Wf the papal court [...] does not give in" - wrote the Bavarian Foreign Minister Aloys von Rechberg in July 1817, when his Roman envoy had sent him the concordat he had just negotiated and initialled for ratification - "I prefer no agreement to a concordat that attacks the rights of the crown and the German Church and reincarnates outdated and outmoded abuses." The State-Church Treaty, Munich threatened to let it collapse before it had even come into being.
If the result on the Isar was judged so unfavourably, then the satisfaction on the Tiber must have been all the greater, one would think; but far from it. A quote that dates almost exactly a century after Rechberg's also reveals unease. It comes from the 109-page instruction for Giuseppe Aversa, who was sent to Bavaria as the new nuncio in 1916. In this instruction, which sets out the guidelines for papal policy, reference is made to the Concordat of 1817, which was still in force, and it is stated that the state and the church were basically on good terms ("Lo Stato e la Chiesa in Baviera andrebbero perfettamente d'accordo e gli interessi dei cattolici sarebbero intieramente garantiti..."). At the same time, criticism is barely concealed because the government does not honour the agreements conscientiously ("...se, come fa il potere ecclesiastico, anche il civile osservasse coscienziosamente i patti, sanzionati nel Concordato del 1817"). Aversa is therefore admonished to press for an improvement in conditions after the end of the war.
It is these two quotes that connect some things and separate others: the first thing that separates them is the fact that Rome seemed satisfied with the concordat itself, but not with the way it was implemented, i.e. how it was handled in practice. The Bavarian statement, on the other hand, suggests that they were dissatisfied with the treaty itself. Either way, neither of them was happy with what had come about in 1817. The question therefore arises as to why the contracting parties had concluded it in the first place and why they stuck to it for over a century. To understand this, it is first necessary to take a cursory look at the respective starting situations.
The question of necessity: the starting point for the concordat negotiations
In the second half of the 18th century, the Enlightenment, Febronianism and Josephinism had taken their toll on ecclesiastical rule as such and the papal claim to primacy in particular; Emperor Joseph II of Austria was known to be particularly attached to Enlightenment ideals. To put it simply, Josephinism was the subordination of all political and social matters to state interests, which included church policy issues. One of the Pope's reactions to the changed situation in Austria was to establish a nunciature in Munich in 1785. It was intended to act as a counterweight to the Habsburg lands and at the same time control the increasingly independent German bishops.
Their resentment was all the greater as they were trying to create room for manoeuvre vis-à-vis Rome. The powerful prince (arch)bishops of Cologne, Trier, Mainz and Salzburg protested vehemently against the establishment of the nunciature. The dispute between Rome and the leading clerics of the empire escalated when the bishops passed the Emser Punktation in 1786, in which they demanded that all papal bulls be subject to their approval before they became valid. The initiative met with little favour from Pius VI, who had an official rejection published.
These few strokes alone show that in the 18th century there was a massive conflict between Rome, the imperial church and Enlightenment movements, which had also affected and characterised the politics of the princes from the second half of the century onwards. But all this was nothing compared to the upheavals in the relationship between state and church in the wake of the French Revolution. In particular, Pius VI attacked the idea of freedom and equality in his Breve Quod Aliquantum of 10 March 1791, calling it an unsurpassable folly to decree such things ("Ma quale stoltezza maggiore può immaginarsi quanto ritenere tutti gli uomini uguali e liberi").
Of course, the antipathy between the pontiff and the revolutionaries was by no means one-sided; the latter had just overthrown the concordat of 1516, according to which every French monarch had to be Catholic. Catholicism as the state religion was abolished, reason took the place of God, and their newly created creed began with the words: "I believe in the French Republic." Later, hundreds of priests were lynched by the revolutionaries, whereupon the Pope called on the European powers to fight against the country of the so-called prima figlia.
The armed conflict began in 1792 and kept Europe in suspense for more than two decades. Pius joined the anti-revolutionary forces and paid the price as they suffered defeat after defeat at the hands of French troops. In the Italian campaign of 1796, the Papal States lost their northern Italian possessions, from which the Cisalpine Republic was formed in 1797, which was ultimately a satellite of Paris. In addition, the Grande Nation had imposed 31 million livres in war contributions on the Pope, which the Pope was unable to pay due to chronically empty coffers and which France took in the form of valuable works of art instead.
Rome was conquered in 1798 and the Roman Republic proclaimed. The occupying forces deposed the Pope and exiled him, first to Siena, later to Florence, and in 1799 they took him to France. The seriously ill man's wish to be allowed to die in the Eternal City was denied. "You can die anywhere," Napoleon is said to have said. He did so in the summer of 1799. It was the same year in which the French Republic lost its sovereignty after the aforementioned Napoleon had seized power with the coup d'état of the 18th Brumaire.
In Venice, meanwhile, Luigi Barnaba Chiaramonti had been elected Pius VII, who - unlike his predecessor - favoured negotiations with Paris. This resulted in the French Concordat of 1801, which of course forced numerous concessions from the Church, but also brought Rome the deposition of the Gallican (i.e. the revolutionary constitutionalist) bishops and the restoration of the Papal States. Nevertheless, the papacy had to endure further humiliations: Napoleon forced the Pope to Paris for his coronation in 1804, but fobbed him off with a supernumerary role by crowning himself emperor instead of leaving it to the pontiff; the Cisalpine Republic was elevated to the Kingdom of Italy in 1805, while the papal possessions remained lost for the time being; the Pope was arrested again in 1809 and deported to France in 1812.
At this point, the Papal States had already become part of France in order to, as the decree states, put an end to the "abusive combination of spiritual and temporal power". It was not until 1814, after the abdication of the dictator, that Pius moved back into Rome, and in 1815 he was given back the Papal States. The fact that this took place on the basis of the Congress of Vienna, however, only showed once again that external powers determined his fate. The Curia therefore found itself in a difficult situation when, in 1806, it entered into talks with Bavaria, which had just become a kingdom, about concluding a treaty with the state church.
However, its position was anything but secure. The Old Empire had disintegrated under the onslaught of Napoleonic troops, the Imperial Deputation had made a tabula rasa on the political map and reduced the number of imperial territories from over 300 to 34. Ecclesiastical dominions in particular had also fallen victim to this process, meaning that the prince-bishops had lost their previous secular rule. Wealth, power and secular territory were thus lost. Without money and territory, however, the episcopal office was no longer particularly attractive to the high nobility, who had often held it until then. The old imperial church with its equally potent and power-conscious prince-bishops was thus history, replaced by chief shepherds from the bourgeoisie, even of peasant origin.
From the point of view of the state, there was a danger with these upstarts that they saw their point of reference less in the state or the king and more in the Pope. But what if the pope's views and goals did not coincide with those of the government? What if the pope contradicted the king, but the chief shepherds adhered to the pontiff? Wouldn't this threaten the peace and order of society? After all, it must be taken into account that the bishops in the 19th century were something like opinion leaders whose loyalty and co-operation were important to the state.
Before describing the Bavarian church legislation, which is to be understood as a reaction to this, two other relevant factors should be mentioned briefly. The Imperial Deputation, the Napoleonic Wars and the Congress of Vienna had created a completely different country in 1815 than the one known to contemporaries in 1799. Thanks to a clever alliance policy, Bavaria had not only succeeded in rounding off its own territory, but also in enlarging it by around a quarter. The population had almost doubled between 1799 and the 1820s. Among these new Bavarians were Protestants for the first time in almost 300 years, almost exactly a quarter of all inhabitants. Although there were still three quarters Catholics, the Protestant proportion of the population was so large that their interests had to be taken into account.
A purely Catholic policy, as Bavaria had pursued for centuries, was impossible if one did not want to risk protests, riots and social unrest. And even disadvantaging the Protestants would have led to such discontent that it would have jeopardised integration into the state, as they were exclusively at home in the recently added territories of Swabia, the Palatinate and Franconia, which had yet to be integrated into the state. And a significant proportion of their inhabitants had only allowed themselves to be taken under Wittelsbach rule nolens volens anyway. Political consideration for the Protestant population was therefore all the more necessary if the monarch did not want to risk social and political upheavals that could have threatened the existence of the young kingdom.
The all-powerful Bavarian minister Maximilian von Montgelas had drawn the conclusion early on that he had to pursue a new religious policy, one that aimed to treat Roman Catholics, Lutherans and Reformed confessions equally. In 1801, for example, he introduced a tolerance
edict on the equalisation of Christian denominations was issued, thus sealing the end of Bavaria's exclusive catholicity. Two years later, in 1803, the first corresponding religious edict followed.
The Edict of 14 June 1809 marked a temporary high point in the legalisation of tolerance and equality. Among other things, it stipulated that the state had jurisdiction over the clergy, the administration of church property and the supervision of the bishops' personal and postal dealings with Rome, that the state had the right to supervise the seminaries and, above all, that the king could appoint the bishops and that no ecclesiastical regulation could be issued without the approval of the monarch (royal placet). It is easy to recognise in this the comprehensive claim to state regulation that Joseph II had previously pursued in Austria. This applied not only to the church, but also to them. This far-reaching state access to ecclesiastical matters is what is meant by the term 'Bavarian state ecclesiasticism'.
It is obvious that the pontifical goal had to be to loosen this grip and strengthen ecclesiastical autonomy. And if the Curia did not want to take out the whip - something that was occasionally mooted in the meantime, for example when the Pope wanted to hurl a bull of condemnation against Bavaria in 1804 - it had to negotiate.
A lengthy endeavour: the course of negotiations
Bavaria had already drawn up an initial draft treaty in 1802. However, this text contained far-reaching state sovereign rights, such as the right to appoint bishops. It was also dripping with Enlightenment thinking, demanding the reduction of public holidays and the retention of tolerance legislation. Considering the abolition of monasteries that took place at the same time and the fact that Bavaria had refused to grant the papal nuncio agrément since 1800, it is hardly surprising that the draft came to nothing. Concrete negotiations did not begin until 1806, after the Empire had collapsed and Bavaria had become an independent state. Negotiations were held in Regensburg, but the chances of success were slim. While Bavaria continued to pursue its state church goals, the Holy See demanded nothing less than the reintroduction of Catholicism as the sole state religion, i.e. the revocation of all laws aimed at tolerance and parity. Under these circumstances, it is not surprising that the talks were broken off a year after they began, in 1807, and were not resumed for the time being, not least because Napoleon had occupied the Papal States and imprisoned Pius VII.
A new situation only arose in 1815: the decades of war and the increasingly deplorable ecclesiastical situation - in Bavaria, the episcopal sees of Augsburg, Speyer, Bamberg, Würzburg and (Munich-)Freising were vacant, not to mention the countless unfilled parish positions - had heightened the awareness of the role and necessity of religion among those involved. The pontiff was back in Rome and the Congress of Vienna had not brought about a unified church organisation in the Empire; the members of the emerging German Confederation were therefore able to regulate their own affairs. In Bavaria, the regulations of 1809 continued to apply, regulations that Rome wanted to revise unchanged. But Munich was also keen to clarify questions of church policy. Just weeks after the Congress of Vienna, it re-accredited its envoy Casimir von Häffelin (who had left Rome in the meantime) to the Holy See, and in 1816 both sides agreed to resume the concordat negotiations.
The envoy received an initial instruction on 16 August 1816, in which Montgelas demanded above all the establishment of a regional church, i.e. the congruence of the state boundaries with those of the dioceses. An archbishop was to reside in Freising and have seven suffragans under him: Augsburg, Bamberg, Eichstätt, Speyer, Regensburg, Passau and Würzburg. The bishoprics were to receive their material security (endowment) from inalienable estates or annuities. The bishops, the cathedral chapters (including their dignitaries) and the directors of the seminaries were to be appointed by the king and had to swear an oath of allegiance to the state. The right to discipline, on the other hand, was granted to the bishops, but they were forbidden to appeal to a foreign jurisdiction. The right to propose new pastors (right of presentation) was reserved to the king, as was the right of placet, i.e. the right to approve ecclesiastical decrees before they became legally binding.
It is obvious that Rome did not agree to this. An important counter-demand concerned the diocesan division; Bamberg was brought into play as a second metropolitan see, and Kempten was also to become the episcopal see. If an agreement seemed possible here, the demands for episcopal censorship and school supervision rights as well as the restitution of the monasteries were more critical from the state's point of view. Even more difficult was the rejection of a permanent right of nomination for bishops, while the rejection of the placet and the demand for the withdrawal of all tolerance and parity laws - in effect the reintroduction of exclusive Catholicism - were completely unacceptable. On the Roman side, however, this was the ceterum censeo, just as on the Bavarian side it was the adherence to parity legislation, state church organisation and nomination law.
Who knows whether the negotiations would not have been completely deadlocked if an important domestic political event had not revitalised them. On 2 February 1817, the long all-powerful Montgelas was overthrown. He was replaced as Minister for Church Affairs by Karl Friedrich von Thürheim, who issued Häffelin with a new instruction on 9 February, which was far less forceful than its predecessors. He also insisted on the full royal right of nomination and rejected the curial claims to the re-establishment of monasteries as well as the episcopal right of censorship and school supervision, the withdrawal of the Toleration Law and the renunciation of the royal placet. However, he was more accommodating in matters of diocesan division and endowments, and in some cases also with regard to the right to fill parish posts. Thürheim's determination to reach a conclusion as quickly as possible was unmistakable and must have given the Curia the impression of a clear, if not radical, course correction.
Nevertheless, the issues mentioned remained contentious, so that the negotiations threatened to fail several times under the new minister. However, when on 13 May 1817 the envoy received a note from the new Foreign Minister Aloys von Rechberg, in addition to a further instruction from the Minister of the Interior, in which he emphasised the importance of the right of nomination, Häffelin considered this issue to be the decisive one. As he passed this on to the Curia and Cardinal Secretary of State Ercole Consalvi subsequently gave in on this point, Häffelin signed the concordat on 5 June 1817 and sent it to Munich for ratification (to take place within 40 days). While Minister of the Interior Thürheim hardly took offence at the outcome of the negotiations, the Ministers of Justice and Finance were particularly shocked, declaring the result unacceptable and their envoy outright mad. The reason for their fierce reaction is obvious: while the sovereign's approval of ecclesiastical decrees and the right of nomination for canons were missing, the principle of exclusive catholicity was included in the text, significantly as Article 1, as was the freedom of bishops.
The sometimes heated discussions that broke out in the Munich cabinet about the result cannot be recounted in detail here; in the meantime, it was even mooted that the treaty should not be ratified at all and that it would be better to remain in a state without a concordat. In the end, however, the Council of Ministers decided to postpone ratification, send a new instruction to Rome and, with the brother of the Foreign Minister, the Regensburg canon Franz Xaver von Rechberg, immediately send a special envoy. The consternation at the Vatican is easy to imagine. The negotiations, which dated back to 1802/06, had barely been concluded when Munich wanted to unravel the package again. The subsequent changes were therefore limited to a few cosmetic aspects. In the end, Munich realised that nothing more could be achieved and decided to ratify the treaty. This took place on 24 October 1817.
Conflict and calculation: motives for concluding the concordat
If one asks why the two actors approved the international treaty and brought it into force, the answer for Rome is obvious: many of its goals had been achieved, the bishops enjoyed full freedom, they also had the training of the clergy in their hands; monasteries intended for pastoral care, teaching and nursing were restituted; the state had undertaken to assume considerable financial burdens and Catholicism had once again become the exclusive denomination.
The Bavarian motives are more complex, although the state also benefited from the treaty, above all in the form of the finally realised regional church. Although there were two metropolitan seats, Munich and Bamberg, from then on the state borders coincided with those of the dioceses. This was so important because it prevented foreign bishops from exerting influence on Bavarian subjects.
Furthermore, the concordat granted the king the right to nominate Bavarian archbishops, bishops and other clergy as well as extensive appointment rights in the parishes: "No other German state in the nineteenth century had such a decisive influence on the appointment of almost all higher and many lower ecclesiastical offices" (Eberhard Weis). The state thus secured influence over the episcopate, its social composition and spiritual orientation. The underlying hope of being able to ensure a class of senior pastors loyal to the state with appropriate pre-selections is unmistakable.
On the other hand, the pills to be swallowed were bitter: according to the treaty, Bavaria was once again fully Catholic. This did not correspond to reality, nor could the monarch even consider forcing his Protestant subjects to convert. The main reason why Maximilian I Joseph nevertheless signed the Concordat is that Munich never planned to implement it to the letter. "Oh, the government should only make concessions," said Munich's special envoy Rechberg and continued: "Rome is only interested in the principle; in practice, it is happy to give in."
In other words, the Bavarian government was convinced that the Curia would be satisfied with the existence of the treaty itself, but would be accommodating when it came to its practical implementation. Munich wanted to use this to unilaterally correct disputed issues through legislation. Such legislation would be all the easier, according to the Director General of the Ministry of the Interior, Georg Friedrich von Zentner, as "all clergymen are only natives and therefore remain dependent on the government as well as through their appointment and by receiving their income from the state." This was the strategy that the incumbent Foreign Minister Aloys von Rechberg had already proposed in 1806, when he was still the Bavarian negotiator for the concordat negotiations in Regensburg. Incidentally, you don't have to look far to find the model for this policy: Napoleon had acted no differently in 1801 when he followed the Concordat with the issuing of Organic Edicts, which were diametrically opposed to parts of the former.
This is what happened in Bavaria: the year after the Concordat, Maximilian I Joseph issued a new religious edict. Its first paragraph guaranteed every inhabitant of Bavaria complete freedom of conscience. Although this calmed the Protestant population and prevented social unrest, it was bound to set the Catholic clergy off, so the royal placet was also reintroduced. This meant that no church dignitaries were allowed to make public statements without the monarch's consent. Naturally, the passage was motivated by the concern that the church might turn against the state and that the faithful might follow the bishop rather than the sovereign. In the event of unpopular positions, however, the state would refuse to give its approval, so that no announcement could be made in the first place. It is obvious that the Concordat and the Edict on Religion were diametrically opposed on both points - parity and placet. So two questions remain: firstly, what applied? And secondly, how did the contracting parties deal with the contradiction?
The former is quickly answered. The king published the Edict on Religion as Supplement II to the Constitution, whereas the Concordat was only an appendix to this supplement. Some scholars deduce from this that the Edict on Religion takes precedence because it has constitutional status, whereas the Concordat only has the force of law. Karl Hausberger, the most profound expert on the subject, casts doubt on this, but also comes to the conclusion that the government left no doubt that the Edict on Religion took precedence. So whether de jure or 'only' de facto: the concordat was subordinate to the religious edict, parity beat exclusive catholicity and royal placet beat episcopal freedom. As this contradiction, born in 1818, did not find a legal solution until 1918, this leads to the second question: why didn't Rome simply cancel the treaty after the affront?
This can only be hinted at here; the reasons lie both in the past and in the future. The past refers to the political situation of the Holy See at the beginning of the 19th century, as described above. The Pope's power was slipping away, and the ecclesiastical situation in Germany was chaotic after the end of the old imperial church. Monastic life lay fallow, parish posts and even bishop's chairs were vacant because the question of appointment rights was unresolved. The authorities responsible until 1803 often no longer existed or power rivalries prevented amicable solutions.
Moreover, it would not have reflected particularly well on the Holy See to immediately cancel the first concordat it had concluded in the post-Napoleonic era - all the less so as Bavaria had previously been a reliable partner for centuries and the concessions achieved in 1817 (above all the extensive financial benefits) were by no means to be underestimated.
Furthermore, and this points to the future, nothing was eaten as hot as it was cooked at the time. The Curia was aware that Bavaria could not forcibly convert the Protestants. And the stubbornly opposed royal placet was never handled as restrictively by the state as Rome had feared. Although this was unclear in 1818, Maximilian Joseph took a recognisable step towards his church just three years later. In the Tegernsee Declaration of September 1821, he declared that the constitutional oath of civil servants - and that included pastors, bishops and theology professors - only referred to civil conditions and did not oblige them to do anything that was contrary to the principles of the Catholic Church. And that had been the Church's great fear. The significance of this declaration does not, of course, lie in the fact that it changed anything about the constitutional situation, parity or placet. It lies in the fact that it was the king who issued it and thus signalled that he would respect the order and wishes of the Church.
However, it was not entirely voluntary, as the Pope threatened to forbid Catholic civil servants from taking the constitutional oath, which would inevitably have caused socio-political upheaval. Secondly, Rome had not yet issued the new circumscription bull, so the long-awaited goal of a national church was not yet a done deal. Just how closely everything was connected can be seen from the fact that the bull, the enthronement of the new (arch)bishops and the Tegernsee Declaration were published on one and the same day.
The state and church had already made good progress towards normalising their relations. At the latest with the accession to power of Ludwig I in 1825, his pro-Catholic policies, the monastic spring of the 1830s/40s and the restriction of state placement practices in the 1850s, it was clear that the former conflict had been contained - not in theory, but on a pragmatic level. Only the Bavarian Kulturkampf was to change this again.
