- 1 Introduction
- 2 Decisiones: Law Reports in ius commune tradition
- 3 António da Gama’s life and work
- 4 Gama’s Decisiones: general features
- 4.1 An overview
- 4.2 Additiones
- 5 Case Law
- 5.1 General importance of Case Law in the book (a concrete problem)
- 5.2 Case Law and the structure of the work
- 5.3 Quotation and direct references
- 5.4 Case law and reasoning
- 5.4.1 Detailed information
- 126.96.36.199 Overview
- 188.8.131.52 Date
- 184.108.40.206 Location
- 220.127.116.11 Litigants
- 18.104.22.168 Justices
- 5.4.2 Foreign case law
- 6 Final Comments
1The main purpose of this paper is to discuss the role of case law in António da Gama’s DecisionesSupremiSenatusLusitaniae. Published in 1578, the work was the first and one of the most important examples of decisiones literature in Portugal in the Early Modern Age. The impact of the decisiones in ius commune tradition was notable. A huge number of editions in different European cities during a long period of time, the large circulation in a wide continental area and the impact and influence on practical matters are some examples of the role of decisiones in European legal framework during that moment.
2In a previous and more complex work1, whose reception among legal historians was very positive2, the discussion about Portuguese decisiones was wider and deeper, with the analysis of six books of this genre in Portugal. Highlighting the name of António da Gama is a natural option because he was a pioneer in the area. Notwithstanding the existence of that monographic work, whose definitive version was not yet published, the discussion about the decisiones in Portugal is far from an end; consequently, this seems to be an appropriate moment for more specific research. Following this tendency, we could mention not only some papers about Criminal Law issues that will be published this year3, but also this contribution. Highlighting case law among many possibilities is a fundamental step to go further into the understanding of decisiones as a genre of juridical literature in the Early Modern Age.
3Starting from a brief discussion about the decisiones in the context of ius commune, this paper goes on with some information about the author and his Decisiones until his main part, when case law, in its multiples perspectives, receives specific attention. Case law was essential for both the structure and the content of the decisiones. To demonstrate that is also an aim of this paper.
2 Decisiones: Law Reports in iuscommune tradition
4Case law has a fundamental role in common law tradition, which is largely based on rules designed by courts and applied to similar posterior cases decided by an inferior court or even the same. In other words, case law in common law tradition is a source of law that can be directly applied4. The English system is truly the classical model of common law since the late Middle Age and precisely since the publications of official records and reports of the highest courts’ decisions. These collections of decisions were known as Year Books in the middle of 13th century and Legal Reports since the middle of 15th century, and the authority of the decisions reported, named precedents, was the center of the system5.
5On the other hand, case law had different features in ius commune tradition6. Everybody should obey a court’s decision because it had force of law, as some Portuguese jurists have expressly said7, but it did not mean an equivalent meaning to common law tradition. Notwithstanding Gama’s opinion on the enforcement of some rule established in a previous decision8, the majority of decisiones literature’s authors were against that possibility9.
6Denying the identification of these two different traditions and studying specifically ius commune, we must clarify which role played case law in this perspective. It was not properly a source of law in a formal sense, but an argumentative element used to convince someone about the correctness of his reasoning. Plaintiffs and defendants used case law to convince the judge of their point of view and, in a court; justices used case law to convince their peers about their reasoning. In ius commune tradition, including Portugal10, judges and courts should not reason their final decisions, although the references to case law during the discussions were very common. In Alain Wijffels’ opinion, “’case Law’ in the modern sense could not and did not play the same role in ancient continental European law as it does today. Very few judgments were published verbatim and in any case, judgments usually did not include any legal reasoning or any legal grounds justifying the decision”11. Thus, the access of the content of final decisions of a court was not easy in continental Europe.
7In this context, legal literature was particularly useful to unveil case law in ius commune tradition, and, in the very rich variety of genres which includes commentaries, monographs or treaties, allegationes and practica, decisiones have played a relevant role because in no other one case law had a comparable importance. A comparison is often made between decisiones and Reports, in the attempt to connect both European traditions. The result is the usual reference to decisiones in English language as Legal Reports, despite the awareness about differences12. I prefer not to use them as synonyms and maintain the expression “decisiones literature” already used previously13.
8There are many common aspects to decisiones and Reports, especially the relevance of case law for both. But the use of case law is precisely what separates them: decisiones literature was not just collections of judicial decisions, but actually a juridical book which contained real and concrete situations that referred to previous judicial decisions and also reasoned opinions to these particular inquiries. The questions proposed were selected from real lawsuits decided by high courts, but the decisions were not the only element in the reasoning expressed by the authors, who also quoted statue law and especially legal doctrine. Case law acted in two perspectives: it inspired the selection of questions and also helped with their solutions. While in Reports the decisions were literally transcribed, in decisiones literature that rarely happened and, when it did, only the judicial opinion was quoted and not its reasoning.
9The general features of decisiones literature were already discussed in a previous work14, as well as the panorama of the European production, which includes names from France (Aegidius de Bellemere, Jean Le Coq, Joannes Corserius, Guido Papa and Nicolaus Boerius), German States (Joachim Mysinger von Frundeck, Andreas Gail and Benedikt Carpzov), Spain (Jose de Sesse y Pinol, Miguel de Cortiada and Juan Pedro Fontanella), Dutch Republic (Count Wynants, Johannes à Sande and Paulus Christianaeus) and especially from Italian States (Matthaeus de Afflictis, Thomas Grammaticus, Vincenzo de Franchis, Octavianus Cacheranus d’Osasco, Josephus Ludovicus, Johanes Petrus Surdus, among others)15. A panorama of Portuguese legal literature and its genres16 must include decisiones literature and some of its most important authors. Six of them were object of my monograph study: António da Gama, Álvaro Valasco, Jorge de Cabedo, Belchior Phaebo, Gabriel Pereira de Castro and António de Sousa de Macedo17, and it is to the first that this paper is dedicated.
3 António da Gama’s life and work
10Antonio da Gama was born in 1520 in Funchal, Madeira Island, where his father, Lourenço Vaz da Gama Pereira, who had also studied Law, was that time Provedor dos Ausentes. Like the vast majority of Portuguese legal scholars, Gama gained his degree at Coimbra University in 1543, but, different from most of his contemporaries, he spent some years at the University of Bologna, precisely at the Collegium Hispanicum. This Spanish institution was established by the Cardinal Gil Albornoz (1310-1367) with the purpose to help Spanish young men interested in studying at that prestigious university. Gama had that opportunity because of the available places that were directed to Portuguese scholars provided by the Archbishop of Lisbon.
11After returning to Portugal in 1549 Gama was appointed to some of the most highest offices in the Kingdom, such as Professor of the Faculty of Law at the Coimbra University, Justice of the Portuguese High Court (Desembargador da Casa da Suplicação) and, a few years later, also Justice of the Desembargo do Paço, a court whose functions were directly connected to the extraordinary powers of the Portuguese Kings18. Until his death in 1595, Gama was an influent member on the Portuguese high courts, and his career – until he became a member of the Casa da Suplicação – was not exactly similar to what normally happened, according Nuno Camarinhas19: while the majority of jurists had a long way until the nomination to high courts, Gama was appointed to the Court since his coming back from Italy, according to Barbosa Machado20. The already mentioned study of Camarinhas statistically showed that cases like Gama’s were exceptional, especially after the Restoration in 1640.
12It is not my aim to provide a definitive explanation for that, although thinking about some hypotheses is not a difficult exercise21. If the available information tells us that his family was not a traditional jurists family in the first half of the 16th century, since António da Gama that changed. Luís da Gama Pereira, his son, was also educated at Coimbra University and, just like his father, was Desembargador dos Agravos at the Casa da Suplicação and also a member of the Desembargo do Paço. Having three generations of judges, two of them High Court’s Justices, was not a special case of the Gama Pereira family, but of course it was not a common situation.
4 Gama’s Decisiones: general features
4.1 An overview
13The DecisionesSupremiSenatusLusitaniaewas first published in Lisbon in 1578 by the typographer Emanuel Ioannes. There is some information about many other editions in different parts of Europe in the following years, but it is difficult to confirm the veracity of these data. One of the most trustful lists of publications, even with some problems22, is the onde presented by Johannes-Michael Scholz, who has found nineteen different editions, most of them in Antwerp23.
14Gama wrote this book in only one volume, originally with 390 decisiones, which were, as it was already mentioned, the argumentative unity of the book. This number of decisiones was only found in the publication of 1578, and the later editions also consulted (1610, 1683 and 1735) have three more (393). As we could not consult the editions published between 1578 and 1610, it is not possible to affirm precisely which one was the first with 393 decisiones. Gama did not explain how he had organized his book, probably because an organization in a modern way did not occur to him. Around 84% of the decisiones dealt with Private Law matters24, but Gama did not intend to write about these questions in a systematic way. Thus, frequent themes like contracts, marriage and donation, even though they were of central relevance in many decisiones, appeared in different parts of the book and not only in a sequence.
15The introductory elements are useful to comprehend the process of making this book. Examining the required licenses in the first folios of the 1578 edition, we can conclude that the book’s final version was ready probably in the end of 1576. Just after the license of Holy Office, from 15/01/1577, and King’s printing license, from 15/03/1577, a king’s act (alvarárégio) from 7/3/1578 prohibiting impressions and sales without licenses during the following fifteen years is an important source to understand the process of producing and selling books in the 16th century, especially in what waselated to the rigid control not only by the Church, but also by the Crown.
16Francisco Caldas Pereira wrote the preface to the first edition. He was a Justice of the Casa da Suplicação and his book Syntagmatripartitum de iureemphyteutico probably was the most influential work about emphyteusis inius commune. Gama did not write any preface or introduction to the readers. But a very useful way to clarify this objectives with the book that can be found, for instance, in Jorge de Cabedo’s Practicarumobservationes. Caldas Pereira’s text is the only part of the book where we could find a reflection on the work itself. Caldas Pereira believed in the book’s usefulness in solving practical controversies on secular jurisdiction mainly because of the references on the Highest Court judicial decisions25. The DecisionesSupremiSenatusLusitaniwas not an isolated book, and so Caldas Pereira mentioned other works with similar perspectives such as the volumes based on CapelaTholosana’s, SacroRegioConsiglioNeapolitano’s, Parlement of Bordeaux’s and Paris’s and Piemonte’s Senate’s decisions26, and, at this moment, because of Caldas Pereira’s words, I perceive clearly Gama’s own awareness of doing something connected to the European juridical production. In the end, after talking about the author’s prestigious and successful career27, Caldas Pereira exalted the necessity of finding justice not in the rigid rules, but in concrete situations and with an imperative flexibility, just like the Lesbos’s rule28.
17One especial information about the formal aspects of this book is related to the continuity of its use in the following decades. A first evidence is the high number of editions printed for almost one hundred and fifty years, but there is another one: the additiones. If the relevance of decisiones literature is quite related to the possibility of maintaining its readers updated, the book’s success cannot be separated from its capacity of convincing the jurists that the arguments there found were still accepted as valid. Works of some of the most important Italian authors, such as Matthaeus De Afflictis, Antonius Capicius and Vincenzo De Franchis, were frequently updated. According to Marco Nicola Miletti, the additiones’ contribution could be noticed either in the valuing of the original text or in its role as an autonomous contribution printed in the same volume of an already successful work, probably for commercial reasons. However, in all cases the additiones became part of the previous work at the same time they were consulted and cited autonomously29.
18In Portuguese decisiones only the works of António de Sousa de Macedo and António da Gama were added. Bartolomeu Flores de Mena was the responsible for the additiones on Gama in some editions (1699 and 1735, for example). After each decision, there was an additio that operated as a critical comment to the decisio’s matter. Mena intended to go further in some insufficient discussions with references to new books or titles unknown to the original author30, often to reinforce Gama’s opinion. However, in other cases like the Decisiones VIII and XXIII, Flores de Mena supported opposite views. Albeit the recognition of Gama’s authority, Flores de Mena said directly that his opinions were not mandatory, in particular to the Casa da Suplicação31.
19Included in many editions of the DecisionesSupremiSenatusLusitaniae, the additiones of Flores de Mena were also published in an autonomous volume in 160132, what proves its relevance as an independent work.
5 Case Law
20The reference of Portuguese decisiones literature as a compilation of sentences and cases decided by the Casa da Suplicação is common among Portuguese legal historians33, and that is exactly the reason why this theme have never been relevant to Legal History studies. Actually, these books were misunderstood, especially in what concerns the role of Case Law.
5.1 General importance of Case Law in the book (a concrete problem)
21The real importance of case law to decisiones literature was to serve as a source, and source here has two meanings: on the one hand, a source to construct and to base the argument presented in each decisio, just like other sources of law, especially statute law, costume and authority of jurists34; on the other, source as reference to concrete questions decided by an important court, which serves as the decisio’s theme. Gama and other authors discussed not only concrete but also doubtful questions; in other words, the center of a decisio was a specific and unclear problem whose answer was not evident. However, the particular characteristic of decisiones was the origin of these concrete problems: these cases were already decided by the courts often mentioned in the book’s title35.
22It is true that some decisiones were not based on concrete questions. That is clearer, for example, in Jorge de Cabedo’s Practicarumobservationum36 than in the book here analyzed, but it does not correspond to the majority of the work. In Gama’s book, each decisio has at least one concrete problem that must be solved; the decisio was the fundamental unit of the book, a problematic unity and an argumentative topos with a final solution. In this sense, case law was exactly the source of the problems: they were not created by the author’s mind; among many problematic situations faced in court’s practice, some of them were picked out to be discussed. A practical question was the elementary problem described and answered in the end of the decisio.
5.2 Case Law and the structure of the work
23If the starting point of decisiones literature was a problem faced in the courts and all the following discussion intended to give this question a solution with the best and more persuasive arguments, it is not difficult to understand the relevance of case law, including the structure of the decisiones.
24A description of the concrete and real situation which inspired Gama’s writings was usually found in the beginning of the decisio. The Decisio XCII is an example with its direct references to the parties (petitioner and respondent) and to detailed information about the juridical question37, as well as Decisiones XXXIX38, CCXI39 and CCXXIX40, whose first paragraph includes a direct inquiry, or inquiries in the case of Decisio LXXI41, that shall be answered within the decision. But Gama began some decisiones with direct inquiries just after a very quick description of the situation and without references to the real litigation42 or, far more used, a structure telling about the existence of doubtful controversies43.
25Even when there was no literal reference to a case decided by a court, the guiding role of case law was unquestionable. In the few decisiones where Gama did not mention cases decided by the Casa da Suplicação, he has used structures that confirm decisiones as a case law-born argumentative unit: related cases were truly doubtful44, justices were not sure about how they would decide45 or Gama himself and some of his colleagues at the court disagreed about how should they decide46.
5.3 Quotation and direct references
26Gama has used quotation in many moments, although not particularly often. The quotes were direct references to important sources, such as Portuguese Laws (Ordenações or other royal acts), documents filed in the lawsuit which had based the decisio (contracts or testaments, for example) and, what is more interesting now, other juridical decisions, all of them in the original language, different from the Latin written text of this book.
27Only in 10 of 390 decisiones has Gama quoted literally a decision of the Casa da Suplicação47. These references were complete, announcing the most import lawsuit’s data (names of the parties and of the notary responsible for writing the decision, the city where the litigation took place, the complete date when the justices decided and very often the name of the justices). As previously said, the quotation comprehends only the dispositive part of the sentence, but not the debates to construct the final decision. In other words, the quote refers to the conclusions and not to how the justices had reached the conclusions. Here is an example of a Casa da Suplicação’s decision quotation:
28Acordamos do desembargo del Rey nosso Senhor, que o supricante he agravado pollo corregedor, & corregendo seu agravo. Visto como se prova Diogo Pinto irmano do A. ser vivo ao tempo quo sua avo, ultima possesora deste morgado falaceo & ser mais velho que o Reo Belchior Botelho, & como tal aceitou o dito fideicommisso & dereito delle, no qual por sua morte sucedeo o A. seu irmano Francisco Pinto: o que todo visto, & a disposicano da ley nova, que admite o parente mais chegado ao ultimo possuidor na sucessano dos morgados & o mais dos autos, condenado ao R. que abra mano do morgado da contenda & proprietades delle, com os fructos & rendimentos da lide, contestada em diante, & a condenado nas custas dos autos Ao primeiro Dagosto de 157348.
5.4 Case law and reasoning
5.4.1 Detailed information
29As I already pointed out, decisiones literature was not only a collection of decisions settled by a court. Case law was used by the author as an argument to reason the issue on discussion, as well as other sort of arguments with the same function, such as statute law and legal doctrine. Different from other books with equal proposes, Gama’s Decisiones was absolutely concerned about concrete matters, resulting in the absence of generic and descriptive decisiones like some found, for instance, on the second volume of Cabedo’s Practicarumobservationum49. It did not mean that Gama had expressly mentioned case law in all the 390 decisiones, but, even when there was no literal mentioning, case law was very important, at least to the description of the concrete question that must be resolved.
30The real importance of case law on Gama’s work can be better understood by looking at numbers. Only 14 (3,5%) decisiones in this book had no reference to case law, a high number if compared with the 169 (44%) decisiones that did not refer to the Ordenações do Reino (Portuguese general statute law). When we compare with the use of legal doctrine, the level is not different, because only 19 (4,8%) did not refer to the authority of at least one author. A comparison with the other books of decisiones literature makes clear the relevance of case law in Gama’s work:
32Mentioning case law means that the perception of single cases is possible, or, in other words, that there are some individual features on the case cited that allow identifying the lawsuit described. A complete reference to case law would have information about the names of the litigants, the city where the lawsuit began, the justices acting in the case, the notary responsible for writing the decision and the year when it was decided by the court. Complete references like that are not very often found in decisiones literature50, even in a book like Gama’s. However, the relevance of these data is impressive because of another function of decisiones literature: the possibility of knowing some details on the jurisdiction in Portugal of the 16th and 17th centuries.
33Names of the litigants and the date when the lawsuit was decided by the Casa da Suplicação were the most common information about case law. Among the 379 decisiones that have mentioned case law, the majority (198 or 52,65%) did not refer to the date of the decision. However, the number of decisiones mentioning the date is very high (181 or 48,13%), and we could organize them in the following way:
35There is no doubt about the predominance of cases from the last years before the book’s preparation. Knowing that Gama was appointed to the Casa da Suplicação in 1549, it is easier to understand why the last three groups are so higher than the others.
36Information about the origin of the case referred is important to comprehend the dynamics of the royal jurisdiction in the time when Gama was a justice. Despite its small territory, the access to the highest courts of the kingdom was particularly difficult to litigants coming from distant and isolated regions of Portugal. The following list could help the understanding of this matter:
|Location||Number of cases referred|
|Ilha da Madeira||9|
|Viana do Castelo||7|
|Entre Douro e Minho||3|
|Ilha de São Miguel||2|
|Ilha de São Tomé||2|
|Ponte de Lima||2|
|Arcos de Valdevez||1|
|São Tiago de Cacém||1|
|Viana da Foz||1|
|Viana da Foz de Lima||1|
|Viana de Lima||1|
|Vila do Conde||1|
|Vila Franca de Xira||1|
|Vila Nova do Portimão||1|
37The majority (229 or 58,71%) of the almost four hundred decisiones have mentioned the location of the lawsuit. As expected, the frequency of cases whose origins were the most important cities of the Kingdom was higher. But the frequently encountered presence of Madeira Island and other areas located in the oversee territories of the Kingdom shows the progressive, but still slowly, penetration of the royal justice in further regions of the Empire.
38We must be careful with the results of this specific point, because they represent only a part of the jurisdiction in Portugal during the 16th and 17th centuries. The high number of decisiones clearly based on case law but with no literal references to lawsuits is a signal of this necessary attention. Gama and the other authors did not reason why they have chosen specifically these cases to mention, and probably this selection was not based in proportional and representative criteria. Notwithstanding the conscience of the relative importance of the data, it is clear that they could be pretty useful to the above-mentioned objectives.
39Gama brought no detailed information about the litigants, and that is a barrier to investigate the profile of plaintiffs and defendants in his book. The themes of the issues discussed are also a very interesting way to understand this point, especially because some questions are typically related to the elites, such as succession, heritage, emphyteusis and other patrimonial problems. We are not concerned about tracing an economic or social profile of the litigants, but some available data are useful to understand, at least partially, who had access to royal jurisdiction in the Early Modern Age.
40There is no difficulty to perceive the social position of some litigants. Cardinal D. Henrique, son, brother and he himself King of Portugal took part in a lawsuit in 1564 about a sale contract with a third party possessor51. Other members of the Portuguese nobility were mentioned by Gama: the Duke of Coimbra, who was also the Master of Santiago Order, and Pedro Cunha, the son of India’s Governor Nuno da Cunha52; the Count of Castanheira and the Marquis of Vila Real53; Martim Afonso de Sousa, one of the central figures in the beginning of Brazilian colonization, and the Duke of Bragança, who was the chief of the most important Portuguese noble house that became, after 1640, the Royal House54; the Count of Portalegre and his sister-in-law against the Santa Casa de Misericórdia of Évora in a discussion about emphyteusis55; among others.
41Only by genealogical and Economic History research it is possible to achieve a broad comprehension of the phenomenon of litigation in the Early Modern Age, especially about the profile of the litigants. The here-found information, despite its incompleteness and insufficiency, is helpful on a preliminary stage.
42References to the justices acting in the cases mentioned were not uncommon in Gama’s Decisiones, especially in a kind of celebrative mood. Gama was justice of the Casa da Suplicação for more than forty years, and often referred to other justices as his colleges. In Decisio XVI, he related to the “opinion fuero college nostril doctissimi” Álvaro de Quintal, Mem de Sá, Luís Afonso and Antônio Soares56, while, in other situations, he mentioned the “doctissimi college” Mem de Sá and Álvaro de Quintal57, the “doctissimos Senatores” Sebastião de Matos, Antônio Sanches Brandão, Rodrigo Gomes Pinheiro, Antônio de Mota and Antônio de Leão58 and the “collegae nostri” Francisco de Leiria, João de Melo and Diogo Roinz59. Probably the most cited justice was João de Melo e Souza (-1575)60, very often mentioned as “college eruditissimus”61.
43Self-references as justice were also very common, notably in an indirectly way by conjugating the verbs in the first person, as he did in Decisio CLXXXIV62. In other situations, we can find notices of what he and his colleges have decided63 or even that his opinion was followed by the other justices64. Although not frequent, there are some mentions to Gama’s opinion as justice when in an opposite way to the final decision, when his opinions were defeated in the court65.
5.4.2 Foreign case law
44References to cases decided by other European courts were not common, but they can be found when we look for direct references in indirect sources. In other words: Gama mentioned literally that a court had decided in some way, but his knowledge about these decisions depended not on reports or equivalent, but on decisiones literature from other countries. Mentions to decisions of the SacroRegioConsiglioof Naples in the Decisiones I and IX depended on the work of Matthaeus De Afflictis66, as well as a reference to a case from the Parlement de Paris mentioned in Decisio CCCLVII thanks to the use of Boerius’ work67. Exceptions were the references to the Law Reports of the Rota Romana68.
6 Final Comments
45In this final part, I am are not concerned about bringing new information, because the central ideas were expressed during the entire text. The role of case law is exactly what makes the decisiones literature a special genre in juridical doctrine in the Modern Age: its double function (creating concrete issues and reasoning the decision to the problem) is not observed in any other kind of juridical book of that time. With the analysis of Antonio da Gama’s DecisionesSupremiSenatusLustiani, as well as the other Portuguese authors in my above mentioned work, I could conclude that. On the other hand, in a time when Legal Reports did not exist in ius commune tradition, particularly in Portugal, the access to information about lawsuits through these books is very important to understand the legal practice of that time, which can be reconstructed at least partially, notwithstanding the incomplete data.