LEGATION, RIGHT OF. — The right of legation is a public subjective right, granted by sovereignty, which is exercised by sending (active legation) and receiving (passive legation) public ministers or representatives. According to international norms, this right is exercised by sovereign States through the accreditation and reception of diplomatic agents (v.).
The right of legation of the Roman Pontiff, however, must be understood in a broader sense, inasmuch as the Roman Pontiff and the Holy See not only possess the faculty—common to exclusively temporal governments—of sending and receiving representatives with diplomatic character, but also that of communicating, both through their own diplomatic agents and through other representatives, with all pastors and faithful, directly and independently of any civil authority. The right of legation belongs to the Roman Pontiff by virtue of the Church’s character as a perfect society, and is exercised by him in virtue of his primacy.
This right has been denied or contested at various times, both by States—some of which wished to recognize it only insofar as the Pope was, at the same time, head of the Church and a temporal prince—and by bishops themselves, who mistakenly saw in it a violation of the power belonging to them by divine right (e.g., the Punctation of Ems [v.]).
For the historical development of the right of legation and for the organs through which the Roman Pontiff exercises it actively, see: DELEGATI APOSTOLICI; LEGATO; NUNZIO APOSTOLICO.
As already stated, the right of legation also includes the power (which may be a contractual duty assumed vis-à-vis the accrediting State) to receive representatives of others (passive legation); this has brought the Church into closer (and one might say exclusive) connection with international law. At the Holy See, therefore, representatives of the various civil governments are accredited with diplomatic character and, in the vast majority of cases, on a permanent basis (v. CORPO DIPLOMATICO). This continued to occur even during the period (between 1870 and 1920) when the temporal regime in fact did not exist; and despite the denials of part of the doctrine and the pressures initially exerted by the Italian government on the powers to withdraw their representatives from the Holy See, this had to be recognized even in the Law of Guarantees (arts. II and 12).
The Lateran Pacts recognize, in addition to the sovereignty of the Holy See in the international sphere as an attribute inherent to its nature, the right of legation, both active and passive, in its broadest sense and in conformity with Church doctrine (art. 12 of the Treaty; art. 19 of the Treaty and art. 2 of the Concordat); and they ensure to the diplomats accredited to the Holy See, to the Pope’s diplomatic and envoy envoys, and to the couriers of both, as well as to those dispatched by the Holy See, the possibility of crossing Italian territory, enjoying the usual immunities (v. IMMUNITÀ DIPLOMATICHE; CORPO DIPLOMATICO; CORRIERI DIPLOMATICI).
The diplomatic representatives of the Holy See also represent the State of the City of Vatican.