%%rimage[Salazar's concordat (1940): text]=X1361_727_PTSalazarLogo_t55.jpg Salazar's concordat (1940): text
In this secretly signed concordat even the dictator Salazar was reluctant to cement Catholic religion classes in state schools and to outlaw divorce for Catholics. However, on both points the Vatican prevailed. Thus Article 24 denied Catholics their civil right to a divorce until democracy was restored.
The concordat was signed in secret in the Vatican in 1940 and only announced afterwards, a procedure repeated by Portugal's democratically-elected President Barroso in 2004. [1]
Although Salazar died in 1968, his regime continued until 1974. Thus the Canon Law marriage stipulated in Article 24 outlived him and it continued to prevent Catholics from obtaining a civil divorce until 1975 when a Protocol (implemented the next year) finally allowed it. This Protocol states:
Article 24 of the Concordat of May 7, 1940 is amended as follows:
By entering into Catholic marriage, the spouses thereby assume before the Church a commitment to adhere to the Canonical norms that regulate it and, in particular, to abide by its essential properties. The Holy See, while reaffirming the doctrine of the Catholic Church concerning the indissolubility of the marriage bond, reminds spouses who have contracted a Canonical marriage of the grave duty incumbent upon them, not to exercise the option to seek civil divorce. [2]
Inter Sanctam Sedem et Rempublicam Lusitanam
sollemnes conventiones
Solemn Convention
between the Holy See and the Portuguese Republic
[Signed 7 May 1940]
In the name of the Most Holy Trinity
His Holiness the Supreme Pontiff Pope Pius XII and His Excellency the President of the Portuguese Republic, wishing to regulate, by mutual agreement and in a stable manner, the legal status of the Catholic Church in Portugal, for peace and the greater good of the Church and the State,
have decided to conclude between themselves a solemn Convention which recognises and guarantees the freedom of the Church and protects the legitimate interests of the Portuguese Nation, including what regards the Catholic Missions and the Patronage of the Orient. [3]
To this end, His Holiness has appointed as His Plenipotentiary: His Most Reverend Eminence, Cardinal Luigi Maglione, His Secretary of State,
and the President of the Portuguese Republic has appointed as His Plenipotentiaries:
His Excellency, General Eduardo Augusto Marques, former Colonial Minister, President of the Corporative Chamber, Grand Cross of the Military Order of Christ, Military Order of Christ, Order of St. Benedict of Aviz, and Order of the Colonial Empire;
His Excellency, Dr. Mario de Figueiredo, former Minister for Justice and Religions, Professor and Director of the Faculty of Law of the University of Coimbra, Member of Parliament and Grand Cross of the Military Order of St. James of the Sword;
His Excellency, Dr. Vasco Francisco Caetano de Quevedo, Special Envoy and Minister Plenipotentiary to the Holy See, Grand Cross of the Military Order of Christ and Knight of the Grand Cross of the Order of St. Gregory the Great;
who, having exchanged their respective full powers [4] and found [them to be] in proper and due form, have agreed on the following articles:
Article I
The Portuguese Republic recognises the legal personality of the Catholic Church. Amicable relations with the Holy See will be ensured in the traditional form in which they were historically expressed, through an Apostolic Nuncio to the Portuguese Republic and an Ambassador of the Republic t the Holy See.
Article II
The Catholic Church is guaranteed free exercise of its authority: within its sphere of competence, it is entitled to exercise its prerogatives and jurisdiction with no impediment whatsoever
Thus the Holy See may freely publish any directive relative to the government of the Church and in all that relates to its pastoral mission, communicate and correspond with the Prelates, the clergy and all the Catholics of Portugal, just as they can [communicate] with the Holy See, without the need for prior approval of the State, for bulls and any instructions or directives of the Holy See to be published and circulated within the Country.
A similar right is granted to the Ordinaries and to the other ecclesiastical Authorities relative to their clergy and their faithful.
Article III
The Catholic Church in Portugal may organise itself freely in accordance with the norms of Canon Law, and thereby form associations or organisations whose legal personality is recognised by the state.
The State's recognition of the legal personality of associations, corporations or religious institutes founded in accordance with Canon Law, follows from a clear written notification to the competent [state] authority by the Bishop of the diocese, where said organisations are based, or by his legitimate representative.
In case of modification or extinction of the above organisations, the same procedure will be followed, with the same effect.
Article IV
The associations or organisations which are referred to in the previous article, may purchase assets and make use of them under the same terms as other perpetual moral persons, in compliance with current legislation, and they [may] freely govern themselves under the supervision and control of the competent ecclesiastical Authority. If, however, in addition to religious aims, they set themselves charitable aims and aims of [social] assistance, [then] in the execution of statutory duties or conditional bequests, legacies or donations, they will remain, in respect of that [i.e. charitable] part, subject to the conditions established by the Portuguese law for such associations or corporations, which will be enforced through the competent Ordinary, and which may never be more onerous than the conditions established for legal persons of the same nature.
Article V
The Church may freely receive and take collections from the faithful and any sum intended for the achievement of its purposes, in particular inside and at the door of churches, as well as the buildings and places belonging to it.
Article VI
Recognition is given to the ownership by the Catholic Church of Portugal of those assets that previously belonged to it and are still held by the State, such as churches, bishops’ palaces and parish [priests’] residences with their adjacent buildings, seminaries with annexes, houses of religious institutes, paraments, vestments and other objects used for worship and the Catholic religion, except those that are currently in public use or listed as “national monuments” or as “buildings of public interest”.
The assets [mentioned] in the previous paragraph that are not currently held by the State may be transferred to the Church by their owners without any encumbrance of a fiscal nature, provided that the conveyance takes place within six months from the exchange of ratification [instruments] of the present Concordat.
The properties classified as “national monuments” and as “of public interest” or which become so within five years from the exchange of [instruments of] ratification, will remain the property of the state at the permanent disposal of the Church. The State is responsible for the maintenance, repair and restoration of said properties in accordance with what will be arranged in agreement with the ecclesiastical Authority, in order to avoid disruptions to religious services; the Church is responsible for the their protection and internal administration, in particular with regard to the time of visits, which may be regulated by the intervention of an official appointed by the State.
Objects used for worship that are held by any museum of the State or of local or institutional autarchies [self-regulating state bodies] shall always be handed over for religious ceremonies that take place in the church to which the objects themselves belonged, if the church is situated in the same location where said objects are kept. They will be handed over on request of the competent ecclesiastical Authority, which is responsible for the protection of the objects given, under its responsibility as trustee.
Article VII
No church, building, dependency or object for Catholic worship may be destroyed or have its use changed by the State, unless by prior agreement with the competent ecclesiastical Authority, or for reason of urgent public need, such as war, fire or flood.
In case of expropriation for public use, the respective ecclesiastical Authority shall always be consulted, also with regard to the amount of compensation. In any case, no act of appropriation shall be carried out unless the expropriated assets are deprived of their sacred character.
Article VIII
[All] Churches and objects contained therein, seminaries or any other establishments for the education of clergy, as well as the edicts and notices posted on church doors, relating to the sacred ministry, shall be exempt from any levy or contribution, general or local. Furthermore no levy or other contribution shall apply to ecclesiastics for the exercise of their spiritual office.
Ecclesiastical bodies and assets, not included in the previous paragraph, shall not be subjected to special levies or contributions.
Article IX
[All] resident Archbishops and Bishops, their Coadjutors cum jure successionis [with the right of succession] [5] and their Auxiliaries, the parish priests, the rectors of the seminaries and in general the directors and superiors of institutes or associations having legal personality with jurisdiction in one or more provinces of the Country, shall be Portuguese citizens.
Article X
The Holy See, before proceeding to appoint a resident Archbishop or Bishop or a Coadjutor cum jure successionis, except what is done under the Patronage [Padroado, also known under its Spanish name, Patronato] and Semi-Patronage [Semi-Padroado], shall communicate the name of the person chosen to the Portuguese Government in order to find out if there are objections against him of a general political nature. Silence from the Government for thirty days after said notification will be interpreted as to mean that there are no objections. All matters covered by this article shall be kept secret.
Article Xl
In the exercise of their ministry, the ecclesiastics shall enjoy the protection of the State, in the same manner as public authorities.
Article XII
Ecclesiastics may not be questioned by magistrates or other authorities about facts and matters of which they have knowledge by reason of their sacred ministry.
Article XIII
Ecclesiastics are exempt from the obligation to become jurors, members of courts or tax commissions and other [roles] of similar nature, considered by Canon Law to be incompatible with the clerical state.
Article XIV
Military service will be provided by priests and clerics in the form of pastoral care to the armed forces and, in time of war, also to the medical units. However the Government shall ensure that, even in case of war, the aforementioned military service is completed with the least possible prejudice to the care of the souls of the people of the Metropole [Mainland Portugal] and the Overseas Portuguese [in the colonies].
Article XV
The use of ecclesiastical or monastic vestments by laymen or by ecclesiastical or monastic persons who have been forbidden to do so by the competent ecclesiastical Authorities and officially communicated to the State authorities, is to be punished with the same penalties as [those for] the unlawful use of a uniform proper to public functions. It is punishable under the same terms as the abuse of ecclesiastical jurisdiction and functions.
Article XVI
The Catholic Church is guaranteed the free exercise of all acts of worship, private or public, without prejudice to the requirements of police and traffic.
Article XVII
To ensure pastoral care in hospitals, shelters, colleges, asylums, prisons and other similar establishments of the State, [and in those] of local and institutional autarchies and Misericórdias [lay confraternities for the assistance of sick people] which do not have a chapel and private service for this purpose, the local parish priest or the priest appointed by the competent ecclesiastical Authority [to provide] such services shall have free access [to said establishments], without prejudice to the observance of their respective regulations, except in case of emergency.
Article XVIII
The Portuguese Republic shall guarantee pastoral care, in time of war, to the armed forces of land, sea and air and to that end shall organise a corps of military chaplains, which will be considered commissioned officers.
The Bishop who exercises the function of the Military Ordinary will be appointed by the Holy See with the agreement of the Government.
For the colonial expeditions a Bishop may be appointed as Military Ordinary who has his headquarters in the respective colony.
The Military Ordinary may, in agreement with the Government, appoint a Vicar General.
The military chaplains will be appointed from among the priests recognised as suitable for the auxiliary services by the Military Ordinary in agreement with the Government.
The military chaplains have parochial jurisdiction over their troops and these enjoy, with regard to their religious duties, the privileges and exemptions granted by Canon Law.
Article XIX
The State shall make every effort to make possible for all Catholics who are in its service or are members of its organisations, the regular fulfilment of their religious duties on Sundays and [religious] holidays.
Article XX
Church associations and organisations may freely establish and maintain their particular schools parallel to those of the State, subject, under the general law, to supervision and may, under the same terms [as state schools], be subsidised and accredited.
The religious education in schools and particular courses does not depend on authorisation of the State, and may be freely administered by the ecclesiastical Authority or by its nominees.
Seminaries or any other establishments for formation or high ecclesiastical culture may be freely established. Their internal organisation is not subject to supervision by the state. The state should, however, be notified about the books used for disciplines which are not philosophical or theological. The competent ecclesiastical authorities shall take care that the teaching of particular subjects, such as history, takes into account legitimate patriotic Portuguese feelings.
Article XXI
The instruction given by the State in state schools shall be guided by the principles of Christian doctrine and morals, traditional for the Nation. Consequently the teaching of the Catholic religion and morality will be provided in elementary, “complementary” and middle state schools for pupils whose parents or guardians have not made application for exemption.
In nursing homes, orphanages, official establishments and institutes for the education, correction or reform of minors run by the State, the teaching of Catholic religion shall therefore be administered by the state and the practice of its precepts ensured.
The texts for the teaching of Catholic religion must be approved by the ecclesiastical Authorities and the teachers shall be appointed by the State in agreement with it; in no case will the aforementioned teaching be administered by people whom the ecclesiastical Authorities have not approved as suitable.
Article XXII
The Portuguese State recognises civil effects of marriage celebrated in accordance with Canon Law, provided that the minutes of the marriage are transcribed in the records of the competent civil registration of the state.
The publications of the marriage shall be made not only in their parish churches, but also in the office of the competent civil registration.
The marriages in articulo mortis [at the point of death, i.e., a marriage that is performed when either the bride or groom is at the point of death and unable to sign a marriage license application or certificate] at an impending birth, or whose immediate celebration is expressly authorised by the Ordinary expressly for serious reasons of a moral kind, may be performed without the preliminary process of publication.
The parish priest shall submit a full copy of the record of the marriage within three days to the competent department of the civil registry to be transcribed. The transcript must be made within two days and reported by the respective state official to the parish priest by the day after the one on which it was made, with a notation of the date.
The parish priest who, without serious reasons, fails to submit the copy of the record on time, incurs the penalties of qualified disobedience [desobediência qualificada] and the state official who does not make the transcript arrive on time incurs penalties under the civil service regulations [lei orgânica do service].
Article XXIII
The marriage produces all of the civil effects from the date of celebration if the transcript is made within seven days. If it is not, it [the marriage] only takes effect relative to third parties, beginning on the date of the transcription.
The transcription is not prevented by the death of one or both spouses.
Article XXIV
[original version of 7 May 1940]
In keeping with the essential properties of Catholic marriage, it is understood that, by the fact of celebrating a canonical marriage, the spouses waive the civil right to request a divorce, and therefore this cannot be applied by civil courts for Catholic marriages.
[as modified by article I of the Additional Protocol of 15 February 1975]
By the very act of celebrating a Catholic marriage, the spouses assume, before the Church, the commitment to comply with the canonical rules that regulate it, and in particular to respect its essential properties.
The Holy See, while reaffirming the doctrine of the Catholic Church regarding the indissolubility of the bond of matrimony, reminds the spouses who have contracted canonical marriage of the serious duty incumbent on them not to take advantage of the civil right to request a divorce.
Article XXV
The determination of causes [6] for the nullity of Catholic marriage and for the dispensation of celebrated but not consummated marriage is reserved for competent ecclesiastical courts and offices.
The decisions and verdicts of these offices and courts, when they have become final, shall be brought before the Supreme Tribunal of the Apostolic Signature for verification and shall then be submitted by diplomatic means, with the pertinent decrees of the Supreme Tribunal of the Signatura, to the Court of Appeal of the State which has territorial jurisdiction which shall execute them and mandate that they to be recorded at the registry office alongside the marriage deed.
Article XXVI
The ecclesiastical division of the Overseas Portuguese [i.e., colonies] will be into dioceses and autonomous missionary districts. Within the former as well as the latter missionary directorates may be established by their respective Prelates, in agreement with the Government.
The borders of the dioceses and missionary districts will be defined so as to correspond as closely as possible to the administrative division.
Article XXVII
The religious life and missionary apostolate in the dioceses will be ensured by the respective resident Bishop, and in missionary districts, by missionary corporations.
The recognised missionary corporations will establish in continental Portugal or adjacent islands houses of formation [training] and rest for their mission personnel. The houses of formation and rest for each corporation constitute a single institution, subsidised from the budget of the Metropole [mainland Portugal].
The dioceses and missionary districts, the other ecclesiastical entities and religious institutes of the colonies, and the missionary institutes, male and female, which are established in continental Portugal and adjacent islands are recognised as having legal personality.
The dioceses and missionary districts will be subsidised by the state.
Article XXVIII
The Ordinaries of dioceses and missionary districts, whenever there are not enough Portuguese missionaries can, with the agreement of the Holy See and the Government, call upon foreign missionaries, who will be admitted the missions of the Portuguese missionary organisation, provided they declare themselves to be bound by Portuguese laws and courts. This submission will be such that it is appropriate to ecclesiastics.
When, within each diocese or missionary district new missionary directorates are established, whenever the appointment of their respective directors cannot be filled by Portuguese citizens, [the appointment] shall be made only after consulting the Portuguese Government. and in the appointment of its directors a Portuguese citizen cannot be named, this will only be done after consultation with the Portuguese government.
All missionaries, of the secular clergy or religious corporations, nationals as well as foreigners, will be fully subject to the ordinary jurisdiction of the Prelates of the dioceses and missionary districts, with regard to missionary work.
Article XXIX
The provisions of the Concordat of 21 February 1857, reaffirmed by the Concordat of 13 June 1886, and those of the Concordat of 23 June 1886, both the former and the latter in those parts not affected by subsequent Accords, namely that one of 15 April 1928 and 11 April 1929, and by this Convention, are considered to be in force.
Article XXX
If any questions arise in the interpretation of the Concordat, the Holy See and the Portuguese Government will seek by common agreement an amicable solution.
Article XXXI
The present Concordat, whose texts in Portuguese and Italian will be equally authentic, shall be ratified and enter into force as soon as the instruments of ratification are exchanged, except for the part whose execution depends on complementary domestic legislation of the Portuguese Republic. The entry into force of this [part] cannot be postponed beyond the period of two months after ratification.
Done in duplicate.
Vatican City, May 7, 1940.
MARIO DE FIGUEIREDO
VASCO FRANCISCO CAETANO DE QUEVEDO
Notes
1. Roseli Fischmann, "Omissão da mídia sobre o acordo com o Vaticano", Observatorio da Imprensa, 18 November 2008. http://www.observatoriodaimprensa.com.br/artigos.asp?cod=512JDB002
2. "Protocollo Addizionale al Concordato fra la Santa Sede e la Repubblica Portoghese del 7 Maggio 1940", 15 February 1975. http://host.uniroma3.it/progetti/cedir/cedir/Agg2005-6.htm
3. The Patronage of the Orient is the monopoly license granted by the Pope in Rome to the Portuguese Church to evangelise the Far East countries using Macao and Goa as bases. The Law of Separation between Church and State, proclaimed in the early days of the Portuguese First Republic, 20 April 1911, was never enforced in the overseas Patronage of the Orient.
4. In international law a Head of State, Head of Government or Foreign Minister may sign a treaty in his or her own right. Any other person signing a treaty on behalf of a State needs to produce the authority from one of the three above to do so, which is known as 'Full Powers'.
5. Prior to the reform of the Code of Canon Law in 1983, a distinction was made between coadjutor (assistant) bishops cum jure successionis and those without ― that is, some coadjutors were appointed with the automatic right of succession, and others without such a right.
6. Translator's note: “Cognizione di causa” has two meanings, either or both of which would seem to fit the context of Article XXV. Accorfing to the Garzanti dictionary it can mean “the ascertainment of facts and circumstances that concern a civil or criminal law case, in order to institute the proceedings” and in a wider sense “competence [of a court] to judge”.
Sources:
Inter Sanctam Sedem et Rempublicam Lusitanam
sollemnes conventiones
Concordato tra la Santa Sede e la Repubblica Portoghese (7 maggio 1940)
http://www.vatican.va/roman_curia/secretariat_state/archivio/documents/rc_seg-st_19400507_santa-sede-portogallo_po.html
Inter Sanctam Sedem et Rempublicam Lusitanam
sollemnes conventiones
Concordata entre a Santa Sé e a República Portuguesa (7 maio 1940)
http://host.uniroma3.it/progetti/cedir/cedir/Lex-doc/PT_Conc-40.zip
Translated from the Italian version, with its defects amended by reference to the Portuguese original, by Giulio Portioli
