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 CONCORDAT

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CONCORDAT

ent 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 ec- clesiastical 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 con- cessions 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 magis- trates — an emperor, king, or president, acting alone, where the supreme authority is plenary and unre- stricted ; 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 govern- ments 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 oj Concorrlats. — To explain the nature of concordats three theories have been proposed; (a) The legal theon,-, that advanced by the regalists; (b) The compact theory, which regards a concordat as a bilateral contract; (c) The privilege theory, ac- cording to which a concordat has the force of a privi- lege 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 theorj- do not main- tain that no article in any concordat ever imposed an obligation of justice on the Roman Pontiff. On the other hand, those who defentl 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 pririleye may be applied to a concordat taken as a whole, it cannot necessarily be used of every clause in the same.

(a) The I^egalist llieory does not admit that con- cordats have the force of a bilateral contract, because the State is above the Church and, being the supreme society, cannot make such an agreomont with an in- ferior 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.

(b) 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 strenu- ously 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 assump- tion of the perfect co-ordination 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, whUe upholding the com- pact 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 ap- plied to a concordat that at times they seem to be maintaining the view of those who hold that a con- cordat is to be considered as a privilege rather than a real contract.

(c) The Privilege Theorj', according to which con- cordats, 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 impos- ing an obligation on the civil power alone, while on the part of the Clnirch they are merely privileges or con- cessions granted by the Roman Pontiffs. This view, which counts among its recent staunch defenders Car- dinal Tarquini, seems to rest upon surer grounds than the others. Before advancing the arguments in its favour, it would be well to examine the position of its opponents. It is evident that the advocates of the first, or legalist, theory buikl 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, notwithstand- ing 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 cle\er 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 ju- ridical 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 as.sertion 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 whatso- ever he can do. If, on the other hand, sp/icre be taken in the sense of "geographical extension", Hinschius is maintaining that the State may, witliin the bounds of its own territory, perpetrate any crime it chooses. To quote Hammerstein, " We have said that the phrase,