AULA 2 - Gustavo Cabral Presence of books on canon law and of pragmatic literature in colonial Brazil

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1 
 
PLEASE NOTE 
This is a draft paper only and should not be cited without the author’s express 
permission 
 
PRESENCE OF BOOKS ON CANON LAW AND OF PRAGMATIC 
LITERATURE IN COLONIAL BRAZIL (16TH-18TH CENTURIES) 
Prof. Dr. Gustavo César Machado Cabral 
Universidade Federal do Ceará (Brazil) 
 
Research Colloquium “Knowledge and Information Regimes in the Early Modern Times” 
Max Planck Institute for European Legal History 
Frankfurt am Main, December 6th, 2016 
 
INTRODUCTION 
Studying the legal experience in Colonial Brazil is not an easy task. Legal culture based on 
oral procedures, a reduced sphere of institutionalized jurisdiction, absence of formal juridical 
education and the prohibition of printing books and journals are some of the most remarkable 
difficulties a legal historian faces when he decides to deal with this period. There are some 
possibilities, however, such as looking at the books. Not only strictly juridical books – if we 
do that, the number of works available during the three centuries of the colonial age could be 
counted in one hand. 
The option I chose was to exam texts within juridical relevance, but juridical 
interest in the perspective of the Early Modern Age, when canon law and moral theology had 
a prominent role, as pointed by many works in the last years. My methodological option for 
the selection of sources was thus related to the few available written works: since law was a 
casuist phenomenon, concentrated predominantly in resolving conflicts and questions, all the 
2 
 
sources used by this work are pragmatic. By pragmatic, I mean that they had a practical 
function in solving problematic issues. These texts settled these questions using both law and 
theological elements. 
The texts were produced from the middle of the 16
th
 until the middle of the 18
th
 
century, when the political changes in Portugal with the reign of D. José I, in 1750, changed 
considerably the structure and the institutions of the kingdom and the colony. I will talk about 
them just after introducing the juridical space our discussion will deal with, both in secular 
and ecclesiastical perspectives, and also explore some themes related to the moral problems 
faced by the texts. 
 
DESCRIBING THE JURIDICAL SPACES IN PORTUGUESE AMERICA (CANON AND CIVIL LAW 
INSTITUTIONS) 
The arrival of the first Portuguese expedition in 1500 did not represent the 
beginning of the colonization. During the first decades of the 16
th
 century, the presence of 
Portuguese and other Europeans was quite reduced. Even with the establishment of the 
hereditary captaincy system in 1534, by which the coast of Portuguese America was divided 
into a dozen territories that should be explored and occupied by the aristocratic men that 
received the donations, and the settlement of the General Government in Salvador da Bahia in 
1549, the situation did not really change much until the second half of the 18
th
 century. Small 
villages and cities (most of them on the seaside), reduced population (with a strong presence 
of slaves) and a not very often presence of Portuguese officials
1
: these were some of the main 
features of Portuguese America during 16
th
 and 17
th
 centuries. 
 
1
 An analysis of this process can be seen in: Camarinhas, N., “A administração da justiça em espaços coloniais. 
A experiência imperial portuguesa e os seus juízes, na época moderna”, Jahrbuch für Geschichte Lateinamerikas 
52 (2015), pp. 109-124. 
3 
 
The first and second grade judges (respectively juízes de fora and ouvidores de 
comarcas) were not introduced until the end of the 17
th
 century. Before that, the majority of 
the litigation concerning civil matters in Portuguese America was not decided by Crown-
appointed officials, but by judges appointed by the donee of the hereditary captaincy or, more 
often, by ordinary judges (juízes ordinários) elected in municipal councils, who had no 
formal legal instruction and were normally analphabets. Due to this absence of formal legal 
instruction, which can also be explained by the inexistence of universities or law schools until 
1826, despite a frustrated attempt by the Municipal Council of Salvador in 1663 to attribute 
the status of university to the Jesuit College of Arts
2
, their arbitrium was quite influenced by 
other perspectives and elements, particularly moral theology, much more than by the opinions 
of jurists. As there were not more than two royal courts for the entire territory, founded 
respectively in 1609 (closed in 1626 due to Dutch invasion and reopened in 1652) and 1751, 
in Salvador da Bahia and Rio de Janeiro, it is not an exaggeration to affirm that most of the 
conflicts formally submitted to a jurisdictional instance were not decided strictly according to 
Royal Law. It is there that the deep influence of moral theology in conflict regulation can be 
easily seen. 
This late presence of the Crown’s agents, in comparison with the Hispano-
American experience, is also observed in ecclesiastical affairs. When the papal bulla Super 
specula militantis Ecclesiae created the diocese of Salvador da Bahia, in 25.02.1551, twenty 
dioceses and one archdiocese had already been erected in the Spanish portion of the New 
World. The original space of the diocese of Salvador coincided with the ancient and that time 
already extinct hereditary captaincy of Bahia, but the formal letter of king D. Joao III, who 
had ius patronatum over the entire territory
3
, informed that the Bishop’s jurisdiction should be 
exercised over all the territory of the State of Brazil while new dioceses were not created. In 
 
2
 LEITE, Serafim, Tomo 7, p. 195-199; Maria Beatriz Nizza da Silva. Bahia, a corte da América, p. 200-201) 
3
 Here, it is also worth mentioning theory of the vicariate, according to which the kings were not only patrons of 
the evangelization, but also vicarious of the Pope in the Church of America. 
4 
 
1676, Salvador was elevated to Metropolitan Archdiocese, and two suffragans dioceses were 
created in Olinda and Rio de Janeiro. One year later, the Diocese of Sao Luís do Maranhão 
was created as suffragan of the Archdiocese of Lisbon, as well as the 1719-erected Diocese of 
Belém do Pará – the reason was the same alleged to the direct subordination of the State of 
Maranhão to Lisbon, and not to Rio Janeiro: the distance and difficulties of the travel
4
. The last 
dioceses created in Portuguese America were Mariana and Sao Paulo, in 1745, both 
suffragans of Salvador. 
 
MORAL THEOLOGY, CONVERSION AND MISSIONERS 
From the elements described previously, the understanding of the role of canon law and 
moral theology seems to be indispensable to the comprehension of the juridical phenomenon in 
Portuguese America. In this context, religious orders, particularly the Society of Jesus, were prominent. 
Since their arrival, in the same fleet of the first General-Governor Tomé de Sousa, in 1549, until their 
expulsion, in 1760, the Jesuits were responsible for the creation of spaces for intellectual activities, 
precisely because of their colleges, by far the most relevant educational institutions until the first half 
of the 18
th
 century. The three most important colleges, located in Salvador, Rio de Janeiro and Sao 
Luis do Maranhão, provided a liberal education deeply influenced by scholastic methodology, 
including primary instruction and the bachelor grade of Arts, Philosophy and Theology, as well as 
professional education. 
Clearly the intention of these colleges were both to provide instruction and to catechize 
indigenous people, and in this sense, the language issue was relevant. If the classes were in Latin, the 
same cannot be said of the conversion, which might be predominantly in indigenous languages. Local 
canonlaw recognized the relevance of learning indigenous languages and thereafter using them to the 
 
4
 […] quod populi illius partis Brasiliae, quae nuncupatur provincia de Maragñano, atenta longíssima distantia a 
civitate Bahiae omnium Sanctorum, residentia episcopi Brasiliensis, cujus est dioceses, et ad illam difficilimo 
accessu, multa incommoda praecipue circa confectionem olei sancti, administrationem sacramenti confirmationis 
et exercitum offici pastoralis passi jam sunt […].Vicecomte de Paiva Manso (ed), Bullarium patronatus 
Portugalliae regum in ecclesiis Africae, Asiae arque Oceania, Olisipone, 1870, t. 2 (1601-1700), p. 172 (§1). 
5 
 
conversion, as indicated by the III Provincial Council of Lima, in 1582-1583. Measures like these 
were adopted in the Province of Brazil since its foundation, and some missioners were in charge of 
dominating the languages in order to make them instruments of conversion. That was the strategy of 
the so-called pastoral works, in which were included grammars of Tupi language (e.g. Arte de 
gramatica da lingoa mais usada na costa do Brasil, 1595, by José de Anchieta), catechisms (e.g, 
Catecismo na lingoa brasilica, 1618, by António de Araújo; Catecismo da doutrina christaa na 
lingua brasilica da Nacao Kiriri, 1698, by Luís Vincencio Mamiami; and Doutrina crista, by 
José de Anchieta), dialogues (Diálogo sobre a conversao do gentio, 1556-1557, by Manuel da 
Nóbrega), and also plays and poems, as those written by José de Anchieta. All of these texts had 
pragmatic nature: their existence was closely connected to the conversion, both to the direct contact 
with the indigenous and to provide the missioners the adequate instruments for their spiritual and 
social activities. 
As described by Serafim Leite, the themes studied in the moral theology course were 
quite similar to the classical manuals such as Paul Laymann’s Theologia Moralis: doubts about 
matters of conscience, catechesis, theological virtues, cardinal virtues and justice, contracts and 
sacraments. The content of the discussions, however, was diverse, because of the concern about 
understanding the particularities of America and resolving its cases of conscience, which were most of 
the time different from the European reality. Therefore, discussions about catechesis, slavery and its 
theological consequences and the sacraments, particularly marriage, in relation to indigenous people, 
were the most common. In fact, almost all the works found during this research deal somehow with 
one of these themes. 
There was a close relation between what happened in America and Europe at the same 
time. The first generation of Jesuits in Brazil was fully educated in Coimbra and Salamanca and, in 
some cases, had close relations to prominent jurists of these universities. Two cases must be 
mentioned. Priest Joao de Azpilcueta was Martín de Azpilcueta’s nephew and stayed in Brazil from 
1549 until 1557, where he has written a pragmatic work entitled “Oraciones y Catequesis en la 
6 
 
Lengua General del Brasil”
5
. Priest Manuel da Nóbrega, the most remarkable person of the beginning 
of Brazilian colonization, was also Dr. Navarrus’ disciple, and to him and to his nephew Azpilcueta 
dedicated his book Relectio § in Levitico. The presence of Dr. Navarrus can be presumed not only by 
his influence as professor of most of the Jesuits and by the close relations with some of them, what is 
evident in a letter from Nóbrega to him in 10.08.1549
6
, but also because of the impact of the Manual 
de confesores y penitentes in Portuguese America. Nóbrega received the book just in the beginning of 
1550, among other books in a box sent from Portugal by the Portuguese Provincial priest Simao 
Rodrigues
7
, and the text continued to be used by many other works produced in Brazil, as I will clarify 
later on. Canonists and theologians from Coimbra and Salamanca, such as Francisco Suárez and Luís 
de Molina, were some of the most quoted authors in the examined texts, perhaps because of their 
presence on the libraries of the Society of Jesus’ colleges. Reviewing some documents of the 17
th
 and 
18
th
centuries, Serafim Leite affirmed that the libraries of Maranhao and Pará had together an amount 
of 12.000 volumes in the first half of the 18
th
 century
8
, a very significant number even if we compare 
with the presumed 15.000 volumes in Salvador by the time of the expulsion, in 1760
9
. In a place with 
a huge majority of analphabets, low-populated cities, no universities, printings nor bookshops, these 
libraries were one of the few spaces where one could find books related to the matters of interest of the 
Jesuit missions. 
 
REGARDING THE BRAZILIAN PRAGMATIC LITERATURE 
1 GENERALITIES 
From the description above, it is noticeable that Portuguese America was not an 
ideal place to produce formal legal knowledge. Alongside with the inexistence of universities, 
the prohibition of printing contributed a lot to this situation. Despite some attempts to operate 
them during the 18
th
 century, the prohibition of editorial activities in the case of António 
 
5
 LEITE, Serafim, Historia da Companhia de Jesus no Brasil, Tomo 1, p. 197-199. 
6
 NÓBREGA, Manuel da. Cartas do Brasil e mais escritos (opera omnia), p. 44-57. 
7
 LEITE, Serafim, Historia da Companhia de Jesus no Brasil, Tomo 2, p. 47. 
8
 LEITE, Serafim, Historia da Companhia de Jesus no Brasil, Tomo 4, p. 289. 
9
 LEITE, Serafim, Historia da Companhia de Jesus no Brasil, Tomo 5, p. 94. 
7 
 
Isidoro da Fonseca, in 1747, exemplified the attitude of the Crown against printings during 
the Colonial Age
10
. While in Mexico, for example, editors acted since the first half of the 16
th
 
century (and they published even catechetical books on indigenous languages
11
), someone 
who had written a book in Portuguese America should print it in Portugal. The few printed 
sources found in this research were all edited in Portugal, but the majority of texts concerned 
about the particularities of Brazilian conscience cases were, by that time, manuscripts, and 
that happened especially because of the high costs of printing and, as related in some sources, 
by the difficulties in reviewing the originals. Even the thesis defended in the Jesuit colleges 
were printed in Portugal
12
, but, because of their reduced editions, they might have been 
destroyed during the expulsion of the Jesuits in 1760. 
Despite so many adverse elements, interesting literature related to the necessity of 
resolving conflicts in Portuguese America has been produced. The success of this literature 
was far distant from the success of books like Juan de Solórzano Pereira’s (1575-1655) De 
Indiarum Iure (1629) and Politica indiana (1647), Diego de Avendaño’s (1594-1688) 
Thesauro Indicus or José de Acosta’s (1540-1600) De promulgatione evangelii apud 
barbarous, sive de procuranda indorum salute (1589). From this literature, however, it is 
possible not only to prove the existence of a space where juridical and theological ideas 
circulated, but also to find relevant information about the cases of conscience that happened in 
Brazil. 
As I already pointed, many manuscripts produced during the 16
th
 until 18
th
 
centuries are now lost. Serafim Leite found references of the period about collections of cases 
by the Jesuits Manuel da Fonseca, Manuel Xavier Riberio and Jerónimo Moniz, all of which 
 
10
 HALLEWELL, Laurence. O livro no Brasil: sua história, p. 85-92. 
11
 According to the collection of the Count de la Vinaza, 30 works written in indigenous languages were printed 
on Mexico only between 1539 and 1560 (Andrea Daher, Os usos do tupi, p. 361-362). 
12
 LEITE, Serafim, Historia da Companhia de Jesus no Brasil, Tomo4, p. 269; Tomo 7, p. 209-210. 
8 
 
have disappeared
13
. On the other hand, the available sources are related to what I consider 
pragmatic literature: it includes texts directed to solve conflicts of juridical and theological 
relevance. The texts I will exam in the following include Synod decrees, commentaries to 
canon law and pastoral works (conversion dialogues, catechism, preaching, grammars, plays 
and poems)
14
. 
 
2 WORKS 
2.1 CONSTITUIÇÕES PRIMEIRAS DO ARCEBISPADO DA BAHIA (1707) 
Unlike Hispanic America, where diocesan synods and provincial councils took 
place since the first half of the 16
th
 century and particularly after the Council of Trent, in 
Portuguese America the only synod happened in 1707 in Salvador da Bahia. Despite the 
original intention of celebrating a provincial council, the Synod of Salvador, to which the 
Bishop of Angola, the clergymen of the Archbishopric and the Cathedral chapter’s 
prosecutors attended, had as its main consequence the approval of the First Constitutions of 
the Archbishopric of Bahia, entirely prepared by the Archbishop D. Sebastiao Monteiro da 
Vide, as he affirmed in the preface of the first edition
15
. There, the Archbishop da Vide, 
following the prescriptions of the Council of Trent, highlighted the necessity of specific rules 
to the areas, “considering that the Constitutions of Lisbon in many things could not be 
adapted to this so diverse region, and then some abuses result in divine cult, administration of 
justice, life and our subject’s customs”. Diocesan constitutions, in that sense, were a juridical-
 
13
 LEITE, Serafim, Historia da Companhia de Jesus no Brasil, Tomo 7, p. 182. 
14
 Marciano Vidal, among many others, considers the decrees oft the councils and pastoral theology, which 
includes catechisms, confessionals and preaching, as literary genders of moral theology. VIDAL Marciano. 
Historia de la teología moral, p. 286. 
15
 “whishing to satisfy our pastoral office, and with convenient remedies to avoid so great damages, we did and 
ordered new Constitutions and the Regiment of our Auditory” 
9 
 
pastoral instrument that regulated the life of clergy- and laymen in a diocese
16
, and the table 
of contents of each book clearly shows this detailed regulation. 
As I already explained in a specific paper about the First Constitutions
17
, the 
Archbishop da Vide had a solid knowledge on canon and civil law and theology, which can be 
perceived on what probably is the main singularity of this text in comparison with other 
Portuguese diocesan constitutions: a large number of quotations of jurists, canonists and 
theologians, as well as of the Holy Bible, in footnotes in all over the five books in which the 
First Constitutions were divided. In an introduction written by Bruno Feitler and Evergton 
Sales Souza to a 2010 edition of this work, it is possible to find the complete quoted 
bibliography
18
. In my text, I presented a full list of the authors used in Book 5 with their 
respective quantification. 
 
2.2 BRASILIA PONTIFICIA (1747) 
Brasilia Pontifica, by the Jesuit Priest Simão Marques, is a very uncommon 
(probably the only known) case of a commentary produced in Brazil and, more than that, 
dealing with a text that concerned Brazil. Following the scholastic model of the disputatio, 
with questions and answers, this book deals with a papal text of 22.02.1725 through which 
some pontifical faculties were granted to the bishops of Brazil. 
Comprising diverse themes, great part of the book was dedicated to dispensations 
of sacraments, particularly marriage, a very important topic in societies with a small 
population and a high number marriages inside the same families, not only among African 
 
16
 PAIVA, José Pedro. Constituições diocesanas. In: AZEVEDO, Carlo A. Moreira. Dicionário de História 
Religiosa de Portugal. Volume 2. Lisboa: Círculo de Leitores, 2000, p. 9 (p. 9-15) 
17
 Gustavo Cabral, Ius commune in Portuguese America: criminal issues on local Canon Law in the First 
Constitutions of the Diocese of Bahia (1707). Glossae – European Journal of Legal History, v. 13, 2016, p. 
307-327. 
18
 Bruno Feitler and Evergton Sales Souza, Introdução, p. 76-104. 
10 
 
and indigenous slaves, as the book pointed out, but also among free people. The casuist 
structure is evident in many parts, such as the Lib. 2, Disp. 5, Sectiones 1-9, where we can 
find real examples of dispensation petitions. However, in Lib. 4, Disp. 6, fasting and food 
restriction during the lent are the main theme, and the text discusses what should be 
understood as meal; as a result, some reptiles such as chameleon and iguana, probably part of 
the diet in many areas of Portuguese America that time, could be eaten without the necessity 
of an episcopal dispensation
19
. On the other hand, the possibility of eating eggs and dairy 
products (especially milk and butter), during the lent despite canonical prohibition, was based, 
according to the author, on the existence of a more than 10 years local costume that had 
abrogated the general prohibition
20
, in the similar way to what was defended in the Governo 
eclesiastico-pacífico de Gaspar de Villarroel. 
Among the quoted authors, there are jurists, canonists and theologians. There is a 
particularly strong presence of Indian authors like Solórzano Pereira and Diego de Avendaño. 
 
2.3 CULTURE AND OPULENCE IN BRAZIL AND ITS DRUGS, AND MINES (1711) 
Culture and opulence in Brazil, written by the Italian Jesuit André Joao Antonil 
(1649-1716), is a very useful source to understand some aspects of the social and economic 
reality of Brazil in the beginning of the 18
th
 century. It is a descriptive work about social life 
and not a specifically juridical text. However, the Chapter IX faces a juridical and moral 
dilemma regarding the nature of the obligation of paying taxes, in case those related to the 
mining activity (the so-called quinto, fifth). Antonil discussed whether fiscal obligations were 
 
19
 “Nomine carnis in jejunio prohibitae veniunt etiam cartilagines, nervis, & sanguis animalium, quorum caro 
prohibetur”. Simão Marques, Brasilia Pontifica, Lib. 4, Disput. 6, Sectio 3, 402, p. 417. 
20
 Simão Marques, Brasilia Pontifica, Lib. 4, Disput. 7, Sectio 7, 438-459, p. 423. 
11 
 
purely penal or had a moral element that would make them submitted to the matters of 
conscience. 
Quoting canonists and theologians, but also jurists, including the most known 
Portuguese jurists of the 17
th
 century, he stated that “the laws that impose the payment of 
taxes, even if they attribute a penalty, should not be called and are doubtless not purely penal, 
but dispositive and moral”
21
, with an explicit reference to Francisco Suárez’s De legibus ac 
Deo legislatore. And then: “it is a dispositive and moral law and enforces in conscience 
before the judge’s decision. (…) and even if the law would not have imposed a penalty to its 
transgressors, they always should pay these fifths, because they are an intrinsic obligation and 
the existence of a penalty is based on the facilitation of the charging and not on the making of 
purely criminal law”
22
. 
The list of quoted authors in the chapter reveals a strong presence of theologians, 
but also of jurists and, among them, authors of Indian works like Solórzano Pereira and Diego 
de Avendaño. 
 
2.4 APOLOGIA PRO PAULISTAS (1694) 
In 1639, the papal brief Comissum nobis excommunicated the population of Sao 
Paulo because of their insistence in enslaving indigenous people – another episode of the 
disagreement between the Crown, the Church, the Society of Jesus and local population about 
the indigenous slavery in the 17
th
 century. According tothis brief, the “paulistas” could not 
receive the sacraments while the excommunication lasted. The Apologia pro paulistas is a 
 
21
 ANTONIL, André Joao. Cultura e opulência no Brasil e suas drogas, e minas. Lisboa: Dislandesiana, 1711, 
p. 153. 
22
 ANTONIL, André Joao, p. 154-155. 
12 
 
defense of that people, asking for the penalty’s revocation. The manuscript’s authorship, 
which was published only in 2009, is not yet confirmed
23
. 
The arguments in favor of the revocation are interesting because they demonstrate 
a deep and, at the same time, original and radical interpretation of Francisco Suárez’s theory 
of legislation, as pointed by Carlos Alberto Zeron. The Portuguese laws of 1609 and 1611, 
which prohibited the indigenous slavery in Portuguese America, were not approved in the 
“Reign” of Sao Paulo
24
 because they were unfair due to the local particularities, and this 
custom against the law was enough to remove the enforcement of these acts in the territory of 
the Captaincy of Sao Vicente. So the “paulistas” did not need to obey unfair laws to their 
necessities – and, according to the text, the indigenous slavery was not only fair, but also 
necessary in that context. These arguments were based on a lot of quotations of jurists, 
canonists and especially theologians – Francisco Suárez, Paul Laymann, Tomás Sánchez and 
Antonino Diana were the ones mostly used. 
 
2.5 SENTENTIAE CIRCA RESOLUTIONEM ALIQUORUM CASUM, QUI IN BRASILIA FREQUENTER 
ACCURUNT 
This manuscript, not yet published in its integrality, is particularly important to 
understand the cases of conscience that happened in Brazil in the second half of the 16
th
 
century. As the missioners were facing situations far distant from what they were used to, 
doubts about how to proceed morally appeared and they submitted to more experienced 
priests in Portuguese America and even in Europe, including to professors in Coimbra. Some 
 
23
 Because of the absence of signature, nobody knows exactly who is the author of the manuscript. Most of 
historians credited to the priests Jacob Roland or Domingos Ramos, but, in a recent study, Carlos Alberto Zeron 
refuted both possibilities. ZERON, Carlos Alberto de M. R. Interpretações de Francisco Suárez na Apologia pro 
paulistis (1684), p. 114. 
24
 “integri Paulistæi huius Regni incolarum. Regni dico: quid ni enim dixerim regnum, quod in longum ad 160 et 
amplius milliaria nostratia excurrit; et in latum vel ad Hispanorum orbis Americani Usq ditionum”. Apologia pro 
paulistis (1694). Clio – Série Revista de Pesquisa Histórica, n. 27, v. 1, 2009, p. 363. 
13 
 
resolutions were archived in the colleges’ library, and this Sententiae circa resolutionem 
survived the expulsion of the Jesuits. Five questions about the lawfulness of some conducts 
were submitted: charging more in credit sales than in cash; confession by the slaves about 
their incapacity of speaking Portuguese; a general absolution in cases of shipwreck; 
Portuguese with “fair” titles selling slaves; and omissions, by the priests, of the banns to the 
marriages. The most interesting point about this manuscript concerns the active role of names 
like Luís de Molina and Martín de Azpilcueta in the resolution of these doubts. They were 
directly consulted, and their opinions seemed to be crucial to the cases submitted, especially 
Molina’s theory of the fair slavery, that might be founded in a fair war, commutation of a 
death penalty, self alienation in extreme necessity and birth
25
. 
 
2.6 IF THE FATHER COULD SELL HIS SON AND IF SOMEONE COULD SELL HIMSELF (1567) 
If the father could sell his son and if someone could sell himself is a classical 
responsa, a usual gender of juridical literature in the Late Middle Ages by which a question 
was answered by a specialist. In this case, the Jesuit priest Quirício Caxa questioned the 
Provincial priest Manuel da Nóbrega (1517-1570) about the two situations of the title, which 
were very common among Brazilian indigenous people. Nóbrega took that hypothesis to be 
both possible and not against natural law, and held that “one can sell himself because 
everyone is the lord of his own liberty, which can be estimated and, as it is not forbidden by 
any right, can also be alienated and sold”
26
. About the second situation, Nóbrega recognized 
that there were two conflicting natural laws, and the strongest should prevail: “then, the 
natural law that orders the conservation of life prevail over the other natural law of conserving 
 
25
 MOLINA, Luís. De justitia et jure opera omnia. Coloniae Allobrogum : Marci Michaelis Bousquet, 1733, p. 
87-91 (Tit 1, Disp XXXIII). 
26
 NÓBREGA, Manuel da. Cartas do Brasil e mais escritos (opera omnia), p. 402-403. 
14 
 
the liberty”
27
. Only in cases of extreme necessity, natural law allowed the father to sell his 
son
28
. Nóbrega’s opinion on indigenous slavery was at the same time critical but somehow 
tolerant, following the opinions of the theologians (especially Azpilcueta and Soto) that 
admitted the slavery in exceptional situations. 
This text is probably the best one of its gender among those produced and still 
conserved, not only by formal (including medieval model of the responsa and the scholastic 
structure) but also by material reasons, because it dealt with problems that were particularly 
related the American reality – notwithstanding the use of common law and theologian authors 
to ground Nóbrega’s opinion, another typical element of this context. Among the most quoted 
authors, we can see Azpilcueta, Soto, Thomas Aquinas, Cardinal Caietanus and Abbas 
Panormitano. 
 
FINAL WORDS: A RESEARCH AGENDA? 
As final comments, I must reinforce the relevance of the pragmatic literature in 
the specific period analyzed by this work. In a space where the royal power was not always 
present, the role of the ecclesiastical authorities was even stronger in the regulation of social 
life. These written sources are important to understand in a material sense how the specific 
cases of conscience were resolved, but they also are a valuable indication that there was a 
circulation of juridical and theological books in the Portuguese America. This led to the 
production of texts in many literary genders. Conflicts always demand resolutions, and the 
pragmatic literature, both the literature used in Brazil and the literature that was specifically 
produced to provide solutions, were a remarkable instrument. 
 
27
 NÓBREGA, Manuel da, Cartas do Brasil e mais escritos (opera omnia), p. 419. 
28
 NÓBREGA, Manuel da, Cartas do Brasil e mais escritos (opera omnia), p. 411-412. 
15 
 
Notwithstanding, there are more questions than answers. It is hard to evaluate the 
real influence of moral theology on the ordinary colonial life. Among the people who attended 
to the classes and, probably, those who lived in areas where both secular and regular 
clergymen acted, as well as in the mission areas, the influence is presumably high, but there 
were huge areas not covered by the Church. On the other hand, the relations between the 
people and the religious men was not always friendly, especially regarding the slavery of 
indigenous people. Among the sources, there are still many things to do: despite the 
destruction of the archives of the Society of Jesus in virtue of the great expulsion in 1760, it is 
possible that some documents considered lost by the literature could be found in places like 
Évora Public Library. If, for example, some of the thesis defended in the colleges or other 
responsa to cases of conscience would be found, we could better understand some of the 
points that I highlighted here.