“To Avoid Civil War”: Partnership Contracts, Custom, and Common Lands in 18th-Century Mexico

At the turn of the eighteenth century, the Spanish Crown initiated a program of land titling that required Indigenous communities across Spanish America to produce evidence of possession of their communal lands or risk their confiscation and sale by the Crown. This program, known as the composiciones de tierras, lasted through most of the century and generated a wide array of claims in Spanish courts. Some were based on long-term occupation, use, and possession, the normative categories of ownership in early modern European law. Other claims, however, generated new rights to collective land tenure that braided together customary use and Spanish laws regarding partnership and plural ownership.

My paper focuses on this latter form of producing new use rights and common lands through the creation of partnership contracts, some of which were drawn up by Native town halls, and others in front of Spanish judges in district courts. Partnership contracts were a genre of consensual contract, whose origins can be traced to the concept of partnership (societas) in Roman Law, and whose purpose was to pool resources such as property or labor for a common purpose, and sometimes against the interests of a third party. Partnership contracts served other purposes as well: to prevent violent conflict over the boundary lands that separated (and joined) Indigenous communities, and to avoid costly litigation. I analyze a corpus of these contracts from two distinct regions of Oaxaca, Mexico to reveal how Native authorities reconfigured customary and collective land tenure during the eighteenth century. The contracts represent part of a broad repertoire developed by Native authorities to reshape their relationship to land and other Native people, including commoners and rival communities, in response to changing state initiatives and legal regimes. They also dispel longstanding assumptions about the primordial nature of Native collective land tenure.