Law of Guarantees

For a time, the most serious question that confronted Italy after 1870 was the hostility between Church and State.[1] The Italian government, which had declared that it entered Rome to safeguard the person of the Holy Father,[note 1] and which, in the very act of invading pontifical territory, had assured the people that the independence of the Holy See would remain inviolate,[note 2] 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.

A circular of the minister Emilio Visconti Venosta, addressed to all the powers, hinted at the former solution. But the lack of reaction by foreign Catholic governments to 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".

Victor Emmanuel II, the first King of the united Italy

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.[2] 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 Leonine 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.[3]

The principal stipulations of the law may be summed up as follows:

• the pope's person to be sacred and inviolable;[4]
• 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;[4]
• royal honours to be paid to the pope; that he have the right to the customary guards;[4]
• as an indemnity for the loss of his domains, as an annual sum in perpetuity, the pope was voted[3] 3,225,000 lire[note 3] to cover all the needs of the Holy See (College of Cardinals, Roman congregations, embassies, etc.) 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.;[4]
• 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 (of allegiance) on appointment;
• the Exequatur to be maintained only for the major benefices (except in Rome, and in the suburbicarian sees) 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.[4]

Pope Pius IX

The popes refused to recognized the fait accompli which was supported by the Law of Guarantees,[5] and refused in principle to recognize in the Italian government any right to grant them prerogatives, or to make laws for them, a position that lasted until the resolution of the Roman Question in 1929.[6]

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, as to do so 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 in his tiny domain and refused to leave it under any circumstances, 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.[3]

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, arguing that a law voted by two houses of Parliament could with equal ease be abrogated by them at will. Indeed, part of the programme of the "Left" party in the Italian Parliament in this era was 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 (e.g., the Quirinal Palace). The abandonment of the "Apostolic Legation" in Sicily, for eight centuries an apple of discord between the Holy See and the Kingdom of Sicily,[7] 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.

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 (not expressly recognized to him, though granted to foreign embassies to the Holy See), 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.[8]

Territory of Vatican City State, established by the Lateran Accords

After the papal rejection of the Law of Guarantees, the popes existed in a self-imposed state as "Prisoner of the Vatican" in diplomatic protestation of the Kingdom of Italy's claims to the Papal States. The popes refused to leave the Vatican.[5] At first the situation appeared embarrassing or even dangerous to Italians, who feared that France or Austria might champion the cause of the Pope and compel Italy to evacuate Rome. But the defeat of these two Catholic nations by Prussia and, especially, the establishment of an anticlerical Republic in France, made such an event only a remote possibility, and the "Prisoner of the Vatican" became a polite fiction. As time went on there began a rapprochement between the Vatican and the Quirinal,[note 4] though, in theory, the successors of Pius IX continued to advocate the restoration of their temporal power.[9] The situation was finally resolved in 1929 by the Lateran Pacts which created the State of Vatican City as an independent sovereign state to guarantee the political and legal independence of the pope from the Italian government.[6] There is a treaty as well as a concordat, which together form a juridical whole.[10]

Although in principle the popes refused to accept the Law of Guarantees, in practice they tacitly accepted some of its provisions.[11] They allowed clergy to accept revenues from the Italian state deriving from their benefices.[11] The popes began appointing all Italian bishops.[11] Previously, various Italian civil authorities had had the right of presentation, but the Law of Guarantees had given the right of free conferral back to the pope.[11] Since the Italian territories had more bishoprics than in any other part of Christendom,[11] by 1870 Victor Emmanuel had the right to present 237 bishops for appointment,[11] more than any other king in Christian history.[11] Such immense powers of appointment would now be exercised by the popes directly, which changed the relationship between the papacy and the Italian episcopate and shifted views on who should appoint bishops in general.[11] A new and growing assumption was that it was for the pope to directly appoint bishops.[11] The loss of temporal power greatly enhanced papal control over the church in Italy.[11]

• Concordat
• Foreign relations of the Holy See
• Lateran treaty
• Legal status of the Holy See
• Risorgimento
• Roman Question