Concordats

CONCORDATI. — A concordat is usually defined as an agreement between the Holy See and the State for regulating religious matters of common interest.

SUMMARY:

I. The contracting parties

II. Nature of concordats

III. Subject matter of concordats

IV. Termination of concordats

V. 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 customarily made of the Holy See and not of the universal or national Church.

On this point V. the lucid 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, if not two States, then certainly two fully constituted sovereignties are present, that is, two fully perfect sovereignties, each in its own sphere, a sphere necessarily determined by its respective end; and it is hardly necessary to add that the objective dignity of these 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 is therefore the legitimate representative of the organization of the Church in Italy can be said only in the same way as 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. It is always the Supreme Pontiff who intervenes and negotiates in the fullness of the sovereignty of the Catholic Church, which, speaking precisely, he does not represent, but personifies and exercises by divine mandate». It should also be noted that the Holy See receives envoys from the various States with the rank of ambassadors, and sends its own envoys with diplomatic status: this is a sufficiently clear proof of the international juridical personality of the Holy See. The apostolic nuncios in the various States are entitled to the deanship of the diplomatic corps under customary law, recognized by the Congress of Vienna by the 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 actual 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 era of absolute governments, the names of the sovereigns were placed at the beginning of the preambles of concordats; in more recent times, the States themselves are named. Thus, for example, in the C. with Bavaria in 1925, the title reads as follows: « Concordat between His Holiness Pope Pius XI and the Bavarian State ». Examination of the more recent concordats makes it clear that the pacts are concluded with the State and not with the government; in constitutional States, parliamentary approval is necessary.

II. NATURE OF THE C

The principal theories are three: the first denies the contractual value of the c. or considers them contracts of internal public law and is usually called the legal theory; the second maintains that the articles containing privileges can have no juridical nature other than that of “privileges,” both with regard to their interpretation and in the event of revocation; the third holds that the c. are bilateral pacts that bind both contracting parties ex iustitia.

Some authors seek at times to approach one theory and at times the other: for example, De Angelis asserts that the c.

are concessions with regard to their subject matter, and contracts with regard to their form; Giobbio calls them “conventional privileges,” etc.

The theory known as the legal theory has as its principal supporters the Protestant canonists, among whom O. Sarwey, F. Thudichum, P. Hinschius, and U. Stutz are prominent. Liberals regard the c. as moral obligations and seek to prove this by asserting that only the State is sovereign, with absolute and unlimited authority, which cannot be transferred to others; a contract that limited such rights would be substantially without juridical value. The Catholic Church is regarded by them as an association in fact, not in law, as the expression of the religious sentiments of part or all of a people that always remains subject to the laws of the State; indeed, the State can and must regulate the external manifestations of worship and direct them toward the common good. Two consequences follow from the principles stated above: 1) that not only the c. but also international treaties cannot produce a genuine juridical obligation; 2) that the Holy See and the Church, from the juridical point of view, are as though they did not exist, and no right belongs to them unless it is granted to them by the State.

The principles set forth above are in complete opposition to 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, and with full and free legislative, judicial, administrative, and coercive power in everything concerning the attainment of its own spiritual and supernatural end. The apostolic constitution Providentissima Mater Ecclesia, by which Benedict XV promulgated the CIC, explicitly reaffirms this teaching, which is recalled in various canons of the same Code (e.g., 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 “that of privileges,” is supported by certain canonists such as Liberatore, Baldi, Tarquini, Wernz, Cappello, Bierbaum, Regatillo, etc. The more uncompromising among them, such as Tarquini, assert that the c. are a particular law of the Church for a specific territory, promulgated by order of the supreme pontiff at the request of the supreme civil authority of that place, and confirmed by a special obligation on the part of that same civil authority to observe it perpetually. Others, more conciliatory, such as Liberatore, Wernz, Cappello, etc., distinguish between articles whose object is spiritual matters and articles whose object is temporal matters: for the former there is an obligation of fidelity on the part of the Holy See, while for the latter there is an obligation of justice. The reasons for this theory derive from the idea that the supreme power of the supreme pontiff is inalienable, 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 bind itself to one of its own subjects. These reasons do not appear so conclusive to other canonists, who observe that in the c. there is no alienation of supreme authority, as occurs in contracts of sale, but rather that the supreme pontiff grants spiritual faculties under certain conditions that ensure the honesty and licitness of their use, and assumes the juridical obligation, ex iustitia, to preserve such concessions. The same is true in other matters, for example, in the obligation of secrecy, ex iustitia, where there is no genuine alienation. Moreover, in the c. there is no exchange of spiritual goods for temporal advantages, because such agreements better guarantee the freedom of the Church and the fulfillment of her lofty mission in society. Finally, the superiority of the Church does not diminish the sovereignty of the State, as was expressly indicated by the divine founder of the Church in those words: “give to Caesar what is Caesar’s and give to God what is God’s” (Mt. 22:21). The Church asserts this in the hymn for 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 Leo XIII’s encyclical Immortale Dei. Nor can a genuine difficulty arise from the power

indirect power, which, while remaining unchanged and 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.

The third theory, commonly called that of contracts, is upheld by a large 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, the c. are genuine pacts that oblige ex iustitia the Church and the State to observe each and every one of the articles signed. In the manner in which this doctrine is propounded, some regard the c. as contracts sui generis, others as inter-sovereign pacts, or quasi-international treaties, or international treaties. Two sovereign authorities, the Holy See and the State, participate in these conventions, expressing their mutual will to bind themselves and to observe loyally each and every article of the c. The specific object of this convention does not alter the nature of the bilateral pact, nor does any genuine difficulty or contradiction arise from the fact that Catholics, as citizens, depend on the State and are within the territory of the State: those same citizens, as Catholics, depend solely on the Church in supernatural matters or matters connected with the Church’s proper end, and the State and the Church, each having its own sphere of competence over the same individuals, can reach agreements through genuine pacts in order to avoid the possibility of conflicts. This third theory corresponds to the explicit statements of many c., and it will suffice to cite a few examples: in the c. with France between Leo X and Francis I, in 1516, it is declared that the aforesaid concord « 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 C. 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 c.

In this connection Pope Leo XIII wrote in the encyclical Nobilissima Gallorum gens of 8 February 1884: « 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 breach of the Napoleonic C. of 1801, affirmed that the c. bind the Holy See and the States like international treaties (Acta S. Sedis, 39 [1906], pp. 3 ff.). To the clear and solemn declarations of the supreme pontiffs, one may finally add that this doctrine corresponds more closely to the historical development of the c., which sought to bring about a sincere and lasting agreement and, in the formation of such pacts, observed the formalities customary in the conclusion of international treaties: the appointment of plenipotentiaries, who exchange their respective full powers; discussion of the individual articles; signature of the agreements; ratification by the pontiff and the State; and, finally, the exchange of the ratifications, by which both parties inform one another of their firm intention to observe loyally the pacts signed. Nor do the observations of certain writers who deny the c. the force of international treaties have any genuine legal validity, on the grounds that the Holy See and the State do not stand opposed as members of the international community; belonging or not belonging to the international community may be useful, but is not necessary: if two or more States did not belong to that international community and concluded pacts, such pacts should not be regarded as international treaties, which is contrary to the history of international law. The c. are genuine conventions that bind ex iustitia the Holy See and the State and are governed by the principles of international law.

III. SUBJECT MATTER OF THE C

The principal articles concern the free exercise of spiritual power, that is, 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, clergy, and faithful, and vice versa; and the free communication of the bishops with the clergy and faithful in everything relating to pastoral ministry. In the exercise of their office, ecclesiastics enjoy the protection of the State. The clergy and young men destined for the priesthood or religious life are usually exempted from military service and from other offices incompatible with the ecclesiastical state; in the event of war, priests are assigned to the spiritual assistance of soldiers and the others to medical services. In 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 holy days of the Church, and in collegiate 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 so that no part of the national territory comes under the authority of 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 usually grants that, before proceeding to the appointment of a bishop, the Holy See communicate to the government the name of the person selected, in order to ascertain that the government has no political reasons to raise against the appointment; it remains within the power of the Holy See to assess any observations the government may make, as well as to proceed further if the Government does not reply within the stipulated period, since no positive approval or consent of the civil authority is required. The Church also grants that the new bishop take an oath of allegiance according to an agreed formula.

Public churches and ecclesiastical institutions are recognized as juridical persons, and their property and other rights are guaranteed. If there have been usurpations of property by the State, an amicable settlement is reached; the State contributes in part to the expenses necessary for the dignity of sacred ministry. Foundations for worship are recognized provided that they meet the religious needs of the population, and, for tax purposes, the aims of worship and religion are equated with the aims of charity and education. Marriage celebrated before ministers of the Church is recognized in several c. as valid also for civil purposes, as is likewise whatever the tribunals of the Church may decide regarding its validity, according to the laws of canon law. The teaching of religion is usually compulsory in State schools, or at least in denominational schools, and the Church’s educational institutions and academic qualifications are recognized for all civil purposes, subject to certain conditions. It is also established that the literary and scientific education of the clergy depends solely upon ecclesiastical authority. Finally, provision is made for regulating possible difficulties or doubts concerning the interpretation of the c.: both parties promise to seek an amicable solution.

IV. CESSATION OF THE CONCORDATS

Since they are genuine conventions between the Church and the State, they may lapse according to the norms of international law, that is, by mutual consent of the contracting parties, through application of the clause « rebus sic stantibus », or through the termination of the legal personality of one of the contracting parties. Generally, concordats are concluded for an indefinite period, but in recent times there have been some cases in which the contracting parties established their 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, unless notice were given six months before its expiry. A similar reservation was established in the Concordat with Romania ratified in 1929. There is also the example of modifications introduced following difficulties that arose in the course of the years, as occurred 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, owing to the profound changes that had taken place both in Portugal and in the religious life of the Indies, especially after the war, agreed to regulate the boundaries of the dioceses, the appointment of bishops, etc. A contracting party also has the right to renounce the rights granted by the other, according to the maxim: « Quilibet renuntiare potest

iuri pro se introdotto », but the acceptance of the other party is required, so that such renunciation does not indirectly prejudice that party’s rights. Once acceptance has taken place, the renunciation definitively extinguishes the right of the renouncing party.

The question has been raised whether concordats can lapse through unilateral denunciation by one of the contracting parties. According to the principles of law, the answer is decidedly negative; this would mean the destruction of any pact and the denial of the juridical principle universally accepted: « pacta sunt servanda ».

The Holy See, both in diplomatic notes and in doctrinal statements, has upheld the precise obligation of the contracting parties to observe the articles signed. Thus Pope Pius IX, on 8 December 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). In the encyclical Vehementer, Pius X protested against the rupture of the Napoleonic Concordat, denounced unjustly by the French government, and highlighted the violation of the law of nations, of sworn faith, and of the social and political order, which imperatively requires the observance of treaties. In the event of 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 what cases a violation occurs that is such as to require the rupture of the agreements depends on the circumstances and the gravity of the violation, judged according to equity; for failure to observe some secondary article, one merely lodges a protest and then seeks an accommodation. It may be concluded that unilateral denunciation is not only unlawful but 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 the extinction or modification of a concordat arises when observance of it, or more precisely of certain articles, would cause very serious and permanent harm to one of the contracting parties: that party has the right to denounce those articles or the entire concordat by virtue of the clause « rebus sic stantibus ». The parties intended to bind themselves within the limits of what was possible, but no further. All this must be judged correctly, in good faith, and not with a hostile attitude, seeking a pretext for evading the obligations undertaken; otherwise there would be a genuine violation of the pacts.

In the event of a change in the form of government, concordats retain their validity: various historical examples confirm the continuity of friendly relations, as has recently occurred in Italy, which passed from a monarchical to a republican regime. The concordat does, however, lapse when the moral personality of one of the contracting parties ceases to exist, as Pope Benedict XV declared concerning the former Austro-Hungarian Empire in the consistorial allocution of 2 November 1921 (ASS, 13 [1921], pp. 521–22), because it is « res inter alios acta », while nevertheless expressing his willingness to begin negotiations for new agreements with the States then established.

V. HISTORY OF THE C

In ancient times the emperors had the patronage of the Church and did not usually make agreements in the proper sense of the word. Following the celebrated Investiture Controversy, peace was restored through the granting of privileges, and these were genuine agreements: such was the C. of London promulgated in Aug. 1107, by which the king undertook to renounce investiture, while the elected candidates undertook to swear fealty to him as feudal vassals before episcopal consecration; on 23 Sept. 1122 there followed the celebrated « privilegium Calixtinum » or C. of Worms, confirmed by the First Lateran Council. Thus the terrible struggle begun between Gregory VII and Henry IV and continued by their successors came to an end; a twofold investiture was established: the ecclesiastical investiture, to be conferred solely by the Church, and the feudal investiture, to be conferred by the emperor by means of the scepter alone, not with the ring and pastoral staff; the other questions were also defined. In the subsequent periods concordat activity continued, and several agreements were concluded, such as those between Alexander III and Frederick I (1176–77); between Innocent III and Frederick II (1212–13); the promises of John without Land (1212); the agreement concerning the investiture of the Kingdom of the Two Sicilies in 1265; and that of Sardinia in 1297.

Of particular importance were the C. concluded by Pope Martin V in 1418 to reaffirm the authority of the Holy See after the Great Western Schism; besides the reform decrees accepted by all the nations, other points were referred to the « capitula concordata » concluded with Germany, France, Spain, Italy, and England. To remedy the evils of the Council of Basel’s schism, in Feb. 1447 Pope Eugene IV granted privileges in four documents known as the C. of the princes or C. of Frankfurt. The following year, on 17 Feb. 1448, the C. of Vienna was concluded with Frederick III and various prince-electors, and was ratified by Pope Nicholas V with a special bull on 19 March 1448. In this C., 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 were recognized. In 1516, the C. between Pope Leo X and Francis I was famous for abolishing the Pragmatic Sanction of Bourges of 1438, which had schismatic tendencies. Of great importance was the provision that removed from cathedral Chapters the power to elect bishops, reserving it to the Holy See, and granting kings the right to nominate candidates to the pope, to whom the conferral of the office belonged.

In the 17th century only two C. 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 several C. were made with absolute governments: among these should be recalled 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 most serious destruction caused by the French Revolution, a new series of c. had the restoration of the Church as its object. First among them was the Napoleonic C. (1801), which remained in force until 1905; this was followed in Sept. 1803 by that with the Italian Republic, in 1817 by the C. between Pius VII and Maximilian Joseph, King of Bavaria, and in 1818 by that with Ferdinand I, King of the Two Sicilies. During his long pontificate, Pope Pius IX concluded various c., among which should be remembered that with Russia in 1847; with Tuscany and 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; with Haiti in 1860; with Honduras and Nicaragua in 1861; and with San Salvador, Venezuela, and Ecuador in 1862.

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

With Pope Benedict XV, a new era opened in the history of the c. The old principle of separation between Church and State caused serious harm to the State as well, and after the war of 1915–18 everyone felt the need for a rapprochement with the Church. In his conciliar address of 21 Nov. 1921, Pope Benedict XV, while declaring that the agreements made with states that had already been radically transformed could no longer be maintained, showed himself willing to negotiate with the various governments and regulate religious questions through c. His words did not fall on barren ground. Several states that had distanced themselves sent their ambassadors, and the new states also established diplomatic relations with the Holy See. Thus negotiations began for new c., taking into account the needs of the peoples and the changed conditions of the times. In chronological order, the first c. was concluded with Latvia on 30 May 1922 and ratified on 3 Nov. of the same year. Although only one quarter of the citizens were Catholic and the president of the Republic was Lutheran, the c. was nevertheless considered advantageous, as it assured the Catholic Church the free and public exercise of worship, recognition of juridical personality for ecclesiastical institutions, and so forth. The C. with Bavaria followed, concluded after long and arduous negotiations on 29 March 1924. Poland, reborn after the war of 1914–18, established in Art. 114 of its Constitution that relations with the Holy See were to be regulated by a c., and the solemn convention was concluded on 10 Feb. 1925. After reestablishing diplomatic relations with the Holy See, France concluded agreements for the proper functioning of worship associations, approved by Pius XI through the encyclical Maximam gravissimanque of 18 Jan. 1924, and other agreements on 4 Dec. 1926 concerning the liturgical honors to be accorded to representatives of France in the regions of the Near East where France exercised a protectorate by virtue of international treaties.

Romania too was able to conclude a c. on 10 May 1927 and, in 1932, an agreement for the interpretation of Art. IX thereof. On 27 Sept. 1927, Lithuania also concluded the c., after the political difficulties concerning the diocese of Vilna had been overcome; the diocese was subsequently erected into a metropolitan see in 1925. With Czechoslovakia, on 17 Dec. 1927, a modus vivendi was established concerning certain questions, with a rather temporary character. With Portugal, two agreements were signed on 15 Apr. 1928 and 11 Apr. 1929 concerning the East Indies; a solemn convention was concluded on 7 May 1930, followed by a missionary agreement. Of very Lateran Pacts (v.) of 11 Feb. 1929, by which the long dispute between the Holy See and Italy was brought to an end.

In that same year, 1929, the C. with Prussia was concluded, negotiations having lasted a decade because of opposition from the Evangelical Federation and the Jews; this was followed by the C. 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 c. concluded with certain individual states of Germany and ensuring a uniform criterion for the treatment of the related questions in the others. 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.

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Giovanni Lo Grasso