CONCORDATI

CONCORDATS. — A concordat may be defined as a convention between the Holy See and a State for regulating religious matters of common interest.

OUTLINE:

I. The contracting parties

II. Nature of concordats

III. Subject matter of concordats

IV. Termination of concordats

V. History of concordats.

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, the State as a juridical and sovereign person. In the preambles of concordats, explicit mention is usually 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, certainly two sovereignties fully such, that is, fully perfect, each in its own order, an order necessarily determined by its respective end; it is hardly necessary to add that the objective dignity of these ends objectively and necessarily determines the absolute superiority of the Church. That the Holy See is the supreme organ of the universal Catholic Church and therefore the legitimate representative of the Church’s organization 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 country itself. It is always the Supreme Pontiff who intervenes and who negotiates in the fullness of the sovereignty of the Catholic Church, which he, strictly speaking, does not represent, but embodies and exercises by direct divine mandate.” It should also be noted that the Holy See receives the envoys of 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 the customary law recognized by the Congress of Vienna with an 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 prefixed in the preambles of concordats; in more recent times, the States themselves are named, so, 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 an examination of the more recent concordats, it is clear that the pacts are with the State and not with the government; in constitutional States, parliamentary approval is necessary.

II. NATURE OF CONCORDATS

There are three main theories: the first denies the contractual value of concordats or considers them as contracts of internal public law, and this is called the legal theory; the second maintains that the articles containing privileges cannot have any other juridical nature than that of “privileges,” both in their interpretation and in the case of revocation; the third holds that concordats are bilateral agreements that bind both contracting parties ex iustitia.

Some authors seek to approach now one theory, now another: for example, De Angelis states that they are concessions regarding the matter and contracts regarding the form; Giobbio calls them “conventional privileges,” etc.

The so-called legal theory has as its principal supporters Protestant canonists, among whom stand out O. Sarwey, F. Thudichum, P. Hinschius, U. Stutz. Liberals consider concordats as moral obligations and seek to prove this by affirming that only the State is sovereign, with absolute and unlimited authority, which cannot be transferred to others; a contract that would limit such rights would be substantially of no juridical value. The Catholic Church is regarded by them as a de facto association, not of law, as the expression of the religious sentiments of a part or of an entire people who remain always subject to the laws of the State; indeed, the State can and must regulate the external manifestations of worship and direct them toward economic good. From the above 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, and no rights belong to them unless granted 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 envoys, with full and free legislative, judicial, administrative, and coercive power in all that pertains to the attainment of its spiritual and supernatural end. The apostolic constitution Providentissima Mater Ecclesia, with which Benedict XV promulgated the Code of Canon Law, explicitly reaffirms this teaching, recalled in various canons of the same Code (e.g., 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 supported by some canonists such as Liberatore, Baldi, Tarquini, Wernz, Cappello, Bierbaum, Regatillo, etc. The most intransigent, such as Tarquini, affirm that concordats are a particular law of the Church for a given 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, such as Liberatore, Wernz, Cappello, etc., distinguish between articles that concern spiritual matters and those that concern temporal matters: for the former, there is an obligation of fidelity on the part of the Holy See, while for the latter, an obligation of justice. The reasons for this theory derive from the idea of the inalienability of the Supreme Pontiff’s supreme power, from the principle that spiritual goods should not be exchanged for temporal advantages, and finally from the superiority of the Church, which cannot bind itself by its own decree. These reasons do not seem so decisive to other canonists, who observe that in concordats there is no alienation of supreme authority as occurs in contracts of sale, but the Supreme Pontiff grants spiritual faculties under certain conditions that ensure the honesty and lawfulness of their use, and assumes the juridical obligation, ex iustitia, to preserve such concessions. The same applies in other matters, for example, in the obligation of secrecy, ex iustitia, where there is no true alienation. Furthermore, 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 lofty mission in society are better guaranteed. Finally, the superiority of the Church does not diminish the sovereignty of the State, as expressly indicated by the divine Founder of the Church with those words: “Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s” (Mt 22:21). This is affirmed by the Church in the hymn of the feast of Epiphany: “He who gives heavenly kingdoms does not take away earthly ones,” and it has been declared by the Supreme Pontiffs in many documents. It will suffice to reread the encyclical Immortale Dei of Leo XIII. Nor can a true difficulty arise from indirect power, which, remaining immutable in its essence, affirms the competence of the Church in matters connected with faith and morals: this competence does not diminish the sovereign power of the State, which retains the right and duty to govern according to the norms of justice and the common good.

Indirectly, it affirms the competence of the Church in matters connected with faith and morals, while remaining unchanged and immutable in its essence; this competence does not diminish the sovereign power of the State, which retains the right and duty to govern according to the norms of justice and the common good.

(1st. Eur. Catt.) Concordant — Cardinal Consalvi receives from Pius VII the bull ratifying the Concordat (13 July 1801). Engraving by Wicar — Rome, Museo Napoleonico.

The third theory, commonly known as the contractual theory, is supported by a large number of canonists and jurists such as Cavagnis, Fink, Ottaviani, Palmieri, Van Hove, Wagnon, Anzilotti, Jemolo, Le Fur, V. E. Orlando, and others. According to these authors, concordats are true agreements that bind the Church and the State, ex iustitia, to observe all and each of the articles subscribed to. In 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 intervene: the Holy See and the State, which manifest their reciprocal will to bind themselves and loyally observe all and each of the articles of the concordat. The proper object of this convention does not alter 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 matters supernatural or connected with the proper end of the Church. The State and the Church, having their own spheres of competence over the same individuals, can agree through 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 aforementioned concordat « *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, ed in nome dei loro successori la fermezza inalterabile e perpetua sussistenza di tutti e ciascheduno degli articoli precedenti, volendo e dichiarando che né la S. Sede, né i re cattolici abbiano rispettivamente da pretendere più di quello che viene compreso nei predetti capitoli, e che si abbia a tenere per irrito e di nessun valore ed effetto quanto si facesse in qualsivoglia tempo contro tutti, o alcuno degli stessi articoli* » (A. Mercati, op. cit., p. 436). Similar expressions are found in other concordats.

In this regard, Pope Leo XIII, in the encyclical *Nobilissima Gallorum gens* of 8 February 1884, wrote: « *Cum igitur pactis conventis inter sacram civilemque potestatem, publice aliquid constitutum est, tunc profecto quod iustitiae interest, interest item republice, 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 breach of the Napoleonic concordat of 1801, affirmed that the concordat bound the Holy See and the States as international treaties (Acta S. Sedis, 39 [1906], p. 3 ff.). To the clear and solemn declarations of the Supreme Pontiffs, it can finally be added that this doctrine better corresponds to the historical events of concordats, which sought to achieve a sincere and lasting agreement, and in the formation of such pacts observed those formalities customary for the conclusion of international treaties: the appointment of plenipotentiaries, who exchange their respective full powers; the discussion of individual articles; the signing of the agreements; ratification by the Pope and the State; and finally the exchange of ratifications by which both parties make known to each other their firm will to loyally observe the signed pacts. Nor do the observations of some writers denying concordats the force of international treaties, on the grounds that the Holy See and the State do not contract as members of the international community, have any true juridical value; belonging or not to the international community may be useful, but it is not necessary: if two or more States did not belong to such an 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 the Holy See and the State, ex iustitia, and are governed by the principles of international law.

III. OBJECT OF CONCORDATS — The principal articles concern the free exercise of the Church’s spiritual power, that is, its legislative, judicial, administrative, and coercive authority; the free and public exercise of worship; the free communication of the Holy See with bishops, clergy, and faithful, and vice versa; and the free communication of bishops with clergy and faithful regarding all matters pertaining to pastoral ministry. In the exercise of their office, ecclesiastics enjoy the protection of the State. Clergy and those destined for the priesthood or religious life are to be exempt from military service and other offices incompatible with the ecclesiastical state; in time of war, priests are to be assigned to the spiritual care of soldiers, and others to sanitary services. By agreement with the government, the Holy See usually appoints a military bishop for the spiritual care of the armed forces, to which special privileges are granted. The State recognizes the Church’s holy days, and in chapter churches on these days a prayer is recited for the prosperity of the Head of State and the entire nation. The boundaries of dioceses and parishes are arranged so that no part of the national territory depends on ecclesiastical superiors of other States, and bishops, as well as parish priests, are chosen from among the citizens of the State.

It is customary today for the Church to grant that, before proceeding with the appointment of a bishop, the Holy See communicates the name of the chosen person to the government to ensure that the government has no political reasons to raise against the appointment; it remains within the faculty of the Holy See to evaluate the objections that the government may raise, as well as to proceed further if the government does not respond within the established time, since a positive approval or consent of the civil authority is not required. The Church also grants that the new bishop may take an oath of fidelity according to a mutually agreed formula.

Public and ecclesiastical churches are recognized as moral persons; their property and other rights are guaranteed. Should there have been usurpations of goods by the State, a benevolent settlement is reached; the State contributes in part to the expenses necessary for the decorum of the sacred ministry. Foundations of worship are recognized provided they meet the religious needs of the population, and for tax purposes the purpose of worship and religion is equated with purposes of charity and education. A marriage celebrated before the ministers of the Church is recognized as valid for civil effects in several concordats, as are decisions by Church tribunals regarding the validity of such marriages according to canon law. The teaching of religion is usually compulsory in State schools or at least in denominational schools, and Church teaching institutes and academic degrees are recognized for all civil purposes 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 to regulate possible difficulties or doubts regarding the interpretation of the concordat: both parties pledge to seek an amicable solution.

IV. TERMINATION OF CONCORDATS

Since concordats are true conventions between Church and State, they may be terminated according to the norms of international law, namely by mutual consent of the contracting parties, by application of the clause “rebus sic stantibus,” or by the cessation of the legal personality of one of the contracting parties. Generally, concordats are made for an indefinite period, but in recent times there have been cases in which the contracting parties have established a duration for them; for example, in the concordat with Latvia concluded in 1922, Article 20 stipulated that its duration would be three years, after which it would be tacitly renewed year by year unless denounced six months before its expiration. A similar reservation was established in the concordat with Romania ratified in 1929. There are also examples of modifications introduced due to difficulties arising over 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 due to profound changes that had occurred both in Portugal and in the religious life of the Indies, especially after the war, agreed to regulate the circumscription of dioceses, the appointment of bishops, etc. It is also within the power of one contracting party to renounce rights granted by the other according to the principle “Quilibet renuntiare potest iuri pro se introducto,” but acceptance by the other party is required so that such renunciation does not indirectly prejudice the latter’s rights. Once acceptance is given, the renunciation definitively extinguishes the right of the renouncing party.

The question has been raised whether concordats may be terminated by unilateral denunciation by one of the contracting parties. The answer, according to legal principles, is decidedly negative; this would be the destruction of any pact and the negation of the juridical principle universally accepted: “pacta sunt servanda.”

The Holy See, both in diplomatic notes and doctrinal declarations, has upheld the precise obligation of the contracting parties to observe the articles they have signed; thus Pope Pius IX, on 8 December 1864, condemned the following proposition: “Laica potestas auctoritatem habet rescindendi, declarandi ac faciendi ritus solemnes conventiones (vulgo concordata), super usu iurium ad ecclesiasticam immunitatem pertinensium, 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 breach of the Napoleonic concordat unjustly denounced by the French government and emphasized the violation of the law of nations, of sworn faith, and of the social and political order, which imperatively requires observance of treaties. In the case of a unilateral violation of a concordat, the other party has the right either to demand its observance or to denounce it, according to Rule 75 of the “Regulae iuris” in the Liber Sextus: “Frustra sibi fidem quis postulat ab eo servari, cui fidem a se praestitam servare recusat.” In what cases a violation occurs that justifies the termination of the agreement depends on the circumstances and 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 stating that unilateral denunciation is not only illicit but also legally void according to the principle: “Contra obligationem faciendo, nemo se obligationi eximit” (Grotius, De iure belli et pacis, III, cap. 20, 38).

Another case of termination or modification of a concordat occurs when observance of it—or more precisely of some of its articles—would cause very serious and permanent harm to one of the contracting parties: this party has the right to denounce such articles or the entire concordat by virtue of the clause “rebus sic stantibus.” The parties intended to bind themselves only within the limits of the possible, not beyond. All this must be judged rightly, in good faith, and not with hostile intent seeking a pretext to evade assumed obligations; otherwise, there would be a violation of the agreement.

In the case of a change in the form of government, concordats retain their validity: various historical examples confirm the continuity of amicable relations, as has recently occurred in Italy, which passed from a monarchical to a republican regime. Concordats are terminated, however, in the case of the cessation of the legal personality of one of the contracting parties, as Pope Benedict XV declared regarding the former Austro-Hungarian Empire in the allocution of 2 November 1921 (ASS, 13 [1921], pp. 521–22), because it is “res inter alios acta,” though he expressed willingness to enter into negotiations for new agreements with the States then constituted.

V. HISTORY OF CONCORDATS

In ancient times, emperors exercised patronage over the Church and did not usually enter into agreements in the proper sense of the word. Following the famous Investiture Controversy, peace was established through the granting of privileges, and these were true conventions: such was the Concordat of London promulgated in August 1707, by which the king undertook to renounce investitures, and those elected were to take an oath of fealty as vassals before episcopal consecration; on 23 September 1122, the famous “Privilegium Calixtinum” or Concordat of Worms followed, confirmed by the First Lateran Council. Thus ended the terrible struggle begun between Gregory VII and Henry IV and continued by their successors; a dual investiture was established: the ecclesiastical investiture to be conferred solely by the Church, and the feudal investiture to be conferred by the emperor by the mere scepter, not with ring and crozier; other issues were also settled. In subsequent periods, 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 1207.

Particular importance attached to the concordats concluded by Pope Martin V in 1418 to reaffirm the authority of the Holy See after the Great Western Schism; in addition to 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 Basel Schism, in February 1447 Pope Eugenius IV granted certain privileges in four documents known under the name of the concordat of the princes or the 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 the reservations of ecclesiastical offices contained in canon law were recognized, as well as the freedom of episcopal elections and the right of confirmation by the Holy See. In 1516 the concordat between Pope Leo X and Francis I is notable for the abolition of the Pragmatic Sanction of Bourges of 1438, which had schismatic tendencies. Of great importance was the provision that removed from cathedral chapters the faculty of electing bishops, reserving it to the Holy See or granting to kings the right of nominating candidates to the pope, to whom the conferral of office belonged.

In the 17th century only two concordats were concluded: the one “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 various concordats were made with absolute governments: among these are to be noted 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; and between Pius VI and Emperor Joseph II in 1784.

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

Leo XIII continued the concordatory negotiations of his predecessor with the states of Latin America, concluding 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; and an agreement with England for the island of Malta in 1890. Pius X concluded only one concordat, with Serbia in 1914, and a few other conventions on particular questions.

With Pope Benedict XV a new era opened in the history of concordats. The old principle of separation between Church and State was causing serious harm even to the State, and after the war of 1915–18 all felt the need for rapprochement with the Church. In the concistorial allocution of 21 November 1921, while declaring that agreements made with states already radically transformed could no longer be sustained, Benedict XV expressed his willingness to negotiate with various governments and regulate religious questions by concordats. That word did not fall on deaf ears. Several states that had drifted away sent their ambassadors, and even new states established diplomatic relations with the Holy See. Thus began negotiations for new concordats, taking into account the needs of peoples and the changed conditions of the times. According to 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 deemed advantageous, securing for the Catholic Church the free and public exercise of worship, recognition of the juridical personality of ecclesiastical entities, and so forth. This was followed by the concordat with Bavaria, concluded after long and laborious negotiations on 29 March 1924; Poland, reborn after the war of 1914–18, in article 114 of its constitution stipulated that relations with the Holy See should be regulated by a concordat, and the solemn convention was concluded on 10 February 1925. France, after restoring diplomatic relations with the Holy See, concluded agreements for the proper functioning of cultural associations, approved by Pius XI in the encyclical *Maximam gravissimamque* of 18 January 1924, and other agreements on 4 December 1926 regarding liturgical honors to be accorded to representatives of France in the Near Eastern regions where France exercised protectorate rights by virtue of international treaties.

Romania was also able to conclude a concordat on 10 May 1927, and in 1932 an agreement for the interpretation of article IX of the same. On 27 September 1927 Lithuania concluded its concordat, overcoming political difficulties regarding the diocese of Vilna, which was then elevated to a metropolitan see 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 1940, followed by a missionary agreement. Of particular importance were the Lateran Pacts (v.) of 11 February 1929, by which the long-standing dispute between the Holy See and Italy was brought to an end.

In the same year, 1929, the concordat with Prussia was concluded, whose negotiations had lasted a decade due to opposition from the Evangelical Federation and the Jews; followed by the concordats with Baden in 1932, with Austria on 5 June 1933, and with the German Reich on 20 July 1933, with the aim of completing the concordats concluded with certain particular German states and ensuring a uniform criterion in the treatment of related questions. Between the Holy See and Spain there was an agreement in June 1941 on certain questions of special importance, intended to form part of a solemn convention.

BIBL.:
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