Salazar's concordat (1940): text

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 ET REMPUBLICAM SANCTI SEDEM LUSITANO
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 Church and 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 which end, His Holiness has appointed as His Plenipotentiary His Eminence The Most Reverend Reverend 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, the 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 of Justice and Religious Affairs, 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 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. The amicable relations with the Holy See will be ensured in the traditional form in which they were historically expressed, through an Apostolic Nuncio at the Portuguese Republic and an Ambassador of the Republic at the Holy See.

Article II

The Catholic Church is guaranteed free exercise of its authority: in the sphere of its competence, 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 ministry, communicate and correspond with the Prelates, the clergy and all the Catholics of Portugal, as they can 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 distributed 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 institute 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 the simple written notification to the competent authority by the Bishop of the diocese, where said organisations are based, or by his legal representative.

In case of modification or closure 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 dispose of them under the same terms as the 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 purposes, they set themselves charitable aims and aims of [social] assistance 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 demand from the faithful contributions 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

For the Catholic Church in Portugal the ownership of those assets is recognised that previously belonged to it and are still held by the State such as churches, bishops’ palaces and parish [priests’] residences with their dependencies, 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 property of the state at the permanent disposal of the Church. To the State belong 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; to the Church belong their custody and the internal administration, especially 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 authorities will always be handed over for religious ceremonies that take place in the church to which the object themselves belonged, if the church is situated in the same location where said objects are kept. They will be handed over on request by the competent ecclesiastical Authority, which is in charge of the custody 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 will always be consulted, also with regard to the amount of compensation. In any case, no act of appropriation will be carried out unless the expropriated assets are deprived of their sacred character.
 

Article VIII

Churches and the objects contained therein, seminaries or any premises for the training of clergy and all the edicts and notices posted on the door of the churches relating to the sacred ministry are exempt from any tax or contribution, general or local.

The property and ecclesiastical entities not included in the previous point, are not to be subject to taxes or special contributions.

Article IX

The residing Archbishops and Bishops, their coadjutors cum jure successionis [with the right of succession] [5] and auxiliaries, the parish priests, rectors of the seminaries, and in general the managers and superiors of institutes or associations invested with legal personality with jurisdiction in one or more provinces of the country should be Portuguese citizens.

Article X

The Holy See, before the appointment of a residing Archbishop or Bishop or a coadjutor cum jure successionis, except what is done under the Padroado  [also known under its Spanish name, Patronato] and Semi-Padroado, shall communicate the name of the person chosen to the Portuguese Government to determine whether there are objections against it of a general political nature. The silence of the Government, within thirty days of the notification, shall be interpreted as meaning that there are no objections. All the steps provided for in this article will 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 cannot 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 undertake jury duty, be members of courts or tax committees and other [roles] of that nature, considered by the Canon Law as 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 in medical units. However the Government will ensure that even in case of war the aforementioned military service is completed with the least possible damage to the cure of souls of the population of Mainland Portugal and the Portuguese Overseas.

Article XV

The use of ecclesiastical or monastic vestments by secular persons 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 punished with the same penalties as the abuse of a uniform proper to public employment. 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, schools, asylums, prisons and similar institutions of the State, of independent local and institutional and charitable organisations which have no chapel and private service, the access of the local parish and the priest appointed to those services by the competent ecclesiastic authority is free, subject to the observance of their respective regulations, except in emergencies.

Article XVIII

The Portuguese Republic guarantees pastoral care in the field for the armed forces for land, sea and air, and to that end, will organise a corps of military chaplains to be considered commissioned officers.

The Bishop to perform the functions 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 established for auxiliary services by the Military Ordinary in agreement with the Government.

The military chaplains have parochial jurisdiction over their troops and these enjoy, in 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 performance of regular religious observance on Sundays and religious holidays.

Article XX

Church associations and organisations may freely establish and maintain particular schools parallel to those of the State, subject, under law, to supervision and may, under the same terms [as state schools], be subsidised and accredited.

The religious education in schools and specific courses does not depend on authorisation of the State, and may be freely given by the Church or by its representatives.

It is freely permitted to found seminaries or any other educational establishments or of high ecclesiastical culture. Its internal system 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 ensure 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 public schools will 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 public elementary, “complementary” and middle schools for students whose parents or guardians have not made application for exemption.

In nursing homes, orphanages, official establishments and institutes of child education and of correction or reform which depend on the state, the teaching of Catholic religion will 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 Church and the teachers will be appointed by the State in agreement with it; in no case will the aforementioned teaching be administered by people whom the Church authorities have not approved as suitable.

Article XXII

The Portuguese state recognises civil effects of marriage concluded in accordance with Canonical Law, provided that the minutes of the marriage are entered in the records of the state civil authorities.

The publications of the marriage shall be made not only in their parish churches, but also in the office of the competent civil registrar.

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 conclusion is expressly authorised by the Ordinary for serious reasons of a moral kind, may be performed without the preliminary process of publication.

The priest will send a copy of the full record of the marriage within three days to the competent department of the civil registrar 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 send 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 the civil effects from the date of conclusion if the transcript is made within seven days. Otherwise it 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

In line with the essential properties of the Catholic marriage, it is understood that, by the fact of concluding a canonical marriage, the spouses waive the right to request a civil divorce, and therefore this cannot be applied by civil courts for Catholic marriages.

Article XXV

The  determination of causes for the nullity of catholic marriage and for the dispensation of confirmed but not consummated marriage is reserved for competent ecclesiastical courts and offices.

The decisions and sentences of these offices and courts, when final, are put before the Supreme Court of the Apostolic Signature for verification and will then, with the decrees of that Supreme Court, be sent by diplomatic means to the Court of Appeal of the State which has territorial jurisdiction that the executive and will be executed and mandated to be registered in the state registers, in the margin of the minutes of the marriage.

Article XXVI

The church will be divided into Overseas Portuguese dioceses and autonomous missionary districts. Within both there may be established missions by the respective prelates in agreement with the Government.

The limits of dioceses and missionary districts will be set so as to correspond as closely as possible to the administrative division.

Article XXVII

The religious life and missionary apostolate in the diocese will be provided by the residential bishop, and in missionary districts, by missionary corporations.

The recognised missionary corporations will establish in continental Portugal or adjacent islands houses of training and rest for their mission personnel. The houses of training and rest for each body are a single institution, subsidised by the budget of the Mainland.

The dioceses and missionary districts, the other church and religious institutions 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, where there is an insufficient number of Portuguese missionaries can, with the agreement of the Holy See and the Government, call upon foreign missionaries, who will be admitted the work of the Portuguese missionary organisation, provided they declare themselves to be bound by Portuguese laws and courts. This submission will be the one which is convenient to ecclesiastic persons.
 
When, within each diocese or missionary district new initiatives are made, 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, the secular clergy or religious corporations, domestic or foreign, will be fully subject to the jurisdiction of the Ordinary 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 are considered to be in force, except for [i.e., where not amended by] the Concordat of 23 June 1886 and the Concordat of 23 June 1886, and where not affected in some part by subsequent agreements, namely by the [Concordats of] 15 April 1928 and 11 April 1929 and by this Convention.

Article XXX

If any questions arise in the interpretation of the Concordat, the Holy See and the Portuguese Government will seek an amicable agreement.

Article XXXI

This Concordat, whose texts in Portuguese and Italian will be equally authentic, shall be ratified and enter into force after the instruments of ratification are exchanged, except for the part whose performance depends on complementary domestic legislation of the Portuguese Republic. The entry into force of this cannot be postponed beyond the period of two months after ratification.

Done in duplicate.

Vatican City, May 7, 1940.

L. CARD. MAGLIONE 

EDUARDO AUGUSTO MARQUES 

MARIO DE FIGUEIREDO

VASCO FRANCISCO CAETANO DE QUEVEDO

 

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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.

 

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There is an online Portuguese original and Italian copy.