Justice in the 17th Century

In 1621, during the period of the Iberian Union, the territory of Brazil was divided into two large political and administrative units: the State of Brazil, which covered the captaincies from Rio Grande to São Vicente, based in Salvador (Bahia), and the State of Maranhão, which included the territories from Rio Grande to Grão-Pará, based in São Luís (Maranhão).¹⁰ Both were administered by a governor-general and subdivided into various captaincies with their own administrative structures.¹¹

Magistrates participated in the first colonizing expeditions, appointed by the king, charged with applying and administering justice. In this context, in the 17th century, three Ouvidorias (legal districts) were created: the Ouvidoria-Geral of the State of Brazil (1549); the Ouvidoria-Geral of the Southern Repartição, also called the Ouvidoria-Geral of Rio de Janeiro (1608); and the Ouvidoria-Geral of the State of Maranhão (1619).¹² These three institutions were independent from one another and had jurisdictions over distinct areas. Each Ouvidoria was established in an area considered of vital importance for the administrative organization of the territory.

The Ouvidorias-gerais functioned as singular and itinerant judicial bodies, for both the first and second levels of justice, with the power to hold trials and hear appeals, and with the principal functions of enacting justice, allowing lawsuits to progress, and facilitating the resolution of conflicts as well as overseeing the administrative actions of local councils. These institutions were run by a single magistrate, called the ouvidor-geral or the ouvidor da comarca, as well as a single clerk, the escrivão da ouvidoria e correição, and a bailiff.

The clerk and the bailiff helped the ouvidor-geralin his work, especially in the summoning and examination of witnesses, the preparation of court records, visits to local villages, and the execution of judicial warrants. At present, there is no specific research in the Brazilian historiography about these activities. However, the vast range of the functions of these positions points to their importance in the daily life of colonial administration, either because of their privileged access to law cases that were underway and information about the lives of residents, or because of their circulation within the space of comarcas (legal districts) and interactions with other governmental institutions.

Often ownership of auxiliary offices of justice was granted in reward for services rendered to the Portuguese monarchy. At the beginning of the 18th century, in the Ouvidoria-Geral of Rio de Janeiro, the position of escrivão da ouvidoria e correição (clerk) was granted as a reward for military services. For almost the entire 18th century, possession of the office passed from father to son in the same family who alternated the direct exercise of the position and farmed it out to third parties.¹³ Keeping the position in the same family was a common practice in relation to concessions involving the auxiliary offices of justice.

In Portuguese America, whenever the owner of an office had some impediment preventing them from exercising the position, they could ask for royal permission to grant it em serventia, in other words, the office holder could nominate another person to temporarily fill the position. Another frequent practice was the payment of donations to the royal treasury in exchange of the position.

The office of ouvidor-geral was triennial and exclusively appointed by the monarch. The king chose a magistrate to exercise the office from a list of three names drawn up by Desembargo do Paço. Only in the first years after the creation of the Ouvidorias, a period that coincides with the Castilian dynasty, did the appointment of individuals without an academic background occur regularly. In the Ouvidoria-Geral of Maranhão, its initial years were troubled because of the Dutch invasions, and until the 1650s it was run alternately by magistrates trained in the University of Coimbra and local men.¹⁴ In Rio de Janeiro and other places, this practice was also adopted in the first half of the 17th century, and the position was held by members of the principal local families.¹⁵

For a long time, it was believed that the Ouvidorias-gerais were controlled by individuals lacking the Desembargo do Paço qualifications or even by laypeople, as occurred, for example, with judges in local councils (Câmaras). However, research carried out since the ending of the 20st century has shown that after the end of the Iberian Union, the Ouvidorias were expanded, gaining additional powers, jurisdictions, and competencies. Consequently, appointments to these positions started to occur infrequently and only in exceptional cases, such as an opening because of a delay in the arrival of a replacement, death, illness, or the imprisonment or other impediment of the magistrate appointed by the king. In these cases, a local individual was appointed, often chosen by local council officials. From the 18th century onward, juízes de fora (judges of assize), who were qualified graduates in law, assumed the position of ouvidor-geral if the judge was absent or while awaiting the arrival of a new magistrate appointed by the king.

The most frequent practice was the appointment of more experienced magistrates, who were working in their second or third position, after completing their course in law. After a general analysis of where the magistrates in Brazilian territory came from, José Subtil concluded that more than 50 percent of those appointed had previous experience. Moreover, almost all of them were born in Portugal, with a few rare exceptions.¹⁶

The ouvidores-gerais of the three Ouvidorias had distinct regulations during the 17th century.¹⁷ These legal mechanisms equated the position of ouvidor-geral in the tropics with the position of corregedor in Portugal. However, by comparatively analyzing their attributes, as well as the limits of their positions, it can be seen that the ouvidores-gerais had a much larger sphere of action than their contemporaries in Portugal. The objective was to allow for the resolution of judicial conflicts at the local sphere. Both the dynamics of the administration and the small number of magistrates demanded this expansion of powers.

The ouvidores-gerais had to reside in the region considered to be the capital of the comarca (cabeça da comarca), in other words, the area with the greatest population density within the limits of its jurisdiction. Among their various duties were: the practice of correições (inspection of the performance of courts), at least once every three years; the holding of residências, investigations carried out at the end of mandates to check that duties were fulfilled during the holding of offices; control over the issuing of cartas de seguros and alvarás de fiança; and conducting and inspecting the process of choosing Council officers.¹⁸

The magistrates of the three Ouvidorias-gerais had very similar roles and attributes, but there were regional particularities, such as the accumulation of functions and jurisdictions, intensified by the lack of qualified lawyers in some comarcas (judicial districts). For example, the ouvidor-geral of the State of Maranhão retained the right to intervene in ongoing legal cases, both civil and criminal. This meant that they could judge any ongoing case. The right to intervene was a significant power in the colonial legal sphere, since it involved removing from a judge the right to preside over a determined case without the need for royal authorization. Other regional particularities can be identified through the reading and analysis of the regulations and the other sources listed at the end of this article.

The large territorial expanse of Portuguese America and the low number of magistrates hindered the work of Ouvidorias-gerais, and various regions spent years without the visit of an ouvidor-geral. In some cases, the magistrate in exercise took approximately six months to cross his area of jurisdiction. As they traveled through their territory, visiting towns, cities, and councils, they left behind unresolved litigation, unfinished inquiries, unpunished crimes, unenforced wills, and so on.

At the end of the 17th century, new institutions were created in different locations, and the Ouvidoria of the State of Brazil was divided in two to meet the large local demand. The expansion of the judicial network was especially necessary for reasons of an economic and fiscal order in the context of the discovery of gold and the advance of colonization.

In each captaincy in Portuguese America, there existed various governmental institutions and local groups that associated with one another, becoming confused, but also colliding. The administration of justice required great involvement with questions related to the daily life of the inhabitants, which led to associations with powerful individuals or families, with various levels of patronship. Magistrates were not only the mere implementers of laws, as in the locations they passed through they could establish interpersonal relations. In various documents, numerous reports can be found about the involvement of magistrates in local conflicts, pointing to the direct influence of personal disputes in judicial decisions, the postponement of terms, the conduct of proceedings, and even in the issuing of sentences.

Tribunals of Justice (High Courts)

Also created over several centuries in the locations where the three Ouvidorias-gerais were established were the first three Tribunais da Relação or Tribunais da Justiça (high courts or courts of appeal) in Brazil, namely in Bahia, Rio de Janeiro, and Maranhão. Tribunal de justiça can be understood as “every magistrate or collegiate of magistrates, to whom a jurisdiction is granted.”¹⁹ In the Ancien Régime, they were judicial institutions formed by judges (desembargadores) with powers to hear trials and appeals, and had jurisdiction over various comarcas. Appeals were sent to the Casa da Suplicação in Lisbon until the end of the 19th century.

In principle, the Ouvidorias-gerais had similar characteristics to these courts of appeal or tribunals. However, the great difference was in the number of magistrates, the scope of competencies, and the existence of a collegiate body of desembargadores. While the Ouvidorias were singular bodies, commanded by a single magistrate, the Tribunais da Relação functioned as a collective judicial body, presided by a Chanceler (chief judge) and consisting of approximately ten judges. A judge who was a member of a tribunal had the status of desembargador, a superior status within the magistrate career.

In Portuguese America, the appointment of a desembargador referred more to a status with privileges than to an actual function. Invariably, once appointed as desembargador, an individual could continue to make use of this title, even when no longer occupying the office. This practice still continues in Brazil. As Stuart Schwartz stated, “the title of desembargador was a type of social description and not merely a function.”²⁰

The status of desembargador could be acquired without formally taking a position in a tribunal award. It was possible to obtain the same salary and exemptions, but while occupying a lower office, with the promise of a future position in a tribunal. Being a desembargador also signified having some rights guaranteed under the Ordenações Filipinas, such as the exemption of the payment of some charges, authorization to travel by mule, exemption from serving in municipal positions, and privileged jurisdiction, extended to their spouses when they became widows and their servants. Only a small number of magistrates managed to achieve the status of desembargador under the Portuguese Crown.²¹

The creation of a tribunal in an overseas territory began with the publication of a law, or a charter with the force of law, explaining the royal decision to create a new institution of justice. Following this, the monarch chose the magistrate who would be responsible for presiding over the Relação, occupying the position of chanceler (chief judge), and the other magistrates to form the first panel of desembargadores. The governor of the captaincy performed administrative functions in the institution: the regulations show he performed an inspectorial role in relation to the functioning of hearings, while various documentary sources point to the conflicts generated among these bodies.

The Tribunal da Relação in Bahia was created for the first time in 1609 at the beginning of the formation of the judicial system in Portuguese America. However, the Dutch presence and the costs of the tribunal contributed to its extinction a short while afterward. In the final phase of the Dutch war, Council officials in Salvador petitioned for its re-establishment as they were dissatisfied with the expensive costs of sending appeals to Portugal.²² In 1652, new regulations were issued, and the institution began to operate again. The area of jurisdiction basically continued unaltered, in other words, with the exception of the State of Maranhão, all the other captaincies and comarcas remained subordinate to the tribunal in Bahia until the creation of the Relação in Rio de Janeiro.

Despite the petitions sent by subjects since the end of the 17th century, Portuguese America only gained a new tribunal de justiça in the middle of the 18th century, based in the city of Rio de Janeiro, which in 1763 also became the capital of the State of Brazil and the seat of government. In 1751, orders were issued that the materials necessary to establish the institution in the following year be sent to Rio de Janeiro.²³ In addition to the printing of the Ordenações Filipinas, collections of laws and various regulations, necessary for the desembargadores work, fine fabrics, curtains, expensive chairs, and canopies were all ordered, evidencing the pomp and the rituality involved in the courts of justice in Portuguese America.

According to reports produced by the desembargadores themselves, the tribunal was received by residents with applause and repeated public demonstrations of contentment.²⁴ Disregarding some possible exaggerations by magistrates, an extra tribunal in Brazil undoubtedly represented for those living there a more rapid resolution of litigation and at the same time less expenditure on the sending of legal petitions to the tribunal in Bahia. This may have been the cause for some celebrations.

The Tribunal da Relação in Rio de Janeiro had jurisdiction over all of the southern territory of the State of Brazil, which covered thirteen comarcas, namely: Rio de Janeiro, São Paulo, Ouro Preto, Rio das Mortes, Sabará, Rio das Velhas, Serro do Frio, Cuiabá, Goyazes, Pernaguá, Espírito Santo, Itacazes, and Ilha de Santa Catarina. Also under its jurisdiction were the judiciary, the Ouvidorias, and the captaincies in these locations.

Tribunals consisted of ten desembargadores who held positions with distinct competencies and various auxiliaries.²⁵ All the functions were exercised by magistrates with the status of desembargador, but the offices had different nomenclatures and material natures, and distinct symbolism. Within each institution there was a rigid hierarchy, well defined by the principles of experience and antiquity.²⁶

Formally, desembargadores had to serve in the tribunal for a six-year period, until the arrival of a successor, but reappointment could also occur, in other words, a new term in the same office. Annual wages were paid by the royal treasury while other expenditure was paid for from the revenue of the courts themselves. The establishment and the maintenance of Tribunais da Relação demanded increased funding and recruitment and the systematic dispatch of magistrates.

In 1808, after the Portuguese royal family moved to Brazil, the Tribunal da Relação of Rio de Janeiro was transformed into the Casa da Suplicação of Brazil. This marked the beginning of a structural change of the Brazilian administrative and judicial system that would continue throughout the 19th century, involving the creation of a further eight tribunais de justiça in the country.

It is a consensus in the Brazilian and Portuguese historiography that the first two tribunals in Brazil followed the model of the institutions of justice established in Portugal, but had their own rules and regulations that guided how they operated. The profile of these institutions was also molded by the monarchy in accordance with the local dynamics and their commercial and geopolitical interests. In the context of the creation of the first Relações, frontiers and possible external threats inspired particular attention in certain regions. These judicial institutions allowed and facilitated the entire administration to be monitored, in an environment marked by the existence of competing powers and different levels of autonomy. At least in theory, no one was outside the scope of the power of the tribunals. In practice, there was great interference by the Tribunais da Relação in various aspects of the colonial administration.

When they took their position in the overseas tribunals, the magistrates of the Portuguese Crown found themselves facing the colonial reality, marked by an administrative dynamic that allowed them a wide sphere of action, the exercise of differentiated authority, and gave them a privileged position as intermediaries between local elites and the king. In this environment favorable to the formation of political connections, they could guide their actions seeking to meet the objectives of the monarchy, or they could act in accordance with local interests, forming temporary alliances. In the documentation of the Conselho Ultramarino (overseas council), it is possible to find correspondence containing the denunciations of abuses and excesses committed by desembargadores in tribunals, issued by the governors in different captaincies and officials in various councils of Portuguese America.

In 1767, the governor of Bahia, the Count of Azambuja, compiled a description of judges and religious officials with detailed information for the then Secretary of State of the Navy and the Overseas Territories, Francisco Xavier de Mendonça Furtado.²⁷ According to this document, all the magistrates sent to Portuguese America ended up involved in local collusion and bias, which generated “a very relaxed manner of justice” and promoted a violent environment where the kidnapping of secluded girls or married women was frequent. All individuals carried pistols, blunderbusses, or knives; crimes were committed; and criminals remained free, with many being protected by the magistrates themselves. However, the governor stated that it was very difficult to prove the accusations because when he tried to officially investigate the malpractices of the desembargadores, everyone refused to corroborate these accusations, since these powerful men could potentially be useful to local groups.

Justice in the 18th Century

During the 17th century, the Tribunal da Relação in Bahia and the Ouvidorias-gerais were the central judicial institutions of Portuguese America. At the beginning of the 18th century, the process of the expansion of the judicial network began and new Ouvidorias and assize courts were created in different locations. Assize courts (juizados de fora) were spheres with their own judges and, as the name itself expresses, these men had to be from outside (fora means “outside”), coming from a place other than where they exercised their judicial functions. In the colonial period, the term juizado was used both to refer to the position and to indicate the seat of the court, the place for the exercise of judicial activities.

The juiz de fora was a letrado, an official with a law degree qualified by the Desembargo do Paço, and chosen from a list of three names. In the Portuguese judicial structure, this judge was part of the lowest level in the judicial structure and had the most reduced jurisdiction in the kingdom. Normally his area of action was restricted to a city and its environs, for this reason it was a role more occupied by initiates in the magistrate career. The designation of juiz de fora was a form of differentiation in relation to ordinary judges who were chosen to preside over the Câmaras. Ordinary judges were also known as juízes da terra and could be laypeople, since there was no obligation to have an academic education to occupy the role. The application of justice by ordinary judges was restricted and totally based on customary law. According to the Ordenações Filipinas, the juiz de fora was a magistrate imposed by the king on a place, under the pretext that they were more familiar with legal provisions and administered justice better than ordinary judges, who were often contaminated by affection and hatred.²⁸

Both the juízes de fora and the ordinary judges had to carry a rod, symbolizing their function: red was indicated for ordinary judges, that is, for those without qualifications, and a white rod for the juízes de fora, the letrado judges. The use of the rod was very important since it visually marked the separation between letrada justice (i.e., formal justice administered by a judge qualified in law) and non-formal justice. By looking at the color of the rod, everyone knew whether they were dealing with a qualified judge, but more than this, it was possible to know whether the judge had been directly appointed by the king or had been recruited among members of local communities. If a judge refused or forgot to carry the rod when performing his duties, he was punished by being fined.

Despite the gaps existing in the judicial documentation from the colonial period, it is possible to identify in Portuguese America that juízes de fora acted more frequently in the criminal area, carrying out investigations and resolving local petty conflicts. In addition to judicial activity, like the ouvidores-gerais, the juízes de fora also accumulated administrative and fiscal tasks. Moreover, they could act as substitutes for ouvidores-gerais in their absence or removal from the comarca.

The idea of establishing juízes de fora in Portuguese America came from the desembargadores in the Tribunal da Relação of Bahia. In 1677, these magistrates sent a petition to King Pedro II, suggesting the creation of the first position of juiz de fora specifically for the city of Salvador.²⁹ Members of the tribunal argued that it was necessary to have another letrado judge present in vilas and comarcas. Up to that point, in the absence of the ouvidor-geral, court instructions were carried out by ordinary judges, who frequently were partial or delayed the punishment of crimes, both because of ignorance of judicial process and in defense of their allies. For the desembargadores, it was important to have a magistrate based in the Câmaras to improve the administration of justice. Members of the Conselho Ultramarino (overseas council) were favorable to the petition. In the 18th century, the position was not only established in Salvador but in various other locations in Portuguese America. Petitions for the creation of the office in many places came from local governmental spheres, and the arguments were always very similar to those of the desembargadores from the tribunal in Bahia.

For some time, the monarchy had been aware of the misdemeanors and corruption practiced in the Câmaras, both in relation to tax collection and the declaration of the expenditure of these institutions. The new court created in Portuguese America, as well as encouraging formal law and permitting better access to justice, also helped to control the misappropriation of royal income. The creation of the office of juiz de fora appears to have been one of the first measures of central power in the 18th century in the restriction of the power of overseas councils.³⁰ It was an attempt to exercise some control over the almost unquestionable autonomy of the Câmaras at a time when Portuguese colonial policy was being reformulated.

The juízes de fora represented the lower court, and the majority of legal cases below a certain level were first heard by this magistrate. In the locations where there was a juiz de fora and an ouvidor-geral, the Ouvidoria-geral tended to perform the functions of a higher-level court, receiving appeals from cases tried in the juizados de fora. However, in practice, juízes de fora and ouvidores-gerais had very similar roles that were difficult to separate jurisdictionally. In addition, the relations established between the ouvidores-gerais and the juízes de fora were most often conflictual. In Brazilian historiography, various occurrences can be found of conflicts triggered by the arrival of the first juízes de fora. Motivations for these disputes varied, involving disputes over power, competition for spaces of jurisdiction, or quarrels motivated by political associations, bonds of compadrio (godfathership), and friendship with powerful local elites.

The different judicial spheres—ouvidorias, tribunals, and courts—were unable to meet local demands in a rapid and effective manner. In Portuguese America, the administration of justice enacted only and exclusively by magistrates was not a reality. Until the first decades of the 19th century, the coexistence of formal and informal judicial practices can be identified. Moreover, local—or customary—law still prevailed in many cases, sometimes due to the inability of some judges to apply formal law. The colonial world was a mosaic of judicial situations; the magistrates sent to Portuguese America administered justice in an environment with rules and traditions established by custom, but also faced resistance to apply norms of another nature, which in many cases were not known to all. However, these situations should not be thought of only in a reductionist form as coming from an inefficient judicial apparatus created in Portuguese America, but can also be understood as the structural characteristics of the political systems of the Ancient Regime in the colonial universe.

The institutional panorama of justice in Portuguese America was altered through the creation of new Ouvidorias and the juizados de fora. During the 18th century, the judicial network gradually spread throughout Brazil. These institutions continued to grow, adding roles and attributes, and occupying a significant place in the colonial government through the gradual increase in the number of magistrates. Furthermore, these systems existed until the reorganization of the judicial system in 1832 following the enactment of the first Brazilian Code of Criminal Procedure. Their roles were revised and came to be the responsibility of the juízes de direito, the generic name used in the Brazilian judicial system to refer to lower court judges.

Some Considerations on the Universe of the Magistracy

This article examines the essential nexus of justice in Portuguese America with the aim of encouraging the reader to better understand the topic, but without the intention of dealing with the subject in its totality. This text was constructed seeking to contribute to the current discussions of the international historiography that defend the importance of knowing the various judicial experiences of Latin America so scholars can advance in comparative studies on a global scale.³¹ Based on knowledge about the profile and the autonomous paths of judicial institutions, it is possible to identify the common references and the particularities of the administration of justice in the colonial period and, above all, in Brazil.

The judicial apparatus of Portuguese America was gradually constructed in the 17th and 18th centuries. Judicial institutions were deeply entrenched, something contributed by judges as they spread throughout the territory. In some way, everyone was subordinated to the power of the judicial spheres, to the time of justice, and bureaucratic processes. The relations established in the social environment of the practice of the magistracy were marked by contradictions and conflicts.

Endowed with power and prestige, the magistrates crossed the Atlantic, often stepping for the first time in the overseas dominion of El Rei, charged with the task of administering justice to the people, but knowing little or nothing about the unwritten codes of these people and their customs and traditions. The knowledge obtained in university or in auditoriums had to be applied in a distinct universe. Their decisions, which were supposed to be based on ordinances, regulations, laws, and decrees, needed to be adapted or even totally revised. Actually, many situations that arose in this colonial slaveholding society, where justice was often carried out by people’s “own hands” and various conflicts were resolved with political arrangements, required the creation of new practices and even new legalities expressed in records or in jurisprudence.

Magistrates circulated in different spaces, creating and working in various judicial institutions in the difficult balance between norm and practice, between written and customary law. Moreover, in the auditoriums and hearings, they worked with local prosecutors and lawyers who in many cases had little or almost no legal knowledge. Sentences needed to be entered in the autos (the official records), which at times was done without the due procedural rigor.

In the comarcas and captaincies, letrados and those with judicial knowledge were frequently recruited by the king to assume further functions, accumulating offices and functions. In these cases, the sphere of power and action was widely expanded, which led to differentiated connections with other possibilities of action for magistrates in overseas territories. Exercising functions linked to finance and war, they became indispensable agents for the monarchy, a group that helped guide the “helm for navigation,” as mentioned in the epigraph of this article.

Individually, the passage through the institutions of justice in Portuguese America represented only one moment in the magistrates’ careers, and many sought to obtain higher positions in Portugal’s judicial hierarchy. The trajectories of various magistrates were marked by complex combinations of the different contexts where they exercised their offices; for this reason, they often needed to follow their own strategies to adapt to each reality, without wasting chances for advancing and progressing in their career.

Starting in the second half of the 18th century, individuals born in Portuguese America were sent to study in the University of Coimbra, and after graduating they returned to occupy a place in the legal world. As a result, gradually the group of magistrates of the Portuguese Crown came to be composed of men born in Brazilian territory, which reveals to scholars the investment of many local families in a law course, a clear expression of the search for social ascension in a political environment in which judicial knowledge was increasingly valued and the legal profession considered even more prestigious. These men would participate in many changes and associated reforms in the Luso-Brazilian legal environment.

In the 19th century, the Brazilian territory went through a great administrative reorganization involving the creation of new judicial institutions. The first constitution of Brazil, enacted in 1824, recognized the existence of judicial power as a constituted political power that functioned at two levels. Magistrates continued to form an important political elite in the country and also came to hold positions in the legislative and executive branches of government. Many desembargadores became deputies, senators, ministers, and presidents of provinces, actively participating in politics.

The political system changed, kings entered and left the government, the institutions and the empire itself were altered, but the magistrates managed to perpetuate themselves in power and to expand their activities outside the traditional judicial environment. Magistrates and judicial institutions continue to occupy a prominent place in contemporary Brazilian society, still calling for improvements in jurisdictional provision and a more efficient coverage of judicial structures.

Discussion of the Literature

The American historian Stuart Schwartz was the first to publish specific research on justice in colonial Brazil. His study Sovereignty and Society in Colonial Brazil: The High Court of Bahia and Its Judges, 1609–1751, published for the first time in English in 1973, was translated into Portuguese in 1979. At the time of its publication, it was a still unknown topic in Brazilian historiography. Up to that point, justice in the colonial period appeared only in a peripheral manner and was not problematized in some classic works on the history of Brazil.³²

Stuart Schwartz opened the way for a rethinking of the relations between the state and society as well as the multiple facets involved in the functioning of judicial institutions in the colonial period, producing an important social history of the magistracy. For him, it was important not only to investigate the principal aspects of the tribunal but also and above all its magistrates and their trajectories. However, for a long time the question was little revisited in historical studies. The few works that emerged following Schwartz’s study were restricted only to the history of law and did not advance the reflection on the intertwining of society with magistrates and courts. See, for example, Artur Virmond de Lacerda’s book As Ouvidorias do Brasil Colônia, which despite its broad title is restricted to just two locations, with an emphasis on the 18th century, only emphasizing the formal aspects of the judicial system.³³

In 2004, the Brazilian historians Arno and Maria José Wehling, inspired by Stuart Schwartz, but at the same time giving greater emphasis to law and privileging jurisprudential characteristics, published their book Direito e Justiça no Brasil Colonial.³⁴ It contains an investigation of the institutional development of the Tribunal da Relação in Rio de Janeiro, in a moment of transition experienced by the public administration, expressed according to the authors by an attempt to bureaucratize the state and create a new legal order. As in the work of Stuart Schwartz, the prosopographical method was used to reconstruct the profile of magistrates appointed to the courts in Portuguese America, unveiling much information about the personal lives of and conflicts faced by these men.

For many years, the only specific studies about justice in Portuguese America were those of Stuart Schwartz and Arno and Maria José Wehling, and the question did not attract new adepts. However, since the 1990s, a new panorama has emerged in Brazil. Brazilian historiography on the colonial period has gone through great transformations since the 1990s, above all following the expansion and development of graduate programs. Debates about the nature of power, the Portuguese Empire, centralization, local institutions, levels of autonomy, and the possibilities of negotiation, produced in the international historiography, have directly influenced the renewal of historical studies in Brazil. They have contributed to the revision of various aspects of the old explanatory models, based on the opposition between metropole and colony.

The new works began to give greater value to colonial dynamics and their relations of power with a plurality of foci. Various regional studies were concerned with the analysis of endogenous accumulations (Internal capital accumulation), intraregional circuits, local elites, the unquestionable power of the Câmaras, and so on. Portuguese America, as well as the other overseas possessions, came to be studied as a full part of the Portuguese Empire and the politico-administrative space as a constellation of powers. Brazilian historiography has moved even further away from the idea of the existence of a colonization project reduced to submission and exploration. These analyses are profoundly influenced by the ideas developed by the Portuguese historian António Manuel Hespanha since the end of the 1980s, which called attention to the centrifugal administrative structure of the empire and to the autonomy of powers in the imperial political hierarchy.³⁵

António Manuel Hespanha’s research on institutions and political power in Portugal also inspired other generations of Portuguese historians who began to work with and dive into the topic of bureaucratic practices. In the 1990s, emphasizing administrative history, the Portuguese historian José Subtil published a study on the functioning of Desembargo do Paço between 1750 and 1833, evidencing the great political power of the institution and its magistrates. Since then, he has produced various significant works about the professional performance of judges and careers in the magistracy.³⁶

The studies of the Portuguese historian Nuno Camarinhas, who investigated around 4,513 magistrates in his doctoral dissertation, were also inspired by the prosopographical method. He sought to answer many questions about the careers of magistrates and the administration of justice in the Ancient Regime. In 2019, he created the Memorial dos Ministros site to make available his immense database of prosopographical data about the letrado judges who served the Portuguese Crown in the early modern period between 1620 and 1800. This site contains a video where the author presents a simplified chronological mapping of the evolution of the configuration of the Portuguese judicial apparatus in its overseas dominions.³⁷

The expansion of graduate studies in Brazil has helped form a fertile field of dialogue among Brazilian and foreign historians. Since 2005, inspired by the preceding international historiographical productions, young Brazilian researchers from various graduate programs in Brazil have begun to investigate the administration of justice, magistrates, and their discourses and practices. Dissertations and theses were (and continue to be) produced that emphasized the regional dimensions of the vast Brazilian territory and reassessed the role of magistrates and judicial institutions, revealing the nonexistence of a single profile for the administration of justice.³⁸ Observing the possible adaptations in the judicial system to resolve litigation, they show the discretion of magistrates, the plasticity of judicial relations, and the influence of political and personal questions in the progress of proceedings. This research draws on documents held in different research institutions in Brazil and in European countries, above all in Portugal.

In 2010, the first specific study was published in Brazil about the administration of justice in the 17th century.³⁹ The research focused on the Ouvidoria-geral in Rio de Janeiro and highlighted the presence of career magistrates and graduates of the University of Coimbra, and revealed the leading role of the Ouvidorias in the daily life of colonial administration and in the functioning of the Câmaras.

Since 2010, various books and articles have been published about the social functioning of judicial institutions in Portuguese America, with an emphasis on the construction of a social history of the magistracy, seeking to push forward and develop further some of the ideas proposed by Stuart Schwartz.

Published in 2017, the collection Justiça no Brasil Colonial: Agentes e práticas brought together the principal Brazilian researchers interested in the theme. In various chapters, the authors sought to understand the functioning of justice in the tropics, considering both biographic and prosopographical aspects, such as relational networks and the possibilities of involvement with colonial elites.⁴⁰

However, despite the great advances in research in Brazil on the topic and the efforts to reconstitute dimensions of the judicial sphere that are still little known, scholars are still in an open field, with many questions to be explored. Just to cite a few examples, there are still no academic studies about the Ouvidorias of Bahia and Maranhão or about the relations established between the tribunais de justiça of Portuguese America and the higher courts in Portugal. Nor do scholars know how various courts functioned, the internal procedural processes of comarcas, or the practices of auxiliary officials. Judicial arbitration, residências, and correcionais, subjects much studied by historians of different nationalities for the context of Spanish America, are questions that are rarely or never researched for Portuguese America, which helps explain the absence of comparative works about the social functioning of institutions and the various judicial experiences of the colonial world.