Law of Guarantees
The Law of Guarantees, sometimes also called the Law of Papal Guarantees, was the name given to the law passed by the senate and chamber of the Italian parliament, 13 May, 1871, concerning the prerogatives of the Holy See, and the relations between State and Church in the Kingdom of Italy. It guaranteed sovereign prerogatives to the Roman Pontiff, who had been deprived of the territory of the papal states. The popes refused to accept the law, as it was enacted by a foreign government and could therefore be revoked at will, leaving the popes without a full claim to sovereign status. In response, the popes declared themselves prisoners of the Vatican. The ensuing Roman Question was not resolved until the Lateran Pacts of 1929.
Origins of the law
For a time, the most serious question that confronted Italy after 1870 was the hostility between Church and State. The Italian government, which had declared that it entered Rome to safeguard the person of the Holy Father, and which, in the very act of invading pontifical territory, had assured the people that the independence of the Holy See would remain inviolate, felt obliged to secure in a legal and solemn way the executions of its aforesaid intention. It owed no less to its own Catholic subjects, and to Catholics the world over. Two ways were open to it for keeping its promise. It might call an international congress of all nations having a very large Catholic population, or it might pass a domestic Italian law.In the aforesaid circular of the minister Visconti-Venosta, addressed to all the powers, the former way was hinted at. But the unconcern of Catholic governments over the events that ended in the occupation of Rome put an end to all thought of consulting them; and so a domestic law was passed. Before its adoption, however, Pope Pius IX, by a letter of his cardinal vicar, dated 2 March, 1871, protested against the law "in which", he said, "it was no easy task to decide whether absurdity, cunning, or contempt played the largest part".
Provisions
Parliament passed in 1871 the famous Law of Papal Guarantees, which proposed to solve the question on Cavour's principle of a free church in a free state. The pope was declared an independent sovereign and, as such, was entitled to receive and to send ambassadors and to conduct diplomatic affairs without any interference from the Italian government. His territory, however, was limited to the district in Rome known as the "Leonine City", over which floated the Papal flag, and into which no Italian officer could enter without permission from the Papal authorities. The palaces, churches, museums, offices, villas, and gardens in the Leonince City were to be exempt from taxation, and the Papal government was to have free use of the Italian railway, postal, and telegraph systems. The church was guaranteed full freedom of self-government, and the old interference by the state in church affairs was declared terminated.The principal stipulations of the law may be summed up as follows:
- the pope's person to be sacred and inviolable;
- insult or injury to the pope to be treated on a par with insult or injury to the king's person; discussion of religious matters to be absolutely free;
- royal honours to be paid to the pope; that he have the right to the customary guards;
- as an indemnity for the loss of his domains, as an annual sum in perpetuity, the pope was voted 3,225,000 lire to cover all the needs of the Holy See and the maintenance of church buildings;
- the Lateran and Vatican palaces, as well as the Villa of Castel Gandolfo, to remain the property of the pope; these articles assure the pope and all engaged in the spiritual government of the Church, as well as the college of cardinals assembled in conclave, complete liberty of communication with the Catholic world, exempt them from all interference with their letters, papers, etc.;
- the clergy to have freedom of assembly;
- the government to renounce the "Apostolic Legation" in Sicily, and the right of nomination to major benefices, with reservation, however, of the royal patronage; the bishops are not obliged to take the oath on appointment;
- the Exequatur to be maintained only for the major benefices and for acts affecting the disposition of ecclesiastical property;
- in spiritual matters no appeal to be allowed against ecclesiastical authority; the civil courts, however, to be competent to pass judgment on the juridical effects of ecclesiastical sentences. Provision to be made, by a future law, for the reorganization, conservation, and administration of all the church property in the kingdom.
- the right to active and passive legation, and immunity of envoys accredited to the Holy See within Italian territory.
Papal response
Pius IX indignantly refused to accept the terms of the "sub-Alpine" Government, as he termed the House of Savoy, whom he regarded as the despoiler of "God's vicar." Parliament regularly voted the annuity from 1871 onward, but the popes never accepted it, because to accept it would be to recognize the Kingdom of Italy as a legitimate government which no pope from 1871 to 1929 was willing to do. Pius IX shut himself up in his tiny domain and refused to leave it under any circmstances, regarding himself as the "Prisoner of the Vatican"; his successors to 1929 followed the policy and never set foot outside the Vatican once they were elected pope.
Indeed, each of the "concessions carried with it a special servitude, while later events proved that they were not intended to be seriously observed. In the Encyclical of 15 May following, the pope declared that no guarantees could secure him the liberty and independence necessary in the exercise of his power and authority. He renewed this protest at the consistory of 27 October. And it stands to reason that a law voted by two houses of Parliament could with equal ease be abrogated by them at will. Indeed, it has ever been part of the programme of the "Left" party in the Italian Parliament to suppress the Law of Guarantees. Pius IX, moreover, was unwilling to accept formally the arrangements made concerning the relations of Church and State, especially the Exequatur and the administration of ecclesiastical property. Moreover, if, as he hoped, the occupation of Rome was to be only temporary, the acceptance of this law seemed useless. Doubtless, too, such acceptance on his part would have been interpreted as at least a tacit recognition of accomplished facts, as a renunciation of the temporal power, and the property which had been taken from the Holy See. The abandonment of the "Apostolic Legation" in Sicily, for eight centuries an apple of discord between the Holy See and the Kingdom of Sicily, and the endowment granted the pope, were truly but slight compensation for all that had been taken from him. Consequently neither Pius IX nor his successors ever touched the aforesaid annual endowment, preferring to depend on the offerings of the faithful throughout the Catholic world. It may be added that the endowment was not sufficient to meet the needs of the Church, nor with their multiplication could it be increased.
''Non expedit''
Non expedit were the words with which the Holy See enjoined upon Italian Catholics the policy of abstention from the polls in parliamentary elections. The encyclical also forbade Italian Catholics from holding office under the Crown of Italy. This policy was adopted after a period of uncertainty and of controversy which followed the promulgation of the Constitution of the Kingdom of Italy, and which was intensified by laws hostile to the Church and, especially, to the religious orders. To this uncertainty the Holy Penitentiary put an end by its decree of 29 February, 1868, in which, in the above words, it sanctioned the motto; "Neither elector nor elected". Until then there had been in the Italian Parliament a few eminent representatives of Catholic interests-Vito d'Ondes Reggio, Augusto Conti, Cesare Cantù, and others. The principal motive of this decree was that the oath taken by deputies might be interpreted as an approval of the spoliation of the Holy See, as Pius IX declared in an audience of 11 October, 1874. A practical reason for it, also, was that, in view of the electoral law of that day, by which the electorate was reduced to 650,000, and as the Government manipulated the elections to suit its own purposes, it would have been hopeless to attempt to prevent the passage of anti-Catholic laws. On the other hand, the masses seemed unprepared for parliamentary government, and as, in the greater portion of Italy, nearly all sincere Catholics were partizans of the dispossessed princes, they were liable to be denounced as enemies of Italy; they would also have been at variance with the Catholics of Piedmont and of the provinces wrested from Austria, and this division would have further weakened the Catholic Parliamentary group.As might be expected, this measure did not meet with universal approval; the so-called Moderates accused the Catholics of failing in their duty to society and to their country. In 1882, the suffrage having been extended, Leo XIII took into serious consideration the partial abolition of the restrictions established by the Non Expedit, but nothing was actually done. On the contrary, as many people came to the conclusion that the decree Non Expedit was not intended to be absolute, but was only an admonition made to apply upon one particular occasion, the Holy Office declared that the rule in question implied a grave precept, and emphasis was given to this fact on several subsequent occasions. Later Pius X, by his encyclical "Il fermo proposito" modified the Non Expedit, declaring that, when there was question of preventing the election of a "subversive" candidate, the bishops could ask for a suspension of the rule, and invite the Catholics to hold themselves in readiness to go to the polls.
Legal status of the Holy See under the Law of Guarantees
There was occasional controversy between writers on international law and on Italian ecclesiastical legislation over various matters connected with this law: whether in the eyes of the Italian government the pope is a sovereign, whether he enjoys the privilege of extraterritoriality, etc. As far as the Holy See was concerned, these controversies had no meaning; it had never ceased to assert its sovereign status and corresponding rights.Some writers saw the Law of Guarantees as constitutive of the legal personality of the Holy See after 1870, conferring a legal personality subject to unilateral abrogation by the Kingdom of Italy. Other writers viewed the Law of Guarantees as a declarative instrument of the extant sovereignty of the Holy See.