Surprise Heirs: Illegitimacy, Patrimonial Rights, and Legal Nationalism in Luso-Brazilian Inheritance, 1750-1821 - Vol. 1

By Linda Lewin | Go to book overview

Preface

In the late eighteenth century, Sir William Blackstone proudly defended the English legal precept laid down by the Statute of Merton in 1234: “Once a bastard, always a bastard.” The immutability of bastardy had formed part of a royal response to a question put forward by some of the same barons who several decades earlier had challenged the king over Magna Carta. The steadfastness of English law in upholding the Statute of Merton until Blackstone's day etched a cardinal difference in how two legal traditions, both originating in western Europe, treated illegitimate birth and defined bastardy. Furthermore, as Blackstone boasted, England's thirteenth-century statute admitted almost no loopholes, another circumstance leading him to draw a favorable contrast between his own legal tradition and that of the civil law countries of western Europe, where law offered ample opportunity to transform bastardy into legitimacy. 1

In two respects, Blackstone's boast suggests the diverging line of inquiry pursued in this book, one that English-speaking readers will find alien to their own legal tradition. First, Blackstone's prideful assertion extolled the moral superiority of what essentially stood as the aberrant position of English law. In rejecting the principal loophole offered by Roman and canon law for mitigating bastard birth, late medieval law in Catholic England had diverged significantly from the rest of Catholic Europe. Thus Blackstone's exceptionalist position repudiated an important feature of the civil law tradition that had evolved throughout western Europe, above all in the Iberian countries of Spain and Portugal. Yet his tone of moral superiority continued to resonate within what by the close of the eighteenth century amounted to an Anglo-American legal tradition, one where illegitimacy assumed the proportions of an aberrant phenomenon rather than a commonplace occurrence. Although a post-colonial North America admitted some divergences from English legal practice, Blackstone essentially defined the stark judgment

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