Judicial administration

In Madeira, at least in the early days of colonisation, all civil and criminal jurisdiction lay with the donataries (donatários). Their powers in the administration of all public affairs, and even in the trial of criminal cases, were very broad, except for serious offences punishable by death or the cutting off of a limb, in which case the imposition of the corresponding penalty belonged to the king or to the higher courts of the royal court. These wide powers were gradually curtailed as time went on. The kings’ assumption of the privileges that the Order of Christ (Ordem de Cristo) held in this archipelago, the creation of the municipalities, the institution of sesmarias (royal land grant to settlers on condition of cultivation) and entailed estates, the various agrarian laws, above all those concerning water, timber, livestock and sugar, and still other measures of the central power contributed powerfully to the gradual curtailment of the civil, military and judicial powers that the captains-donatary (capitão-donatário) had widely enjoyed in this archipelago. Abuses of jurisdiction by the donataries, which sometimes went as far as encroaching on royal power, were not rare. On many occasions this led to the dispatch to this island of ouvidores and corregedores (royal district magistrate), invested with almost discretionary powers, whose special mission was to investigate and judge these excesses of jurisdiction. It was these magistrates, sent at first in extraordinary cases and later in more normal circumstances, who mitigated and corrected those encroachments of power. Conflicts sometimes arose between them and the captains-donatary, and the central government always put an end to them in the appeals lodged before the Crown.

We have several examples of this, especially the arrival in Madeira, in the last quarter of the 15th century, of the corregedor Álvaro Fernandes with ‘jurisdiction on the king’s behalf throughout the island’, and later that of the bachelor (bacharel, university graduate) Rui Pires, also with judicial jurisdiction over the whole archipelago.

In the first quarter of the 16th century Manuel I sent the corregedor Dr Diogo Taveira to this island ‘for certain reasons that moved him to it, with regard to the captain Simão Gonçalves’, says Gaspar Frutuoso. This greatly angered the captain-donatary, so much so that he resolved to abandon the captaincy. He went as far as embarking in two caravels with his family and the best of his household goods, bound for Spain. He did not carry this out, because he put in at the Algarve and the king gave him satisfaction for the affront, ‘because’, as the cited chronicler states, ‘for the services he had done the king he did not deserve to have a corregedor sent in’.

Later, around 1579, the Cardinal-King considerably curtailed the power and jurisdiction of the donataries, ordering in particular that offices and posts in the administration of justice should be filled by royal appointment, a right that had previously belonged to the captains-donatary. Under Philippine rule the donataries’ power was restricted still further. The Spanish government created the posts of governors-general for the administration of our possessions and sent to this archipelago the high court judge (desembargador) Dr João Leitão, who was also charged with conducting a judicial inquiry (devassa) into the political events that had taken place on this island at the proclamation of Philip II. From then on the captains-donatary ceased to reside here and exercised their jurisdictional powers through their ouvidores, whom they appointed and on whom they conferred all the powers they enjoyed. It is easy to presume, however, that the absence of the donataries from their captaincies, and the authority wielded with real despotism by the representatives of the Spanish government, must have contributed immensely to reducing the power of these donataries in the government of these islands to paltry proportions. Although from this time on the donataries’ powers in local administration and the administration of justice were almost merely honorary, they nevertheless continued to receive substantial revenues from the various taxes levied in the archipelago. Around the middle of the 18th century they were generously compensated for the loss of these revenues and taxes, which they then began to suffer.

It would be difficult today, and perhaps even impossible, to determine precisely the sphere of powers, at the time the Castilian occupation began, both of the captains-donatary and of the various magistrates sent to this archipelago by the monarchs. We would say the same of the period of Spanish rule and of the time from 1640 until the days of the Marquis of Pombal.

The decree of 2 August 1766 created the posts of corregedor and juiz de fora (crown-appointed judge from outside the district) for the Azores. The following year the decree was applied to Madeira, and Dr Francisco de Matos Correia and Dr António de Abreu were appointed to them respectively, taking up their posts on 15 October 1767. With the appointment of these magistrates, judicial administration in this archipelago entered a regular and normal period. Until then, the duties of corregedor and juiz de fora had been combined in a single person and were exercised rather irregularly, chiefly to meet the needs of the moment. Justice continued to be administered in this way for 68 years, counted day by day, until 15 October 1835.

The judicial reform of 16 May 1832 was not implemented in Madeira until 1835. Thus, despite the proclamation of constitutional government on this island on 5 June 1834, justice continued to be administered by the juiz de fora and corregedor or their legal substitutes until 15 October 1835, when the two judicial districts (julgados) were installed, both with their seat in Funchal.

Dr Manuel Cirilo Esperança Freire, the last juiz de fora to hold the post substantively, served until 14 June 1834, and Dr Francisco António Rodrigues Nogueira, likewise the last substantive corregedor, left office on the 23rd of the same month and year. They were replaced on an interim basis by the most senior members of the Senate (senado, the municipal council), in accordance with the legal provisions then in force. Then, on 13 October 1834, acting on orders from above, the governor and captain-general Luiz da Silva Mousinho de Albuquerque appointed the law graduates Daniel de Ornelas e Vasconcelos and João José Vitorino Duarte e Silva as juiz de fora and corregedor.

On 15 October 1835, as already stated, the old judicial system came to an end and the two judicial districts were installed, with their seat in Funchal. In 1838 a new judicial reform divided the archipelago into two judicial districts (comarcas), western and eastern, both with their seat in this city; they were established on 7 May of that year.

The first magistrate to serve in the eastern julgado and judicial district was Dr Domingos Olavo Correia de Azevedo, and the first judge to serve in the western julgado and judicial district was Dr José Pereira Leite Pita Ortigueira Negrão.

The decree of 12 November 1875 altered the division of this archipelago into judicial districts, and from then on there have been the judicial districts of Funchal, Ponta do Sol, Santa Cruz and São Vicente.

The judicial district of Santa Cruz was installed on 17 June 1876, the day on which its first judge, Dr Manuel Inácio Rum do Canto, took office. Its first deputy crown prosecutor was Dr Bernardo Vieira Pinto de Andrade, appointed by decree of 17 February 1876.

The judicial district of São Vicente was installed on 16 November 1876. On that same day the same judge and the first deputy, Dr João Pereira dos Ramos e Silveira and Dr Aníbal Correia Taborda, took office. The judicial district of Ponta do Sol was installed on 28 April 1876. Its first judge and its first deputy were, respectively, Dr Martinho da Rocha Guimarães Camões and Dr António Augusto Freire Ribeiro de Campos, who took office on the day of the district’s installation.