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POPULAR JUDGES AND JUDGES OF LAW DURING LIBERALISM.

PORTUGAL (1820-1841)

JOSÉ SUBTIL

josesubtil@outlook.pt

He holds a Bachelor Degree in History from the Faculty of Humanities of the University of Lisbon

and a Master Degree in History of the 19th and 20th centuries from the FCSH, UNL. He has a

Ph.D. in Modern Political and Institutional History and is an Associate in the History Group, at the

same Faculty. He was Coordinating Professor with Aggregation at Viana do Castelo Polytechnic

Institute. He is currently Full Professor at Universidade Autónoma de Lisboa (Portugal) and has

been elected President of the Scientific Council. He held various public positions, including as

Deputy General Secretary of the Ministry of Finance (1997-2000), member of the Commission for

the Reform and Resettlement of the Torre do Tombo National Archives and Director of Services at

the Portuguese Institute of Archives (1990-1992). He was National Coordinator of the

Accreditation Commission and member of the Board of the National Institute for the Accreditation

of Teacher Training. He has dozens of individual and collective publications, books, book chapters

and articles. He received the Academic Merit Award from the Fernão de Magalhães Foundation in

1996 and 1997 and four public accolades.

Abstract

The theme of justice was much discussed and considered as the most important for the new

liberal regime. The political confrontation marked the boundaries between the most radical,

moderate, conservative and reactionary liberal factions. The options swung between a popular

model of justice and an elitist one, going through hybrid choices. The main occasions of these

choices were the 1822 Constitution, the 1826 Constitutional Charter, the 1832 Mouzinho da

Silveira Reform, the 1837 New Reform (setembrista), the 1838 Constitution and the 1841

Newest Reform (cabralista). This text analyzes the definition of the liberal justice model.

Keywords

Justice, Liberalism, Judges of Law, Popular Judges

How to cite this article

Subtil, José (2021). Popular judges and judges of law during liberalism. Portugal (1820-1841).

Janus.net, e-journal of international relations. VOL12 N2, TD1 - Thematic dossier 200 years

after the Revolution (1820-2020), December 2021. Consulted [online] in date of the last

visit, https://doi.org/10.26619/1647-7251.DT0121.8

Article received on em May 24, 2021 and accepted for publication on July 29, 2021

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POPULAR JUDGES AND JUDGES OF LAW DURING LIBERALISM.

PORTUGAL (1820-1841)

JOSÉ SUBTIL

Introduction

The debate over the choice between judges of law and elected ones took place in a new

parliamentary environment, among newly elected members (Brochado, 2020).

After the revolution of 24 August 1820, the first electoral event that signalled the

emergence of liberal elections took place in December 1820 to choose the members who

would make up the Constituent Cortes (Parliament) (Vieira, 1992). This first electoral

experience was regulated by two instructions (31 October and 22 November 1820) forced

by the “Martinhada” counterrevolutionary coup on 11 November (Costa, 2019).

The essential of the suffrage was based on the legitimizing power of the electoral boards,

presided over by a juiz de fora (magistrate appointed by the king) (see Almeida, 2016;

Almeida, 2010). In the parishes, these boards were made up of all resident citizens. For

every 200 dwellings, one voter would be elected, a citizen over 25 years of age and

resident in the parish. These voters would gather at the head of the county to elect the

county voter or voters so that they would elect members. The latter had to be over 25

years old, born or resident in the province for over seven years.

Overall, 100 members were elected with the following distribution: Algarve (3), Alentejo

(10), Estremadura (24), Beira (29), Minho (25), and Trás-os-Montes (9).

The parliamentary year of the Constituent Cortes began on 24 January 1821 and ended

on 31 December, starting again on 28 January 1822 and ending on 4 November. On 13

October 1822, the elections for the Lisbon City Council (councillors and attorneys)

were

held according to the law of 11 July 1822, which also began to regulate the election of

members to the Ordinary Cortes.

This electoral legislation package was completed with the Law of 27 July 1822, which

defined the rules for the election of ordinary judges and chamber officials, fundamental

to following up on the choices of popular judges

Article translated by Carolina Peralta.

The election of nine councillors, an attorney and, as substitutes, three councillors and an attorney, was

foreseen. In each parish there was a ledger where the parish priest registered the names and professions

of all the residents who had electoral capacity. Electoral assemblies (59 for the 74 parishes) met in parish

churches. Each voter delivered two lists in two different ballot boxes, one with 12 councillors and the other

with two attorneys. After the votes were counted, the councillor with the most votes was elected president

of the constitutional chamber.

For the sessions of the Ordinary Cortes, see Diário das Cortes, beginning on 15 November 1822, available

at http://debates.parlamento.pt/catalogo/mc.

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According to both laws, citizens over the age of 25 (or married and at least 20 years old)

could vote and voters with sufficient income to support themselves, born or resident for

over five years in the province where the elections were held could be voted on

. The

suffrage was direct, secret and census based. "Family children", who lived with their

parents, and servants, vagrants, members of monastic orders and women could not vote

(Antónia, 2000).

Between the electoral model of 1820 and that of 1822, the main difference was the

change from the indirect method to the direct method and the attenuation of the census

character, confirming, however, the difficulties felt by the liberals in obtaining an electoral

model for the choice of members (Vargas, 1993).

These difficulties had repercussions on the formulas for finding elected judges, whatever

the political option, more radical or moderate. The debate focused on three aspects: the

choice of judges (of law and elected, the model for selecting elected judges and the

formula for holding them accountable and evaluate their roles and careers.

While this was the case during the debate in the Constituent Cortes, it continued after

the approval of the Constitution because, in the Ordinary Cortes, the diplomas related to

justice, the regulation of judges and the organization of courts were among the first to

be approved.

The boundary that separated the members between the Constituent Cortes and the

Ordinary Cortes, although there were changes in the composition of the two chambers,

was the choice between judges of law and popular judges, an option that covered the

entire liberal period until the Newest Reform (1841). This choice defined the boundaries

between radical liberals, moderates and conservatives, despite the inhibiting factors of

the elective choices. Above all, this had to do with three problems.

Firstly, the huge illiteracy rate that hindered the formation of contingents capable of

interacting with courts dominated by judges of law, a situation with consequences for the

autonomy of these popular judges and for the degradation of bureaucratic procedures.

Secondly, the disagreement between the political space of the Ancien Régime and the

shaping of a rationalized system, desired by the liberals, did not facilitate the constitution

of voter assemblies. This was due to the vast network with over 800 municipalities, of

which 228 had less than 200 dwellings and only 177 had more than 1,000 dwellings. The

municipal reform, begun with Mouzinho da Silveira (1832) and implemented by Passos

Manuel (Decree of 6 November 1836), extinguished nearly five hundred municipalities,

reducing them to 351. In 1855 (Decree of 24 October), they were further reduced to

256, numbers close to those at the end of the constitutional monarchy (Manique, 2020

and 2018). But this new territoriality was, on the one hand, adjusted to a broader

electoral system, and, on the other hand, met with the resistance of local authorities

(Manique, 1996).

Thirdly, the political and cultural framework, dominated by pluralist jurisdiction with a

long tradition of autonomy and social practices, was in contradiction with a centralizing

This electoral framework was interrupted by the Vila-Francada Miguelist coup (27 May 1823). The Cortes

were suspended (2 June) and the model of the old cortes (10 and 19 June 1823) was restored. It was

maintained until the end of the civil war (1832-34).

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culture.

These problems were further exacerbated by the question regarding how magistrates

should be held responsible for their acts, which criteria should guide careers and the

imposition, or not, of mandatory mobility or one depending solely on the will of each

person.

It is therefore important to draw the general lines of the legacy of the traditional

monarchy, compare the liberal proposals and identify the moments of reform in the

period between the validity of constitutional texts until the definitive imposition of the

Constitutional Charter, that is, between the beginning of the revolution (1820) and the

Newest Reform (1841)

I. The organization of justicein the Ancien Régime

I.1. The educated justice

According to most members of parliament, aligned with the most inflamed or moderate

political discourse, justice was considered central to changing the regime, therefore, one

of the greatest emblems of the revolution. For this reason, the magistrates of the Ancien

Régime were accused of despotism and protectionist practices. The laws were considered

abusive and discretionary because they had no popular basis and did not arise out of an

elected body. The courts were seen as an elitist resource for those who had money, could

pay lawyers, and bear the financial burden of the lawsuits.

The target of the liberal members was the cultivated justice (juízes de fora, senior

magistrates, court judges and also ombudsmen involved in the control of the royal

accounts), which dominated the courts of first instance and second instance and which

judged, decided on appeals, pleas and grievances (Hespanha, 1994; Subtil, 2011;

Camarinhas, 2010)

. However, this criticism was paradoxical insofar as the majority of

the Congress members were, precisely, graduates in Law, who practiced or not their

profession. The most notable liberal leaders were almost all magistrates.

The courts of first instance, located in the town halls, could be presided over by juízes de

fora, in about two hundred halls, or by elected judges, in over six hundred municipalities.

The courtroom and the court registry office were almost always next to the council

meeting room where the councillors, the council attorney and the mayor sat. The latter

was, at the same time, president of the court. In municipalities with a larger population,

there could be other judges of law and/or elected judges, like judges for the orphans,

judges for the deceased and absent persons, who were in charge of the supervision and

tutoring of minors, absent and deceased, widows and orphans.

There were only two courts of second instance. The most important, based in the city of

Lisbon, was the Casa da Suplicação (House of Appeals) with jurisdiction for the territory

below the Mondego river line. The other court, the Relação do Norte, or Casa do Porto,

By using the expression "popular judges" we want to identify the categories of judges who did not obtain a

degree in law and were elected, in different ways, by the people: ordinary judges, village judges, elected

judges from parishes, justices of the peace and jurors. Exception for conciliatory judges, who were chosen

by the parties.

On the legal framework, see Ordenações Filipinas, Book I, Lisbon, Calouste Gulbenkian Foundation, 1985.

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based in Porto, had jurisdiction over the region above the Mondego. These two higher

courts were governed by a Chancellor and composed of judges, special magistrates who

were no longer dependent on the transfer from places and were permanently appointed,

no longer requiring residence documents.

There was not a supreme court of justice, but a superior court of "favour", the

Desembargo do Paço (Subtil, 2011), which did not consider cases in court, but could

waive laws and suppress or shorten sentences at the request of the petitioners. The

judges of this court constituted, therefore, the elite of magistrates, and were considered

as the extension of the hands, ears and eyes of the monarch. Offenses practiced against

them were considered as if against the king.

This court was also in charge of managing the career of judges of law and approving the

electoral lists of each municipality for the election of councillors, attorneys and, if

applicable, ordinary judges.

Whenever the appointment of a judge of law was made for the first time, the Desembargo

do Paço court took into account the grade obtained in the degree taken at the University

of Coimbra and the grade obtained in the “Leitura de Bacharel” examination held in the

court itself. This examination was fundamental for their careers, and was preceded by a

set of questions about the social and family quality of the candidates (to ascertain “purity”

of blood).

If, however, the appointment was followed by the exercise of functions, the result of the

“residence document”, for which a magistrate of a higher rank than the candidate was

responsible, was included in the evaluation of the new members. These records contained

opinions and testimonials of the magistrate's performance. Therefore, they constituted

an important occasion in the consultation of local elites and the people in general and

recorded, in an open hearing, the most relevant events that happened during the three-

year term of the magistrate.

Appointments to first instance posts were for a period of three years, after which, as a

rule, the magistrates were transferred. Sometimes, at the request of the residents and

the judge himself, the mandate was extended, possibly reaching six consecutive years

or even more.

The ambition of these judges was to be appointed to a senior magistrate position or

ombudsman, positions that covered the jurisdiction of the counties and offices that

grouped together several municipalities. In these functions, they had to go through all

the town halls in the district throughout the year, conducting hearings and inspections,

using their “correction” power. They were, therefore, travelling magistrates, although

they had a desk in the main hall, (the most important council) and a provisional seat in

the offices of the councils. As the correspondence they had with the Desembargo do Paço

and other councils and courts of the Crown was done on a mobile basis, there are no

local archives, only municipal ones and, naturally, those of the central administration

where the cases, reports and letters were kept.

However, a large part of the municipalities was governed by ordinary judges elected by

the residents. The vast majority were illiterate, so, in these councils, the behaviour and

jurisdiction of the magistrates was different. They could not consider claims or requests

for review of sentences made by their graduate colleagues, as they were the remit of the

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second instance courts. However, they could review and assess the complaints and

claims of the popular judges, the ordinary judges.

The ombudsmen, in the territory under their administration, generally coincident with

the territory of the counties (number that varied between 50 and 70) or close to their

limits, exercised the same "correction" power, but within a financial scope. They audited

the accounts of councils and other corporations with royal jurisdiction, such as charities,

fraternities and brotherhoods.

The magistrates and ombudsmen were also appointed for three-year periods, subject to

residence documents, and the place was a springboard to access the category of judge

and take a definitive position in the courts of second instance, starting in the Court of

Appeal in Porto and ending at the Casa da Suplicação (House of Appeal).

In the whole of the municipal and district network and in the Courts of Appeal, the global

contingent of graduate magistrates was around four to five hundred. At the end of the

18th century, this number was insufficient to absorb the increase in graduates from the

University of Coimbra after the reform of the Statutes (1772). Alternatively, these

magistrates started to apply to posts overseas, embraced other professions such as

lawyers, solicitors and attorneys of the parties, for example, or entered politics as

councillors or council advisors.

This mismatch between the Crown’s offer and candidates for the magistrate positions

constituted a factor of discomfort that fuelled the dissatisfaction of these graduates and

motivated the support of many to liberal doctrines and the Enlightenment culture. To

some extent, this explains the large participation of magistrates in the 1820 revolution.

I.2. Popular justice

The first instance graduate magistrates were a minority in the set of judges and,

consequently, in the government of the municipalities. Of the eight hundred

municipalities, only about 20% had juízes de fora. In over 80% of the municipalities, the

position of first instance judge was held by a popular judge, the so-called ordinary judge,

who had no academic training, often did not even know how to read and write and

depended on the court clerks for bureaucratic procedures. There were also tipstaff

officials, called vintena judges who worked in villages with a very small population

(between 20 and 50 dwellings), also elected by the residents and confirmed by the senate

of the councils.

Let us examine the election model of these ordinary judges to get a sense of the level

of political and social representation and voter involvement.

The electoral process coincided with the electoral tabulation of councilors, attorneys and

council officials. In a way, the model inspired the one adopted in the liberal regime

elections, with a difference regarding the recruitment base of elected officials and voters

(see Subtil, 1998).

The start of the elections began with a provision by the Desembargo do Paço for the

magistrate (judge, ombudsman or juíz de fora) who oversaw the elections and checked

the lists and those elected for the three-year period in question.

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When he arrived at the council, the magistrate would choose two to three people from

the notables of the land, known as "arruadores", to draw up a list of the nobility they

with those considered capable of performing government positions. Those called to vote

for these lists, the noble and good men, natives of the land, without any race and with

zeal for the common good, were summoned by street call to come to the council.

The first six most voted for formed the set of voters, or "pauteiros", and were grouped

in pairs, forming three sets of two voters. Each pair then drew up a list with nine

councilors (three for each year of the triennium), three attorneys, one for each year of

the triennium and, according to tradition, other positions to elect, in this case, three

ordinary judges, one for each year of the triennium. The three lists were crossed so that,

according to the votes added together, the magistrate in charge of the elections could

define the final list for the three-year period.

These lists were then sent to Desembargo do Paço for the court to make the

appointments, removing from them possible conflicts of kinship, behavioural incapacities

or political inconvenience. The court could even withdraw names and replace some,

although this procedure occurred rarely. To make these decisions, the court used its own

file and the information left on the side lines of each elected person, obtained, by inquiry

and 'hearing', by the magistrate responsible for the election records. The process included

the records, the lists, the “secret” information and also a report describing the social

environment in which the elections took place.

As can be seen from what has been said, the choice of ordinary judges was highly

participated and allowed the local notable men to exert influence in the appointments,

even though the magistrate presiding over the elections could also influence the decision

of the Desembargo do Paço Court. In any case, the people were called to the county seat

to participate in the voting and, according to the testimonials in the records, they

represented the village’s various professions and sensibilities. The ritual inherent to the

process itself triggered social contacts that tended to ensure the occupation of places by

oligarchic and family lineages.

From what has been said, especially due to the plurality of jurisdictions, territories,

appointments and elections, we can draw some conclusions (Hespanha, 2019b).

With regard to graduate judges, the permanent evaluation of their competences was a

fact, allowing, in principle, the career progression of the most capable, although the

group of these judges was small.

As for popular judges (ordinary judges), what the indirect elections reveal is that popular

representation was residual. Their jurisdictions were very limited, both for civil and

criminal cases, which allowed, on a deferred basis, the intervention of or appeal to

graduate magistrates. However, the cases taken by the ordinary judges were the

majority and covered what most frequently happened in the communities, whose

sentences were without ifs or buts. Unfortunately, we do not know, in a systematic way,

the meaning of their actions and interventions because the municipal files did not keep

these cases as the records and sentences were carried out orally.

In addition to the appeals, pleas and grievances under the responsibility of the Porto

Court of Appeal or the Casa da Suplicação, the system also allowed a last appeal, called

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"graça", through which the Desembargo do Paço could consult the monarch for law

waiving or the granting of favours and privileges.

In the ombudsmen offices, whose royal jurisdiction had been transferred to the noble or

ecclesiastical donee, it was up to the landlords to give the election process to the ordinary

judges, very similar to the royal model, but with the supervision of the graduate

ombudsman appointed by the donee.

II. The organization of justice in the first period of Liberalism

II.1. The debate in the Constituent Cortes and the constitutional text of 1822

The Cortes approved the constitutional text on 23 September 1822 and the royal oath

of King João VI took place on 1 October, followed by that of the city councils and other

entities. But, even among the defenders of the Constitution, the idea that there were no

conditions for its enforcement grew more and more, and in the first debates of the

Ordinary Cortes, people began to talk about its revision.

Shortly thereafter, the Constitution was suspended, after the "Vila-Francada" coup (May

1823), and the Ordinary Cortes were eventually closed (see Hespanha, 2012a, 2009,

2004).

To get a sense of the dimension of the debate on the judiciary that liberals believed to

be the guarantee for compliance with the laws, but about which they had a very critical,

corrupt and worn image, let us compare the draft constitution with the constitutional text

(Moreira, 2018; Pereira, 2018).

First, let us briefly review the categories of judges referred to in the text of the 1822

Constitution (Title V, "On the Judiciary").

One of the innovations of the new liberal regime were the "de facto judges", who dealt

with criminal and civil cases and also crimes of abuse of press freedom. These judges

would be elected, in each district, through the constitution of lists of persons with the

legal qualities for this purpose. One could only appeal against the decisions of these

judges to the Court of Appeal so that it could take "knowledge and decide about the same

or a different council of de facto judges" in cases where the law so determines.

Then, the "judges of law" exercised jurisdiction in each district. There was a first instance

judge of law in each to judge by law the cases in which there were de facto judges and,

to judge de facto and de jure, in those where there were not any. The jurisdiction of

these judges, whose decision was final, both in civil and criminal cases, was determined

by law and the appeal to the second instance would cover cases that exceed these limits.

In Lisbon, Porto and in the most populous cities, there would be as many graduate judges

as necessary. To be a judge of law, it was necessary to be a Portuguese citizen, be 35

years old and have a bachelor degree in Law from the University of Coimbra, which had

the monopoly on the education of jurists.

It was also established that judges of law would be permanent, subject to transfer of

place at the end of each three-year period and that promotion would follow the rule of

seniority.

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The "elected judges", chosen for the subdivisions of the districts, would be elected by the

citizens in the same way as the councillors of the town halls. These magistrates judged

without recourse civil cases of minor importance and minor crimes, whose limits would

be established by law. The sentence would be made verbally, listening to the parties and

noting the sentence in a public record. They could also be conciliation judges and assume

the safety and keeping of public order.

The "arbitrating judges", who could be appointed by the parties to decide "on civil cases

and penalties", depended, therefore, on the success of those involved in each case.

Finally, there were the "conciliation judges", who could be used by the elected judges in

the cases and in the manner that the law would determine

This typology of judges listed in the Constitution did not correspond, at all, to the text of

the constitutional project, presented to the Courts on 25 June 1821. It was discussed on

9 June

, although the part referring to the judiciary began to be debated only at the

beginning of 1822 and took close to two months to be approved (Subtil, 1986).

On the contrary, the constitutional project defended the choice of judges of law, in line

with the tradition of juízes de fora. This political option was taken by parliament members

Sarmento, Borges Carneiro and Pinto de Magalhães, who justified the option due to the

complexity of liberal societies guaranteeing freedom, increasing laws and defending the

social pact. According to them, "to be free, it is It is essential that we are slaves of the

law: a Nation that is free and constitutional must have more laws"

Therefore, the constitutional project did not provide for ordinary judges and admitted de

facto judges (council of jurors) only in criminal cases, always presided over by a judge

of law. Regarding conciliatory judges, the project provided for them as long as they were

judges of law.

As for the careers of judges of law, the principle of perpetuity of the job and the principle

of seniority as a criterion for progression were affirmed. No control and inspection

mechanism was foreseen.

The constitutional project on the judiciary was, therefore, a traditional and conservative

text, not in line with the criticisms of the "damned spirit of the body" of the magistracy

which, as parliament member Girão said, "in the Cortes the magistrates have always

predominated, and for that reason they will make the Nation their slave".

The defence of the constitutional project was conducted, in large part, by the

undersigning parliament member José de Moura and two of his colleagues, Borges

Carneiro and Castelo Branco, who would eventually, during the debate, distance

themselves from it. The former, opposing the seniority criterion for career progression,

defended a supervising system to hold judges accountable. The latter, more radical,

The Courts of Appeal would judge in the second and last instance and a Supreme Court of Justice, based in

Lisbon, composed of judges of law appointed by the king, would recognize the errors of office of ministers,

appeal officials, secretaries of state, diplomats, and regents of the kingdom. They had the power to grant

or deny appeals, except for de facto judges.

The subscribers of the constitutional project were José Joaquim Ferreiras de Moura (Beira), Luís, Bishop of

Beja (Beira), João Maria Soares de Castelo Branco (Extremadura), Francisco Soares Franco (Extremadura),

Bento Pereira do Carmo (Estremadura), António Pinheiro de Azevedo e Silva (Beira), Manoel Fernandes

Thomaz (Beira), Manuel Borges Carneiro (Extremadura) and Joaquim Pereira Annes de Carvalho (Alentejo).

Intervention of Pinto de Magalhães, 11 January 1822, Diário das Cortes, volume IV, p. 3.665.

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defended the prevalence of ordinary judges and the practice of elections to legitimize the

job of judge. The other signatories of the Committee took a more moderate option, as

was the case of Fernandes Thomaz, Pereira do Carmo and Pinheiro de Azevedo.

In the opposite field, the political fight against the constitutional project was assumed by

José Joaquim Rodrigues de Basto (Minho), who defended, exclusively, the ordinary

judges, chosen by electoral suffrage, with removable positions and valid for one year. He

was backed by Martins Ramos, Vilela, Barrata and Barreto Feio.

These two positions, the option for judges of law and the defence of ordinary/elected

judges, were joined by a third tendency, with a conciliatory predisposition. The latter

defended the continuation of judges of law, accepted to review the principle of seniority,

permanency, the intervention of de facto judges and the accountability of the post,

provided that it was framed in a law that covered more public administration offices. This

would happen on 13 January 1823, for some the most important day after the revolution

(Subtil, 1988).

At the end of the debate, the constitutional text would completely change the text of the

constitutional project regarding the jury and ordinary and conciliatory judges. De facto

judges (jurors) were devoted to criminal and civil cases, ordinary judges would try small

criminal and civil claims, without plea or appeal, and conciliatory judges were assigned

the important task in filtering disputes for courts.

The pattern that prevailed in the constitutional text, with the enshrinement of de facto

judges, elected judges

and conciliatory judges, aimed to legitimize the new regime

regarding popular support and to reduce the flow of cases in court. This would limit the

intervention power of judges of law in the courts of first and second instance.

In conclusion, it was a victory for the most radical wing of Congress, well expressed in

the words of the moderate and prestigious congressman Fernandes Tomás, who stated,

at the end of the approval of the constitutional text, that the intention had been "to cut

short the nails" of the magistracy

In any case, with this heated political debate, the motto and arguments for the discussion

on liberal models for justice, the choice of types of judges, the role and autonomy of

judges of law and the breadth of direct or indirect elections in the choice of popular judges

were established for the future.

This will be examined next, focusing on the Reform of Mouzinho da Silveira (1832), the

New Reform (1838) and the Newest Reform (1841).

II.2. The reform of Mouzinho da Silveira (1832)

With the repeal of the 1822 Constitution, in an attempt to limit the offensive of the "ultra-

realists" and radical liberals, King D. João VI appointed a board formed by moderate

personalities of great political and academic prestige, to propose a new Constitution.

The election model was regulated by the decrees of 20 July and 9 August 1822.

Session of 5 October 1822, Diário das Cortes, volume VII, p. 695.

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Some constitutional projects of several citizens were also sent to the board to be included

in the new constitutional text (Hespanha, 2004: 128-152).

However, it was the Constitutional Charter, influenced by the political-constitutional

theory of Benjamin Constant, granted by King D. Pedro IV, in Rio de Janeiro (29 April

1826), that became the great alternative to a Constitution. This was because it served

the interests of various liberal factions, including the more traditional ones. The first

period of the Constitutional Charter was in the 1826-1828 legislature and, after the

Miguelite defeat in the civil war, when the Cortes met again on 15 August 1834.

Regarding judges, the most emblematic feature of the Constitutional Charter was,

arguably, the elimination of elected judges within the framework of the organization of

justice and the association of the judiciary with the judges of law. The latter came to hold

permanent positions, although capable of changing place or be suspended by the king,

after hearing the Council of State or following a bribe, corruption, embezzlement or

receiving undue advantage.

Despite the adoption of this model, the Constitutional Charter granted the intervention

of jurors in civil and crime cases to investigate the facts in accordance with what the laws

would determine

. It also recognized the justices of the peace, elected in the same way

as the councillors, to attempt conciliation before any legal process. The Constitution also

admitted arbitration judges in civil and criminal cases by appointment of the parties, and

the sentences could be definitive, by agreement between them.

But neither the Constitution nor the Constitutional Charter provided for the regulation of

the justice system, leaving this organization to future laws. Thus, the first reform of

justice, aiming to replace the model of the Ancien Régime that was still in force, more

than ten years after the revolution, was the Decree of 16 May 1832 (Decree no. 23). It

was part of a vast legislative package, authored by Mouzinho da Silveira (Manique, 1989;

Pereira, 2009). However, the reform was so complex that it was doomed to failure, as

happened after the short period between the end of the civil war between liberals and

absolutists (1834) and the September revolution (1836)

The programme approved on Terceira Island adopted, for the entire Kingdom, first and

second instance judges, permanent, graduates and appointed by the government. They

would enforce the law with complete autonomy, except in criminal cases whose facts

were investigated by the jury and on which the judges of law would enforce the law

The 1822 Constitution, in article 191, created a Supreme Court of Justice in Lisbon The Constitutional

Charter, in article 130, and the 1838 Constitution, in article 126, confirmed the Supreme Court of Justice.

The Mouzinho da Silveira diploma has 293 articles and the judicial apparatus is divided into judicial circles,

which in turn were divided into counties. The counties were split into hearing houses and the latter into

parishes. By decree of 28 June 1833, the division of the territory was established as follows: four judicial

districts (Lisbon, Porto, Lamego and Castelo Branco). The Lisbon one would have 15 counties and 200

municipalities; Castelo Branco would have four counties and 135 municipalities; that of Lamego, eight

counties and 232 municipalities; Porto had 13 counties and 230 municipalities. The total accounted for 40

counties and 796 municipalities and 47 judges of law and four courts of appeal.

Collecção de Decretos e Regulamentos mandados publicar por Sua Magestade Imperial o Regente do Reino

desde que assumiu a Regência em 3 de março de 1832 até á sua Entrada em Lisboa em 28 de julho de

1833, Lisbon, Imprensa Nacional, 1836 (second series), pp. 102-147.

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The remaining categories of judges represented a huge panoply, including the justices of

the peace, ordinary judges, village judges, arbitration judges and the jurors (Subtil,

2021).

The justices of the peace would be elected by the peoples and their functions, conducted

without pay, would consist of reconciling the parties, as already indicated in the

constitutional texts. The election, annual and by secret ballot, took place in the assembly

of the heads of families of each parish, gathered in the parish church (parish assembly)

on the last Sunday of June of each year and presided over by a councillor. The one who

obtained the majority of votes would be elected and, in case of a tie, the eldest would be

chosen

. The appointment of the secretary and scrutinizers was made by acclamation at

the meeting.

In the same assembly, three citizens were elected to form the group of standing up

judges

and also two representatives per parish to ensure representation in the

municipality. These deputies (members of the municipality and representatives from the

parishes) later elected three people to form the list of the ordinary judges.

After the lists of ordinary judges had been made, the records were sent to the judge of

law of the county, who submitted them to the president of the second instance court,

who then chose an ordinary judge and a standing up judge and gave them the respective

letter of appointment for a year.

This model shared many features practiced in the corporate monarchy, with the

difference, in this case, that the universe of voters was broader. However, this model by

Mouzinho de Silveira required an inordinate recruitment of citizens elected for short

periods, thus forcing repeated elections and trivializing the exercise of positions

(Domingues, 2018).

Let us now examine the typology of judges, roles and competencies, some of which were

potentially conflicting.

Ordinary judges could deal with cases that did not exceed 12,000 reis in real estate and

24,000 reis in movable property, while standing up judges dealt with cases involving

damage caused by people or cattle in "crops, vineyards, gardens, orchards, pastures and

groves", with a special intervention in the rural world where the multiplication of conflicts

was great, with the advantage of these judges knowing the territory and the population

(Domingues, 2018).

The cases these standing up judges dealt with were verbal and could involve pledges,

valuation and sale at auction, write records for crimes, avoid brawls, riots and mutinies,

arrest in flagrante delicto and have the offenders presented to the ordinary or judge of

law, and deal with the requests of these first instance judges. As they were appointed

by the presiding judge of the second instance court, they could also be suspended by

him.

The eligibility conditions for the justices of the peace were to have Portuguese citizenship, the full exercise

of political rights, a mandatory address in the parish and an annual income of 200 thousand reis (in the

cities) and 50 thousand in the villages.

Eligibility followed the same criteria as the justices of the peace, but with income limits ranging between 50

thousand reis for cities and 20 thousand reis for towns and villages.

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As for the arbitrators, they were chosen by the parties to exercise arbitration and could

not refuse the mission.

Finally, the jurors (those who “swear to judge”) are removed from a ledger book

belonging to the councils’ archives and updated in May every year. Registration was done

individually and belonged to each citizen who met the conditions for registration. Non-

registration entailed sanctions, fines and loss of rights.

The annual list of the jurors was determined in the council on the first day of January

every year, in a meeting with the judge of law and the delegate of the royal attorney or

with the ordinary judge and the royal sub-delegate. From the ledger book, lists were

formed. A jury list for the first quarter, another for indictment jurors for criminal cases,

and another for sentences regarding civil and criminal cases. When the lists had been

made, individual tickets were placed in an box from which the jurors were drawn by a

boy under 10 years of age. Then, again, the tickets were placed in another box to make

the lists for the following quarters. It was up to the judge of law or the ordinary judge,

after tabulation, to notify the jurors of the days they would have to serve the jury court.

In addition to the variety of jurisdictions, Mouzinho da Silveira’s reform required a huge

contingent of jurors, ordinary judges, justices of the peace and standing judges with an

annual rotation. This implied repeated meetings in the municipal councils, elections, and

notifications that disrupted the daily life of local political and social life for acts that were

not aimed at the true practice of justice.

Whereas this reform was, in itself, impracticable, it remained as an illustration of a

pamphlet-letting intention in the context of the civil war and as a speculative example,

because it was designed without taking into account the reality of an illiterate country

encrusted by oligarchic practices.

II.3. The New Reform (1836) and the Newest Reform (1841)

With the end of the civil war and the victory of the liberals (1834), the fight between the

liberal factions returned. Its outcome brought to power the group identified with the most

radical options (revolution of 9 September 1836). The 1822 Constitutional text was

recovered and a new would be approved in 1838 (Gomes, 2013; Hespanha, 2019a;

2018;2012a;2012b).

However, one of the first measures of the new September government was to decree the

judicial reform and organize the justice system through the Decree of 29 November 1836,

authored by the Viscount of Sá da Bandeira, Manuel da Silva Passos, and António Manuel

Lopes Vieira de Castro. This New Reform detailed, in the report that supported it, two

objectives: bringing justice closer to the citizens, hence the concentration of efforts in a

new administrative territorialisation and clearer procedures due to the legislative

confusion.

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The division of the new political space, which had not been implemented with the

legislation of Mouzinho da Silveira, was defined in the Decree of 13 January 1837

with

maps of the 48 counties and municipalities, 351 julgados (hearing houses) and parishes,

three second instance courts, one in Lisbon (with 21 judges), one in Porto (with 21

judges) and one in Ponta Delgada (with seven). The reform of the civil, ordinary,

summary, and criminal procedures was also promised.

In this new orientation, very close to Terceira's legislation, practically the same model of

justice was maintained, with clear simplifications.

Judges of law, royally appointed and serving for life, would judge in first instance courts

in each district and preside over the Correctional Police courts and the Family Councils.

The counties were divided, in turn, into julgados, under the jurisdiction of an ordinary

judge, elected by the people, with the exception of Lisbon and Porto, where there would

be no ordinary judge

. These ordinary judges dealt with minor cases, knew about the

result of the appeals made to judges elected from the parishes and prepared the cases

for the judge of law. The julgados were divided into parishes where an elected judge

would address minor cases.

There was also a justice of the peace (elected) who could intervene in a single parish or

more, depending on the population. There was at least one justice of the peace for 200

dwellings, and it was mandatory for him to try to reach an understanding between the

parties before the cases reached the courts

. And, finally, the jurors who followed the

established guidelines.

The 1838 Constitution

addressed justice in a very short title (Title VII) where it

identified only judges and jurors, both in civil and criminal matters. The judges of law

were to be appointed by the king, the ordinary judges elected by the people, the same

applying to the justices of the peace, who always intervened before the cases became

contentious. It included Courts of Appeal and a Supreme Court of Justice. The judges of

law maintained the immovability of positions, although first instance judges could be

moved every three years.

The Newest Reform, implemented by the Decree of 21 May 1841, during the government

of the Count of Bonfim with Costa Cabral as Minister of Justice, preceded, in a few

months, the definitive restoration of the Constitutional Charter (1842) that established

the constitutional monarchy until the establishment of the Republic (1910)

. The

novelties of this reform were, however, very few and did not solve the intricate problem

of multiple jurisdictions, the complicated network of popular judges and the intense

calendar of elections.

Reforma judiciária approvada pelos Decretos de 29 de novembro de 1836 e 13 de janeiro de 1837, Lisbon,

Imprensa Nacional, 1837. The Decree-Law of 13 January 1837 established the civil and criminal procedure

rules.

They were elected by the people, for two years, and could be reelected. The election was made according

to lists defined by the judge of law.

The justices of the peace, ordinary and elected judges of the parishes did not need royal confirmation. The

election was the same as that of the councillors.

Dirio do Governo, of 24 April 1838, No. 98.

Decreto de 21 de Maio de 1841, que contém a Novíssima Reforma Judiciaria com os Mappas da Divisão do

Território, e as Tabellas dos Emolumentos Reformadas em virtude da Carta de Lei de 28 de julho de 1848,

Coimbra, Imprensa da Universidade, 1857.

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With regard to the organization of the jurisdictional territory, the hierarchy levels started

to include the district, the county, the julgado and the parish. Each district would have

the right to supervise a court of appeal that would dealt with second and last instance

cases. The district of Lisbon had 21 judges, the district of Porto had the same number

and the district of Ponta Delgada had seven judges.

The second level was formed by the county, where there would be a judge of law and,

on the third level, a julgado with an ordinary judge and one or more justices of the peace

who would exercise conciliation jurisdiction in their own homes: "No case will begin in

litigation, without its object having been previously submitted to the Conciliation Court,

by order of the Justice of the Peace, or by voluntary action of the parties (Article 210.)

Finally, at parish level, it would be up to an elected judge to decide verbally, after hearing

the witnesses and ascertaining the facts.

In line with previous reforms, the parties could appoint arbitrator judges, who could be

any citizen.

Among the few novelties of the Newest Reform, we can mention the new institutional

outline of the jury. The council of jurors, which ruled on civil and criminal cases, was now

dismissed whenever the facts could be proved by documents, inspection, or examination,

or when one of the parties did not consent to have a jury trial. These judges were further

divided into indictment jurors and sentencing jurors.

Another novelty was the creation of a correctional police court in each county and the

intervention of the Public Prosecutor's Office with ordinary judges. The main one was the

reduction in popular participation in the administration of justice.

Conclusion

One of the political flags of the first years of liberalism (1820-1841) was the scathing

criticism of the justice system of the Ancien Régime. The model adopted by the new

regime could not dispense with two legacies: the system of judges of law, similar to the

role of juízes de fora, and the replication of ordinary judges to affirm the popular

character of justice as a support for the independence of the judiciary, the defence of

freedom and the enforcement of the law.

Therefore, the various reforms shared four principles: the independence of the courts as

a guarantee of the enforcement of the laws, the defence of the permanent nature of

positions, hearings with a jury and the representation of the various types of elected

judges. The last two principles were considered fundamental to freedom and the defence

of the division of powers.

The case of the jury attests to this conviction and highlights the political changes of the

new regime. Admitted since the 1822 Constitution to certify the verification of the facts,

they left to the judges of law the simple enforcement of the law, while they had merely

bureaucratic roles. However, this intervention of the jurors will vary, later, in criminal

and civil cases, regarding the limits and in the relationships maintained with the judges

of law. In fact, these were the signs that marked the political direction of the reforms,

starting with the 1836 one in which the jury lost some relevance in civil cases, which was

the most substantive political and social matter for consideration in the courts. And with

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the Newest Reform (1841), they were subject to the agreement of both parties, removing

the mandatory nature that had been imposed since the reform of Mouzinho da Silveira.

As for the ordinary judges, the liberal regime realized, very early on, that it could not

dispense with an organization that operated and intervened in more than 700

municipalities, and had a great weight in the life of the communities. And it also realized

that it could not do without them to reinforce the popular nature it wanted to give to the

liberal justice system.

But this choice of the liberal regime met with a huge setback, the fact that ordinary

judges were accustomed to autonomous practices associated with micro-municipal

powers, contrary to the centralization desired by the Liberal State. It would prove these

intentions with the drastic reduction of municipalities and the removal of fiscal benefits,

in a clear offensive against the municipality inherited from the Ancien Régime.

Regarding non-judicial ways to resolve conflicts and disputes, with recourse to elected

judges of parishes, justices of the peace, arbitrators and standing up judges, the liberal

regime softened the obligation of its interventions from the New Reform with the support

of the judges of law. For the latter, these popular judges were politically and socially

inconvenient due to popular radicalization, insignificant legal practice and low cultural

level.

But, paradoxically, these popular institutions represented contradictory alternatives to

the liberal legal dogma, that is, a two-way situation, positive for the popular affirmation

of the system, and negative for the State’s centralizing construction.

The independence of magistrates and the safeguard for their effectiveness also ended up

giving rise to a certain "government" oriented courts and judges. They progressively saw

themselves as important actors in the construction of the State, mixing the sphere of

justice with administrative intervention, even after the approval of the September

administrative code (6 November 1836) and the Cabralista administrative code (16 March

1842).

The debate systematized here around the choices between judges of law and popular

judges shows how the definition of the judicial system was central to asserting the

domain of Law in liberal political doctrine. This was so even if the vicissitudes of political

choices have heightened the resistance of local authorities, especially after the new

jurisdictional and administrative territoriality.

In conclusion, between continuities and singularities, four structuring ideas can be

advanced.

The first, of an institutional nature, refers to the importance of the “assemblies”, from

community and municipal meetings to parliamentary assemblies. Both in the Ancien

Régime and in liberalism, it was believed that citizens' meetings, more or less enlarged

and legitimated, had the power to “create power” and the right to order society.

The second associates law with the culture of common sense, to readjust and conjugate

both legislative and traditional norms with social and political realities. In a way, culture

has shaped the construction of law, including unwritten practices based on community

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forms of justice. More than just laws, there were “judges to do justice”, as Bartolomé

Clavero stated in an exemplary manner

As a third idea, we would highlight the educated iustitia, the network of judges and courts

known as the “knowledgeable” of law, to show how liberalism, after the pamphlet stage

of the revolution, began to trace the path of a tendential professional justice, to develop

jurisprudence as corpus iuris, contrasting ius commune with ius proprium.

And, finally, to emphasize the absolute need, in this new liberal society, for a political

right, substantively an administrative law, particular to the executive power, neither

parliamentary nor judicial, insofar as parliamentary legislation and the intervention of

popular and judges of law proved insufficient to support the government's field of

involvement.

This new administrative law would henceforth be entrusted to the executive power, which

defined the areas of its control, organizing its own administrative and non-judicial

jurisdiction, increasingly closing the field of intervention of popular judges in civil matters,

referring them to the sphere of crime and, even so, residually.

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