THE EMPIRE AND THE METROPOLIS. A HISTORIOGRAPHICAL OVERVIEW

Although the new understanding of early modern polities did not immediately af­fect overseas history, the image of a politically decentralized empire made periph­eral did fit - indeed, was even a better fit - for the analysis of European early mod­ern empires, at least in the Portuguese dominia.

Portuguese early modern colonial dominia were made of many different mod­ules (Timor, Macao, Eastern Coast of Africa), each living in a state of almost total autonomy until the 19th century. These simple facts call for a revision of several pervasive conceptions regarding the political history of the so-called Portuguese “Empire” (a designation scarcely used in historical sources and, in any case, with- outany concrete institutional meaning). This revision is further required given re­cent developments in Luso-Brazilian history that insist on the oppressive character of the empire.

The first point deserving reflection is the rationale for a survival of the image of a centralized Empire, at a time when the corresponding centralized image of the realm - Portugal itself - was falling apart. My explanation is rooted in the ideo­logical role that the image of a centralized empire played in contemporary debates.^[415]

From the Portuguese colonizer’s point of view, the image of a centralized em­pire was ideologically rewarding. It gave credit to the genius of the metropolitan people, allowing them to re-impersonate old empire builders such as the Romans. By contrast, highlighting the constitutive role of peripheral elements would be counter-productive, as it would allow the fading of the gloss that made the imperial enterprise shine. From the point of view of colonial elites, an absolute, centralized, and oppressive empire led more straightforwardly to an everlasting celebration of self-identity, self-reliance, and, also, self-indulgence.

These political underpinnings were quite clear in the pervasive anti-colonial dis­course of some of the most traditional Brazilian historiography. However, these same considerations seem to dominate recent literature as well. Nonetheless, even classics like Caio Prado, Jr.,^[416] F. J. Oliveira Viana^[417] and, in general, almost all of the most dis­tinguished Brazilian historians stressed - under different tones - the large degree of self government in colonial Brazil. The newest Brazilian historiography also stresses the vitality of colonial society, the flexibility of its living law, the overwhelming power of county and city councils and of the local gentry (nobreza da terra), the easy integration of crown officials in local communitarian networks, and the non-enforce- ment of royal orders and royal law.^[418] Noteworthy in this sense are the works of Maria Odila Leite Dias who promotes a reading of Brazilian history freed from the obses­sive opposition between metropolis and colony. Nonetheless, these developments are not uncontroversial. In a recent book, Laura de Mello e Souza strongly reacted against this “revisionism,” arguing that the paradigm of the European Ancien Regime’s cor­porative monarchies simply does not fit a colonial situation at all.^[419]

2.1. A colonial project?

Traditional historiography thus insists on a neat separation between metropolis and colony, and in the existence of a project of submission and exploitation of the latter by the former. If we are to show the inadequacy of this hypothesis, we must first stress the lack of a general model or strategy for the Portuguese expansion.

There were evidently several topoi incidentally used in colonial discourse to define the purpose of the enterprise.

Furthermore, although bulls and treaties of the late 15th century guaranteed to the Portuguese the exclusivity of navigation and commerce within “their half of the world,” thus seemingly indicating a seminal idea of unity of overseas settlements, this idea carried only light political content. In fact, political paramountcy was con­ceived as a purely negative right of preventing others from entering that space, with the only positive content of assuring the monopoly of commerce and the defense of an orthodox evangelization. In other words, the sole underlying imperial concept was that of a trade and missionary monopoly, in opposition mainly to other Euro­pean powers. The variety of “political situations” within the Portuguese colonial space derives from this emptiness of the original colonial constitution.^[420]

2.2. Institutional framework: no homogeneity, no centrality, no hierarchy

2.2.1. A multiple personal status

A constitutional approach describing the institutional forms used during Portuguese expansion confirms this atomistic picture of the Portuguese overseas empire.^[421] Al­though each and every Portuguese settlement was tied to the metropolis by some political link, a unified colonial constitution, and universal notion of membership, was lacking until the 19th century.^[422]

The first factor of differentiation was the absence of a unified status for the colonial populations.^[423] Some colonial inhabitants, namely those born from Portu­guese parents, were considered Portuguese “natives” (natural - Ord.

While this was the situation of those descending from Portuguese, foreigners, by contrast, were unbound by Portuguese law and order. This was the case of Bra­zil’s “wild Indians” (“indios bravos”), whose sole obligation - that of accepting commerce and catholic predication^[425] - arose from the law of nations (ius gentium), and not from a particular colonial submission. This was also the case of the African “sobas amigos mas nao vassalos” (friends but not vassals), to whom the Governors’ charters (regimentos) often referred.^[426] The situation of neighboring free nations, however, was quite unstable. Colonizers used any failure on their part to accept missionaries or traders or to abandon the bush and come into closer contact with the white men as a reason to declare a “just war” against them.^[427] In Africa, the Portu­guese authorities used to punish with war those nations that did not accept willingly a treaty of vassalage submitting them to the King of Portugal.^[428] In Brazil, a decree dated 1655 ordered the performance of a formal process, notifying neighboring na­tions that they were required to declare whether or not they wanted to became vas­sals - or, at least, “friends” - of the Portuguese king. Those who did not want to receive even the friendship of the Portuguese were notified that they were required to allow at least the predication and peaceful contact with the Portuguese.^[429]

In between these, several other situations existed.

Singular, from this perspective, was the situation of Macao. This singularity was in part due to the obscurity of the formal act (if any) by which the Emperor of China allowed the Portuguese to settle there. Although the local authorities made great efforts until the late 18th century to clarify this question by way of diplomacy or research in royal or local archives, they were largely unsuccessful. Eventually, a rather empty formula was set - Macao was to be a Portuguese “settlement” (esta- belecimento), a formula that was still used in the Portuguese constitutions of the 19th century.

This heterogeneity in the personal status of people living in the empire created a plurality of political links and legal situations.^[433] As a result, the crown and its local delegates could not subject all the inhabitants to uniform rules or overrule the jurisdiction of native authorities, which were recognized by treaty, nor could they ignore the special legal statuses applied to the Portuguese, which were fixed by lo­cal charters or established usages.

Briefly, the uniformity and boundlessness of political power characteristic of centralized states did not exist in this type of empire. Institutional entanglement, the plurality of legal models, the diversity of constitutional limitations on royal power and the consequent negotiated character of political bounds duplicated overseas, the composite and complex structure of European polities of Early Modern Age. A unitary and universal notion of membership in the empire, analogous to or deriva­tive from largely non-existent unitary and uniform notions of citizenship in the metropole, was largely precluded.

2.2.2. A pluralistic law

A close examination of “colonial law”^[434] would reveal that a unified and all-embrac­ing body of law was also missing in the Portuguese domains overseas. What Span­ish historiography uses to call the “derecho de Indias” was, in fact, a disparate col­lection of statutory legal providences, of very different ranges and topics, made even more fuzzy by a pervasive and sustained practice of casuism, a typical feature of the decision-making style of the Ancien Regime’s courts, also in colonies.^[435] Far from a shining “imperial law,” what we can extract from the sources is a humble and messy patchwork of legal situations and solutions.

Several factors can be listed to explain the pluralism and inconsistency of colo­nial law during the early modern period. First, this pluralism and inconsistency was a reflection of the legal inconsistency of the very architecture of European common law,^[436] which was built upon the principle that particular rules (like local customs, local “styles” of deciding in court, and privileges; in a word, iurapropria) are pref­erable to general rules (like statute law, ius commune). Second, the principle ac­cording to which a later law revoked a prior law (lex posterior revogat priorem) was not strictly binding, because rights acquired under the prior law were to be re­spected even after its revocation. This explains the multitude of legal obstacles to the implementation of a new general policy, even when it was defined by royal statute.^[437] As suggested before, this feature of European medieval and early modern law was not truly related to the particular history of Iberia (the conviviality with other nations such as Moors or Jews).^[438] Instead, it was a general characteristic of European ius commune, a characteristic that turned out to be a critical advantage when the colonizers had to deal with a complex and changing world, like that of Spanish and Portuguese expansion. Thirdly, legal inconsistency also had to do with something that has already been evoked - the constitutional pluralism of the em­pire, where each submitted nation could enjoy the privilege of preserving its law, granted by treaty^[439] or by the very doctrine of common law. This meant that Portu­guese law was to be applied only to Portuguese naturals - i. e., Portuguese by blood (Ord. fil., II, 55) - while the natives were ruled by their specific law. To put the matter in theoretical terms, jurisdiction was determined by principles of territorial­ity and personality simultaneously, resulting in an overall population deeply dis­joined from itself. Even when Portuguese judges had jurisdiction over native peo­ples, the standards of decision were native law, not Portuguese law, except for those cases where supreme (namely, religious) values were at stake.^[440] The intervention of Portuguese judges or the subordination of their sentences to appeal to a higher royal court deformed, naturally, native standards of decision making.^[441] Rather than a strict native version of law, what was enforced was “Creole justice,” in which na­tive rules were subsumed to western values, either implicitly or explicitly. One way or the other, whether native or Creole, an island of unofficial and autonomous law

was created in the colonies. Finally, legal inconsistency was also derived from the very nature of colonial higher officers - viceroys and governors.

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