Surprise Heirs II: Illegitimacy, Inheritance Rights, and Public Power in the Formation of Imperial Brazil, 1822-1889 9780804767002

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SURPRISE HEIRS Volume2

Illegitimacy, Inheritance Rights, and Public Power in the Formation of Imperial Brazil, 1822-1889

SURPRISE HEIRS Volume 2

Illegitimacy, Inheritance Rights, and Public Power in the Formation of Imperial Brazil, 1822-1889

LINDA LEWIN

STANFORD UNIVERSITY PRESS STANFORD, CALIFORNIA 2003

Stanford University Press Stanford, California by the Board of Trustees of the Leland Stanford Junior University

(f) 2003

Library of Congress Cataloging-in-Publication Data Lewin, Linda. Surprise heirs, vol. 2: illegitimacy, inheritance rights, and public power in the formation of imperial Brazil, 1~22-1889/ Linda Lewin. p. em. Includes bibliographical references and index. ISBN o-~047-4606-o !cloth: alk. paper)1. Illegitimacy-Brazil-History-19th century. 2. BrazilSocial conditions-19th century. I. Ti tie. KHD520 .L49

2003

346.8\0)'2---dc21

2002010019

Original printing

200_1

Last figure below indicates year of this printing: 12 11 w 09 o8 07 o6 05 04 03 Designed and typeset at Stanford Universitv Press in wll_l Minion

In Memory of DOROTH Y D. VELLENG A

and JOYCE F. RIEGELH AUPT

Acknowledgments

In writing this book, I incurred many debts over the course of two decades. Several people stand out for the tutoring and encouragement they offered me in the project's early stage. I am especially grateful to Mary Ann Glendon, of Harvard University Law School, and to Boston College Law School, for jointly sponsoring me as a visiting scholar in residence. Mary Ann, as a specialist in comparative family law, introduced me to the features of a civil law tradition. Without her guidance and personal interest in my project, I could not have unraveled the knotty complexities of a legal tradition deriving from eighteenth-century Portugal. Two very special friends, in whose memory I dedicate this book, seconded my original determination to integrate an old interest in the history of the family in Brazil with a new focus on that country's inheritance system. Joyce Riegelhaupt of Sarah Lawrence College, as an anthropologist, encouraged me to write on a Luso-Brazilian system of inheritance at a crucial juncture. She also recruited me as a participant in the Social Science Research Council's two-year seminar on Latin American kinship, an experience that sharpened my awareness of how far matters of inheritance can reach. Dee Dee Vellenga of Muskingum College shared her insights as a sociologist who "read" an inheritance system from the ground up, using oral data from women who were cocoa farmers as the key for unlocking individual strategies of heirship. While regaling me with anecdotes about how those women used Ghana's local court system to reclaim the cocoa trees that were their family patrimony, she reminded me that my own forays into oral history in Paraiba had led me from eliciting kinship patterns to the Philippine Code. To Ann Twinam of the University of Cincinnati, as one historian of Latin America to another, I am extremely indebted. She not only read the drafts of botl1 volumes of this study, and offered me the most valuable set of comments and criticisms one could hope to receive for undertaking revisions, but she also proved an enthusiastic and encouraging collaborator. Through

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countless discussions on the subjects of crown legitimization and the Iberian context of legal bastardy, she helped me more than anyone else to delineate and clarify the central arguments in this study. Mariza Correa of the University of Campinas, a historical anthropologist, invited me to present some of the arguments of this book to her graduate seminar, where she inspired my use of the "herdeiro de surpresa" for the title for this book. The late Jorge Pacheco Chaves Filho, of Rio de Janeiro, willingly gave me a missing piece of his Prado family history that proved a fruitful clue and an unforgettable moment. Finally, Norris Pope, Editorial Director of Stanford University Press, deserves singular recognition, and my deep appreciation, as a collaborator who believed in the value of this book, even when it could no longer be contained in a single volume. His encouragement, suggestions, and willingness to entertain two books on the subject of illegitimacy and inheritance law in Brazil were an inspiration. A long list of librarians or archivists, many of whom I am unable to thank personally here, made this book possible. In particular, I would like to express heartfelt appreciation to Rachel Barreto Edensword, formerly of the Oliveira Lima Library, Catholic University of America, Washington, D.C.; Martha Maria Siqueira Cavalcanti, formerly of the Library of the Faculdade de Direito do Recife, in Pernambuco; Pedro T6rtima of the Instituto Hist6rico e Geognifico Brasileiro, Rio de Janeiro; Ieda Wiarda of the Hispanic Section of the Library of Congress, Washington D.C.; and Eliane Pereira, of the Biblioteca Nacional, and Jose Gabriel Pinto, of the Arquivo Nacional, Rio de Janeiro. Each of them uncovered documentation indispensable for plotting the course of the legislation central to this book. Finally, Ida Lewcowicz facilitated my access to the library of former justice minister, Alfredo Buzaid, on deposit at the Universidade Estadual de Sao Paulo, Franca. During a rewarding residence as a visiting professor, I located the last missing texts outstanding in the research for this book in Buzaid's impressive collection. My students in Franca, both in history and in law, enriched my appreciation of family history in imperial Brazil. In addition, the following graduate students tracked down precious primary and secondary materials: Louise Avila and Mariano Plotkin of the University of California, Berkeley, and Mary Ann Mahoney of Yale University. Paloma Fernandez Perez generously shared her own research and clarified Spanish inheritance law for me. Matthew Gerber, also ofUCB, provided guidance on French law. Special thanks are due to those who gave me detailed written comments on chapter drafts: Muriel Nazzari, Brian Juan O'Neill, Ted Riedinger, Patricia Seed, Sandra Lauderdale Graham, Mary Karasch, Dauril Alden, Keith Ro-

Acknowledgments

ix

senn, Charles Hale, Marty Jay, Donna Guy, Jeff Needell, Bert Barickman, Paloma Fernandez Perez, and Hendrik Kraay. Keith Rosenn set me straight on Roman law and clarified my understanding of "legal nationalism," while calling that term to my attention. Marty Jay brought Continental liberalism into a more finely tuned focus vis-a-vis a Brazilian variant. Any errors I have made in failing to heed their invaluable written comments and conversational pointers are strictly my own responsibility. Donald Ramos, of Cleveland State University, provided me with an important missing text of eighteenth-century law. Hendrik Kraay generously provided me with excerpts from compendia of military laws and regulations. Osvaldo Agripino, of the Complexo de Ensino Superior de Santa Catarina and Stanford University's Brazil Working Group, provided excerpts from Brazil's 1941 Criminal Procedural Code and complementary statutory law. Tom Cohen, Director of the Oliveira Lima Library, supplied data for final corrections. The financial support I received for this two-volume project was generous, extensive, and indispensable. A Tinker Post-Doctoral Fellowship, in tandem with a research travel grant from the Social Science Research Council and the American Council of Learned Societies, initially enabled me to spend an academic year as a research fellow in residence at Boston College Law School and the University of Sao Paulo. The latter venue facilitated access to a treasure trove of legal materials for imperial Brazil, housed in the Library of the Faculdade de Direito de Sao Paulo, one that supplemented the offerings detailed in the preceding volume for the FDSP's sister institution in Recife. A Humanities Research Fellowship from the University of California, Berkeley, and a research travel award from the American Philosophical Society later offered me opportunity for a sabbatical semester ofleave for followup research, as a visiting research scholar at the Funda~ao Casa de Rui Barbosa, Rio de Janeiro. Rui's enormous archive and marvelous private library were placed at my disposal. Another Humanities Research Fellowship from UCB contributed generously to a year of sabbatical leave for write-up in the mid-1990s and enabled me to expand considerably the project's focus. Assistance from my department's Shepard Fund facilitated retrieval of parliamentary debates from the Oliveira Lima Library and the Library of Congress, making possible this volume's legislative focus on a liberal agenda broadly addressing family and inheritance law. The Shepard Fund further contributed to publication of this volume. I especially wish to thank my friends and colleagues in the History Department, University of California, Berkeley, for believing in the merits of this book and for showing me infinite patience in waiting for its publication.

X

Acknowledgnzcnts

At all of these institutions, I benefited from faculty, research staff, and graduate students, who as friends and colleagues shared their enthusiasm for a project that for me has been as much an amazing intellectual journey as the authorship of a book. It was a journey that made many disparate pieces of Brazil's history fit meaningfully together for the first time. I hope this book proves worthy of their support and curiosity.

Contents

Preface

Xlll

A Note on Legal Language and Brazilian Orthography and Names

XXV

Part I: Liberal Beginnings I

The Context oflnheritance Reform: Liberalism in the Era of Independence

2

Dismantling the Colonial Regime: Estate, Birth, and Color

3 37

Part II: Confronting the Canons of Trent

3 4 5

Mancebia Bows to Legal Matrimony: Legislating Marriage ala Trent

8r

The Liberal Challenge to the Canons of Trent: Clerical Celibacy and Civil Marriage

TO?

Illegitimacy and the National Elite in the Independence Era

126

Part III: Reforming Illegitimacy and Heirship in the Regency

6

Undoing "Damnable" Birth: First Reforms

163

7

The Regency and Liberal Reform of Succession Law

200

8

Scandal in the Courtroom

233

Part IV: Redefining Bastardy in Imperial Brazil 9

Placing Conscience in Conflict with Interest

267

Col/tents

XII

Conclusion: A Brazilian Legal Tradition Epilogue: Reconsidering Bastardy in Republican BrazilThe 1916 Civil Code Abbreviations

331

Notes

333

Legal Primary Sources Cited

365

Other Sources Cited

369

Index

381

Preface

This book began as a simple inquiry into rules of heirship that in Brazil were exceptionally generous to individuals born outside legal wedlock. Given a historical focus on the nineteenth century, those rules derived from a LusoBrazilian inheritance system originating in three centuries of Portuguese colonialism. Natural offspring best exemplified the generosity of inheritance rights. Whenever recognized by a parent, their legal status approximated legitimate birth. On the other hand, rules of heirship excluded from succession rights a variegated category of illegitimate offspring who were collectively identified as spurious. Their legal position offered a sharp contrast to natural offspring because law denied them rights in heirship, sometimes prohibiting even a parent's modest bequest. Unlike their counterparts of illicit birth, natural offspring, those who were of spurious birth were taken by law to be true bastards. Yet, historically, bastardy proved remarkably mutable. Law provided remedy, offering another reason why a Luso-Brazilian legal tradition deserves to be evaluated as exceptionally generous. Only in twentiethcentury Brazil did bastardy become legally irreversible. For a North American reader, Brazil's legal tradition will contrast sharply with an Anglo-American one. Above all, rules of heirship have historically treated illegitimate individuals differently, thereby revealing the key features that differentiated succession rights in each legal tradition. Volume 1 of this study brought the major differences between Anglo-American and LusoBrazilian legal traditions into explicit focus, underscoring how tl1e meaning of bastardy historically imposed a pivotal distinction between what were two, distinctive sub-systems of European inheritance. Not only were rules of heirship divergent, but the fundamental concepts encoding the key features of Luso-Brazilian succession law differed from those deriving from AngloAmerican succession law. As a result, paternal recognition, solemn vs. simple legitimization, a legal identity as a foundling, or the benefits oflegitimization by subsequent marriage, proved to be culturally loaded notions that pos-

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sessed special meaning for how, in given contexts, rules of heirship were to be applied in eighteenth- and nineteenth-century Brazil. The detailed consideration paid in the preceding volume to those rules of heirship also made clear how their inherent concepts specifically applied after 1754, when they systematically came under revision by the Portuguese state. A Luso-Brazilian system of inheritance, as those chapters made dear, not only demonstrated dual ladders of ab intestato and testamentary succession prescribing how the bulk of any estate devolved to the appropriate heirs, but it also distinctly isolated those ladders from a secondary form of diverging devolution: bequests disposed by means of a will. From an Anglo-American legal perspective, consequently, the dual nature of succession in imperial Brazil-a circumstance derivative of the crown's solemn legitimization proceedings-complicates an understanding of how the inheritance system operated. Beginning in the 1750s, Portugal's legal tradition underwent important reformulation by crown jurists, suggesting a final area of difference vis-a-vis Anglo-American legal tradition. Contrary to what many have assumed, Brazil's inheritance system at independence no longer closely approximated the one spelled out in Portugal's national law code of 1603, the Ordenafi5es Filipinas. That is, the juridical foundation in Roman and canon law inherent in that "Philippine Code" had been significantly altered. The movement known in Portugal as legal nationalism-direito patrio-recast the Luso-Brazilian inheritance system in accordance with new principles appropriate to the apogee of royal absolutism. Hence, what by 1750 had become an excessive reliance on canon law, and a parallel recrudescence of the "written reason" of Roman law, was systematically restricted or discarded. Legal nationalism represented the instrument for reformulating positive law in Portugal, specifically to privilege the statutory law of the king, national custom, and the practical rulings of the crown judges who both applied and made law in the royal courts. The impact of that politico-juridical movement has been analyzed in the preceding volume. Nevertheless, its prime mover, the marquis of Pombal (Sebastiao Jose de Carvalho e Mello), who was the first minister of D. Jose I (1750-1777), continued to cast a long shadow in Brazil after independence. Thanks to Pombaline reform, and the outstanding jurists who reinterpreted both the Philippine Code and other national positive law in eighteenth-century Portugal, legal nationalism represented the new orthodoxy in a juridical heritage that Brazil received from Portugal at independence. Readers of this book will discover, therefore, that Brazil's first generation oflegislators behaved as the heirs of Pombaline regalism and legal nationalism. As a result, they invoked the interpretations of the two jurists most closely associated with Portugal's reformulated legal tradition: Paschoal Jose de Mello Freire

Preface

XV

dos Reys (1738-1798) and Manoel de Almeida e Souza de Lobao (1745-1817). The legal commentaries authored by the latter, in addition to the one subsequently produced by their standard bearer, Manoel Borges Carneiro (17741833), the brilliant martyr of Portuguese liberalism, defined the principal authoritative texts that Brazil's imperial legislators studied or consulted through the 1840s. Inheritance and family law defined the central areas of private law where the impact oflegal nationalism had been felt during Pombal's ministry (17501777). For Brazil's first generation of national legislators, independence in 1822 offered timely and compelling opportunity to modify the legal tradition they inherited from Portugal. Although they sought immediately to bring that tradition into conformity with the political demands dictated by the fact of a constitution, their efforts to rework private law also proceeded apace. As aresult, far from being primordially fixed, rights in succession for Brazilians born outside wedlock historically have fluctuated dramatically since the independence era of the 182os. This book, consequently, examines and interprets how Brazilian legislators, during the first three decades of independence, proposed to rewrite those inheritance rights vis-a-vis illegitimate individuals, and, in so doing, revised or discarded portions of the enduring national code of law received from Portugal. Initially, the pivot of inquiry for this book rested on Law No. 463 of September 2, 1847, due to the great divide it defined in the history of inheritance rights enjoyed by one category of illegitimate individuals: natural offspring. The Law of September 2 amounted to the most important piece of nineteenth-century legislation affecting illegitimate individuals until promulgation of Brazil's 1916 Civil Code. As it turned out, Law No. 463 of 1847 possessed an exceptionally protracted history, for its genesis lay in the decade of liberal political experimentation known as the Regency (1831-1840). Further research revealed the significant extent to which, from the late 1820s through the 1840s, liberal legislators had sought to change either the position of illegitimate individuals in inheritance law or the legal rules that prevented many parents from marrying. In fact, the features of a Luso-Brazilian inheritance system came under scrutiny immediately, due to the ideological values early legislators held. They were also determined to make national law reflective of Brazilian social organization and cultural values. Consequently, this book tells the previously unknown story of those reform efforts, beginning with the occasion when marriage was first placed on the agenda of national legislative debate, in 1827. At the same time, the approach adopted herein integrates attention to legal reform with a focus on common patterns of family organization during the era of independence

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(1822-1830 ), the Regency (1831-1840 ), and the first decade of the Second Empire (1840-1889). That focus extends to some of the key legislators who sponsored reform bills, for their biographies illustrated the peculiar features of family organization inherent in their legislative discourse devoted to illegitimacy, marriage, and inheritance. New rules of heirship in early imperial Brazil were authored largely by men of property on behalf of propertied groups. Precisely because those at the top of society might choose to live outside legal marriage, and ignore or dispense with either the vows of matrimony or those of clerical celibacy, early imperial society offers a special context for investigating a rich multiplicity of family arrangements. Furthermore, legislators occasionally articulated their awareness of Brazil's rapidly growing proportion of natural offspring, that is, those whose parents were legally marriageable, but had declined to marry. An imperial deputy representing the province of Minas Gerais, for instance, offered data he collected in the 1840s to estimate that natural offspring amounted to one-third of Brazil's total population.' No one hazarded an estimate of the proportion who were spurious. The propensity for Brazilians from all walks of life to live in consensual unions, whether they pertained to ubiquitous arrangements of adulterous and clerical concubinage, or, alternately, what liberal legislators by the 184os termed "natural" marriage, not to mention less stable unions of cohabitation, explained the attention the national legislature paid to the legal position of natural and spurious children in the inheritance system. The diversity of conjugal unions, and the legal variegation among the non-legitimate offspring who resulted from those unions, defined the important sub-text of legislative debates that addressed illegitimacy, marriage, and inheritance rules between the 182os and the 184os. Hence this book offers a selected view of that family sub-text of parliamentary debate and integrates the major features of family organization that made the subject of illegitimate birth significant for Brazil's first generation of imperial legislators. In this respect, it builds on the foundation laid in volume 1, tying late colonial patterns of family formation to discrete legal rights in heirship that depended on individual "qualidade," or quality of birth. That is, rights in patrimony varied, according to whether individuals were either natural, spurious (incestuous, adulterine, sacrilegious), legitimized, or foundlings. Initially sympathetic to mitigating the "stain of bastardy," liberal reformers made enlightened proposals on a broad range of family matters. In so doing, they subjected the private sphere of the family, including "skeletons in the closet" theretofore unremarked in parliamentary debate, to the scrutiny of public power. In this regard, their anxiety over the appearance of the "surprise heir," whom they conventionally identified as "a stranger" or an "outsider,"

Preface

xvii

but preferred to construe as an "imposter," prefigured the climactic adoption ofLawNo. 463 oh847. As they tinkered with rules of heirship and argued over legal marriage or the uncertainties of paternal recognition, legislators demonstrated a belief that public power in Brazil ought to be exercised over the most intimate private relations. That assumption, of course, was not new. In the colonial period, public power frequently had been exercised in order to sanction the religious morality of an established church, either through adoption of specific laws or the administration of crown justice, including punishment of sin executed by the secular arm. However, with each decade of the eighteenth century, ecclesiastical power less successfully asserted legal jurisdiction over private, intimate behavior. Portuguese absolutism restricted drastically the reach of religious tribunals and proved increasingly reluctant to enforce their determinations or to apply canon law in royal courts. What stood out as different by the independence era of the 182os was the fact of a triumphant Portuguese regalism, one that had largely succeeded in separating "sin" from "crime" in the private law of the family. The chief instrument of Portuguese regalism from the 1750s onward was national positive law, wielded by the crown jurist. Volume 1 has examined the impact of the 1769 Law of Right Reason (Lei da Boa Razao), in relegating canon law to a marginal position prior to Brazilian independence. Yet Brazil's early liberal legislators still tried to expand the mandate of "boa razao." By sponsoring bills to reform the private law of the family or the inheritance system, they fuHilled an agenda reaching to the 176os. By the end of the 1830s, they had also transformed the national legislature, the General Assembly, into a stage for expressing their private views on sexual morality, views that never before had they committed to a public forum. As a result, a great deal of legislative discourse reflected keen awareness of what imperial legislators themselves believed should define quintessential, Brazilian family values. The formal record of their parliamentary debate therefore stands as a permanent and rich repository of those values. As an interpretation of the family in past time, this book uses the process of making law as the principal focus for drawing conclusions about how public power confronted illegitimacy and inheritance rights during Brazil's crucial passage from colony to independent nation. In assessing the usefulness of legal change for the historian of the family, I have attempted to connect law to customary values and family patterns, especially those reflecting unwritten community standards explaining the widespread toleration of multiple forms of family organization characteristic of imperial Brazil. When, as minister of justice in the late 186os, Jose de Alencar averred that a civil code was as much

xviii

Preface

a work of customs and traditions as it was a work of juridical science and talent, his pronouncement merely affirmed a central tenet of legal nationalism. Of course, his statement also revealed his alternate persona as Brazil's most acclaimed novelist in the era of Romanticism. Possibly because he was himself a sacrilego, fathered by a priest, Alencar expressed an intuitive understanding of how unwritten standards of community toleration were embedded in laws that either reached deeply into family life or imposed differential patrimonial outcomes depending on individual quality of birth. On the other hand, family and illegitimacy received significant attention from liberal legislators during the first three decades after independence in good part because those lawmakers questioned the rules regulating how property devolved intergenerationally. Those rules assigned rights to nonlegitimate individuals in a national system of inheritance that permitted them to receive shares of the patrimony that belonged to the legitimate family. Initially, political and social change suggested to many that the rules had become out-of-date and deserved liberalization. Procedures of paternal recognition, inherent in the rules of heirship, captured legislators' central attention because they mediated the devolution of patrimony. Eventually, the extent to which non-legitimate individuals enjoyed legal rights to patrimony belonging to the legitimate family fell under negative public scrutiny, causing those rights to be restricted. As a result, the legal position of non-legitimate individuals in the inheritance system framed a public issue that catapulted a congeries of family behaviors and arrangements into the open arena of Brazil's national legislature. The principal primary sources for this study are twenty-three years of the published record of Brazilian parliamentary debate known as the Anais do Parlamento do Imperio Brasileiro. Spanning 1826 to 1848, they are not quite aptly termed "minutes." Yet they are the only official record of public discourse for Brazilian legislators set down in discrete volume sets for both the Senate and Chamber of Deputies.' The Philippine Code of 1603, as well as several legal codes adopted by Brazilian legislators in the 1830s, together with colonial and national statutory law and the legal commentaries elucidating them, round out the primary sources supplying the key evidence for this book. Although this volume focuses on the process by which legislators attempted to modify or revoke sections of the Ordenar;oes Filip in as after Brazilian independence, readers should keep in mind that Pmtugal's national code of 1603 was not replaced by a Brazilian Civil Code until1916.' Part I, by examining Brazilian liberalism, seeks to locate the impetus for reforming family and inheritance law in the programmatic assault that early nineteenth-century liberals carried out on the vestiges of the Portuguese an-

Preface

xix

cien regime. More to the point, discussion of liberalism focuses on the attack that early liberals leveled against a society of estates. Chapters 1 and 2, consequently, develop from the preceding volume's analysis of Pombaline reform of the inheritance system, one that simultaneously undermined the economic position of church and nobility. By extending that analysis to the independence decade of the 182os, these initial chapters set aside the conventional bifurcation of Brazilian history at 1822. In other words, the legal nationalism that undergirded the aggressive regalism associated with the Portuguese absolutist state after 1750 accounted for many of the reformist positions taken by liberal legislators during the 182os and early 1830s. Even granting that Brazil's historical liberalism failed to generate enduring ideological divisions, when political parties emerged around 1840, it remains the case that legal nationalism and regalism survived the age of absolutism and the French Revolution to flourish throughout Brazil's era of independence and Regency. They especially left an imprint on matters of church and state. An agenda of dismantling the state apparatus belonging to the former colonial regime implied the creation of new Brazilian political institutions that carried important consequences for illegitimacy and inheritance rights in imperial Brazil. Chapter 2 therefore analyzes the extinction of royal tribunals closely associated with the colonial order, especially the Desembargo do Pa