Brazil’s adoption of a monarchical form of government after Independence gave that country a distinctive political identity in nineteenth-century Latin America and continues to dominate our knowledge of the empire. Where nineteenth-century Brazilian history is seen to diverge from the “pattern” of the Spanish American republics, the constitutional monarchy is generally held responsible for the difference. Accordingly, the Portuguese colony’s failure to fragment into its component regional parts is explained by the monarch’s legitimizing and unifying presence; and Brazil’s apparently greater political stability under the empire is taken as a reflection of the inherent stability of a hereditary executive.1 Yet this causative invocation of the monarch is not an adequate explanation in either case and may even amount to begging the question. Certainly it is unclear that the emperor was personally responsible for sparing Brazil a divisive and bloody struggle against the mother country, and it is likewise difficult to show that the monarch was particularly instrumental in unifying and integrating the political system that emerged. Brazil was subject to severe regional tensions, political instability, and even uprisings until the 1840s; and, at least during the reign of Pedro I (1822-1831), the emperor seems to have been more an irritant than a pacifying influence. Nor did the accession of his son, Pedro II, in 1840 spell an immediate end to political unrest.
Stereotypes extrapolated from our knowledge of the forms of Latin American governments break down in this way because we know very little of their substance. What were the practical mechanisms of nineteenth-century political systems? How successful were these mechanisms in integrating political form and social reality at the local level where the chief executive was, at best, a remote figure? The extra-official or semi-formal structures of governments are often obscure, but an understanding of them is fundamental to an understanding of the societies and official polities they serve. In the specific case of Brazil, for instance, it now appears that the means of political integration and stabilization are to be found less in the supreme person of the monarch than in the prosaic contours of imperial governance and the local integrative capabilities of imperial institutions.2
This study will examine the functions and personnel of one such institution—the professional magistracy. By manipulating their political and social attributes, Brazil’s career judges were instrumental in reconciling the central authority of the monarch and his ministers with the local power of the scattered, heterogeneous elites who were the empire’s political bedrock. As bureaucrats whose powers were essentially derivative, the judges were able to maintain a lower profile than either the emperor or the rural bosses. Historians have overlooked them almost entirely. Yet their political brokerage was so crucial and their corporate influence so pervasive that any serious discussion of imperial politics and society must take them into account.
Magisterial influence was no novelty in independent Brazil, for the Portuguese professional judiciary had played an important role throughout the colonial period. Stuart Schwartz’s study of the High Court of Bahia has richly documented the influence of the highest level of crown magistrates, suggesting a pattern that seems to hold for lesser judges as well. The colonial desembargadores, at the same time that they carried out their formal administrative duties, became enmeshed in the workings of Brazilian society through personal ties that tempered their official decisions and made the court a kind of buffer between crown and colony.3 At a lower level a similar role was played by the judges of Brazil’s inferior courts, the ouvidores and juizes de fora of the colonial period; on the one hand they were the cardinal representatives of royal sovereignty in the vast colony, while on the other they responded flexibly to local needs.4
In independent Brazil the traditional relationship between king and magistrate was in part responsible for the continuing influence of the magistracy. But the very image of the Portuguese judiciary as hand-maiden to the Crown prevented that role from going unchallenged after 1822. Native reaction against the colonial system was inevitably vented in strong opposition to the judges who had sustained it. Brazilian critics attacked the elitism of the Portuguese magistracy, the corporate spirit and snobbism of royal judges, and the cultivated mystique of the common education at Coimbra (“the ancient factory”).5 Criticism of judicial corruption was an immemorial tradition in the Portuguese world, and seemingly everyone in Brazil had a favorite tale of judicial venality to relate. One newspaper identified bribe-taking by judges as the “contagion that has been the greatest scourge of Brazil’s provinces,”6 and even foreign observers agreed that Brazil’s legal system rested in hands often crossed with silver.7
The force of this reaction was such that plans and legislation for civil reforms after Independence centered largely around reform of the judicial system. In fact, the domestic energies of Brazilian liberalism were directed primarily at freeing the nation’s legal system from the custody of the inherited Portuguese magistracy. Liberal experimentation with novel concepts of popular sovereignty, localism, and democracy were carried out mainly in the area of judicial reform.
The years of liberal political dominance (1827-1837) therefore witnessed a nearly complete overhaul of the colonial judicial system. Acting on ideological premises and spurred by the fear of renewed absolutism, Brazil’s liberal reformers sought to decentralize, democratize, and demythify the judicial branch of administration. Their major creations to this end were two: the elected, parish-level justice of the peace (juiz de paz) and the jury system for criminal proceedings.8 Both institutions were designed to assure judicial “independence” by introducing lay influence into the legal process, and they were thus a calculated threat and insult to the professional magistracy that they partially supplanted. The professional judges retaliated by blocking and sabotaging the new institutions as best they could.9 And the central government, in turn, quickly became disillusioned with “independent” justice because it was uncontrollable.10 The local potentates who could control the institutions likewise provided little support for the elected judge and the jury system because popular mandates conferred little prestige, juries were unwieldy to influence, and both institutions promoted disruptive instability. Moreover, the agricultural magnates quickly realized that extreme local autonomy severed their traditional ties to the central administration. In the colonial period crown magistrates had provided this liaison service, but elective justice cut the parish off from the central government and vice versa. Regional rebellions, factionalism, election-time violence, and fraud increased dramatically in the 1830s, and many observers found the causes of all these phenomena in the “excessive freedom” granted by the liberal judicial reforms.11 Brazil seemed to be slipping into an “anarchy” reminiscent of the Spanish American republics, and the reform institutions were identified with what Brazilians thought of as “American liberalism . . . a fierce and ungovernable variety.”12
The desire to reestablish order and create a stable political system spawned a reactionary counter-reform movement in the late 1830s; and the emerging Conservative Party, like the previous Liberal governments, sought its goals through manipulation of the judicial system. In 1841 a reactionary majority in the Brazilian Parliament succeeded in radically altering the 1832 Code of Criminal Procedure, the document that defined the authority of the jury system and the justice of the peace. This counter-reform, known in Brazil as the Law of December 3, accomplished three strategic goals for the Conservative ministry. First, it neutralized the liberal institutions. The justice of the peace lost his police and criminal powers to provincially appointed sheriffs and their deputies; and the jury system was harnessed by making jury formation and decisions subject to review by centrally appointed judges. Second, the new appointive offices of justice and police vastly expanded the government’s patronage powers. The reform virtually doubled the number of appointed and salaried officers of justice at the local level, thus giving the ministry the administrative reach it had lacked in dealing with the Liberals’ “independent” judicial complex. Finally, and most important, the new law restored the professional magistrate at the district (comarca) level to status commensurate with that of his colonial counterpart, the ouvidor. In each of the 114 comarcas of the empire, at least one government appointed district judge (juiz de diretto) would oversee the activities of local officials, recommend appointments, and relay political intelligence. In the absence of the juiz de diretto, his place would be taken by the municipal judge (juiz municipal). This post, too, was made directly appointive by the new law and reserved for graduates of the legal faculties (bocharéis formados).13 The law of December 3 was a striking reversal of the liberal judicial ideals of popular participation and independence.
If the ties of dependence thus established between the local judiciary and the government forged a centralized political and administrative network, the manning of that network by professional judges made it a partisan issue. The Liberals had predicated their earlier reforms on a fundamental distrust of the elitist magistracy, and had emphasized lay justice as an alternative to judicial exclusivism. Conservative reforms such as the 1841 law, however, were based on a revival of the letrado judicial class, along lines reminiscent of the colonial system. Many Liberals shared the outrage of one senator, who declaimed, “Gentlemen, it is extraordinary that nowadays no one wants to make a move without the magistracy. In the old days the cry went up: No more magistrates! Down with the judges! Organize a Procedural Code and bring on the jury system! But now everyone else is excluded and the magistrates are . . . everything.”14 Liberals warned that the reactionary reform would fill Brazil with an “army of judges,” and a senator from Minas Gerais identified the tendency of the time as “the enslavement of all Brazilians by the magistrates.”15
This was the familiar rhetoric of judge baiting, but more than a few observers recognized the long-range probability of excessive political power being concentrated in the professional district judges. In the lower house a deputy laid bare the political nature of the reform legislation: “Everything will be subject to the judicial aristocracy, or rather, to the government, for this reform subjects the judiciary to the [ministry].”16 Liberals believed that by so strengthening the magistrates, the Conservatives had effectively delivered the government into the judges’ hands. One Liberal spokesman, Francisco de Paula Sousa, saw sinister portents in this reascendency of the letrados. With considerable accuracy he predicted the emergence of tight, corporate dominance of the political system and concluded that the proposed reforms would ultimately determine the very form of government: “The government will become a true oligarchy, chiefly a judicial oligarchy.”17
How did this judicial “oligarchy” operate? Schematically we may imagine the district judge as a sliding fulcrum, capable of determining the leverage differential between Brazil’s local socioeconomic elite on the one hand, and central government or political party on the other. Through the judge the government provided essential judicial services and patronage to its supporters and denied them to its enemies. Moving in the opposite direction, local “influences” cooperated with the district judge in producing suitable election results and supporting the regime. Each end of the lever was simultaneously client and patron of the other, and the district judge acted as broker between the two.
As the Liberals were quick to point out, the system rested on a highly “dependent” magistracy. The political essence of the 1841 law was guaranteed by the coercive ties of dependence—primarily the power of appointment—that bound the magisterial network to the government and gave the ministry ultimate control over its judicial representatives. Put simply, in return for his appointment and salary, the magistrate would represent and make palatable the authority of his patron, the central government. It is necessary to bear in mind the distinction between this nonpartisan, integrative role of the magistracy and the partisan character of individual judges, though in practice the distinction became rather academic. Since Brazil developed a bipartisan political system, the judge’s function as dependent political agent was most openly and frequently visible in the partisan juggling of appointments. The existence of national parties made a ministry’s choice of personnel crucial, not only to the long-run authority of the central government, but also to the short-term fortunes and electoral success of the party in power. Manipulation of judicial personnel, therefore, became an infamously partisan activity, and while the partisan aspect was only a variation on the government’s basic right to control its own agents, such party maneuvering is an accurate index of the political nature of the magistracy as a whole.
The Constitution forbade dismissal of professional magistrates, so the mechanics of judicial manipulation were centered in the use and abuse of the power of remoção, or transfer. Since at first most judges sympathized with the Conservative Party, the Liberals were forced to use remoção most blatantly. When the Liberals held power briefly in 1840-1841 and again from 1844 to 1848, for example, their transfers of judges and dismissals of inferior officials rearranged the bureaucratic personnel of the entire empire. These ministerial transfers were apparently never a matter of public record, but newspapers in the capital kept their own lists and their estimates usually tallied. In eight months in 1840-1841, the Liberal Minister of Justice transferred 43 district judges, causing chaos in the system by sending some to comarcas that were already occupied. When the Liberals returned to power in 1844, some 52 juizes de direito (at the time there were 116 comarcas in the empire) were transferred in preparation for the parliamentary elections.18 The Liberals’ desperate attempt to break the power of Conservative judges in the critical province of Rio de Janeiro in 1844 can be traced in the provincial president’s correspondence with the Minister of Justice, requesting a complex series of transfers and switches designed to get “frenetic opposition” judges out of the province or relocate them where their “opposition would cause little harm.”19 This practice of rearranging magistrates became the norm, and when the Conservatives returned to power in 1848, the new Minister of Justice made over 70 transfers in a single year.20 The party on the outs invariably protested this practice of “inversion,” but, in private, politicians shrugged at the periodic “contredanse of judges.”21
Because a judge’s political affiliation and willingness to act on it was a prime condition for appointment by partisan ministries, it was necessary for the Minister of Justice to know where the potential juiz de direito stood on party matters. At first this was facilitated by the relatively small number of professional magistrates in the empire—approximately 150 juizes de direito at mid-century—and the assumption that most of them were Conservative. But as time passed, younger and more opportunistic magistrates began to mount the Liberal bandwagon, and a judge’s sympathies could no longer be taken for granted. So politically partisan were the appointments of magistrates, however, that the empire has left no comprehensive files, career data, or biographical information on these members of the high bureaucracy.22 Conservative and Liberal ministries apparently kept (and destroyed) their own private records, which included political information that could not be allowed to fall into the hands of the opposition. The magistrates themselves generally showed a calculated amnesia about past service, and when in 1849 the Ministry of Justice asked for career résumés from the juizes de direito of Rio de Janeiro, the judges were remarkably vague about their professional histories, sometimes forgetting the year of an assignment and almost uniformly failing to mention political and administrative offices held between judicial posts.23
The political account books which do remain to us—probably by accident—are revealing documents. The Liberal ministry of 1847 undertook one such survey of its judicial support in the provinces, and the result, albeit fragmentary, showed at once how spare was Liberal support among the judiciary in that year and how assiduously anti-Liberal magistrates had been exiled to remote, and electorally insignificant, comarcas. In the northern province of Ceará, for example, fully seven of ten juizes de direito were actively hostile to the Liberal ministry, and in the northeastern province of Paraíba, four out of five judges opposed the government. The judges appointed for five of the six comarcas of remote Piauí had not even taken office, and the single magistrate active in the province was an oppositionist. Apparently the Liberals had concentrated judges of their own persuasion in the more important provinces of the center-south. No data were given for Rio de Janeiro, but of the 14 judges of Minas Gerais there were “only two political complaints,” and in São Paulo at least two of the seven juizes de direito were overt supporters of the party in power.24
As the number of eligible letrados in the empire increased and it became less possible to assume that a judge would favor the Conservative Party, political head-counts had to be carried out at the level of the juiz municipal—the proving ground for graduates of the Brazilian legal faculties, and the anteroom to appointment as juiz de direito. One remaining ledger of “classified information” on municipal judges, which was begun in 1846 and kept unevenly thereafter, gives fairly complete political information on the municipal judges of Piauí in 1862. The entries, supplied by a provincial president, sometimes referred to the judges’ competence or intelligence, but their true purpose was to provide an accurate guide to the politics of the young bacharéis. A succinct entry might include simply the information that a judge was “Conservative. Good judge. Intelligent and knowledgeable. Above party intrigues.” But in other instances the president would elaborate: “I do not know his politics, but by his family I would expect him to be Liberal.” Only three of the twenty-four judges listed were identified with neither party, and one-third of the total was classified as “political,” that is, actively involved in elections. One was called a “committed and frenetic Saquarema [Conservative]. He is ruled by his political passions.” Another Conservative was described as “an eminently political judge. Serves as party boss in the district. Protects his friends and gives no quarter to his political enemies.” A Liberal involved in partisan activities was said to be “influenced by his father who is party boss in Parnaíba.”25
The government’s need and ability to transfer judges reinforced their tendency to be openly partisan, for political service was one of the few bargaining points the judge had in the assignment and transfer process. To be apolitical was a liability, for as one deputy put it: “If a juiz de direito doesn’t involve himself in politics he loses the regard of the public, and there is always another bacharel whose political inclinations please the government of the day. Let us bid the former farewell; his transfer will make way for the latter.”28 Influential relatives or contacts might win a desirable first assignment for a young bacharel, but thereafter a judge’s willingness to serve the ministry was usually the determining factor in making the best assignments. Most conventional letters of recommendation seem to have been routinely ignored, and, especially as after mid-century competition stiffened for the coveted posts in the magistracy, a young letrado’s progress was usually determined by his ability to promote party interests.27
From the judge’s point of view, of course, an inopportune transfer to a remote comarca might be tantamount to dismissal. A magistrate could sometimes refuse the post and settle down to await something better, but for men with families, arbitrary government transfer for political reasons was an onerous burden. The reshuffling of judges that followed each change of government deposited a fresh contingent of disgruntled magistrates on the ministry doorsteps of Rio de Janeiro. And at such times the official correspondence of political leaders swelled with the pleas of those who were unhappy with their new posts (“Here I find myself, for my sins, in Rio Grande do Norte”), or whose expectations had been dashed because “The minister had a son-in-law to place.”28
For the most part, however, the empire’s career judges acquiesced in the considerable inconvenience posed by political transfer. Their Portuguese heritage included no alternative tradition of disinterested appointment by merit; and in Brazil the belief that judges might be appointed for reasons other than political ones does not appear to have been widely held. When, in 1854, one federal deputy protested another’s cynical view on this matter, saying that if he were minister, “I would choose according to merit,” his remark was met by the “prolonged hilarity” of his colleagues.29
But the professional magistrates also tolerated the government’s juggling because the potential stakes were so high. In order to make the magistrate an effective political deputy, the government was forced to invest the official with virtually all the powers of the state. The judge received immense power in his district—power that could be used for self-aggrandizement as well as in the interests of a political party. The rewards for the judges could be great, and it is hardly surprising that the ministry expected to trade a good comarca for faithful political stewardship.
Indeed, more than mere stewardship was at issue, for it was the judge’s responsibility to build—not just maintain—stable political relationships between the central government and local elites. A basic motivation behind the Law of December 3, 1841, had been the Conservatives’ desire to erect a political system upon the support of the empire’s landowners. The intention was patent, and the mechanisms to be employed were scarcely less so. In the debates over the law one Liberal senator had given a concise evaluation of the role of the magistracy in creating such a system. The law, he protested bluntly, would set up a judicial elite “charged with going out to make deals with local potentates.”30
Certainly the reactionaries of 1841 had proposed to give the judicial oligarchy ample currency for making such deals with the landed elite. One article in their bill, for instance, would have entrusted to the government-appointed municipal judge the sole right to judge crimes of contraband, including the illegal importation of African slaves so important to the booming coffee economy of Rio de Janeiro. The clear implication of such a measure was that a planter who supported the government could in return expect government support, through the judicial connection, in the form of a continued supply of smuggled field hands. The article was defeated, partially because the Liberals seized upon the issue as a way to sow distrust between the Conservative Party and the landed support it cultivated. One Liberal newspaper no doubt alarmed the Conservatives by calling the proposal “a sword of Damocles suspended above the heads of all the most powerful people of Brazil.”31
More subtly hidden within the 1841 reform lay another power which in the hands of the appointed magistrates was an instrument of formidable political leverage over the rural elite. In a speech ostensibly explaining only the abstract virtues of government appointment of judges, the Conservative Minister of Justice slyly inserted an almost threatening analysis of the potential role of those magistrates in validating land boundaries. The minister noted that land disputes were becoming a serious problem, and explained that it was the job of the municipal judge to conduct surveys and validate claims. Disingenuously, he made the point that the unpaid, locally selected municipal judges of the previous system could hardly be called upon to leave their private jobs to go into the forest for months at a time to carry out surveys. How much better it would be to professionalize these judges, give them a salary and larger emoluments, and have the government name them with no interference from local municipal councils.32 It is doubtful that anyone in the Chamber of Deputies missed the point: through its appointed magistrates, the Conservative government hoped to extend its rural power base by trading political allegiance for preferential treatment in the crucial matter of establishing title.
The vast new patronage powers that the government acquired by virtue of the 1841 law would also be brokered by the professional judges in such a way as to reinforce or create a political clientele at the local level. The new police posts of deputy sheriff (subdelegado), and the plethora of substitutes named to fill possible vacancies, soon came to be granted honorifically in recognition of service to the government or simply as a means to flatter and pay court to local elites whose support was desired. In 1842, for example, many such posts were distributed to planters who supported the government against uprisings in São Paulo and Minas Gerais. A juiz de direito serving as chief of police in western Rio de Janeiro related to the Minister of Justice the means by which, with promises of subdelegadas, he had wheedled one wavering family into supporting the government at this moment of crisis: “The Freires,” he reported, “were annoyed with the government for not having named them subdelegados or alternates . . . in spite of their being the richest planters of the area.” The judge invited the head of the family to dinner, and the accompanying promises of patronage were so well received that the patriarch “offered supplies for the troops and assured me that the government could count on his person and his fortune.”33
Again a rather fine distinction must be drawn between the political interests served by judges primarily as servants of the central government—any central government—and those they defended as party agents. In the case just mentioned, the Conservative judge’s partisan affiliation might lead him to suppress the rebels because they were “Liberals.” On the other hand, his bureaucratic identification with the regime simultaneously made upon him more general, nonpartisan demands associated with political integration, i.e., the preservation of stability and the strengthening of the entire political fabric against a challenge. His support could thus be enlisted against a threat to the system rather than in behalf of a narrow partisan manifestation. The regime sought its allies especially among the “richest planters of the area,” and this class bias precluded the relentless persecution of rebels who also fell into this category and who would eventually be pardoned. In this case a combination of motives probably lay behind the judge’s actions. The Freires were no doubt enlisted primarily in the name of the monarch’s interest in avoiding disorder, and only incidentally to the political advantage of the Conservative Party.
The judges’ greatest value to a political party probably lay in the matter of elections. By a careful balancing of favors, threats, outright muscle or fraud, the partisan judge could normally get local elites to turn out the vote for government candidates. Conflict was avoided where possible by concentrating on positive inducements for the elite, and reserving cruder tactics for the inarticulate and powerless voter. Before contested elections, for example, judges often invoked their prerogative of forced conscription into the imperial Army or Navy. To the humble voter this was perhaps the most feared weapon of intimidation at the judge’s disposal. The very threat of being uprooted and subjected to the execrable conditions prevalent within the Brazilian armed forces was sufficient to make a man vote as judge and police desired; indeed, rumors of an impending conscription could send virtually all the opposition underground. This technique was especially favored because it balanced partisan electoral goals against government interests in stability by limiting the potential for violence among local factions. When fighting threatened to break out in some of the parishes of western Rio, for instance, the provincial president ordered the district judge to begin “rigorous conscription of the ne’er-do-wells who infest the area, in order to diminish the opponents’ potential following.”34
We have little evidence that judges normally included among their tactics the overt persecution of opposing political elites. Instead, partisan judges usually scored with the backhand, doing judicial favors that could be repaid at election time and involving opposition groups in tacit recognition of the give-and-take of imperial politics. During the 1840s the Liberal Party led two regional rebellions—as noted in Minas Gerais and São Paulo in 1842, and in Pernambuco in 1848. In both cases the rebels were tried by highly political Conservative judges. The judge who presided at the trial of the first group of rebels also directed virulent newspaper attacks on the Liberals of Minas Gerais. Yet the Liberals implicated in that revolt were uniformly acquitted by juries, and there is no evidence that he or any other judge tried to override the jury verdicts as was the juiz de direito’s right under the Law of December 3. In Pernambuco, José Tomás Nabuco de Araújo, the Conservative judge who presided over the political trials of the Liberal rebels of 1848, was also intimately involved in the politics of the province and had political grievances against the very defendants who came before him. Although the Pernambucan juries did vote to convict the leaders of the revolt, Nabuco himself appealed the conviction in one case and apparently allowed the others to stand only because the customary process of granting amnesty had begun before the trials ended.35 Though ferocious at times, the political game had an unspoken rule of solidarity among those highly placed enough to play it.
It may also be that judges sometimes pulled their punches for professional considerations. Political journalism was second nature to a partisan judge, and, especially in times of stress, magistrates often combined their formal duties with political writing for the local press. But they paid a price, and others may have been warned away by their example. While sitting as presiding judge in the trials of Liberal political rebels in Minas Gerais, Firmino Rodrigues Silva openly contributed to two rabidly Conservative newspapers, one of which was dedicated to “centralizing and giving direction to our party, and beating down the audacious rebels.” And the vicious attacks on the Liberal Party by editor-magistrate João Antônio Sampaio Vianna in the troubled Bahia of the late 1830s won that letrado a comfortable post as juiz de direito of Salvador when the Conservatives returned to power. But a judge’s overt collaboration in partisan journals was a delicate gamble. Such service might consolidate his reputation within his own party, but the more a judge advertised his politics, the more he had to fear when his party left power. Firmino Rodrigues Silva was transferred by a subsequent Liberal government to the isolated, Indian-infested southern comarca of Santa Catarina. And the return of a Liberal ministry likewise yanked the urbane Sampaio Vianna out of the Bahian capital and sent him to the backwater comarca of Caravelas in the south of Bahia, where life was later described by another luckless judge as “insipid . . . no one takes tea and there is not a single piano.”36
In view of such deterrents, most judges seem to have tried to avoid using their positions as instruments of combat, diluting their partisanship with the knowledge that a change of government could bring them low indeed. For a normally ambitious judge it was better to minimize his enemies and promote local harmony, however uneasy. As the two-party alternation in government became institutionalized, this goal became easier to achieve, because outgroups knew that patience would eventually be rewarded, and judges hoped that moderation would preserve them from the wrath of a new Minister of Justice.
Indeed, the judges’ sensitivity to the needs of the regime, together with their professional and political insecurity, appear to have made the magistracy a factor in the preservation of the political peace of the empire. Stability was one of the government’s prime goals, of course, and local factional conflict reflected badly on the ministry’s judicial representatives. Whatever his party, a judge who had achieved the prestige of a desirable appointment was more likely to use his power to conciliate than to persecute. A peaceful comarca meant predictable elections and prolonged tenure for the judge; a turbulent comarca gained the judge enemies, caused contested, violent elections, shortened the life of the ministry, and earned certain transfer. Opposition judges exiled to faraway assignments, on the other hand, might agitate more openly because they had less to lose, but rarely to the point of leading rebellions or promoting discord.37 A judge’s vast powers could lead the most ambitious to contemplate this step, but isolation in an insignificant comarca made even electoral success virtually meaningless. More often the banished magistrate’s bureaucratic fatalism and professional insecurity led him to wait peacefully for a change of ministry or spend his energy on securing a leave of absence. Regardless of his party, it was ordinarily in a judge’s interest to minimize local frictions and at least passively perform his function as government representative in his district. The result was a measure of stability in a highly partisan political system.
The preceding discussion has emphasized the political and bureaucratic role of the district judge as dependent agent of the central government, exercising leverage over local political groups. But the influence of the judicial elite also worked in the opposite direction, for the frequent involvements of judges with the magnates of their districts made them in a sense double agents, middlemen who also transmitted local pressures back to the central government.38
If the ties of a letrado to the government were professional and political, his ties to the empire’s landed elite were social. Both were acquired. The absence of official files or biographical data on professional judges makes impossible a complete analysis of their social origins. But information available on some of the most prominent magistrates of nineteenth-century Brazil does indicate that relatively few could claim elite status as a birthright. A sample of the judges who were also eminent political leaders in the 1840s and 1850s seems to bear this out: Paulino José Soares de Sousa was the son of a physician, while Eusébio de Queiroz, Bernardo Pereira de Vasconcelos, and José Tomás Nabuco de Araújo were all the sons of magistrates. Honório Hermeto Carneiro Leão and Aureliano de Sousa e Oliveira Coutinho had military fathers. Manuel Vieira Tosta and Francisco Gonçalves Martins were the sons of landowners.39 While this sample is frankly unscientific, it is not reasonable to imagine that judges who attained less in their careers, and on whom we have no biographical information, would have come from more privileged social situations. Nor is there any historical discontinuity here, for in range and even distribution of social background this small sample bears comparison to Stuart Schwartz’s findings for colonial magistrates.40
To this mixed group of individuals, a legal education was the passport to social advancement. Before 1828 the University of Coimbra in Portugal was the only means of access to the judiciary in the Portuguese world. Most of Brazil’s political leaders at the time of Independence had passed through that academy, and even after political separation, young Brazilians continued to attend the faculty at Coimbra. In 1828 Brazilian legal faculties opened their doors in São Paulo and Olinda (Pernambuco), and after 1830 most new Brazilian magistrates came from these native institutions. Among those graduated in the first classes were a number of men who would become the political leaders of independent Brazil.41
A legal education at Coimbra had always been a heady introduction to the Portuguese conception of the empire and its governance. Similarly, attendance at the Brazilian law schools was an intensive preparation for administrative and political participation in the newly independent nation. Among the students, political journalism seems to have occupied more time than instruction, and the melting pot of youths from different provinces and social backgrounds made ambition a substitute for status. The cultivation and exchange of contacts seems to have been an obsessive activity among the prospective bocharéis. Long after their careers had ended, aging judges would recall with clarity their first encounters—perhaps on the boat to Lisbon or in the gaming houses of the university town—with the other teenage youths who would later help secure a desired appointment, or ask such help for themselves.42 Like the Portuguese university, the Brazilian institutions appear to have instilled a corporate spirit and solidarity in their graduates that largely overcame the advantages or stigma of origin and gave the judges a kind of wild-card status in the social system.
Brazil’s rural elites and these young bacharéis clearly had much to offer one another. Graduation from the legal faculty assured a young man of contacts throughout the empire and an entrée at most levels of government; investiture as a professional magistrate made the letrado a man of considerable official and extra-official power. For planters and landowners who were inevitably somewhat isolated in the interior and usually embroiled in litigation, these were invaluable qualities. Most judges, for their part, were quite susceptible to the attractions of local sponsorship by the socially privileged. Such association made a magistrate’s tenure immeasurably more pleasant, and, after all, close identification with the landowners seemed implicit in the political goals of the government. Certainly a judge whose father had been an itinerant crown bureaucrat or middle-level professional could be flattered by the attentions of landed clans. Professionally, too, close ties with the empire’s social elite could go far toward advancing one’s career; conversely, it was known to be hazardous to ruffle the influential. Albino José Barbosa de Oliveira, just out of law school, took up the comarca of Cachoeira, Bahia, in 1832 and shortly thereafter displeased one of the richest men in the province in a case of land litigation. The callow judge’s decision may have served justice, but it also won him a hasty transfer to a much less desirable comarca where he was more careful not to alienate the powerful.43
Usually it was understood that a magistrate’s local relationships only complemented his professional ties to the Crown and his political ties to the ministry. Indeed, a renegade judge was of limited use locally, for much of his power there lay in his corporate and government identity. Nevertheless, in times of tension or in areas of iron-handed clan rule it was not unheard-of for a magistrate to completely “go over” to the service of a local patron. Such was the case in 1845 of the municipal judge of Cantagalo, who had been personally “recruited” in Rio de Janeiro by a county political boss who needed a judicial puppet. Another satrap of Rio de Janeiro province, Comendador Joaquim Breves, openly subsidized the municipal judge who lived without charge in one of Breve’s houses along with two of the fazendeiro’s personal lawyers. And in the interior of Bahia, where in the 1840s the central government lost control after a bloody feud broke out between families, the judge of Pilão Arcado sported sidearms as he turned out page-after-page of spurious criminal indictments against his patron’s enemies.44
More normative—and ultimately more effective—relationships between local magnates and imperial judges were based on the magistrate’s role in regulating the symbiosis between the ministry and its landed support. Magistrates derived leverage of their own from the support of local elites and applied it to the policies of government through their channels of influence. In no place can this be seen more clearly or at a higher level than in the composition of the famous “oligarchy” of Rio de Janeiro that was so instrumental in creating the Conservative Party in the late 1830s and early 1840s. The so-called oligarchy was a group of three extraordinary men who represented the emerging coffee interests of Rio de Janeiro province, and is usually described simply in terms of its fluminense and planter origin. Yet a closer look reveals that only one member of this “oligarchy,” Joaquim José Rodrigues Torres, was himself a coffee planter. The other two, Paulino José Soares de Sousa and Eusébio de Queiroz, were young career magistrates who had had no ties with Rio de Janeiro before adulthood. Roth were the sons of professionals—a physician and a judge, respectively—and had been raised elsewhere. In fact, neither was even a native Brazilian: Paulino had been born in Paris, where his father was studying medicine, and Eusébio in Angola, where his father served as crown ouvidor! Rodrigues Torres’s plantation near the town of Saquarema in Rio province may have given the Conservative Party its popular name, but the true organizers of the party appear to have been these two talented outlander judges adopted by the fluminense coffee aristocracy as their representatives in the capital.45
That ambitious judges were alive to the possibilities of professional and social self-advancement through extra-official involvements with Brazil’s agricultural elite is patent in the very concept of the “good comarca.” The desirability of a judicial district was determined mainly by its political and economic potential. In 1831, for example, Albino José Barbosa de Oliveira chose São João d’El Rei, in Minas Gerais, as his first magisterial position, on the grounds that, of the sixty vacancies offered, this comarca was the home of the most federal deputies. Later in the 1830s, after the coffee boom had begun in Rio de Janeiro, Albino (and most of his colleagues, it should be noted) lobbied for a fluminense comarca.46 Some letrados preferred positions near their own homes and family interests, but most district judges accepted the forced mobility of judgeship with a good grace that seems curious in a country where regional and family ties were strong. The reason lies in the dual origin of a judge’s power and the need to maintain balance. Just as surely as these professionals kept strong their links with the locus of formal power in Rio de Janeiro, they also sought to establish informal and social links with the shifting loci of socioeconomic power in the empire. We may generalize that the “best” comarcas of the empire lay along the cutting-edge of the economic frontier.47
The interplay of sociopolitical and legal transactions between the judge and the elite clientele of his district was often formalized by matrimony. Time and again promising young magistrates were brought into the families of the landed classes as sons-in-law. By thus incorporating a judge, the bride’s family enhanced its standing in Rio de Janeiro and greatly expanded its contacts within the government and central bureaucracy. And of course, to choose from the pool of talented letrados represented a unique opportunity for a planter with a marriageable daughter to entrust at least part of his inheritance to proven ability without sacrificing social appearances. It may also be that Brazil’s rootless, driving judges reminded such fathers of the very qualities that had made them agricultural pioneers and empire builders in their own time. Whether for reasons of affinity or strategy, judges were much in demand as sons-in-law.48
To the judge, of course, such a marriage brought an array of blessings. It strengthened his own bargaining position with the central government and gave him the financial and regional security of which he was deprived by his profession. For magistrates of middling social background, such marriages represented “arrival” in the most traditional sense, and may even have been a powerful reason for entering the magistracy in the first place.
The frequency with which judges contracted advantageous marital alliances would seem to support such speculation. Paulino José Soares de Sousa formalized his political bonds with the fluminense “oligarchy” by marrying the daughter of one of the principal fazendeiros of the sugar-producing lowland areas near Rio de Janeiro. The bride was also the sister-in-law of the planter and political leader Joaquim José Rodrigues Torres, on whose rural property the ceremony was performed. Thus in one stroke, this judge, son of a doctor and raised in Maranhão, gained kinship links to both the coffee and the sugar aristocracies of Rio de Janeiro. Another magistrate, Albino José Barbosa de Oliveira, has left in his memoirs a joyful account of dodging the matrimonial designs of planters and their daughters in the districts where he served. Albino’s reluctance seems to have been strategic; in any event it paid off handsomely when he was at length sought out as a likely son-in-law by the head of one of the greatest landowning clans of the São Paulo coffee frontier, the Sousa Queiroz. The prospective bride’s immense fortune, and her family’s extensive political influence, overcame the modest Bahian judge’s hesitancy, and he accepted the match without so much as a glimpse of the girl. As a final example we may mention Firmino Rodrigues Silva, who married in his judicial district of Minas Gerais the daughter of an influential and traditional mineiro family. The marriage propelled Firmino’s political career, and the schoolteacher’s son from Rio de Janeiro eventually became an imperial senator. Today a municipality of Minas Gerais bears his name.49
Marriages like these symbolized the fusion between the empire’s landowning elite and their representatives in the corporate elite of magistrates. The implications of such mergers were far-reaching, for their political articulation at the national level led naturally to a similar blurring of lines between the magisterial intermediaries and the government itself. The privileged position the judges held as beneficiaries of the support of both the local elites and central government made them nearly unbeatable if they chose to run for office. As a consequence, many judges were elected to the national legislature where they sometimes made up as much as 41 percent of the Chamber of Deputies. Thus the letrados gained a measure of direct control over the system that they already manipulated indirectly.
The high percentages of magistrates in the legislative branch was a touchy subject because, at least in the 1830s and 1840s, most judges were Conservatives. The highly partisan character of the debates over judicial reform that culminated in the law of 1841 had made the magistracy a political issue and had also made political activists of its members. So the newly emerged Conservative Party, which had hoped to resurrect the professional judges as an integrative and centralizing element in a diffuse empire, also found in them a formidable social base for a political party. Conservative theoreticians, many of whom were career magistrates themselves, believed that the judges were the key to creating a stable political system, and it was a short step from cultivating their support of the government to enlisting them in the party. A Conservative publicist wrote seductively of the “incalculable strength” of the magistracy, referring to the judges as the most powerful “social force” in Brazil because of their “corporate spirit and general close-knittedness.”50 Party leader Bernardo Pereira de Vasconcelos’s newspaper showed a similar political fascination with the professional judges. “The magistracy . . . is the one body . . . that has within it the strength to retard or advance Society on its road to happiness. . . . All the interests of Society are found interconnected [in this group], and that is why the Corps of Magistrates is the strongest constituted power in the State.”51
Figure 1 shows at a glance the effectiveness of the Conservative policy of lionizing the magistracy. Most graphically, the peak years of magisterial participation in the Chamber of Deputies all came in the aftermath of political crises—the Liberal revolts of 1842 and 1848 and the ministerial crisis of 1868—that temporarily turned the electoral machinery over to the Conservative Party.
The Liberal Party thus had excellent practical reasons for fighting judicial dominance in the legislative branch. Although their motives were largely partisan, the Liberals based their arguments on the alleged violation of the separation of powers. The alarm had been sounded as early as the first Conservative congressional majority in 1839 when a prominent paulista Liberal warned against runaway corporate domination of the houses of Parliament. “The class of magistrates is absorbing the other powers of state. . . . The fact that there are forty-three members of this class in the Chamber of Deputies shows that [the magistrates] have almost absorbed . . . the legislative power.”52 And when judge-dominated majorities of the Chamber of Deputies passed legislation that seemed to benefit the political position of their own corporation, the Liberals decried the tightening of a judicial stranglehold over the government: “All [the judges] will end up here and we will have a Parliament made up entirely of magistrates.”53
As Figure 1 illustrates, this fear was sometimes not much exaggerated. Repeatedly during the empire the Liberal Party proposed reforms to make professional judges ineligible to hold political office or to retire them from the magistracy if they were elected. Liberals cited the constitutional issue of separation of powers, and also argued forcefully that the political interests of judges prejudiced the administration of justice: “for a year before the election there is no justice because [the judge] is setting up his machine . . . and for a year afterward there is no justice because he is paying off his votes.”54 But class opposition by the magistrates in Parliament made reform impossible, and debates over eligibility usually degenerated into furious, sterile sessions of name-calling between the pro- and anti-magistrate factions. The only eligibility law passed during the empire was the provision in the 1855 electoral law that forbade the election of juizes de direito from their own judicial districts. The restriction, however, was substantially offset by simultaneously converting to representation by districts rather than provinces, making it all the easier for a judge to trade his district’s support for election from an adjoining district. In practice the law was regarded as ineffective, and was spare comfort to those Liberals who continued to lobby in vain for “absolute ineligibility” of magistrates.55
It is worth noting that when the Liberals demanded the exclusion of judges from the Parliament they were dealing only with a symptom—not a cause—of magisterial influence in the political system. The Liberal position in this issue was weakened internally by the fact that no Liberal majority was ever willing to go the whole route and pass a sweeping judicial reform that would attack the “magistocracy” at its base. While Liberals condemned doctrinally the Law of December 3, they also recognized that the law provided a political lever that could be manipulated by either party. The 1841 law was simply too valuable to a party in power to make its reform plausible, and the Conservatives were justified in charging hypocrisy because their adversaries “never changed so much as a comma.”56
Yet the Conservatives also had reason to be ambivalent about the judicial faction in the Chamber of Deputies. For one thing, it was soon clear that party alternation in power and the steady production of new letrados by the legal faculties would ultimately equalize the party balance within the magistracy. In 1846, for example, the Liberals had proposed to double the number of judicial districts in an attempt to create overnight a counter-constituency of “Liberal” judges among the empire’s newest bacharéis. This ominous “packing” bill was defeated, but the passage of time and the opportunism of younger judges would eventually have the same effect.57 The Conservatives responded in 1850 by passing an ingenious measure designed to guarantee their present advantage and hedge their position against a new generation of magistrates. The new law divided the empire’s comarcas into three categories according to their desirability, and prohibited the transfer of any judge to a comarca of category inferior to the one he held when the law was passed. Judges would work their way up in steps from the most isolated, poorest districts, to the most attractive. The measure ostensibly regulated the transfer of magistrates, but in effect it froze proven Conservative judges into the most important districts of the empire. (It may be recalled that the Conservative Minister of Justice had made over 70 strategic transfers the year before he sent this bill to the Chamber of Deputies).58 For all its cleverness, however, the measure was only a stopgap.
Regardless of party, Brazilian ministries were also concerned with the absenteeism caused by the election of large numbers of practicing judges to the imperial legislature. Judges who won election to the Chamber of Deputies had to abandon their judicial posts for most of the year, thus failing to carry out their essential role as government intermediaries in the districts of the country. In Bahia, for example, the provincial president complained in 1841 that government effectiveness in that province was crippled because only “two or three” juizes de direito were presently active in the fifteen Bahian comarcas. “The rest are in the Chamber of Deputies or on leaves-of-absence in Rio de Janeiro.”59 A measure of judicial absenteeism was of course an inevitable concomitant of a political judiciary, but in its extreme form absenteeism vitiated the first principles of the political system by leaving the government with no agent at the local level. As a result, Conservative ministries were not always averse to Liberal plans to bar magistrates from the legislature, and occasionally proposed such legislation themselves.60
The cohesive faction of professional judges in the legislative branch was perhaps the ultimate expression of the magisterial oligarchy referred to by contemporaries, for these judges, unlike their individual colleagues in the provinces, were disquietingly independent. Working magistrates gained their powers as a function of their dual dependence upon local elites and the central government, but the esprit-de-corps and legislative potency of the magistrates in Parliament defied party and ministerial discipline on the one hand and overcame a judge-deputy’s sense of constituency on the other. The judicial faction, for instance, was responsible for the fact that no direct reform of the legal system, no matter how innocuous or beneficial, could be passed in the empire before 1871. When such legislation was proposed, whatever its partisan origins, discussions quickly bogged down in wrangling between the judges who always suspected a disguised attack, and their opponents, frustrated at this invincible corporate obstructionism. So furiously defensive were the judges in Parliament that they came to be known collectively as the “hornet’s nest.”61 Legislation which disturbed this casa de maribondos invariably suffered a long, slow, and rhetorical death.
The gradual drop off in the number of magistrates in the Chamber of Deputies after mid-century is probably due primarily to ministerial discouragement of candidacy, for the reasons outlined above. Although this development did not significantly affect the system of judicial political brokerage at the district level, it may be symptomatic of a larger process of decline. Indeed, much evidence exists that mounting internal and external pressures upon the magistracy had severely weakened that system by the last years of the empire.
The most important pressure upon the magisterial elite probably came from within. Corporate solidarity was an essential ingredient of the system we have described, but after mid-century the overproduction of bacharel candidates for the magistracy jeopardized the tight esprit-de-corps that had characterized the judiciary in the first half of the century. The problem arose because the formalization of the magistrates’ political role in 1841 had led to a rush on the law schools and subsequent glut on the bacharel market. As one of Brazil’s most acute social observers remarked in 1842: “nowadays there is scarcely a young man, no matter how poor, who does not pursue legal studies. They think that if they are bacharéis the government is rigorously obliged to employ them.” But judicial posts were few in comparison to the ambitious graduates who clamored over them like “a thousand dogs after one bone.”62 In 1851 the ex-Minister of Justice, Paulino José Soares de Sousa, wrote to his son, then studying law in São Paulo: “We have piles of bacharéis around here and no one pays them any mind.”63
As competition mounted, the clubby atmosphere of the early law schools seems to have diminished. Ever smaller percentages of ever larger graduating classes were able to enter the magistracy, and in consequence, the legal faculties became less geared to the production of jurists. Criticism of the quality of the law schools seems to have reflected a reorientation by those institutions toward educating men who had no serious professional pretensions. By the end of the empire the term bacharel had completely lost its earlier denotation of judgeship, and the increased use of the inflated title doutor further attested to the devaluation of the university degree. The great Portuguese novelist, Eça de Queiroz, commented acidly in 1888 that one scarcely met a Brazilian of any occupation who did not call himself “doutor.”64
For those who did enter the magistracy, the deterioration of the law schools and the relentless political involvements of judgeship must have been factors of professional demoralization. Before mid-century, attacks on the professional competence of judges and the political appointment process were largely reserved for oppositionists and judge-baiters, but by the 1860s at least one magistrate had publicized in pamphlet form his concern over what he called “the decadence of the magistracy,” blaming it on the politicization of judges and the deficiencies of their education.65
Despite such internal difficulties, the elite magistracy clearly continued to be a powerful political force, and opponents continued to object to the “state within the state” or warn against reducing Brazil to “a fiefdom of the magistracy.”66 But the familiar criticism carried more weight later in the century because it was more solidly grounded in emerging social groups who felt themselves disenfranchised by the judicial “oligarchy.” As the century progressed, new professional groups arose to challenge judicial supremacy in the political system. The professional resentments and attacks of military officers, physicians, and engineers betrayed the growing complexity of Brazilian society in the late nineteenth century and were probably as great a threat to the judiciary as internal demoralization. The increasingly self-conscious military officers of the empire led the corporate opposition to the bocharéis and judges, and it is probably no coincidence that the single judicial reform of the post-1841 period was passed the year after the end of the Paraguayan War (1871) when military pride was at its height.67 The declining numbers of professional magistrates in Congress after 1860 must also be taken as some index of the corporation’s declining influence. It should be noted in this light, for example, that in 1867, for the first time, physicians outnumbered judges in the Chamber of Deputies.68
By the last quarter of the nineteenth century disaffection and demoralization within the magistracy, together with the external pressures caused by a changing society, had made inroads on the effectiveness of the judicial oligarchy. The fact of these changes points up again how little we now know of the other elements of the imperial political system, their personnel, and changes over time. The party system is poorly understood, and more study is needed before the roles of the monarch, his ministers, and the houses of Parliament can be fully comprehended. In this vacuum, final conclusions about the place of the magistracy in imperial Brazil are necessarily somewhat tentative. Yet even in decline the magisterial role is ultimately suggestive. If the central hypothesis of this paper is valid—that the judicial system and its elite personnel were major elements of political integration in the Brazilian empire—then perhaps the gradual breakdown of that system in the last decades of the century should be added to the list of reasons for the fall of the regime in 1889.
Straightforward versions of this interpretation are presented in Clarence H. Haring, Empire in Brazil, A New World Experiment with Monarchy (New York, 1958), pp. 157-159; and Caio Prado, Jr., Evolução política do Brasil e outros estudos, 5th ed. (São Paulo, 1966), pp. 44–45. For a more subtle, imaginative treatment of the emperor’s role, see Richard M. Morse, “Some Themes of Brazilian History,” The South Atlantic Quarterly, 61:2 (Spring 1962), 159-182.
Eul-Soo Pang and Ron L. Seckinger have dealt with some of these issues in a stimulating essay based on patterns of recruitment and career trajectories of imperial politicians: “The Mandarins of Imperial Brazil,” Comparative Studies in Society and History, 14:2 (March 1972), 215-244.
Stuart B. Schwartz, Sovereignty and Society in Colonial Brazil: The High Court of Bahia and Its Judges, 1609-1751 (Berkeley, 1973), chapters 1, 8, 13.
On the structure of inferior courts during the colonial period, see Aurelino Leal, “História judiciária do Brasil,” in Diccionario histórico, geográfico e etnográfico do Brasil (Rio de Janeiro, 1922), I, 1107-1126. For examples of magisterial involvement in local affairs during the period, see David Davidson, “How the Brazilian West Was Won: Freelance and State on the Matto Grosso Frontier, ca. 1737-1752,” in Colonial Roots of Modern Brazil, ed. Dauril Alden (Berkeley, 1973), pp. 85-87; Kenneth Maxwell, Conflicts and Conspiracies: Brazil and Portugal, 1750-1808 (Cambridge, 1973), pp. 46, 64, 68-69.
A Malagueta, March 23, 1822; Jornal do Comércio, Oct. 27, 1828; Brazil, Câmara dos Deputados, Anais (hereafter cited as B-CDA), 1828, I, 76; Aurora Fluminense, March 8, 1830, Apr. 2, 1830.
A Astréia, July 31, 1828. See also, Brazil, Assembleia Constituinte, Anais, 1823, V, 151; Minister of Império to Provincial President of Bahia, Aug. 8, 1827, Arquivo Público do Estado da Bahia (hereafter cited as APB), Ministerios Imperials, vol. 757, fol. 310.
For a foreigner’s description of judicial venality on the eve of Independence, see L. F. Tollenare, Notas dominicaes tomadas durante urna viagem em Portugal e no Brasil em 1816, 1817 e 1818 (Bahia, 1956), pp. 352-353. A similar view was voiced ten years later by Robert Walsh in his Notices of Brazil in 1828 and 1829 (Boston, 1831), I, 156, 268-269.
The justice of the peace had been provided for by the Constitution of 1824, but was not formally established until regulatory legislation was passed in 1827. See Law of Oct. 15, 1827, in Brazil, Coleção das lets do Brasil (hereafter cited as B-CLB). The jury system was introduced in 1832 with the passage of the Code of Criminal Procedure, Law of Nov. 29, 1832, B-CLB.
B-CDA, 1828, I, 27, 74, 80; II, 104; ibid., 1829, UI, 13. A Astréia, July 31, 1828; A Malagueta, Jan. 27, 1829; O Astro de Minas, Mar. 6, 1830.
See the Relatórios, or yearly reports, of the Ministry of Justice from 1831 to 1836.
A partisan summary of the failures of the liberal reforms is given in Justiniano José da Rocha, Considerações sobre a administração da justiça criminal no Brasil e especialmente sobre o jury (Rio de Janeiro, 1835).
Jornal do Comercio, June 2, 1834. See also the reactionary pamphlets: Considerações sobre as causas de nossos males (Rio de Janeiro, 1832); and O genio do Brasil mostrando em scenas interessantes o espelho de verdades para o desengano dos homens (Rio de Janeiro, 1831).
Law of Dec. 3, 1841, B-CLB. See also, Justiniano José da Rocha, “Ação; Reação; Transação. Duas palavras acerca da atualidade,” in Tres panfletários do segundo reinado, ed. Raimundo Magalhães, Jr. (São Paulo, 1956), pp. 206-207.
Speech of Antonio Francisco de Paula e Holando Cavalcanti, session of June 24, 1840, Brazil, Senado, Anais (hereafter, B-SA), as cited in O Despertador, June 25, 1840.
O Maiorista, Aug. 24, 1841, Sept. 2, 1841. Also, B-SA, session of Aug. 10, 1841, as cited in O Despertador, Aug. 12, 1841; session of Aug. 14, 1841, as cited in O Despertador, Aug. 18, 1841.
Speech of Francisco Alvares Machado, B-CDA, 1841, III, 734.
B-SA, session of Aug. 13, 1841, as cited in O Despertador, Aug. 16, 1841; session of Aug. 25, 1841, as cited in O Despertador, Aug. 27, 1841. Holanda Cavalcanti echoed his colleague: “O projecto não faz outra coisa mais do que dar nova forma ao país.” Session of Aug. 26, 1841, as cited in O Despertador, Aug. 29, 1841.
O Brasil, Apr. 29, 1841, June 20, 1844; Francisco Belisário Soares de Sousa, O sistema electoral do Brasil: como funciona, como tern funcionado, como deve ser reformado (Rio de Janeiro, 1872), p. 53.
Provincial President of Rio de Janeiro (Aureliano de Sousa e Oliveira Coutinho) to Minister of Justice, June 19, 1844, Aug. 3, 1844, Arquivo Nacional do Rio de Janeiro (hereafter ANRJ), IJ1862.
B-CDA, 1850, II, 338-339.
Francisco Gonçalves Martins to Eusébio de Queiroz, Bahia, n.d., Arquivo Particular de Eusébio de Queiroz, ANRJ, gavetão 11.
The archives of the Ministry of Justice, housed in the Arquivo Nacional do Rio de Janeiro, have no comprehensive career dossiers on judges. No evidence of the existence of such data has turned up in studies of the Brazilian law schools and their graduates. Cf. José Luis de Almeida Nogueira, A academia de São Paulo. Tradições e reminiscencias (São Paulo, 1953); Clovis Bevilaqua, História da faculdade de direito do Recife, 2 vols. (Rio de Janeiro, 1927).
See “Circular aos juizes de direito do Rio de Janeiro,” July 19, 1849, and Provincial President of Rio de Janeiro to Minister of Justice, Dec. 13, 1849, ANRJ, IJ1864.
ANRJ, Magistratura/Ofícios, 1848-1860, Caixa 775, Pasta 3. Provincial presidents furnished most such political intelligence.
Registro de informações reservadas de magistrados, 1846-1862 (Informações reservadas, Livro 3o), ANRJ, IJ423. The party division was almost even in this sample, with eleven Conservative magistrates, ten Liberals, and three unknown.
B-CDA, 1841, I, 71.
The private correspondence of political leaders frequently contains statements by a correspondent that his own letters of recommendation should be disregarded. See for example, Bernardo Pereira de Vasconcelos to Paulino José Soares de Sousa, n.d. , Arquivo do Visconde do Uruguai, Niterói (hereafter, AVU); Justiniano José da Rocha to Firmino Rodrigues Silva, Jan. 20, 1843, cited in Nelson Lage Mascarenhas, Um jomalista do império. Firmino Rodrigues Silva (São Paulo, 1961), p. 87.
Chichorro da Gama to Antônio Pereira Rebouças, Nazareth, Bahia, Oct. 13, 1847, Biblioteca Nacional do Rio de Janeiro/Seção de Manuscritos, Coleção Antônio Pereira Rebouças; Joaquina da Silva Santiago to José Martiniano de Alencar, July 9, 1844, Anais da Biblioteca Nacional, 86 (1966), 40-41.
B-CDA, 1854, IV, 31.
B-SA, session of Aug. 26, 1841, as cited in O Despertador, Aug. 29, 1841. For confirmation of this prediction, see 0B-CDA, 1843, I, 418.
B-SA, session of Aug. 21, 1841, as cited in O Despertador, Aug. 2, 1841; session of Aug. 26, 1841, as cited in O Despertador, Aug. 29, 1841; O Maiorista, Sept. 2, 1841.
B-CDA, 1841, III, 814-822. The Minister of Justice was Paulino José Soares de Sousa; his speech was delivered on Nov. 3, the day before the reform’s passage in the Chamber of Deputies.
Chefe de Policía (Ignácio Manuel Álvares de Azevedo) to Minister of Justice, Rezende, June 25, 1842, ANRJ, IJ1862.
Provincial President of Rio de Janeiro (Honório Hermeto Carneiro Leão) to Minister of Justice, Dec. 4, 1841, ANRJ, IJ1446. See also, Rio de Janeiro, Mensagem apresentada à Assembléia Legislativa, Mar. 1, 1842. That the conscription referred to was meant to be applied selectively to the followers of Liberal boss Joaquim José de Sousa Rreves is clear in Honório’s private correspondence with the Minister of Justice: Honório Hermeto Carneiro Leão to Paulino José Soares de Sousa, Dec. 10, 1841, AVU. For a dramatic example of the fear of conscription, see Juiz de paz of Campo Grande (Rio de Janeiro) to Provincial President, Apr. 30, 1847, ANRJ, IJ4310.
Mascarenhas, Un jornalista, pp. 53, 110; Joaquim Nabuco, Um estadista do império: Nabuco de Araújo, 2nd ed. (São Paulo, 1936), I, 60-81.
Mascarenhas, Um jornalista, pp. 53, 59-60, 104–109, 153. On Sampaio Vianna’s appointment and transfer, see Correio Mercantil, Jan. 2, Oct. 21, Nov. 4, 1840. On Caravelas: Albino José Barbosa de Oliveira, Memórias de um magistrado do império (São Paulo, 1943), p. 127.
There are examples of judges becoming violently involved in local affairs. See, Brazil, Minister of Justice, Relatório, 1835, p. 18. The occasional murder of a district judge also indicates an overstepping of limits. See, Provincial President of Bahia to Minister of Justice, Sept. 6, 1836, APB, Correspondência para o Governo Imperial, vol. 683, f. 45v; Juiz de direito interino of Paraíba do Sul to Provincial President of Rio de Janeiro, July 30, 1839, ANRJ, IJ1861.
The relevant analogy is found in the figure of the Comissário or correspondente who planters retained as economic middlemen, bridging the gap between the agrarian producer and the city export houses.
Information on these judge-politicians has been taken from: José Antônio Soares de Sousa, A vida do Visconde do Uruguai, 1807—1866 (São Paulo, 1944); Manuel de Queiroz Matoso Ribeiro, “Apontamentos sobre a vida do conselheiro Eusébio de Queiroz,” Revista Americana (Jan. 1919), 48-80; Octávio Tarquínio de Sousa, Bernardo Pereira de Vasconcelos e seu tempo (Rio de Janeiro, 1937); Nabuco, Um estadista; Maurílio de Gouveia, O Marques do Paraná, um varão do império (Rio de Janeiro, 1962); Hélio Vianna, O Visconde de Sepetiba (Petrópolis, 1943); Mascarenhas, Um jornalista; Barão de Muritiba, “Marques de Muritiba,” Revista do Instituto Histórico e Geográfico da Bahia, 49 (1924), 183-193; Arnold Wildberger, Os presidentes da província da Bahia, efetivos e interinos, 1824-1889 (Bahia, 1949), pp. 315-335. Unfortunately, the published lists of Brazilians who graduated from the University of Coimbra in the late colonial and early independence periods rarely give background information more specific than the birthplace and parents’ names of the bacharéis. Luiza da Fonseca, “Bacharéis Brasileiros—elementos biográficos (1635-1830),” Anais. IV Congresso de História Nacional (1951), IX, 113-405; Manuel Xavier de Vasconcelos Pedrosa, “Letrados do século XVIII,” Anais do Congresso Comemorativo do Bicentenário da Transferência da Sede do Governo do Brasil (1967), IV, 293-312.
Schwartz, Sovereignty and Society, p. 290.
Almeida Nogueira, A academia de São Paulo; Bevilaqua, História da faculdade.
A fascinating account of a typical legal education and career at this time is provided in Barbosa de Oliveira’s Memórias; see especially pp. 61-65.
Barbosa de Oliveira, Memórias, pp. 120-130. See also, Albino José Barbosa de Oliveira to Provincial President of Bahia, Aug. 7, 1833, Aug. 22, 1833, APB, Judiciaria/Juizes, maço 2271.
Juiz de Direito of Cantagalo (Rio de Janeiro) to Minister of Justice, Dec. 17, 1845, ANRJ, IJ1449; Juiz de Direito of Rezende to Minister of Justice, June 9, 1871, ANRJ, Registro de Fatos Notáveis, IJ432, ff. 26-26v; Juiz de Direito of Sento Sé (Bahia) to Provincial President of Bahia, Feb. 10, 1844, Biblioteca Nacional do Rio de Janeiro/seção de manuscritos, II-33, 23, 18.
Soares de Sousa, A vida do Visconde do Uruguai, pp. 9-21; Ribeiro, “Apontamentos sobre a vida,” 48-50.
Barbosa de Oliveira, Memórias, pp. 112-114, 118, 122.
It should be recalled, too, that many judges came from professional families with shallow roots of their own. Paulino José Soares de Sousa, for instance, was the third generation of his family to leave home to follow economic cycles. His grandfather had emigrated from the Azores to the mines of Minas Gerais during the gold rush; a cotton boom had attracted his father to Maranhão in the extreme North; and coffee drew Paulino to Rio de Janeiro. Soares de Sousa, A vida do Visconde do Uruguai, pp. 9-12.
In his study of Vassouras, a coffee county of Rio de Janeiro considered by contemporaries to be one of the most toothsome judicial assignments in the empire, Stanley Stein has noted that planters rarely sent their own sons to professional schools. On the other hand, “there was a tendency for professional men to become planters by marriage and purchase of land.” Stanley Stein, Vassouras, A Brazilian Coffee County, 1850-1900 (New York, 1970), p. 125.
Soares de Sousa, A vida do Visconde do Umguai, pp. 44-45; Barbosa de Oliveira, Memórias, pp. 169-216; Mascarenhas, Um jornalista, p. 191. These are only a few examples. Even from the limited data available, many more might be given. The energy with which judges sought marriages in new and promising areas of the empire seems especially significant. More extensive research into marriage patterns of judges may well show them to be almost a second generation of economic pioneers, incorporated through the female line of the first generation.
Justiniano José de Rocha writing in O Cronista, Sept. 23, 1837. See also an article on the same subject in O Cronista, Jan. 27, 1838.
O Sete de Abril, Jan. 31, 1838.
Nicolau Pereira de Campos Vergueiro in B-SA, 1839, II, 290-291, 308.
B-CDA, 1841, I, 73.
Ibid., 1845, I, 800-801.
B-CLB, Law of Sept. 19, 1855 (Lei dos Círculos). On the ease of circumventing the law, see J. A. Pimenta Bueno, Direito público brasileiro e análise da constituição do império (1858; rpt. Rio de Janeiro, 1958), pp. 196-200. On “absolute ineligibility” see Aureliano Cândido Tavares Bastos, Reforma eleitoral e parlamentar e constituição da magistratura (Rio de Janeiro, 1873), p. iv.
Paulino José Soares de Sousa, Ensaio sobre o direito administrativo (Rio de Janeiro, 1862), II, 217-218.
B-CDA, 1846, II, 125-128, 397-401, 409-413.
B-CLB, Law of June 28, 1850; B-CDA, 1850, II, 77, 337-374.
Provincial President of Bahia to Minister of Justice, Aug. 26, 1841, APB, Correspondência para o Governo Imperial, vol. 685, fols. 215—217.
See, for example, Conservative Nabuco de Araújo’s ill-fated plan of 1854 for judicial reform which originally included a provision that would have severely limited a judge’s access to elective political offices. Nabuco, Um estadista, I, 136-150.
B-CDA, 1853, I, 296; B-CDA, 1854, IV, 29.
Miguel do Sacramento Lopes Gama (of Pernambuco) in O Carapuceiro, June 15, 1842; Jornal do Comércio, July 26, 1843 (reprint from O Carapuceiro).
Paulino José Soares de Sousa to Paulino José Soares de Sousa, Jr., April 24, 1851, AVU.
Eça de Queiroz, A correspondência de Fradique Mendes, in Obras de Eça de Queiroz (Pôrto, 1957), VI, 526-527.
José Antônio de Magalhães Castro, Decadência da magistratura brasileira, suas causas e meios de restabelecê-la (Rio de Janeiro, 1862).
B-CDA, 1850, II, 226; B-CDA, 1854, IV, 33.
The military is specifically set up as a counterpoise to magisterial political influence in an anonymous pamphlet of 1861, Os bacharéis: Ensaio político sobre a situação (Rio de Janeiro, 1861). Growing military pride and political involvement during the last years of the empire are summarized in Haring, Empire in Brazil, pp. 131-132. In a popular novel written shortly after the fall of the empire, the hero perceives the major political difference as the change from domination by bacharéis to domination by the military. Alfredo de Escragnolle Taunay, O encilhamento. Scenas contemporâneas da bolsa em 1890, 1891 e 1892 (São Paulo, 1893), pp. 19-20.
Brazil, Arquivo Nacional, Organizações e programas ministeriais. Regime parlamentar no império, 2nd ed. (Rio de Janeiro, 1962), pp. 341-346.
The author is Assistant Professor of History at the University of Oklahoma.