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CONCORDAT


acts, one emanating from the pope and the other from the sovereign; this was the form of the first true concordat, that of Worms, in 1122. A third form was employed in the case of the concordat of 1516 between Leo X. and Francis I. of France; a papal bull published the concordat in the form of a concession by the pope, and it was afterwards accepted and published by the king as law of the country. The shades which distinguish these three forms are not without significance, but they in no way detract from the contractual character of concordats.

Since concordats are contracts they give rise to that special mutual obligation which results from every agreement freely entered into; for a contract is binding on both parties to it. Concordats are undoubtedly conventions of a particular nature. They may make certain concessions or privileges once given without any corresponding obligation; they constitute for a given country a special ecclesiastical law; and it is thus that writers have sometimes spoken of concordats as privileges. Again, it is quite certain that the spiritual matters upon which concordats bear do not concern the two powers in the same manner and in the same degree; and in this sense concordats are not perfectly equal agreements. Finally, they do not assume the contracting parties to be totally independent, i.e. regard is had to the existence of anterior rights or duties. But with these reservations it must unhesitatingly be said that concordats are bilateral or synallagmatic contracts, from which results an equal mutual obligation for the two parties, who enter into a juridical engagement towards each other. Latterly certain Catholics have questioned this equality of the concordatory obligation, and have aroused keen discussion. According to Maurice de Bonald (Deux questions sur le concordat de 1801, Geneva, 1871), who exaggerates the view of Cardinal Tarquini (Instit. juris publ. eccl., 1862 and 1868), concordats would be pure privileges granted by the pope; the pope would not be able to enter into agreements on spiritual matters or impose restraints upon the power of his successors; and consequently he would not bind himself in any juridical sense and would be able freely to revoke concordats, just as the author of a privilege can withdraw it at his pleasure. This exaggerated argument found a certain number of supporters, several of whom nevertheless sensibly weakened it. But the best canonists, from the Roman professor De Angelis (Prael. juris canon. i. 106) onwards, and all jurists, have victoriously refuted this theory, either by insisting on the principles common to all agreements or by citing the formal text of several concordats and papal acts, which are as explicit as possible. They have thus upheld the true contractual nature of concordats and the mutual juridical obligation which results from them.

The foregoing statements must not be taken to mean that concordats are in their nature perpetual, and that they cannot be broken or denounced. They have the perpetuity of conventions which contain no time limitation; but, like every human convention, they can be denounced, in the form in use for international treaties, and for good reasons, which are summed up in the exigencies of the general good of the country. Nevertheless, there is no example of a concordat having been denounced or broken by the popes, whereas several have been denounced or broken by the civil powers, sometimes in the least diplomatic manner, as in the case of the French concordat in 1905. The rupture of the concordat at once terminates the obligations which resulted from it on both sides; but it does not break off all relation between the church and the state, since the two societies continue to coexist on the same territory. To the situation defined by concordat, however, succeeds another situation, more or less uncertain and more or less strained, in which the two powers legislate separately on mixed matters, sometimes not without provoking conflicts.

We cannot describe in detail the objects of concordatory conventions. They bear upon very varied matters,[1] and we must confine ourselves here to a brief résumé. In the first place is the official recognition by the state of the Catholic religion and its ministers. Sometimes the Catholic religion is declared to be the state religion, and at least the free and public exercise of its worship is guaranteed. Several conventions guarantee the free communication of the bishops, clergy and laity with the Holy See; and this admits of the publication and execution of apostolic letters in matters spiritual. Others define those affairs of major importance which may be or must be referred to the Holy See by appeal, or the decision of which is reserved to the Holy See. On several occasions concordats have established a new division of dioceses, and provided that future erections or divisions should be made by a common accord. Analogous provisions have been made with regard to the territorial divisions within the dioceses; parishes have been recast, and the consent of the two authorities has been required for the establishment of new parishes. As regards candidates for ecclesiastical offices, the concordats concluded with Catholic nations regularly give the sovereign the right to nominate or present to bishoprics, often also to other inferior benefices, such as canonries, important parishes and abbeys; or at least the choice of the ecclesiastical authority is submitted to the approval of the civil power. In all cases canonical institution (which confers ecclesiastical jurisdiction) is reserved to the pope or the bishops. In countries where the head of the state is not a Catholic, the bishops are regularly elected by the chapters, but the civil power has the right to strike out objectionable names from the list of candidates which is previously submitted to it. Other conventions secure the exercise of the jurisdiction of the bishops in their diocese, and determine precisely their authority over seminaries and other ecclesiastical establishments of instruction and education, as well as over public schools, so far as concerns the teaching of religion. Certain concordats deal with the orders and congregations of monks and nuns with a view to subjecting them to a certain control while securing to them the legal exercise of their activities. Ecclesiastical immunities, such as reservation of the criminal cases of the clergy, exemption from military service and other privileges, are expressly maintained in a certain number of pacts. One of the most important subjects is that of church property. An agreement is come to as to the conditions on which pious foundations are able to be made; the measure in which church property shall contribute to the public expenses is indicated; and, in the 19th century, the position of those who have acquired confiscated church property is regularized. In exchange for this surrender by the church of its ancient property the state engages to contribute to the subsistence of the ministers of public worship, or at least of certain of them.

Scholars agree in associating the earliest concordats with the celebrated contest about investitures (q.v.), which so profoundly agitated Christian Europe in the 11th and 12th centuries. The first in date is that which was concluded for England with Henry I. in 1107 by the efforts of St Anselm. The convention of Sutri of 1111 between Pope Paschal II. and the emperor Henry V. having been rejected, negotiations were resumed by Pope Calixtus II. and ended in the concordat of Worms (1122), which was confirmed in 1177 by the convention between Alexander III. and the emperor Frederick I. In this concordat a distinction was made between spiritual investiture, by the ring and pastoral staff, and lay or feudal investiture, by the sceptre. The emperor renounced investiture by ring and staff, and permitted canonical elections; the pope on his part recognized the king’s right to perform lay investiture and to assist at elections. Analogous to this convention was the concordat concluded between Nicholas IV. and the king of Portugal in 1289.

The lengthy discussions on ecclesiastical benefices in Germany ended finally in the concordat of Vienna, promulgated by Nicholas V. in 1448. Already at the council of Constance attempts had been made to reduce the excessive papal reservations and taxes in the matter of benefices, privileges which had been established under the Avignon popes and during the Great Schism; for example, Martin V. had had to make with the different nations special arrangements which were valid for five years only, and by which he renounced the revenues of vacant

benefices. The council of Basel went further: it suppressed

  1. These are arranged under thirty-five distinct heads in Nussi’s Quinquaginta conventiones de rebus ecclesiasticis (Rome, 1869).