Good Government, Administration, and Private Law: The Privatization of Law in the Chilean Frontier, 1790–1860

This paper discusses the changes in the land tenure regime of the region of Valdivia, in southern Chile from the colonial period to the republic. This process involved different kinds of legal, political, and demographic changes that transformed the ways in which the holding of land was legally justified. While during the 1790s most of the land was held by indigenous groups, a gradual process of land sales saw Spaniards and Chileans increase their share of lands in the region. However, the arrival of German migrants and the efforts by the Chilean state to colonize the region led to a land rush that accelerated the loss of indigenous lands. This paper focuses on private legal instruments—deeds of sale and simple contracts—to highlight the ways in which both indigenous and public lands were lost to private landholders. During the 1790s and the 1830s, the deeds of sale were highly local affairs, being produced on the lands that were sold, and involving both Spanish and indigenous procedures for the completion of the transactions. This way of proceeding allowed both local and political control over the transfers of ownership. After 1830, and especially during the 1840s, the deeds of sale became more formal affairs. Also, the widespread use of simple contracts—documents elaborated between the parties without the involvement of the notary—created an opacity that led to increased litigation between indigenous individuals, and between private actors and the state. The aim of this paper is ultimately to highlight how the process of state-building and the process of privatization of land, though occurring simultaneously, were led by very different logics. In the end, private law, its legal instruments, and courts—and not the state—defined how the privatization of land occurred in this region.