Codifying Marriage Policy in the First Republic

As many historians have confirmed, legislating families proved an integral part of republicanism and nation-building across independent Latin America. The “modern,” postcolonial politics of family reinforced gender roles in the aftermath of women's mobilization for the patriot cause and asserted stability after the chaos of warfare by defining the family as the primary building block of the newest American nations.Footnote ¹³ In many places in the region, intrafamilial dynamics and the family–state relationship served as a general metaphor for responsible citizenship and participation in the nineteenth century liberal state. According to Nara Milanich, “Anxieties about a changing social order and aspirations of national progress were often telescoped into concerns about family and gender roles.”Footnote ¹⁴ Although liberalism may have promised a new regime of social egalitarianism, many of the young republics actually backtracked on issues of gender equality, which was related to the continued expectation that patriarchal family relations would anchor the new states.Footnote ¹⁵ Beyond the symbolic, family also figured prominently in institution building and in expanding the jurisdiction of the state by replacing ecclesiastic responsibilities such as legitimating marriage and maintaining birth and death registries with secular, bureaucratic processes. Brazil was no exception in this regard, but Brazil's liberal republic came late.

While neighboring countries drafted and passed their civil codes to define membership and the rights and responsibilities of citizens in the nation-state, Brazilian politicians grappled with the intrinsic hypocrisy of a nation of “free men” that relied economically, politically, and socially on a working population locked in the captivity of slavery.Footnote ¹⁶ Brazil's system of slavery touched the lives of people from all social strata, and networks of patriarchy and patronage united rich with poor and free with enslaved. Patriarchalism, the replication in governance of a household structure in which senior men held authority over women, children, dependents, and clients, is a well-known facet of nineteenth century Latin American societies, and was deeply entrenched in Brazil. But it is critical to clarify that patriarchalism in an immense slave society was both gendered and racialized; Brazilian patriarchalism was grounded in slave production on rural latifundia as well as gendered family, household, and community hierarchies. The patriarchal model safeguarded the interests of a landed, slave-owning elite who dominated the nation economically and politically, complicating any attempt to implement anything more than a restricted or partial liberalism.Footnote ¹⁷ Keila Grinsberg, for example, has argued that the contradiction between liberalism and slavery delayed the promulgation of a Brazilian civil code for decades, even though the earliest proposal for such legislation was initially made in 1823.Footnote ¹⁸ Like Brazil's first constitution, the earliest drafts of a civil code failed to mention slavery at all. With the exception of the Criminal Code of 1830, Brazilian law simply avoided many questions of individual liberty by leaving the issue of the enslaved ill-defined or missing altogether. Thus, Brazilian law minimized state interference over the property rights of those whose private assets included human beings.Footnote ¹⁹ Brazil was remarkably successful in ignoring and silencing the contradictions of their liberal, slave society but rendered impotent to codify that paradox into a civil code.

Nineteenth century jurists could not resolve the incongruity of Brazil's enslaved being simultaneously persons (subject to criminal prosecution and Christian equals according to ecclesiastical law) and property (denied juridical personhood) who, in one lifetime, could leave one legal status, occupy the other, and return back again.Footnote ²⁰ The disjuncture between liberalism and bondage would only be settled when slavery and the empire fell as will be explained, paving the way for the introduction of a new body of civil laws. Thus, civil legislation, liberalism, and patriarchalism were directly and explicitly tied to the birth of Brazil's republic. Therefore, it is of little surprise that secular marriage, as one of the easier steps in crafting new family laws, was an immediate priority of the nascent administration.

Regulating marriage was among the first legislative moves of the new Republican order, declared in November of 1889. Inspired by international discourses of positivism and liberalism, and following 68 years of a comparatively stable empire, military conspirators and their allies concluded that the centralization of state vested in a hereditary monarch and his assembly was an archaic and ineffectual style of governance. Much of this was related to the end of slavery in 1888 and the suspicion that these dually reinforcing structures had impeded Brazil from achieving further economic and social “development.” The Republicans ushered in a federal system that had varied results at the turn of the twentieth century. The southern states of São Paulo and Minas Gerais, with their café and leite fortunes, enjoyed a virtual monopoly on the presidency and the federal budget, using much of their political and economic clout to fund the immigration of thousands of European immigrants and to protect the booming coffee industry that ensured their prosperity. This was also an era of widening disparity between the regions of Brazil and of local power struggles between competing coronéis (or local bosses), governors, and contenders. Relatedly, the early Republic was also plagued by a series of regional revolts, some pitting the federal army against local communities, including the infamous 1897 massacre at Canudos in rural Bahia.Footnote ²¹ Similar to its neighbors’ struggles in the early 1800s, Brazil experienced the growing pains of secularization and liberal reforms at century's end. In sum, the engineers of the First Republic found greater and lesser success in uniting the nation politically and economically under the rallying cry of “Order and Progress.”

Apparently, order in the family was a prerequisite for progress, as evidenced by the fact that the provisional military government enacted the marriage law during the transition period, even before Brazil elected its first civilian chief executive. The Civil Marriage Law of 1890 wrested official lifelong unions from religious sacrament to formalized civil contract, based on reciprocal—but mainly patriarchal—rights and obligations.Footnote ²² Prior to 1890, matrimony was completely a religious institution, performed, registered, and regulated by the Catholic Church and supported by civil laws such as the Philippine Ordinances of 1603, which were themselves rooted in ecclesiastical understandings.Footnote ²³ Of equal significance, custom—legal, cultural, familial, and otherwise—was vital to the conceptualization and practice of Brazilian law and had been since the colonial period. Custom became official policy in August of 1769 when, in a classic piece of Pombaline legislation, the Portuguese crown promulgated a statute that became commonly known as the Lei da Boa Razão, or the Law of Sound Reason. According to the Lei da Boa Razão, in the absence of clarity or direction, judges could honor the spirit of the law and make reasonable interpretations based on recognized “unanimous consent.”Footnote ²⁴ Imperial law gave license for juridical practice to acknowledge local customs and cultural practices, even though Brazil certainly had no indigenous law analogous to that which existed in the Spanish Americas.Footnote ²⁵ The Law of Sound Reason, therefore, allowed jurists the flexibility to solve problems to which the law itself did not directly speak. The Philippine Ordinances had many such lacunae, and the Lei gave cause for an outpouring of published legal doctrine and opinions, the body of which became Brazilian jurisprudence. This jurisprudence established customary laws that had a direct influence on decisions and the administration of the judicial system more broadly. Even into the twentieth century, “common sense, custom, natural law, or the legislation of other countries” stood in the silence.Footnote ²⁶

As expected, the law's responsiveness to “common sense” and “good reason” ran counter to the formalization and codification impulses of the Republican government. Nevertheless, it is certainly accurate to read Brazilian family law of the first republican period as a type of national “self-description.”Footnote ²⁷ By regulating family, the so-called basic unit in the collective, lawmakers advanced social conformity and acceptable terms of inclusion in the national vision. Appropriately constituted families would give Brazil the necessary foundation for its rebirth as a modern republic. This was particularly a propos for those who fought to replace ambiguity and flexibility with scientific certainty even in the priorities of the state. In addition, customary law and the wide berth of jurists’ sound reason tended to serve the interests of the powerful; often turning custom into the “living practice” of Brazilian patriarchalism. The “Men of Science,” who preferred formality to informality and liberalism to patriarchalism, were dually justified in their insistence on citizenship and family legislation as vital to the modernization of civil law.

The “Men of Science” championed the application of scientific theories to social problems, and their scholarly positioning reflected the ascendance of the field of legal medicine in the Brazilian academy. Legal medicine emerged as a vital policy-oriented academic specialization in Brazil and across Latin America in the late 1800s; proponents held that the law was as beholden to science and to medicine as was any other arena of society. In Brazil, this paradigm was most celebrated at the Recife Law School in the northeastern state of Pernambuco. Beginning in the 1890s, Recife faculty and students were deeply influenced by evolutionary and technical theories of social change and political development; there, even politics would be characterized as a “struggle for survival.”Footnote ²⁸ Positivism and scientific theories of race found their way into the law school curriculum before the turn of century, as legal scholars and their students debated August Comte, Hebert Spencer, Charles Darwin, Gustave Le Bon, and Cesare Lombroso among others. In Recife, “legal studies [became] an ally of evolutionary biology, the natural sciences, and physical and determinist anthropology” in what one scholar has called a revolution emanating from “the insistence on scientifism and specificity in the practice of law.”Footnote ²⁹

The commitment to “scientifism” was abundantly clear in legal journals. In the inaugural 1891 edition of the Academic Journal of the Recife School of Law, for example, the editors described their serial as an attempt “to provoke and stimulate scientific production yet underdeveloped in our country, to establish strong intellectual connections among various national and international nuclei, to strengthen the nation's schools of law.”Footnote ³⁰ Legal medicine and criminal law (criminal anthropology) dominated the pages of this journal, as they did on the pages of the similar publication produced by the São Paulo School of Law. Clóvis Beviláqua, a product of this generation at the Recife Law School and the author of Brazil's 1916 Civil Code, argued that legal knowledge was perpetually indebted to “experimental psychology, biology, linguistics, anthropology, ethnology, sociology, [and] all the sciences that are concerned with human beings.”Footnote ³¹ Physicians at the medical schools in Bahia and Rio de Janeiro agreed and employed scientific theory and the study and categorization of the human body to questions of legislation, particularly in criminology. In sum, physicians and attorneys who crafted the study of Brazilian legal medicine strongly argued for the responsiveness and even subordination of the law to scientific theories and medical interpretations.

Hence, codifying marriage factored among a number of federal initiatives designed to rationalize individuals, communities, and social relations, particularly as those people and activities intersected with and supposedly compromised Brazilian public health. Regulating marriage was intimately tied to the reorganization of state and society postabolition and empire, the standardization of the Brazilian populace, the eugenic perfection of the race, and the expectant increase in human capital and productive capacity that would result. Theoretically, these goals would be achieved through private philanthropy, institution and infrastructure building, as well as legislative, public health, and social welfare interventions. The legislative intervention around marriage law was specific and obvious: to dismantle canon law that had defined marriage and its impediments for most of the nineteenth century. Doing so would allow for a secular, scientific, and juridical basis upon which to determine who could marry and legitimately reproduce, and thereby ensure the larger societal reforms that many Brazilians considered a vital imperative of the new state.

To enshrine those efforts in the law, the 1890 Marriage Decree established the civil contract as the only valid and legal form of matrimony. In terms of restrictions, the 1890 law defined twelve impediments; the first of which prohibited marriage between first-degree relatives (direct ascendants and descendants)—whether the relation was by blood, “affinity,” or adoption—and all relatives within the second degree of consanguinity.Footnote ³² The restriction on second-degree relatives meant that siblings (collateral relatives) with one or both parents in common could not marry; however, the collateral-relation impediment did not extend beyond that second degree. This left uncles and their nieces and aunts and their nephews (third-degree collateral relatives) as well as all cousins (fourth-degree collateral relatives) free to legally contract a marriage. Brazil's 1890 marriage impediments on consanguinity were somewhat looser than traditional canon law as defined by the Council of Trent (1548–1563).Footnote ³³ Canonical impediments on consanguineous marriages extended to related persons with a common great-grandparent; that is, collateral relatives within the first canonical degree. The Church defined incestuous or consanguine unions as mortal sins, corrupting children and polluting the sanctity of the home.

For Brazil, historians of the nineteenth century agree that marriages between cousins and between uncles/aunts with nieces/nephews, tios with sobrinhos, were relatively common. Within the privileged classes, in particular, contracting interfamilial unions proved a strategic means of maintaining and consolidating resources.Footnote ³⁴ When professionals entered the great debate over the appropriateness of kin marriage, many certainly had the impression that these unions were primarily relevant to wealthy families. Based on a sample of elite families in nineteenth century Bahia, for example, Dain Borges found that approximately 30% of marriages were endogamous to the bloodline in one way or the other.Footnote ³⁵ Among more average nineteenth century families, consanguineous marriages may have also been frequent, although this is difficult to document. In general, however, consensual unions were more typical of average families than was formal marriage in the church, which was often prohibitively expensive. Despite the restrictions, the church regularly issued dispensations to permit consanguineous unions and legitimize their offspring. In colonial Brazil, the sale of dispensations was an important source of revenue for the church even though technically, dispensations should have been granted free of charge. According to Maria Beatriz Nizza da Silva, the most common justifications for consanguinity dispensations included the inability to find a suitable, unrelated partner, the preservation of family patrimony, the avoidance of scandal, and a lack of resources to fund an appropriate dowry.Footnote ³⁶ The inheritance implications of religious marriage restrictions were fodder for recurring debates during the empire. Despite this, no civil legislation related to consanguinity was passed until the founding of the First Republic and the promulgation of the Civil Marriage Decree of 1890.Footnote ³⁷ By defining the collateral relation restriction at the second degree, in terms of consanguinity restrictions, the Civil Marriage Law posed only a minor challenge to culture and custom.

Civil marriage in 1890 was only a first step, however. Republican legislators spent years debating the creation of a civil code, in a further effort to abolish the reliance on canon law and the Philippine Ordinances to guide legal process. The establishment of a civil code was proposed during the days of the empire; however, it was only realized within the state-building efforts of the Republican government.Footnote ³⁸ Freed of slavery and imperialism, the congress contracted Professor of Law Clóvis Bevilaqua in 1899 to begin work on Brazil's supreme civil legislation, although it took nearly two decades of negotiations and revisions between Bevilaqua's first draft and the Code's final ratification in 1916 as Lei 3.071. Bevilaqua, whose comparatively progressive views on gender and illegitimacy may have distinguished him from many contemporaries, was otherwise an apt illustration of his generation. Trained at the Law School of Recife, the up-and-coming Bevilaqua advocated for rationality and scientific method in civil legislation. Like others, he fervently insisted that a civil code was absolutely necessary to modernize Brazilian civil law, which many described as a hodgepodge of Roman, ecclesiastical, and colonial precedents. Although moral and religious understandings of family were evident in the 1890 marriage law, the Civil Code registered the growing influence of scientific approaches to familial relations. Jurists often couched the need for a civil code in a progressive, positivist, or evolutionary language that was reflective of the times. Bevilaqua himself described imperial civil law as “defective,” “spurious,” and “decadent.”Footnote ³⁹ His charge that the legal canon was hopelessly mixed and unruly resonated uncomfortably with many contemporary characterizations of the Brazilian people. The law seemed to be one more example of the chaos of Brazilian hybridity and disorder. A new civil code could tame the disarray of unclear and even contradictory policy as well as purify the perceived turmoil within the Brazilian family. Like other Latin American civil codes, Brazil's was greatly influenced by the Napoleonic Code of 1804.Footnote ⁴⁰ Ultimately, however, the Brazilian Civil Code was eclectic and also drew upon the models provided by the German (1900) and Swiss (1907) codes. In its final version, the 1916 Code defined the exercise of citizenship, regulated the titling and division of property as well as the contraction of matrimony, and delineated inheritance rules and the legal relationship between married couples and between parents and their “legitimate,” “illegitimate,” and adopted children.Footnote ⁴¹

Of the new decrees on the contraction of marriage promulgated with the Civil Code, Chapter 2, Article 183 of the “Special Section on the Rights of the Family” proved the most contentious. Article 183 defined prohibitions on the contract of matrimony; the first five points of which banned marriage between blood and adoptive relatives. Although the language of the Civil Code was sharper and better defined than that contained in the previous Marriage Law, in content, the impediments remained basically identical. The glaring exception to this continuity was that Article 183 went further than the prior 1890 Marriage Act in the prohibition of consanguinity, pushing the restriction to the third degree of kinship. Therefore, the restriction on third degree consanguinity stood out as the clear departure from established precedents and practices.Footnote ⁴² This change meant that marriages between an uncle and his niece or an aunt and her nephew (tios and sobrinhos) were no longer permissible under Brazilian law.Footnote ⁴³

Hence, the Civil Code of 1916 was more restrictive than the prior Civil Marriage Law. Bevilaqua initially proposed no change in restrictions related to consanguinity; the change resulted from the subsequent debates and revisions. Senator Ruy Barbosa, who served as president of the Institute of Attorneys (1914–1916) and is widely credited with being the architect behind the language of the document even in its most intricate grammatical detail, introduced this revision into a final draft of the Code.Footnote ⁴⁴ Barbosa's objection to consanguine marriages likely spawned from his staunch liberal vision for Brazil's Republic. Back in 1889, he had even collaborated in the overthrow of Emperor Pedro II by joining a group of conspiratorial republicans allied with discontented military officers.Footnote ⁴⁵ Relatedly, Brazil's “liberal knight”Footnote ⁴⁶ gained notoriety as a young man for his abolitionist sentiments. Although he was the son of a prominent Bahian family, the young Barbosa cultivated his critiques of Brazil's oligarchy while training at both the Recife and São Paulo Schools of Law. Whereas the Recife Law School was best known for its scientific orientation, São Paulo gained the reputation for framing the practice of law as a form of politics. In Barbosa's own words, “in the study of law [in São Paulo], the academic world and the political world mutually infiltrate each other.”Footnote ⁴⁷ The senator was among São Paulo's most celebrated graduates; he went on to become one of the most important intellectual voices and political thinkers in Republican Brazil.Footnote ⁴⁸

Given this background, Ruy Barbosa may have understood the new restrictions on marriage as a blow to the power of Brazil's traditional planter families, those who profited most from Brazil's slavocracy. As finance minister, Barbosa (in)famously ordered the destruction of public registers of Brazilian slavery in 1890, pursuing a national fresh start after the dark era of slavery and patriarchal politics.Footnote ⁴⁹ When defending the Code's ban on third-degree unions, Senator Barbosa argued that the prevalence of marriages between blood relatives was merely a reflection of the “patrimonial interests” of certain families, and his words were repeated by many in response to the 1919 controversy.Footnote ⁵⁰ He also claimed that science had confirmed the danger of third-degree consanguineous marriages, and that such marriages were a major cause of degeneracy in the Brazilian family.Footnote ⁵¹ Although the senator used the term “degeneracy,” it is unclear whether he specifically intended to refer to generational decline in a eugenic sense. Local scholars defined “degeneracy” quite loosely; in general, it served as a slippery and nebulous term for the presumed underdevelopment, decadence, or atavism of the Brazilian people.Footnote ⁵² Given his political and intellectual interests, Barbosa's objections to consanguine marriage were likely rooted in a critique of the power and influence of a self-serving gentry rather than in eugenic concerns about Brazil's future generations. This reading of his interest in kin marriages falls in line with the senator's own politics and his commitment to liberal reform.

Ultimately, legislators followed Barbosa's lead and adopted the new restriction on third- degree kinship marriages, arguing that moral concerns, the risk of degeneracy, and the precedents of the Portuguese, Spanish, French, Italian, and Swiss civil codes justified expanding the prohibitions. For the engineers of Brazil's Civil Code, the health implications of kin marriages ranked alongside moral ones, suggesting equivalence between somatic and ethical threats to the nation. Therefore, they left a certain ambiguity around whether or not the consanguinity restriction was actually a scientific measure. Bevilaqua, for his part, stated that “the moral atmosphere of the family is better preserved if there is no possibility of illicit affairs between uncles or aunts with nieces or nephews.”Footnote ⁵³ Bevilaqua's and Barbosa's words would come back to haunt defenders of the third-degree marriage restriction because critics challenged that the prohibition was based on moral reasoning and not scientific truth.

Therefore, the pronouncement of Brazil's Civil Code sparked an intense controversy within the medical and legal communities, who pressed for the “modernization” of Brazilian law, social relations, and citizens themselves to be founded on the latest scientific principles. Both medical and legal professionals staked their claim for a greater decision-making role in the Republic by touting their knowledge of and credence in reason, procedure, and science. Not by coincidence, these values were also increasingly typical and expected markers of the growing middle class.Footnote ⁵⁴ Because of Brazil's urgent need for social reform, these professionals saw themselves as the rightful arbiters of governmental action around issues of marriage and reproduction, with equal authority to speak to the overlap of medicine and jurisprudence. Physicians, in particular, benefited from the medicalization of family and society and the fact that there was really no opposition within the intelligentsia to the concept of using targeted scientific intervention to bring about “modernization.” Professionals debated the methodologies, not the premise. Moncorvo Filho, for example, whose quote opened this article, was unquestionably the most lauded children's health advocate in Brazilian history, and he made his opinions about consanguinity and the 1916 Code abundantly clear.Footnote ⁵⁵ For him, the Civil Code only approached consanguinity from a moral point of view, without considering the quality of future offspring, which was pivotal for Brazilian development. In the physician's words, “jurisprudence related to consanguine marriages must only be founded on a scientific solution.”Footnote ⁵⁶ Although some in the medical and legal communities doubted the scientific validity of this new restriction on kin marriage, their objections evidenced the increasingly significant place health occupied in Brazilian civil legislation: a place that would only be further amplified and fortified in subsequent decades.

Crafting Healthy Marriages through Civil Law

The health, vigor, and reproductive capacity of marriage partners took on new relevance in the early century with the rise of Brazil's eugenics movement, providing further justification for the status of familial health in civil law. Eugenics, particularly the Neo-Lamarckian strain, found many adherents among the Brazilian intellectual class of the First Republic who were attracted to the promise of using concerted scientific interventions to achieve a collective transformation, and eugenic thinking fit well with positivism and homegrown theories of social change and racial improvement through progressive whitening.Footnote ⁵⁷ In the opinion of many top physicians, scientists, and political figures, the Brazilian population suffered from a crisis of both quantity and quality. Eugenicists worried that their nation was “underpopulated;” vast amounts of national territory were home to sparse populations, suggesting wasted potential for Brazil to become a global power. As Brazil's most famous eugenicist Renato Kehl argued, a nation of 25,000,000 should be a nation of 500,000,000.Footnote ⁵⁸ And from the perspective of those at the top, the population that Brazil did contain did not look promising: overwhelmingly black and of mixed race; living in the poverty of the rural backlands; riddled with tropical diseases; and too disparate, unconnected, and volatile to constitute an identifiable Brazilian racial type. “Everything about Brazil is great except for its people,” affirmed Professor Netto Campello of the Recife Law School.Footnote ⁵⁹ Brazil's premier experimental scientific research center, the Oswaldo Cruz Institute, confirmed this worrisome analysis through a series of reconnaissance and medical missions into the interior, where scientific inquiries documented the environmental and infrastructural conditions of the sertão, or rural backlands.Footnote ⁶⁰ From the coastal perspective, these federally funded scientific expeditions also helped to explain why sertanejos seemed particularly prone to regional uprisings that belied the nation's claims to have consolidated an integrated, secular republic. For the intellectual elite, the most important strategy that Brazil had at its disposal to remedy this situation was to improve public health by combating disease and debility. Degeneracy was a health problem, therefore, not a strictly racial one. That is, becoming phenotypically white was only one among many changes necessary to ensure the future strength and stability of the population. Poor health, in fact, was often assumed to be a defining element of Brazilian national identity and of the Brazilian race. In the famous words of carioca (Rio de Janeiro) physician Miguel Pereira, Brazil was a “vast hospital.”Footnote ⁶¹

These invocations of “race” to mean the collective Brazilian citizenry serve as a reminder of the fluidity of the notion of “race” over time. Importantly, Brazilian national identity evolved within a highly racialized context that naturalized discrimination and inequality; therefore, these versions of “race” as nation and “race” as biological difference remained interlinked. In Brazil of the early twentieth century, “race” was not solely anchored in individual bodies; it was also a national characteristic and a shared attribute. Physicians and attorneys-in-training would have debated all of these issues related to science, race, and national progress in the classrooms of Brazil's medical and law schools. They would have deliberated over the best means of exploiting the regulatory and interventionist resources of the state to maximize Brazil's quest for population improvement, particularly among the rural and urban poor. And as the consanguinity controversy aptly demonstrated, for many who pondered the subject, worse dangers existed in the collective and familial bloodline than “inconvenient” racial origins.

All of this meant that healthy matrimonial unions and the children they would presumably produce held great significance for a young republic on the rise. Republican law tackled the health of potential marriage partners in a few different ways, and this marked a meaningful change from the imperial period in which the only reference to health in civil law forbade marriage of the impotent, castrated, or insane.Footnote ⁶² The Civil Marriage Law of 1890 gave the parents and tutors of minors the right to request a medical and vaccination record of a prospective son- or daughter-in-law before granting their consent to the marriage.Footnote ⁶³ Interestingly, the decree made no mention of adults beyond the age of majority and did not explicitly confer upon them the legal right to request or demand a similar confirmation of health. The law did provide recourse after the fact if a husband or wife learned of a spouse's pre-existing illness during the course of a marriage. Along with fraud, criminality, and misrepresentation, pre-existing illness or a “physical defect” constituted an “erro essential da pessoa” or an “essential error of the person” that could underscore a legal claim by which to request an annulment of the marriage contract.Footnote ⁶⁴ The French Civil Code had described this as a “mistake as to the personality” of a spouse.Footnote ⁶⁵ Despite the fact that this concept originated in canon law, the secular civil codes retained the notion of an error in the condition or the person of a spouse. As an “erro essential” in Brazilian law, the lack of prior knowledge of an incurable or transmissible illness was tantamount to fraudulent, deceptive, or coerced consent, and, therefore, fell within the short list of circumstances that justified a legal annulment. Beyond the guardians’ right to a prenuptial examination and the conditions for annulment, health factored only tangentially in the Republic's first legislation on marriage.

The Civil Code of 1916 pushed further into the question of healthy marriages than had the Civil Marriage Act, as was to be expected, because of the scientific orientation of its author and reviewers. Article 219 of the Code continued to define ill health as a justification for annulling the marriage contract along much the same lines as had the 1890 Law. However, Clóvis Bevilaqua and the senate committees who revised the Code found that the 1890 article permitting annulment on the grounds of an “incurable” or “transmissible” condition imprecise. For these jurists, the transmissibility of an illness justified annulment, whether it could transfer to spouses or children, not merely the seriousness of the ailment, as its gravity could vary over time and with changing medical technology.Footnote ⁶⁶ Bevilaqua initially suggested that the new code could hone and perfect the language relating to annulment by specifying impotence and “any illness that is both serious and transmissible by contagion or heredity” as the permissible conditions.Footnote ⁶⁷ This language would mirror the Portuguese Civil Code of 1867, which also made specific reference to impotence, epilepsy, and “any type of mental insanity.”Footnote ⁶⁸ In the final Brazilian version, however, impotence, epilepsy, and mental illness fell off of the list because they were not communicable conditions. Ultimately, the senate committee elected to eliminate any references to specific medical conditions. They opted instead to specify the consequences of an illness that would justify annulment—an infirmity that “places the health of a spouse or their descendants at risk”Footnote ⁶⁹—and leave the individual circumstances open for interpretation. Consequently, the architects of the new Civil Code formulated language that considered the eugenic or generational effects of disease or illness, opening space for future discoveries of new illnesses and new cures. The fact that jurists debated the transmissibility of disease and sickness and wielded the idioms of science and familial progression in defining the limits of the marriage contract reflected the broader intellectual climate of the early century and the integration of medicine and civil law.

The comparatively prominent place afforded to health and illness in republican marriage set the context for the Code's expanded consanguinity clause: Article 183, which banned marriages between third-degree relatives. No one actually knew how common these marriages were, but Senator Ruy Barbosa and like-minded colleagues felt strongly that their prevalence endangered the nation for political reasons or by compromising the health of future generations. Therefore, in 1919 when Senators Souza and Carvalho challenged the three-year-old Civil Code by proposing a revision of that article, the question of marriage between tios and sobrinhos held layered meanings for all the competing voices involved. The issue of whether the consanguineous union itself could produce ill or disabled children and the transmission of “taras” or hereditary weakness through the bloodline informed all of the medical and legal discussions over the appropriateness of Article 183. Attorneys and physicians in both camps argued along the same eugenic-inspired terms, taking for granted that the optimization, reformation, or regeneration of Brazilian individuals and families was a public imperative. What were the wider consequences of marriages within the bloodline? Was it truly the case that consanguinity had wrought degeneracy in the Brazilian family as Ruy Barbosa argued, and if so, was a ban on third-degree consanguine marriage the antidote? None of these answers was as clear as one might assume. The controversial Souza-Carvalho amendment on consanguineous marriage sparked years of scholarly and practical debate, engaging Brazil's best minds and most accomplished professionals, many of whom held key faculty and/or bureaucratic posts in new government. The debaters represented the nation's prestigious medical and legal faculties as well as the distinguished Academy of Letters, who all commissioned themselves to sort out the problem.

Neither the medical nor the legal side could reach consensus on this complex issue. Senators Souza and Carvalho called for third-degree consanguineous unions to be permissible by law if the marriage license applicants showed a compelling need to marry and had their good health affirmed by medical certification. Part of the problem behind determining the risk involved with consanguineous unions was that the science was ambiguous, allowing for competing and even contradictory conclusions. The vigorous discussion at the National Academy of Medicine that opened this article, for example, was apparently “long and erudite,” with a number of members expressing “extremist” views and “intolerance” of their colleagues’ counterpoints.Footnote ⁷⁰ Those in favor of permitting third-degree marriages, the consanguinistas such as Moncorvo Filho, supported revising the Civil Code. They argued that the assertion that unions between tios and sobrinhos produced degenerate children was based on faulty or outdated science. Moncorvo Filho himself, like many in the proconsanguinity camp, traced his position back to the Bible and to antiquity: the vigor of strong races known to have married within bloodlines such as the Persians, Egyptians, and ancient Greeks. This was a common tactic in debates over consanguinity, crafting a historical legitimacy that only confirmed the reliability of the latest scientific findings.

The consanguinistas argued that, under the most rigorous medical supervision, consanguineous marriages among strong, healthy relatives would only benefit succeeding generations. They drew upon the examples of selective breeding in plants and in animal husbandry, explaining that the scientific rules of heredity proved that vigorous traits pass from one generation to the next. They cited French, German, and American biologists and eugenicists, and even Charles Darwin himself, to insist that consanguinity alone did not cause the degeneration of the race. Had not the prodigious Darwin married his own first cousin?Footnote ⁷¹ In his own urban children's clinics in Rio de Janeiro, the Dispensário Moncorvo and the Policlínica Geral, Moncorvo Filho claimed to have personally witnessed innumerable cases of familial degeneracy that had nothing to do with marriages between blood relatives. And the physician would have good cause to know; he was the founder of the pioneering Children's Protection and Assistance Institute (Instituto de Proteção e Assistência á Infância, 1889), building on the institutional legacy of his famous father, Dr. Carlos Arthur Moncorvo de Figueiredo, the “Father of Brazilian Pediatrics.”Footnote ⁷² Moncorvo the son later went on to found the Children's Department, another landmark in Brazilian pediatric history. Just four months prior to the debate at the National Academy of Medicine, in October and November of 1918, his children's clinic opened its doors to cariocas of all ages during a voracious flu epidemic. In that short time, the clinical staff attended to 8,231 patients.Footnote ⁷³ By 1927, their total number of patients served would reach 121,346.Footnote ⁷⁴

Therefore, Moncorvo Filho professed sufficient on-the-ground experience to judge whether consanguinity had indeed “caused degeneracy in the Brazilian family.” Moreover, the families that his clinics served came predominantly from the city's poor and working classes. From the physician's experience, the most crucial eugenic battle waged among the popular classes was not related to kin marriage. Like many others, he asserted that Brazil's true degeneracy problem had its roots in tuberculosis, syphilis, and alcoholism: the infamous trio of culprits for Neo-Lamarckian eugenicists, particularly when they turned their gaze upon the poor. Not by coincidence, connecting social degeneration to tuberculosis, syphilis, and alcoholism afforded a not so subtle critique of the living conditions/hygiene, respectability, and responsibility of Brazil's urban popular classes.

Carioca physicians were not the only ones embroiled in a discussion about the importance of marriage law in spurring national progress. Beyond the closed confines of the Academy's meeting rooms in Rio de Janeiro, in other major intellectual centers, the consanguinity controversy occupied a prominent place in medical thinking. At the Medical School of Bahia, a leading center of scholarship on race and legal medicine and the counterpart in many ways to the Law School of Recife, physicians were also engaged in serious debates over consanguinity. Although legal medicine was an established area of expertise in Bahia, the debate over consanguinity introduced a new element. Rather than simply determining attenuated criminal responsibility, this perspective on legal medicine asserted physicians’ prerogative to characterize individuals who “burdened” society's resources and, most importantly, its consolidation.Footnote ⁷⁵ No one really questioned the appropriateness of state interference into family life, certainly not intervention into the lives of poor families. And Bahia's welfare state was uneven at best in the early century, so eugenicists rarely invoked the argument that the “unfit” caused institutional overload.Footnote ⁷⁶ Instead, their warning to the larger society rested on the widely shared notion that Brazilians were a nationality-in-formation, and that the last thing they needed was more deleterious inputs.

Between September of 1922 and December of 1924, the prestigious Medical Gazette of Bahia published a sixteen part series on consanguineous marriage and the Civil Code, authored by one of the journal's own editors and senior professor at the Medical School, Dr. Gonçalo Moniz.Footnote ⁷⁷ In the series, Moniz presented a complex, thought-provoking, and exhaustive review of the latest international scientific literature on consanguinity and its relation to the science of eugenics. He concluded by asserting that Brazilian law had not adopted the appropriate measures to secure optimal eugenic outcomes in future generations. If anything, Brazil's republican laws were still predicated on moral discourses of the nineteenth century and not the scientifically informed battle against degeneracy.Footnote ⁷⁸

Like Moncorvo Filho, Moniz responded to the Civil Code by arguing that there was no basis in scientific thought to support the prohibition against consanguineous marriage at the third degree of familial relation. International experts, particularly Americans and French scientists, concurred that flawed research methodologies and faulty logic plagued the study of heredity, leading to the erroneous conclusion that consanguinity itself could cause “defects” to spontaneously appear. The conditions most often attributed to consanguinity—sterility, deaf mutism, poor intelligence, retinitis pigmentosa, and mental/nervous disorders—appeared in children of related parents in the same proportions as in children of unrelated parents. Moniz and his consanguinista colleagues strongly argued that the element of kinship between parents was only relevant if degenerative traits existed within the family bloodline. Degenerative traits were hereditary, but the same laws of heredity applied to consanguineous and nonconsanguineous parentage. The crux of the argument, therefore, was that consanguinity did not create conditions, either positive or negative, but helped to manifest them.

Therefore, consanguinistas held that unions of blood relatives might or might not result in degenerate offspring. They defined two types of consanguineous marriages: “healthy” or “hygienic” unions that ensured the perpetuation of robust genes, and those they labeled “morbid” or “pathological” that were guaranteed to result in “defective” children. The supporters of Article 183 of the Civil Code, they charged, mistakenly equated consanguinity with moral or physical degeneracy. By doing so, they supported a marriage restriction that prohibited some potentially healthy unions and allowed people with hereditary “flaws” to marry without restriction. Marriages between the unhealthy and unrelated were much more numerous and, therefore, posed the greater hazard to Brazilian development. The limitations on consanguinity still meant that non-blood relatives, “quem quer que seja,” could marry freely.Footnote ⁷⁹ There was entirely too much degeneracy in Brazil to trace its cause back to consanguine marriage, consanguinistas asserted. By prohibiting unions within the third degree of kinship, the Civil Code and its proponents defined the problem too narrowly.

The Eugenic Middle Ground and the Opposition

Beyond medical journals, concerned eugenicists also took up the cause in support of revising the Civil Code. Some of these thinkers, however, charted a bit of a middle course, contending that unsuitable marriages were a cause of Brazilian degeneracy, but that consanguinity restrictions were unlikely to aid in remedying that. Anthropologist and cultural theorist Dr. Edgar Roquette-Pinto of the National Museum in Rio de Janeiro agreed with Moncorvo Filho and Moniz. For Roquette-Pinto, the insignificant number of uncles and nieces who married annually was the least of Brazil's problems. He was a vocal critic of explicitly racist theories of backwardness and saw a structural problem in Brazil's health deficiencies. According to Roquette-Pinto, Brazilian eugenicists should be more concerned with women's work in factories and its consequences for their children than with consanguinity. Roquette-Pinto's comments on mothers and children reflected another manifestation of the medical and political concern over Brazilian health, progress, and the perfection of the race in the early century. By that time, major cities such as Rio de Janeiro, Salvador da Bahia, and São Paulo had substantial and growing maternal and pronatalist movements, of which both Moncorvo Filho and his sparring partner Dr. Fernandes Magalhães, described subsequently, were major figures.Footnote ⁸⁰ For his part, Roquette-Pinto dismissed the presumed threat of third-degree unions in this way.

Roquette-Pinto, like Magalhaes before him, repeated what was common and largely uncontested “knowledge” by the 1920s: Brazil was a sick country, a “vast hospital,” where endemic and epidemic diseases were the rule among the popular classes rather than the exception. Among those classes, acquired illness and maternal health threatened the “quality” of their offspring, and a marriage restriction in the Civil Code provided no remedy for that. In this face of this major catastrophe in the base of Brazil's population, “daquelle gente toda,”Footnote ⁸² a few marriages between blood relatives seemed insignificant.

The middle ground argument rested on the assumption that marriages between tios and sobrinhos were relatively rare—an “infinitely small” portion compared with the total number of marriages annually—and that degeneracy ran rampant nonetheless. Roquette-Pinto was among several who made this argument reminding his readers that, “in general, uncles fall in love with other men's nieces.”Footnote ⁸³ Uncles who married their own nieces were the rare exceptions. Like Moniz, he asserted that the proportion of third-degree consanguineous marriages was so small as to make the legal prohibition absurd as a eugenic measure. Interestingly, Moniz was one of the few to acknowledge that the confines of civil marriage did not necessarily encompass all reproduction, supporting his point that consanguineous marriage was tangential to the larger question of eugenic procreation. According to contemporary census data, the Federal District recorded the highest proportion of marriages annually, as was to be expected, but there was no way to disaggregate those figures to determine which marriages were contracted between blood relatives. In the year of 1912, for example, 5,440 residents of the Federal District celebrated their first marriages, and these were the types of couples physicians and attorneys envisioned when they imagined from where Brazil's future children would come. That same year, the District registered the births of 26,646 children as well, of which 21,655, or 81%, were recorded as children born within the bond of wedlock.Footnote ⁸⁴ One may assume that legitimate children were much more likely to be officially registered than illegitimate ones; therefore, any data on Brazilian births was skewed and incomplete anyhow. Census records could not reveal the number of children born of wed or unwed consanguine parents; on this issue, debaters were left with inferences and guesses.

There were no statistics to confirm the prevalence of tio–sobrinho marriage in Brazil either contemporarily or historically. Therefore, the notion that third-degree consanguine marriages were a rarity was based on unsubstantiated estimations. Without any justification for the comparison, Moniz asserted that Brazil should have a rate of uncle–niece marriages around the same proportion as other “civilized” countries. For France, for example, he cited Jacques Bertillon who estimated that these unions accounted for 13 marriages per 1000.Footnote ⁸⁵ To Moniz, compulsory premarital medical certification of all potentially married couples in Brazil could prevent many more than 13 marriages per 1000, given the prevalence of disease and disability. Therefore, the mandatory premarital certification would be a more serious approach to using the law to regulate eugenic marriages than a simple consanguinity restriction.

For many Brazilian eugenicists, the controversy over consanguineous marriage was fundamentally part of that larger question of how to legislate healthy marriages and outlaw treacherous ones. Their solution was the same proposal made by eugenicists across the globe. Brazilian law needed to require a prenuptial medical examination for all couples as part of the civil marriage process. In modern, secular law, health should be the primary requirement of couples who wanted to marry, this according to renowned professor of legal medicine and public health, Dr. Afrânio Peixoto, a founding member of the São Paulo Eugenic Society and early inductee as well as fifth president of the Academy of Letters.Footnote ⁸⁶ Barring a general premarital certification, “the Civil Code does not assist and even offends [the principles of] Hygiene and Eugenics by allowing sick partners to contaminate those with good health and produce degenerate children.”Footnote ⁸⁷ Without verifying the health status of all couples by making the concession of a marriage license contingent upon medical opinion, the state was missing the most crucial opportunity to combat the birth of “defective” children. Somewhat ironically, while Peixoto and his contemporaries struggled through the implications of secular civil marriage, they fell back on a procreation rationale that seemed to recall religious notions of the purpose of the marriage union. Ultimately, in arguing for the state to mandate “medical marriage” on the basis of Brazil's need for more and better babies, they asserted that even civil marriage was primarily an institution for procreation.Footnote ⁸⁸ Moreover, by pressing for the mandatory examination, physicians positioned themselves and their professional expertise as absolutely vital to the future health and strength of the nation.

Naturally, the consanguinistas and the apologists certainly had their detractors. The majority of the anticonsanguinistas were not theoretically opposed to their rivals in terms of their understanding of human heredity. Few would argue that consanguinity itself could cause degeneracy, even though the consanguinistas accused them of misinterpreting scientific principles and making such assertions. In truth, opponents countered that the risk involved in permitting consanguineous marriages was simply too great for Brazil to allow third-degree unions. Prominent obstetrician Dr. Fernando Magalhães of the Medical School of Rio de Janeiro, for example, voiced his rather hostile disagreement to Moncorvo Filho at the 1919 Academy meeting. Like Moncorvo Filho, Magalhães was on the front lines of the maternalist and pronatalist movement himself, and his experience was not limited to the classroom either. The year prior, in 1918, he founded a maternal assistance organization called Pro-Matre, which eventually spawned affiliates across Brazil; therefore, Magalhães also spoke with the authority of direct patient contact.Footnote ⁸⁹ Magalhães admonished his colleague for using too many rhetorical and historical (unscientific) arguments in his presentation and took offense at Moncorvo Filho's references to selective breeding drawn from the animal kingdom. The comparison with genetic research on animals was actually common in discourses on consanguinity in human beings, obviously because controlled experimentation was possible with animals, but the physician charged that cattle, lamb, and pigs had nothing to do with Brazilians, and that the comparison was vulgar and insulting.

Most of all, Magalhães contended that the current state of the Brazilian population was too precarious to allow for even possibly negative outcomes. “We are in the midst of a campaign of regeneration, of the modification of our race. We must fight against many factors so that years from now this race can be strong. Our race is riddled with a multitude of illnesses…Is this the type of country that should permit consanguineous marriages?”Footnote ⁹⁰ Furthermore, Moncorvo Filho and Magalhães had a heated exchange over the distinction between a sick nation and a degenerate one, with each physician accusing the other of labeling Brazilians as retrograde degenerates. Moncorvo Filho accused his colleague of conflating illness with degeneracy in defense of the legal ban on third-degree consanguinity. Magalhães fired back that he had never argued that Brazilians were a degenerate race, but that it was well known that they were a sick one. He charged that no one would dare assert the contrary.

This dispute over the distinction between illness and degeneracy was actually quite telling. The physicians accused each other of mistaking sickness for backwardness because both of their contributions to the meeting did confuse the issue. This conflation was common in Brazilian medicine of the time, as physicians often vacillated as to whether the appearance of diseases, particularly chronic ones, was the cause or the result of “backwardness.” The prominence of Neo-Lamarckism in Brazilian eugenic thinking encouraged this confusion because many considered “vice” an inheritable condition. Therefore, the science itself was somewhat slippery, and often upheld a certain moral condemnation of the Brazilian populace that was reminiscent of older conceptions of “racial degeneracy” from which twentieth century Brazilian intellectuals attempted to break away. Illustrating this morality/eugenics murkiness in the consanguinity debate, Magalhães stated, “the very desire for this type of third degree consanguineous marriage, between an uncle and a niece, is more than enough evidence of degeneracy because on the issue of affective sentiment, the civilized man does not regress, only the savage man does.”Footnote ⁹¹ For Magalhães, there was basically too much at stake on the issue of consanguineous marriage; a race-in-formation could not allow its civil laws to compromise on such fundamental matters.

Like others in the anticonsanguinista camp, he also questioned the process of identifying hereditary illnesses and “defects” and Brazil's capacity to comprehensively enact the premarital medical certification. Opponents of loosening the consanguinity restrictions argued that all such marriages should be outlawed as a precautionary measure, because the medical examination could be incorrect, imprecise, or fraudulent. The only way to confidently prevent “dysgenic” consanguineous unions was to forbid all of them. What was scientifically sound might be impractical, because Brazil was not France, even though many may have wished it to be. Therefore, these professionals chose to mitigate their faith in scientific rationale with their perception of Brazilian realities. On this topic, Magalhães and other anticonsanguinistas anticipated a similar debate that arose ten years later when the Senate actually did consider mandating a prenuptial medical examination. At that time, the dissonance also centered on pragmatic issues. Legislators eventually agreed that the requirement was not viable because it would be unjust to Brazilians living in regions without regular access to a medical professional.Footnote ⁹² In the early century, however, the practically of access was less of an issue for the debaters. For his part, Moncorvo Filho balked at his rival's suggestion that some physicians might falsify the certification for personal gain, incredulous that a member of that same community could disparage their ascending profession.

Although Moncorvo Filho admonished his colleague's audacity, several attorneys likewise questioned Brazilian physicians’ capacity to comprehensively enact the regulations and policies emanating from Rio de Janeiro. For these critics, requiring a prenuptial examination as a prerequisite to legally contracting a consanguine marriage may have sounded feasible on paper, but they doubted whether all physicians could be entrusted with the task of administering those tests. Specifically, they charged that a mandatory prenuptial examination was an unrealistic safeguard against “dysgenic” marriages because physicians practicing beyond the littoral centers of the urban south were ill-equipped and even ill-disposed to properly carry out medical examinations, thus making a farce of the examination requirement. “The backwardness, crudeness, and ignorance of the interior populace” was apparently common wisdom among the professionals of the coast who, by contrast or inversion, saw urban physicians as up to date, disinterested, and immune to corruption or undue influence.Footnote ⁹³ Both consanguinistas and anticonsanguinistas drew upon this line of argumentation to contend either that the incapacity of the interior meant that Brazil could not comprehensively enact a compulsory examination or that the failures of some physicians should not nullify the examination requirement altogether. Moncorvo Filho and Peixoto in Rio de Janeiro, for example, as well as Moniz in Bahia, strongly asserted that the possibility of mistakes should not eliminate the state-mandated premarital medical examination as a strategy against degeneracy.Footnote ⁹⁴ Medical and legal thinkers, who presumed professional inadequacy in the interior, suggested that special arrangements or exceptions be established for areas without physicians, or those overrun with presumed incompetent ones.

Obviously, the lawyers’ denigration of rural physicians provides yet another reminder of the professionalization issues at play in these debates. Whereas physicians consistently proclaimed the absolute centrality of their expertise and practice to the regeneration of the Brazilian people, the attorneys were not so sure that they were prepared to handle that responsibility. As scientific theories increasingly encroached upon jurisprudence, many legal experts felt as equally adept as their medical counterparts to translate those theories into civil legislation, or even more so. Despite strong arguments in support and in opposition to it, the Senate proved unwilling to debate a mandatory prenuptial examination along with the proposed revision of Article 183. Looking beyond the turf battle between physicians and attorneys, however, the denigration of Brazil's rural physicians was but one manifestation of that larger discourse on the supposed backwardness, superstition, and stagnation of the nation's interior that was in full swing by the 1910s as previously described. The trope of national incapacity was both regionalized and racialized, and as this aspect of the marriage controversy demonstrates, could even be hurled at members of Brazil's small professional class. This imagined divide between interior and coastal “civilization” was a recurrent theme in Old Republican politics and had pivotal policy and budgetary implications for Brazilian science, medicine, and public health infrastructure. Therefore, as this article has argued, this internal medical-legal debate over consanguinity and prenuptial examinations bore elements of those more concrete and longer-term developments.

Consanguineous Marriage and the “Liberalization of Kinship”Footnote ⁹⁵

In the Senate, the discordance continued. In response to Souza and Carvalho's proposal to allow certain third-degree marriages, the Senate commissioned the Institute of Brazilian Attorneys to mount an investigation into the arguments in favor and against the modification of Article 183. The Institute devoted several sessions to discussion of the proposal and even refused Monsenhor Fernando Rangel's request to address their membership as they deliberated, rejecting the precedent the Monsenhor's speech would set, and likely hoping to avoid the allegation of church influence over their conclusion.Footnote ⁹⁶ Following their investigation, the Institute's committee of ten ultimately concluded that the consanguine marriage ban was a “moral, scientific, and just measure,” and their decision was nearly unanimous.Footnote ⁹⁷ The committee presented their conclusion before the Senate and successfully lobbied lawmakers to reject the proposed change in the Civil Code. Like the physicians, the lawyers and jurists also built their arguments on the legitimacy of scientific theories of heredity, although the legal debate illustrated explicit concerns over Brazilian patriarchalism in the vein of Barbosa. Even though they voted in support of Article 183 as written, the lawyers contemplated the place of legislative interventions into family life to a greater degree than did the physicians. Physicians expected the state to fulfill a reformist role in the Brazilian family as well, but many of them already pursued eugenic social change through their engagement with nongovernmental, philanthropic organizations funded by private benefactors. Despite these differences, the attorneys certainly held opinions on Article 183 that were as vehement as those of their medical counterparts.

The Institute's commission lauded the third-degree consanguinity restriction, which they referred to as “Ruy's Amendment,” acknowledging that this new impediment was the brainchild of their colleague and former president Senator Barbosa. Their collective opinion reflected the same biological rationale for maintaining the ban on third-degree unions that allied physicians also professed. They quoted noteworthy treatises on the issue, insisting that “the mixture of blood is a physiological rule” making marriages between tios and sobrinhos “unjustifiable.”Footnote ⁹⁸ Their conclusion argued that such unions compromised “the organic integrity of the genitors” and therefore produced “defective offspring” whose birth weakened the race.Footnote ⁹⁹

Interestingly, beyond the supposed science behind Ruy's Amendment, the Institute's representatives espoused the relationship between consanguine marriage and the traditional exceptions and privileges afforded to Brazil's wealthiest citizens. Legal experts were quick to repudiate the familial strategy of accumulating and safeguarding generational resources via consanguineous marriages. Like Senator Barbosa, they agreed that intrafamilial unions were predominantly a means of protecting generational wealth—a tired relic of Brazil's seigniorial past—and as such the law bore no responsibility to protect these marriages if they were detrimental to the nation as a whole.Footnote ¹⁰⁰ In addition, relaxing the impediment by allowing dispensations as Souza and Carvalho proposed would only benefit those at the top, because Brazilian politicians’ own approach to the law was “noncompliance.”Footnote ¹⁰¹ Therefore, in the opinion of the Institute's committee, allowing politicians to determine exceptions to the consanguinity law would only “aid the powerful and their relatives in the attempt to further amplify their family patrimony.”Footnote ¹⁰² Following Senator Barbosa's lead, these legal experts also saw the marriage restriction in terms of a political critique of the Republic and the continuing concentration of power and privilege.

It may seem that by establishing limitations on patriarchs to contracting marriages and dispensing of their financial assets as they saw fit, the new consanguinity law in the Civil Code existed in tension with the rights and responsibilities of male heads of family as outlined in that same piece of legislation. However, the Civil Code absolutely codified the patriarchal mandate, patrio poder. One contemporary decried the Code as “despotically patriarchal.”Footnote ¹⁰³ The 1916 law authorized unions between couples who could theoretically fulfill the expected roles of male breadwinner and female child-bearer, and myriad examples illustrate the codification of patriarchy in Brazil's modern civil law. In an extended section on the rights and duties of married couples, the Code decreed men's authority over wives and children, as the “head,” “legal representative,” “provider,” and “administrator” of the Brazilian family.Footnote ¹⁰⁴ By law, married women were “relatively incapable,” and precluded from accepting work or residence outside the family home, executing contracts, or managing property and inheritance without the consent of their husbands.Footnote ¹⁰⁵ In the Code, both parents were jointly granted veto power over their children's choice of marriage partner.Footnote ¹⁰⁶ Parents maintained the right to negotiate, broker, or prohibit their children's marriage choices, but families seeking to reinforce the bond with unions between tios and sobrinhos found an absolute restriction in the law.

Rather than a challenge to patriarchy, it is more accurate to read the response to Article 183 as some lawmakers attempting to extract patriarchal rights (gendered hierarchies within families) from patriarchalism (society-wide hierarchies of authority commanded by powerful family patriarchs). As explicitly stated in the Institute's official opinion, the attorneys associated kin marriages with elite privilege and the concentration of political power and economic resources. Within families, restricting this privilege also meant weakening senior men's ability to exert authority over younger men, including their own sons. Looking at longer-term trends, these familial politics of gender and generation had been evident in Brazilian legislation since the early century. In 1831, the age of majority was reduced from 25 to 21, meaning that unmarried adult children would be freed of parental authority (patrio poder) at a younger age. The Civil Code also raised the age of consent to marry, reducing parents’ ability to arrange marriages.Footnote ¹⁰⁷ Beyond individual families, instigating the “demise of patriarchalism”Footnote ¹⁰⁸ worked in the favor of those seeking more open competition over resources in Brazil. Obviously, this mission also reflected the growing autonomy of a professional middle class, who desired a move away from the closed politics of the empire to a political and economic system that valued competition and merit.Footnote ¹⁰⁹ This opening would logically provide economic and political opportunities to middle-class professionals. Many, although certainly not all, of the “Men of Science” could be accurately labeled as middle class given their family backgrounds. However, collectively, these thinkers cast their lot with the liberal cause and the priorities of a new sector of professionals. From this perspective, opposing any change to Ruy's Amendment contested Brazilian patriarchalism, whereas the Code as a whole safeguarded most elements of Brazilian patriarchy.

Only one member of the Institute's commission voted apart in response to the Senate query, and two others appended written opinions to the group one. Their individual submissions ran along the standard lines of consanguinista and pro-premarital examination argumentation. Of the individual opinions, those of Jayme Carneiro Leão de Vasconcellos and Levi Carneiro warrant mention, not because either took a radical view, but precisely because their objections articulated the same premises of Brazilian liberalism but from different entry points. Neither Vasconcellos nor Carneiro wrote of individualism or the right to administer private property without legal interference. Clientelism and patronage were so deeply cemented that perhaps individual liberty seemed incongruous within a debate over social relations, and the familial property defense bore too many similarities to those of Brazil's apologists for slavery of a generation prior.Footnote ¹¹⁰ Rather, both used the consanguinity controversy to express concerns about the role of law in Brazil's new society. Vasconcellos argued that because marriages between aunts and their nephews and uncles and their nieces were typical in Brazil, legislators overstepped the boundaries of their social role by attempting to ban them. Worse still, the consanguinity clause was added to the Civil Code without convening any type of open forum to gauge public opinion on the matter. It was the duty of a properly functioning legislative body to carefully consider the nation's culture and never to “introduce laws contrary to its sentiment.”Footnote ¹¹¹ By failing to consider the will of the people, “the Congress forgot its position as a representative of the people.”Footnote ¹¹² Somewhat ironically, Vasconcellos obviously felt justified in appropriating and defending the voice of the people even though the debate over the science and the legalities behind Article 183 was a closed conversation.

Carneiro wrote in favor of intermediate steps before the introduction of a full third-degree consanguinity ban. Civil marriage had already usurped a family matter from the traditional domain of the church, and in his opinion, the state should adhere more closely to Brazilian customs if legislators hoped to win the compliance and goodwill of the populace.Footnote ¹¹³ The Civil Code should allow for dispensations in the consanguinity clause, therefore, because Republican laws should progress slowly and more closely approximate canonical precedents. For Carneiro, because most of the population esteemed ecclesiastical laws, and given the strength of church influence over the culture and habits of families, the state risked losing its legitimacy if Republican laws were all-or-nothing and left no room for special circumstances. Rather than inalienable, the law should be malleable, individual, specific to Brazil's reality, and responsive to new developments in science. Leaving this space for discretion, situation, and consideration of familial customs would perpetuate the much older notion of employing sound reason. Moreover, because the public “fears change,” a slowly evolving civil order would also fulfill an educational role, gradually training the populace until more strict legislation could be introduced.Footnote ¹¹⁴ Unlike those who cited international precedents, Carneiro strongly disagreed that simply imitating and importing foreign legal models was sufficient to achieve the necessary domestic transformations. “Do not assume that the translation of the Swiss Code [into Portuguese] will miraculously better us.”Footnote ¹¹⁵ Therefore, even on the question of consanguine marriages, Carneiro, like many others, conceived of the law as a form of tutelage and uplift, one further tool to advance Brazil on the road to progress as embodied by secular, rational, and scientific family modalities.

In the end, Vasconcellos's and Carneiro's interventions did not sway the collective. The Senate concurred with the Institute of Attorneys’ strong recommendation opposing any change in the statutes or language of Article 183. Marriages between tios and sobrinhos would remain illegal, at least in the short term. Like their physician counterparts, the legal professionals gave serious and careful consideration to the possible ramifications of third-degree consanguine marriages before reaching their opinion. And like the physicians, they ultimately relied on their understanding of scientific theories of heredity and their individual and shared visions of what Brazil and Brazilians were and should be. The raging controversy over whether uncles could marry their own nieces and aunts their own nephews demonstrates that, even for those without medical training, the actual and potential state of the nation's health and its future children became one of the principal concerns guiding civil legal process. In the end, the congressional committee found the ban “moral, scientific, and just,” and, therefore, the perfect compromise of the idioms of the church, technical methodology, and the law. For Brazilian jurisprudence, these modes were not just compatible, but overlapping.

By refusing to budge on the third-degree consanguinity restriction, moreover, lawmakers demonstrated that they intended to restrict the space afforded for individual legal exceptions in the Republic, at least on this issue. Although it meant contravening familial customs, jurists ultimately decided that hygienic families and scientifically verifiable legal policies were more vital to Brazil than the preservation of tradition.Footnote ¹¹⁶ And similarly, they ruled in favor of standardization of process over individual exemptions, which they assumed challenged the financial interests of Brazil's wealthy and powerful. In upholding the restriction against third-degree unions, the Senate satisfied the demands of science (in some interpretations) as well as gave a nod of affirmation to the political aspirations of many legal experts themselves. As Sueann Caulfield has argued, this generation of republican jurists “reinforce[d] key patriarchal traditions in ways that allowed them to sustain both liberal democratic ideals and the eugenic and disciplinary goals of the state.”Footnote ¹¹⁷

Eugenic Marriages as “Order and Progress”

When Moncorvo Filho labeled consanguineous marriage “the issue of the day” on August 28, 1919, he indulged in only a little bit of hyperbole. It certainly was true that Brazil's foremost medical and legal minds, including those assembled in the hallowed halls of the National Academy of Medicine on that date, were determined to hash out whether unions between blood relatives were treacherous or benign. And the deliberations were repeated at the Institute of Attorneys, on the floor of the Senate, and on the writing desks of dozens of affiliated physicians and attorneys who committed their thoughts to paper and contributed to the larger discussion on the revision of the Civil Code. In summary, consanguinistas and anticonsanguinistas quarreled over whether there was a scientific basis for branding third-degree kinship marriages as distinct from non-kin marriages under equal conditions. But the scientific dispute became a platform for reproducing and reifying a number of assumptions and fissures inherent in the consolidation of Brazil's First Republic. As much as the backlash against Article 183 or its proposed revocation was part of a eugenic debate, competing interests tackled the subject as a means of characterizing the Brazilian population, the science of state-building, the purpose and processes of civil law, and the place of all three in the new Republic.

For many physicians and attorneys, if Brazilians married “well,” if they considered their own health and the health and strength of future generations when making private decisions about family structure, the nation would proceed firmly on the path toward social evolution. Interestingly, although rival physicians and lawyers disagreed over the causes or symptoms of Brazilian degeneracy, neither side argued for absolute individual rights or a simple continuation of religious prohibitions. In these conceptions, marriage choice was a question of the greater good, fundamental to the consolidation of an emerging modern, liberal nation. Brazilians needed to be encouraged to select appropriate and healthy partners, and the state could use civil law to police their decisions at the extremes. In this way, the consanguinity debates shed light upon the complex motivations and meanings behind the Civil Code. In the Republic, the state inserted itself into realms where it formerly had limited purview and used scientific and population management paradigms to justify those new mandates. Beyond this, physicians and attorneys argued for more than just secularization, they urged the state to proactively intervene into family dynamics in ways that would change the nature of the Brazilian population. Via consanguinity in civil law, intellectuals and lawmakers considered the eugenic regeneration of average Brazilians, and on the other end of the spectrum, the societal repercussions of the internal affairs of the nation's wealthiest families. The need for this change was so dire that it superseded the rights of the church and those of influential patriarchs, even if those interventions would disrupt the possibility of using the marriage contract to consolidate resources in traditional ways.

Regardless of their perspective on marriage restrictions, all of these intellectuals framed their opinions within a dialogue about which state actions would best contribute to the quest to ward off Brazilian backwardness. Backwardness, as they defined it, was not only to be found in individuals and communities, but also in outdated modes of social, political, and economic organization. Therefore, both sides debated on the same terms, including many individuals who otherwise held quite distinct ideas about what a “regenerated” Brazil would look like, certainly in racial terms. While consanguineous marriages puzzled eugenicists around the world, in Brazil, physicians, lawyers, and other intellectuals weighed the possible results of these unions in light of a very specific interpretation of Brazil as a work-in-progress. Many assumed that the “modernization” of family life, public health, and the traditional system of seigniorial patriarchalism were integral elements of the evolution to a new type of society. This interpretation had a number of immediate and longer-term implications. Family-based eugenic projects were underway on the state level in many regions, but the federalism and limited reach of the Old Republican administrations prevented large-scale national family initiatives. Nonetheless, subjecting family dynamics to scientific evaluation and senate approval was a precedent set with the establishment of the Republic, supported by the medicalization of certain new directives of the state. These precedents are vital to understanding the political context of the period as it related to the masses of Brazilian citizens and the ambitious liberal professionals. Under the enforced consensus of President Vargas in the 1930s and 1940s, these ideologies bore even more institutional and juridical fruit. Vargas and his supporters would use the same eugenic arguments to rescind the unconditional restriction against third-degree marriages in 1941.Footnote ¹¹⁸