LEGAL DIVERSITY ON ROMAN AND PORTUGUESE EMPIRES

As we have just underlined, important differences in context and meaning separated the two groups of texts analyzed above. Nevertheless, both are linked to narratives that obscured central features of both the Roman Empire before and after Caracalla and of the nineteenth century Portuguese empire: namely, the diversity of legal systems, status, identities, and cultures that characterized both these empires.

The historiography of the Roman Empire has long questioned images of the unity and homogeneity of the Roman Empire after Caracalla. These images are contradicted by narrative discourses as well as by the legal practices of those times. Firstly, although they possessed the right, not all those who became Roman citizens after Caracalla benefitted from the Roman ius civile. What formally distinguished a Roman citizen after Antoninus Caracalla’s constitution was common submission to the Roman law. This fact had emancipatory consequences that surpassed the mere purpose of using Roman civil law as an instrument of the domination of conquered populations, as was the case in previous periods of Roman history (Ando 2011, 4). But it didn’t imply the full universalization of the ius civile, not only because “the scope of action by Antonine Constitution in producing legal homogeneity was lim­ited” (Ando 2011, 25), but also because parallel legal systems continued to be used alongside Roman civil law. On the other hand, Roman citizens could also submit to Roman law partially, or to different degrees.

Furthermore, Caracalla’s grant of universal citizenship did not mean that all the persons living within the boundaries of the Roman Empire were citizens. It merely meant that all freeborn residents were citizens. Because slavery was maintained, the status of the servi (slaves) continued to be a normal, visible and essential compo­nent of Roman society, where freedom “was not a general right but a select privi­lege” and where the “law stated that all men were either free or slaves” (Bradley 2010, 627). As before, slaves continued to be excluded from citizenship, although they could be legally manumitted and become Roman citizens.^[605] These freedmen (the liberti) had their rights as citizens prejudiced in several respects (Ando 2011, 11), and could lose their citizenship rights, completely or in part, as a consequence of criminal acts (as other citizens could) or due to ingratitude shown toward their old masters, as had been the case before (Dench 2010, 274). Finally, not all Roman citizens could exercise their rights with the same power, different categories of citi­zens having different access to political and civil rights (Roman 2010, 23 ff.).

The Portuguese texts from the nineteenth century failed to capture these com­plexities because, as has already been seen, the references made to Caracalla and to universal citizenship in Roman empire by Portuguese jurists and Portuguese colo­nial theorists had more to do with justifying a specific ideological project than “with an accurate description of actual practices of rule” within both the Portuguese Em­pire and the earlier Roman Empire.^[606] While one party sought to emphasize what was perceived as the extensive character of Portuguese law and the corresponding spread of Portuguese sovereignty and civility, the other criticized the Portuguese “Latin” assimilationist attitude toward the indigenous people of the empire. Their texts were divorced not only from what happened in a local context, but also from other narratives that allow us to detect heterogeneity of legal orders and uncertainty about what concerned legal status in Portuguese overseas territories.

It is the diverse and uncertain policies about what concerned citizenship and law in the Portuguese Empire, as well as conflicting discursive narratives about those subjects during the nineteenth century, that I intend to discuss in the subse­quent paragraphs.

Two qualifications should be stated at the outset. First, it is worth recalling that, as was the case in the Roman Empire after Antoninus Caracalla, a fully unitary status didn’t exist within the Empire’s population, or even within the Kingdom of Portugal (hereafter referred to as “the Kingdom”). Portuguese territories were pop­ulated by slaves who were declared not to be citizens in the nineteenth century constitutions. According to the norms of historical Portuguese customary law, which were inspired directly by Roman law, like slaves in the Roman empire, these slaves enjoyed the right to become freedmen. These freedmen were full citizens in all the Portuguese Constitutions of the nineteenth century, although, just as in the case of the Roman empire, they could lose their citizenship rights and status if they contravened the ancient notions of Roman law that required the freedman’s good behavior and grateful attitude toward their former owners (Ordenaςoes Filipinas, Liv. 4, Tit. 63; Silva 2009, 239-57; 335-377; Oliveira 1988; Lara 2000; Grinberg 2006). The condition of these slaves and freedmen were sometimes briefly de­scribed by the Portuguese legal doctrine, but as a residual and exceptional one, which would gradually disappear as Progress made its way in History, creating conditions for the approval and enactment of abolitionist legislation.

A second group that was not given the option of Portuguese citizenship in the first Portuguese Constitution (1822) were the Amerindians, the indigenous inhabit­ants of America (Perrone-Moises 1992; Almeida 2003). This omission is significant because it took place despite the diversity of statuses they were granted during the modern period.^[608] In contrast with their legal condition in Spanish or North Ameri­can Constitutional thought, in the Portuguese Constitution of 1822 native Ameri­cans were neither citizens nor “domestic independent nations” (Clavero 2000, 206; Herzog 2006, 226-227). Instead, Article 240 of that Constitution (which became immediately obsolete due to the independence of Brazil), turned the Amerindians into subjects of a “civilizational mission” that could convert them into future Portu­guese citizens (Silva 2009; 266-284; Sposito 2006). But slavery and its institutions, as well as the indigenous from America and their status, were not the only feature of the imperial demography that upset the image of universalism and uniformity. Different categories of citizens were also the norm in the colonies as well as in the metropolitan territory, for, as was common to the constitutional culture of the nine­teenth century, Portuguese citizens had varying access to political or even civil rights (Silva 2009, 145-160).

3.