Reconstructing the functioning of the justice system in colonial Brazil means at one and the same time mapping the power structures of that period, recognizing deeply-rooted bad habits, and observing the formation of an elite who would remain dominant until the early decades of the 20th century. This defines the book Direito e justiça em terras d’el rei na São Paulo colonial 1709-1822 (Law and Justice in the Lands of the King in Colonial São Paulo 1709-1822) by Adelto Gonçalves, published in July 2015 by the Official Press of the São Paulo State government. Discovering and describing the attributes of the members of a network of power who served as ouvidores (magistrates), circuit court judges, superintendents of charitable institutions, ordinary judges, and city councilmen was one of the primary objectives of Gonçalves, who is following a recent trend in Brazilian historiography “that pays special attention to research into the methods of governing.”
The author, however, is not a historian but became familiar with the period he studied while studying its literature. A retired journalist, Gonçalves holds a PhD in Portuguese Language and Literature from the University of São Paulo (USP) and until 2014 was teaching Portuguese as part of the law curriculum at Paulista University (Unip) in Santos. That institution financed his research into colonial justice in São Paulo. His interest in the subject was sparked by his doctoral research about poet and member of the inconfidencia (disloyalty) movement Tomás Antônio Gonzaga (1744-1810) and postdoctoral studies about Portuguese poet Manuel Maria de Barbosa du Bocage (1765-1805), the latter carried out with funding from FAPESP. Gonzaga was a magistrate in Vila Rica, and Bocage’s father made his career in the Judiciary in Portugal until he was accused of misconduct and fell into political disgrace. Gonzaga’s research at the Overseas Historical Archives and the National Archives of Torre do Tombo, in Lisbon—supplemented by studies at the São Paulo State Archives—enabled him to identify the duties assigned to the higher-ranking employees of the state, starting with a complete list of governors and captains-general (posts held concurrently by the same individual) during the studied period and correcting mistakes in earlier lists.
“I continued to survey the nobility of this land, the people who ran things and appealed to the justice system to obtain privileges, such as offices and titles,” the researcher says. These were the so-called “good old boys,” “who took full advantage of their relationships with the representatives of power.” From this caste came the city councilmen—members of the municipal chambers—who, until the end of the 17th century accumulated administrative functions along with their exercise of ordinary justice. In general, the vilas (towns) in both Portugal and the colonies, supported only one ordinary judge and an orphans’ judge. In Brazil, criminal cases were handled by the former, who based their decisions only on custom and usage. Often the chambers did not even have an appropriate meeting site. “Judgments were handed down under the trees by authorities who didn’t have any background in law and had no one to consult because rarely was there anyone in the colonies who had studied law,” says Gonçalves. Those officials were called “juizes pedâneos” because they were standing when they announced their decisions.
The figure of ouvidor-geral (chief magistrate) already existed in that period, created by a 1628 regulation that revoked the powers attributed to holders of inherited captaincy titles (capitães donatários) to practice justice within their geographical domains. The regular dispatch of ouvidores and circuit court judges by Portugal, however, did not happen until the 18th century. “For the first time, there were specialists in law from the University of Coimbra who had been entrusted with regulating and standardizing the execution of Justice,” says Gonçalves. In the interests of encouraging morality, magistrates were not allowed to marry women who resided in Brazil without authorization from the Crown, in order not to become involved with the powerful families and their business interests. “But they ended up getting involved anyway,” the researcher says. “And, over time, prosperous families began to send their sons to study in Coimbra and then, upon return, be ready to assume a position as circuit court judge.”
In practice, only the poor were convicted by the colonial justice system. According to a 1669 rule, the magistrate had authority to carry out the death penalty, without permitting any appeal, for crimes committed by slaves and Indians. But if a judge or magistrate tried to punish a major landowner, he was taking a risk. “Those who enjoyed prestige or had done favors for the Crown were untouchable.”
A magistrate could not be arrested or suspended from duty by any local authority, not even the captain-general. His decisions were not actually based on formalized laws. It was not until issuance of the Regimento dos ouvidores-gerais do Rio de Janeiro, in 1669 and the Regimento dos ouvidores de São Paulo, in 1770 (regulations governing the chief magistrates of Rio de Janeiro and later the magistrates of São Paulo) that we find explicit references to the widespread application of principles. It was also because of those decrees that the chief magistrate came to hold the highest civilian post in the overseas Portuguese possessions. There were two levels of appeals: The Tribunal de Relação of Bahia and the Casa da Suplicação in Lisbon, but rarely did cases get past the original jurisdiction.
Magistrates had enormous economic power in their hands, since it was their responsibility to oversee collection of taxes and other sources of revenue. Since the previous century, most of Portugal’s income had come from the colonies or customs offices. The magistrate also had the task of auditing expenditures and overseeing the activities of city councilmen and ordinary judges—although they could not interfere with the functions of the Câmara (Chamber) which by then had seen its autonomous functions reduced to the execution of minor construction projects. The power of the Chamber members, who were sons and grandsons of the original elites, remained more or less symbolic. “Those posts were held by those potentates that would come to be called ‘coronéis’ (colonels) decades later,” Gonçalves says.
The power in the hands of the agents of the Crown was so great that, in order to obtain and maintain unjustified privileges and resources, they raised the possibility of encouraging the secession of the Colony. “Portugal was, strictly speaking, a poor country in those days,” says Gonçalves. “It had no army or other means to squelch rebellions by force.” That was how the ranks of “gross debtors” proliferated. These were local authorities who would divert taxes until the Crown, in order to recover that “debt,” entered in an agreement in order to be at least partially repaid. According to Gonçalves, “the fundamental issue lay in the very fragility of the monarchy which, in order to survive, always left room for actions taken under the protection of the State itself.”
The dominant historical narrative itself—until a few decades ago—conveys signs of that model. While wealthy squatters and, to a certain point, allies of the Crown were identified as pioneers who tamed the wilderness, the workers who occupied those lands were “invaders” or “intruders.” “As the documents show, judges almost always used the law to interpret letters of donation and revoke allocations, inheritances, and subdivisions of lands in accordance with the interests of powerful local individuals,” says the researcher.
Another aspect of the justice system in São Paulo during the same historical period is the subject of a research project underway at the Department of Classical and Vernacular Languages of the USP School of Philosophy, Literature and Human Sciences (FFLCH). A group of researchers coordinated by Professor Marcelo Módolo is busy reviewing documents that record years-old proceedings related to the alleged practice of witchcraft. The project, entitled Bruxas paulistas: edição filológica de documentação sobre feitiçaria (São Paulo Witches: A Scholarly Edition of Documentation about Witchcraft), consists of the study and transcription of 12 proceedings of that type that were opened between 1739 and 1771 by the ecclesiastical courts, an arm of the Tribunal do Santo Ofício (Inquisição) (Court of the Holy See – Inquisition) in Brazil. The documents were stored in the Archives of the Metropolitan São Paulo Curia.
The ecclesiastical justice system functioned in parallel with the ordinary justice system, but that system accepted the decisions of the former, inasmuch as the State had adopted the Catholic faith. Ecclesiastical prosecutors and judges were members of the Church who evaluated accusations, conducted investigations, and handed down sentences. Execution of those sentences was the responsibility of the ordinary justice system. “The procedures resembled today’s police inquiries,” explains doctoral candidate in Language and Literature Nathalia Reis Fernandes, a member of the research group who had earned undergraduate degrees in language and literature, and in law. Possible penalties included death and the forfeiture of property—in those cases, the case was sent to the headquarters of the Tribunal do Santo Ofício in Portugal. That was what happened with two of the cases studied, but it is impossible, from the documentation accessible in Brazil, to determine whether they resulted in executions.
The defendants were almost always black, and many of the charges were connected with the practice of African religions. Some cases allegedly related to deaths, like that of the female slave Páscoa, accused of “using magic” to cause at least four deaths in a single family. Others are more banal, such as the case of Pascoal José de Moura, a slave (one of the few defendants identified in the documents by both given name and surname), who was prosecuted for making straw baskets. “There is also a case of a group of black men who were arrested for taking part in a batuque, or typical African dance, that featured a goat and a turtle shell,” Módolo recalls.
The study coordinated by Módolo is now in the philological and linguistic phase that begins with the “semidiplomatic” transcription of the documents during which an attempt is made to maintain the original spelling and syntax. The work is made difficult by gaps caused by deterioration of the material, a particularly complicated calligraphy, and the challenging spelling habits that prevailed in a time when literate persons were a minority and strict adherence to standards for written language was lacking. A second phase is expected to focus on the historiographical repercussions of the proceedings recounted in the documents.
Gonçalves, Adelto. Direito e Justiça em terras d’El Rei na São Paulo colonial 1709-1822. Imprensa Oficial. São Paulo, 2015