Guarantees, Law of

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Law of Kingdom of italy that was intended to solve the roman question after the Seizure of the states of the church, including Rome itself, by legislating certain guarantees for the dignity and independence of the pope and the Holy See and by separating Church and State in peninsula (May 13, 1871).

Contents. In the preliminary discussions a moderate Catholic group in the Chamber opposed the proposed act as unilateral, injurious to the Church's liberty and lacking in international standing. Laicists among the delegates insisted that concessions to the pope, save very limited ones, would be incompatible with national security, integrity and sovereignty. The final text represented a view moderately liberal, yet hostile to the Church. The principal provisions of its 19 articles follow. The pope's person is declared sacred and inviolable (art. 1). Attempts against his person are punishable and are as serious as those against the king (art. 2). Sovereign honors and the preeminence of honor recognized by Catholic rulers are to be rendered by the Italian government to the pope, who may maintain his customary number of guards (art. 3). The Holy See is to receive in perpetuity an annual, tax-exempt grant of 3,224,000 lire (art. 4). The pope shall continue to enjoy the Vatican and Lateran palaces and the villa at castel gandolfo, which are inalienable and tax-exempt, as are the museums, library, art and archeological collections therein; but the Holy See must defray the costs of maintenance and salaries (art. 4, 5). State officials are forbidden to enter the papal palaces or the place of a conclave or ecumenical council, or to examine or seize documents of papal congregations engaged in spiritual functions (art. 7, 8). Foreign envoys to the Holy See are to enjoy all the usual prerogatives and immunities accorded in international law (art. 11). The pope may engage unhindered in correspondence by mail or telegram with the entire episcopate and Catholic world (art. 12). The royal exequatur and placet are abolished, except for acts disposing of ecclesiastical property or benefices outside Roman and its suburbicarian sees. Civil laws concerning ecclesiastical institutions and the alienation of their goods remain in force (art. 16). The conservation and administration of church properties in Italy are to be handled in later laws (art. 18). [For the full Italian text, see H. Bastgen, Die romische Frage, 3 v. (Frankfort 191719) 1:676677. For an English translation, see J. Carrere, The Pope (London n.d.) 264268]

Papal Attitude. A very grave defect in this legislation was its unilateral character, its attempt to determine the prerogatives of a sovereign whose rights could not be subject to limits or conditions set by another authority. This flaw resulted from the desire to establish the pope's juridical position "within the Italian state" by domestic legislation subject to revocation or suspension at any time at the will of the civil power and bereft of international recognition.

pius IX (184678) solemnly repudiated the law in the encyclical Ubi nos (May 15, 1871) and refused the financial offer. He and his successors abstained from any act implying recognition of the legislation and withdrew into the Vatican as voluntary prisoners. Thereby they avoided the law's application insofar as it involved equality of pope and king in the reception of formal honors. They also escaped the possible reproach of traversing the Eternal City as claimants.

Ineffectiveness. In carrying out the Law of Guarantees the Italian government did not always live up to its promises, as is clear from the incidents at Pius IX's funeral and the criticisms of the popes allowed in the Italian press. The one point in which the law proved operative was in its recognition of the right of active and passive diplomatic representation. Even here grave difficulties arose during World War I. Many jurists and publicists then sought an authoritative act suspending the law, thereby demonstrating the precariousness of prerogatives unilaterally conceded to the papacy. Italy limited the right of representation by insisting that the Holy See suggest to the Central Powers the transference of their diplomatic headquarters to Switzerland.

See Also: roman question.

Bibliography: h. bastgen, Die romische Frage, 3 v. (Frankfort 191719) 1:676677. j. carrere, The Pope (London n.d.) 264268. f. scaduto, Guarantigie pontificie e relazioni tra Stato e Chiesa (Turin 1884). a. galante, Manuale I diritto ecclesiastico (Milan 1914).

[r. mori]