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

By Linda Lewin | Go to book overview

Introduction

From the beginning of the monarchy until His Majesty, D. Afonso
V, laws applying to wills were almost not used, only customs
adapted to canon and Roman law. D. Afonso V was the first to
have these customs written down, adding to them many things de
duced from Roman law, which he put in his Code. They can be
found in Book Four … what passed afterward into the Manueline
and Philippine Codes.

Desembargador Antonio Joaquim de Gouvêa Pinto,
Tratado Pratico de testamentos e successões (1813) 1

Only since the late 1970s have historians considered the features and evolution of Brazil's inheritance system, including dowry and the marriage regulation. 2 They have done so as researchers concerned with uncovering common practices among groups owning varying amounts of property, and primarily through documents found in local archives, especially for the provinces of São Paulo, Rio de Janeiro, Minas Gerais, and Bahia. When attention has been paid to law, ecclesiastical law has received deserving emphasis. Considerable interest has continued to focus on episcopal visits dedicated to enforcing canon law in eighteenth-century contexts, with the result that social behavior and community values often have been revealed to differ markedly from ecclesiastical law. 3

More recently, greater attention has been paid to marriage and concubinage in Brazilian history, bringing to light the growing significance of a large population born outside wedlock. In bringing marriage and concubinage under historical scrutiny, scholars have singled out how law regulated the private sphere of family life and paid emphasis to the provisions of the Ordenações do Reino, Portugal's national code of law, as well as to the Constituições primeiras do arcebispado da Bahia, which eventually acquired authority as an ecclesiastical “constitution” for all of Brazil. Where marriage was concerned, canon law carried legal effect in Brazil until 1889. The intersection of positive and canon law—above all, the ambiguous incorporation in positive law of the articles on marriage adopted by the Council of Trent

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