OTHER (CONFLICTING) NARRATIVES ABOUT CITIZENSHIP AND LAW IN PORTUGUESE EMPIRE

Statutory texts like the Portuguese Constitutional Charter or Sa da Bandeira’s local decrees present us with a universalistic and inclusive approach to colonial citizen­ship. Nevertheless, it is also possible to demonstrate how the legal status of indig­enous people was a much more open-ended question and also how, far from being general phenomena, the patterns of the application of Portuguese law in overseas territories were marked by legal discontinuity and a multiplicity ofjurisdictions.

Catholicism was the official religion of the State in all the Portuguese Constitu­tions of the nineteenth century. In Article 6, the Constitutional Charter accepted observance of other religions, but only in private and only for foreigners who had became naturalized citizens. It was assumed that persons of “Portuguese origin” were Catholic, and a great number of Portuguese politicians, jurists, and other Por­tuguese elites refused to conceive of the non-Catholics in the overseas territories as Portuguese (Silva 2007). Their existence, however, was one of the main arguments used by those who, like Sa da Bandeira, sought to put an end to the official status of the Catholic religion or to enlarge the number of indigenous people able to vote (or to be counted to calculate the number of deputies to be elected) in each overseas province. It was in the context of this discussion that Antonio Luis de Seabra, the author of the first Portuguese Civil Code (1867) argued that the Constitutional Charter presupposed that “Portuguese citizens, the residents or natives of the King­dom, were really Catholic.” Seabra believed that Article 6 of the Constitutional Charter did not refer to people of other religions in the overseas because these populations were not composed of Portuguese citizens.

As for the Portuguese subjects of the overseas provinces who profess other beliefs, and carry out some of their worship in public [...], we reply that, in our humble opinion, Article 6 of the Charter considered only the Kingdom, and its indigenous citizens or those who are in fact Portuguese, and not the peoples who, due to conquest or any other means, have been submitted to Portuguese dominion (Seabra 1866, 32).

What is important in this discussion about the religion of Portuguese people is that it gave rise to an interpretation that dramatically contradicted the universal charac­ter of Article 7 of the Constitutional Charter. This contradiction was repeated in the case of Article 18 of the Civil Code approved in 1867: it undermined the broad ius soli of the Charter, establishing instead that Portuguese citizens were “those who are born in the Kingdom, of a Portuguese father and mother.”^[615] In this case, the principle of ius soli was retained as the primary criterion for discriminating between Portuguese citizens and foreigners. But both the Civil Code and the civil doctrine that commented on it remained silent on the matter as regards the dominions (Fer­reira 1870, 40). This omission gained significance with the (re)introduction of the criterion of ius sanguinis. Being the son of Portuguese parents had been the main criterion in defining nationality/citizenship in the first Portuguese Constitution (1822). This requirement of birth was also specified in the works of the jurists from the late eighteenth and the first part of the nineteenth century whom we quoted in the introduction of this text, who nevertheless made reference to the dominions. If we interpret their words in the light of the opinions of the author of the Civil Code, then the universalistic scope of the discourse of those jurists, suggested by the refer­ence to Caracalla, becomes weaker.

The decree of 1869 sought to continue the liberal colonial policy of enforcing Portuguese law codes in the colonies. The aim of the decree, as expressed in its pre­amble, was to put an end to the inequalities that stemmed from the submission of overseas citizens to a different civil legislation.^[616] This distinction was one that had come into force after the approval of the Civil Code in the Kingdom, in 1867. Nev­ertheless, it was that same decree that offered large groups of indigenous people the opportunity to opt for their “customary law,” instead of the Civil Code, in their pri­vate dealings. Afterward, the actual legal pluralism of the overseas territories was officially recognized as the “law of everyday life” in those distant provinces (Hes- panha 1995; Ferreira 2012, 88-128; Silva 2004-5). The Civil Code and customary law would formally overlap. Nevertheless, there were some important theoretical limitations introduced in the enforcement of customary law in order to give life to the idea of the civilizing mission carried on by the colonizers.

The result of the application of the Civil Code overseas was that from 1869 onward, a large segment of the indigenous populations of the Portuguese territories were legally able to choose, as individuals, the legal system to which they wished to be subject. But no rule was enshrined as to the effect of this choice with regard to Portuguese citizenship, as was the case in other countries where legal pluralism had been recognized in their respective colonies. In French Algeria, an example that was referred to in the Portuguese 1869 decree, Muslim populations who opted to be ruled by the Islamic law were classified as French “nationals”; they had the oppor­tunity to acquire French citizenship, although only if they renounced Islamic law and submitted to French Civil Code. But no provisions of this type were established in the 1869 Portuguese decree.

This idea that it was submission to Portuguese law that turned indigenous peo­ple into Portuguese citizens had been articulated on some occasions during parlia­mentary discussions. For example, when Joao Xavier de Sousa Trindade, the Indian deputy referred to above, asked for political rights for the non-Catholic people of the “New Conquests,” he justified his claim by stating that he saw that they were Portuguese citizens precisely because they submitted themselves to Portuguese laws^[617] and obeyed Portuguese authorities:

[...] I see that the inhabitants of those Provinces are Portuguese citizens; they observe the laws that we do here; they respect and comply with the Portuguese authorities and they have all the requirements that the Constitution demands. As such, they are as good citizens as we are here except for the difference of religion, and that is no reason for their exclusion.^[618]

When describing the legal world after Caracalla, Mathisen suggests that the Anto­nine Constitution “was not a one-time grant but was meant to be self perpetuating,” because, after its promulgation, “Barbarians held office, owned and transferred property, made wills, went to Roman courts, and generally made use of ius civile all without formally receiving citizenship.”^{[619] [620] It is possible that a similar process was ongoing in the territories of the Portuguese Empire before and after the 1869 de­cree: indigenous people of the Empire became Portuguese citizens simply by func­tioning as such (i. e., by making use of Portuguese law in Portuguese courts, just as, in the modern period, by becoming Catholics and making use of Portuguese law).}

The first conclusion that we can draw from the previous paragraphs is that legal discourses and positive law about Portuguese citizenship overseas gave rise to what we might call a principle of uncertainty. This uncertainty was reflected in the legis­lative and administrative documents produced centrally and locally, and was prob­ably one of the reasons why no attempt was made to calculate overseas representa­tion on the basis of a population headcount. Since the beginning of the liberal re­gime the number of deputies for each of these territories was determined through a procedure which took no account of the size of their respective populations. Count­ing the number of free people in the overseas territories during the nineteenth cen­tury would be a difficult task, a difficulty compounded by the challenges in demar­cating tiny and widely dispersed Portuguese territories in Asia and Africa. In order to get around these problems, the deputies of the first Constitutional Assembly (1820-22) had agreed that, as the territories in question were thinly populated, ex­ceptional criteria were needed to calculate the number of their deputies, so that each of those territories would elect at least one deputy, irrespective of the number of their free inhabitants. In order for the islands of Sao Tome, Mozambique and its dependencies, Goa and Macao, to be represented at national level, for example, they established the “[...] principle that the key consideration was not the popula­tion of each one of these establishments [.] but rather the interests of these ex­tremely wealthy possessions, what they are today and what they may become in future, and also the glorious memory of their incorporation into Portuguese territory.”^[621] These criteria were frequently questioned by the deputies from Angola and India, who claimed, without success, that the demography of both their prov­inces justified the election of a larger number of deputies (Silva 2009, 176-178).

It was in accordance with those principles that 7 deputies from the African and Asian provinces were elected to attend the first Constitutional Assembly, in 1822, even though not all of these representatives actually attended the assembly. After the civil war, the first electoral law (InstruQoes de 7 de Agosto de 1826), established the number of 6 deputies to represent the overseas territories (1 to Estado da India; 2 to Cabo Verde, Guine and Cacheu; 1 to Reino de Angola e Benguela; 1 to Mozam­bique and also 1 to Timor, Solor e Macau). Few changes to these numbers were introduced over the course of the century, except in the case of India, where the number of deputies oscillated between 1 and 4. The contingent of overseas deputies was at its largest - fourteen - under the law of 9 April 1838, due to the influence of Sa da Bandeira as Minister of the ''Marinha and Ultramar.” However, from then on, the tendency was for a smaller group, falling to a minimum of six.^[622]

The electoral principles and numbers identified above could have been be re­lated to uncertainty about the demography of the empire and its territorial limits, as well as to the minuscule dimensions of the extra-European Portuguese territories in the nineteenth-century. But they can also be related to the ideas that Portuguese citizens were the sons of Portuguese parents, or those who obeyed and submitted to Portuguese law, or even those who were Christians, ideas that could significantly limit the number of indigenous people who could be counted as citizens in the over­seas territories. In addition, we must recall that the exclusionary effects of these ideas were amplified by other (metajuridical) discourses, where the concept of a Portuguese nation increasingly acquired an organic meaning. For instance, the statements about being Portuguese in the constitutional assemblies of the nineteenth century reveal how difficult it was for these representatives to imagine the Portu­guese nation as multicultural or multi-religious one. In 1821, when the deputies decided in Article 21 of the first Portuguese Constitution, that Portuguese citizens were the sons of Portuguese parents, they agreed that Portuguese were all those who “follow the same religion, speak the same language, obey the same King, embrace and defend the same free Constitution.”^[623] Portuguese legal doctrine added that the Portuguese were those who “love the Portuguese fatherland,”^[624] this feeling being one of the duties inscribed in the text of that Constitution to be observed by Portu­guese citizens.^[625] Some moments in the Constitutional discussion were even marked by the language of descent and blood. To most of the deputies, being Portuguese was not just a question of political or legal status, but implied also a cultural and even “ethnic” identification, as we have already seen in the discussions of religion. These kinds of discourses also arose later, in the context of the conflicts and local episodes of resistance to the colonial authorities that occurred in the 1830s, when it was stated that overseas peoples could hardly be subjected to the reforms underway in the metropolis, because the “new institutions” were unsuited to the “character, temperament and customs of these peoples.”^[626] This was the opinion taken by S. X. Botelho, a deputy who had been elected to the constituency of Goa in the legislature of 1838-1840 despite having been born in Lisbon and with weak relations to the Goan territories.^[627] In the previous year, another deputy had been clear in his opinion that “the majority of the settlements in the Provinces in question (mainly from Cape Verde southwards) are not all homogenous: strictly speaking, these people cannot be called Portuguese. There are peoples of castes and civilizations very different from our own.”^[628]

The idea that the Portuguese national community was composed of those who shared the same customs, religious beliefs and language also played a central role in the legal texts of the nineteenth century. These texts were rich in references to the idea that nations were and should be homogeneous in matters which concerned race, idiom, and costumes, like those of the Portuguese (Salema 1838, 22; Brito 1871, 357). On the other hand, doctrinal references to the overseas provinces, to the pluricontinental nature of Portuguese nation, or to the diversity of their peoples were a rare exception in those texts, probably because, as was the case with the in­Stitutions of slavery, it was difficult to conceptualize the Empire within a liberal legal order. Nevertheless, we must also underline that these narratives were not only related to genuine self-perception of Portuguese identity. Another question perturb­ing some metropolitan circles was the subversion of colonial systems of social dif­ferentiation involved in the grant of equal rights to some of the indigenous popula­tion of the Empire. The words of S. X. Botelho were eloquent and expressed the radical approach of some “reinois” who felt that equality would erase the distinc­tion between conquerors and conquered:

[...] from Cape Verde to far-flung Goa, the inhabitants are conquered peoples, who far out­number the locally born population of European descent, and the Europeans stationed there for trade, or military purposes, meaning that the elections will always play into the hands of the indigenous peoples descending from the conquered, and we, the descendants of the conquerors, would remain in their dependency.^[629]

Finally, all these disparate narratives about Portuguese colonial citizenship coex­isted with an intellectual effort to resolve the tension existing between uncertainties around the status of indigenous people and universal ideas about citizenship. In the nineteenth century, this effort gave rise to an abstract and vague discursive narrative according to which all those people would be, in the future, converted to Catholi­cism, to the Civil Code, and to the “Portuguese culture.” Within this narrative, sev­eral groups of indigenous people were sometimes perceived as a kind of “civilizing subjects in transition to citizenship” (Hall 2002, 6-22). These last statements, along with important legal facts - such as the constitutionally recognized status of over­seas provinces as equal to those of the metropole, the grant of Portuguese citizen­ship to all freedmen in all the Constitutional texts (which legally meant, as a deduc­tive consequence, that all freeborn Africans were citizens), or the universalist man­ner of defining citizenship in the Constitutional Charter - were the raw material that fed later persistent ideas about the “assimilationist” nature of Portuguese colonial policies, an element that colonial authors of the twentieth century have explored as an example of similarity with Roman Empire’s universalistic and erroneous “as- similationist” approach. As I have already demonstrated in the first paragraph of this text, their critical views about both universalism and “assimilationism” had consequences on the colonial citizenship policies enacted in the first half of the twentieth century. During this period, the territorial enlargement of the African provinces, the related task of governing growing numbers of African people and the problem of their increasing presence in the demography of the Empire (and its feared consequences in the representative institutions), and a new ideological con­text where racist approaches gained force gave rise to the enforcement of the exclu­sionary indigenato system. The invention of the legal categories of indigenas and assimilados reflected a shift in the conceptualization of citizenship that explicitly rejected universalistic approaches, and coincided with the invention of the idea that earlier nineteenth century policies had automatically turned all indigenous people into Portuguese citizens, an oversimplification that sought to justify new approaches to colonial citizenship.

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