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Legal Constructions of Gender and Violence against Women in Puerto Rico under Spanish Rule, 1860–1895

Published online by Cambridge University Press:  28 October 2011

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The study of changing legal conceptions over time, as they manifest themselves in the day-to-day practice of the courts, has proven to be one of the most rewarding, albeit arduous, areas of inquiry in law history. Court records provide unique insights into an otherwise invisible flow of legal understandings in the past and into common people's sharing or contesting those views. This article, based on the court records of domestic violence and rape in the Arecibo Superior Court from 1860–1895, permits revealing insights into the ways in which these offenses were shaped, as legal concepts, and into magistrates' and common people's constructions of gender. It studies criminal law administration in the Arecibo region and its connections to women. The Arecibo judicial district included nine municipalities on the northern coast and interior of Puerto Rico. Its records comprise a collection of thousands of handwritten documents left in extremely fragile state by humidity and poor conservation. They constitute a very large sample of the judicial work in the region.

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Law and History Review , Volume 22 , Issue 3 , Fall 2004 , pp. 531 - 564
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Copyright © the American Society for Legal History, Inc. 2004

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References

1. The district court of Arecibo included the municipalities of Arecibo, Barceloneta, Manatí, Ciales, Morovis, Utuado, Hatillo, Camuy, and Quebradillas. It is impossible to ascertain the exact number of missing records. An estimate based on occasional statistics included among the records puts the proportion of destroyed materials in about one third of the total archive.

2. Wiener, Martin J., “Judges v. Jurors: Courtroom Tensions in Murder Trials and the Law of Criminal Responsibility in Nineteenth-Century England,” Law and History Review 17 (1999): 470.CrossRefGoogle Scholar

3. The argument that traditional domestic patriarchy as an ideal underwent state-led transformation into “civilized” notions in late nineteenth or early twentieth century can be extracted from many published works. See for example, Hidden Histories of Gender and the State in Latin America, eds. Dore, Elizabeth and Molyneux, Maxine, (Durham: Duke University Press, 2000)CrossRefGoogle Scholar; Besse, Susan K., Restructuring Patriarchy. The Modernization of Gender Inequality in Brazil, 1914–1940 (Chapel Hill: The University of North Carolina Press, 1996).Google Scholar

4. On the general structure of the nineteenth-century judicial system see Monge, José Trías, El sistema judicial en Puerto Rico (Río Piedras: Editorial Universitaria, 1978)Google Scholar: Cintrón, Carmelo Delgado, Derecho y colonialismo. La trayectoria histórica del derecho puertorriqueño (Río Piedras: Edil, 1988), 45–49, 101–12.Google Scholar For the exploration of punishment, see Picó, Fernando, El día menos pensado. Historia de los presidiarios en Puerto Rico (Río Piedras: Ediciones Huracán, 1994)Google Scholar; Santiago-Valles, Kelvin A., “‘Forcing Them to Work and Punishing Whoever Resisted’: Servile Labor and Penal Servitude under Colonialism in Nineteenth-Century Puerto Rico,” in The Birth of the Penitentiary in Latin America. Essays on Criminology, Prison Reform, and Social Control, ed. Salvatore, Ricardo D. and Aguirre, Carlos (Austin: Texas University Press, 1996), 123–59.Google Scholar

5. Spanish liberalism triumphed in 1868, was interrupted by the conservative restoration in 1874–76, but eventually reemerged in the 1880s. The liberal ministry of Práxedes Mateo Sagasta promoted the institutional reforms, promulgated the laws of association, free press, and removed most of the remaining impediments to the liberal society. See Ortiz, David Jr, Paper Liberals. Press and Politics in Restoration Spain (Westport, Conn.: Greenwood Press, 2000)Google Scholar; see also Carr, Raymond, Spain, 1808–1975 (Oxford: Oxford University Press, 1982)Google Scholar; Bahamonde, Angel y Martiner, Jesús, Historia de España, siglo XIX (Madrid: Cátedra, 1994).Google Scholar See also Muñiz, Dora Nevárez, “Evolution of Penal Codification in Puerto Rico: a Century of Chaos,” Revista Jurídica de la Universidad de Puerto Rico 51.3–4 (1982): 90–91.Google Scholar

6. I have been able to construct a good part of this information based on the court records that support this article. Some insights are provided by Vales, Luis González, “Apuntes para una historia del Código Penal luego del cambio de soberanía,” Revista de la Academia Puertorriqueña de Jurisprudencia y Legislación 1 (1989): 141–76.Google Scholar See also Collazo, María Margarita Flores, “Expansión del poder estatal y la militarización del siatema de orden público en el Puerto Rico del siglo XIX,” Op. Cit. Boletín del Centro de Investigaciones Históricas, Universidad de Puerto Rico, 8 (1994): 201–46.Google Scholar

7. See Verena Stoicke (former Martínez-Alier) for a study of Charles III 1776 Royal Pragmatic tightening rules on marriage and its effects in Cuba. The law aimed at preventing interracial unions. Cuba and Puerto Rico's sugar export economies depended largely on African slave labor force. The state ruling tried to preserve the hierarchical understandings within the already heavily mixed black and white societies of the islands but was not always able to overrule the intervention of the Catholic Church, which tended to place the need to marry interracial couples (in order to secure the spiritual salvation of those living in “sinful” cohabitation) over the segregating attempts of the colonial state. Martínez-Alier, Verena, Marriage, Class and Colour in Nineteenth-Century Cuba. A Study of Racial Attitudes and Sexual Values in a Slave Society (Ann Arbor: University of Michigan Press, 1989).CrossRefGoogle Scholar In Puerto Rico elopement, concubinage, and Church-granted exemptions from the state ruling became frequent. See also Gutiérrez, Ramón A., When Jesus Came, the Corn Mothers Went Away. Marriage, Sexuality, and Power in New Mexico, 1500–1846 (Stanford: Stanford University Press, 1991), 236Google Scholar for the case of New Mexico, where traditionally prescribed control of young men and women's sexuality was strengthened by the Royal Pragmatic on marriage. Even so, enough examples show that youngsters frequently escaped the state-supported vigilance of the elders.

8. The nineteenth-century modern agenda, in the context of continued expansion of the working class, intensified the new rationality that justified state control of the domestic unit and its members for its reproduction on behalf of a state-defined general well-being. On criminal redefinitions, see Kelvin A. Santiago-Valles, “‘Forcing Them to Work,’” 126. On late nineteenth-century state control procedures in Mexico, see Piccato, Pablo, “Urbanistas, Ambulantes, and Mendigos: The Dispute for Urban Space in Mexico City, 1890–1930,” in Reconstructing Criminality in Latin America, ed. Aguirre, Carlos and Buffington, Robert (Wilmington: Scholarly Resources, 2000), 113–4–8Google Scholar; see also Piccato, Pablo, City of Suspects: Crime in Mexico City, 1900–1931 (Durham: Duke University Press, 2001)CrossRefGoogle Scholar; For examples of nineteenth-century state control of “sexual crimes,” see essays in Sex and Sexuality in Latin America, ed. Balderston, Daniel and Guy, Donna J. (New York: New York University Press, 1997).Google Scholar

9. See Dayton, Cornelia Hughes, Women before the Bar. Gender, Law, and Society in Connecticut, 1639–1789 (Chapel Hill: University of North Carolina Press, 1995).Google Scholar The author explores the transit from traditional methods of conflict resolution to modern criminal law establishing principles of rationality, which restricted women's participation in the process of justice and their access to a fair trial.

10. In 1869 there were 116,252 households in Puerto Rico, while there were 134,899 married persons or, presumably, 67,449 married couples. This suggests 48,803 households were either single-headed or formed with couples out of wedlock. For census numbers, see Wagenheim, Olga Jimenez de, Puerto Rico. An Interpretive History from Colombian Times to 1900 (Princeton: Markus Wiener Publishers, 1998), 151.Google Scholar

11. For some insights on the shifting demand of laborers, see Bergad, Laird W., Coffee and the Growth of Agrarian Capitalism in Puerto Rico (Princeton: Princeton University Press, 1983).Google Scholar

12. “Puerto Rico 1899. Reports Under Circular no. 10. Reports of Brig. Gen. Geo. W. Davis, Military Governor. Civil Affairs,” in Report of Brig. Gen. Geo. W. Davis, U.S.V. on Civil Affairs of Puerto Rico (Washington: Government Printing Press, 1900), 17. The Spanish law did not allow court divorce. The only solution for finishing an unwanted marriage was legal separation, but women had to prove mistreatment and economic hardship. At the end of a tortuous process she could obtain ecclesiastical divorce.

13. Findlay, Eileen, Imposing Decency: The Politics of Sexuality and Race in Puerto Rico, 1870–1920 (Durham: Duke University Press, 1999), 110–34.Google Scholar

14. Ibid., 50, 156.

15. See Arrom, Silvia Marina, Las mujeres en la ciudad de México, 1790–1857 (México: Siglo XXI, 1988), 252–315Google Scholar; see cases of nineteenth-century Ponce verbal hearings and ecclesiastical divorce in Findlay, Imposing Decency, 18–52, 113–16; Eugenia, Rodríguez S., “Reformando y secularizando el matrimonio. Divorcio, violencia doméstica y relaciones de género en Costa Rica (1800–1950),” in Familias iberoamericanas. Historia, identidad y conflictos, ed. Aizpuru, Pilar Gonzalbo (México: El Colegio de México, 2001), 231–76Google Scholar; Díaz, Arlene J., “Gender Conflicts in the Courts of Early Venezuelan Republic, Caracas, 1811–1840,” Crime, History and Societies 2 (1998): 35–53.CrossRefGoogle Scholar In Diaz's article, women's denunciations of their husbands' abuse became systematic in the context of the consolidation of the independence of Gran Colombia. Félix V. Rodríguez, Matos, “La mujer y el derecho en el siglo XIX en San Juan, Puerto Rico (1820–1862),” in Gènero, familia y mentalidades en América Latina, ed. Aizpuru, Pilar Gonzalbo (Río Piedras: Editorial de la UPR, 1997), 227–63Google Scholar; Gerardo González Reyes, “Familia y violencia sexual. Aproximaciones al estudio del rapto, la violación y el estupro en la primera mitad del siglo XVIII,” in Familias iberoamericanas, 93–116.

16. Dayton, Women before the Bar, 231–84; Arnold, Marybeth Hamilton, “‘The Life of a Citizen in the Hands of a Woman’: Sexual Assault in New York City, 1790–1820,” in Passion and Power. Sexuality in History, ed. Peiss, Kathy and Simmons, Christina (Philadelphia: Temple University Press, 1989), 35–56.Google Scholar

17. Tinsman, Heidi, Partners in Conflict. The Politics of Gender, Sexuality, and Labor in the Chilean Agrarian Reform, 1950–1973 (Durham: Duke University Press, 2002), 11.CrossRefGoogle Scholar For a discussion on the connections between the construction of “male-sexual self’ and views on women, see Nencel, Lorraine, “Pacharacas, Putas and Chicas de su casa: Labelling, Femininity and Men's Sexual Selves in Lima, Peru,” in Machos, Mistresses, Madonnas. Contesting the Power of Latin American Gender Imagery, ed. Melhuus, Marit and Stolen, Kristi Anne (London: Verso, 1996), 56–82.Google Scholar

18. See Caulfield, Sueann, In Defense of Honor. Sexual Morality, Modernity, and Nation in Early-Twentieth-Century Brazil (Durham: Duke University Press, 2000), 10.Google Scholar

19. These views are seen directly or indirectly in studies such as Hammerton, James, Cruelty and Companionship. Conflict in Nineteenth-Century Married Life (London: Routledge, 1992)CrossRefGoogle Scholar; Macfarlane, Alan, “Individualism and the Ideology of Romantic Love,” in Rethinking the Subject. An Anthology of Contemporary European Thought, ed. Faubion, James D. (Boulder: Westview Press, 1995)Google Scholar; Besse, Restructuring Patriarchy. A classical work exposing the emergence of the idea of marriage for love is that of Lawrence Stone, The Family, Sex, and Marriage in England, 1500–1800, which aroused successive refutations, especially of the time span established. Matrimonial practice based on love has been taken far back into the Middle Ages, though many think its becoming dominant can be related to specific conjunctions of individualist ideas and mercantile-urban, or capitalist-oriented settings. The disciplinary impulse of nineteenth-century states was inspired in models of domesticity based on these ideals. For a discussion on the rise of romantic love in early 1800s New Mexico, see Gutiérrez, When Jesus Came.

20. Violence has to be seen as a discourse of the body, and this crucial angle of the problem remains virtually ignored. Michel Foucault exposed the transitions in the conceptions of punishment from more bloody spectacles, to discreet, albeit powerful forms of psychological submission. Discipline and Punish: the Birth of the Prison, trans, by Sheridan, Alan (New York: Vintage Books, 1995).Google Scholar See also Wiener, Martin J., Reconstructing the Criminal. Culture, Law, and Policy in England, 1830–1914 (Cambridge: Cambridge University Press, 1998), 39Google Scholar for the goals of utilitarianism, which sought to habituate people to “consequential thinking” and control of impulsive behavior.

21. In 1860 the census registered a total of 874 government officials in Puerto Rico, all of them classified as white; there were 11,177 military men, of which 11,133 were white. U.S. War Department, Report on the Census of Puerto Rico, 1899 (Washington: Government Printing Press, 1900), 34.Google Scholar

22. In 1869 of the 600,233 total population, 53.8 percent (323,454) were classified as white, 39 percent (237,710) as free colored, and 6.5 percent (39,069) as slaves. Jiménez de Wagenheim, Puerto Rico, 151.

23. For this angle of the problem a useful contribution is Merry, Sally Engle, Colonizing Hawai ‘i. The Cultural Power of Law (Princeton: Princeton University Press, 2000).Google Scholar For a reflection on the “power of the law” as a highly legitimated and authoritative institution, see Ramos, Efrén Rivera, The Legal Construction of Identity (Washington, D.C.: American Psychological Association, 2001), 122–16.Google Scholar

24. For disciplinary action in the capitalist order as “a complex process of negotiation and discord among professional experts,” see Caulfield, In Defense of Honor. For some insights on violence and gender “negotiations” at the community level in the “pre-feminist” context of late eighteenth-century Mexico, see Stern, Steve J., The Secret History of Gender: Women. Men, and Power in Late Colonial Mexico (Chapel Hill: North Carolina University Press, 1995).Google Scholar

25. For a discussion of elopement as a way of free marriage choice, see Findlay, Imposing Decency. For the widespread practice of elopement facilitating interracial unions in Cuba. see Verena Stoicke (former Martínez-Alier), Marriage, Class and Colour. Freer choice in marriage had been extending since the turn of the century. In a similar context of demographic swelling, economic expansion, and diffusion of changing mores, Ramón Gutiérrez registered in the early 1800s New Mexico the presence of individualist and love-based marriages: “a love born of passion was sufficient reason for choosing a particular conjugal mate.” These attitudes were in contrast with earlier state-supported elders'control of marriage choice. Gutiérrez, When Jesus Came, 329–330. On the eighteenth-century constraints over marriage in Mexico see Seed, Patricia, To Love, Honor, and Obey in Colonial Mexico. Conflicts over Marriage Choice, 1574–1821 (Stanford: Stanford University Press, 1988).Google Scholar However, nineteenth-century growth of working class population in Puerto Rican barrios, and their mobility, created practical problems for the continuation of such disciplinary guidelines.

26. The literature that presents late nineteenth-century and early twentieth-century women-related legal reformism as a means of strengthening state power over domestic affairs is very large. See for example, Sueann Caulfield's assertion: “State protection of women, especially the juridical sphere of action, was a power enhancing function” (Caulfield, In Defense of Honor, 9). In this work, women are seen partaking in the incessant negotiations over the meanings of honor and attempting to grasp the edge of advantage in cases of “sexual” offenses, very much as in Findiay's descriptions of sexual offenses in late nineteenth-century Puerto Rico.

27. This is the notorious article 437 of the 1879 Penal Code (438 of the 1870 Spanish Code) establishing the penalty of exile to married men who killed their wives and/or lovers caught in the act of adultery. It reveals the anxieties that the violation of maniage regulations created in the state, and its desire for domination over women's sexuality. I did not find any court record exemplifying the actual application of this disposition, nor of its second part, which includes daughters below the age of twenty-three living in the paternal house and their “abusers.” It is not certain how widespread was the knowledge of its existence among the common people. Adultery could also be committed by men who kept a lover “with scandal” or indiscreetly; not so in the case of women, who committed the offense of adultery in any condition. See Código Penal 1879.

28. In traditional communities there was intense surveillance among neighbors, but in matters related to domestic disputes residents refrained from intervening, for the husband's prerogative to punish a disobedient wife was respected. See the case of Arequipa in Chambers, Sarah C., From Subjects to Citizens. Honor, Gender, and Politics in Arequipa, Peru, 1780–1854 (University Park: Pennsylvania State University Press, 1999), 98, 101–4.Google Scholar Chambers notes that husbands attempted to control their wives' mobility, fearing the neglect of domestic duties and/or unfaithfulness. In these cases “men felt perfectly entitled to ‘correct’ their wives through physical punishment” (103).

29. Most cases of the Arecibo Criminal Court were sent for revision to the Audiencia Territorial, though not all created similar disputes. Judges usually had an ample margin of discretion when applying or disregarding extenuating or aggravating circumstances.

30. Archivo General de Puerto Rico (hereafter AGPR), Tribunal Superior de Arecibo (hereafter TSA), Criminal, caja 367, May, 1880. See also Art. 9 and Art. 603, Código Penal Reformado de 1870 (Madrid: F. Fe, 1876); Código Penal de 1879 para las Islas de Cuba y Puerto Rico (La Habana: Imprenta G. Montiel, 1879).

31. Normally, the span of time in jail was established in proportion to the number of days needed for the wound to heal and the number of days the victim was unable to work, according to official medical reports. Considering domestic violence the same as any other battery offense was not uncommon in other criminal laws of the time, as suggested in the case of Costa Rica studied in Eugenia Rodríguez, “‘Ya me es insoportable mi matrimonio’. El maltrato a las esposas en el Valle Centrai de Costa Rica,” Ciencias Sociales 68 (June 1995): 73–93.

32. Código Penal reformado de 1870 … Art. 603, 873. Emphasis in original.

33. See Hammerton, Cruelty and Companionship.

34. Alberai, Inés and Matas, Natalia, La violencia doméstica. Informe sobre los malos tratos a as mujeres (Barcelona: Estudios Sociales Fundación La Caixa, 2002), 156–70.Google Scholar

35. Martin J. Wiener, Reconstructing the Criminal, 257, 272–73.

36. The “turning point” in this condition could perhaps be the promulgation in 1989 of Act 54, or the law on domestic violence in Puerto Rico, that constructed the special offense and provided institutional support to abused women. For discussions on feminist legal theory in Puerto Rico with keen awareness of the dilemmas posed by state protectionist intervention, see Vicente, Esther, “Feminist Legal Theories: My Own View from a Window in the Caribbean,” Revista Jurídica de la Universidad de Puerto Rico 66.2 (1997): 211–67.Google Scholar

37. Extreme violence is exceptional and not a reflection of “typical” gender relations in a specific community, though it is a tragic aspect of the general idea of men's possession of women's bodies. The early commercial press publicized these events, a sensationalist tactic that increased sales. See for example, the San Juan newspaper La Correspondencia, Feb. 28. 1895. See Besse, Susan K., “Crimes of Passion: The Campaign against Wife Killing in Brazil, 1910–1940,” Journal of Social History 22.4 (Summer 1989): 653–66CrossRefGoogle Scholar, for a study of early twentieth-century Brazilian state concern for such crimes, which did not contemplate reforming views on women's subordination.

38. See the proposal of Eugenia Rodriguez, that domestic violence has always been difficult to study because it was undervalued and regarded as a quotidian reality unworthy of judicial report. Rodríguez, “‘Ya me es insoportable …,’” 74. This does not mean that nineteenth-century records are nonexistent, as shown by the cases Felix Matos found in the capital city of San Juan's verbal hearings (juicios verbales) between 1830 and 1840. See Matos Rodríguez, “La mujer y el derecho.” Also, the ecclesiastical divorce records, a mechanism especially used by the elite, may provide another way of uncovering domestic violence, as seen in the studies of Mexico City and Costa Rica. Arrom, Las mujeres en la ciudad de Mexico, 252–315. See cases of nineteenth-century Ponce verbal hearings and ecclesiastical divorce in Findlay, Imposing Decency, 18–52, 113–16.

39. AGPR, TSA, Criminal, caja 316, Oct. 1875. The case record has the date of Oct. 1873 but is mistakenly placed in the 1875 box.

40. See a discussion on the changing perceptions of reproductive sexuality and parenting in Donna J. Guy, “Mothers Alive and Dead: Multiple Concepts of Mothering in Buenos Aires,” in Sex and Sexuality, 155–73. The supposedly “natural” authority of the male heads of households over offspring was beginning to be questioned in press articles in Puerto Rico, but “mild” physical corrective punishment was deemed an indispensable part of responsible parenting.

41. For another case of a domestic fight because of a man's complaints about the quality of the food the wife was preparing, see AGPR, TSA, Criminal, caja 447, June/July 1887.

42. AGPR, TSA, Criminal, caja 334, April 1878.

43. One of the qualities of the Penal Code of 1889 was that it penalized the crimes against the State more severely than those against the person or the property. For this reason it has been described as “eminently political” in Nevárez Muñiz, “Evolution of Penal Codification, 90–91.

44. AGPR, TSA, Criminal, caja 295, May-June, 1870.

45. For a discussion on the tensions created by the application of the ideal of the husband-provider borrowed from bourgeois family models to working class families, see Hammerton, Cruelty and Companionship, 13.

46. AGPR, TSA. Criminal, caja 321, Sept-Oct. 1876.

47. Ibid.

48. See above, note 45

49. AGPR, TSA, Criminal caja 278, Oct. 1860.

50. Ibid., caja 550, Nov. 1894.

51. Ibid., caja 498, Oct. 1893.

52. Ibid., caja 550, Nov. 1894.

53. Ibid., caja 494, Sept. 1893.

54. Ibid., caja 472, Jan. 1893.

55. Ibid., caja 434, March 1886.

56. Ibid., caja 548, Oct. 1894.

57. Ibid., caja 526, May 1894.

58. See one more example in the case of Dominga Sánchez against her concubine Juan Maldonado, AGPR, TSA. Criminal, caja 604, Dec. 1895 (the case is dated Dec. 1894 but misplaced in a box corresponding to the year 1895).

59. Código Penal para las Islas de Cuba y Puerto Rico de 1879, Arts. 427 and 453 (La Habana: Imprenta Montiel, 1879).

60. For a contemporary expression of the importance given in cases of rape to the violation of a woman's honor, and not to the violation of a woman's will, in a New York court, see Arnold, “‘The Life of a Citizen in the Hands of a Woman,’” 35.

61. Ibid. See also the arguments on cases of rape in Dayton, Women before the Bar, 231–84. Dayton found that similar problems were created in eighteenth-century Connecticut under the influence of the English Criminal Law. Prosecutions of sexual violations focused on the previous conduct and reputation of the victim. There was considerable skepticism toward the women's word. Since the offense constituted capital crime, juries resisted emitting a guilty verdict, especially when the accused were white local males, not so much when the suspects were black, Indian, or foreign. For Dayton, it is important to highlight the deterioration of women's credibility before the law when eighteenth-century English legal influences penetrated the religiously inspired criminal system of the seventeenth-century Puritan regime. 62. See AGPR, TSA, Criminal, caja 532, July 1894; caja 583, June 1895.

62. See AGPR, TSA, Criminal, caja 532, July 1894; caja 583, June 1895.

63. Ibid., caja 303, Jan/March 1873. For another case in which lack of proof is adduced see caja 592, Sept. 1895.

64. Ibid., caja 518, March 1894; 524, April 1894.

65. Ibid., caja 532, June, 1894.

66. Ibid., caja 330, Nov.-Dec. 1877.

67. Ibid., caja 538, Aug. 1894.

68. Ibid., caja 550, Nov. 1894.

69. The phrase is from Arnold, “The Life of a Citizen,” 42.

70. AGPR, TSA, Criminal, cajas 574 and 578, May 1895.

71. Ibid., caja 580, June, 1895.

72. Ibid., caja 591, Aug. 1895.

73. Ibid., caja 601, Nov. 1895.

74. For Latin America see, for example, the case of Paraguay, where households headed by women were the common practice in the nineteenth century. Potthast-Jutkeit, Barbara, “La moral pública en Paraguay: Iglesia, Estado y relaciones ilícitas en el siglo XIX,” in Familia y vida privada en la historia de Iberoamérica. Seminario de historia de la familia, ed. Aizpuru, Pilar Gonzalbo and Romero, Cecilia Rabell (México: El Colegio de México-Universidad Autónoma de México, 1996), 148.Google Scholar

75. Arnold, “‘The Life of a Citizen in the Hands of a Woman,’” 37.

76. Despite the patriarchal trappings that made women lose court cases, they partook in shaping dominant views, and in the nineteenth century they would be more likely to influence opinion, given the general changes in perspectives about individual rights and the spread of counter-discursive proposals. Susanne Eineigel's reflection in her review of Eileen Findlay's book is illuminating: “Discourses are not self-contained or static but rather exist in continuing dialogue or as communicative processes with all members of society. They must necessarily remain open and flexible to stay active and powerful….While some may argue that such inclusions of the marginal by the dominant represent mere forms of co-optation, we cannot dismiss that such ways of maintaining power bring about real change, however subtle. In this way any dissent has the potential to be challenging, not only as an opposition but also as a means to weave itself into the dominant discourse.” Gateway: An Academic History Journal on the Web (Winter 2001) http://grad.usask.ca/gateway/susanneeineigelreviewfindlayimposingdecency.html. (March 31, 2003). See another interesting reflection in Dore, Elizabeth, “One Step Forward, Two Steps Back. Gender and the State in the Long Nineteenth Century,” in Dore, and Molyneux, , Hidden Histories of Gender, 3–32, esp. 4–5Google Scholar. It focuses on the problem of state-led legal reform to protect women as a possible road to further entrapment in dependent subordination. Some specific cases, however, reveal women's actions in reporting offenses had positive consequences. See also the view of modernizing reforms as decreasing women's ability to resist subordination in Dayton, Women before the Bar.