Justice Administration in Early Modern P

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PJSS 12 (2) pp. 179–193 Intellect Limited 2013

Portuguese Journal of Social Science

Volume 12 Number 2

© 2013 Intellect Ltd Article. English language. doi: 10.1386/pjss.12.2.179_1

NuNo CamariNhas

Faculdade de Direito, Universidade Nova de Lisboa, Portugal

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This article uses the magistracy in early modern Portugal to show a distinctive char-acter in the Portuguese imperial experience that resided in an intense circulation ofagents between the kingdom and the colonies. By stressing its early bureaucraticnature, which comes from the notion of royal service, it starts by sketching the

institutional framework established during the seventeenth and eighteenth centuries,both in the kingdom and in the colonial domains. It draws a profile of the magistratesthat served the crown in this system, emphasizing their heterogeneous character.

Finally, using methodologies borrowed from social network analysis, it tries to mapthe bureaucratic network created throughout the period in an effort to identify recur-rences in the movement of agents as well as the absence of movement between givenplaces. The result is a map of judicial bureaucracy in the Portuguese empire.

After finishing his studies in Coimbra, the only university under the Portuguesemonarchy, the candidate to the magistracy knew that, sooner or later, he could

end up being nominated to serve in the most remote jurisdiction deep in theheart of the Brazilian colony, in Africa, in India or in any of the kingdom’s

Keywords

magistracy judicial systemcolonial administrationbureaucratic networks

institutional historytemporal networks

1. This work was fundedby our FCT post-doctoral fellowship(SFRH/BPD/27071/2006)and the INTERGROUPSresearch project (PTDC/HIS-HIS/118227/2010)


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Atlantic archipelagos. In early modern Portugal, the mid-eighteenth century,the judicial apparatus knew its largest extension, reproducing and expanding astructure overseas that had been established in continental Portugal since thelate fifteenth century. It was managed centrally from Lisbon, and it observeda hierarchical structure that spanned almost every territory under Portugueserule. Inside this increasingly complex apparatus, the highest judicial agents –

the judges – circulated in a regular basis due to a system of temporary nomi-nations that expected service to last three years in order to prevent corruptionand misconduct.

This article will use data from our research into early modern Portuguese judicial administration, but will extend its analysis on the concepts of agentcirculation and bureaucratic networks. This data was collected to constructa comprehensive prosopographic database covering the Portuguese magis-tracy from 1620 to 1800 and which served as means for developing our studyof Portuguese judges during the ancien régime (Camarinhas 2010). As for theanalysis, we will try to convey some improvements that emerged from discus-sions with colleagues working in colonial administration, early modern power

systems and social networks.2The focal point of our first analysis of early modern Portuguese judiciary

was its centrality in administration and, hence, in the power architectureconstructed from the Middle Ages until the ancien régime ; Portugal being anexample of what had been described for France, Spain or Italy in the sameperiod (Autrand 1981; Pelorson 1980; Rovito 1981). Western Europeanmonarchies under civil law granted a distinctive place to this highly special-ized group, whose legal expertise was indispensable to the king and hisgovernment. Early modern juridical thought in this region saw the king’sactivity as an act of producing justice between the parties and ensuring toeach and every one their position in the social hierarchy and their privileges

and rights deriving from their status (Hespanha 1994; 2002). In societies that were organized in social bodies, each with its own privileges, a complex juxta-position of jurisdictions emerged, each one aimed at preserving each body’srights and duties. The role of the crown was to guarantee this set-up and sothe jurists, with their unique skills for interpreting and decoding legal textsand concepts, played a crucial part in government and administration.

Jurists were present in almost every institution of the power organiza-tion in early modern Portugal. Like the well-known examples of France orSpain, the Portuguese crown created, throughout the early modern period, apolysynodal system of governance – that is, a governing structure based oncouncils and courts. Each of these institutions dealt with different common

responsibilities of the crown (state, war, finances, justice, overseas) as well asother domains that were typical of ancien régime societies (religious orthodoxyor conscience issues, for example) or that derived from different elements of theroyal family (the queen, the prince). Every council or court headed a particularorganization that spread, hierarchically, from the centre to the periphery andfrom the top to the bottom of a scale of power and competencies.

The presence of jurists – or even judges – was not an exclusive of justice-related councils or courts. In fact, not only were they present in other spheresof governance, but also those other structures reproduced the functioning andthe practice of courts.

At the top of the organization, we find a constellation of councils wherethe Desembargo do Paço, the Supreme Court that gave a stage to the royal

virtues of grace and mercy to temper the judicial decisions produced by the

2. We would like to thankSílvia Lara (Unicamp),Maria FernandaBicalho (UniversidadeFederal Fluminense)and Fernanda Olival(CIDEHUS, Universidadede Évora) for discussing

our findings and fortheir suggestions forimproving our analysis.


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regular courts, occupied a distinctive place. Every enumeration of councils written during the seventeenth or eighteenth centuries would give it the firstrow; in every public demonstration of the early modern social order (a proces-sion, a coronation, a royal wedding, a royal funeral), the members of theDesembargo do Paço were entitled to a position among the principal figuresof the monarchy. As its name suggests, it was housed in the royal palace and

during the early years was presided over by the king. Although of a regal char-acter, since it conveyed the king’s magnanimity, it consisted mainly of jurists.Not only did they help the king in tempering judges’ actions, but they alsoparticipated in the management of the judicial apparatus within this council.

Alongside this high court, there were the classic councils of state (Conselhode Estado or do Rei, created in 1562 during the infancy of King Sebastian),

war (Conselho da Guerra, created in 1640 following the restoration of thePortuguese crown), finances (Conselho da Fazenda, created during the reignof Philip I). The presence of magistrates in these three institutions, thoughsmaller than in the justice-related courts, tended to increase throughout theseventeenth and eighteenth centuries. In the case of the council of state, the

number of jurists tended to grow each time there was an attempt to increase itsimportance (the reformations of the 1760s and 1790s), normally with magis-trates co-opted from the Desembargo do Paço. In contrast, the war council

was essentially reserved to the nobility and the military, with just a seat for aman of law (also co-opted). In the finance council the number of magistrates

was more stable, since this council had several seats reserved for jurists.The fifth council in the symbolic hierarchy of the Portuguese monarchy

was the Mesa da Consciência e Ordens (created in 1532). It was a specialtribunal created to deal with the matters of the king’s conscience: religion,

welfare, assistance, charity, education and later, following the integration ofthe military orders in the Portuguese crown, jurisdiction over its members. It

was, in fact, a court of last resort in matters concerning knights of the militaryorders. Its judicial nature justified the strong presence of magistrates amongits members, which was also quite regular during the period.

There was also a council devoted to overseas matters (ConselhoUltramarino, created in 1642, re-establishing the India council that onlyexisted for ten years from 1604 to 1614). Initially thought to have a three-quarter predominance of non-jurist members, it quickly changed from thebeginning of the eighteenth century, when the jurist members were doublethe others. These were often recruited among the magistrates with colonialexperience.

Finally, the last great council of the Portuguese monarchy: the Conselho

Geral do Tribunal do Santo Ofício, the Inquisition, authorized in Portugal byPope Paul III in 1547. By its nature it was a hybrid court, containing bothecclesiastical and regal members. Their power was delegated by the pope andits members were essentially clergymen, but it was the king who personallyappointed the general inquisitor (and was consulted on the others). There

were few magistrates in this court and certain inquisitors were co-opted toserve on the high courts or councils.

Also at the centre, although a few degrees lower, were the appeal courts, which introduces us to the strictly judicial structure of early-modern Portugueseadministration. By the end of the ancien régime , the Portuguese crown hadfive appeal courts: two in continental Portugal, one in India and two in Brazil.The highest court, the Casa da Suplicação, was located in Lisbon. It had bothtrial and appellate jurisdictions and had jurisdiction over Lisbon as the first


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resort for matters taking place within the royal court; was a court of secondinstance for appeals from the city; an appeal court for part of central and allof southern Portugal, the Atlantic islands and the territories in western Africa;and was the court of last resort for appeals from other appeal courts withinthe kingdom. It was still possible to appeal to the Desembargo do Paço, butthis was more as an appeal to the king’s grace than as a judicial appeal. With

specific territorial jurisdictions, the other appeal courts covered the remain-ing territories under Portuguese rule: Oporto with jurisdiction over northernand central Portugal; Bahia, at first responsible for the entire Brazilian colony,then from the mid-eighteenth century for its northern part alone, with Rio de

Janeiro taking responsibility for southern Brazil; and Goa, which had jurisdic-tion over the eastern Portuguese state and the territories of eastern Africa.Each of these courts had its team of judges, desembargadores , who could servepermanently or as supernumeraries. As soon as a judge achieved the rank ofmember of an appeal court, his appointment became lifelong rather than thethree-year terms granted lower level judges. On becoming a desembargador the judge entered the highest level of the career. Their progress then followed

a hierarchical path through the different appeal courts, from the peripheryto the centre, from the colonies to the kingdom, ending in Lisbon. Once inLisbon, the desembargador would have access to seats in different councils,according to previous experience and the social capital acquired.

Below this structure there were a variety of inferior jurisdictions establish-ing royal law at the local level. These were organized into districts (comarcas if they were under direct crown jurisdiction, or ouvidorias if they were underother jurisdictions, such as the church, the nobility, etc.). Each district hadits own judges (corregedores or ouvidores ) who were a second instance formatters arising from the inferior level. This district network covered the entirekingdom, but was sparse in the overseas territories. Its transposition to colo-

nial Portugal was slow, diffuse, and tended to concentrate only on the mostpopulous regions of the empire. First, in the seventeenth century, on strategicpoints on the sea route to India; then, with constant growth throughout theeighteenth century, in Brazil, particularly in the gold mining region and thelarger cities.

The local stage of justice administration took place at the municipalities’level by a judge called a juiz de fora. Its name derived from the fact he wasnominated from outside, that is, by the crown and not the local council. Thissort of jurisdiction did not cover the entire territory. In fact, these judges werepresent in fewer than half of the municipalities in metropolitan Portugal, andrarely in the colonies. In Portugal, they were present in the main cities and

towns, and in some municipalities under a few seignorialisms. The rest ofthe municipalities had non-learned judges, selected from the local elites andelected by the local councils.

The network of municipal judges was more or less stable during thisperiod – the creation of new local judges being the consequence of conflictsbetween the crown and the nobility. In the colonies, the creation of local

judges is more dynamic, following the economic growth trend of the differentcolonies, especially in Brazil, where the judicial apparatus reached the highestlevel of complexity in the empire.

As for the agents who served the judicial administration, we will refer onlyto the magistrates, as it was they who embodied the legal function. We donot yet have sufficient information on the lower ranking officers who assisted

judges in their daily work, so it remains difficult to elaborate their profiles.


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3. This way, the crownconstituted a reserveof candidates whowere obliged to acceptoverseas appointment,in case of shortage ofcandidates for such aposition.

4. In the total universeof 5,853 candidatesbetween 1620 and1800, only 2 per centfailed their exams.In fact, there was anopportunity for thosewho failed to resit theexam, with those whodid usually passing.The 2 per cent figurerepresents only thosewho never passed theexam.

5. This is a group lackinga specific category inthe sources, but whichis normally describedas ‘farmers’, ‘peoplewho profit from theirpossessions’, ‘peoplewho normally serve thehonorific offices of thetown’, ‘people who livelike noblemen’.

However, as far as the magistrates are concerned, we have a wealth of dataallowing us to draw a rather comprehensive portrait. Since they were in acareer controlled centrally by the crown, they belonged to the highest learnedsocial strata, and were an omnipresent and upwardly mobile social entity thatleft an extensive record that is easily accessible to the historian.

Between the early seventeenth and the end of the eighteenth centuries,

more than 4,000 individuals served as magistrates of the Portuguese crown.They shared in common the fact they had a degree in law (either civil orcanon) from the same university, Coimbra. The majority had to take an exam-ination to enter a judicial career. After completing their studies in Coimbra,they had to prove they fulfilled the criteria established by law to become amagistrate, which included not only the academic track, but also social, moraland religious integrity, financial wealth and ethnic purity. Prior to the exam,a personal investigation was conducted on their background to identify anyinconsistency and any trace of Jewish or any other ethnic or religious back-ground. The magistracy was highly regarded, almost as a sacred function,hence its officials should possess an almost immaculate profile in respect

of their morality, religion and social status. Any religious or ethnic irregu-larity would, of course, automatically prevent admission to the profession.Objections would be raised against those who came from families with lessnoble occupations (mecânicos ). In such cases the candidate could demand anexemption, which the king would normally concede in exchange of a writtenagreement to serve overseas.3

After this process, the candidates were examined by the Desembargo doPaço, the central body of the Portuguese magistracy, in what seems a long-lasting statement of institutional primacy over the university than a real selec-tion process.4 The group that emerged from this complex process was far fromhomogeneous, but we can still pinpoint some important similarities. There is

an overwhelming presence of magistrates born in Lisbon, but the weight ofthe capital should be understood both in the light of the city’s demographyand its political and bureaucratic attractiveness – a large part of the familiesof Lisbon-born judges were from other regions, particularly from the north-

west and centre of the country. The Lisbon and Coimbra region were impor-tant contributors to the magistracy, as were Oporto and the central region(Beira). A fact that escaped the attention of historians until quite recently, wasthe growing number of Brazil-born individuals within the magistracy, people

whose rise during the mid-eighteenth century was to make them the second-largest group, just behind those from the capital. The enormous migrationfluxes towards the South American colony since the early 1700s, the determi-

nation of its elites to engage their sons in the crown’s bureaucracy, and thegrowth of the local judicial apparatus can explain this trend.The existence of dynasties of magistrates in early-modern Portugal has

often been noted. There is certainly an element of generational continuity inthe service of justice. Either we find a direct succession (i.e. sons or nephewsfollowing their fathers’ or uncles’ footsteps in the magistracy) or, more often,the construction of real family strategies (a new magistrate marrying thedaughter of an established magistrate). Besides this almost endogen repro-duction, our data on the origins of the magistrates shows there is an equallymeaningful number of local landholding elites, predominantly from thenorthern and central regions of Portugal, in the creation of new magistrates.5 These important families sent their second sons to university to try for a careerin law. We also find that in the magistrates’ social background, there was a


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6. Almost 5 per cent ofthe candidates tothe magistracy hadto request a royalexemption becauseof their lower-classbackground.

7. Ordenações Filipinas(Liv. I, tit. XCVII and Liv.II, tit. XLVI).

8. We can even seemagistrates involved inthis type of transaction,but always as thebuyer or seller of minoroffices at clerk level(Camarinhas 2010:212–14).

large number of military, doctors and, towards the end of the seventeenthcentury, of merchants. At the lower end of the social strata, we find also asmall group of those whose family background would hardly allow them tobecome magistrates: those who descended from lower-class workers (shop-keepers, surgeons, sailors, shoemakers, potters, blacksmiths or goldsmiths).6 Ifthey had a good university record and agreed to serve in the colonies, should

it prove necessary, they could be admitted to the career by the king’s grace.The administration of justice as a magistrate ascribed an almost noble

status on the holders of these offices – the higher the rank, the higher thenoble status. While a local judge participated in the local administration asone of their most distinguished men, a desembargador had, by right, a positionthat was typical of the non-titled nobility. In public ceremonies or demon-strations, they would be seated in the better seats, close to the king and thearistocracy. The second half of the seventeenth century, following the restora-tion of the Portuguese crown, and the entire eighteenth century, was a periodduring which the judiciary was established as a power group. In addition totheir involvement in the crown’s decision-making processes, their symbolic

power and social position were closely knitted with those of the ruling elites. At first, as a social body – their position derives from the group they belongto – but if we concentrate on the magistrates’ dynasties and their constantpresence within the central courts and councils and their ability to reach fornobility, by the mid-eighteenth century we witness the emergence of magis-trates with higher social rank largely because of their own personal symbolicand social capital.

It was a long and hard road from the local jurisdictions to the centralcouncils; so long and hard that very few magistrates were able to walk it.

When we observe the number of judges who served the crown it is easy tonote the existence of three profiles: (1) those who served only a few terms

at the lower jurisdictions; (2) those who managed to achieve a real careerspanning from local administration to the appeal courts; and (3) those whoreached the higher courts and councils. This difference of patterns is oftenrelated to a difference of background. In other words, the lack of homogene-ity in the group is plainly visible in this dissimilarity of patterns: in the formercategory are those magistrates who came from non-judicial backgrounds,

while those in the latter came from the juridical dynasties. These individuals would normally enter the service at a higher level, skipping stages to accessthe appeal courts – and hence lifelong nominations – at a much earlier age,thereby allowing them to pursue careers in the central courts and councils.Between these two groups were those who populated the judicial system with

their knowledge and experience. We will now describe how this circulation took place, what the possibleroutes were, which were more or less frequent and how the colonial serviceplayed a role in career development. Early-modern Portugal is an interest-ing case because of the precocious nature of the bureaucratic judicial service.Unlike other early modern civil law judicial administrations (such as theSpanish and the French monarchies), in Portugal, the magistracies were notthe property of their holders. Venality was forbidden by law, even if there werestrategies allowing this prohibition for some types of offices or honours to becircumvented (Hespanha 1994).7 It was possible to dissimulate the acquisitionof an office of registrar or notary through several mechanisms that have beendescribed elsewhere (Stumpf and Chaturvedula 2012; Olival 2001).8 Whilethere may have been an active market for such lower offices, magistracies were


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hardly ever transacted because of their almost religious-like status, the admin-istration of justice being seen as a way of pursuing God’s work on earth. It

was prevented not only by law but also by action, through the Desembargo doPaço. The magistracies were attributed by nomination, issued directly by theking or a delegated official. Unlike with the clerk offices, which were grantedfor life, magistracies until the rank of desembargador , had a fixed term of three

years and were served as long as it was the crown’s will. It was a service;hence it had a temporary nature. It was not the judge’s property, nor could heinherit it or transmit it to his children. At the end of a term, the Desembargodo Paço would hold an inquiry into the outgoing magistrate to evaluate hisconduct and competence. Any subsequent promotion would depend on theresult of this inquiry. The short duration of the term was thought to preventcorruption and an excessive association with local matters that would harmthe practice of justice.

Since judicial posts were seen as temporary positions, there was an exten-sive rotation of occupants. Another aspect contributing to the bureaucraticcharacter of the Portuguese judicial apparatus was the notion of career that

derived from the practice of promotion. In fact, there was an unwritten rulethat was strictly observed: each position should end with promotion to amore senior position. This resulted in the practice of consistent bureaucraticpromotion. The judicial institutional set-up offered a varied array of postsinserted within the jurisdictional hierarchy described above. Running in paral-lel, there was also a symbolic hierarchy that complemented the former, estab-lishing different ranks between posts that were jurisdictional equivalents. Forinstance, all juizes de fora were equal to each other, that is, there was no hierar-chical subordination between them, and each of their jurisdictions was underthe same superior jurisdiction (corregedor or ouvidor , in this case). However,there was an implicit ranking of posts according to the importance of the place

where they resided. A juiz de fora in a small municipality should advance tothe same post in a major town, for example. Posts in the seat of a district weremore important than posts in common places. Posts in what was called ‘firstbench places’ – i.e. cities or towns that had the right to sit on the first benchesin the cortes (parliament) – gave access to higher level jurisdictions.

In this configuration, there were many possibilities for movement betweenplaces. The number of places, the multiplicity of categories and the frequentintervention of the crown in promotions make it difficult to consider theexistence of a single career model. The routes were almost infinite. Unlikeother career models, there was no unique pattern of succession of posts. It ispossible, however, to determine general rules of progression that are always

applied by the central management of the Desembargo do Paço. The logicbehind the promotion of any judge was the attribution of larger jurisdictions.There was never any kind of demotion. The central management wouldconsider the judge’s service record in order to assign him to an appropriatenew post, which was always an improvement over the one he had just left.

A typical career course would start at lower level judicature at a smallmunicipality followed by a judicature at a bigger municipality, then promo-tion to a district jurisdiction, arrival at a ‘first bench’ post and a promotionto an appeal court in continental Portugal. Access to the status of desembar-

gador would mean moving through several courts and councils within thePortuguese monarchy. However, this ‘typical route’ was seldom taken. Inpractice it was much more complex. On the one hand there were the contin-gencies of management – shortage of vacant posts, accidents, reappointments


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9. There were sixteendemands forexemption fromserving the Goaappeal court, mainlyin the 1680s and1690s. Sometimesthese exemptions

were upheld, but itwas also possiblethey be refused, withthe magistrate beingsuspended from crownservice.

10. We have the strikingexample of InácioDias Madeira, who in1732 invoked healthproblems in order to beexempted from serviceas desembargador inGoa, and who endedup being nominated tothe Bahia appeal court(ANTT, Chancelaria de João V , l.80 and l.92).

11. In 1646 a shiptransporting threenewly-appointeddesembargadores toGoa was shipwreckedon its way to India(the loss of thesemagistrates ismentioned in thenominations thatfollowed) (ANTT,

Chancelaria de JoãoIV , l.17). In 1761, JoãoVieira de Andrade wasappointed to serveas ouvidor in CapeVerde after his twopredecessors diedshortly after beingsworn in the office(BNP f.306).

12. Laws dated 28 July 1620and 18 January 1665 onmagistrates appointedto the appeal courtin Goa on their first

nomination, Silva(1854–59), vol. III, p. 24and vol. VIII, p. 98.

due to logistic difficulties – on the other, there was the ancien régime’s way ofdoing things, with the constant appeal to one’s rights or the magic-like inter-

vention of the king to transform things, re-establishing what was right. Often,the Desembargo do Paço would toy with the existence of different ranks inthe same jurisdiction to meet the constant promotion logic. For instance, anoutgoing juiz de fora could receive a nomination for the same kind of magis-

tracy but in a more important place (from juiz de fora in a small municipalityto juiz de fora in the district capital). If there was any difficulty in finding newposts available (or if the crown considered him useful for the post), he couldalso be reappointed in the same post, with the promise of a greater promotionat the end of the second term.

These promises were a procedure to compensate occasional difficul-ties involving nominations. A similar procedure was used more consistently

when it came to nominating a magistrate to the colonies. Due to the dangersof travel and the difficulty of adaptation to different geographies that oftenmeant risking their own life, magistrates nominated to serve in the coloniesoften refused to go. This refusal took the form of a demand to be excused from

service, made to the king via the Desembargo do Paço. They would gener-ally argue health problems to justify their refusal to serve overseas. Certainplaces in the Portuguese empire, such as Goa and Cape Verde, were morefeared than others. At some times in the late seventeenth to mid-eighteenthcenturies, nominations for Goa – even for desembargador – were refused sooften that the crown had to resort to less experienced magistrates to fill thepositions.9 The political situation in India, with periods of open armed conflictand sieges on the city, made it an especially dangerous post.10 At other times,the deaths of newly sworn-in magistrates, due to tropical illnesses or a disasterat sea, would cause difficulties in appointing a judge.11

These dangers were obviously known to all the candidates. At the same time,

a great number of colonial posts were being created. To set up a new jurisdiction was always a difficult task; setting it up overseas, where the bureaucratic network was weak and with little support from other magistrates, was more difficult still.Since the mid-seventeenth century the church had established a series of advan-tages to complement service in the colonies: longer terms (normally six years),higher salaries and, probably the most important, a guaranteed promotion toa ‘first bench’ post, or even a place on an appeal court and the rank of desem-bargador , at the end of the term – in other words, access to a position for life.In this way service in the colonies offered a career short cut, as a way of skip-ping stages and becoming a desembargador much sooner. The Brazilian appealcourts were the main destination for these promotions, and hence it acted as a

route to the top level of the judiciary. Some trajectories were quite impressive.Goa’s appeal court was the most astonishing – service there could transform afreshly-graduated student from Coimbra into a desembargador , as a result of theaforementioned difficulty in finding candidates willing to make the journey. Inthe 1620s and the 1660s the crown published proclamations reminding of thedanger of appointing inexperienced magistrates to serve in the Indian appealcourt, but to no avail.12 In other cases, a term in the colonies could mean a quickpromotion to an appeal court. Agostinho Félix Santos Capelo, for example, whohad served as a juiz de fora in the Algarve until 1736, was desembargador in Bahiain 1747, after just one term as provedor in Sergipe d’El-Rei, also in Brazil.

When the judicial apparatus in Brazil reached its maturity in the secondhalf of the eighteenth century, with both appeal courts in action and anextended set of jurisdictions in place, the frequency of people passing through


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colonial posts increased. However, at the turn of the century there wasa clearly visible integration of colonial posts for magistrates on the regularcareer path. This integration, the perception of the overseas judicial admin-istration as an extension of the kingdom and hence of the intense circulationof agents between the kingdom and colonies, is a peculiar phenomenon ofthe Portuguese imperial experience: an intense demographic mobility towards

the colonies (especially Brazil) and the precociously bureaucratic nature of theadministration that contributed to it.

The figures we include in this article are a first attempt at mapping the circu-lation of justice agents within the empire. Before analysing them we need topresent an explanation of the methodology followed to create them. We applieda social network analysis approach to the different steps in the magistrates’careers called ‘two-mode affiliation’. This method is used to analyse the pres-ence of different actors in a given set of events, namely the membership of agroup of actors in different macro-structures such as clubs or institutions, andto view the structural network that can be drawn from those memberships. Inour study, the actors are the magistrates who had at least one appointment to

serve in any colonial judicial post between 1620 and 1800, with the event beingthe posts in which they served. In the figures, the nodes represent posts and thelinks represent the movement of agents between them. Each time two differentposts share an actor, that is, each time an actor moves from one post to another,

we say there is a link between them. The heavier the line, the more frequent themovement. By creating a matrix with all the movements from these agents, weare able to draw a network of movement between places. This network would be

very complex and difficult to read due to the inter-crossing of links and the largenumber of nodes. It would also induce a distortion because it would combinemovements over a long period. For this reason we introduced four time captures:1620–1650, 1650–1700, 1700–1750 and 1750–1800. We also limited the graph to

exclude those nodes with fewer than five actors between them and to show onlylinks representing three or more connections. Each node in the colonial spacerepresents one actual post, but nodes in the kingdom represent a category ofpost in order to allow a clearer reading. In order to make the mapping more self-explanatory, we superimposed the networks on a world map. The geographicalposition of the colonial nodes is an approximation and, since we are dealing withcategories, the nodes in the ‘kingdom space’ are entirely non-geographic. Here,

we are interested in exploring the imperial circulation; therefore, the kingdomonly interests us in its connections with the colonies.

The first figure shows a rather rudimentary network. It covers a periodfrom 1620 to 1650, when the colonial judiciary apparatus was just being

implemented. In that period the crown nominated magistrates with juris-diction over large territories, often only at appeal or second resort level. Thefigure of the ouvidor prevailed, with very few local judges and only an appealcourt in colonial territories: Goa. Circulation is rare and tends to concentrateat only three points: India, Brazil and northern Africa. The circuit normallybegins in peripheral posts within the kingdom, an appointment to the colo-nies and an eventual return to the kingdom via the Oporto appeal court. Thelarger frequency of moves takes place between peripheral posts in the king-dom and the appeal court in Goa.

The next period saw the first increase in the complexity of the colonial judi-cial apparatus. Brazil had an appeal court in Bahia; several local jurisdictionshad been created in Brazil and in Africa; and the posts on the Atlanticarchipelagos now had a regular track of nominations. We begin observing


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communications between colonial posts: particularly an interesting connec-tion between Angola and Bahia, but also in Pernambuco and in Rio de Janeiro.The connections between kingdom and colonies begin to get more complex,

with clear pre- and post-colonial stages. For instance, there are very frequentcommunications between peripheral posts in the kingdom and the desembargador in the Goa appeal court, and between this court and the Oporto appeal

court or the Casa da Suplicação. Other frequent connections exist betweenperipheral posts in the kingdom and the Bahia appeal court.

The first half of the eighteenth century was witness to the intense growth ofthe network but there seems to have been no change in the trend: more posi-tions were created in new places in Brazil and new jurisdictions were createdin territories in which the crown’s law was already present. There were somecommunications between colonial posts (the link between Angola and Bahiaremained) but there was no increase in this type of movement. There wasan increase in the number of posts and in the frequency of connections, butnot in connections in the sense that the overwhelming majority of the links

were established between the kingdom and the colonies and the other way

around. This period, however, marked the emergence of the presence of the Atlantic islands, with Madeira, the Azores, Cape Verde and even São Tomébeing present in the most important communicating posts.

The second half of the eighteenth century witnessed an intensificationof the links between Brazil and Portugal. The North Atlantic posts tend todisappear; the African posts turn towards the kingdom, while Brazil, with itsgrowing judicial apparatus, virtually reflects the complexity that existed in thekingdom. We can see there are some links in the South American colony,particularly between the Pernambuco and Bahia regions and Rio de Janeiro.

At the beginning of the nineteenth century the Portuguese crown entereda period of crisis, following the three Napoleonic invasions (1807–08, 1809

and 1810–11) that forced the royal family and its court to move to Brazil. Theyremained in the colony until 1821, one year before Brazil become independent.The transfer also meant the relocation of some of the central institutions to –or, at least, the creation of mirror institutions in – Rio de Janeiro. The manage-ment of the judicial administration system would carry on, although with areduction in the frequency of nominations and promotions. If we were todraw a map of the network during these two decades, it would have only afew nodes due to the considerable stagnation in nominations, connecting themore important points in Brazil (Rio, Bahia and Pernambuco), Angola andCape Verde to the kingdom, either to the peripheral posts, or to the appealcourts and councils.

If we consider the main trends in the evolution of the network we see thatthe flow is essentially from the peripheral posts in the kingdom towards thecolonies and back, to more senior levels, with only a few interconnectionsbetween colonial posts. The mapping we did here is interesting because ofthe connections it shows and also those it does not show. A connection that isnever present is that between the eastern and the western part of the empire.

We never record a recurrent link between India and Brazil, or even betweenIndia and western Africa, during the period being studied. We see somecommunication between Africa and Brazil, but never between the PortugueseState of India and the western territories of the empire. This is because bothsides of the empire were directly connected to Lisbon. From either side of theempire, the crown’s agents could only be promoted if they were nominatedfor an office in the kingdom. Portuguese India, with its viceroyalty status, was


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perhaps a step ahead of the rest of the empire in dignity. Its magistrates couldbe promoted to the Casa da Suplicação, whereas the magistrates serving inBrazil would normally have to spend a term at the Oporto appeal court.

This attempt at mapping relations should be understood as a way of high-lighting patterns, of showing privileged relations between institutional loca-tions and of identifying the inexistence of connections with others. It should not

convey a distorted idea that connectedness ruled the network. As we said, thegraphs we present here are elaborated upon recurring relations, whereas theadministration of justice in the Portuguese empire was also served by one-offmagistrates who served in one or two positions before disappearing. However,the data we present here represents nearly two-thirds of all overseas careers.

We can easily grasp the formation and growth of a judicial system thatis being implemented over time in different parts of the Portuguese empire.Through it circulate men and ways of governing, of thinking, mind-sets. Inthe early eighteenth century it is present in every region of the empire, locatedin strategic points of the territories under Portuguese rule. The growth of the

judicial apparatus closely follows the dynamics of the Portuguese empire, with

Brazil acting almost as an extension of the kingdom. Towards the end of theperiod being studied it even receives the crown and its court. In connectingthese territories, and connecting the kingdom to these territories, we find thefigure of the judges, these agents who act in the name of the king’s law, circu-lating back-and-forth in a quest for personal promotion. A judicial system that

was also an administration system and a governance system, co-ordinatedfrom Lisbon, but, considering the size of the territory, with enormous leewayto act autonomously and, often, at the fringes of the king’s will.

Figure 1.


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Figure 2.

Figure 3.


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Legend for the figures:

Kingdom: Minas Gerais region:

1B – First bench posts A – Ouvidor in Rio das Mortes

Cons – Central Council posts B – Ouvidor in Serro Frio

Cons Ultr – Overseas Council C – Ouvidor in Cuiabá

CS – Casa da Suplicação D – Ouvidor in Sabará

DP – Desembargo do Paço E – Intendente in Minas region

Outros – Non-judicial posts F – Ouvidor in Ouro Preto

OutrosJus – Other judicial posts G – Intendente in Goiás

Perif – Periphery posts H – Juiz de fora in Ribeirão do CarmoRP – Relação do Porto I – Intendente in Sabará

Susp – Suspension from service J – Intendente in Serro Frio

Univ – University post K – Ouvidor in Goiás

L – Intendente in Ouro Preto

Pernambuco region:M – Ouvidor in Minas Gerais

W – Juiz de fora in Pernambuco

X – Corregedor in Pernambuco Bahia region:

Y – Ouvidor in Pernambuco 1 – Juiz de fora in Bahia

Z – Superintendent in Pernambuco 2 – Ouvidor in Bahia

3 – Superintendent in Bahia

Figure 4.


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Nuno Camarinhas

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RefeRences

Autrand, F. (1981), Naissance d’un Grand Corps d’État: Les Gens du Parlement deParis, 1345–1454/Birth of a Great State Corps: The People of the Parliament ofParis, 1345–1454 , Paris: Publications de la Sorbonne.

Camarinhas, N. (2010), Juízes e Administração da Justiça no Antigo Regime:

Portugal e o Império Colonial, Séculos XVII–XVIII / Judges and the Administrationof Justice in the Ancien Regime: Portugal and the Colonial Empire, 17th and18th centuries , Lisbon: Fundação Calouste Gulbenkian/Fundação para aCiência e a Tecnologia.

Hespanha, A. M. (1994), As Vésperas do Leviathan: Instituições e poder politico,Portugal, Século XVII /The Eve of Leviathan: Institutions and Political Power,17th-century Portugal , Coimbra: Almedina.

Hespanha, A. M. (2002), ‘Early modern law and the anthropological imagi-nation of old European culture’, in J. A. Marino (ed.), Early ModernHistory and the Social Sciences: Testing the Limits of Braudel’s Mediterranean ,Kirksville, MO: Truman State University Press.

Olival, F. (2001), As Ordens Militares e o Estado Moderno: Honra, Mercêe Venalidade em Portugal (1641–1789)/The Military Orders and the Modern State: Honour, Mercy and Venality in Portugal (1641–1798) , Lisbon:Estar.

Pelorson, J.-M. (1980), Les Letrados: Juristes Castillans sous Philippe III –Recherches sur leur Place dans la Société, la Culture et l’État/The Literate:Castilian Jurists under Philip III – Research into their Place in Society, Cultureand the State , Poitiers: Université de Poitiers.

Rovito, P. L. (1981), Respublica dei Togati: Giuristi e Societá nella Napoli delSeicento/Togati’s Republic: Lawyers and Society in 16th-century Naples ,Naples: Jovene.

Silva, J. J. de A. e (1854–59), Collecção Chronologica da Legislação Portugueza/Chronological Collection of Portuguese Legislation , 8 vols, Lisbon: Imprensade J. J. A. Silva.

Stumpf, R. and Chaturvedula, N. (eds) (2012), Cargos e Ofícios nas MonarquiasIbéricas: Provimento, Controlo e Venalidade (Séculos XVII–XVIII)/Offices andOfficials in the Iberian Monarchies: Supply, Control and Venality (17th and18th centuries) , Lisbon: CHAM.

suggested citation

Camarinhas, N. (2013), ‘Justice administration in early modern Portugal:Kingdom and empire in a bureaucratic continuum’, Portuguese Journal ofSocial Science 12: 2, pp. 179–193, doi: 10.1386/pjss.12.2.179_1

General: 4 – Corregedor in BahiaCorr – Judge inspector 5 – Desembargador in Bahia appeal

court

JF – Juiz de fora 6 – Chancellor in Bahia appeal courtO – Ouvidor 7 – Ouvidor in South Bahia

Prov – Provedor 8 – Ouvidor in Porto SeguroRel – Appeal court

Sup – Superintendent


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CoNtributor details

Nuno Camarinhas is a post-doctoral researcher in CEDIS at the Faculdadede Direito, Universidade Nova de Lisboa. He holds a doctorate in historyfrom the Ecole des Hautes Etudes en Sciences Sociales, Paris (2007), aMaster’s degree in social sciences from the Instituto de Ciências Sociais,

Universidade de Lisboa (2000), and a degree in history from the Faculdade deCiências Sociais e Humanas, Universidade Nova de Lisboa. He has workedon the social history of the Portuguese judiciary, justice administration andcolonial rule in the early modern Portuguese empire. He published Juízes e

Administração da Justiça no Antigo Regime/ Judges and the Administration of Justicein the Ancien Regime (Fundação Calouste Gulbenkian/Fundação para a Ciênciae a Tecnologia, 2010) (which has also a French edition) and has publishedseveral chapters in books and articles in peer-reviewed journals.

Contact: CEDIS, Faculdade de Direito, Universidade Nova de Lisboa, Lisbon,PortugalTel: +351 213847466

E-mail: [email protected]

Nuno Camarinhas has asserted his right under the Copyright, Designs andPatents Act, 1988, to be identified as the author of this work in the format that

was submitted to Intellect Ltd.


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Journal of African

Media StudiesISSN 2040199X | Online ISSN 17517974

3 issues per volume | Volume 5, 2013

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In the current academic climate there is an ongoing repositioning of media and

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JAMS invites contributions from scholars and professionals from around the

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Justice Administration in Early Modern P

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