“ROMAN UNIVERSALISM”: A SOURCE OF INSPIRATION OR A MISTAKE TO AVOID?

The questions of what it meant to be, become, or benefit from the status of a Portu­guese citizen in the nineteenth century Portuguese Empire have received several - sometimes contradictory - answers.

the [...]policy of assimilation has been followed by the nations of the Latin race as heirs of the assimilatory genius of Rome. Portugal, Spain and France are the nations that represent this policy. The ideas held by the French Revolution deeply favored this policy. The French Revo­lution effectively proclaimed the equality of all citizens, and held the rights that it proclaimed for itself as belonging to all men, irrespective of race or latitude. The natural and logical con­sequence of all these ideas was to treat the inhabitants of the colonies as similar to those of the metropolis, carrying the rights of men overseas.^[592]

Marnoco e Sousa denounced the submission to a single uniform Portuguese law of different people, with diverse cultures and heterogeneous customary law (“usos e costumes”), as one of the worst consequences of this policy:

It was this criterion that guided colonization in the first three quarters of the 19th century, with the most serious consequences on the colonial enterprise. Our laws are entirely unfit for the indigenous context of the colonies. Some of them will be dead letter, others will produce counterproductive results, while, at the same time, a large number of juridical relations will lack normative principles.^[593]

This opinion was not restricted to the metropolitan elite but shared by colonial ad­ministrators from elite creole backgrounds such as Caetano Goncalves, a member of the Christian elite of Indian origin from Portuguese Asia (Goa) who spent some years of his life in S. Tome, where he held the position of “Curador Interino dos Servicais''(1897). and who was later appointed as judge in the Congo (1899).

One of the great faults of our overseas legislation resides in the uniformity of its application to peoples of diverse origins and ethnic capacities, such as the Celtic-Iberians of Europe, the kaffirs of Southern Africa, the Aryans and Dravidians from India, the Tungus of Macao and the Papuas of Timor - races and civilizations that are completely distinct [from each other]. This defect, which produces the absurd result of a literate criminal from the Portuguese provinces of Minho or Beira being judged according to the same legal norms as those applied to a savage from Guinea - is what the justice regime of 1894, the subject that I am especially addressing, suffers from.^[594]

Another negative effect of the universal approach to the colonial citizenship that this literature identified was that most indigenous populations were being granted civil and political rights that they were able neither to understand nor exercise. This was the opinion of Rui Ulrich, also a professor of colonial administration at the Faculty of Law at the University of Coimbra until 1910. Ulrich regretted the Con­stitutional norm according to which the liberal monarchy had declared “that native people born in the Portuguese colonial territory have the same rights as [those granted to] Portuguese citizens.”^[595] As was the case with the lessons of Marnoco e Sousa, Ulrich credited the presence of this Constitutional norm to the influence of Roman ideas about universalism and legal and cultural assimilation:

Portugal was, along with France, the country that most inconveniently assimilated the metropo­lis to the colonies, in its legal as in its administrative regime. Both these Latin countries de­veloped the ideas of the Romans, who, through the presence of the colons, sought to inculcate their language, their customs and their civil and political life among the subject population.^[596]

Similar opinions were rather aggressively expressed by the civil and military offic­ers who were sent to the colonies, either to be governors or to fight indigenous populations in the African military campaigns undertaken during the last years of the nineteenth century.

What partially animated these statements were the application of the positivist narrative about the organic nature of nations and their irreducible character, as well as racist approaches to the study of human diversity, the effect of which was to make indigenous people Inassimilable. But, as we shall see in the last paragraph of this text, these statements were also motivated by the vested aim of legitimizing the indi- genato (indigenous) system that had been set up, for the first time, by the Republican regime in 1914-17. This system entailed the construction of two new legal catego­ries, the indigenas and the assimilados. The indigenas were individuals “of color” or of “black race” who were considered unable to distinguish themselves from the com­mon people of their race (or from their native cultural background). As a result of this inability, they were submitted to a distinct legal regime that governed their civil, criminal, and fiscal status, as well as their work and property. The assimilados, on the other hand, were defined as those indigenous individuals who could obtain Portu­guese citizenship if they demonstrated that they had completely abandoned the hab­its and customs of their race (or those habits and customs which were associated with their native cultural background) and demonstrated the ability to speak and write Portuguese (or, in some cases, one of its dialects, or, in other cases, another educated language). Finally, they were also required to demonstrate the capacity “to practice a profession, trade or industry” or to “own goods sufficient for their subsistence,” which allowed them to be “exempted” from the special laws for natives (indigenas) namely the work laws.^[598] The other underlying (although even more crucial) aim of the indigenato regime was likewise related to the previous one.

Some years earlier, in the late eighteenth century and the first half of the nine­teenth, legal texts were published that also asserted that both Portuguese law and Portuguese citizenship rights were spread all over the territory of the Portuguese Empire. These texts also suggested that the Constitutional norm of equality regard­ing citizenship was inspired by Roman reflections on the status of peregrini (foreign­ers) and barbari (barbarians), as well as by the emperor Caracalla’s grant of univer­sal citizenship in 212. In one of his most important works, published in 1789, Pas- choal Jose de Mello e Freire, a very well known and respected Portuguese jurist of the eighteenth century, wrote that “Portuguese citizens are those who were born in Portugal from citizens” and that “by Portugal we mean Lisbon, the provinces and the dominions of the Discoveries, because among us the diversity of places have never gave rise to the diversity of legal orders, a diversity that had also been abolished in the Roman World by Antoninus Caracalla and his well known Constitution [...].”^[599]

Antonio Ribeiro de Liz Teixeira, a famed professor of civil law from the first half of the century, made similar statements after the first Portuguese liberal revolu­tion and the enactment of the Constitutional Charter of 1826.

The quality of [Roman] citizen [...]that was, at the beginning, reserved for the inhabitants of the Roman territory, later granted to the people of Lazio and, even later, to those of Italy, and finally extended by Caracalla to all the subjects of the Empire, without difference of territory, save for the exclusion of the independent people and Nations [.].^[601]

He also insisted once again in other paragraphs of his text that “[...]the son of Por­tuguese father, born within the Lusitano territory, both in Europe, as in Asia and Africa, was born a Portuguese citizen[.].^[602]

Later in this text I will point to how this doctrinal ambiguity around the formal criteria that defined who was and who was not a Portuguese citizen was shared by other legal texts, as well as by other narratives that took the empire and its indige­nous populations as referent, giving rise to a great deal of uncertainty around the subject. What I would like to underline now is how the references to the Roman world and the Antonine Constitution in the doctrinal works authored by Paschoal de Mello e Freire and Liz Teixeira differed from those in the textbooks on colonial theory of the late nineteenth century, referred to earlier. While the latter authors held Roman influence responsible for imperial decline, the earlier texts celebrated Ro­man influence, with the Roman empire emerging as a model to be emulated. Just as in the case of the Roman empire, Portuguese (civilized) law was described as the unifying feature of the Portuguese empire (Pagden 2002, 42). In addition, if all those who were born within the Roman Empire after Caracalla were citizens, so also were those who were born in Portuguese territories in Europe, Africa and Asia. The idea of a Portuguese empire as a recreation of the ancient Roman empire was something that made positive sense in the political and legal culture of the time, as was also the case during the early modern period (Pagden 1995, 9-28; Zoltan 2004; Cardim 2010, 2011; Marcocci 2013). There were, nevertheless, some doubts sur­rounding the status of the indigenous populations of those distant overseas Portu­guese provinces, doubts that were absent from what is known about the original text of Antonine Constitution, which turned all free alien residing in the Roman prov­inces into Roman citizens (Mathisen 2012, 754).

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