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The fact that women are not equally represented among the nation's early naturalization records often surprises researchers. Those who assume naturalization practice and procedure have always been as they are today may spend valuable time searching for a nonexistent record. At the same time, many genealogists do find naturalization records for women. The resulting confusion about this subject generates a demand for clear, simple instructions by which to guide research.
State materials are diverse. Each state has different laws, follows precedents set by different court cases, uses different terminology, and publishes legal materials according to its own dictates. The scope, complexity, and richness of the Law Library's holdings become apparent by examining six distinct areas of state law with important historical ramifications for women:. Generally, property is divided into two major areas: realty and personalty. Realty is land, whereas personalty is possessions—for instance, jewelry, money, furniture, California married ladies formerly slaves.
State laws regulate who may purchase property, who may own it, and how it will be distributed upon the death of the owner or owners. This premise applies unless the land is federal property, in which case the federal government makes the determination. Property laws have been important from the beginning of this nation, especially since many new citizens did not or could not own property in their countries of origin.
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Disagreement among the colonies about continuing British legal traditions resulted in differences in colonial laws—some colonies wanted to remain true to British legal tradition, whereas others chose to abandon some or all of the traditions. Some colonies, such as Virginia, had liberal laws that gave widows the right to own or control the use of land as part of their dowry rights.
Other colonies gave wives the right of private examination. In the western territories, because of the influence of Spanish civil law, women might enjoy community property rights. The importance of courts is evinced by the relative abundance of published court opinions. Some cases even reached the U. Supreme Court. One of the earliest, Jones v. Porters, was decided in in a Virginia court.
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Between the late eighteenth and the end of the nineteenth century, the U. Supreme Court rendered more than one hundred decisions in which women and property rights or conveyancing of property were at issue. One of the first cases was Barnes' Lessee v. Irwin inwhich concerned a wife's inherited property and an antenuptial agreement.
The importance of property ownership and the right to devise were clearly evident in the pervasive laws and court decisions rendered in colonial America and the early United States of America. While reading an article on community property in New Mexico, you see a commentary on a court decision that interests you. A footnote gives the legal citation as McDonald v. Senn et al. As you begin reading the decision, you discover that the New Mexico community property law was adopted in common law in ; the statute was passed later.
The statute was based on California law, which was modeled on the civil law of Spain and Mexico. You are interested in looking at both the earliest statutes on community property in California and some judicial decisions interpreting those laws. You can either 1 find the case citations from California listed in the McDonald decision, or 2 find the statutory citations from California listed in the decision.
The most expedient approach is to use the statutory citations. In the Civil Code of the State of California. Sections in the main body of the Civil Code give the law antedating this amendment. Because this edition of the Civil Code is annotated, you find a short history of the legislation here. To follow the tracings, first consult the Civil Code of the State of California, All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.
Also California married ladies is a mention of a treatise entitled Civil Laws of Spain and Mexico, a translation of the civil law of Spain published inin the discussion of McDonald v. Chapter 4 of the treatise, Rights and duties of Husband and Wife in relation to the property acquired during marriage, Section 1, Community of Goods, states:. Court decisions can be found in the notes provided in the annotated codes or by using the state digests. In this instance, the Civil Code of the State of California is annotated and provides a of citations to secondary sources:. Common property. Konemanan appeal from a district court concerning property left in trust for the widow.
The case 18 Cal. Lewis, is an appeal from probate court in determining the value difference between the late husband's separate estate and the common property. Interpreting and tracing the citations to statutory law and court decisions may initially seem complex, but once you begin to find the relevant footnotes and recognize legal citations, the research process is the same as it is in other subject areas. During the nineteenth century, states California married ladies enacting common law principles affecting the property rights of married women.
Married women's property acts differ in language, and their dates of passage span many years. One of the first was enacted by Connecticut inallowing women to write wills. The majority of states passed similar statutes in the s. The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate California married ladies, as if she were a single female.
It shall be lawful for any married female to receive, by gift, grant devise or bequest, from any person other than her husband and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable for his debts. All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place. Before the Civil War, married women's property laws were concerned California married ladies equity procedures, focusing on the appropriate pleadings a wife should use to file a suit but not altering a husband's privileges granted by prior common law principles.
After the Civil War, laws were concerned with equalizing property relations between husband and wife. The Homestead Act of demonstrates that the federal government did not make gender one of the criteria for homestead ownership, and this concept was adopted by several western states as well:. At the turn of the twentieth century, it was the effectiveness rather than the language of the law that diminished the rights of females. Some state legislatures began enacting laws that recognized women's separate and inherited estates as part of family income, granting creditors the right to claim women's property to pay family debts.
“any woman who is now or may hereafter be married . . .”
As estates, trusts, and succession laws were passed, the rights of dower were abolished. Even after these laws had been repealed, many states kept portions of the older laws. For example, intestate succession succession without a will generally allowed a widow to take one-third of the husband's estate as earlier rights of dower had specified.
Spain and Mexico, civil law countries, influenced the way property laws developed in the western United States. Early community property legislation was enacted in this region.
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Although the states passed legislation naming marital property as community property, husbands were the ones who managed and disposed of the property. Only if the husband died was the wife allowed to manage the property, as this Texas law illustrates:. The surviving wife may retain the exclusive management, control and disposition of the community property of herself and her deceased husband in the same manner, and subject to the same rights, rules and regulations as provided in the case of a surviving husband, until she may marry again.
All property acquired by either husband or wife during the marriage except that which is acquired by gift, devise or descent shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only.
Before the Civil War, slaves and indentured servants were considered personal property, and they or their descendants could be sold or inherited like any other personalty. Like other property, human chattel was governed largely by laws of individual states. Generally, these laws concerning indentured servants and slaves did not differentiate between the sexes. Some, however, addressed only women. Regardless of their country of origin, many early immigrants were indentured servants, people who sold their labor in exchange for passage to the New World and housing on their arrival.
Initially, most laws passed concerned indentured servants, but around the middle of the seventeenth century, colonial laws began to reflect differences between indentured servants and slaves.
Re Negro John Punch was one of the early cases that made a racial distinction among indentured servants. Virginia was one of the first states to acknowledge slavery in its laws, initially enacting such a law in Women servants who produced children by their masters could be punished by having to do two years of servitude with the churchwardens after the expiration of the term with their masters. Great Britain had a very structured primogeniture system, under which children always claimed lineage through the father, even those born without the legitimacy of marriage.
Virginia was one of the first colonies to legislate a change:.
American women: resources from the law library
WHEREAS some doubts have arrisen whether children got by any Englishman upon a Negro woman should be slave or free, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shalbe held California married ladies or free only according to the condition of the mother, And that if any christian shall committ ffornication with a Negro man or woman, hee or shee soe California married ladies shall pay double the ffines imposed by the former act.
Most slave colonies or states enacted similar laws. After the slave trade officially ended, many slave owners tried to ensure that sufficient s of slaves were available to work their plantations. Slave women of childbearing age became more valuable. There are a of court cases concerning slave women who either killed their masters who forced them to have sexual relations or killed the children rather than have the children enslaved. Miscegenation laws, forbidding marriage between races, were prevalent in the South and the West. Because English masters had had little regard for indentured servants of non-Anglo ethnic groups, they allowed and sometimes encouraged commingling of their servants.
Being seen in public or bringing legitimacy to these relations, however, was not lawful. This is evinced by a court decision fromthe first court decision in which a Negro woman and a white man figured prominently. And for prevention of that abominable mixture and spurious issue which hereafter may encrease in this dominion, as well by negroes, mulattoes, and Indians intermarrying with English, or other white women, as by their unlawfull accompanying with one another, Be it enacted by the authoritie aforesaid, and it is hereby enacted, that for the time to come, whatsoever English or other white man or woman being free shall intermarry with a negroe, mulatto, or Indian man or woman bond or free shall within three months after such marriage be banished and removed from this dominion forever.
Another section of the law closed the loophole created by the birthright law, which mandated that children born of a free white mother and Negro father were technically free. This amendment stated that a free white woman who had a bastard child by a Negro or mulatto man had to pay fifteen pounds sterling within one month of the birth.
If she could not pay, she would become an indentured servant for five years. Whether or not the fine was paid, however, the child would be bound in service for thirty years.
The laws that restricted slaves or indentured servants generally addressed the owners and penalized them for breaking the law. Laws governing slaves allowed masters to beat or kill them under certain circumstances. Nor could they go to court to seek redress. A person of color was not permitted to testify against a white Christian, as illustrated by the Maryland law:.