Desembargo do Paço

This court became independent from the Royal Court at the beginning of the sixteenth century, with legislation incorporated into the Ordenações Manuelinas¹Subtil, 2011, p. 33..

The Desembargo do Paço was abolished by a decree of 3 August 1833, which established the transfer of its competencies to the Secretaries of State (for matters related to favours, or graces) and to the various judiciaries of the kingdom (for the administration of justice)²Ed. Chronica Constitucional, 1833, nº 12, p. 51..

• Regimento sobre as quantias a pagar para obter carta de perdão, dated 18 June 1517³Duarte, 1993, vol. 3, p. 215-225, with the provision on the commitments of the chantries  in  p. 225.;
• Ordenações Manuelinas (1521), without specific provisions related to entails⁴OM, bk. 1, tit. 3, §1-25.;
• Regimento dos Desembargadores do Paço, dated 2 November 1564, with a provision on entails⁵Ed. Lião, 1569, ff. 9-19v, with the specific provision on entailed estates in  f. 17v.;
• Statute (regimento) of 27 July 1582 annexed to the Ordenações Filipinas (c. 1604), which restores the provision of the Regimento dos Desembargadores do Paço(1564)⁶OF, bk. 1, additions §1-123, additions §39.;
• Royal letter of 30 October 1641 in which the tribunal’s prerogatives regarding the processing of petitions, the revision of sentences, and the granting of licences and pardons were extended⁷Subtil, 2011, p. 33..

General

From the end of the medieval period, the desembargadores do Paço specialised in the preparation and assessment of cases relating to “grace” in matters of justice, on which they advised the monarch²²OM, bk. 1, tit. 3, prologue.. Given its proximity to the king, the Desembargo do Paço had competences that were generally ascribed to the monarch and denied to royal tribunals, such as the dispensation of laws and the passage of its provisions by the Chancellery (the latter from the beginning of the eighteenth century)²³Hespanha, 1982, p. 358; Subtil, 1992, p. 172., in addition to its power to review sentences and grant royal pardons for a variety of crimes defined in the course of the sixteenth and seventeenth centuries in orders, laws, and royal letters²⁴See the list of legislation on the subject in Subtil, 2011, p. 33-34..

The Ordenações Filipinas maintained the tribunal’s authority relative to the dispatch of petitions for “grace” linked to Justice, while at the same time removing its magistrates from the concession of privileges, honours, and offices, as well as the handling of matters related to the Treasury and Justice²⁵Hespanha, 1982, p. 358.. The Desembargo do Paço also participated in the appointment process of municipal officials and officers of justice²⁶Testos, 2016, p. 111., as well as in the resolution of issues raised by the chancellor regarding letters drawn up by other central administrative bodies²⁷Hespanha, 1982, p. 361.. Jurisdictional problems between the Casa do Cível and Suplicação were also resolved by the magistrates of this court²⁸Hespanha, 1982, p. 364..

On entails

The Desembargo do Paço was licensed by the king to take cognizance of letters regarding the establishment of chantries²⁹By the  Regimento sobre as quantias a pagar para obter carta de perdão, 18 July 1517 (ed. Duarte, 1993, vol. 3, p. 225)., although the Regimento do Desembargo do Paço (1564) prohibited its desembargadores from authorizing petitions for the exchange and barter of some assets and properties linked to morgados, chantries, hospitals, and hostels by their respective administrators³⁰Ed. Lião, 1569, f. 17v.. The Regimento of 1582 altered this disposition by granting authority to these magistrates to exchange the properties of chantries and morgados, as long as there was a previous “information of Justice” and that this exchange was made for the benefit of the pious institutions in question³¹OF, bk. 1, additions, §109..

This court also participated in the regulation of property rights and the right of inheritance in the last third of the eighteenth century, its authorisation being required (after consultation with the king) for the establishment of chantries endowed in cash (which were not prohibited by the law of 1769)³²Subtil, 2011, p. 377. and for the excision of chantries and “insignificant” morgadios decreed in 1770³³Ed.  Collecção das leys, 1790,  t. 3, p. 1-11 (own numbering).. The request for excision was made to the Desembargo do Paço by the respective administrators, and the tribunal discharged the petition after information had been provided by the provedores of the districts (comarcas)³⁴This request originated the issuing of a provision by the latter to the provedor da Comarca to take the necessary steps (records of the enquiry of the institutor and/or administrator; certificate of the evaluation of the assets), which, once sent to the institution, justified the drawing up of a provision for the extinction of the entail (Subtil, 2011, p. 379-389)..

In the processing of claims (denuncias) on entailed institutions belonging to the Crown, the Desembargo do Paço was responsible for verifying ownership through an examination of the documents presented by the complainant (alvará de denúncia and sentence), this being a pre-requisite for the issue of the respective letter of administration, the order for which was forwarded by the said Desembargo to the royal chancery (see subheading 5)³⁵In the light of the regiment of 23 May 1775, on the process of denunciation of vacant chantries and their incorporation into the Crown (Ed. Silva, Colecção da Legislação, 1830-1840, t. 3, p. 35-42)..

Institutional organisation

The Desembargo do Paço was presided over by the king until the second half of the seventeenth century⁴¹Hespanha, 1982, p. 357. and functioned with large nuclei⁴²Characterised in Subtil, 2011, p. 44-47, study that in the main source for the following lines..

1. The Mesa dos Desembargadores (Council), constituted, as its name indicates, by all the judges to deal collectively with cases by way of consultation.
2. Repartição das Justiças e do Despacho da Mesa, responsible for the handling of cases subject to consultation, the administration of justice throughout the kingdom, and in charge of access and career advancement of royal officials.
3. Repartição das Comarcas, responsible for matters related to the municipalities and the provincial royal officialdom, comprising the Secretariats of the Court, Estremadura, and the Islands; Beira, Alentejo, and Algarve; Minho and Trás-os-Montes and, from the end of the eighteenth century, with the addition of the secretariat of the Revisão dos Livros. These different departments were responsible for the regular dispatch of matters relating to the institution and extinction of chantries in the eighteenth century. The previous existence of the Secretariat of the Books, with competence in these matters, should be noted, as can be deduced from a royal letter of 17 March 1621.

The roles of its agents

The magistrates of the Desembargo do Paço would hear petitions from the administrators of morgadios, chantries, hospitals, and hostels⁴³As stated in his Regimento of 2 November 1564, then appended  to Ordenações Filipinas (Lião, 1569, f. 17v; OF, bk. 1, additions, §39), being also called upon to pronounce on the suitability of a future official, as in the case of a solicitor of the records of the chantries⁴⁴By letter dated 29 September 1618, transcribed in the Livro de Petições e cartas remetidas ao Desembargo do Paço por correspondência 5 (TT, Desembargo do Paço, Repartição da Justiça e Despacho da Mesa, bk. 5, f. 264).. These assessments were requested by the monarch, to which the judges had to respond in the form of a consulta.

The lack of autonomy of the desembargadores with regard to entails was even recognised by the Crown: the latter considered the provisions of vacant Crown chantries and licences for the sale of morgadio assets granted by the magistrates as an alienation of the king’s rights⁴⁵Royal charters of 1 June 1606 and 2 June 1638, ed. Silva, Collecção Chronologica, 1854-1859, vol. 1, p. 166-167; vol. 5, p. 151..

By virtue of their competence in managing the provisions of the royal officials, the desembargadores do Paço were responsible for verifying the residences of the provincial royal officials with authority in matters related to entails, such as the provedores⁴⁶Hespanha, 1982, p. 363.. The Regimento attached to the Ordenações Filipinas granted them authority to summons the latter⁴⁷OF, bk. 1, additions, §46..