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 CONCORDAT

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CONCORDAT

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, en- acted by the authority of the sovereign pontiff at the request of the ruler of that covmtry, 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 na- turally 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 con- cordats 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 in- operative, re-establish 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 particu- larly the state officials; so much so that any infringe- ment 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 as- sembled 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 con- tracting parties as to the meaning that should be as- signed to the articles agreetl 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. Conse- quently, 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 rvipture of friendly relations; and assuredly the Churcli has never been found wanting in her efforts to furtlier this end. This precaution, it should be added, luis often been taken in framing the concordats themselves. For example, in the con- cordat drawn up by Pius IX with the lOrnperor Francis Jo.seph I of Austria, in the year 1S.'>.'), the following words were ai)pended to art. '.i^r. "Slioulil, however, any difficulty arise in the future, His Holiness ami 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 Wiir- temberg, 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 con- sequently 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 authorita- tive interperter. It is plain, then, that should a dis- ciission 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 supererogatorj'; for when the Church waives any of her claims she makes a conces- sion 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 E.xtraordinary 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 pre-existing 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 h.ad 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 jvirisdiction which it cannot employ except against a subject. All, how- ever, acknowledge that the Church may lawfully and justly refuse to abide liy a concordat in all those cir- cmnstanccs which would permit or even oblige one to break a contract. Should there be question of privi- leges or indults granted by the pope in a concordat, it follows logically from what we have said that, given a just and adccpiate reason, they may validly and lieitly be resciiidetl; if there be no reason, then such an action would still be valid, though not licit. It