Multinormativity Emerges From Multilevel Governance. Uses of the Council of Trent in Examinations for Ecclesiastical Benefices in 19th-Century Brazil

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.

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 19^th 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.

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.

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 18^th 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).

In this article, I analyse how the Council of Trent, a corpus of dogmatic and disciplinary decrees of canon law emerged in mid-16^th 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.

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 19^th-century transformations of ecclesiastical law as a legal field.

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.).

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.

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 19^th 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 19^th 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.

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.

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.

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.

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.

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.

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.

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.

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 19^th century, see: Ítalo Santirocchi: Questão de Consciência: os ultramontanos no Brasil e o regalismo do Segundo Reinado (1840–1889).

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.

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).

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.

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 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«.

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.

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 19^th-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.

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.

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.

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.

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.

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.

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.

With this article, I meant to show a concrete example of how 19^th-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.