Inheritance rights of natural children in the Empire of Brazil

The legal-political debate regarding the Act of 1847

Abstract

This article is based on a thoughtlessly repeated presumption – the establishment of a liberal constitutional order would imply the extinction of birth privileges. This presumption, however, is not accurate, since some privileges were maintained in Empire of Brazil, despite the Constituição (1824) providing for their abolition. The example of privilege presented in this text is the norm of the Ordenações Filipinas according to which the natural children of nobles did not inherit from their parents. This inheritance law remained in force in the country until 1847, when the Brazilian Parliament enacted the Act of September 2, 1847, which eliminated this distinction between natural children of nobles and commoners. The objective of this work is to understand the legal and political reasons that dictated the pace of abolition of privileges and, consequently, the consolidation of the constitutional order. In this sense, the research focuses on the study of the genesis, interpretation and application of the Act of 1847, through the analysis of legislative debates, doctrinal comments and the case study of the litigation for the inheritance of Visconde do Rio Preto. In the end, it is concluded that, in that context, the conception of constitutional primacy was not consensual; that there was a dispute between natural law and civil law as a normative foundation and that the law limited the means of proof of natural filiation, making it difficult to obtain the right.