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Dowry and Inheritance in Colonial Spanish America: Peninsular Law and Chilean Practice

Published online by Cambridge University Press:  11 December 2015

Eugene H. Korth S.J.  and
Della M. Flusche
Eugene H. Korth S.J.
Affiliation:
Marquette University, Milwaukee, Wisconsin
Della M. Flusche
Affiliation:
Eastern Michigan University, Ypsilanti, Michigan
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Extract

Despite a growing interest in the history of women in colonial Spanish America, the Castilian legislation which defined female juridical status has received scant attention. Some scholars have treated legal questions as a corollary to the themes of feminine endeavor and wealth. The law itself, relegated to a secondary position, has remained a maze of confusing mandates to all but a few historians who have wrestled with its directives. An analysis of the legal foundation which was central to the roles that Hispanic American women assumed in the colonies is therefore in order. The purpose of this article is accordingly to clarify pertinent legal terms, concepts, and procedures that were operative throughout the Indies. Particular emphasis is given to the subject of females as donors and beneficiaries of marital endowments and parental estates. Since the abstract legal principles are difficult to understand, concrete examples are drawn from Hispanic families in Chile to illustrate the workings of the law. These eighteenth-century cases comprise a dowry receipt, an estate settlement, and a set of testamentary dispositions. The family papers underscore the fact that norms established in peninsular legislation and applied in Spanish America constituted an important link in the chain of continuity with the past that characterized colonial life even as that life underwent change in the Bourbon era.

Type
Research Article
Information
The Americas , Volume 43 , Issue 4 , April 1987 , pp. 395 - 410
Copyright
Copyright © Academy of American Franciscan History 1987

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References

1 Examples are Socolow, Susan Migden, The Merchants of Buenos Aires, 1778–1810: Family and Commerce, Cambridge Latin American Studies, no. 30 (Cambridge, 1978), 34–53,CrossRefGoogle Scholar and selections in Lavrin, Asunción, ed., Latin American Women: Historical Perspectives, Greenwood Contributions in Women’s Studies, no. 3 (Westport, CT, 1978).Google Scholar

2 Since the Spanish American kingdoms known as the Indies belonged to the crown of Castile, the laws of that realm prevailed over other peninsular legislation, Haring, C.H., The Spanish Empire in America (New York, 1947), 7–8, 109–110.Google Scholar The famous compilation of colonial legislation, Recopilación de leyes de los reynos de las Indias, 4 vols. (Madrid, 1681), Book II, title I, law 2, upheld previous decrees applying Castilian law in Spanish America.

3 Codes and statutes ranging from the Fuero juzgo (abbreviated FJ) through the early nineteenth-century Novísima recopilación de las leyes de España, which reaffirmed many of the Laws of Toro on the eve of Spanish American independence, are compiled in Alcubilla, Marcelo Martínez, ed., Códigos antiguos de España, 2 vols. (Madrid, 1885).Google Scholar Ots Capdequí, José María, Historia del derecho español en América y del derecho indiano (Madrid, 1968), 5–80, 205–262Google Scholar, and Adrián, Salvador Minguijón, Historia del derecho español, 2 vols. (Barcelona, 1927), I, 41, 76–83, 120–170,Google Scholar proved particularly helpful on points of law discussed in this article.

4 Las Siete Partidas, Partida, IV title XXIII, law 2. The quotation appears in the English version of the code, Las Siete Partidas, tr. Samuel Parsons Scott (Chicago, 1931).

5 For examples of the rights of females and the constraints placed upon them, see Leyes de Toro, laws 5, 47–48, 50–62; Partidas, Partida, IV title I; title II, law 15; title III, law 5; title V, laws 1–4; titles XVII-XVIII; Fuero real (abbreviated FR), Book III, title I; title VII, law 3; title XX, laws 13–14. A woman who had consented to a solemn betrothal could be held to her promise to wed. Slave marriages might in some cases be ruled invalid, but preventing slave women from marrying was illegal.

6 FJ, Book IV, title II, laws 1, 9; title V, law 1. This seventh-century code is basically Germanic, but the Visigoths responsible for it were highly Romanized. An English version is entitled The Visigoihic Code (Forum Judicum), tr. Samuel Parsons Scott (Boston, 1910); dual citations are used hereafter when law numbers vary.

7 FJ, Book IV, title II, laws 1, 9; title V, law 1; Toro, laws 9–10, 12, 16–30; FR, Book III, title V, law 9. Leyes del Estilo, law 214, tried to establish that the quinto be deducted before the tercio, but confusion still reigned about which would be subtracted first.

8 FJ, Book IV, title II, law 2; title V, law 1; FR, Book III, title VI, law 7; Toro, laws 8, 17–29; Minguijón Adrián, I, 163. The right of representation meant that descendents of an heir would divide that heir's share of an estate.

9 The composition of the conjugal and individual estates is explained in FJ, Book IV, title II, law 17 (law 16 in Visigothic Code); FR, Book III, title III, laws 1–3; Toro, laws 14–29, 51, 54, 60.

10 For legislation defining dowries and marriage gifts from parents as anticipated inheritances and treating estate division, see FJ, Book IV, title II, law 17 (16 in Visigothic Code); title V, law 3; FR, Book III, title VI, law 14; Partidas, Partida VI, title XV, especially law 3; Toro, laws 17, 22–23, 25–27, 29. Molina, Sancho Llamas y, Comentario crítico, jurídico, literal, las ochenta y tres leyes de Toro, 3rd ed., ed. Caravantes, José Vicente y, 2 vols. (Madrid, 1853), I, 521–560,Google Scholar interprets law 29 of Toro and summarizes opposing views.

11 FJ, Book VI, title II, laws 2, 6, 11, 18, 21 (17, 20 in Visigothic Code); FR, Book III, title VI, law 17; Toro, laws 6, 9–13.

12 FR, Book III, title V, law 6; Toro, laws 31–39. A Chilean example is Power of Attorney of Inés Lisperguer y Andia, Santiago, June 14, 1719, in Mackenna, Benjamín Vicuña, Los Lisperguer y la Quintrala (Doña Catalina de los Ríos), ed. Eyzaguirre, Jaime (Santiago, 1944), 286–291.Google Scholar

13 Partidas, Partida III, title XVIII, law 86; Partida IV, title XI; FJ, Book IV, title V, law 3; FR, Book III, title VI, law 14; Toro, laws 17, 22–23, 25–26, 29, 53.

14 Partidas, Partida IV, title XI, laws 1, 7. The Spanish text of law 1 states that the wise ancients spoke of the dowry as the wife’s “proprio patrimonio.”

15 Ibid., law 17.

16 Ibid., laws 1, 7; Partida III, title XVIII, law 87; FJ, Book III, title I, laws 3, 5–7, 10 (1,4, 6–7, 10 of Visigothic Code); Toro, laws 50–52; Ots Capdequí, 55–56; Minguijón Adrián, I, 127–130.

17 Partidas, Partida IV, title XI, law 7.

18 Ibid., laws 7, 25, 29.

19 Ibid., Partida III, title XVIII, law 86; Partida IV, title XI, laws 7, 17–22, 25–26, 30–32; Partida V, title XIII, law 33; Ots Capdequi, 54–55; Minguijón Adrián, I, 134.

20 The basic requirements for any legal transaction included the free consent of the parties and, in the case of a married woman, permission from her husband or a judge to take the step, see Toro, laws 53–62; FR, Book III, title XX, law 13; Partidas, Partida III, title XVIII, law 58. Partida IV, title XI, law 7, says the dowry could be alienated only if it had been appraised.

21 For samples of these standardized forms, see ibid., Partida III, title XVIII, especially laws 58 (wife consents to a sale by her husband), 84 (father gives his daughter in marriage and promises a dowry), 85 (marriage contract between husband and wife), 86 (bridal dowry), 87 (husband’s marriage gift to wife), 100 (posthumous inventory), 103 (last will and testament), and 104 (codicil).

22 Examples are FJ, Book HI, title I, law 10; Partidas, Partida IV, title XI, laws 7, 18.

23 FJ, Book III, title I, law 10; Partidas, Partida III, title XVIII, laws 84–87.

24 Dowry Receipt, Santiago, July 17, 1781, Chile, Archivo Nacional, Archivo de los Escribanos de Santiago, vol. 898, fs 174–176, (hereafter cited as ES). Further information on the dowries for the condes’ four daughters and the Toro Zambrano and Valdés Carrera families can be found in Jaime Eyzaguirre, El conde de la Conquista, Colección de estudios jurídicos y sociales, no. 14 (Santiago, 1951), Solar, Domingo Amunátegui, La sociedad chilena del siglo XVIII: mayorazgos y títulos de Castilla, 3 vols. (Santiago, 1901–1904), II, 187–238, III, 1–87Google Scholar, and Barbier, Jacques A., “Elite and Cadres in Bourbon Chile,” HAHR, 52 (Aug. 1972), 425–426 and note 22.Google Scholar

25 See, for example, Last Will and Testament of don Manuel Calvo de Encalada y Chacón, Santiago, Sept. 16, 1795, in Amunátegui Solar, III, 403.

26 ES, vol. 898, fs 174–176. The document includes the standard legal formula whereby a husband authorized his wife to take a legal step.

27 “Cuenta de particiones del caudal que dejó a sus hijos y herederos Da Ana Josefa Ramírez de Salas,” Santiago, June 10, 1774, ES, vol. 790, f 323–323v; the folio number is handwritten.

28 Espejo, Juan Luis, Nobiliario de la capitanía general de Chile, 2nd ed. (Santiago, 1967), 498–500, 645–646, 713–715, 797–798,Google Scholar Lowenthal Felstiner, Mary Alexandra, “The Larraín Family in the Independence of Chile, 1780–1830,” (Ph.D. dissertation, Stanford, 1970), 12, 39–40.Google Scholar Ana Josefa Ramírez de Salas was the daughter of the peninsular Luis Ramírez de Salas and the creole María Pavón.

29 ES, vol. 790, f 323–323V.

30 María Josefa and her husband would evidently forego the ½ real in the interest of simplifying the arithmetic.

31 Lavrin, Asunción, “In Search of the Colonial Woman in Mexico: The Seventeenth and Eighteenth Centuries,” in Latin American Women, ed. Lavrin, 38–40,Google Scholar examines the notion of the protection due women in Spanish America.

32 Espejo, 645, indicates that the historian wrote still another will or codicil on Oct. 31, 1814, and died in Santiago, Nov. 19, 1814. The published testamentary dispositions, all composed in Santiago, are appended to José Pérez García, Historia de Chile, 2 vols. (XXII-XXIII) in Colección de historiadores de Chile y documentos relativos a la historia nacional, ed. José Toribio Medina et al., 51 vols. (Santiago, 1861–1953), II, 473–491.

33 Ibid., Wills of José Pérez García, April 12, 1793, 473–477; Jan. 8, 1801, 478–483; July 28, 1807, 484–490.

34 Ibid., there are minor mathematical discrepancies in the testator’s declarations on his wife’s estate.

35 Ibid.

36 Ibid., and Codicil of José Pérez García, May 21, 1810, 491. Ana Josefa Pérez García de Salas was to be the executor and tenedora de bienes, while Vicente Larraín, a cathedral canon, would act as albacea consultor. Espejo, 498–500, 645–646, 713–715, lists the genealogical data. Vicente Larraín Salas figures in Felstiner, “Larraín Family,” passim, and her “Kinship Politics in the Chilean Independence Movement,” HAHR, 56 (Feb., 1976), 58–80.

37 Wills in Pérez García, II, 480–481, 486–487.

38 Ibid., 481, 487–488.

39 Ibid., 473–476, 478–482, 484–489. The testator did not explain the apparent conflict between the proviso for his wife and the clause allowing Ana Josefa to purchase the family home. The sums to be deducted from the fifth as the mandatory bequests (mandas forzosas) for the redemption of Christian captives, the holy places in Jerusalem, and the Hospital of San Juan de Dios (presumably the municipal hospital of the same name), would amount to 13 reales each. Another chaplaincy Pérez García established with funds from his brother did not count in assessing the fifth of his own estate, see ibid., 475–476, 480, 486.

40 Ibid., 490.

41 Will and codicil, in ibid., 487, 491. José Pérez García had rented his estancia of San Nicolás de Tango to his son the licentiate Santiago Antonio on March 15, 1804; in 1810 a new rental contract with that son and men from the Errázuriz family had been drawn up. Three sons, Francisco Antonio, Santiago Antonio, and José Joaquín, had married when their father wrote the will of 1807 and declared that none of them had as yet received anything on account of their legítimas. Such a statement by a parent was a reminder that educational expenses and other support should not be charged against an heir’s inheritance.

42 Colonists who strayed from the legal norms invited familial quarrels. The incidence of litigation arising from dowry and inheritance disputes will, no doubt, prove a fruitful field of future investigation.