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CHILDREN OF FATE
Childhood, Class, and the State in Chile, 1850-1930
By Nara B. Milanich Duke University Press
Copyright © 2009 Duke University Press
All right reserved. ISBN: 978-0-8223-4574-9
Chapter One
The Civil Code and the Liberalization of Kinship
The Cook, the Seamstress, and the Baby
For one witness, the proof of paternity lay in the booties. Alejandro D'Huique had given the wet nurse eight reales to buy them for the baby Clarisa del Carmen. Now Clarisa's paternity was in dispute in a Santiago court. In her petition for economic support from D'Huique, Clarisa's mother, Mercedes Campos, provided details of a romance gone sour. The couple had met four years before, in 1847, in the household where they both worked, she as a seamstress and he as a chef. Campos, according to witnesses, was poor but from "a very decent and honorable family." But as her lawyer explained, "as a result of a misfortune of which no woman is free," his client had "ceded to the seductions of Don Alejandro," who turned out to be married in his native France. Witnesses were summoned in support of her claim. A midwife declared that D'Huique had paid her for assisting in Clarisa's birth. The wet nurse recounted how in regular visits the alleged father was affectionate with the baby and gave money for her care, once arranging a meeting in the Plaza de Armas to do so. And, of course, there were the booties.
As for Don Alejandro himself, he vociferously denied the allegation. If he had given Campos money, it was as "alms" because she was sick. Noting that she had placed her baby for a time in the city's orphanage, he questioned whether her suit was motivated by maternal sentiment or crass "speculation." Finally, calling attention to the fact that his legitimate wife and children had recently arrived from France, D'Huique argued that adulterous offspring had no right to parental support anyway.
Paternity suits like this one were routine in midcentury Chilean courts, and contemporaries would have been familiar with several recent high-profile suits. The year before, a suit filed against the estate of a wealthy English merchant had featured the testimony of Manuel Montt, who had since become president of the republic. And a few years prior, Santiago had been scandalized when a congressman was murdered by the father of a young woman with whom he was having an affair. His death sparked a spate of paternity suits filed by various children he had fathered with different women. Of course D'Huique did not approach the stature of these men, though in later years he would become a well-known chef and restaurauteur at the Hotel Santiago, where men of their rank would dine on his famed pudding Nesselrode.
All of these suits occurred on the cusp of a major legal shift that would dramatically remake kinship in republican Chile. For almost a half-century after independence, medieval Iberian and colonial Spanish legal codes continued to govern civil (and criminal) law, including that pertaining to family and succession. The Chilean Civil Code, promulgated in 1855 and effective from 1857, would sweep away this older legal structure. It reflected the broad trend of codification, a process taking place across nineteenth-century Europe and Latin America that aimed to systematize and rationalize law as a basis for new and consolidating nation-states.
The Chilean Code's impact on cases like that between Campos and D'Huique was particularly direct: it outlawed them. In abolishing paternity suits, the Code revolutionized the gender, generational, and class dynamics of filiation. This chapter charts this transformation by mapping first the older law and legal culture of the 1840s and early 1850s and then the reforms introduced by the Code. Because many of the changes enacted in Chile had been or soon would be implemented across continental Europe and Latin America, this is not a specifically Chilean story. It is a case study of a transformation of family law that occurred on both sides of the Atlantic.
The Chilean Code consisted of over 2,500 articles governing the status of individuals in the family and nation, the dominion and transfer of property, succession, and contracts. It was, and still is, considered a legal tour-de-force, the most influential exemplar of codification in Latin America, and a culminating opus in the prolific career of André Bello, one of nineteenth-century South America's most famous men of letters. A jurist, statesman, philosopher, and humanist, Bello was a native of Venezuela and a naturalized Chilean who spent more than a decade crafting the Code. He drew inspiration from contemporary French, Spanish, and English sources, but his was a unique creation based, in his words, on "our country's peculiar circumstances." The product of a transnational legal milieu, Bello's opus was also an internationally influential document in its own right. The Chilean Civil Code was adopted wholesale by a number of Latin American nations (including Colombia, Ecuador, El Salvador, Honduras, Nicaragua, and Venezuela) and would serve as a model for codes in other countries (Costa Rica, Guatemala, Mexico, Paraguay, Uruguay), leading one jurist to assert that its influence in the Americas was comparable to that of the Napoleonic Code in Europe. The Chilean Code is thus of comparative significance not only as an iteration of broad trends in civil law but for its direct impact on legal structures governing gender and family across modern Latin America.
A central challenge for the architects of postcolonial Latin American societies was the establishment of viable nation-states and structures of political authority in the wake of the Spanish empire's collapse. These contested processes were much in evidence in Chile in the 1840s and 1850s, as the conflict between conservatives and liberals that framed Chilean politics in the nineteenth century reached fever pitch. In the very months the court was scrutinizing Clarisa del Carmen's paternity, the conservative president Manuel Montt was pursuing a repressive campaign against the Sociedad de Igualdad (Society for Equality). The society was an opposition group inspired by ideals of popular sovereignty and egalitarianism that united radical elites with like-minded plebeian elements. But if political conflict seemed far removed from this most intimate of disputes, it was not only because, as a woman and as a foreigner, Campos and D'Huique had no immediate stake in republican citizenship. It was also because, as Andrés Bello himself once observed,
It is necessary to recognize an important truth: ... Laws that empower [citizens] to take part in public affairs are infinitely less important than those that secure one's person and property. Nor could it be otherwise: the first are secondary conditions about which we care very little when the affairs that decide our well-being, the fate of our families, our honor and our life, occupy our attention ... Rare is the man ... [who] feels more wounded when he is arbitrarily deprived of, for example, the right of suffrage, than when he is violently dispossessed of his property.
The dispute over Clarisa del Carmen's paternity concerned the very issues Bello flagged: The fate of families, honor, and property. And so too would the Civil Code's reform of family law.
The Code provided the juridical basis for liberal economic relations and a structure of social authority rooted in the patriarchal family, and as this chapter will show, its treatment of filiation reflected both its liberalism and its patriarchalism. The legal regime it established drew on old Iberian elements but reconfigured them according to a new, liberal logic of contract, freedom, and privacy in which fathers could recognize or reject illegitimate children in accordance with their will. At stake was a shift from a paternalistic, colonial patriarchy to a modern, liberal one. This shift would have repercussions for both gender relations and child welfare, altering the balance of power between men and women and parents and children. Above all, as we will see, it occasioned a dramatic erosion of illegitimate individuals' legal and social rights.
The impact of the new legal regime was far-reaching because out-of-wedlock birth was endemic, and people of all social classes-from statesmen and merchants to cooks and seamstresses-were potentially affected. But legal regulations governing kinship affected not only family members. They affected the social and civil order in general. Drawing on a sample of 102 pre-Civil Code paternity suits, a second sample of 90 post-Code suits pursued retroactively, plus dozens of related judicial procedures, this chapter and the next explore how family law managed not just hierarchies of gender and generation but also social status and class formation. The chapter also traces how the Civil Code altered the Chilean state's relationship to families. The Code engendered the bureaucratization, secularization, and centralization of state authority over kinship. But the expansion of state power was crosscut by a countervailing impulse, for the Code deemed illicit sexuality and illegitimate kinship to be "private" arenas subject to the dictates of (male) freedom. Thus, neither an a priori impetus to greater state control nor an epiphenomenal "bourgeois moralizing project" adequately categorizes, much less explains, liberal law's posture vis-à-vis family and filiation.
Filiation before the Civil Code
Illegitimate individuals encountered social, civil, and legal discrimination in the colonial era, attitudes that undoubtedly endured into the republican period. A series of overlapping and sometimes contradictory Iberian codes promulgated over more than five centuries, including the Lei de Toro, the Siete Partidas, and the Novísima Recopilación, governed family and inheritance law. A defining feature of the Iberian codes was their discriminatory taxonomy of filiation types. Legitimate children of course enjoyed the greatest rights to support and inheritance. Illegitimates, meanwhile, had differing rights based on the marital status of their parents. The offspring of marriageable couples were natural children (hijos naturales) who enjoyed a status far superior to the offspring of "punishable and damaged unions" (de dañado y punible ayuntamiento), who included children of priests and those born of adulterous and incestuous unions (espúreos, adulterinos, incestuosos). Whereas natural children were entitled to inherit up to a fifth of a parent's estate, those of "damaged union" could not inherit at all. Meanwhile, the codes established different, sometimes contradictory, standards of proof of paternity, including cohabitation with a child's mother, her exclusive relationship with a man, as well as explicit paternal recognition.
It was the problem of paternity's proof that would attract the most attention of republican jurists and undergo the most thorough revision in the Civil Code. Yet pre-Code courts perceived no "problem" at all, reading kinship through a standard of proof based on prevailing cultural beliefs and practices. In essence, the courts assigned paternity if certain acts vis-à-vis a child or its mother created the supposition of filiation. This explains the court's interest in Clarisa del Carmen's booties. Alejandro D'Huique's financial responsibility for the baby's birth and upkeep, and his open affection toward her, were taken as signs of paternity. Sentimental and financial ties between women and men were also commonly interpreted to establish paternity of the woman's offspring.
Filiation suits were overwhelmingly filed by mothers or illegitimate children against fathers or their heirs. The predominance of paternity (as opposed to maternity) investigations reflects the fact that mothers took primary responsibility for rearing children, especially illegitimate ones, and that women were generally economically dependent on men and hence had greater need for support. As for the class background of litigants, while some alleged fathers were wealthy and prominent, many were of modest extraction. Alongside politicians, merchants, landowners, and mining magnates, a tailor, a tanner, a provincial scribe, a bakery employee, an orphaned student with a modest inheritance, several small property owners, and of course Alejandro D'Huique, the French chef, figure among pre-Code defendants. Mothers' class backgrounds, while harder to discern, were clearly more modest. They included domestic servants (who were often employed in the households of the alleged fathers) and a "tavern owner and singer" (chinganera y cantora de tablado). They also included women deemed poor but decente-seamstresses like Mercedes Campos, who carefully distinguished themselves from common maids, women who worked in others' households while simultaneously employing dependents (such as wet nurses) themselves. Sometimes these were women whose single motherhood had reduced them to penury but whose aspiration to marry the fathers of their children suggests a rough social parity with them.
Given the long legacy of discrimination against illegitimates, the degree of success that paternity suits enjoyed in pre-Code Chilean courts is quite remarkable. In a sample of 102 filiation cases, the court ruled in favor of the mother or children 53 percent of the time. In these cases, the illegitimate was legally declared the son or daughter of the defendant and usually granted support (alimentos) or some share of the inheritance. Meanwhile, in a third of cases, illegitimates lost. The remaining almost 14 percent of cases either ended in a settlement between the parties or have no recorded outcome (see table 5). Disaggregating these numbers by years reveals further patterns. Plaintiffs filing in the late 1830s and 1840s experienced startling legal success, winning more than three-quarters of their suits, but by the mid-1850s, when the Civil Code had been approved by Congress and its contents were widely known but not yet in effect, their prospects had experienced a total reversal. Now they lost more than three-quarters of suits (see table 6). The Civil Code, in other words, was less a catalyst than the culmination of a shifting legal landscape, one a decade or more in the making.
The numbers are certainly dramatic, but to appreciate the magnitude and the meanings of this shift, we must look more carefully at what exactly went on in pre-Code cases. For one thing, early filiation suits were notably economical and perfunctory, when not downright lacka daisical, compared to later ones. Plaintiffs rarely presented more than a handful of witnesses, whereas later in the century it was not unusual for dozens of witnesses to testify in a filiation dispute. Vague and abbreviated witness testimony sufficed to prove an illegitimate's claim, even in the face of defendants' explicit denial of paternity. Indeed, in stark contrast to later practice, when formal manifestations of a father's will would be held sacrosanct, the pre-Code courts treated paternal declarations as just one of many pieces of evidence in deciding paternity-and evinced few qualms about overriding them. The palpable shift in the tenor of paternity suits was the result not of codified reform-which after all only occurred with the Civil Code of 1857-so much as of a changing legal culture surrounding filiation.
(Continues...)
Excerpted from CHILDREN OF FATE by Nara B. Milanich Copyright © 2009 by Duke University Press. Excerpted by permission.
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