Hers, His, and Theirs: Community Property Law in Spain and Early Texas

Abstract

This is the first book on the Spanish origins of women’s property rights in modern America. Women in Spain, Mexico, and colonial Texas have enjoyed property rights not always extended to their Anglo-American sisters. A woman in Spanish or Mexican Texas of the nineteenth century could legally own land. These Tejanas bought and sold land, inherited it, and bequeathed it to their children. What’s more, they could sue and testify in court, they could adopt children, and they retained ownership of their dowry and premarital assets. A few historians have briefly acknowledged the uniquely Spanish roots of women’s property rights. This book is the first published work to fully treat the issue of how Spanish men proudly established these powerful rights while Anglo-American men reluctantly conceded them to their wives under the male-dominant tradition of English common law. In her book, Jean A. Stuntz provides convincing evidence that modern American women’s property rights can be traced through a long chain of documentation all the way back to ancient Spain.Through extensive research, Stuntz provides a vivid comparison of the historical traditions of England and Spain. She demonstrates that while the Anglo-Saxons were subordinating their women in the early legal codes of England, Spanish noblemen were strengthening the status of their women as the bedrock of the Spanish family and community. Women’s property rights emerged along with the earliest Spanish legal traditions. The author notes, for example, that as early as 1256, Alfonso X set out his fabled Las Siete Partidas to encompass the ancient Visigothic codes and the Spanish legal canon as the basis for the Spanish law. As the codes were manifested through the centuries in Castilian language, law, and philosophy, they deeply integrated the property rights of women. Stuntz says that in Spain, women came to symbolize “the most priceless possessions of the family, the community, and the realm” in the turbulent centuries of the Reconquista (p. 44). And because aristocratic Spanish knights sought privilege and glory through warfare, ranching, and horsemanship, they willingly deferred ganancial rights to their wives.In her systematic contrast of English and Spanish legal tradition, Stuntz cites the 1765 promulgation of English common law in William Blackstone’s Commentaries on the Laws of England as a milestone in women’s rights. Blackstone defined the English woman’s status by declaring that “the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage” (p. 101). The English wife could not own, buy, or sell land or fully inherit her husband’s land. More importantly, Stuntz argues that the English transferred these codes to their American colonies even as their Spanish counterparts brought the women’s rights of their Recon-quista culture to their colonies in New Spain. As New Spain and the Spanish province of Texas gained their independence, they systematically incorporated the ancient codes into their new constitutions and congressional legislation. In Texas under the Republic of Mexico, Tejanas inherited their full legal status and property rights in Béxar, Goliad, and Nacogdoches.One of the major arguments of the book is that the Anglo-Texan policymakers of the Republic of Texas were motivated by their own financial distress to incorporate the Hispanic codes of community property, letting Texas women retain ownership of their family lands specifically in order “to protect family property from creditors” and banks that they had fled in the United States (p. 156). By combining women’s land ownership with the inalienable land ownership of the homestead, the new Texas constitution would protect their lands “by law from forced sale” by banks and creditors in the United States (p. 155), especially after Texas was annexed as a state in the American economy.The book extensively documents women’s rights in European, colonial, and early Texan codes and case law. Its strength is in the comparison of English common law with Spanish codes. And in keeping with the promise of her preface, Stuntz provides a viable rationale for the development of women’s ganancial rights in the Republic of Texas. Community property was a gambit to the Anglo male legislators. Stuntz concludes instructively, “Equality, fairness, and freedom are the ideals that Americans hold dear, even if they are exemplified by laws that originated in Spain” (p. 173).Beyond its simple, factual style, the book’s importance comes from its novel insights into a phase of Texas and American history. It posits simply that community property rights were another of the many cultural institutions transmitted from the early Spanish colonies and the Mexican Republic to the expanding United States of the nineteenth century. The book is an important read for Texas historians, political scientists, and the general readers who want to know how and why American women came to enjoy Spanish, Mexican, and Tejana rights.