Canonists and publicists do not agree about the nature of a concordat and, consequently, vary much in the definition they give
Concordat. — Definition.—Canonists and publicists do not agree about the nature of a concordat and, consequently, vary much in the definition they give. The various theories will be explained later, but for the sake of orderly discussion at least a nominal definition will be premised. In general, a concordat means an agreement, or union of wills, on some matter. But as soon as we attempt to define this general notion more clearly a difficulty arises. Agreement of wills may be had in many ways: in friendship, in regard to privileges, in a bilateral contract, etc. Prescinding for the present from the exact nature of a concordat, and without giving an exact definition, we may say that a concordat is a law, ecclesiastical and civil, made for a certain country in regard to matters which in some way concern both Church and State, a law, moreover, possessing the force of a treaty entered into by both the ecclesiastical and civil power and to a certain extent binding upon both. The full meaning of the terms employed will be explained below.
Purpose.—The purpose of a concordat is to terminate, or to avert, dissension between the Church and the civil powers. This is evident from history. During the first three centuries, when the civil authority was bent upon the total ruin and destruction of the Church, concordats were out of the question. After the era of persecution was over, and, with the exception of some temporary usurpations and outrages, the Christian Emperors of Rome generally recognized and defended the rights of the Church, concordats were unnecessary. This state of affairs continued until the end of the eleventh century, when there arose the strife about investitures which was settled in 1122 by the Concordat of Worms, or Pactum Callixtinum, between Pope Callistus II (q.v.) and Henry V. This may be called the first concordat, unless the agreement of London (1107) is reckoned, as it may be, among the number of concordats. The contest between Boniface VIII and Philip the Fair, at the end of the thirteenth century, opened the way for still further disagreements between the Church, which strove to preserve its rights inviolate, and those civil powers which sought to usurp them. These disagreements gave rise to various concordats. Before the eighteenth century there were six (or seven if the London agreement of 1107 be counted); during the eighteenth century there were fifteen, and in the nineteenth century a much larger number
It is to be noted that De Angelis, who is followed by Giobbio and in part by Cavagnis, does not consider the Pactum Callixtinum a concordat, because in it Callistus II made no concession of any importance to the emperor. This reason, however, as Wernz well observes, is false. For, according to the best authorities on the Pactum Callixtinum, the pope granted to Henry V several important concessions, permitting the emperor to assist at episcopal elections and to exact from bishops-elect in Germany and from consecrated bishops in other parts of the empire (i.e. in Burgundy and Italy) not merely the oath of simple loyalty but even that of vassalage, by which the rights and liberties of the Church were considerably restricted. Cavagnis likewise remarks about the first concordat with Portugal, in 1288, that it is rather a decree of the pope in which, after hearing the bishops and the royal plenipotentiaries, he decided what should be allowed, what denied, out of the powers which the King claimed on the ground either of privilege or of custom. Granting all this, it does not seem to follow that such an act could not be called a concordat; for it is by no means evident that mutual concessions are essential to the very nature of a concordat. An agreement may very well exist without mutual concessions—a principle especially in accord with the view of those authorities (including Cavagnis) who see in every concordat a strictly bilateral contract; for the due rights of either party can properly be recognized and established by any contract properly so called. Hence it is plain that concordats have in general been made in order to end a disagreement and restore harmony. Not always, however; for concordats have at times been made when there was no actual disagreement to be settled—solely for the purpose of preventing disagreements in the future and of rendering more secure and permanent the welfare of the Church in some State. This was done between Pius IX and Garcia Morena, President of Ecuador in 1862.
With regard to the necessity of concordats two extreme opinions are to be avoided. Concordats are not absolutely necessary; neither are they harmful to the Church or civil society. Assuredly it were to be desired that the Church should never need concordats, and should always find in civil rulers devoted children, or at least such as would use all diligence in caring for the spiritual welfare of their Catholic subjects, and would religiously respect their rights. But, unfortunately, the contrary too often occurs. Hence the Church, to avoid a greater evil, has often had to prom-ise to forego this or that natural right of her own in order to secure from the State a promise to refrain from further encroachment upon ecclesiastical rights.
Matter or Object of a Concordat.—The matter, or the objects, treated of in a concordat may be spiritual, mixed, or temporal. Spiritual matters are those that belong purely to the spiritual order, or are connected with it: for example, matters pertaining to the liturgy. Thus, in some concordats there has been question of inserting the name of the emperor in the Canon (q.v.) and of singing after the Divine Office the formula: “Domine, salvam fac rempublicam”, or “Domine, salvos fac consules”, or “Domine, salvos fac praesides eius” (cf. art. 8, of the Concordat of 1801; arts. 23, 24 of the Concordat with Costa Rica and Guatemala, 1853; arts. 15, with Haiti, 1860; art. 21, with Ecuador, 1862; arts. 22, 23, with Nicaragua and San Salvador, 1863). In like manner there is frequent mention of nominating bishops, of the establishment and bestowal of parishes, or of prescribing special regulations for the promotion of clerics to Holy orders or to ecclesiastical dignities, so as to prevent, for example, the number of clerics from becoming too large (cf. art. 5, Concordat with Spain, 1737; C. iv, Concordat with Sicily, 1741), and so on.
Mixed matters are those which belong, though under different aspects, both to the temporal and spiritual orders, and are subject to both authorities, such as public education, marriage, etc.
Temporal matters are such as of their own nature do not belong to the spiritual order. In some concordats the Church has allowed rulers to impose taxes not only on the private possessions of clerics, but also on ecclesiastical property; so the Roman Pontiff has at times given up his claims on account of certain ecclesiastical properties damaged in the course of civil or religious turmoil. Examples of each of these occur in the Concordat with Columbia, in 1887. It is to be noted that, when the pope absolutely surrenders temporal possessions of the Church, as in art. 29 of this concordat, such possessions no longer remain under the ownership or jurisdiction of the Church or subject to it. When, however, he merely permits such property to be taxed (as in art. 6 of the Colombian Concordat, art. 18 or art. 19 of that with Costa Rica, in 1853) then the property remains in the ownership of the Church, which does not acknowledge in the State any inherent right to impose taxes of this kind, but rather implies the contrary by the very concession.
The Contracting Parties.—It is clear that only those persons in Church or State are competent to enter into a concordat who in their respective spheres have the right of making treaties, and indeed of enacting laws. Hence, absolutely speaking, bishops, as true rulers of the Church vested with authority to make laws strictly so called, can also make concordats on all matters falling within their jurisdiction. In past ages they have often exercised this right; a concordat was made between the bishops of Portugal and King Diniz in 1288, and confirmed by Nicholas IV in 1289. In 1273 one was made between the bishops of Norway and Magnus VI (IV), by which the bishops renounced the right of electing the king as long as there were legitimate heirs of the blood, and the king on his part bound himself to prevent the royal officials from interfering with the free exercise of ecclesiastical authority. This concordat was confirmed in the following year by Gregory X in the Second Council of Lyons. Many other concordats made by bishops might be mentioned; for example, between the bishops of Portugal and King Manuel, confirmed by Leo X in 1516. Candido Mendes de Almeida, in his “Jus Civile Ecclesiasticum Brasilicum Vetus et Recens”, enumerates eighteen concordats made between the thirteenth and fourteenth centuries by the Kings of Portugal with the clergy of the kingdom, for the settlement of serious controversies. At the present time bishops do not possess the power of making concordats; it is reserved to the pope. The reason for this reservation is that concordats deal not with one question only, but with the settlement of all ecclesiastical matters in a particular country; such a wide field of affairs manifestly constitutes a causa major, and as such is reserved exclusively for the judgment of the Roman Pontiff. Moreover, in recent concordats concessions have almost always been made contrary to the ordinary canon law, and such concessions can be made only by the pope. It should also be noted that governments desirous of entering into a concordat with the Church prefer to deal with the pope, so as to have a regulation by which all the bishops will be bound. The Roman Pontiff in making a concordat acts in his capacity as pontiff, and not as a civil ruler; and this was the case even before he was despoiled of his temporal sovereignty. Hence, in making a concordat, he acts as pope and, as Supreme Ruler and Pastor of the Universal Church, exercises the supreme and full authority of his primacy.
On the part of the State those competent to make concordats are supreme legislators or chief magistrates—an emperor, king, or president, acting alone, where the supreme authority is plenary and unrestricted; acting with the consent of the representative body, where such consent is constitutionally necessary for legislation. Wernz (Jus Decret., I, 166) remarks: “The Apostolic See, to avoid the risk of open mockery, usually enters into solemn undertakings only where a civil government is under no obligation to seek the consent of a representative body, or where there can be no reasonable doubt that such consent will be granted.” It is also to be remembered that the Roman Pontiff makes concordats with governments only in their civil capacity, even when such governments are non-Catholic. Hence it cannot be supposed that a concordat with the Tsar of Russia or the King of Prussia is made with either of these potentates as with the supreme spiritual head of a schismatic or Protestant sect.
Nature of Concordats.—To explain the nature of concordats three theories have been proposed: (a) The legal theory, that advanced by the regalists; (b) The compact theory, which regards a concordat as a bilateral contract; (c) The privilege theory, according to which a concordat has the force of a privilege on the part of the Roman Pontiff, but of an obligation on the part of the civil ruler.
Before explaining and examining these theories in detail, it is well to note first of all that the name given to each theory should not be understood as if the authors of the various opinions considered all the articles of a concordat as possessing equal force. Those who defend the privilege theory do not maintain that no article in any concordat ever imposed an obligation of justice on the Roman Pontiff. On the other hand, those who defend the compact theory do not assert that the Roman Pontiff is bound in the same way by all the articles of every concordat. These theories have been named, as Wernz points out, from the feature most prominent in each. It is clear, then, that authors who defend the privilege theory maintain, in the last resort, no more than this: that, in respect to the greater part of their matter, concordats must be classed as privileges granted by the Roman Pontiff. Nevertheless, as this subject matter of a concordat is not necessarily homogeneous (the unity of a concordat being merely extrinsic and accidental) it follows that although the term privilege may be applied to a concordat taken as a whole, it cannot necessarily be used of every clause in the same.
(a) The Legalist Theory does not admit that concordats have the force of a bilateral contract, because the State is above the Church and, being the supreme society, cannot make such an agreement with an inferior or subordinate body. Concordats are valid, however, because they are civil laws passed by the State in regard to the Church. It follows from this view that concordats may always be revoked by the State, but not by the Pontiff; as far as the Church is concerned they are mere privileges revocable at the will of the civil ruler. This theory is held in our days more or less strictly by various governments and many writers, chief of whom is Hinschius.
The Compact Theory, as we have said, makes of the concordat a bilateral compact. It must be observed, however, that the advocates of this view are divided among themselves. Some hold strenuously that the Roman Pontiff can make no change whatsoever, not even validly, in regard to anything which he has conceded in a concordat. The chief writer of this school is Schulte, an ex-Catholic, who openly bases his views of concordats on his assumption of the perfect coordination and equality of Church and State, just as the legalist theory is founded on the subordination of the ecclesiastical and the civil power. Others, among whom we may enumerate De Angelis, Cavagnis, and Fink, while upholding the compact theory, so explain it as to fully accord with strict Catholic teaching on the constitution of the Church. A concordat, in their opinion, is a bilateral compact, but not in the strict sense of the term. Indeed they so limit and weaken the force of a contract as applied to a concordat that at times they seem to be maintaining the view of those who hold that a concordat is to be considered as a privilege rather than a real contract.
The Privilege Theory, according to which concordats, if we regard their general character and the bulk of their contents, lack for the most part the force of a true contract, and are to be considered as imposing an obligation on the civil power alone, while on the part of the Church they are merely privileges or concessions granted by the Roman Pontiffs. This view, which counts among its recent staunch defenders Cardinal Tarquini, seems to rest upon surer grounds than the others. Before advancing the arguments in its favor, it would be well to examine the position of its opponents. It is evident that the advocates of the first, or legalist, theory build all their arguments upon the supposition that the Church is subject to the State, of which it forms but a department, just as any other body is subject to the whole of which it is a part and from which, consequently, it depends. This view we find expressly maintained by Hinschius, who says: “The theory that asserts that a concordat possesses the force of a contract seems untenable, notwithstanding the vast numbers of its followers. According to the modern civil law the authority of the State over all matters falling within its sphere is omnipotent, and Christian Churches which exist within the territory of any State are subject to that State in just the same manner as are private corporations or individuals.” Hammerstein, in his clever refutation of these errors (De Ecclesia et Statu juridice consideratis, Trier, p. 211) says that this “sphere”, within which the State is said to be omnipotent, may be understood in a juridical or a geographical sense, i.e. as signifying the limits either of the State’s rights or of its geographical possessions. If taken in the first sense, the grandiose words of Hinschius become puerile, if in the second sense, then Hinschius is advocating a legal enormity. For if the word sphere be taken to signify “extent of authority”, the assertion of Hinschius means nothing more than that the State can, within the limits of its own rights and authority, do what it will. And it needed no philosopher to proclaim this, since it is abundantly evident that anyone can do all whatsoever he can do. If, on the other hand, sphere be taken in the sense of “geographical extension”, Hinschius is maintaining that the State may, within the bounds of its own territory, perpetrate any crime it chooses. To quote Hammerstein, “We have said that the phrase, the State’s sphere’, can be understood to mean geographical extension. In this case, the teaching of the Prussian canonist, Hinschius, when taken in the concrete, practically comes to this, that within the territory of the Kingdom of Prussia the Prussian government can, without any injustice whatever, behead, burn alive, or spoil of their property all whomsoever it pleases and because it pleases; and why? Because the Prussian government is—omnipotent! Surely a wonderful system of jurisprudence!” Moreover, it is noteworthy that the very principle which this school of writers assume as the basis of their argument, namely that no true compact can exist between a sovereign power and its subordinates (whence they argue that between the civil and the ecclesiastical authorities no compact can exist entailing strict obligations upon the former), this fundamental principle is not only false in itself but is contradicted by their own theories. For they maintain that a strict compact can be made between ruler and ruled, whereby the authority of the former may be diminished, or even partially or wholly abolished.
Those who claim that concordats are to be considered as bilateral contracts in the strictest sense of the word experience in trying to maintain their assertion the same difficulty as the followers of the legalist theory. They, too, have recourse to a false principle, that of the perfect coordination and equality of Church and State. It does not fall within the scope of this article to show the falsity of this assumption; suffice to say in passing, that the coordination or sub-ordination of societies among themselves is to be determined by the coordination or subordination of the ends for the attainment of which said societies were instituted; now the end the Church has to attain is superior to that of any other society.
The arguments of those who hold that concordats are bilateral contracts, though only in the broad sense of the term, are based upon their language and diplomatic form. For they argue that these clearly show that the popes themselves regarded concordats as concessions to which were annexed the binding force of a compact, and that in making them they intended to bind themselves by them sometimes to the extent of declaring null and void whatever they themselves or their successors should do in contravention of anything contained in their concordats. An example in point is the concordat between Leo X and Francis I of France. Furthermore, it is claimed that the popes often have referred to concordats, directly or equivalently, as bilateral contracts, or agreements carrying with them a strict obligation. Thus Fink, in his work “De Concordatis” (Louvain, 1879), when summing up his argument says: “In the estimation of the Holy See, concordats are solemn agreements with regard to the management of ecclesiastical affairs, entered into by the supreme authorities, ecclesiastical and civil, of the respective countries; they are possessed of the full efficacy of a strict obligation, and have the force of a compact binding both contracting parties, after the manner of international treaties. Besides the obligation of justice, the binding force of a concordat is strengthened by a solemn promise made by each party for himself and his successors to observe forever faithfully and inviolably all that has been agreed upon. Unless, then, by mutual consent, no concordat can be broken without violating every principle of justice and jeopardizing all other private and public contracts.” Other arguments are drawn from expressions occurring in the diplomatic correspondence of the Papal Secretary of State. As a matter of fact, much of what we have just given from Fink is to be found not in papal documents themselves, but in the correspondence of the Secretariate of State. Lastly, the advocates of this form of the compact theory assert that the common opinion among canonists is also in their favor. But, with all due respect to the learned scholars who hold and defend the opinion, the argument drawn from the form of the concordat hat; but little weight. For it is not at all rare for an act to be clothed with a form which, though, perhaps, less adapted to the nature of the act itself, yet in no way changes that nature. For example, the formula of absolution in the Greek Church is deprecatory, yet this form of entreaty in no way changes the judicial nature of the pronouncement. So, too, Gregory VII deposed Henry IV by a form of deprecation, yet it cannot be denied that the judgment passed was truly condemnatory. So also a religious before his solemn profession may renounce all his possessions under the form of a will, which form endures even after his profession, while the nature of the act is essentially changed, since there no longer exists that voluntas ambulatoria which a last will and testament of its nature requires. Nor are the arguments drawn now and then from solemn promises any stronger. For the pope often calls certain concessions mentioned in concordats “privileges”, “indults”, etc., etc., and at times speaks even more precisely, asserting that he will in no way interfere in the doing of this or that. If at times the stricter formulae are employed, as in the concordat between Leo X and Francis I (a formula which seems to be the strictest of all and decrees as null and void whatever to the contrary is attempted by subsequent pontiffs), they are employed, as Palmieri notes in the first edition of his treatise “De Romano Pontifice”, first, that the pope may testify to his firm purpose of observing, in as far as he may, the points mentioned in the concordat: secondly, because of the scope of the instrument itself, which is similar to an agreement entered into by a father and his disobedient children. In such reconciliations it often happens that a formula is used between a father and a child still under his jurisdiction which verbally signifies a bilateral contract, but which in point of fact is employed for the sole purpose of manifesting the leniency and liberalty of the father. Thirdly, very often such formulae are employed because of the unity of the act itself. That this is true, is evident because at times there are articles which bind the pope in justice, and also because by a concordat a civil ruler (i.e. in the case of a concordat drawn up with a Catholic prince) is really and truly bound by obedience to the Roman Pontiff. Hence, although the latter is bound to his promise only through fidelity to his word, it was deemed advisable to use a common form which, as in the case of bilateral contracts, implies a mutual obligation, the nature and interpretation of which is sufficiently evident from the nature and tenor of the concordat itself. It is also to be noted that emphatic phrases such as those above mentioned, employed with a view to express the firm determination of the legislator, are not at all rare; so, for instance, there is sometimes attached to a code of laws a clause derogatory of all future laws, v. g. “by virtue of this unchangeable constitution which is to endure forever”. Yet no one claims that a subsequent legislator is bound by such a clause, nor that he cannot abrogate the constitution in whole or in part. That the popes admit that concordats are identical with bilateral contracts, is not wholly true. For they are rarely called such, the ordinary expression being that they have the force of a bilateral contract—something entirely different. For (as Baldi notes in his excellent work on concordats, “De Natures et Indole Concordatorum) all such technical phrases as, “to have the same binding force as a treaty”, “to be a species of contract”, “to partake of the nature of a privilege”, “to resemble a gift”—all these signify nothing else than participation in, and not identity with, the nature of all of these. Just as when the law declares, “The admission of postulation has the force of confirmation”, it is legitimate to conclude, “therefore admission of postulation is not confirmation but participates in and approaches to, as far as its nature allows, the nature of confirmation. Again, it argues nothing against the opinion held in the article that concordats are sometimes expressly designated bilateral agreements or contracts (perhaps once: to wit, in the letter of Leo XIII, dated February 16, 1892, to the bishops and faithful of France), since in such cases it is evident that the pope wished only to observe all the conventionalities of concordats—in so far at least as duty permitted. It was not the pope’s intention to define and determine the exact essence of a concordat, but rather to manifest his mind on the matter in question, and give assurance that he, on his part, would not violate the articles agreed upon. Relative to this matter Wernz says: “Pius X praised Bonald because he brought to his notice the nature and peculiar characteristic of these agreements or indults.” Then, too, Leo XIII earnestly recommended that the question of concordats be seriously and thoroughly looked into. Surely the praise of Pius and the recommendation of Leo would have been utterly foolish if the theory of bilateral contracts had been evidently and unquestionably adopted by the Apostolic See.
Of less value is the argument drawn from individual phrases occurring occasionally in diplomatic correspondence. For, apart from the fact that never, perhaps, in these diplomatic notes is a concordat said to be identical with a bilateral contract, it must also be granted, and that without evasion, that the weakest kind of argument is that drawn from one or another phrase used by some Cardinal Secretary of State, or some Apostolic Nuncio in a single diplomatic note. For the admission is not forced upon us that these phrases are the best that under the circumstances could be chosen. It is also false that the treaty theory is more commonly held by theologians and canonists. For neither is this true of the modern canonists, while it is absolutely false of those of earlier date, very many of whom (as Baldi clearly proves in his erudite commentary on concordats already cited) held the opinion advanced in this paper. This opinion, it must be noted, is based on two principles: first, that ecclesiastical and civil society are not coordinate; secondly, that the power of the Roman Pontiff can be neither alienated nor diminished. On this point Wernz wisely remarks: “If the coordination of Church and State be urged as an argument, then the treaty theory is founded either on an error, or on a pure fiction lacking all objective reality.” (Cf. Sagmuller, “Lehrbuch des kath. Kirchenrechts”, 89 sqq.) Hence it follows that it is utterly impossible to call a concordat an international treaty in the real and true sense of the word (cf. a pamphlet anonymously edited in Rome, 1872, under the title: “Della Natures e carattere essenziale dei Concordati”, whose author was Cardinal Cagiano de Azevedo). Neither can the concordat be classed with international treaties, since the latter are entered upon by two societies each perfect in itself and both equal. The Church, on the other hand, is neither subordinate to, nor equal to, the State, but is in a true sense its superior. Hence, also, it follows that concordats are not bilateral contracts; since for such a contract three things are essentially required: (a) the consent of two parties to the same thing; (b) which imposes upon each an obligation of commutative justice; (c) so that the obligation of one party is the cause of a right in the other, and one obligation is to the other as effect to cause. But a strict right arising from commutative justice is altogether independent not only of the other contracting party, but also, generally speaking, of public authority. Hence, no one can lawfully or validly take such a right away from me against my will. Moreover, it cannot be said that concordats impose on the pontiff an obligation which is the cause of a right in the other party, and of such a right as can be neither lawfully nor validly recalled. For certainly, in this hypothesis, a succeeding pontiff could not do as much as his predecessor; he would receive a lessened power, not that which Peter received from Christ to be transmitted to his successors for the government of the church. And this surely cannot be, since each succeeding pontiff receives his power not from his dead predecessor, but from God himself, who always gives the selfsame, as he has said once for all to Peter and his successors: “Thou art Peter and upon this rock I will build my church. Feed my lambs … I will give to thee the keys”. Therefore a succeeding pontiff is not bound by the compacts of his predecessor as by a bilateral contract giving such a strict right of commutative justice that if he violate the agreement without cause his act is invalid. And neither is the pontiff who has made such compacts so bound by them, for he is not the master of that fullness of power which is the primacy, but only its administrator, so that he cannot alienate or lessen it. Nor can you argue that by concordats, which are bilateral contracts, not the power of the supreme pontiff, but only its exercise, is diminished. For what is that power which can never be exercised, or which, if exercised, remains without effect? And such would be the case, for even if the pontiff wished he could not act validly, and therefore his power would be lessened. And hence the Roman pontiff must retain the fullness of power and jurisdiction over those questions which are settled in a concordat. This is what Cardinal Antonelli, Secretary of State, maintained in his diplomatic correspondence, when the Kingdom of Portugal complained that the pontiff had violated the concordat.
Does the pontiff then contract no obligation in concordats? Assuredly he contracts an obligation; and they do an injury to Cardinal Tarquini who think that he held the opposite. For, although he does not mention this obligation in his definition of concordats, he certainly admits it when explaining his meaning. But this obligation is one of fidelity, not of justice, an obligation which makes a violation of the concordat with-out just cause an unlawful act, but not an invalid act. His Eminence Cardinal Francis Satolli explains with his usual depth and clearness the nature of the obligation which a pontiff is under of observing a concordat. His little work, of great authority, bears the title, “Prima principia de Concordatis”. The learned author begins his investigation with the following reasoning from St. Thomas, I, xxi, 1, ad 3. The Angelic Doctor, asking whether justice exists in God, puts this objection to himself: The act of justice consists in the payment of a debt; but God is a debtor to no one, therefore it would seem that justice does not exist in God. To solve this difficulty the Holy Doctor first lays down the principle: to every one is due what is his own. He then inquires what one may call his own, and establishes that one’s own is that which is for him, as a slave is his master’s, precisely because, inasmuch as he is a slave, he is for his master. In the name debt, therefore, concludes the Angelic Doctor, is simplified a relation of exigency or necessity in a thing referring it to that for which it exists. Considering this relation more thoroughly, you will see that it is twofold: a relation by which a creature is for another creature and all creatures for God. Since this relation is twofold, there is also a twofold debt in the Divine plan; one by which a thing is due to God, the other by which a thing is due to the creature, and in both ways, says St. Thomas, God can make payment. For it is due to God that what the wisdom of his will has decreed should be fulfilled in creatures, as it is due to the creature that what has been ordained for it it should possess. Thus it is due to man that other animals should supply his needs. But this second debt depends on the first, since a thing is due to creatures because it is ordained for them through the relations established by the Divine wisdom. Wherefore, since God pays a debt to his creatures in this way only, he does not become his creatures’ debtor, but the justice of God always looks to His own propriety, and by it he renders to himself what is His due. The author then passes to the Church and applies to her this argument. For to the Church also is due that the mission of her infallible and holy teaching power and manifestation of the saving quality of Christ’s religion be accomplished in every State throughout the world. It is likewise due to the various States and their rulers that they have what is properly theirs. But this debt depends on the first in every relation between the Church, or Holy See, and a State; for it would be absurd were not all things ordered according to the relations established by the Divine wisdom, that is, to maintain religion, and to further the last end of all human life. The debt which the Church pays in tending to her supernatural end is one of justice, but of a justice which looks to the propriety of the Church her-self, that is of the Holy See, a justice which renders to itself what is its due. In purely temporal matters the Church must observe the debt of justice such as temporal matters require, for in these she is not a superior nor is her spiritual end in question. But in all matters which pertain to the supernatural end of the Church, she can be under no obligation of strict debt to the State, but rather her obligation is to herself and to the spiritual purpose of her existence. And thus, generally speaking, she will be a debtor to States, through compact, since she owes to herself what her wisdom and never-failing desire for the spiritual good of mankind has shown her to be necessary.
But to present briefly what can certainly be said about concordats; concordats, as they have in fact often been agreed upon, often impose upon the Roman Pontiff a true obligation of commutative justice towards the state. This happens when a concordat is concluded about purely temporal matters, for instance, when the Church cedes some of her temporal possessions, or when she renounces some temporal or historical right. Such was the case in the concordat concluded between Urban VIII and the emperor, Ferdinand II, King of Bohemia; for in this instance the pope ceded some ecclesiastical possessions upon receiving others from Ferdinand in compensation; such, too, was the concordat with Colombia, in 1887, art. 29. But we must bear in mind that in such concordats the pope follows the common laws of contracts; therefore, if a contract be extorted from him by fraud or intimidation, or if the matter of the concordat be illicit, he or his successor can annul that contract, and such action is quite licit and valid. Moreover, if the matter of the concordat is illicit, the pope is evidently obliged to rescind the contract. Thus when Henry V had, by means of fear and fraud, urged Paschal II into certain points of agreement, this pope recalled those concessions in the First Council of the Lateran, on the 18th of March of the year 1112, because the entire council proclaimed that the concessions made to Henry were illicit—not a privilegium, but a pravilegium, as the council expressed it. Thus, too, if a pope should make over to someone temporal possessions without a just cause, his successor can evidently cancel such a contract validly, because a pope is only the administrator, and not the owner, of ecclesiastical possessions.
In concordats the Roman pontiff often grants secular rulers real privileges and indults; for the pontiff expressly declares that he is granting an indult, a privilege—that he is conceding this or that particular point, that he is making such or such a concession, or granting a favor. Instances of this kind may be found in the concordat with the Two Sicilies, of the year 1741, c. viii, art. 1, in another with the Two Sicilies of 1818, art. 28, in a concordat with Costa Rica, of 1853, art. 7; in a concordat with Haiti, of 1860, art. 4; in a concordat with Austria, of 1855, art. 25; with Ecuador, of 1863, art. 13, etc. Now if, as the “Corpus Juris Canonici“, regula juris 16 in Sexto, has it, it is becoming that no favor granted by a sovereign should be recalled, it is fully evident from what we said above that this rule should hold good all the more when a privilege is granted in a form so solemn as that used in concordats; nor is it merely becoming for the pope not to recall such concessions, but he has an obligation of observing those very articles which contain the privileges. This follows from what we said already, and this the popes themselves affirm, sometimes, indeed, in rather stringent terms. Nevertheless, from the explanations given above it is evident that these terms of affirmation must be understood to signify merely that the pope is binding himself in so far as he is capable of binding himself; but whilst, in such concordats, he can bind himself in fidelity, he cannot bind himself in commutative justice; therefore, in those terms in which he affirms his obligation he binds himself in fidelity, but not in justice. And in fact, the popes have been much more scrupulously faithful in keeping these promises than the civil rulers themselves were, although the latter had taken upon themselves a real obligation of justice.
In the second edition of his celebrated work “De Romano Pontifice” (Prato, 1891), Palmieri maintains that, even if concordats were strictly bilateral contracts, nevertheless the power of the pope over them would not be lessened on that account. But although Palmieri is quite justly acknowledged as easily the foremost authority on ecclesiastical matters, both on account of his universal experience and his intellectual acumen, nevertheless, in this case his position seems to be untenable. In the first edition of the same work (Rome, 1877) he maintained that concordats are not bilateral contracts in the strict sense of the term; and he bases his argument for the opinion laid down in the second edition on the supposition that the obligation of a bilateral contract impedes, or renders illicit, any action of the pope against the provisions of the contract, but that, nevertheless, such action would still be valid. But this supposition is not true, unless we use the term bilateral contract in its widest sense; but this would be a question about the meaning of words, and would not touch the point at issue. But if we really mean to use the term, bilateral contract, in its obvious meaning, we must certainly hold that such a contract renders any action against its provisions null and void. The learned author adduces two instances, taken from the contract of buying and selling and from the engagement to marry, to prove his assertion; but neither of these two cases is to the point. For the engagement to marry, as Palmieri himself admits, is a bilateral contract, consisting in the mutual promise of future marriage; and yet, if, for instance, the bridegroom marries some other woman, his action is merely illicit, but not invalid. A sale of goods is likewise a bilateral contract, and it is completed only by handing over the article in question to the buyer; and yet, if the seller hands over to some-one else the article that was already sold, the transfer of the article in question remains valid, even though the seller is bound to make good the damages caused to the first buyer. Therefore the two cases adduced by Palmieri prove nothing; for a bilateral contract renders invalid those actions merely which have the same subject-matter, and in so far only as they have the same subject-matter, as the contract itself. Thus it is evident that the engagement to marry, being a bilateral contract, renders null and void any new espousals, because the subject-matter is the same; but it does not render invalid a marriage with some other person, because marriage is quite another kind of contract. The case is similar in the contract of buying and selling: even if the buyer and seller have agreed and concluded the sale, so long as no transfer has taken place, that contract does certainly not render the seller incapable of making a valid transfer of the goods in question to some other buyer; but it undoubtedly deprives the seller of the power of selling the goods validly a second time, unless the transfer of the goods follows the sale. (Cf. De Lugo, “De justitia et iure”, disp. xxvi, 163 sqq.)
So far we have been considering concordats in their relation to the pope; the secular rulers on their part are bound in commutative justice by many articles of a concordat, unless an exception be proved. But on Christian rulers all the articles of a concordat impose an additional obligation of obedience; for, as Tarquini testifies, a concordat may be rightly defined as “a particular ecclesiastical law for a certain country, enacted by the authority of the sovereign pontiff at the request of the ruler of that country, and strengthened by the special obligation, which that ruler takes upon himself, to observe its provisions forever.”
Effect of Concordats.—From all this it follows naturally that, since an obligation devolves upon the contracting parties, the terms of the concordat should be faithfully carried out and rigidly adhered to. Neither party, then, may without consulting the other refuse, except for grave reasons, to abide by the terms agreed upon. Moreover, in view of the fact that concordats have the force of ecclesiastical laws, they at once annul all laws and special customs that make for the contrary. All other laws, however, i.e. those which do not clash with the letter or spirit of the particular concordats, still hold; for concordats, bar-ring of course those provisions which are especially mentioned, so far from making the jus commune inoperative, reestablish its validity. This is clear from the fact that the intention of the Sovereign Pontiff, when at the urgent request of a civil ruler he yields a point, or waives in certain cases the claims of the law of the Church, is obviously to insist on the duty of respecting and observing the ecclesiastical laws in all other details. Further, just as all other laws when properly promulgated bind the people, so concordats, inasmuch as they take on the form of civil laws are binding on the citizens of the country, and particularly the state officials; so much so that any infringement of them is equivalent to a violation of the civil laws. And rightly so, for concordats are promulgated as laws emanating from the power vested in the State as well as that in the Church. The Sovereign Pontiff gives publicity to the terms through his cardinals assembled in consistory, and through a special Bull; the civil authority through the customary channels, i.e. in the legal way in which other state laws should and usually are promulgated.
Interpretation and Annulment of Concordats.—Since it may very easily happen that from time to time a dispute or a disagreement may arise between the contracting parties as to the meaning that should be as-signed to the articles agreed upon in the concordat, it seems advisable to determine how the controversy should be settled in the event of such a difficulty.
In the first place there can be no question that every effort should be made to settle the dispute amicably, a precaution that is founded upon the motives that lead to the formation of a concordat—namely, that of terminating if not forestalling all disputes. Consequently, it would be in direct opposition to the nature of the concordat if it should itself prove a fresh reason for misunderstandings. Its very nature, then, makes it imperative that in the event of a disagreement arising touching the meaning to be attached to the concordat, the question should as far as possible be settled without any rupture of friendly relations; and assuredly the Church has never been found wanting in her efforts to further this end. This precaution, it should be added, has often been taken in framing the concordats themselves. For example, in the concordat drawn up by Pius IX with the Emperor Francis Joseph I of Austria, in the year 1855, the following words were appended to art. 35: “Should, however, any difficulty arise in the future, His Holiness and His Imperial Majesty shall consult with each other that the question may be amicably decided.” The very same words occur in the 13th art. of the concordat drawn up by the same pope with William I of Wurtemberg, in the year 1857; so, too, in the 24th art. of that entered into by the same pope with Frederick I, Grand Duke of Baden, in 1859; and again in the 24th art. of the concordat ratified with the President of Ecuador. Other instances of a similar nature could be cited. Since this clause, once it is subjoined to a concordat, becomes a part of the agreement and consequently assumes the nature of a papal as well as a civil law, it must be kept to the letter, so long, of course, as it is normally possible to do so.
True as all this is, it would be erroneous to maintain that both parties must concur in determining the meaning of a given clause or article. For he is the lawful interpreter who in the matter in question is the authoritative lawgiver. Now the pope always retains his jurisdiction and legislative power over matters that are wholly or partially of a spiritual nature, nor can he transmit the power to another. Consequently, the Sovereign Pontiff always remains the authoritative interpreter. It is plain, then, that should a discussion arise, and the civil authorities refuse their consent to a reasonable adjustment, the Church, in virtue of her higher judicial power, may exercise this right of annulling the concordat. It is clear, too, that, should the Church at any time pledge herself in the event of some future misunderstanding to discuss the situation with the civil authorities in order to bring about an amicable settlement, such an act must be looked upon as supererogatory; for when the Church waives any of her claims she makes a concession to the State, seeing that the highest community enjoys the right of settling a discussion even though the inferior body withholds its consent.
It may be well to subjoin a few canons that shall serve as guides in interpreting the various articles of a concordat. Evidently, the meaning of those articles which import a bilateral or unilateral contract must be judged by the laws that determine the exact scope of contracts, while the meaning of clauses that bear upon the granting of a privilege must be decided by an appeal to the laws for the interpretation of privileges. In its workings, however, the competent judge of a concordat is nowadays the Sacred Congregation of Extraordinary Ecclesiastical Affairs. Far less, of course, is the State justified in rescinding concessions granted at the time the concordat was drawn up. For it frequently happens that the State promises to do only what it is already bound to by some preexisting obligation; or at times the discussion turns on certain matters which the Church, by virtue of the indirect power she has over the State, enjoins, or again on temporal affairs of which the State had handed over to the Church full and absolute dominion. In the last case this forfeiture of dominion cannot be revoked, and for two reasons: first, because these gifts are usually compensatory for confiscated property—e.g., governments which had seized upon a considerable amount of ecclesiastical property have time and again promised in the concordats to endow seminaries, church fabrics, etc.—and secondly, because any gift once bestowed on an equal or a superior, even though it be purely gratuitous, may not be revoked, as such an act would be an exercise of jurisdiction which it cannot employ except against a subject. All, however, acknowledge that the Church may lawfully and justly refuse to abide by a concordat in all those circumstances which would permit or even oblige one to break a contract. Should there be question of privileges or indults granted by the pope in a concordat, it follows logically from what we have said that, given a just and adequate reason, they may validly and licitly be rescinded; if there be no reason, then such an action would still be valid, though not licit. It must be remembered, though, that the popes exercise their authority only for the gravest, reasons, and after all the solemn formalities of the Roman Curia have been duly observed. Yet, should the pope rescind these privileges, he would not ordinarily be bound to make any compensation to the State, as compensation is strictly obligatory only where the privileges revoked are those technically called onerosa (see Privilege). Concordats, however, are not of this nature. All this applies with greater force to concessions wrung from the pope through chicanery, threats, or open violence, or which exceed the papal prerogative. Again, if it is a question of dominion over temporal goods that has passed from the Church to the State, the Church, it is clear, may not revoke this concession, although a spontaneous grant may be withdrawn.
SUMMARY OF PRINCIPAL CONCORDATS.—Before the Eighteenth Century.—(I) The Concordat of Worms, or Pactum Calixtinum, 23 September, 1122, between Pope Callistus II and the Emperor Henry V, confirmed by the First Lateran Council, terminated the long investiture quarrel. The following were its chief provisions: (a) The elections of bishops and abbots should take place in the presence of the emperor. (b) Contested elections, according to one opinion, should be decided by the emperor, who had only to ask the advice of the metropolitan and his suffragans; according to another opinion, the decision rested with the provincial synod, the emperor merely assuring the execution of the synod’s judgment. (c) The emperor renounced the right of spiritual investiture with ring and crosier and received instead the right of lay investiture with the scepter, a sign of temporal, but not of spiritual, authority. In Germany the prelate should receive investiture with the scepter before consecration, but in other countries after consecration. (d) The emperor promised to protect the Roman Church and restore the possessions of the Holy See. (e) The pope agreed not to disturb those who had been on the side of the emperor during the controversy.
Concordats with Portugal: one in 1288 between the bishops of Portugal and King Diniz after a violent persecution of the Church in that country, and ratified by Nicholas IV in 1289; another in 1516, between the Portuguese bishops and King Manuel the Fortunate, afterwards confirmed by Pope Leo X.
The Concordat of 1516 between Leo X and Fran-cis I of France, confirmed by the Fifth Lateran Council, was a result of the long controversy between the Holy See and the French Government over the Pragmatic Sanction of Bourges. Besides abolishing the Pragmatic Sanction, the terms of this concordat (a) gave to the king the right of presentation to bishoprics, abbeys, and priories; (b) the concordat, however, maintained the pope’s right of confirmation, devolution (i.e. the right to appoint of his own choice, if the king did not present a candidate within the required time), and the reservation of bishoprics made vacant by the death of the incumbents while at the papal court. (c) It contained also stipulations concerning the annates and other matters.
The Concordat of Vienna was the outcome of the efforts on the part of the princes of the German Empire to put an end, at least in Germany, to the conflict between Eugene IV and the Council of Basle. After some negotiations Eugene issued four Bulls (February, 1447) which together constitute the so-called Concordat of the Princes. The first was a promise of a new council; the second contained a provisional acceptance of certain decrees of the Council of Basle; and the third and fourth dealt with the details of the agreement. Eugene IV died shortly after this and Nicholas V, his successor, confirmed the four Bulls. But a certain number of the princes being still unsatisfied, Frederick III thought it time to intervene. At a diet held at Aschaffenburg, he ordered the universal recognition of Nicholas V as lawful pope, and on 17 February, 1448, the Concordat of Vienna was agreed upon by the emperor and the papal legate, Carvajal. It was confirmed by Nicholas V on 19 March of the same year, and was subsequently recognized as the ecclesiastical code for Germany. Its principal terms were the following: (a) The election of bishops was to be free from all interference, though the pope should have the right of confirmation; and for good reasons and with the advice of the cardinals he could appoint a more worthy and suitable person than the one elected. (b) In the six odd months of the year vacant canonries and non-elective benefices were at the disposal of the pope; at other times these vacancies should be filled by the ordinary. (c) The concordat also treated of the amount and payment of the annates.
The Concordat with Bohemia in 1630 was negotiated for that country between Urban VIII and the Emperor Ferdinand II; it followed on the reestablishment of the Catholic religion in Bohemia after the campaign directed by Ferdinand against the heretics. By its terms the Church renounced the goods that had been alienated during the progress of the heresy and received compensation from the revenues derived from a tax on salt which was levied for her benefit.
Eighteenth Century.—Twelve concordats were made during the eighteenth century. Five of these with Sardinia: the first, in 1727, between Pope Benedict XIII and Victor Amadeus II confirmed the right possessed by the House of Savoy of immediate nomination to ecclesiastical offices; three between Benedict XIV and King Charles Emmanuel III (1741, 1742. 1750); the fifth in 1770 between Clement XIV and Charles Emmanuel III. Two were made with Spain, one in 1737 between Clement XII and Philip V, another in 1753 between Benedict XIV and King Ferdinand VI; one with the Two Sicilies in J741, between Benedict XIV and Charles III; one with the Duchy of Milan in 1757, between Benedict XIV and the Empress Maria Teresa; one with Milan and Mantua in 1784, between Pius VI and the Emperor Joseph II; one in 1778 with Portugal; and one with Poland in 1736 between Clement XII and King Augustus III.
Nineteenth Century.—The following were the most important concordats of the nineteenth century: (I) The Concordat of 1801, to which a special article is devoted. (2) The concordat between Louis XVIII and Pius VII in 1817, intended to reestablish the Concordat of 1516, abrogate the Organic Articles, and reerect the suppressed bishoprics, but never carried out. (3) The Concordat of Bavaria in 1817, concluded for Pius VII and Maximilian Joseph by Cardinal Consalvi and Baron von Hoffelin. It dealt with the administration of church property, a new circumscription of dioceses, the erection of chapters, and especially nominations to ecclesiastical offices. An addition made by the State, and bearing a relation to the Bavarian concordat similar to that of the Organic Articles to the Concordat of 1801, gave rise to much dispute. In 1871 the Liberals tried in vain to have this concordat rejetted. (4) The Concordat with Sardinia in 1817, between Pope Pius VII and Bing Victor Emmanuel I. It reduced the number of bishoprics to three (Turin, Genoa, Vercelli), and contained regulations concerning the establishment of seminaries and chapters, etc. (5) The Concordat with Prussia in 1821, concluded with the Holy See through Prince von Hardenberg, the chancellor. King Frederick William III on August 23, 1821, recognized it as a law binding on Prussian Catholics. It contains the circumscription of the archbishoprics and bishoprics, and regulations concerning the erection of dioceses and chapters, the qualities of candidates, the taxation of episcopal and archiepiscopal churches by the Apostolic Camera, etc.
(6) The Concordat of the Upper Rhine Provinces in 1821, consisting of a papal Bull issued by Pius VII and accepted by the King of Wurtemberg, the Grand Duke of Baden, the Elector of Hesse, the Grand Duke of Hesse, the Duke of Nassau, the free city of Frankfort, the Grand Duke of Mainz, the Dukes of Saxony and Oldenburg, the Prince of Waldeck, and the Hanseatic cities, Bremen and Lubeck. By this concordat the bishoprics were divided among the provinces as follows: Freiburg im Breisgau, the metropolis, was the see for Baden; Rottenburg for Wurtemberg; Mainz for Hesse-Darmstadt; Fulda for Kurhesse and Saxe-Weimar; Limburg for Nassau; and Frankfort. (7) The Concordat with Belgium in 1827. It extended the provisions of The French Concordat of 1801 (q.v.) to Belgium. (8) The Concordat with the Upper Rhine Provinces in 1827 between Leo XII and the above-mentioned provinces. It contained agreements on the election of bishops, the processus informativus, the holding of a second election when the first had not been canonical or the person elected had not the necessary qualities, the institution of chapters, the establishment of seminaries, etc. (9) The Concordat of Hanover, agreed upon between Pius VII and George IV, King of England and of Hanover, but published August 26, 1824, by Leo XII in the Bull “Impensa Romanorum Pontificum sollicitudo”. It contained decisions concerning the erection and support of the bishopric and chapter of Hildesheim, and the suspension of the state support of the Bishopric of Osnabruck. Both of these dioceses were placed directly under the Holy See; the concordat dealt also with the election and consecration of the bishop, the processus informativus, the institution of the cathedral chapter, and taxation by the Apostolic Camera.
(10) The Concordat of Oldenburg, arranged January 5, 1830, between the Prince-Bishop of Ermeland as executor of the papal Bull “De salute animarum” and von Brandenstein, the Minister of State. It dealt with the distribution of parishes, the founding of certain canonries by the grand duke, and the establishment of a special ecclesiastical court in the Diocese of Munster. (11) A concordat with Austria, concluded August 18, 1855, by Cardinal Viale Prela and the Prince-Bishop Joseph Othmar von Rauscher. It was ratified by the emperor September 25 and by the pope November 3, but in 1870 was rejected by the Government. (12) A concordat with Austria, July 8, 1881, concerning the establishment of the hierarchy in Bosnia-Herzegovina. (13) A concordat with Russia, concluded August 3, 1847, published by Pius IX on July 3, 1848. It was concerned with the dioceses of Russia and Poland and the episcopal rights. (14) A concordat with Spain, March 16, 1851, on the support of the Catholic religion, protection of episcopal rights, circumscription of dioceses, abolishment of exempt dioceses, constitution of chapters, establishment of seminaries, the right of the monarch to appoint to ecclesiastical offices, and the right of the Church to acquire property. (15) A concordat with Spain, November 25, 1859, supplementary to the Concordat of 1851. (16) Concordat with Switzerland, March 26, 1828. The episcopal see was transferred from Basle to Soleure. (17) Concordat with Switzerland, November 7, 1845, relative to the Diocese of St. Call. (18) Concordat with the Two Sicilies, 1834, between Pope Gregory XVI and King Ferdinand 11, on the personal immunity of clerics. (19) Concordat with Sardinia 1841, also on the immunity of clerics. (20) Concordat with Tuscany, 1851, on ecclesiastical jurisdiction and the administration of church property.
(21) Concordat with San Salvador, April 22, 1862. Among other provisions, the Catholic religion was declared the State religion, but other cults permitted; education was placed under the supervision of the bishops; the censorship of books by the bishop was recognized and upheld by the State; unrestricted communication with the pope was guaranteed to clergy and laity; tithes were abolished, the expenses of worship to be defrayed by the State; the president was given the right of patronage and of nominating to all bishoprics, and of appointing to six canonries; new dioceses should be erected by the pope and new parishes by the bishop. The bishop might introduce religious orders and communities; the vicar capitular should be chosen by the chapter according to the provisions of the Council of Trent; the ecclesiastical courts were recognized only for purely spiritual matters, temporal matters to be subject to the civil jurisdiction; the right to acquire and possess property was guaranteed to the Church; the confiscation of church property and the arbitrary union or suppression of benefices by the State was forbidden; the right to tax church property was ceded to the State; the prayer for the republic was granted, also the so-called privilegia castrensia. In matters not mentioned in the concordat the ordinary discipline of the Church should be observed. (22) The concordat with Guatemala, October 7, 1852, that with Honduras, April 22, 1862, that with Nicaragua, November 2, 1861, were similar to the concordat with San Salvador. (23) Concordat with Venezuela, July 26, 1862. (24) Concordat with Ecuador, May 29, 1851, similar to the Concordat with San Salvador. (25) Concordat with Hayti and the West Indies, March 28, 1860. (26) Concordat with Colombia, 1887.
LEO A. KELLY