Perdoar e Punir em tempos de Transicao: O Recurso de Graca no Conselho de Estado do Brasil (1828-1834)/Pardoning and Punishing in Times of Transition: The Pardon Appeal (Recurso de Graca) on the Brazilian Council of State (1828-1834).
| Autor | de-Almeida-Costa, Arthur Barretto |
1 - Introduction
Certainty and legality are some of the fundamental bases of contemporary criminal law. Even though those command words resonate since a long time ago, there is still a lot of room for doubt in the realm of punishment. And this is especially true for times of transition, when changes and reforms make the application of penalties even more doubtful. One of those eras is the main focus of this paper.
1830 is the year of promulgation of the first Brazilian criminal code (1). A target for many expectations, it is the landmark in overcoming the widely feared book V of the 1603 Philippine Ordinations, which, with its draconian dispositions (2), partially regulated Brazilian criminal law up to then. The urgency of this reform is inscribed in the Brazilian Constitution of 1824 itself. In its article 179, responsible for the establishment of the rights of Brazilian citizens, it commands, in its paragraph 18: "There shall be organized as soon as possible a Civil Code (3), and a Criminal one, founded on the solid bases of Justice and Equity" (4). It is, therefore, a moment for the affirmation of a properly Brazilian legal order, which, despite with small steps, was distancing itself from the Portuguese one.
This research aims to clarify how some elements of the Brazilian legal culture of those times reacted to this change. To fulfill this task, I chose as focal institution the Council of State, one of the most important elements of the Brazilian administrative structure during imperial times (5). As a tool in understanding how the institution reacted to the changes in criminal law through the combination of old and new elements, I will deal with pardon. This institute allows a public authority (in the imperial Brazil case, the Emperor) to reduce, change or even forgive a penalty imposed on a certain defendant. It is an instrument for the flexibilization of law that, as it will be later discussed, is deeply imbedded in the logics of the Ancien Regime but managed to survive through modern times.
Brazilian law in the 19th century was not crafted only in the courtrooms. It was also built in administrative institutions, and the Emperor and the Council of State were fundamental on its creation. Criminal law was no exception. Therefore, the main sources for this paper were the records of the second Council of State. Whenever necessary, the interpretations proposed were helped by the use of legal writings of those times. This helps to enlarge the perspectives on where law can be found, and the multiple institutional voices from which it emerges.
Furthermore, it is also useful to understand the multiple ways in which law reacts to change. This paper talks about transition and the uncertainties it brings. When this sort of things happens, past and present became intermingles in sometimes surprising ways. Stefano Solimano (2010) showed us how this worked in the application of the Austrian criminal code of 1787 by the perspective of judges. Now, we can see, in a different context, how the transition between Ancien Regime and the codifications could produce mixed situations from the point of view of administrative institutions.
2 - Pardon: from Ancien Regime to modernity
What room is left to mercy in criminal law? The answers to this question vary widely in time and space, according to the different meanings that punishment can assume. During the passage of the Ancien Regime Europe to the great codifications, as well in the colonies affected by it, pardon changes its place in the legal dynamics, following alterations on the very sense of State punishment.
The visions on criminal law before the 18th century are deeply marked by the idea of political power nurtured then. I am talking about the notion of judisdictionalist conception of power (concepcao jurisdicionalista de poder (6)), by which the monarch acts more than anything else as a judge. But his acts are ordained according to theological ideas: the king is a representative of God on Earth, and, as such, he must have the Lord as his example and guide. That is why there are two main virtues of governors: love (7) and fear. In criminal law, they are converted in pardon and punishment. A good king must know how to balance both poles. When a subject committed some fault, he should, as a severe father, impose upon him the right punishment, presented as compensation for the offence against the crown. But, at the same time, as a good lord, he was also capable of offering a prompt forgiveness, one many times unmerited. The logic presiding this dynamic, not justified by merit, is the idea of grace.
This notion, also known as economy of gift (economia das merces), is based on the idea of an exchanges of gifts not equivalent among them, different from the logics of the market. In this last one, two people exchange benefits of the exact same value. In grace, different people give each other non-equivalent benefits, and the relationships not always links the same individuals. The difference between the gifts generates a debt of gratitude, which boosts a new gift giving, starting a cycle of successive donations. Moreover, it is important to remember that this is a deeply hierarchical world. The distance between the statuses of the king and the subjects enlarges even more the size of the debt. Hespanha (2010b) has already compared this description to the theory of economy of gift developed by Marcel Maus (2003 [1950]).
Clemency is thus one of two faces of a single coin, deeply coupled with punishment. It is administered by the monarch through its jurisdictional power, which is, at the same time, scary and merciful. What brings those extremes together is the notion of grace, into which converge the simultaneous objectives of preservation of royal power and salvation of the souls of the subjects. Those many connections can be seen in the entry "grace" of the dictionary of Raphael Bluteau (1721: 108):
Grace. Favor. Gift. Benefit (...) The grace of princes [is] validity. Personal favour (...). A temple, which door is their favorited. That is why the Persians call them eyes and ears of the prince (...). The grace of the king is not a gift from fortune, it is the will of God, which in the eyes of the sovereign, when they see the subject, stimulates a certain inclination of affection towards him (.). From there follows that the ones who win the grace of the prince shall not assign this favor to the fortune, but to God, and shall not profit from this favor to their own estimation, but to do good to everyone (8). Throughout the 18th century, with the advancement of Enlightenment, all those structures started to be heavily questioned. The spectacular punishments started being regarded as heinous (9) and the constant pardoning, as a source of uncertainty. The direction of those projects was similar to utilitarianism: citizens should be certain of the State answer to their crimes, so they could calculate if they would commit them or not. This assurance would promote the humanization of penalties: unavoidable punishment, though softer, would have a higher deterrent effect than the horrible dispositions of Book V of the Ordinations. This way of thinking is very well expressed by Beccaria (s.d. [1764]: 80):
As punishments become more mild, clemency and pardon are less necessary. Happy the nation in which they will be considered as dangerous ! Clemency, which has often been deemed a sufficient substitute for every other virtue in sovereigns, should be excluded in a perfect legislation, where punishments are mild, and the proceedings in criminal cases regular and expeditious. Between the late 18th and the early 19th century, criminal law was transformed (10). In many places, death penalty was abolished (11); judicial arbitrium (12) was questioned by the anti-case law ideology (CAVANNA, 2005, p. 41); and judicial liberty was restricted. Despite all of that, with very rare exceptions, pardon continue to be displayed in most legal orders--and especially on the Brazilian one (13).
Established on the article 101, [section] 8th of the constitution of 1824 (14), pardon was of crucial relevance and was supported by many jurists in that period. To Antonio Herculano de Souza Bandeira Filho (1876, pp. 24-25), imperial clemency existed "to correct the errors and injustices that courts can commit, to assign the circumstances and equity, to which the courts, subject to the rules of strict law, cannot follow" (15). Other important role would be the recognition of the atonement and regeneration of convicts before the full serving of the sentence (CASTRO, 1887). Similar arguments were used by Zacarias de Gois e Vasconcelos (1862) and Bras Florentino Henriques de Souza (1864).
The institution, therefore, continued to be important in the administration of general problems of the Brazilian legal order (COSTA, 2017) and was particularly useful in the management of slave uprisings (RIBEIRO, 2005; PIROLA, 2015).
3 - The second Council of State
After the analysis of grace and its legal consequences--especially pardon -, it is now the moment to better understand one of the main institutions in which it was debated: the Council of State.
The Council of State existed in three different moments of Brazilian history. Between 1822 and 1824, it was known as the Council of Crown Prosecutors. With the Constitution of 1824, it was recreated in a different shape. It continued as such until 1834, when it was extinctic by the Additional Act (BRASIL, 1834). In 1841, it was recreated by law (BRASIL, 1841), and maintained the same configuration until the end of the empire.
The second council was created by the constitution in the articles 137 to 144. There should be 10 councilors with unlimited terms and the conditions for nomination were de same for the Senate. The counselors would be summoned to discuss "all important issues, and general measures of the public administration", and in "all situations in which the...
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