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 CONCORDAT

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CONCORDAT

liops not become his creatures' debtor, but the justice I 'f God always looks to His own propriety, and by it ho renders to himself what is His due. The author then passes to the Church and applies to her this argu- ment. For to the Church also is due that the mission "f her infallible and holy teaching power and mani- fistation of the saving quality of Christ's religion be iiccomplished in every State throughout the world. It is likewise due to the various States and their rulers t hat they have what is properly theirs. But this debt I i( ponds on the first in every relation between the ( liurch, or Holy See, and a State; for it would be ab- surd were not all things ordered according to the rela- tiidis established by the Divine wi.sdom, that is, to inniiitain religion, and to further the last end of all liiniian life. The debt which the Church pays in tend- ing to her supernatural end Ls one of justice, but of a justice which looks to the propriety of the Church her- solf, that is of the Holy See, a justice which renders to itself what is its due. In purely temporal matters the ( hurch must observe the debt of justice such as tem- pi iral matters require, for in these she is not a superior nnr is her spiritual end in question. But in all mat- ters which pertain to the supernatural end of the ( hurch, she can be under no obligation of strict debt til the State, but rather her obligation is to herself and to the spiritual purpose of her existence. And thus, L'liiorally speaking, she will be a debtor to States, ill rough compact, since she owes to herself what her w isilom and never-failing desire for the spiritual good I if mankind has shown her to be necessary.

But to present briefly what can certainly be said 1 1 II lut concordats ; concordats, as they have in fact often 1 Hill agreed upon, often impose upon the Roman Pontiff .1 true obligation of commutative justice towards the state. This happens when a concordat is concluded al loiit purely temporal matters, for instance, when the ( hurch cedes some of her temporal possessions, or \\ lion she renounces some temporal or historical right. Such was the case in the concordat concluded between Irban VHI 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 con- cordat with Colombia, in 1SS7, art. 29. But we must bear in mind that in such concordats the pope follows the common laws of contracts; therefore, if a con- tract be extorted from hiin 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 conces- -sions in the First Council of the Lateran, on the 18th of March of the year 1112, becau.se the entire council proclaimed that the concessions made to Henry were illicit — not a pririlcgium, but a prai'ilegtum, as the council expre.s.sod 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 adminis- trator, and not the owner, of ecclesiastical possessions.

In concordats the Roman pontiff often grants secu- lar 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 favour. 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 18.5.3, art. 7; in a concordat with Haiti, of 1860, art. 4; in a concordat with Austria, of 1.8.5.5, art. 2.5; with Ecu- ador, of 186:?, art. 13, etc. Now if, as the "Corpus Juris Canonici", regula juris 16 in Sexto, has it, it is

becoming that no favour granted by a sovereign should lie 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 con- tain the privileges. This follows from what we said already, and this the popes themselves affirm, some- times, indeed, in rather stringent terms. Neverthe- less, 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; there- fore, 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 con- tracts, nevertheless the power of the pope over them would not be lessened on that account. But although Palmieri is cpiite 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 con- tract, 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, Inlateral 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 in- stances, taken from the contract of buying and selling and from the engagement to marrj', to prove his as- sertion; 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 mu- tual promise of future marriage; and yet, if, for in- stance, 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 com- pleted 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 botmd to make good the damages caused to the first buyer. Therefore the two cases adduced by Palmieri prove nothing; for a bilateral contr.act renders invalid those actions merely which have the same subject-matter, and in so far only as they h.ave the same subject-matter, as the contract itself. Thus it is evident that the engagement to marry, being a bi- lateral contract, renders null and void any new espous- als, becau.se the subject-matter is the stime; but it does not render invalid a marriage with some other person, because marriage is quite another kind of con- tract. 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