It was September of 1570 when Dom Sebastião enacted his charter concerning Japanese enslavement. Lodged in his palace in Sintra, the king’s text was seemingly categorical. To modern-day readers, it left no doubt that it was definitely forbidding the enslavement of Japanese individuals, no exceptions allowed. In its simplicity and straight language, it is a safe text in the sense that it reminds modern readers of the power of legal texts as historical sources filled with reliability. However, the abolitionist tone of the letter is lost when the same text is inserted in its context and read against other documentation from the same period. Although one would expect that no other Japanese slave would be found after 1570 that was not the case. Despite its dramatic language, the law may have had different effects – which could have been, in fact, by design of the missionaries in Japan. By narrowing the access to Japanese slaves and reinforcing the need for documentation legitimizing their servitude, the king ended up giving the Jesuits in Japan full control of the process of enslavement and set them as intermediary in between Japanese sellers and European buyers.
Historiography has been dealing with the history of this charter in a number of ways. Some consider it the result of an attempt to solve a moral issue – the sheer scale of slave trade conducted by Portuguese merchants in Kyushu forced the Portuguese king to issue a prohibition, in order to protect the missionary work done in the area611. Russell-Wood gives a short account of the process, drawing attention to its failure to suppress the trade.612 Boxer, for example, reinforcing the view of the charter as a decision aiming at securing the safety of the missionaries in Japan, states that “the institution of slavery per se was repugnant to the Japanese as a nation, and they certainly resented the purchase of their countrymen (if not of their countrywomen)”. According to the English historian, the charter resulted from the pressure brought by the Jesuits in Japan on the Court of Lisbon, “to have this standing reproach to their exposition of the Gospel removed. 613” He also refers to the idea that the charter failed, saying that it was “ignored or suppressed for over thirty years” before being reinforced at the turn of the seventeenth century614.
611 NELSON, Thomas. “Slavery in Medieval Japan”. In: Monumenta Nipponica, vol. 59, No. 4 (Winter, 2004), p. 463; AYRES, Christovam. Fernão Mendes Pinto e o Japão. Lisbon: Academia Real das Sciencias, 1904, p.
89. Jeanette Pinto assumes that laws such as the ordinance forbidding the enslavement of Japanese people were an example of situation where the Portuguese “also showed that they were humane”, although she cannot indicate if these attitudes were resultant “of clerical agitation or an annual gesture of good will of the part of the Crown”. PINTO, Jeanette. Slavery in Portuguese India (1510-1842). Bombay, Delhi, Nagpur: Himalaya Publishing House, 1992, pp. 117-8.
612 RUSSELL-WOOD, A. J. R. “Iberian Expansion and the Issue of Black Slavery: Changing Portuguese Attitudes, 1440-1770.” In: The American Historical Review, Vol. 83, No. 1. Oxford University Press, 1978, p. 40.
613 BOXER, Charles R. Fidalgos in the Far East (1550-1771). Hong Kong: Oxford University Press, 1968, pp.
231-2.
614 Idem.
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The idea of a complete failure apparently remains paradigmatic when explaining the charter and the developments after its enactment615. This debacle has been blamed not only on hypocrisy616, but also on plain disrespect for royal authority617 or lack of a strong structure capable of enforcing the law in Asia618. The classic interpretation of this charter is that it flopped, and Japanese slavery went on, while the Jesuits neglected the situation.
In this chapter, we will see that the charter was, in fact, part of a diplomatic strategy on the part of the king, and an issue of self-preservation for the missionaries.
Although the legislation failed to halt the slave trade in Japan in its entirety, the fact is that the royal edict gave the Jesuits legal and secular support to regulate the exit of forced labor force out of Japan to territories controlled by Portuguese and Spanish. Given the history of Japanese slavery since 1570, one could say the strategy was far from a failure, from the point of view of baroque legislation, as it restricted the legal ways under which Japanese could be legitimately enslaved.619 Jesuit certificates emitted in Japan, also known as titles [títulos], became a requirement whenever owners wished to resell them or register them among property in their wills, for example. Even though the simple phrasing of Dom Sebastião’s law appears to indicate a full-blown prohibition, it eventually helped to advance missionary preeminence over the slave trade and opened up an era where Japanese slaves were spread all over the globe. Our focus here is the context and the processes behind the enactment of the charter on Japanese enslavement, how it related to other policies at the time and the difficulties behind its enforcement, as well as the legal consequences and precedents created by such decision.
615 Maki Hidemasa, for example, calls it an utter failure: 「この禁制は全く効果があがらなかった」. MAKI Hidemasa. Jinshin Baibai. Tokyo: Iwanami Shinsho, 1971, p. 61.
616 Cabezas, based on the idea of legislative failure, questions: “Como iban a tener efecto las leyes antiesclavistas emanadas de esclavistas flagrantes?” [How could antislavery laws have any effect if they were enacted by flagrant slavers?]. He also writes that the same thing happened as in other Iberian colonies, where good regal laws were accepted, but not enforced. CABEZAS, Antonio. El Siglo Ibérico de Japón – La presencia Hispano-Portugesa en Japón (1543-1643). Valladolid: Universiad de Valladolid, 1995, pp. 72 and 99.
617 About the charter, Costa, for example, states: “Esta [condenação] era, contudo, desrespeitada, sob os mais variados pretextos e era corrente o negócio de escravos japoneses no Índico (...).” [This [prohibition]
was, however, disrespected, under the most various pretenses, and the business of Japanese slaves in the Indian Ocean was recurrent]. COSTA, João Paulo Oliveira e. O Cristianismo no Japão e o Episcopado de D.
Luís Cerqueira. PhD thesis. Lisbon: Universidade Nova de Lisboa, 1998, p. 311. Hesselink also repeats the same argument: “This prohibition was actually proclaimed on 20 September 1570, although the Portuguese merchants routinely ignored it for another 17 years.” HESSELINK, Reinier. The Dream of Christian Nagasaki – World Trade and the Clash of Cultures, 1560-1640. McFarland, 2015, p. 80.
618 OKAMOTO Yoshitomo. Jūroku Seiki Nichiō Kōtsūshi no Kenkyū. Tokyo: Kōbunsō, 1936, pp. 731-2 and 745.
619 As with the Brazilian case, when the 1570 D. Sebastião charter on the enslavement of Brazilian natives created a loophole that was widely exploited by local settlers. See RIBEIRO, Darcy. O povo brasileiro: a formação e o sentido do Brasil. São Paulo: Companhia das Letras, 1996, pp. 98-105;
MONTEIRO, John Manuel. Negros da Terra: índios e bandeirantes nas origens de São Paulo. São Paulo:
Companhia das Letras, 1994, pp. 41-2.
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Lawmaking during the Judicial “Baroque-ism”
The turn of the 1570s was not an easy time for the Portuguese royal family. From July of 1569 until July of 1570, the plague forced the gates of Lisbon to remain closed, and the nobility was forced to take refuge in the countryside. Dona Catarina, the king’s grandmother and former head of government, fled to Vila Nova de Xiira and later to Alenquer. Dom Sebastião, however, carried his court through a longer tour throughout the country620.
The Jesuits seized every opportunity to guide government decisions to their favor.
Of the closest people to the king, one of the most influential was his confessor, father Luís Gonçalves da Câmara. Jesuits were specially prized as confessors in this period, as they could hear confession everywhere, had papal ‘faculties’ for absolving from sins normally reserved to the bishop, and insisted on relative anonymity and discretion on hearing confessions621.
A Jesuit since 1545 and former dean of the University of Coimbra, Luís Gonçalves da Câmara was called from Rome to guide and tutor Dom Sebastião during his childhood.
The relationship he enjoyed with the Portuguese regent did not go unnoticed by the superiors of the order: Francisco Borgia wrote Câmara in 1568, little more than three months after Dom Sebastião assumed the throne. The confessor was asked by Borgia to look after the Society’s business with Dom Sebastião, to whom he wished much health for him to “apply it on nothing but the service of God622”. Câmara’s presence around the king was considered vital for the Jesuits, who would avoid dividing his attention by commissioning him for any other responsibilities623.
Câmara’s brother, Martim Gonçalves da Câmara, was another key Jesuit figure.
Permanent presence in the king’s state council, he was appointed Notary of Purity [Escrivão da Puridade], an office in the likes of a prime-minister, with an essential role in the elaboration and approval of legislation. His name can be seen in many of the charters and laws enacted in this period. The influence the two Câmara brothers and other
620 CRUZ, Maria Augusta Lima. D. Sebastião. Lisbon: Círculo de Leitores e Centro de Estudos dos Povos e Culturas de Expressão Portuguesa, 2009, p. 187.
621 For more on Jesuits as confessors, see HÖPFL, Harro. Jesuit Political Thought – The Society of Jesus and the State, c. 1540-1640. Cambridge: Cambridge University Press, 2004, p. 15.
622 Francisco Borgia to Luís Gonçalves da Câmara, Rome, 8 March 1568. Sanctus Franciscus Borgia Quartus Gandiae Dux et Societatis Jesu Praepositus Generalis Tertius IV, 1565-1568. Madrid: Typis Gabrielis Lopez del Horno, 1910, p. 585.
623 Francisco Borgia to Miguel de Torres, Tusculo, 8 July 1569. Sanctus Franciscus Borgia Quartus Gandiae Dux et Societatis Jesu Praepositus Generalis Tertius V, 1569-1572. Madrid: Typis Gabrielis Lopez del Horno, 1911, p. 119.
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religious people exercised over the young king was evident. Since his enthronization, Dom Sebastião kept a personal memo of points he wanted to keep in mind while governing. The first note on the list is “I shall have God as the end of all my works, and in all of them I shall remember him624.” But it wasn’t a roster of virtuous religious thoughts – it also had topics such as “to conquer and develop [povoar] India, Brazil, Angola and Mina625”. It also points to the uncertainty that the monarch felt about his own capabilities as a ruler: “The laws I make, I shall first show them to virtuous men and scholars, so they point me the inconvenience they may cause626.” This was the case for many of the laws he enacted. For example, when the government decided the necessary conditions for declaring just war against other kings in the territories conquered by Portugal overseas, a board gathered to give their final thoughts and decide the issue627. Board members consisted of Martim Gonçalves da Câmara; Leão Henriques, Jesuit superior of the Province of Portugal; Miguel de Torres, Jesuit, former visitor to Portugal and confessor of the king’s grandmother; Duarte Carneiro Rangel, associate judge at the royal palace in Lisbon [Desembargador do Paço]; Paulo Afonso, judge who would be appointed in 1579 deputy to the Board of the King's Conscience and of the Military Orders [Mesa da Consciência e Ordens]; Simão Gonçalves Preto, jurist official; and Gonçalo Dias de Carvalho, canonist and associate judge of the so-called Royal Higher Court of Appeals [Casa da Suplicação], an assisting tribunal for the monarch628, and author of the Carta dirigida a elRei Dom Sebastiam nosso senhor629, a public letter published in 1557 and addressed to the new king Dom Sebastião with political instructions and documents for the good government of the Portuguese Republic. Out of the seven men, three were Jesuits, attesting to the influence that not only the Câmara brothers did, but that the order itself had in direct government decisions.
The strong presence raised many eyebrows among members of the Portuguese nobility, especially from supporters of the king’s grandmother, former regent Dona Catarina. As early as 1569, gossip in Portugal revolved around the king’s confessor, accusing him of having his own room in the palace, and talking nothing but matters of state politics630. An anonymous letter from 1570 infamously accused the Câmara brothers of introducing in Portugal an “absolutist government almost tyrannical”, aiming at the
624 BNP, ALC. 308, Documentos de várias tipologias, relativos à história portuguesa, sobretudo do reinado de D. Sebastião, 1501-1650, f. 256.
625 Idem, f. 256v.
626 Idem.
627 For a recent analysis of this process, see MARCOCCI, Giuseppe. A Consciência de um Império – Portugal e o seu mundo (séc. XV-XVI). pp. 329-30.
628 MENDONÇA, Manuela. “The Regulation of the Royal Higher Court of Appeals. The first regulatory instrument of justice in Portugal.” In: História [online]. 2015, vol.34, n.1, pp. 35-59.
629 CARVALHO, Gonçalo Dias de. Carta dirigida a El Rei Dom Sebastiam nosso senhor. Lisbon: Francisco Correa, 1557. Available at http://purl.pt/14439.
630 Another factor that contributed to this suspicion was that the Jesuit Miguel de Torres was confessor of Dona Catarina, Dom Sebastião’s grandmother.
destruction of the “nobility and honored men of [noble] blood”. According to the unidentified author, Luís was the mentor, while Martim the executor of the plan631. Martim Gonçalves da Câmara was essential for any legal proceedings related to issues of religion and conscience, reviewing and signing provisions and charters that touched these issues632. His office, the Notary of Purity, dated at least from mid-fifteenth century, as it is mentioned in the Ordenações Afonsinas. In that era, the notary was responsible for confirming knights and other petitions. When Dom Sebastião assumed control of the government, Martim Gonçalves da Câmara was appointed for the office, thus becoming one of the leading members in the introduction of the king’s policies aiming at reforming mores and moralization of Portugal and its empire633.
The set of laws in favor of overseas newly converted populations is a direct result of the influence of the Jesuits in the court. In 1570, Luís Gonçalves da Câmara wrote the general of the Society of Jesus, father Francisco Borgia, celebrating their success. He explained how the king “had enacted so many laws related to the good government and reformation of his kingdom, it caused the devil to make many bad people scream”634. Struggling with internal politics, the Câmara brothers were personally responsible for directing Dom Sebastião’s efforts of moralization and reformation in Portugal and its overseas territories.
Dom Sebastião’s government was marked by what has been called by the Portuguese historiography “judicial baroque-ism” [barroquismo jurídico], a model of administrative monarchy based on the enactment of a high number of general laws.
Portuguese historiography gives a rough count of about 52 provisions, 17 charters [regimentos] and 23 laws enacted in the period between 1568 and 1578635. Even though they bear the royal signal, many of these laws were elaborated and enacted in Lisbon, during periods when the king was absent from the capital city. Voices criticizing the king indicate that these laws should have been elaborated by Dom Sebastião’s councilors without the king’s knowledge, thus being an indicative of a military culture permeating the court members636. Others point that these officials were in fact trying to cover
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deficiencies created by a king absent from his capital637. However, as we will see in two of the charters related to Japanese Christianity (the charter on Japanese enslavement and the exemption for new converts), one cannot oversee the possibility that this phenomenon was a reflection of the lawmaking process during Dom Sebastião’s rule – both texts were be first elaborated by the king during his stay in the countryside, later revised by his councilors in Lisbon.
The issue of slavery permeated Dom Sebastião’s rule since before his enthronization. As shown above, the decisions taken by the First Goan Synod, in 1567, prompted a law from that same year enacted by the king’s representative in India, then Vice-Roy Antão de Noronha. Ecclesiastical decisions got then support by secular law, allowing its enforcement not only by clergymen and prelates but also by regal officials.
In the text of 4 December 1567, the Vice-Roy confirmed that now “foreign slaves could not be brought to my territories without guarantee of being well captive”, that is to say, without being legitimately enslaved638. This decision created the need for legitimacy titles for slaves brought from territories non-controlled by the Portuguese crown and its officials – enslaved individuals brought to Goa, Malacca, Cochin, and other Portuguese ports needed now certification, although the process of who should be allowed to issue such letters became a moot point for the time being.
In Portugal, slavery was a hot topic in this period. Since the beginning of the overseas expansion, moral theology was immersed in judicial debates about the legality and legitimacy of the occupation of American landmasses and the enslavement of its population in both the Iberian states.639 Between 1566 and 1567, a debate among Jesuit missionaries in Brazil about the legitimacy of Brazilian enslavement of native populations and voluntary servitude practices prompted the king to enact a prohibition against the enslavement of Brazilian Indians, in March of 1570.640 Heavy criticism of the law forced the king to transfer these issues to the colonial administration – as a result, the enslavement of Brazilian Indians was legalized as voluntary servitude in mid-1570s.641
637 SERRÃO, Joaquim Veríssimo. Op. cit., p. 68.
638 “E assi ey por serviço de Deos e meu que se não tragam escravos estrangeiros a minhas terras sem certeza de serem bem cativos.” APO Fasc 4, p. 75.
639 EISENBERG, José. “A escravidão voluntária dos índios do Brasil e o pensamento político moderno”. In:
Análise Social, vol. XXXIX (170), 2004, p. 7. However, in the Spanish side, the crown since the very beginning decided to protect, at least formally, indigenous populations from slavery. See KOSHIBA, Luiz.
A honra e a cobiça: estudo sobre a origem da colonização. Doctoral thesis presented at the University of São Paulo. São Paulo, 1988.
640 For more on the debate Caxa vs. Nóbrega, see EISENBERG, José. Op. cit., p. 7-35; EISENBERG, José. As Missões Jesuíticas e o Pensamento Político Moderno – Encontros culturais, aventuras teóricas. Belo Horizonte: Editoria UFMG, 2000, pp. 139-158; ZERON, Carlos Alberto de Moura Ribeiro. Linha de Fé: A Companhia de Jesus e a Escravidão no Processo de Formação da Sociedade Colonial (Brasil, Séculos XVI e XVII). São Paulo: Edusp, 2011, pp. 139-58. The law against Brazilian slavery was published in Leys 1570, pp. 154-7.
641 EISENBERG, José. Op. cit., p. 155; LEITE, Serafim. História da Companhia de Jesus no Brasil, Tomo II Livro II. Rio de Janeiro: Civilização Brasileira, 1939, p. 207.
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The issue would come back numerous times, prompting the crown to re-enact the same provisions throughout the years.642
In the Americas, the right to enslave indigenous people was associated directly to issues of just war and how these principles should apply to the New World, as well as to the adoption of local enslavement practices, such as voluntary slavery.643 In Asia, the topic wasn’t less broad or complex. Enslavement was a result not only of violent strives between Portuguese and Asian populations and local practices, but also a commercial issue and, consequently, a moral issue. By trading with so-called “enemies of Christ,”
Portuguese merchants could endanger Jesuit missions and, consequently, generate adverse effects to the stability of the Empire. Furthermore, they faced being excommunicated, as the Constitutions of the Archbishopric of Goa reiterate that “todos os que levão cavallos, armas, ferro, fio de ferro, estanho, aço, ou qualquer outro metal:
instrumentos de guerra, madeira, linho cannamo, cordas de cannamo, ou de qualquer outra materia, ou quaesquer cousas prohibidas aos jmigos de nossa fé, com que nos fazem guerra” [all those who take horses, weapons, iron, iron thread, tin, steel, or any other metal; war tools, wood, hemp fiber, hemp ropes, or any other material, or any forbidden stuff to our enemies of our faith] were to be penalized with major excommunication.644
Slavery in Asia was an issue in the legislative agenda of the government in Portugal, although part of a wider strategy. The itinerant court, dominated by the Jesuit influence, was set to approve any number of requests to confirm the preeminence of the Society of Jesus in the missions. Thus, in 1570, Dom Sebastião started to enact charters granting the Jesuits everything they needed for their missions. Hoping to protect new-converts in Asia, the king would benefit the order and their projects in the Estado da Índia and its borders. The monarch compiled new guidelines for the treatment of Asian
642 Although it included numerous exceptions throughout the years. See the list of laws enacted towards the Brazilian natives in PERRONE-MOISÉS, Beatriz. “Inventário da Legislação Indigenista 1500-1800.” In:
CUNHA, Manuela Carneiro da (ed.). História dos Índios no Brasil. São Paulo: Companhia das Letras, Secretaria Municipal de Cultura (SP), FAPESP, 1992, pp. 529-66; EISENBERG, José. Op. cit., pp. 156-7. For a more recent discussion of Brazilian slavery and the Jesuits, see ZERON, Carlos Alberto de Moura Ribeiro.
Linha de Fé: A Companhia de Jesus e a Escravidão no Processo de Formação da Sociedade Colonial (Brasil, Séculos XVI e XVII). São Paulo: Edusp, 2011.
643 As Mariana Cândido warns, although much of the discussion regarding the legitimacy of slavery in the Americas concerned the doctrine of just war, one must not, however, forget other forms of
enslavement, such as kidnappings and deception. See CÂNDIDO, Mariana. “O Limite Tênue entre Liberdade e Escravidão em Benguela durante a Era do Comércio Transatlântico.” In: Afro-Ásia, 47.
Salvador: Universidade Federal da Bahia, 2013, pp. 239-40.
644 DHMPPO, Vol. 10, pp. 711-2. This was the same phrasing used in the papal bull In Coena Domini in this period. The 1568 edition of the bull was published in Portuguese in the Extravagant Constitutions of the Archbishopric of Lisbon of 1569. Constitvições Extravagantes do Arcebispado de Lisboa. Lisbon: casa de Antonio Gonsalues, 1569, ff. 15v-20v.