CONCORDAT
199
CONCORDAT
'the State's sphere', can be understood to mean geo-
graphical extension. In this case, the teaching of the
Prussian canonist, Hinschius, when taken in the con-
crete, practically comes to this, — that within the terri-
tory of the Kingdom of Prussia the Prussian govern-
ment 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 won-
derful system of jurisprudence!" Moreover, it is
noteworthy that the very principle which this school
of writers assume as the basis of their argimient,
namely that no true compact can exist between a sov-
ereign power and its subordinates (whence they argue
that between the civil and the ecclesiastical authori-
ties no compact can exist entailing strict dhligations
upon the former), this fundamental principle is not
only false in itself but is contradicteil liy their own
theories. For they maintain that a strict compact
can be made between ruler and ruled, whereby the au-
thority of the former may be diminished, or even par-
tially or wholly abolished.
Those who claim that concordats are to be consid- ered 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 co-ordination 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 co-ordination or sub- ordination of .societies among themselves is to be de- termined by the co-ordination or subordination of the ends for the attainment of which said societies were instituted ; now the end the Church has to attain is su- perior to that of any other society.
The argiunents of those who hold that concordats are bilateral contracts, though only in the broad sense of the term, are based upon their language and diplo- matic form. For they argue that these clearly show that the popes themselves regarded concordats as con- cessions to which were annexed the binding force of a compact, and that in making them they intenileil to bind them.selves by them sometimes to the extent of declaring null and void whatever they themselves or their successors should do in contravention of any- thing contained in their concordats. An example in point is the concordat between Leo X and Francis I of Prance. Furthermore, it is claimed that the popes often have referred to concordats, directly or equiva- iently, as bilateral contracts, or agreements carrying with them a strict obligation. Tlius 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 po.s.se.ssed 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 obli- gation 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 everj' principle of justice and jeopardizing all other private and public contracts." Other argmnents are drawn from ex- pres.sions 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 as- sert that the common opinion among canoni.sts is also in their favour. But, with all due respect to the
learned scholars who hold and defend the opinion, the
arguinnit drawn from the form of the concordat has
hut littli' wei.clil. p'or it is not at all rare for an act to
be cli>tlu'd 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 pro-
fession, while the nature of the act is essentially
changed, since there no longer exists that voluntas am-
bxtlntnria which a last will and testament of its nature
rec)uires. Nor are the arguments drawn now and
then from solemn promises any stronger. For the
pope often calls certain concessions mentioned in con-
cordats "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 formula> 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 Pal-
mieri 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 dis-
obedient children. In such reconciliations it often
happens that a formula is used between a father and a
child still under his jurisdiction which verbally signi-
fies a bilateral contract, but which in point of fact is
employed for the sole purpose of manifesting the leni-
ency and liberalty of the father. Thirdly, very often
such formuliE 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 obliga-
tion, the nature and interpretation of which is suffi-
ciently evident from the nature and tenor of the con-
cordat 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 deroga-
tory of all future laws, v. g. "by virtue of this un-
changeable 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. Tliat the popes
admit that concordats are identical with bilateral
contracts, is not wholly true. For they are rarely
called such, the ordinarj' expre.ssion being that they
have the force of a bilateral contract — something en-
tirely different. For (as Baldi notes in his excellent
work on concordats, " De Natufa et Indole Concorda-
tonnn)all such technical phrases as, "to have the same
binding force as a treaty", "to be a species of con-
tract", "to partake of the nature of a privilege", "to
resemble a gift" — all these signify nothing else than
p.irticipation in, and not identity with, the nature of
all of these. Just as when the law declares, " The ad-
mission of postulation has the force of confirmation",
it is legitimate to conclude, "therefore admission of
postulation is not confirmation but participates in and
