The Constitutional Charter of 1826: Portugal's constitution made in Rio

The news reached Rio de Janeiro on 24 April 1826, on merchant ships that had crossed the Atlantic ahead of the official deputation from Lisbon. King João VI of Portugal had died on 10 March. His heir was his elder son Pedro, who had declared Brazil independent in 1822 and reigned there as its emperor.2 sources2 sources

Pedro could not wear both crowns. Brazil, jealous of its new independence, would not accept a king of Portugal as its emperor, and many in Portugal saw him as a foreign prince who had betrayed them. He chose Brazil. Before letting Portugal go, he decided to give it two things: a constitution and a queen.3 sources3 sources

The constitution took five days. According to the nineteenth-century jurist José Joaquim Lopes Praça, followed by the historian José Miguel Sardica, a first draft was written by José Joaquim Carneiro de Campos, Brazil's minister of justice. Pedro and his private secretary, Francisco Gomes da Silva, finished it, and the British envoy Sir Charles Stuart probably read it. The work went fast because the text was almost a copy of the constitution Pedro had given Brazil two years earlier.1 source1 source

The finished Charter closed in the old chancery style: given at the Palace of Rio de Janeiro on the twenty-ninth day of the month of April 1826. Under the royal signature came a second line, “Francisco Gomes da Silva a fez”, Francisco Gomes da Silva made it. He registered it the next day, signing as chief officer of the imperial cabinet.2 sources2 sources

On 30 April Pedro named the members of the new upper house, the Chamber of Peers. On 2 May he abdicated the Portuguese crown in favour of his seven-year-old daughter, Maria da Glória, on two conditions: that the Charter be sworn, and that his brother Miguel marry her. The story of that abdication belongs to the articles on João VI's death and on Maria II. Stuart sailed for Lisbon with the papers.4 sources4 sources

Portugal already knew written constitutions. A liberal revolution in Porto in August 1820 led to elected Cortes, which wrote the Constitution of 1822. It placed sovereignty in the nation and almost all power in a single elected chamber. The king had only a suspensive veto, sending a law back once, and could not dissolve parliament.2 sources2 sources

That constitution fell in mid-1823, after the Vilafrancada, a military rising led by Miguel. João VI then promised a text of his own. A decree of 18 June 1823 set up a junta under his foreign minister, Palmela, to draft a fundamental law. It met from 7 July and took as its basis a draft by the Coimbra jurist Ricardo Raimundo Nogueira, with an absolute royal veto, two chambers and an income qualification for voters. Absolutists on the junta blocked it, and the draft was shelved.1 source1 source

After Miguel's second coup, the Abrilada of April 1824, which has its own article, a law of 4 June 1824 restored the traditional laws of the kingdom. João VI died without granting a charter, although a draft constitution in his own hand was reportedly found among his papers. When it came in 1826 from his son, Sardica concludes, the Charter was not a rupture but the model the old king and Palmela had pursued in vain.1 source1 source

The Charter had 145 articles in eight titles, against 179 in the Brazilian constitution and 240 in the Portuguese one of 1822. Its main source was the Brazilian text of 1824, and through it the French Charter of 1814. Behind both stood Benjamin Constant, a moderate French liberal, whose sketch of a constitution of 1814 lent the Brazilian and Portuguese texts their guiding ideas and many sentences translated word for word.2 sources2 sources

Article 11 named four political powers instead of the usual three: legislative, moderating, executive and judicial. The new one was Constant's “royal power”, which Pedro called the moderating power, and it belonged to the king alone.2 sources2 sources

Article 74 spelled out what that meant. The king appointed peers without limit of number, called the Cortes to extraordinary sessions, sanctioned their decrees, adjourned them and dissolved the Chamber of Deputies, appointed and dismissed ministers freely, suspended judges, and granted pardons and amnesties. His veto was absolute. Ministers answered to him, not to parliament.2 sources2 sources

Parliament, the Cortes Gerais, had two chambers for the first time. Members of the Chamber of Peers were appointed by the king for life and by inheritance, with no fixed number; the Prince Royal and the infantes sat by right from the age of 25. The Chamber of Deputies was elective and temporary, and only it could begin laws on taxes and military recruitment.2 sources2 sources

Deputies were chosen in two stages. Men with a net income of at least 100,000 réis a year voted in parish assemblies for provincial electors, who needed 200,000 réis; the electors chose the deputies, who needed 400,000. The voting age was 25, or 21 for married men and army officers, and graduates and priests in holy orders were exempt from the age rule. Servants, monks, sons living with their parents and anyone below the income line were excluded, and freed slaves could vote but not be electors.3 sources3 sources

Rights came last, in article 145, the longest in the text, with 34 paragraphs. Most of the liberties of 1822 survived: equality before the law, a press free of prior censorship, and freedom from persecution for religion so long as the state religion was respected. The same article abolished flogging, torture and branding, and promised free primary education.2 sources2 sources

Unlike the 1822 text, it also guaranteed the hereditary nobility and its privileges. Roman Catholicism remained the religion of the kingdom; foreigners could practise other faiths only in private, in buildings without the outward form of a church.2 sources2 sources

The first copies reached Lisbon before the envoy. On 2 July 1826 the corvette Lealdade entered the Tagus, 53 days out of Rio, with copies of the Rio newspaper Diário Fluminense that printed Pedro's decrees. Stuart himself arrived on the frigate Diamond on 7 July, although Sardica dates his arrival to 2 July. The regent, Pedro's sister the Infanta Isabel Maria, was staying at the spa town of Caldas da Rainha, and her government hesitated and held the Charter back.3 sources3 sources

The left, heirs of 1820, saw in the Charter a king's power placed above the nation's. To absolutists, who had hoped Pedro would abdicate in Miguel's favour, any constitution was a surrender to the revolution. The regency announced publication on 12 July, and the Gazeta de Lisboa printed the text in instalments from 15 to 26 July.3 sources3 sources

Nobody set a date for the oath until General João Carlos de Saldanha, military governor of Porto, sent Rodrigo Pinto Pizarro to Caldas at the head of a column of troops, a sign that no more delay would be tolerated. A decree of 19 July fixed the oath for 31 July, and the Charter came into force that day. Lisbon was lit up for three nights, with military bands in the streets and poems recited at the illuminations.3 sources3 sources

The new institutions took shape. Pedro's peers were the old court: by one decree the Patriarch of Lisbon and all the archbishops and bishops, 19 in all; by royal letters 72 titled nobles, every duke and marquis, almost every count and the two viscounts who ranked as grandees. Nine were under age. Elections followed, and the Cortes opened on 30 October 1826.2 sources2 sources

Resistance began at once. The 24th Infantry rose for Miguel at Bragança and the 17th in the Alentejo, and rebels who fled to Spain raided across the border between October 1826 and January 1827. In December 1826 Britain sent a division under General Clinton to defend Portugal. According to Oliveira Martins, the British foreign secretary, George Canning, remarked that everything Stuart brought from Brazil was excellent, except the Charter.2 sources2 sources

Miguel, in exile in Vienna, swore the Charter on 4 October 1826, and his betrothal to his niece followed on 29 October. In July 1827 Pedro named him lieutenant and regent. Miguel landed in Lisbon on 22 February 1828 and swore loyalty to Maria and the Charter four days later. On 13 March he dissolved the Chamber of Deputies. In May he summoned the old Cortes of the Three Estates, which proclaimed him king, and in July he took the crown as an absolute monarch and annulled the Charter.7 sources7 sources

Persecution made the Charter popular. Liberals fled to Galicia, France and England, and the cause of Maria II and the cause of the Charter became one. Pedro gave up the throne of Brazil in 1831 to lead it in person, and the civil war that followed ended with Miguel's surrender at Evoramonte in May 1834, the subject of its own article.2 sources2 sources

When the Cortes reopened on 15 August 1834, Pedro's Chamber of Peers had almost vanished. Of the 60 peers who had taken their seats in 1826-1828, 37 were still alive, and 24 of those were excluded, or excluded themselves, for having sided with Miguel.1 source1 source

A decree of 28 May 1834 ruled that nobles who had signed the 1828 petition asking Miguel to abolish the Charter had renounced their peerage. Only 13 of Pedro's peers were left when the chamber reopened, and the crown refilled it with new peers: 20 appointed by royal letter in 1834 and 18 more in 1835.2 sources2 sources

Pedro died in September 1834, remembered by his supporters as o Dador, the Giver. Victory then split the liberals. The left disliked a constitution that came as a royal gift and gave the crown so much power. On 9 September 1836 a revolution in Lisbon restored the Constitution of 1822, and new Cortes wrote the compromise Constitution of 1838. Passos Manuel, whom the September Revolution brought to power, later explained the Charter's second fall.3 sources3 sources

The Charter's hardliners struck back. On 27 January 1842 António Bernardo da Costa Cabral led a coup with the army behind him, and a decree of 10 February declared the Charter of 1826 in force again as the fundamental law of the state. The same decree held out the promise of a revision, which the left took up. The Constitution of 1838 had lasted less than four years. This time the Charter would last 68.3 sources3 sources

The left now asked for reform instead of repeal: direct elections, parliamentary control of treaties and taxes, and limits on the moderating power and on hereditary peers. The Charter's own procedure was slow. A proposal had to come from the Chamber of Deputies with the support of a third of its members, be read three times, pass as a law, and then be voted by the next Cortes, whose electors had given them special powers.2 sources2 sources

The Regeneration, the movement that brought Saldanha to power in 1851 and ended Costa Cabral's era, took a shortcut. A dictatorial decree of 25 May 1851 gave the next Chamber of Deputies the power to amend the articles that experience had shown needed correcting. The result, the first Additional Act, was sanctioned by Maria II on 5 July 1852. Three more followed, and Sardica notes that only the Act of 1885 was passed by the procedure the Charter laid down.2 sources2 sources

The Chamber of Peers was the running quarrel. A government short of a majority there could ask the king for a batch of new peers, a fornada, literally an ovenful. Over the decades the house filled with men who owed their seats to service rather than birth: every peer appointed by royal letter in 1826 and 1827 was a titled noble, but fewer than one in five of those appointed between 1890 and 1906.3 sources3 sources

Elections worked backwards. Because the king appointed governments, a new ministry asked him to dissolve the Chamber of Deputies and then won the election it ran. Between 1834 and 1910 Portugal held 42 general elections and saw 31 dissolutions. Augusto Fuschini summed up the system in 1899: “governments choose and make the deputies; these in turn support the government”.1 source1 source

The electorate grew by ordinary law rather than by amendment. A law of 8 May 1878 counted every head of family and every man who could read and write as having the minimum income. Eligibility stayed narrow: in the middle of the century a little over 36,000 men, under 1 per cent of a population of about 3.8 million, could stand for the Chamber of Deputies.2 sources2 sources

The Charter was in force for 72 years in all, 68 of them without a break, from 1842 to 1910. By Sardica's count, the Constitution of 1822 lasted about three years in two spells, that of 1838 under four, the republican Constitution of 1911 about 15 in practice and Salazar's Constitution of 1933 for 41.1 source1 source

The present Constitution came into force on 25 April 1976. It will reach 72 years in April 2048; counted day by day, the Charter's three spells add up to almost 73 years, a total it would pass only at the end of 2048 or early in 2049.2 sources2 sources

It fell with the monarchy on 5 October 1910. Sardica argues that the republicans did not rise chiefly against the Charter, which had bent to accommodate new groups and ideas, and that it should be judged by the world it came from, one just emerging from the divine right of kings. Paulo Jorge Fernandes is more critical: the reform of 1885 closed the system to newcomers, monarchist and republican alike, and the political elites never agreed on the form of the constitution.2 sources2 sources

Its institutions framed Portuguese politics for most of the nineteenth century: a parliament of two chambers at São Bento, a monarch who chose and dismissed governments, and parties that took turns in power through managed elections. Through its Additional Acts it was also the first Portuguese constitution to be amended rather than replaced: the texts of 1822 and 1838 were swept away by revolution and coup.3 sources3 sources