Women, Crime, and Forgiveness in Early Modern Portugal

Darlene Abreu-Ferreira

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781472442314
• eBook ISBN: 9781134777655
• Topic: Social Sciences
• Subtopic: Early Modern History
• Index: Social Sciences

Looking at the experiences of women in early modern Portugal in the context of crime and forgiveness, this study demonstrates the extent to which judicial and quasi-judicial records can be used to examine the implications of crime in women's lives, whether as victims or culprits. The foundational basis for this study is two sets of manuscript sources that highlight two distinct yet connected experiences of women as participants in the criminal process. One consists of a collection of archival documents from the first half of the seventeenth century, a corpus called 'querelas,' in which formal accusations of criminal acts were registered. This is a rich source of information not only about the types of crimes reported, but also the process that plaintiffs had to follow to deal with their cases. The second primary source consists of a sampling of documents known as the 'perdão de parte.' The term refers to the victim's pardon, unique to the Iberian Peninsula, which allowed individuals implicated in serious conflicts to have a voice in the judicial process. By looking at a sample of these pardons, found in notary collections from the sixteenth and seventeenth centuries, Abreu-Ferreira is able to show the extent to which women exercised their agency in a legal process that was otherwise male-dominated.

Chapter 1
Introduction

Catarina da Ascenção was a child, perhaps only an infant, when she lost her mother, Catarina Tavares. The date of birth for the former, or date of death for the latter, is not known, but the two names were recorded in a querela launched on 6 October 1632 in Ponta Delgada, São Miguel (Azores). The querela was the official accusation of a crime committed against an individual, and once a querela was registered by the plaintiff with the local authorities, the investigation of the alleged crime began. In this case, the text informed us that a crime had been committed against Catarina da Ascenção’s interests, but because she was a minor, her widowed father, André de Castro, filed the complaint on her behalf.

In his denunciation, André stated that he was the executor of the will of the late Catarina Tavares, his wife, and as legal administrator of his daughter Catarina da Ascenção, he filed a complaint against Domingos Gonçalves, trabalhador or labourer. André explained further that his daughter was entitled to inherit all the estate of her late mother, and that estate included a cart and two bulls, one named Virtugo and the other Fidalgo. One day in September past, after the end of the threshing, the defendant took the cart and the bulls from the barn, and had been using the animals without permission. From one brief accusation we learn that a wife could and did leave all her worldly goods to her daughter, not her husband; that sometimes agricultural animals were given names that poked fun at the elite (a fidalgo was a member of the nobility); and that helping others with their harvest was one thing, helping oneself was another. Domingos was accused of theft.¹

On the surface, this case appeared to deal with a relatively benign incident, but the way in which André de Castro framed his complaint says a great deal about the place of women in seventeenth-century Portugal, particularly vis-à-vis property ownership and inheritance rights. Before she died, Catarina Tavares, wife, was legally entitled to half of the family estate; before she died, Catarina Tavares, mother, looked after her young daughter’s future with the best means at her disposal. Although Tavares appointed her husband as executor of her will, she declared her daughter her universal heir. Everything that belonged to the first Catarina belonged to the second, her mother’s namesake. For extra protection, baby Catarina was also named ‘of the Ascension’, perhaps in the hope that someday the daughter’s soul would ascend to heaven and join her mother’s.

Catarina Tavares’ will has not been found, so that all we know of her intentions are the fragments from her widowed husband’s statements in his querela, the resolution of which impinged on the property that belonged to Catarina’s heir. In early modern Portugal, that type of impingement was at the root of many, if not most, criminal cases. This premise was entrenched in early modern Portuguese law that allowed for the victim of a crime to pardon the wrongdoer. Thus, André de Castro could have allowed his querela to take its course, and hope for a guilty verdict against Domingos Gonçalves, in which case André would get back the cart and the two bulls, plus damages. Alternatively, André could have agreed to pardon Domingos for his indiscretion, and ostensibly forgo any further claim. Such a pardon could have been granted either before or after sentencing, and would have been useful to Domingos who was embroiled in a judicial procedure that could have proven tenuous and costly. Portuguese law recognized and indeed encouraged such pardons, but the law also aimed to minimize the impact these types of settlements could have had on the rights of inheritance. The present study examines that potential impact, particularly as it applied to women caught in the system of granting legal pardons to individuals accused of committing crimes.

The Road to Forgiveness

A system was in place in many parts of early modern Europe (c.1500–1700) through which a convicted criminal could appeal for clemency or a full pardon from the Crown, and this phenomenon has been studied by a number of historians, particularly in Spain² and in France.³ In Portugal, too, the Crown reserved for itself the prerogative of granting royal pardons to convicted criminals, an appeal process that promoted the Crown’s image as the benevolent arbitrator, and generated fees that supported religious and other institutions. Portuguese historians have published a number of studies based on pardon documents that focussed on mainland Portugal in the late Middle Ages or early modern periods,⁴ or on the Atlantic islands and African posts.⁵ For the most part, these studies were based on a quantitative analysis of royal pardons granted under the reign of a particular monarch. Generally their findings indicated that the Crown acquiesced most often to appeals related to crimes against the state, particularly breaking out of prison, followed by crimes against the person including homicide and other types of physical assault.

In early modern Portugal, the mechanism for obtaining a royal pardon included a unique component: the culprit first had to obtain a written and notarized pardon from the victim(s) – a perdão de parte – and women featured greatly in that process, as the instigator or more notably as the victim in its many manifestations. The perdão de parte has not been examined very much in Portuguese historiography, possibly because it is a more difficult document to find, in comparison to the royal pardons which were registered in the royal chancelleries in a series appropriately entitled Perdões e Legitimações (Pardons and Legitimizations), and are easily accessible at the national archives in Lisbon. For their part, the victims’ pardons are randomly scattered in notarial collections, the vast majority of which are not indexed, and stored in the national archives, in district archives across the country, and in the Atlantic Islands.⁶ How many perdões de parte⁷ reached the Crown and led to successful remissions is impossible to determine, but one study of victims’ pardons in Porto from the second half of the eighteenth century found that only approximately 16 per cent of prisoners in the local jail could expect to receive a pardon.⁸

The victim’s pardon was attached to the culprit’s appeal to the Crown, and the royal pardon was the Crown’s response to that appeal.⁹ As the historian António Manuel Hespanha has pointed out, in theory, the king could not pardon a crime for which there was a victim without first the accused obtaining the victim’s pardon, for it was understood that the offended party received, with the sentence, the right to render a punishment, and the right to a portion of the compensation that was inflicted on the perpetrator. In reality, these limits on the Crown were not insurmountable.¹⁰ A list of prices for royal pardons was compiled in 1517, called the Regimento dos Perdões, and the document included an addendum at the bottom of the list which is especially pertinent for the present study.

And in all the cases and pardons that are declared in this Regimento always in order for a pardon to be granted in each case the said our Chief Justices [Desembargadores] must see the perdões de parte from the victims when there are victims. And without which no pardons shall be granted. And if the harm is caused only to Justice and there are no victims the said pardons shall be granted without [the] perdão de parte for such is how we have always done and we have it that it be done thus.¹¹

The national ordinances also instructed the Desembargadores how to proceed with appeals, and stressed that the perdão de parte was an essential part of the process,¹² but recognition of the rights of the victim was open to some negotiation, as exemplified in the listed costs outlined in the above-mentioned Regimento that applied to a culprit who sought a reprieve from the penalty of exile. In such a case the Crown allowed that a royal pardon was possible even without a perdão de parte, as long as a third of the sentence had already been served (see Appendix 1). In fact, under certain circumstances, a royal pardon could be granted outright without a victim’s pardon. For instance, the law permitted that any renegade criminal who helped justice officials apprehend her or his accomplices could receive a royal pardon for the crime the accused had committed.¹³ Some royal pardons registered in the chancelleries did not make any reference to a perdão de parte, either because the scribe failed to note it, or because it was not part of the deliberations. Nevertheless, the victim’s pardon was ostensibly an indispensable part of royal pardons, in Portugal and in the rest of Iberia. In his study of pardons and patronage in early modern Spain, Salustiano de Dios found an example of a petition for a pardon from two brothers whose petition was contested. The victim of their aggression petitioned the Crown as well, and asked the Crown not to grant them a pardon because they had caused him grave injuries and he had not pardoned them.¹⁴

It is not known whose petition was successful in that particular case, but if the Crown was recruiting soldiers, the two brothers would have been awarded certain concessions. As Dios pointed out, the reasons for granting a royal pardon in Spain were numerous, but most notably to supply troops for wars, with Portugal, Granada, North Africa, and the Indies.¹⁵ The capricious and arbitrary nature of the system of royal pardons has been documented in Portugal as well, particularly in relation to the practice of granting general pardons to criminals who joined military and colonizing campaigns.¹⁶ Such pardons would generally apply to men only, but women, too, were affected by those policies, most notably as pawns in the colonizing project. For instance, in 1569, Diogo Martines, living in exile in Rio de Janeiro, received a royal pardon for his unspecified crime after having married the recently arrived orphan, Maria Brás. It is doubtful she had much choice in the matter, or the victim(s) of Diogo’s initial crime.¹⁷ Yet contemporaries were aware that fairness was essential for the integrity of the pardon system. A text from the sixteenth century, believed to have been written by Rui Gonçalves, affirmed that it was proper for a prince to show clemency and pardon malefactors, but that the prince needed to be temperate with his generosity.¹⁸

The studies conducted by Portuguese historians of the royal pardons confirmed that, statistically speaking, early modern Portugal was not very different from the rest of Western Europe: among the known convicted criminals, men outnumbered women by a wide margin. In a quantitative analysis of nearly 7,500 royal pardons in late medieval France, Claude Gauvard found that only 4 per cent of petitioners who received pardons were women, though he cautioned that the sources dealt primarily with serious crimes, such as homicide.¹⁹ Similar findings were recorded for early modern Portugal, regardless of the reigning monarch or the geographical region under study. For instance, during the reign of King D. João III (r.1521–1557), 130 royal pardons were awarded to residents of Portalegre, 120 for men and 10 for women. Between 1593 and 1641, residents in Madeira received 113 royal pardons, 107 granted to men, 6 to women. King D. João IV (r.1640–1656) granted 33 pardons to individuals in Evora, of which only 2 were granted to women. Finally, of the 660 residents of the Azores Archipelago who received a royal pardon between the sixteenth and eighteenth centuries, only 46, or 7 per cent, were women.²⁰

Addressing this question of sex ratios in criminal activity in pre-modern France, Natalie Zemon Davis contended that part of the discrepancy was explained by the fact that crimes conventionally associated with women, particularly witchcraft and infanticide, were not pardonable.²¹ This argument cannot be sustained, at least not for Portugal, because the pardons registered in the royal chancelleries represent an incomplete set of pardons th...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Tables
• Abbreviations
• Acknowledgements
• 1 Introduction
• 2 Querelas and Perdões de Parte for Physical Injuries and Homicide
• 3 Querelas and Perdões de Parte for Sexual Crimes
• 4 Conclusion
• Appendix 1: List of prices (in réis) for royal pardons (Regimento dos Perdões), 18 June 1517, Lisbon
• Appendix 2: Victim’s pardon (perdão de parte) from Manuel Gomes and Graça Geraldes, widow, from Barcelos, to João Lourenço and more associates, 12 January 1650, Monção
• Appendix 3: Victim’s pardon (perdão de parte) from Isabel Dias to Francisco Dias, 19 October 1579, Lisbon
• Appendix 4: Criminal denunciation (querela) filed by Ana Gomes, prisoner, against Tomé Rodrigues, jail guard, 18 September 1629, Ponta Delgada
• Appendix 5: Victim’s pardon (perdão de parte) from Melchior Barbosa, painter, to Martinho da Cunha and others, 22 April 1577, Porto
• Appendix 6: Criminal denunciation (querela) filed by the alcaide António Pereira against Manuel Mendes, nicknamed o rameligua, and Maria Guerra, nicknamed a bisquainha, 12 August 1630, Ponta Delgada
• Appendix 7: Royal pardon (perdão régio) granted to Pedro Gonçalves for taking the honour and virginity of Ana Gonçalves, 20 January 1610, Lisbon
• Bibliography
• Index