Property vs. Liberty: Procedural law and practice of freedom trials in Portugal and Brazil

Sven Korzilius

doi:10.18468/fronteiras.2017v4n1.p55-85

Abstract

The article provides an overview of the historiographical debates on the relevance of law and courts for colonial slavery in the early modern, presenting several possible master narratives. Departing from the question about the legal sources used by the jurists of the early modern era producing “slave law in action”, the article focuses on procedural law of the freedom trials, especially on the interim situation of the person whose status the trial was about. This aspect of the proceedings is fascinating, because here the tension between the two extreme positions of the parties (liberty vs. slavery/property) is discharged for the first time. A close look at the sources proves that the jurists sought to justify the possible solutions not only with the custom of the courts (stilus curiae), but that a variety of legal formants contributed to colonial slave law, notably the authority of the Roman model, which the article presents shortly in its development, and of certain medieval forms, like the summariissimum or the actio (or execeptio) spolii. Legal doctrine was frequently quoted. As a result, Brazilian colonial slavery did not occur in a legal vacuum, but proves to have been highly institutionalized, and many aspects of the civil law of slavery appear as a relatively conservative continuation of European practice, without visible innovations to the favor or the detriment of the unfree population.

Highlights

The article provides an overview of the historiographical debates on the relevance of law and courts for colonial slavery in the early modern, presenting several possible master narratives
Departing from the question about the legal sources used by the jurists of the early modern era producing “slave law in action”, the article focuses on procedural law of the freedom trials, especially on the interim situation of the person whose status the trial was about
In research on colonial slavery, we find the role played by law and courts very much debated

Summary

Introduction

In research on colonial slavery, we find the role played by law and courts very much debated. Unwilling to pay the sum to support the slave during the trial, he conceded liberty Summarizing this glance of aspects of the metropolitan freedom suit, we see the Portuguese alms with its procedural peculiarities inherited from Roman law, known by the Visigothic laws, and practiced during the late Middle Ages concerning enslaved Moors, in such a way as to be extended swiftly to black Africans, when they began to arrive in greater numbers at the peninsula during the fifteenth and sixteenth centuries. An important aspect is that there seems to have always been attorneys ready to assist “slaves”

The development in colonial courts

Concluding remarks