The Orphan Crisis of World War One and the Italian Judiciary

Cristina DANUSSO

University of Insubria
cristina.danusso@uninsubria.it

Abstract: The formidably complex problem of World War I orphans can be studied from different points of view, ranging from moral, family and social aspects to those of a legal, economic, political or financial nature. In this short essay, only some of these facets are considered. Among the measures taken by the Italian authorities – first by the government as a matter of urgency, and later by the parliament – attention is focused on the role of the judiciary and especially on the giudice delle tutele, or guardianship judge. He performed delicate tasks of voluntary jurisdiction and supervised the actions of the pretori (local magistrates). He also contributed to various administrative activities, as he was a member of the Provincial Committee in charge of providing assistance to war orphans. He acted as a coordinator on several fronts, and in particular, he had to find the right balance between the actions of the State and those of the family. Indeed, he had to ensure – in keeping with the intention of legislators – that the State did not interfere with and replace families, but simply stepped in to support them when necessary.

Keywords: War orphans; World War I; Judiciary; Guardianship Judge; Natural Paternity

Summary: 1. Introduction.2. The first measures taken by government.3. A legislative framework.4. Conclusion.

1. Introduction
The overwhelming number of deaths in World War I presented serious problems and burdens for the countries involved. As in other nations, the Italian government was forced to take emergency measures and establish new institutional bodies in order to cope with the situation. Any government action had to be coordinated with that of the relevant public and private institutions, as well as with the actions of families, though it proved difficult to organize all of these efforts so that they could work in harmony. This article focuses on the role played by the judiciary, and specifically by the giudice delle tutele, or guardianship judge: an interesting, newly established figure who was entrusted with some very delicate duties.

2. The first measures taken by government
Regardless of the era, one of the many problems that war creates is how to assist the children of those who lost their lives in the conflict, or who have become disabled and as such can no longer work to support their families. This is a particularly complex issue with wide-ranging implications, not only on a political and economic level, but also from a legal, ethical and social point of view. Never before was this problem bigger or more dramatic than during and after the World War I, when the number of deaths and disabled reached staggering levels in all of the countries involved.

A year after entering the war, it was becoming clear in Italy that military operations were not meeting the optimistic expectations of those who had hoped for a quick end to the hostilities. Indeed, the deadly potential of new weapons had been underestimated, and the overwhelming number of deaths was only destined to rise. The State realized that it had to act in order to safeguard the children of those who had sacrificed their lives or had seriously jeopardized their own health and safety in defense of the country.

Given the delicate nature of this issue, the government initially opted to adhere to normal legislative procedure and submit a bill to parliament, rather than take advantage of the extraordinary powers it had been granted through law n. 671 of 22 May 1915[1] and intervene directly. On 6 June 1916, Prime Minister and Minister of the Interior Antonio Salandra submitted a bill to the Chamber of Deputies that was structured similarly to a law that had been passed for the recent earthquakes in Italy[2]; it proposed the establishment of an independent national institution which would be tasked with coordinating, guiding and overseeing private initiatives, and which could support them or step in to replace them whenever it deemed fit.

The Chamber of Deputies appointed a commission to scrutinize the bill, which it took several months to do[3]. As a result, the government was forced to adopt urgent measures as a short-term remedy for the situation, which, far from seeing improvement, was only getting worse. Through lieutenant’s decree n. 968 of 6 August 1916 and its corresponding statutes (approved on 27 August[4]), the government thus aimed to provide temporary regulations to address the issue – regulations that would only be finalized with the passage of law n. 1143 on 18 July 1917. It would then take almost another year for the latter law to be implemented[5], at which point the war was drawing to a close.

Consequently, for almost the entire duration of the war, the regulatory framework addressing this problem was based on the temporary regulations issued in the summer of 1916 and on the general principle that the State was expected to act in full observance of the rights of the family, and that it would intervene – or, if needed, take the place of the family – only when absolutely necessary to defend the interests of orphans. Among other things, article 11 of the decree issued on 6 August addressed this very principle: «Preferably, when receiving the assistance described in the present decree, the orphan should be left in the care of his family, or in the care of the person who exercises parental authority, or in the care of his legal guardian».

The government’s aim was to provide assistance to a wide range of subjects[6]. Thus, war orphans included not only debarred persons, but also legitimate, legitimized or acknowledged natural minors (excluding emancipated minors and married women) whose father had died as a result of the state of war. In the absence of a father, then the same applied to children whose mother’s death was ascribable to the war, provided she had exercised authority over the child. As a result, this included not only the children of soldiers who were killed during military operations, but also those children who lost a parent in a way that was somehow connected to the war. What’s more, even unacknowledged natural children were included if certain conditions were met[7].

In approving the decree’s statutes, the government expanded the list of orphans still further, so that it came to include the children of incestuous or adulterous relationships if it was determined that the child had been supported by the parent who died because of the war[8]. Furthermore, there was an explicit provision in the statutes that also made it possible to verify the natural maternity of women who died due to the war in the same way that natural paternity was verified[9].

The mayor of each municipality was to maintain a list of orphans that included both the children of fallen soldiers[10] and the children of anyone who had died «due to the state of war». A copy of the list was to be sent to the Congregation of Charity (Congregazione di carità), the Provincial Committee for Public Welfare (Comitato provinciale di assistenza pubblica), and the office of the pretore (a local magistrate)[11]. Furthermore, each municipality was to prepare a file divided into three categories, which would record information on orphans, children of the disabled, and children of soldiers declared missing, respectively[12].

Given that this was a growing problem in all parts of the kingdom, it was decided not to establish a national institution based in Rome (which is what had been done for the earthquake victims[13]). Instead, focus was placed on creating what would essentially be a decentralized system.

The main goal was to ensure protection and assistance for orphans at all costs. Specifically, the government wanted to avoid leaving them with no means of subsistence, or in a state of abandonment and thus at risk of being exploited. For this reason, the assistance provided to war orphans was to be overseen by a newly created body operating within each prefecture: the Provincial Committee (Comitato provinciale). It was a relatively simple body chaired by the prefect and made up of just five members: a newly created magistrate called the giudice delle tutele (guardianship judge); the provincial doctor; and three members appointed by the Provincial Commission for Public Welfare and Charity (Commissione provinciale di assistenza e beneficenza pubblica)[14]. In addition to these five, there was also a secretary, who had the important task (among others) of keeping an up-to-date list of all of the province’s orphans by coordinating the information sent to him from the individual municipalities[15].

Tasked with a great number of burdensome duties, the Provincial Committee was given wide-ranging powers. It established the necessary procedure for determining a war orphan in cases where such status was in doubt (any disputes would be settled by the Ministry of the Interior: a decision which could not be appealed)[16]. It could delegate supervision of orphans to public or private institutions (recognized as such by decree of the King or prefect), which were in a better position to monitor the situation more extensively, and which could nominate inspectors to be approved by the Committee itself[17]. Such institutions might include the Congregations of Charity, trade associations, institutions for abandoned children, schools, rural colonies, charitable institutions, and so on. In small municipalities where provincial authority was hard to enforce, the Provincial Committee could create commissions as it saw fit, which would be chaired by the pretore or justice of the peace and made up of members from various backgrounds. Commission members were in charge of oversight, and if necessary, they could temporarily act as guardians[18].

Similarly, public and private welfare organizations that had been tasked with safeguarding orphans by the Provincial Committee could function as guardians when the circumstances called for it[19]; or the Provincial Committee itself could directly take on the role in accordance with the Italian Civil Code, which provided for such measures in the event that a child was being kept in a shelter and had no relatives who were able to accept such a delicate responsibility[20].

Nonetheless, any resort to joint guardianship was to be seen as an emergency measure – a view that was clarified by Minister Orlando[21]. Indeed, he strongly recommended that joint guardianship last as short as possible, and that the family council or guardianship council be convened as soon as possible[22].
The Provincial Committee had sweeping discretionary powers: in fact, it could delegate oversight to institutions, evaluate the efficiency and appropriateness of their work, and remove them from their role if they were not up to the task, all without appeal, as such decisions were final[23].

However, it was possible to file an appeal through official channels with the Ministry of the Interior against measures taken by the Provincial Committee if such measures fell within the powers delineated in article 13 of the decree of 27 August. These were the same powers that had been established to protect against child abandonment in the 1904 law, passed under Giolitti, whereby the Provincial Commissions for Public Welfare and Charity had been created[24].

Lastly, the Provincial Committee’s authority also extended to financial matters: namely, it was responsible for managing and allocating funds made available to the various institutions for all orphans (not just war orphans)[25]; when the aforementioned institutions requested temporary government subsidies to assist war orphans, the Provincial Committee was required to provide a legal opinion justifying such a request[26]; and the Provincial Committee had to receive monthly updates from the competent office in the Italian Court of Auditors (Corte dei conti) on war pensions paid out to orphans or widows with children[27].

Thus, the Provincial Committee was the central body around which the entire system revolved. It was chaired by the prefect and under the authority of the Ministry of the Interior, from which it received its instructions. Furthermore, it had to submit a quarterly report to the same Ministry in which it summarized its work as well as the work of the institutions in charge of overseeing orphan care[28].

Given that urgent measures were needed, the government did not present radical changes to the Italian Civil Code’s regulation of guardianship, despite the fact that it had long been the subject of criticism and calls for reform[29]. Nonetheless, there were two changes worthy of note, as recognized by Minister of Justice Ettore Sacchi in a circular distributed to the presidents and chief prosecutors of the Courts of Appeal. Of these two, one was really nothing more than the reinstatement of a provision that had previously been introduced in response to the earthquakes that struck Calabria/Sicily and Marsica[30]: namely, the restriction of the family council or guardianship council to only two members, and the admission of women in such councils even if they did not have their husband’s authorization[31].

Therefore, the only true change was the institution of the giudice delle tutele, or guardianship judge. This role drew inspiration from Germanic models and showed just how important a role the judiciary played in such a complex and delicate issue. Indeed, from the very beginning of the aforementioned circular, Minister Sacchi placed particular emphasis on «the new, extremely delicate functions [given] to magistrates»; furthermore, in their respective roles, he regarded guardianship judges and pretori as guarantors of a function that was now both administrative and above all social in nature, and no longer simply a part of voluntary jurisdiction. As such, these judges had to take on a burden and a moral responsibility that went beyond their natural competence, and they were obligated to fulfill a «patriotic duty in the name of solidarity with the children of those who had shed blood for the national cause»[32].

The pretori already had certain jurisdiction over orphans in accordance with the Italian Civil Code[33], which included above all the authority to summon and preside over the family council[34]. Now they would also preside over the Oversight Commissions in small municipalities[35], and they would be in charge of duly checking civil registration records, meaning that they would have to periodically verify that all information related to orphans had been properly registered and/or updated, and report any omissions[36]. A report was to be prepared every four months, which was to contain the results of these checks[37].

The guardianship judge was to oversee the work of the pretori, and in general ensure compliance with all provisions of the Italian Civil Code and lieutenant’s decrees relating to guardianship. He was to be appointed on a yearly basis by the president of the local court[38], who in turn was to be periodically informed of the guardianship judge’s progress[39]. The court devolved authority to the judge to approve resolutions passed by the family council in order to authorize acts of extraordinary administration regarding the estates of war orphans[40], as well as authority over any challenges to the family council’s resolutions[41].

This judge’s most delicate task, however, was to rule on the inclusion of unacknowledged or unacknowledgeable natural children among war orphans, which he could do upon verifying that certain conditions were met (the verification process was strictly confidential and could not have further legal consequences)[42]. Such a task was defined as «almost administrative» in nature by Riccardo Luzzato, while others considered it policing in the broad sense of the term[43] – either way, it was a task that spoke to feelings of pity and human solidarity. While it was true that it did not legally establish a relationship of natural filiation, there were nonetheless some jurists who were alarmed by these regulations, for they saw a dangerous vulnus to the protection of the legitimate family as foreseen by the Italian Civil Code[44].

As part of the judicial system, the guardianship judge was subject to the hierarchical authority of the president of the court of first instance, as well as that of the presidents of the Courts of Appeal in the case of appeals; in turn, the presidents had to submit annual reports to the Ministry of Justice on the progress of war orphan assistance. On the other hand, the guardianship judge was also a member of the Provincial Committee, and as such he had to perform administrative duties; from this perspective, he was necessarily subject to administrative authority, namely that of the prefect, as well as that of the Minister of the Interior (above the prefect).

This dual position was not viewed negatively by the Minister of Justice, as he did not find any violation of the principle of the separation of powers in such an arrangement. On the contrary, he highlighted how this was a real opportunity to have a figure who could coordinate «the actions of the judicial authorities with those of the administrative bodies responsible for public welfare and charity»[45]. Generally speaking, he believed that the main virtue of these government regulations was this very aspect, namely that they had better reorganized how all involved parties worked together. This meant better cooperation between the judicial authorities and the surviving parent, or if there was no surviving parent, the family council, and then better coordination of the result of this joint effort with administrative proceedings. Lastly, it also meant that the various functions of the State could better collaborate with charitable institutions.

The guardianship judge was the central figure in the interaction of these forces – as such, he had to be reliable. It was no coincidence, then, that the minister placed particular emphasis on the ideal qualities that such a judge was to possess. He recommended that the presidents of the courts appoint qualified senior magistrates (and not simple pretori), and that if necessary, they were to be relieved of other duties[46].

3. A legislative framework
The law passed by Parliament on 18 July 1917 and the implementation of its statutes on 30 June 1918 helped complete what the government had started in 1916.

First of all, it definitively resolved what had been a hotly contested issue in parliament[47], namely whether assistance to war orphans was to be provided directly by the State or by an independent national institution created specifically for that purpose. The former solution prevailed, which was in line with the government’s previous choice: the entire system dedicated to this noble cause would remain under the authority of the Ministry of the Interior[48].

Nonetheless, because the Ministry was already overloaded with tasks as it was, the government decided to create a National Committee that could work alongside it in order to lighten its load somewhat, and to help it carry out this complex function more satisfactorily. This Committee would function as a deliberative body for what concerned the administration of the orphan fund (though all decisions were still subject to Ministry approval)[49], as well as an advisory body to support the Ministry in its coordination and steering of the Provincial Committees[50]. The 16 members of the National Committee came from a variety of different backgrounds: from politics, the judiciary and public administration, to the high ranks of the military and national institutions for the protection of orphans[51]. Within the National Committee there was an Executive Committee made up of seven members, which examined all the issues to be submitted to the National Committee for discussion and subsequently drew up resolution proposals[52].

Just as the National Committee featured a wide variety of members from different walks of life, so too did the Provincial Committees enrich themselves with new members from diverse backgrounds. In order to strengthen the role of the judiciary, the guardianship judge would now be flanked by the kingdom’s public prosecutor (procuratore del re) from the same court; additionally, the head of the provincial education authority (provveditore agli studi) would become a member, as well as two representatives from the Provincial Council, two high-ranking officers, and a delegate from the province’s public institutions in charge of protecting and assisting abandoned children[53]. The prefect would continue to chair the Committee as the longa manus of the government, even though some voiced concerns that the Committee’s work could potentially be influenced by political changes and electoral campaigns[54].

The government was faced with a truly dramatic situation after four years of hard combat and tragic losses, which led it to expand the category of war orphans even further. Thus, the statutes now explicitly provided for anyone who lost the person who was fully or largely responsible for supporting them[55]; such orphans would also include «the children of those who have become unfit to work due to an injury or illness suffered during wartime military service or ascribable to war-related events, provided that such children had been conceived before the event leading to the disability of the parent, and that they have been acknowledged by said parent»[56].

Evidently the creation of the guardianship judge had achieved good results, because the position was given even further prestige: it would no longer be appointed by the president of the court, but rather by the more powerful president of the Court of Appeal. Furthermore, the choice was to be made «preferably from among higher ranking judges who have proven their skill and aptitude for the functions assigned to them»[57]. The judge’s powers were broadened to include both those of the president of the court and those that fell under the court’s authority in accordance with Title VIII (on parental authority) and Title IX (on the age of minority, guardianship and emancipation) in the first book of the Italian Civil Code. In addition, his powers now included those that fell under articles 113-116 of law n. 6144 on public security (30 June 1889), namely as regarded the measures to be taken to address minors under the age of eighteen who were indolent, vagrant, «disreputable», or reduced to beggary or prostitution[58].

Though the holder of these powers may have changed, the codification thereof was not touched – this despite the fact that, as previously mentioned, calls for reform had long been launched. Specifically, there were calls to limit or abolish the family council, as it left much to be desired in terms of how it functioned, and it tended to hinder procedures. However, this institution was preserved under the same conditions set forth in the 1916 decrees, and it was still the guardianship judge’s responsibility to convene the family council and oversee its formation and operation[59].

The judge maintained full discretionary power to establish natural paternity or maternity, and in doing so he continued to operate «without formalities», meaning without due process[60]. He ordered inquiries as he saw fit[61], but contrary to the past, his decisions could now be appealed in the Court of Appeal[62].
The magistrate was also tasked with an equally delicate function, namely that of overseeing the «moral or material interests» of orphans. If there was any case in which parental authority or the role of guardian had been abused, then the Provincial Committee, public prosecutor or orphan’s next of kin could petition the guardianship judge, who would have to take measures to appoint a new guardian; in less serious cases of mistakes or negligence, the judge could place the orphan under the guardianship of the Provincial Committee, or under that of national institutions, or under that of any organizations administered by national institutions[63]. In more urgent cases, the judge himself could take on the role of guardian, in order to then transfer guardianship to the Provincial Committee or to another institutional body[64].

As a general rule he had to personally see to all acts and measures falling under his authority, although he could also collaborate with other judicial authorities, such as the public prosecutor and pretori, as well as administrative authorities and the police for what concerned inquiries, inspections, information, proposals and opinions[65].

Furthermore, the guardianship judge was responsible for taking disciplinary measures or temporarily sending orphans to a reformatory or other institution in the event that an orphan demonstrated reprehensible conduct. Before taking such measures, the magistrate was required to carefully evaluate the physical and mental state of the minor, as well the family circumstances and living conditions[66].

The extent of the guardianship judge’s power was explicitly stated in article 70 of the statute: «The guardianship judge’s orders have executive force over any authority, institution or private organization. The judge himself shall see to their implementation, and a copy or certificate of his orders shall be sent to the offices responsible for their execution». This was a considerable amount of authority, which could have conflicted with the equally considerable powers of the prefect or the Provincial Committee. If such a conflict came to pass and could not be resolved «through voluntary relinquishment», then any of the concerned parties could take the issue to the Court of Appeal[67].

The importance of the role played by the guardianship judge was reaffirmed by the fact that, contrary to matters of voluntary jurisdiction[68], the public prosecutor was not normally required to intervene or make decisions when it came to war orphans. Even if the law specifically required the public prosecutor to intervene, the guardianship judge could bypass this requirement «if a delay might endanger» the orphan in any way, provided that he subsequently inform the public prosecutor of the action taken. The public prosecutor then had the power to review or appeal such action[69].

On the other hand, the kingdom’s public prosecutors were required to intervene when people acting as guardians or holding parental authority were convicted of serious crimes. A copy of the sentence was to be sent to the Provincial Committee, so that it could then take appropriate measures to safeguard the children or wards[70].

The pretori remained an important part of the system, and in addition to the duties that they had been assigned through the previous decrees, they could now also intervene on their own initiative; in the event that it was necessary to remove an orphan from his or her family’s home, the pretore could take the appropriate measures, after which he was required to report to the guardianship judge[71]. Moreover, they were required to record any information on family councils or guardianship councils in a special register, and to then send a summary of these records to the guardianship judge. They were also required to send the guardianship judge an annual statistical report on the service they carried out in their jurisdiction[72].

As can be observed, the 1917 law and its associated statutes reaffirmed and reinforced what the government had already recognized previously, namely that the judiciary was to have a fundamental role in managing a serious problem which had only increased in magnitude as the war unfolded, and which would have consequences for years to come.

The guardianship judge’s role was given the utmost importance, as a considerable number of duties fell under his authority, including some very delicate tasks. Indeed, he acted as a link between the different parties that had to work together.

The idea of entrusting a single magistrate with the duties and powers of the public authorities in issues pertaining to minors had already been proposed by a Royal Commission established on 7 November 1909, the objective of which was to study measures to combat juvenile delinquency. The Commission had been appointed by Minister Orlando, and one of its tasks was to collect all laws and regulations regarding minors (in both the civil and criminal spheres) and unify them into one text.

In 1912, the Commission presented the Progetto del codice dei minorenni (Project for a juvenile code) together with a report authored by the chairman of the Commission, Senator Oronzo Quarta. It was proposed that each court of first instance institute a magistrato distrettuale, or district magistrate, who «in the broadest and fullest sense» would be entrusted with «the oversight, guardianship and social protection of minors», in addition to special jurisdictional functions[73]. He was to be appointed by the King upon the suggestion of the minister of justice, and he was to be chosen from judges or assistant attorneys general who, «if possible», were to be learned «in biological, pedagogical and social sciences»[74]; or from lawyers who had practiced law for at least eight years; or from holders of a law degree «who, through teaching, publications, or positions held in societies or institutions providing assistance, charity or other such [aid]», were deemed fit to take on such a delicate role[75]. The appointment was to last five years, the magistrate could be reappointed[76], and he would be relieved from any other duty while serving in this position[77].

The purpose of such a role was to unify the direction, coordination and prompt action of all activities related to the education and protection of minors on the one hand, and any disciplinary or punitive measures on the other. It was also hoped that in this way, any rivalries or conflicts (which unfortunately were quite common) between private and public institutions providing charity or assistance could be avoided[78].

These were largely the same reasons behind the creation of the guardianship judge, who the Minister of Justice Sacchi defined «practically the main organ of this new legislation»[79]. As has been shown, he was the custodian of an extremely important range of functions, the most delicate of which concerned that of determining whether unacknowledged or unacknowledgeable minors could be included in the list of war orphans. Indeed, although these inquiries were confidential, they nonetheless contrasted with the basic principles of the Italian Civil Code regarding the protection of the legitimate family; furthermore, they ran the risk of indirectly leading to unpleasant moral and social consequences for the parties concerned. For this reason, the Minister of Justice himself strongly recommended that magistrates use their discretionary power with extreme caution and prudence[80].

Even if the orphan was legitimately placed in a family context, the guardianship judge was still required to exercise an uncommon amount of restraint: indeed, just as in 1916, the new regulations did not intend to undermine the role of the surviving parent or guardian, and thus the judge had to carefully evaluate the extent to which the State became involved. Once again, the Minister of Justice felt it necessary to intervene, urging the magistrates to avoid conflict and to act in harmony with families[81].

The guardianship judge would later be entrusted with another important task following decree n. 1357 of 31 July 1919, which responded to a wish expressed by the National Committee. In what would be an exception to the relevant regulation in the Italian Civil Code, this measure would extend the institution of adoption to include war orphans under the age of 18. The guardianship judge would be responsible for assessing whether the adoption was favorable to the orphan, and whether the adopter’s main purpose was to benefit from the adoptee’s pension or estate[82]. In that regard, Minister of the Interior Nitti observed that on the one hand, adoption «can be one of the most providential forms of assistance» as well as «that which best corresponds» with the principle at the foundation of the law of 18 July 1917, namely that family-provided assistance was preferable; on the other hand, however, adoption «could inflict great harm on an adopted orphan, if carried out with devious aims of exploitation»[83].

4. Conclusion
Though this article may have only briefly touched upon the system put in place by the government and parliament, it nonetheless provides an idea of its massiveness and complexity. Indeed, those in power truly felt it was their duty to act in the name of national solidarity, yet there were a multitude of thorny issues to resolve before they could do so. The goal was to have the State control the entire system, but it was difficult for the State to satisfy all of the needs that emerged from a situation which continued to worsen in wartime, and which had consequences that would last for many years to come.

The war had taken a terrible toll on the Italian population, resulting in a void that had to be filled. Thus, it was important to nurture the growth, education and instruction of children and youth, who would soon become the backbone of society.

Magistrates were called to do their part alongside administrative bodies, public and private charities, and families: one can only wonder just how efficient such a complex and disparate group could have been. In any case, the present article has sought to focus on the judicial aspects of the matter, which can be summed up in a brief yet significant observation made by minister Lodovico Mortara[84] in a circular issued on 25 January 1920.

In examining the reports that were sent to his ministry, the Minister of Justice saw that there were several shortcomings in the work of the pretori, who were probably overburdened with responsibilities and thus unable to adequately perform their tasks. He exhorted them to overcome their deficiencies in a timely fashion, above all for what concerned the census and registration of orphans, which still seemed incomplete. On the other hand, he expressed satisfaction with the work being done by the guardianship judges, who deserved special praise for having realized since the very beginning that «the correct functioning of these new institutions, created in the interest of war orphans, greatly depended upon their vigilant action»[85].

Mortara softened his rebuke of the pretori towards the end of the circular, where, in the form of an elegant captatio benevolentiae, he made a special appeal to the commitment of all magistrates. Specifically, he expressed his conviction that they «will be able to make themselves deserving of the Country’s praise, and prove how, as public officials, the judiciary is second to none in helping pay tribute, with unconditional selflessness and in the name of gratitude and solidarity, to the children of those who gave their lives for this great country»[86].


[1] C. Latini, Governare l’emergenza. Delega legislativa e pieni poteri in Italia tra Otto e Novecento, Milano 2005, especially p. 56 et seq.

[2] In addition to the infamous earthquake that had occurred in Calabria and Sicily on 28 December 1908, causing approximately 100,000 deaths, another earthquake had struck Abruzzo (in the Marsica region) on 13 January 1915, resulting in over 30,000 deaths.

[3] The Commission’s report was authored by MP Camillo Peano and submitted to the Prime Minister’s office on 24 November 1916 (I. Tambaro, Gli orfani di guerra, Napoli 1919, p. 12).

[4] D.L. n. 1251.

[5] D.L. 30 June 1918, n. 1044.

[6] D.L. 6 August 1916, n. 968, art. 2.

[7] D.L. 6 August 1916, n. 968, art. 8: there were three cases in which the guardianship judge had the power to register unacknowledged natural children as war orphans: «when it was a matter of common knowledge that the mother or alleged father notoriously lived more uxorio at the time of conception; when the natural child has possession of status (possesso di stato); when paternity is acknowledged by an explicit declaration written by the father; or indirectly through a civil or criminal judgement». Possesso di stato was a de facto situation resulting from a series of circumstances which, as a whole, were able to demonstrate relations of filiation and kinship between a given person and the family to which he or she claimed to belong. This is not the place to go into more detail on the differences in the legal status of children in Italian law at that time. However, it seems opportune to clarify that natural children – that is, children born out of wedlock – could remain illegitimate or could be acknowledged by one or both parents (in any case, children of incestuous or adulterous relationships remained illegitimate). Acknowledged natural children found themselves in an intermediate position between legitimate and illegitimate children. On the other hand, legitimized children were natural children who obtained the same status as legitimate children when their natural parents married each other, or by decree of the King if certain prerequisites were met.

[8] D.L. 27 August 1916, n. 1251, art. 7. A natural child could receive maintenance only if one of the conditions listed in article 193 of the Italian Civil Code was met: «[…] 1. If paternity or maternity is indirectly confirmed through a civil or criminal judgement; 2. If paternity or maternity derives from an annulled marriage; 3. If paternity or maternity is confirmed by an explicit declaration written by the parents».

[9] D.L. 27 August 1916, n. 1251, art. 7.

[10] For the children of fallen soldiers, the Ministry of War and Ministry of the Navy were to request the relevant civil registrar to record that a parent had died due to the war on the orphan’s birth certificate (D.L. 6 August 1916, n. 968, art. 3).

[11] D.L. 6 August 1916, n. 968, art. 4: for each orphan, the list was to include information on «whether [the orphan] was under the mother’s parental authority, or under guardianship, whether a pension had been applied for and whether it had been paid, and for what amount».

[12] Circular n. 26700-6, issued by the Ministry of the Interior on 18 November 1916 and sent to the prefects (Collezione celerifera, XCV, 1916, pp. 1326-1327). On the problem of missing persons, and on the need for a reform of absence in the technical sense and the introduction of the presumption of death in Italian civil law (a need that became urgent due to World War I), see A. Monti, Repenser l’absence. La doctrine italienne après la première guerre mondiale, in L’absence. Du cas de l’absent à la théorie de l’absence, J. Hoareau and G. Métairie (ed.), Limoges 2011, p. 366 et seq.

[13] Supra, nt. 2.

[14] D.L. 6 August 1916, n. 968, art. 5. The Provincial Commission for Public Welfare and Charity was regulated by law n. 390 of 18 July 1904.

[15] D.L. 27 August 1916, n. 1251, art. 6.

[16] D.L. 27 August 1916, n. 1251, art. 1.

[17] D.L. 27 August 1916, n. 1251, art. 11, where the inspectors’ main tasks are neatly summed up in the second paragraph. Among other things, they were responsible for ensuring compliance with the social legislation that Italy – albeit later and less comprehensively than other countries – had enacted towards the end of the previous century: «While avoiding any inappropriate interference with the free exercise of parental authority or the functions of guardians, the primary aim of inspectors’ investigations shall be to ascertain whether it is necessary to come to families’ aid in order to support orphans, and whether there is compliance with the laws in force regarding compulsory education, female and child labor, the ban on beggary, the ban on employing children in wandering trades, and the like; whether it is necessary to put orphan girls in an institution of some sort». See also the circular issued on 9 October 1916 by the Ministry of the Interior, Direzione generale dell’amministrazione civile, Divisione III, in «Bollettino ufficiale del Ministero di Grazia e Giustizia e dei Culti», XXXVII, 1916, p. 887.

[18] D.L. 6 August 1916, n. 968, art. 6: these commissions were to be chaired by the pretore or justice of the peace and made up of the president of the Congregation of Charity, the local health official, an elementary school teacher, and the parish priest or other priest, or a minister of another faith if the orphans were not Catholic.

[19] D.L. 6 August 1916, n. 968, art. 6.

[20] D.L. 27 August 1916, n. 1251, art. 10 and art. 262 of the Italian Civil Code.

[21] For more on Vittorio Emanuele Orlando, start with the two encyclopedia entries edited by Giulio Cianferotti: the one in Dizionario Biografico degli Italiani, vol. LXXIX, Roma 2013, pp. 547-556, and the one in Dizionario Biografico dei Giuristi Italiani (XII-XX secolo) edited by I. Birocchi, E. Cortese, A. Mattone, M. N. Miletti, vol. II, Bologna 2013, pp. 1465-1469.

[22] Circular issued on 9 October 1916, [nt. 17], p.887. However, the Oversight Committee responsible for the orphans of the earthquake in Calabria and Sicily – chaired by MP Chimirri – had already experimented with forms of joint guardianship to replace a guardian or family council, and had had success doing so (Tambaro, Gli orfani, [nt. 3], pp. 91-92).

[23] D.L. 27 August 1916, n. 1251, art. 8 last paragraph and art. 9.

[24] Article 13 of the decree of 27 August referred to article 5 letter (e), article 6 letters (f) and (g), and article 18 of law n. 390 of 18 July 1904. Specifically, this regarded the following cases: decisions on appeals against the granting of regular welfare payments and payments of any type made by public charities which violated laws, regulations or statutes; situations in which the judicial authorities were informed of facts that might imply the loss of parental authority, guardianship or the role of guardian; reports of agreements that might infringe the law on child labor, or infringe other regulations meant to safeguard children; measures taken in order to close private charities.

[25] D.L. 27 August 1916, n. 1251, art. 14

[26] D.L. 27 August 1916, n. 1251, art. 15: as specified by Vittorio Emanuele Orlando, a legal opinion was required in order to provide the Ministry with information that could help it fairly allocate funds to the provinces (Circular issued by the Ministry of the Interior on 9 October 1916 [nt. 17], p. 887).

[27] D.L. 27 August 1916, n. 1251, art. 3.

[28] D.L. 27 August 1916, n. 1251, art. 16.

[29] In particular, the shortcomings and flaws of the system outlined in the Italian Civil Code had been the subject of much debate during the Fifth National Legal Congress in Palermo in 1903. Indeed, on that occasion it was acknowledged that reforms were needed, and a lawyer by the name of Piccolo had proposed guidelines which were approved, but given the complexity of the issue and time constraints, the discussion was postponed to a future congress (V Congresso Nazionale giuridico forense – Atti, Palermo 1904, vol. I, Adunanza del 25 aprile 1903, Discussion on the topic Delle riforme da apportarsi allo istituto della tutela, pp. 73-80).

[30] R.D. 21 March 1909, n. 162, art. 2. Regarding this provision, Vittorio Polacco disapproved of giving women the opportunity to become guardians – in other words, to exercise a munus publicum with respect to people outside of the immediate family – without their spouse’s consent; on the other hand, he believed that it was anachronistic to require a husband’s authorization for what concerned the financial interests of married women (V. Polacco, Di alcune deviazioni dal diritto comune conseguite al terremoto calabro-siculo, Padova 1909, pp. 11-12). On Vittorio Polacco, see the masterful work of Paolo Grossi in various studies, and in particular his long essay entitled ‘Il coraggio della moderazione’ (specularità dell’itinerario riflessivo di Vittorio Polacco), in «Quaderni fiorentini per la storia del pensiero giuridico moderno», 18 (1989), pp. 197-251, in Scritti in onore di Angelo Falzea, Milano, Giuffrè, 1991, and in Id., Assolutismo giuridico e diritto privato, Milano, Giuffrè, 1998, pp. 69-126; see also G. Cazzetta, Codice civile e identità giuridica nazionale. Percorsi e appunti per una storia delle codificazioni moderne, Torino 2012, passim and especially pp. 66-67, as well as M. Sabbioneti, ‘Polacco, Moisè Raffael Vittorio’, in Dizionario Biografico dei Giuristi Italiani (XII-XX secolo) edited by I. Birocchi, E. Cortese, A. Mattone, M. N. Miletti, vol. II, Bologna 2013, pp. 1609-1611.

[31] D.L. 6 August 1916, n. 968, art. 9.

[32] Circular n. 1936 issued on 14 November 1916, in «Bollettino ufficiale del Ministero di Grazia e Giustizia e dei Culti», XXXVII, 1916, p. 886.

[33] See title IX, chapter II, Della tutela, articles 241 et seq., passim.

[34] Article 251 of the Italian Civil Code.

[35] D.L. 6 August 1916, n. 968, art. 6.

[36] D.L. 27 August 1916, n. 1251, art. 2.

[37] Circular n. 1936 issued on 14 November 1916 [nt. 32], p. 886.

[38] D.L. 6 August 1916, n. 968, art. 7.

[39] Circular n. 1936 issued on 14 November 1916 [nt. 32], p. 886.

[40] Article 301 of the Italian Civil Code.

[41] This regarded both resolutions that were not subject to judicial approval (article 815 of the Italian Code of Civil Procedure) as well as those that were not unanimously adopted (article 260 of the Italian Civil Code).

[42] Supra, nt. 7.

[43] Tambaro, Gli orfani di guerra [nt. 3], pp. 75-76, wherein the opinions of Orlando, Mancini and Pisanelli are cited in the comments on the Italian Code of Civil Procedure.

[44] In Senate debates, Lodovico Mortara pointed out that providing assistance to children of incestuous or adulterous relationships, or to children born into cohabitation more uxorio, could lead to «extremely harmful consequences from a moral and social point of view, while encouraging concubinage and favoring the formation of illegitimate families» (A. Groppali, Gli orfani di guerra, Milano 1917, p. 13). See also the observations of G.P. Chironi, Sul disegno di legge sugli orfani di guerra, in «Rivista di diritto pubblico», 1917, pt. I, pp. 312-313. For a contrasting opinion, see R. Luzzatto, Diritto famigliare di guerra, in «Nuova antologia di lettere, scienze ed arti», s. 6, 188 (1917), p. 84, nt. 1, and G. Faggella, La legislazione bellica in relazione al diritto pubblico preesistente ed alle riforme future, in «Rivista di diritto pubblico», 1918, pt. 1, pp. 368-369. On the crisis that afflicted civil law and its sources – which had already begun to simmer in the late 1800s, but which emerged in overwhelming fashion with the flood of urgent measures enacted in order to cope with wartime needs – see P. Grossi, Scienza giuridica italiana. Un profilo storico, Milano 2000, p. 130 ss.; Id., Introduzione al Novecento giuridico, Bari 2012, passim; G. Cazzetta, Codice civile e identità giuridica, [nt. 31], p. 156 et seq..

[45] Circular n. 1936 issued on 14 November 1916 [nt. 32], p. 886.

[46] Ibidem.

[47] A summary of the arguments presented in the Chamber of Deputies, the Senate and their respective legislative committees can be found in Tambaro, Gli orfani di guerra [nt. 3], passim.

[48] L. 18 July 1917, n. 1143, art. 1: «The State is responsible for providing protection and assistance to the orphans of the current war».

[49] L. 18 July 1917, n. 1143, art. 8.

[50] L. 18 July 1917, n. 1143, art. 6.

[51] In addition to two senators and two deputies, there was a judge from the Supreme Court of Cassation in Rome, an assistant public prosecutor from the aforementioned court and a member of the Council of State; the chairman of the High Council on Welfare and Charity; the general director of civil administration in the Ministry of the Interior; two general officers, one from the army and the other from the navy; one accountant from the Treasury; and one delegate from each of the national institutions for the protection of orphans (article 7 of law n. 1143, 18 July 1917). Specifically, the latter institutions were the following: the National Institution for orphans of farmers who died at war; National Institute for Seafarers; the National Institute for the civil and religious assistance of war orphans; and the General Union of Italian Teachers (article 13 of law n. 1143, 18 July 1917).

[52] D.L. 30 June 1918, n. 1044, articles 19-22.

[53] L. 18 July 1917, n. 1143, art. 9.

[54] Tambaro, Gli orfani di guerra [nt. 3], p. 203 and 207, wherein particular reference is made to Don Sturzo’s concerns.

[55] D.L. 30 June 1918, n. 1044, articles 2-3; article 1 also specified that anyone who perished up to a year after the armistice due to an illness contracted or made worse during military service (no matter where they served), or even during civil service that was somehow connected to the war, would be presumed to have died due to the state of war.

[56] L. 18 July 1917, n. 1143, art. 42.

[57] D.L. 30 June 1918, n. 1044, art. 52.

[58] L. 18 July 1917, n. 1143, art. 17.

[59] D.L. 30 June 1918, n. 1044, articles 68-69.

[60] Ivi, art. 54.

[61] In addition to the inquiries conducted by the guardianship judge in order to ascertain natural paternity or maternity, the National Committee for war orphans was also now required to draw up a questionnaire for the judges to forward to municipal authorities and public security authorities, or to the Royal Carabinieri (D.L. 30 June 1918, n. 1044, art. 60).

[62] L. 18 July 1917, n. 1143, art. 17.

[63] Ivi, articles 18-19.

[64] D.L. 30 June 1918, n. 1044, art. 64.

[65] Ivi, articles 56-58.

[66] Ivi, art. 61.

[67] D.L. 30 June 1918, n. 1044, art. 71: however, if a conflict arose between the prefect and the Provinicial Committee, then the National Committee would be tasked with settling it.

[68] L. 28 November 1875, n. 2781, art. 2; art. 346, n. 5 of the Italian Code of Civil Procedure; l. 6 December 1865, n. 2626, art. 139.

[69] D.L. 30 June 1918, n. 1044, art. 53.

[70] L. 18 July 1917, n. 1143, art. 28.

[71] D.L. 30 June 1918, n. 1044, art. 59.

[72] D.L. 30 June 1918, n. 1044, articles 73-74.

[73] Progetto del codice dei minorenni, Roma, Stamperia Reale, 1912, articles 1 and 6.

[74] Ivi, art. 3, wherein the following was added in the second paragraph: «As the law on the judicial system provides for the training of auditors, the minister of justice shall take measures to ensure that those auditors who reveal themselves to be particularly studious in the above-mentioned sciences, be assigned to the most important offices under the district magistrates, where, should they demonstrate a special aptitude for the functions they have been assigned, they will be able to act as substitutes and collaborators, even after they have been promoted to the role of giudici aggiunti; they shall also be given preferential consideration when appointing district magistrates».

[75] Ivi, art. 5.

[76] Ivi, art. 4.

[77] Ivi, art. 8.

[78] Ivi, Relazione introduttiva, pp. 11-12.

[79] Circular n. 1968 of 1 September 1918, in «Bollettino ufficiale del Ministero di Grazia e Giustizia e dei Culti», XXXIX, 1918, p. 474.

[80] Ibidem.

[81] Ibidem.

[82] R.D. 31 July 1919, n. 1357, articles 2-3.

[83] Circular n. 26700-VII-C, issued by the Minister of the Interior on 30 August 1919, in «Bollettino ufficiale del Ministero di Grazia e Giustizia e dei Culti», XL, 1919, pp. 666-667.

[84] For more on Mortara, start with the two encyclopedia entries edited by Nicola Picardi: the one in Dizionario Biografico degli Italiani, vol. LXXVII, Roma 2012, pp. 232-236, and the one in Dizionario Biografico dei Giuristi Italiani, cit., vol.II, pp. 1383-1386.

[85] Circular n. 2017 of 25 January 1920, in «Bollettino ufficiale del Ministero di Grazia e Giustizia e dei Culti», XLI, 1920, pp. 76-77.

[86] Circular n. 1968 [nt. 79] of 1 September 1918, p. 475; Sacchi, too, had declared in 1916 that he was sure that in carrying out these «new, very delicate functions», the judges would show themselves to be, «as always» and «without a doubt, worthy of the trust placed in them» (Circular n. 1936 [nt. 32] of 14 November 1916, pp. 885-886).

Giuseppe Zanardelli and the Reformation of the Legal System (1890). Guide to an Archive Investigation. The “Embarrassing Issue” of Courts’ Abolition

Aldo Andrea CASSI

Univeristy of Brescia
aldo.cassi@unibs.it

Abstract: The essay means to reconstruct the dynamics, and the main themes below, of a technically complex and politically very delicate phase of the 1890’s judicial reform taken up by the statesman and jurist Giuseppe Zanardelli: the section dedicated to the “Modification of the judicial district and improvement of the judiciary salaries” (law 30 March 1890 n. 6702).
The reconstruction is based on archive documentation, largely unpublished: not only official documents, but also personal notes, memories, letters, note books, which recorded aspirations, moods, utopic feelings, compromises nourished by historical characters who participated in the reformation movement. Their analysis, besides allowing an adequate technical comprehension of the judicature’s genesis in the unified Italy and of the able and pragmatic role played by Zanardelli, could also be the opportunity to launch the gaze through a cut-out of the building that was growing. The unitary state for which the judiciary was inevitably not only one of its powers, but often also the “first line” contact between citizens and State.

Keywords: Giuseppe Zanardelli; Judiciary (1890); Law 30 March 1890 n. 6702; Judiciary – Modification of the judicial district – improvement of the judiciary salaries; Unified Italy – judicial reform

The abolition of courts due to budget requirements, the distinction in the career of the judges, their disciplinary rules, and their emoluments are not, in themselves, a recent issue in the development of the Italian legislative and political history. They represent a long-course issue, born together (if not existing) in the same unitary State, which laboured to deal with a suffered and tortuous legislative process (perhaps still open, and therefore a fortiori in need of historical reconstruction and historiographical debate).

If it is true that, in the aftermath of the political unification, lawyers such as Giuseppe Zanardelli, from Brescia, played the leading role in the Italian legislative activity
[1], in the reforming of the judiciary system, he was not only a prominent figure, but the energetic and tireless craftsman of a crucial stage, even if his role is not properly detected in parte qua.

In fact, if the asset as a politician and a statesman by Giuseppe Zanardelli make him one of the protagonists of post-unification Italy, his work as a lawyer is much less known and studied, with limits to the criminal code of 1889 that bears his name (On his actual contribution to which, however, debate remains open). The profiles of Zanardelli’s legal activity are varied, on the other hand: not only a reformer, but also a teacher and a lawyer, on each activity a path of study was only recently feasible, yet still in progress, conducted on copious unpublished documentation in the archives in Brescia[2].

Here, in the true “mine” represented by the archives[3], winds a particularly rich loaf and harbinger of possible scientific knowledge, whose valence expands well beyond the intellectual biography (although of primarily historical interest) of the single protagonist. One of the main lintels of the post-unification State, the Italian judiciary, is concerned here: the documentation, still unpublished, on the reform of the judiciary system prepared by Giuseppe Zanardelli in 1890[4].

In particular, it is possible to rebuild the historical genesis in detail (yet not, of course, hic et nunc, for the limits within which the present contribution must be confined[5]) of two of the pillars of the complex rules in the reorder and reorganization of the judiciary, carried out after the rise to power of the Left, i.e. the law March 30, 1890 n. 6702 for the “Modification of the judicial district and improvement of the judiciary salaries” and the “provisions about the admission and promotions in the courts”, set forth in the law June 8, 1890 n. 6878. Moreover, the latter was carried out together with another crucial piece of the articulated mosaic represented by the judicial reform: the general judiciary regulation issued[6] by Royal Decree of November 10, 1890 n. 7279, which was prepared on the basis of a draft personally studied and outlined by Zanardelli[7].

Due to the inherent limits of this contribution, a brand new look in the archives is proposed in the following pages dedicated to the first of the two pillars of the reform, the law March 30, 1890 n. 6702, by referring to the next occasion to complete the diptych designed (and, as we shall see, elaborately built) by Zanardelli.

If the post-unification policy on the reform of judiciary is deeply rooted in our Risorgimento, it certainly constitutes one of the many threads of the entangled historiographic node clumping around this period. It is still the subject of clinically examined controversy[8], a survey in the archives (in official documents, but also personal notes, memories, letters, note books) which recorded aspirations, moods, utopic feelings, compromises nourished by historical characters who participated in the reformation movement. Not only the two “antagonists” of this story, the political class and the judiciary, but also the public opinion[9], could be the opportunity to launch the gaze through a cut-out of the building that was growing. The unitary state for which the judiciary was inevitably not only one of its powers, but often also the “first line” contact between citizens and State[10].

The process of political-administrative centralisation[11] started by the newly born post-unification State, defined by the historiography with the appropriate double formula “Piedmontization” and “Steam unification”[12], could not comprehend the judiciary, whose priority was, in the intentions of the Savoy political class, to ensure at least the loyalty to the government through appropriate appointment and control mechanisms[13].

This goal was pursued especially entrusting wide powers to the Minister of Justice in the matter of recruitment and career development for magistrates[14], by fact allotting the judiciary in a position of dependence from the Executive, making the guarantees of non-removability laid down in the Albertine Statute vain[15]. Under the latter profile in the debate on the new judicial system, the tongue turned to the aching tooth, also known as the cover of numerous vacant seats. This theme was walking distance with that of the emoluments of judges. It was almost unanimously regarded as excessively low level, with consequent damage to the reputation of the judiciary and of its function.

In fact, it had been complaining from many parties (and the Minister Keeper Zanardelli took good note of it) that the most talented young people coming from Law faculties would rather dedicate themselves to the exercise of legal professions or to administrative careers, rather than undertake the office of Judge, harbinger of modest salaries, living in places which were often very far from home and to the uncertainty of the progress in the career itself[16].

The need for coverage of judicial seats in the national territory required an expansion in the staff, that however, in turn, not only increased the level of expenditure, and consequently forced a strict “wage policy”, but led to lower the requirements threshold (and therefore of the professionalism) of magistrates:

in order to be able to recruit as many magistrates were necessary to cover the seats that were annually vacant… the requirements that first were applicable to those undertaking this career had to be lowered, because the number of candidates had become inferior tothe need. But the administration of justice did not certainly [have] an advantage in taking this measure[17].

With the law of December 23, 1875 n. 2839, a the less restrictive criteria modification[18] was, in fact, expected to the access to the legal functions, thus allowing the entrance to the judiciary also to the courts’ junk[19]. Crispi himself- Zanardelli noted in his work notes[20] – thought the time had come to return the judiciary their prestige and independence.

Therefore, in spite of the “mini” 1875 reform – and indeed, by reason of it – the judiciary was considered totally inadequate to the needs of the time[21]. In the aftermath of its adoption, numerous proposals were submitted for reform “in that both the ministers and by parliamentary initiative, successively followed in guiding the judiciary issue”[22].

All the Keeper Ministers in succession had constantly in mind, even with different modality and timing, the goal of reforming the judiciary, but none of their proposals was filed in the parliamentary procedure[23], in spite of the fact that (or, vice versa, because…) the presence of lawyers, and specifically of magistrates, was substantial in the Parliament[24].

When Zanardelli agreed to enter the Crispi government (which, indeed, did not agree with all his political line[25]), he returned to the guide of the Ministry of Justice in 1887, and profoundly and immediately committed on this front. As it appears from the sources, it can be indeed said that his main concern was not the criminal code, which will be then named after him[26].

He did it, however, by following a different modus operandi from its predecessors, less ambitious but more concrete; by keeping the strategic goal (reform of the judiciary), he changed his tactics. In the face of the previous failure, he maintained a reform profile which was much more cautious, but (just because of this) fraught with effective results. By plotting the coordinates that he would have followed with dogged perseverance along his entire government activity, he abandoned the project of a reconstruction ab imis fundamentis of the judiciary (which was proved to be utopian), and pursued partial reforms instead, but with perseverance and determination and firmness, especially following two guidelines that Zanardelli would maintain parallel. That in fact, as stated, will culminate in two laws promulgated in 1890 at only a few months distance from the modification of the districts (which was connected the economic regime of the magistrates[27]), and access to the courts.

The opportunity of such a working line was explicitly highlighted by Zanardelli in relation to the draft reform. The minister noted that “there were special and inescapable urgent issues”[28] which were incompatible with the long time of an overall (and complex) reform, and this was confirmed when he intervened to the Camera during the parliamentary debates, in the belief that “it [wasn’t] thing worthy of statesmen, worthy of legislators, to suddenly and completely subvert all interests, all the traditions of the judicial life of a country”[29].

Zanardelli therefore would consider “wise and better accomplishing the purpose, to deal with the difficulties in various shots”[30], by making gradual changes in the judicial institutions in force in order to pursue a reform “extrinsic” to the orders of the administration:

Economies are of two sorts. The former spring out of reforms we could define intrinsic to the laws and to the judiciary orders. Other reforms, of an extrinsic kind, which consist in suppressing district courts, tribunals or national courts[31]

They had therefore to proceed to the “suppression of district courts, tribunals, or national courts”, not only in the name of a drastic “expenditure cut”[32], but of an efficient reorganisation of the resources, both human and professional ones, according to the principle of having “few but good officials, and well-paid”[33].

Moreover, the strategic choice to follow the path of the partial reforms, ringing the reorganisation of chancelleries and the secretaries[34], the abolition of the courts of commerce and the unification of the Court of Cassation in criminal matters[35], had produced excellent results up to that moment[36].

Therefore, abandoning some of his delegated powers from the Camera, Zanardelli put the abolition of Tribunals aside, focusing on the courts. This choice not only answered the requirement not to radically change the judicial system, but also, lucidly and perhaps even with a pinch of cynicism, got to a very “empirical” issue that was revealed to be one of the most delicate problems of the Italian judiciary: the problem of slow progression of careers. However, it did not skip the gentleman from Brescia that the abolition of the courts would have removed further “vertical space” from the promotions of the judges in the lower grades, if proceeding in the more drastic direction of rewriting the districts,. On the basis of this consideration, the conviction was expressed that they could make important savings also through the review of organizational map of the same courts, without the need to abolish them[37].

Moreover, if you considered that the number of district courts was far greater than that of the courts, it was then clear that the number of those that they would have been able to suppress without prejudice to justice was higher:

the suppression of several national courts offends[ed] already too many susceptibility and hits[hit] so many local and private interests …that it would not have certainly benefited from an increase in the difficulty of the issue, which was already quite serious and delicate, made harder by the decrease of the courts, thus promoting a dangerous coalition of those who would feel affected by one or other of the two measures[38]

On the other hand, the spending cuts would have allowed the increase of emoluments of judges, making them more decorous and ensuring greater independence of the magistrates themselves[39]. Therefore, in the face of the vote on May 24, 1888 with which the Camera showed a willingness to see the number of seats in both the national courts and of district court limited, the Government was focused on the reduction of the first, by implementing a review of the roles of the collegial judiciary and increasing the level of the salaries of judges lower than the 4000 Lira, postponing the question relating to seats of tribunals to another moment.

Zanardelli introduced himself with such relish as tireless worker, who “consecrated long day and night hours to his studies, and from the fulfilment of his duty, more than from any other award, he drew sweet consolation”[40]. In fact, if his attitude towards study is documented[41], the Brixian dedicated a careful analysis bordering the painstaking to the organization of the work of the judges. The amount of material collected and studied by the gentleman from Brescia to prepare his project for the reform of the judicial districts is proof to this: personal notes, articles from newspapers, correspondence, documents where the suggestions received from judges, lawyers and colleagues were collected statistical data[42]. An important aspect, which can here only be reported, is the comparison made by Zanardelli with the situation in other States[43], from which the huge difference emerged between our own salaries and those of foreign countries[44].

The available data of the Keeper showed how many dyscrasias in workload there were between the different courts and how appropriate it was to decrease the less active ones. On the other hand, in order to decide which of the 1819 national courts listed, were the ones to suppress

the criterion of work burden could not be taken as unique and exclusive criterion to keep or abolish a district court[45].

It seemed once again to be a compromise choice, geared to the prudent calibration of opposing interests.

The keeper was well aware that many national courts, despite having very little workload, could not be deleted without causing considerable inconvenience to the citizens, and that they could not certainly “completely deprive them of the benefits of the administration of justice”[46].

Zanardelli, persuaded about the need to proceed with great caution in what he defined the ‘embarrassing issue’[47] of the abolition of courts, opted for a choice that could reconcile local interests (enjoyment of justice by the citizens of peripheral locations) and common good (rationalisation of the judiciary): he held the tiller steering in the direction to suppress the Office of magistrate in these small and isolated districts, keeping the legal judiciary office[48]: The magistrate of the district resulting from the aggregation of two or more districts, preserving their ordinary business in major urban centres of the (new and expanded) constituency, would be transferred in a predefined day – of each week or every fortnight, “according to the seasons and the number of business”[49] – in the capital or in the deleted district regional capitals “to administer justice”.

This direction was not certainly unanimously shared[50], but Zanardelli, persuaded of the practical advantages that this would have resulted in, defended it with firm obstinacy, not without resorting to irony, noting that “these people did not care have a district court judge who lived there by night, what mattered instead was that he took audience”[51].

The pressure of local interests to defend even the smallest offices was very strong and Zanardelli knew that “the thankless reducing task”[52] would certainly have turned on “dissension” where those districts were that had to be deleted. Referrals, recommendations, pressures came not only from Members who did not intend to lose important electoral quotas in their colleges, affected by the reduction of district courts, but also by municipalities, by provincial councils and members of the same judicial order. The Minister was oriented in the direction of not indulging beyond measure in local favouritism even in areas of “political competence”, as demonstrated by the concern of the Municipality of Gargnano. Fearing the abolition of the local magistrate[53], they sent a telegram on January 20, 1889 asking the keeper to take into consideration the necessity of maintaining the judicial seat, which was established in 1853, since, by that time, road conditions had remained unchanged[54].

Zanardelli only answered vaguely, by deferring to the general criteria and evoking long periods of time and likely delays[55].

The pressures that the Keeper was constantly put on made him well understand that defining the new district by subjecting a draft law to the Parliament would mean handing the reform hostage to the local interests that every Member was concerned to assert, in order to maintain the judicial offices that were in the district of their constituency.

Zanardelli, in other words, understood that he was supposed to present a bill where provision was made for the reduction of judicial seats within certain limits set by law, without going too dangerously in detail, and reserving the executive decision on the number and the seats by decree. It would be so to avoid excessive resistance during parliamentary debate with a consequent significant decrease of the pace of the reform’s implementation[56], which was, instead, urgent and indefectible, since the evil was so serious that, without a ready remedy, it would become irreparable[57].

The Minister, therefore, established a practice inaugurated in the aftermath of the legislative unification[58], asking the Parliament for the right to prepare the reform of constituencies by royal decree, not without believing that the Government would make use of a Committee of competent and impartial men, selected partly from the Camera and the Senate (a sort of delegation of the Parliament) and partly between senior officials of the State, and not without considering he should hear the opinion of provincial councils, in order to avoid any “neglect of the real needs of the populations, an uneven appreciation of the various natural economic, and legal elements”[59].

The ministerial decree draft called for, next to the aforesaid topographic criteria[60] (art. 2), a protection standard (art. 3) which would make it possible, in special topographic or climatological circumstances[61], to maintain the judicial seat in the chief town of a magistracy intended, by virtue of those criteria, to be suppressed, establishing the obligation for the magistrate to keep hearing on pre-set days.

The position of those officials who had been made redundant was then managed: placed in availability regime for three years (art. 6), the Government could rely on them for a useful service; at the end of the three years, unless rights to a pension or allowance raised, they would have been exempted from service (art. 7). In any case, until the number of officials in service had not been reduced to the one established in new positions, new appointments could not be made.

Article 8 of the ministerial project formulated one of the focal points of the entire reforming operation: “with the sums available due to the reduction in organic personnel assigned to the national courts, the district courts and courts of appeal”, the Government was authorized “to increase the salary” of members of the judiciary in service.

On May 6, 1889, the ministerial project entitled “Modifications to the judicial district and improvement of the salaries of the judiciary” was therefore first submitted to the Camera, in which the guidelines and the accurate preliminary work of the keeper merged. The committee chaired by the honourable. Serra and that had Cuccia[62] as lecturer was to express on this text, proposing changes. Consideration of the close correspondence between the latter and Zanardelli bears witness to how close they were the relations between the Government and the Commission, and reveals the impact of the Keeper in the work carried out by the Commission itself.

In fact, Zanardelli spent considerable energies so that the project would become a reality, as evidenced by the many letters with which he urged the members ‘friends’ to take part in the parliamentary work, alerting that a bill of vital importance for the [our] judiciary would have been presented[63]. Such ‘mobilisation’[64] offered the measure of the resistances that Zanardelli knew he needed to overcome[65].

On June 17, 1889, Cuccia, as a lecturer, presented the report and the Commission draft law to the Camera.

It is not even possible to mention the work of the Commission[66] and the energetic conscientiousness with which first the keeper welcomed the invitation (expressed on a confidential basis[67]) to provide supporting documentation[68] and, then, retorted point on point to the number of unacceptable- according to him, change proposals made by the commissioners[69].

It should be emphasized, however, that the influence of the Keeper on the outcome of the work in the Commission was unquestionable: change proposals ‘survived’ to the persuasive activities of the Minister were highly formal.
Once forwarded to the elective Chamber on February 17, 1890[70], the draft law had to be fiercely defended by the Keeper, who declared himself surprised by the numerous and aggressive opposition[71] that he was facing in the parliamentary debate[72].

Making use of his political skills and rhetoric, and alternating replication to the objections, point after point, and displeased indifference to the critics[73], Zanardelli managed to bring the draft law on “Modifications in the judicial district and the improvement of salaries of the judiciary” to be approved by the Camera, with the vote by secret ballot on March 1, 1890. Ten days later, the text arrived at the Senate of the Kingdom, who released law n. 6702 on March 30, 1890 after a much shorter debate.

Two brief but significant observations can be made at the end of this (first and concise) ‘retracement’ of one of the fundamental axes of the post-unification judicial reform.

The number and the vehemence of resistance encountered from the (first tranche of the) reform by Zanardelli are only apparently disproportionate compared to the “poor technical complexity of the project”[74] and should not be welcome as a surprise. On the contrary, such disagreement offers the measure of how the “technical legal” element of the reform was to touch the exposed nerves of the post-unification judiciary and of the political-constitutional element implied in it.

In addition, the law March 30, 1890 n. 6702 delegated the Government to change the constituencies – according to the demo-topographical parameters desired and defended by the Keeper – by the decree. This circumstance was a double-edged sword: on the one hand, in fact, the Government reserved a much more agile and suitable implementation tool to focus and to reach the individual concrete reality of the voting districts; on the other hand, precisely for this reason, it became the compensation chamber to a new and even more tempestuous wave of pressures, good righting moment, protests and counter-proposals (compared to what happened in the parliamentary committee and the Camera). The outcome of the law implementation offers a significant confirmation: of the 600 national courts that had to be deleted on the basis of the parameters approved by the legislation, only half of them got suppressed.

In this perspective, and in the face of the resistance encountered, the latter highlights the political skills and the legal competence demonstrated by Zanardelli in desiring and defending this project, perhaps the most “embarrassing” one – as the same Keeper of the Seal had well understood[75] – of the reform of the legal system. He went out to touch, in order to erase them, certainly ‘minor’, yet historically consolidated, judicial seats, centre of gravity to political satellite activities and of economic importance.

As stated earlier, a little more than two months after the final approval of the law on “Modification of the judicial district and improvement of the judiciary salaries”, the “provisions about the admission and promotions in the courts” were promulgated, the other of the two pillars in the reform of the legal system implemented by Giuseppe Zanardelli.

We will follow some of the steps in detail through the discussion of unpublished documentation archive on a further occasion[76].


Acronyms
ASB = Archivio di Stato di Brescia
FCAB = Archivio Fondazione Credito Agrario Bresciano

[1] A. PADOA SCHIOPPA, Storia del diritto in Europa. Dal medioevo all’età contemporanea, Bologna 2007, p. 557-558.

[2] For a better biographical detailing (made necessary by a number of persisting mistakes, validated by trustworthy storiography, as well), please see Zanardelli, in Dizionario biografico dei giuristi italiani (XII-XX secolo), by E. Cortese – I. Birocchi – M.N. Mattone – M. Miletti, 2013, vol. II, ad vocem, with bibliography. Other storiographic detailing is also available in Il ‘cantiere storiografico’ dedicato a G. Zanardelli. Rilievi di metodo e linee di ricerca, in Lavorando al cantiere del ‘Dizionario Biografico dei giuristi italiani’ by M. G. di Renzo Villata, Milano 2013 pp. 351-371. On his activity as a teacher and lawyer, please see both “Spiegare alle giovani intelligenze”. Giuseppe Zanardelli e l’insegnamento giuridico, Brescia 2008, and “Quella carriera cui tendo da 13 anni”. Note d’archivio per una ricerca su Zanardelli avvocato’, in Avvocati e avvocatura nell’Italia dell’Ottocento, by A. Padoa Schioppa, Bologna 2009, pp. 663-703; on Zanardelli as a lawyer, please see, at last, the profile drawn by A. SANDONÀ, Giuseppe Zanardelli (1826-1903) in Avvocati che fecero l’Italia, by S. Borsacchi and G.S. Pene Vidari, Bologna, 2011, pp. 258-271. On the ‘Zanardellian matrix’ on the port-unitary criminal code, see A.A. Cassi, Zanardelli e il ‘suo’ codice. Annotazioni d’archivio, in ‘Diritto Penale XXI secolo’, IX, 2 (luglio-dicembre 2010), 2011, pp. 413 foll.

[3] Mine whose excavation permits to recover testimonials “of great importance for the not only legal history ” of Italy: see A. Padoa Schioppa, Introduzione in Avvocati e avvocatura, quote (note 2), p. 20.

[4] It is largely preserved at the archive of Fondazione Credito Agrario Bresciano (from now on FCAB), while some cards are also found at the Museo del Risorgimento in Milan, as quoted in A.A. Cassi, “Spiegare alle giovani intelligenze”, quote (note 2), pp. 19-22.
In the last year of his life Zanardelli, as President of the Council, will present, with the Minister of Justice Francesco Cocco Ortu, a new reform proposal; the Relazione al disegno di legge sull’ordinamento giudiziario presentato alla Camera dei Deputati nella seduta del 12 febbraio 1903 (in Atti parlamentari, Camera dei Deputati, Documenti, leg. XXI, 2nd session 1902-3, doc. 294) is briefly traced in C. Danusso, L’opinione pubblica e il giudice unico di prima istanza: il dibattito sul progetto Zanardelli di Riordino della magistratura (1903), in Processo penale e opinione pubblica in Italia tra Otto e Novecento, F. Colao, L. Lacchè e C. Storti (ed.), Bologna 2008, pp. 195 foll.

[5] The latter, therefore, is proposed to highlight the methodological guidelines for a much more thorough research that deserves to be conducted, with the aid of the unpublished documentation, here also quoted, in a short time and locations appropriate to the commitment it entails.

[6] According to the proxy conferred on the Government by article 19 of law No. 6878 of 1890; on this latter an overview in C. Danusso, Il reclutamento dei magistrati nel dibattito del tardo Ottocento, in Rivista di Storia del Diritto Italiano, 84, 2011, (pp. 151 foll.) pp. 196-199 .

[7] It is preserved in manuscript package bound undated, under the term “Disposizioni per l’attuazione della legge 8 giugno 1890 n. 6878, serie III” at ASB, b. 86. His close examination allows to detect as the design outlined by Zanardelli has remained substantially unchanged in definitive R. D. on November 10, 1890 n. 7279.

[8] […after many debates and many controversies on the Risorgimento, endlessly thought about, exalted and desecrated, we cannot say that today’s historiography has reached now all the conditions for a judgment objectively balanced on this historic event]; A. Cavanna, Ragioni del diritto e ragioni del potere nel codice penale austriaco del 1803, in Cunabula iuris. Studi storico giuridici per Gerardo Broggini, Milano 2002, pp. 101-144 (pp. 101-102). In fact, the Risorgimento remains “one of the main nodes – if not “the” node par excellence- of the Italian contemporary history “: O. SANGUINETTI, Letture del Risorgimento: una panoramica (1815-2000), in La rivoluzione italiana. Storia critica del Risorgimento, (a cura di M. Viglione), Roma 2001, pp. 397 foll., to which reference should be made for a updated historiographical report.

[9] The role of the later in the dynamics of criminal justice was explored from the abovementioned volume Processo penale e opinione pubblica, quote. (n. 4); please see also the nicely written essay by L. Lacchè, Per una teoria costituzionale dell’opinione pubblica. Il dibattito italiano (XIX), in Giornale di storia costituzionale, Opinione pubblica. Storia politica costituzione (XVIII-XX s.) n.6/II, 2003, pp. 273-290.

[10] Zanardelli (who was up-to-date for what contemporary readings were concerned, also of a legal nature; see Cassi, “Spiegare alle giovani intelligenze”, quote. (note 2), pp. 137 ss.) proves to be aware of the friction that could occur between the citizen and the dynamic physiological state judiciary,

[hence the increasing intervention of that power to protect the rights and interests of each that [was] the Judicial Authority. On the other hand, the progressive unwinding of democratic institutions in the countries governed in popular regime [contributed] itself to increase [sic] the moral importance and political functions of the judiciary. Since the more [were] the reliefs the citizens [enjoyed], the wider the field in which [they could] exercise their authority, and more secure and inviolate [was] the empire of the law to be maintained, so that the freedom of someone [might not urn into] each other’s offence]

Report on the bill concerning the changes to the judicial district and the improvement of salaries of the judiciary, in: AP, Camera dei Deputati, Documenti, leg. XVI, 4th session1889-90, n. 4, p. 2.

[11] R. Romanelli, Centro e periferia: L’Italia unita, in Il rapporto centro periferia negli stati preunitari e nell’Italia unificata, Atti del LIX congresso di storia del Risorgimento italiano (L’Aquila-Teramo, October 28-31, 1998), Roma, Istituto per la Storia del Risorgimento italiano, 2000, pp. 215-248 (see also Id. Centralismo e autonomie, in Idem (a cura di), Storia dello Stato italiano dall’unità a oggi, Roma 2002); P. Calandra, Storia dell’amministrazione pubblica in Italia, Bologna, 1978, pp. 55 foll.; C. Pavone, Amministrazione centrale e amministrazione periferica da Rattazzi a Ricasoli (1859-1866), Milano 1964;.

[12] R. Bonini, Disegno storico del diritto privato italiano (dal codice civile del 1865 al codice civile del 1942), Bologna 1982, p. 17; C. Ghisalberti, La codificazione del diritto in Italia (1865-1942), Roma-Bari 1997, p. 14.

[13] P. Saraceno, I magistrati italiani dall’unità al fascismo, Roma 1988 p. 58 foll. For a more up-to-date reference framework, please see now A. Meniconi, La magistratura italiana, Bologna 2012.

[14] M. Taruffo, La giustizia civile in Italia dal ‘700 a oggi, Bologna, 1980, p. 139.

[15] Actually, the initial government policy was to transfer a certain number of magistrates from Piedmont in the new provinces, motivating these choices with the need to spread judicial staff that already knew laws and subalpine judicial systems well; in reality, it was often a trick to remove ‘undesired’ elements. However, the official motivation was weak, because the organogram of the Savoy provinces was too limited to achieve the “Piedmontisation” of the new Italy (and in fact about half of the new organogram staff was carried out by appointment, for direct choice of minister of justice, lawyers and notaries; see C. Guarnieri , Magistratura e sistema politico nella Storia d’Italia in R. Romanelli (a cura di) Magistrati e potere nella Storia europea, Bologna 1977 pp. 241-2711997). The “unofficial” one had to clash with the strong resistance from subalpine judges to their destination in courts of central Italy and, more importantly, in southern Italy. The statutory principle of the non-removability of judges appointed by the King (art. 69) was therefore often circumvented; but it was in fact also compressed against the higher magistracies: see. A. Capone, Destra e sinistra da Cavour a Crispi, Torino 1981, p. 209.

[16] [“There are two causes for the low level wherein the judiciary lies in recent years. The first is the excess number of magistrates that need meet the not excessive quantity of the various seats of the individual existing courts. The second cause is the rule by which the dismissed officer… believing to have mighty wings shies away from the judicial career to be given to the career of patronage; of the judicial career, the young man nothing else smells than the modest salary, almost poor, the inconvenience of living far from native place and the uncertainty of the progression of his career. In the court, on the other hand, in the lively imagination of their twenty years, they see nothing more than many profits, fame and the honours, while they avoid considering the infinite disorders of lawyers belonging to the patronage and to the legal profession, which lack any means of work and decent livelihoods. Fallen in the most human of disillusionment; and after having uselessly wasted the best years of their existence, they knock in older age, incredibly numerous at the gates of the ministry of grace and justice to obtain, such as maximum of all the favours, the appointment to Magistrate.. “.]
So the notes of Zanardelli express concerning on the report of Righi on the conditions of the judiciary; see FBCAB, envelope 5, file II.

[17] Notes by Zanardelli, in ASB, envelope 852, sheet n. 164.

[18] In particular with the lower limits of pension required for direct appointment as magistrate and increasing the cases of exemption from the practical examination.

[19] […It was the last straw, it was the law December 23, 1875 to open new doors in sacrarii of justice, with the scraps of the Court, and allow these will enter them, as hundreds had joined from 1876 onwards, even without exams and this in the aftermath of their departing from school desks: at 21 years”]. These are the words of Corbell, transcribed by Zanardelli in his work papers regarding the justiciary in Italy in 1886; in FBCAB, envelope 5, file II.

[20] [“The country cannot wait because it’s already twenty years since the needs of justice have been growing and cause continuous ranting here inside the House, without seeing any results”]; words attributed, de relato, to Crispi from the notes of Zanardelli on the intervention of the on. Castelli; FBCAB, envelope 5, file II.

[21] The minister Tajani, in a report given by Zanardelli, argued that “the law of 1865 had no the repose of public opinion, if not for a brief moment”; in: FBCAB, b. 5, File II.

[22] These are words spoken by Zanardelli in the report on the draft law n. 95 of the III session 1889, resubmitted at the Camera in the following session, Atti Parlamentari, Camera dei Deputati, Documenti, leg. XVI, sess. IV, N. 4.

[23] The failure of previous reform attempts is summarized in the speech by the honourable Della Rocca at the Chamber of Deputies when the floor was given to Minister Keeper Zanardelli:
“up from 1865 the Government was empowered to make a proposal for a new judicial district, but the government is not believed to exercise this option. In 1866 the Commission called ‘of the fifteen’ made proposals in this sense, which however were not followed. In 1867 the Budget Commission took the initiative also to ask the government to do a similar reduction, but this initiative had no fulfilment. In 1868 the keeper De Filippo presented a draft law for modifications to the judicial district, but it was not discussed. In 1871 the Minister De Falco filed a similar proposal, which was the same, in 1874, minister Vigliani did the same. In 1875 he repeated the proposal. In 1870 – I forgot – there was also a proposal in this direction. In 1877, the minister Mancini proposed a reform of the judicial district but without results. In 1879 Tajani made a comprehensive proposal for a total reform of the judiciary, but that proposal had no discussion. In 1885 Tajani himself offered another complete diagram that was widely studied; but no deliberation was reached…”. See Atti Parlamentari (AP ), Camera, Discussioni, legislatura XVI, sessione VI, session on February 22, 1890.

[24] P. Saraceno, Alta magistratura e classe politica dalla integrazione alla separazione, Roma, 1979, p. 35

[25] In the opinion of a careful historiography on Zanardelli, the fundamental difference between the two statesmen was the fact that “the northern minister, who was born and grew up in a province as ‘white’ as a few, [favoured] the fight against the clerical danger, while the president of the Council of Ministers [was] more and more persuaded that the ‘Red ones’[were] to be considered the new and more formidable enemies of the State”: see R. Chiarini, collaboration (in time) with Crispi. In: Figure del Risorgimento italiano. G. Zanardelli 1826-1903. Il coraggio della coerenza, Ginevra-Milano, 2003, p. 68. It must be said that even the deep differences in foreign policy and financial kept them apart.

[26] If nothing else, because the to-be-promulgated code would not be able to fully deploy its effects without the support of a properly renewed judiciary system. But this was only one of the many and serious elements (“special and inescapable urgencies”, see infra in the text) that made a judicial reform indispensable.
Other, on Zanardelli’s priorities, in G. Frigo, L’eredità giuridica e forense di Giuseppe Zanardelli alle soglie del 21° secolo, in: G. Zanardelli, L’Avvocatura: discorsi (con alcuni inediti), Milano, 2003, p. XXVIII. About the criminal codification activities personally carried out by the Brixian (stronger than sub specie juris legal historiography has recognized so far), see. A.A. Cassi, Zanardelli e il ‘suo’ codice, quote (note 3).

[27] See below note 39 and corresponding text.

[28] Ministerial Report to the draft entitled “Modifications to the judicial district and improvement of the salaries of the judiciary”: “Every delay interposed to improve the fate of the judiciary is a source of serious damage to the repubblic …”
AP, Documenti, Legislatura XVI – 4th session1889-90, n. 4, p. 3; also in: Discorsi, Camera dei Deputati, March 25, 1903, p. 619.

[29] Discorsi, Camera dei deputati, February 21, 1890, p. 540. Also in: AP, Documenti, Legislatura XVI , 4th Session 1889-90, n.4, p. 6 : “… I would add that upsetting too many interests and too many habits at a time with a general change in jurisdictions would not be proof of political wisdom, and on the other hand would make the solution to the problem more complex and awkward”.

[30] AP, Documenti, Legislatura XVI, 4th Session 1889-90, n. 4, p. 2.

[31] “Le economie sono di due sorte. Le une si ricavan da riforme che potremmo dire intrinseche alle leggi ed agli ordini giudiziarii. Le altre di riforme, estrinseche, che consistono nel sopprimere corti, tribunali o preture”; so in various notes and clipboards on the jurisdicial, handwritten by Zanardelli, FBCAB, b. 6, file III, cc. 126.

[32] “Even in the case that my colleague the Honorable Minister of the Treasury made a few million available to improve the conditions of the judiciary to which he also nobly belonged, even in this case, I would take the chance for raising salaries in higher degree…but I would suggest to decrease the number; so this solution of the problem is not only a financial need, rationally, intimately inseparable from the goal that we must accomplish”.
See Discorsi, Camera dei deputati, February 21, 1889, p. 549.

[33] “It seemed to me so much better to adopt, also with respect to the judiciary, the wiser attitude: a few, but good employees, and well-paid, so to reach the purpose of decreasing the number of magistrates, suppressing the most useless judicial seats”.
See. Discorsi, Camera dei Deputati, February 21, 1890, p 549.

[34] June 29, 1882, law # 835 that reformed the judicial registries service by modifying the method of tax collection proceedings.

[35] Speaking at the Camera, in relation to the method chosen by the Keeper to change the judicial district, in the session of December 1, 1889, Righi, lecturer of the Commission for the unification of the Court of Cassation on criminal matters, said: “this is…the reason why we in the Committee and especially me, …could, with a glad heart and boundlessly willing, support this bill, which does not mark more than only one step in rearranging the judicial of the Kingdom… I believe the choice of the means to achieve the same goal is purely a matter of method, which must be resolved by the Keeper, who is a technical and law-wise man, but who must also be a politician, and be put in contact with the thought of the people by means of the consulate of the country in the way he is; he knows, following the flowing of time, which is the best method to achieve the ultimate goal”. In A. P., Discorsi, Camera, p. 987.

[36] Acknowledged even by those who sometimes were out of step with the Keeper:
“There cannot be any doubt that the Minister Zanardelli, by leading this reform to completion already being designed by his predecessor Taiani since 1879, has rendered a great service to the cause of reform of the supreme judiciary. In fact, you can say that he won this case in favour of unification; although the current state of affairs does not represent anything but the agony of the regional Courts of Cassation and that may not be differently accepted but as precarious in attitude. Otherwise, it would be the most monstrous of the absurdities that human mind has ever been able to conceive in theme of legal system. In truth, what have we got now, if not two degrees of judgment of supreme court, in the areas that are not within the exclusive competence of the Court in Rome? And what more sickening issue than this, towards the attitude, the goal, the service, the authority of the Court of Cassation? It could not be there a greater denial of the rightful legal sense, that this of a four Courts administering the law…” In: L. Mortara, Istituzioni di ordinamento giudiziario, Firenze, 1896, p. 222.

[37] “as far as the Courts were concerned, for economies’ sake, you [could] provide even through the revision of the organograms of the courts themselves” in Discorsi, Camera dei deputati, February 21, 1890, p. 539.

[38] See the handwritten notes by the stateman, in: ASB, b. 852, n. 164, sheet 1.

[39] AP, Documenti, Legislatura XVI – 4th session 1889-90, n. 4, p. 3-5: “In the midst of this society of ours, where all the classes of citizenship try, through the free and enlightened exercise of their own forces, to procure a higher prosperity for themselves, most of the magistrates, and precisely the ones that live closer to the people, live miserably, with serious detriment of their decor,; not only, but also with a prejudice against the common trust in social justice”.

[40] See Discorsi Parlamentari di Giuseppe Zanardelli – published [posthumously] for deliberation of the camera dei Deputati, on January 28, 1904, v. III, Roma, 1905, p.640

[41] A.A. Cassi, Spiegare alle giovani intelligenze, quote., passim.

[42] On the importance given by Zanardelli to Political Sciences, see ibidem, pp. 91 foll.

[43] Ibidem, pp. 140 foll.

[44] Discorsi parlamentari, Camera dei deputati, February 21, 1890, p. 542.

[45] AP, Documenti, Camera, Legislatura XVI, 4th session1889-90, n. 4, p. 7

[46] ASB, b. 852, n. 164, foglio 7.

[47] A. P., Camera, Documenti, Legislatura XVI, 4th session 1889-90, n. 4, p. 8.

[48] Ibidem.

[49] A. P., Camera, Documenti, Legislatura XVI, 4th session 1889-90, p. 8.

[50] There was the opinion, annotated by the Brixian Gentleman, of people like Cesarini, who believed that it was not a convenient choice, considering the major expenses: “Because if it were only to clear an expense entry from the budget, in the Personnell category, which you should then necessarily list in equal proportion, if not higher, in the category justice expenses for allowances; judicial transfers…: anybody can see it is only a vicious circle, a phantasmagoria; and we would never recommend to put the people in such distress, to spread discontent among them, which already is too much, and push them to the extreme remedy of obtaining justice from their own hand against the difficulty of acquiring it from the legal courts, without the economy being adequate to the sacrifice that their asked”; see FBCAB, b. 6, file III.

[51] Discorsi, Camera, February 27, 1890, p. 575.

[52] These are the Keeper’s words in a letter to a friend of his, Teresa Curi, in:ASB, CZ, b. 86.

[53] That the district of Gargnano was among those to suppress is demonstrated by a series of personal notes of Zanardelli, inserted among the studies for the modification of the judicial districts, where he considered the situation in his province, and according to whom the following seats were to be suppressed: Rovato, Ospitaletto, Leno, Adro, Rezzato, Bagnolo, Bovegno, Gargnano, Preseglie, Bagolino, Pisogne and Montichiari in: ASB, b. 852.

[54] See ASB, CZ, b. 852.

[55] Among the others, the abovementioned “domestic” affair:
Rome, 22 January 89/ Municipality in Gargnano/The reduction in the number of national courts for which I am preparing a draft law will not be carried out earlier than a few years later. For now we are only discussing the general criteria through which to proceed to this reduction. This most honourable representation may be assured that the circumstances indicate… in the most appreciated telegram on the 20th it will be held on the best regards and that I will personally happily do whatever possible to correspond to the wishes expressed…”; in ASB, b. 852.
In his letter to Teresa Curi on June 29, 1890, however, he added that “more or less” the mentioned Magistrate – the one in Martinengo – seemed difficult to maintain, given that it was a Magistrate with a very low workload; in: ASB, CZ, b. 86.

[56] “…who would not foresee what struggles and rivalries on local interests and what different points of view would cross the path of such a discussion? It should be added that, in the best-case scenario, drawing the new constituency would require a very long time, which would be subtracted to the study and discussion of other important topics that are standing at the Chambers”: notes by Zanardelli in ASB, b. 852, n. 164, sheets 10 and 11.

[57] These are the words used by Minister Salvelli during the December 14, 1883 session, and reported during an intervention at the Camera by hon. Calvi; in Discorsi, Camera, February 19, 1890, p. 1026.

[58] With the law April 2, 1865 n. 2215, the Camere had authorized the Government to publish a new judicial district by royal decree; the law on the unification of legislative Veneto provinces and Mantua (March 26, 1871, n. 129) authorized the Government to constitute a new judicial district, with the only obligation to hear from the provincial representatives.

[59] A. P., Documenti, Legislatura XVI, 4th session 1889-90, n. 4, p. 8.

[60] “…the amount of the affairs of which they are aware, of the population, territorial extension, topographic position, climatological conditions, of the distances and the state-of-art of road communications, the daily interest relationships, of the comparative importance of the different inhabited centres, and of the local traditions”. See. A. P., Documenti, Camera, Legislatura XVI, 4th session1889-90, n. 4, p. 15.

[61] A. P., Documenti, Camera, Legislatura XVI, 4th session 1889-90, n. 4, p. 9.

[62] In the Commission the following Members were also participating: Campi, the Secretary, Barazzuoli, Bonacci, Demaria, Florenzano, Grimaldi, and Righi.

[63] “Rome, May 4, 1889. My dear, I pray you…to be in Rome to work in the offices, on Thursday 9, since on that morning, a bill I will introduce on Monday will be on the agenda and it is of extremely vital importance for our judiciary. A Thousand kind regards”; see ASB, b. 852; This is a draft of a letter, followed by a list of names to which perhaps it had to be shipped, with pinned “those to be called by first name, and those to be called by family name”.

[64] A few days before writing to his friend Basteris Zanardelli, recalled the importance of the reform and ‘mobilised’ him on this purpose: “My dear Basteris thank you for your affectionate card, and in the name of this affection I beg you to be here soon after the reopening…come and support the law on the decrease of district courts, since it is all intended to improve the destinations of the judiciary whose fate to none more that you can be naturally in the heart. Looking forward to you on the first days of the month, and meanwhile…yours faithfully, G. Zanardelli”; signed letter dated April 28, 1889 in ASB, b 852.

[65] Basteris’s answer to his “dearest friend” did not hide the fact that the project was experiencing difficulties which were “not easy to overcome in the parliamentary system”; letter dated Turin, May 1, 1889 in ASB, b. 852

[66] A.P., Camera, Legislatura XVI, 3rd session 1889, Documenti, pp. 3 foll. It must therefore be referred to in puncto quo in another appropriate venue..

[67] “Dear Zanardelli, I hereby send you confidentially the text of the law the way it came out of the Commission studies and of the lecturer. Please, read it and let me get the appropriate suggestions, keeping in mind that the day after tomorrow I will read it to the Commission along with the report – and that I wish as much as you do this draft law to be approved. Soon, Cuccia”; letter written on the letterhead of the Camera dei Deputati- regional council for the budget, dated June 14, 1889, in ASB, b. 852.

[68] The letter dated Rome, May 28, 1889, written on letterhead paper from the Minister’s office – Ministry of grace, justice and Ecclesiastical affairs is written and signed by Zanardelli: “My dear Cuccia, I hereby send you… the entire documents, namely:
– the table of averages for surface, people and workload of the national courts in the different regions;
– the one of the cities divided in more national courts;
– the circular we talked about, for which it is superfluous for you to renew your recommendation in writing for both your personal and exclusive confidential use;
– the data relating to the justices of the peace in France and Belgium;
– the printed law of the senatorial Commission about the previous draft with modifications to the judiciary.
From a day to the other I will send you what is left. With heartfelt affection, I repeat myself. Yours, G. Zanardelli”.
See ASB, b. 852.

[69] ASB, b. 852, N. 183, Pp. 1 foll. Zanardelli, for example, did not think it appropriate to “eliminate the criterion of comparative importance of the various population centres in the designation of the seat of the new national courts, adding that most of the times, it [was] the only one that [could] rightly decide between several rivals centres”.

[70] The project did not arrive there effortlessly: the works of the Parliament of the III Session 1889 were interrupted by a crisis of the Government; with the new Session Zanardelli filed it again to the Chamber in the session on November 28, 1889, asking it to be considered at the state of report, as it was customary to the Chamber to take up in the phase it had reached in the previous session:
“I have the honour of presenting to the Chamber two drafts that had already been presented in the previous session: one to change the judicial district and to improve the salaries of the judiciary, …and I ask that it can be adopted to the state in which they were in the previous session” in: A. P., Discorsi, November 28, 1889, p. 972). The draft n. 95 of the III Session 1889 came to the debate before the elective Chamber on February 17, 1890.

[71] To limit ourselves to the area of Brescia, the one from which perhaps the greatest pressures to the Brixian Minister of Justice came, it is possible to indicate the stiff censure (because of the political and financial inappropriateness and antidemocratic project) formulated by the hon. Di Sant’Onofrio: see La Sentinella bresciana, giornale quotidiano, anno XXXII, n. 50, giovedì 20 febbraio 1890; A.P., Discorsi, Camera, February 18, 1890, p. 985.

[72] “I am very surprised, seeing so strong an opposition to be raised against the present bill. When I filed it, I would not believe it, nor supposed. Since I was no more than the executor of the will of the Camera, I wouldn’t do less than accept the invitation on unanimous proposal from the Budget Commission, from the Chamber themselves in session on 24 May, 1888; so that I could not have imagined I would face such opposition for having obeyed the orders that the Camera had given me”, in Discorsi, Camera, February 21, 1890, pp. 538-539.

[73] He stated he did not mean to answer both Toscanelli and Ferri, because the Parliament shouldn’t “be the field of personal grudges or rhetorical exercise”; which of course derived in a series of lively replies between the two Members of the Parliament; see: La Sentinella bresciana, February 26, 1890.

[74] P. Saraceno, La magistratura nelle riforme Zanardelli, in: Il Parlamento italiano, Milano-Cremona, 1989, vol. IV, p. 178.

[75] Above note 47.

[76] At the same time, without breaking the limits within this note, whose vocation being the supply of an incisive and slender historiographic contribution, limited in extension and accompanied by a apparatus of terse notes. It goes without saying that a systematic reconstruction of the judicial reforms by Zanardelli (the one addressed here and the one from 1903; see above note 4) remains a historiographical operation beyond the intent of these contributions and must find all other editorial allocation, in comparison to contemporary doctrinal debate and to the more overall issues of the liberal state and its constitutional history. Of whose allocation, however, the present essay, together with others that might follow, aspires to be the first draft for a track through almost unexplored territories so far.