- Surprise Heirs, and: Illegitimacy, Patrimonial Rights, and Legal Nationalism in Luso-Brazilian Inheritance, 1750–1821, and: Illegitimacy, Inheritance Rights, and Public Power in the Formation of Imperial Brazil, 1822–1889
This important work operates on the borders where social, political, and legal history meet, and it makes meaningful contributions to each field. Constructed around the intertwined issues of illegitimacy and inheritance, Lewin explores a wide range of issues of interest to historians. Unusual in today's publishing environment, this is a two-volume work. The first focuses on the colonial period, and the second deals with the 1822-47 period, with an epilogue that tantalizingly incorporates changes made regarding illegitimacy and inheritance law during the republic, including the 1988 constitution.
While the work makes very good use of the newest secondary sources, its most important contribution is a close reading of secular and ecclesiastical documentation, especially the works of legal experts of the eighteenth and nineteenth centuries and the parliamentary debates of the 1820 s through the 1840 s. It is the close reading of this very complex material that provides the backbone of this work. This is an enormously protean work. Lewin uses the many social and legal issues raised by illegitimacy to examine the family in practice and in the law. The relationship between law and sociopolitical reality provides a legal foundation to the study of the family as it has evolved over the last three decades, with its focus on social practice. Very fundamental changes occurred between 1750 and 1847. Lewin describes the dismantling of the legal basis of the colonial estate system in the century after 1750. The same period witnessed an expansion of the father/husband's power over the family and its definition. The emergence of the official conjugal family (the [End Page 530] final triumph of the Council of Trent) eliminated the multiplicity of acceptable family forms built around customary marriages. During this century, important aspects of Luso-Brazilian society (such as the definition of illegitimacy, marriage, and even the family itself, which during the colonial period had been characterized by ambiguity, flexibility, and mutability) became more fixed, circumscribed, and rigid in law. Lewin explores some of the effects of this process of increasing rigidity and formality. For example, the role of community reputation—the voz popular—in determining recognition of natural children was dramatically weakened by law in 1847 , and the 1916 Civil Code completed the long process of redefining the family from the colonial ambiguous and multiformatted one to an ever more narrowly defined modern conjugal unit—reaching out, in legal terms, only to first cousins. The definition of collateral relatives became increasingly narrow. Also, bastardy moved from a mutable status to an essentially irreversible one.
Undergirding this process was a fundamental shift in the nature of the law itself. As described by Lewin, the Marquis de Pombal (Portugal's first minister, 1750-77) adopted a policy of legal nationalism as he reshaped Portugal's legal infrastructure around local customs and traditions and away from canonical or Roman law. This process was reversed after 1830 , when legislators reverted to pre-Pombaline sources of law—even going so far afield as the French civil code for inspiration. In the midst of these dramatic changes, natural children lost their traditional status as coequal with legitimate children in terms of access to inheritance. They were instead increasingly defined, out of deference to the conjugal family, as illegitimate, and their ability to seek redress through legal action was abolished, ending the possibility of "surprise heirs."
Lewin's work, especially volume 1 , maintains an exquisite balance between social reality and civil and ecclesiastical treatises and laws. She carves out a pivotal role for the community in defining legal relationships such as the paternity of children—definitions that then shape whether natural children...