Concordat

“ The Concordat with the German nation dealt with canonical election, appeals to Rome, annats, indulgences, dispensations, and the limitation of excommunication; the English Concordat insisted on the right of England to be represented in the college of cardinals and contained clauses dealing with indulgences and dispensations; the Concordant with Castile regarded the number of cardinals, the reservation and collation of benefices, annats, /commendams/, appeals, and indulgences ”

“ The Cardinal took care that to the credentials usually given in cases of treaties, the Pope should add a most precise command that his envoy was to consider the project of concordat which had been corrected at Rome, and hitherto rejected at Paris, not only as the basis of the future treaty, but as the concordat itself. Powers were granted, however, to make such changes as did not alter the substance of the document. ”

“ The pope on his side grants the temporal sovereign certain rights, such as that of making or controlling the appointment of dignitaries; engages to proceed in harmony with the government in the creation of dioceses or parishes; and regularizes the situation produced by the usurpation of church property &c. The great advantage of concordats—indeed their principal utility—consists in transforming necessarily unequal unilateral claims into contractual obligations analogous to those which result from an international convention. ”

“ But since the government nevertheless held firmly by the principle that the concordat, as a state contract regularly concluded between two sovereigns, could be changed only by mutual consent, the liberal majority of the house of deputies resolved to make it as harmless as possible by means of domestic legislation, and on June 11th, 1867, the deputy Herbst moved the appointment of a committee for drawing up three bills for restoring civil marriage, emancipation of schools from the church, and equality of all confessions in the eye of the law. ”

“ Convocation does not much disturb itself as to the view General Convention is likely to take of its sayings and doings, and even disestablishment might proceed without our being called into consultation. And yet the Concordat difficulty will have to be reckoned with; and the dire spectre of a possible disowning of us by our mother the Church of England will have to be laid, before any alterations in the Book of Common Prayer will be accounted by some among us perfectly safe. ”

“ Moreover, the Popes have always protested against such a separation.
France is less able than any other nation to enter upon such a proceeding, for: 1, the bonds which consecrate the union of Church and State ought to be more inviolable than the pledges of sworn treaties; 2, it was a bilateral [366] contract which the State abrogated by its own sole authority; 3, this injury becomes all the greater when one considers that the State has effected this abrogation of the Concordat without any preliminary announcement or notification. ”

“ 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. ”

“ And reciprocally, whatever may be the absolute rights of the ecclesiastical society over the appointment of its dignitaries, the administration of its property, and the government of its adherents, the exercise of these rights is limited and restricted by the stable engagements and concessions of the concordatory pact, which bind the head of the church with regard to the nations. ”

“ 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. ”

“ And being by virtue of their charge the masters, if they consent to sign covenants, Concordats, it is only as matters of form; they do not observe them, and never yield to anything but force, always reserving the principle of their absolute sovereignty which must some day finally triumph. ”

“ The actual equality of Protestants and Catholics which the pope had not been able to allow in the concordat, was now in 1880 proclaimed by the princes as the law of the land. Papal and episcopal indulgences had to receive approval before their publication; provincial and diocesan synods could be held only with approval of the government and in presence of the commissioners of the prince; taxes could not be imposed by any ecclesiastical court; appeal could be made to the civil court against abuse of spiritual power ”

“ By virtue of the Concordat and by consent of the Pope, the First Consul acquires the same rights and privileges in relation to the Holy See as the old government,"5172 that is to say the same exclusive right to nominate future French cardinals and to have as many as before in the sacred college, the same right to exclude in the sacred conclave, the same faculty of being the unique dispenser in France of high ecclesiastical places and the prerogative of appointing all the bishops and archbishops on French territory. ”

“ The Catholic religion, as that of the majority, was again taken under the special protection of the State, the salaries of the clergy again paid by the nation, and the Papal authority over the Church again recognized within well-defined limits; while full toleration of other religions was maintained. This was the effect of the Concordat between the French Republic and the Pope. It is the judgment of a high authority that the nation, if it had been consulted, would have pronounced against the change. ”

“ Complaints concerning violations of the constitutional rights of citizens, and complaints of private citizens on account of the violation of concordats or treaties. Conflicts of administration are reserved and are to be settled in a manner prescribed by federal legislation. In all the forementioned cases the Federal Tribunal shall apply the laws passed by the Federal Assembly, and those resolutions which have a general import. ”

“ John Gafney, after administering this see for thirty-five years, taking his place among the assembled fathers in the provincial synod of Armagh.
P. F. M.
CARDINAL CONSALVI AND NAPOLEON BONAPARTE.
The concordat signed at Paris on the 15th July, 1801, between Pius VII. and Napoleon, is one of the most important facts of modern history. The magnitude of its results may best be learned from the contrast between the present state of religion in France and that which existed during, and for long after, the Revolution. ”

“ The Secular power has authority to rescind, declare, and render null, solemn Conventions, commonly called Concordats, entered into with the Apostolic See, regarding the use of rights appertaining to ecclesiastical immunity, without the consent of the Apostolic See, and even in spite of its protest. ”

“ It continued to oppose the despotism of the Pope, but it did so rather from the standpoint of a narrow and nationalist Gallicanism, based largely upon the counter-despotism of the King. This selfish policy attained in Major's own time its fitting result and reward. The despotic King and despotic Pope found it convenient for their interests to partition between them the 'liberties' of the Gallican Church; and by the Concordat of Bologna in 1516, Leo gained a huge revenue from the ecclesiastical endowments of France, while Francis usurped the right of nominating all its bishops. ”

“ No state shall enter into any treaty, alliance, or confederation; grant letters of marque or reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. [1] § 1349. The prohibition against treaties, alliances, and confederations, constituted a part of the articles of confederation, [2] and was from thence transferred in substance into the constitution. ”

“ The analogy between treaty-making and legislation logics, is striking when a congress agrees upon general principles which are afterwards accepted by a large number of states, as, for instance, in the case of the Geneva convention for improving the treatment of the wounded. Many political treaties containing "transitory" conventions, with reference to recognition, boundary, or cession, become, as it were, the title-deeds of the nations to which they relate. 1 But the closest analogy of a treaty is to. a contract in private law, as will appear from the immediately following paragraphs. ”

“ But the Constitution plainly had two very practical objectives in view in conditioning agreement by States upon consent of Congress. For only Congress is the appropriate organ for determining what arrangements between States might fall within the prohibited class of 'Treaty, Alliance, or Confederation', and what arrangements come within the permissive class of 'Agreement or Compact.' But even the permissive agreements may affect the interests of States other than those parties to the agreement: the national, and not merely a regional, interest may be involved. ”

“ A Treaty is a bargain between nations binding in good faith; and what makes a bargain? The assent of the contracting parties. We allow that the Treaty power is not in this House; this House has no share in contracting, and is not a party; of consequence, the President and Senate alone may make a Treaty that is binding in good faith. We claim, however, say the gentlemen, a right to judge of the expediency of Treaties—that is the constitutional province of our discretion. Be it so—what follows? Treaties when adjudged by us to be inexpedient, fall to the ground, and the public faith is not hurt. ”

“ A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe a rule by which the rights of the private [p599] citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute. ”

“ Treaties and Conventions with foreign powers shall be recorded at the King's Council, and signed by the King in his Council, with the advice of the majority of his Ministers, who are bound to countersign it before the treaty can take effect. It shall then become the supreme law of the State, and the Ministers who shall have signed it shall be all and each responsible therefor.
No treaty of commerce can take place without the previous consent of the Minister of Commerce, which shall be given and confirmed by his signature before the treaty shall be submitted to the Council. ”

“ A "personal treaty," having reference to dynastic interests, is contrasted with a "real treaty," which binds the nation irrespectively of constitutional changes; treaties creating outstanding obligations are opposed to "transitory conventions," e.g., for cession of territory, recognition of independence, and the like, which operate irrevocably once for all, leaving nothing more to be done by the contracting parties; and treaties in the nature of a definite transaction (Rechtsgeschäft) are opposed to those which aim at establishing a general rule of conduct (Rechtssatz) . ”

“ Unlike a contract in private law, a treaty, even though made in pursuance of a full power, is, according to modern views, of no effect till it is ratified. (5) No special form is necessary for a treaty, which in theory may be made without writing. It need not even appear on the face of it to be a contract between the parties, but may take the form of a joint declaration, or of an exchange of notes. Latin was at one time the language usually employed in treaties, and con tinued to be so employed to a late date by the emperor and tl;3 pope. ”

“ It was well said by the editor of a Collection of Treaties published in 1772 that to a statesman a Collection of Treaties is a code or body of Law, and to him is of the same use as is a Collection of the Statutes to the lawyer. [2] But their historical place and value must never be lost to sight. They are to be viewed as marking points in the movement of thought. [3]
The relation of a Treaty to 'the Law' may well give rise to doubt. ”

“ I want you to take this talk in a hurry, that the Comanches, Kiaways, and other red brothers may come to the council at the time spoken of. After the treaty is made an agent will stay at the trading-house near the treaty-ground. The agent will send me your talk in writing, and if any mischief is done to your people, you will not get mad till you hear from me, and I will have the men punished that did wrong. If the young men of your nations do bad, or say that they will not walk in your counsel, you must punish them, or it will bring trouble upon your women and children. ”

“ From 1781 to this time, every treaty of whatever kind, every compact between state and state, states and the United States, articles of capitulation, or even articles of agreement, have been held to effect by their own force, every stipulation which declares, that a thing 'shall be' done, or not done; that thenceforth the thing is done, every thing that 'shall not' be done, if done previously, is repealed and nullified. ”

“ And the King's Majesty with advice and consent foresaid, doth Declare, That the League and Covenant, and all Treaties following thereupon, and Acts or Deeds that do, or may relate thereto, are not obligatory, nor do infer any obligation upon this Kingdom, or the Subjects thereof, to meddle or interpose by Armes, or any seditious way, in any thing concerning the Religion and Government of the Churches of England and Ireland, or in what may concern the Administration of His Majesties Government there. ”