A CENTRIFUGAL ADMINISTRATIVE STRUCTURE

3.1. Viceroys and governors

If centralization was not achieved through a general legal framework, it could nev­ertheless be achieved by instituting a clear hierarchy of commissioners through which royal orders would reach the periphery of the political system.

According to the Ancien Regime’s legal doctrine, itself rehearsing a trope of Roman law, governors held an extraordinary power (extraordinaria potestas)^[442] similar to the one exercised by supreme military chiefs (dux). Like the king himself, they could derogate laws in order to better accomplish the strategic aims of their mission. In royal instructions^[443] given to viceroys and governors, either in India or in Brazil, a clause was usually inserted according to which they were authorized to disobey the instructions if “royal service” (“meu real servito”) required it, or the specific conditions of those remote places which they were to rule did.

This permission to create law - or, at least, to dispense with established law - was a necessary consequence of the nature of the office of overseas governor. Over­seas governors dealt with ever-changing matters, such as military or maritime en- terprises.³8 Furthermore, they acted in a political environment that was not as stabi­lized as in Europe, where justice was rooted in fixed traditions, procedures and formulae. On the contrary, overseas governors acted in a strange and unmarked world, subverted by the very eruption of the European people. This was a world on the move, similar to the one described by Machiavelli, where justice was to be cre­ated by princely will, exploiting opportunity. Viceroys or governors were the per­sonal delegates of the king, and thus were entrusted with princely powers, such as the power to dispense with the law or to administrate royal grace.³⁹ The greater their isolation from the source of power, the greater the range of their responsibili- ty.⁴⁰

In a letter to the king, Pero Borges, general justice of Brazil (Ouvidor Geral do Brazil)⁴¹ in the mid 16^th century (7.2.1550), wrote: “This land, Sir, to be main­tained and to progress, needs that some norms of your Ordinances would not be enforced, because they have been enacted without consideration of its inhabitants [...] thousands of cases happen which are not ruled by the Ordinances and are to be decided at the discretion of the judge. If in such cases appeals [he means, to courts deciding according to formal law] are to be received, justice could not be done [.]”⁴² Accordingly, Brazil’s governors received instructions stating that that cases unforeseen in the instructions should be decided by the governor, after conference with the Bishop, the chancellor of the Brazilian High Court (Relaςdo da Bahia) and the commissioner for royal treasury (Provedor da Fazenda Real).⁴³

Besides justice, grace was also a specific royal attribute.⁴⁴ It allowed acting against the law (“dispensing with the law”) in order to make a superior conception of Justice or Goodness prevail.

Mendonca 1972, 2:709, n. 39; and D. Francisco Jose de Portugal’s notes on the subject, Men- donga 1972, 2:839.

38 “E porque as cousas do mar sao incertas e ha casos que se nao podem prevenir antecipada- mente: hei por bem que Vos, com o Almirante da dita frota, auditor, e sargento-mor, e capitao de mar e guerra da capitania, disponhias, nos tais casos, o que se vencer por mais votos.”, reg. of Salvador Corriea de Sa, 35.3.1644, Mendonga 1972, 2:621.

39 About this institutional model, Santos 1998, 49 ff.

40 “Quanto mais longe apartado esse Estado esta de minha preseιιga quanto mais carrego sobre vos a obrigagao deste ponto [da justiga],” reg. of Andre Vidal de Negreiros, governador e cap­tain general of the State of Grao Para e Maranhao, 14.4.1655, Mendonga 1972, 2:702 (d. 9).

41 Brazilian Ouvidores’regiments, Mendonga 1972, 1:83-87: Ouvidor Geral do Rio’s reg., de 11.3.1669.

42 Mendonga 1972, 1:57.

43 Cf. reg. Francisco Geraldes de 1588, n. 48, Mendonga 1972, 1:276; reg. Gaspar de Sousa, 6.10.1612, n. 57, Mendonga 1972, I, p. 435 (id. reg. Andre Vidal de Negreiros, 1655, Mendonga 1972, 2:710, n. 40.).

44 On viceroys’ use of grace, Santos 1998, 55 ff. crimes.^[445] Thus, in Francisco Geraldes' instructions (1588, n. 51, Mendonca 1972, I, 277), the governor was entitled to grant loans up to the (global yearly ?) amount of one thousand cruzados, a very large sum, much higher than the annual salary of a Desembargador^[446]; besides that, Gaspar de Sousa's instructions (6.10.1612) granted the governor the exercise of royal grace in a large array of situations,^[447] renewed the authorization to give rents or economic privileges up to the amount mentioned above; and gave him the right to grant offices, in ownership or in provisional exer­cise (serventia).^[448] While this was the situation in Brazil, in India, on the contrary, the crown issued restrictive legislation concerning the exercise of grace by the gov­ernors and viceroys, as a reaction against what it considered a pervasively wasteful policy.^[449] In the aftermath of the Brazilian-Dutch war, governors received the right to promote soldiers to knights of the military orders, although this prerogative ap­parently remained unused till the end of the 18^th century.^[450]

Summing up, peripheral differentiation and autonomy was also promoted by granting, even to viceroys or governors, extensive powers of government.

3.2. Donatarios, local governors and lower magistrates

In Brazil, the above conclusions regarding a practical, but also a theoretical, au­tonomy, could also be applied to the lower levels of administration, namely to cap- tains-feoffees (capitdes donatarios) and, later, captaincies' governors (governa- dores das capitanias). According to several royal determinations, from 1549 on, the general governor was the head of the State of Brazil and should have had supremacy over donatarios and governadores das capitanias.^[451] Those lower officials should obey his orders and give him account of their term in government.^[452] This depend­ency, nonetheless, was rather obliterated by the fact that these lower officials were also required to obey the orders of Crown Ministers in Lisbon (namely, to the Secre­tarios de Estado and to the Conselho Ultramarino). This double subjection created a space of hierarchical uncertainty - manifested in a frantic ping-ponging of appeals and jurisdictional conflicts - upon which local governors could build an autono­mous and effective power.

As a result, the hierarchy between the general governor (or viceroy) and local governors could be described, in the beginnings of the 19^th century, as follows: “captaincies’ governors were largely autonomous in what concerned the local (“economico”) government of their provinces, being subjected to the general gov­ernor only in matters relating the general policy and defense of the whole State of Brazil.”^[453]

Perhaps the most important attribution of donatarios, later of local governors, was the ability to grant sesmarias - i. e., the concession of vacant land to be culti­vated - surely the most traditional, continuous, and decisive legal formula of land concession in Brazil (cf., e.g., regimento given to Tome de Sousa, 1549, chaps. 8/10).^[454] Whatever the original title might have been, the Portuguese kings consid­ered themselves as lords of all Brazilian lands that were not occupied by colonists or by natives.

No matter how important sesmarias granting may have been, the judicial pre­rogatives of governors, exercised by their jurist-judges (ouvidores), were also cru­cial. In the first donations, captain feoffees enjoyed a full criminal jurisdiction over slaves, natives (gentiles) and ordinary people (peoes), as well as a very comprehen­sive civil jurisdiction.^[461] In the lower levels of the judicial system additional factors of inconsistency were added, such as deformations introduced by ill-educated and biased judicial interveners. According to a source dated in the mid-16^th century, in Brazil captains used to nominate as ouvidores “simple and ignorant people, who cannot read or write,” and who were easily bribed or blackmailed by the powerful elites.

3.3. High courts and high judges

High courts were also among the powers that expropriated central power. Designed to administer justice on the behalf of the king, colonial high courts (Relagoes) - namely, those of Goa, Bahia and Rio de Janeiro - had prerogatives similar to those enjoyed by metropolitan supreme courts (Relagoes). Legal theory conceived of them as sovereign courts, collateral to the king, who was their natural president. Their decisions had the same status as royal decisions and could not be seized, lim­ited, or cancelled, even by a royal writ. This meant that the administration ofjustice, either by the ouvidores or by the Relagoes, was a quite autonomous and self regu­lated arena, not only because the colonial governor - or even the king - could not control the contents of judicial decisions, but also because the crown’s disciplinary power on the judges was weak and provisional; in fact, any definitive judgment against them was an exclusive attribution of metropolitan high courts.^[463]

To stress the autonomy of colonial High Courts is much more than another de­tail. Since Stuart Schwartz’s research on the Relagao da Bahia,^[464] we are familiar with the strong ties of solidarity linking high court judges to colonial elites. Higher judges were more than technicians devoted to the empire of law; they likely con­veyed the vested interests of the leading groups of colonial society. If we consider the range of their interventions - from the declaration of just war to the settlement of strategic legal issues like royal charts of donation, revocation of sesmarias, suc­cession, and disentailment of morgados - we can understand the central role high judges played in the colonial political arena, as well as their importance in the im­plementation of centrifugal strategies contradicting royal intentions.

The regime established for controlling governors’ and viceroys’ powers yet again stressed the importance of the colonial high judiciary. A royal writ of the early 17^th century (A. 9.4.1623) entitled the colonial high judiciary in India to inspect (called residencia) the activities of governors at the end of their term in office. Another point that became central to the autonomy of the courts was the power given to Rio’s High Court (Relacao) in the 18^th century to evaluate the way viceroys fulfilled their duties after their term of office had ended. This meant that judges would have the last word on the exercise of the paramount colonial authority. Viceroys understood the risk implied in their subjection to the court, and fought against it without achieving a de­cisive victory.^[465] At the lower levels, the Brazilian Relacoes already exercised power of control over civil (ouvidores) and military (capitaes) officers nominated by donatarios,^[466] besides the general judicial control over every act of government.

The autonomy of justice had, however, a more formidable weight in the bal­ance of power. The Ancien Regime’s judiciary apparatus was a Kafkaesque ma­chinery, in the face of which every wise citizen would reasonably shiver. From the low meirinho (marshal) or escrivao (clerk) to the lofty desembargador, every jus­tice officer was like an oracle whose unforeseeable decision could affect one’s honor, liberty or property. The helpless dependence of an ordinary citizen before this judicial machinery was critical. In its shadow, a population of local lawyers (rabulas, advogados provisionados ou provisionarios) flourished. Often poorly educated in the law solely by assisting in court,^[467] these local lawyers used their legal expertise to gain the position of mediators in local Creole societies, twisting metropolitan law to serve local interests.

3.4. Officers and servants

Brazilian administration - Brazil being the most typical example within the Portu­guese Empire of a plantation colony, with an important and juridically differenti­ated resident population - experienced another singular form of the combination of local social interests and administrative power: the venality of offices.

The Portuguese monarchy never admitted the principle - common in other Eu­ropean monarchies, namely France and Spain - that public offices could be the object of sale. Private sale of offices was formally forbidden by law (Ord. fil., I, 96 [sale by holders]; II, 46 [sale by those who had the power to appoint the officers]); although the frequent practice of renunciation of offices “in the hands of the king” probably covered private contracts of sale. The sale of offices by the crown was also excluded by singular statutes (cf. CL 6.9.1616) and considered uncommon by the doctrine.^[468] Patrimonialization of charges existed, but in the form of rights of suc­cession for the sons of office holders. The recognition of such rights was probably the strongest obstacle to the sale of offices, as the crown could not violate this chain of succession and sell the offices to other people.

During the 1620s and the 1630s, the selling of offices in India (captaincies, “captaincies of voyages [to China or Japan]”) became more common than it ever was in Portugal. The practice, however, was strongly criticized by the political lit­erature, which charged the Habsburgs with having introduced this abuse to Portu- gal.^[469] In Brazil, the first instructions^[470] forbade the creation of new offices by gov­ernors, according to the rule that new offices could only be created by the king (cf Ord. fil., II, 26, 1; II, 45, 1,3,13, 15, 31). For the offices already in existence, yet vacant, governors could nominate provisional holders (serventuarios), but not give them the office in property. In the early 18^th century, a royal writ^{[471] [472] established that new offices (already created or to be created) should be given in property to those who promised a donation (donativo); while those offices given provisionally (ser- ventias) should pay the royal treasury (Real Fazenda) one third of their annual in­come (terςa).τ2 From this moment onward, vacant offices were sold by auction to those who offered the largest sum.[473] Thereafter, sale by auction tended to be re­placed by a sale with a fixed price. According to a commentary on the instructions to Brazil’s governors, written by a viceroy of the early 19th century,[474] the Brazilian practice was similar to what was “used in almost all the overseas colonies.” Al­though auctioning offices raised the revenue obtained by the crown, the author of the commentary expressed a deeply negative opinion about such auctions, as they corroded the crown’s control over civil servants.}

To sum up, one could say that from the early 18^th century onward, the property or, more fully, the serventias of almost all the offices of justice (notaries, registrars and other judicial clerks) were at the disposal of local wealthy Brazilians. The impor­tance of this fact cannot be underestimated: not only because of the importance of the offices’ revenues,^[475] but because of the centrality of these offices in the so-called civilta della carta bollata (civilization of “sealed paper,” papel selado). This was a world in which written documents were central for resolving decisive matters, from personal status to patrimonial rights and duties. Notaries’ or judicial clerks’ archives were central deposits of social and legal memory. Everything that mattered had to have a trace in them. This is why the appropriation of such offices by the Brazilian elites - or their direct clients - was rather more than a bureaucratic minor episode.

3.5. Municipal councils

Municipal councils also resisted the will of the center, and their conflicts with gov­ernors were pervasive.^[476] In a way, they played a role similar to that of the colonial assemblies of the British colonial plantations. The most impressive example of the way municipal government developed autonomous political strategies within the Portuguese Empire was probably that of the city of Santo Nome de Deus de Macao, in the Guangdong province, southern coastal China. The municipality of Macao was erected around 1554, as a Portuguese institution. However, the Chinese Emperor Wan Li (1583-1620) gave the title of mandarin to one of the municipal magistrates, the Procurador da Cidade, entitling him to judge the Chinese population, a situation that lasted till 1736. Acting as an interface between the Portuguese and the Chinese imperial powers and dominated by local Creole elites, the Macanese municipality (Leal Senado, Loyal Senate, a imposing title) easily won a wide scope of independ­ence. In its relations with the Portuguese authorities - namely, the viceroy of India - Macao enjoyed almost full autonomy, which allowed the city to maintain a flour­ishing trade with Spanish Manila even during the Luso-Spanish war (1640-1688).

In Brazil, none of the councils had a similar diplomatic mission. However, the role played by municipal councils (Camaras') was almost the same, either because they ruled local affairs almost absolutely or because they successfully counteracted centralizing policies dictated by the crown or its local delegates.^{[477] [478] The Camara (as well as the Misericordiaji) became a very efficient device for politically organiz­ing the elites.}

Although these particularistic claims could produce irritation and even political impotence, they did not create a great risk of political dissolution. The corporatist model of authority could counter-balance this practical political paralysis by sol­emnly and indisputably asserting the symbolic supremacy of the royalty.

4.