Moderating branch Emperor's role which granted the constitution of 1824 was the creator of the moderating power The role of the emperor of Brazil was to represent the nation. He represented that which the nation had "of oneness, of permanence, of stability. He represented the legal order, the unity of all Brazilians, as well as the variations of region, class, party, race, represented the nation in its totality." The monarch was in reality a type of "minister of a republic", in the philosophical sense of that last word, from
res publica, and not a sovereign by
divine right. His function as a representative of the nation, of its legitimacy, derived not from being elected, but acclaimed, as had traditionally happened for centuries after the death of the previous monarch in homage to his successor. Acclamation was a popular designation that legitimated the role of the monarchy as representative of the Brazilian people. This in fact occurred at three distinct historic moments during the monarchical era: in 1822, when
Pedro I was acclaimed, in 1831 and finally in 1840, when it was the turn of
Pedro II be acclaimed in all the provinces. Acclamation was, in a certain way, a type of symbolic vote, equivalent to an informal plebiscite. It was popular acceptance that granted the legitimacy to Brazilian monarchs as representatives of the Nation. Following the standard dictated by
liberalism of the nineteenth century, the Constitution of 1824 granted the monarchy protection under a representative system and protected by the most important, innovative and original item in the constitutional text: the Moderating Power (). This fourth power was
personal to the Emperor, acting as a "mechanism to absorb friction between the legislative and executive powers" and his role as the one who would maintain the balance between both powers would allow Pedro II throughout his reign the "worthy position that he exercised with so much pleasure and peace."
Tobias Barreto has analyzed the Moderating Power and the parliamentary government, explained as the reason for its adoption both the fact that "institutions that are not the daughters of custom, but only the product of theories, do not hold themselves for much longer against reality and they will soon ruin themselves when faced by facts." It would not matter if there were laws that would follow the customs and traditions of other nations (other than the Brazilians) that would be admirable in theory, but in practice, would become counterproductive to the point of creating cracks that over time would collapse the edifice of the country's constitutional order. Thus, thanks to the Moderating Power, Brazil was able to "open a valve through which parliamentary anarchy could escape", in other words, it would minimize eventual damage caused by disputes between rival political factions. According to the idea behind the Moderating Power was "that a monarch, by virtue of dynastic continuity, took no part in factions, classes, had no regional links, did not owe his power to economic groups, did not have to fulfill electoral promises, did not need to think of his own future — the future of his family was guaranteed by the preservation of peace and national greatness — he was not subject to the temptation of taking advantage of a brief passage through the government to grant benefits and advantages for himself only at the cost of the nation´s welfare and leaving the onus to his successors" as he knows that his "successor will be his own son, knowing that history, many times, charges grandchildren with the crimes of their grandparents".
Emperor's prerogatives Article 99 of the Constitution of 1824 declared that the “person of the
Emperor is inviolable and sacred; he is not subject to any responsibility”. This disposition was not characteristic only of the nineteenth century Brazilian constitutional regime. On the contrary, the lack of responsibility of the monarch continues to exist under present-day parliamentary monarchies. The powers reserved to the Moderating Power were to be exercised only after consulting the Council of State. Most of these powers (which were enumerated in Article 101) were identical to those reserved for monarchs today, such as: to summon the General Assembly (parliament) in the intervals between sessions; to sanction the decrees and resolutions of the General Assembly, for them to take on the force of law; extend or postpone the General Assembly and dissolve the
Chamber of Deputies (), convoking another immediately to replace the former; freely appointing and firing ministers of state;
pardoning and modifying judicial sentences and granting amnesty. held the Moderating Power. The
dissolution of the
Chamber of Deputies should not be confused with shutting down a National Congress (or Parliament). The first refers to a legal measure that exist under Parliamentarism, while the second is a dictatorial act. There was a great care on the part of Brazilian monarchs at the time to exercise their prerogative to dissolve the Chamber of Deputies. For example, in the case of
Pedro I, he did not dissolve the Chamber of Deputies or postponed the Parliament during his reign. While
Pedro II, not once in his 58 years as Emperor that such dissolution occurred by his own initiative; instead, it was always solicited by the
President of the Council of Ministers. There were various dissolutions during the period of his reign, eleven in all, and of these, ten occurred only after the Council of State was consulted on the matter, something that was not obligatory. The power to veto laws was not absolute, merely partial: if two consecutive legislatures presented the same legislation without modifications, the Emperor's signature would not be needed to pass it. Among the other prerogatives of the emperor were: to suspend
magistrates for complaints against their persons, but only after carrying through hearings with them, taking all the important information available, and consulting the Council of State (those magistrates effectively lost their jobs only after due process of law that resulted in a condenatory sentence after all possible appeals); approve or suspend resolutions (laws) of provincial councils and name
Senators according to a list of the three candidates who had gained the majority of popular vote. The power to approve or suspend resolutions of provincial councils was extraordinary, it was the competence of the General Assembly and could only occur if that body, for some reason, was unable to meet (This prerogative was annulled by the 1834 Additional Act and the subsequent creation of the
Provincial Assemblies). As to the power of nominating Senators, that was not a characteristic peculiar to the Brazilian legal order, but to something common in all countries of that era. In the
United Kingdom, the
House of Lords was composed of life members and hereditary members and reserved solely to the
nobility; similarly, in
France, Senators, also with life terms, were named rather than elected; in the
United States, a presidential republic, Senators were chosen by the
state legislatures (until this was modified by the
Seventeenth Amendment in 1913). None of these three countries, considered at that time to be
democracies alongside Brazil, there was any popular participation in the selection of Senators. In contrast, in Brazil Senators were supposed to be named from a list of three candidates who had received the most votes from the Brazilian people.
Paulo Bonavides wrote that the Moderating Power "can only be appreciated for its role on the consolidation of national unity and the stability of the political system of the Empire" on “a continent politically flagellated by civil hatreds and pulverized into weak and rival republics.” For
Galvão Sousa, the Moderating Power under Pedro II, “created the space for the famous '
dictatorship of honesty.' It soon became the personal power of the monarch, always exercised with a high public spirit”. The term "dictatorship" () used by the author does not have a pejorative connotation and merely exemplifies what he perceives as the force of morality and justice that Pedro II imposed in his role as constitutional monarch.
Executive branch According article 102 of the Constitution of 1824, "the Emperor is the Head of Executive Power, and exercises it by his Ministers of State". However, in 1847 the Emperor Pedro II created the office of the President of the Council of Ministers to hold executive power, although the Emperor still possesses executive powers currently common to the Prime Minister of a monarchy. In practice, both exercised the executive function in different aspects. Through this reform, the Emperor would still be responsible for sanctioning or vetoing laws passed by the General Assembly, "convening the new Ordinary General Assembly," appointing
bishops, and providing
ecclesiastical benefits, appointing
magistrates, and awarding
titles and honors. On the other hand, the President of the Council of Ministers was in fact the head of government and responsible for appointing ministers of state and to exercise their function through them, to be responsible for diplomacy, to issue decrees, instructions and regulations and to take care of everything that concerns this, "to provide everything that concerns internal and external security, and to administer the public accounts together with the cabinet and parliament. The president of the Council owed his position to both his party and to the Emperor, and these could sometimes come into conflict. 19th-century abolitionist leader and historian
Joaquim Nabuco said that the "President of the Council in Brazil was no Russian
Chancellor, Sovereign's creature, nor a
British Prime Minister, made only by the trust of the [House of]
Commons: the delegation of the Crown was to him as necessary and important as the delegation of the Chamber, and, to exert with safety his functions, he had to dominate the caprice, the oscillations and ambitions of the Parliament, as well as to preserve always unalterable the favor, the good will of the emperor."
Legislative branch According to the Constitution, Legislative power is vested upon the
General Assembly, a two-chamber legislature comprising the Imperial Senate and the Chamber of Deputies which in 1824 was composed of 50 senators and 102 general deputies, as the nation's representatives. • The Senate is composed of lifelong members organized in election. The most voted senators are chosen and appointed by the Emperor on a triple list. Each Province will give so many senators, as many as half of their respective deputies. • The Chamber of Deputies is composed by elected members to serve four-year terms. The General Assembly alone could enact, revoke, interpret and suspend laws under Article 13 of the Constitution. The legislature also held the
power of the purse and was required to annually authorize expenditures and taxes. It alone approved and exercised oversight of government loans and debts. Other responsibilities entrusted to the Assembly included setting the size of the military's forces, the creation of offices within the government, monitoring the national welfare and ensuring that the government was being run in conformity to the Constitution. This last provision allowed the legislature wide authority to examine and debate government policy and conduct. According to Article 16 of the Constitution of 1824, "each of the Chamber will have the Treatment of Augusts and Dignified Representatives of the Nation." Each legislature lasts four years and each annual session four months. The imperial opening session of the Assembly always takes place on May 3. Both the opening and closing ceremonies will happen with the presence of the Emperor in
full imperial regalia in the form of the internal regiment and in the presence of all the members of both chambers. The appointment of the respective Presidents, Vice Presidents, and Secretaries of Chambers, verification of the powers of its members, oath, and its internal police, shall be carried out in the form of its Rules of Procedure. The Members of each of the chambers are inviolable for the opinions they give in the exercise of their functions and during their deputation, they can not be arrested by any authority, except by order of their respective chamber or in flagrant crime capital punishment. Senators and deputies may be appointed to the post of Minister of State, or Councilor of State, with the difference that the Senators continue to sit in the Senate, and the Deputy leaves vacant his place of the Chamber, and proceed to New election, in which he could be re-elected and accumulate both functions. They also accumulate the two functions, if they already exercised any of the mentioned positions, when they were elected. One can not be at the same time a Member of both Houses. The exercise of any Employment, with the exception of those of Counselor of State, the Minister of State, shall cease on an interim basis, while the duties of Deputy or Senator shall last. A Constitutional balance of power existed between the General Assembly and the executive branch under the Emperor. The legislature could not operate alone and the monarch could not force his will upon the Assembly.
Judicial branch The independent Judiciary, and will be composed of judges, and jurors, who will have to log in this way in the civil, as in the crime in the cases, and by the way, that the Codes determine. The jurors pronounce on the fact, and the Judges apply the Law. The Emperor may suspend them for complaints against them, preceding a hearing of the same Judges, necessary information, and hearing the Council of State. All judges and bailiffs are responsible for possible abuses of power, and such as other crimes and illegal practices, can move a popular action against them that may end up disqualifying them from exercising law. The Article 163 of the Constitution of 1824 says: The constitutional determination stated that this court should be called the "Supreme Court of Justice" and was regulated by the Imperial Letter of Law of September 18, 1828 and installed on January 9, 1829 in operation in the House of the Senate and later in the Palace of Relation. The
Supreme Court of Justice was the national court acting in all instances. All of its members were directly appointed by the Emperor. Each province has also its own Tribunal of Relations to try cases in the lower court. The judiciary is completely independent even from the Emperor. However, although it can not interfere directly, the Emperor can commute applied penalties, such as the death penalty, which was no longer executed in 1876 by successive commutations of Emperor Pedro II.
Provincial and local governments When enacted in 1824, the Imperial Constitution created the
Conselho Geral de Província (Provincial General Council), the legislature of the provinces. This council was composed of either 21 or 13 elected members, depending on the size of a province's population. All "resolutions" (laws) created by the councils required approval by the General Assembly, with no right of appeal. Provincial Councils also had no authority to raise revenues, and their budgets had to be debated and ratified by the General Assembly. Provinces had no autonomy and were entirely subordinate to the national government. With the 1834 constitutional amendment known as the Additional Act, Provincial General Councils were supplanted by the
Assembleias Legislativas Provinciais (Provincial Legislative Assemblies). The new Assemblies enjoyed much greater autonomy from the national government. A Provincial Assembly was composed of 36, 28 or 20 elected deputies, the number depending on the size of the province's population. The election of provincial deputies followed the same procedure as used to elect general deputies to the national Chamber of Deputies. The responsibilities of the Provincial Assembly included defining provincial and municipal budgets and levying the taxes necessary to support them; providing primary and secondary schools (
higher education was the responsibility of the national government); oversight and control of provincial and municipal expenditures; and providing for law enforcement and maintenance of police forces. The Assemblies also controlled the creation and abolishment of, and salaries for, positions within provincial and municipal civil services. The nomination, suspension and dismissal of civil servants was reserved for the president (governor) of the province, but how and under what circumstances he could exercise these prerogatives was delineated by the Assembly. The expropriation of private property (with due monetary compensation) for provincial or municipal interests was also a right of the Assembly. In effect, the Provincial Assembly could enact any kind of law—with no ratification by Parliament—so long as such local laws did not violate or encroach upon the Constitution. However, provinces were not permitted to legislate in the areas of criminal law, criminal procedure laws, civil rights and obligations, the armed forces, the national budget or matters concerning national interests, such as foreign relations. The provincial presidents were appointed by the national government and were, in theory, charged with governing the province. In practice, however, their power was intangible, varying from province to province based upon each president's relative degree of personal influence and personal character. Since the national government wanted to ensure their loyalty, presidents were, in most cases, sent to a province in which they had no political, familial or other ties. In order to prevent them from developing any strong local interests or support, presidents would be limited to terms of only a few months in office. As the president usually spent a great deal of time away from the province, often traveling to their native province or the imperial capital, the
de facto governor was the vice-president, who was chosen by the Provincial Assembly and was usually a local politician. With little power to undermine provincial autonomy, the president was an agent of the central government with little function beyond conveying its interests to the provincial political bosses. Presidents could be used by the national government to influence, or even rig, elections, although to be effective the president had to rely on provincial and local politicians who belonged to his own political party. This interdependency created a complex relationship which was based upon exchanges of favors, private interests, party goals, negotiations, and other political maneuvering. The câmara municipal (town council) was the governing body in towns and cities and had existed in Brazil since the beginning of the colonial period in the 16th century. The Chamber was composed of vereadores (councilmen), the number of which depended on the size of the town. Unlike the Provincial General Council, the Constitution gave town councils great autonomy. However, when the Provincial Assembly replaced the Provincial General Council in 1834, many of the powers of town councils (including the setting of municipal budgets, oversight of expenditures, creation of jobs, and the nomination of civil servants) were transferred to the provincial government. Additionally, any laws enacted by the town council had to be ratified by the Provincial Assembly—but not by Parliament. While the 1834 Additional Act granted greater autonomy to the provinces from the central government, it transferred the towns' remaining autonomy to the provincial governments. There was no office of mayor, and towns were governed by a town council and its president (who was the councilman who won the most votes during elections) ==Elections==