Liberalism and Married Women’s Property Rights in Nineteenth-Century Latin America

Abstract

By the beginning of the twentieth century, married women’s property rights in Latin America had evolved along two distinct paths. All South American countries still maintained their colonial marital regime, with either partial (Hispanic America) or full (Brazil) community property. In contrast, Mexico and the five Central American republics had established the separation of property marital regime—with each spouse owning and controlling his or her own property and its fruits—as either a formal option or as the default regime. Moreover, whereas South American countries maintained the colonial inheritance regime of restricted testamentary freedom with only a few important modifications, Mexico and Central America had adopted full testamentary freedom. The question thus arises: why did such divergent systems of family law emerge in Latin America?We investigate the impact of liberalism—the dominant intellectual current during this period—on married women’s property rights in nineteenth-century Latin America. Following independence, new constitutions throughout the region incorporated notions of individual freedom, guarantees to private property, and representative democracy.1 By the middle of the century, most countries boasted liberal and conservative parties. While the latter were generally associated with traditionalism or continuity with the colonial past, liberal parties tended to champion an agenda that included free trade, free land and labor markets, and a reduction in the economic and political power of the Catholic Church. To what extent did liberal notions of individual freedom and private property affect the family—and specifically, the property rights of married women? Furthermore, why did Mexico and Central America go much further than South America in reforming the inherited marital and inheritance regimes? Finally, did these liberal reforms contribute to gender-progressive change?Following Bina Agarwal, we define as gender progressive those laws, practices, and policies that reduce or eliminate the inequities (economic, social, or political) faced by women in relation to men.2 Silvia Arrom, in her pioneering feminist analysis of Mexican civil codes, argues that liberal reforms, by strengthening individual freedom, reduced patriarchal dominance within the family.3 While gender equality was not the goal, this expansion of individual freedom reduced the legal inequities between men and women. Elizabeth Dore, in contrast, takes issue with what she considers the generally positive, orthodox interpretation of the impact of liberalism on gender relations. Such evaluations, she argues, have largely been based on liberal policies that supported women’s formal education and entry into the labor force—what might be considered participation in the public domain. Looking instead at women’s property rights in Mexico and Central America, Dore contends that state policy in this period had more negative than positive consequences for gender equality and that the overall direction of change was regressive rather than progressive.4We investigate the impact of liberal reform on married women’s property rights in 14 Latin American countries.5 There has been little systematic analysis of the nineteenth-century civil codes or the laws concerning civil marriage and divorce, particularly in a comparative context.6 Comparative analysis has been constrained, in part, by the lack of a chronology of the promulgated codes and laws in the different countries. It is also difficult to access much of this legislation. Moreover, too often scholars assume that republican civil codes largely followed the Napoleonic code of 1804 with respect to the subordinated position of married women. Various authors argue that the strong influence of the French code caused the new republics to retain the concepts of potestad marital (the rights of the husband over the person and property of his wife) and patria potestad (paternal rights over the children) in their civil codes.7This emphasis, we believe, is misplaced. The Napoleonic code did have a tremendous influence on property law (and economic and commercial law in general). However, legislation concerning married women’s property rights largely reflects continuity with colonial Luso-Hispanic legal tradition rather than French influence. The Napoleonic code did set a precedent for Latin American codifiers in three important areas: instituting civil marriage and divorce, lowering the age of majority, and abolishing entails. Husbands’ legal control over their wives and wives’ property, however, largely continued in the colonial legal tradition.A close examination of the initial republican civil codes shows that their modest innovations in married women’s property rights had little to do with either the Napoleonic code or the evolution of family law in nineteenth-century Spain. Through their codification of family law, Latin American countries began to reveal their own unique legal personalities. This is surely due to the heterogeneous implementation of colonial family law in the far-flung reaches of the Spanish and Portuguese empires. It also undoubtedly reflects the differing debates over individualism and equality, the family, and the position of married women that developed in specific historical circumstances. Our examination of the early civil codes reveals concerted attempts to improve the position of married women, as well as an emerging tendency to favor the conjugal, rather than the patrilineal, family in inheritance.The most radical reforms in marital and inheritance law took place in Mexico and Central America after 1870. The precedents for these reforms are found not in Spain or France, but in England and the United States. While these reforms went furthest in stripping husbands of their control over their wives’ property, they were also the most ambiguous in terms of their potential outcome for married women. These very liberal codes also maintained crucial aspects of potestad marital, such as male household headship.Two caveats are in order. In a comparative analysis of this scope—covering 14 countries over the course of the nineteenth century in the context of legal change in France, Spain, England, and the United States—we cannot do justice to the national contexts of the Latin American reforms, nor can we adequately consider the aims and debates surrounding the enactment of these laws. Our analytical framework privileges the potential of these reforms to enhance the bargaining power and economic autonomy of married women, and it is in these terms that we evaluate gender-progressive legal change.8 The question of the impact of the liberal reforms on the position of married women in practice will have to await further research. We hope this essay will challenge historians to provide the missing historical documentation and interpretation.Most Latin American countries did not adopt their first republican civil codes until the second half of the nineteenth century—not from lack of effort but rather due to the political instability that marked the first 50 years after independence. Drafting commissions were appointed and disbanded with frequency.9 The first country to adopt its own civil code was Bolivia, in 1830.10 As table 1 shows, over the next two decades Bolivia was followed by Costa Rica, Peru, and Chile. The primary author of Chile’s 1855 code was legal scholar Andrés Bello, a Venezuelan who had been Simón Bolivar’s tutor and who was to have a profound influence on most nineteenth-century codes in Latin America. Bello resided in England between 1820 and 1829, pleading the cause of Latin American independence and serving in the legations of Colombia and Chile. He then took up residence in Chile, where he became a naturalized citizen and served in the senate, and also founded the University of Chile. He was well versed in the new European codes and British common law, as well as being an expert on Roman and medieval and colonial Spanish law.11Scholars generally agree that the Napoleonic code was only one of several that Bello took into account in drafting the Chilean code.12 According to M. C. Mirow, he tended to follow French law and its interpretations on economic and commercial matters, while on familial and social matters he was more conservatively inspired by the thirteenth-century Siete Partidas and Spanish colonial law.13 Mirow attributes the profound influence of Bello’s code to his masterful adaptation of these influences to the particular socioeconomic needs of Chile, balancing “liberal economic concerns and traditional social expectations.”14 Bello’s code was copied in large measure throughout the Andes (Ecuador, Ven-ezuela, Colombia) and Central America (El Salvador and Nicaragua); we refer to these six national codes as the Bello codes.15The Argentine civil code of 1869, drafted by Dalmacio Vélez Sársfield, was also influential. Like Bello, Sársfield consulted numerous Latin American and European models, including Chile, France, Teixeira de Freitas’s draft code for Brazil, and García Goyena’s 1851 draft of the Spanish civil code.16 Similarly, Justo Sierra—appointed by president Benito Juárez in 1857 to draft Mexico’s civil code—consulted a broad array of modern and traditional codes, including Bello’s and the draft Spanish civil code. Sierra’s draft, completed in 1861, was subsequently revised by a special commission that continued to work during the French Intervention. Emperor Maximilian decreed this draft of the first two volumes as Mexico’s first civil code in 1866. This short-lived code, however, was abrogated when Maximilian was executed and another drafting commission appointed. The code for the Federal District and territories (which became the model for most states) promulgated in 1870 is considered to conform, in most important respects, to Sierra’s initial draft.17By the time Honduras and Guatemala enacted, during the period of their respective liberal revolutions, their own civil codes in the final quarter of the century, other Central American countries and Mexico were redrafting their earlier codes in more liberal directions that we will discuss in the last section of this article. Brazil is the only country governed for the better part of the nineteenth century by colonial civil legislation. This owes partly to its monarchical government from independence in 1822 to 1889. After four unsuccessful attempts to draw up a new civil code between 1859 and 1899, the final version was completed in 1900 but not approved until 1916.18 Thus, the limited comparisons to Brazil in this essay refer primarily to Portuguese colonial law. In the years between independence and the promulgation of new codes, most countries decreed the colonial codes (civil, commercial, and penal) to be in force.19 Personal or family law was sometimes modified by specific legislation, such as the laws effecting civil matrimony and divorce or changing the age of majority.The great drama that played out in just about every Latin American country during the nineteenth century was the struggle between the Catholic Church and the emerging liberal state. At issue was the economic and political power of the church in the new republics. One of the main points of contention was the issue of civil matrimony and divorce.20 While the church viewed marriage as a holy sacrament, liberals viewed it as a contract to be regulated by the state.In colonial Latin America, the Catholic Church, as the official state church, determined most of the rules governing marriage and divorce. It regulated the conditions (such as the age of consent and other impediments to marriage), the ceremony, and the registration of marriage. It also determined the conditions for annulment or a temporary or permanent separation (known as a mensa et thoro, from bed and board without the possibility of remarriage—what we will term ecclesiastic divorce) and mediated conflicts over these matters. Since marriage was a sacrament, a couple was joined together for life. The church insisted that marriage be based on voluntary choice—the exercise of free will.The civil implications of matrimony, however, were the province of the colonial state. Once marriage had been consecrated by the church or a separation decreed, the state determined the property arrangements of the sociedad conjugal (the marital society) and regulated its dissolution. The state also defined the rights and responsibilities of parents (and in their absence, of guardians) over children. In addition, it determined the age of majority (25 years of age), the age at which individuals attained civil capacity, and the process through which children could be emancipated. Children of both sexes were subject to paternal authority (patria potestad) until their father’s death, their marriage, or until they were officially emancipated by their father or court order.21France, in its 1791 constitution and 1804 civil code, was the first Catholic nation to make civil marriage obligatory and to allow for civil divorce (a vinculo matrimonii—from the bonds of matrimony) with the possibility of remarriage. Although civil divorce was subsequently abrogated with the restoration of the monarchy in 1816, the French experiment with civil divorce—which included not only the dissolution of marriage due to marital fault but also by mutual consent—set the agenda for liberal reformers in both Europe and the Americas.22 The Napoleonic code also set the standard for the age of majority, which, in a nod to individual freedom, was lowered to 21 for all acts of civil life save marriage. The age of consent for marriage without parental approval was lowered to 21 for women but remained 25 for men—perhaps because of the importance of the patrilineal line in the transmission of property. Moreover, against explicit Catholic Church canon, the minimum age for marriage was raised from 12 to 15 for women and 18 for men.23All of the initial republican civil codes in Latin America recognized the Catholic Church as the official church and, except for matters concerning property, largely left marriage and separation in its hands.24 The contentious nature of civil marriage and divorce in the nineteenth century is suggested by the chronology in table 2. Civil marriage and divorce were adopted piecemeal across the region and well into the twentieth century; this issue, more than any other, came to signify the separation of church and state.25 The first two Hispanic countries to sanction civil matrimony and divorce—Guatemala and Colombia—subsequently rescinded the legislation.26 Guatemala passed legislation on these issues in 1837, during the period that it was a state under the Central American Federation. Crafted under the leadership of liberal Mariano Gálvez and popularly known as the “Ley del Perro,” it was supposedly among the reasons he was deposed in 1838.27 Four decades passed before civil marriage was again reconsidered. During the height of its liberal revolution, civil matrimony was adopted one step at a time—first for those of different creeds, then as an option for all, before finally being made obligatory in 1879.28Colombia passed laws allowing for civil marriage and divorce during the liberal hegemony of the mid-1850s. The church and the Conservative Party opposed civil divorce so strongly that this portion of the decree was rescinded three years later. In the ensuing period of decentralized governance, some of Colombia’s more liberal states maintained the option of civil divorce. Subsequently, during the period known as the Regeneración (1880s–1894), the church and its allies prevailed in restricting civil matrimony to non-Catholics. The power of the Catholic Church blocked the issue of optional civil matrimony and divorce for a century in this country.29Two groupings emerge in table 2: those countries that adopted civil matrimony in a piecemeal fashion (Guatemala, Colombia, Venezuela, Argentina, Cuba, Honduras, and Peru); and those where it was made obligatory for all and remained so (Mexico, El Salvador, Chile, Uruguay, Costa Rica, Brazil, Nicara-gua, and finally Ecuador and Bolivia in the twentieth century). Mexico was the first country whose original law on civil matrimony—passed during the height of the liberal reform period—prevailed, perhaps because it did not seriously consider the issue of civil divorce at that time. The provisions for separation of unions in the 1859 Law on Civil Matrimony followed the colonial rules as established by the Catholic Church.30All told, there were at least three unsuccessful attempts (by Guatemala, Colombia, and El Salvador) to introduce civil marriage and divorce simultaneously. Costa Rica was the first country, in 1887, to succeed—indicative of continuing church power in most countries and its vehement opposition to such measures. Costa Rica promulgated both measures in a period when the church was in disarray, partly as a result of persecution by liberals.31 It is worth emphasizing that, as a result of their liberal revolutions, all of the Central American states adopted civil divorce by the end of the nineteenth century. In contrast, civil divorce was not instituted in South America until the first decade of the twentieth century, and then only by Ecuador, Venezuela, and Uruguay.Feminist scholars have argued that in this century-long struggle over civil matrimony and divorce, its liberal protagonists and conservative opponents shared similar ideals of family dynamics, matrimony, and gender roles.32 They agreed that marriage must be based on mutual consent and that its objective was fidelity, procreation, and mutual assistance. Both considered the monogamous, nuclear family based on harmonious relations a necessary institution for social stability, peace, and progress. In the nineteenth century, neither liberals nor conservatives broke with the colonial view of society as a set of hierarchical relations based on patriarchy. In Arrom’s words, the family was “the basic social unit on which the entire structure rested, with men governing wives and children just as they were in turn governed by the state.”33 Neither side questioned traditional gender roles. Moreover, by the last quarter of the nineteenth century, both liberals and the Catholic Church generally agreed that the ideal marriage was based on love and companionship. Both exalted women’s roles as wives and mothers.34The point of contention concerned who retained the authority to regulate this unitary family: the church, with its sacramental view of marriage, or the state, following the liberal tenet that matrimony should be solely a civil contract?35 While for centuries the church had recognized some of the contractual aspects of marriage (such as property rights), it nevertheless opposed civil matrimony so vehemently in Latin America in this period because it feared that its recognition would inevitably lead to civil divorce. It thus equated civil matrimony with concubinage and predicted that it would lead to the breakup of the family, the diminution of paternal power, and the abandonment of children.36 Liberal reformers, on the other hand, in countries such as Venezuela, argued that civil marriage and divorce were necessary to combat the high degree of concubinage and that such measures would make marriage more attractive.37Liberals and the church had very different views of the expected outcome of divorce. Liberals contended that it would improve family harmony by allowing the dissolution of marriages marred by irretrievable conflict; remarriage would give these individuals a new opportunity to find marital bliss.38 Moreover, the possibility of civil divorce would not only make marriage more attractive but also contribute to social stability. One of the strongest arguments offered by the Catholic Church against civil divorce was that it would harm and degrade women by taking away the protection and security of indissolvable marriage.39Missing in the great debates over civil marriage and divorce was any acknowledgement of what civil divorce might mean for women’s bargaining power within the family. From a feminist perspective, divorce increases women’s bargaining power by giving them the option to leave an oppressive marriage. Of course, whether “exit” is a real option depends on a woman’s fallback position—her ability to survive economically outside the marriage.40 Women’s property ownership, employment prospects, and familial and community support networks all affect the viability of this option. As we show in the next section, the default marital regime in colonial Latin America provided women with a fairly strong fallback position. Perhaps as Christine Hünefeldt argues for urban Peru, “there was nothing husbands feared more than divorce . . . divorce not only meant losing authority over the family, but it also meant losing assets and income.”41One of the ironies about “the great debate” is that although the issue of divorce had a lot to do with the position of women within the family and their presumed needs and aspirations, women’s role in this debate has largely been invisible.42 What few references we have found to women’s views on the matter suggest that they generally opposed civil matrimony and divorce, perhaps due to their greater personal involvement with the Catholic faith and hence support for the church position. Nevertheless, their public role in the debate appears to have been limited. For example, as civil matrimony was under intense debate in Peru during the liberal period of the late 1840s and 1850s, the Catholic bishops organized a major campaign against the constitutional convention of 1855, and “during the sessions, several upper-class women went to the congress building and interrupted speeches by the Liberals.”43 It is likely that women’s participation in the debate over civil marriage and divorce in most countries took place through their moral influence and pressures in the domestic realm.44In evaluating the role of women in this debate, we must recall that in countries such as Mexico, Guatemala, Costa Rica, Colombia, and Peru, it was overwhelmingly women who filed for ecclesiastic divorce during the late colonial period and first half of the nineteenth century.45 Ecclesiastical divorce was a difficult, costly, and even shameful process, and the number of cases was quite small in each country.46 Thus, while the frequency of such proceedings is probably not a good indicator of the demand for civil matrimony and divorce among women, it does suggest that women, more than men, needed a means to end intolerable marriages, as well as a means to recover control over their property.47Where civil divorce was successfully adopted in the nineteenth century, it was usually allowed on the grounds of spousal fault—generally the same faults that permitted ecclesiastic divorce (adultery, bigamy, extreme cruelty, and abandonment). Divorce by mutual consent was usually the last step in a process (see table 2). But the trend of the last half of the century was to expand the reasons for separation of unions, thereby augmenting personal freedom. For example, the Mexican civil code of 1870 introduced mutual consent as a valid reason for separation after two years of marriage, as did Costa Rica’s 1887 code.48 Arrom considers the change from misbehavior to incompatibility a major break with tradition, and one that reflects the growing support for companionate marriage and expanded personal freedom.49The main change that took place in a number of countries’ initial civil codes concerned the age of majority or the age at which individuals could marry without parental permission. Distancing themselves from the Bourbon reforms that had strengthened parental prerogatives, and firmly following liberal tenets, many countries lowered this threshold from 25 to 21 (see table 3). In contrast to the Napoleonic code, many countries (Brazil, Peru, Ecuador, Mexico, Gua-temala, and Honduras) placed the age of majority on par with the age at which marriage could take place without parental permission. None copied the French code exactly, although the Bolivian code of 1830 was most similar.50 Few followed the French in challenging the church’s prerogative to determine the minimum age required for marriage.51Overall, the age of majority was lowered before the issue of civil matrimony and divorce was fully resolved. In most countries, this meant that at 21 individuals could now inherit and manage property, as well as their own incomes, and marry without parental consent. Single women at this age had most of the same civil rights as men, with the notable exception of political rights, since all countries prevented women from voting or standing for elected office.52 The main gender difference was linked to a woman’s marital status: married women were treated legally as relatively incompetent, as we will see in the next section. The lower age of majority potentially increased the bargaining power of children over parents with respect to marital choice and made it easier to marry following the dictates of romantic love. This was coupled with control over inheritances (such as from grandparents or other relatives) at an earlier age and the ability (particularly of young men) to retain their own earnings. But parents still had substantial control over the marriage possibilities of young women through their control over dowries and the changes that would take place in inheritance over the course of the century. Overall, however, we concur with Arrom that lowering the age of majority—the most consistent nineteenth-century liberal reform with respect to family law—augmented individual freedom and weakened patriarchal authority.53In the colonial period, married women’s property rights were constrained by three components: male legal household headship, the marital regime, and the rules of inheritance. We will first describe the colonial norm and then analyze continuities and changes in the initial republican codes up through the 1870s.54In contrast to the Portuguese civil code, which designated the husband as the legal head (cabeça do casal), no explicit reference is made in Hispanic colonial family legislation to the husband as household head.55 Three interrelated aspects, however, defined the husband as the head of household and the sole legal representative of the family: he administered both the couple’s community property and his wife’s property; he had paternal authority over the children; and his wife enjoyed limited juridical capacity. In this section we focus on the relative legal incapacity of married women.The sixteenth-century Leyes de Toro spelled out what wives could and could not do during marriage. The most significant limitation was that they could not enter into contracts or initiate lawsuits without their husband’s permission. But a husband could give his wife general or specific permission to enter into contracts, as could a judge in his absence, and either could ratify contracts she had made after the fact.56 This is why married women were only relatively incapable. Moreover, married women could carry out certain acts without their husbands’ permission. For example, a wife could initiate a lawsuit against her husband for poor or fraudulent administration of her dowry or to initiate an ecclesiastical divorce. And while a wife could not accept or refuse an inheritance without her husband’s permission, she could do so if the precise content and value of the inheritance was specified in the inventory. Finally, a wife could write her own will without her husband’s permission.57The Hispanic colonial principles regarding wives’ limited legal capacity were reiterated in all of the initial republican civil codes.58 Married women were subject to potestad marital, defined by Andrés Bello in the 1855 Chilean code as “the sum of rights that the law gives to the husband over the person and property of his wife,” wording reproduced verbatim in the codes of El Salvador, Ecuador, Nicaragua, and Colombia.59 As noted earlier, the Napoleonic code, and even Napoleon himself, are often blamed for the continuance of potestad marital in the Latin American civil codes.60 But all of the key elements were already part of the Luso-Hispanic colonial legal tradition, which, of course, shared common roots with the French tradition in Roman law.The Napoleonic code merely added a few new turns of phrase that captured the essence of the unequal relationship between man and wife. According to Article 213 of the French code, “The husband owes protection to his wife, the wife obedience to her husband.” This article was copied word for word in most of the Latin American codes, including the initial civil codes of Bolivia, Costa Rica, and Peru.61 Legal scholars subsequently considered this article as the basis of potestad marital, for it recognized the husband as the “natural head of the family” and established what was “indispensable to maintain the juridical and economic unity of the family.”62The Napoleonic code also specified two things that had remained only implicit in Spanish colonial family legislation: the husband’s right to determine the couple’s residency and his obligation to provide for the sustenance of the family.63 Article 131 of the 1830 Bolivian code followed article 214 of the French code almost word for word: “The wife is obliged to live with her husband and to follow him to wherever he considers it convenient to reside. The husband is obliged to receive her in his home and to furnish everything necessary for the wants of life, according to his means and station.”64The Bello codes followed similar language but made the sustenance of the family a reciprocal obligation of husband and wife under certain conditions: “The husband should provide his wife with the necessities according to his means, and the wife will have a similar obligation to he