Surprise Heirs I: Illegitimacy, Patrimonial Rights and Legal Nationalism in Luso-Brazilian Inheritance, 1750-1821, and: Surprise Heirs II: Illegitimacy, Inheritance Rights and Public Power in the Formation of Imperial Brazil, 1822-1889 (review)

Historians of the family have long recognized the centrality of inheritance and the devolution of resources to the prosperity and survival of the next generation as well as family businesses If anything this is especially true in Brazil where the family was clearly the strongest institution until at least 1930 These two volumes take a historical look at the legal relationship of inheritance to marriage and legitimacy, how royal policy changed from 1750 to 1821, and the evolution of imperial policy from 1822 to 1889 Linda Lewin contextualizes this debate within the larger issues of Portuguese and Brazilian history over the period and makes it understandable in cultural and economic terms She also lays out juridical history and how it is created and changed over the entire period For the most part her primary sources are a combination of law codes, the works of legal thinkers and the proceedings of the Camara dos Deputados and the Senate during the empire She looks at laws that were proposed and the accompanying debate as well as laws put into effect, and interprets what she sees as the issues behind those decisions Individual inheritance or legitimacy cases do not figure strongly in these volumes, though occasionally Lewin incorporates insights from other studies based on particular cases as part of her analysis.

Volume I is an analysis of the colonial system as it existed until 1750, and the changes in the period of Pombal until 1821 Lewin's task here was substantial Basically, to do this analysis, she also had to explain the history and juridical basis of the various legal codes (including canon law) and how they interacted and were utilized or revised in the period This in itself is an important contribution for historians.

In the analysis of inheritance in Volume I, Lewin emphasizes the priority of "legitimate" or "ab intestato" succession which was based on law and required no written will or testament for legitimate heirs to receive property She rightly points out that many scholars (especially from the United States) have focused on testamentary succession, which was utilized primarily when an individual had no legitimate heirs, or wished to make provision for illegitimate offspring (I, 24- 25), or to name a "universal heir."

Of considerable significance in the Pombal period was the idea of "legal nationalism" which referred to the preeminence of legislation of national law made by the Portuguese crown in the late eighteenth century (I, 117) The 1769 "Law of Right Reason" provided the basis for "legal nationalism" by sharply limiting both Roman and canon law as authoritative subsidiary sources for positive national law Lewin names Paschoal Jose de Mello Freire dos Reys (1738- 1798) as the "singular and largely forgotten figure," the "principal architect" of Luso-Brazilian legal nationalism (I, 123) A law professor, Mello Freire reformed the Coimbra curriculum and reformulated Portuguese law so that the Ordenações Filipinas, along with Portuguese "customs" and uncodified statutory laws would be paramount The law code was also effectively "secularized" in the process These changes had important implications for marriage and inheritance law Mello Freire argued that marriage was as much a civil act as a sacrament and that the priest was dispensable His "historical definition" of marriage was deeply rooted in customary behavior He implied that the ritual of marriage served only the nobility (I, 140) Following this chain of logic Mello Freire began looking at legitimization of offspring with marriage as a remedy for a "defect of birth."

The changes in definitions of legitimate marriage over time as well as the treatment of heirship and property are integral to this story Lewin makes...