ADMINISTORY

ZEITSCHRIFT FÜR VERWALTUNGSGESCHICHTE

BAND 5, 2020 SEITE 96–115

D O I : 10.2478/ADHI-2020-0007

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

ANNA CLARA LEHMANN MARTINS

Introduction1

Nineteenth-century Brazilian ecclesiastical and discipline, the setting of diocesan limits, the control administration can be recognised as the object of a over norms issued by the Holy See, etc.4 Despite the system of multilevel governance orientated by a wide nationalist waves observed during the 19th century, the range of normative resources. Not only the local clergy, Brazilian Church was not excluded from contact with but also imperial institutions and the Roman were the Holy See. On the contrary, the administration of engaged in diocesan administration. The responsibility imperial involved, to a greater or lesser extent, of the Empire of Brazil (1822–1889) towards Catholic interaction between local ecclesiastical authorities and institutions (churches, monasteries, seminaries, etc.) Roman via the sending of reports, dubia, in its territory was due to the maintenance of royal requests for faculties and validations. patronage (padroado) after the country’s independence.2 This system of multilevel governance5 operated in Brazil echoed to some extent the legal pattern that had a scenario of coexistence of norms created/interpreted underlain the relationship between ecclesiastical and by different institutions and actors, in different secular powers in Portugal since the early modern historical periods. Matters of Church administration, period,3 but the novel Empire did so within a framework such as ecclesiastical examinations for the provision of of transition between the Ancien Régime and 19th- benefices (in Portuguese: concursos eclesiásticos para century liberal constitutionalism. Stated very briefly, provisão de benefícios), could be orientated by norms this meant the emperor, by means of the bureaucratic from past centuries, such as the Council of Trent, or network of the Executive Branch (and, in some cases, ordinances, alvarás, and other sorts of regulation from with the participation of the Legislative), engaged in the Portuguese old regime; but fresh (though scattered) the appointment of ecclesiastics, the clergy’s sustaining Brazilian legislation was also available, along with recent

© 2021 Anna Clara Lehmann Martins. Published by Sciendo. This work is licensed under the Creative Commons Attribution 4.0 license (https://creativecommons.org/licenses/by/4.0/). AD INISTORY 5/2020

pontifical constitutions and case law from the Roman project and a »Roman«, »Tridentine Church« project.11 Curia. The absence of a major codification of law I believe the tension between ultramontanists and and the failure to conclude a between Brazil non-ultramontanists (regalists, liberals, etc.) informed and the Holy See were factors that contributed to this the governance of the Church to a significant extent. scenario of multinormativity. In fact, with this article, I claim that the normative I say multinormativity, and not more widespread convention underlying such tension helped to catalyse terms, such as legal pluralism,6 because ecclesiastical the separation or even the exclusion of certain laws administration, being strongly related to praxis, was from the consideration of administrative bodies and guided by logics that went beyond legal norms.7 The agents. But – my claim continues – not in all cases, not different solutions employed (or rather: created) in face in an always clear-cut manner and certainly not during of concrete problems did not involve the mere election the whole period. of »the most suitable legal norm«. It was a matter of In this article, I analyse how the Council of Trent, interpreting facts and laws within a specific jurisdiction, a corpus of dogmatic and disciplinary of canon a specific level of governance – and within a specific law emerged in mid-16th century, yet still in force context, with all its historical subtleties. Underlying this during the 1800s, was employed in the resolution of operation was the adoption – more or less intentional – cases of ecclesiastical examinations for the provision of certain normative conventions about the Church and of benefices in Imperial Brazil between 1840 and its relationship with the state, and about ecclesiastical 1889. It is worth reminding that the Council of Trent law. Such conventions provided information on how was a milestone in the procedural standardisation of to dispose of the available legal corpora, and could not ecclesiastical examinations in the Catholic world.12 For be deduced from them. Different periods could witness the purposes of this article, I rely on sources from two the hegemony of different normative conventions. Also higher levels of governance of the Church in Brazil: the different governance levels could hold conventions of Brazilian Council of State and the Roman Congregation their own, giving way to unexpected outcomes once the of the Council. The Council of State was the imperial levels interacted. Interaction, in fact, is the keyword advisory board, formed by lifelong members chosen when it comes to governance.8 For the Brazilian by the emperor among the political elites and high Church, it means that the uses of legal norms were administrative ranks; this organ issued opinions on the connected not only to practices of local reach, but correct interpretation of the law in force in Brazil.13 also to the interactions between the local clergy and The Congregation of the Council, on its turn, was a higher instances from the Empire and Rome, which of the Holy See, more precisely, a permanent were in charge of providing opinions and decisions to collegiate organ composed by cardinals, whose function a varied range of cases. In short, interaction enabled was to watch over the implementation of the Tridentine the circulation and even the changing of the ways of disciplinary decrees in the Catholic world.14 Though conceiving legal norms and their relationship, in a way very different in terms of background and scope, both that the perception over norms could shift, for instance, institutions ruled over the Brazilian ecclesiastical from a strongly amalgamated normative body to neatly administration by providing legal interpretation and separate groups of norms. solution to local petitions. The Brazilian social historiography from the 1980s By examining cases from these institutions, I wish and 1990s focused on the political clashes between to demonstrate that the Council of Trent was perceived regalism9 and ultramontanism10 during the second and employed in different ways, depending on the half of the 19th century, emphasising the conflict of level(s) of governance involved, the degree of politico- perspectives between Brazilian secular powers (along religious tension achieved and, most importantly, the with the ecclesiastical sympathisers of regalism) and dominating normative convention. One of my basic the so-called reformist branch of the ecclesiastical claims is that Trent was not interpreted exclusively by

Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara hierarchy, the ultramontane clergy, as if there had always the ecclesiastical hierarchy. Imperial bureaucracy also

97 been a clear separation between a »National Church« performed such operation. Moreover, Trent was not AD INISTORY 5/2020

considered solely in itself; it was often compared with, it as central to padroado, sometimes even as its very connected to or discarded in relation to other norms, in definition. In practical terms, presentation depended on accordance with distinctive patterns. the offering of a proposal (proposta) to take place. That As hinted, I work with the hypothesis that both is to say, before exercising his right, the monarch, by state and clergy started addressing Trent by means of means of his ministers, should receive a list prepared by normative conventions of exclusion and separation the ordinary of the corresponding , containing following the escalation of the political opposition the names of potential beneficiaries. This list would between groups interested in the reformation of the contemplate the results of examinations (concursos) Church according to Roman standards (or to what they previously organised and presided by the ordinary believed Roman standards were), commonly called or one of his delegates. Depending on the nature of ultramontanists, and groups that stood against this the , oppositions (oposições, a synonym for movement. This opposition took shape in Brazil from examinations) would comprise more or less steps. 1850 onwards, with the first generation of bishops Benefices with cure of souls required more demanding regarded as »reformers«; it reached an acute stage in the exams in comparison with those without. Candidates to 1870s, with the closing of the First Vatican Council and a church, for instance, underwent not only an the struggle between clerics, lay brotherhoods, and state appreciation of their life records and morals, but also bureaucrats during the Brazilian »Religious Question«. an evaluation of their knowledge of doctrine and canon Historiography usually focuses on the political aspects law. of these phenomena, and often relies on a conflictive – Before 1828, local examinations were controlled by and static – dichotomy between ultramontanists and non- the Board of Conscience and Orders (Mesa de Consciência ultramontanists. I propose, instead, that, as the disputes e Ordens) to a variable extent. The alvará of 14 April were dynamic, so were the normative conventions. I 1781, known as Alvará das Faculdades, a royal regulation claim that before the escalation of tension, the Council from the times when Brazil was still a Portuguese colony, of Trent was addressed according to a convention that had allowed relative autonomy to Brazilian bishops in emphasised normative diversity and amalgam, as if the conducting of oposições. The proposal, however, Tridentine decrees were part of a vast toolbox of laws once ready, should be sent immediately to the Board, in which, regardless of origin, regulated Church affairs, in Lisbon. Delays, omissions and nullities would imply the the view of both state and priests. I also sustain that, making of new examinations, this time presided by the even in the apex of the politico-religious polarisation, Board itself. The alvará of 14 February 1800 went even the development of legal solutions, coming in particular further, granting to the Board the right of performing its from the state, was not as linear as dichotomist thinking own oppositions regardless of defects in the ordinary’s may lead us to believe. Finally, I highlight that, in the proposal, and in a more rigorous fashion, so as to allow case of ecclesiastical examinations, the changing roles the monarch to choose between the ordinary’s and the of the Council of Trent ran in parallel with 19th-century Board’s nominees. Neves’s seminal work16 on the Board transformations of ecclesiastical law as a legal field. 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 Francisco Vieira das Chagas’s case alvará of 1800 endured a period of between (1879-1881) as a turning point 1822 and 1823) and episcopal examinations regained a more autonomous status. Even so, the Board retained The main prerogative of the emperor as patron of some of its controlling power, emitting opinions on the Brazilian Church was to appoint clerics to vacant the procedures adopted by ordinaries and at times benefices.15 In the administrative path towards reforming proposals. Overall, the Board’s efforts display , this step was known as presentation the centralising character of this institution, its urge to

Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara (in Portuguese: apresentação). The rising Brazilian provide standard criteria for the selection of benefice

98 literature on ecclesiastical law would often refer to holders. AD INISTORY 5/2020

The Second Reign (1840–1889), on its turn, exhibits then a thriving cradle of liberal ideas.17 Recife would a different picture. The organs that had succeeded the eventually take Olinda’s place as capital (1827) and as Board of Conscience and Orders in the task of dealing seat of the of law (1854). But Olinda’s legacy with ecclesiastical affairs did not inherit its, so to to Brazilian legal culture would remain. By the 1860s, speak, proactive character. Neither the Ministries of all three main Brazilian jurists engaged in scientific Justice or Empire nor the Council of State would ever polemics regarding ecclesiastical law had the Faculty of attempt to conduct ecclesiastical examinations or to Law of Olinda as their alma mater. They were: Jeronymo reformulate episcopal proposals. The Council of State Vilella de Castro Tavares, D. Manuel do Monte Rodrigues could, at most, endorse the organisation of a second d’Araújo and Candido Mendes de Almeida. The province round of concursos, after the first ones were confirmed witnessed a growing animosity between liberals and invalid by the Emperor. The presiding of examinations, ultramontanists as decades went by. And the diocese however, would always rest in the hands of bishops was particularly active in demanding answers from the and vicars capitular. Local practices had, thus, more Council of State and the Congregation of the Council on room to flourish – or rather to be kept, enjoying less administrative matters. The case about to be examined interference from the secular government. Petitions involves precisely a clashing between the responses of reaching the Council of State and the Congregation of the two organs. the Council during the second half of the 19th century It begins with Francisco Vieira das Chagas, a young are testimony of the decentralisation of practices priest who was approved at an examination for the filling related to examinations and proposals. Normative of vacant parishes in Olinda on 11 July 1879. At the time, references were varied, none of them overarching, the diocese was , and the examination was there were lacunae, much room for custom, discretion coordinated by Vicar Capitular José Joaquim Camello de and misunderstandings. In such sense, if these petitions Andrade. Francisco Vieira was presented to the emperor portray plurality, they also unveil new calls towards on 16 February 1880. Nevertheless, before receiving his standardisation, towards certainty. collation (colação)18 from the vicar capitular, Francisco My point of departure will be a case of tension Vieira submitted to the Congregation of the Council a between the Council of Trent, the Alvará das Faculdades, petition requiring the convalidation (sanatio) of the and diocesan custom. I shall use this example as a sort of very examination in which he had been approved.19 benchmark to address similar situations before and after The petition was received on 10 April 1880. According it, for this is the first time we see, from the perspective of to the young priest, his would the Council of State, the establishment of an excluding bear no validity unless there was legal remedy for the relationship between Trent and Faculdades – with the fact that his examination did not follow the Tridentine rejection of Trent. It was also the first time that the regulation regarding the quality of examiners. More Congregation of the Council had to decide on the validity specifically, the vicar capitular had not summoned of ecclesiastical examinations from Brazil, having synodal examiners, as required by the following : become acquainted with the country’s local practices. The case I am mentioning concerns the oposições for [A]nd as regards the examiners, six at least shall the provision of several benefices in Olinda between be annually proposed by the bishop, or by his vicar, 1879 and 1881. This diocese encompassed the territory in the diocesan Synod; who shall be such as shall of the province of Pernambuco, northeast of Brazil; the satisfy, and shall be approved of by the said Synod. cathedral was located in the province’s capital, Olinda, And upon any vacancy occurring in any church, the hence the diocese’s denomination. In the beginning bishop shall select three out of that number to make of the 19th century, the town of Olinda, along with its the examination with him; and afterwards, upon neighbour Recife, was an effervescent cultural centre. another vacancy following, he shall select, out of the Not by chance, in 1827, Olinda was chosen as home to six aforesaid, the same, or three others, whom he may

Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara one of the two law schools of the Empire; the Faculty of prefer. But the said examiners shall be masters, or

20

99 Law of Olinda followed the steps of the local seminary, doctors, or licentiates in theology, or in . AD INISTORY 5/2020

Francisco Vieira exposed that the vicar capitular chance, the vicar capitular sought means to regularise did not have any special faculty granted by the his situation with the Holy See soon later.24 Congregation of the Council to nominate ad hoc In view of this, on 12 July 1880, after considering examiners, as occurred. Moreover, continues Vieira, the report made by the Secretary of the Congregation the vicar capitular, without consulting the cathedral of the Council, Leo XIII, in audience, decided chapter, nominated three examiners who did not have to concede the sanatio to Francisco Vieira, that is to superior studies on Theology or Canon Law, nor did say, the convalidation of the examination for vacant they teach such disciplines as Masters, going against benefices on what concerned specifically Vieira’s case, Trent once more. relying on the good faith of the vicar capitular.25 Later The Congregation of the Council soon summoned on, another candidate, followed by the vicar capitular the vicar capitular for information on the legitimacy himself, would ask for the extension of this sanatio to of the cause.21 Andrade claimed that, even though other approved priests.26 Overall, the answer from the he did not have special faculties to nominate ad hoc Holy See, while harnessing acts that, by its standards, examiners, he did not act based on bare free will, but were invalid, displayed its relative tolerance towards relied on the »long standing uses of the diocese«.22 To local practices.27 demonstrate it, the vicar capitular stated that there On 25 September 1880, Francisco Vieira presented were never synodal examiners in Olinda, for no to the vicar capitular a rescriptum containing the synod was ever conducted in the diocese; also, as far decree of the Congregation of the Council on what as his knowledge could reach, no ordinary had ever regarded his petition, so as to establish a date for asked the Holy See for special faculties to indicate the his collation. Andrade stated that, before granting members of the examination board. This last piece of canonical institution to Vieira, the rescriptum from the information, however, does not match with the data Congregation of the Council had to be submitted to the from the Congregation of the Council. There is register imperial government, to receive the placet – that is to of at least one petition from the Bishop of Olinda, in say, the emperor’s approval, so that the decree could 1868, asking for faculties to nominate examiners as produce the due effects in national territory. The placet if they were chosen in a synod.23 Yet, according to request was made by the end of that year. Vieira sent the Vicar Capitular of Olinda, unmemorable custom a copy of the petition to the Apostolic Internuncio in allowed examiners to be nominated in Brazil right after, »for the sake of his conscience«, good faith. It is significant that Andrade, in contrast wishing to clarify that he was being forced to initiate with state officers (as we will soon see), never mentions a procedure that he knew was anathematised by the the Alvará das Faculdades as the normative support First Vatican Council.28 The case clearly presents a clash behind such practice. This points to the different of generations. The old vicar capitular, who started normative expectations that each level of governance preaching during the first half of the century, was still placed on the same phenomenon. attached to regalist institutions and logics, whereas the On the lack of titles and professional qualification young Vieira, ordained in mid-1870s, alumnus of the of the examiners, the vicar capitular justified his choice recently reformed (and no longer liberal) Seminary on grounds of the moral qualities and de facto erudition of Olinda, adopted the language of the reformist, displayed by the ones selected, a reasoning contemplated ultramontane clergy, concerned with wider views (»the by Trent. On the lack of consultation with the cathedral universal Church«) and strict reasoning (»for the sake chapter, Andrade recurred once more to the argument of conscience«). The tension between these men, while of custom. He added that, when the chapter of Olinda involving larger politico-religious movements in times chose him as vicar capitular, the election entailed a of crisis, in times of transition of normative conventions, transmission of jurisdiction and powers which included gave rise to radical outcomes. the faculty of nomination of examiners. This is a hardly On 12 April 1881, the emperor asked the Council of Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara

reliable argument, since the Congregation of the Council State’s opinion on whether placet should be conceded

100 was in charge of the concession of such faculties. Not by to the Roman rescriptum presented by Francisco Vieira. AD INISTORY 5/2020

The answer, issued on 18 August 1881 by the Section Alvará of 29 August 1766, summoning for the role of of Imperial Affairs, was negative.29 The councillors Examiners three Religious men of the highest scores (Viscount of Bom Retiro, Martim Francisco Ribeiro de in science and virtue, in the form that is practiced in Andrade and José Caetano de Andrade Pinto) based my Tribunal of the Board of Conscience and Orders; themselves on the narrative presented by Joaquim José this shall be so not because I am obliged to order the de Campos da Costa de Medeiros e Albuquerque, Chief of making of said Provisions by means of Examinations; the 3rd Directory of the Secretariat of State for Imperial but it shall be so for the greater utility that may Affairs, who defended the existence of a historical result to the Church from [the execution of] these continuity between the padroado built and conceived in [procedures].30 Portugal during Ancien Régime times and the padroado in use in the Brazilian constitutional scenario. Many The point defended by Campos de Medeiros, and papal bulls containing concessions from the Holy See to later endorsed by the councillors of state, was that, Portuguese kings in earlier centuries were mentioned. as the Brazilian padroado was a continuation of the Campos de Medeiros put emphasis on the bull Praeclara Portuguese one – in terms of rights, norms, legal logics, carissimi, from 1551, the so-called »Bull of the Union«, etc. – the Alvará das Faculdades would be the standard which, by incorporating to the Portuguese Crown normative set regulating ecclesiastical examinations the grand mastership of three military orders (Avis, in Brazilian territory. Summoning synodal examiners Santiago, de Cristo), granted to Portuguese monarchs would then remain as a possibility in the hands of the privilege of freely appointing clerics to ecclesiastical bishops, as Faculdades allowed a broader margin of benefices and dignities. With the word »freely«, Campos discretion.31 The general idea conveyed by Campos de Medeiros meant that such right should be – and had de Medeiros was that the Session 24, De reformatione, actually been – exercised with »maximum liberty« by Canon 18, of the Council of Trent, played no role in the the monarchs, the only concern being the selection of unfolding of Brazilian concursos,32 the sole protagonist idoneous persons. He conceded that, sometimes, due to was Faculdades. This relationship of normative the long distances separating Lisbon from ultramarine exclusion becomes particularly clear when Campos de territories, kings had delegated to bishops the faculty of Medeiros claims that the Congregation of the Council performing examinations; but, even then, procedural had operated against padroado rights, for it had no norms issued by the Crown were the primary rules. competence to decide on Vieira’s case: »it was not a In the context of Brazil as a Portuguese colony, the matter of interpretation or execution of the decrees Alvará das Faculdades, a royal regulation from 1781, of the Council of Trent«.33 According to his view, the with which Queen Mary I of Portugal addressed the dicastery was actually judging the application of Bishop of Rio de Janeiro to aid her in the provision Faculdades, an unacceptable procedure: »the Tribunal of benefices and dignities, was one of the documents [the Congregation of the Council] [was] incompetent to that had fulfilled the role of a procedural set of norms take cognisance of the manner Faculdades, by which for examinations. On what concerns the quality of oppositions are ruled among us, was executed«.34 While examiners, one can see that the decree uses a less supporting an exclusionary relationship between Trent specific language in comparison with the Council of and Faculdades, Campos de Medeiros concedes only one Trent: common point between them: the fact that both ordered the »best appreciation of the aptitude [idoneidade] and Being, however, the vacant Benefice a Vicariate, a merit of candidates«35; Faculdades indeed cited Trent on Parish Church, a Chaplaincy, or a Curate, to which that matter. However, such narrow understanding of I had given, and to which I order to give in the the role of Trent in Brazilian oposições does not seem to future, collative nature, you shall proceed then to be unanimous if one looks at earlier perspectives from examinations according to the form prescribed by the within and without the Council of State. Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara

ancient Alvarás of the Kings my Predecessors, which

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Before Vieira’s case. The relationships than Vieira’s case portrayed. They could transition from a normative even be harmoniously arranged. convention of amalgam to Going beyond the Council of State’s activity and into a normative convention of the realm of legal books, it is worth mentioning that the Bishop of Rio de Janeiro, D. Manuel do Monte Rodrigues separation d’Araújo, in his 1858 book on ecclesiastical law (Elementos de direito ecclesiastico publico e particular, There were indeed cases in which state councillors had 1857–1859), largely used in bureaucratic environments, displayed more deference towards the Tridentine decrees employed both the Council of Trent and the Alvará das when it came to regulating ecclesiastical examinations Faculdades to explain how examinations for provision and related matters (proposal, collation, etc.). Between of benefices unfolded in Brazil. He pointed no explicit 1843 and 1881, the year when Vieira’s case arrived at the sign of exclusion between them.47 Council of State, the organ had already issued at least If harmonious combinations, or at least the 18 opinions on these subjects.36 Six opinions contained possibility of combining one normative set and another, no mention to Trent, only to Faculdades.37 Two cited were envisaged in some circles, in others, however, neither set of norms.38 One opinion, while mentioning certain discourses and practices already pointed to just Trent, suggested that, regarding the procedure of an exclusionary choice. We have seen that, in Vieira’s the examinations, Tridentine dispositions could have case, the councillors deemed Faculdades the standard given way to local practices (I will come back to this normative corpus, Trent playing no actual role in the point).39 Four opinions focused on the binding nature unfolding of examinations. Yet, the Brazilian episcopate of the ecclesiastical proposal for the presentation and acted precisely in the opposite direction: there is collation of candidates; three were favourable to the evidence that, during the Empire’s final decades, many non-mandatory character of the proposal, in accordance bishops moved more and more towards complying with Faculdades, and mentioning Trent for secondary with Tridentine obligations. For example, from the purposes40; one opinion, however, suggested a contrast 1860s onwards, several ordinaries recurred to the Holy between Faculdades and Trent on the issue, favouring See seeking alternatives to the annual synod in which the mandatory character of the proposal, in accordance diocesan examiners should be elected. This tendency, with the Tridentine.41 In at least six opinions, Trent was fostered by the rise of ultramontanism among higher mentioned alongside Faculdades in a complementary or ecclesiastical ranks,48 can be observed in the protocol at least non-exclusionary fashion. Four cases presented books of the Congregation of the Council. These books the affinity between the two norms as related tothe attest that, prior to Vieira’s case, at least five Brazilian exam of intellectual capacities and/or moral qualities bishops asked the congregation for faculties (i.e. powers of candidates, in accordance with what was said by granted by superiors) to elect examiners as if they had Campos de Medeiros in Vieira’s case42; in one of them, been chosen in a synod. In addition to the request of Trent was also invoked on its own, on what concerned the Bishop of Olinda in 1868, there were petitions from the age and ordination requirements of candidates.43 Mariana (1865 and 1876),49 S. Pedro do Rio Grande do Finally, three cases displayed the reliance that state Sul (1873),50 and S. Sebastião do Rio de Janeiro (1877)51 councillors had in combining Trent and Faculdades – the latter being somewhat surprising because it was to clarify issues such as: the functions of examiners the diocese in which the imperial capital was situated. and of the ordinary in the approval or rejection of Although these data offer little insight on the bishops’ candidates,44 deadlines and documents necessary for thoughts on Faculdades, it does constitute a sign of registering to an examination45 and who could preside the ordinaries’ urge for uniformity, of their choice for over examinations.46 Such uses suggest that the Council the Council of Trent and the Holy See, setting aside of Trent was a relevant set of norms for the Council divergent local practices and norms. Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara

of State when deciding on ecclesiastical oppositions, Some jurists had a more straightforward approach on

102 and that Trent and Faculdades had more possible the disharmony between Trent and Faculdades. One of AD INISTORY 5/2020

these men was ultramontane jurist Candido Mendes de When compared with these jurists’ points of Almeida. In the long foreword to his own compilation of view, in particular Mendes de Almeida’s, the path of Brazilian ecclesiastical civil law (Direito civil ecclesiastico argumentation chosen by the councillors of state in brazileiro antigo e moderno, 1866–1873), Mendes de Vieira’s case reveals itself to be very different in content Almeida cast a harsh criticism on Monte Rodrigues – but, at the same time, very close in terms of normative d’Araújo’s approach on ecclesiastical examinations. convention. Both perspectives agree on the adoption According to the ultramontanist, the Alvará das of an exclusive, either/or logic, disagreeing only on the Faculdades and the Council of Trent were irreconcilable norm that should be cast away. The state councillors, norms. Under the former, the bishop would be acting via Campos de Medeiros, defended that Faculdades had as a delegate of the patron; examiners would be chosen precedence over Trent, the latter’s applicability being according to the practice of a body strange to Church very limited, conditioned to the reception operated hierarchy, the Board of Conscience and Orders; and the by the former. Such position led the Council of State final decision on the worthiest candidate for a given to maintain that ecclesiastical examinations in Brazil benefice would be shifted to the patron, since the bishop were a matter of exclusive competence of the Executive would only be obliged to compose a list of the three best Branch, ruled by civil laws.54 This was a rather bold candidates. Under Trent, on the other hand, the bishop assertion, because, in view of the padroado system, would be acting in his own right; the examiners would ecclesiastical examinations were commonly held by be elected in a diocesan synod; and it would be the Brazilian jurists as a mixed matter, meaning a matter responsibility of the ordinary to appoint, after the results that, involving acts from ecclesiastical and secular of the examinations, the worthiest candidate, so the authorities, entailed laws developed within the Church patron could then proceed to the presentation. With this and laws issued by the state. Moreover, appeals against contrast, Mendes de Almeida defended that »to comply examinations should be made to the tribunal of the with the Alvará is to offend the Council«.52 archdiocese of S. Salvador da Bahia; Monte Rodrigues Another narrative of discontinuity was precisely d’Araújo, in his manual on ecclesiastical law, stated within the Council of State: the Marquis of Olinda, a precisely so – and nodded to the possibility that such moderate regalist.53 In some occasions, the Marquis appeals might reach the Holy See, while mentioning claimed that the Alvará das Faculdades was no longer Trent and the letter Cum illud of Pope Benedict valid – at least not on what concerned Imperial Brazil. XIV.55 The point of view of Campos de Medeiros, however, According to this narrative, after its independence expressed that if Vieira noticed any irregularity in from Portugal, Brazil had inaugurated a new form of the manner his examination had been performed, he padroado, disconnected from any previous concession should have resorted to the state – not to the Holy See. In from the Holy See and based exclusively on the Imperial fact, while recurring to the Congregation of the Council, Constitution. Such position was supported by the fact Campos de Medeiros concluded, Vieira was performing that, at the beginning of the Brazilian Empire, the a crime against Brazilian sovereignty – Article 81 of National Legislative Assembly refused to give the placet the Imperial Criminal Code, the crime of recurring to a to the Praeclara Portugalliae (1827), which had foreign authority to request spiritual grace or privilege conceded to the emperor of Brazil the same prerogatives in the ecclesiastical hierarchy.56 enjoyed by Portuguese monarchs as grand masters of Nevertheless, by the end of the consultation, the the Military Order of Christ. Such discontinuity between councillors of state were not so harsh as to opine for the Portuguese and the Brazilian padroados would not the criminal complaint of Francisco Vieira. It seems allow, thus, the Alvará das Faculdades, a norm from the that it was still quite fresh in their minds the sound and Portuguese Ancien Régime, to be further applicable in fury of the disputes between the reformist clergy and the context of independent Brazil. This position was Brazilian state authorities during the decade of 1870. I quite unusual among Brazilian regalists (especially am referring to the suits that resulted in the the arrest Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara

within the Council of State), converting the Marquis into of Bishop D. Vital Maria Gonçalves de Oliveira of the

103 a (respectable) outsider. diocese of Olinda, on grounds of the enforcement of AD INISTORY 5/2020

papal norms which had not received the placet.57 In fact, recent examinations for parishes (again) in the diocese we may presume that one of the factors that led Vicar of Olinda.59 The role played by the late bishop was put Capitular Andrade to insist on the placet for Vieira’s into question, for he had not limited his activity to the rescriptum was precisely the fear of relapsing into the coordination of examinations. Once the doctrinal round same problem. The case of D. Vital, along with Bishop of the evaluation was over, the bishop dismissed the board D. Antonio de Macedo Costa of the diocese of Belém of examiners and took to himself the task of evaluating do Pará, both relentless ultramontanists, generated the moral aptitude of candidates. The petitioner, the national commotion and attracted the attention of other vicar capitular, then a member of the board, claimed countries, as it appeared in the pages of several foreign this sort of procedure found no support in the Council magazines and newspapers.58 The Brazilian »Religious of Trent or in subsequent pontifical norms and, thus, the Question«, as it came to be known, mobilized not only oppositions were irregular. The vote of the Marquis of jurists in the country, but also diplomats around the Holy Olinda, then the rapporteur of the section, recognised See. It was one of the greatest political tribulations of that neither Trent nor Benedict XIV’s encyclical the end of the Empire, and the Council of State played a letter Cum illud seemed to allow separate grades for major role in its intensification and resolution. To avoid each phase of evaluation. According to these norms, a similar convulsion in 1881, the Section of Imperial interpreted the Marquis, examiners should pronounce Affairs of the Council of State issued the opinion that only one grade after the whole process of examination. the rescriptum from the Congregation of the Council Nevertheless, the Marquis also acknowledged that presented by Vieira did not have any legal value in Brazil; Tridentine discipline had been altered in Brazilian that the examination that took place in Olinda in 1879 churches. He could not precise if that would be the case was fully valid and that, in spite of his acts, Vieira should for all of them, but »for sure in those in Bahia and Rio receive his collation – as long as the vicar capitular, while de Janeiro«. In these churches, he continued, examiners conceding it, made clear that he was proceeding thus would be in charge of evaluating only scientific merits, exclusively in virtue of the letter of presentation from whereas the verification of morals would be a task for the emperor. Among others, this opinion was endorsed the ordinaries. The Marquis regretted that the vicar by the Viscount of Bom Retiro, a state councillor who had capitular did not specify whether the separation of signed the granting of the appeal to the Crown against D. grades was a discipline admitted at the diocese (that is to Vital, in 1873. He seemed to have found in Vieira’s case an say, whether it was a local practice) or a resolution of the opportunity to exercise moderation. bishop for that particular examination. He concluded Even though these entangled procedures provided that the Council of State did not possess enough data on more or less the same result to Francisco Vieira – that is facts and local discipline, being unable, thus, to declare to say, his collation as parish priest – this case represents the oppositions invalid. The section agreed, then, that a turning point for the Council of State in the field of the vicar capitular should restore the proposals to the ecclesiastical examinations, for it was then that formal government, with all necessary information on the administrative issues were inserted into the wider candidates’ mores; that the government should verify – and more delicate – debate on imperial sovereignty this material and, depending on its contents, proceed and autonomy of the Church. The perspective of the to the presentation of approved candidates or order the councillors on Trent seems to have shifted from a execution of new examinations. Most importantly, the universal set of norms with local adaptations, that councillors suggested that all Brazilian bishops should coexisted with other local norms, to a sign of allegiance be asked to send information on the discipline in force towards a foreign authority (the Holy See) and a at their dioceses on what concerned grading candidates politico-religious movement (the ultramontanists). This to vacant benefices. This request was officially made via is particularly evident if we compare Vieira’s case to the circular letter of 19 January 1865. another one from a bit more than 15 years earlier. The relevance of this case lies precisely on the fact that Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara

In December 1864, the councillors of the Section of state councillors expressed uncertainty on the norms

104 Imperial Affairs were called to decide on the validity of that were employed in ecclesiastical examinations. AD INISTORY 5/2020

They recognised that they could not precise to which by means of the Institutiones Juris Ecclesiastici (1782), extent Trent was adopted in Brazilian dioceses when by Austrian canonist Franz Xaver Gmeiner, widely it came to the subject. They showed that they were not diffused in Coimbra; on the other, the historicist, organic familiar with local practices, admitted disciplines, etc. approach of the Kirchenrecht, a scientific novelty Yet they displayed willingness to be informed about provided by jurists close to the German Historical it. More than that, they expressed that these details School, like Ferdinand Walter and George Phillips.61 would be relevant to the government while scrutinising Both these trends proposed an »amalgamated« ecclesiastical proposals. This behaviour is similar to conception of ecclesiastical law, for the relevant norms the one exhibited by the Congregation of the Council were delimited ratione materiae (»laws that regulated in Vieira’s case, when asking for further information the Church«); in relation to this criterion, the norms’ from Vicar Capitular Andrade. And it is in stark contrast origin, that is, whether norms were produced by state with the state councillors’ attitude in 1880. Instead of authorities or by the clergy, was a secondary aspect, a acknowledging his ignorance on local practices, the matter of detailing, not of disciplinary delimitation. Marquis of Olinda could have simply posed that the The amalgamated conception of ecclesiastical applicable norm in all cases was Faculdades, attaching law matched with the activity of institutions like the his interpretation on how grading should unfold in Brazilian Council of State, which, during much of its accordance to that norm. But he did not. In fact, he did existence, regarded ecclesiastical law as a large toolbox, not even mention Faculdades in this occasion. whose varied material was fully available to this organ’s The comparison between the two cases – Vieira’s and interpretation. In fact, the openness of the Council the one just described – is quite telling about the different of State to interpret both civil law and canon law had normative conventions underlying the governance of its legitimacy strengthened by the argument, arising the Church during the 1860s and the 1880s. While in from regalist and liberal discourses, that the state the first period what is seen is a Council of State more should have control over any legal norms concerning open to the consideration of multiple norms – such as the Brazilian Church, so as to preserve national the Council of Trent, local normative uses and even sovereignty and the Church’s own interest.62 Thus, it is pontifical encyclical letters – the same organ adopted a not surprising that, before Vieira’s case, the councillors’ much more closed position in 1880, rejecting Trent, as opinions orchestrated norms of canon law, state laws well as other local practices that represented a deviation and diocesan uses. from what were considered civil laws for the regulation Vieira's case lies precisely between the exhaustion of of the Church. the convention of ecclesiastical law as amalgam, at the The Council of State’s change of perspective is full disposal of the Council of State's interpretation, and part of a broader transition in the way of conceiving the ascendancy of another convention, of separation ecclesiastical law as a discipline.60 In 19th-century between canon law and civil law for Church affairs. In Brazil, most of the handbooks on the field addressed Brazil, this separation (that can be labelled disciplinary, ecclesiastical law as »the law that regulated the jurisdictional and normative) gained ground with the Church«, and which contained both canon law (i.e. the rise of ultramontanism among the clergy and laity, and Corpus iuris canonici, the Council of Trent, pontifical the subsequent tensions that these groups established constitutions, decrees of Roman congregations, etc.) and with regalists and secularists. It was ultramontane jurist civil laws specifically aimed at the Brazilian Church. Mendes de Almeida who, inspired by French authors I choose the term »amalgam« to denominate this (Michel André, Gilbert de Champeaux, both supporters normative convention, for it united different elements of ultramontanism),63 introduced the term ecclesiastical (canonical laws and civil laws) under the same label civil law (direito civil eclesiástico) in Brazilian academic (ecclesiastical law). This arrangement derived from two debate, referring to the legislation on ecclesiastical doctrinal trends that were particularly strong during matters that was partially or fully produced by Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara

the 1800s. On one side, the rationalist systematisation of secular authorities, in particular state bodies. In his

105 the ius publicum ecclesiasticum, made known in Brazil compilation of the genre, Mendes de Almeida delimited AD INISTORY 5/2020

and historically situated this branch of law, recalling Due to their loyalty to the constituted institutions, normative sets that went from the first Portuguese the state councillors were not allowed to endorse claims to the last legislative novelties of the Brazilian for institutional separation, but they did partake of the Empire; he also confronted all this material with remote normative convention that was behind both secularist and recent canon law. By distinguishing and comparing and ultramontane discourses. Vieira’s case is an extreme norms from the two legal fields, Mendes de Almeida example of it, as the Council of State, in its response, not wished to offer a critical account of the treatment that only adopted the convention of normative separation, the modern Brazilian state dispensed to the Church. but bent it towards normative exclusion. In the opposite It should be stressed that Mendes de Almeida did not direction of Mendes de Almeida’s proposal (though defend a complete separation between Church and within the same normative convention), the state state. He was not a secularist. He rather advocated for councillors excluded canon law from the regulation of greater autonomy to the Church in its relationship with ecclesiastical examinations performed in Brazil; only the state; and, as I have already suggested, Mendes de civil laws were deemed applicable, and only the Council Almeida stood for the enforcement of canonical norms, of State figured as the proper court of appeal. The days like the Council of Trent, in detriment of recent civil of the convention of ecclesiastical law as amalgam were laws which, in his view, possessed a sharp regalist tone numbered. However, state councillors would not cling (e.g. Alvará das Faculdades). One may say that there to the radicalism present in Vieira’s case. Mitigated was an exclusionary note in his general approach of the solutions were later created within the same normative normative convention of separation. convention of separation, as we shall see in the next A more extreme logic of separation is found on the section. other side of the ideological spectrum, in the writings of supporters of liberalism and republicanism, like Ruy Barbosa and Saldanha Marinho.64 Harsh critics of After Vieira’s case. Trent to the ultramontanism, these jurists postulated that Church Church, Faculdades to the state and state should undergo full separation, a »reciprocal emancipation«, in the words of Barbosa. These In October 1888, the Council of State opined on an authors pointed out that Brazilian state law – and, in appeal to the Crown (recurso à Coroa)65 from the diocese particular, the liberal values embedded in it, such as of São Paulo. The petitioner, Fr. Francisco Gonçalves freedom of conscience, liberal democracy, national Barroso, contested his non-habilitation as candidate sovereignty – were incompatible with canon law as to a position of canon of the .66 The interpreted by Pope Pius IX (especially by means of the provisor of the diocese denied his candidacy on grounds Syllabus Errorum, from 1864) and as enforced by the of form, for the complainant had not submitted a letter ultramontane clergy in Brazil. The prevalence of canon of excardination and de genere information within the law in case of normative conflict, as posed by Pius IX, time limit prescribed by the examination edict. This represented a challenge to the Brazilian Empire, as its case raised questions both of form and competence. bureaucracy relied on several regalist and/or liberal Even though state councillors focused their attention mechanisms to perform tasks of administration of the on the latter, the former aspect, as it appears in the clergy. But problems went further. The institutional petition, engages in several connections with the entanglements between Church and state also hindered Council of Trent – or rather, with Tridentine cultural the advancement of legislative measures applicable to »translations«. While deeming unfair the request of an all citizens, such as civil marriage, the secularisation excardination letter instead of a dimissorial letter,67 of educational institutions and cemeteries, and the the petitioner supported the prevalence of recent civil establishment of a system of civil registration. For such norms and doctrine over the First Constitutions of the reasons, liberal and republican jurists adopted the Archbishopric of Bahia, Colonial Brazil’s »adapted Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara 68

institutional – and normative – separation of Church version« of the Council of Trent. But, when recalling

106 and state as the only solution. practices of the diocese’s former – AD INISTORY 5/2020

which allowed the delivery of documents even after What is particularly noteworthy is that Figueira the expiring of the edict, with no cause for rejection suggested that the single possible appeal would be to of the candidacy – Barroso addressed Trent in a new, the Relação Metropolitana – I repeat: not just because unprecedented level: the level of dispute on how of the right sequence of appealing, but because there accurately decisions of the Congregation of the Council would be room for manoeuvre only within canon law. were being used in Brazil. More precisely, by attaching In other words, even if the order of appeals had been excerpts from the Diario Mercantil newspaper, the correctly addressed and if, after a negative from S. petitioner made the Council of State aware about the Salvador da Bahia, the dossier had reached the hands interpretative discrepancy between the practices of of the state councillors, they would not judge the case São Paulo’s former vicar general and the contents of a because it was situated in the field of canon law. The recent book on ecclesiastical law written by Ezechias arena of the Council of State, one may understand from Galvão da Fontoura, a canon from the same diocese. Figueira’s discourse, was confined to the law produced Both relied on decrees (or on what they believed by secular powers, a realm which contained norms that to be decrees) of the Congregation of the Council to were relevant to ecclesiastical administration, as in the support their opinions on the stricter or more flexible case of the aforementioned Faculdades, but which was consequences of presenting required documents separate from canon law, an equally valid field, but after the period prescribed by the edict. Barroso, of outside the reach of the state councillors. course, did not expect the Council of State to redeem This is a position that, although apparently trivial, canonical disputes. He pursued his own habilitation to is very interesting from a broader perspective, if the exams – but, while doing so, he offered to the eyes one considers the treatment that the Council of of state councillors a layer of controversy on Trent’s State historically gave to issues of ecclesiastical interpretation which was quite new to the institution. administration, and the development of debates on He was addressing the debate on whether a decree ecclesiastical law in Brazil. It is a position that points from the Congregation of the Council – which was the way to a rupture with the past, more precisely a past interpreting the encyclical letter Cum illud, which, on when the councillors approached both canonical laws its turn, was detailing a disposition of the Council of and ecclesiastical civil laws with ease, confident that Trent – was being properly interpreted in São Paulo. the boundaries between these normative sets did not Councillors Domingos de Andrade Figueira and the correspond to exclusive jurisdictions. As I mentioned Viscount of Ouro Preto, however, did not feel like earlier, these more »eclectic« normative uses ran in engaging in this tricky hermeneutic exercise. parallel with the convention, heavily present in the Figueira bluntly stated that Barroso should major manuals of ecclesiastical law of the 1850s, that have recurred to the (Relação ecclesiastical law comprised all norms that regulated Metropolitana) of the archdiocese of S. Salvador da Church affairs, regardless of their institutional origin. Bahia first, in accordance with the civil decree that The cases of Vieira and Barroso are relevant because regulated the appeal to the Crown.69 But it was not only they depict moments in which the state renounced a matter of following the right sequence of instances of the interpretation of canon law and confined itself to appeal. Figueira indicated that an appeal against the the consideration of civil laws when deciding on an dispatches that had denied the petitioner’s candidacy ecclesiastical matter. Whereas Vieira’s case posed a would not be possible on grounds of civil law, for civil radical solution, Barroso’s case offered a mitigated law would not allow the postponing of the 30-day position. Figueira acknowledged that examinations period stipulated by the Alvará das Faculdades to the were a mixed issue, but this did not imply that different habilitation of candidates to examinations. When it institutions could use and interpret all rules without came to canon law, the scenario was a bit more positive, distinction. It is different from the radicalism that state for canonical dispositions, said Figueira, would regard councillors displayed in Vieira’s case, in which they Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara

as optional for the bishop to grant or deny extensions of argued that examinations were a matter of civil law,

107 the said 30-day period. with the Council of State as the sole appealing court AD INISTORY 5/2020

in the event of suspected invalidity. What councillor be said that, when the Holy See answered the Bishop of Figueira suggested was that, since examinations were São Paulo’s dubium, the Brazilian Catholic Empire was a mixed matter, Church hierarchy and the secular already on its way to become a secular republic. power should approach concrete cases restricting their analysis to the normative sets originated within each institution. Thus, canon law should be interpreted Final remarks. The uses of the and applied by the Church, via its ecclesiastical courts, Council of Trent alongside the whereas ecclesiastical civil law should be interpreted transformations of ecclesiastical and applied by the state, via its secular courts. law as a legal field 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 With this article, I meant to show a concrete example of the state (autonomy with mutual cooperation, after all, how 19th-century Brazilian ecclesiastical administration Figueira was a Catholic conservative, in the sense that unfolded within a scenario of multinormativity and he was favourable to the emperor’s padroado rights, multilevel governance, and how these two elements and against the separation between Church and state), were connected. I considered multinormativity not and to a clearer delimitation between ecclesiastical only as the coexistence of multiple legal norms, but civil law and canon law. Even though this opinion went as the relationship between these norms according to hardly as far as some ultramontanists would have different normative conventions. Influenced by politico- liked (for they would have preferred a straightforward religious changes, the normative conventions expressed reproach of many Church-related civil norms, including distinctive forms of understanding ecclesiastical law, as Faculdades), it did approach the normative convention well as Church and state relations, entailing different of separation adopted by ultramontanists. It followed views on Church-related disciplinary fields, normative to a certain extent the concerns of ultramontane categorisation and relationship, and jurisdictional Mendes de Almeida, when he defended the teaching arrangement. The interaction between the levels of of ecclesiastical civil law as a complementary (and, governance diffused – and even catalysed – shifts therefore, separate) discipline to canon law in the of normative conventions. The ways of interpreting country’s faculties of law. Mendes de Almeida realised and applying the Council of Trent changed from a that to make an effective critique of the government’s convention of amalgam to a convention of separation, measures regarding ecclesiastical administration, one with significant nuances in the transition. should first have a solid idea of the two disciplines This could be observed in a quite clear way from the and their boundaries.70 Knowing the boundaries (or point of view of the Council of State, whose decisions rather establishing them) was the first step in pointing transited from normative amalgam (i.e. ecclesiastical out where the abuses were and how the autonomy of law as a toolbox comprised of canonical laws, civil institutions could be fostered. laws and custom; the Council of Trent, the Alvará das It is true that Figueira’s opinion did not address Faculdades and local uses are all potentially applicable to the option of appealing to the Holy See, so that it is ecclesiastical examinations, its concrete implementation not possible to follow his argument to its ultimate depending on the case) to normative exclusion, with a consequences. But the records of the Congregation of the significant expansion of the jurisdiction of the state over Council show that at the beginning of 1888 the Bishop of the Church (i.e. ecclesiastical examinations are a matter São Paulo sent via the Apostolic Internuncio in Brazil of civil law, only the Alvará das Faculdades is applicable, a general dubium on the interpretation of Cum illud, only the state’s jurisdiction is competent to approach the encyclical letter that was at the centre of diocesan cases related to ecclesiastical examinations), and later, debates on the congregation’s decrees.71 I found no from this state of affairs to normative separation, with Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara

evidence of control or impediments to these flows of more jurisdictional autonomy to both institutions (i.e.

108 communication on the part of the state. But it should ecclesiastical examinations are a mixed matter, entailing AD INISTORY 5/2020

canon law, which belongs to the Church’s jurisdiction, by a more eclectic, amalgamated normative convention and civil law, which belongs to the state’s jurisdiction). about ecclesiastical law, mixing laws coming from secular To describe shifts of normative convention from the powers and canon law, all under the same label, as seen perspective of the Congregation of the Council is less in books: ius ecclesiasticum. Within this framework, civil easy and would require the analysis of more sources. authorities – via the Council of State – felt allowed to On what concerns Vieira’s case, the dicastery displayed interpret and implement norms of canonical or pontifical a relatively tolerant behaviour towards normative origin, the Council of Trent being a striking example. But diversity, by harnessing acts that, by the Holy See’s such situation would not last for the whole century. standards, were void of validity. The shift of convention Other than an a priori exclusion between legal is perhaps best appreciated from the side of petitioners. norms, Vieira’s case sheds light on how political change The absence of petitions about concursos in earlier is connected with shifts of normative conventions, with decades signals a conformation with local uses, informed modifications on how legal norms were read and on by a more open and varied normative convention, how relationships between legal norms were conceived. whereas the flows of Brazilian solicitations from the In the case of ecclesiastical administration in Brazil, 1860s onwards, along with the rise of ultramontanism the growing political opposition witnessed from the among higher ecclesiastical ranks, suggest an urge for 1870s onwards, between groups with different views uniformity, for consonance with Trent and the Holy See, on the Church – be they classified as ultramontanists, under the sign of a normative convention of exclusion. regalists, liberals, etc. – this opposition encompassed Ultimately, the convulsion – and subsequent changes conventions that emphasised normative separation, – provoked by the intersection between the Congregation and even exclusion. The hegemony of Trent, on the side of the Council and the Brazilian Council of State in of reformist priests like Vieira, and the hegemony of Vieira’s case are a vivid proof that multilevel governance Faculdades, on the part of the state councillors opining and multinormativity are strongly intertwined. The on Vieira’s case, are proof of this either/or logic. This is interaction between different institutional levels in stark contrast with normative amalgam, that is, the favoured the emergence of new arrangements among and/and logic from previous times. multiple norms. Throughout the network of governance Exclusion is also found on what regards jurisdiction, of the Brazilian Church, normative conventions had since political tension seems to have required a strong the chance of blossoming, circulating, persisting and position on which the dominant element was, if the civil changing. Thus, if one considers multinormativity as jurisdiction or the ecclesiastical one. Authority is the more than the coexistence of multiple norms regulating great leitmotif of the period, permeating from national the same phenomenon, that is, as the intricate legal polemics to theological debates during the First relationship between norms, normative conventions, Vatican Council. It was something to fight for, even if and concrete events, it would be correct to conclude it implied the adoption of contradictory argumentation. that multinormativity develops within multilevel As seen, Campos de Medeiros and the state councillors in governance or rather that multinormativity emerges Vieira’s case were so concerned with rejecting any kind from multilevel governance. of Roman intervention in the governance of the Church I can go into more detail. By comparing Vieira’s case that, to justify the exclusive application of the Alvará das with other situations from the field of ecclesiastical Faculdades, they ended up using an argument in favour examinations that came to the knowledge of the Council of the historical ties between the Holy See and Brazil. of State earlier and later, I verified that the exclusion The councillors’ radicalism is ironically supported between Trent and the Alvará das Faculdades was not by a narrative of continuity between Portuguese and absolute. Between the 1840s and 1860s, the Council of State Brazilian padroados, focused on the inheritance of the employed both sets of norms as complementary or non- grand mastership of the Order of Christ, which was no exclusionary in several occasions. There are indications of less than a pontifical concession. That is, against Rome, Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara

complementarity also in the legal doctrine. In a practical the Council of State used an argument that depended on

109 level, the period prior to Vieira’s case seems informed Rome to exist, that attested Rome’s participation in the AD INISTORY 5/2020

governance of the old Portuguese Church, and that could is not possible to affirm with complete certainty if, when ultimately endorse Rome’s intervention in the affairs of faced with similar situations, councillors from other the Brazilian Church. This is proof of the non-entirely periods would have acted with equivalent radicalism. coherent fashion in which normative conventions were It is important to evaluate what consultations on employed and justified. other issues will show in this regard. However, the But if some factors come to feed the chaos, others comparison of Vieira’s case with others on the same arrive to appease it. The Brazilian »Religious Question« subject (ecclesiastical examinations), as done here, and its traumatic effects emerge as important extralegal already points to the possibility of difference. That is, factors that helped mitigating the outcomes of Vieira’s it points to the variety of perspectives on the Council case, for they directed councillors to a more political (or of Trent that could emerge when resolving apparently merciful) solution instead of the strict application of law. common problems in a multilayered structure. It It was a question of avoiding the repetition of diplomatic was precisely in this continuous activity of searching scandals that could result from the imprisonment of for and proposing ordinary solutions that bishops, ecclesiastics. It was a matter of harm reduction. councillors, and cardinals placed normative resources The appeasing atmosphere persisted and revealed in conjunction with wide politico-religious movements, important changes. Barroso’s case, posterior to Vieira’s normative conventions, and concrete events. If one in almost a decade, gave way to a more sober action regards the governance of the Church in its entirety, on the part of the Council of State, as if it were a more like a painter’s canvas, one may well conclude that all mature result of the political polarisation experienced these small cases, all these small interactions, colored earlier. Interpretations that mixed canon law and these resources – and the Tridentine among them – with civil law started giving room for the establishment multiple, and sometimes surprising, interpretations. 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 Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara

pontifical norms – but with the direct response of the

110 Holy See to a specific petition from national territory. It 111 Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance 5 4 3 2 1 but alsoincludesbodiesbeyondits boundaries,asitisthecase implies awiderorganising framework, whichcontainsthestate, inMax forinstance, see, Weber). Governance may one (as field semantic its around onwards, with terms such as »efficiency« and »certainty« gravitating the state,inparticularasitwasconceivedfrom19 institution, specific a of organisation the to attached usually terms ready-made solutions.»Government«and»administration« are of uncertainty–or,statedmorepositively,open-endedness,non- the interplayofmultiplenorms,agentsandjurisdictionsinacontext adopt itinsofarasallowsahistoricalinterpretationthatembraces debates in the fields of political science and international relations, I São Paulo1884,p.17. character, for it is primarily concerned with interactive processes. the wholesystem.Infact,governance possessesamoredynamical establish withthosewithout–andthe echoesofsuchrelationsin the relations that bodies within the state (e.g., local churches) of the Holy Seeand the Romancongregations,and acknowledges Consciência. Osultramontanos noBrasil eoregalismodoSegundo (1500–1889), vol.I,Aparecida2016;ÍtaloSantirocchi:Questãode September 2019),andtheanonymousreviewers. in verwaltungshistorischer Perspektive(Frankfurt amMain,27–28 Normenkonflikte Multinormativity. Administrative Workshop: Almeida Costa,PeterBecker,Collin,thecolleaguesat in Iaddress, Rodolfo Moutin, André Luis Pereira de Miatello, Arthur Barrêtto article. of this Albani,RicardoSontag,OlafBlaschke,Osvaldoparticular, Benedetta version final the shaping helped andopportunities,who, bymeansofcomments,suggestions, Rubino deOliveira: Brasileiro. NoçõesPreliminares,RiodeJaneiro1866,pp.29–30;José auxiliary«. See: Antonio Joaquim Ribas: Direito Administrativo law, sometimes asa»powerfulauxiliary«,othertimes»natural ecclesiastical law in close relationship to (secular) administrative administrative legal books from the imperial period characterised direito dosletrados noimpérioportuguês,Florianópolis2006. Império, 1495–1777,Coimbra 2006;AntónioManuelHespanha:O 2010, pp. 265–292; José Pedro Paiva: Os Bispos de Portugal e do (eds.): (eds.): A expansão marítima portuguesa, 1400–1800, Lisboa e Acção Religiosa, in: Francisco Bethencourt / Diogo Ramada Curto 2012, pp.157–199;IsabeldosGuimarães Sá:Estruturas Eclesiásticas come fonteperlastoriadelPortogalloinetàmoderna,Viterbo Santa Sede della archivi Gli (eds.): Sanfilippo Matteo / Pizzorusso documentarie conparticolareriferimentoalSeicento,in:Giovanni nella dimensione ›globale‹ della Chiesa romana. Note storico- pp. 123–160;GiovanniPizzorusso: Ilpadroadorégioportoghese e circulaçãodemodelospolítico-administrativos, Lisboa2018, Perspectiva Comparada (séculos XVI–XVIII). Dinâmicas imperiais / FedericoPalomoRobertaStumpf:MonarquiasIbéricasem de Portugal:Fundamentosepráticas, in:ÂngelaBarretoXavier Formação doCatolicismoBrasileiro, Petrópolis1974. no Brasil noséculo XIX,Petrópolis1980;EduardoHoornaert: Ensaio deinterpretaçãoapartirdopovo.SegundaÉpoca.AIgreja 2009, pp.379–428;JoséHaucketal.:HistóriadaIgrejanoBrasil. Salles (eds.):OBrasil imperial,vol.1(1808–1831),RiodeJaneiro Neves: A religião do Império e a Igreja, in: Keila Grinberg / Ricardo Reinado (1840–1889), Belo Horizonte 2015; Guilherme Pereira das Although theterm It isworthtorememberthat,duethe Ângela BarretoXavier/FernandaOlival:Opadroadodacoroa Dilermando Ramos Vieira: História do catolicismo no Brasil I wishtoexpressmygratitude totheprofessorsandresearchers governance governance

Epítome deDireitoAdministrativo Brasileiro, emerges as a more useful term because it is partofawell-knowntradition of padroado padroado th century system, AD 9 8 7 6 10

A politico-religiousperspectivethatemerged duringthe Febronianism andJosephinism.Itadvocatestheideaofa»Church especially duringthe18 Governance astheory:fivepropositions,p.22. Rechtsgeschichte –LegalHistoryRg25(2017),pp.138–150. Multinormativität ineinermononormativenRechtsordnung?,in: Rechtsprechung imKaiserreichundderWeimarer Republik Rg 25 (2017), pp. 88–101. See also: Peter Collin: Ehrengerichtliche – Einführende Bemerkungen, in: Rechtsgeschichte – introductory remarks of International Edition4(2018),pp.5–12. 19th and20thCentury,in:AnnalsoftheFacultyLawinBelgrade, Séc. XVII,Coimbra 1994;MichaelStolleis:LegalPluralism in the Vésperas do Leviathan – Instituições e Poder Político em Portugal, Northampton 2010,pp.80–99. Wälti /MichaelZürn(eds.):HandbookonMulti-levelGovernance, governance as multi-level governance, in: Henrik Enderlein / Sonja Social Science Journal 50 (1998), pp. 17–28; Michael Zürn: Global International in: propositions, five theory: as Governance Stoker: My mainreferencesforthisconceptofgovernanceare:Gerry (1840–1889). os ultramontanos noBrasil eoregalismodoSegundoReinado 1910), Bilbao2019;ÍtaloSantirocchi: QuestãodeConsciência: los orígenesultramontanos deunaIglesialatinoamericana (1851– pp. 21–35;Francisco JavierRamónSolans:Másalláde losAndes: für ChristlicheAltertumskundeund Kirchengeschichte 112(2017), transnationalen Ultramontanisierung, in:RömischeQuartalschrift Zur Dialektik von endogenen und exogenen Kräften der ausdemAntiklerikalismus.Blaschke: DerAufstiegdesPapsttums and theMakingofUltramontane Church,London2018;Olaf Vatican Council.See:JohnW. O’Malley:Vatican I.TheCouncil of this movement could be particularly felt during the First lay people throughout the whole Catholic world. The influence of Pope Pius IX, having gained popularity among manyclericsand found supportfromtheVatican especiallyduringthepontificate disrespect towardsdivineorecclesiasticallaw.Ultramontanism of legitimately censoring temporal governments in the event of universal perspective.Inotherwords,thepopewasdeemedable the supremejudgeofspiritualandalsotemporal froma matters most delicatepointwasthattheRomanpontiffsaidtobe was more excellent than civil law, given its higher objectives. The in mutualcooperation. Fromthispointofview,ecclesiasticallaw autonomous fromthestate,bothconceivedasperfectsocieties defended thattheCatholicChurch,asaninstitution,wasentirely Restoration andfurtherdevelopedalongthe19 do SegundoReinado(1840–1889). Questão deConsciência:osultramontanos noBrasil eoregalismo borbónico en su proyección indiana, Madrid 1963; Ítalo Santirocchi: 1er octobre 2016), Lyon 2017; Alberto de la Hera: El regalismo ecclésiale. XVIe–XIXe. Actesducolloquede Lyon (30 septembre– (org.): Droits antiromains. Jurisdictionalisme catholique et romanité sacra toamonarch’squalityassuch,the which weresolelyattached secular sovereigns would exercise certain rights over the Church With measures such as the with the suppression or restriction of ecclesiastical jurisdiction. within the state«, the former controlled and inspected by the latter, A politico-religious perspective typical of absolutist monarchies, Governance itself The wayIconceive On politicalandlegalpluralism, see:AntonioManuelHespanha:As rights. See:SylvioHermannde Franceschi / Bernard Hours INISTORY 5/2020 is an interactive process, as in Gerry Stoker: multinormativity multinormativity Thomas th century,withtrendslikegallicanism, placet placet Duve: Was ist ›Multinormativität‹? or the appeal to the Crown, is largely inspiredbythe th century.It circa circa 112 Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance 14 13 12 11

Regis Parayre: LaS.CongrégationduConcile.Sonhistoire,la José ReinaldodeLimaLopes:OOráculo deDelfos.OConselho On the impact of the Council of Trent in ecclesiastical examinations The depictionofpolarising,clear-cutperspectives;thefocuson episcopado noSegundoImpério tinha comopremissaa vinculação ›nacional‹. Todo omovimentodereformalevadoavantepelonosso torna-se nesteperíodohistóricomais›católicaromana‹emenos observed inexcerptslikethefollowing:»AIgreja,comoinstituição, Reign (1840–1889), with advantage for the »Roman« model, can be argument of the polarisation of church models during the Second Hugo Fragoso and Riolando Azzi,betweenthe1980sand1990s.The Church asconceivedbyhistorianssuchJoãoFagundesHauck, are the distinctive features of the social history of the Brazilian on the gap between ecclesiastical elites and popular faith. These conflictive Sacra CongregazionedelConcilioel’amministrazione deisacramenti Albani:Inuniversochristianoorbe: ladevelopments in:Benedetta Studi ericerche,Vatican 1964,pp.179–249.Morerecentresearch del Concilio.QuartoCentenariodalla Fondazione(1564–1964). C. del Concilio al tempo di Papa Pio IX, in: La Sacra Congregazione Studi e ricerche, Vatican 1964, pp. 51–161; Luigi Stangarone: La S. del Concilio.QuartoCentenariodellaFondazione(1564–1964). competentia et procedura S. C. Concilii, in: La Sacra Congregazione procedure, sonautorité,Paris1897;GuillelmusVarsányi: De imperial. Teatro desombras –políticaimperial,SãoPaulo2003. José MurilodeCarvalho:AConstruçãodaOrdem–aelitepolítica a partirdoConselhodeEstado(1842–1889),RioJaneiro2007; elitese política sobre estudo governar: um de arte velha A Martins: Estado noBrasil-Império, SãoPaulo2010;MariaFernandaVieira (2015), pp.28–47. Cathedral (1564–1640), in: The Catholic Historical Review 101/1 Relations and Ecclesiastical Careers: SecuringaPlaceinPortuguese novos, Lisbon2014, pp. 79–101; Hugo RibeirodaSilva:Patron-Client O Concílio deTrento emPortugal e nassuasconquistas: olhares Pedro Paiva(eds.): Camões Gouveia/DavidSampaio Barbosa /José de Trento easuarecepçãopeloscabidos dascatedrais, in:António [PhD dissertation], São Paulo 2012; Hugo Ribeiro da Silva: O Concílio luso-brasileiro: agentes,carreiras emecanismosdepromoçãosocial Carlos Rodrigues:Podereclesiásticoeinquisição no séculoXVIII 1799 y 1815, in: Hispania Sacra LX/122 (2008), pp. 659–681; Aldair cordobesa entre ejercicio depoder.Estudiocaso:loslasede 846–891; Valentina Ayrolo: Concursos eclesiásticos como espacios de Malines 1586–1786, in: Revued’HistoireEcclésiastique 97 (2002), pp. Toon Quaghebeur: Le concoursdiocésain dans l’archidiocèse de Revue d’Histoire de l’Église de France 60/165 (1974), pp. 269–295; Trente àVatican nouvelles orientations.(Premièrepartie), in: II. Les en France àl’époquemoderneetcontemporaine. Duconcilede Council of Trent, fromlocal perspectives, see:RenéMetz:Laparoisse the by extent lesser or major a to influenced etc.), positions, chapter pp. 61–76. On ecclesiastical examinations (for parishes,cathedral pratiques de l’autorité ecclésiastique à l’époquemoderne,Paris2013, clercs etlesprinces.Doctrines SantosCasimiro:Les Bittencourt Congrégation duConcile,in:Daniella Miranda Santos /Ana Palmira du statut canonique du clergé paroissial tridentin d’après la Historia et Ius 15 (2019), pp. 1–11; Carlo Fantappié: L’évolution clergy, see: Carlo Fantappié: L’invention du concours public, in: and the correspondingfosteringof […]«, in:Haucketal.:HistóriadaIgrejanoBrasil, pp.143–144. que afirmar visava Estado éramos ›católicos romanos‹ e não ›católicos do Conselho de Estado‹ do face em Igreja da independência e ›sujeição‹ à Sede Romana. Por outro lado, o movimento de

aspect ofChurchandstaterelations;theemphasis professionalisation professionalisation of the AD 15 24 23 22 21 20 19 18 17 16

»Ecclesiastical benefice« comprises the patrimony orrevenue patrimony the comprises benefice« »Ecclesiastical AAV, Congr.Concilio,Positiones: »die29Januari1881.Lit.NadP. AAV, Congr.Concilio,Positiones:»die21Martii1868,Lit.DadP. AAV, Congr.Concilio, Positiones: »die117mbris1880,Lit.Nad AAV, Congr. Concilio, Positiones: »die 11 7mbris 1880, Lit. N ad R, I. Council of Trent, Session 24, Archivio ApostolicoVaticano (Vatican) [AAV], Congregazionedel Daniella Miranda Santos/AnaPalmira SantosCasimiro: Bittencourt Guilherme Pereira dasNeves:EReceberá Mercê.AMesada in thissamecontext,certaindignities(,cantor,etc.). canons, i.e. the offices performed within the cathedral chapter and, the are souls of cure without benefices Among priest). parish (e.g. souls of cure with benefices as characterised are they case first the involve preachingandtheadministeringofsacraments, ornot.In may Benefices 443. p. 1858, Janeiro de Rio Ecclesiasticas, Cousas Igreja ecomapplicaçãoaosusosdadoBrasil, vol.II.Das ecclesiastico publico e particularem relação á disciplinageral da in: D. ManueldoMonteRodriguesd’Araujo: Elementosdedireito the stateinreturnforservicesperformedtoChurch,aswesee as theperpetualrightthatclericshaveofreceivingpaymentfrom scarcity of temporal goods of the Church, benefices are understood attached to an ecclesiastical office. In the Brazilian Empire, due to the for EuropeanLegalHistory,Frankfurt amMain,Germany. Modern Period and the Present«, located at the Max Planck Institute Early the between Council the of Congregation the by exemplified the CouncilofTrent: PapalAdministrative ConceptsandPractices as Planck ResearchGroup»GovernanceoftheUniversalChurchafter the activitiesofCongregationCouncil;IrefertoMax mentioning that Albani currently leads a research group focused on de Rome.ItalieetMéditerranée 121/1(2009),pp.63–73.Itisworth nel NuovoMondo(secoliXVI–XVII),in:Mélangesdel’Écolefrançaise I. Verga Secret.«,Olinden, PetitionfromOlinda’sVicarCapitular, [...]«, 1868. Moderno EpiscopoOlindeninBrasilia ExaminatoresSynodales Francisco CardosoAyres,fol.1r,»BeatissimePater, Cum desint P. Giannelli Secr.«,Olinden,PetitionfromtheBishopofOlinda,D. »Eminentissime D. D. Ingenti sanereverentia[…]«,1880. Vicar Capitular,JosephusJoachimCamellodeAndrade, fol.2r, R, I.Verga Secret.«, Olinden,InformationandvotefromOlinda’s Patres! AdSacram CongregationemS.ConciliiTridentini […]«,1880. Verga Secret.«, Olinden, Petition from Franciscus Vieira, fol. 2v, »Em.i 1848. oecumenical CouncilofTrent, ed.andtrans. J.Waterworth, London The CouncilofTrent. Thecanonsanddecreesofthesacred 1880. »Em.i Patres!AdSacram CongregationemS.ConciliiTridentini […]«, R, I.Verga Secret.«,Olinden,PetitionfromFranciscus Vieira, fol.1r, Concilio [Congr.Concilio],Positiones:»die117mbris1880,Lit.Nad vol. II,p.449. d’Araujo: Elementos de direito ecclesiastico publico e particular, capitular of the related diocese. See: D. Manuel do Monte Rodrigues thisact Brazil, Imperial in took placebetweenthepresentedpriestandbishoporvicar theparishes of case the In benefice. corresponding the administer and office ecclesiastical an perform authority ofcommunicatingtotheelectedpriestpowers Colação Juris 2/1(2013),pp.258–287. precursor dos cursos jurídicos no Brasil Império, in: Revista Thesis História do ensino jurídico brasileiro. O Seminário de Olinda como Janeiro 1997. Consciência eOrdensoclerosecularnoBrasil, 1808–1828,Riode , collation INISTORY 5/2020

refers totheactofordinaryecclesiastical De reformatione De , Canon 18,in:

113 Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance 37 36 35 34 33 32 31 30 29 28 27 26 25 The AN, Fundo Conselho de Estado, caixa 509, pacote 3, documento I relyonascanningofallcasesinfullversionfoundtheCouncil AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, Alvará dasFaculdadesde 14 de Abril 1781, in: Copia da analyse da Arquivo Nacional(Brasil) [AN],FundoConselhodeEstado,caixa558, AAV, ArchiviodellaNunziatura delBrasile, busta51,fasc.241,fol. I say AAV, LibriDecretorum,223,fol.587–588,1880;AAV, Congr. Concilio, of State’s collection at the National Archives of Brazil, as well as fol. 10r–v,freetranslation. fol. 12v,freetranslation. fol. 12r,freetranslation. fol. 7v. fol. 10v. Igreja à resultar pode delles que utilidade maior 45, Seção Justiça, SãoPaulo, 1846; AN,FundoConselhode Estado, Ministro doImperio,vols.1–3,Riode Janeiro1869–1870. sobre NegociosEcclesiasticoscompiladas porordemdeS.Ex.oSr. on the opinions compiled in: Consultas do Conselho de Estado Guarita […]«, 1880. The Araujo, fol. 1r, »B.me Pater! Sacerdos Antonius Gratianus de Araujo N adR.I.Verga Secret.«,Olinden, Petition from Antonio Graciano de petitioner: AAV, Congr.Concilio, Positiones: »die117mbris 1880. Lit. D. Ingentisanereverentia[…]«,1880. Josephus JoachimCamellodeAndrade, fol.10v,»EminentissimeD. Olinden, InformationandvotefromOlinda’sVicarCapitular, Positiones: »die 11 7mbris 1880, Lit. N ad R, I. Verga Secret.«, desint Vic.CapitulariOlinden.Exam.Synod.[…]«,1881. Josephus JoachimCamellodeAndrade, fol.1r,»B.mePater,Cum mandar fazer os referidos Provimentos por Concursos; mas sim da MesadeConsciênciaeOrdens;nãoporqueEusejaobrigadaa nota em ciência, e virtudes, na forma que se pratica no meu Tribunal e seis,chamandopara ExaminadorestrêsReligiososdosdemelhor pelo Alvará devinteenoveAgostomilsetecentossessenta Senhores ReisMeusPredecessores,excitados,emandadosobservar concurso de exames na formaqueprescrevem os antigos Alvarás dos e mandardarpara ofuturo,naturezacolativa,procedereisentãoa Vigararia, IgrejaParoquial,Capelania,ouCurato, aqueEutenhadado, translation. Originalversion:»Sendo,porém,oBenefíciovago o padraõ dos reys de Portugal […], London 1818, pp. 283–287, free bulla daS.moPadreJulioIIIde30dezembro1550,queconstitue 1881. pacote 2, documento 39, fol. 1r–19v, Seção Império,Pernambuco, 12r–12v, 1880. concursum edicturus[…]«,1887. 1r, »BeatissimePater,OlindensisacRecifensisDioecesisAntistes ad P, C. Santori S.«,Olinden,PetitionfromtheBishopof Olinda, fol. seen in: AAV, Congr. Concilio, Positiones: »die 20 August 1887, Lit. N grounds ofnecessity.Therequestwasmetwithbluntrefusal,as to receive permission to install examinations in vernacular, on oftheBishopOlindaAs anexample,thereisthefailedattempt was not always open to deviation in the local enforcement of Trent. Patres S.criConciliiTridentini Interpretes[…]«,1881. Joachim Camello de Andrade, fol. 1r–2r, »Emi.tissimi ac Rev.d.mi Secret.«, Olinden, Petition from Olinda’s Vicar Capitular, Josephus AAV, Congr.Concilio,Positiones:»die11Junii1881. Lit. IadP. I.Verga positio relative relative with Antonio Graciano de Araujo, candidate to aparish, as tolerance because the Congregation of the Council positio positio with the vicar capitular as petitioner: «. pela pela AD 55 42 41 40 39 38 54 53 52 51 50 49 48 47 46 45 44 43

AN, Fundo Conselho de Estado, caixa 521, pacote 4, documento Consultas doConselhodeEstadosobreNegociosEcclesiasticos, AN, FundoConselho de Estado, caixa 520, pacote 5, documento1, AN, Fundo Conselho de Estado, caixa 536, pacote 3, documento 40, AN, Fundo Conselho de Estado, caixa 535, pacote 3, documento D. Manuel do MonteRodriguesd’Araujo: Elementosdedireito AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento Consultas doConselhodeEstadosobreNegociosEcclesiasticos, Candido Mendes de Almeida: Direito civil ecclesiastico brazileiro AAV, Congr. Concilio, Protocolli, libro 36, numero d’ordine 3115, AAV, Congr.Concilio,Protocolli,libro 32,numerod’ordine756,1873. AAV, Congr. Concilio, Protocolli, libro 24, numero d’ordine 862, For moreontheriseofultramontanism amongBrazilian bishops D. ManueldoMonteRodriguesd’Araujo: Elementosdedireito Consultas doConselhodeEstadosobreNegociosEcclesiasticos, AN, Fundo Conselho de Estado, caixa 535, pacote 3, documento 49, AN, Fundo Conselho de Estado, caixa 508, pacote 1, documento 35, AN, Fundo Conselho de Estado, caixa 536, pacote 3, documento 37, 71, SeçãoJustiça,Pernambuco,1857;AN,FundoConselhode vol. II,Pleno,Pernambuco,1862,pp.82–118. Seção Justiça,Pernambuco,1857. Fundo ConselhodeEstado,caixa521,pacote4,documento71, caixa 520,pacote5,documento1,Pleno,MinasGerais, 1857;AN, Seção Justiça,MinasGerais, 1856;AN,FundoConselhodeEstado, Seção Império,Pernambuco,1864. Grosso, 1843,pp.63–69. de EstadosobreNegociosEcclesiasticos,vol.I,SeçãoJustiça,Mato 54, Seção Império, Rio de Janeiro, 1864; Consultas do Conselho pp. 119–124. Negocios Ecclesiasticos,vol.II,SeçãoImpério,RiodeJaneiro,1862, Seção Império,Bahia,1881;ConsultasdoConselhodeEstadosobre AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 38, caixa 534,pacote3,documento45,SeçãoImpério,Bahia,1863; Seção Império,RiodeJaneiro,1862;AN,FundoConselhoEstado, AN, Fundo Conselho de Estado, caixa 531, pacote 2, documento 33, caixa 512,pacote3,documento4,SeçãoJustiça,Pernambuco,1849; ecclesiastico publicoeparticular,vol. II,p.473. also denominated were issuedbythesecular(public) power (which,onitsturn,was present theterm the AncienRégime’snomenclature, the CouncilofState’ssources 39, fol.11r,18r,SeçãoImpério,Pernambuco,1881.Following vol. II,Pleno,Pernambuco,1862,pp.96–118. primeiro, RiodeJaneiro1866,p.CCCXXVI. antigo e moderno em suas relações com o direito canonico, tomo 1877. 949, 1876. 1865; AAV, Congr.Concilio,Protocolli,libro35,numerod’ordine do SegundoReinado(1840–1889). Questão deConsciência:osultramontanos noBrasil eoregalismo during thesecondhalfof19 ecclesiastico publicoeparticular,vol.II,pp.466–474. vol. II,SeçãoImpério,RiodeJaneiro,1864,pp.161–163. Seção Império,RiodeJaneiro,1864. Seção Justiça,Sergipe, 1843. Seção Império,Maranhão, 1864. Maranhão, 1864. de Estado, caixa 536, pacote 3, documento 37, Seção Império, documento 53,SeçãoImpério,Bahia,1864;AN,FundoConselho Janeiro, 1864; AN,FundoConselho de Estado,caixa 535, pacote 3, Estado, caixa535,pacote3,documento49,SeçãoImpério,Riode INISTORY 5/2020 civil laws laws civil civil power civil ( leis civis leis , poder civil poder th century,see:ÍtaloSantirocchi: ) whenaddressinglawsthat ). ).

114 Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance 63 62 61 60 59 58 57 56

For moreonthedoctrinaldevelopment ofecclesiasticalcivil When addressingthemonarch’s For more on the doctrinal trends around ecclesiastical law between My expositionontheconceptualchangesregardingecclesiastical AN, Fundo Conselho de Estado, caixa 536, pacote 3, documento 40, The Frenchpress,inparticularitsCatholic branch, displayed much D. specifically, More Question«. »Religious Brazilian the to refer I AN, Fundo Conselho de Estado, caixa 558, pacote 2, documento 39, the norms –especiallythosecoming from the Holy See–by means of usually includedtherightofemperortocontrolChurch-related (2012), pp.1–91. Planck InstituteforEuropeanLegalHistoryResearchPaperSeries6 Disziplin imSpannungsfeldvonKirche,StaatundPublizität,in:Max XIV/1 Absolutismus und Aufklärung. Spielräume und Potentiale einer Canonique deDroit Revue (1964), pp.32–63;ChristophMeyer:KanonistikimZeitaltervon in: définitions, ses travers a Alberto delaHera /CharlesMunier:Ledroitpublicecclésiastique range serve as examples: interest inD. Vital’scase.Localpublicationsofsmallandwide 427–453. Rio deJaneiro1986;ÍtaloSantirocchi:QuestãoConsciência,pp. grounds. See: Nilo Pereira: Dom Vital e a questão religiosa no Brasil, (Bishop ofBelémdoPará) underwentasimilarprocedure,on was criminallyprosecutedand convicted in thecountry.D. Macedo bishop a that time first the was It Code). Criminal Imperial the of for thecrimeofobstructionExecutiveBranch (Article96 taken totheSupremeCourtofJustice,whichcondemnedD. Vital that D. Vitalliftedtheban.Asherefusedtodoso,casewas The CouncilofStategavereasontothebrotherhood,demanding bull notapprovedbytheBrazilian Empire,and lack ofjurisdiction. The laybrotherhoodappealedtotheCrown,alleginguseofa law in19 Academias JuridicasdoImperio,Recife 1853. de Castro Tavares: Compendio de Direito Ecclesiastico para uso das manual ofecclesiasticallawbyaBrazilian author:JeronymoVilella condemned Freemasonry–butithadnotreceivedthestate The papal bull upon which D. Vital relied to issue the interdiction on thegroundsthatitcontainedmembersofFreemasonry. Vital, then Bishop of Olinda, had interdicted a lay brotherhood fol. 15v. 1903), Milano 2008. Specifically on (1563– canonistico sistema del L’edificazione giuridica. modernità the 18 I »amalgam« andanormativeconventionof»separation«. affairs, Church regulating law that there was a shift between a normative convention ofsuggest the of conception »dualist« differs a terminology my discipline, from thatoftheseauthors:whiletheyproposeda»monist«and the of reconceptualisation how the relationship between norms changed along with the estudios histórico-jurídicos22(2000),pp.87–113.To highlight del derecho:elderechoeclesiásticoEstado,in:Revistade Araneda: Losorígenesyprimerdesarrollodeunanuevarama ecclesiastico nel suo sviluppo storico, Padova 1946; Carlos Salinas law follows the narratives del diritto of: Luigi de Luca: Il concetto Seção Império,Pernambuco,1864. 1876). littéraires 28 March1874,25April1874), l’Église de France et la de January 1874), placet th and 19 (Paris,27November . We see this, for instance, in the third book of the first the of book third the in instance, for this, see We . th -century France, see:MarieZimmermann:Church Annales catholiques: Revue religieuse hebdomadaire hebdomadaire religieuse Revue catholiques: Annales th centuries, see: Carlo Fantappié: Chiesa romana e (Paris, 21 February 1874, 21 March 1874, Église de Reims: Vie diocésaine diocésaine Vie Reims: de Église

1875), Journal des débats politiques et et politiques débats des Journal iura circa sacra circa iura ius publicum ecclesiasticum publicum ius Le Temps Temps Le (Paris, 3October , Brazilian jurists (Rheims, 3 placet , see: .

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In otherwords,thepetitionerwasrequiredtoprovehistransference AN, Fundo Conselho de Estado, caixa 562, pacote 1, documento 11, According to the Decree n. 1.911 of 28 March 1857, by means of See RuyBarbosa’slarge introductiontohistranslation of:Ignaz Candido Mendes de Almeida: Direito civil ecclesiastico brazileiro, AN, Fundo Conselho de Estado, caixa 562, pacote 1, documento 11, The FirstConstitutionsoftheArchbishopricBahiaareaset Seção Império,SãoPaulo,1888. Brazilian Church. and jurisdiction,violatingnatural laworthecanonsreceivedin power spiritual of exercise the in violence notorious offices; their jurisdiction; any sort of censorship against civil servants due to authority, ifitencompassed:usurpationoftemporal powerand the Council of State against an act performed by an ecclesiastical the Janeiro, 1873. Saldanha Marinho[aliasGanganelli]:AEgrejaeoEstado,Riode and SaldanhaMarinho’scollectionofpolemicalarticles:Joaquim Konzil], versãoeintroducçãodeRuyBarbosa,RioJaneiro1877; von Döllinger[aliasJanus]:OPapaeoConcílio[DerPapstunddas ecclesiastica 1(2008),pp.267–312. e di administration e politica des cultes, in: Quaderni di diritto e 1905.Studiodeitrattati emanualididroitcivilecclésiastique ecclesiastico franceseMiguel Rodriguez Blanco: Il diritto tra 1801 en France. Répertoire d’ouvrages 1801–1979,Strasbourg 1980; and StateinFrance. BookRepertory1801–1979.ÉgliseetÉtat hujus dioecesis[...]«,1888. »Beatissime Pater,InconcursuaddignitatemCapituliCathedralis Paulo, D. LinoDeodatoRodriguesdeCarvalho,fol.1r-1v;5r-7r, Salvati Secr.«,S. Pauli inBrasilia, Petition from the Bishop ofSão pp. III–IV. fol. 2r–2v. the legalcultureofPortugueseEmpire. laws, decisionsanddoctrinethat,afterTrent, werealreadypartof and necessitiesofColonialBrazil. Moreover,theytookintoaccount adaptation of these provisions to the particularities, possibilities, they arenotasimplerepetitionofTridentine decrees,butan in Session 24, synod of S. Salvador da Bahia of 1707. Following the exhortation local normsofcanonlawthatwereapprovedduringthediocesan of SãoPaulo(bymeansadimissorialletter). head ofhisnativedioceseallowedhimtobeordainedbytheBishop instead of simply demonstratingan excardination letter), that the from his native diocese to the Bishopric of São Paulo (by means of AAV, Congr. Concilio, Positiones: »die 3 Augusti 1889. Lit. R ad Z., L. recurso à Coroa à recurso INISTORY 5/2020 De reformatione De , ecclesiasticalorlaypeoplecouldappealto , Canon 2, of the Council of Trent, AD INISTORY 5/2020

Abstract About the Author

I analyse how the Council of Trent was employed in cases Anna Clara Lehmann Martins is Doctoral Researcher at the of examinations for ecclesiastical benefices in th 19 -century Max Planck Research Group »Governance of the Universal Brazil, relying on sources from the Council of State and the Church after the Council of Trent«, at the Max Planck Institute Congregation of the Council. Considering the Church within for European Legal History, Frankfurt am Main, Germany. She a scenario of multinormativity and multilevel governance, is PhD candidate in Law at the Universidade Federal de Minas I argue that the interactions for the resolution of ordinary Gerais (Brazil) and in History at the Westfälische Wilhelms- problems conveyed – and even catalysed – different Universität Münster (Germany), with a cotutelle agreement. interpretations of legal norms, depending on the agents Her PhD project concerns the changing roles of the Council of interacting and the normative conventions adopted. In the Trent in the multilevel governance of the in case of Imperial Brazil, I suggest the uses of Trent shifted the Empire of Brazil (1840-1889), proposing the joint analysis from a convention of amalgam to a convention of separation, of sources from the Brazilian Council of State and the Roman with significant nuances. Congregation of the Council. The results presented in this article are part of the development of her PhD project. Anna Clara Lehmann Martins — Multinormativity Emerges From Multilevel Governance Lehmann Martins — Multinormativity Emerges Anna Clara

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