LEGGE DELLE GUARENTIGIE. – When the Italian government completed the occupation of Rome (20 Sept. 1870), the grave problem of relations between the State and the Holy See arose. Immediately after the plebiscite of 2 Oct., decree-law no. 5903 of 9 Oct. 1870 was promulgated. 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), it established, in art. 3, that a special law would lay down the conditions capable of guaranteeing, including through territorial privileges, the independence of the Supreme Pontiff and the free exercise of the spiritual authority of the Holy See.
The bill, presented by the Lanza cabinet on the basis of reports by R. Bonghi for the Chamber of Deputies and T. Mamiani for the Senate, gave rise to law no. 214 of 13 May 1871, commonly called the law of guarantees, which remained in force until 11 Feb. 1929, the date of the Lateran Pacts. The law is divided into two titles, of which the most significant articles are presented.
I. PREROGATIVES OF THE SUPREME PONTIFF AND THE HOLY SEE
Art. 1. The person of the Supreme Pontiff is sacred and inviolable. Art. 3. The Italian government accords the Supreme Pontiff, within the territory of the Kingdom, sovereign honors; and maintains for him the honorary distinctions recognized for Catholic Sovereigns. The Supreme Pontiff has the right to retain 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 upon them, 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 located therein, are inalienable, exempt from every tax or charge and from expropriation for reasons of public utility. Art. 8. It is forbidden to conduct inspections, searches, or seizures of papers, documents, books, and registers in the offices and pontifical congregations vested with purely spiritual functions. Art. 11. Envoys of foreign governments accredited to His Holiness enjoy in the Kingdom all the prerogatives and immunities accorded to diplomatic agents under international law, etc.II. RELATIONS BETWEEN THE STATE AND 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 provision is made otherwise in the special law referred to in Art. 18, the acts of those authorities concerning the allocation of ecclesiastical property and the provision of major and minor benefices shall remain subject to the exequatur and royal placet, with the exception of those relating to the city of Rome and the suburban sees. The provisions of the civil laws concerning the creation and forms of existence of ecclesiastical institutions and the alienation of their property shall remain in force. Art. 18. A subsequent law shall provide for the reorganization, preservation, and administration of ecclesiastical property in the Kingdom.This law was described as a “monument of juridical wisdom, and, above all, of political wisdom.” A preliminary and obvious observation imposes itself: 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 effective without his acceptance, is in reality a subject. Nor did the law possess the virtue of the originality claimed for it: all the changes that took place in the political regime of Rome, from the end of the eighteenth century to 1870, were officially announced with the intention, indeed, of overthrowing temporal power, but of guaranteeing the exercise of spiritual power. The l. delle g. had already been born when, in 1810, the Pope’s position was established upon the incorporation of Rome into the French Empire. Similar intentions regarding guarantees had emerged in the Roman Republic.
Even from the standpoint of juridical technique, the law does not possess the clarity and precision that would be required of a “monument” of this kind (it is enough to observe that it speaks of the “customary” number of guards, that it does not specify the juridical nature of the endowment represented by the annual income of L. 3,225,000, and that it does not specify on what title the Pontiff continued to enjoy the Apostolic Palaces). It came to be argued that the juridical obscurities were intentional, so that the law might be a monument to 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 that reason not national territory: the occupation was effected by law which, declaring the city of Rome annexed to the Kingdom, exempted no part of it, and repeatedly, through various provisions, demonstrated that the sovereignty of the State extended also over the pontifical residence” (Dir. Eccl., Florence 1923, p. 93). This shows that the Pope’s sovereignty was so entirely sui generis that it was not only exercised over no territory, but was not even accompanied by a single palm of land that was his full and absolute property! The Italian government nevertheless understood that, on entering Rome, it was assuming the responsibility of replacing the territorial guarantees that it was abolishing, while undertaking the office of negatorum gestor of the whole of Catholicism with regard to the security and dignity of the Pope. The conduct of official Italy, which, after occupying Rome, halted at the threshold of the Vatican, was not due to the fact that it had promulgated the l. delle g., but to the actual circumstances that compelled it and enabled it to perceive, up to a certain point, the significance of the commitment it had undertaken toward the Catholic powers and peoples of the entire world. In reality, no genuine test of the guarantees took place until the war of 1914–18, during which they proved partially ineffective and, on one substantial point, inoperative. The voluntary enclosure imposed by Pope Pius IX upon himself was well inspired, because the diplomatic world, in the face of any offense that might have befallen him had he left the Vatican, would have shown indifference, and perhaps would have reproached the aged Pope for going in search of incidents by traversing, as a claimant, the streets of a city in which he had been sovereign. In any event, with this enclosure there began to disappear the opportunity to apply that part of the law which constituted the true burden of the Italian government, namely, the equalization of the Pope with the king, even if only from the standpoint of sovereign honors. Two sovereigns did not live in Rome, as the guarantees envisaged, but rather 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 possess the property. The Occupant was free to write, to speak, to receive very large numbers of people—in short, to do everything that any Italian citizen could do. The law did, it is true, serve to permit a diplomatic corps to be accredited to the Holy See, but everyone felt that the presence and privileges of this diplomatic corps depended, and continue to depend, upon a millennial tradition and the power of foreign states, which would not have renounced their right: thus the l. delle g., by recording the obligations of the Kingdom toward that diplomatic corps, could not presume to have created in those States the corresponding right and its enforceability. Indeed, visits to the Pope by certain foreign sovereigns, guests of the Quirinal, took place in forms and with diplomatic functions not contemplated by the l. delle g., which lacked the power to regulate relations between those sovereigns and the Holy See. In this area of relations with foreign sovereigns and States, the only area in which the part of the law relating to the prerogatives of the Supreme Pontiff had an opportunity to be applied, the law itself was no more than a pleonasm. If it is added that the Pope did not collect the endowment assigned to him, it becomes clear that the guarantees were ineffective on this point as well. It may be said that there was an article—however rarely applied—that punished offenses against the Pope in the same way as offenses against the king; but it must be remembered that this article had existed even before 1870 in Italian legislation, which punished offenses against foreign sovereigns. That is, during the period in which that law was in force, the Pope lived almost entirely under the common law, domestic and international—that is, under two categories of law independent of and anterior to the l. delle g. For the law to have proved operative, three events would have had to occur: 1) that the Pope should have left the Vatican; 2) that he should have accepted the endowment; 3) that Italy should have become involved in a war. The first two cases did not occur; and when the remains of Pius IX were carried out of the Vatican on the night of 13 July 1881 to be buried at S. Lorenzo al Verano, the law demonstrated its ineffectiveness in a highly conspicuous manner. When the third event occurred, with the First World War, all the goodwill of the two high parties served only to cloak, in impeccable diplomatic style, the fact that the guarantees did not function, 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 the guarantees, which, contrary to expectations, never exposed the Italian State to paying those honors, disbursing those sums, and facing those dangers about which the Left had become confusedly but understandably alarmed, offered all the Ministers of the Interior, including those most closely attached 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 Piazza S. Pietro even in the absence of the guarantees. These measures would have provoked interpellations and anticlerical criticism on each occasion had the Italian government adopted them without being able to shelter behind a special and permanent obligation. Here, then, was the great service that the guarantees, with their mere appearance, rendered to the various ministers; this is why none of them ever thought of implementing from the government benches the proposals for abolition that he may have formulated from his seat 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 obstructed in elementary schools), the refusal to recognize the sacrament of Marriage, the imposition of military service on clerics, or the secularization of charitable institutions and charitable congregations. And yet the period from 1871 to 1929 marks glorious years for the papacy and—with some abrupt interruptions, as in 1898—a progressive relaxation in relations between Church and State. Undoubtedly happy effects; but rather than being attributed to the law of the guarantees, they were due to the prudent and fatherly conduct of the Popes, to the wisdom and political tact of the rulers, and to the conscience of Italian Catholics.