Colonial Period of Brazilian Legal History

Introduction

The colonial period (1500-1822) laid the foundations of Brazilian law. As a Portuguese colony, Brazil received the legal system of the metropole, including the Portuguese Ordinances, ecclesiastical law, and the administrative structure of the Portuguese Empire. The legal system was characterized by legal pluralism, with Portuguese law, local customs, and indigenous customary law coexisting in a hierarchical framework.

Portuguese Ordinances

Ordenações do Reino

Brazil’s legal system during the colonial period was governed by the Portuguese Ordinances (Ordenações do Reino):

• Ordenações Afonsinas (1446): The first Portuguese code, applied in Brazil from the early colonial period
• Ordenações Manuelinas (1521): Revised the Afonsinas and remained in force during the early colonization
• Ordenações Filipinas (1603): The most comprehensive compilation, which remained in force in Brazil until 1916 (for civil law) and 1830 (for criminal law)

Application

The Ordinances were supplemented by: (i) Portuguese royal decrees (alvarás and cartas régias); (ii) ecclesiastical law (canon law) for religious matters; (iii) Roman law (Corpus Juris Civilis) as subsidiary law; and (iv) local customs, particularly for land and family matters.

Administrative Structure

Captaincies and General Government

Brazil was initially organized into hereditary captaincies (capitanias hereditárias), granted to donataries with extensive administrative and judicial powers. In 1549, the General Government (Governo-Geral) was established with the appointment of a Governor-General, centralizing administration.

Municipal Councils

Municipal councils (câmaras municipais) exercised significant local authority, including: (i) local regulation; (ii) tax collection; (iii) price controls; and (iv) limited judicial functions. The councils were composed of “good men” (homens bons) — property-owning free citizens.

Judicial System

High Courts

The Relação da Bahia was established in 1609 as the first high court in Brazil, with appellate jurisdiction over the colony. A second Relação was established in Rio de Janeiro in 1751. These courts applied Portuguese law and reviewed decisions of local judges.

Local Judges

Local justice was administered by: (i) juízes ordinários (ordinary judges) elected by municipal councils; (ii) juízes de fora (external judges) appointed by the Crown; and (iii) ouvidores (ombudsmen) with regional jurisdiction.

The Casa de Suplicação

In 1808, with the transfer of the Portuguese court to Brazil, the Casa de Suplicação do Brasil was established in Rio de Janeiro, serving as the highest court of appeal. This marked the beginning of Brazil’s independent judicial system.

Slavery and the Law

Legal Framework

Portuguese law regulated slavery through the Ordenações Filipinas and specific royal decrees. Slaves were classified as property (coisas) but with specific legal provisions regarding: (i) manumission (alforria); (ii) punishment; (iii) marriage and family; and (iv) criminal liability.

Slave Laws

The legal regime included: (i) restrictions on cruel punishment; (ii) provisions for self-purchase of freedom; (iii) protection of slaves in certain circumstances; and (iv) the Free Womb Law (Lei do Ventre Livre, 1871), which freed children born to slave mothers.

Legal Education

University of Coimbra

Brazilian lawyers were educated at the University of Coimbra in Portugal until 1827, when the first Brazilian law schools were established in São Paulo (Largo de São Francisco) and Olinda (later moved to Recife).

Land Law

Sesmarias

Land was distributed through the sesmarias system, grants of land by the Crown to settlers for cultivation. This system created a pattern of large landholdings (latifúndios) that persisted throughout Brazilian history.

Conclusion

The colonial period established the foundations of Brazilian law, including the civil law tradition, the structure of the judiciary, and the pattern of land ownership. Portuguese law remained influential long after independence, with the Ordenações Filipinas continuing in force until the late 19th and early 20th centuries.