1. bookVolume 5 (2020): Issue 1 (December 2020)
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Multinormativity Emerges From Multilevel Governance. Uses of the Council of Trent in Examinations for Ecclesiastical Benefices in 19th-Century Brazil

Published Online: 24 May 2021
Page range: 96 - 115
Journal Details
First Published
30 Sep 2016
Publication timeframe
1 time per year

I analyse how the Council of Trent was employed in cases of examinations for ecclesiastical benefices in 19th-century Brazil, relying on sources from the Council of State and the Congregation of the Council. Considering the Church within a scenario of multinormativity and multilevel governance, I argue that the interactions for the resolution of ordinary problems conveyed – and even catalysed – different interpretations of legal norms, depending on the agents interacting and the normative conventions adopted. In the case of Imperial Brazil, I suggest the uses of Trent shifted from a convention of amalgam to a convention of separation, with significant nuances.


I wish to express my gratitude to the professors and researchers who, by means of comments, suggestions, and opportunities, helped shaping the final version of this article. I address, in particular, Benedetta Albani, Ricardo Sontag, Olaf Blaschke, Osvaldo Rodolfo Moutin, André Luis Pereira Miatello, Arthur Barrêtto de Almeida Costa, Peter Becker, Peter Collin, the colleagues at the Workshop: Administrative Multinormativity. Normenkonflikte in verwaltungshistorischer Perspektive (Frankfurt am Main, 27–28 September 2019), and the anonymous reviewers.

Nineteenth-century Brazilian ecclesiastical administration can be recognised as the object of a system of multilevel governance orientated by a wide range of normative resources. Not only the local clergy, but also imperial institutions and the Roman Curia were engaged in diocesan administration. The responsibility of the Empire of Brazil (1822–1889) towards Catholic institutions (churches, monasteries, seminaries, etc.) in its territory was due to the maintenance of royal patronage (padroado) after the country’s independence.

Dilermando Ramos Vieira: História do catolicismo no Brasil (1500–1889), vol. I, Aparecida 2016; Ítalo Santirocchi: Questão de Consciência. Os ultramontanos no Brasil e o regalismo do Segundo Reinado (1840–1889), Belo Horizonte 2015; Guilherme Pereira das Neves: A religião do Império e a Igreja, in: Keila Grinberg / Ricardo Salles (eds.): O Brasil imperial, vol. 1 (1808–1831), Rio de Janeiro 2009, pp. 379–428; José Hauck et al.: História da Igreja no Brasil. Ensaio de interpretação a partir do povo. Segunda Época. A Igreja no Brasil no século XIX, Petrópolis 1980; Eduardo Hoornaert: Formação do Catolicismo Brasileiro, Petrópolis 1974.

Brazil echoed to some extent the legal pattern that had underlain the relationship between ecclesiastical and secular powers in Portugal since the early modern period,

Ângela Barreto Xavier / Fernanda Olival: O padroado da coroa de Portugal: Fundamentos e práticas, in: Ângela Barreto Xavier / Federico Palomo / Roberta Stumpf: Monarquias Ibéricas em Perspectiva Comparada (séculos XVI–XVIII). Dinâmicas imperiais e circulação de modelos político-administrativos, Lisboa 2018, pp. 123–160; Giovanni Pizzorusso: Il padroado régio portoghese nella dimensione ›globale‹ della Chiesa romana. Note storicodocumentarie con particolare riferimento al Seicento, in:Giovanni Pizzorusso / Matteo Sanfilippo (eds.): Gli archivi della Santa Sede come fonte per la storia del Portogallo in età moderna, Viterbo 2012, pp. 157–199; Isabel dos Guimarães Sá: Estruturas Eclesiásticas e Acção Religiosa, in: Francisco Bethencourt / Diogo Ramada Curto (eds.): (eds.): A expansão marítima portuguesa, 1400–1800, Lisboa 2010, pp. 265–292; José Pedro Paiva: Os Bispos de Portugal e do Império, 1495–1777, Coimbra 2006; António Manuel Hespanha: O direito dos letrados no império português, Florianópolis 2006.

but the novel Empire did so within a framework of transition between the Ancien Régime and 19th-century liberal constitutionalism. Stated very briefly, this meant the emperor, by means of the bureaucratic network of the Executive Branch (and, in some cases, with the participation of the Legislative), engaged in the appointment of ecclesiastics, the clergy’s sustaining and discipline, the setting of diocesan limits, the control over norms issued by the Holy See, etc.

It is worth to remember that, due to the padroado system, administrative legal books from the imperial period characterised ecclesiastical law in close relationship to (secular) administrative law, sometimes as a »powerful auxiliary«, other times as a »natural auxiliary«. See: Antonio Joaquim Ribas: Direito Administrativo Brasileiro. Noções Preliminares, Rio de Janeiro 1866, pp. 29–30; José Rubino de Oliveira: Epítome de Direito Administrativo Brasileiro, São Paulo 1884, p. 17.

Despite the nationalist waves observed during the 19th century, the Brazilian Church was not excluded from contact with the Holy See. On the contrary, the administration of imperial dioceses involved, to a greater or lesser extent, interaction between local ecclesiastical authorities and Roman dicasteries via the sending of reports, dubia, requests for faculties and validations.

This system of multilevel governance

Although the term governance is part of a well-known tradition of debates in the fields of political science and international relations, I adopt it insofar as it allows a historical interpretation that embraces the interplay of multiple norms, agents and jurisdictions in a context of uncertainty – or, stated more positively, open-endedness, non-ready-made solutions. »Government« and »administration« are terms usually attached to the organisation of a specific institution, the state, in particular as it was conceived from the 19th century onwards, with terms such as »efficiency« and »certainty« gravitating around its semantic field (as one may see, for instance, in Max Weber). Governance emerges as a more useful term because it implies a wider organising framework, which contains the state, but also includes bodies beyond its boundaries, as it is the case of the Holy See and the Roman congregations, and acknowledges the relations that bodies within the state (e.g., local churches) establish with those without – and the echoes of such relations in the whole system. In fact, governance possesses a more dynamical character, for it is primarily concerned with interactive processes. My main references for this concept of governance are: Gerry Stoker: Governance as theory: five propositions, in: International Social Science Journal 50 (1998), pp. 17–28; Michael Zürn: Global governance as multi-level governance, in: Henrik Enderlein / Sonja Wälti / Michael Zürn (eds.): Handbook on Multi-level Governance, Northampton 2010, pp. 80–99.

operated in a scenario of coexistence of norms created/interpreted by different institutions and actors, in different historical periods. Matters of Church administration, such as ecclesiastical examinations for the provision of benefices (in Portuguese: concursos eclesiásticos para provisão de benefícios), could be orientated by norms from past centuries, such as the Council of Trent, or ordinances, alvarás, and other sorts of regulation from the Portuguese old regime; but fresh (though scattered) Brazilian legislation was also available, along with recent pontifical constitutions and case law from the Roman Curia. The absence of a major codification of canon law and the failure to conclude a concordat between Brazil and the Holy See were factors that contributed to this scenario of multinormativity.

I say multinormativity, and not more widespread terms, such as legal pluralism,

On political and legal pluralism, see: Antonio Manuel Hespanha: As Vésperas do Leviathan – Instituições e Poder Político em Portugal, Séc. XVII, Coimbra 1994; Michael Stolleis: Legal Pluralism in the 19th and 20th Century, in: Annals of the Faculty of Law in Belgrade, International Edition 4 (2018), pp. 5–12.

because ecclesiastical administration, being strongly related to praxis, was guided by logics that went beyond legal norms.

The way I conceive multinormativity is largely inspired by the introductory remarks of Thomas Duve: Was ist ›Multinormativität‹? – Einführende Bemerkungen, in: Rechtsgeschichte – Legal History Rg 25 (2017), pp. 88–101. See also: Peter Collin: Ehrengerichtliche Rechtsprechung im Kaiserreich und der Weimarer Republik Multinormativität in einer mononormativen Rechtsordnung?, in: Rechtsgeschichte – Legal History Rg 25 (2017), pp. 138–150.

The different solutions employed (or rather: created) in face of concrete problems did not involve the mere election of »the most suitable legal norm«. It was a matter of interpreting facts and laws within a specific jurisdiction, a specific level of governance – and within a specific context, with all its historical subtleties. Underlying this operation was the adoption – more or less intentional – of certain normative conventions about the Church and its relationship with the state, and about ecclesiastical law. Such conventions provided information on how to dispose of the available legal corpora, and could not be deduced from them. Different periods could witness the hegemony of different normative conventions. Also different governance levels could hold conventions of their own, giving way to unexpected outcomes once the levels interacted. Interaction, in fact, is the keyword when it comes to governance.

Governance itself is an interactive process, as in Gerry Stoker: Governance as theory: five propositions, p. 22.

For the Brazilian Church, it means that the uses of legal norms were connected not only to practices of local reach, but also to the interactions between the local clergy and higher instances from the Empire and Rome, which were in charge of providing opinions and decisions to a varied range of cases. In short, interaction enabled the circulation and even the changing of the ways of conceiving legal norms and their relationship, in a way that the perception over norms could shift, for instance, from a strongly amalgamated normative body to neatly separate groups of norms.

The Brazilian social historiography from the 1980s and 1990s focused on the political clashes between regalism

A politico-religious perspective typical of absolutist monarchies, especially during the 18th century, with trends like gallicanism, Febronianism and Josephinism. It advocates the idea of a »Church within the state«, the former controlled and inspected by the latter, with the suppression or restriction of ecclesiastical jurisdiction. With measures such as the placet or the appeal to the Crown, secular sovereigns would exercise certain rights over the Church which were solely attached to a monarch’s quality as such, the circa sacra rights. See: Sylvio Hermann de Franceschi / Bernard Hours (org.): Droits antiromains. Jurisdictionalisme catholique et romanité ecclésiale. XVIe–XIXe. Actes du colloque de Lyon (30 septembre–1er octobre 2016), Lyon 2017; Alberto de la Hera: El regalismo borbónico en su proyección indiana, Madrid 1963; Ítalo Santirocchi: Questão de Consciência: os ultramontanos no Brasil e o regalismo do Segundo Reinado (1840–1889).

and ultramontanism

A politico-religious perspective that emerged during the Restoration and further developed along the 19th century. It defended that the Catholic Church, as an institution, was entirely autonomous from the state, both conceived as perfect societies in mutual cooperation. From this point of view, ecclesiastical law was more excellent than civil law, given its higher objectives. The most delicate point was that the Roman pontiff was said to be the supreme judge of spiritual and also temporal matters from a universal perspective. In other words, the pope was deemed able of legitimately censoring temporal governments in the event of disrespect towards divine or ecclesiastical law. Ultramontanism found support from the Vatican especially during the pontificate of Pope Pius IX, having gained popularity among many clerics and lay people throughout the whole Catholic world. The influence of this movement could be particularly felt during the First Vatican Council. See: John W. O’Malley: Vatican I. The Council and the Making of the Ultramontane Church, London 2018; Olaf Blaschke: Der Aufstieg des Papsttums aus dem Antiklerikalismus. Zur Dialektik von endogenen und exogenen Kräften der transnationalen Ultramontanisierung, in: Römische Quartalschrift für Christliche Altertumskunde und Kirchengeschichte 112 (2017), pp. 21–35; Francisco Javier Ramón Solans: Más allá de los Andes: los orígenes ultramontanos de una Iglesia latinoamericana (1851–1910), Bilbao 2019; Ítalo Santirocchi: Questão de Consciência: os ultramontanos no Brasil e o regalismo do Segundo Reinado (1840–1889).

during the second half of the 19th century, emphasising the conflict of perspectives between Brazilian secular powers (along with the ecclesiastical sympathisers of regalism) and the so-called reformist branch of the ecclesiastical hierarchy, the ultramontane clergy, as if there had always been a clear separation between a »National Church« project and a »Roman«, »Tridentine Church« project.

The depiction of polarising, clear-cut perspectives; the focus on the conflictive aspect of Church and state relations; and the emphasis on the gap between ecclesiastical elites and popular faith. These are the distinctive features of the social history of the Brazilian Church as conceived by historians such as João Fagundes Hauck, Hugo Fragoso and Riolando Azzi, between the 1980s and 1990s. The argument of the polarisation of church models during the Second Reign (1840–1889), with advantage for the »Roman« model, can be observed in excerpts like the following: »A Igreja, como instituição, torna-se neste período histórico mais ›católica romana‹ e menos ›nacional‹. Todo o movimento de reforma levado avante pelo nosso episcopado no Segundo Império tinha como premissa a vinculação e ›sujeição‹ à Sede Romana. Por outro lado, o movimento de independência da Igreja em face do Estado visava afirmar que éramos ›católicos romanos‹ e não ›católicos do Conselho de Estado‹ […]«, in: Hauck et al.: História da Igreja no Brasil, pp. 143–144.

I believe the tension between ultramontanists and non-ultramontanists (regalists, liberals, etc.) informed the governance of the Church to a significant extent. In fact, with this article, I claim that the normative convention underlying such tension helped to catalyse the separation or even the exclusion of certain laws from the consideration of administrative bodies and agents. But – my claim continues – not in all cases, not in an always clear-cut manner and certainly not during the whole period.

In this article, I analyse how the Council of Trent, a corpus of dogmatic and disciplinary decrees of canon law emerged in mid-16th century, yet still in force during the 1800s, was employed in the resolution of cases of ecclesiastical examinations for the provision of benefices in Imperial Brazil between 1840 and 1889. It is worth reminding that the Council of Trent was a milestone in the procedural standardisation of ecclesiastical examinations in the Catholic world.

On the impact of the Council of Trent in ecclesiastical examinations and the corresponding fostering of the professionalisation of the clergy, see: Carlo Fantappié: L’invention du concours public, in: Historia et Ius 15 (2019), pp. 1–11; Carlo Fantappié: L’évolution du statut canonique du clergé paroissial tridentin d’après la Congrégation du Concile, in: Daniella Miranda Santos / Ana Palmira Bittencourt Santos Casimiro: Les clercs et les princes. Doctrines et pratiques de l’autorité ecclésiastique à l’époque moderne, Paris 2013, pp. 61–76. On ecclesiastical examinations (for parishes, cathedral chapter positions, etc.), influenced to a major or lesser extent by the Council of Trent, from local perspectives, see: René Metz: La paroisse en France à l’époque moderne et contemporaine. Du concile de Trente à Vatican II. Les nouvelles orientations. (Première partie), in: Revue d’Histoire de l’Église de France 60/165 (1974), pp. 269–295; Toon Quaghebeur: Le concours diocésain dans l’archidiocèse de Malines 1586–1786, in: Revue d’Histoire Ecclésiastique 97 (2002), pp. 846–891; Valentina Ayrolo: Concursos eclesiásticos como espacios de ejercicio de poder. Estudio de caso: los de la sede cordobesa entre 1799 y 1815, in: Hispania Sacra LX/122 (2008), pp. 659–681; Aldair Carlos Rodrigues: Poder eclesiástico e inquisição no século XVIII luso-brasileiro: agentes, carreiras e mecanismos de promoção social [PhD dissertation], São Paulo 2012; Hugo Ribeiro da Silva: O Concílio de Trento e a sua recepção pelos cabidos das catedrais, in: António Camões Gouveia / David Sampaio Barbosa / José Pedro Paiva (eds.): O Concílio de Trento em Portugal e nas suas conquistas: olhares novos, Lisbon 2014, pp. 79–101; Hugo Ribeiro da Silva: Patron-Client Relations and Ecclesiastical Careers: Securing a Place in a Portuguese Cathedral (1564–1640), in: The Catholic Historical Review 101/1 (2015), pp. 28–47.

For the purposes of this article, I rely on sources from two higher levels of governance of the Church in Brazil: the Brazilian Council of State and the Roman Congregation of the Council. The Council of State was the imperial advisory board, formed by lifelong members chosen by the emperor among the political elites and high administrative ranks; this organ issued opinions on the correct interpretation of the law in force in Brazil.

José Reinaldo de Lima Lopes: O Oráculo de Delfos. O Conselho de Estado no Brasil-Império, São Paulo 2010; Maria Fernanda Vieira Martins: A velha arte de governar: um estudo sobre política e elites a partir do Conselho de Estado (1842–1889), Rio de Janeiro 2007; José Murilo de Carvalho: A Construção da Ordem – a elite política imperial. Teatro de sombras – política imperial, São Paulo 2003.

The Congregation of the Council, on its turn, was a dicastery of the Holy See, more precisely, a permanent collegiate organ composed by cardinals, whose function was to watch over the implementation of the Tridentine disciplinary decrees in the Catholic world.

Regis Parayre: La S. Congrégation du Concile. Son histoire, la procedure, son autorité, Paris 1897; Guillelmus Varsányi: De competentia et procedura S. C. Concilii, in: La Sacra Congregazione del Concilio. Quarto Centenario della Fondazione (1564–1964). Studi e ricerche, Vatican 1964, pp. 51–161; Luigi Stangarone: La S. C. del Concilio al tempo di Papa Pio IX, in: La Sacra Congregazione del Concilio. Quarto Centenario dalla Fondazione (1564–1964). Studi e ricerche, Vatican 1964, pp. 179–249. More recent research developments in: Benedetta Albani: In universo christiano orbe: la Sacra Congregazione del Concilio e l’amministrazione dei sacramenti nel Nuovo Mondo (secoli XVI–XVII), in: Mélanges de l’École française de Rome. Italie et Méditerranée 121/1 (2009), pp. 63–73. It is worth mentioning that Albani currently leads a research group focused on the activities of the Congregation of the Council; I refer to the Max Planck Research Group »Governance of the Universal Church after the Council of Trent: Papal Administrative Concepts and Practices as exemplified by the Congregation of the Council between the Early Modern Period and the Present«, located at the Max Planck Institute for European Legal History, Frankfurt am Main, Germany.

Though very different in terms of background and scope, both institutions ruled over the Brazilian ecclesiastical administration by providing legal interpretation and solution to local petitions.

By examining cases from these institutions, I wish to demonstrate that the Council of Trent was perceived and employed in different ways, depending on the level(s) of governance involved, the degree of politico-religious tension achieved and, most importantly, the dominating normative convention. One of my basic claims is that Trent was not interpreted exclusively by the ecclesiastical hierarchy. Imperial bureaucracy also performed such operation. Moreover, Trent was not considered solely in itself; it was often compared with, connected to or discarded in relation to other norms, in accordance with distinctive patterns.

As hinted, I work with the hypothesis that both state and clergy started addressing Trent by means of normative conventions of exclusion and separation following the escalation of the political opposition between groups interested in the reformation of the Church according to Roman standards (or to what they believed Roman standards were), commonly called ultramontanists, and groups that stood against this movement. This opposition took shape in Brazil from 1850 onwards, with the first generation of bishops regarded as »reformers«; it reached an acute stage in the 1870s, with the closing of the First Vatican Council and the struggle between clerics, lay brotherhoods, and state bureaucrats during the Brazilian »Religious Question«.

Historiography usually focuses on the political aspects of these phenomena, and often relies on a conflictive – and static – dichotomy between ultramontanists and nonultramontanists. I propose, instead, that, as the disputes were dynamic, so were the normative conventions. I claim that before the escalation of tension, the Council of Trent was addressed according to a convention that emphasised normative diversity and amalgam, as if Tridentine decrees were part of a vast toolbox of laws which, regardless of origin, regulated Church affairs, in the view of both state and priests. I also sustain that, even in the apex of the politico-religious polarisation, the development of legal solutions, coming in particular from the state, was not as linear as dichotomist thinking may lead us to believe. Finally, I highlight that, in the case of ecclesiastical examinations, the changing roles of the Council of Trent ran in parallel with 19th-century transformations of ecclesiastical law as a legal field.

Francisco Vieira das Chagas’s case (1879–1881) as a turning point

The main prerogative of the emperor as patron of the Brazilian Church was to appoint clerics to vacant benefices.

»Ecclesiastical benefice« comprises the patrimony or revenue attached to an ecclesiastical office. In the Brazilian Empire, due to the scarcity of temporal goods of the Church, benefices are understood as the perpetual right that clerics have of receiving payment from the state in return for services performed to the Church, as we see in: D. Manuel do Monte Rodrigues d’Araujo: Elementos de direito ecclesiastico publico e particular em relação á disciplina geral da Igreja e com applicação aos usos da Igreja do Brasil, vol. II. Das Cousas Ecclesiasticas, Rio de Janeiro 1858, p. 443. Benefices may involve preaching and the administering of sacraments, or not. In the first case they are characterised as benefices with cure of souls (e.g. parish priest). Among benefices without cure of souls are the canons, i.e. the offices performed within the cathedral chapter and, in this same context, certain dignities (dean, cantor, etc.).

In the administrative path towards canonical provision, this step was known as presentation (in Portuguese: apresentação). The rising Brazilian literature on ecclesiastical law would often refer to it as central to padroado, sometimes even as its very definition. In practical terms, presentation depended on the offering of a proposal (proposta) to take place. That is to say, before exercising his right, the monarch, by means of his ministers, should receive a list prepared by the ordinary of the corresponding diocese, containing the names of potential beneficiaries. This list would contemplate the results of examinations (concursos) previously organised and presided by the ordinary or one of his delegates. Depending on the nature of the benefice, oppositions (oposições, a synonym for examinations) would comprise more or less steps. Benefices with cure of souls required more demanding exams in comparison with those without. Candidates to a parish church, for instance, underwent not only an appreciation of their life records and morals, but also an evaluation of their knowledge of doctrine and canon law.

Before 1828, local examinations were controlled by the Board of Conscience and Orders (Mesa de Consciência e Ordens) to a variable extent. The alvará of 14 April 1781, known as Alvará das Faculdades, a royal regulation from the times when Brazil was still a Portuguese colony, had allowed relative autonomy to Brazilian bishops in the conducting of oposições. The proposal, however, once ready, should be sent immediately to the Board, in Lisbon. Delays, omissions and nullities would imply the making of new examinations, this time presided by the Board itself. The alvará of 14 February 1800 went even further, granting to the Board the right of performing its own oppositions regardless of defects in the ordinary’s proposal, and in a more rigorous fashion, so as to allow the monarch to choose between the ordinary’s and the Board’s nominees. Neves’s seminal work

Guilherme Pereira das Neves: E Receberá Mercê. A Mesa da Consciência e Ordens e o clero secular no Brasil, 1808–1828, Rio de Janeiro 1997.

on the Board while it was installed in Brazilian territory (1808–1828) shows that, with the independence (in 1822), the effects of some centralising norms decreased (in fact, the alvará of 1800 endured a period of revocation between 1822 and 1823) and episcopal examinations regained a more autonomous status. Even so, the Board retained some of its controlling power, emitting opinions on the procedures adopted by ordinaries and at times reforming proposals. Overall, the Board’s efforts display the centralising character of this institution, its urge to provide standard criteria for the selection of benefice holders.

The Second Reign (1840–1889), on its turn, exhibits a different picture. The organs that had succeeded the Board of Conscience and Orders in the task of dealing with ecclesiastical affairs did not inherit its, so to speak, proactive character. Neither the Ministries of Justice or Empire nor the Council of State would ever attempt to conduct ecclesiastical examinations or to reformulate episcopal proposals. The Council of State could, at most, endorse the organisation of a second round of concursos, after the first ones were confirmed invalid by the Emperor. The presiding of examinations, however, would always rest in the hands of bishops and vicars capitular. Local practices had, thus, more room to flourish – or rather to be kept, enjoying less interference from the secular government. Petitions reaching the Council of State and the Congregation of the Council during the second half of the 19th century are testimony of the decentralisation of practices related to examinations and proposals. Normative references were varied, none of them overarching, there were lacunae, much room for custom, discretion and misunderstandings. In such sense, if these petitions portray plurality, they also unveil new calls towards standardisation, towards certainty.

My point of departure will be a case of tension between the Council of Trent, the Alvará das Faculdades, and diocesan custom. I shall use this example as a sort of benchmark to address similar situations before and after it, for this is the first time we see, from the perspective of the Council of State, the establishment of an excluding relationship between Trent and Faculdades – with the rejection of Trent. It was also the first time that the Congregation of the Council had to decide on the validity of ecclesiastical examinations from Brazil, having become acquainted with the country’s local practices. The case I am mentioning concerns the oposições for the provision of several benefices in Olinda between 1879 and 1881. This diocese encompassed the territory of the province of Pernambuco, northeast of Brazil; the cathedral was located in the province’s capital, Olinda, hence the diocese’s denomination. In the beginning of the 19th century, the town of Olinda, along with its neighbour Recife, was an effervescent cultural centre. Not by chance, in 1827, Olinda was chosen as home to one of the two law schools of the Empire; the Faculty of Law of Olinda followed the steps of the local seminary, then a thriving cradle of liberal ideas.

Daniella Miranda Santos / Ana Palmira Bittencourt Santos Casimiro: História do ensino jurídico brasileiro. O Seminário de Olinda como precursor dos cursos jurídicos no Brasil Império, in: Revista Thesis Juris 2/1 (2013), pp. 258–287.

Recife would eventually take Olinda’s place as capital (1827) and as seat of the faculty of law (1854). But Olinda’s legacy to Brazilian legal culture would remain. By the 1860s, all three main Brazilian jurists engaged in scientific polemics regarding ecclesiastical law had the Faculty of Law of Olinda as their alma mater. They were: Jeronymo Vilella de Castro Tavares, D. Manuel do Monte Rodrigues d’Araújo and Candido Mendes de Almeida. The province witnessed a growing animosity between liberals and ultramontanists as decades went by. And the diocese was particularly active in demanding answers from the Council of State and the Congregation of the Council on administrative matters. The case about to be examined involves precisely a clashing between the responses of the two organs.

It begins with Francisco Vieira das Chagas, a young priest who was approved at an examination for the filling of vacant parishes in Olinda on 11 July 1879. At the time, the diocese was sede vacante, and the examination was coordinated by Vicar Capitular José Joaquim Camello de Andrade. Francisco Vieira was presented to the emperor on 16 February 1880. Nevertheless, before receiving his collation (colação)

Colação, collation refers to the act of the ordinary ecclesiastical authority of communicating to the elected priest the powers to perform an ecclesiastical office and administer the corresponding benefice. In the case of the parishes in Imperial Brazil, this act took place between the presented priest and the bishop or vicar capitular of the related diocese. See: D. Manuel do Monte Rodrigues d’Araujo: Elementos de direito ecclesiastico publico e particular, vol. II, p. 449.

from the vicar capitular, Francisco Vieira submitted to the Congregation of the Council a petition requiring the convalidation (sanatio) of the very examination in which he had been approved.

Archivio Apostolico Vaticano (Vatican) [AAV], Congregazione del Concilio [Congr. Concilio], Positiones: »die 11 7mbris 1880, Lit. N ad R, I. Verga Secret.«, Olinden, Petition from Franciscus Vieira, fol. 1r, »Em.i Patres! Ad Sacram Congregationem S. Concilii Tridentini […]«, 1880.

The petition was received on 10 April 1880. According to the young priest, his canonical institution would bear no validity unless there was legal remedy for the fact that his examination did not follow the Tridentine regulation regarding the quality of examiners. More specifically, the vicar capitular had not summoned synodal examiners, as required by the following decree:

[A]nd as regards the examiners, six at least shall be annually proposed by the bishop, or by his vicar, in the diocesan Synod; who shall be such as shall satisfy, and shall be approved of by the said Synod. And upon any vacancy occurring in any church, the bishop shall select three out of that number to make the examination with him; and afterwards, upon another vacancy following, he shall select, out of the six aforesaid, the same, or three others, whom he may prefer. But the said examiners shall be masters, or doctors, or licentiates in theology, or in canon law.

Council of Trent, Session 24, De reformatione, Canon 18, in: The Council of Trent. The canons and decrees of the sacred and oecumenical Council of Trent, ed. and trans. J. Waterworth, London 1848.

Francisco Vieira exposed that the vicar capitular did not have any special faculty granted by the Congregation of the Council to nominate ad hoc examiners, as occurred. Moreover, continues Vieira, the vicar capitular, without consulting the cathedral chapter, nominated three examiners who did not have superior studies on Theology or Canon Law, nor did they teach such disciplines as Masters, going against Trent once more.

The Congregation of the Council soon summoned the vicar capitular for information on the legitimacy of the cause.

AAV, Congr. Concilio, Positiones: »die 11 7mbris 1880, Lit. N ad R, I. Verga Secret.«, Olinden, Petition from Franciscus Vieira, fol. 2v, »Em.i Patres! Ad Sacram Congregationem S. Concilii Tridentini […]«, 1880.

Andrade claimed that, even though he did not have special faculties to nominate ad hoc examiners, he did not act based on bare free will, but relied on the »long standing uses of the diocese«.

AAV, Congr. Concilio, Positiones: »die 11 7mbris 1880, Lit. N ad R, I. Verga Secret.«, Olinden, Information and vote from Olinda’s Vicar Capitular, Josephus Joachim Camello de Andrade, fol. 2r, »Eminentissime D. D. Ingenti sane reverentia […]«, 1880.

To demonstrate it, the vicar capitular stated that there were never synodal examiners in Olinda, for no synod was ever conducted in the diocese; also, as far as his knowledge could reach, no ordinary had ever asked the Holy See for special faculties to indicate the members of the examination board. This last piece of information, however, does not match with the data from the Congregation of the Council. There is register of at least one petition from the Bishop of Olinda, in 1868, asking for faculties to nominate examiners as if they were chosen in a synod.

AAV, Congr. Concilio, Positiones: »die 21 Martii 1868, Lit. D ad P. P. Giannelli Secr.«, Olinden, Petition from the Bishop of Olinda, D. Francisco Cardoso Ayres, fol. 1r, »Beatissime Pater, Cum desint Moderno Episcopo Olinden in Brasilia Examinatores Synodales [...]«, 1868.

Yet, according to the Vicar Capitular of Olinda, unmemorable custom allowed examiners to be nominated motu proprio in good faith. It is significant that Andrade, in contrast with state officers (as we will soon see), never mentions the Alvará das Faculdades as the normative support behind such practice. This points to the different normative expectations that each level of governance placed on the same phenomenon.

On the lack of titles and professional qualification of the examiners, the vicar capitular justified his choice on grounds of the moral qualities and de facto erudition displayed by the ones selected, a reasoning contemplated by Trent. On the lack of consultation with the cathedral chapter, Andrade recurred once more to the argument of custom. He added that, when the chapter of Olinda chose him as vicar capitular, the election entailed a transmission of jurisdiction and powers which included the faculty of nomination of examiners. This is a hardly reliable argument, since the Congregation of the Council was in charge of the concession of such faculties. Not by chance, the vicar capitular sought means to regularise his situation with the Holy See soon later.

AAV, Congr. Concilio, Positiones: »die 29 Januari 1881. Lit. N ad P. I. Verga Secret.«, Olinden, Petition from Olinda’s Vicar Capitular, Josephus Joachim Camello de Andrade, fol. 1r, »B.me Pater, Cum desint Vic. Capitulari Olinden. Exam. Synod. […]«, 1881.

In view of this, on 12 July 1880, after considering the report made by the Secretary of the Congregation of the Council, Pope Leo XIII, in audience, decided to concede the sanatio to Francisco Vieira, that is to say, the convalidation of the examination for vacant benefices on what concerned specifically Vieira’s case, relying on the good faith of the vicar capitular.

AAV, Libri Decretorum, 223, fol. 587–588, 1880; AAV, Congr. Concilio, Positiones: »die 11 7mbris 1880, Lit. N ad R, I. Verga Secret.«, Olinden, Information and vote from Olinda’s Vicar Capitular, Josephus Joachim Camello de Andrade, fol. 10v, »Eminentissime D. D. Ingenti sane reverentia […]«, 1880.

Later on, another candidate, followed by the vicar capitular himself, would ask for the extension of this sanatio to other approved priests.

The positio with Antonio Graciano de Araujo, candidate to a parish, as petitioner: AAV, Congr. Concilio, Positiones: »die 11 7mbris 1880. Lit. N ad R. I. Verga Secret.«, Olinden, Petition from Antonio Graciano de Araujo, fol. 1r, »B.me Pater! Sacerdos Antonius Gratianus de Araujo Guarita […]«, 1880. The positio with the vicar capitular as petitioner: AAV, Congr. Concilio, Positiones: »die 11 Junii 1881. Lit. I ad P. I. Verga Secret.«, Olinden, Petition from Olinda’s Vicar Capitular, Josephus Joachim Camello de Andrade, fol. 1r–2r, »Emi.tissimi ac Rev.d.mi Patres S.cri Concilii Tridentini Interpretes […]«, 1881.

Overall, the answer from the Holy See, while harnessing acts that, by its standards, were invalid, displayed its relative tolerance towards local practices.

I say relative tolerance because the Congregation of the Council was not always open to deviation in the local enforcement of Trent. As an example, there is the failed attempt of the Bishop of Olinda to receive permission to install examinations in vernacular, on grounds of necessity. The request was met with blunt refusal, as seen in: AAV, Congr. Concilio, Positiones: »die 20 August 1887, Lit. N ad P, C. Santori S.«, Olinden, Petition from the Bishop of Olinda, fol. 1r, »Beatissime Pater, Olindensis ac Recifensis Dioecesis Antistes concursum edicturus […]«, 1887.

On 25 September 1880, Francisco Vieira presented to the vicar capitular a rescriptum containing the decree of the Congregation of the Council on what regarded his petition, so as to establish a date for his collation. Andrade stated that, before granting canonical institution to Vieira, the rescriptum from the Congregation of the Council had to be submitted to the imperial government, to receive the placet – that is to say, the emperor’s approval, so that the decree could produce the due effects in national territory. The placet request was made by the end of that year. Vieira sent a copy of the petition to the Apostolic Internuncio in Brazil right after, »for the sake of his conscience«, wishing to clarify that he was being forced to initiate a procedure that he knew was anathematised by the First Vatican Council.

AAV, Archivio della Nunziatura del Brasile, busta 51, fasc. 241, fol. 12r–12v, 1880.

The case clearly presents a clash of generations. The old vicar capitular, who started preaching during the first half of the century, was still attached to regalist institutions and logics, whereas the young Vieira, ordained in mid-1870s, alumnus of the recently reformed (and no longer liberal) Seminary of Olinda, adopted the language of the reformist, ultramontane clergy, concerned with wider views (»the universal Church«) and strict reasoning (»for the sake of conscience«). The tension between these men, while involving larger politico-religious movements in times of crisis, in times of transition of normative conventions, gave rise to radical outcomes.

On 12 April 1881, the emperor asked the Council of State’s opinion on whether placet should be conceded to the Roman rescriptum presented by Francisco Vieira. The answer, issued on 18 August 1881 by the Section of Imperial Affairs, was negative.

Arquivo Nacional (Brasil) [AN], Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, fol. 1r–19v, Seção Império, Pernambuco, 1881.

The councillors (Viscount of Bom Retiro, Martim Francisco Ribeiro de Andrade and José Caetano de Andrade Pinto) based themselves on the narrative presented by Joaquim José de Campos da Costa de Medeiros e Albuquerque, Chief of the 3rd Directory of the Secretariat of State for Imperial Affairs, who defended the existence of a historical continuity between the padroado built and conceived in Portugal during Ancien Régime times and the padroado in use in the Brazilian constitutional scenario. Many papal bulls containing concessions from the Holy See to Portuguese kings in earlier centuries were mentioned. Campos de Medeiros put emphasis on the bull Praeclara carissimi, from 1551, the so-called »Bull of the Union«, which, by incorporating to the Portuguese Crown the grand mastership of three military orders (Avis, Santiago, de Cristo), granted to Portuguese monarchs the privilege of freely appointing clerics to ecclesiastical benefices and dignities. With the word »freely«, Campos de Medeiros meant that such right should be – and had actually been – exercised with »maximum liberty« by the monarchs, the only concern being the selection of idoneous persons. He conceded that, sometimes, due to the long distances separating Lisbon from ultramarine territories, kings had delegated to bishops the faculty of performing examinations; but, even then, procedural norms issued by the Crown were the primary rules.

In the context of Brazil as a Portuguese colony, the Alvará das Faculdades, a royal regulation from 1781, with which Queen Mary I of Portugal addressed the Bishop of Rio de Janeiro to aid her in the provision of benefices and dignities, was one of the documents that had fulfilled the role of a procedural set of norms for examinations. On what concerns the quality of examiners, one can see that the decree uses a less specific language in comparison with the Council of Trent:

Being, however, the vacant Benefice a Vicariate, a Parish Church, a Chaplaincy, or a Curate, to which I had given, and to which I order to give in the future, collative nature, you shall proceed then to examinations according to the form prescribed by the ancient Alvarás of the Kings my Predecessors, which have been quoted and ordered to be observed by the Alvará of 29 August 1766, summoning for the role of Examiners three Religious men of the highest scores in science and virtue, in the form that is practiced in my Tribunal of the Board of Conscience and Orders; this shall be so not because I am obliged to order the making of said Provisions by means of Examinations; but it shall be so for the greater utility that may result to the Church from [the execution of] these [procedures].

Alvará das Faculdades de 14 de Abril de 1781, in: Copia da analyse da bulla da S.mo Padre Julio III de 30 de dezembro de 1550, que constitue o padraõ dos reys de Portugal […], London 1818, pp. 283–287, free translation. Original version: »Sendo, porém, o Benefício vago Vigararia, Igreja Paroquial, Capelania, ou Curato, a que Eu tenha dado, e mandar dar para o futuro, natureza colativa, procedereis então a concurso de exames na forma que prescrevem os antigos Alvarás dos Senhores Reis Meus Predecessores, excitados, e mandados observar pelo Alvará de vinte e nove de Agosto de mil setecentos e sessenta e seis, chamando para Examinadores três Religiosos dos de melhor nota em ciência, e virtudes, na forma que se pratica no meu Tribunal da Mesa de Consciência e Ordens; não porque Eu seja obrigada a mandar fazer os referidos Provimentos por Concursos; mas sim pela maior utilidade que delles pode resultar à Igreja«.

The point defended by Campos de Medeiros, and later endorsed by the councillors of state, was that, as the Brazilian padroado was a continuation of the Portuguese one – in terms of rights, norms, legal logics, etc. – the Alvará das Faculdades would be the standard normative set regulating ecclesiastical examinations in Brazilian territory. Summoning synodal examiners would then remain as a possibility in the hands of bishops, as Faculdades allowed a broader margin of discretion.

AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, fol. 10v.

The general idea conveyed by Campos de Medeiros was that the Session 24, De reformatione, Canon 18, of the Council of Trent, played no role in the unfolding of Brazilian concursos,

AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, fol. 7v.

the sole protagonist was Faculdades. This relationship of normative exclusion becomes particularly clear when Campos de Medeiros claims that the Congregation of the Council had operated against padroado rights, for it had no competence to decide on Vieira’s case: »it was not a matter of interpretation or execution of the decrees of the Council of Trent«.

AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, fol. 12r, free translation.

According to his view, the dicastery was actually judging the application of Faculdades, an unacceptable procedure: »the Tribunal [the Congregation of the Council] [was] incompetent to take cognisance of the manner Faculdades, by which oppositions are ruled among us, was executed«.

AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, fol. 12v, free translation.

While supporting an exclusionary relationship between Trent and Faculdades, Campos de Medeiros concedes only one common point between them: the fact that both ordered the »best appreciation of the aptitude [idoneidade] and merit of candidates«

AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, fol. 10r–v, free translation.

; Faculdades indeed cited Trent on that matter. However, such narrow understanding of the role of Trent in Brazilian oposições does not seem to be unanimous if one looks at earlier perspectives from within and without the Council of State.

Before Vieira’s case. The transition from a normative convention of amalgam to a normative convention of separation

There were indeed cases in which state councillors had displayed more deference towards the Tridentine decrees when it came to regulating ecclesiastical examinations and related matters (proposal, collation, etc.). Between 1843 and 1881, the year when Vieira’s case arrived at the Council of State, the organ had already issued at least 18 opinions on these subjects.

I rely on a scanning of all cases in full version found in the Council of State’s collection at the National Archives of Brazil, as well as on the opinions compiled in: Consultas do Conselho de Estado sobre Negocios Ecclesiasticos compiladas por ordem de S. Ex. o Sr. Ministro do Imperio, vols. 1–3, Rio de Janeiro 1869–1870.

Six opinions contained no mention to Trent, only to Faculdades.

AN, Fundo Conselho de Estado, caixa 509, pacote 3, documento 45, Seção Justiça, São Paulo, 1846; AN, Fundo Conselho de Estado, caixa 512, pacote 3, documento 4, Seção Justiça, Pernambuco, 1849; AN, Fundo Conselho de Estado, caixa 531, pacote 2, documento 33, Seção Império, Rio de Janeiro, 1862; AN, Fundo Conselho de Estado, caixa 534, pacote 3, documento 45, Seção Império, Bahia, 1863; AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 38, Seção Império, Bahia, 1881; Consultas do Conselho de Estado sobre Negocios Ecclesiasticos, vol. II, Seção Império, Rio de Janeiro, 1862, pp. 119–124.

Two cited neither set of norms.

AN, Fundo Conselho de Estado, caixa 535, pacote 3, documento 54, Seção Império, Rio de Janeiro, 1864; Consultas do Conselho de Estado sobre Negocios Ecclesiasticos, vol. I, Seção Justiça, Mato Grosso, 1843, pp. 63–69.

One opinion, while mentioning just Trent, suggested that, regarding the procedure of the examinations, Tridentine dispositions could have given way to local practices (I will come back to this point).

AN, Fundo Conselho de Estado, caixa 536, pacote 3, documento 40, Seção Império, Pernambuco, 1864.

Four opinions focused on the binding nature of the ecclesiastical proposal for the presentation and collation of candidates; three were favourable to the non-mandatory character of the proposal, in accordance with Faculdades, and mentioning Trent for secondary purposes

AN, Fundo Conselho de Estado, caixa 520, pacote 5, documento 1, Seção Justiça, Minas Gerais, 1856; AN, Fundo Conselho de Estado, caixa 520, pacote 5, documento 1, Pleno, Minas Gerais, 1857; AN, Fundo Conselho de Estado, caixa 521, pacote 4, documento 71, Seção Justiça, Pernambuco, 1857.

; one opinion, however, suggested a contrast between Faculdades and Trent on the issue, favouring the mandatory character of the proposal, in accordance with the Tridentine.

Consultas do Conselho de Estado sobre Negocios Ecclesiasticos, vol. II, Pleno, Pernambuco, 1862, pp. 82–118.

In at least six opinions, Trent was mentioned alongside Faculdades in a complementary or at least non-exclusionary fashion. Four cases presented the affinity between the two norms as related to the exam of intellectual capacities and/or moral qualities of candidates, in accordance with what was said by Campos de Medeiros in Vieira’s case

AN, Fundo Conselho de Estado, caixa 521, pacote 4, documento 71, Seção Justiça, Pernambuco, 1857; AN, Fundo Conselho de Estado, caixa 535, pacote 3, documento 49, Seção Império, Rio de Janeiro, 1864; AN, Fundo Conselho de Estado, caixa 535, pacote 3, documento 53, Seção Império, Bahia, 1864; AN, Fundo Conselho de Estado, caixa 536, pacote 3, documento 37, Seção Império, Maranhão, 1864.

; in one of them, Trent was also invoked on its own, on what concerned the age and ordination requirements of candidates.

AN, Fundo Conselho de Estado, caixa 536, pacote 3, documento 37, Seção Império, Maranhão, 1864.

Finally, three cases displayed the reliance that state councillors had in combining Trent and Faculdades to clarify issues such as: the functions of examiners and of the ordinary in the approval or rejection of candidates,

AN, Fundo Conselho de Estado, caixa 508, pacote 1, documento 35, Seção Justiça, Sergipe, 1843.

deadlines and documents necessary for registering to an examination

AN, Fundo Conselho de Estado, caixa 535, pacote 3, documento 49, Seção Império, Rio de Janeiro, 1864.

and who could preside over examinations.

Consultas do Conselho de Estado sobre Negocios Ecclesiasticos, vol. II, Seção Império, Rio de Janeiro, 1864, pp. 161–163.

Such uses suggest that the Council of Trent was a relevant set of norms for the Council of State when deciding on ecclesiastical oppositions, and that Trent and Faculdades had more possible relationships than Vieira’s case portrayed. They could even be harmoniously arranged.

Going beyond the Council of State’s activity and into the realm of legal books, it is worth mentioning that the Bishop of Rio de Janeiro, D. Manuel do Monte Rodrigues d’Araújo, in his 1858 book on ecclesiastical law (Elementos de direito ecclesiastico publico e particular, 1857–1859), largely used in bureaucratic environments, employed both the Council of Trent and the Alvará das Faculdades to explain how examinations for provision of benefices unfolded in Brazil. He pointed no explicit sign of exclusion between them.

D. Manuel do Monte Rodrigues d’Araujo: Elementos de direito ecclesiastico publico e particular, vol. II, pp. 466–474.

If harmonious combinations, or at least the possibility of combining one normative set and another, were envisaged in some circles, in others, however, certain discourses and practices already pointed to an exclusionary choice. We have seen that, in Vieira’s case, the councillors deemed Faculdades the standard normative corpus, Trent playing no actual role in the unfolding of examinations. Yet, the Brazilian episcopate acted precisely in the opposite direction: there is evidence that, during the Empire’s final decades, many bishops moved more and more towards complying with Tridentine obligations. For example, from the 1860s onwards, several ordinaries recurred to the Holy See seeking alternatives to the annual synod in which diocesan examiners should be elected. This tendency, fostered by the rise of ultramontanism among higher ecclesiastical ranks,

For more on the rise of ultramontanism among Brazilian bishops during the second half of the 19th century, see: Ítalo Santirocchi: Questão de Consciência: os ultramontanos no Brasil e o regalismo do Segundo Reinado (1840–1889).

can be observed in the protocol books of the Congregation of the Council. These books attest that, prior to Vieira’s case, at least five Brazilian bishops asked the congregation for faculties (i.e. powers granted by superiors) to elect examiners as if they had been chosen in a synod. In addition to the request of the Bishop of Olinda in 1868, there were petitions from Mariana (1865 and 1876),

AAV, Congr. Concilio, Protocolli, libro 24, numero d’ordine 862, 1865; AAV, Congr. Concilio, Protocolli, libro 35, numero d’ordine 949, 1876.

S. Pedro do Rio Grande do Sul (1873),

AAV, Congr. Concilio, Protocolli, libro 32, numero d’ordine 756, 1873.

and S. Sebastião do Rio de Janeiro (1877)

AAV, Congr. Concilio, Protocolli, libro 36, numero d’ordine 3115, 1877.

– the latter being somewhat surprising because it was the diocese in which the imperial capital was situated. Although these data offer little insight on the bishops’ thoughts on Faculdades, it does constitute a sign of the ordinaries’ urge for uniformity, of their choice for the Council of Trent and the Holy See, setting aside divergent local practices and norms.

Some jurists had a more straightforward approach on the disharmony between Trent and Faculdades. One of these men was ultramontane jurist Candido Mendes de Almeida. In the long foreword to his own compilation of Brazilian ecclesiastical civil law (Direito civil ecclesiastico brazileiro antigo e moderno, 1866–1873), Mendes de Almeida cast a harsh criticism on Monte Rodrigues d’Araújo’s approach on ecclesiastical examinations. According to the ultramontanist, the Alvará das Faculdades and the Council of Trent were irreconcilable norms. Under the former, the bishop would be acting as a delegate of the patron; examiners would be chosen according to the practice of a body strange to Church hierarchy, the Board of Conscience and Orders; and the final decision on the worthiest candidate for a given benefice would be shifted to the patron, since the bishop would only be obliged to compose a list of the three best candidates. Under Trent, on the other hand, the bishop would be acting in his own right; the examiners would be elected in a diocesan synod; and it would be the responsibility of the ordinary to appoint, after the results of the examinations, the worthiest candidate, so the patron could then proceed to the presentation. With this contrast, Mendes de Almeida defended that »to comply with the Alvará is to offend the Council«.

Candido Mendes de Almeida: Direito civil ecclesiastico brazileiro antigo e moderno em suas relações com o direito canonico, tomo primeiro, Rio de Janeiro 1866, p. CCCXXVI.

Another narrative of discontinuity was precisely within the Council of State: the Marquis of Olinda, a moderate regalist.

Consultas do Conselho de Estado sobre Negocios Ecclesiasticos, vol. II, Pleno, Pernambuco, 1862, pp. 96–118.

In some occasions, the Marquis claimed that the Alvará das Faculdades was no longer valid – at least not on what concerned Imperial Brazil. According to this narrative, after its independence from Portugal, Brazil had inaugurated a new form of padroado, disconnected from any previous concession from the Holy See and based exclusively on the Imperial Constitution. Such position was supported by the fact that, at the beginning of the Brazilian Empire, the National Legislative Assembly refused to give the placet to the papal bull Praeclara Portugalliae (1827), which had conceded to the emperor of Brazil the same prerogatives enjoyed by Portuguese monarchs as grand masters of the Military Order of Christ. Such discontinuity between the Portuguese and the Brazilian padroados would not allow, thus, the Alvará das Faculdades, a norm from the Portuguese Ancien Régime, to be further applicable in the context of independent Brazil. This position was quite unusual among Brazilian regalists (especially within the Council of State), converting the Marquis into a (respectable) outsider.

When compared with these jurists’ points of view, in particular Mendes de Almeida’s, the path of argumentation chosen by the councillors of state in Vieira’s case reveals itself to be very different in content – but, at the same time, very close in terms of normative convention. Both perspectives agree on the adoption of an exclusive, either/or logic, disagreeing only on the norm that should be cast away. The state councillors, via Campos de Medeiros, defended that Faculdades had precedence over Trent, the latter’s applicability being very limited, conditioned to the reception operated by the former. Such position led the Council of State to maintain that ecclesiastical examinations in Brazil were a matter of exclusive competence of the Executive Branch, ruled by civil laws.

AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, fol. 11r, 18r, Seção Império, Pernambuco, 1881. Following the Ancien Régime’s nomenclature, the Council of State’s sources present the term civil laws (leis civis) when addressing laws that were issued by the secular (public) power (which, on its turn, was also denominated civil power, poder civil).

This was a rather bold assertion, because, in view of the padroado system, ecclesiastical examinations were commonly held by Brazilian jurists as a mixed matter, meaning a matter that, involving acts from ecclesiastical and secular authorities, entailed laws developed within the Church and laws issued by the state. Moreover, appeals against examinations should be made to the tribunal of the archdiocese of S. Salvador da Bahia; Monte Rodrigues d’Araújo, in his manual on ecclesiastical law, stated precisely so – and nodded to the possibility that such appeals might reach the Holy See, while mentioning Trent and the encyclical letter Cum illud of Pope Benedict XIV.

D. Manuel do Monte Rodrigues d’Araujo: Elementos de direito ecclesiastico publico e particular, vol. II, p. 473.

The point of view of Campos de Medeiros, however, expressed that if Vieira noticed any irregularity in the manner his examination had been performed, he should have resorted to the state – not to the Holy See. In fact, while recurring to the Congregation of the Council, Campos de Medeiros concluded, Vieira was performing a crime against Brazilian sovereignty – Article 81 of the Imperial Criminal Code, the crime of recurring to a foreign authority to request spiritual grace or privilege in the ecclesiastical hierarchy.

AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, fol. 15v.

Nevertheless, by the end of the consultation, the councillors of state were not so harsh as to opine for the criminal complaint of Francisco Vieira. It seems that it was still quite fresh in their minds the sound and fury of the disputes between the reformist clergy and Brazilian state authorities during the decade of 1870. I am referring to the suits that resulted in the the arrest of Bishop D. Vital Maria Gonçalves de Oliveira of the diocese of Olinda, on grounds of the enforcement of papal norms which had not received the placet.

I refer to the Brazilian »Religious Question«. More specifically, D. Vital, then Bishop of Olinda, had interdicted a lay brotherhood on the grounds that it contained members of the Freemasonry. The papal bull upon which D. Vital relied to issue the interdiction condemned Freemasonry – but it had not received the state placet. The lay brotherhood appealed to the Crown, alleging the use of a bull not approved by the Brazilian Empire, and lack of jurisdiction. The Council of State gave reason to the brotherhood, demanding that D. Vital lifted the ban. As he refused to do so, the case was taken to the Supreme Court of Justice, which condemned D. Vital for the crime of obstruction of the Executive Branch (Article 96 of the Imperial Criminal Code). It was the first time that a bishop was criminally prosecuted and convicted in the country. D. Macedo (Bishop of Belém do Pará) underwent a similar procedure, on similar grounds. See: Nilo Pereira: Dom Vital e a questão religiosa no Brasil, Rio de Janeiro 1986; Ítalo Santirocchi: Questão de Consciência, pp. 427–453.

In fact, we may presume that one of the factors that led Vicar Capitular Andrade to insist on the placet for Vieira’s rescriptum was precisely the fear of relapsing into the same problem. The case of D. Vital, along with Bishop D. Antonio de Macedo Costa of the diocese of Belém do Pará, both relentless ultramontanists, generated national commotion and attracted the attention of other countries, as it appeared in the pages of several foreign magazines and newspapers.

The French press, in particular its Catholic branch, displayed much interest in D. Vital’s case. Local publications of small and wide range serve as examples: Église de Reims: Vie diocésaine (Rheims, 3 January 1874), Annales catholiques: Revue religieuse hebdomadaire de la France et de l’Église (Paris, 21 February 1874, 21 March 1874, 28 March 1874, 25 April 1874), Journal des débats politiques et littéraires (Paris, 27 November 1875), Le Temps (Paris, 3 October 1876).

The Brazilian »Religious Question«, as it came to be known, mobilized not only jurists in the country, but also diplomats around the Holy See. It was one of the greatest political tribulations of the end of the Empire, and the Council of State played a major role in its intensification and resolution. To avoid a similar convulsion in 1881, the Section of Imperial Affairs of the Council of State issued the opinion that the rescriptum from the Congregation of the Council presented by Vieira did not have any legal value in Brazil; that the examination that took place in Olinda in 1879 was fully valid and that, in spite of his acts, Vieira should receive his collation – as long as the vicar capitular, while conceding it, made clear that he was proceeding thus exclusively in virtue of the letter of presentation from the emperor. Among others, this opinion was endorsed by the Viscount of Bom Retiro, a state councillor who had signed the granting of the appeal to the Crown against D. Vital, in 1873. He seemed to have found in Vieira’s case an opportunity to exercise moderation.

Even though these entangled procedures provided more or less the same result to Francisco Vieira – that is to say, his collation as parish priest – this case represents a turning point for the Council of State in the field of ecclesiastical examinations, for it was then that formal administrative issues were inserted into the wider – and more delicate – debate on imperial sovereignty and autonomy of the Church. The perspective of the councillors on Trent seems to have shifted from a universal set of norms with local adaptations, that coexisted with other local norms, to a sign of allegiance towards a foreign authority (the Holy See) and a politico-religious movement (the ultramontanists). This is particularly evident if we compare Vieira’s case to another one from a bit more than 15 years earlier.

In December 1864, the councillors of the Section of Imperial Affairs were called to decide on the validity of recent examinations for parishes (again) in the diocese of Olinda.

AN, Fundo Conselho de Estado, caixa 536, pacote 3, documento 40, Seção Império, Pernambuco, 1864.

The role played by the late bishop was put into question, for he had not limited his activity to the coordination of examinations. Once the doctrinal round of the evaluation was over, the bishop dismissed the board of examiners and took to himself the task of evaluating the moral aptitude of candidates. The petitioner, the vicar capitular, then a member of the board, claimed this sort of procedure found no support in the Council of Trent or in subsequent pontifical norms and, thus, the oppositions were irregular. The vote of the Marquis of Olinda, then the rapporteur of the section, recognised that neither Trent nor Benedict XIV’s encyclical letter Cum illud seemed to allow separate grades for each phase of evaluation. According to these norms, interpreted the Marquis, examiners should pronounce only one grade after the whole process of examination. Nevertheless, the Marquis also acknowledged that Tridentine discipline had been altered in Brazilian churches. He could not precise if that would be the case for all of them, but »for sure in those in Bahia and Rio de Janeiro«. In these churches, he continued, examiners would be in charge of evaluating only scientific merits, whereas the verification of morals would be a task for the ordinaries. The Marquis regretted that the vicar capitular did not specify whether the separation of grades was a discipline admitted at the diocese (that is to say, whether it was a local practice) or a resolution of the bishop for that particular examination. He concluded that the Council of State did not possess enough data on facts and local discipline, being unable, thus, to declare the oppositions invalid. The section agreed, then, that the vicar capitular should restore the proposals to the government, with all necessary information on the candidates’ mores; that the government should verify this material and, depending on its contents, proceed to the presentation of approved candidates or order the execution of new examinations. Most importantly, the councillors suggested that all Brazilian bishops should be asked to send information on the discipline in force at their dioceses on what concerned grading candidates to vacant benefices. This request was officially made via the circular letter of 19 January 1865.

The relevance of this case lies precisely on the fact that state councillors expressed uncertainty on the norms that were employed in ecclesiastical examinations. They recognised that they could not precise to which extent Trent was adopted in Brazilian dioceses when it came to the subject. They showed that they were not familiar with local practices, admitted disciplines, etc. Yet they displayed willingness to be informed about it. More than that, they expressed that these details would be relevant to the government while scrutinising ecclesiastical proposals. This behaviour is similar to the one exhibited by the Congregation of the Council in Vieira’s case, when asking for further information from Vicar Capitular Andrade. And it is in stark contrast with the state councillors’ attitude in 1880. Instead of acknowledging his ignorance on local practices, the Marquis of Olinda could have simply posed that the applicable norm in all cases was Faculdades, attaching his interpretation on how grading should unfold in accordance to that norm. But he did not. In fact, he did not even mention Faculdades in this occasion.

The comparison between the two cases – Vieira’s and the one just described – is quite telling about the different normative conventions underlying the governance of the Church during the 1860s and the 1880s. While in the first period what is seen is a Council of State more open to the consideration of multiple norms – such as the Council of Trent, local normative uses and even pontifical encyclical letters – the same organ adopted a much more closed position in 1880, rejecting Trent, as well as other local practices that represented a deviation from what were considered civil laws for the regulation of the Church.

The Council of State’s change of perspective is part of a broader transition in the way of conceiving ecclesiastical law as a discipline.

My exposition on the conceptual changes regarding ecclesiastical law follows the narratives of: Luigi de Luca: Il concetto del diritto ecclesiastico nel suo sviluppo storico, Padova 1946; Carlos Salinas Araneda: Los orígenes y primer desarrollo de una nueva rama del derecho: el derecho eclesiástico del Estado, in: Revista de estudios histórico-jurídicos 22 (2000), pp. 87–113. To highlight how the relationship between norms changed along with the reconceptualisation of the discipline, my terminology differs from that of these authors: while they proposed a »monist« and a »dualist« conception of the law regulating Church affairs, I suggest that there was a shift between a normative convention of »amalgam« and a normative convention of »separation«.

In 19th-century Brazil, most of the handbooks on the field addressed ecclesiastical law as »the law that regulated the Church«, and which contained both canon law (i.e. the Corpus iuris canonici, the Council of Trent, pontifical constitutions, decrees of Roman congregations, etc.) and civil laws specifically aimed at the Brazilian Church. I choose the term »amalgam« to denominate this normative convention, for it united different elements (canonical laws and civil laws) under the same label (ecclesiastical law). This arrangement derived from two doctrinal trends that were particularly strong during the 1800s. On one side, the rationalist systematisation of the ius publicum ecclesiasticum, made known in Brazil by means of the Institutiones Juris Ecclesiastici (1782), by Austrian canonist Franz Xaver Gmeiner, widely diffused in Coimbra; on the other, the historicist, organic approach of the Kirchenrecht, a scientific novelty provided by jurists close to the German Historical School, like Ferdinand Walter and George Phillips.

For more on the doctrinal trends around ecclesiastical law between the 18th and 19th centuries, see: Carlo Fantappié: Chiesa romana e modernità giuridica. L’edificazione del sistema canonistico (1563–1903), Milano 2008. Specifically on ius publicum ecclesiasticum, see: Alberto de la Hera / Charles Munier: Le droit public ecclésiastique a travers ses définitions, in: Revue de Droit Canonique XIV/1 (1964), pp. 32–63; Christoph Meyer: Kanonistik im Zeitalter von Absolutismus und Aufklärung. Spielräume und Potentiale einer Disziplin im Spannungsfeld von Kirche, Staat und Publizität, in: Max Planck Institute for European Legal History Research Paper Series 6 (2012), pp. 1–91.

Both these trends proposed an »amalgamated« conception of ecclesiastical law, for the relevant norms were delimited ratione materiae (»laws that regulated the Church«); in relation to this criterion, the norms’ origin, that is, whether norms were produced by state authorities or by the clergy, was a secondary aspect, a matter of detailing, not of disciplinary delimitation.

The amalgamated conception of ecclesiastical law matched with the activity of institutions like the Brazilian Council of State, which, during much of its existence, regarded ecclesiastical law as a large toolbox, whose varied material was fully available to this organ’s interpretation. In fact, the openness of the Council of State to interpret both civil law and canon law had its legitimacy strengthened by the argument, arising from regalist and liberal discourses, that the state should have control over any legal norms concerning the Brazilian Church, so as to preserve national sovereignty and the Church’s own interest.

When addressing the monarch’s iura circa sacra, Brazilian jurists usually included the right of the emperor to control Church-related norms – especially those coming from the Holy See – by means of the placet. We see this, for instance, in the third book of the first manual of ecclesiastical law by a Brazilian author: Jeronymo Vilella de Castro Tavares: Compendio de Direito Ecclesiastico para uso das Academias Juridicas do Imperio, Recife 1853.

Thus, it is not surprising that, before Vieira’s case, the councillors’ opinions orchestrated norms of canon law, state laws and diocesan uses.

Vieira's case lies precisely between the exhaustion of the convention of ecclesiastical law as amalgam, at the full disposal of the Council of State's interpretation, and the ascendancy of another convention, of separation between canon law and civil law for Church affairs. In Brazil, this separation (that can be labelled disciplinary, jurisdictional and normative) gained ground with the rise of ultramontanism among the clergy and laity, and the subsequent tensions that these groups established with regalists and secularists. It was ultramontane jurist Mendes de Almeida who, inspired by French authors (Michel André, Gilbert de Champeaux, both supporters of ultramontanism),

For more on the doctrinal development of ecclesiastical civil law in 19th-century France, see: Marie Zimmermann: Church and State in France. Book Repertory 1801–1979. Église et État en France. Répertoire d’ouvrages 1801–1979, Strasbourg 1980; Miguel Rodriguez Blanco: Il diritto ecclesiastico francese tra 1801 e 1905. Studio dei trattati e manuali di droit civil ecclésiastique e di administration des cultes, in: Quaderni di diritto e politica ecclesiastica 1 (2008), pp. 267–312.

introduced the term ecclesiastical civil law (direito civil eclesiástico) in Brazilian academic debate, referring to the legislation on ecclesiastical matters that was partially or fully produced by secular authorities, in particular state bodies. In his compilation of the genre, Mendes de Almeida delimited and historically situated this branch of law, recalling normative sets that went from the first Portuguese concordats to the last legislative novelties of the Brazilian Empire; he also confronted all this material with remote and recent canon law. By distinguishing and comparing norms from the two legal fields, Mendes de Almeida wished to offer a critical account of the treatment that the modern Brazilian state dispensed to the Church. It should be stressed that Mendes de Almeida did not defend a complete separation between Church and state. He was not a secularist. He rather advocated for greater autonomy to the Church in its relationship with the state; and, as I have already suggested, Mendes de Almeida stood for the enforcement of canonical norms, like the Council of Trent, in detriment of recent civil laws which, in his view, possessed a sharp regalist tone (e.g. Alvará das Faculdades). One may say that there was an exclusionary note in his general approach of the normative convention of separation.

A more extreme logic of separation is found on the other side of the ideological spectrum, in the writings of supporters of liberalism and republicanism, like Ruy Barbosa and Saldanha Marinho.

See Ruy Barbosa’s large introduction to his translation of: Ignaz von Döllinger [alias Janus]: O Papa e o Concílio [Der Papst und das Konzil], versão e introducção de Ruy Barbosa, Rio de Janeiro 1877; and Saldanha Marinho’s collection of polemical articles: Joaquim Saldanha Marinho [alias Ganganelli]: A Egreja e o Estado, Rio de Janeiro, 1873.

Harsh critics of ultramontanism, these jurists postulated that Church and state should undergo full separation, a »reciprocal emancipation«, in the words of Barbosa. These authors pointed out that Brazilian state law – and, in particular, the liberal values embedded in it, such as freedom of conscience, liberal democracy, national sovereignty – were incompatible with canon law as interpreted by Pope Pius IX (especially by means of the Syllabus Errorum, from 1864) and as enforced by the ultramontane clergy in Brazil. The prevalence of canon law in case of normative conflict, as posed by Pius IX, represented a challenge to the Brazilian Empire, as its bureaucracy relied on several regalist and/or liberal mechanisms to perform tasks of administration of the clergy. But problems went further. The institutional entanglements between Church and state also hindered the advancement of legislative measures applicable to all citizens, such as civil marriage, the secularisation of educational institutions and cemeteries, and the establishment of a system of civil registration. For such reasons, liberal and republican jurists adopted the institutional – and normative – separation of Church and state as the only solution.

Due to their loyalty to the constituted institutions, the state councillors were not allowed to endorse claims for institutional separation, but they did partake of the normative convention that was behind both secularist and ultramontane discourses. Vieira’s case is an extreme example of it, as the Council of State, in its response, not only adopted the convention of normative separation, but bent it towards normative exclusion. In the opposite direction of Mendes de Almeida’s proposal (though within the same normative convention), the state councillors excluded canon law from the regulation of ecclesiastical examinations performed in Brazil; only civil laws were deemed applicable, and only the Council of State figured as the proper court of appeal. The days of the convention of ecclesiastical law as amalgam were numbered. However, state councillors would not cling to the radicalism present in Vieira’s case. Mitigated solutions were later created within the same normative convention of separation, as we shall see in the next section.

After Vieira’s case. Trent to the Church, Faculdades to the state

In October 1888, the Council of State opined on an appeal to the Crown (recurso à Coroa)

According to the Decree n. 1.911 of 28 March 1857, by means of the recurso à Coroa, ecclesiastical or lay people could appeal to the Council of State against an act performed by an ecclesiastical authority, if it encompassed: usurpation of temporal power and jurisdiction; any sort of censorship against civil servants due to their offices; notorious violence in the exercise of spiritual power and jurisdiction, violating natural law or the canons received in the Brazilian Church.

from the diocese of São Paulo. The petitioner, Fr. Francisco Gonçalves Barroso, contested his non-habilitation as candidate to a position of canon of the cathedral chapter.

AN, Fundo Conselho de Estado, caixa 562, pacote 1, documento 11, Seção Império, São Paulo, 1888.

The provisor of the diocese denied his candidacy on grounds of form, for the complainant had not submitted a letter of excardination and de genere information within the time limit prescribed by the examination edict. This case raised questions both of form and competence. Even though state councillors focused their attention on the latter, the former aspect, as it appears in the petition, engages in several connections with the Council of Trent – or rather, with Tridentine cultural »translations«. While deeming unfair the request of an excardination letter instead of a dimissorial letter,

In other words, the petitioner was required to prove his transference from his native diocese to the Bishopric of São Paulo (by means of an excardination letter), instead of simply demonstrating that the head of his native diocese allowed him to be ordained by the Bishop of São Paulo (by means of a dimissorial letter).

the petitioner supported the prevalence of recent civil norms and doctrine over the First Constitutions of the Archbishopric of Bahia, Colonial Brazil’s »adapted version« of the Council of Trent.

The First Constitutions of the Archbishopric of Bahia are a set of local norms of canon law that were approved during the diocesan synod of S. Salvador da Bahia of 1707. Following the exhortation in Session 24, De reformatione, Canon 2, of the Council of Trent, they are not a simple repetition of Tridentine decrees, but an adaptation of these provisions to the particularities, possibilities, and necessities of Colonial Brazil. Moreover, they took into account laws, decisions and doctrine that, after Trent, were already part of the legal culture of the Portuguese Empire.

But, when recalling practices of the diocese’s former vicar general – which allowed the delivery of documents even after the expiring of the edict, with no cause for rejection of the candidacy – Barroso addressed Trent in a new, unprecedented level: the level of dispute on how accurately decisions of the Congregation of the Council were being used in Brazil. More precisely, by attaching excerpts from the Diario Mercantil newspaper, the petitioner made the Council of State aware about the interpretative discrepancy between the practices of São Paulo’s former vicar general and the contents of a recent book on ecclesiastical law written by Ezechias Galvão da Fontoura, a canon from the same diocese. Both relied on decrees (or on what they believed to be decrees) of the Congregation of the Council to support their opinions on the stricter or more flexible consequences of presenting required documents after the period prescribed by the edict. Barroso, of course, did not expect the Council of State to redeem canonical disputes. He pursued his own habilitation to the exams – but, while doing so, he offered to the eyes of state councillors a layer of controversy on Trent’s interpretation which was quite new to the institution. He was addressing the debate on whether a decree from the Congregation of the Council – which was interpreting the encyclical letter Cum illud, which, on its turn, was detailing a disposition of the Council of Trent – was being properly interpreted in São Paulo. Councillors Domingos de Andrade Figueira and the Viscount of Ouro Preto, however, did not feel like engaging in this tricky hermeneutic exercise.

Figueira bluntly stated that Barroso should have recurred to the ecclesiastical court (Relação Metropolitana) of the archdiocese of S. Salvador da Bahia first, in accordance with the civil decree that regulated the appeal to the Crown.

AN, Fundo Conselho de Estado, caixa 562, pacote 1, documento 11, fol. 2r–2v.

But it was not only a matter of following the right sequence of instances of appeal. Figueira indicated that an appeal against the dispatches that had denied the petitioner’s candidacy would not be possible on grounds of civil law, for civil law would not allow the postponing of the 30-day period stipulated by the Alvará das Faculdades to the habilitation of candidates to examinations. When it came to canon law, the scenario was a bit more positive, for canonical dispositions, said Figueira, would regard as optional for the bishop to grant or deny extensions of the said 30-day period.

What is particularly noteworthy is that Figueira suggested that the single possible appeal would be to the Relação Metropolitana – I repeat: not just because of the right sequence of appealing, but because there would be room for manoeuvre only within canon law. In other words, even if the order of appeals had been correctly addressed and if, after a negative from S. Salvador da Bahia, the dossier had reached the hands of the state councillors, they would not judge the case because it was situated in the field of canon law. The arena of the Council of State, one may understand from Figueira’s discourse, was confined to the law produced by secular powers, a realm which contained norms that were relevant to ecclesiastical administration, as in the case of the aforementioned Faculdades, but which was separate from canon law, an equally valid field, but outside the reach of the state councillors.

This is a position that, although apparently trivial, is very interesting from a broader perspective, if one considers the treatment that the Council of State historically gave to issues of ecclesiastical administration, and the development of debates on ecclesiastical law in Brazil. It is a position that points the way to a rupture with the past, more precisely a past when the councillors approached both canonical laws and ecclesiastical civil laws with ease, confident that the boundaries between these normative sets did not correspond to exclusive jurisdictions. As I mentioned earlier, these more »eclectic« normative uses ran in parallel with the convention, heavily present in the major manuals of ecclesiastical law of the 1850s, that ecclesiastical law comprised all norms that regulated Church affairs, regardless of their institutional origin. The cases of Vieira and Barroso are relevant because they depict moments in which the state renounced the interpretation of canon law and confined itself to the consideration of civil laws when deciding on an ecclesiastical matter. Whereas Vieira’s case posed a radical solution, Barroso’s case offered a mitigated position. Figueira acknowledged that examinations were a mixed issue, but this did not imply that different institutions could use and interpret all rules without distinction. It is different from the radicalism that state councillors displayed in Vieira’s case, in which they argued that examinations were a matter of civil law, with the Council of State as the sole appealing court in the event of suspected invalidity. What councillor Figueira suggested was that, since examinations were a mixed matter, Church hierarchy and the secular power should approach concrete cases restricting their analysis to the normative sets originated within each institution. Thus, canon law should be interpreted and applied by the Church, via its ecclesiastical courts, whereas ecclesiastical civil law should be interpreted and applied by the state, via its secular courts.

Figueira’s position, I think, constitutes an indication, a nod to a political and legal framework that recognised the Church’s autonomy in relation to the state (autonomy with mutual cooperation, after all, Figueira was a Catholic conservative, in the sense that he was favourable to the emperor’s padroado rights, and against the separation between Church and state), and to a clearer delimitation between ecclesiastical civil law and canon law. Even though this opinion went hardly as far as some ultramontanists would have liked (for they would have preferred a straightforward reproach of many Church-related civil norms, including Faculdades), it did approach the normative convention of separation adopted by ultramontanists. It followed to a certain extent the concerns of ultramontane Mendes de Almeida, when he defended the teaching of ecclesiastical civil law as a complementary (and, therefore, separate) discipline to canon law in the country’s faculties of law. Mendes de Almeida realised that to make an effective critique of the government’s measures regarding ecclesiastical administration, one should first have a solid idea of the two disciplines and their boundaries.

Candido Mendes de Almeida: Direito civil ecclesiastico brazileiro, pp. III–IV.

Knowing the boundaries (or rather establishing them) was the first step in pointing out where the abuses were and how the autonomy of institutions could be fostered.

It is true that Figueira’s opinion did not address the option of appealing to the Holy See, so that it is not possible to follow his argument to its ultimate consequences. But the records of the Congregation of the Council show that at the beginning of 1888 the Bishop of São Paulo sent via the Apostolic Internuncio in Brazil a general dubium on the interpretation of Cum illud, the encyclical letter that was at the centre of diocesan debates on the congregation’s decrees.

AAV, Congr. Concilio, Positiones: »die 3 Augusti 1889. Lit. R ad Z., L. Salvati Secr.«, S. Pauli in Brasilia, Petition from the Bishop of São Paulo, D. Lino Deodato Rodrigues de Carvalho, fol. 1r–1v; 5r–7r, »Beatissime Pater, In concursu ad dignitatem Capituli Cathedralis hujus dioecesis [...]«, 1888.

I found no evidence of control or impediments to these flows of communication on the part of the state. But it should be said that, when the Holy See answered the Bishop of São Paulo’s dubium, the Brazilian Catholic Empire was already on its way to become a secular republic.

Final remarks. The uses of the Council of Trent alongside the transformations of ecclesiastical law as a legal field

With this article, I meant to show a concrete example of how 19th-century Brazilian ecclesiastical administration unfolded within a scenario of multinormativity and multilevel governance, and how these two elements were connected. I considered multinormativity not only as the coexistence of multiple legal norms, but as the relationship between these norms according to different normative conventions. Influenced by politico-religious changes, the normative conventions expressed distinctive forms of understanding ecclesiastical law, as well as Church and state relations, entailing different views on Church-related disciplinary fields, normative categorisation and relationship, and jurisdictional arrangement. The interaction between the levels of governance diffused – and even catalysed – shifts of normative conventions. The ways of interpreting and applying the Council of Trent changed from a convention of amalgam to a convention of separation, with significant nuances in the transition.

This could be observed in a quite clear way from the point of view of the Council of State, whose decisions transited from normative amalgam (i.e. ecclesiastical law as a toolbox comprised of canonical laws, civil laws and custom; the Council of Trent, the Alvará das Faculdades and local uses are all potentially applicable to ecclesiastical examinations, its concrete implementation depending on the case) to normative exclusion, with a significant expansion of the jurisdiction of the state over the Church (i.e. ecclesiastical examinations are a matter of civil law, only the Alvará das Faculdades is applicable, only the state’s jurisdiction is competent to approach cases related to ecclesiastical examinations), and later, from this state of affairs to normative separation, with more jurisdictional autonomy to both institutions (i.e. ecclesiastical examinations are a mixed matter, entailing canon law, which belongs to the Church’s jurisdiction, and civil law, which belongs to the state’s jurisdiction).

To describe shifts of normative convention from the perspective of the Congregation of the Council is less easy and would require the analysis of more sources. On what concerns Vieira’s case, the dicastery displayed a relatively tolerant behaviour towards normative diversity, by harnessing acts that, by the Holy See’s standards, were void of validity. The shift of convention is perhaps best appreciated from the side of petitioners. The absence of petitions about concursos in earlier decades signals a conformation with local uses, informed by a more open and varied normative convention, whereas the flows of Brazilian solicitations from the 1860s onwards, along with the rise of ultramontanism among higher ecclesiastical ranks, suggest an urge for uniformity, for consonance with Trent and the Holy See, under the sign of a normative convention of exclusion.

Ultimately, the convulsion – and subsequent changes – provoked by the intersection between the Congregation of the Council and the Brazilian Council of State in Vieira’s case are a vivid proof that multilevel governance and multinormativity are strongly intertwined. The interaction between different institutional levels favoured the emergence of new arrangements among multiple norms. Throughout the network of governance of the Brazilian Church, normative conventions had the chance of blossoming, circulating, persisting and changing. Thus, if one considers multinormativity as more than the coexistence of multiple norms regulating the same phenomenon, that is, as the intricate relationship between norms, normative conventions, and concrete events, it would be correct to conclude that multinormativity develops within multilevel governance or rather that multinormativity emerges from multilevel governance.

I can go into more detail. By comparing Vieira’s case with other situations from the field of ecclesiastical examinations that came to the knowledge of the Council of State earlier and later, I verified that the exclusion between Trent and the Alvará das Faculdades was not absolute. Between the 1840s and 1860s, the Council of State employed both sets of norms as complementary or non-exclusionary in several occasions. There are indications of complementarity also in the legal doctrine. In a practical level, the period prior to Vieira’s case seems informed by a more eclectic, amalgamated normative convention about ecclesiastical law, mixing laws coming from secular powers and canon law, all under the same label, as seen in books: ius ecclesiasticum. Within this framework, civil authorities – via the Council of State – felt allowed to interpret and implement norms of canonical or pontifical origin, the Council of Trent being a striking example. But such situation would not last for the whole century.

Other than an a priori exclusion between legal norms, Vieira’s case sheds light on how political change is connected with shifts of normative conventions, with modifications on how legal norms were read and on how relationships between legal norms were conceived. In the case of ecclesiastical administration in Brazil, the growing political opposition witnessed from the 1870s onwards, between groups with different views on the Church – be they classified as ultramontanists, regalists, liberals, etc. – this opposition encompassed conventions that emphasised normative separation, and even exclusion. The hegemony of Trent, on the side of reformist priests like Vieira, and the hegemony of Faculdades, on the part of the state councillors opining on Vieira’s case, are proof of this either/or logic. This is in stark contrast with normative amalgam, that is, the and/and logic from previous times.

Exclusion is also found on what regards jurisdiction, since political tension seems to have required a strong position on which the dominant element was, if the civil jurisdiction or the ecclesiastical one. Authority is the great leitmotif of the period, permeating from national legal polemics to theological debates during the First Vatican Council. It was something to fight for, even if it implied the adoption of contradictory argumentation. As seen, Campos de Medeiros and the state councillors in Vieira’s case were so concerned with rejecting any kind of Roman intervention in the governance of the Church that, to justify the exclusive application of the Alvará das Faculdades, they ended up using an argument in favour of the historical ties between the Holy See and Brazil. The councillors’ radicalism is ironically supported by a narrative of continuity between Portuguese and Brazilian padroados, focused on the inheritance of the grand mastership of the Order of Christ, which was no less than a pontifical concession. That is, against Rome, the Council of State used an argument that depended on Rome to exist, that attested Rome’s participation in the governance of the old Portuguese Church, and that could ultimately endorse Rome’s intervention in the affairs of the Brazilian Church. This is proof of the non-entirely coherent fashion in which normative conventions were employed and justified.

But if some factors come to feed the chaos, others arrive to appease it. The Brazilian »Religious Question« and its traumatic effects emerge as important extralegal factors that helped mitigating the outcomes of Vieira’s case, for they directed councillors to a more political (or merciful) solution instead of the strict application of law. It was a question of avoiding the repetition of diplomatic scandals that could result from the imprisonment of ecclesiastics. It was a matter of harm reduction.

The appeasing atmosphere persisted and revealed important changes. Barroso’s case, posterior to Vieira’s in almost a decade, gave way to a more sober action on the part of the Council of State, as if it were a more mature result of the political polarisation experienced earlier. Interpretations that mixed canon law and civil law started giving room for the establishment of interpretative boundaries, for a more precise delimitation of the competence of institutions, within the respective normative scenarios they originated. Ecclesiastical civil law began to be perceived separately from canon law. While analysing specific cases, paying attention to the changes in the uses of the Council of Trent allowed me to observe that a broader and deeper dynamic ran in parallel, concerning the change in status of ecclesiastical law as a legal field. Ius ecclesiasticum, previously considered as a discipline that amalgamated norms from the hierarchy of the Church and from civil powers, was moving away from canon law and towards what we know today as the ecclesiastical law of state. Barroso’s case is evidence of this transition. Having been influenced by extralegal factors, such movement had as its outcome a legal change, a new type of institutional and normative relationship, towards more autonomy for both sides, namely Church and state.

It must be acknowledged that my results have limitations. Vieira’s case, precisely the most radical, is the only one, in the corpus of sources of the Council of State on ecclesiastical examinations, in which councillors were confronted – not with general pontifical norms – but with the direct response of the Holy See to a specific petition from national territory. It is not possible to affirm with complete certainty if, when faced with similar situations, councillors from other periods would have acted with equivalent radicalism. It is important to evaluate what consultations on other issues will show in this regard. However, the comparison of Vieira’s case with others on the same subject (ecclesiastical examinations), as done here, already points to the possibility of difference. That is, it points to the variety of perspectives on the Council of Trent that could emerge when resolving apparently common problems in a multilayered structure. It was precisely in this continuous activity of searching for and proposing ordinary solutions that bishops, councillors, and cardinals placed normative resources in conjunction with wide politico-religious movements, normative conventions, and concrete events. If one regards the governance of the Church in its entirety, like a painter’s canvas, one may well conclude that all these small cases, all these small interactions, colored these resources – and the Tridentine among them – with multiple, and sometimes surprising, interpretations.

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