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VOL12 N2, TD1

Thematic dossier 200 yeas after the Revolution (1820-2020)

December 2021

VOL12 N2, TD1

Thematic dossier: 200 years after the Revolution (1820-2020), December 2021

DOI: https://doi.org/10.26619/1647-7251.DT0121

Editorial – Jose Subtil, Cláudia Atallah, Sarita Mota, Rodrigo Dominguez – pp 1-5

ARTICLES

The crime of high treason lese-majesty (Primeira Cabeça) in Conjuração Baiana (Bahia’s conspiracy) of 1798:

continuity in legal modernity – Patrícia Valim – pp 6-26

On the eve of Liberalism, Good Reason and proof of common law in Portuguese America (1769-1808) – Cláudia

Atallah – pp 27-40

“Contos Loucos” and “Fantásticas Carrancas”: Vintism (1820-23) in Pernambuco – Maria do Socorro Ferraz –

pp 41-54

The Subsídio Literário tax. Continuity or break? – Telma Ruas – pp 55-76

Patriotic sociability and defence of the constitutional cause – Ana Cristina Araújo – pp 77-86

Construction and deconstruction of the Liberal International Order – Luis Tomé – pp 87-118

The Constitutional Charter of 1826 and the dissolution of the Chamber of Deputies. Legal rules, political

practices and functioning of the 19th century monarchical – Liberal Regime (1834-1865) – António Pedro

Manique – pp 119-139

Popular judges and judges of law during liberalism. Portugal (1820-1841) – José Subtil – pp 140-159

The liberal views and the progress on the understanding of security – Luís Valença Pinto – pp 160-169

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Thematic dossier 200 years after the Revolution (1820-2020)

December 2021

EDITORIAL

200 YEARS AFTER THE REVOLUTION (1820-2020)

JOSÉ SUBTIL

jsubtil@autonoma.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.

CLÁUDIA ATALLAH

clauatallah@gmail.com

She is Associate Professor at the Fluminense Federal University (UFF, Brazil) and Permanent

Professor at the Postgraduate Programme in Social History at the State University of Rio de

Janeiro (UERJ). She has a Bachelor Degree in History and a Master Degree in History from the

State University of Rio de Janeiro (UERJ). She holds a Ph.D. in History from UFF, with the thesis

“Da justiça em nome d’El Rey: justiça, ouvidores e inconfidência em Minas Gerais (Sabará, 1720-

1777)”, published by EdUERJ (2016) with FAPERJ funding. She published the compilations

Justiças, Governo e Bem Comum na administração dos Impérios Ibéricos de Antigo Regime

(séculos XV-XVIII) with Junia Furtado and Patrícia Silveira (2016); Estratégias de poder na

América portuguesa: dimensões da cultura política séculos XVII-XIX), with Helidacy Corrêa

(2010).

SARITA MOTA

saritamota@gmail.com

She is a researcher at the Centre for Research and Studies in Sociology (CIES), at the University

Institute of Lisbon (IUL, Portugal), where she coordinates the project “Terra, Poder e

Territorialidades na América Portuguesa (séc. XVI-XIX)” and the Permanent Seminar Cycle

“Cidades e Impérios: dinâmicas locais, fluxos globais”. She has a Ph.D. in Social Sciences from

the Federal Rural University of Rio de Janeiro (UFRRJ), with a thesis on the legal institutes of land

ownership in Brazil (16th-19th centuries). She has a Bachelor Degree in History and a Master

Degree in Social Sciences, both from the State University of Rio de Janeiro (UERJ). She is the

author of articles, book chapters and entries in collective works, and her last article is entitled

“Entre la ley y la práctica: antíguos y nuevos usos del Registro Parroquial em Brasil”, HAAL,

2(02), 103-128 , 2021.

RODRIGO DA COSTA DOMINGUEZ

rcdominguez@ics.uminho.pt

Rodrigo da Costa Dominguez has a degree in History from the University Centre of Belo Horizonte

– Uni-BH (2001). He holds a Master degree in Medieval and Renaissance History (2006) and a

Ph.D. in History (2013), both degrees awarded by the Faculty of Humanities of the University of

Porto. He is currently a Junior Researcher and Deputy Coordinator of the Interdisciplinary Centre

for Social Sciences (CICS.NOVA.UMinho, Portugal), at the University of Minho. His research and

publications include the taxation of the Portuguese Crown, trade and maritime transport, and

Portugal's long-term fiscal and financial institutional policies (15th-19th centuries). He is co-

editor of Portugal in a European Context - Essays on Taxation and Fiscal Policies in Late Medieval

and Early Modern Western Europe, c. 1100-1700 (Palgrave Macmillan, in press) and author

of Fiscal Policy in Early Modern Europe: Portugal in Comparative Context (Routledge, 2019).

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Editorial

José Subtil, Cláudia Atallah, Sarita Mota, Rodrigo da Costa Dominguez

EDITORIAL

200 YEARS AFTER THE REVOLUTION (1820-2020)

JOSÉ SUBTIL

CLÁUDIA ATALLAH

SARITA MOTA

RODRIGO DA COSTA DOMINGUEZ

In 2020, we highlighted the 200 years of the Liberal Revolution, one of the essential

historiographical landmarks in the History of Portugal and Brazil. We did this by

organizing an inter-university webinar that was attended by researchers from both sides

of the Atlantic.

In the words of German historian Sebastian Conrad, the organizers strove to create a

broad and universal approach to this historic event, bypassing the pitfalls of Eurocentrism

and biased interpretations with a perspective linked to the development of the «nation-

states» of the 19th century. In this sense, the participation of different specialists in the

various panels was essential, allowing the participants and, consequently, the readers of

this thematic issue of the janus.net journal, to have a comparative, balanced and

multilateral view. This view encompasses both issues directly related to the Portuguese

context, immediately before and after the revolution, and aspects regarding its

developments and impacts in different contexts, in different chronologies and in different

parts of the Atlantic.

On the other hand, an important bias to be highlighted is the complex process of political

paradigm shift from the mid-eighteenth century, where doctrines, practices and

symbolism typical of the Ancien Régime Iberian began to shift towards a Liberal State.

The text by Patrícia Valim (Universidade Federal de Ouro Preto) on the crime of lese-

majesty and its application in the Conjuração Baiana/Bahia’s Conspiracy (1798)

highlights the process of transformation. The author sheds light on the transition from

legal pluralism to the professionalization of the legal field, with an emphasis on national

law and on the conception of legislative and penal rectitude. It pays attention to the

interpretations and jurisprudence that emerged from the discussions around the process

of judging those involved in the revolt, within a context of rationalization of the legal

logic and the revisionism of the State's punitive action, less and less tied to the idea of

“personal” justice of the monarch and closer to clear, detailed procedures carried out

within properly delimited institutional contours and legal procedures under the auspices

of Good Reason.

Editorial translated by Carolina Peralta.

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Editorial

José Subtil, Cláudia Atallah, Sarita Mota, Rodrigo da Costa Dominguez

In the author's words, the desecration of the hereditary divine right ended up generating

a new political economy of the king's punitive power. In fact, the analysis of the inquest's

records exposes the reach of the ideals of freedom and equality at the end of the Ancien

Régime, especially the contradictions of magistrates involved in illicit practices, the

intricacies of justice and monarchical power, as well as the political rearrangements in

Salvador’s society. Despite the negotiation between the crown and the local elites to

repress the “projected revolution” and the “Bahia Republic”, the punishment fell on four

free men, poor, pardos and occupants of low-ranking military posts.

These sentenced figures, the “Beings of Liberty”, are not treated as “martyrs”; on the

contrary, the public ritual of torture attests the despotic absolutism of the time, the

submission of subjects to the sumptuousness of the crown, the weight of social

hierarchies supported by slavery, political control and the limits of republican ideals.

In the context of the Lei da Boa Razão/Law of Good Reason (1769), the article by Cláudia

Atallah (Universidade Federal Fluminense) describes this same changing legal scenario

by analysing the applicability of common law after the institution of the aforementioned

law, which would clearly demarcate the political rationalism desired by the reforms of

Sebastião José de Carvalho e Melo. The strengthening of the State should necessarily go

through the specialization of the legal field and the professionalism of its agents. At first,

the author makes a balance of the historiography on the so-called Pombal’s ministry,

problematizing the discussions about the rupture nature (or not) attributed to the period

in question. Following her analysis, she presents us with a case study on the impacts of

that law on the legal universe of Portuguese America, giving an opinion by D. Rodrigo

José de Menezes e Castro, governor of the captaincy of Minas Gerais, sent to Martinho

de Melo e Castro, Secretary of State for the Navy and Overseas of the Kingdom of

Portugal (1783). In the document, Menezes e Castro describes the difficulties in enforcing

the royal law and the peculiarities of governing the colonial hinterlands. The author also

analyses the increase in requests for proof of common law that reached the Overseas

Council in the thirty years after the Law of Good Reason.

The text by Maria do Socorro Ferraz (Universidade Federal de Pernambuco) analyses

the political-administrative disputes in Pernambuco regarding the handling of the

captaincy, considering its relations with two important centres of power, Rio de Janeiro

and Lisbon. Both cities were going through moments of great political and social tension,

with the Pernambuco Insurrection of 1817 and the creation of the Sinédrio (Sanhedrin)

in Portugal in 1818. Her paper also describes the impact of the presence of the

Portuguese Court and the decisions taken on political and economic issues that concerned

Pernambuco, clarifying the positions between "monarchist" liberals and "republican"

liberals. Among the factors that triggered the Pernambuco Revolution was the discontent

of the landowning class with the Portuguese governor Caetano Pinto de Miranda

Montenegro's treasury administration, the excess of taxation and the transfer of colonial

income. Also symptomatic is the circulation of a new political vocabulary influenced by

liberal American and French literature: terms such as “royal tyranny”, “manifesting

injustice”, “oppression”, “nation”, “brave patriots”, “social rights” and “organic laws”,

used by the revolutionaries to rally popular support. The movement was responsible for

strong political repression and numerous arrests of liberals from Pernambuco: the leaders

were sentenced to the death penalty; others were sent to exile in Africa and incarcerated

in several prisons in Brazil, while others were sent to Lisbon on charges of being

supporters of independence.

The work of Telma Ruas (Universidade Autónoma de Lisboa) focuses on the analysis of

the "subsídio literário" (literary subsidy) tax, a tax created by Pombal’s reform to support

the teaching strategy and which prevailed after the liberal revolution, despite the heated

debates for the its extinction. The defence of the tax, in view of the difficulties of the

State's finances, was based on the promotion of primary education and based its

intention on the fulfilment of fiscal duties. The subsistence of this tax was decisive for

the education system and underlined the financial importance of the contribution which,

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Editorial

José Subtil, Cláudia Atallah, Sarita Mota, Rodrigo da Costa Dominguez

as the author says, “founded the demands for the creation of elementary schools and

secondary education courses, calling for compliance with the norms related to tax

contribution”, both through individual and collective petitions that reached the Cortes.

The subsídio literário tax ended up allowing municipalities to use their contributions in

elementary education and the acquisition of technical skills to leverage development and

economic growth in line with the essential values of the ideas of freedom, equality and

justice. With this work, one more field of continuity between the Ancien Régime and

Liberalism was evidenced in one of the fundamental areas for the constitutional

monarchy.

The article by Ana Cristina Araújo (University of Coimbra) focuses on three associations

that, at the end of the 18th century and beginning of the 19th century, contributed to

the construction of networks of public social organizations, providing, therefore, the

debate of ideas about the philosophical modernity of the Enlightenment: the Mancebos

Patriotas society based in Coimbra (1780), the Montepio Literário (1813) and the

Sociedade Patriótica Literária de Lisboa (1822). These philanthropic associations stood

out, above all, in the dissemination and political and social communication within a public

atmosphere emerging from the transformations that were, in the words of the author,

taking place "in the spaces, agents and mechanisms of literary, cultural, scientific and

sociability politics in Portuguese society. All this under the influence of the Enlightenment,

marked by new perceptions of encyclopaedist culture and philosophy, and taking into

account the well-known channels of access to foreign printed production through the

clandestine circulation of books, periodicals, literary and theatre novelties”. This civic

participation grew in leisure spaces and in literary gatherings fed by cultural elites who

also ended up operating changes in the way knowledge was shared, and in the use of

social interactions to improve debate and political and social criticism. These new forms

of sociability have therefore become central to the reinforcement of modernity and as a

support for liberal ideas.

The work of Luís Tomé (Universidade Autónoma de Lisboa) focuses on the various

international orders limited in time and space which, arising from liberal revolutions,

inspired new doctrines and ideologies that would mark the emergence of para-

democratic, liberal regimes, the Nation-State, multilateralism and institutionalism, In the

author's words, this “would mark several and distinct worldviews on the “international

order” that emerged in Europe and spread as a result of the colonial domination and

expansion of the European powers”. The matrix of this liberal international order, which

does not mean “world order”, is dominated by the American model and reflects the values

and interests of its culture. However, the contradictions and paradoxes of the liberal

order led to its deconstruction, especially given the “economic hyper globalization” that

legitimized certain autocracies and favoured the growth of world power in China. This

country, together with Russia, export authoritarianism and the doctrine of “non-

interference in internal affairs”, which ended up subverting the principles of coexistence

of nations in respect for international rules. We are, therefore, facing a work that invites

us to reflect on the externalization of liberal revolutions, which is quite evident in the

case of the liberal revolution in Portugal.

The study by António Pedro Manique (Instituto Politécnico de Santarém) addresses

the right to dissolve the elective chambers of parliaments which, in Portugal, according

to the Constitution of 1826, belonged to the so-called “fourth power”, the moderating

power that coexisted with the traditional legislative, executive and judicial powers. This

power, in addition to the tripartite division, belonged exclusively to the monarch, in

addition to the executive power, of which he was the head. In this sense, one of the royal

powers within the scope of this moderating power was the dissolution of the Chamber of

Deputies when the reasons for the “salvation of the State” required it, therefore, only in

exceptional situations. The author points out that this royal prerogative became

trivialized, “becoming a political instrument used by governments to obtain parliamentary

majorities through the use of fraudulent elections”. Thus, António Pedro Manique

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Editorial

José Subtil, Cláudia Atallah, Sarita Mota, Rodrigo da Costa Dominguez

demonstrates that political practice has distorted constitutional principles to become a

central mechanism of the liberal regime. He analyses the ten dissolutions of the Chamber

of Deputies decreed between 1834 and 1865, highlighting the “enormous interval that

separates the formal constitution from the real constitution that results from the political

practices of the agents of power and the institutions themselves”. The author draws our

attention to the difficulties and distortions caused by the formal interpretations of

constitutional documents if we do not take into account the dimension of political

practices.

José Subtil (Universidade Autónoma de Lisboa) chose to address the central problem of

liberals in the debate on the justice regime, that is, the choice between judges of law and

popular judges. The author drew four main conclusions. The first concerns the fact that

this debate has provided the marking of the boundary between the group of more radical

liberals, the moderates and the conservative/traditionalists. The second conclusion is that

the defence of popular judges was, above all, ideological and had two political

presuppositions: the violent criticism of the royal magistracy of the Ancien Régime and

the defence of a justice that was movable by vote and transitory during the exercise

period. The third conclusion reveals that the constitutional models and the laws of

organization of justice never had a practical manifestation until the Newest Reform

(1841). And, finally, that liberalism would end up adopting a model based on judges of

law, moving away from populism, although it accepted a mitigated version of popular

judges, the so-called judges de facto (jurors). Therefore, this work outlines the general

framework of the debate on justice for liberals and also a comparison with the model in

force in the Ancien Régime, focusing, for both periods, on the model of election of popular

judges.

Finally, the text by Luís Valença Pinto (Universidade Autónoma de Lisboa) draws our

attention to the understanding that the war contributed to the evolution of the concept

of security influenced by ideas related to liberalism and democracy (national security,

collective security, cooperative security), attentive to the human dimension. Two

circumstances together define the matrix of this relationship. On the one hand, the

increasingly liberal nature of the political and strategic context and, on the other hand,

the growing correlation and subordination of security to this context.

The editorial team of this thematic issue is pleased to offer readers this issue

commemorating the liberal revolution of 1820, which reflects an interdisciplinary effort

to problematize plural knowledge, anchored in the dialogue between the areas of History,

Law, Culture and International Relations.

How to cite this editorial

Subtil, José; Atallah, Cláudia; Mota, Sarita; Dominguez, Rodrigo da Costa (2021). Editorial:

200 years after the Revolution (1820-2020). Janus.net, e-journal of international relations.

VOL12 N2, TD1 - Thematic dossier 200 years after the Revolution (1820-2020), December

2021. Consulted [online] on date of the last view, https://doi.org/10.26619/1647-

7251.DT0121ED

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VOL12 N2, TD1

Thematic dossier 200 years after the Revolution (1820-2020)

December 2021

THE CRIME OF HIGH TREASON LESE-MAJESTY (PRIMEIRA CABEÇA) IN

CONJURAÇÃO BAIANA (BAHIA’S CONSPIRACY) OF 1798: CONTINUITY IN

LEGAL MODERNITY

PATRÍCIA VALIM

patricia.valim@ufba.br

She obtained her Ph.D. in Economic History from the University of São Paulo (USP), in 2013. She

conducted two research internships at post-doctoral level in 2014 and 2019 at the Federal

University of Bahia (UFBA) and at the Federal University of the State of São Paulo (UNIFESP),

respectively. Since 2015, she has been an associate professor at the Department of History and

at the Graduate Programme in History of UFBA (Brazil). Since August 2021, she has been a

member of the Department of History and of the Graduate Programme in History at the Federal

University of Ouro Preto (UFOP) under a technical cooperation regime. In 2018, she published

the book by EDUFBA “Corporação dos enteados: tensão, contestação e negociação política na

Conjuração Baiana de 1798", first degree crime of lese majesty. Since then, she has published

articles on the Court of Appeal of Bahia and the criminal legal culture in the investigations of the

disputes that preceded the struggles for political independence in Brazil, which took place in

1822.

Abstract

From the analysis of the information contained in the Records of the Devassas da Conjuração

Baiana (judicial proceeding filed by the Portuguese crown) of 1798, in the punitive logic of

local power and metropolitan authorities, it is clear that the circumscription of the social bases

of the event resulted from a social cleavage intended to maintain the order in Portugal and

overseas at the end of the 18th century. On the one hand, four free men, poor and pardos,

were exemplarily punished, reinforcing the strength and intrinsic superiority of Portuguese

absolutism when questioned. On the other hand, to continue governing, the Portuguese crown

needed to negotiate with broad sectors of that society, recognizing the legitimacy of the

political exercise and the struggle for the rights of those men. However, the transition from

legal pluralism to legal modernity in the Portuguese Ancien Régime was only possible because

the hierarchy inherent to slavery was not questioned.

Keywords

Boa Razão (Good Reason) Law, Criminal Legal Culture, Lese-Majesty, Bahia’s Conspiracy

How to cite this article

Valim, Patrícia (2021). The crime of high treason lese-majesty (Primeira Cabeça) in

Conjuração Baiana (Bahia’s conspiracy) of 1798: continuity in legal modernity. 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.DT0121.1

Article received on em June 1, 2021 and accepted for publication on September 15, 2021

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Thematic dossier – 200 years after the Revolution (1820-2020), December 2021 pp. 6-26

The crime of high treason lese-majesty (primeira cabeça) in Conjuração Baiana (Bahia’s

conspiracy) of 1798: continuity on legal modernity

Patrícia Valim

THE CRIME OF HIGH TREASON LESE-MAJESTY (PRIMEIRA

CABEÇA) IN CONJURAÇÃO BAIANA (BAHIA’S CONSPIRACY) OF

1798: CONTINUITY IN LEGAL MODERNITY

PATRÍCIA VALIM

In an article on the political role of the high magistracy of the Court of Appeal of Bahia

in the second half of the 18th century, published in Journal Tempo in 2018, I

demonstrated the changes and continuity in the criminal legal culture triggered by

Pombal’s reforms in the legal system of the Portuguese Empire. One of the main changes

is the ethical-religious reference that dominated criminal law over the internal and

external forums of the subjects of the Portuguese crown, replaced by the prevalence of

rights, secularism and reason, utility and proportion, order, certainty and guarantees,

inspiring secularization and the legality of offenses and sentences. From the so-called Lei

da Boa Razão, the new guidelines established by the “modern natural law” (Valim, 2018)

were the culmination of the process of affirmation of secular political authorities. At the

end of the 18th century, several jurists separated the ideas of offense, penalty and crime

of lese-majesty, in order to make them operational within a more rational and

systematized legal system, differentiating them from the notions of sin and vice that

guided law until then.

This occurred because from the second half of the 18th century onwards, one of the

pillars of the Ancien Régime and of Hereditary Divine Law was questioned: the essential

link between justice and monarchic power, so that the king's power was identified with

his will to punish. Thus, in the process of transition from legal pluralism to legal

modernity, what was at stake for jurists about the need, or not, of a Penal Code was the

establishment of a new political economy of punitive power, eliminating punishment as

an act of the king’s revenge. This represents the creation of the normative and

disciplinary modern State in which the act of punishing is now considered as something

technical, detailed, effective, pedagogical and carried out within specific institutions

(Foucault, 2013; Valim, 2015).

For Wolkmer (2004), subjectivity is the centre of the process of constitution of legal

modernity. By expressing values such as freedom and equality, it establishes the

parameters that enable the ideal origin of all political formation, thus basing the link

between the subjective rights originated in the individual and the possibility of political

legitimacy based on their implementation and protection. In this sense, legal subjectivity

Article translated by Carolina Peralta.

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The crime of high treason lese-majesty (primeira cabeça) in Conjuração Baiana (Bahia’s

conspiracy) of 1798: continuity on legal modernity

Patrícia Valim

would be the recognition of natural rights, understood as powers or freedoms that

express conditions for the full development of each one and the whole of society.

However, although the legal literature of the late eighteenth century proposed the

systematization, rationalization of the legal order and judicial impartiality, pointing to a

rational and ordering intervention on the social reality of crimes, the analysis of the

allegations of malpractice of the judges responsible for the proceedings of the 1798

Bahia’s Conspiracy demonstrated the contradiction between the premises of modern

natural law and the permanence of royal intervention in the transition from legal

pluralism to legal modernity. This becomes more evident when analysing the event itself,

its agents, its requirements, the investigation, the witnesses, the defence and the final

ruling that qualified it as a crime of High Treason Lese Majesty Crime (Valim, 2018).

According to one of the leading experts on the subject, Mario Sbriccoli, the crime of lese-

majesty defined in Book V of the Philippine Ordinances foresaw “treason against the King

or his Royal State, which is such a serious and abominable crime. The ancient experts

found it so strange that they compared it to the leprosy that fills the whole body, without

ever being able to cure itself” (Sbriccoli, 1974: 250). This crime was divided into divine

lese-majesty and human lese-majesty: the first dealt with affronts related to faith or

religion, crimes of sacrilege, blasphemy, and heresy, for example. The human lese-

majesty dealt with offenses directly linked to the physical person of the king or the Royal

State, in the form of political crime and expressed in revolts, revolutions, riots, betrayals,

insurrections, seditions and conspiracies.

Mario Sbriccoli is not the only specialist in lese-majesty crime, but he was the first to

demonstrate the scope for political discretion in distinguishing human lese-majesty

crimes between first-degree or primeira cabeça ("prima caput") and second-degree

crimes or segunda cabeça (“secunda caput”). For the author, the hierarchy of crimes

strengthened the interpretation of magistrates, who could concentrate all possible

political crimes in the definition of "first-degree" while allocating other crimes to the

category of "second-degree", opening up multiple interpretative possibilities and political

opportunities to the States (Sbricoli, 1974; Pinillos, 2020; Dalri Junior, 2005). This is

precisely the subject of this article: the construction of the so-called Bahia’s Conspiracy

of 1798 as a crime of first-degree lese-majesty by the magistrates involved in unlawful

situations and activities. This was either due to the relations between the power and the

notables, or to the deviation of behaviour in the daily life of a society ruled by slavery

and by a State whose positions were divided for the benefit of a group that guaranteed

social cohesion in the face of conflicts inherent to the colonizing process (Valim, 2018).

In her master degree's thesis on the legal system procedures in the captaincy of Bahia

at the end of the 18th century, Pinillos (2020) analysed the crime of resistance to justice

Lieutenant Antônio Manuel da Mata was accused of in 1783, also considered a First

Degree Lese-Majesty crime

. The author demonstrates the multiplication of verifiable

possibilities of the crime of lese-majesty in the daily practice of justice. This was a result

of the paradox of the criminal legal culture shaped by the Portuguese Catholic matrix

which, in the end, strengthened even more the power of the king: despite the Law of

For the Brazilian colonial period, the two episodes that took place in Bahia and the Inconfidência Mineira

(Minas’ Conspiracy) of 1789 were the only cases of crimes of lese-majesty that have been reported.

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The crime of high treason lese-majesty (primeira cabeça) in Conjuração Baiana (Bahia’s

conspiracy) of 1798: continuity on legal modernity

Patrícia Valim

Good Reason’s intent to bring about the end of legal pluralism and the casuistry of

legislation as the will of the monarch, there was a resurgence of penal legislation in the

period, especially when the king and his representatives were targets.

The growth of the variables that defined the crime of high political treason and the

expansion in the number of conducts and punishable behaviours resulted in a kind of

“operative hierarchy” reflected in the seriousness of the crime: “attempting on the life of

the king and attacking the life of a bailiff, even though both personified power with

different qualities and intensities, were not on the same level" (Pinillos, 2020: 120). This

debate is not of little relevance since some Portuguese authors tend to consider legal

pluralism as the absence of royal control of the justice system. Accordingly, they analyse

the struggles for political independence in Brazil as a consequence of the “late

centralization” of Portuguese absolutism overseas by increasing the use of capital

punishment for political purposes (Monteiro, 2006: 124).

This article points to another direction: the arbitration of justice for the crime of first

degree lese-majesty worked as an effective mechanism for political rearrangement of the

Portuguese crown with broad sectors of Salvador’s society in the conflicting transition

from the 18th to the 19th century, despite one of the last death events of the Portuguese

Ancien Régime in Brazil: the torture of hanging followed by the dismemberment of the

bodies of four poor and pardo free men considered the heads of the 1798 Bahia’

Conspiracy.

This paper aims to analyse the judicial proceeding and punishment of a political

movement/lese-majesty crime as redefinitions of exclusion procedures and an

unavoidable part of the construction of the subject of law, modern subjectivity and Law

itself as an agent and normalization vector.

***

During 1797-1798, several denunciations, mostly apocryphal, were sent to the Kingdom

reporting the excesses committed by the judges of the Court of Appeal of Bahia. the

Portuguese crown was not investigating the denunciations. Of the various reasons that

explain this attitude, the most obvious is that there was no body in the colony higher

than the Court of Appeal of Bahia and Rio de Janeiro, whose judges were the nobles of

the colonial administration, the most respected and privileged among the royal civil

servants.

In a seminal work on the subject, Stuart Schwarz demonstrates that the Portuguese

crown saw the Court of Appeal as the main guardian of its interests because it occupied

a central position within a contradictory bureaucratic system, with jurisdictional overlaps

and multiple objectives. Precisely for this reason, in cases of conflicts of jurisdiction,

conflicts between judges or denunciations of wrongdoing, such situations were eventually

referred to the Overseas Council so that the crown could give its final opinion. This was

not the case at the end of the century in Bahia, as, according to Schwartz's thesis (1979:

287), the malpractice of magistrates was compensated for by the political functions they

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The crime of high treason lese-majesty (primeira cabeça) in Conjuração Baiana (Bahia’s

conspiracy) of 1798: continuity on legal modernity

Patrícia Valim

ended up performing. In fact, this happened with the magistrates who conducted the

investigations of the 1798 Bahia Conspiracy.

The Bahia Conspiracy of 1798 was a protest movement triggered in the streets of

Salvador on the morning of 12 August through handwritten bulletins posted in public

buildings. Their content had extremely delicate points for governance on both sides of

the Atlantic. Examples include: "The Republican People from Bahia order, and want its

most dignified Revolution to be carried out in this city". This was followed by the call to

the population to participate in the uprising organised by the Freedom Party, a

heterogeneous group that called itself Anonymous Republicans, which made public the

objective of the “Bahia Republic”: “Cheer up, people from Bahia, the happy time of

freedom is coming. The time when we will all be Brothers and equal”.

In another bulletin, the Entes da Liberdade (Freedom Supporters) directly attacked Prince

Regent John VI: "People who live plagued with the full power of the crowned Unworthy

[...]". They had been questioning the legitimacy of the Prince's regency since 1792, when

the senility of his mother Queen Maria I was diagnosed. They also took sides in the

alliance between Castile and France, choosing revolutionary France for free trade with

the future “Bahia’s Republic”.

In addition to the opening of the port of Salvador, the group also demanded the increase

in militia pay to 200 réis a day, the end of taxes and fees charged by the Portuguese

Crown, the liberation of the trade in sugar, tobacco, brazilwood and all other business

types, equality before the law and merit in the criteria for advancement in the military

career and in local administration and for the choice of clerics who would lead the local

religion. Due to the publicly announced demands, the local authorities immediately

suspected, and rightly so, that the group was made up of people of different social status.

The Portuguese Crown and local authorities, headed by the governor of the captaincy of

Bahia (1788-1801), Fernando José de Portugal e Castro, acted quickly. The investigation

was initiated at once, with the collaboration of some judges of the Court of Appeal of

Bahia and a group of powerful and rich men, called the corporação dos enteados

(corporation of stepchildren) by chronicler Luís dos Santos Vilhena (1969), due to

complaints of “lack of transparency” in public administration posts and participation in

the movement. Two members of this group of powerful people were summoned by the

judges to make denunciations. They told about the episode “prompt delivery of slaves”,

in which José Pires de Carvalho e Albuquerque, the third richest man in the captaincy

and Secretary of State of Brazil, personally took eleven slaves of this group to justice.

These episodes ended up interfering in the course of the investigation and in the social

restraint of the uprising.

On 7 September 1798, Francisco Vicente Viana, a white man, Judge in Bahia, Judge of

Orphans and Absentees, owner of the Madruga Cedo, Paramerim and Monte Engenhos

(sugar cane mills), all located in the district of Vila de São Francisco do Sergipe do Conde,

formally charged Luiz Gonzaga das Virgens for participating in the “planned revolution”.

On the same day, another slave master, Manoel José Villela de Carvalho, a white man,

single, Treasurer of the Royal Treasury, wholesale dealer and owner of the Marapé

Engenho, in São Francisco da Barra de Sergipe do Conde, was summoned to formally

present an accusation. Following the pattern of Francisco Vicente Viana's accusation,

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The crime of high treason lese-majesty (primeira cabeça) in Conjuração Baiana (Bahia’s

conspiracy) of 1798: continuity on legal modernity

Patrícia Valim

Manoel José Vilela de Carvalho told Judge Costa Pinto that he knew and had heard

repeatedly:

that an uprising was planned in this city with looting and assassins in order

to establish a free and independent Democratic Government, and that the

authors of this enterprise were a few mulattoes, among whom Luiz Gonzaga

das Virgens, […] who was said to have distributed some seditious and libertine

papers earlier, in Public and more Sacred Places”. He ended his accusation by

stating that he reported everything he knew to the “Illustrious and Honourable

Governor, making prompt delivery of the slaves”

For this reason, just over two months after the first arrests resulting from the distribution

of the “revolting” pamphlets on the morning of 12 August 1798, Fernando José de

Portugal e Castro, then governor-general of Bahia, sent a long letter to Rodrigo de Souza

Coutinho, Minister of Maria I

, explaining the procedures adopted in the enquiries to

discover, respectively, the author(s) of the pamphlets and the participants in the

movement.

Justifying the measures immediately taken, "which were required in such a delicate and

sensitive matter", the governor said that in order to discover the authors of the "papers"

he would use "all the other procedures he deemed necessary". And he did. After the

arrests and the information obtained from the first confrontations, the governor pondered

with Rodrigo on the most suitable means to discover the accused

During the enquiry, I reflected that, in this case, the most compliant with the

Law is not regularly the most effective [means] to discover the Accused of

this crime, who try to use all disguise, secrecy and caution when they commit

it so that there is a lack of eyewitnesses to prove it. So, all inquiries should

be made, even if uncertain and doubtful

The doubtful path chosen by Fernando was examining several old petitions kept at the

State and Government of Brazil Bureau commanded by José Pires de Carvalho e

Albuquerque. The objective was to compare the letters of the official documents with the

letters of the “seditious rags”. It must be pointed out that the documents sent to the

governor referred to urban militia troops, circumscribing the defendant(s) in advance to

a certain group of the society, the militiamen.

The examination resulted in the discovery of two petitions that indicated that they were

authored by Domingos da Silva Lisboa, a pardo man. The arrest was decreed “although

this evidence was remote and fallible”, as the governor “heard” that Domingos was said

Cf. “Testemunhas da devassa...”. Read, especially the testimony of witness no. 6, Francisco Vicente Viana.

In: Autos da Devassa da Conspiração dos Alfaiates. Arquivo Público do Estado da Bahia, 1998, vol. 2, pp.

923-924. Henceforth ADCA.

Biblioteca Nacional of Rio Janeiro, Henceforth BNRJ, Sessão de Manuscritos, I-28, 26, 1, no. 13. Letter of

20 October 1798.

Ibid.

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to have “a loose tongue”

. In addition to the accused's verbal laxity, his profession

weighed heavily against him.

It was customary for the investigation of crimes, whatever they were, to draw up the

term of imprisonment, compulsory attire and hair cut (termo de prisão, hábito e tonsura)

on the same day or the day after the accused's arrest, to ensure their physical integrity,

based on the description of their characteristics (Wehling, 1986: 151). In the case of

Domingos da Silva Lisboa, it is noteworthy that the exact date of his arrest is not included

in the records. However, the “finding and seizure report”, done on 17 August 1798,

indicates that the accused, if was not arrested on the same day, was arrested a day later.

However, his term of arrest was drawn up eight months later, on 2 March 1799. This

strange procedure also occurred with the next accused person.

The suspicion of the governor of Bahia in relation to Domingos da Silva Lisboa was not

confirmed. Ten days after his arrest, two notes were sent to the Head of the Discalced

Carmelites, proving that Domingos da Silva Lisboa was not the author of the papers, and

that the means used to investigate the “leaders” of the movement were very doubtful.

However, the governor again looked for evidence in the petitions from the State Bureau

and found three documents that "attested" that the papers had been written by Luiz

Gonzaga das Virgens e Veiga, an equally pardo man and soldier of the First Line Regiment

from Salvador Garrison and the Fourth Company of Grenadiers

. It so happens that this

time a “daring request” weighed on the defendant, once sent by the accused, so that

Fernando

would appoint him Adjutant of the fourth Regiment of Militias of this City,

composed of pardo men, claiming that they should be equally attended to as

the whites, which I did not grant, and I kept in my power due to its

extravagance

By analogy to the content of the letter, the governor made a conclusion regarding the

content of the subversive pamphlets, since the papers also “referred to that same

equality between pardos, blacks and whites”. That said, “he is persuaded that he [Luiz

Gonzaga das Virgens e Veiga], and not someone else, is the author of the Seditious

Papers”

Despite having been arrested on 23 August 1798, his term of arrest was drawn up on 24

February1799, a week before the term of imprisonment of the first accused, Domingos

“Auto de exame, e combinação das Letras dos pesquins [sic], e mais papeis sedicciozos [sic], que

apparecerão nas esquinas, ruas, e Igrejas desta Cidade que se achão incorporados na Devassa, que esta

debaixo do N. 1 e do papel que elles estão escritos, com as letras de Domingos da Silva Lisboa nas peticoens,

que forão achadas em sua caza, e com o papel limpo, que ahi tambem se achou, e tudo se acha junto ao

auto da achada, e aprehensão constante do appenso N. 9”. In: Autos da Devassa da Conspiração dos

Alfaiates. Salvador: Imprensa Oficial do Estado, 1998, vol. 1, pp. 86-89.

“Auto de combinação de letra dos pesquins [sic], e papeis sediciosos, que apparecerão nas esquinas, ruas

e Igrejas desta Cidade, incorporados na Devassa debaixo do n. 1 com a letra de Luiz Gonzaga das Virgens

nas peticoens que estão no appenso n. 4 e papeis juntos por linha ao appenso n. 5, e com a letra de

Domingos da Silva Lisboa nas peticoens...”. In: ADCA, vol. 1, pp. 123-124.

Biblioteca Nacional of Rio de Janeiro, Sessão de Manuscritos, I-28-26, 1, n. 13. Letter from Luiz Gonzaga

das Virgens from 1797.

“Cópia do termo de prizão habito e tonçura feita ao Reo Luis Gonzaga das Virgens”. In: ADCA, vol. 1, pp.

142-143.

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da Silva Lisboa. The governor of the captaincy of Bahia believed that he had solved the

crime involving the seditious papers promptly. However, that was not what happened.

Soldier Luiz Gonzaga das Virgens was arrested on 23 August 1798 on the accusation that

he, and not Domingos da Silva Lisboa, was the author of the seditious papers. Luiz

Gonzaga das Virgens was well known to the local authorities. At the age of twenty, he

became a soldier and was assigned to the grenadier company of the 1st troop regiment

of the frontline, sworn in on 30 August 1781, and was discharged as a deserter on 30

October of the same year. He swore in by the flag and deserted twice more, and after

1791, he wandered through the hinterlands until being arrested, answering a verbal case

in the Council of War, established on 9 April 1793

It was in the documentation on Luiz Gonzaga, at the Council of War, kept in the State

Bureau, that the governor had compared the handwriting in the papers with some

petitions that the accused had once written. The petition that contributed to his conviction

indicated that

Pardo men are recruited and assigned to the Military guild of the Paid Troops

[...]. The so-called pardo men are of the same substance and sensitivity of

other individuals of the Military and Civil Society, with no greater difference

than that colour, a dissimilar accident with which nature distinguished them

[...] remaining, however, equivalent to whites, both regarding the Material,

and the core, the spiritual substance. [however, they are treated] as objects

of slavery, of contempt [eroded] and finally as exterminated, or spurious with

minimal access, and graduation of posts [...], and without a premium, which

is all that makes past works enjoyable

Luiz Gonzaga ended the petition requesting equality in rising to the highest ranked posts

in the military career, claiming that as “an individual from the class of the aforementioned

unfortunates [pardo], he has the pain, the inconsolable pain of seeing the colour white

ascending to the ranks [...], with no other relevant reasons than [not] different merits,

and noble ascent”

. Before the publication of the seditious papers, on the morning of 12

August 1798, Luiz Gonzaga requested “one year's leave without loss of pay, bread, and

consequence, due to his poverty”

.. It which was denied to him, before being arrested

and taken to Court. During the testimonies, Luiz Gonzaga provided important information

about what he had done during his stay in the hinterlands. He said he had met João da

Silva Norbonha, in the city of Natal dos Reis Magos, in Rio Grande do Norte. He informed

that João was a Portuguese born in Porto, a businessman who lived in Salvador, but who

often went to the interior lands on business. He was asked about the names of the people

with whom the said João had had conversations, to which Luiz Gonzaga replied that “he

ADCA...vol. 1, p.127 – Council of War on Luiz Gonzaga das Virgens.

Cf. Arquivo Público do Estado da Bahia, Bundle 581, attachment no. 5, L – Comparison of Luiz Gonzaga das

Virgens' signature on the document of the Council of War with the petitions and requests he would have

written. This document was incorporated into the second edition of the Autos das Devassas, from 1998,

when Luiz Gonzaga das Virgens e Veiga was asked questions. Cf. ADCA, vol. 1, pp. 116-117.

Idem, p. 117.

AHU_CU_Baía_Box 96, doc. 18920: Request by Luiz Gonzaga das Virgens e Veiga, in which he asks for a

year’s leave to deal with his interests in the Kingdom. It is annotated by José Luiz de Magalhães e Menezes

on 4 May 1798.

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The crime of high treason lese-majesty (primeira cabeça) in Conjuração Baiana (Bahia’s

conspiracy) of 1798: continuity on legal modernity

Patrícia Valim

[João] was friends of Priest Padre Francisco Agostinho Gomes and Jacinto Dias Damasio,

and many other men from Praia, and that he did business in their homes”

Asked what they used to talk about, Luiz Gonzaga said that João da Silva Norbonha was

a very educated man and well-informed about events in Europe, from what he read in

the newspapers, and about the situation in France and England. He often spoke about

the equality of men and humanity with whom they were to be treated, “especially the

injustice of pardo people not being admitted to higher positions, without however, acting

against the Church or the State”

. The authorities asked no more, resuming the

statement on another date and adopting the same pattern as the testimonies of the

slaves and Domingos da Silva Lisboa.

The content of the petitions, testimonies and confrontations demonstrate that Luiz

Gonzaga das Virgens' libertarian ideas and “French inclination” meant, above all,

improved position in the military hierarchy, where he had the lowest position. His

understanding from the conversations he had with João da Silva Noronha about

revolutionary events in France and the reading of texts by d'Anglas, Carra, Volney and

the Notice of Saint Petersburg found in his house suggest that such readings potentiated

the claims of those militiamen and the became tools they believed could change their

lives in some way.

Captives and militiamen who knew how to read and write believed that they were able

to claim their rights, since this political sociability made them more sensitive to the

hierarchization they were victims of. Indeed, reporting to the local authorities the

participation of men “placed among the peoples” in the “planned revolution” was not just

a strategy of the captives.

On 25 August 1798, two days after Luiz Gonzaga's arrest, the governor was surprised by

three accusations, whose content revealed that another pardo, João de Deus do

Nascimento, had invited some people from the Artillery Regiment to a meeting that would

be held that night, in the Campo do Dique do Desterro, whose objective was

to organize a rebellion, and revolution, which hinder other people he had so

well called to his side, begging them to go to his house the following night,

and to go from there with him [João de Deus] and others to the Campo do

Dique, in order to adjust the mode, means, and occasion when the planned

revolution would to take place

The meeting at Campo do Dique was aborted. One of the reasons was that among the

participants there were those who recognized the whistleblowers and distrusted their

presence. After this episode on 26 August of the same year, another enquiry was

conducted to investigate the crime of conspiracy, led by judge Francisco Sabino da Costa

ADCA, vol. 1, p. 101 – Questions made to Luiz Gonzaga das Virgens e Veiga, soldier of the Grenadiers

Company of the First Regiment of this Garrison.

ADCA, vol.1, pp. 104-105.

“Denúncia publica jurada e necessária que dá Joaquim Joze da Veiga, homem pardo, forro, cazado e official

de ferrador [...]”; “Denúncia publica [...] que dá o Capitão do Regimento Auxiliar dos homens pretos

Joaquim Joze de Santa Anna [...]; “Denuncia publica [...] Joze Joaquim de Serqueira, homem branco e

Soldado Garnadeiro do primeiro Regimento pago desta Praça [...]”. In: ADCA, vol. II, pp. 910-920.

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The crime of high treason lese-majesty (primeira cabeça) in Conjuração Baiana (Bahia’s

conspiracy) of 1798: continuity on legal modernity

Patrícia Valim

Pinto. Several people were arrested over the course of six months. Among them, some

only provided clarifications, others were considered guilty a priori. The social cleavage

meant differentiation between the accused. According to what Fernando José de Portugal

e Castro explained to Rodrigo de Sousa Coutinho

the context of the seditious Papers, so poorly organized, since they are

extremely bold and brazen; the character and quality of the author, and of

the main heads who dealt with the rebellion such as Luiz Gonzaga das Virgens,

João de Deos Alfaiate, Lucas Dantas, and Luiz Pires, all four pardo men, of

terrible conduct, and lacking in religion, made me realise that these attacks

contained no people of consideration, nor understanding. They had no

knowledge or enlightenment, as shown in the confessions of these

Defendants

According to the information in the records, the situation was not exactly the one

described in the letter by D. Fernando. Parallel to the arrests, judges Manoel

Magalhães Pinto e Avellar de Barbedo and Francisco Sabino Álvares da Costa Pinto

collected, since 17 August 1798, the detainees' testimonies and coordinated the

“Assentadas”, testimonies of witnesses who, in this case, were sugar cane planters,

merchants, thirteen women and some free men who had some relationship with the

accused. It was increasingly clear that political sociability among the participants of

the event was not limited to the middle and lower strata of that society, D. Fernando

insisted on affirming to D. Rodrigo de Sousa Coutinho, because, on the occasion of

the report of the arrest of the first accused, Domingos da Silva Lisboa had been “[...]

enticing and inviting to this end [revolt] several Slaves of different Masters, and some

soldiers, and other individuals who were successively arrested [...]”

Over five months of depositions to confirm the author of the “revolting and nervous

papers”, the witnesses stated that they “heard” about the content of the said papers,

but that they were not sure of their author. The testimony of Francisco Pereira Rabello,

a white man, Lieutenant of the Auxiliary Branch of Ordenanças and a resident in

Itapagipe, near Salvador, is quite significant. He affirmed

To have publicly heard that certain daring papers will appear in the streets,

however he [...] doesn't know who wrote them or who helped with their

making. And [...] while he was in the location of Bomfim and the news of the

arrest of Domingos da Sylva Lisboa was made public, the witness said that

the said Lisboa had not been the Author of the papers but his superiors were,

and all they needed was to have the support of the troops

Judge Manoel Magalhães Pinto de Avelar e Barbedo did not check the deponent's

information, preferring to report it to the governor

. Aware of the possibility of urban

Letter from D. Fernando José de Portugal e Castro to D. Rodrigo de Souza Coutinho dated 20 October 1798.

Biblioteca Nacional of Rio de Janeiro, Sessão de Manuscritos, doc. cit.

Idem.

ADCA, vol. 1, p. 61.

Idem.

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troop commanders being among the “leaders” of the movement and commanding a large

number of men to carry out the uprising, D. Fernando did not comment on these

denouncements in his letter to D. Rodrigo de Souza Coutinho, preferring to gain time in

the investigation, relying on an accomplice mechanism for silencing some information

operated by the judges.

This was because during the inquest, the local authorities could no longer hide from

Lisbon that the uprising was planned by people of different social status and that their

demands made explicit in the streets of Salvador questioned order through a "Republic".

In addition to forming a government for the common good, this plan could also lead to a

republican ethics experienced by all members of a given community (Mattos, 1998: 71).

The testimonies of the defendants also highlighted the involvement of these gentlemen

in meetings that discussed “French ideas”, a term often associated with the republican

system of government and the ideas of liberty, equality and fraternity that led to the end

of the French Ancien Régime. The main complaint was about the attempted reform of

Rodrigo de Sousa Coutinho, Minister of the Navy and Overseas Dominions, which

compromised the group’s privileges due to the end of monopolies and fair taxation,

among other “vexations”. The readiness to incarcerate the enslaved would prevent

information from being revealed, dispel the suspicions raised in the process and reaffirm

loyalty to the Portuguese Crown. Although from the beginning of the investigation the

social composition of the defendants was limited to the militia, removing powerful men

from the inquiry and minimizing the participation of slaves in the revolt, the processes

were formalized and all the procedural acts were preserved. On 12 March 1799, seven

months after the revolt broke out, the lawyer of Santa Casa da Misericórdia, “graduate”

José Barbosa de Oliveira was appointed defender and guardian of the defendants, also

allowing other lawyers to make other claims in their defence. The prisoners had the right

of defence for five days, and although the lawyer's appointment took place on 12 March,

the defence began on 12 June 1799. José Barbosa de Oliveira began his defence resorting

to modern natural law:

Because, by the Ordinance of Book 5, title 6, the death penalty is naturally

cruelly established against the one who is convinced of having committed the

horrific crime of Lese-Majesty, and by the aforementioned Respectable

judgment it is ordered that the Appellants state In fact, and in law, the

foundations of their defences, it is certain that in exposing them, the

Appellants only seek to show their innocence of the crime of which they are

accused, without their guilt becoming more aggravated in this action, after

the defence of any defendant being Natural, Divine and Positive Law

Three important questions guided the central argument of José Barbosa de Oliveira's

defence. The first and the most important was the absence of evidence for the crime of

first-degree lese-majesty (political crime against the Crown of Portugal): the absence of

Corpus Delicti in the prisoners would be enough to ask for suspension of any penalty

against the appellants "even though, by the way, they were fully convinced of the crime,

since Corpus Delicti is the total foundation of the Criminal Court, according to the Rule".

ADCA, p. 947-949.

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For the lawyer, the second fundamental issue for the defendants' defence was the

magnitude of the crime “a Confederation against His Majesty and his State”, so that the

judges would have to consider that “without weapons or dispositions, one could not

commit the horrific delict of Uprising in such a populous City, and the Capital of America”.

According to José Barbosa de Oliveira, the lack of evidence for the prosecution is closely

related to the second issue of the central argument of his defence, the way how the

accusations were formalized by “less legal witnesses”: planters and members of the local

administration who did “prompt delivery” of their slaves to justice to get rid of rumours

about “absence of transparency” and “sedition crime”.

The lawyer concluded the central argument of the defence, stating:

Because the Defendants could never have any intention of promoting an

Uprising, and Sedition against the State, in order to establish a Democratic

Government; for if the {p.48} the Defendants are tailors; others masons;

others are common Soldiers; slaves; and of minor age, all people of low

status, they lacked the necessary education, and wisdom, or knowledge, to

be able to establish a Government of that quality, which requires special Laws,

and whose establishment could not reach the inferior quality, and abject

condition of the Defendants

The defence's final decision reiterates the need for the evidence to “conclude with the

greatest possible accuracy, disregarding this view that the opinion of less legal witnesses

is sufficient, in view of the seriousness of the crime. For the same reason, it is necessary

to have higher Solemnity to know the true delinquents”

. After suggesting that the

accused took the blame through physical punishment and the absence of an examination

of the corpus delicti, for the defence lawyer, the conduct of the inquiries failed to prove

the accused's guilt for the crime of first-degree lese-majesty. On the contrary: "only the

testimonies of notoriety and publicity are discovered, which lead to nothing but slander,

or a Remote indication, which by itself is not enough for the imposition of the ultimate

penalty, nor even of torture" (Valim, 2018: 135).

With the defence's final decision demonstrating the lack of proof of the crime of lese-

majesty by the accused and given the evidence of the participation of powerful men in

the crime of sedition, which could compromise the career of the governor of the captaincy

of Bahia, Fernando José de Portugal e Castro began to participate more effectively in

conducting the investigation, stating to D. Rodrigo de Sousa Coutinho:

what has always been feared in the colonies is slavery [...] it is not natural

that well-employed and established men, who have goods and properties,

want to participate in a conspiracy or attack, which would have terrible

consequences

ADCA, p. 952.

Idem.

Ibidem.

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The governor's effort to circumscribe free, poor and pardo men as the only possible

defendants for the crime of lese-majesty led the Portuguese crown to order the imperious

exemplary punishment of the participants of the planned revolution:

These Defendants are to be sentenced in Court for the merit of the case, and

they must be tried with greater promptness, and with the publicity that the

Laws allow [...] receiving the deserved punishment for their crimes, using

with them the full severity of the Laws, both concerning the Leaders, and

those who accepted the invitation; and those who did l do not denounce such

a huge Crime. In future, it must be known to all that in such a great attack

on the public good, there is no moderation of the penalty ordered by the

Law

In view of the orders of the Crown and the statements obtained throughout the

investigation, D. Fernando pondered the necessary distinction in the application of the

penalty, since

there seems to be several classes of Defendants, perhaps four or six reputed

as the main leaders of this sedition, others who, although they were not the

authors, have given their consent, and invited several people, others who

accepted the invitation and attended the meetings alternately, others who

were invited and will not denounce it as they are obliged to, and some, finally,

who did not accept the invitation and were disgusted by it, or who were merely

aware of this disorder, and remained silent and kept it a secret, either or

thinking that such revolutionary projects would not have any effect, or

through ignorance, if they can allege they lack the first and most essential

obligation of a subject. As a consequence, some will receive ordinary and

capital punishment, and others will be sentenced to exile, more, or less

severe, for a greater or lesser number of years, according to the various

degrees of accusation against them

Thus, on the eighteenth of October 1799, the criteria for the sentences and the conclusion

of the investigation on the “planned revolution” were defined. It was concluded that some

inhabitants of the city of Salvador tried to carry out an uprising to take away the

government from Portugal. In order to attain the uprising, the authorities stated that the

participants elected leaders who were

individuals of the lowest [...] class of pardo men, a quality that was hateful

to them, intending therefore to extinguish it by means of the indistinct

equality to which they aspired [...] to disseminate Free ideas and anti-political

feelings among those who they believed to be the most capable and willing to

follow them [...] and have the imaginary advantages and prosperity of a

Democratic Republic, where all will be Common without difference of colour

Copy of the Royal Letter of Her Majesty, D. Maria I to D. Fernando José de Portugal e Castro. ADCA, vol. 1,

pp. 71-72.

Letter of D. Fernando José de Portugal to D. Rodrigo de Souza Coutinho. BN, Sessão de manuscritos.

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or condition, where they will occupy the most important Ministries, living

under general abundance, and contentment

The detailed account of the conclusion document demonstrates that by "inculcating at

the same time knowledgeable and interested persons in its execution [they invited]

people of such pre-eminence, authority, and honour, that these same qualities exclude

them from the slightest thought of infidelity". After a year when “the hidden conspiracy

was planned”, several of the most impious, darting and seditious papers were found in

the streets, and churches, which could abort their heated and devoid of fire idea of

Religion, and due respect to the Supreme Ruler”, which resulted in the capture of a

“monster of evil”. After the first arrest, the judges concluded that the meeting on 25

August at the Campo do Duque do Desterro had taken place because after the statements

of the then accused, the participants

fear of being discovered in the Confessions, and declarations of their Partner

and Friend [Luiz Gonzaga das Virgens] and considering themselves to be in a

risky situation, they chose not to go ahead with their projects, and reduce

their effective execution

It was concluded that those guilty of the first-degree lese-majesty crime, conspiring

against the Portuguese Crown, and planning an uprising in Campo do Duque do Desterro,

were

the unfortunate, and disgraced [defendants] Lucas Dantas de Amorim, João

de Deos do Nascimento, Manoel Faustino dos Santos Lira, Romão Pinheiro

and the absent Luis Pires Condemned to death by the Respectable Judgment

[blank], as well as the Lieutenant of 2nd Regiment of this Garrison

Hermógenes Francisco de Aguillar Condemned to one year imprisonment, and

the [defendants] Manoel Jose da Vera Crus and Ignácio Pires condemned to

500 whiplashes and sold out of the Captaincy

Luiz Gonzaga das Virgens, in turn, was the only one convicted of being the author of the

seditious pamphlets posted in the streets of Salvador on the morning of 12 August 1798,

as it was concluded that Domingos da Silva Lisboa could not be the author of the papers.

On 7 November 1799, the conclusion of the investigation read as follows:

Justice that the Queen Our Lady orders to be enforced on this execrable

defendant Luiz Gonzaga das Virgens, a pardo man, born in this City

[Salvador], to be taken publicly with shame and sound to the gallows erected

for this torture, and in it die natural death forever. And after death, his hands

and head are to be cut-off, which will remain in the said place of execution,

until time consumes them. And his property is to be confiscated for the tax

ADCA, vol. II, pp. 1122-1123.

Idem, p. 1124.

Idem, p. 1144.

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authorities, and Royal Chamber, and at the expense of the Court of Appeal,

which also declared his children and grandchildren infamous, and ordered that

the house of his dwelling be demolished, spread with salt, never to be built

again

As for the slaves handed over to justice by their owners, José Felix da Costa and Luís

Leal, who were accused in the charge against Luiz Gonzaga das Virgens and then indicted

in the investigation of the “planned revolution”, one was deported to regions in Africa

outside Portugal’s domains, and another was acquitted for being “absolutely free of any

guilt”. The slaves of the Secretary of State of Brazil, José Pires de Carvalho e

Albuquerque, in turn, had their sentences alleviated, as they were found guilty “for the

lack of denunciation of the planned crime being slaves. they could not know of the

obligation to report"

Regarding the "abominable French principles" that so worried agents in Portugal, the

judges of the Court of Appeal concluded that only pardo men were sectarians of

"pernicious principles", since, after the investigation, the accusations that some

important people also approved the doctrine, did not stand. They were "intellectual

raptures of young people that were impossible to fight, because the pamphlets on which

they were based were difficult to control and circulated freely"

. The authorities did not

take this information forward because it was not in the interest of the Portuguese Crown

to break the partnership with a sector that provided support for colonial exploitation in

the main captaincy of Portuguese America. This is why the royal authorities were very

interested in circumscribing the social composition of the event to the middle and lower

sectors of that society with the objective of socially delegitimizing any project of a

republican nation.

Thus, on the hot early morning of 8 November 1799, according to the friar, the troops

occupied Praça da Liberdade, a large square located in the centre of Salvador. The people

kept coming. An isolation perimeter was established between the troops and the public

scaffold built especially for the occasion. At eleven o'clock, the procession began. In front,

there was a band of horns and drums, followed by the brotherhoods covered with their

capes and covers, holding a cross and their respective vicars. Soon after, those

condemned to exile walked with their hands tied behind their backs, preceded by the

porter of the Council, with the insignia of his office, followed by the four defendants

sentenced to capital punishment for the crime of first-degree lese-majesty, accompanied

by two Franciscan friars, in addition to all the clerks, bailiffs and the porter of the Court

of Appeal of Bahia.

The Senate of the City Council, the councillors, the senior mayors, the junior staff, and

the attorney of the Council followed, holding Portugal’s flag. Further back, there was the

brotherhood of Mercy and the executioner, bearing the insignia of their office. People

were crowding the windows of the houses to see the procession of the condemned. The

“Conclusion document, Notification of the Sentence regarding defendant Luiz Gonzaga das Virgens. ADCA,

vol. 1, pp. 175-176.

ADCA, vol.2, pp. 1161 and 1191.

In: Accioli, op. cit., vol. III, p. 133

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procession went through the streets of the Cathedral, from Terreiro de Jesus to the top

of the Tira Preguiça slope, arriving in Piedade. After the drumming, the chief bailiff read

for the last time the royal orders that announced the severity according to which the

accused would be punished for being considered by the royal authorities the heads of the

“planned revolution” that aimed to create a democratic government in Brazil. Faced with

the three paid regiments of that garrison, holding arms to prevent any accident that

might result in favour of the defendants, the condemned went up to the scaffold

The first to be hanged was Luiz Gonzaga das Virgens e Veiga. Before, according to the

barefoot Carmelite, the defendant had an “act of protest”, regretting his actions,

especially for having disrespected the Church. The “admiration that all felt with what

Gonzaga said was astonishing”. He said that Luiz Gonzaga told everyone “I confess that

this pious Father [...] shed his blood not only for them, but also for many to save me; in

it I wait for my pardon [...]”. He continued his public confession by complaining of the

harm done to him by bad friends, advising people to stay away from their influence, and

he asked forgiveness for not having followed the virtuous advice his godmother had given

him.

He ended up making the most “tender supplications to God to save him”. After

confession, he was hanged, amid the commotion of people at his words. Crying a lot after

witnessing the hanging of Luiz Gonzaga das Virgens and Veiga, João de Deus do

Nascimento asked Friar José to come closer for “a sincere act of contrition”. According to

the barefoot Carmelite, minutes before being hanged, João de Deus said goodbye to life

telling the “innumerable people who were in that square” that

Follow the law [of] the true God, the Catholic Religion is the only true one,

and everything else is deceit; when I followed it without a doubt I lived and

even if quite poor, perhaps independent, but after I read some texts by

Voltaire, Calvino, Rousseau, I departed from what I should not, which is why

I ended up here. Gentlemen, whoever wants to be bad, be only for himself,

and don't summon other people. [...] Freedom and equality is this, he said

pointing to the gallows.

Still, according to the friar

At the last moment of his life, João de Deus said to all who heard him, asked

God for mercy, and asked the Priests for help; He also asked the executioner

to give him a good death. So before he fell off the scaffold, shaking to death,

and screaming for Jesus Mary, he fell from the scaffold, ending his life with

the words in life: mercy, mercy

Other report by Priest Joze D’Monte Carmelo, barefoot Carmelite. Instituto Histórico e Geográfico Brasileiro,

Notícia da Bahia, tomo IV, Lata 402, manuscript 69. Arquivo Histórico Ultramarino, inventário Castro e

Almeida, Bahia, documentos avulsos, boxes: 41- 82. The document “Outra relação...” is fully transcribed in

the work of Luís Henrique Dias Tavares. História da Sedição intentada na Bahia em 1798 (A Conspiração

dos Alfaiates). São Paulo/Brasília: Pioneira/INL, 1975, pp. 123-137, passim.

Idem.

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The execution of the other two defendants was followed by the dismemberment of their

bodies. Lucas Dantas' head was cut off, as were those of the other three, and then

skewered on a pole in Dique do Desterro. The other pieces were exposed on the way to

Largo de São Francisco, where Lucas Dantas resided. In front of the same place, the

head of Manuel Faustino dos Santos Lira was placed, as he was a frequent visitor and

because he did not have a fixed address. The head of João de Deus was exhibited in Rua

Direita do Palácio, now called Rua Chile; his legs, arms and torso were scattered through

the Comércio streets, a busy trading area downtown. The head and hands of Luiz

Gonzaga were stuck on the scaffold, as he was considered by the royal authorities to be

responsible for the pamphlets that announced the “planned revolution” to the population.

The day after the morbid event, the bodies exposed to the heat showed signs of rapid

decomposition and attracted a flock of vultures that filled the city with pestilential fumes.

On 11 November 1799, the city's air was unbreathable; rot had invaded every house and

the population feared for its health. Faced with the precarious state of health in the city,

some authorities and Misericórdia brothers asked governor Fernando José de Portugal e

Castro to remove the dead and exposed bodies at the behest of justice for the example

of the peoples. The request was granted at dawn on the 15th. The remains were collected

by the authorities and buried in a place that is still unknown (Valim, 2009: 14).

***

The danger of deviating from human nature, passion, and reason, such as the possibility

of corrupting man and the social fabric, seems to be one of the faces of the laudatory

report the friar made. By allowing himself to be swept away by the normative content of

Bahia’s society from the end of the 18th century, he converted the miracle of divine

mercy, after the repentance of the condemned, into a part of the political dimension of

exemplary punishment. The political dimension given to the miracle of divine mercy is

one of the consequences of the logic of exemplary punishment. In addition to the

defendants' repentance in public having meant their conversion, it also meant a public

confession. It is worth remembering that in Friar José's narrative the condemned people's

repentance occurred during their torment. In this sense, the final words of João de Deus

do Nascimento were significant. In “tears”, he said just before hanging “Follow the law

[of] God, the Catholic Religion is the only true one, and everything else is deceit; when

I followed it without a doubt, I lived well even if quite poor.] Freedom and equality is

this, he said pointing to the gallows”.

Exemplary punishments in Absolutism had in common the fact that they involved some

type of physical suffering and, therefore, targeted the body (Foucault, 2009). Even in the

most recurrent forms of punishment, such as banishment, one can find some dimension

of “suffering”, whether through exposure, fines, whipping or branding. Far from being a

savage procedure, the author draws our attention to the fact that torture is a form of

calculated suffering, in which the political power seeks to publicly establish causal

relationships between crime and punishment, according to the political uses that can be

had in this procedure.

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As one of the last punitive examples of Portuguese absolutism in Brazil, the punishment

of the defendants in the 1798 Bahia Conspiracy corresponds not only to corporal

punishment, but also, above all, to a ritual organized in order to reinforce the power of

the Portuguese monarchy in Brazil

. The ritual of torture expresses, therefore, the

sumptuousness of sovereignty, the strength of the monarch in his exercise of power and

rights. The death of the defendants in the public gallows of Salvador was a spectacle that

aimed to reaffirm the cleavage between the forces of the sovereign and the subjects,

since the torture of the defendants narrated by Friar José can be considered as a very

effective way of showing the asymmetry between the subjects who dared to violate the

law and the absolutist power that asserts its strength.

However, on 25 October 1799, ten days before the hanging followed by the

dismemberment of the bodies of the men considered defendants in the 1798 Bahia

Conspiracy, the Portuguese crown sent a Licence to the Bishop of Olinda, José Joaquim

da Cunha Azeredo Coutinho, about the creation of a new Regiment based in Recife to

operate in a vast region, including the Captaincy of Bahia. The new regiment would be

composed of 1600 men, similar to the Royal Army Arsenal, starting to function by means

of “clear public” resolutions. In addition to meeting the main demand of the militia

members who participated in the Bahia Conspiracy, establishing the payment of 200 réis

in daily wages, the New Regiment provided for a date to receive wages, one-month

training for the troops and a public examination for purposes of rising in the military

career, with five-stage tests and a panel composed of three examiners: Lieutenant

Colonel, Major and Captain

A significant fact in the conflicting transition from the 18th to the 19th century, the

analysis of the documentation of the New Regiment indicates the change from the typical

criteria of the Old Regime to the principle of isonomy in the public sphere and the

compromise solution that the Portuguese crown established with the militia members

who participated in the movement. It met their main demands as a way of containing

the rebellious. By transforming them into “subjects in their own right”, the Portuguese

crown recognized the legitimacy of the public claim and struggle of those men. When

men of different social status appealed to the population to join the uprising that would

lead to a republican government, they broke the circle of making politics restricted to

virtuous men of power, in the tradition of Montesquieu. They blurred the cleavage

between those who work and those who do politics; between those who command and

those who obey; and those who dared to deviate from the original trajectory.

The fracture caused by the radical nature of the discourse in the handwritten texts and

the action of those men from the middle and lower sectors made the authorities realize

that it was not enough to leave the powerful on the side-lines of investigations to restore

order. It was necessary to eliminate this experience in the streets of Salvador from within

these sectors. It was also necessary to reaffirm the intrinsic superiority of the Portuguese

Crown through the exemplary punishment of men who dared to do politics, questioning

order and proposing alternatives for the future.

Idem.

“1799 – Formação do Batalhão e do Estado Maior para conter a Inconfidência Baiana”. Private

documentation made available for this research.

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However, nothing was the same afterwards: after more than a year of inquiries, the

Portuguese Crown undertook a series of compromise solutions with the enteados

corporation to create a political consensus around which these men would increase their

funds, privileges and powers, and would continue to constitute, in the captaincy of Bahia,

the social base for the maintenance of colonial exploitation. Some of the slaves brought

to justice by their owners were sentenced to exile, others tried to escape the 500 lashes

in Pelourinho, while others had their sentence changed after the “justification notice”, as

they did not denounce their masters.

The contradictions in the concepts of freedom and equality are the synthesis of the ideas

of the Republic formulated in the 1798 Bahia Conspiracy and of the crisis of the Ancien

Régime, where the new and the old coexisted in constant tension, disputing spaces,

ideas, hearts and minds. The “Bahia Republic” outlined by those men and politicized in

the streets of Salvador represented, above all, the possibility for all sectors to make

politics and alternatives to living in a colony, giving their own colours and rhythms to the

political language of revolutionary France, which at the time reached several overseas

domains. The republican ethics of feeling free announced, at the end of a conflicting

century, that man could realize his humanity in and through politics and no longer

through religion or just through work.

The greatest weakness of the “Bahia Republic” and of this modernity, however, lied in

the conservative critique of slavery explained within the limits of the project of freeing

that group of slaves and not ending slavery, according to the testimony of the African

Vicente. Slavery as the limit of possible republicanism and the distinction according to

capacity as the limit of political coalition between sectors of that society suggest that the

ideas of freedom and equality in the colonial universe, in the late 18th century, can

stimulate both revolutions and reforms to avoid them, since in this universe any attempt

to reduce structural inequalities sounded like Revolution.

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VOL12 N2, TD1

Thematic dossier 200 years after the Revolution (1820-2020)

December 2021

ON THE EVE OF LIBERALISM, GOOD REASON AND PROOF OF COMMON LAW IN

PORTUGUESE AMERICA (1769-1808)