Society and Justice in Colonial Brazil in the 17th and 18th

Centuries
Isabele de Matos Pereira de Mello, Instituto de História, Universidade Federal do Rio de Janeiro

https://doi.org/10.1093/acrefore/9780199366439.013.943
Published online: 27 October 2020

Summary
In early modern societies, the duty of enforcing justice was one of the principal tasks of
the monarch. Judicial power could be exercised both directly by the monarch—the
supreme magistrate—or by those he delegated it to—judges or his courts. In the vast
territory of Portuguese America, different institutions were created to ensure access to
justice, to help govern the people, to assist in long-distance administration, and to
maintain control over the crown’s dominions. Ouvidorias-gerais, judges, and courts were
established with their own institutional officials, intermixing lower- and higher-level
jurisdictions and exercising justice over distinct territorial spaces. To understand the
functioning of judicial institutions in colonial society, it is important to analyze the
universe of magistrates, their careers, judicial practices, and complex relations in the
social environment. Magistrates, as an important professional group recruited by the
Portuguese monarchy, had multiple overseas possibilities. They could serve at the same
time as representatives of royal power and allies of local groups. These men faced a
colonial reality that allowed them a wide sphere of action, the exercise of a differentiated
authority, and a privileged position as intermediaries between local elites and the king.
Even though all magistrates were subject to the same rules of selection, recruitment,
appointment, and promotion, the exercise of justice in the slaveholding society of
Portuguese America demanded a great capacity for adaptation and negotiation, for the
application of law in the mosaic of local judicial situations. Magistrates circulated in
different spaces, creating and working in different judicial institutions in the difficult
balance between theory and practice, between written law and customary law.

Keywords: Brazil, Portuguese America, justice, law, colonial administration, judicial institutions,
magistrates, judges, tribunals of justice

“Justice is the compass of the monarchy, the balance of the government, and the helm for
navigation. . . . Kingdoms where there is no justice do not last, but where there is justice, they
1
become eternal and increase, with this the empire increases in every way.”

2
The early modern period was a period marked by judicial pluralisms. Social conflict could be
absorbed by autonomous processes, outside the formal litigation of courts and judicial
spheres. Two forms of the exercise of justice coexisted: formal (letrada) and informal (não-
3
letrada). In Portuguese America, this division was expressed, on the one hand, by royal
justice, directly exercised by the representatives of the king, letrados (qualified lawyers)

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appointed to the local judicial institutions, and on the other by the power of justice granted to
the donatory captains, in general more restricted and practiced by delegation. Since this is a
broad area of study, this article will focus on the formal letrada judicial system and the judicial
institutions that represented the main structure of the judicial apparatus.

In the Portuguese world, the monarch was the supreme magistrate, responsible for personally
ensuring the resolution of conflict; the principal source of law was his will. With the growth of
the population and, consequently, litigation, a single man could not handle this task.
4
Therefore, suitable people had to be found to assist the king.

In the 18th century, judges began to be appointed to the principal cities and towns of
Portugal. Over the following centuries, various official positions in the courts were established
throughout Portuguese territory, and the administration of justice went through a process of
transformation and expansion, one example being the reorganization of the legislative
apparatus, including the publication of the Ordenações Filipinas (1603), which unified the
Ordenações Manuelinas (1512) and various non-codified laws in a single text.

During the 17th and 18th centuries, Portugal had a polysynodal government structure: the
political space was structured around a constellation of powers, and negotiation was present
5
at multiple levels. The monarch was assisted by a series of specialized councils in most of
6
which magistrates were present. The central institution of the Portuguese judicial apparatus
was the Desembargo do Paço, created in the 16th century, responsible for the administration
of justice and formed by desembargadores (appellant judges). It was not essentially a court,
and among its principal tasks was the dispatch of petitions for grace addressed to the
sovereign, the holding of magistrate qualification exams, and appointments to legal positions.
In Portugal, there were also two tribunals (upper level courts)—Casa da Suplicação in Lisbon
7
and the Tribunal da Relação in Porto—and various local judicial spheres.

Following the expansion of its overseas dominions, the Portuguese monarchy began to form a
judicial apparatus in its territories. The first court established outside Portugal was the
Relação in Goa (1554), located in the State of India. On the other side of the Atlantic, various
courts were created in strategic areas at the beginning of the colonization of Portuguese
America. First the Ouvidorias-gerais in Bahia, Rio de Janeiro, and Maranhão, and afterward
two higher courts (the Relação in Bahia and the Relação in Rio de Janeiro) as well as various
small courts in different locations. The judicial system changed a lot during the 17th and 18th
centuries, accompanying the changes inherentin the development of the colonization process,
the various moments of political inflection in the Portuguese Empire, and the change in the
axis of economic importance to the South Atlantic.

The administration of justice was important to the monarchy, and the magistrates spread
around the immense Portuguese Empire helped in the complex task of administering the
dominions at a distance, assuming numerous responsibilities essential to the functioning of
the colonial government. Throughout the Portuguese Empire, magistrates became responsible
for activities that went beyond the judicial sphere, such as general administrative tasks and
the day-to-day running of the territories.

The magistrates who helped the Portuguese monarchy in the construction of the judicial
apparatus in America were mostly natives of Portugal, graduates of the University of Coimbra,
the only academic institution in all of the Portuguese Empire. In many cases, these men opted

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for service in the law as a form of social ascension. Their careers were constructed through an
exercise of different positions at different levels of the Portuguese judicial system, and an
overseas position could be part of this career trajectory. Those who opted to cross the Atlantic
could be rewarded, shortening the time of service necessary to obtain promotions in their
careers.

By entering overseas service, magistrates also became knowledgeable about colonial

dynamics and local realities, performing an important role in the maintenance of Portuguese
dominions. For this and other reasons, no other set of governors or agents managed to form
8
such a powerful professional group in the Ancient Regime as the judiciary.

The effective formation of judicial structures in Portuguese America occurred gradually from
the first half of the 17th century onward, initially with a very small number of magistrates.
Beginning in the first decades of the 18th century, the judicial network greatly expanded as
new legal institutions were created in different locations. Judges were thus sent more
frequently to Portuguese America. However, various documentary records contain complaints
from residents and governmental authorities, principally in areas that were more distant from
9
the main urban centers, about the absence or lack of magistrates. It should thus be noted
that as well as the problem of the elevated cost of judicial procedures, the number of legal
institutions and judges was always insufficient to meet local legal demands or to take into
account the administration of justice in the vast territory of Portuguese America.

Justice in the 17th Century

In 1621, during the period of the Iberian Union, the territory of Brazil was divided into two
large political and administrative units: the State of Brazil, which covered the captaincies
from Rio Grande to São Vicente, based in Salvador (Bahia), and the State of Maranhão, which
10
included the territories from Rio Grande to Grão-Pará, based in São Luís (Maranhão). Both
were administered by a governor-general and subdivided into various captaincies with their
11
own administrative structures.

Magistrates participated in the first colonizing expeditions, appointed by the king, charged
with applying and administering justice. In this context, in the 17th century, three Ouvidorias
(legal districts) were created: the Ouvidoria-Geral of the State of Brazil (1549); the Ouvidoria-
Geral of the Southern Repartição, also called the Ouvidoria-Geral of Rio de Janeiro (1608); and
12
the Ouvidoria-Geral of the State of Maranhão (1619). These three institutions were
independent from one another and had jurisdictions over distinct areas. Each Ouvidoria was
established in an area considered of vital importance for the administrative organization of
the territory.

The Ouvidorias-gerais functioned as singular and itinerant judicial bodies, for both the first
and second levels of justice, with the power to hold trials and hear appeals, and with the
principal functions of enacting justice, allowing lawsuits to progress, and facilitating the
resolution of conflicts as well as overseeing the administrative actions of local councils. These
institutions were run by a single magistrate, called the ouvidor-geral or the ouvidor da
comarca, as well as a single clerk, the escrivão da ouvidoria e correição, and a bailiff.

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The clerk and the bailiff helped the ouvidor-geralin his work, especially in the summoning and
examination of witnesses, the preparation of court records, visits to local villages, and the
execution of judicial warrants. At present, there is no specific research in the Brazilian
historiography about these activities. However, the vast range of the functions of these
positions points to their importance in the daily life of colonial administration, either because
of their privileged access to law cases that were underway and information about the lives of
residents, or because of their circulation within the space of comarcas (legal districts) and
interactions with other governmental institutions.

Often ownership of auxiliary offices of justice was granted in reward for services rendered to
the Portuguese monarchy. At the beginning of the 18th century, in the Ouvidoria-Geral of Rio
de Janeiro, the position of escrivão da ouvidoria e correição (clerk) was granted as a reward
for military services. For almost the entire 18th century, possession of the office passed from
father to son in the same family who alternated the direct exercise of the position and farmed
13
it out to third parties. Keeping the position in the same family was a common practice in
relation to concessions involving the auxiliary offices of justice.

In Portuguese America, whenever the owner of an office had some impediment preventing
them from exercising the position, they could ask for royal permission to grant it em serventia,
in other words, the office holder could nominate another person to temporarily fill the
position. Another frequent practice was the payment of donations to the royal treasury in
exchange of the position.

The office of ouvidor-geral was triennial and exclusively appointed by the monarch. The king
chose a magistrate to exercise the office from a list of three names drawn up by Desembargo
do Paço. Only in the first years after the creation of the Ouvidorias, a period that coincides
with the Castilian dynasty, did the appointment of individuals without an academic
background occur regularly. In the Ouvidoria-Geral of Maranhão, its initial years were
troubled because of the Dutch invasions, and until the 1650s it was run alternately by
14
magistrates trained in the University of Coimbra and local men. In Rio de Janeiro and other
places, this practice was also adopted in the first half of the 17th century, and the position
15
was held by members of the principal local families.

For a long time, it was believed that the Ouvidorias-gerais were controlled by individuals
lacking the Desembargo do Paço qualifications or even by laypeople, as occurred, for example,
with judges in local councils (Câmaras). However, research carried out since the ending of the
20st century has shown that after the end of the Iberian Union, the Ouvidorias were expanded,
gaining additional powers, jurisdictions, and competencies. Consequently, appointments to
these positions started to occur infrequently and only in exceptional cases, such as an opening
because of a delay in the arrival of a replacement, death, illness, or the imprisonment or other
impediment of the magistrate appointed by the king. In these cases, a local individual was
appointed, often chosen by local council officials. From the 18th century onward, juízes de
fora (judges of assize), who were qualified graduates in law, assumed the position of ouvidor-
geral if the judge was absent or while awaiting the arrival of a new magistrate appointed by
the king.

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The most frequent practice was the appointment of more experienced magistrates, who were
working in their second or third position, after completing their course in law. After a general
analysis of where the magistrates in Brazilian territory came from, José Subtil concluded that
more than 50 percent of those appointed had previous experience. Moreover, almost all of
16
them were born in Portugal, with a few rare exceptions.

The ouvidores-gerais of the three Ouvidorias had distinct regulations during the 17th
17
century. These legal mechanisms equated the position of ouvidor-geral in the tropics with
the position of corregedor in Portugal. However, by comparatively analyzing their attributes,
as well as the limits of their positions, it can be seen that the ouvidores-gerais had a much
larger sphere of action than their contemporaries in Portugal. The objective was to allow for
the resolution of judicial conflicts at the local sphere. Both the dynamics of the administration
and the small number of magistrates demanded this expansion of powers.

The ouvidores-gerais had to reside in the region considered to be the capital of the comarca
(cabeça da comarca), in other words, the area with the greatest population density within the
limits of its jurisdiction. Among their various duties were: the practice of correições
(inspection of the performance of courts), at least once every three years; the holding of
residências, investigations carried out at the end of mandates to check that duties were
fulfilled during the holding of offices; control over the issuing of cartas de seguros and alvarás
18
de fiança; and conducting and inspecting the process of choosing Council officers.

The magistrates of the three Ouvidorias-gerais had very similar roles and attributes, but there
were regional particularities, such as the accumulation of functions and jurisdictions,
intensified by the lack of qualified lawyers in some comarcas (judicial districts). For example,
the ouvidor-geral of the State of Maranhão retained the right to intervene in ongoing legal
cases, both civil and criminal. This meant that they could judge any ongoing case. The right to
intervene was a significant power in the colonial legal sphere, since it involved removing from
a judge the right to preside over a determined case without the need for royal authorization.
Other regional particularities can be identified through the reading and analysis of the
regulations and the other sources listed at the end of this article.

The large territorial expanse of Portuguese America and the low number of magistrates
hindered the work of Ouvidorias-gerais, and various regions spent years without the visit of an
ouvidor-geral. In some cases, the magistrate in exercise took approximately six months to
cross his area of jurisdiction. As they traveled through their territory, visiting towns, cities,
and councils, they left behind unresolved litigation, unfinished inquiries, unpunished crimes,
unenforced wills, and so on.

At the end of the 17th century, new institutions were created in different locations, and the
Ouvidoria of the State of Brazil was divided in two to meet the large local demand. The
expansion of the judicial network was especially necessary for reasons of an economic and
fiscal order in the context of the discovery of gold and the advance of colonization.

In each captaincy in Portuguese America, there existed various governmental institutions and
local groups that associated with one another, becoming confused, but also colliding. The
administration of justice required great involvement with questions related to the daily life of
the inhabitants, which led to associations with powerful individuals or families, with various
levels of patronship. Magistrates were not only the mere implementers of laws, as in the
locations they passed through they could establish interpersonal relations. In various
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documents, numerous reports can be found about the involvement of magistrates in local
conflicts, pointing to the direct influence of personal disputes in judicial decisions, the
postponement of terms, the conduct of proceedings, and even in the issuing of sentences.

Tribunals of Justice (High Courts)

Also created over several centuries in the locations where the three Ouvidorias-gerais were
established were the first three Tribunais da Relação or Tribunais da Justiça (high courts or
courts of appeal) in Brazil, namely in Bahia, Rio de Janeiro, and Maranhão. Tribunal de justiça
can be understood as “every magistrate or collegiate of magistrates, to whom a jurisdiction is
19
granted.” In the Ancien Régime, they were judicial institutions formed by judges
(desembargadores) with powers to hear trials and appeals, and had jurisdiction over various
comarcas. Appeals were sent to the Casa da Suplicação in Lisbon until the end of the 19th
century.

In principle, the Ouvidorias-gerais had similar characteristics to these courts of appeal or

tribunals. However, the great difference was in the number of magistrates, the scope of
competencies, and the existence of a collegiate body of desembargadores. While the
Ouvidorias were singular bodies, commanded by a single magistrate, the Tribunais da Relação
functioned as a collective judicial body, presided by a Chanceler (chief judge) and consisting of
approximately ten judges. A judge who was a member of a tribunal had the status of
desembargador, a superior status within the magistrate career.

In Portuguese America, the appointment of a desembargador referred more to a status with

privileges than to an actual function. Invariably, once appointed as desembargador, an
individual could continue to make use of this title, even when no longer occupying the office.
This practice still continues in Brazil. As Stuart Schwartz stated, “the title of desembargador
20
was a type of social description and not merely a function.”

The status of desembargador could be acquired without formally taking a position in a tribunal
award. It was possible to obtain the same salary and exemptions, but while occupying a lower
office, with the promise of a future position in a tribunal. Being a desembargador also
signified having some rights guaranteed under the Ordenações Filipinas, such as the
exemption of the payment of some charges, authorization to travel by mule, exemption from
serving in municipal positions, and privileged jurisdiction, extended to their spouses when
they became widows and their servants. Only a small number of magistrates managed to
21
achieve the status of desembargador under the Portuguese Crown.

The creation of a tribunal in an overseas territory began with the publication of a law, or a
charter with the force of law, explaining the royal decision to create a new institution of
justice. Following this, the monarch chose the magistrate who would be responsible for
presiding over the Relação, occupying the position of chanceler (chief judge), and the other
magistrates to form the first panel of desembargadores. The governor of the captaincy
performed administrative functions in the institution: the regulations show he performed an
inspectorial role in relation to the functioning of hearings, while various documentary sources
point to the conflicts generated among these bodies.

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The Tribunal da Relação in Bahia was created for the first time in 1609 at the beginning of the
formation of the judicial system in Portuguese America. However, the Dutch presence and the
costs of the tribunal contributed to its extinction a short while afterward. In the final phase of
the Dutch war, Council officials in Salvador petitioned for its re-establishment as they were
22
dissatisfied with the expensive costs of sending appeals to Portugal. In 1652, new
regulations were issued, and the institution began to operate again. The area of jurisdiction
basically continued unaltered, in other words, with the exception of the State of Maranhão, all
the other captaincies and comarcas remained subordinate to the tribunal in Bahia until the
creation of the Relação in Rio de Janeiro.

Despite the petitions sent by subjects since the end of the 17th century, Portuguese America
only gained a new tribunal de justiça in the middle of the 18th century, based in the city of Rio
de Janeiro, which in 1763 also became the capital of the State of Brazil and the seat of
government. In 1751, orders were issued that the materials necessary to establish the
23
institution in the following year be sent to Rio de Janeiro. In addition to the printing of the
Ordenações Filipinas, collections of laws and various regulations, necessary for the
desembargadores work, fine fabrics, curtains, expensive chairs, and canopies were all
ordered, evidencing the pomp and the rituality involved in the courts of justice in Portuguese
America.

According to reports produced by the desembargadores themselves, the tribunal was received
24
by residents with applause and repeated public demonstrations of contentment.
Disregarding some possible exaggerations by magistrates, an extra tribunal in Brazil
undoubtedly represented for those living there a more rapid resolution of litigation and at the
same time less expenditure on the sending of legal petitions to the tribunal in Bahia. This may
have been the cause for some celebrations.

The Tribunal da Relação in Rio de Janeiro had jurisdiction over all of the southern territory of
the State of Brazil, which covered thirteen comarcas, namely: Rio de Janeiro, São Paulo, Ouro
Preto, Rio das Mortes, Sabará, Rio das Velhas, Serro do Frio, Cuiabá, Goyazes, Pernaguá,
Espírito Santo, Itacazes, and Ilha de Santa Catarina. Also under its jurisdiction were the
judiciary, the Ouvidorias, and the captaincies in these locations.

Tribunals consisted of ten desembargadores who held positions with distinct competencies
25
and various auxiliaries. All the functions were exercised by magistrates with the status of
desembargador, but the offices had different nomenclatures and material natures, and
distinct symbolism. Within each institution there was a rigid hierarchy, well defined by the
26
principles of experience and antiquity.

Formally, desembargadores had to serve in the tribunal for a six-year period, until the arrival
of a successor, but reappointment could also occur, in other words, a new term in the same
office. Annual wages were paid by the royal treasury while other expenditure was paid for
from the revenue of the courts themselves. The establishment and the maintenance of
Tribunais da Relação demanded increased funding and recruitment and the systematic
dispatch of magistrates.

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In 1808, after the Portuguese royal family moved to Brazil, the Tribunal da Relação of Rio de
Janeiro was transformed into the Casa da Suplicação of Brazil. This marked the beginning of a
structural change of the Brazilian administrative and judicial system that would continue
throughout the 19th century, involving the creation of a further eight tribunais de justiça in
the country.

It is a consensus in the Brazilian and Portuguese historiography that the first two tribunals in
Brazil followed the model of the institutions of justice established in Portugal, but had their
own rules and regulations that guided how they operated. The profile of these institutions was
also molded by the monarchy in accordance with the local dynamics and their commercial and
geopolitical interests. In the context of the creation of the first Relações, frontiers and
possible external threats inspired particular attention in certain regions. These judicial
institutions allowed and facilitated the entire administration to be monitored, in an
environment marked by the existence of competing powers and different levels of autonomy.
At least in theory, no one was outside the scope of the power of the tribunals. In practice,
there was great interference by the Tribunais da Relação in various aspects of the colonial
administration.

When they took their position in the overseas tribunals, the magistrates of the Portuguese
Crown found themselves facing the colonial reality, marked by an administrative dynamic that
allowed them a wide sphere of action, the exercise of differentiated authority, and gave them a
privileged position as intermediaries between local elites and the king. In this environment
favorable to the formation of political connections, they could guide their actions seeking to
meet the objectives of the monarchy, or they could act in accordance with local interests,
forming temporary alliances. In the documentation of the Conselho Ultramarino (overseas
council), it is possible to find correspondence containing the denunciations of abuses and
excesses committed by desembargadores in tribunals, issued by the governors in different
captaincies and officials in various councils of Portuguese America.

In 1767, the governor of Bahia, the Count of Azambuja, compiled a description of judges and
religious officials with detailed information for the then Secretary of State of the Navy and the
27
Overseas Territories, Francisco Xavier de Mendonça Furtado. According to this document,
all the magistrates sent to Portuguese America ended up involved in local collusion and bias,
which generated “a very relaxed manner of justice” and promoted a violent environment
where the kidnapping of secluded girls or married women was frequent. All individuals
carried pistols, blunderbusses, or knives; crimes were committed; and criminals remained
free, with many being protected by the magistrates themselves. However, the governor stated
that it was very difficult to prove the accusations because when he tried to officially
investigate the malpractices of the desembargadores, everyone refused to corroborate these
accusations, since these powerful men could potentially be useful to local groups.

Justice in the 18th Century

During the 17th century, the Tribunal da Relação in Bahia and the Ouvidorias-gerais were the
central judicial institutions of Portuguese America. At the beginning of the 18th century, the
process of the expansion of the judicial network began and new Ouvidorias and assize courts
were created in different locations. Assize courts (juizados de fora) were spheres with their

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own judges and, as the name itself expresses, these men had to be from outside (fora means
“outside”), coming from a place other than where they exercised their judicial functions. In
the colonial period, the term juizado was used both to refer to the position and to indicate the
seat of the court, the place for the exercise of judicial activities.

The juiz de fora was a letrado, an official with a law degree qualified by the Desembargo do
Paço, and chosen from a list of three names. In the Portuguese judicial structure, this judge
was part of the lowest level in the judicial structure and had the most reduced jurisdiction in
the kingdom. Normally his area of action was restricted to a city and its environs, for this
reason it was a role more occupied by initiates in the magistrate career. The designation of
juiz de fora was a form of differentiation in relation to ordinary judges who were chosen to
preside over the Câmaras. Ordinary judges were also known as juízes da terra and could be
laypeople, since there was no obligation to have an academic education to occupy the role.
The application of justice by ordinary judges was restricted and totally based on customary
law. According to the Ordenações Filipinas, the juiz de fora was a magistrate imposed by the
king on a place, under the pretext that they were more familiar with legal provisions and
administered justice better than ordinary judges, who were often contaminated by affection
28
and hatred.

Both the juízes de fora and the ordinary judges had to carry a rod, symbolizing their function:
red was indicated for ordinary judges, that is, for those without qualifications, and a white rod
for the juízes de fora, the letrado judges. The use of the rod was very important since it
visually marked the separation between letrada justice (i.e., formal justice administered by a
judge qualified in law) and non-formal justice. By looking at the color of the rod, everyone
knew whether they were dealing with a qualified judge, but more than this, it was possible to
know whether the judge had been directly appointed by the king or had been recruited among
members of local communities. If a judge refused or forgot to carry the rod when performing
his duties, he was punished by being fined.

Despite the gaps existing in the judicial documentation from the colonial period, it is possible
to identify in Portuguese America that juízes de fora acted more frequently in the criminal
area, carrying out investigations and resolving local petty conflicts. In addition to judicial
activity, like the ouvidores-gerais, the juízes de fora also accumulated administrative and fiscal
tasks. Moreover, they could act as substitutes for ouvidores-gerais in their absence or removal
from the comarca.

The idea of establishing juízes de fora in Portuguese America came from the desembargadores
in the Tribunal da Relação of Bahia. In 1677, these magistrates sent a petition to King Pedro
II, suggesting the creation of the first position of juiz de fora specifically for the city of
29
Salvador. Members of the tribunal argued that it was necessary to have another letrado
judge present in vilas and comarcas. Up to that point, in the absence of the ouvidor-geral,
court instructions were carried out by ordinary judges, who frequently were partial or delayed
the punishment of crimes, both because of ignorance of judicial process and in defense of
their allies. For the desembargadores, it was important to have a magistrate based in the
Câmaras to improve the administration of justice. Members of the Conselho Ultramarino
(overseas council) were favorable to the petition. In the 18th century, the position was not
only established in Salvador but in various other locations in Portuguese America. Petitions

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for the creation of the office in many places came from local governmental spheres, and the
arguments were always very similar to those of the desembargadores from the tribunal in
Bahia.

For some time, the monarchy had been aware of the misdemeanors and corruption practiced
in the Câmaras, both in relation to tax collection and the declaration of the expenditure of
these institutions. The new court created in Portuguese America, as well as encouraging
formal law and permitting better access to justice, also helped to control the misappropriation
of royal income. The creation of the office of juiz de fora appears to have been one of the first
measures of central power in the 18th century in the restriction of the power of overseas
30
councils. It was an attempt to exercise some control over the almost unquestionable
autonomy of the Câmaras at a time when Portuguese colonial policy was being reformulated.

The juízes de fora represented the lower court, and the majority of legal cases below a certain
level were first heard by this magistrate. In the locations where there was a juiz de fora and
an ouvidor-geral, the Ouvidoria-geral tended to perform the functions of a higher-level court,
receiving appeals from cases tried in the juizados de fora. However, in practice, juízes de fora
and ouvidores-gerais had very similar roles that were difficult to separate jurisdictionally. In
addition, the relations established between the ouvidores-gerais and the juízes de fora were
most often conflictual. In Brazilian historiography, various occurrences can be found of
conflicts triggered by the arrival of the first juízes de fora. Motivations for these disputes
varied, involving disputes over power, competition for spaces of jurisdiction, or quarrels
motivated by political associations, bonds of compadrio (godfathership), and friendship with
powerful local elites.

The different judicial spheres—ouvidorias, tribunals, and courts—were unable to meet local
demands in a rapid and effective manner. In Portuguese America, the administration of justice
enacted only and exclusively by magistrates was not a reality. Until the first decades of the
19th century, the coexistence of formal and informal judicial practices can be identified.
Moreover, local—or customary—law still prevailed in many cases, sometimes due to the
inability of some judges to apply formal law. The colonial world was a mosaic of judicial
situations; the magistrates sent to Portuguese America administered justice in an environment
with rules and traditions established by custom, but also faced resistance to apply norms of
another nature, which in many cases were not known to all. However, these situations should
not be thought of only in a reductionist form as coming from an inefficient judicial apparatus
created in Portuguese America, but can also be understood as the structural characteristics of
the political systems of the Ancient Regime in the colonial universe.

The institutional panorama of justice in Portuguese America was altered through the creation
of new Ouvidorias and the juizados de fora. During the 18th century, the judicial network
gradually spread throughout Brazil. These institutions continued to grow, adding roles and
attributes, and occupying a significant place in the colonial government through the gradual
increase in the number of magistrates. Furthermore, these systems existed until the
reorganization of the judicial system in 1832 following the enactment of the first Brazilian
Code of Criminal Procedure. Their roles were revised and came to be the responsibility of the
juízes de direito, the generic name used in the Brazilian judicial system to refer to lower court
judges.

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Some Considerations on the Universe of the Magistracy

This article examines the essential nexus of justice in Portuguese America with the aim of
encouraging the reader to better understand the topic, but without the intention of dealing
with the subject in its totality. This text was constructed seeking to contribute to the current
discussions of the international historiography that defend the importance of knowing the
various judicial experiences of Latin America so scholars can advance in comparative studies
31
on a global scale. Based on knowledge about the profile and the autonomous paths of
judicial institutions, it is possible to identify the common references and the particularities of
the administration of justice in the colonial period and, above all, in Brazil.

The judicial apparatus of Portuguese America was gradually constructed in the 17th and 18th
centuries. Judicial institutions were deeply entrenched, something contributed by judges as
they spread throughout the territory. In some way, everyone was subordinated to the power of
the judicial spheres, to the time of justice, and bureaucratic processes. The relations
established in the social environment of the practice of the magistracy were marked by
contradictions and conflicts.

Endowed with power and prestige, the magistrates crossed the Atlantic, often stepping for the
first time in the overseas dominion of El Rei, charged with the task of administering justice to
the people, but knowing little or nothing about the unwritten codes of these people and their
customs and traditions. The knowledge obtained in university or in auditoriums had to be
applied in a distinct universe. Their decisions, which were supposed to be based on
ordinances, regulations, laws, and decrees, needed to be adapted or even totally revised.
Actually, many situations that arose in this colonial slaveholding society, where justice was
often carried out by people’s “own hands” and various conflicts were resolved with political
arrangements, required the creation of new practices and even new legalities expressed in
records or in jurisprudence.

Magistrates circulated in different spaces, creating and working in various judicial institutions
in the difficult balance between norm and practice, between written and customary law.
Moreover, in the auditoriums and hearings, they worked with local prosecutors and lawyers
who in many cases had little or almost no legal knowledge. Sentences needed to be entered in
the autos (the official records), which at times was done without the due procedural rigor.

In the comarcas and captaincies, letrados and those with judicial knowledge were frequently
recruited by the king to assume further functions, accumulating offices and functions. In these
cases, the sphere of power and action was widely expanded, which led to differentiated
connections with other possibilities of action for magistrates in overseas territories.
Exercising functions linked to finance and war, they became indispensable agents for the
monarchy, a group that helped guide the “helm for navigation,” as mentioned in the epigraph
of this article.

Individually, the passage through the institutions of justice in Portuguese America represented
only one moment in the magistrates’ careers, and many sought to obtain higher positions in
Portugal’s judicial hierarchy. The trajectories of various magistrates were marked by complex

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combinations of the different contexts where they exercised their offices; for this reason, they
often needed to follow their own strategies to adapt to each reality, without wasting chances
for advancing and progressing in their career.

Starting in the second half of the 18th century, individuals born in Portuguese America were
sent to study in the University of Coimbra, and after graduating they returned to occupy a
place in the legal world. As a result, gradually the group of magistrates of the Portuguese
Crown came to be composed of men born in Brazilian territory, which reveals to scholars the
investment of many local families in a law course, a clear expression of the search for social
ascension in a political environment in which judicial knowledge was increasingly valued and
the legal profession considered even more prestigious. These men would participate in many
changes and associated reforms in the Luso-Brazilian legal environment.

In the 19th century, the Brazilian territory went through a great administrative reorganization
involving the creation of new judicial institutions. The first constitution of Brazil, enacted in
1824, recognized the existence of judicial power as a constituted political power that
functioned at two levels. Magistrates continued to form an important political elite in the
country and also came to hold positions in the legislative and executive branches of
government. Many desembargadores became deputies, senators, ministers, and presidents of
provinces, actively participating in politics.

The political system changed, kings entered and left the government, the institutions and the
empire itself were altered, but the magistrates managed to perpetuate themselves in power
and to expand their activities outside the traditional judicial environment. Magistrates and
judicial institutions continue to occupy a prominent place in contemporary Brazilian society,
still calling for improvements in jurisdictional provision and a more efficient coverage of
judicial structures.

Discussion of the Literature

The American historian Stuart Schwartz was the first to publish specific research on justice in
colonial Brazil. His study Sovereignty and Society in Colonial Brazil: The High Court of Bahia
and Its Judges, 1609–1751, published for the first time in English in 1973, was translated into
Portuguese in 1979. At the time of its publication, it was a still unknown topic in Brazilian
historiography. Up to that point, justice in the colonial period appeared only in a peripheral
32
manner and was not problematized in some classic works on the history of Brazil.

Stuart Schwartz opened the way for a rethinking of the relations between the state and
society as well as the multiple facets involved in the functioning of judicial institutions in the
colonial period, producing an important social history of the magistracy. For him, it was
important not only to investigate the principal aspects of the tribunal but also and above all its
magistrates and their trajectories. However, for a long time the question was little revisited in
historical studies. The few works that emerged following Schwartz’s study were restricted
only to the history of law and did not advance the reflection on the intertwining of society with
magistrates and courts. See, for example, Artur Virmond de Lacerda’s book As Ouvidorias do
Brasil Colônia, which despite its broad title is restricted to just two locations, with an
33
emphasis on the 18th century, only emphasizing the formal aspects of the judicial system.

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In 2004, the Brazilian historians Arno and Maria José Wehling, inspired by Stuart Schwartz,
but at the same time giving greater emphasis to law and privileging jurisprudential
34
characteristics, published their book Direito e Justiça no Brasil Colonial. It contains an
investigation of the institutional development of the Tribunal da Relação in Rio de Janeiro, in a
moment of transition experienced by the public administration, expressed according to the
authors by an attempt to bureaucratize the state and create a new legal order. As in the work
of Stuart Schwartz, the prosopographical method was used to reconstruct the profile of
magistrates appointed to the courts in Portuguese America, unveiling much information about
the personal lives of and conflicts faced by these men.

For many years, the only specific studies about justice in Portuguese America were those of
Stuart Schwartz and Arno and Maria José Wehling, and the question did not attract new
adepts. However, since the 1990s, a new panorama has emerged in Brazil. Brazilian
historiography on the colonial period has gone through great transformations since the 1990s,
above all following the expansion and development of graduate programs. Debates about the
nature of power, the Portuguese Empire, centralization, local institutions, levels of autonomy,
and the possibilities of negotiation, produced in the international historiography, have directly
influenced the renewal of historical studies in Brazil. They have contributed to the revision of
various aspects of the old explanatory models, based on the opposition between metropole
and colony.

The new works began to give greater value to colonial dynamics and their relations of power
with a plurality of foci. Various regional studies were concerned with the analysis of
endogenous accumulations (Internal capital accumulation), intraregional circuits, local elites,
the unquestionable power of the Câmaras, and so on. Portuguese America, as well as the other
overseas possessions, came to be studied as a full part of the Portuguese Empire and the
politico-administrative space as a constellation of powers. Brazilian historiography has moved
even further away from the idea of the existence of a colonization project reduced to
submission and exploration. These analyses are profoundly influenced by the ideas developed
by the Portuguese historian António Manuel Hespanha since the end of the 1980s, which
called attention to the centrifugal administrative structure of the empire and to the autonomy
35
of powers in the imperial political hierarchy.

António Manuel Hespanha’s research on institutions and political power in Portugal also
inspired other generations of Portuguese historians who began to work with and dive into the
topic of bureaucratic practices. In the 1990s, emphasizing administrative history, the
Portuguese historian José Subtil published a study on the functioning of Desembargo do Paço
between 1750 and 1833, evidencing the great political power of the institution and its
magistrates. Since then, he has produced various significant works about the professional
36
performance of judges and careers in the magistracy.

The studies of the Portuguese historian Nuno Camarinhas, who investigated around 4,513
magistrates in his doctoral dissertation, were also inspired by the prosopographical method.
He sought to answer many questions about the careers of magistrates and the administration
of justice in the Ancient Regime. In 2019, he created the Memorial dos Ministros site to make
available his immense database of prosopographical data about the letrado judges who served

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the Portuguese Crown in the early modern period between 1620 and 1800. This site contains a
video where the author presents a simplified chronological mapping of the evolution of the
37
configuration of the Portuguese judicial apparatus in its overseas dominions.

The expansion of graduate studies in Brazil has helped form a fertile field of dialogue among
Brazilian and foreign historians. Since 2005, inspired by the preceding international
historiographical productions, young Brazilian researchers from various graduate programs in
Brazil have begun to investigate the administration of justice, magistrates, and their
discourses and practices. Dissertations and theses were (and continue to be) produced that
emphasized the regional dimensions of the vast Brazilian territory and reassessed the role of
magistrates and judicial institutions, revealing the nonexistence of a single profile for the
38
administration of justice. Observing the possible adaptations in the judicial system to resolve
litigation, they show the discretion of magistrates, the plasticity of judicial relations, and the
influence of political and personal questions in the progress of proceedings. This research
draws on documents held in different research institutions in Brazil and in European
countries, above all in Portugal.

In 2010, the first specific study was published in Brazil about the administration of justice in
39
the 17th century. The research focused on the Ouvidoria-geral in Rio de Janeiro and
highlighted the presence of career magistrates and graduates of the University of Coimbra,
and revealed the leading role of the Ouvidorias in the daily life of colonial administration and
in the functioning of the Câmaras.

Since 2010, various books and articles have been published about the social functioning of
judicial institutions in Portuguese America, with an emphasis on the construction of a social
history of the magistracy, seeking to push forward and develop further some of the ideas
proposed by Stuart Schwartz.

Published in 2017, the collection Justiça no Brasil Colonial: Agentes e práticas brought
together the principal Brazilian researchers interested in the theme. In various chapters, the
authors sought to understand the functioning of justice in the tropics, considering both
biographic and prosopographical aspects, such as relational networks and the possibilities of
40
involvement with colonial elites.

However, despite the great advances in research in Brazil on the topic and the efforts to
reconstitute dimensions of the judicial sphere that are still little known, scholars are still in an
open field, with many questions to be explored. Just to cite a few examples, there are still no
academic studies about the Ouvidorias of Bahia and Maranhão or about the relations
established between the tribunais de justiça of Portuguese America and the higher courts in
Portugal. Nor do scholars know how various courts functioned, the internal procedural
processes of comarcas, or the practices of auxiliary officials. Judicial arbitration, residências,
and correcionais, subjects much studied by historians of different nationalities for the context
of Spanish America, are questions that are rarely or never researched for Portuguese
America, which helps explain the absence of comparative works about the social functioning
of institutions and the various judicial experiences of the colonial world.

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Primary Sources
There are various documentary collections and funds in Brazil and Portugal that may be useful to researchers
interested in the topic. However, the quantity and diversity of sources vary considerably in accordance with the
location investigated. Judicial cases, for example, are sources that serve as the basis for research in various areas
because of the wealth of information that can be extracted through the analysis of the narratives constructed by
different social groups in their judicial lawsuits. At the same time, these documents also help to narrate the history of
justice and to reveal the interrelations between the legal text and the practices of the magistracy.

In Brazil, the records of the law cases of the 17th and 18th centuries were little preserved. Many gaps exist in the
documentary sets for the period covered by this article. In some regions, it is possible to find law cases or copies of
extracts of cases from books from ouvidorias and juizados that have been sparsely collected in state and
municipal archives such as, for example, the Mineiro Public Archive (APM) <http://
www.siaapm.cultura.mg.gov.br/> and the General Archive of the City of Rio de Janeiro <http://
www.rio.rj.gov.br/web/arquivogeral/principal> (AGCRJ).

The judicial archives of the tribunais de justiça of Brazil are also very diverse in relation to the temporal focus and
the amount available. A large part of the documents refer to the 18th century. The Central Archive of the Tribunal de
Justiça of the State of Rio de Janeiro <http://www.tjrj.jus.br/web/guest/institucional/dir_gerais/
dgcon/degea/fundos-documentais> (PJERJ), opened in 2005, contains law cases from 1751 onward in various
comarcas in the current state of Rio de Janeiro. However, research can only be done on-site and appointments must
be booked in advance. The Genealogical Society of Utah is digitizing part of this archive which should be available
online shortly. The Tribunal de Justiça of Maranhão (TJMA) is still organizing its documentary collections, but has
been publishing transcriptions of historical documents from the judiciary, such as its collection of wills from the
41
second half of the 18th century and the catalogs of some comarcas. Most of the judicial collection from Bahia is
held in the Public Archive of the State of Bahia (APEB) <http://www.fpc.ba.gov.br/modules/
conteudo/conteudo.php?conteudo=66>. In Pernambuco, the judiciary have a documentation center with law
cases going back to 1749. Law cases from the 19th century, starting in 1822, are available online.

In the National Archive (AN), a federal institution based in the state of Rio de Janeiro, responsible for the principal
Brazilian archives, some important documentary sets should be mentioned, such as the fonds for the Relação of
Bahia, the Secretary of State of Brazil, Miscellaneous Codices, and the Orphans’ Court. It has a specific online database
for the judicial collection containing civil and criminal cases as well as marriage qualifications and birth, marriage, and
death certificates. The institution has also published some collections of individual years, called Publicações
Históricas (PH), with indices or transcriptions of important documents for colonial administration. It covers various
volumes containing royal letters, provisions, edicts, nominal lists, and administrative correspondence.

In the National Library of Rio de Janeiro (FBN), it is possible to access online the documentation of the Barão do Rio
Branco Historical Documentation Recovery Project <https://bndigital.bn.gov.br/dossies/projeto-
resgate-barao-do-rio-branco/>, created in 1995, with the aim of making available historical documents about
the history of Brazil existing in the archives of other countries, principally in Portugal. More than three hundred
thousand documents about Portuguese America have been digitized, coming from the Overseas Historical Archive of
Lisbon (AHU).

In the Torre do Tombo Archive (ANTT), located in Lisbon, among the principal documentary sets is the Leitura de
Bacharéis fond, with documents from 1600 to 1833, organized in alphabetical order and available online. This fond
is fundamental to investigate the family background and life of magistrates as well as the provision of judicial officials
in Portuguese America. The family origin of magistrates and the mercês obtained during their careers may also be
studied by investigating the processes of justification of nobility, qualifications for becoming familiars of the Holy
Office, and military orders, especially the Order of Christ, documents that are also available at the ANTT. In 2019, the

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Portuguese historian Nuno Camarinhas made his large database available online at Memorial dos Ministros
(1620–1830) <https://memorialdeministros.weebly.com/>, which contains information of a biographic
nature about the judges who served the Portuguese Crown between the 1620s and 1800s.

To get to know the laws and regulations of the period, the Government of Others <http://
www.governodosoutros.ics.ul.pt/> project allows online access to the legislation related to the political
government of the territory and the populations of the Portuguese Empire. In the Digital Library of the Faculty of
Law of the University of Coimbra <http://www.uc.pt/fduc/biblioteca> some law manuals can be found
that can help scholars to better understand the procedural dynamics of the early modern period and the judicial
experiences.

Links to Digital Materials

Arquivo Nacional da Torre do Tombo <https://digitarq.arquivos.pt/>.

Arquivo da Universidade de Coimbra <https://www.uc.pt/auc>.

Arquivo do Tribunal de Justiça do Estado do Rio de Janeiro <http://www.tjrj.jus.br/web/guest/

institucional/dir-gerais/dgcon/degea>.

Atlas da América Lusa <http://lhs.unb.br/atlas/Mapa_Digital>

Base de Dados, Acervo Judiciário do Arquivo Nacional do Rio de Janeiro <http://www.an.gov.br/

Basedocjud/MenuDocJud/MenuDocJud.php>.

Biblioteca Digital, Faculdade de Direito da Universidade de Coimbra <https://bibdigital.fd.uc.pt/

>.

Consulta Legislação, Base de Dados “O Governo dos Outros (1496–1961) <http://

www.governodosoutros.ics.ul.pt/>.”

Dicionário da Administração Pública Brasileira, Período Colonial <http://mapa.an.gov.br/

index.php/dicionario/administracao-colonial>.

Memorial dos Ministros (1620–1830) <https://memorialdeministros.weebly.com/>.

Projeto Resgate, Biblioteca Luso Brasileira <https://bndigital.bn.gov.br/dossies/projeto-resgate-

barao-do-rio-branco/>.

Further Reading
Assis, Virgínia M. Almoedo de, Maria Fernanda Bicalho, and Isabele de Matos Pereira de Mello,
eds. Justiça no Brasil colonial: Agentes e práticas. São Paulo, Brazil: Alameda, 2017.

Camarinhas, Nuno. Juízes e Administração da Justiça no Antigo Regime: Portugal e o império

colonial, séculos XVII e XVIII. Lisbon: Fundação Calouste Gulbenkian, 2010.

Camarinhas, Nuno. “Justice Administration in Early Modern Portugal: Kingdom and Empire in a
Bureaucratic Continuum.” Portuguese Journal of Social Science 12 (2013): 179–193.

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Hespanha, António Manuel. “Early Modern Law and the Anthropological Imagination of Old
European Culture.” In Early Modern History and the Social Sciences: Testing the Limits of
Braudel’s Mediterranean. Edited by John. A. Marino, 191–204. Kirksville, MO: Truman State
University Press, 2002.

Homem, António Pedro Barbas. Judex perfectus: Função jurisdicional e estatuto judicial em
Portugal, 1640–1820. Coimbra, Portugal: Almedina, 2003.

Lopes, José Reinaldo de Lima, Rafael Mafei Rabelo Queiroz, and Thiago dos Santos Acca. Curso
de história do direito. 3rd rev. ed. Rio de Janeiro, Brazil: Forense, 2013.

Mello, Isabele de Matos P. de. “Os ministros da justiça na América portuguesa: Ouvidores-gerais
e juízes de fora na administração colonial (séc. XVIII).” Revista de História 171 (2014): 351–381.

Mello, Isabele de Matos P. de. “Los magistrados y sus juicios de residencia en la América
portuguesa (siglo XVIII).” Revista Historia y Justicia 8 (2017): 11–40.

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.

Subtil, José Manuel Louzada Lopes. O Desembargo do Paço (1750–1833). Lisbon: UAL, 1996.

Wehling, Arno, and Maria José Wehling. Direito e justiça no Brasil colonial: O Tribunal da
Relação do Rio de Janeiro (1751–1808). Rio de Janeiro, Brazil: Renovar, 2004.

Acknowledgments

Translated from the Portuguese by Eoin O’Neill.

Notes

1. Diogo Guerreiro Camacho de Alboym, Escola moral, política cristã e jurídica (Lisbon: Oficina de Bernardo
Antônio de Oliveira, 1759), 171.

2. For a historic reflection on how justice was experienced and thought about in the Western world and other
definitions, see Paolo Prodi, Una storia della giustizia: Dal pluralismo dei fori al moderno dualismo
tra coscienza e diritto (Bologna, Italy: Il Mulino, 2000); Hans Kelsen, O que é justiça? (São Paulo, Brazil:
Martins Fontes, 2001), 1–2; and António Manuel Hespanha, As vésperas do Leviatan: Instituições e poder
político—Portugal (séc. XVII) (Madrid: Tauros, 1989).

3. In this article, the author uses the term “justice” in a restricted sense, as an equivalent to administrative and judicial
organization, a common understanding in Brazilian law.

4. Luiz da Silva Pereira Oliveira, Privilégios da Nobreza e Fidalguia de Portugal (Lisbon: Nova Officina de
João Rodrigues Neves, 1806).

5. See the work of António Manuel Hespanha, Jack P. Greene, and John Elliott.

6. Nuno Camarinhas, Juízes e administração da justiça no Antigo Regime: Portugal e o Império

colonial, séculos XVII e XVIII (Lisbon: Fundação Calouste Gulbenkian, 2010), 59.

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7. Hespanha, As vésperas do Leviathan.

8. Anthony John. Russel-Wood, “Governantes e agentes,” in História da Expansão Portuguesa: O Brasil na

balança do Império (1697–1808), ed. Francisco Bethencourt and Kirti Chaudhuri (Lisbon: Círculo de Leitores,
1998), 180.

9. Isabele de Matos Pereira de Mello, Magistrados a serviço do rei: A administração da justiça e os ouvidores-
gerais na comarca do Rio de Janeiro, 1710–1790 (Rio de Janeiro, Brazil: Arquivo Nacional, 2015).

10. The bibliography about the subject diverges a little on the dates, some authors mention 1619 or 1621 considering
different legal dispositions. In the second half of the 18th century, the capital was transferred from São Luís to Belém
and came to be called the State of Grão-Pará and Maranhão, consisting of the captaincies of Pará, Maranhão, Piauí,
and São José do Rio Negro. In 1772, the state was divided into two autonomous regions, Grão-Pará and Rio Negro and
Maranhão and Piauí, both subordinated to Lisbon. See Dicionário da Administração Pública
Brasileira <http://mapa.an.gov.br/index.php/dicionario/administracao-colonial>, Período
Colonial.

11. To understand the changes in governance during the two centuries, see Dicionário de Administração
Pública Brasileira, Período Colonial.

12. In 1612, the Southern Division was ended, but the Ouvidoria-Geral continued to exist with the same name.
During the 17th century, the name Ouvidoria-geral da Repartição do Sul fell into disuse, and it came to be
called the Ouvidoria-geral of Rio de Janeiro. However, the area of jurisdiction remained as all the territory
previously called the Repartição do Sul until the beginning of the 18th century, when new ouvidorias were
established. See Isabele de Matos Pereira de Mello, Poder, Administração e Justiça: Os ouvidores-gerais no
Rio de Janeiro, 1624–1696 (Rio de Janeiro, Brazil: Secretaria Municipal de Cultura, Arquivo Geral da Cidade do
Rio de Janeiro, 2010).

13. Mello, Magistrados a serviço.

14. Milson Coutinho, Ouvidores-gerais e juízes de fora[correct: “fora”]: Livro negro da justiça
colonial do Maranhão, 1612–1812 (Maranhão, Brazil: Clara Editora, 2008).

15. Mello, Poder, Administração e Justiça.

16. José Manuel Louzada Lopes Subtil, Actores, territórios e redes de poder, entre o Antigo Regime e o
eguroism (Curitiba, Brazil: Juruá Editora, 2011), 15–35.

17. For a comparative analysis of the regulations, see António Castro Nunes, Fátima Farrica, Mafalda Soares da Cunha,
Maria Fernanda Bicalho, and Isabele de Matos Pereira de Mello, “Corregedores e ouvidores no reino e nas conquistas,”
in Um Reino e suas Repúblicas no Atlântico, ed. Nuno Gonçalo Monteiro and João Fragoso (Rio de Janeiro,
Brazil: Editora Civilização Brasileira, 2017).

18. The correições were circuits made by the ouvidores-gerais with the aim of visiting all the towns and cities
under their jurisdiction to certify the general state of justice. See Isabele de Matos Pereira de Mello,
“Ouvidores-gerais e príncipes das comarcas: O andar em correição na América portuguesa,” in
Justiça no Brasil colonial: Agentes e práticas, eds. Virgínia M. Almoedo de Assis, Maria
Fernanda Bicalho, and Isabele de Matos Pereira de Mello (São Paulo, Brazil: Alameda, 2017).
Isabele de Matos Pereira de Mello, “Los magistrados y sus juicios de residencia en la América
portuguesa (siglo XVIII),” Revista Historia y Justicia 8 (2017): 11–40. The carta de eguro “is the
judicial promise according to which the defendant under certain conditions is exempt from imprisonment until the
final judicial decision.” See Joaquim José Caetano Pereira e Souza, Esboço de hum Diccionario Juridico,
Theoretico e Practico, vol. 3 (Lisbon: Typographia Rollandiana, 1827). In Brazil, cartas de eguro were

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abolished by the Code of Criminal Process in 1832. A type of permission to await the proceedings of courts in liberty, in
the cases of slander or libel, or the use of weapons, among others. This permission was granted for a year and could be
renewed twice. See Lei de 13 de outubro de 1751 <http://www.iuslusitaniae.fcsh.unl.pt/>, tít. L and LI.

19. Oscar Joseph de Plácido e Silva, Vocabulário jurídico (Plácido e Silva), 1:439. In the terminology of French law,
tribunal was associated with the exercise of a jurisdiction of a lower nature, while the higher courts were called
Cours. However, in Brazilian law, the term tribunal could be used for both lower and higher jurisdictions.

20. Stuart B. Schwartz, Sovereignty and Society in Colonial Brazil: The High Court of Bahia and
Its Judges, 1609–1751 (Berkeley: University of California Press, 1973), 242–247.

21. José Manuel Louzada Lopes Subtil, ed., Dicionário dos desembargadores, 1640–1834 (Lisbon: Ediual,
2010).

22. Schwartz, Sovereignty and Society in Colonial Brazil, 200–204.

23. Aviso do ministro e secretário de Estado da Marinha e Ultramar, Diogo de Mendonça Corte Real, ao Presidente do
Conselho Ultramarino, marquês de Penalva, January 18, 1752, AHU-RJ, cx. 52, doc. 03.

24. Carta do Chanceler da Relação João Pacheco Pereira de Vasconcelos em que participa a sua chegada ao Rio de
Janeiro, September 23, 1752, AHU-RJ, cx. 67, doc. 15.638.

25. The appellant judges could hold the following positions: Chanceler (chief judge), desembargador dos
agravos e apelações (judge of appeals), ouvidor-geral do crime (general magistrate for criminal law),
ouvidor-geral do cível (general magistrate for civil laws), juiz dos feitos da coroa, fazenda e fisco (judge
of questions related to the Crown and fiscal questions), prosecutor, juiz da chancelaria (a specialized judge), and
procurador da coroa e fazenda (prosecutor for the Crown and fiscal questions). The Relações also were
supported by a body of auxiliary officials, such as: guarda mor, responsible for assigning criminal and civil
proceedings; solicitor of justice, who inspected the court’s expenses; clerks; bailiffs; inquisitors; and jailers. In general,
ownership of the auxiliary positions was granted, following the same model for the Ouvidorias.

26. Antonio Pedro Barbas Homem, Judex perfectus: Função jurisdicional e estatuto judicial em
Portugal 1640–1820 (Coimbra, Portugal: Almedina, 2003), 499.

27. “Ofício do Governador Conde de Azambuja para Francisco Xavier de Mendonça Furtado, de 27 de março de 1767,”
Anais da Biblioteca Nacional 32 (1910): 162–163.

28. Ordenações Filipinas (Lisbon: Fundação Calouste Gulbenkian, 1985).

29. Isabele de Matos Pereira de Mello, “Os ministros da justiça na América portuguesa:
Ouvidores-gerais e juízes de fora na administração colonial (séc. XVIII),” Revista de História 171
(2014): 351–381.

30. Maria Fernanda B. Bicalho, A cidade e o império (Rio de Janeiro, Brazil: Civilização Brasileira, 2003), 292.

31. Massimo Meccarelli, “A história do direito na América Latina e o ponto de vista europeu,” Revista da
Faculdade de Direito da Universidade Federal de Uberlância 2 (2015): 2–13.

32. Schwartz, Sovereignty and Society in Colonial Brazil; Raimundo Faoro, Os donos do poder: Formação
do patronato político brasileiro (Porto Alegre, Brazil: Globo, 1991); and Caio Prado Júnior, Formação do Brasil
contemporâneo (São Paulo, Brazil: Brasiliense, 2000).

33. Arthur Virmond de Lacerda, As Ouvidorias do Brasil colônia (Curitiba, Brazil: Juruá, 2000).

34. Arno and Maria José Wehling, Direito e Justiça no Brasil Colonial: O Tribunal da Relação do
Rio de Janeiro (1751–1808) (Rio de Janeiro, Brazil: Renovar, 2004).

35. Hespanha, As vésperas do Leviathan.

36. Subtil, José Manuel Louzada Lopes. O Desembargo do Paço (1750–1833). Lisbon: UAL, 1996.
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37. Camarinhas, Nuno. Juízes e Administração da Justiça no Antigo Regime: Portugal e o império
colonial, séculos XVII e XVIII. Lisbon: Fundação Calouste Gulbenkian, 2010.

38. On the sites of the principal graduate programs in Brazil, thematic searches can be carried out for dissertations
and theses about this topic. Some suggestions: Dissertation Database of Universidade Federal
Fluminense (UFF) <https://www.historia.uff.br/stricto/teses.php>; Digital Library of
Universidade de São Paulo (USP) <https://www.teses.usp.br/>; Dissertation Database of
Universidade Federal do Rio de Janeiro (UFRJ) <https://www.ppghis.historia.ufrj.br/>;
Dissertation Database of Universidade de Brasília (UNB) <https://repositorio.unb.br/>;
Repository of Theses and Dissertations of Universidade Federal de Pernambuco
(UFPE) <https://www.historia.uff.br/stricto/teses.php>.

39. Mello, Poder, Administração e Justiça.

40. Virgínia M. Almoedo de Assis, Maria Fernanda Bicalho, and Isabele de Matos Pereira de
Mello, eds., Justiça no Brasil colonial: Agentes e práticas (São Paulo, Brazil: Alameda, 2017).

41. Tribunal de Justiça do Maranhão, Testamentos maranhenses, Coleção documentos históricos do Poder
Judiciário do Maranhão (1751–1795). Diversos vols (vol 1 a 4) (São Luís, Brazil: Coordenadoria da Biblioteca, 2015).

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