Source: Timeline
Apr. 3, 1919 - Pacelli reports to Gasparri about the parish pastor appointments issue, stating that the new Bavarian Government under Minister President Johannes Hoffmann is undoubtedly legitimate, unlike Eisner’s, but that Hoffmann “harbors a profound aversion to religion” and is not someone the Church can expect to negotiate successfully with. English translation
Apr. 3, 1919 Pacelli to Gasparri:
Re: Presentation rights for parishes and benefices in Bavaria
Most Reverend Eminence,
By Report No. 11066 of November 28, 1918, Monsignor Auditor of this Nunciature, in my temporary absence, sent Your Most Reverend Eminence a petition addressed to the Holy Father by the Archbishop of Munich and Freising, also in the name of the other Bishops of Bavaria, concerning the presentation rights of the current Government for the parishes and the benefices (non-consistorial). In this petition the aforesaid Bishops, “to prevent ruin and greater evils,” asked “that the Apostolic See use indults (presentation rights) still valid also for the present government to tolerate its worthiness in such a way that we Bishops would designate three suitable names from which the present government would choose one, on the condition that payments to benefices and churches would be made in the future and this would be only for the time being.”
Your Eminence, in Encrypted Cable No. 169 of December 27, deigned to instruct Monsignor Schioppa to communicate to the Bavarian Bishops that “the Holy See is disposed to examine the needs of the new situation if a new Government in Bavaria is durably constituted and is willing to negotiate with it. In the meantime Bishops, in individual cases, can act on their own, in a way solely de facto, without prejudicing Canon Law principles and without compromising the Holy See, possibly by setting up temporary parish administrators.”
Monsignor Auditor conveyed the above-referenced response without delay to Archbishop Faulhaber and via him to the other Bavarian Prelates.
The difficult abnormal political conditions in Bavaria being prolonged, however, the issue has inevitably suffered new complications both in terms of law and by way of events.
In terms of law, the Bishops, while being unanimous in their intention not to cause any prejudice to canonical principles and to the rights of the Holy See, do not agree rather in the concrete issue, whether or not the presentation by the current Government can be allowed for the aforesaid parishes and benefices, and thus whether it is licit for the Bishops to propose the required list of three names to the competent Ministry. So, in fact, the Archbishop of Munich is inclined to maintain the necessity for an indult from the Holy See, while the Archbishop of Bamberg (as seen in his letter to Abp. Faulhaber dated March 20, 1919, which he shared with me) maintains that so long as the Concordat remains in effect, the Bishops can allow the presentation under discussion and he also proposes the formula to be adopted in the future for the three-name list. The excellent Archbishop von Hauck supports his opinion by a memorandum by Monsignor Hollweck, a copy of which I have the honor to send here-enclosed to Your Eminence. This learned canon lawyer begins by observing that Concordats are always concluded between the Holy See, as the supreme and universal representative of the ecclesiastical power, and the Government of the State, whatever may be the organ that has the power and represents it, whether it is that of a Monarch, or an oligarchy or a parliament that exercises its rights by means of a specified plenipotentiary, the Government of the State presents itself in every territory as a power subsisting in fact and immutable, derived from the existence of the State itself and in which the State itself exists in a concrete form; which, then, however at the moment this power is manifested and how it is exercised, is a matter irrelevant in itself. Therefore, continues Monsignor Hollweck, the Concordats remain undoubtedly in effect, since the State, with which they are concluded, exists at least substantially with its territory, however the State itself may have changed, and he cites the words of the Most Eminent Cardinal Cavagnis (Institu. Juris publ. eccles., I, 694): “… [extended Latin quotation]” Thus (adds Monsignor Hollweck) the Concordat concluded with Napoleon I continued in effect under the Bourbons, then under the Duke of Orléans, thus under the Republic, and then under Napoleon III, and finally again under the Republic until 1905. The Holy See upholds as a firm principle that changes in the form of the Government do not affect the validity and duration of the Concordat. Only the provision (according still to Monsignor Hollweck) concerning the appointment of Bishops, which in a totally exceptional way constitutes a personal privilege conceded to the King of Bavaria and only so long as he is Catholic, has ceased with the fall of the Monarchy, having lost the subject of the privilege itself. As a result of this, concludes the aforesaid canon lawyer, the Government’s right of presentation for the so-called royal parishes must be recognized without hesitation, even with regard to the current holders in fact of power in the State, and it is also up to them to decide how and by what official of the Government they want to exercise that right, it being a matter of total indifference whether it is done by the Ministry of Justice or the Ministry of Education and Cultural Affairs. It is also unimportant what religion the State official in question belongs to, since it comes into question here only insignificantly. It would certainly be convenient if it was only done by Catholics, but membership in the Jewish religion for such an official of the Bavarian Government, per se, would only be an incidental defect. As it appears to Monsignor Hollweck, therefore, the practice in effect up to now can be maintained. If however the Concordat were subsequently directly or indirectly repudiated by a separation of Church and State, then common law would automatically come into effect, with the royal patronato having disappeared, there would be the right of free appointment by the Bishops under the norms of Canon 1432 § 1.
There is no doubt that the Bavarian Concordat (still according to the above-referenced teaching of the Most Eminent Cavagnis) in its entirety remains in effect even after the recent change in the form of the Government; but it appears that it would be licit to question whether the exception admitted expressly by Monsignor Hollweck for the right to appoint to vacant Bishop seats might be valid also for the presentation right to the parishes and non-consistorial benefices. In fact, privileges that run against Canon Law must be strictly construed, and therefore are to be considered rather as personal privileges than as privileges in re; this rule obviously applies above all to the right of appointment or presentation, which is odious, because it diminishes the liberty of the Church in conferring benefices (Canons 50, 68, 1471, De Luca, De Jurepatron, disc. II nn. 3-5, 12-13). Moreover the Republic arising upon the collapse of the Monarchy could not present to the Holy See those guarantees in view of which the indult of presentation was accorded to the King of Bavaria. And that is why the Most Eminent Cardinal Cavagnis teaches (I. c., II, nn. 129 et seq.): “…[extended Latin quotation].” Nor would it be, in itself, sufficient reason to lay claim to the Bavarian Government’s continuing up to now to pay to the parishes and to the other benefices the customary subsidy, since that is owed as a partial restitution of the goods usurped already from the Church. But it seems that, although the right of presentation should not pass automatically to the new Government, but should be requested as a new pontifical concession , this must not necessarily be explicit, however, it being sufficient for this purpose that it be an implicit or tacit recognition by the Holy See. Greater difficulties have arisen in the course of events.
In the first place, the Bishops are not in agreement about their conduct. It does not seem clear to them, truly, if the above-referenced response of the Holy See would or would not mean a tolerari potest; many, including the Archbishop of Munich, are not eager to present a list of three candidates, for fear that this would mean prejudicing Canon Law principles and the rights of the Holy See itself, and they have sought up to now to make do by means of parish administrators; others, instead, have either made such presentations already, such as (according to what Abp. Faulhaber has reported) the Bishop of Speyer, or are inclined to do so, especially after Monsignor Hollweck’s memorandum, like the Archbishop of Bamberg. This diversity of conduct, already harmful in itself, especially under current circumstances, creates toward the Prelates of the first category serious discontent from the Government as well as the clergy. In fact, discontent toward the Bishops is growing especially among the clergy, since not a few priests, failing to take account of the circumstances, are attributing to the respective Bishops the delay in appointments of parish pastors; and this discontent, of which there has even been some echo in the Socialist press, is all the more grave, in that the Government subsidy for parish administrators is much less than that for parish pastors, and thus very often, because of the continuing price inflation, insufficient to live on. Finally, it cannot be denied that the simple parish administrators do not enjoy the same authority as parish pastors, either in the view of the public authorities or in the view of the faithful, and that authority is so essential in these turbulent times. For all the above-mentioned reasons, it is not surprising if many Bishops desire that the Holy See would benevolently tolerate the exercise of the right of presentation by the current Republican Government, or at least, in order to achieve uniformity in the conduct of the Bishops, would deign to declare in more explicit language its mind in this regard, naturally only for the knowledge and guidance of the Bishops themselves, and without them bringing into the discussion or compromising in any way the Holy See vis-à-vis the Government.
In the often-mentioned response to Monsignor Auditor of this Nunciature, the Holy See says it is disposed to examine the needs of the new situation, once a Government, durably constituted, wants to negotiate with It. Therefore I consider it my duty to explain subordinately to Your Eminence my humble opinion about the adoption or not of these conditions at the current time.
It is essential to recognize, first of all, that from a legal perspective the present situation is better than the past. In fact, the Government of Kurt Eisner was not only merely provisional and de facto, but also illegitimate even from a democratic point of view, in that, as clearly shown by the elections, it was not representative of the Bavarian people, but only of a small revolutionary minority. It was primarily for this reason that I did not believe I could enter into relations with it and thus courteously declined the proposal of a meeting, which, moreover, would have caused sadness and scandal among Catholics, as I had the honor to report to Your Eminence in my Respectful Report No. 10941 dated November 20, 1918. By contrast, the current Ministry presided over by Mr. Hoffmann had the approbation of the Landtag, being the legal representative of the Bavarian people, even though the non-Socialist parties, especially the Bavarian People’s Party (Center Party), were induced rather begrudgingly and under the pressure of events (cf. Reports Nos 12334 and 12335 of March 18 and 19, 1919). Keeping in mind, moreover, that any attempt to restore the monarchy would have been, at least for now, certainly doomed to failure and would have done nothing but provoke civil war, it seems obligatory to conclude that the current Government can be considered as legitimate and thus one with which it is licit to enter into official relations.
On the other hand, however, it needs to be observed:
1st) that the current Government can be called durable only in the sense that it is per se some type of legitimately constituted Ministry for so long as it remains in fact in power. But since in the current state of political and social ferment, especially in Bavaria, no one can with absolute certainty predict what will happen tomorrow, and moreover there is a universal conviction that the Hoffmann Cabinet (like in general the Majority Socialists to which he has belonged up to now) may lose ground one day and that the country is on the eve of a third revolution that will tend to establish a Councils Republic according to the Russian system.
2nd) The Hoffmann Ministry, even if it is more moderate from a social policy perspective than the Independent Socialist Kurt Eisner, nonetheless, according to the unanimous information I am receiving, harbors a profound aversion to religion, so much that it can be said that its strongest struggle, in the issue of schooling, has been the supreme ideal of its life. For the moment it is abstaining, as it seems, from hostile acts, since it feels the ground shaking too much under its feet and because the Bavarian People’s Party (Center Party), in the negotiations that preceded the formation of the current Cabinet Ministry, made it a condition that the religious question be left untouched. From such a man it is difficult to expect that he will want to deal in a satisfactory way with the Holy See to resolve the ecclesiastical situation. I must add that I did not fail to make efforts prudently to enter into relations with him in an appropriate way, especially via the head of the Bavarian Center Party, Dr. Speck, an excellent Catholic; but up to now in vain. Also, according to what the Archbishop has reported to me, when an official of the Education Ministry suggested to Hoffmann that he open relations with the Nunciature or with the Holy See precisely to systematize the issue of the parish appointments, he responded that there was no need.
3rd) Finally, there are many indications predicting that there will probably be a separation of Church and State in Germany, to which the Commission discussing the new Reich Constitution in Weimar is favorable (but in a non-hostile form). Separation, then, will take place with certainty, everyone believes, if Bolshevism prevails and the Councils Republic is established. In that case the issue of the right of presentation as to benefices by the governing authorities would fall away by itself.
That said, I leave it to Your Eminence’s superior judgment to decide whether it would be useful now to negotiate with the Bavarian Government to resolve the issue of the appointment of parish pastors, or whether it would be more expedient for now to await a solution of the current political and social crises, perhaps tolerating provisionally that the Bishops, to the extent they consider it necessary, would present the required three-candidate lists to the current Government, as was done in the past, without bringing the Holy See into the question or compromising it.
Therefore, in expectation of the venerated instructions that Your Eminence may be pleased to communicate to me, possibly by telegraph, I humbly bow to kiss the Sacred Purple ...
Source: Pacelli-Edition.de, Dokt No 252