Gado roubado, justiça abusada: negociações e usos da justiça no Brasil do século XIX (1860 – 1899)

Abstract

During the 19th century, changes were made in the Brazilian legal system regarding the concentration of the right to punish into the State. One of these changes was the appearance of conditional public criminal action, a type of criminal action that combines the State’s and the victim’s participation in the criminal action, although the action is under the control of the State, it is up to the victim to allow or not the criminal action initiation. Another interesting characteristic of this new institute is the fact that it is applicable only to the crime of cattle theft. In this sense, the present work seeks to understand the emergence of the action conditioned to representation and its relation to the crime of cattle theft, taking as a time frame the years 1860, year of birth of this crime, and 1899, the year in which this action is no longer applied to it. For this, the ideas of uses of justice and negotiated justice/hegemonic apparatus justice will be used. From these perspectives, the following will be analyzed: i) parliamentary debates; ii) national doctrine; iii) international doctrine on criminal action, since this contextualization, in the form of the insertion of the object in a broader scenario, was indicated by the national sources themselves; and iv) judicial processes related to the theft of cattle available between 1860 and 1899. We can conclude that the concentration of the power to judge in the state went through a long process that, instead of suppressing the unofficial practices of justice, ended up accommodating them, creating spaces within its institutional apparatus in which informal justice could still be accessed and used by the parties.