Empires of the Atlantic World: Britain and Spain in America 1492-1830 (36 page)

The mayorazgo duly crossed the Atlantic to Spanish America, as Adam Smith noted with disapproval. `In the Spanish and Portugueze colonies,' he wrote, `what is called the right of Majorazzo takes place in the succession of all those great estates to which any title of honour is annexed.' He admitted that outside Pennsylvania and New England, `the right of primogeniture takes place, as in the law of England. But in all the English colonies the tenure of the lands, which are all held by free socage, facilitates alienation, and the grantee of any extensive tract of land, generally finds it for his interest to alienate, as fast as he can, the greater part of it, reserving only a small quit-rent.' To Smith, the conclusions were obvious. A lively land market reduced the price of land and encouraged its cultivation. `The labour of the English colonies, therefore, being more employed in the improvement and cultivation of land, is likely to afford a greater and more valuable produce' than that of Iberian and French America, `which, by the engrossing of land, is more or less diverted to other employments'.35

Smith's information, however, was not entirely accurate, and his contrasts were too starkly drawn. While the church and the religious orders had extensive holdings of land in mortmain, thus restricting the unfettered circulation of landed property, entails developed relatively slowly in Spanish America. Some fifty entails had been established in the viceroyalty of New Spain by the 1620s,36 and although with the passage of time the mayorazgo became more frequent among wealthy families, it never acquired the prominence it enjoyed among the upper and middle ranks of society in the Iberian peninsula itself. By the end of the colonial period something of the order of a thousand entails had been founded in New Spain, most of them fairly modest in scale. They seem to have been more prevalent here than in other parts of Spanish America, but in the important agricultural district of Leon in northern Mexico, for instance, there is no record of any estate being entailed, and under the system of partible inheritance estates changed hands by sale in almost every generation.37

In its desire to prevent the growth of an American aristocracy, the Spanish crown seems to have been careful not to concede too many licences to found may- orazgos. The inheritance laws, however, offered an alternative device which gave some of the advantages of an entail without the trouble and costs. This was the mejora, by which a parent could favour a particular child by increasing his or her share of the inheritance. The device was much favoured by the merchant elite of seventeenth-century Mexico, enabling them to ensure the perpetuation of the linaje - the lineage - by arranging for a substantial proportion of the family assets to pass intact from one generation to the next.38

Both the mejora and the entail were at least nominally gender-blind in the Hispanic world. In a society where the mother's surname as well as the father's was transmitted to the children, and might indeed be taken in preference to it, the transfer of property through a daughter was perfectly acceptable. While parents in British America no doubt did their best to ensure that their daughters were well settled,39 the fact that the family name was transmitted in British society through the male bloodline naturally tended to favour male heirs. Although rigorous primogeniture appears never to have been particularly popular in British America, the custom of primogeniture and entail seems to have grown stronger in the Chesapeake colonies over time, and was the rule in all cases of intestacy. In Virginia, in particular, the great landed families of the eighteenth century, keen to take the English aristocracy as their model, tied up their estates with entails on a positively English scale, with the result that three-quarters of the land in the Tidewater counties was entailed by the time of the Revolution.40 Here at least the contrast with the Spanish colonial world was nothing like as sharp as Adam Smith suggested.

The relative abundance of land in the British mainland colonies meant that it was often possible for a father to leave the bulk of his property to one son, in the knowledge that enough remained for his siblings to gain a livelihood.41 Yet if American space and American resources offered wider individual opportunities to those who in Europe would normally have found themselves cramped by the operation of inheritance laws, the lineal family, transmitting its name and property from one generation to the next, was central to the social and economic life of British America, as it was to that of Hispanic America.

Within the family, paternal authority was nominally supreme, although in practice many households were headed by widows, who became responsible on their husband's death for supervision of the estate and the transmission of the family property. Early remarriage, which was to be expected where substantial property was involved or where women were in short supply, was liable to limit the period when women held the family assets in their hands. There were also variations in law and practice between the different colonial societies which could have significant consequences for the degree of control enjoyed by women. In general, it would seem that this was greater in the seventeenth-century Chesapeake than it was in New England'42 and greater still in Spanish America because of the distinctive legal identity and extensive property rights accorded women under Spanish inheritance laws. Spanish colonial widows could manage their husband's estates without first having to secure permission from the authorities, as was required in British America. They could also control the distribution of resources among the children, and could exercise the patria potestas, in the form of legal guardianship, over children who, under Spanish law, remained minors until the age of twenty-five .41 Consequently, the wealthy widow was, and remained, an exceptionally powerful figure in the Hispanic colonial world. In Peru, whose richest woman in the immediate post-conquest period, Dona Maria Escobar, held three encomiendas, women still held sixty encomiendas as late as 1583.44

With women sometimes wielding power, if only on a temporary basis, the colonial family, like the European, was not invariably patriarchal, although settlers looked askance at the matrilineal organization of some of the Indian societies which they saw around them.45 Parental authority in one form or another, however, was paramount. Yet this authority had its limits where the choice of marriage partners for children was concerned. Whereas the Protestant churches for the most part sought to reinforce the authority of parents, the Church of Rome, after much discussion at the Council of Trent, came down against mandatory parental consent, thus leaving the ultimate choice of partner to the children themselves. While many Catholic societies chose to defy or ignore this Tridentine legislation, it was strongly endorsed by the majority of theologians and moralists in Spain, where it accorded both with prevailing practice and with cultural values that traditionally insisted on the priority of individual consent.46

The Anglican church distanced itself from the approach taken by the Protestant churches on the continent, and, like the church in Spain, gave priority to the wishes of the children over those of their parents.47 It struggled, however, although with only very limited success, to persuade couples to solemnize their unions in a church ceremony. The widespread popular willingness to accept as binding the informal arrangements that surrounded so many of these unions made it difficult for parents to assert their authority. The colonial settlements of English America, anxious to maintain social cohesion, sought to tighten up on the practice that prevailed in the home country, but they did so in ways that reflected the differing social structures of the settlements themselves. Where New England legislation was particularly concerned to insist on the need for the prior consent of parents to the marriage of their children, legislators in the Chesapeake colonies were more interested in securing the rights of masters to approve or veto the marriage of indentured servants in their charge. A combination of legislation and insistence on marriage in church would, it was hoped, bring the problem of `secret marriages' between servants under contro1.41

The lack of success of these efforts at control is suggested by illegitimacy rates in the Chesapeake that were perhaps two or three times as high as the rates in England.49 In Puritan New England, on the other hand, the prevailing religious and moral values, combined with close community control, made the rates of illegitimacy and pre-nuptial pregnancy low both by English standards and by those of the other colonies.50 In the Hispanic world - both in the peninsula itself and in the colonies - illegitimacy rates were exceptionally high by European standards, with illegitimate births to Spanish women in one parish of Mexico City between 1640 and 1700 fluctuating at around 33 per cent.51

The explanation of such high illegitimacy rates in a Hispanic society which placed a special premium on sexual virtue in women still has to be found. Some of it must lie in the freedom given to children to choose their own partners, as also in the high value placed by society on verbal promises of marriage - the so-called palabras de consentimiento. Some of the taint of dishonour was removed if an unmarried woman gave birth after receiving such a promise; and under Spanish law the eventual marriage of the partners, so long as they were single, automatically legitimized any children born out of wedlock.52 Since the honour code which infused Hispanic society was effectively designed to preserve the appearance of sexual virtue even after virtue itself had been lost, the unmarried woman who lost her virginity might well escape social censure, since friends and relatives would join in a conspiracy of silence. The church, for its part, was always anxious to legitimize unions when both partners were free, in spite of possible disparity in their social - and even occasionally racial - status.53 Parents were often driven to acquiesce, however reluctantly, in such unequal marriages, in recognition of the binding force of verbal promises and of the social importance of preserving a daughter's reputation. Where parents remained recalcitrant but the couple themselves were determined to marry, church courts almost invariably pronounced in the couple's favour.54

If, as seems likely, these social conventions created an environment that did something to reduce the stigma of birth out of wedlock, the ecclesiastical and secular authorities alike became increasingly concerned by the large number of illegitimate births in colonial society, especially since so many of these births were of children of mixed race. In 1625 the viceroy of New Spain placed a ban on the legitimization of children born to couples who were not married,55 but it is doubtful whether this measure had much effect other than to aggravate the problems already faced by the illegitimate children themselves. The church in the Spanish Indies, too, gradually began to move in the direction of giving increased weight to parental consent, although major legislative change came only towards the end of the colonial period. The growing assertion of state power over the church in Bourbon Spain was to have important consequences for matrimonial legislation in the Indies as well as in Spain itself. In 1776 Charles III issued a pragmatic which required parental consent in the selection of a marriage partner for all those under the age of twenty-five, while at the same time jurisdiction over matrimonial disputes was removed from the church courts to the civil courts. Two years later the new legislation was extended to the Indies, although with the stipulation that the necessity for parental consent applied only to the marriages of `Spaniards', and not to those of blacks, mestizos, mulattoes and others of mixed race.56

While, in the sixteenth and seventeenth centuries at least, a combination of the law, social conventions and the attitudes of the church tended, in certain important areas, to weaken parental control in the Spanish American household, there were many informal ways of bringing pressure to bear on children's choices - ways that necessarily escape the historical record. Disinheritance, which was sanctioned by the Partidas, was a possible option, although there is no evidence that it was much used.57 The manipulation of dowries, however, was a useful instrument of parental control.58 Dowries in seventeenth-century New Spain might run to as high as 25,000 pesos, but Hispanic parents also enjoyed an option not open to their British American equivalents, the placing of daughters in convents, at a cost of a mere 3,000. Not surprisingly, the cities of Spanish America abounded in convents.59 For all the initial fluidity that was only to be expected of societies in process of establishing themselves, the patriarchal family had its own ways of reasserting its control in the superficially more open environment of America.

Although the family gradually overcame such impediments as gender imbalance, high mortality rates and the startling availability of land, to reconstitute itself as the central unit of the new American societies, these societies themselves were unable to replicate in full the hierarchical ordering of the European societies from which they derived. This, however, was not for want of trying. Coming from a world in which an undifferentiated society was normally regarded as an invitation to anarchy, early settlers of Spanish and British America alike were anxious to see their own fledgling societies approximating as soon as possible to the orderly hierarchical societies they had known in their homelands.60

Yet if, in the new environment of America, ownership of a horse, as Hernando Pizarro conceded, was purely fortuitous rather than a natural consequence of birth and degree, troubling questions presented themselves about the criteria that should be adopted for the ordering of these new societies. Deference could most obviously be paid, or at least demanded, where deference was due - to the sixteen undoubted hidalgos among Cortes's 530 men, or the 36 gentlemen among the first 105 planters of Virginia.61 Yet very quickly the waters became muddied, as the normal indicators of status in Europe lost much of their resonance, especially in a setting in which there was a large subservient population of non-whites. In 1594 Juan Cabeza de Vaca, a resident of Mexico City, wrote to his sister in Spain urging her and other relatives to come and join him. `In this land', he wrote, `they do not know what hunger is ... and so poor people are much better off here than in Spain, because they always give the commands and never have to work personally, and they always ride on horseback.'62 No doubt the picture he painted was excessively rosy, although an account of life in early seventeenth-century Lima gives a similar impression: `everyone boasts of great nobility, there is nobody who does not claim to be a caballero, and they all go about the city on horseback except for a few who are very poor.'63