Concordats

CONCORDATS. - A concordat is usually defined as: an agreement between the Holy See and the State to regulate religious questions of common interest.

I. THE CONTRACTING PARTIES

The contracting parties are on the one hand the Holy See as a subject of international law, and on the other hand the State as a juridical and sovereign person. In the preambles of concordats explicit mention is customarily made of the Holy See and not of the universal or national Church.

On this point see the clear and effective declaration of Pius XI in the letter sent to Cardinal Gasparri on 30 May 1929 (AAS, 21 [1929], p. 300) on the occasion of the Lateran Pacts: «in the concordat there are present, if not two States, most certainly two sovereignties fully such, that is, fully perfect, each in its own order, an order necessarily determined by the respective end, where it is scarcely necessary to add that the objective dignity of the ends determines no less objectively and necessarily the absolute superiority of the Church. That the Holy See is the supreme organ of the universal Catholic Church and therefore is the legitimate representative of the organization of the Church in Italy, cannot be said otherwise than one would say that the head is the supreme organ of the human body, and that the central and sovereign power of a country is the legitimate representative of each province of that same country. It is always the supreme pontiff who intervenes and who treats in the fullness of the sovereignty of the Catholic Church which he, strictly speaking, does not represent, but personifies and exercises by divine mandate». Note also that the Holy See receives the envoys of the various States with the rank of ambassadors, and sends its own envoys with diplomatic character: this is a sufficiently clear proof of the international juridical personality of the Holy See. To the apostolic nuncios in the various States belongs the deanship of the diplomatic corps in accordance with customary law recognized by the Congress of Vienna by act of 9 June 1815 and recalled in art. 12 of the Lateran Treaty (AAS, 21 [1929], p. 215).

On the part of the State, the true contracting party is not the Head of State or the government, but the State as a juridical and sovereign person through its legitimate representatives. In the time of absolute governments, the names of the sovereigns were placed first in the preambles of concordats; in more recent times the States themselves are named, thus, for example, in the concordat with Bavaria in 1925 the title is as follows: «Concordat between His Holiness Pope Pius XI and the Bavarian State». From the examination of the most recent concordats it appears clear that the agreements are with the State and not with the government; in constitutional States the approval of Parliament is necessary.

II. NATURE OF CONCORDATS

The principal theories are three: the first denies the contractual value of concordats or considers them as contracts of internal public law and is usually called the legal theory; the second affirms that the articles containing privileges cannot have any juridical nature other than that of "privileges," both as regards their interpretation and in the case of revocation; the third holds that concordats are bilateral pacts that bind both contracting parties ex iustitia.

Some authors try to approach now one, now the other theory: for example, De Angelis affirms that concordats are concessions as regards the matter, contracts as regards the form; Giobbio calls them "conventional privileges," etc.

The theory called legal has as its principal supporters the Protestant canonists, among whom O. Sarwey, F. Thudichum, P. Hinschius, U. Stutz stand out. Liberals consider concordats as moral obligations and try to prove it by affirming that only the State is sovereign, with absolute and unlimited authority, which is not transferable to others; a contract that limited such rights would be substantially of no juridical value. The Catholic Church is considered by them as a de facto association, not a de iure one, as the expression of the religious sentiments of a part or of a whole people, which always remains subject to the laws of the State; indeed the State can and must regulate the external manifestations of worship and direct them to the common good. From the aforesaid principles two consequences follow: 1) that not only concordats but also international treaties cannot produce a true juridical obligation; 2) that the Holy See and the Church from the juridical point of view are as if non-existent, no right belongs to them unless it is granted to them by the State.

The above principles are in complete contrast with the traditional teaching of the Catholic Church as a juridical and perfect society, with its own organization, with the right to send and receive diplomatic legates, with full and free legislative, judicial, administrative and coercive power in all that concerns the attainment of its own spiritual and supernatural end. The apostolic constitution Providentissima Mater Ecclesia, with which Benedict XV promulgated the CIC, explicitly reaffirms this teaching, recalled in various canons of the same Code (for example, in cann. 99-100, 215, 218-20, 222, 265, 329, 493-94, 1012-16, 1206, 1352, 1375, 1499, 1529, 1533, 1556-58, 2198, etc.).

In opposition to the legal theory, the other theory called "of privileges" is upheld by some canonists such as Liberatore, Baldi, Tarquini, Wernz, Cappello, Bierbaum, Regatillo, etc. The most intransigent, like Tarquini, affirm that concordats are a particular law of the Church for a determined territory, promulgated by order of the supreme pontiff at the request of the supreme civil authority of that place, confirmed by a special obligation of the same civil authority to observe it in perpetuity. Others more conciliatory, like Liberatore, Wernz, Cappello, etc., distinguish between articles that have as their object spiritual things and articles that have as their object temporal things: for the former there is an obligation of fidelity on the part of the Holy See, for the latter an obligation of justice. The reasons for this theory derive from the idea of the inalienability of the supreme power of the supreme pontiff, from the fact that spiritual goods must not be exchanged for advantages of a temporal order, and finally from the superiority of the Church, which cannot obligate itself with its own subject. These reasons do not seem so decisive to other canonists, who observe that in concordats there is no alienation of the supreme authority as happens in contracts of purchase and sale, but the supreme pontiff grants spiritual faculties within certain conditions that ensure the honesty and lawfulness of their use, and assumes the juridical obligation, ex iustitia, to preserve such concessions. The same occurs in other matters, for example, in the obligation of secrecy, ex iustitia, where there is no true alienation. Moreover, in concordats there is no exchange of spiritual goods for temporal advantages, because through such agreements the freedom of the Church and the fulfillment of its high mission in society are better guaranteed. Finally, the superiority of the Church does not diminish the sovereignty of the State, as the divine founder of the Church expressly indicated with those words: "render to Caesar the things that are Caesar's, and to God the things that are God's" (Mt. 22:21). This the Church affirms in the hymn of the feast of the Epiphany: "non eripit mortalia qui regna dat caelestia," and the supreme pontiffs have declared it in many documents. It will suffice to reread the encyclical Immortale Dei of Leo XIII. Nor can a true difficulty come from the indirect power which, remaining unchanged and unchangeable in its essence, affirms the competence of the Church in questions connected with faith and morals: this competence does not diminish the sovereign power of the State, which retains the right and the duty to govern according to the norms of justice and the common good.

The third theory, commonly called the theory of contracts, is upheld by a great number of canonists and jurists such as Cavagnis, Fink, Ottaviani, Palmieri, Van Hove, Wagnon, Anzilotti, Jemolo, Le Fur, V. E. Orlando, etc. According to these authors, concordats are true pacts that obligate ex iustitia the Church and the State to observe each and every one of the articles subscribed. In the manner of proposing this doctrine, some consider concordats as contracts sui generis, others as inter-sovereign pacts, or quasi international treaties, or international treaties. In these conventions two sovereign authorities take part, the Holy See and the State, which manifest the mutual will to obligate themselves and to observe loyally each and every one of the articles of the concordat. The proper object of this convention does not modify the nature of the bilateral pact, nor does a true difficulty or contradiction arise from the fact that Catholics as citizens depend on the State and are within the territory of the State: the same citizens as Catholics depend only on the Church in supernatural questions or questions connected with the proper end of the Church, and the State and the Church, having a proper sphere of competences over the same individuals, can agree by true pacts to avoid the possibility of conflicts. This third theory corresponds to the explicit declarations of many concordats, and it will suffice to cite a few examples: in the concordat with France between Leo X and Francis I, in 1516, it is declared that the aforesaid concordia "veri contractus et obligationis inter Nos et Sedem Apostolicam predictam, ex una, et prefatum Regem et regnum suum, ex altera partibus, legitime initi vim et robur obtinere,... necnon irritum et inane quicquid secus super his, vel eorum aliquo a quoquam, quavis auctoritate, etiam per nos et successores nostros prefatos, scienter vel ignoranter, contigerit attemptari, decernimus" (A. Mercati, op. cit. in bibl., p. 246); similarly in the concordat between Benedict XIV and Ferdinand VI of Spain, in 1753, it is written: "La Santità Sua in fede di Sommo Pontefice, e Sua Maestà in parola di re cattolico promettono mutuamente per se medesimi, in the name of their successors the unalterable and perpetual firmness of each and every one of the preceding articles, wishing and declaring that neither the Holy See nor the Catholic kings should respectively claim more than what is contained in the aforesaid chapters, and that whatever might be done at any time against all or any of the same articles be held as void and of no value or effect" (A. Mercati, op. cit., p. 436). Similar expressions are found in other concordats.

On this point Pope Leo XIII in the encyclical Nobilissima Gallorum gens on 8 February 1884 wrote: « Cum igitur pactis conventis inter sacram civilemque potestatem, publice aliquid constitutum est, tunc profecto quod iustitiae interest, interest item reipublicae, concordiam manere integram » (Acta Leonis XIII, IV, Rome 1885, p. 16); Pius X in the encyclical Vehementer nos of 11 February 1906, referring to the rupture of the Napoleonic concordat of 1801, affirmed that concordats bind the Holy See and States like international treaties (Acta S. Sedis, 39 [1906], p. 3 ff.). To the clear and solemn declarations of the supreme pontiffs one may add finally that this doctrine corresponds better to the historical development of concordats, which have sought to bring about a sincere and lasting agreement and in the formation of such pacts have observed those formalities that are customary for the conclusion of international treaties: appointment of plenipotentiaries, who exchange their respective full powers; discussion of the individual articles; signing of the agreements; ratification by the pontiff and the State; finally the exchange of ratifications, by which both parties make known to each other their decided will to observe loyally the pacts signed. Nor do the observations of certain writers have any true juridical value when they deny to concordats the force of international treaties because the Holy See and the State do not confront each other as members of the international community; to belong or not to belong to the international community may be useful, but it is not necessary: if two or more States did not belong to that international community and made pacts, such pacts should not be considered as international treaties, which is contrary to the history of international law. Concordats are true conventions that bind ex iustitia the Holy See and the State and are governed by the principles of international law.

III. OBJECT OF CONCORDATS

The principal articles have as their object the free exercise of spiritual power, that is, of the legislative, judicial, administrative and coercive authority of the Church; the free and public exercise of worship; the free communication of the Holy See with the bishops, with the clergy and with the faithful, and vice versa; and the free communication of the bishops with the clergy and with the faithful in all that pertains to the pastoral ministry. In the acts of their office, ecclesiastics enjoy the protection of the State. The clergy and young men destined for the priesthood or the religious life are customarily exempted from military service and from other offices incompatible with the ecclesiastical state; in the event of war, priests shall be assigned to the spiritual assistance of soldiers and the others to medical services. In agreement with the government, the Holy See customarily appoints a military vicar for the spiritual care of the armed forces, to which special privileges are granted. The State recognizes the Church's holy days, and in the capitular churches on those days a prayer is recited for the prosperity of the Head of State and of the entire nation. The boundaries of dioceses and parishes are arranged in such a way that no part of the national territory comes to depend on ecclesiastical superiors of other States, and the bishops, as well as the parish priests, are chosen from among the citizens of the State.

The Church nowadays customarily grants that, before proceeding to the appointment of a bishop, the Holy See shall communicate to the government the name of the person chosen, in order to make sure that the same government has no reasons of a political character to raise against the appointment; it remains within the power of the Holy See to evaluate the objections that the government may make, as well as to proceed further if the Government does not reply within the established time, since no positive approval or consent of the civil authority is required. The Church also grants that the new bishop shall take the oath of fidelity according to an agreed formula.

Public churches and ecclesiastical bodies are recognized as moral persons; their property and their other rights are guaranteed. If there have been usurpations of goods by the State, a friendly settlement is reached; the State contributes in part to the expenses necessary for the dignity of the sacred ministry. Foundations of worship are recognized provided they correspond to the religious needs of the population, and for tax purposes the purpose of worship and religion is equated with the purposes of charity and education. Marriage celebrated before the ministers of the Church is recognized in several concordats as valid also for civil effects, as likewise is whatever shall be decided by the tribunals of the Church regarding its validity, according to the laws of canon law. The teaching of religion is customarily obligatory in the schools of the State or at least in confessional schools, and the Church's educational institutions and academic qualifications are recognized for all civil effects, under certain conditions. It is also established that the literary and scientific education of the clergy depends solely on ecclesiastical authority. Finally, it is established how possible difficulties or doubts concerning the interpretation of the concordat are to be settled: both parties promise to proceed to an amicable solution.

IV. CESSATION OF CONCORDATS

Being true conventions between the Church and the State, they can be extinguished according to the norms of international law, that is, by the mutual consent of the contracting parties, by the application of the clause "rebus sic stantibus," by the cessation of the juridical personality of one of the contracting parties. Generally concordats are made for an indefinite time, but in recent times there has been some case in which the contracting parties established its duration, thus, for example, in the concordat with Latvia concluded in 1922, art. 20 established that its duration would be three years, after which it was understood to be tacitly extended from year to year, save for denunciation to be made six months before expiry. A similar reservation was established in the concordat with Romania ratified in 1929. There is also the example of modifications introduced following difficulties arising in the course of the years, as was done between the Holy See and Portugal in 1928 with the following preamble: the Holy See and the Portuguese government, having recognized the difficulties presented by the execution of the concordat of 1886, on account of the profound modifications that had taken place, both in Portugal and in the religious life of the Indies, especially after the war, agreed to regulate the circumscription of the dioceses, the appointment of bishops, etc. It is also within the power of one contracting party to renounce the rights granted by the other according to the axiom: "Quilibet renuntiare potest iuri pro se introducto," but the acceptance of the other party is required so that such a renunciation does not indirectly prejudice that party's rights. Once acceptance has occurred, the renunciation definitively extinguishes the right of the one renouncing.

The question has been raised whether concordats can be extinguished by the unilateral denunciation of one of the contracting parties. The answer, according to the principles of law, is decidedly negative; that would be the destruction of any pact, the denial of the juridical principle admitted by all: "pacta sunt servanda."

The Holy See, both in diplomatic notes and in doctrinal declarations, has upheld the precise obligation of the contracting parties to observe the articles signed; thus Pope Pius IX, on 8 Dec. 1864, condemned the following propositions: "Laica potestas auctoritatem habet rescindendi, declarandi ac faciendi irritas solemnes conventiones (vulgo concordata), super usu iurium ad ecclesiasticam immunitatem pertinentium, cum Sede Apostolica initas sine huius consensu, immo et ea reclamante" (Acta S. Sedis, 3 [1867], p. 167). Pius X in the encyclical Vehementer protested against the rupture of the Napoleonic concordat unjustly denounced by the French government and emphasized the violation of the law of nations, of the sworn faith and of the social and political order which imperiously requires the observance of treaties. In the case of a unilateral violation of the concordat, the other party has the right to demand its observance or to denounce it, according to rule 75 "de regulis iuris" in VI: "Frustra sibi fidem quis postulat ab eo servari, cui fidem a se praestitam servare recusat." In which cases a violation occurs such as to require the rupture of the agreements depends on the circumstances and on the gravity of the violation judged according to equity; for the non-observance of some secondary article, only a protest is made and then an accommodation is sought. It is concluded by saying that unilateral denunciation is not only unlawful, but is also juridically null according to the principle: "Contra obligationem faciendo, nemo se obligationem eximit" (Grotius, De iure belli et pacis, III, cap. 20, 38).

Another case of extinction or modification of the concordat occurs when from the observance of it, or more precisely of certain articles, very grave damages should derive, in a permanent manner, to one of the contracting parties: this party has the right to denounce such articles or the whole concordat by virtue of the clause "rebus sic stantibus." The parties intended to bind themselves within the limits of the possible, but not beyond. All this must be judged rightly, in good faith, and not with a hostile spirit seeking a pretext to fail in the obligations assumed: only then will there be a true violation of the pacts.

In the case of a change in the form of government, concordats retain their value: various historical examples confirm the continuity of friendly relations, as happened recently in Italy, which passed from a monarchical regime to a republican one. On the other hand, the extinction of the concordat occurs in the case of the cessation of the moral personality of one of the contracting parties, as Pope Benedict XV had to declare for the former Austro-Hungarian Empire in the consistorial allocution of 2 Nov. 1921 (ASS, 13 [1921], pp. 521-22), because it is "res inter alios acta," while showing himself nonetheless disposed to begin negotiations for new agreements with the States then constituted.

V. HISTORY OF CONCORDATS

In ancient times the emperors had the patronage of the Church and were not accustomed to make agreements in the proper sense of the word. Following the famous investiture controversy, peace was restored through the granting of privileges, and these were true conventions: such was the Concordat of London promulgated in August 1107, by which the king bound himself to renounce investitures, and the elect to swear fidelity to him as feudatories before episcopal consecration; on 23 September 1122 followed the famous "privilegium Calixtinum" or Concordat of Worms, confirmed by the First Lateran Council; thus ended the terrible struggle begun between Gregory VII and Henry IV and continued by their successors; a double investiture was established: the ecclesiastical one, to be conferred only by the Church, and the feudal one, to be conferred by the emperor with the scepter alone, not with the ring and pastoral staff; the other questions were also settled. In the times that followed, concordatory activity continued and several conventions were stipulated, such as those between Alexander III and Frederick I (1176-77); between Innocent III and Frederick II (1212-13); the promises of John Lackland (1212); the convention for the investiture of the Kingdom of the Two Sicilies in 1265; and of Sardinia in 1297.

Of particular importance were the concordats concluded by Pope Martin V in 1418 to reassert the authority of the Holy See after the great Western Schism; besides the reform decrees accepted by all nations, other points were remitted to the "capitula concordata" stipulated with Germany, France, Spain, Italy and England. To remedy the evils of the Schism of Basel, in February 1447 Pope Eugene IV made concessions of privileges in four documents known under the name of the Concordat of the Princes or Concordat of Frankfurt. The following year, on 17 February 1448, the Concordat of Vienna was concluded with Frederick III and various prince-electors, ratified by Pope Nicholas V with a special bull on 19 March 1448; in this concordat were recognized the reservations of ecclesiastical offices contained in canon law, the freedom of elections to bishoprics and at the same time the right of confirmation on the part of the Holy See. In 1516 the concordat between Pope Leo X and Francis I is famous, for the abolition of the Pragmatic Sanction of Bourges of 1438, which had schismatic tendencies. Of great importance was the provision that took away from cathedral Chapters the faculty of electing bishops, reserving it to the Holy See and granting to kings the right of nominating candidates to the pope, to whom belonged the collation of the office.

In the 17th century only two concordats were concluded: that "of the two forums" approved by Pope Paul V and Philip III, king of Spain, and the agreement between Urban VIII, Benedict XIII and Ferdinand II, king of Bohemia. In the 18th century there were several concordats made with absolute governments: among these should be remembered the agreements between Pope Benedict XIV and Charles VI of Spain, king of the Two Sicilies, in 1741; with Charles Emmanuel III in 1750; with Maria Theresa for the Duchy of Milan in 1757; between Pius VI and Emperor Joseph II in 1784.

After the very grave destructions caused by the French Revolution, a new series of concordats had as their object the restoration of the Church: first among them is the Napoleonic Concordat (1801), which remained in force until 1905; there followed in September 1803 that with the Italian Republic, in 1817 the concordat between Pius VII and Maximilian Joseph, king of Bavaria, in 1818 that with Ferdinand I, king of the Two Sicilies. Pope Pius IX in his long pontificate concluded various concordats, and those to be remembered are the one with Russia in 1847, with Tuscany and with Spain in 1851; with Francis Joseph I, emperor of Austria, in 1855, with the states of Central and South America, namely with the Republics of Costa Rica and Guatemala in 1852; of Haiti in 1860; of Honduras and Nicaragua in 1861; of San Salvador, of Venezuela and of Ecuador in 1862.

Leo XIII continued the concordatory negotiations of his predecessor with the states of Latin America, concluded agreements with Portugal in 1886; with Austria for Bosnia-Herzegovina in 1881, with Switzerland for the Canton of Ticino and Basel in 1884, and with Montenegro in 1886; a concordat with Colombia in 1887; an agreement with England for the island of Malta in 1890. Pius X made only one concordat with Serbia in 1914 and a few other conventions on particular questions.

With Pope Benedict XV a new era opens in the history of concordats. The old principle of the separation of Church and State brought grave harm also to the State, and after the war of 1915-18 everyone felt the need for a rapprochement with the Church. In the consistorial allocution of 21 November 1921, Pope Benedict XV, while declaring that the agreements made with states already radically transformed could no longer be maintained, showed himself inclined to negotiate with the various governments and to regulate religious questions by concordats. That word did not fall on deaf ears. Several states that had drawn away sent their ambassadors, and even the new states established diplomatic relations with the Holy See. Thus began the negotiations for the new concordats, taking into account the needs of peoples and the changed conditions of the times. In chronological order, the first concordat was concluded with Latvia on 30 May 1922 and ratified on 3 November of the same year. Although only a quarter of the citizens were Catholic and the president of the Republic was Lutheran, the concordat was nonetheless deemed advantageous, assuring the Catholic Church the free and public exercise of worship, the recognition of juridical personality for ecclesiastical bodies, etc. There followed the Concordat with Bavaria, concluded after long and laborious negotiations on 29 March 1924; Poland, risen again after the war of 1914-18, established in art. 114 of the Constitution that it would regulate its relations with the Holy See by means of a concordat, and the solemn convention was concluded on 10 February 1925. France, after reestablishing diplomatic relations with the Holy See, concluded agreements for the proper functioning of worship associations approved by Pius XI with the encyclical Maximam gravissimanque of 18 January 1924, and other agreements on 4 December 1926 for the liturgical honors to be given to the representatives of France in the regions of the Near East where France exercised a protectorate by virtue of international pacts.

Romania too was able to conclude a concordat on 10 May 1927 and in 1932 an agreement for the interpretation of art. IX thereof. On 27 September 1927 Lithuania also concluded its concordat, having overcome the political difficulties over the diocese of Vilna, which was then erected as a metropolis in 1925. With Czechoslovakia, on 17 December 1927, a modus vivendi was established for certain questions and of a rather temporary character. With Portugal two agreements were signed on 15 April 1928 and 11 April 1929 concerning the East Indies; a solemn convention was concluded on 7 May 1930, followed by a missionary agreement. Of very particular importance were the Lateran Pacts (v.) of 11 February 1929, with which the long dispute between the Holy See and Italy was brought to an end.

In the same year 1929 the Concordat with Prussia was concluded, negotiations for which had lasted a decade because of the opposition of the Evangelical Federation and of the Jews; there followed the concordats with Baden in 1932, with Austria on 5 June 1933, and with the German Reich on 20 July 1933, for the purpose of completing the concordats concluded with certain particular states of Germany and ensuring for the others a uniform criterion in the treatment of the relevant questions. Between the Holy See and Spain there was an agreement in June 1941 on certain questions of special importance, and these are destined to form part of a solemn convention.

Giovanni Lo Grasso