4.1 An overview

13The DecisionesSupremiSenatusLusitaniaewas first published in Lisbon in 1578 by the typographer Emanuel Ioannes. There is some information about many other editions in different parts of Europe in the following years, but it is difficult to confirm the veracity of these data. One of the most trustful lists of publications, even with some problems²², is the onde presented by Johannes-Michael Scholz, who has found nineteen different editions, most of them in Antwerp²³.

14Gama wrote this book in only one volume, originally with 390 decisiones, which were, as it was already mentioned, the argumentative unity of the book. This number of decisiones was only found in the publication of 1578, and the later editions also consulted (1610, 1683 and 1735) have three more (393). As we could not consult the editions published between 1578 and 1610, it is not possible to affirm precisely which one was the first with 393 decisiones. Gama did not explain how he had organized his book, probably because an organization in a modern way did not occur to him. Around 84% of the decisiones dealt with Private Law matters²⁴, but Gama did not intend to write about these questions in a systematic way. Thus, frequent themes like contracts, marriage and donation, even though they were of central relevance in many decisiones, appeared in different parts of the book and not only in a sequence.

15The introductory elements are useful to comprehend the process of making this book. Examining the required licenses in the first folios of the 1578 edition, we can conclude that the book’s final version was ready probably in the end of 1576. Just after the license of Holy Office, from 15/01/1577, and King’s printing license, from 15/03/1577, a king’s act (alvarárégio) from 7/3/1578 prohibiting impressions and sales without licenses during the following fifteen years is an important source to understand the process of producing and selling books in the 16^th century, especially in what waselated to the rigid control not only by the Church, but also by the Crown.

16Francisco Caldas Pereira wrote the preface to the first edition. He was a Justice of the Casa da Suplicação and his book Syntagmatripartitum de iureemphyteutico probably was the most influential work about emphyteusis inius commune. Gama did not write any preface or introduction to the readers. But a very useful way to clarify this objectives with the book that can be found, for instance, in Jorge de Cabedo’s Practicarumobservationes. Caldas Pereira’s text is the only part of the book where we could find a reflection on the work itself. Caldas Pereira believed in the book’s usefulness in solving practical controversies on secular jurisdiction mainly because of the references on the Highest Court judicial decisions²⁵. The DecisionesSupremiSenatusLusitaniwas not an isolated book, and so Caldas Pereira mentioned other works with similar perspectives such as the volumes based on CapelaTholosana’s, SacroRegioConsiglioNeapolitano’s, Parlement of Bordeaux’s and Paris’s and Piemonte’s Senate’s decisions²⁶, and, at this moment, because of Caldas Pereira’s words, I perceive clearly Gama’s own awareness of doing something connected to the European juridical production. In the end, after talking about the author’s prestigious and successful career²⁷, Caldas Pereira exalted the necessity of finding justice not in the rigid rules, but in concrete situations and with an imperative flexibility, just like the Lesbos’s rule²⁸.

4.2 Additiones

17One especial information about the formal aspects of this book is related to the continuity of its use in the following decades. A first evidence is the high number of editions printed for almost one hundred and fifty years, but there is another one: the additiones. If the relevance of decisiones literature is quite related to the possibility of maintaining its readers updated, the book’s success cannot be separated from its capacity of convincing the jurists that the arguments there found were still accepted as valid. Works of some of the most important Italian authors, such as Matthaeus De Afflictis, Antonius Capicius and Vincenzo De Franchis, were frequently updated. According to Marco Nicola Miletti, the additiones’ contribution could be noticed either in the valuing of the original text or in its role as an autonomous contribution printed in the same volume of an already successful work, probably for commercial reasons. However, in all cases the additiones became part of the previous work at the same time they were consulted and cited autonomously²⁹.

18In Portuguese decisiones only the works of António de Sousa de Macedo and António da Gama were added. Bartolomeu Flores de Mena was the responsible for the additiones on Gama in some editions (1699 and 1735, for example). After each decision, there was an additio that operated as a critical comment to the decisio’s matter. Mena intended to go further in some insufficient discussions with references to new books or titles unknown to the original author³⁰, often to reinforce Gama’s opinion. However, in other cases like the Decisiones VIII and XXIII, Flores de Mena supported opposite views. Albeit the recognition of Gama’s authority, Flores de Mena said directly that his opinions were not mandatory, in particular to the Casa da Suplicação³¹.

19Included in many editions of the DecisionesSupremiSenatusLusitaniae, the additiones of Flores de Mena were also published in an autonomous volume in 1601³², what proves its relevance as an independent work.

5.1 General importance of Case Law in the book (a concrete problem)

21The real importance of case law to decisiones literature was to serve as a source, and source here has two meanings: on the one hand, a source to construct and to base the argument presented in each decisio, just like other sources of law, especially statute law, costume and authority of jurists³⁴; on the other, source as reference to concrete questions decided by an important court, which serves as the decisio’s theme. Gama and other authors discussed not only concrete but also doubtful questions; in other words, the center of a decisio was a specific and unclear problem whose answer was not evident. However, the particular characteristic of decisiones was the origin of these concrete problems: these cases were already decided by the courts often mentioned in the book’s title³⁵.

22It is true that some decisiones were not based on concrete questions. That is clearer, for example, in Jorge de Cabedo’s Practicarumobservationum³⁶ than in the book here analyzed, but it does not correspond to the majority of the work. In Gama’s book, each decisio has at least one concrete problem that must be solved; the decisio was the fundamental unit of the book, a problematic unity and an argumentative topos with a final solution. In this sense, case law was exactly the source of the problems: they were not created by the author’s mind; among many problematic situations faced in court’s practice, some of them were picked out to be discussed. A practical question was the elementary problem described and answered in the end of the decisio.

5.2 Case Law and the structure of the work

23If the starting point of decisiones literature was a problem faced in the courts and all the following discussion intended to give this question a solution with the best and more persuasive arguments, it is not difficult to understand the relevance of case law, including the structure of the decisiones.

24A description of the concrete and real situation which inspired Gama’s writings was usually found in the beginning of the decisio. The Decisio XCII is an example with its direct references to the parties (petitioner and respondent) and to detailed information about the juridical question³⁷, as well as Decisiones XXXIX³⁸, CCXI³⁹ and CCXXIX⁴⁰, whose first paragraph includes a direct inquiry, or inquiries in the case of Decisio LXXI⁴¹, that shall be answered within the decision. But Gama began some decisiones with direct inquiries just after a very quick description of the situation and without references to the real litigation⁴² or, far more used, a structure telling about the existence of doubtful controversies⁴³.

25Even when there was no literal reference to a case decided by a court, the guiding role of case law was unquestionable. In the few decisiones where Gama did not mention cases decided by the Casa da Suplicação, he has used structures that confirm decisiones as a case law-born argumentative unit: related cases were truly doubtful⁴⁴, justices were not sure about how they would decide⁴⁵ or Gama himself and some of his colleagues at the court disagreed about how should they decide⁴⁶.

5.3 Quotation and direct references

26Gama has used quotation in many moments, although not particularly often. The quotes were direct references to important sources, such as Portuguese Laws (Ordenações or other royal acts), documents filed in the lawsuit which had based the decisio (contracts or testaments, for example) and, what is more interesting now, other juridical decisions, all of them in the original language, different from the Latin written text of this book.

27Only in 10 of 390 decisiones has Gama quoted literally a decision of the Casa da Suplicação⁴⁷. These references were complete, announcing the most import lawsuit’s data (names of the parties and of the notary responsible for writing the decision, the city where the litigation took place, the complete date when the justices decided and very often the name of the justices). As previously said, the quotation comprehends only the dispositive part of the sentence, but not the debates to construct the final decision. In other words, the quote refers to the conclusions and not to how the justices had reached the conclusions. Here is an example of a Casa da Suplicação’s decision quotation:

28Acordamos do desembargo del Rey nosso Senhor, que o supricante he agravado pollo corregedor, & corregendo seu agravo. Visto como se prova Diogo Pinto irmano do A. ser vivo ao tempo quo sua avo, ultima possesora deste morgado falaceo & ser mais velho que o Reo Belchior Botelho, & como tal aceitou o dito fideicommisso & dereito delle, no qual por sua morte sucedeo o A. seu irmano Francisco Pinto: o que todo visto, & a disposicano da ley nova, que admite o parente mais chegado ao ultimo possuidor na sucessano dos morgados & o mais dos autos, condenado ao R. que abra mano do morgado da contenda & proprietades delle, com os fructos & rendimentos da lide, contestada em diante, & a condenado nas custas dos autos Ao primeiro Dagosto de 1573⁴⁸.

5.4 Case law and reasoning