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Legal and Moral Theological Literature and the Formation Of chapter 5 Jesuit Pragmatic Literature and Ecclesiastical Normativity in Portuguese America (16th– 18th Centuries) Gustavo César Machado Cabral 1 Introduction Studying the legal experience in colonial Brazil is not an easy task.1 A legal cul- ture strongly influenced by orality, a reduced sphere of institutionalised ju- risdiction, the absence of formal juridical education and the prohibition of printing books and journals are some of the most remarkable difficulties a le- gal historian faces when dealing with this period. Despite the reduced number of written sources, in which the learned legal culture somehow materialised, the few available texts constitute a possible way for analysing this juridical experience. To provide means for identifying how this erudite knowledge circulated in the colonial space is one of the purposes of this article. Ecclesiastical texts are probably the most useful sources in that respect, particularly the texts pro- duced by the priests of the Society of Jesus, the strongest religious order ac- tive in Portuguese America.2 Facing practical problems during the attempt of building a Christian society in the New World, the Jesuits had a relevant role in the shaping of the juridical framework of colonial Brazil. The writings to be analysed in this article were conceived to resolve practical problems: How can missionaries catechise the native population if they do not speak the same lan- guage? Which Christian values are essential for a neophyte to guide oneself in 1 Probably the best text about the elements of colonial law in Brazil is Hespanha, “Porque é que existe e em que é que consiste um direito colonial brasileiro”. See also Hespanha, “O ‘Direito de Índias’ ”. 2 Besides the Society of Jesus, other religious orders acted in Portuguese America but were less relevant, such as the Benedictines (1581), the Franciscans (1584), the Capuchins (1642, but there was a French Capuchin mission in Equinoctial France two decades before), the Carmelites (first half of the 17th century), the Oratorians and the Mercedarians (second half of the 17th century). © Gustavo César Machado Cabral, 2020 | DOI:10.1163/9789004425736_006 This is an open access chapter distributed under the terms of the CC-BY-NCGustavo 4.0 license. César Machado Cabral - 9789004425736 Downloaded from Brill.com10/06/2021 06:24:04AM via free access 152 Machado Cabral the social life? Who is obliged to provide spiritual instruction in that society? How can people deal with specific moral problems they were not used to? Each of these questions constitute a topic of this chapter, which begins with a sketch of the particular background of colonial Brazil. Providing practical solutions for concrete problems is the structural concern these texts share, and that is the reason why catechisms, cases of conscience and sermons can be considered pragmatic sources, in the terms described by Thomas Duve’s chap- ter in this book. In contrast to a form of knowledge structured only in a theo- retical perspective, these texts used traditional forms and European learning in order to propose practical answers for questions with juridical relevance and to construct a normative order based on Christianity. These foundations were extremely important for a society where moral and juridical matters could not be neatly distinguished. 2 An Overview on Early Modern Portuguese America During the first decades of the 16th century, in the wake of the first Portuguese expedition of 1500, the presence of Portuguese and other Europeans was min- imal. The establishment of the hereditary captaincy system in 1534, by which the coastal area of Portuguese America was divided into a dozen territories that should be explored and occupied by noblemen who had received the do- nations, did not lead to an effective occupation of the continent. Previously adopted in smaller territories such as Madeira Island, in the Atlantic Coast of Africa, the hereditary captaincy system was a seigneurial regime in which many rights, especially jurisdictional rights, over a territory were donated by the king, mainly to a nobleman.3 As the results were not the expected ones, the Crown created royal captaincies in areas not effectively occupied by their donees (donatários) and founded the settlement of a General Government in Salvador da Bahia in 1549.4 The division of Portuguese America into two terri- tories (the State of Brazil and, from 1619 on, the State of Maranhão, which was 3 An explanation of the juridical basis of the hereditary captaincy system can be found in Cabral, “Senhores e ouvidores de capitanias hereditárias”. 4 The village of Salvador was located in an area donated in the previous decade to Francisco Pereira Coutinho, who failed in occupying it permanently. In 1548, the Crown bought the territory which became the location of the general administration of the colony. A few years later, in 1565, the same happened to an abandoned area donated in 1534 to Martin Afonso de Sousa: after the expulsion of the French, the Crown created the royal captaincy of Rio de Janeiro in this area. Gustavo César Machado Cabral - 9789004425736 Downloaded from Brill.com10/06/2021 06:24:04AM via free access Jesuit Pragmatic Literature and Ecclesiastical Normativity 153 renamed a couple of times in the following century) did not result in a massive occupation of these areas. Different from what happened in some territories of Hispanic America, where cities like Mexico and Lima had a population that was compatible with big European cities,5 in Brazil the numbers were far more modest. According to estimations,6 only at the turn of the 17th century the first villages (Salvador and Recife) had populations over 10,000 people, not including slaves. Never- theless, as time went by, the population increased quickly. Except for Vila Rica de Ouro Preto, the most important Brazilian urban area during the so called “gold cycle” in the beginning of the 18th century, all the other relevant villages and cities (Salvador, Recife, Rio de Janeiro, São Paulo, São Luís do Maranhão and Belém do Pará) were located on the seaside or near it. Moreover, the presence of Portuguese officials was low in America, despite the progressive increase of nominations during the 18th century, as Nuno Camarinhas shows.7 Only at the end of the 17th century, the Crown introduced the appointment of first and second grade judges (juízes de fora and ouvidores de comarcas, respectively). Before, the litigation concerning civil matters was decided by the judges appointed by the donee of the hereditary captaincy8 (ouvidores de capitania) or, more often, by the ordinary judges (juízes ordinári- os) elected in municipal councils, who had no formal legal training and even were analphabets in many cases. Analphabetism was also frequent among the ouvidores de capitanias.9 The progressive increase of royal appointments by the Crown of judges with a law degree (juízes letrados) was part of a slow and gradual process of enlargement of the Crown jurisdiction, which did not mean the exclusion of the local jurisdiction. In 1609, the Tribunal da Relação of Bahia initiated its activities in Salvador da Bahia; due to the Dutch inva- sion, it was out of function between 1626 and 1652. One hundred years later, in 1751, a second court opened its doors in Rio de Janeiro.10 The existence of these 5 The case of the city of Mexico (with an estimated population size of around 200,000 people) is particular because of the structure that already existed when the Spaniards conquered Tenochtitlan in 1521. 6 Hallewell, O livro no Brasil, 833– 835. 7 For an analysis of this process, see Camarinhas, “A administração da justiça em espaços coloniais”. 8 Cabral, “Senhores e ouvidores de capitanias hereditárias”, 106– 112. 9 Saldanha, As capitanias do Brasil, 222– 223. 10 About the courts (Tribunais da Relação) of Bahia and Rio de Janeiro, see Schwartz, Sovereignty and society in Colonial Brazil; Wehling and Wehling, Direito e justiça no Brasil Colonial. Gustavo César Machado Cabral - 9789004425736 Downloaded from Brill.com10/06/2021 06:24:04AM via free access 154 Machado Cabral courts11 contributed to increase the areas covered by Portuguese law, but the impact seems to have been modest, with most of the conflicts being resolved in local jurisdiction. Besides this reduced sphere of an erudite jurisdiction in Portuguese Ameri- ca, another important feature of the legal phenomenon in colonial Brazil was the absence of formal legal instruction. Since the first law schools were found- ed only in 1827 in São Paulo and Olinda, five years after Brazilian Indepen- dence, in early modern times no law degree could be earned in Portuguese America. The failed attempt to create a university in Brazil by request of the Municipal Council of Salvador da Bahia in 166312 proves that the Portuguese Crown did not intend to expand the number of universities both in the king- dom and overseas.13 In this context, it seems important to recognise the role of canon law and moral theology because of the notion of casuistry and the need of resolving social conflicts. As the presence of Crown officials was not high during the first centuries of the Portuguese occupation, the most relevant institution in that time was the Church; not only because of the clergymen, but also, and particu- larly, because of the missionaries. These matters probably influenced the local authorities, which were responsible for resolving the majority of the juridical conflicts in colonial Brazil, in a social reality quite close to Tamar Herzog’s de- scription of the juridical space of Quito during the 17th century.14 The notion of arbitrium15 explains how the juízes ordinários shaped their conviction with regard to the suitable justice for a specific case rather than the pure applica- tion of royal law.
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