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STATEMENT OF THE CASE OF DONNA MARIA DA GLORIA, AS A CLAIMANT TO THE CROWN OF PORTUGAL. * - Sir James Mackintosh, The Miscellaneous Works 
The Miscellaneous Works. Three Volumes, complete in One. (New York: D. Appleton & Co., 1871).
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STATEMENT OF THE CASE OF DONNA MARIA DA GLORIA, AS A CLAIMANT TO THE CROWN OF PORTUGAL.*
Before the usurpation of Portugal by Philip II. of Spain in 1580, the Portuguese nation, though brilliantly distinguished in arts and arms, and as a commercial and maritime power, in some measure filling up the interval between the decline of Venice and the rise of Holland, had not yet taken a place in the political system of Europe. From the restoration of her independence under the House of Braganza in 1640, to the peace of Utrecht, Spain was her dangerous enemy, and France, the political opponent of Spain, was her natural protector. Her relation to France was reversed as soon as a Bourbon King was seated on the throne of Spain. From that moment the union of the two Bourbon monarchies gave her a neighbour far more formidable than the Austrian princes who had slumbered for near a century at the Escurial. It became absolutely necessary for her safety that she should strengthen herself against this constantly threatening danger by an alliance, which, being founded in a common and permanent interest, might be solid and durable. England, the political antagonist of France, whose safety would be endangered by every aggrandizement of the House of Bourbon, and who had the power of rapidly succouring Portugal, without the means of oppressing her independence, was evidently the only state from which friendship and aid, at once effectual, safe, and lasting, could be expected:—hence the alliance between England and Portugal, and the union, closer than can be created by written stipulations, between these two countries.
The peril, however, was suspended during forty years of the dissolute and unambitious government of Louis XV. till the year 1761, when, by the treaty known under the name of the ‘Family Compact,’ the Duc de Choiseul may be justly said (to borrow the language of Roman ambition) to have reduced Spain to the form of a province. A separate and secret convention was executed on the same day (15th of August), by which it was agreed, that if England did not make peace with France by the 1st of May, 1762, Spain should then declare war against the former power. The sixth article fully disclosed the magnitude of the danger which, from that moment to this, has hung over the head of Portugal. His Most Faithful Majesty was to be desired to accede to the convention; “it not being just,” in the judgment of these royal jurists, “that he should remain a tranquil spectator of the disputes of the two Courts with England, and continue to enrich the enemies of the two Sovereigns, by keeping his ports open to them.” The King of Portugal refused to purchase a temporary exemption from attack by a surrender of his independence. The French and Spanish Ministers declared, “that the Portuguese alliance with England, though called ‘defensive,’ became in reality offensive, from the situation of the Portuguese dominions, and from the nature of the English power.”* A war ensued,—being probably the first ever waged against a country, on the avowed ground of its geographical position. It was terminated by the Treaty of Paris in 1763, without, however, any proposition on the part of France and Spain that Portugal should be cut away from the Continent, and towed into the neighbourhood of Madeira,—where perhaps she might re-enter on her right as an independent state to observe neutrality, and to provide for her security by defensive alliances. This most barefaced act of injustice might be passed over here in silence, if it did not so strongly illustrate the situation of Portugal, since Spain became a dependent ally of France; and if we could resist the temptation of the occasion to ask whether the authors of such a war were as much less ambitious than Napoleon, as they were beneath him in valour and genius.
In the American war, it does not appear that any attempt was made, on principles of geography, to compel Portugal to make war on England.† The example of the Family Compact, however, was not long barren. As soon as the French Republic had re-established the ascendant of France at Madrid, they determined to show that they inherited the principles as well as the sceptre of their monarchs. Portugal, now overpowered, was compelled to cede Olivenza to Spain, and to shut her ports on English ships.‡ Thus terminated the second war made against her to oblige her to renounce the only ally capable of assisting her, and constantly interested in her preservation. But these compulsory treaties were of little practical importance, being immediately followed by the Peace of Amiens. They only furnished a new proof that the insecurity of Portugal essentially arose from the dependence of Spain on France, and could not be lessened by any change in the government of the latter country.
When the war, or rather wars, against universal monarchy broke out, the Regent of Portugal declared the neutrality of his dominions.* For four years he was indulged in the exercise of this right of an independent prince, in spite of the geographical position of the kingdom. At the end of that period the ‘geographical principle’ was enforced against him more fully and vigorously than on the former instances of its application. The Portuguese monarchy was confiscated and partitioned in a secret convention between France and Spain, executed at Fontainebleau on the 27th of October, 1807, by which considerable parts of its continental territory were granted to the Prince of the Peace, and to the Spanish Princess, then called Queen of Etruria, in sovereignty, but as feudatories of the crown of Spain.† A French army under Junot marched against Portugal, and the Royal Family were compelled, in November following, to embark for Brazil; a measure which was strongly suggested by the constant insecurity to which European Portugal was doomed by the Family Compact, and which had been seriously entertained by the Government since the treaty of Badajoz.
The events which followed in the Spanish Peninsula are too memorable to be more than alluded to. Portugal was governed by a Regency nominated by the King. The people caught the generous spirit of the Spaniards, took up arms against the conquerors, and bravely aided the English army to expel them. The army, delivered from those unworthy leaders to whom the abuses of despotism had subjected them, took an ample share in the glorious march from Torres Vedras to Toulouse, which forms one of the most brilliant pages in history.
The King opened the ports of his American territories to all nations;—a measure in him of immediate necessity, but fraught with momentous consequences. He cemented his ancient relations with Great Britain (which geography no longer forbade) by new treaties; and he bestowed on Brazil a separate administration, with the title of a kingdom. The course of events in the spring of 1814 had been so rapid, that there was no minister in Europe authorized to represent the Court of Rio Janeiro at the Treaty of Paris: but so close was the alliance with England then deemed, that Lord Castlereagh took it upon him, on the part of Portugal, to stipulate for the restoration of French Guiana, which had been conquered by the Portuguese arms. At the Congress of Vienna in the following year, the Portuguese plenipotentiaries protested against the validity of this restoration, and required the retrocession of Olivenza, which had been wrested from them at Badajoz, in a war in which they had been the allies of England. The good offices of the European powers to obtain this last restoration were then solemnly promised, but have hitherto been in vain.
In 1816, John VI. refused to return to Lisbon, though a squadron under Sir John Beresford had been sent to convey him thither; partly because he was displeased at the disregard of his rights, shown by the Congress of Vienna; partly because the unpopularity of the Commercial Treaty had alienated him from England; but probably still more, because he was influenced by the visible growth of a Brazilian party which now aimed at independence. Henceforward, indeed, the separation manifestly approached. The Portuguese of Europe began to despair of seeing the seat of the monarchy at Lisbon; the Regency were without strength; all appointments were obtained from the distant Court of Rio Janeiro; men and money were drawn away for the Brazilian war on the Rio de la Plata; the army left behind was unpaid: in fine, all the materials of formidable discontent were heaped up in Portugal, when, in the beginning of 1820, the Spanish Revolution broke out. Six months elapsed without a spark having fallen in Portugal. Marshal Beresford went to Rio Janeiro to solicit the interference of the King: but that Prince made no effort to prevent the conflagration; and perhaps no precaution would then have been effectual.
In August, the garrison of Oporto declared for a revolution; and being joined on their march to the Capital by all the troops on their line, were received with open arms by the garrison of Lisbon. It was destined to bestow on Portugal a still more popular constitution than that of Spain. With what prudence or justice the measures of the popular leaders in the south of Europe were conceived or conducted, it is happily no part of our present business to inquire. Those who openly remonstrated against their errors when they seemed to be triumphant, are under no temptation to join the vulgar cry against the fallen. The people of Portugal, indeed, unless guided by a wise and vigorous Government, were destined by the very nature of things, in any political change made at that moment, to follow the course of Spain. The Regency of Lisbon, by the advice of a Portuguese Minister,* at once faithful to his Sovereign, and friendly to the liberty of his country, made an attempt to stem the torrent, by summoning an assembly of the Cortes. The attempt was too late; but it pointed to the only means of saving the monarchy.
The same Minister, on his arrival in Brazil, at the end of the year, advised the King to send his eldest son to Portugal as Viceroy, with a constitutional charter; recommending also the assembling of the most respectable Brazilians at Rio Janeiro, to consider of the improvements which seemed practicable in Brazil. But while these honest, and not unpromising counsels, were the objects of longer discussions than troublous times allow, a revolution broke out in Brazil, in the spring of 1821, the first professed object of which was, not the separation of that country, but the adoption of the Portuguese Constitution. It was acquiesced in by the King, and espoused with the warmth of youth, by his eldest son Don Pedro. But in April, the King, disquieted by the commotions which encompassed him, determined to return to Lisbon, and to leave the conduct of the American revolution to his son. Even on the voyage he was advised to stop at the Azores, as a place where he might negotiate with more independence: but he rejected this counsel; and on his arrival in the Tagus, on the 3d of July, nothing remained but a surrender at discretion. The revolutionary Cortes were as tenacious of the authority of the mother country, as the Royal Administration; and they accordingly recalled the Heir-apparent to Lisbon. But the spirit of independence arose among the Brazilians, who, encouraged by the example of the Spanish-Americans, presented addresses to the Prince, beseeching him not to yield to the demands of the Portuguese Assembly, who desired to make him a prisoner, as they had made his father; but, by assuming the crown of Brazil, to provide for his own safety, as well as for their liberty. In truth it is evident, that he neither could have continued in Brazil without acceding to the popular desire, nor could have then left it without insuring the destruction of monarchy in that country. He acquiesced therefore in the prayer of these flattering petitions: the independence of Brazil was proclaimed; and the Portuguese monarchy was finally dismembered.
In the summer of 1823, the advance of the French army into Spain, excited a revolt of the Portuguese Royalists. The infant Don Miguel, the King’s second son, attracted notice, by appearing at the head of a battalion who declared against the Constitution; and the inconstant soldiery, equally ignorant of the object of their revolts against the King or the Cortes, were easily induced to overthrow the slight work of their own hands. Even in the moment of victory, however, John VI. solemnly promised a free government to the Portuguese nation.* A few weeks afterwards, he gave a more deliberate and decisive proof of what was then thought necessary for the security of the throne, and the well-being of the people, by a Royal Decree,† which, after pronouncing the nullity of the constitution of the Cortes, proceeds as follows:—“Conformably to my feelings, and the sincere promises of my Proclamations, and considering that the ancient fundamental laws of the monarchy cannot entirely answer my paternal purposes, without being accommodated to the present state of civilization, to the mutual relations of the different parts which compose the monarchy, and to the form of representative governments established in Europe, I have appointed a Junta to prepare the plan of a charter of the fundamental laws of the Portuguese monarchy, which shall be founded on the principles of public law, and open the way to a progressive reformation of the administration.”
Count Palmella was appointed President of this Junta, composed of the most distinguished men in the kingdom. They completed their work in a few months; and presented to the King the plan of a Constitutional Charter, almost exactly the same with that granted in 1826 by Don Pedro. John VI. was favourable to it, considering it as an adaptation of the ancient fundamental laws to present circumstances. While the revolution was triumphant, the more reasonable Royalists regretted that no attempt had been made to avoid it by timely concession; and in the first moment of escape, the remains of the same feelings disposed the Court to concede something. But after a short interval of quiet, the possessors of authority relapsed into the ancient and fatal error of their kind,—that of placing their security in maintaining the unbounded power which had proved their ruin. A resistance to the form of the constitution, which grew up in the interior of the Court, was fostered by foreign influence, and after a struggle of some months, prevented the promulgation of the charter.
In April 1824, events occurred at Lisbon, on which we shall touch as lightly as possible. It is well known that part of the garrison of Lisbon surrounded the King’s palace, and hindered the access of his servants to him; that some of his ministers were imprisoned; that the diplomatic body, including the Papal Nuncio, the French Ambassador, and the Russian as well as English Ministers, were the means of restoring him to some degree of liberty, which was however so imperfect and insecure, that, by the advice of the French Ambassador, the King took refuge on board an English ship of war lying in the Tagus, from whence he was at length able to assert his dignity and re-establish his authority. Over the part in these transactions, into which evil counsellors betrayed the inexperience of Don Miguel, it is peculiarly proper to throw a veil, in imitation of his father, who forgave these youthful faults as ‘involuntary errors.’ This proof of the unsettled state of the general opinion and feeling respecting the government, suggested the necessity of a conciliatory measure, which might in some measure compensate for the defeat of the Constitutional Charter in the preceding year. The Minister who, both in Europe and in America, had attempted to avert revolution by reform, was not wanting to his sovereign and his country at this crisis. Still counteracted by foreign influence, and opposed by a colleague who was a personal favourite of the King, he could not again propose the Charter, not even obtain so good a substitute for it as he desired: but he had the merit of being always ready to do the best practicable. By his counsel, the King issued a Proclamation on the 4th of June, for restoring the ancien, constitution of the Portuguese monarchy, with assurances that an assembly of the Cortes, or Three Estates of the Realm, should be speedily held with all their legal rights, and especially with the privilege of laying before the King, for his consideration, the heads of such measures as they might deem necessary for the public good. To that assembly was referred the consideration of the periodical meetings of succeeding Cortes, and ‘the means of progressively ameliorating the administration of the state.’ The proclamation treats this re-establishment of the ancient constitution as being substantially the same with the Constitutional Charter drawn up by the Junta in the preceding year; and it was accordingly followed by a Decree, dissolving that Junta, as having performed its office. Though these representations were not scrupulously true, yet when we come to see what the rights of the Cortes were in ancient times, the language of the Proclamation will not be found to deviate more widely into falsehood than is usual in the preambles of Acts of State. Had the time for the convocation of the Cortes been fixed, the restoration of the ancient constitution might, without much exaggeration, have been called the establishment of liberty. For this point the Marquis Palmella made a struggle: but the King thought that he had done enough, in granting such a pledge to the Constitutionalists, and was willing to soothe the Absolutists, by reserving to himself the choice of a time. On the next day he created a Junta, to prepare, ‘without loss of time,’ the regulations necessary ‘for the convocation of the Cortes, and for the election of the members.’ As a new proof of the growing conviction that a free constitution was necessary, and as a solemn promise that it should be established, the Declaration of the 4th of June is by no means inferior in force to its predecessors. Nay, in that light, it may be considered as deriving additional strength from those appearances of reserve and reluctance which distinguish it from the more ingenious, and really more politic Declarations of 1823. But its grand defect was of a practical nature, and consisted in the opportunity which indefinite delay affords, for evading the performance of a promise.
Immediately after the counter-revolution in 1823, John VI. had sent a mission to Rio Janeiro, requiring the submission of his son and his Brazilian subjects. But whatever might be the wishes of Don Pedro, he had no longer the power to transfer the allegiance of a people who had tasted independence,—who were full of the pride of their new acquisition,—who valued it as their only security against the old monopoly, and who may well be excused for thinking it more advantageous to name at home the officers of their own government, than to receive rulers and magistrates from the intrigues of courtiers at Lisbon. Don Pedro could not restore to Portugal her American empire; but he might easily lose Brazil in the attempt. A negotiation was opened at London, in the year 1825, under the mediation of Austria and England. The differences between the two branches of the House of Braganza were, it must be admitted, peculiarly untractable. Portugal was to surrender her sovereignty, or Brazil to resign her independence. Union, on equal terms, was equally objected to by both. It was evident that no amicable issue of such a negotiation was possible, which did not involve acquiescence in the separation; and the very act of undertaking the mediation, sufficiently evinced that this event was contemplated by the mediating Powers. The Portuguese minister in London, Count Villa-Real, presented projects which seemed to contain every concession short of independence: but the Brazilian deputies who, though not admitted to the conference, had an unofficial intercourse with the British Ministers, declared, as might be expected, that nothing short of independence could be listened to. It was agreed, therefore, that Sir Charles Stuart, who was then about to go to Rio Janeiro to negotiate a treaty between England and Brazil, should take Lisbon on his way, and endeavour to dispose the Portuguese Government to consent to a sacrifice which could no longer be avoided. He was formally permitted by his own Government to accept the office of Minister Plenipotentiary from Portugal to Brazil, if it should be proposed to him at Lisbon. Certainly no man could be more fitted for this delicate mediation, both by his extraordinary knowledge of the ancient constitution of Portugal, and by the general confidence which he had gained while a minister of the Regency during the latter years of the war. After a series of conferences with the Count de Porto Santo, Minister for Foreign Affairs, which continued from the 5th of April to the 23d of May, and in the course of which two points were considered as equally understood,—that John VI. should cede to Don Pedro the sovereignty of Brazil, and that Don Pedro should preserve his undisputed right as heir of Portugal,—he set sail for Rio Janeiro, furnished with full powers, as well as instructions, and more especially with Royal Letters-Patent of John VI., to be delivered on the conclusion of an amicable arrangement, containing the following important and decisive clause:—“And as the succession of the Imperial and Royal Crowns belongs to my beloved son Don Pedro, I do, by these Letters-Patent, cede and transfer to him the full exercise of sovereignty in the empire of Brazil, which is to be governed by him; nominating him Emperor of Brazil, and Prince Royal of Portugal and the Algarves.”
A treaty was concluded on the 29th of August, by Sir Charles Stuart, recognising the independence and separation of Brazil; acknowledging the sovereignty of that country to be vested in Don Pedro; allowing the King of Portugal also to assume the Imperial title; binding the Emperor of Brazil to reject the offer of any Portuguese colony to be incorporated with his dominions; and containing some other stipulations usual in treaties of peace. It was ratified at Lisbon, on the 5th of November following, by Letters-Patent,* from which, at the risk of some repetition, it is necessary to extract two clauses, the decisive importance of which will be shortly seen. “I have ceded and transferred to my beloved son Don Pedro de Alcantara, heir and successor of these kingdoms, all my rights over that country, recognising its independence with the title of empire.” “We recognise our said son Don Pedro de Alcantara, Prince of Portugal and the Algarves, as Emperor, and having the exercise of sovereignty in the whole empire.”
The part of this proceeding which is intended to preserve the right of succession to the crown of Portugal to Don Pedro, is strictly conformable to diplomatic usage, and to the principles of the law of nations. Whatever relates to the cession of a claim is the proper subject of agreement between the parties, and is therefore inserted in the treaty. The King of Portugal, the former Sovereign of Brazil, cedes his rights or pretensions in that country to his son. He releases all his former subjects from their allegiance. He abandons those claims which alone could give him any colour or pretext for interfering in the internal affairs of that vast region. Nothing could have done this effectually, solemnly, and notoriously, but the express stipulation of a treaty. Had Don Pedro therefore been at the same time understood to renounce his right of succession to the crown of Portugal, an explicit stipulation in the treaty to that effect would have been necessary: for such a renunciation would have been the cession of a right. Had it even been understood, that the recognition of his authority as an independent monarch implied the abdication of his rights as heir-apparent to the Portuguese crown, it would have been consonant to the general tenor of the treaty, explicitly to recognise this abdication. The silence of the treaty is a proof that none of the parties to it considered these rights as taken away or impaired, by any previous or concomitant circumstance. Stipulations were necessary when the state of regal rights was to be altered; but they would be at least impertinent where it remained unchanged. Silence is in the latter case sufficient; since, where nothing is to be done, nothing needs be said. There is no stipulation in the treaty, by which Don Pedro acknowledges the sovereignty of his father in Portugal; because that sovereignty is left in the same condition in which it was before. For the very same reason the treaty has no article for the preservation of Don Pedro’s right of succession to Portugal. Had Don Pedro required a stipulation in the treaty for the maintenance of these rights, he would have done an act which would have tended more to bring them into question, than to strengthen them. As they were rights which John VI. could not take away, it was fit and wise to treat them also as rights which no act of his could bestow or confirm.
But though a provision for the preservation of these rights in the treaty was needless, and would have been altogether misplaced, there were occasions on which the recognition of them was fit, and, as a matter of abundant caution, expedient. These occasions are accordingly not passed over. The King of Portugal styles Don Pedro the heir of Portugal, both in the first Letters-Patent, addressed to his Brazilian subjects, in which he recognises the independence of Brazil, and in the second, addressed to his Portuguese subjects, where he ratifies the treaty which definitively established that independence. Acknowledged to be the monarch, and for the time the lawgiver of Portugal, and necessarily in these acts, claiming the same authority in Brazil, he announces to the people of both countries that the right of his eldest son to inherit the crown was, in November 1825, inviolate, unimpaired, unquestioned.
The ratifications are, besides, a portion of the treaty; and when they are exchanged, they become as much articles of agreement between the parties, as any part of it which bears that name. The recognition repeated in this Ratification proceeded from John VI., and was accepted by Don Pedro. Nothing but express words could have taken away so important a right as that of succession to the crown: in this case, there are express words which recognise it. Though it has been shown that silence would have been sufficient, the same conclusion would unanswerably follow, if the premises were far more scanty. The law of nations has no established forms, a deviation from which is fatal to the validity of the trasactions to which they are appropriated. It admits no merely technical objections to conventions formed under its authority, and is bound by no positive rules in the interpretation of them. Wherever the intention of contracting parties is plain, it is the sole interpreter of a contract. Now, it is needless to say that, in the Treaty of Rio Janeiro, taken with the preceding and following Letters-Patent, the manifest intention of John VI. was not to impair, but to recognise the rights of his eldest son to the inheritance of Portugal.
On the 10th of March 1826, John VI. died at Lisbon. On his death-bed, however, he had made provision for the temporary administration of the government. By a Royal Decree, of the 6th,* he committed the government to his daughter, the Infanta Donna Isabella Maria, assisted by a council during his illness, or, in the event of his death, till “the legitimate heir and successor to the crown should make other provision in this respect.” These words have no ambiguity. In every hereditary monarchy they must naturally, and almost necessarily, denote the eldest son of the King, when he leaves a son. It would, in such a case, require the strongest evidence to warrant the application of them to any other person. It is clear that the King must have had an individual in view, unless we adopt the most extravagant supposition that, as a dying bequest to his subjects, he meant to leave them a disputed succession and a civil war. Who could that individual be, but Don Pedro, his eldest son, whom, according to the ancient order of succession to the crown of Portugal, he had himself called “heir and successor,” on the 13th of May and 5th of November preceding. Such, accordingly, was the conviction, and the correspondent conduct of all whose rights or interests were concerned. The Regency was immediately installed, and universally obeyed at home, as well as acknowledged, without hesitation or delay, by all the Powers of Europe. The Princess Regent acted in the name, and on the behalf of her brother, Don Pedro. It was impossible that the succession of any Prince to a throne could be more quiet and undisputed.
The Regency, without delay, notified the demise of the late King to their new Sovereign: and then the difficulties of that Prince’s situation began to show themselves. Though the treaty had not weakened his hereditary right to Portugal, yet the main object of it was to provide, not only for the independence of Brazil, but for its “separation” from Portugal, which undoubtedly imported a separation of the crowns. Possessing the government of Brazil, and inheriting that of Portugal, he became bound by all the obligations of the treaty between the two states. Though he inherited the crown of Portugal by the laws of that country, yet he was disabled by treaty from permanently continuing to hold it with that of Brazil. But if, laying aside unprofitable subtilties, we consult only conscience and common sense, we shall soon discover that these rights and duties are not repugnant, but that, on the contrary, the legal right is the only means of performing the federal duty. The treaty did not expressly determine which of the two crowns Don Pedro was bound to renounce; it therefore left him to make an option between them. For the implied obligations of a contract extend only to those acts of the parties which are necessary to the attainment of its professed object. If he chose,—as he has chosen,—to retain the crown of Brazil, it could not, by reasonable implication, require an instantaneous abdication of that of Portugal; because such a limitation of time was not necessary, and might have been very injurious to the object. It left the choice of time, manner, and conditions to himself, requiring only good faith, and interdicting nothing but fraudulent delay. Had he not (according to the principle of all hereditary monarchs) become King of Portugal at the instant of his father’s demise, there would have been no person possessed of the legal and actual power in both countries necessary to carry the treaty of separation into effect. If the Portuguese had not acquiesced in his authority, they must have voluntarily chosen anarchy, for no one could have the power to discharge the duty imposed by treaty, or to provide for any of the important changes which it might occasion. The most remarkable example of this latter sort, was the order of succession. The separation of the two crowns rendered it absolutely impossible to preserve that order in both monarchies; for both being hereditary, the legal order required that both crowns should descend to the same person, the eldest son of Don Pedro—the very union which it was the main or sole purpose of the treaty to prevent. A breach in the order of succession became therefore inevitable, either in Portugal or Brazil. Necessity required the deviation. But the same necessity vested in Don Pedro, as a king and a father, the power of regulating in this respect, the rights of his family; and the permanent policy of monarchies required that he should carry the deviation no farther than the necessity.
As the nearer female would inherit before the more distant male, Don Miguel had no right which was immediately involved in the arrangement to be adopted. It is acknowledged, that the two daughters of John VI., married and domiciled in Spain, had lost their rights as members of the Royal Family. Neither the Queen, nor indeed any other person, had a legal title to the regency, which in Portugal, as in France and England was a case omitted in the constitutional laws, and, as no Cortes had been assembled for a century, could only be provided for by the King, who, of necessity, was the temporary lawgiver. The only parties who could be directly affected by the allotment of the two crowns, were the children of Don Pedro, the eldest of whom was in her sixth year. The more every minute part of this case is considered, the more obvious and indisputable will appear to be the necessity, that Don Pedro should retain the powers of a King of Portugal, until he had employed them for the quiet and safety of both kingdoms, as far as these might be endangered by the separation. He held, and holds, that crown as a trustee for the execution of the treaty. To hold it after the trust is performed, would be usurpation: to renounce it before that period, would be treachery to the trust.
That Don Pedro should have chosen Brazil, must have always been foreseen; for his election was almost determined by his preceding conduct. He preferred Brazil, where he had been the founder of a state, to Portugal, where the most conspicuous measures of his life could be viewed with no more than reluctant acquiescence. The next question which arose was, whether the inevitable breach in the order of succession was to be made in Portugal or Brazil; or, in other words, of which of these two disjointed kingdoms, the Infant Don Sebastian should be the heir-apparent. The father made the same choice for his eldest son as for himself. As Don Sebastian preserved his right of succession in Brazil, the principle of the least possible deviation from the legal order required that the crown of Portugal should devolve on his sister Donna Maria, the next in succession of the Royal Family.
After this exposition of the rights and duties of Don Pedro, founded on the principles of public law, and on the obligations of treaty, and of the motives of policy which have influenced him in a case where he was left free to follow the dictates of his own judgment, let us consider very shortly what a conscientious ruler would, in such a case, deem necessary to secure to both portions of his subjects all the advantages of their new position. He would be desirous of softening the humiliation of one of effacing the recent animosities between them, and of reviving their ancient friendship, by preserving every tie which reminded them of former union and common descent. He would therefore, even if he were impartial, desire that they should continue under the same Royal Family which had for centuries ruled both. He would labour, as far as the case allowed, to strengthen the connections of language, of traditions, of manners, and of religion, by the resemblance of laws and institutions. He would clearly see that his Brazilian subjects never could trust his fidelity to their limited monarchy, if he maintained an absolute government in Portugal; and that the Portuguese people would not long endure to be treated as slaves, while those whom they were not accustomed to regard as their superiors were thought worthy of the most popular constitution. However much a monarch was indifferent or adverse to liberty, these considerations would lose nothing of their political importance: for a single false step in this path might overthrow monarchy in Brazil, and either drive Portugal into a revolution, or seat a foreign army in her provinces, to prevent it. It is evident that popular institutions can alone preserve monarchy in Brazil from falling before the principles of republican America; and it will hardly be denied, that, though some have questioned the advantage of liberty, no people were ever so mean-spirited as not to be indignant at being thought unworthy of it, as a privilege. Viewing liberty with the same cold neutrality, a wise statesman would have thought it likely to give stability to a new government in Portugal, and to be received there as some consolation for loss of dominion. Portugal, like all the other countries between the Rhine and the Mediterranean, had been convulsed by conquest and revolution. Ambition and rapacity, fear and revenge, political fanaticism and religious bigotry,—all the ungovernable passions which such scenes excite, still agitated the minds of those who had been actors or victims of them. Experience has proved, that no expedient can effectually allay these deep-seated disorders, but the institution of a government in which all interests and opinions are represented,—which keeps up a perpetual negotiation between them,—which compels each in its turn to give up some part of its pretensions,—and which provides a safe field of contest in those cases where a treaty cannot be concluded. Of all the stages in the progress of human society, the period which succeeds the troubles of civil and foreign war is that which most requires this remedy: for it is that in which the minds of men are the most dissatisfied, the most active, and the most aspiring. The experiment has proved most eminently successful in the Netherlands, now beyond all doubt the best governed country of the Continent. It ought to be owned, that it has also in a great measure succeeded in France, Italy, and Spain. Of these countries we shall now say nothing but that, being occupied by foreign armies, they cannot be quoted. If any principle be now universally received in government, it seems to be, that the disorders of such a country must either be contained by foreign arms, or composed by a representative constitution.
But there were two circumstances which rendered the use of this latter remedy peculiarly advisable in Portugal. The first is, that it was so explicitly, repeatedly, and solemnly promised by John VI. In the second place, the establishment of a free constitution in Portugal, afforded an opportunity of sealing a definitive treaty of peace between the most discordant parties, by opening (after a due period of probation) to the Prince whom the Ultra-Royalist faction had placed in their front, a prospect of being one day raised to a higher station, under the system of liberty, than he could have expected to reach if both Portugal and Brazil had continued in slavery.*
It is unworthy of a statesman, or of a philosopher, to waste time in childishly regretting the faults of a Prince’s personal character. The rulers of Portugal can neither create circumstances, nor form men according to their wishes. They must take men and things as they find them; and their wisdom will be shown, by turning both to the best account. The occasional occurrence of great personal faults in princes, is an inconvenience of hereditary monarchy, which a wise limitation of royal power may abate and mitigate. Elective governments are not altogether exempt from the same evils, besides being liable to others. All comparison of the two systems is, in the present case, a mere exercise of ingenuity: for it is appaparent, that liberty has at this time no chance of establishment in Portugal, in any other form than that of a limited monarchy. The situation of Don Miguel renders it possible to form the constitution on an union between him, as the representative of the Ultra-Royalists, and a young Princess, whose rights will be incorporated with the establishment of liberty.
As soon as Don Pedro was informed of his father’s death, he proceeded to the performance of the task which had devolved on him. He began, on the 20th of April, by granting a Constitutional Charter to Portugal. On the 26th, he confirmed the Regency appointed by his father, till the proclamation of the constitution. On the 2d of May he abdicated the crown in favour of his daughter, Donna Maria; on condition, however, “that the abdication should not be valid, and the Princess should not quit Brazil, until it be made officially known to him, that the constitution had been sworn to, according to his orders; and that the espousals of the Princess with Don Miguel should have been made, and the marriage concluded; and that the abdidation and cession should not take place if either of these two conditions should fail.”* On the 26th of April, Letters-Patent, or writs of summons, had issued, addressed to each of those who were to form the House of Peers, of which the Duke de Cadaval was named President, and the Patriarch Elect of Lisbon Vice-President. A Decree had also been issued on the same day, commanding the Regency of Portugal to take the necessary measures for the immediate election of members of the other House, according to the tenor of the constitutional law.† When these laws and decrees were received at Lisbon, the Regency proceeded instantly to put them into execution; in consequence of which, the Constitution was proclaimed, the Regency installed, the elections commenced, and the Cortes were finally assembled at Lisbon on the 30th of October.
Whether the Emperor of Brazil had, by the laws of Portugal, the power to regulate the affairs of that kingdom, had hitherto given rise to no question. All parties with in and without Portugal had treated his right of succession to his father in the throne of that kingdom as undisputed. But no sooner had he exercised that right, by the grant of a free constitution, than it was discovered by some Ultra-Royalists, that he had forfeited the right itself; that his power over Portugal was an usurpation, and his constitutional law an absolute nullity! Don Miguel, whose name was perpetually in the mouth of these writers, continued at Vienna. The Spanish Government and its officers breathed menace and invective. Foreign agency manifested itself in Portugal; and some bodies of troops, both on the northern and southern frontier, were excited to a sedition for slavery. “All foreigners,” say the objectors,” are, by the fundamental laws of Portugal, excluded from the succession to the crown. This law passed at the foundation of the monarchy, by the celebrated Cortes of Lamego, in 1143, was confirmed, strengthened, and enlarged by the Cortes of 1641; and under it, on the last occasion, the King of Spain was declared an usurper, and the House of Braganza were raised to the throne. Don Pedro had, by the treaty which recognised him as Emperor of Brazil, become a foreign sovereign, and was therefore, at the death of his father, disqualified from inheriting the crown of Portugal.”
A few years after the establishment of the Normans in England, Henry, a Burgundian Prince, who served under the King of Castile in his wars against the Moors, obtained from that monarch, as a fief, the newly conquered territory between the rivers Douro and Minho. His son Alfonso threw off the superiority of Castile, and, after defeating the Moors at the great battle of Campo Ouriquez, in 1139, was declared King by the Pope, and acknowledged in that character by an assembly of the principal persons of the community, held at Lamego, in 1143, composed of bishops, nobles of the court, and, as it should seem, of procurators of the towns. The crown, after much altercation, was made hereditary, first in males and then in females; but on condition “that the female should always marry a man of Portugal, that the kingdom might not fall to foreigners; and that if she should marry a foreign prince, she should not be Queen;”—“because we will that our kingdom shall go only to the Portuguese, who, by their bravery, have made us King without foreign aid.” On being asked whether the King should pay tribute to the King of Leon, they all rose up, and, with naked swords uplifted, and answered, “Our King is independent; ourarms have delivered us; the King who consents to such things shall die.” The King, with his drawn sword in his hand, said, “If any one consent to such, let him die. If he should be my son, let him not reign.”
The Cortes of 1641, renewing the laws of Lamego, determined that, according to these fundamental institutions, the Spanish Princes had been usurpers, and pronounced John, Duke of Braganza, who had already been seated on the throne by a revolt of the whole people, to be the rightful heir. This Prince, though he appears not to have had any pretensions as a male heir, yet seems to have been the representative of the eldest female who had not lost the right of succession by marriage to a foreigner; and, consequently, he was entitled to the crown, according to the order of succession established at Lamego. The Three Estates presented the Heads of laws to the King, praying that effectual means might be taken to enforce the exclusion of foreigners from the throne according to the laws passed at Lamego. But as the Estates, according to the old constitution of Portugal, presented their Chapters severally to the King, it was possible that they might differ; and they did so, in some respects, on this important occasion,—not indeed as to the end, for which they were equally zealous, but as to the choice of the best means of securing its constant attainment. The answer of the King to the Ecclesiastical Estate was as follows:—“On this Chapter, for which I thank you, I have already answered to the Chapters of the States of the People and of the Nobles, in ordaining a law to be made in conformity to that ordained by Don John IV., with the declarations and modifications which shall be most conducive to the conservation and common good of the kingdom.” Lawyers were accordingly appointed to draw up the law; but it is clear that the reserve of the King left him ample scope for the exercise of his own discretion, even if it had not been rendered necessary by the variation between the proposals of the three Orders, respecting the means of its execution. But, in order to give our opponents every advantage, as we literally adopt their version, so we shall suppose (for the sake of argument) the royal assent to have been given to the Chapter of the Nobles without alteration, and in all its specific provisions; it being that on which the Absolutists have chosen to place their chief reliance. The Chapter stands thus in their editions:—“The State of the Nobility prays your Majesty to enact a law, ordaining that the succession to the kingdom may never fall to a foreign Prince, nor to his children, though they may be the next to the last in possession; and that, in case the King of Portugal should be called to the succession of another crown, or of a greater empire, he be compelled to live always there; and that if he has two or more male children, the eldest son shall assume the reins in the foreign country, and the second in Portugal, and the latter shall be the only recognised heir and legitimate successor; and, in case there should be only one child to inherit these two kingdoms, these said kingdoms shall be divided between the children of the latter, in the order and form above mentioned. In case there shall be daughters only, the eldest shall succeed in this kingdom, with the declaration that she marry here with a native of the country, chosen and named by the Three Estates assembled in Cortes: should she marry without the consent of the States, she and her descendants shall be declared incapable, and be ousted of the succession; and the Three Estates shall be at liberty to choose a King from among the natives, if there be no male relation of the Royal Family to whom the succession should devolve.”
Now the question is, whether Pedro IV. as the monarch of Brazil, a country separated from Portugal by treaty, became a foreign prince, in the sense intended by these ancient laws, and was thereby disabled from inheriting the crown of Portugal on the decease of John VI.?
This question is not to be decided by verbal chicane. The mischief provided against in these laws was twofold:—the supposed probability of mal-administration through the succession of a foreigner, ignorant of the country and not attached to it; and the loss of domestic government, if it fell by inheritance to the sovereign of another, especially a greater country. The intention of the lawgiver to guard against both these occurrences affords the only sure means of ascertaining the meaning of his words. But the present case has not even the slightest tendency to expose the country to either danger. Pedro IV. is a native Portuguese, presumed to have as much of the knowledge and feelings belonging to that character as any of his predecessors. The danger to Portuguese independence arises from the inheritance of the crown devolving in perpetuity, and without qualification, to a foreign sovereign. Such was the evil actually experienced under Philip II. King of Spain, and his two successors; and the most cursory glance over the law of 1641 shows that the Cortes had that case in view. Had the present resembled it in the important quality of a claim to unconditional inheritance, the authority would have been strong. But, instead of being annexed to a foreign dominion, Pedro IV. takes it only for the express purpose of effectually and perpetually disannexing his other territories from it;—a purpose which he immediately proceeds to carry into execution, by establishing a different line of succession for the crowns of both countries, and by an abdication, which is to take effect as soon as he has placed the new establishment in a state of security. The case provided against by the law is, that of permanent annexation to a foreign crown: the right exercised by Pedro IV. is, that of a guardian and administrator of the kingdom, during an operation which is necessary to secure it against such annexation. The whole transaction is conformable to the spirit of the two laws, and not repugnant to their letter.
That a temporary administration is perfectly consistent with these laws, is evident from the passage:—“If the King of Portugal should be called to the succession of another crown, and there should be only one child to inherit the two kingdoms, these said kingdoms shall be divided among the children of the latter”—meaning after his death, and if he should leave children. Here then is a case of temporary administration expressly provided for. The father is to rule both kingdoms, till there should be at least two children to render the division practicable. He becomes, for an uncertain, and possibly a long period, the provisional sovereign of both; merely because he is presumed to be the most proper regulator of territories which are to be divided between his posterity. Now, the principle of such an express exception is, by the rules of fair construction, applicable to every truly and evidently parallel case; and there is precisely the same reason for the tutelary power of Pedro IV. as there would be for that of a father, in the event contemplated by the law of 1641.
The effect of the Treaty of Rio Janeiro cannot be inconsistent with this temporary union. Even on the principle of our opponents, it must exist for a shorter or longer time. The Treaty did not deprive Pedro of his option between Portugal and Brazil: he must have possessed both crowns, when he was called upon to determine which of them he would lay down. But if it be acknowledged that a short but actual union is necessary, in order to effect the abdication, how can it be pretended that a longer union may not be equally justifiable, for the honest purpose of quiet and amicable separation?
The Treaty of Rio de Janeiro would have been self-destructive, if it had taken from Pedro the power of sovereignty in Portugal immediately on the death of his father: for in that case no authority would exist capable of carrying the Treaty into execution. It must have been left to civil war to determine who was to govern the kingdom; while, if we adopt the principle of Pedro’s hereditary succession by law, together with his obligation by treaty to separate the kingdoms, the whole is consistent with itself, and every measure is quietly and regularly carried into effect.
To these considerations we must add the recognition of Pedro “as heir and successor” in the Ratification. Either John VI. had power to decide this question, or he had not. If he had not, the Treaty is null; for it is impossible to deny that the recognition is really a condition granted to Brazil, which is a security for its independence, and the breach of which would annul the whole contract. In that case, Portugal and Brazil are not legally separated. Pedro IV. cannot be called a “foreign prince;” and no law forbids him to reside in the American provinces of the Portuguese dominions. In that case also, exercising all the power of his immediate predecessors, his authority in Portugal becomes absolute; he may punish the Absolutists as rebels, according to their own principles; and it will be for them to show, that his rights, as supreme lawgiver, can be bounded by laws called ‘fundamental.’ But,—to take a more sober view,—can it be doubted, that, in a country where the monarch had exercised the whole legislative power for more than a century, his authoritative interpretation of the ancient laws, especially if it is part of a compact with another state, must be conclusive? By repeatedly declaring in the introduction to the Treaty, and in the Ratification of it, that Pedro IV. was “heir and successor” of Portugal, and that he was not divested of that character by the Treaty, which recognised him as Sovereign of Brazil, John VI. did most deliberately and solemnly determine, that his eldest son was not a “foreign prince” in the sense in which these words are used by the ancient laws. Such too seems to have been the sense of all parties, even of those the most bitterly adverse to Pedro IV., and most deeply interested in disputing his succession, till he granted a Constitutional Charter to the people of Portugal.
John VI., by his decree for the re-establishment of the ancient constitution of Portugal, had really abolished the absolute monarchy, and in its stead established a government, which, with all its inconveniences and defects, was founded on principles of liberty. For let it not be supposed that the ancient constitution of Portugal had become forgotten or unknown by disuse for centuries, like those legendary systems, under cover of which any novelty may be called a restoration. It was perfectly well known; it was long practised; and never legally abrogated. Indeed the same may be affirmed, with equal truth, of the ancient institutions of the other inhabitants of the Peninsula, who were among the oldest of free nations, but who have so fallen from their high estate as to be now publicly represented as delighting in their chains and glorying in their shame. In Portugal, however, the usurpation of absolute power was not much older than a century. We have already seen, that the Cortes of Lamego, the founders of the monarchy, proclaimed the right of the nation in a spirit as generous, and in a Latinity not much more barbarous, than that of the authors of Magna Charta about seventy years later.
The Infant Don Miguel has sworn to observe and maintain the constitution. In the act of his espousals he acknowledges the sovereignty of the young Queen, and describes himself as only her first subject. The mutinies of the Portuguese soldiers have ceased; but the conduct of the Court of Madrid still continues to keep up agitation and alarm: for no change was ever effected which did not excite discontent and turbulence enough to serve the purposes of a neighbour straining every nerve to vex and disturb a country. The submission of Don Miguel to his brother and sovereign are, we trust, sincere. He will observe his oath to maintain the constitution, and cheerfully take his place as the first subject of a limited monarchy. The station to which he is destined, and the influence which must long, and may always belong to it, form together a more attractive object of ambition than any thing which he could otherwise have hoped peaceably and lawfully to attain. No man of common prudence, whatever may be his political opinions, will advise the young Prince to put such desirable prospects to hazard. He will be told by all such counsellors of every party that he must now adapt himself to occurrences which he may learn to consider as fortunate; that loyalty to his brother and his country would now be his clearest interest, if they were not his highest duty; that he must forget all his enmities, renounce all his prejudices, and even sacrifice some of his partialities; and that he must leave full time to a great part of the people of Portugal to recover from those prepossessions and repugnances which they may have contracted.
[* ] From the Edinburgh Review, vol. xlv. p. 202.—Ed.
[* ] Note of Don Joseph Torrero and Don Jacques O’Dun, Lisbon, 1st April, 1762.—Annual Register.
[† ] Portugal did indeed accede to the Armed Neutrality; but it was not till the 15th of July, 1782 on the eve of a general peace.—Martens, Recueil de Traités, vol. ii. p. 208.
[‡ ] By the Treaty between France and Spain of the 19th August, 1796.—Martens, vol. vi. p. 656.
[* ] Treaties of Badajoz, 6th of June; of Madrid, 20th of September, 1801.—Martens, Supplément, vol. ii. pp. 340, 539.
[† ] Schoëll, Histoire Abrégée des Traités de Paix, &c., vol. ix. p. 110.
[* ] Count Palmella.—Ed.
[* ] Proclamations from Villa Francha of the 31st of May and 3d of June.
[† ] Of the 18th of June.
[* ] Gazeta de Lisbon, of the 15th of November.
[* ] Gazeta de Lisbon, of the 7th of March.
[* ] This was written in the month of December, 1826, before the plan for conciliating the two opposite political parties by means of a matrimonial alliance between Donna Maria and her uncle was abandoned.—Ed.
[* ] Diario Fluminense, of the 20th of May.
[† ] Ibid. 3d of May.