Ellen Jenkins, "Some Eighteenth-Century New Mexico Women of Property, " in Marta Weigle, ed., Hispanic Arts and Ethnohistory in the Southwest (Santa Fe, 1983), 335-45,
29. Rosalind Z. Rock, "Mujeres de Substancia - Case Studies of Womenof Property in Northern New Spain, " Colonial Latin American Historical Review, 2 (1993), 425-40.
30. It is not clear exactly why there are such differences between common lawsystems and community property systems, but whatever the explanation, itprobably requires close examination of the thirteenth century, when the twosystems appear to have diverged. See Charles Donahue, Jr., "What Causes Fundamental Legal Ideas? Marital Property in England and France in the Thirteenth Century, " Michigan Law Review, 78 (1979), 59-88, which analyzes4 possible explanations for the differences in marital property law, includingpolitical, social, and anthropological explanations as well as a technical legalexplanation.
31. Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill, 1986).
32. On the English common law of inherirance and on the status of marriedwomen in 18th-century England, see William Blackstone, Commentaries on the Lawsof England (Oxford, 1765).
33. On inheritance laws in American history, see Carole Shammas, Salmon, and Michel Dahlin, Inheritance in America From Colonial Times to the Present (New Brunswick, N. J., 1987).
34. For colonial New York laws pertaining to inheritance, see The Colonial Laws of New York from the Year 1664 to the Revolution, 5 vols. (Albany, 1896), 1:9-11 (on intestacy), 114-15 (widow's right to dower), 300-03 (on probate andintestacy), 5:614-18 (on intestacy).
35. Some scholars have argued that equitable remedies tempered the common lawof coverture in practice. In some colonies, these scholars have asserted, thelegal position of women was better than in England because of the use of suchdevices as antenuptial contracts, separation agreements, trust estates, and femesole trader status. Legal records show that in New York, following the morevigorous anglicization of law beginning in the 1690s, only a handful of Englishwomen used those devices, took their legal problems to the Chancery Court, orotherwise successfully circumvented common law rules constraining theirownership of property. By the 18th century, therefore, equity only rarelyprovided a way to divert legal practice from the formal rules of the common law.Scholars arguing that equity mitigated common law rules for colonial womeninclude Richard B. Morris, "Women's Rights in Early American Law, "Studies in the History of American Law with Special Reference to the Seventeenthand Eighteenth Centuries, 2d ed. (Philadelphia, 1959), 126-200;
36. Mary R. Beard, Woman as Force in History: A Study in Traditions and Realities (New York, 1946);
37. Joan R. Gundersen and Gwen Victor Gampel, "Married Women's Legal Status in Eighteenth-Century New York and Virginia, " WMQ, 3d Ser., 39(1982), 114-34.
38. On the limited benefits gained by women in early Pennsylvania from commonlaw and equity courts, see Salmon, "Equality or Submersion? Feme Covert Status in Early Pennsylvania, " in Carol Ruth Berkin and Norton, eds., Womenof America: A History (Boston, 1979), 92-111.
39. On the application of English laws to women and property in New Englandand southern colonies, see Lois Green Carr, "Inheritance in the Colonial Chesapeake, in Ronald Hoffman and Peter J. Albert, eds., Women in the Age of the American Revolution (Charlottesville, 1989), 155-208;
40. Shammas, Salmon, and Dahlin, Inheritance in America;
41. Toby L. Ditz, Property and Kinship: Inheritance in Early Connecticut:1750-1820 (Princeton, 1986).
42. For a general overview of women and the law in English colonial America, see Sandra F. Van Burkleo "Belonging to the World": Women's Rights and American Constitutional Culture (New York, 2001), chap. 1.
43. On Dutch law governing women and property, see Robert W. Lee, An Introduction to Roman-Dutch Law, 5th ed. (Oxford, 1961),
44. Sherrin Marshall Wyntjes, "Survivors and Status: Widowhood and Family in the Early Modern Netherlands, " Journal of Family History, 7(1982), 396-405.
45. See also the descriptions of Dutch legal practices in colonial New Netherland and New York in David E. Narrett, Inheritance and Family Life in Colonial New York City (Ithaca, 1992),
46. Narrett, "Dutch Customs of Inheritance, Women, and the Law in Colonial New York City, " in William Pencak and Conrad Edick Wright, eds., Authority and Resistance in Early New York (New York, 1988), 27-55. I amgrateful to David Narrett for observing a key difference between femaletestators in New Mexico and those in New Netherland: in the Spanish colony, women wrote their own, separate wills, whereas in the Dutch colony women rarelydid so. Rather, the custom in New Netherland was for husbands and wives jointlyto write mutual wills.
47. On the gradual process of anglicization in New York, see Joyce D.Goodfriend, Before the Melting Pot: Society and Culture in Colonial New York City, 1664-1730 (Princeton, 1992);
48. Linda Briggs Biemer, Women and Property in Colonial New York: The Transition from Dutch to English Law, 1643-1727 (Ann Arbor, 1983);
49. William John McLaughlin, "Dutch Rural New York: Community, Economy, and Family in Colonial Flatbush" (Ph. D. diss., Columbia University, 1981);
50. Firth Haring Fabend, A Dutch Family in the Middle Colonies, 1660-1800(New Brunswick, N. J., 1991);
51. Narrett, Inheritance and Family Life in Colonial New York City.
52. Even New England colonies, which had no competing set of European legalpractices, took some time to take on many of the formalities of English law. Onthe detrimental effect of anglicization on women in Connecticut, see Cornelia Hughes Dayton, Women before the Bar: Gender, Law, and Society in Connecticut, 1639-1789 (Chapel Hill, 1995).
53. Narrett, Inheritance and Family Life in Colonial New York City, 238-43;
54. Narrett, "Men's Wills and Women's Property Rights in Colonial New York, " in Hoffman and Albert, eds., Women in the Age of the American Revolution, 96. I have relied primarily on Narrett's excellent description andanalysis in those two publications for overall patterns and statisticalinformation from New York wills discussed in this article.
55. The figures for the first and the middle decades of the century are basedon total counts of all cases in the minute books, but the figures for the 1790swere extrapolated from a study of just two years, 1794 and 1795. For a moreextensive discussion of women's litigation in colonial New York, see Deborah A.Rosen, Courts and Commerce: Gender, Law, and the Market Economy in Colonial New York (Columbus, Ohio, 1997), chap. 5.
56. Dayton, Women before the Bar, chap. 2, has found similar patterns oflitigation among women in colonial Connecticut.
57. Plaintiffs declaration in Frederick Williams v. Charles Beekman, Jr., 1735, Joseph Murray, "Precedent Book" (1740-1741), 152,
58. in Murray Collection, Columbia University Law Library, Special Collections, New York.
59. Norton, "'Either Married or to Bee Married, '" 36.
60. For Norton's broader study of gender and power relationships in colonial New England and Chesapeake between 1620 and 1670, see Founding Mothers and Fathers: Gendered Power and the Forming of American Society (New York, 1996).
61. Of the 62 people mentioned on the New York City tax list of 1734 whoseassessment was £0, 35 were widows or other single women. Christine H.Tompsett, "A Note on the Economic Status of Widows in Colonial New York, " New York History, 55 (1974), 319-32, found a number of widows listedin the New York City poorhouse records whose names did not appear on the taxlists.
62. In her study of two wards in nearby Philadelphia, Shammas, "The Female Social Structure of Philadelphia in 1775, " Pennsylvania Magazine of History and Biography, 107 (1983), 74, found that 59% of female heads offamilies in one ward and 70% in the other were exempted from paying taxesbecause of poverty.
63. On women and poverty in colonial New York, see the discussion in Rosen, Courts and Commerce, 118-24.
64. On the depressed financial situation of most colonial urban widows, see Shammas, "Early American Women and Control over Capital, " in Hoffmanand Albert, eds., Women in the Age of the American Revolution, 143-47;
65. on the deterioration in women's economic opportunities and increasingpoverty in colonial New England, see Elaine Forman Crane, Ebb Tide in New England: Women, Seaports, and Social Change, 1630-1800 (Boston, 1998).
66. Jean P. Jordan, "Women Merchants in Colonial New York, " N. Y.Hist., 58 (1977), 412-39;
67. Patricia Cleary, "'She Will Be in the Shop': Women's Sphere of Tradein Eighteenth-Century Philadelphia and New York, " PMHB, 119 (1995), 181-202;
68. Elisabeth Anthony Dexter, Colonial Women of Affairs: A Study of Women in Business and the Professions in America before 1776 (New York, 1924).
69. Berkin, First Generations: Women in Colonial America (New York, 1996), 87. In her discussion of women in colonial New York, Berkin focuses especiallyon the experience of Margaret Hardenbroeck, a successful merchant in New Amsterdam who found her opportunities seriously circumscribed by English law inthe late 17th century. Running a business did nor always indicate ownership ofsignificant amounts of property. Shammas, "Female Social Structure of Philadelphia in 1775, " 75-76, shows that 40% of female retailers had taxassessments of zero.
70. Probate inventories of Gertrudis Armijo, Margarita Martin, and Juanotilla, in SANM I, nos. 48, 530, 185. Juanotilla was one of the rare Pueblo Indian women to appear in the wills, inventories, deeds, and lawsuits of18th-century New Mexico.
71. Josiah Gregg, Commerce of the Prairies (1844), ed. Max L. Moorhead(Norman, Okla., 1954), 159;
72. For a description of negative impressions of Mexicans that pervaded Anglo-American travel literature in the 19th century, see Raymund A. Paredes, "The Mexican Image in American Travel Literature, 1831-1869, " New Mexico Historical Review, 52 (1977), 5-29.
73. For analysis of Americans' similar negative attitudes toward the Spanishlegal systems of California and the Louisiana Territory in the early 19thcentury, see David J. Langum, Law and Community on the Mexican California Frontier: Anglo-American Expatriates and the Clash of Legal Traditions, 1821-1846 (Norman, Okla., 1987),
74. Stuart Banner, Legal Systems in Conflict: Property and Sovereignty in Missouri, 1750-1860 (Norman, Okla., 2000).
75. Deena J. González, Refusing the Favor: The Spanish-Mexican Womenof Santa Fe, 1820-1880 (New York, 1999).