LAW OF GUARANTEES. - When the Italian government completed the occupation of Rome (Sept. 20, 1870), the grave problem of relations between the State and the Holy See arose. Immediately after the plebiscite of Oct. 2, the decree-law of Oct. 9, 1870, no. 5903 was issued which, after declaring that Rome and the Roman provinces became an integral part of the Kingdom of Italy (art. 1) and that the Supreme Pontiff retained the dignity, inviolability and all the personal prerogatives of a sovereign (art. 2), established, in art. 3, that by a special law the conditions would be sanctioned that were suited to guaranteeing, even by territorial franchises, the independence of the Supreme Pontiff and the free exercise of the spiritual authority of the Holy See.
Presented by the Lanza cabinet, on the reports of R. Bonghi for the Chamber of Deputies and of T. Mamiani for the Senate, the law of May 13, 1871, no. 214, commonly called the l. of the g., was born, which remained in force until Feb. 11, 1929, the date of the Lateran Pacts. The law is divided into two titles, of which the most significant articles are reported.
I. PREROGATIVES OF THE SUPREME PONTIFF AND OF THE HOLY SEE
Art. 1. The person of the Supreme Pontiff is sacred and inviolable. Art. 3. The Italian government renders to the Supreme Pontiff, within the territory of the Kingdom, sovereign honors; and maintains for him the preeminences of honor recognized for Catholic Sovereigns. The Supreme Pontiff has the faculty of keeping the customary number of guards assigned to his person and to the custody of the palaces, without prejudice to the obligations and duties arising for such guards from the laws in force in the Kingdom. Art. 4. The endowment of an annual income of 3,225,000 lire etc. is preserved in favor of the Holy See. Art. 5. The Supreme Pontiff, in addition to the endowment established in the preceding article, continues to enjoy the Apostolic Palaces of the Vatican and the Lateran, with all the buildings, gardens and lands annexed and dependent thereon, as well as the villa of Castel Gandolfo with all its appurtenances and dependencies. The said palaces, villa and annexes, as well as the Museums, the Library and the collections of art and archaeology existing therein, are inalienable, exempt from every tax or burden and from expropriation on grounds of public utility. Art. 8. It is forbidden to proceed to visits, searches or seizures of papers, documents, books and registers in the pontifical offices and congregations vested with merely spiritual attributions. Art. 11. The envoys of foreign governments to His Holiness enjoy in the Kingdom all the prerogatives and immunities that belong to diplomatic agents according to international law, etc.
II. RELATIONS OF THE STATE WITH THE CHURCH
Art. 16. The exequatur and royal placet and every other form of governmental assent for the publication and execution of acts of ecclesiastical authorities are abolished. However, until otherwise provided in the special law referred to in Art. 18, the acts of those authorities that concern the destination of ecclesiastical property and the provision of major and minor benefices remain subject to the exequatur and royal placet, except those of the city of Rome and of the suburbicarian sees. The provisions of the civil laws remain in force with respect to the creation and the modes of existence of ecclesiastical institutes and the alienation of their property. Art. 18. By a further law provision shall be made for the reorganization, preservation and administration of ecclesiastical properties in the Kingdom.
Of this law it was said that it was «a monument of juridical wisdom, and, above all, of political wisdom». An easy preliminary observation imposes itself: that one cannot legislate on the rights of a sovereign, recognized as such, without his assent; otherwise this sovereign, subject to a law that he does not recognize, and made enforceable without his acceptance, is in reality a subject. Nor did the law have the merit of the vaunted originality: all the changes that occurred in the political regime of Rome, from the end of the 18th century to 1870, were officially announced with the intention of indeed overthrowing the temporal power, but of guaranteeing the exercise of the spiritual power. The l. of the g. had already been born when, in 1810, the position of the Pope had been fixed in the incorporation of Rome into the French Empire. Similar intentions of guarantees surface in the Roman Republic.
Even from the point of view of juridical technique, the law does not have the qualities of clarity and precision that would be required of a law that is a «monument» (it suffices to observe that it speaks of the «customary» number of guards, that the juridical nature of the endowment of the annual income of 3,225,000 lire is not specified, and that it is not specified under what title the Pontiff continues to enjoy the Apostolic Palaces). It came to be maintained that the juridical obscurities were intentional, so that the law might be a monument of political wisdom in its elasticity. Meanwhile, even jurists who had no prejudices against the Church, such as C. Calisse, observed: «If the Vatican has never been occupied, it is not for this reason that it is not national territory: the occupation of it was made by law which, declaring the city of Rome annexed to the Kingdom, excepted no part of it, and repeatedly instead, with various provisions, has demonstrated that the sovereignty of the State extends also over the pontifical residence» (Dir. Eccl., Florence 1923, p. 93). Which shows that the sovereignty of the Pope was so much sui generis that not only was it not exercised over any territory, but it was not even accompanied by a palm's breadth of land that was his full and absolute property! The Italian government nevertheless understood that, in entering Rome, it was taking upon itself the responsibility of substituting itself for the territorial guarantees that it was suppressing, while it assumed the office of negatorum gestor of all Catholicism as regarded the security and dignity of the Pope. The conduct of official Italy, which, having occupied Rome, stopped on the threshold of the Vatican, was not due to the fact of having promulgated the l. of the g., but to the conditions of fact that imposed it and allowed it to feel, up to a certain point, the value of the commitment it had taken toward the powers and the Catholic peoples of the whole world. In reality, a true experiment of the guarantees was not made until the war of 1914-18, during which they proved partially ineffective, and, on a substantial point, inoperative. The voluntary enclosure that Pope Pius IX imposed upon himself was well inspired, because the diplomatic world, in the face of any offense that might befall him if he left the Vatican, would have shown itself indifferent, and perhaps would have reproached the old Pope for going to seek incidents, traversing as a pretender the streets of a city where he had been sovereign. In any case, with this enclosure the occasion began to be lacking to apply that part of the law that constituted the true burden of the Italian government, that is, the equating, even if only from the point of view of sovereign honors, of the Pope with the king. In Rome there did not live two sovereigns, as the guarantees contemplated, but one sovereign who resided at the Quirinal and the august Occupant of the Vatican, that is, in practice of a house of which he did not even have ownership. The Occupant was free to write, to speak, to receive very numerous people, to do, in short, everything that any Italian citizen could do. The law served, it is true, to permit that a diplomatic corps be accredited to the Holy See, but everyone felt that the presence and the privileges of this diplomatic corps depended and depend on a millennial tradition and on the power of foreign states, which would not have renounced their right: so that the l. of the g., in registering the duties of the Kingdom toward that diplomatic corps, could not presume to have created in those
States the corresponding right and its enforceability. So true is this that the visits to the Pope made by certain foreign sovereigns, guests of the Quirinal, took place in forms and with diplomatic functions not contemplated by the l. of the g., which did not have the power to regulate the relations between these sovereigns and the Holy See. On this point of relations with foreign sovereigns and States, which was the only one in which the part of the law relating to the prerogatives of the Supreme Pontiff had occasion to be applied, the law itself was nothing but a pleonasm. If one adds that the Pope did not collect the endowment assigned to him, one sees how even on this point the guarantees did not operate. It will be said that there was, however rarely applied, the article that punished offenses against the Pope as offenses against the king; but it must be remembered that that article existed even before 1870 in the Italian legislation that punished offenses against foreign sovereigns. The Pope, that is, lived, during the reign of that law, almost entirely under common law, internal and international, that is, two categories of law independent of and antecedent to the l. of the g. For the law to show itself operative, three events would have had to occur: 1) that the Pope had left the Vatican; 2) that he had accepted the endowment; 3) that Italy had found itself involved in a war. The first two cases did not come about; and when the body of Pius IX, on the night of July 13, 1881, was carried outside the Vatican to be buried at St. Lawrence outside the Walls, the law showed itself clamorously inoperative. When the third event occurred, with the First World War, all the good will of the two high parties served only to cushion, with perfect diplomatic style, the fact that the guarantees were not functioning, because the diplomatic agents of the Central Empires accredited to the Holy See were forced to take refuge in the Swiss Republic.
The law of guarantees, which, contrary to expectations, never exposed the Italian State to rendering those honors, disbursing those sums, and incurring those dangers with which the left had been confusedly but understandably alarmed, offered all Ministers of the Interior, including those most tied to the left itself, the advantage of justifying at one stroke, and in the name of that law, all the police measures that would have been indispensable in St. Peter's Square even in the absence of the guarantees. And those measures would have met each time with anticlerical interpellations and criticisms, had the Italian government taken them without being able to entrench itself behind a special and constant obligation. Such is the great service that the guarantees, with their mere semblance, rendered to the various ministers; such is why none of them ever thought to carry out from the government bench those proposals of abolition that he had perhaps formulated from his bench as a deputy. The law did not prevent the suppression in Rome of 134 religious communities, the abolition of theological faculties in the universities, the removal of religious instruction from secondary schools (which was also hindered in elementary schools), the disregard of the sacrament of Matrimony, the ordering of the conscription of clerics, and the secularization of charitable works and charitable congregations. And yet the period from 1871 to 1929 marks radiant years for the papacy, and — albeit with some abrupt interruptions, as in 1898 — a progressive détente in relations between State and Church. Happy effects, undoubtedly; but which, rather than being attributed to the law of guarantees, were due to the prudent and paternal conduct of the Popes, to the wisdom and political tact of the rulers, and to the conscience of Italian Catholics.