The Husband’s Permission
The Husband’s Permission
A widow in New France could contract in her own name. A married woman could not — and yet two married women of this practice’s research did exactly that, fifteen months apart, by two different legal routes. The clauses that made it possible are four words long, and most transcriptions skip them.
“…Marie Riton sa femme, de luy authorizée pour l’effet des présentes…”
Marie Riton his wife, authorized by him for the effect of these presents. The husband is standing in the room. He authorizes her inside the act, for this act only.
“…Marie Dutos femme de Michel Lemay, fondée en procuration dudit Lemay son mari, laquelle s’oblige…”
Marie Dutos, wife of Michel Lemay, empowered by a power of attorney from the said Lemay her husband — she binds herself. The husband is not there. A document stands in for him.
A Married Woman Could Not Bind Herself
The collection this essay belongs to is built on widows. That is not an editorial preference. It is what the law produced.
Under the Coutume de Paris, which governed New France, a married woman lived under her husband’s puissance maritale. She could not alienate property, contract a debt, stand in a suit, or bind herself in a notarial act on her own authority. Her legal personality was not erased — the community of goods was half hers, and the law protected that half carefully — but her capacity to act was suspended for the duration of the marriage.
Widowhood returned it, entire and permanently. That is why the case studies in this series are widows: Marie Lorgueil selling a right of action, Marie Chapelier through five courts, Marie Crête carrying a parcel through three marriages. Widows generate records because widows could sign.
But the incapacity of a married woman was never absolute. The Custom recognized that households needed wives who could transact, and it supplied two ordinary instruments for it. Both required the husband. They differed in whether he had to be present — and that difference, invisible in most published abstracts, turns out to be the whole story.
Authorization in person. The husband appears in the act and authorizes his wife within it. The formula is de luy authorisée, usually narrowed by pour l’effet des présentes — for the effect of these presents. It is act-specific and expires with the act.
Procuration. The husband executes a separate written power of attorney, before or elsewhere. The wife then contracts alone, and the act records only that she is fondée en procuration. It is the instrument of a husband who is somewhere else.
This practice now holds a document for each — two women, fifteen months apart, on two seigneuries of the St Lawrence.
Beauport, 27 December 1666
Five days after Christmas, the Leblanc family assembled at Beauport before the notary Paul Vachon to contract their daughter Louise in marriage to Michel Le Court, a merchant of Québec. Louise’s brother Noël was there, and her sisters Marguerite, Marie and Jeanne; so were Pierre Vallée, the surgeon who had married the eldest daughter, and Nicolas Juchereau, écuyer, sieur de Saint-Denis.
The opening line of the act is the reason it appears here.
“…furent présens Léonard Leblanc et Marie Riton sa femme, de luy authorizée pour l’effet des présentes, au nom et comme stipulans en cette partie pour Louise Leblanc leur fille, acceptant de son consentement…”
— Marriage contract, greffe de Paul Vachon, 27 December 1666| Element | Reading |
|---|---|
| Parties on this side | Léonard Leblanc and Marie Riton, both named as present persons |
| Her capacity | De luy authorizée — authorized by him, within the act, with him present |
| Scope of the authorization | Pour l’effet des présentes — for this act and no other |
| The verb | Stipulans, plural. They stipulate together. |
| What she is not | Not a mother named in a filiation clause. A contracting party. |
The distinction in that last row is the one most family historians miss. A woman’s name in a marriage contract is usually a genealogical fact — it tells you who the mother was. Here it is a legal fact. The notary did not need to authorize a mother in order to name her. He authorized her because she was binding herself, and a wife who binds herself without authorization binds nothing.
Cap-de-la-Madeleine, 22 March 1668
Fifteen months later and eighty miles upriver, on a March afternoon, Marie Duteau walked to the notary of the seigneury of Cap-de-la-Madeleine. She was twenty-eight, nine years married, with five small children at home. Across the table sat noble François Hartel escuyer sieur de la Fresnière — the soldier and seigneur whose name runs through the whole history of Trois-Rivières.
“L’an mil six cent soixante et huict le [vingt deuxiesme] jour de mars après midy, pardevant nous notaire en la juridiction seigneurie et prévosté du Cap de la Magdeleine et témoins soubzsignés, fut présent de sa personne noble François Hartel escuyer sieur de la Fresnière, et Marie Dutos femme de [Michel Lemay] … fondée en procuration dudit Lemay son mari, laquelle s’oblige…”
— Bibliothèque et Archives nationales du Québec, P1000,S3,D970The bargain itself is modest. It is a bail à cheptel: a cow taken on shares, running three years from the preceding 7 January, the increase to be divided moitié par moitié — half and half — with clauses for what should happen if the animal died and how the hide was to be returned.
| Element | Reading |
|---|---|
| Parties | François Hertel de la Frenière, and Marie Duteau. Two people. Michel Lemay is named but not present. |
| Her capacity | Fondée en procuration dudit Lemay son mari — a written power of attorney, executed elsewhere |
| Scope of the authorization | Not stated in this act. The procuration itself would define it. |
| The verb | Laquelle s’oblige — singular, feminine, reflexive. She binds herself. |
| Term | Three years running from the preceding 7 January — the bargain was already ten weeks old when it was written down |
| Division | Moitié par moitié, with clauses for the animal’s death and the return of the hide |
It is an ordinary agricultural contract, and that is exactly why it matters. Nobody drafted it to make a point about the legal capacity of women. The notary reached for the formula that fit the person in front of him, and the formula he reached for was the one used when the husband is somewhere else.
A detail worth keeping
The term runs from 7 January, but the act is dated 22 March. The cow had been in Marie Duteau’s keeping for ten weeks before anyone wrote anything down. The paper follows the practice; it does not create it. Whatever arrangement existed between this household and the seigneur on 7 January was already working.
The Grammar Is the Evidence
Seventeenth-century notaries were not careless writers. The formulary was their trade, and the agreement of a participle carried legal weight. Put the two verbs next to each other and the difference in the women’s positions is visible in the morphology alone.
| Beauport, 1666 | Cap-de-la-Madeleine, 1668 |
|---|---|
| …comme stipulans en cette partie… Plural participle. Two subjects, acting jointly. Marie Riton is half of a pair. |
…laquelle s’oblige… Singular relative pronoun, feminine, with a reflexive verb. One subject, and she is it. |
Read a transcription that modernizes or abridges these formulas and both acts flatten into the same thing: a woman appears in a document. Read the original and they are two different legal events. This is the argument for reading the act rather than the abstract, and it is not an abstract argument — it is the difference between a wife standing beside her husband and a wife standing alone.
Neither Woman Could Write Her Own Name
Legal capacity and literacy were separate things. The Coutume de Paris never required anyone to be able to read the act that bound them.
Both acts say so, in their closing lines, in the ordinary formula the notaries used when a party could not put a name to the page.
“…ce 27e jour de Décembre 1666, et ont déclaré le dit Le Blanc, sa femme, et la dite Louise Le Blanc future espouse, Noël, Marie Isabelle, Marguerite, Jeanne et Marie Leblanc, ne sçavoir signer, et de ce enquis… comme aussi le dit futur espoux, quy a fait sa marque ordinaire.”
— Marriage contract, greffe de Paul Vachon, 27 December 1666“…et ladite Dutos, ne sçachant escrire ny signer, de moy soubsigné notaire, a faict sa marque.” — and beside the cross she drew, the notary wrote: marque de ladite Dutos.
— Bail à cheptel, Cap-de-la-Madeleine, 22 March 1668. François Hertel de la Frenière signed his own name.Le dit Le Blanc, sa femme — that is Marie Riton, named in the same breath as her husband, in the same act in which he had authorized her to bind herself. She could not sign it. Neither could he, nor the bride, nor any of the five Leblanc children standing with them. Fifteen months later and eighty miles upriver, Marie Duteau contracted alone with a seigneur, under a power of attorney, and drew a cross.
So in both acts a woman was a contracting party to a document she could not read. It was read aloud to her. In 1666 the authorization was spoken; in 1668 the obligation was hers alone. Both were entirely real.
That combination is worth stating plainly, because family historians routinely draw the wrong inference from a mark. An ancestor who signed with a cross is usually described as though she were legally passive, present only to be recorded. The Custom of Paris did not work that way. Signature evidenced literacy. It did not confer capacity, and its absence did not withhold it.
Who could sign, at that table, in 1666
Six names went onto the 1666 contract in their owners’ own hands: Pierre Lavallée, the surgeon who had married the eldest daughter; Nicolas Juchereau, sieur de Saint-Denis; Marie Anne Juchereau and Louyse Juchereau; the witness René Chevalier; and Vachon the notary. Michel Le Court, the groom, made a mark, as did Langlois.
Two women signed that contract. Both were Juchereau. Marie Riton and every one of her children present made marks or none. Literacy in this room tracked rank, not sex — which is the second reason a mark is poor evidence of anything about a woman’s standing.
The Mechanism Crossed the Ocean Intact
It would be tempting to read these two acts as evidence that the colony was looser than the metropole — a frontier where the shortage of men and the distance from courts quietly widened what a wife could do. A third document says otherwise.
On the afternoon of Tuesday 16 April 1658, in the rue des Trois Marchands in La Rochelle, the notary Pierre Teuleron drew up engagement contracts for a Protestant family about to sail for Canada. One clause records that Pierre Duteau authorizes his wife to pass the contract. It is the same instrument as the Vachon clause of 1666: authorization in person, inside the act, husband present.
The woman authorized was Jeanne Perrin. Ten years later her daughter Marie contracted at Cap-de-la-Madeleine under a procuration.
Three women, three acts, one legal problem — La Rochelle 1658, Beauport 1666, Cap-de-la-Madeleine 1668. Ten years and an ocean apart, and the Custom of Paris behaves identically at both ends.
The colony did not invent a new capacity for women. It imported the ordinary law of northern France and applied it on seigneuries where the husband was frequently away — trading, soldiering, clearing land upriver. What changed was not the rule. It was how often the second instrument was needed.
And Then There Is the Will
Eight years later, on 4 November 1674, Marie Riton was dead and Léonard came before the same notary to inventory the community he had held with her. That act holds one more thing. He appears in it not only as the surviving husband but in two further capacities, and both of them come from a document.
“…tant en son nom, à cause de la communauté qu’il a eue avec défuncte Marie Riton jadis sa femme, et encore comme donnataire des biens de la dite défuncte estans de la dite communauté, que comme Exécuteur du Testament et ordonnance de dernière volonté de la dite défuncte Riton jadis sa femme, receu par nous dit notaire en datte du saiziesme jour d’apvril de la présente année mil six cent soixante et quatorze…”
— Inventaire, greffe de Paul Vachon, 4 November 1674Marie Riton made a will. She made it on 16 April 1674, some months before she died; she made her husband her executor, and she gave him her share of the community. Paul Vachon received it himself — receu par nous dit notaire — so it was his own act, in his own practice.
A testament is not a contract, and it is worth being careful about what it does and does not show. It is not a third example of the mechanisms above: a will is a unilateral disposition, and the law of testamentary capacity is a separate question from the law of marital authorization. Whether Marie Riton needed her husband’s permission to make this one is exactly the sort of doctrinal point this page has declined to assert on its own authority. It is a question, and the document that would answer it is the will.
Which is the difficulty.
The will is not in the register
Vachon’s répertoire for April 1674 lists three acts: the 8th, the 22nd and the 22nd. There is no entry for the 16th. The images covering that stretch of the greffe hold act 645, the marriage contract of Robert Coret and Marie-Madeleine Paradis, dated 22 April 1674 — read from the original for this page, and not a testament. Where a 16 April act should sit, there is nothing.
So a document the notary states in his own hand that he himself received is absent from his own register. The ordinary explanations are that it was passed en brevet — drawn up and handed to the party with no minute retained — or that it has been lost or misfiled. Nothing yet decides between them. What is certain is that the will existed, because the inventory describes it, dates it, and acts on it.
The More Independent the Act, the Thinner the Trace
There is a bias built into this evidence, and it runs the wrong way.
An authorization in person is self-documenting. The husband is in the room, the notary writes de luy authorisée into the protocol, and the proof of the wife’s capacity survives inside the same act that used it. Find the act and you have the whole transaction.
A procuration is not. It is a separate instrument, executed on some other day, very possibly before some other notary, in some other jurisdiction. The act that relies on it does no more than refer to it. Whether that power of attorney survives is an entirely independent question — and there are three ordinary ways for it not to:
It may have been passed en brevet — drawn up and handed to the party, with no minute retained in the notary’s register. It may sit in a greffe that has been lost, or in one that survives but has never been indexed under the wife’s name, because she is not a party to it. Or it may have been an act of a jurisdiction whose records went in one of the fires that punctuate the archival history of the St Lawrence.
Put those two facts together and the consequence is uncomfortable. The instrument that gave a married woman the most independence is the instrument least likely to survive. A researcher counting women who acted, from the acts that remain, will systematically over-represent the wives who acted beside their husbands and under-represent the wives who acted alone.
This is not a reason to distrust the evidence. It is a reason to read the reference. When an act says fondée en procuration, it is testifying to a document you have not seen — and that reference is itself evidence, admissible on its own, that the document once existed. Marie Duteau’s power of attorney has not been found. The 1668 act is proof that Michel Lemay executed one.
Marie Riton’s will is the same problem with the odds reversed, and it is the more instructive case. That one was received by a known notary, on a known date, in a practice whose register survives and has been digitized — every condition for survival met. It is still not there. If a testament can go missing under those conditions, a power of attorney passed in a seigneurial jurisdiction in the husband’s absence was never likely to reach us at all. The reference in the act is not a lead to the document. Very often it is the document’s only remains, and it has to be read as evidence in itself.
Finding These Clauses in Your Own Families
These formulas are stable across northern French practice and across the colonial period, which makes them searchable. Where a greffe has been transcribed or indexed by phrase — and increasingly where it has been run through handwriting recognition — the following strings will surface acts in which a married woman is a party rather than a mention.
de luy authorisée · authorisée de son mari · de son mari authorisée
Authorization in person. Expect the husband to be named as a present party in the same protocol. Spelling varies freely: authorizée, autorisée, auctorisée.
pour l’effet des présentes
The scope limiter that usually follows. Its presence tells you the authorization was act-specific — useful when you are trying to establish whether a wife had general or single-act capacity.
fondée en procuration · fondée de procuration · en vertu de la procuration
The husband is absent. Note the date and notary of the procuration if the act gives them — most do not, and when one does, it is a direct lead to a second document.
laquelle s’oblige · laquelle a reconnu · laquelle a déclaré
Singular feminine relative pronouns carrying the operative verb. These identify the acting party faster than reading the whole protocol, and they distinguish a contracting wife from a wife merely consenting.
séparée quant aux biens · séparation de biens
A third route to capacity, by judicial separation of property. A wife so separated administered her own goods without authorization. Rare in the early colony, and worth flagging wherever it appears.
marchande publique
A fourth: a married woman trading publicly in her own right had capacity for the acts of that trade. This practice holds no document in this category and the term is offered here as a category to search, not a finding.
Where to look
The notarial greffes of New France are digitized on BAnQ numérique and indexed act by act in Parchemin, the analytical index of the colonial notarial record. Seigneurial jurisdictions kept their own notaries, so an act may sit in a seigneurial series rather than a royal one — as the 1668 Hertel act does. For France, the departmental archives hold the minutiers; the La Rochelle greffes used here are at the Archives départementales de la Charente-Maritime.
Two practical cautions. First, indexes are built on names, and a wife acting under procuration is often indexed under her husband’s. Search both. Second, a répertoire is a finding aid, not an inventory of everything a notary wrote; acts passed en brevet may never appear in one.
What These Acts Do Not Show
These documents make an argument about legal form. They do not make an argument about power, temperament, or the texture of either marriage, and this page will not borrow their authority for claims they cannot carry.
Limits recorded
- The stakes were small. The 1668 act concerns one cow on shares. It establishes capacity and the instrument used; it establishes nothing about the scale of what Marie Duteau habitually transacted.
- One act is not a practice. That Michel Lemay executed a procuration suggests his wife was expected to transact in his absence — a written power of attorney takes a notary and forethought, and is an odd thing to arrange for a single cow. That is an inference, and it is labelled as one. A second act under procuration would convert it; none has been found.
- No negative search of stated extent has been run. Neither woman’s name has been searched systematically across the full greffes of her district for other acts. Until that is done and its extent recorded, the absence of further acts means nothing at all.
- Authorization is the husband’s act as much as the wife’s. Nothing in either clause tells us who wanted the transaction, who proposed it, or whether the permission was freely given. The Custom describes what was legally possible. It is silent on what was domestically true.
- The 1674 inventory does not speak to Marie Riton’s own hand, and is not cited for it. Its closing formula reads eux et leurs femmes, but she was the deceased in that act; leurs femmes can only mean the wives of the men present — her daughters. The evidence for Marie Riton comes from the 1666 contract, which names her directly.
- The search for the 16 April 1674 testament has a stated extent, and it is narrow. What has been checked is Vachon’s répertoire for April 1674 and the three images covering act 645. That is not a search of the greffe. The testament may yet be misfiled elsewhere in it, and nothing here should be read as proving it was passed en brevet.
- No doctrinal literature is cited on this page. The reading of the Custom given here is drawn from the acts themselves and from the formulas the notaries used. Readers wanting the doctrinal treatment should go to the text of the reformed Coutume de Paris of 1580 and the legal-historical literature on it, neither of which has been consulted for this page.
Questions This Page Leaves Standing
- Where is Michel Lemay’s procuration? The 1668 act refers to it but does not date it or name its notary. It would have been executed before 22 March 1668, plausibly before 7 January when the cheptel term began. Would be answered by: a search of the Trois-Rivières and Cap-de-la-Madeleine greffes for the winter of 1667–68, with the extent of the search recorded.
- Where is Marie Riton’s testament of 16 April 1674? Vachon states he received it. It is not at its place in the register, where act 645 of 22 April stands instead. Would be answered by: a sweep of the Vachon greffe either side of April 1674 with the extent recorded; failing that, the en brevet hypothesis stands untested. Léonard Leblanc, as executor and donataire, would have held the original.
- Where was Michel Lemay in March 1668? The procuration implies absence. Nothing yet establishes where he was or for how long. Would be answered by: engagement or voyage contracts, militia rolls, or his appearance as a party elsewhere in the same months.
- Are there further acts by either woman? Neither greffe has been swept for them. Would be answered by: a Parchemin search on both women and both husbands, with negative results stated as extent.
- Does the 1658 Teuleron clause use the same formula? The authorization of Jeanne Perrin is currently known from a reading of the contract’s substance, not from a word-for-word transcription of its protocol. Would be answered by: transcribing the opening lines of the 16 April 1658 contracts, AD Charente-Maritime, greffe de Me Pierre Teuleron.
Sources
- Marriage contract of Michel Le Court and Louise Leblanc, 27 December 1666 — Bibliothèque et Archives nationales du Québec, greffe de Paul Vachon, 1655–1693, 03Q,CN301,S266.
- Inventaire made by Léonard Leblanc after the death of his wife Marie Riton, 4 November 1674 — BAnQ, greffe de Paul Vachon, 03Q,CN301,S266, images 229–237. Read from the original for this page. Source of the opening description of Léonard as surviving husband, executor and donataire; of the reference to the testament of 16 April 1674; and of the closing declaration that the men and their wives could not write or sign.
- Marriage contract of Robert Coret and Marie-Madeleine Paradis, 22 April 1674, act 645 — BAnQ, greffe de Paul Vachon, 03Q,CN301,S266, images 137–139. Read from the original for this page; cited here only to record what occupies the position in the register where the testament of 16 April 1674 would fall.
- Bail à cheptel, François Hertel de la Frenière and Marie Duteau, 22 March 1668, Cap-de-la-Madeleine — BAnQ, P1000,S3,D970.
- Engagement contracts of the Duteau family, 16 and 17 April 1658 — Archives départementales de la Charente-Maritime, greffe de Me Pierre Teuleron, La Rochelle.
- Baptism of Marie Duteau, 25 August 1639 — AD Charente-Maritime, registres du Temple de la Villeneuve, cote I 171-173, registre 1632–1648, view 255 of 645, folio 133.
Transcriptions on this page are the author’s, made from the original images. Square brackets mark readings taken from context where the hand is uncertain; ellipses mark omitted text. The full apparatus — findings, controls, withdrawals and negative searches — is held in the Marie Riton and Marie Duteau research logs.
Is there a woman in your tree who only ever appears as someone’s wife?
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