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

By Linda Lewin | Go to book overview

CHAPTER 5
The Pombaline Tradition
Legal Nationalism

From the above-noted superstitious generality of the said laws
called Imperial, it is customary to extract other rules in order to
interpret my laws…. It is understood that these National Laws
should be restricted when they are contrary to Roman law …. I
order otherwise.

Henceforth the assumptions of the tribunals and ministers will
not mention knowledge of sin, but of crimes …

The Law of Right Reason, Aug. 18, 1769 1

Throughout the first four decades following Brazilian independence, legislators referred matter-of-factly to law in force as “direito pátrio”—national law. They did so not to point to laws adopted after Portuguese rule ended in 1822, but to invoke a legal tradition inherited from eighteenth-century Portugal. When, for example, they attempted to abolish entail, beginning in the late 1820s, legislators resorted to direito pátrio as juridical authority for arguments that were pro and con. The appeal of national law was “bipartisan,” for the so-called “royalists” who opposed the liberals nonetheless endorsed legal nationalism. Parliamentary debate implied the term connoted a received legal tradition formerly synonymous with Bragança absolutism, one whose cornerstone resided in the 1769 “Law of Right Reason.” By severely circumscribing both Roman and canon law as authoritative subsidiary sources for positive national law, that famous statute had proclaimed the preeminence of national law made by the Portuguese crown.

In repudiating entail, for instance, Brazil's liberal legislators drew on direito pátrio to assert that a Luso-Brazilian system of intestate succession imposed a “natural equality” of rights among the necessary or forced heirs, citing as their evidence the 1754 law on which their system of ab intestato succession had been redefined. “The law of the morgado,” objected the marquis of Caravellas, “should be abolished for being in contradiction to the General Law.” The statute he cited was the Law of August 3, 1770, whose preamble

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