Empire Period of Brazilian Legal History
Introduction
The Empire period (1822-1889) was a formative era for Brazilian law. Independence from Portugal in 1822 led to the creation of the first Brazilian legal institutions, including the 1824 Imperial Constitution, the Criminal Code of 1830, the Commercial Code of 1850, and the establishment of law schools and the judiciary. The Empire established the foundations of the modern Brazilian legal system.
The 1824 Constitution
Granting
The 1824 Constitution was granted (outorgada) by Emperor Pedro I after the dissolution of the Constituent Assembly. It was influenced by the French Constitution of 1791 and the Portuguese Constitution of 1822, with elements of the US presidential system.
Features
The Constitution established: (i) a hereditary monarchy with the Emperor as head of state and government; (ii) four powers: Executive, Legislative, Judiciary, and Moderating Power (Poder Moderador); (iii) a bicameral legislature: Chamber of Deputies (elected) and Senate (appointed for life); (iv) individual rights; and (v) the State Religion (Roman Catholicism).
The Moderating Power
The Moderating Power (Poder Moderador, Article 98), a Brazilian innovation, granted the Emperor authority to: (i) dissolve the Chamber of Deputies; (ii) appoint senators; (iii) veto legislation; (iv) appoint and dismiss ministers; and (v) exercise clemency. This power made the Emperor the central figure in the constitutional system.
Legal Codification
Criminal Code of 1830
The Criminal Code of the Empire (Código Criminal do Império, 1830) was the first independent Brazilian criminal code. Influenced by liberal and Enlightenment principles, it: (i) established the principle of legality; (ii) abolished torture and cruel punishment; (iii) distinguished between crimes and misdemeanors; and (iv) provided for graduated penalties.
Criminal Procedure Code of 1832
The Criminal Procedure Code (Código de Processo Criminal, 1832) introduced: (i) the jury system; (ii) habeas corpus; (iii) the office of the juiz de paz (justice of the peace); and (iv) procedures for criminal investigation and trial.
Commercial Code of 1850
The Commercial Code (Código Comercial, Law 556/1850) governed commercial law until the 2002 Civil Code. It regulated: (i) commercial acts and merchants; (ii) commercial contracts; (iii) maritime commerce; (iv) bankruptcy; and (v) bills of exchange. The Commercial Code, particularly its maritime provisions, remains partially in force.
Law Schools
São Paulo and Recife
In 1827, the first Brazilian law schools were established: (i) the Faculty of Law of São Paulo (Largo de São Francisco); and (ii) the Faculty of Law of Olinda (later moved to Recife). These institutions trained the political and legal elite of the Empire and played a crucial role in developing Brazilian legal thought.
Judicial Organization
Supreme Court of Justice
The Supreme Court of Justice (Supremo Tribunal de Justiça, STJ), created in 1828, was the highest court of the Empire. It reviewed decisions of the Relações (appellate courts) and had original jurisdiction over senior officials.
The Judicial System
The Empire’s judicial system included: (i) juízes de paz (justices of the peace), elected locally; (ii) juízes municipais (municipal judges); (iii) juízes de direito (professional judges); (iv) Tribunais da Relação (appellate courts); and (v) the Supreme Court of Justice.
Slavery and the Law
Slave Trade Abolition
The Eusébio de Queirós Law (Law 581/1850) prohibited the transatlantic slave trade to Brazil. This followed British pressure and the Aberdeen Act (1845). The law was effective, reducing slave imports significantly.
Free Womb Law
The Free Womb Law (Lei do Ventre Livre, Law 2.040/1871) declared free all children born to slave mothers. It provided for the children’s care and labor until age 21.
Sexagenarian Law
The Saraiva-Cotegipe Law (Lei dos Sexagenários, Law 3.270/1885) freed slaves over 60 years of age, subject to continued service for a period.
Abolition
Slavery was fully abolished by the Golden Law (Lei Áurea, Law 3.353/1888), signed by Princess Isabel. This was the culmination of the abolitionist movement and represented a profound legal and social transformation.
Conclusion
The Empire period was a time of legal construction, establishing the first independent Brazilian legal institutions, codes, and law schools. The 1824 Constitution, the Criminal and Commercial Codes, and the abolition of slavery represented significant legal developments. The Empire’s legal framework reflected the tensions between liberal principles, monarchical authority, and the slave-based social order.