O Serão dos Miseráveis (Portuguese Edition)

The explanation for this dramatic change in legal arguments can be found in the Supreme Court judgment in case of Rosalina Fernandes de Almeida and her young children. If uncertainty about the civil status of the population was inconvenient for the government of Brazil in , it was all the more so in For this reason, the Supreme Court, citing the Law of March 10, , recognized that. Here it is necessary to examine more carefully the "special circumstances" of the Law of March 10, Returning to the text of the law, we see that its original purpose was to reinforce the status of captives who were slaves before they arrived in Palmares, as well as those who were born there of slave mothers.

It is in this context that we understand paragraph 3 of the law, which states:. What the Supreme Court did was to interpret the law broadly, disregarding its original significance and removing it from the context of a specific event in time, in order to utilize the reasoning delineated in the letter of the law by updating it.

Confusion about the freedom of individuals, in addition to allowing abuse by masters, could be taken again as harmful to the State, so the "question of public interest" was to be considered generically, i. So, too, was the political decision to set the period of five years for prescription of slavery, and not 10 or 20, as had been discussed up to then. For him, this period was based on Roman slave law, which was rigorous regarding fugitive slaves. If they were caught, no matter how long they had lived as freedpersons, they were returned to captivity. Gradually, however, the law became less rigorous: Justinian established the period of ten years; later still it was reduced to five.

In citing it, he knew he was changing its original intent; however, it served to explicitly support his argument in a disagreement with Correia Telles, who had defined the term as ten years. As Silvia Lara has stressed, what these lawyers and jurists were doing was much more than a "political reading of colonial law. The Supreme Court magistrates returned to this issue in , when they delivered another judgment based on the law of , bestowing on the letter of the law an even broader interpretation than that of The case was as follows: Costa Leite was the owner of the slave Sebastiana, whose daughter, Anastasia, had escaped eighteen years earlier, in The Brazilian Supreme Court, however, overturned these decisions, finding them "manifestly invalid and notoriously unjust.

The other reason, however, is more surprising: It mattered little to the Court that she was an escaped slave, or that, throughout this period, the owner had taken all reasonable steps to capture her, including having registered her as a runaway.

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The judges also ignored the question of whether the slave had ever enjoyed a "peaceful freedom," a condition required by the original law. In fact, Anastasia had only left the maroon community where she had taken refuge when it was destroyed by the authorities. Regardless, the Court considered the enslavement lawsuits unfounded, because they were filed outside of the statute of limitations for re-enslavement. And the grandchildren of Sebastiana were freed. The two decisions of the Supreme Court - regarding the case of Rosalina in and of Anastasia in - as was to be expected, caused great controversy.

An argument was also put forth, by the very famous lawyer Teixeira de Freitas, that the statute of limitations— which for him should continue to be for ten years - would only be valid if the slave had been living as free with the consent of his master, and had not been "removed from slavery," because "bad faith destroys this and all statutes of limitation.

Despite the objections lodged by jurists, the effects of the jurisprudence established by the Supreme Court seem to have been substantial. Except for one from , all were filed after The hypothesis I wish to defend here is that it was not by chance that, precisely in the s, Supreme Court justices abruptly remembered to use a law already two hundred years old.

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For the last two, it certainly was not. But although the institution of slavery was still acceptable, it was increasingly difficult to justify the possibility of re-enslavement, mainly because, in Brazil, freedom also implied the acquisition of citizenship rights. It seems that the diagnosis of Malheiro about the "reason and conscience" of each judge "in the times in which we live" made sense. In effect, by the s, judges had come to accept certain arguments as valid, even seeking legal precedents that did not correspond directly with the case in question, such as the law of Perhaps for this reason, the number of cases that had re-enslavement as a central theme grew see chart 5.

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Also, as shown in the chart 6, the number of maintenance of freedom lawsuits grew very sharply from , while the re-enslavement lawsuits followed a trend quite different: The analysis of these two charts allows us to reach two important conclusions. The first is that, after , more slaves filed maintenance of freedom lawsuits in the courts than masters initiated re-enslavement lawsuits. Although these data indicate the occurrence of effective practices of re-enslavement, they cannot measure the full extent of the practice, which may have been in decline.

It may salso be that slaves were aware of their chances of getting manumission in the courts, and willing to invest scarce resources in the effort. This is the second and more important conclusion: That is why these data tells us a lot about the legal legitimacy of slavery in the second half of the nineteenth century: Here we can return to the case of the persons formally known to have been slaves, Martha and Sabino, who were considered captives after years lived as free, by the judge of Curvelo in With the appeal of the sentence, the case ended up in the Court of Appeals of Rio de Janeiro.

They no longer wanted to prosecute Martha and Sabino, who were, respectively, their nephew and cousin. Sabino, being the son of Martha, was also the nephew of his master. To Azevedo and Mello manumission was a form of contract, which dealt with the transfer of ownership. Thus, the only difference between the donation of freedom and the other existing grants was that the grantee could not refuse it.

We have faith, and in its presence, beautiful theories and eloquent discussions are worthless. The lawyer for the alleged owners must have been trying to avoid a judgment based on the exceptional nature of regulations involving slavery and freedom, especially when these involved family relationships between masters and slaves. The Court of Appeals of Rio de Janeiro not only recognized that, from a legal standpoint, the freed appellants were right, but also emphasized that the judge of Curvelo, in deciding to re-enslave Martha and Sabino, had committed what was then called "notorious injustice": The judges of the Court of Appeals thus in fact "vociferate[d] for the rights of man, for guarantees of freedoms" — exactly what Azevedo and Mello had tried to prevent in their arguments.

The argument that the judicial system represents the supposed interests of the elite still lingers in analyses of nineteenth century Brazil. The judiciary could not possibly serve to defend the rights of slaves. Analysis of the attitude of the slaves who appealed to the courts to fight for prerogatives that came to be understood as rights has contributed to questioning this view.

After all, in freedom lawsuits, the responsibility for finding a reasonable resolution to the conflict was delegated to the justice system, even though in practice, this resource was sometimes merely a strategy to press masters to release their slaves sooner. The attitude of these slaves reveals that, at least from their perspective, the state had the power to enforce the rights they believed they had, including the right to receive freedom, which, at times, had only been verbally promised by a master. It is clear that the Brazilian courts played an extremely important role in securing the emancipation of African slaves and their descendants.

This importance is evidenced not only by the large number of freedom lawsuits, but also, primarily, by many rulings favorable to the effective liberation of slaves. Freedom lawsuits in general thus played a key role in the conflict between the preservation of slavery and the process of modernization of the Brazilian state in the nineteenth century: In a way, their requests for state actions contributed to the expansion of the public sphere.

Moreover, recent work such as that by Elciene Azevedo and Beatriz Galotti Mamigonian has shown how, from the late s onward, abolitionist lawyers and judges stormed the courts and established jurisprudence on issues of slavery and freedom. They did so by recognizing the possibility of new interpretations of old laws, such as that of November 7, , the first to ban the Atlantic slave trade to Brazil.

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The existence of re-enslavement lawsuits, their outcomes, and the patterns in which citation of particular laws occurred, demonstrate that beginning in the s, judges and lawyers who in this case were as individuals far from abolitionist were gradually recognizing that familiar re-enslavement practices, were becoming less legitimate. As a result, he masters who took their disputes with their slaves to court had no a priori guarantee of victory. Between the beginning of the loss of legitimacy and the actual loss of legality, which only occurred with the abolition of slavery, many years would pass.

Keila Grinberg, O fiador dos brasileiros: Judy Bieber Freitas, "Slavery and social life: In the field of social history, the first ones who utilized the resources of this area of history to study the law were the Brazilianists Stuart Schwartz and Thomas Flory in Schwartz, Sovereignty and Society in Colonial Brazil: Austin, University of Texas, Grinberg, Liberata , especially chapter 2. It is important to emphasize that, in that paper, we are dealing with a very specific universe: In the latter cases, the appeal was made ex-officio , ie, automatically.

In this regard, see Grinberg, Liberata. Revista dos Tribunais, , from p. The phrase may seem strange, at first; all of the above mentioned legislation should make reference to the subject discussed in the process. Sometimes, however, the cited legislation concerned administrative procedural issues, such as deadlines, formats, citations, etc.. Print edition must be purchased new and sold by Amazon. Gifting of the Kindle edition at the Kindle MatchBook price is not available.

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