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Introduction
According to the latest estimates of the transatlantic slave trade, Portugal- and Brazil-based merchants were responsible for transporting more than five million enslaved Africans to the Americas, i.e., roughly half of the entire trade throughout the early modern period.1 Portugal-based merchants were also the first to procure, capture, and purchase enslaved Africans on the Atlantic coast of Africa and to import them into Portugal, where the enslaved were employed in a wide range of economic activities. Thus, Portugal itself became home to a population of enslaved Africans. Although the exact size, age, and composition of this population are hard to determine, the total number of people disembarking during the early modern period has been estimated by Lahon (2004) at half a million. These Portugal-based merchants were also responsible for transporting enslaved Africans to the Atlantic islands of Madeira, the Azores, Cabo Verde, and São Tomé and Príncipe, where Portuguese and other foreign settlers transferred and adapted sugar cane cultivation and sugar production and developed the first slave-based plantation economies. These economies were later transferred to the Americas, with Brazil becoming by far the largest importer of enslaved Africans and home to one of the continent’s largest slave populations. Indeed, by the early nineteenth century, enslaved Africans represented around a quarter of the colony’s population (Botelho and Terra 2014).2 Portugal and Brazil were also the two Atlantic nations where the institution of slavery lasted the longest and its legacy continues to be seen today.
Portugal’s long-lasting, extensive, and deep engagement in both slave trading and the employment of enslaved Africans at home and overseas made it one of the first European kingdoms (together with Castile and various Italian city-states) to have to deal with the presence of alien populations in its own territory and to govern their interaction with the Portuguese population. The Portuguese crown, its overseas royal officials and settlers were also among the first to be confronted with the challenge of governing other populations elsewhere in the world; in this specific case, enslaved Africans. Consequently, Portugal’s attempts to regulate the trade in enslaved Africans predate those of most other European powers involved in the imperial enterprises of the early modern period. These attempts were undertaken with some very specific goals in mind and resulted in legislation being issued that specifically concerned enslaved Africans, as well as their interactions both with each other and with the Portuguese.
In a recent study, however, Giuseppe Patisso and Fausto Carbone (2020) argued that slave laws in the Americas, including in Brazil, were inspired by Spanish legislation, in particular by the Provisión del virrey Diego Colon (1522) and Las Ordenanzas para la sujeción de los esclavos negros (1528) issued by the Cabildo (i.e., municipality) of Santo Domingo in the Spanish Caribbean, among other royal diplomas. According to the authors:
Portugal, for instance, during the period in which the Portuguese and Spanish crowns were united (1580-1640), adopted Spain’s laws into its own legislation. The Ordenações Filipinas, promulgated by Philip I in 1603, were the most important demonstration of the process described above. This body of law is the most organic and structured example of the slave code in force in the Portuguese possessions until the nineteenth century. In Brazil, where the use of slave labor was fundamental for the maintenance of the colony, the code remained in force until 1822, when the Brazilian possession gained independence from the mother country. Even after independence, many of the precepts contained in the Philippine corpus continued to represent the legal basis for regulating the relations between slave and master within the country, at least until 1888, when the slave system was definitively abolished.
This argument appears to be based on the above-mentioned legal code (the Ordenações Filipinas), the extensive collection of Portuguese legislation on slavery in the Americas and the Portuguese-Brazilian slave trade edited by Silvia Lara in 2000, and studies by Da Silva (1992), Osório (2015), and Martins (2017).
This article challenges that assertion by demonstrating that Portugal was in fact one of the first European kingdoms to issue legislation specifically concerning enslaved Africans, as well as interactions between them and the Portuguese, and that this legislation predated the Ordenações Filipinas, and in some cases also the Provisión and the Ordenanzas. Consequently, and at best, one can only argue that Spanish legislation dates from more or less the same period and that the production of each body of legal texts was influenced by the other.
In addition, and unlike most other European powers involved in empire-building in the early modern period, Portuguese legislation was inspired primarily by experiences in Portugal, on the Atlantic islands of Madeira, the Azores, Cabo Verde, and São Tomé and Príncipe, and on the Atlantic coast of Africa, and was only later partially transferred and adapted to other imperial spaces. This contrasts with most European powers involved in the imperial enterprises of the early modern period, and particularly in French and English American plantation settings, where legislation was inspired solely by the colonial context.
Despite the Portuguese Crown’s early involvement in dealing with enslaved Africans as “the other”-both at home and overseas-and despite the extensive body of legislation issued from as early as the fifteenth century and continuing throughout the period, this body of legal documents was never systematized or organized in such a way as to produce a legal code for governing enslaved Africans and other people of color. No legal codes similar to the slave laws issued in the British and French Atlantic colonies during the second half of the seventeenth century-specifically the Barbados Slave Code (1661), the Jamaica Slave Code (1684), the French Code Noir (1685), the South Carolina Slave Codes (1695), or the various New York and Virginia Slave Codes dating from the first quarter of the eighteenth century (1702, 1712, and 1730; and 1705, respectively)-ever existed in Portugal and its empire. However, the similarities between these codes and Portuguese legislation, issued from as early as the fifteenth and sixteenth centuries, are rather striking, and this suggests that the production of these later slave codes was influenced both by the early Portuguese slave legislation and by the Spanish legislation.
To this end, I will analyze legislation issued by the Portuguese crown during the early modern period, here encompassing mainly the period between the fifteenth and sixteenth centuries, and supplement the analysis with other relevant source materials from Portuguese archival collections.
Portuguese Legislation on Slavery and Slave Trade: An Underexplored Topic
Despite the substantial role played by the slave trade and slavery in the development of the Portuguese domestic and imperial economies, the study of these two topics only started to attract the attention of Portugal- and Brazil-based scholars in the late 1980s and early 1990s. Works by authors such as Tinhorão (1988), Saunders (1994), Pimentel (1995), Fonseca (1997), and Lahon (1999) clearly demonstrated the size and composition of the enslaved African population in Portugal and the population’s main economic activities. These studies also paved the way for a series of publications on the topic in the past twenty years, among which the work of De Almeida Mendes (2004, 2016, 2017) on the early Portuguese slave trade and the enslaved population in Portugal, the studies of Fonseca on the economic activities of enslaved populations in Southern Portugal and Lisbon (2002, 2012), and the more recent study by Caldeira (2017) all deserve special mention. While most of these works rely on source materials produced by Portugal and its royal officials and subjects overseas, adopting a bottom-up approach meant the authors were able to unveil important information about the size of slave populations in Portugal and the types of activities enslaved workers performed, as well as information on their living and working conditions, how they resisted abusive situations, and the opportunities available to them to regain their freedom through manumission granted by the masters, through purchasing their freedom, or through escape and marronage.
Since the 1990s, scholars have also shown a growing interest in the slave trading activities carried out by Portugal- and Brazil-based merchants within the Portuguese empire and beyond, particularly in the Atlantic, where their activities spanned the two Iberian empires, including Portuguese outposts in Atlantic Africa and Mozambique, as well as Portuguese and Spanish territories in the Americas (Caldeira 2015, 2013; Domingues 2019; Candido 2015, 2011; De Almeida Mendes 2017; Alencastro 2006; Ventura 2005; Curto 2004; Lobo Cabrera 1996; Vieira 1991, 1996). This extensive body of literature on the Portuguese-Brazilian slave trading activities has shed new light on the extent of this hideous commerce and on aspects such as its main routes, the regions of purchase and sale, and the principal actors in these activities, and their investments and profits.
But despite this growing interest in the topics of slavery and slave trade in Portugal and its empire, very few scholars-with the notable exceptions of Da Silva (1991), Lara (2000), Peabody and Grinberg (2007), Nogueira da Silva and Grinberg (2011), Osório (2017), and Martins (2017)-have paid specific attention to studying the legal corpus that governed the lives of enslaved people. The approaches adopted by these scholars vary considerably. While the main interest of Lara, and Peabody and Grinberg, was making available and analyzing legislation on slavery and the experience of enslaved Africans in Brazil, Nogueira da Silva and Grinberg focused primarily on analyzing the legislation on the abolition of slavery on the Portuguese mainland towards the end of the eighteenth century, while Osório and Martins focused predominantly on the legislation issued and the policies adopted by the Portuguese Crown in respect of the Atlantic slave trade. This is hardly surprising, given that the largest body of Portuguese legislation relating to enslaved Africans primarily concerns slave trading, and this in itself is a testimony to the importance of enslaved African populations and the volume of slave trading in Africa (on both the Atlantic and East African coasts) for the economy of Portugal and its empire. In order, however, to address the points raised earlier in this study, and which remain unanswered by the current scholarship, this article examines the production and origins of the main Portuguese legal corpora, and discusses the roots and contents of slave legislation, highlighting the extent to which enslaved Africans’ uprisings in Africa influenced the drafting of Portuguese legal texts on slavery.
Portuguese Legislation: Production and Origin of the Main Legal Texts
The vast majority of Portuguese legislation on slavery and slave trading was issued by the king, although towns and cities could also issue specific laws on matters to be implemented within the urban spaces under their jurisdiction. The production of royal legislation followed a mostly identical process to that applying to other diplomas promulgated by Portuguese monarchs regarding imperial affairs. More often than not, this legislation was the outcome of a royal decision on a specific matter, which had been brought to the king’s attention in writing either by royal officials serving the crown overseas, or by officials of city councils overseas, or sometimes even by learned subjects through letters, petitions, and so on. These forms of correspondence were usually addressed to the monarch or the Overseas Council (Conselho Ultramarino), a body of advisers to the king on imperial affairs. The members of the Overseas Council were usually royal officials who had previously served overseas. It was common practice for these members to assess the petitions and requests for royal intervention and to issue a report. It was on the basis of these reports and the original correspondence that the monarch would then take a decision and order the drafting of new legal documents.
Legislation issued by the king could be in a variety of forms, depending on its nature and purpose. There were at least five different types of diplomas: i) laws (leis); ii) charter laws (cartas de lei); iii) royal charters (cartas régias); iv) royal decrees or orders (decretos or ordens régias), and v) álvarás. Laws and charter laws were usually orders of a broader nature and character, applicable both in Portugal and the empire. Royal charters were also royal orders, but addressed to a specific authority in the home country or overseas, whereas decrees were royal orders given by the monarch for specific reasons and aimed at tackling specific problems. Álvarás, on the other hand, were issued by the king whenever he wished to change or modify an existing law in a specific respect.
These different types of royal diplomas were generally classified as extraordinary laws or legislation (Legislação or Leis Extravagantes) because their scope exceeded that of the general laws (Ordenações do Reino) in force in Portugal and the empire. Over the years, various volumes of Leis Extravagantes were compiled. The first of these dates back to 1569, with others following in the seventeenth and eighteenth centuries (Leão 1569a; 1569b; Appendix 1760; Colecção 1819).
The Ordenações do Reino, however, were the main legal corpus and contained the general laws used to govern Portugal and its empire. The first of these Ordenações date back to 1444 or 1447 and became commonly known as Ordenações Afonsinas because of being compiled and printed during the reign of King Afonso V (1477-1481). In fact, the contents of this legal code were based on the oldest Portuguese legislative texts, dating back to the reign of Afonso II (1211-1223) and including legislation promulgated by several monarchs from the medieval period, such as Denis I (1279-1325), Afonso IV (1325-1357), Peter I (1357-1367), and John I (1385-1433). These codes and the underlying legislation were, of course, influenced by Roman Law as well as by the Partidas of Castile and the customary legislation of Portuguese cities and towns (usos e costumes das vilas e cidades). The next Ordenações were put together in the early sixteenth century and became known as Ordenações Manuelinas since they were compiled and published during the reign of King Manuel I in 1512-1514 and 1521, respectively. The third and last Ordenações, which were finished in 1595 and implemented after 1603, were named Ordenações Filipinas after the Portuguese rulers at the time, Philip I and Philip II of Portugal (II and III of Spain) (1581-1598 and 1598-1621, respectively). Despite this code being issued during the Habsburg rule over Portugal and its empire, Silvia Lara describes it as having “a typical Portuguese character” (Lara 2000). The Ordenações Filipinas were similar in structure and content to the two earlier editions of this legal code as each of them was divided into five books, and each of these books dealt with a specific set of topics. Book one usually contained legislation on the royal offices; book two dealt with property, privileges and freedoms of the Church, monasteries, and clergymen; book three was devoted to questions of judicial process; book four covered civil and commercial law; and book five dealt with criminal law.
The Ordenações Filipinas cannot and should not, therefore, be seen and interpreted as Spanish laws applied to Portugal and the Portuguese empire, as argued by Patisso and Carbone (2020). The two authors’ assertion that the slave legislation contained in the Ordenações Filipinas and applied to Portugal and its empire was of Spanish origin is equally questionable, as I discuss below.
Slavery and Slave Trading in Portuguese Legislation: Origins and Content
Portuguese legislation on slavery and slave trading dates back to the fifteenth century. The earlier laws primarily concerned enslaved Muslims (referred to as mouros cativos, i.e., captive Moors, in the Portuguese sources) and appeared in the Ordenações Afonsinas. This legislation dealt mainly with issues relating to enslaved Muslims who had escaped, specifically what those finding them should do and how they should be rewarded if they returned the enslaved persons to their former masters. These early texts also stipulated how people who advised, helped or hid runaway enslaved Muslims should be dealt with and punished;3 in other words, they mainly comprised legislation indirectly safeguarding the property rights of masters over slaves. There was, however, one legal text dealing with manumitted enslaved Muslims and how they should not be punished if other enslaved persons escaped, unless it was clearly proven that they had been involved.4 This seems to be the only regulation attempting, on the one hand, to protect manumitted enslaved Muslims and, on the other hand, to make a clear distinction between the freed and the enslaved in terms of social order and hierarchy.
The legal category of mouro cativo as a synonym for an enslaved Muslim was largely absent in the Ordenações Manuelinas because Muslims, as well as Jews, were officially forced to convert to Christianity. From then on, the trend was to use the term cativo (i.e., captive) in legal texts and other official documentation to refer both to captives of wars in the Portuguese military campaigns in North Africa and to Muslims captured at sea from Muslim vessels.
However, several laws included in the Ordenações Afonsinas concerning enslaved Muslims were recycled in the Ordenações Manuelinas and adapted for use in respect of enslaved Africans. Two of these laws were rather similar, particularly with regard to the restitution of runaway slaves and the penalties for those that helped them.5 Evidence suggests, therefore, that legal codes for governing enslaved Muslims in Portugal and the empire (and particularly in the Portuguese strongholds in North Africa and off the Atlantic coast of Africa) were adapted so that they could also be applied to enslaved Africans arriving in Portugal, as well as to those on the Atlantic islands of Madeira and the Azores, Cabo Verde, and São Tomé and Príncipe, from the fifteenth century onwards. The roots of these legal texts can thus be traced back to the Portuguese authorities’ experience with enslaved Muslims in the late medieval period. According to Silvia Lara, however, there is an important difference between the texts included in the Ordenações Afonsinas and those in the Manuelinas. While, as mentioned earlier, the texts concerning the mouros cativos in the first code appeared in book two, which was devoted to matters of property and privileges of the Church, the regulations on enslaved Africans in the second legal code appear mainly in books four and five, which deal with civil, commercial, and criminal law (Lara 1980/1981), thus signaling an important difference in the way that enslaved Africans were perceived by legislators, compared with their perceptions of enslaved Muslims.
But not all the legal texts included in the Ordenações Manuelinas were drawn from this earlier legislation and experience. Several new laws were introduced concerning the commercialization of enslaved Africans both at home and overseas.6 Once again, this new legislation aimed primarily to protect both the interests and property rights of slave buyers and masters-allowing them to request that a slave sale be annulled, or to disown enslaved individuals on the grounds of sickness or physical or psychological disorders7-as well as the Portuguese crown’s interests in the business of slave trading.8
The Ordenações Manuelinas, however, were the first Portuguese legal code to include regulations on manumission and on revoking manumission in the event of ingratitude and violent acts by enslaved Africans against their masters or others.9 Once again, the addition of these latter laws to the Ordenações Manuelinas was in part the result of the Portuguese authorities’ experience in these situations since the early fifteenth century when the first enslaved Africans disembarked in Portugal and in the emerging settlements on the Atlantic islands and started integrating into local societies and economies. This process involved high levels of coercion and violence by the Portuguese, as well as multiple forms of resistance by enslaved Africans, all of which had an impact on the production of legislation, as I will explain in more detail later.
The Ordenações Manuelinas were simultaneously the first legal corpus to include regulations on masters’ duty to baptize enslaved Africans under their rule.10 The inclusion of this new regulation was motivated mainly by the strong belief that conversion would make enslaved people more docile, and that pagans and Christians should not live side-by-side in the same society. The papal approval and support given to the Portuguese imperial enterprise, and the importance assigned to evangelization when building and expanding the empire, were also reasons for adding this new legal text to the Ordenações.
All the legal texts on slavery and slave trading included in the Ordenações Manuelinas were subsequently reproduced, either partially or entirely, in the Ordenações Filipinas, or in some cases adopted and then adjusted.11 However, the Ordenações Filipinas also included some new legal texts on slavery. These new texts aimed, on the one hand, to control the mobility and forms of sociability of enslaved and freed people, particularly gatherings of people, while, on the other hand, they sought to exclude enslaved Africans from most civil and judicial rights, including the possibility of making a will, of being a witness in judicial cases and in wills, and of being tutors or guardians of orphans.12 It can therefore be argued that the Ordenações Filipinas clearly attempted to dehumanize and objectify enslaved Africans from a legal perspective and also to control their movements and opportunities for resistance. Although, on these last two points, the legislation makes explicit reference to situations occurring in Lisbon, events overseas-in particular, the first wave of uprisings by enslaved Africans in the Iberian Atlantic World, starting as early as 1517 in São Tomé, and in 1521 in Santo Domingo in the Spanish Caribbean-were likely to have heavily influenced the drafting of these texts and their inclusion in the general laws of Portugal and its empire.
Iberian Slave Legislation and the First Wave of Uprisings among Enslaved Africans in the Atlantic World, 1510s-1590s
The legislation issued in the aftermath of these events on the Portuguese Equatorial and Spanish Caribbean islands and on Terra Firme appears to have been rather important. While the Provisión of Diego Colón issued in 1522 and the Ordenanzas issued by the Cabildo of Santo Domingo in 1528 certainly played a significant role in this process, as discussed by Patisso and Carbone (2020), I contend that equal importance should be attached to the special inquiry carried out on the African island of São Tomé in 1530, correspondence sent to the Portuguese monarch in the years before then that reported regular escapes by enslaved Africans from as early as 1514, the revolt of 1517, the violence against settlers during the 1520s, and the 1528 revolt led by a runaway slave called Mocambo.13 Another very important element in the drafting of the legal texts included in the Ordenações Manuelinas and Filipinas and in subsequent legislation on slavery in force in the Portuguese empire was the Regimento do Feitor do Tracto da Ilha de São Tomé issued by King John III in 1532 and addressed to the royal officer responsible for the slave trade on the island (Faro 1958; Santos 1996).
The Regimento, as well as other subsequent legislation, ordered several measures to be implemented to tackle the social unrest and economic disruption attributable to uprisings by enslaved Africans on this island. These measures included: i) arranging for the sugar fields and green gardens for foodstuff production to be protected by a well-organized group of overseers and slaves; and ii) creating a special militia to organize defense against uprisings by enslaved Africans and to capture enslaved Africans who had sought refuge in the mato, or interior, of the island. While this militia initially comprised settlers and exiles, after 1593 it also started to include individuals sentenced to less than five years of exile for “non-scandalous” offenses. The Portuguese king appointed two officers to lead the operations of this armed group. The corregedor of the island (i.e., the highest royal judicial officer on the island at the time) was appointed capitão dos negros levantados (i.e., captain for slave uprisings) in 1533, while the new post of meirinho da serra (i.e., the bailiff of the hill) was established in 1534.14 Together these two officers were responsible for waging war against the enslaved Africans entrenched in the interior of the island in what was referred to as the Guerra do mato (i.e., bush war). This war was financed in equal part by the king and the settlers of São Tomé, including the municipality of the town of São Tomé. Their financial contributions were registered in the Livro do Mato de Receita e Despesa (i.e., the accounting ledger of the bush war). Between 1534 and 1538, the royal feitor do trato on the island alone donated more than 82,000 réis to finance the conflict.15 This was not an insignificant amount, given that in 1605, for instance, annual royal revenues from sugar production on the island of Príncipe amounted to 25,000 réis (Matos 1993: 184-186).
The orders issued by the Portuguese monarch John III and carried out by the royal official on the islands, the municipality of São Tomé, and the inhabitants bore some similarities to Las Ordenanzas that had been issued by the Cabildo of Santo Domingo four years earlier, specifically regarding the organizing and funding of a militia to capture runaway enslaved Africans. It could be argued, in this respect, that the Spanish royal diploma might in some way have influenced the drafting of the Regimento issued by John III. However, a careful analysis of the two legal texts also makes clear how they were tailored to dealing with similar problems but in different geographical contexts. We might, in fact, simply be looking at two simultaneous, but parallel developments, with the Spanish and Portuguese authorities seeming simultaneously to have been trying to find legal means and practical solutions for containing the first wave of uprisings by enslaved Africans in the Atlantic World, while relying on their specific overseas experiences in the Spanish Caribbean and on the Portuguese Equatorial African islands, respectively.
However, despite all the investments and efforts to recruit militia members and leaders, unrest continued in São Tomé through the 1540s and 1550s (Ramos 1986), with another slave uprising-this time organized by the Angolas, also known as the Angolis and negros gentios (Seibert 2012; Caldeira 2018)-also taking place some twenty years later. But the largest and most destructive slave rebellion on the island was in the years 1595 and 1596, which is precisely when the Ordenações Filipinas were compiled (although it was 1603 before they came into force). This revolt, which was named after its leader, Amador, an enslaved man owned by a settler called Bernardo de Vieira, involved an organized army of around five thousand former slaves. This army attacked the island’s main town, destroyed the church and other buildings, shattered more than seventy sugar mills and devastated a similar number of fazendas, while also killing or threatening many of the slave- and landowners on the island. Events of this magnitude did not go unnoticed by the monarch, particularly when a new legal code for governing Portugal and the Portuguese empire was being compiled.
Final Remarks
In view of the historical evidence and the detailed study of the origins of the Portuguese legislation on slavery and slave trading presented above, it is rather doubtful that “Portugal […] adopted Spain’s laws into its own legislation” and that “The Ordenações Filipinas, promulgated by Philip I in 1603, were the most important demonstration of the process described above” (Patisso and Carbone 2020). While it is unquestionable that “This body of law is the most organic and structured example of the slave code in force in the Portuguese possessions until the nineteenth century” Patisso and Fausto Carbone (2020), it can certainly be questioned whether the legislation on slavery and slave trading contained in this legislation had its roots solely in the Provisión de Diego Colón (1522) and Las Ordenanzas del Cabildo de Santo Domingo (1528), as argued by Patisso and Carbone (2020). Instead, the uprisings by enslaved Africans in São Tomé and their violent acts against former masters, documented from as early as the 1510s, would appear to have had a considerable impact on the production of Portuguese legislation from the reign of King Manuel I onwards. This in turn suggests that the drafting of new legislation on slavery was deeply entangled with the forms of resistance engaged in by enslaved Africans across the Atlantic World, and that the actions undertaken by enslaved Africans played a relatively important role in this process.
