200 years of Brazil’s first Constitution

The Political Charter of the Empire of Brazil, granted by Dom Pedro 1º on March 25, 1824 (200 years ago, therefore), represents a very important fundamental milestone that inaugurated the history of constitutionalism in our country!

Spacca

IT WAS, among us, the constitutional instrument with the greatest longevity, as it was in force for 65 years and (almost) eight months, having ceased its validity and effectiveness due to the edition, by the Provisional Government of the Republic, headed by Marshal Deodoro da Fonseca, of Decree nº 1, of November 15, 1889!

Having established the new political regime based on the movement that resulted in the independence of our country, free from its ties to the Kingdom of Portugal, it is worth recognizing that there were many innovations introduced at the legal-institutional level reflected in the text of our first Constitutional Charter, whose main characteristics were summarized in a book I wrote (Annotated Federal Constitution2nd edition, 1986, Saraiva), on many other topics, on the typological aspects of the various Constitutions that Brazil has had to date!

HERE are the most expressive (and relevant) notes that appear, as politically and legally innovative references, in the constitutional “corpus” embodied in the normative text of the Political Charter of the Empire of Brazil:

a) it instituted the unitary form of State, with strong political-administrative centralization;
b) adopted the monarchical form of government;
c) divided the territory of the Empire of Brazil into provinces, each administered by a president, appointed by the Emperor and freely exonerateable by him;
d) defined Catholicism as the official religion of the Empire, although it guaranteed domestic or private worship to other religions, as long as it was without the external form of a temple;
e) recognized the functional division of power as the conservative principle of citizen rights and freedoms;
f) incorporated into the text the formula developed by the French-Swiss jurist and political thinker Benjamin Constant (without any identification with Lieutenant-Colonel Benjamin Constant Botelho de Magalhães) consisting of the recognition of four political powers: legislative, moderating, executive and judicial;
g) Legislative Power was delegated to the General Assembly, a bicameral body, composed of the Chamber of Deputies (elective and temporary) and the Chamber of Senators or Senate (organized by provincial election, its members appointed by the Emperor, based on a triple list , and lifetime investiture);
h) the current electoral system was based on census suffrage, only eligible for those who, among other requirements, met the economic-financial requirements. In this way, only those who had their own fortune or had a minimum net annual income of one hundred mil-reis could vote (active citizenship). On the other hand, eligibility (passive citizenship) was also conditioned by economic-financial requirements: provincial voter (minimum net and annual income of two hundred mil-réis), deputies (income of four hundred mil-réis), senator (income of eight hundred thousand réis);

Pedro Américo/Reproduction

i) the Moderating Power (“Pouvoir Royal” or Neutral Power) and Executive Power were deferred to the Emperor. The first (Moderating Power), recognized as “the key to all political organization” of the Empire, was delegated privately to the monarch, so that, through its exercise, carried out with the assistance of the Council of State, he could oversee the preservation of independence and maintaining the balance and harmony of the three other political powers. The exercise of the Moderating Power legitimized the Emperor’s intervention in the sphere of the Legislative (appointing senators, dissolving the Chamber of Deputies, convening the General Assembly extraordinarily, sanctioning and vetoing legislative proposals), the Executive (appointing and dismissing Ministers of State) and of the Judiciary (suspending magistrates, exercising sovereign clemency in relation to defendants convicted by sentence). The Emperor also headed the Executive Power, which he exercised through his Ministers of State. These were responsible for carrying out their political-functional duties, and could even suffer the death penalty in the event of a crime of responsibility! The person of the monarch, however, was inviolable and sacred, and he was not subject to any responsibility;
j) the Judiciary was made up of judges and jurors. The Jury Court had jurisdiction over criminal and civil matters, in cases determined by the codes. Magistrates served for life. However, they did not boast the guarantee of irremovability. The Courts of Appeal, existing in each Province, were bodies of second instance. The highest body of the Judiciary, in the Empire, was the Supreme Court of Justice, whose members (Counselors) were necessarily full magistrates, taken from provincial relations (Judges) due to their respective seniority;
k) the Imperial Charter contained a broad Declaration of Rights, reflecting the influence caused by the American (1776) and French (1789) Revolutions;
l) legislative proposals were subject to the Emperor’s power of sanction or veto, who had a period of one month to exercise it. The Emperor’s veto was not absolute. It had merely a suspensive effect. Two legislatures have passed (four years each), and if the project were resubmitted and approved again by the General Assembly, it would be considered sanctioned. It should be noted that, under the monarchical Charter, and unlike the republican Constitutions, a tacit veto was foreseen, characterized by the course, “in albis” (“blank”), within a period of one month.

THESE, in summary, are the main characteristics of our first Constitutional Charter: the Political Charter of the Empire of Brazil, granted by Emperor Dom Pedro I on March 25, 1824, a Thursday!