Law, Colonial Systems of, Portuguese Empire

Early modern Portuguese society was multicultural; it emerged from a period of reconquest against the Muslims and was home to communities of Jews. Through a slow process of conquest and political consolidation, from the twelfth to the fourteenth centuries, the Portuguese Crown claimed sovereignty over the territories that make up its modern borders. Conquest and political domination of the most western portion of the Iberian Peninsula was concomitant with the development of a legal system reflected in the Portuguese Law Code.

Up until the fourteenth century, several statutes had already been promulgated and in 1446 were codified in the so-called Ordenações Afonsinas during the reign of Afonso V (1432–1481). As new laws arose, it became necessary to amend old ones. In 1521 Dom Manuel I (1469–1521) promulgated the Ordenações Manuelinas, which became one of the crucial instruments in the governing of the overseas Portuguese colonies. There was rigid crown control of justice and of land ownership, solidified by the supremacy of royal agents over local authorities. The Casa da Suplicação and the Desembargo do Paço (both appeal courts located in Lisbon) constituted the highest level of the judiciary in the Portuguese Empire, and from their location in Lisbon they controlled the distant and often difficult colonial system. Various laws and institutions were created within this framework with the aim of controlling the problems posed by administering colonies.

Portuguese colonization followed two basic patterns. In Asia, the Portuguese would conquer cities and then monopolize trade, whereas in Africa and the Americas they occupied extensive territories in which European political organization was superimposed on existing indigenous societies. The development of commerce in East Asia naturally involved the need for specialized administrative entities and thus the Casa da India (House of India) was created in 1503 in Lisbon.

The creation of the Casa da India resulted in the centralization of overseas trade within Lisbon, which became the locus for all administration and trade with India. This included the export of goods to India, the import of Asian products and their distribution within Portugal and throughout Europe, and the collection of custom fees in the name of the king. Further, Lisbon became the administrative center for the naming of functionaries and the promulgation of crown directives. In the case of Africa, control of the slave trade was overseen by the Casa dos Escravos (House of the Slaves), created as a separate entity in 1486.

On the American continent, the colonial Portuguese administration produced a series of laws, provisions, and royal orders specific to that situation. The territory that was to become Brazil was an immense geographical expanse. Moreover, the indigenous peoples posed a new situation for the Portuguese legal codes. Coming under the banner of Christianization of the Indians, enslavement of Indians dates to the beginning of Portuguese colonization in the Americas in 1530. Though the enslavement of Indians was discouraged, it was only with the arrival of the Jesuits in 1549 that indigenous slavery was strenuously opposed.

The Jesuits established the aldeamento system, the practice of settling and Christianizing Indians in supervised villages. In the ensuing battle with secular Portuguese colonists over control of Indian populations, the Jesuits relied heavily on support from the crown. However, unlike the Spanish colonies in the Americas, the Indians never possessed their own colonial tribunal. Considered vassals of the Portuguese king, the Indians' complaints were made via petitions directly to the king, who ordered an investigation of the complaint. Officially, only Indians captured in "just" wars could be enslaved, although in reality indigenous slavery was practiced throughout colonial Portuguese America.

Thus, in the sixteenth century, after the promulgation of the Ordenações Manuelinas (codex, collection of laws written when D. Manuel I was the king), additional laws were created to regulate new colonial aspects not covered in the old legislation. This enormous quantity of laws led to the Leis Extravagantes (a complementary collection) compiled in 1569. Upon the unification of Iberia in 1580 under the Spanish Crown, Philip II of Spain (Philip I of Portugal, 1527–1599) carefully guarded his royal prerogatives and political authority over Portugal, though he showed good will toward the Portuguese by granting them a measure of autonomy in reforming their legal system.

After the unification, a commission completed the revision of the Ordenações Manuelinas, including the Leis Extravagantes, around 1595. It was not until 1603 that a new code—the Ordenações Filipinas (also a collection of laws written when Philip I was the king)—was issued. In the seventeenth century, the principal change for the colonies was the transformation of the old Conselho da India (1604) into the Conselho Ultramarino (Council for Oversea Affairs) in 1643. The expansion of this new administrative institution resulted from the increasing importance of Brazil over India; all matters and business pertaining to the colonies were now referred to the Conselho Ultramarino.

Consequently, the crown drew up a deliberate strategy of creating structures endowed with ill-defined jurisdictions intended to act as checks on one another. The repeated approvals and consultations required by the traditional administrative procedures hampered Portuguese rule on the periphery of its empire, especially in situations that required flexibility, as in the event of military threats.

Moreover, the temporary nature of administrative appointments throughout the empire gave the latter a makeshift quality that hindered the establishment of stable power structures and made it rely excessively on charismatic personalities. It seemed as if, instead of a strong empire relying on well-defined areas of responsibility, the crown preferred a precarious arrangement in which mutual vertical and horizontal surveillance among officials safeguarded the power of the supreme authority. A consistent royal policy of imposing overlapping jurisdictions and the accumulation of authority in chosen figures, paradoxically, led to a relatively weak but centralized empire in which the thicket of intermediate levels of authority became a structure capable of managing day-to-day matters, while the base structures required that a reasonable degree of decision making remained essential for the empire's survival.

In Brazil, the structure of Native American societies appeared politically disorganized to the Portuguese. This resulted in not only more direct political intervention, but also the barring of any form of self-government on the part of the Indians, thus making the importation of European political and administrative practice inevitable.

Soon after colonization began, the need for overseas appeals courts became apparent in order to process local cases, and additionally to alleviate the cumbersome and inefficient practice of appealing cases in the colonies all the way back to Lisbon. Thus the Tribunal da Relação (appeal court located in the colonies) was established in Goa (India) in 1544, in Bahia (Brazil) in 1609, and nearly a century and a half later in Rio de Janeiro (Brazil) in 1750. The judges were legal scholars who had studied at the University of Coimbra, Portugal's oldest and most prestigious university.

In Coimbra, legal studies were a process of socialization intended to engender loyalty to the crown. It is worthy of notice that during the modern period Coimbra possessed the only law school in the entire Portuguese Empire. All colonial judges, whether of metropolitan or colonial birth, attended this school. Legal training was not permitted for students whose parents plied manual trades or worked as retail merchants.

When, in 1640, Portugal once again became independent of Spain, control over the colonies intensified and juizes de fora (judges from outside) were appointed in the main towns for three-year terms. Whereas historians have traditionally regarded these judges as agents of the crown that impinged on municipal powers, more recently the juizes de fora have been considered homogenizers of the legal and administrative parameters imposed by the central authority. Juizes de fora were established in Goa in 1688, Bahia in 1696, Rio de Janeiro in 1703, and Luanda (Angola) in 1722. While their original duties were restricted to investigating losses to the Royal Treasury, they soon extended their purview to encompass all kinds of actions.

New analysis shows that the appeals courts lacked the power required to curb the excesses of unruly priests. The civil courts were indeed entitled to issue decrees to ecclesiastical courts, as well as intervene in them, but the courts exercised no decisive power over bishops. Appeals to Portugal were lengthy procedures, and pending final resolution, the bishop was free to do as he pleased. Lacking any institutionalized means of control, the civil court would resort to harassment or the withholding of priestly salaries. But the bishops possessed the far greater power to pronounce excommunication or interdict (a Roman Catholic form of censure), and did not hesitate to employ them in the pursuit of the church's goals.

There is no doubt that conflicts between the appeals courts and the other state organs hampered the courts' effectiveness in the conduct of their judicial business. Although personal clashes and spite contributed to this deplorable state of affairs, they do not suffice to explain it. Portuguese colonial administration was afflicted above all by an absence of well-defined spheres of authority, indeed often by contradictions between overlapping jurisdictions. The intentional powerlessness of local authorities made them dependent at all times upon edicts from a distant metropolis that they were forced to consult for every major decision. At times, the situation was aggravated by conflicting goals, as in the case of state-church disputes, but also, within the civil administration itself, by rivalry between the appeals courts and treasury officials.

see also Empire in the Americas, Portuguese; Empire, Portuguese.

BIBLIOGRAPHY

Benton, Lauren. Law and Colonial Cultures: Legal Regimes in the World History, 1400–1900. Cambridge, U.K., and New York: Cambridge University Press, 2002.

Bethencourt, Francisco, and Kirti Chaudhuri, eds. História da expansão Portuguesa. 5 vols. Lisbon, Peru: Circulo de Leitura, 1998–2000.

Caetano, Marcelo. O Conselho Ultramarino: Esboço da sua história. Lisbon, Peru: Agência-Geral do Ultramar, 1967.

Mattoso, José ed. História de Portugal. Lisbon, Peru: Editorial Estampa, 1993–1994.

Mommsen, Wolfgang J., and J. A. de Moor, eds. European Expansion and Law: The Encounter of European and Indigenous Law in 19th and 20th Century Africa and Asia. Oxford and New York: BERG, 1992.

Mommsen, Wolfgang J., and Jürgen Osterhammel. Imperialism and After: Continuities and Discontinuites. London and Boston: Allen & Unwin, 1986.

Schwartz, Stuart B. Sovereignty and Society in Colonial Brazil: The High Court of Bahia and its Judges, 1609–1751. Berkeley: University of California Press, 1973.