“The Determination of Paternity Must be Admissible”. Post-Unification Civil Law Theory and Practice and the Family Law Reforms. Transitory Law Issues

Chiara Valsecchi

Università degli Studi di Padova

valsecchi@giuri.unipd.it

Abstract: The rule set in the Italian civil code of 1865 forbidding investigation about paternity out of wedlock was deeply innovative in comparison with judiciary practices in the Middle and Modern ages, as well as in comparison with early-XIX-century, pre-Unity legislation on the matter.
The rule raised therefore a wide debate in doctrine, with a strongly engaged field of civil lawyers demanding a reform of the code; however, it was also the occasion of a florid casuistry, with special regard the solution of problems in the application of transitory rules. The situation in the territories formerly belonging to the Lombardo-Veneto was particularly complex, given thay they had been subjected to the quite different rules provided by the Austrian ABGB.

Keywords: paternity out of wedlock; bastardy; civil code (1865); transitory rules; Lombardo-Veneto

The almost absolute ban on inquiries on natural paternity, which the unification Civil Code of 1865 had borrowed from the French[1], was defined by Giuseppe Pisanelli as “a safeguard for the stability and decorum of families”[2]. Even the Senate Commission responsible for the revision of the draft Civil Code, considered it a “legal [principle] common” to the civilised peoples[3]. But it was also harshly criticised. Many proposals were put forward to have it amended, both during the preparatory works as well as during the years following the entry into force of the Code[4].

Indeed, despite the affirmations made by the law’s redactors, the choice had not been unequivocal. Always with its eye on comparison, legal doctrine had noted that obtaining legislative systems around the world were divided in two or three classes, depending on whether the natural child had the right freely to look for the father, whether that right was completely banned, or whether the search was allowed only in certain cases[5].

As a consequence, many were those in Italy who proposed new rules which allowed, at least in certain cases, the possibility to ascertain paternity judicially. This line, already espoused by the Roman Rota, had been recently followed by some pre-Unification states, and the imitation of the French example met with strong opposition frequently based on claims of autonomy and of the marked superiority of the Italian legal tradition with respect to the model on the other side of the Alps.

Then the Coordinating Commission, entrusted with the fine-tuning of the Civil Code, decided to follow the example of the Kingdom of Savoy. During its meeting of April 27, 1865, a comfortable majority of its members decided to introduce an exemption to the ban in the case of “a written document signed by the person indicated as father of the child”, expressly recalling the rule found in the Albertine Code[6].

The addition does not however appear in the final text. At promulgation stage, Minister Vacca clarified that there had been “a serious discussion” on this point. He himself considered the proposed change worthy of study, and acknowledged that many favoured it. But he then admitted that “We do not dare follow this new path”, so as not to trespass the limits of the delegated power. The Minister’s proposal to listen to public opinion and to carry out “new inquiries and new studies” on the matter in order then to present them to Parliament[7], was accepted with regard to the first aspect, but not with regard to possible legislative outcomes.

Between the 1860s and the 1890s, the legal publications with the widest circulation frequently carried opinions requesting a reform of the Code.

For instance, writing in the “Archivio Giuridico”, Emilio Bianchi, on the basis of his first-hand knowledge and experience, proposed previous Tuscan case law[8] as model, even suggesting the introduction of a “prudent and moderate use of the inquiries on paternity”[9].

In the prestigious “Filangieri”, Vittorio Mori devoted an in-depth historical and comparative study to the natural paternity action, in which he proposed that the obtaining Italian law be reformed to allow at least some exceptions to the ban[10].

“Circolo giuridico” and “Antologia giuridica”[11], both published in Sicily, “Foro italiano”[12], “La Legge”[13] and others[14], all carried numerous essays and commentaries on judicial decisions dealing with this subject.

Although divided on both political position and several aspects of their legal thinking, a liberal such as Carlo Francesco Gabba[15] and a socialist such as Enrico Cimbali[16], as well as many others[17], agreed on this point.

Despite the numerous nuances, therefore, many authoritative voices proffered various hypotheses in which the proof of paternity, though always very difficult, could be deemed reasonably certain.

The Third National Law Conference (Florence, September 1891) discussed this subject during its Civil Law session[18]. It almost unanimously proposed the abolition of the ban, affirming the opposite principle whereby “the search for paternity has to be allowed”, not only in the cases of abduction and rape, but also when “paternity transpired indirectly from a civil or criminal judicial decision which has become res judicata, or depends on a marriage which was declared null … or else transpires from a written, explicit declaration of the father”[19]. The search had also to be allowed in the case of the seduction of the woman, more uxorio cohabitation, and lastly, “if the father treats the child paternally in an unequivocal manner”[20].

The strong determination to return to the ius commune legal position is here abundantly clear.

But the opinion of those Italian civil lawyers favouring the amendment of art. 189 was also swayed by the practical problems of the long and complex transition from Restoration law to Unification law.

In particular, the passage to the Kingdom of Italy of the territories which had previously been under Austrian rule, called for a legislative intervention, expressly to regulate the case of inquiries on paternity. Art. 7 of the Royal Decree of 30 November 1865 no. 2606 for Lombardy and art. 6 of the transitory provisions of 25 June 1871 for Veneto declared the inapplicability of the bans contained in Articles 189, 190 and 193 of the new Code to citizens born or conceived in those regions before the Code’s entry into force[21].

These still fell under the regime of the Habsburg Civil Code, which held sway in Lombardy-Veneto from 1816, in particular §§. 163 et seq. of the A.B.G.B. which allowed with a certain latitude the judicial action for the ascertainment of paternity.

However, the difference between the Austrian and Unification regimes with regard to the judicial effects of natural paternity, whether spontaneously acknowledged or judicially pronounced, was significant. On account of this, the application of transitory provisions became difficult. Court cases and theoretical approaches varied to considerable degrees, and authors debated them openly, at times even lambasting them.

The Lombard Courts had been faced with this problem already since the 1860s. Soon after, the Venetian Courts found themselves having to face it too. But not even certain rulings of the Courts of Cassation of Florence and Turin were enough to do away with all the lingering doubts.

The fundamental norm, thus, was §. 163 of the Austrian Code, according to which

“only he who, in the manner provided for in the Regulation of Civil Procedure, shall prove having engaged in amorous congress with the mother of the issue in the period of time which, reckoned till the delivery, shall not be less than six months and not more than ten months, and equally only he who admits to this also extra-judicially, shall be presumed to have generated the issue”.

As observed by the more eminent commentators of the A. B. G. B., this norm was a clear choice to grant children the highest degree of protection. It not only paved the way to the proof of paternity through all possible means contemplated generally by Austrian civil procedure. It also added the simple extra-judicial admission, made to whomsoever. According to §. 166 of the Regulation of Civil Procedure, such admission would usually have probative value only if made to somebody who has interest in knowing the truth[22].

Furthermore, in the light of the ratio attributed to the legislative text, the case law of the first half of the 19th century had held that admitting to being the father of an illegitimate child and admitting to having “engaged in amorous congress with the mother” were the one and same thing, and had even considered it a valid proof if the admission was made by a youth who was still a minor[23].

To balance out the evident bias in favour of the offspring, Austrian civil law gave the possibility to the defendant always to provide the proof to the contrary[24]. In addition, there was also the rule found in §. 165, which excluded all illegitimate children from the enjoyment of family rights, including the use of the father’s surname[25].

These were allowed only to demand from the parents, alimony, “education and placement according to the parents’ means”[26].

The evident disharmony between the Austrian and the 1865 Italian legislations, as we have already seen, gave rise to a significant debate.

The most relevant issue which both authors and Courts had to deal with was whether the judicial declaration of paternity, obtained through a suit lodged after 1865, or after 1871, on the basis of the transitory provision, “was equivalent to legal acknowledgement done under the new law”[27].

It would seem that at first, practitioners and professors agreed on the limitation of the effects of the rule. They held that that legislator’s objective had simply been to preserve acquired rights. Like the Court of Appeal of Milan, they decided that

“the judicially-made declaration of natural filiation in proceedings lodged in Lombardy in terms of Article 7 of the transitory provisions on the application of the Civil Code, does not grant the natural offspring but the benefits given him by the discontinued Austrian legislation, certainly not the decidedly more significant rights granted by Italian legislation in the case of natural filiation, whether acknowledged or judicially declared”[28].

Confusion, however, started to reign from the 1870s onward, on account of certain rulings of the Lombard courts.

The same Milanese Court of Appeal was the first to distance itself from its own previous decisions, allowing a natural offspring (even if thus declared in terms of Article 7 of the transitory provisions) to carry the paternal surname[29]. It also ordered to enrol the birth in the civil status registry[30] as provided for by the new Code, but precluded by Austrian law.

The way was thus paved for an interpretation favourable to the offspring. According to these decisions, Article 7 not only kept alive the former law, giving rights to the search for one’s paternity, but also gave the declaration of paternity thus obtained the same effects of a formal acknowledgement on the basis of Article 192 of the 1865 Civil Code. The judicially-declared offspring thus had personal, family and even successory rights, from the moment that the 1865 Civil Code gave him a portion of the legitimate succession and a reserved portion of the testamentary succession[31]. All of this was based on the principle that “succession is regulated by the law obtaining at the time of the demise”[32].

It turned out that this very last point was to prove the most controversial and delicate. As a matter of fact, doctrinal positions ultimately agreed that for questions of status only the previous law had to be applied. Those born in Lombardy-Veneto were thus excluded from kinship ties, titles of nobility and the paternal surname. Successory rights were a much more delicate issue which touched upon the general principles of the legal system and as a consequence divided the approaches of magistrates and even professors.

This was the climate of uncertainty in which a highly complex case began in March 1871 before the Court of Castiglione delle Stiviere, close to Mantua. It went on for many years, with appeals, counter appeals and applications made to the Court of Cassation, ending up attracting the attention of press and authors alike.

The estate of the late Carlo Pastore was claimed by his brother, on the one hand, and his companion and her two children, on the other. The children had been formally acknowledged by the mother. With regard to their paternity, the deceased himself had expressly confirmed it in numerous letters and, above all, in a declaration of last will duly enrolled in the deeds of a notary. This testament had been considered sufficient to prove the paternity on the basis of Article 7 of the transitory provisions by both the local court and the Court of Appeal of Milan.

In April 1871, the Court thus granted the two minor children, Camillo and Beatrice, the one-quarter share of their father’s estate. The decision carried a long rendering of reasons, recalling even the fundamental principles of the legal system and of the law of succession[33].

This decision, which for some jurists was criticisable and even absurd[34], was not to remain isolated. Others followed in its steps, such as the decision delivered some months later, in September 1874, by the Court of Appeal of Venice, which cited exactly the same principles.

The Court expressed itself thus:

“the economy of the transitory provisions was meant to maintain undisturbed as much as possible the observance of the legal situation created and acquired by the law which was discontinued and to assimilate the effects of the new law which took its place”

concluding that

“equally, there can be no doubt that even offspring born and conceived before Unification are entitled judicially to seek the succession of their father according to the cases contemplated by the new Code, when the succession itself was opened under its regime”[35].

At the same time, the judges of the Brescia Court of Appeal went so far – albeit indirectly – as to acknowledge even children born of adultery, provided that they were born when the A. B. G. B. obtained. They even granted the faculty to succeed, if these children were mentioned in a testament[36].

The approach which was taking form was however opposed by the judges partisans of legitimacy. The Supreme Court of Florence, in fact, overturned the Brescia decision. The Court of Cassation held that Article 6 of the transitory provisions of the 1871 decree had only one objective, namely to ensure that

“Article 189 would not have retroactive effects harming those born under a different legal regime. This objective would be defeated if they were allowed to submit proof in accordance with the former methods in order for them to accrue the highest possible benefit from the succession allowed by the new Code”.

In such a way, actually, they would be “in a new position, quite exceptional and privileged, which would however have no basis in either the former nor the present law”[37].

Already the year before, in July 1874, the Court of Cassation of Turin had expressed itself in similar terms. Even if it had markedly different premises, the decision was clear and precise, and was widely known in legal circles and by authors[38].

According to the civil lawyers, the strongest interpretative argument used by the supreme judges of Turin to understand the meaning of the transitory provisions was found in the declarations made by the proposing Minister in his report to the King, namely:

“it stands to reason that the proof of a fact which gives rise to rights and obligations falls under the law which governed that fact, thereby openly demonstrating that the reference to the previous law meant to indicate the legislation obtaining at the moment of the birth”[39]

It followed, therefore, that this law was to be applied in its entirety and not only in its more favourable aspects.

The search for the intention of the legislator through the preparatory works seemed, even to a significant number of authors, to be the best way to avoid misunderstandings caused by too literal an approach to the interpretation of the provisions. This had been where the former magistrates of Lombardy-Veneto had erred, when invoking a scrupulous observation of the dictates of the written rule[40].

In reality, as we shall presently see, not even this approach managed to cast away all doubts.

According to a certain interpretation, thus, the minutes of the commissions charged with the drafting and correction of the draft code, in particular the minutes of the Coordinating Commission, would be a useful implement to clarify the objectives and limits of these norms.

That group of eminent jurists and politicians had already dealt with family issues in the autumn of 1865. During the meeting of 5 October, the members of the Commission had discussed an amendment, proposed by Pasquale Stanislao Mancini, according to which “the acquisition, the loss and the recovery of a civil or family status are regulated by the law which governed them at the time of the facts which caused them”. The rejection of this formulation was not due to any disagreement with its contents. It was actually rejected because it was deemed superfluous: “it enunciates a proposition which does not need to be enunciated”[41].

On the basis of this principle, then, if the declaration of natural filiation made according to the law obtaining at the time of the birth or conception, did not grant the child any family or successory rights, it was clear that “such rights could not be acquired by means of a subsequent law”[42].

The Turinese Supreme Court kept constantly to this line in its decisions during the following years[43]. But this confirmed the uncertainty still common among judges[44] and others[45].

Between the end of 1879 and the beginning of 1880, Piedmontese magistrates proceeded to overturn certain decisions through which the Court of Appeal of Milan persisted in granting ample rights to natural children. Moreover, these magistrates felt it necessary to carry out a detailed comparison between the natural filiation regime provided for by Austrian law and the Italian Unification counterpart in order to bring to the fore “the large difference in principles and objectives which inform the two legislations”.

On the one hand, the former, they remarked, granted all illegitimate issue the right to seek “the authors of their days”, but it did so clearly “for the sole and clear purpose of obtaining from them alimony, education, and placement”. The latter, on the other hand, perceived these searches as “dangerous for the almost impossibility of obtaining proof”. It discouraged them but, if paternity was ascertained, “equate[d] declared issue to acknowledged issue”, defending their rights “in such a way as to conciliate the sentiments of humanity and civil progress with the respect due to the decorum and interest of the legitimate family”.

These rights thus included “in addition to the right to alimony, the protection granted to the father, the right to carry his family name”. Furthermore, there was also “the significant part left to the acknowledged or declared natural issue in legitimate succession, and the reserved portion in testate succession”[46].

Thus, it followed that “when there is such disparity between the intrinsic characteristics and the legal consequences of the two declarations, granting to one the effects of the other would be tantamount manifestly to running counter to the will of both legislators”[47].

Only if the decision on paternity in terms of Articles 6 and 7 conserved the simple characteristics of the alimony action – some other eminent civil lawyers added – could the “indulgence on a large scale of the transitory law” be justified[48].

Nevertheless, when dealing with inheritances, solutions could never be easy. Indeed, according to many, this part of the law was regulated by principles which did not admit of exceptions, foremost among which the principle whereby successions were to be regulated by the law obtaining at the time of the demise of the deceased. This was emphatically affirmed by Carlo Francesco Gabba, who agreed with the Cassation of Rome that had followed this principle even in the case of citizens born before the unification of Italy[49].

On the basis of this fundamental rule of transitory law concerning successions, it followed, in the opinion of the author, that it was “beyond the shadow of a doubt” that the declared child

“there being a preceding law, would have the same right to inherit that the Italian law grants to acknowledged children, where the succession of the parents, of the father in particular, is opened under the regime of this law”[50].

The solution therefore held also for the cases then being examined.

It was true, as a matter of fact, remarked Gabba, that the Legislator, when calling back into effect “the provisions of the previous laws” did not specify if the intention was to call back “all kinds of law” or only those concerning matters similar to those treated by the discontinued rules. The author however indicated that Article 3 of the Patent of 6 December 1837 for the implementation of the Albertine Civil Code, from which the transitory rule in question was copied, qualified the words “provisions of the preceding law” with the words “in this respect”. He argued that if that clause was not repeated in the Italian transitory law, it was only because “our legislator considered it superfluous for the purpose of rendering comprehensible such a clear thing”[51].

Though defended with authority, the favourable line of interpretation succeeded to sway neither authors nor Courts. From the 1880s onward, in fact, the Courts tended to toe the contrary line, both at first instance and at Cassation stage. The same applied for contributions by jurists of repute[52].

Natural children born in Lombardy-Veneto had by now to be content simply with alimony and could no longer reasonably hope for a sizeable portion of the estate.

REFERENCES

-G. Cazzetta, Praesumitur seducta. Onestà e consenso femminile nella cultura moderna, Milano, Giuffrè, 1999
-M. Cavina, Il padre spodestato. L’autorità paterna dall’antichità a oggi, Roma, Laterza, 2007
-P. Montani, Madri nubili e tribunali. Legislazione e sentenze in età liberale, in «Italia contemporanea» 200 (1995), pp. 455-468
-G. Conti Odorisio, Il divieto di ricerca della paternità nello Stato liberale, in Paternità e maternità nella famiglia in transizione, a cura di M. Ferrari
-Occhionero, Milano, UNICOPLI, 1997, pp. 127-152 e in Ead., Ragione e tradizione. La questione femminile nel pensiero politico, Roma, Aracne, 2005, pp. 175-200
-Donne tra Otto e Novecento. Progetti culturali, emancipazione e partecipazione politica, Macerata, EUM, 2007

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[1] Art. 189 of the 1865 Civil Code lays down: “Scrutiny as to paternity is forbidden, except in the case of rape, when the period of such rape shall refer to that of conception” (cfr. Article 340 of the Code Napoléon).

[2] Cfr. Relazione sul Progetto del primo libro del Codice Civile presentato in iniziativa al Senato dal Ministro Guardasigilli (Pisanelli) nella tornata del 15 novembre 1862, in S. Gianzana (ed.), Codice civile preceduto dalle Relazioni Ministeriale e Senatoriale, dalle Discussioni Parlamentari e dai Verbali della Commissione coordinatrice, I, Relazioni, Turin 1887, p. 28.

[3] Relazione della Commissione del Senato sul Progetto del Codice Civile presentato dal Ministro Guardasigilli (Pisanelli) nelle tornate del 15 luglio e 26 novembre 1863, in Gianzana (ed.), Codice civile, I, Relazioni [nt. 1], p. 210.

[4] The matter has already been studied, in particular by the historiography dealing with social and women issues in addition to that dealing with law. An essential bibliography can be found in the Note at the end. To keep to the limits of this essay, the following recent titles can be cited by way of example: B. Montesi, Questo figlio a chi lo do?: minori, famiglie, istituzioni (1865-1914), Milan 2007, particularly pp. 97 – 103; G. Galeotti, In cerca del padre. Storia dell’identità paterna in età contemporanea, Rome-Bari 2009, particularly pp. 57-87, in which the ban on the inquiries relating to paternity is considered as the logical consequence of the principle whereby “father is only he who decides to be such”. The author’s chapter is therefore entitled “Paternity as punishment”.

[5] G. Leoni, under Filiazione, in Digesto Italiano, 11.2, Turin 1892-1898, pp. 207-301 (253). A wide scansion of the legislations of Europe, America and elsewhere is found also in C. F. Gabba, La dichiarazione della paternità illegittima e l’articolo 189 del Codice civile italiano, in “Annuario delle scienze giuridiche, sociali e politiche” 1881, pp. 178-240, in particular pp. 190 et seq., and in V. Mori, Appunti su l’azione di paternità naturale nel diritto antico e moderno, in “Il Filangieri” (1890), pp. 569-584, 594-631, 622-708.

[6] Verbali della Commissione di coordinamento, procès-verbal no. 12 – Sitting of April 27, 1865, in S. Gianzana (ed.), Codice civile [nt. 1], III, Verbali, Turin 1887, pp. 93-94.

[7] Codice civile del regno d’Italia, Turin 1866, pp. XIII et seq. The text has been republished also in A. Aquarone, L’unificazione legislativa e i codici del 1865, Milan 1960, pp. 370-371.

[8] The Tuscan Courts constantly allowed the paternity action in the case of the so-called “ad ventrem custody” (that is to say in the case of more uxorio cohabitation, when the “civil status” of the woman and her honest behaviour subsist, and when the man exercises a “jealous oversight”) and in the case of the awareness and opinion openly shown by the presumed father, that is to say when he openly showed to consider himself the father, not only with words but also by “deeds expressing the sentiment of paternal duties and affection in such a way as to establish a corresponding opinion in neighbours and acquaintances”. E. Bianchi, Le indagini sulla paternità naturale, in “Archivio giuridico”, 24 (1880), pp. 162-183, citations at pp. 173-174.

[9] Bianchi, Le indagini [n. 8], p. 178. The same periodical carries an essay on the subject penned by Torquato Cuturi. This author too favoured a reform of the Code (T. Cuturi, Studi sulla dichiarazione giudiziale della paternità dei figli naturali, in “Archivio giuridico” 24 (1880), pp. 385-426). Cuturi came back to this point in his review of a French monograph (T. Cuturi, Di una recente pubblicazione degli avv. Paul Coulet ed Albert Vaunois (Étude sur la recherche de la paternité, avec une preface de Renault, Paris, Marescqainé), 1880, in “Archivio giuridico” 26 (1882), pp.186-196. He took up the subject again in another piece (vide infra, n. 44).

[10] Mori, Appunti su l’azione di paternità naturale in “Il Filangieri” (1890), [nt. 5]: most importantly the conclusions at pp. 620 et seq.

[11] On the first, for instance, see V. Tuzzolino, Dei diritti della prole illegittima e delle indagini sulla paternità, in “Il Circolo giuridico” 1881; on the second, among others, B. Brugi, La riforma della nostra legislazione civile, in “Antologia giuridica” 3, issue 3-4 (Feb-Mar 1889), pp. 295-296; I. Santangelo Spoto, I nati fuori matrimonio e la proibizione di ricerca della paternità, in “Antologia giuridica” 3, issue 9-12 (Aug-Nov1889), pp. 186-211; as well as G. Leonardi-Mercurio, La seduzione e l’art. 189 del cod. civ. ital., in “Antologia giuridica” 4, issue 8-12 (Dec. 1890-Apr 1891), pp. 690-727. Opinions in the opposite direction were also expressed: P. Delogu, Codice privato e codice sociale, in “Antologia giuridica” 5, issue 1 (May 1891), pp. 5-28 (cfr. G. Speciale, Antologia Giuridica. Laboratori e rifondazioni di fine Ottocento, Milano 2001, pp. 61 et seq. This book is also useful for a comprehensive evaluation of the Catania periodical, as well as the parallel Palermitan “Circolo Giuridico”).

[12] See F. Ferrucci, Nota to the Court of Cassation fo Turin, decided on 16 December 1879, in “Foro italiano” 1880, I, p. 298; Id., Intorno alle indagini sulla paternità promosse da uno straniero davanti i tribunali italiani, in “Foro italiano” 1882, I, p. 31; P. Casini, Dell’indizio nascente dalla rassomiglianza fra il supposto padre ed il supposto figlio nelle indagini sulla paternità, in “Foro italiano” 1887, I, p. 296; F. S. Gargiulo, Azione e prova della paternità naturale nei casi di sequestro di persona, ratto o stupro violento, in “Foro italiano” 1887, I, p. 693.

[13] Especially relevant is the essay penned by E. Precerutti, Si debbono ammettere le indagini sulla paternità?, in “La legge” 5 (1865), I, pp. 567 et seq.

[14] By way of example one may cite the contribution made by Domenico Giuriati in “Temi veneta” (D. Giuriati, Il divieto delle indagini sulla paternità, in “Temi veneta” 1881, p. 1641); the two contributions made by Pasquale Nasca carried by the Neapolitan periodical “Diritto e giurisprudenza in materia civile, penale, commerciale ed amministrativa” (P. Nasca, Dell’abrogazione dell’art. 189 contenente il divieto delle indagini sulla paternità, in “Diritto e giurisprudenza” 6 (1890), p. 205 e Id., Se e quali riforme sieno da introdursi nel codice civ. relativamente alla ricerca della paternità ed alla condizione giuridica dei figli illegittimi, in “Diritto e giurisprudenza” 7 (1891), p. 158, who answers, like many other jurists, the question posed by the Third National Law Conference, about which see immediately infra). Many other essays are enumerated in Leone’s ample bibliography under Filiazione, [n. 3], pp. 208-211, to which the reader is referred for the sake of brevity.

[15] Gabba, La dichiarazione della paternità illegittima [n. 5], in particular pp. 222 et seq.

[16] His views on matters of family law are aired in some essays of the 1880s, gathered in a volume called, not casually, Due riforme urgenti: il divorzio e la ricerca della paternità naturale, Turin, 1902, published posthumously (the author had passed away in 1887) on the occasion of a new debate of these two themes.

[17] In favour of the reform one finds, for example, the widely-cited essay penned by Tommaso Traina, Il riconoscimento e la legittimazione dei figli naturali secondo il diritto civile, Turin 1883; as well as C. Cavagnari, Nuovi orizzonti del diritto civile in rapporto colle istituzioni pupillari. Saggio di critica e riforma legislativa, Milan 1891, pp. 21et seq. and U. Sorani, Della ricerca della paternità, Florence 1892; for the opposing views see E. Masè Dari, Un’accusa infondata al divieto della indagine sulla paternità, Turin 1891. For other examples, refer again to Leoni, under Filiazione, [n. 3], pp. 208-211.

[18] The Conference, subdivided according to four themes (civil law and civil procedure, and two on criminal procedure) took place over one week. The first civil law thesis dealt with “if and which reforms are to be introduced in the Civil Code relating to the search for paternity, and the condition of illegitimate children” (Atti del III Congresso Giuridico Nazionale tenutosi in Firenze l’anno 1891 pubblicati per incarico della Commissione esecutiva dall’Avv. Camillo de Benedetti, direttore della “Cassazione Unica”, Turin 1897, pp. 13, 23-24, 32-51, 210-236).

[19] The Italian legislator had already paid attention to these cases. In terms of Article 193 of the Civil Code, in such circumstances, the natural child could file a suit for alimony, even if acknowledgement was forbidden and investigations on maternity excluded.

[20] Ibidem, pp. 221-222.

[21] The choice, after all, followed perfectly the line established also in the case of preceding legislative transitions, before and during unification. For instance, when the Albertine Code was promulgated, Article 3 of the Patents Royal of 6 December 1837; or the act whereby the Piedmontese Civil Code was extended to the Romagne on 26 November 1860; and so on. Curiously enough, Amilcare Della Carlina expressed a contrary opinion to this legislative solution on the Milanese “Monitore dei Tribunali”. He aired his views in the last phase of the preparatory works of the Unification Civil Code. In his view, the strong reasons adopted by the Minister to justify the ban on inquiries suggested the applicability of the new law “also to children generated under the previous regime, which did not contemplate a similar ban” ([A. Della Carlina], Diritto transitorio, I. Questione intorno all’indagine della paternità naturale, in “Monitore dei Tribunali” 1865, pp. 362-365).

[22] Cfr. on this point, for example, the unambiguous observations made by J. Mattei, I paragrafi del codice civile austriaco avvicinati dalle leggi romane, francesi e sarde, Venice 1852, p. 502 along with the bibliography referred to therein. The A.B.G.B. was also eulogised by Cavagnari, Nuovi orizzonti [n.17], pp. 32 et seq.

[23] Mattei refers in particular to certain rulings of the 1840s (Mattei, I paragrafi [n. 22], p. 502).

[24] Doctrine insisted clearly on this, even clarifying that § 163 provides for merely simple presumption (ibidem).

[25] §. 165 of the A.B.G.B.: “illegitimate children shall not enjoy all family and kinship rights; they shall not lay claim to the family name of the father, or to his noble title, or to his heraldic device, or to any other prerogative of parents, but shall only take the family name of the mother”.

[26] Così il § 166 che si concludeva precisando che gli illegittimi non sono “propriamente soggetti alla patria potestà di chi li ha generati, ma sono assistiti e rappresentati da un tutore”.

[27] The matter was widely discussed, with the endorsement of a length bibliography, by Leoni under Filiazione [n. 3], pp. 263-275.

[28] Court of Appeal of Milan, decision of 14 November 1867, confirming the decision of first instance delivered on 7 January of the same year. The maxim is found in “Monitore dei Tribunali” 1869, p. 195. At the same time, the Court of Appeal of Brescia followed the same line in a decision of 6 February 1869, also published by “Monitore dei Tribunali” 1869, pp. 195-196. The two rulings were followed by a long editorial note which openly contested the interpretation and embraces the more child-friendly approach, which at first was not appreciated by the greater part of civil lawyers but was later accepted by the Lombard courts (see in particular the arguments found on pp. 197 et seq.).

[29] There is an 1873 decision in this sense (in “Monitore Giudiziario” 2 (1873), p. 272

[30] In virtue of a decision of 6 August 1872, Camillo and Beatrice, children of Angela Beretta, were declared by the Milan Court of Appeal natural children also of Carlo Pastore. This decision is recalled by Leoni, under Filiazione [n. 3], p. 263, and was quoted often in the decision of the Castiglione delle Stiviere Court which had intervened in the same case, about which immediately infra.

[31] The successions of natural children were regulated by the Code in Title II of Book Third, respectively in Chapter I, Section IV (Articles 743-752) and Chapter II, Section IV, §. II (Articles 815-820). The provisions lay down that in legitimate succession, natural children, whether acknowledged or declared (Article 743) received one moiety of the portion they would have received had they been legitimate (Article 744), acquiring a larger portion in the absence of legitimate children (Article 745) and being preferred even to collateral relatives (Article 747). The same proportions were to apply also in the case of testamentary succession (Articles 815-816).

[32] Leoni, under Filiazione [n. 3], pp. 263 et seq., refers to it polemically. Carlo Francesco Gabba, on the other hand, subscribes to it wholeheartedly, see infra, n. 50 et seq. and relative text.

[33] The very long decision delivered on 14 April 1874 by the Castiglione delle Stiviere Court was published in its entirety by “Monitore dei Tribunali” 1874, pp. 969-977.

[34] It was criticised by, for instance, M. A. Salom, Sui diritti dei figli illegittimi nati e concepiti sotto l’impero del codice austriaco in relazione colle disposizioni transitorie per l’attuazione del codice civile italiano, in “Archivio Giuridico” 16 (1875), pp. 586-597. Leoni opposed it forcefully, under Filiazione [n. 3], p. 263.
[35] The reasons for the judgment were thus formulated: “because it is a basic legal principle that both manner and ability to succeed are measured in terms of the law which obtained at the time of the demise of the deceased who leaves the estate the inheritance of which is the subject-matter [of the action]; because the former too are to be deemed acknowledged children, and because if a different hypothesis were to be contemplated, in legitimate succession the former law should be followed even with regard to any other person who can be succeeded now finding themselves in a condition different to the previous one­ – which would be absurd”. Court of Appeal of Venice, decision of 22 September 1874, in “Monitore Giudiziario” 3 (1874), pp. 647-649.

[36] The decision of the Brescia Court of Appeal, which insists on the idea of a very marked position in favour of the child as the inspiring criterion of the transitory law, was published with ample excerpts by “Monitore dei Tribunali” 1873, pp. 149-150, where it is indicated as delivered in December 1872. Its contents were then summarised also on the Venice-published “Monitore Giudiziario” 2 (1873), dated 6 August 1873. This is the same date Leoni cites under Filiazione [n. 3], p. 263.

[37] Court of Cassation of Florence, decided on 17 June 1875, in “Monitore Giudiziario” 4 (1875), pp. 507-508. A favourable commentary had been published by the Venetian periodical in an issue of a few days before (cfr. c 4 (1875), p. 361).

[38] Court of Cassation of Turin, decided on 16 July 1874. It was transcribed by both “Monitore dei Tribunali” (1874), pp. 920-922, (which carried it in its entirety, defining it as “one of the best-worded published during this year”), as well as “Annali della giurisprudenza italiana” 8 (1874), I, p. 430, with a synthesis of the legal bases. It received stout praise from Leoni, under Filiazione [n. 3], p. 264.

[39] The decision reproduced in italics the words of the Minister (Court of Cassation of Turin, decision of 16 July 1874, in “Monitore dei Tribunali” (1874), p. 921).

[40] Indeed, the Court of Appeal of Venice had declared, in good faith, to be desirous of observing the dictates of a law which provided debatable solutions. As a matter of fact, the Venetian magistrates wrote: “one could even question the intrinsic goodness of the measure at issue, but this lies completely outside the competence of the judge, whose duty is only to apply the law and not to review it. Whereas it cannot be doubted that for the aforesaid the favour of an exception was done so as not to harm those born and conceived before the coming into force of the new law, it is necessary to conclude that they too, given their relationship, have a character equivalent to the declaration”. Court of Appeal of Venice, decision of 22 September 1874, in “Monitore Giudiziario” 3 (1874), p. 648.

[41] Verbali della Commissione di coordinamento, procès-verbale no. 67 – Hearing of 5 October 1865, in Gianzana (ed.), Codice civile [n. 1], III, Verbali [n. 6], pp. 615-616.

[42] Leoni, under Filiazione [n. 3], p. 263.

[43] For example, the Turin Cassation’s decision of 16 December 1879 (published in both “Foro italiano” 1880, I, p. 298, and “Il Filangieri” 1880, I. pp. 78-80) and the same Court’s decision of 5 February 1880, in “Annali” 14 (1880), I, 1, pp. 277-280.

[44] The approach of the Turin Cassation was not followed, say, by the Parma Court of Appeal, before which appeared the case decided on 16 December 1879 (see preceding note). Cfr. Parma Court of Appeal, decision of 30 April 1880, in “Annali” 14 (1880), III, p. 185. The Venice Court of Appeal tackled another aspect of the problem, relating to evidence, by applying the law obtaining at the time in which the proceedings had begun, not when the original fact had taken place (Court of Appeal of Venice, decision of 15 October 1874, in “Annali” 8 (1874), II, pp. 319). Authors reacted very negatively to this decision (cfr. for example, F. Ricci, Corso teorico-pratico di diritto civile, I, Della pubblicazione ed interpretazione delle leggi e delle persone, Turin 1886, p. 206; Traina, Il riconoscimento [n. 17], pp. 78-79; T. Cuturi, Studi sulla dichiarazione della paternità dei figli naturali, con particolare riferimento al diritto civile francese ed al diritto civile italiano, Perugia 1892, p. 102).

[45] A different approach was taken, for example, by the Cassation of Rome in its decision of 5 January 1878, published in “Annali” 12 (1880), I, 1, pp. 122-123, praised by Carlo Francesco Gabba (see infra, n. 49 and relative text).

[46] The first ruling, dated 16 December 1879 and published in “Foro italiano” 1880, I, p. 298 and in “Il Filangieri” 1880, I. pp. 78-80, is transcribed almost in full by Leoni, under Filiazione [n. 3], pp. 265-267, as a model for a correct reasoning; in similar fashion are the quotations taken from the Cassation of Turin, decision of 5 February 1880, in “Annali” 14 (1880), I, 1, p. 279.

[47] “of the Austrian, who, while permitting the action for alimony, did not grant more rights than the Italian Code keeps for legally acknowledged or declared children – these rights the Austrian legislator actually expressly denies; of the Italian, who does not even allow the possibility of a judicial declaration save in the cases of abduction or carnal knowledge with violence”. Ibidem.

[48] See Cuturi, Studi sulla dichiarazione della paternità [n. 44], p. 106, supported by Leoni, under Filiazione [n. 3], p. 264. Equally explicit is the position taken by Salom, Sui diritti dei figli illegittimi [n. 34] and Carlo Francesco Gabba.

[49] In the opening part of his essay dedicated expressly to this subject, Gabba openly declared his preference for the solution embraced by the Cassation of Rome in its decision of 5 January 1878 (see supra, n. 45), according to which “successory rights of simply natural issue, declared as such in terms of Italian transitory civil law, must be regulated … according to Italian law” (C. F. Gabba,La successione ereditaria del figlio adulterino o incestuoso ai genitori suoi nel giure transitorio, in Id., Questioni di diritto civile, II, Diritto ereditario e Diritto delle obbligazioni, Milan-Turin-Rome 1911, pp. 7-13 ).

[50] Gabba, La successione ereditaria, p. 10.

[51] Ibidem.

[52] Leone cites on a wide scale both judicial decisions and authors – under Filiazione [n. 3], p. 267 to which, for the sake of brevity, the reader is referred.

Vis unita fortior (1842). Francesco Restelli and the Debate over Companies in Lombardy

Valeria Belloni

Università Commerciale Luigi Bocconi

valeria.belloni@unibocconi.it

Abstract: In Lombardy during the Restoration era the legal science tends to concentrate on the codes’ content and to be influenced by the French one. This inclination is even stronger in the field of commercial law as the Austrians had decided not to abrogate the Code de commerce in the Kingdom of Lombardy-Venetia. Against this background, it is remarkable that in 1842 the Istituto Lombardo chooses a theme for its “premio scientifico biennale” that spurs the competitors to deal with company law with a critical approach. Among the submitted entries, Francesco Restelli’s one is the most interesting: he drew up a veritable alternative to title III, book I of the Commercial Code.

Keywords: Companies; Commercial law; Commercial code; Istituto Lombardo; kingdom of Lombardy-Venetia

Table of contents: 1. Introduction: the Code de commerce in Austrian Lombardy.2. The contest announced by the Istituto Lombardo Accademia di Scienze e Lettere in 1842.3. Vis unita fortior: the winning entry.4. Conclusions.

1. Introduction: The Code de commerce in Austrian Lombardy.

The Austrians broke with the well-established tradition of preserving uniformity in their domains when they issued the Sovrana Risoluzione (Sovereign Resolution) of 23 December 1816. By doing so, they chose to maintain the Napoleonic commercial code in the Italian territories[1], though not in its entirety: bankruptcy, commercial litigation procedure and maritime law would be partially regulated by the Habsburg empire[2].

This peculiar situation led to the atypical development of both the doctrine itself and the way that the law governing ‘commercial acts’[3] was actually enforced in the region. Scholars and experts were working with different regulations than those in use in the Austrian state apparatus, and which were in force in France[4]: as such, they were essentially forced to resort to French doctrine and jurisprudence, and tended to conform thereto as a result.

In general, Lombard legal science of the Restoration era tended to focus on the content of codes[5], in addition to being subject to French influence[6]. Thus, any interpretations of commercial law were bound to be conservative[7]: they were meant to be useful for those who worked with the code on a daily basis, by collecting and interpreting the norms in force and constantly referring to French doctrine[8] and jurisprudence[9]. In Veneto there was a similar attitude[10]. What few exceptions there were to this approach were so theoretical in nature that they provided no basis from which to analyze existing regulations in a constructive manner.

The first works on the subject to appear in print were related to two selection processes for the professorship of Mercantile Law at the University of Pavia[11]: Adeodato Ressi published Breve esposizione di alcuni principi del diritto mercantile (Brief description of some principles of mercantile law)[12], which was an academic account that limited itself to the subject of exchanges; and Agostino Reale published Del diritto commerciale e marittimo secondo le leggi austriache ed italiche nella parte in cui queste sono mantenute in vigore (On commercial and maritime law according to the Austrian and Italian laws currently in force), which was clearly written for practical purposes[13].

In 1822 the professorship was awarded to Antonio Volpi, a young graduate who had no published works to his name. He was, however, a loyal subject who relied on regulatory texts and his own notes to teach; he would not make any significant contributions to the study of commercial law[14].

Almost twenty years would pass before another three publications appeared in Milan in the early 1840s. One was written by the eclectic and prolific G.A. Castelli and entitled Manuale del codice di commercio con note (Textbook on the commercial code with notes), while the other two were by Antonio Ascona – author and translator[15] of various books – and entitled Manuale del codice di commercio nelle parti conservate in vigore dalla legislazione austriaca (Textbook on the parts of the commercial code that have been maintained in force by Austrian legislation) and Manuale teorico pratico per ogni sorta di società secondo le leggi civili, commerciali e politiche (Theoretical and practical textbook for every kind of company according to civil, commercial and political laws). These works covered different topics in different ways; nonetheless, whether they were organized by subject matter or adhered to the classification system established by the code, they did not stray far from the features listed above[16]. This was not the case, however, for an interesting four-volume work by the private teacher Vincenzo Barnaba Zambelli, published between 1845 and 1850 under the title Proposta analitica di un insegnamento sul diritto commerciale, sul diritto di credito e sul diritto marittimo privato, pubblico e internazionale degli stati (Analytical proposal for teaching commercial law, credit law and private, public and international maritime law of nations). Zambelli’s work provided a wide-ranging analysis of commercial law as a whole, while offering several points of comparison, including some references to the text that is the focus of the present article[17]. He would be awarded the chair in mercantile law at the University of Padua in 1847[18].

The court documents and legal advice of lawyers at the time also featured similar characteristics: they continued to adhere to French doctrine and jurisprudence, as was the case during the Napoleonic era, when their lines of legal argumentation had been based on the code’s provisions[19].

Thus, Lombard commercial doctrine of the Restoration era was not able to support the region’s economic development, as it was a science that lacked constructive solutions. Indeed, the Lombard economy had begun to evolve sooner than the rest of the Italian peninsula, and it would require intense scrutiny from the 1830s onward, especially as concerned company law[20].

At the same time, it cannot be ignored that even as far back as the 1820s, the educated bourgeoisie began paying close attention to the related industrialization process that was taking place in that period: it was interpreted as a strange form of ‘associationism’, and above all they were concerned with its repercussions for public prosperity[21].

2. The contest announced by the Istituto Lombardo Accademia di Scienze e Lettere in 1842.

Given the situation described above, the initiative taken by the Istituto Lombardo[22] in May of 1842 was that much more commendable. The academics decided that the scientific award – presented every two years[23] – was to address the following questions: What is the influence of industrial and commercial associations on public prosperity, and what would be the most adequate ways to protect those associations? Contestants were thus encouraged to reflect on the relationship between industrialization and progress in order to provide an appropriate answer to the first question, as well as to undertake a critical analysis of the section Delle società (On companies) in the Commercial Code[24] in order to offer a comprehensive response to the second; it is the latter that is the focus of the present article[25].

The initiative’s innovative potential was significant in itself, but it truly took on added value when the efforts of the young participants turned into concrete proposals for lawmakers, which is exactly what happened with the winning entries.

The rules of the contest provided for a sole winner who, in addition to receiving a cash prize, would have the honor of seeing his work published in the Academy’s journal[26], «Giornale dell’I.R. Istituto lombardo di scienze, lettere ed arti e Biblioteca italiana» (Journal of the Imperial-Royal Lombard Institute of Sciences, Letters and Arts and Italian Library)[27]. Nonetheless, the selection committee, headed by Professor Andrea Zambelli[28], decided to give honorable mention to two other works and publish them as well[29].

The selection committee’s report was succinct yet meaty, and it revealed that all of the contestants had examined the subject of companies
from different angles: some focused on corporate governance, others on protective measures, and still others on the dangers inherent in the structure of anonymous companies, or on the best measures to put in place in order to protect investors without excessively stifling the economy[31], which was one of the most intensely-debated issues in all of Europe.

In addition to Francesco Restelli’s winning entry entitled Vis unita fortior, the two entries that were given honorable mention – Canto l’armi pietose, Nel mezzo del cammin di nostra vita (I sing the sacred armies, Midway upon the journey of our life) by Emilio Broglio and L’industrie, comme toutes les puissances nouvelles, demande non à être supprimée, mais à être reglée et organisée (Industry, like all new powers, need not be suppressed, but rather regulated and organized) by Turin natives Francesco Gargano and Giuseppe Valerio – also stood out from the rest, due to the quality of their analysis and the merits of their proposals[32].

Broglio, who would go on to become a minister of the Kingdom of Italy[33], focused on the concept of laissez-faire[34]. In prose that was both lively and sharp, he set out guidelines for the lawmakers of the future, and his analysis dealt directly with company law, which he saw as essential to the country’s economic development. He provided a more in-depth line of reasoning than that typically employed by his contemporaries:

when it comes to associations, public authorities must limit themselves to dispensing justice and ensuring parity of intelligence […] 1. By promoting good […] education in order that the greatest number of citizens may, through association, gain the greatest possible advantage from their own businesses; 2. By enabling individuals to know unequivocally the legal and economic status of associations with which they intend to deal[35].

Emilio Broglio’s main target was the regulation of anonymous companies. Indeed, articles 29 to 37 of the Code placed limits on raising the substantial amount of capital needed to set up big businesses; and article 37 went so far as to call for government authorization[36] to do so, which lawmakers in Continental Europe hoped would allow them to better control limited liability companies by preventing any abuse of public trust.

Despite the fact that this form of control severely limited the development of anonymous companies for entrepreneurs – in addition to not preventing fraud and encouraging the misuse of limited-joint-stock companies divided by shares in order to avoid government authorization – there were no published works in the kingdom that considered abolishing it[37]. What’s more, the French would only begin to voice their dissent in the early 1840s, with regulatory action still more than twenty years off[38]. Thus, it is impossible to ignore just how ahead of his time Broglio was in taking the stance that he did. As far as Italy was concerned, legislative reform would only come about with the Mancini code, even though there had long been support for change[39].

Emilio Broglio made sure to address the unique and successful development of companies in Great Britain[40], and he described the system with such an abundance of detail that the selection committee was moved to commend him for it, despite not fully supporting such laissez-faire theories[41].

The author maintained that the regulation of anonymous companies needed to be less restrictive, and in this regard, he highlighted how flawed the French system had become:

The impediments to the foundation of anonymous companies necessarily lead speculators to that bastard and dangerous form of limited-joint-stock companies divided by shares[42].

Gargano and Valerio, two authors from Piedmont who were adamant champions of radical leftist theories[43], took a completely different approach. They adopted a more systematic structure, subdividing the work under headings; the exposition of their ideas was more deliberate and didactic; and the content was more wide-ranging and detailed, not to mention different in its substance on the whole. The one conviction they had in common with Broglio was that anonymous companies were the best way to encourage industrialization[44]. More than anything else, the selection committee appreciated the methodical approach and thoroughness of the entry; its members, however, were nonetheless quite suspicious of the new proposals[45].

The authors’ main focus was on anonymous companies and limited-joint-stock companies simple, the latter of which being the most common type of company structure used by family-run businesses in Lombardy (both for practical reasons and because at the time there was widespread hostility towards joint-stock companies[46]). Above all, they concentrated on the problems associated with the structure of these companies, such as market rigging, poor management of capital and the fact that it was impossible for the working class to take part.

There were some interesting suggestions put forward in response to the above-mentioned flaws, such as the idea of distributing dividends among workers[47], or establishing a collaboration between the public and private sectors for public utility companies[48]; other recommendations, though worthy of attention because they reveal the authors’ line of reasoning, tended towards the naive. To cite but two examples, the authors proposed establishing a maximum share price in order to permit broad-based shareholding[49], as well as putting into place an evaluation process for the creation of anonymous companies that would rigorously respect specific criteria set forth in a general regulation[50], thereby replacing the need for government authorization. The latter proposal was harshly criticized by the selection committee[51].

By comparing the authors’ proposals with the selection committee’s opinions thereof, it becomes clear that when it came to involving the lower social classes in the industrialization process, there were irreconcilable differences between the exponents of radical leftist thought and the more conservative approach preferred by most of the Istituto’s members[52]. On the other hand, more common ground was found on the subject of state intervention in the economy.

Overall, Francesco Gargano and Giuseppe Valerio’s entry was thorough and well-structured, yet there is no doubt that it was missing the verve and insight that characterized Emilio Broglio’s writing.

Despite their differences, both works offered a constructive, proactive approach that other Restoration-era Lombard jurists simply did not demonstrate. Indeed, the latter tended to limit themselves to commenting on coded regulations, and relied on French doctrine and jurisprudence when doing so.

It is the author’s opinion that such an approach was just as much a credit to the Istituto as it was to the contestants themselves: by holding the contest, it provided a chance to address the law regarding nascent industrial associations from a new perspective.

3. Vis unita fortior: the winning entry.

Francesco Restelli’s work deserves even more attention. One of the leading figures in Milanese society during the second half of the century, he did not limit himself to commenting, criticizing or making proposals to lawmakers in a conversational tone; on the contrary, he drew up a veritable alternative to title III, book I of the Commercial Code[53].

In the first part of his work, Restelli expanded upon the economic, moral and political issues related to the industrialization of Lombardy. In the second part, he focused on the proper instruments to put in place in order to protect commercial and industrial associations, and in so doing he made a useful distinction between direct and indirect means. Indirect means included savings banks and commercial banks, the customs regime and all other regulations that indirectly affected trade, such as financial legislation, bankruptcy legislation and court procedure[54]; direct means were State aid to public utility companies and company law[55].

What raised Restelli’s writing above the rest of the entries was the precision with which he tackled company law, and the selection committee at the Istituto Lombardo saw it the same way[56]. This was not surprising, considering that Restelli was a young lawyer who, in the years to come, would demonstrate his solid legal skills on more than one occasion. Indeed, the Istituto itself would entrust him with several tasks internally[57], and he would also work for government institutions. After Italian unification, he would thrice serve as a member of the commissions in charge of drawing up the country’s Civil Code, which saw him fight for a form of family law that based family ties on love and respect, rather than on subservience[58].

Francesco Restelli aimed to develop a version of company law that was able to better protect partners and third parties without impeding trade. In addition, he wanted to eliminate those uncertainties brought about by gaps or ambiguous wording in the legislation, which only served to fuel controversy and slow down the business world[59].

Content aside, the very structure of the work was a notable attempt at providing even greater clarity on the subject. The chapter entitled Delle società commerciali (On companies) was subdivided into six sections: the first three dealt with partnerships under a collective name, limited-joint-stock companies simple and anonymous companies respectively; the fourth section contained «provisions referring to limited-joint-stock companies simple and anonymous companies»; the fifth contained «provisions referring to partnerships under a collective name, limited-joint-stock companies simple and anonymous companies»; and the sixth dealt with partnerships for non-commercial purposes[60]. For the most part, the articles set forth in sections IV and V had not been previously covered by the Commercial Code’s provisions.

In addition, it is clear from the wording used by Restelli in the first article of his proposal that he wanted to increase the general understanding of the system. Indeed, while article 19 of the Napoleonic Code limited itself to providing a list of the types of companies allowed, Restelli went further and described the purposes of those companies. Drawing on article 1 of the Code[61], the lawyer defined a company as «a contract through which two or more people agree to unite in order to conduct commercial acts, by making a joint contribution with the aim of sharing in any profits that might result»[62]. Although there are no sources that attest to Restelli’s influence on the various commissions that helped draft the Commercial Code of 1882, he was a sitting member of parliament at the time; thus, it seems appropriate to note that the association between ‘commercial acts’ and companies would come up again on that occasion[63].

The young lawyer strove for certainty: to that end, even his description of the powers of a dormant member with limited liability went into more detail than the Code, as the «uncertainty» around this role «creates harmful variations in jurisprudence and in the doctrine»[64]. Likewise, he also specified the tasks that directors were to fulfill in anonymous companies[65]. Furthermore, Restelli focused much attention on the ways of calling a shareholders’ meeting, especially when there were many shareholders to convene (the code of 1882 would also revisit this issue)[66], as well as on the definition of capital stock[67].

In particular, the challenge lay in the regulation of limited-joint-stock companies simple and anonymous companies, where it was important to find the right balance between protecting partners and third parties on the one hand, and not impeding the economy on the other. Nonetheless, Restelli had faith in his contemporaries, so much so that he stated the following:

Up to a short time ago one did not have to go to much trouble to find shareholders; but now public opinion has changed. Not only were shareholders injured, they were also insulted; and now, if you want to find them, you need to show them something serious[68].

The jurist had an optimistic view of potential investors’ awareness, and this allowed him to put forward some interesting proposals. For example, Restelli chose not to include government authorization for limited-joint-stock companies divided by shares – though Italian unification-era legislators would eventually require it in 1865[69] in reaction to the fièvre de commandites[70] – and he counterbalanced that by calling for partners[71] to contribute at least one tenth of the company’s capital[72]. In order to offer additional protection to shareholders, those same partners could be served with a court injunction if there was unanimous agreement on the part of the dormant members with limited liability that they did not possess the necessary attributes to fulfill their task[73]. The same reasoning lay behind the obligation to notify the Chamber of Commerce[74] of the company’s most important activities, which established the presumption of law that third-party contractors were to be aware thereof[75], as well as the obligation to draft an annual financial report in order to avoid the presumption of malice in the event of bankruptcy[76].

While Restelli indeed had some faith in investors’ abilities, it was not enough to lead him to abolish government authorization for anonymous companies. From this point of view, his approach was less innovative than that of Emilio Broglio. On the contrary, the young lawyer, moved by the need to protect third parties and minority shareholders, called for the company’s founders to be held liable for the full implementation of the articles of association while awaiting government approval; the use of court-appointed experts to oversee in-kind contributions; restrictions on articles of association that allow new shares to be issued[77]; and a ban on selling and trading warrants[78].

Restelli concluded his project with some articles on partnerships for non-commercial purposes and an appendix that addresses criminal issues, though he recognized that these subjects do not fall under company law.

He decided to include some provisions on partnerships for non-commercial purposes because he was convinced that both the form and content of the code’s articles on the matter were inadequate[79].

On the other hand, criminal law was seen as an instrument that the government could use to provide investors with proper protection from administrators and managers, without interfering too much in the running of the business. In that regard, Restelli proposed that any partners who withdrew their stake wholly or in part before their contract expired, or who manipulated inventories and financial statements[80], would be charged with fraud[81].

Although there is no evidence that Restelli had actual knowledge of how companies functioned on a daily basis, he can be said to have successfully reached his objective from a scientific point of view, given the premises that he laid out at the beginning of his work. The project was well-devised and presented a more orderly and effective structure than that of the laws in force at the time, which, together with some additional definitions provided by Restelli, had a significant effect on the legal certainty of company law. Furthermore, there were several interesting proposals for improving the balance between protecting citizens on the one hand, and respecting the dynamism of the business world on the other.

This was a commendable result in itself, but it took on even more significance because of the context in which Restelli was writing: indeed, any jurists who may have occasionally dealt with company law limited themselves to describing the code in force while relying on French doctrine and jurisprudence.

Thus, Restelli achieved his objective of putting forward a valid proposal for a new regulation of companies, in addition to the immediate objective of winning the contest. Nonetheless, there is still the impression that Restelli’s efforts did not actually fulfill his true goal: to help draft a better commercial code for his State. And given Restelli’s commitment to the liberation of Milan in the years to come, followed by his active role in national politics, there is little doubt that the State he had in mind was not the Kingdom of Lombardy-Venetia, but Italy.

4. Conclusions.

The winning entries in the Istituto’s contest were undoubtedly unique and significant in Lombardy at the time. In addition to demonstrating remarkable depth from a cultural and legal point of view, they also took a critical approach to the codified laws in force, which was much different from the standard practice of jurists in the Kingdom.

While the two writers from Turin, Gargano and Valerio, produced a work that stood out due to its systematic structure and its detailed reconstruction of the existing legal framework, Emilio Broglio and Francesco Restelli both showed more adeptness at understanding the needs of an economy that was preparing to deal with a period of great change. Though they differed in the insight they provided, their approach allowed them to address their recommendations directly to legislators, and they took their ideas further than any of their contemporaries had gone. For example, Broglio proposed the abolishment of government authorization for anonymous companies[82], while Restelli came up with a legitimate and practicable proposal to reform company law, suggesting that the concept of ‘commercial acts’ be associated with the definition of companies. What’s more, he recommended curbing the proliferation of limited-joint-stock companies simple by introducing more instruments to control partners, rather than resorting to the extreme measure of government authorization; and he called for stricter regulation of the ways to convene shareholders’ meetings, which the Mancini code would also address[83].

Thus, Broglio seemed more inclined towards complete deregulation, while Restelli was more cautious. Nonetheless, both of their works offered interesting ideas worthy of reflection.

There is no denying that the works of greatest merit were written by two jurists who possessed unique personal talents: indeed, they would be among the very few Lombards to hold prestigious political roles in unified Italy. Nonetheless, doubts remain as to whether the lack of other works of such caliber in Lombardy was only attributable to inadequate education on the subject[84]. Indeed, it is likely that a significant role was played by the restrictions on freedom of expression which had been put in place by the Austrians in their authoritarian regime. Furthermore, there was absolutely no motivation to express one’s opinion in any case[85]: why would anyone undertake such a laborious and complex task when there was the risk that the censorship office[86] would not authorize its publication, and even if it did, when there was no chance that the government would take the proposals into consideration?

List of Abbreviations

ASUI: Annali di storia delle università italiane
Cod. comm.: Codice di commercio di terra e di mare pel Regno d’Italia, Milano, 1808
DBGI: Dizionario Biografico dei Giuristi Italiani (secoli XII-XX)
DBI: Dizionario Biografico degli Italiani
GIL e BI: Giornale dell’I.R. Istituto Lombardo di scienze, lettere ed arti e Biblioteca Italiana

________________________
[1] A. Padoa Schioppa, La codificazione commercialistica nell’Italia preunitaria, in Saggi di storia del diritto commerciale, Milano 1992, pp. 142-143, Italian version of the first part of Italien, Handelsrecht, in Handbuch der Quellen und Literatur der neuren europäischen Privatrechtsgeschichte, H. Coing (ed.), III/3, München 1986, pp. 3209-3233. On the origin and content of the Code de commerce, see A. Padoa Schioppa, Napoleone e il «code de commerce», in Studi in onore di Cesare Grassetti, Milano 1982, II, pp. 3152-3187, in Diritto e potere nella storia europea, Atti del quarto Congresso internazionale della Società italiana di storia del diritto, Firenze 1982, pp. 1041-1067, and in Saggi di storia (1), pp. 89-112; Id., Codificazione e legislazione commercialistica in Francia (1778-1915), in Saggi di storia (1), pp. 63-79, Italian version of Frankreich, Handelsrecht, in Handbuch der Quellen und Literatur, pp. 1041-1067; F. Galgano,Lex mercatoria. Storia del diritto commerciale, Bologna 1993, pp. 79-84; see also the papers in Livre du bicentenaire du Code de commerce, Paris 2007; in Qu’en est-il du Code de Commerce 200 ans après? États des lieux et projections. Actes du colloque des 27 et 28 octobre 2007, C. Saint Alary Houin (ed.), Toulouse 2009.

[2] Austrian commercial law was based on decrees issued by Maria Theresa and Joseph II. For a short but effective summary in Italian of the decrees, see A. di Saint Joseph, Concordanza fra i codici di commercio stranieri ed il Codice di commercio francese, prima traduzione italiana, Venezia 1855, parte II, pp. 11-26. See also J. M. Zimmerl, Alphabetisches Handbuch zur Kenntniß der Handlungs und Wechselgeschäfte, Vienna 1805 and I. Sonnleither, Lehrbuch des Österreichischen Handels- und Wechselrechtes verbunden mit den gesetzlichen Vorschriften über die gewöhnlichsten Rechtsverhältnisse der Handelsleute, Graz 1820.

[3] Cod. comm., art. 1, and Padoa Schioppa, Codificazione e legislazione (1), p. 69. The passage from a subjective to an objective approach towards commercial law is described in depth in L. Berlinguer, Sui progetti di codice di Commercio del Regno d’Italia (1807-1808). Considerazioni su un inedito di D. A. Azuni, Milano 1970, pp. 17-45; in Galgano, Lex mercatoria (1), pp. 102-111; in U. Santarelli, Mercanti e società tra mercanti, Torino 1998, pp. 17-26.

[4] In Liguria there was a similar situation: the Code de commerce was in force, even though it had been abolished in the other regions of the Kingdom of Sardinia (G.S. Pene Vidari, Ricerche sulla giurisdizione commerciale negli Stati sabaudi, in «Bollettino storico-bibliografico subalpino», 76 (1978), pp. 435-566; Id., Cenni sulla codificazione commerciale sabauda, inStudi in memoria di Mario Abate, Torino 1986, pp. 693-704; L. Sinisi, Giustizia e giurisprudenza nell’Italia preunitaria. Il Senato di Genova, Milano 2002, pp. 329-353). The Code de commerce was also in force in Tuscany, and the original regulations in the Kingdom of the Two Sicilies and in the Papal States derived from it. Thus, all over Italy French doctrine and jurisprudence were important. For an overall framework, see Padoa Schioppa, La codificazione commercialistica (1), pp. 143-154. Unlike the other states, in the Duchy of Parma commercial law was included in the civil code. See E. Fregoso, Il codice di commercio nel Ducato di Parma, perduto o nascosto? Aspetti del diritto commerciale parmense. 1820-1847, in Diritto, cultura giuridica e riforme nell’età di Maria Luigia. Atti del convegno-Parma 14 e 15 dicembre 2007, F. Micolo, G. Baggio, E. Fregoso (ed.), Parma 2011, pp. 199-220.

[5] After all, the following passage could be found in the most important pro-government journal: «when a Kingdom is given a code by its Sovereign, jurists have to focus on the content of the code». See «Biblioteca Italiana ossia Giornale di letteratura scienze ed arti», 17 (gennaio 1820), p. 78. On the journal, see A. Luzio, La «Biblioteca Italiana» e il governo austriaco, in «Rivista storica del Risorgimento italiano», I (1986), 7-8, pp. 650-711; G. Bezzola, La voce del dominio: Biblioteca Italiana e Gazzetta di Milano, in Il tramonto di un regno. Il Lombardo-Veneto dalla Restaurazione al Risorgimento (1814-1859), Milano 1988, pp. 173-237; F. Danelon, La «Biblioteca Italiana»: una rivista di regime dell’Italia della Restaurazione, in «Il Tartarello», 19 (1995), 1-2, pp. 19-32.

[6] On both aspects, see M.R. di Simone, L’introduzione del Codice civile austriaco in Italia. Aspetti e momenti, in Scintillae iuris.Studi in memoria di Gino Gorla, II, Milano 1994, pp. 1015-1038, revised version in Ead.,Percorsi del diritto tra Austria e Italia (secoli XVII-XX), Milano 2006, pp. 167-177; E. D’amico, Agostino Reale e la civilistica lombarda nell’età della Restaurazione in Studi di storia del diritto, II, Milano 1999, pp. 773-778 e 806-818; A. Cavanna, Influenze francesi e continuità di aperture europee nella cultura giuridica dell’Italia dell’Ottocento, in Cristianità ed Europa, miscellanea in onore di Luigi Prosdocimi, C. Alzati (ed.), Roma 2000, pp. 329-354, also in Studi di storia del diritto, III, Milano 2001, pp. 719-753 and in Id., Scritti (1968-2002), II, Napoli 2007, pp. 1185-1218; R. Ferrante, Un ruolo per l’interprete: la scienza giuridica italiana tra Code Napoléon e ABGB, inL’ABGB e la codificazione asburgica in Italia e in Europa, P. Caroni e E. Dezza (ed.), Padova 2006, pp. 349-360, also inForum Historiae iuris (http://www.forhistiur.de/zitat/0601ferrante.htm), pp. 9-17, and revised version in R. Ferrante,Codificazione e cultura giuridica, Torino 20112, pp. 139-154. For an overview of the entire Italian peninsula, see P. Grossi, Scienza giuridica italiana. Un profilo storico 1860-1950, Milano 2000, pp. 1-12; in L. Moscati, Italienische Reise. Savigny e la scienza giuridica della Restaurazione, Roma 2000, pp. 64-69; in U. Petronio, Influenza del diritto francese in Italia dopo la promulgazione del Code Civil, in Dialettica tra legislatore e interprete. Dai codici francesi ai codici dell’Italia unita, L. Moscati (ed.), Napoli 2013, pp. 152-174.

[7] See also G. Acerbi, Le società per azioni all’unità d’Italia. I censimenti del 1865 e del 1866, Milano 2011, p. 24.

[8] Mainly Locré’s L’Esprit du Code de commerce and Pothier’s treatises, usually through an Italian translation. On the French authors, see J.-L. Halperin, Locré Jean-Guillame, and J.-L.Thireau, Pothier Robert-Joseph, in Dictionnaire historique des juristes français XIIe-XXe siècle, P. Arabeyre, J.-L. Halpérin, J. Krynen (ed.), Paris 2007, p. 514 e pp. 636-638; on the Italian version of their books, see M.T. Napoli, La cultura giuridica europea in Italia, II, Repertorio delle opere tradotte nel secolo XIX, Napoli 1986, pp. 23, 33, 63-64. Furthermore, Pardessus’ Trattato del contratto e delle lettere di cambio, dei biglietti all’ordine e degli altri effetti di commercio giusta i principj dei vigenti codici was published in Milan in 1811 and widely read. Between 1843 and 1847 many monographs from French jurists specialized in commercial law were printed in neighboring Veneto: Pardessus, De Villeneuve, Massé, Saint-Joseph, Delangle, Sébiré and Carteret.

[9] Both the French recueil and Giurisprudenza Pratica secondo la legislazione austriaca attivata nel Regno Lombardo-Veneto ossia collezione di decisioni, sentenze e decreti in materia civile commerciale criminale e di diritto pubblico, G.F. Zini (ed.) were used by Milanese jurists to read French jurisprudence. In 1831, Giovanni Francesco Zini started to include French sentences passed by the Tribunaux de commerce in his Giurisprudenza Pratica.

[10] See M. Costi, Il codice di commercio di terra, ossia il libro primo del Codice di commercio di terra e di mare pel Regno d’Italia ora Regno Lombardo-Veneto comentato, Venezia 1841; F. Foramiti, Enciclopedia legale, ovvero lessico ragionato di gius naturale, civile, canonico, mercantile-cambiario-marittimo, feudale, penale, pubblico-interno e delle genti, 4, Venezia 1838, pp. 2109-2112; V. Guazzo, Enciclopedia degli affari, ossia Guida universale per la cognizione e conformazione di qualunque atto, e per lo sviluppo di qualsiasi affare tanto tra privati, come avanti qualunque Autorità od ufficio, 9, Padova 1853, pp. 106-125, spec. pp. 109-124. G. D’Angelo’s monograph, Delle società di commercio. Commento del titolo III libro I del Codice di commercio, Venezia 1847, a translation with comments on Alphonse Delangle’s work.

[11] Adeodato Ressi won the selection process in 1818, but in 1821 he was arrested for seditious activities. Agostino Reale won the new selection process in 1822, but he renounced in order to teach civil law. A. Andreoni e P. Demuru, La Facoltà politico legale dell’Università di Pavia nella Restaurazione (1815-1848). Docenti e studenti, Bologna 1999, pp. 51-52 e 124-131. On the University of Pavia during the Restoration era, see also I. Ciprandi, L’università di Pavia nell’età della Restaurazione, inProblemi scolastici ed educativi nella Lombardia di primo Ottocento, II, L’istruzione superiore, Milano 1978; L. Musselli, La Facoltà di giurisprudenza nell’Ottocento, in Storia di Pavia. L’età moderna e contemporanea, V, Milano 2000, pp. 445-473; E. D’Amico, La facoltà giuridica pavese dalla riforma francese all’Unità, in Per una storia dell’Università di Pavia, G. Guderzo (ed.), estratto da ASUI, 7 (2003), pp. 107-122; V. Belloni, La Facoltà politico-legale, in Almum studium Papiense. L’università di Pavia dal medioevo al XXI secolo, II, Milano 2014, in press.

[12] A. Ressi, Breve esposizione di alcuni principi del diritto mercantile, Pavia 1818. For more details on Ressi’s academic career, see Andreoni e Demuru, La Facoltà politico legale (11), pp. 125-128; for a general overview, see A. Monti, Ressi, Adeodato, in DBGI, II, p. 1672.

[13] Cf. A. Reale, Del diritto commerciale e marittimo secondo le leggi austriache ed italiche nella parte in cui queste sono mantenute in vigore, Pavia 1822. On Reale’s academic career, see D’amico, Agostino Reale e la civilistica lombarda (6), pp. 773-818; Ead., Reale, Agostino, in DBGI, II, p. 1663.

[14] Andreoni e Demuru, La Facoltà politico legale (11), pp. 128-131.

[15] Napoli, La cultura giuridica (8), pp. 25-25, 31, 36-37.

[16] K.J.A. Mittermaier, in Dello stato attuale della scienza del diritto commerciale in Italia, (trad. di G. Tomasoni), in Giornale di giurisprudenza pratica, 1.23 (1946), p. 366, says that the two authors wrote commentaries on the commercial code, not research monographs.

[17] V.B. Zambelli, Proposta analitica di un insegnamento sul diritto commerciale, sul diritto di credito e sul diritto marittimo privato, pubblico e internazionale degli stati, II, Milano 1846, p. 120.

[18] See V. Belloni, Gli studi privati politico-legali nella Lombardia della restaurazione (1814-1859), in «Annali di Storia delle Università italiane», 13 (2009), pp. 352-353 and G. Berti, L’università di Padova dal 1814 al 1850, Padova 2011, p. 155.

[19] V. Belloni, L’avvocatura lombarda nell’età della Restaurazione. Un ceto in assoluto declino?, Milano 2012, pp. 173-180.

[20] A. Carera, I limiti del tentato decollo dopo il ritorno degli austriaci, in Dal Settecento all’unità politica, inStoria dell’industria lombarda, S. Zaninelli (ed.), Milano 1988, pp. 201-248; E. Borruso, L’industrializzazione del «milanese» (1836-1899), in Studi di storia dell’industria «milanese» (1836-1983), Milano 1996, pp. 9-44; R. Pichler, L’economia lombarda e l’Austria. Politica commerciale e sviluppo industriale (1815-1859), Milano 2001, pp. 35 e ss.; V. Castronovo, Storia economica d’Italia. Dall’Ottocento ai giorni nostri, Torino 20132, pp. 3-20.

[21] During the nineteenth century – not only in the Kingdom of Lombardy-Venetia, but all over Italy – it was very common to use the concept of ‘association’ in reference to economic activities. For Milan, see: M. Meriggi, Il Regno Lombardo-Veneto, in Storia d’Italia, G. Galasso (ed.), 18.2, Torino 1987, now in La grande storia di Milano, IV, Torino 2010, pp. 246-248; Id., Milano borghese. Circoli ed élites nell’Ottocento, Venezia 1992, pp. 93-103. For a general overview, see: Elites e associazioni nell’Italia dell’Ottocento, A.M. Banti e M. Meriggi (ed.), n. monografico di «Quaderni storici», 77, fasc. 2 (1991); A. Sciumè, Organizzare l’economia. Le Camere di Commercio nell’Italia contemporanea fra diritto commerciale e diritto amministrativo, Brescia 2000, p. 45; M. Augello e M.E.L. Guidi, Da dotti a economisti. Associazioni, accademie, e affermazione della scienza economica nell’Italia dell’Ottocento, in Associazionismo economico e diffusione dell’economia politica nell’Italia dell’Ottocento, Milano 2000, pp. Xxi-XCI.

[22] On what in English we could call “The Lombard Institute, Academy of Sciences and Letters”, see F. Della Peruta, Cultura e organizzazione del sapere nella Lombardia dell’Ottocento. L’Istituto Lombardo di scienze e lettere dalla fondazione all’unità, in L’Istituto Lombardo-Accademia di Scienze e Lettere (secoli XIX-XX), Storia istituzionale, I, A. Robbiati Bianchi (ed.), Milano 2007, pp. 162-302. On the jurists in the Istituto Lombardo, see A. Padoa Schioppa e E. D’Amico, Giuristi e diritto nell’Istituto Lombardo dell’Ottocento, in L’Istituto lombardo (22), Storia della Classe di Scienze Morali, III, M. Vitale, G. Orlandi e A. Robbiati Bianchi (ed.), Milano 2009, pp. 439-466; A. Santangelo Cordani, Le retoriche dei penalisti a cavallo dell’unità nazionale. Le letture dell’Istituto lombardo Accademia di scienze e lettere, Milano 2011, pp. 23-29.

[23] More details on the rules and terms of the scientific awards presented by the Istituto Lombardo can be found in Della Peruta, Cultura e organizzazione (22), pp. 302-392. The author stresses the importance of the scientific awards for the Istituto’s good reputation. The original copies of the documents concerning the scientific award are held at the Archivio dell’Istituto Lombardo, fondo Concorsi biennali scientifici 1842-1844.

[24] Cod. comm., libro I, titolo III. Cf. supra nt. 1.

[25] On the economic and political aspects, see C. Rotondi,”Rendere facili le verità utili”. Dalla società patriottica all’Istituto Lombardo (1776-1859), in Associazionismo economico (21), pp. 55-60.

[26] The selection committee had to give an opinion on every entry received, without mentioning the author, before choosing the winner. In 1842 they received nine entries. Cf. GIL e BI, 9 (1844), pp. 44-50.
[27] In 1838 the Istituto was entrusted with the continuation of the «Biblioteca Italiana» (supra nt. 5). See Della Peruta, Cultura e organizzazione (22), pp. 375-383.

[28] He taught Scienze politiche austriache, spiegazione del Codice penale sulle gravi trasgressioni di polizia e di Procedura giudiziaria nelle liti e fuori (Austrian political science, explanation of the Criminal Code regarding serious contraventions and Judicial Proceedings during and outside of litigation); see Andreoni e Demuru, La Facoltà politico legale (11), pp. 139-143 and V. Belloni, Andrea Zambelli, in Almum studium Papiense (11), in press. On his political history papers, which mainly focused on Machiavelli’s thought, see G. Procacci, Machiavelli nella cultura europea dell’età moderna, Roma-Bari 1995, pp. 393-398; L. Mitarotondo, Religioni e politica in Andrea Zambelli: un capitolo del machiavellismo nella cultura lombarda pre-unitaria, in Storia e politica, n.s. 3, n. 1 (2011), pp. 102-120. Paolo De Capitani, Carlo Londonio, Giuseppe Solari and Luigi De Cristoforis were the other members of the selection committee.

[29] GIL e BI, 10 (1845), p. 9. I. Lucchini republished them in «Rivista delle società», 14 (1969), pp. 913-936 (Broglio); pp. 1281-1337 (Restelli); 15 (1970), pp. 682-729 (Gargano and Valerio). He deeply believes in the importance of this contest, as he considers it the first time that the educated Milanese became aware of the juridical, economic and welfare problems related with economic associationism. See Lucchini, Introduzione, in «Rivista delle società», 14 (1969), p. 911.

[30] The present article, in its original form, utilizes nineteenth-century terms to describe these companies. For this reason, the English version has adopted nineteenth-century English terms as well, basing itself primarily on The Law of Italy Relating to Concessions, Railways & Tramways, Expropriation & Companies by Charles Woodward Wallis, published in 1830. As such, the following terminology shall be employed: the term “anonymous company” (società anonima) shall be considered synonymous with today’s “joint-stock company” (società per azioni), and the two terms shall be used interchangeably; the term “limited-joint-stock company simple” (società in accomandità semplice), shall refer to a company that more or less corresponds to today’s “limited partnership”, and which, in the words of Charles Woodward Wallis (1830), “is constituted by one or more Partners jointly and severally responsible, and one or more private Capitalists who are distinguished as Dormant Members with Limited Liability”; the term “limited-joint-stock companies divided by shares” (società in accomandità divisa per azioni) shall be used to refer to a company that more or less corresponds to what is today known as a “partnership limited by shares”; and the term “partnership under a collective name” (società in nome collettivo) shall be used to refer to a company that more or less corresponds to what is today known as a “general partnership”.

[31] GIL e BI, 9 (1844), pp. 45-50. For an evaluation of Zambelli’s economic theory, see Della Peruta, Cultura e organizzazione (22), pp. 320-323.

[32] Della Peruta, in Cultura e organizzazione (22), pp. 320-321, praises the three papers for the way they approach the matter under discussion. Acerbi, in Le società per azioni (7), pp. 23-25, undermines their importance in relation to the evolution of the local economy, especially the attempt of creating an anonymous company to build the Venice-Milan railway in 1837.

[33] Emilio Broglio was an important participant in the Risorgimento, and in 1848 he went into exile in Torino, where he taught Political Economy at the university. After Italian unification he was an active member of the right-wing party, and he held the role of minister three times: first of Public Works, then of Education, and finally of Agriculture and Trade. See N. Raponi, Broglio, Emilio, in DBI, 14 (1972), pp. 434-437.

[34] GIL e BI, 12 (1845), pp. 62-78. The manuscript is held in the Archivio dell’Istituto Lombardo, fondo Concorsi biennali scientifici 1842-1844, foglio di cop. n. 520.

[35] GIL e BI, 12 (1845), p. 66.

[36] GIL e BI, 12 (1845), p. 69. Broglio criticized all the articles related to anonymous companies, but article 37 was the most criticized. Lucchini believes that this is the reason why it was hard to obtain the Imprimatur for the paper. See Lucchini, Introduzione, in «Rivista delle società», 14 (1969), p. 914. On censorship, see F. Bertoliatti, La censura nel Lombardo-Veneto (1814-1848), in «Archivio storico per la Svizzera italiana», 14 (1939), pp. 23-114 e 15 (1940), pp. 45-67; G. Formenti, L’ufficio di censura di Milano durante la Restaurazione. L’organizzazione, le competenze e gli uomini (1814-1848), in «Storia in Lombardia», 10, 1 (1991), pp. 3-30; G. Berti, Censura e circolazione delle idee nel Veneto della Restaurazione, Venezia 1989. For an overview of the Italian peninsula before unification, see M.I. Palazzolo, I libri, il trono, l’altare. La censura nell’Italia della Restaurazione, Milano 2003, pp. 15-44; and the papers in D.M. Bruni, Potere e circolazione delle idee. Stampa, accademie e censura nel Risorgimento italiano, Milano 2007, especially G. Albergoni, La censura in Lombardia durante la Restaurazione. Alcune riflessioni su un problema aperto, pp. 213-236.

[37] Supra pp. 4 and 5. In 1846, Vincenzo Barnaba Zambelli argued strongly in favor of government authorization. Cf. Zambelli, Proposta analitica di un insegnamento (17), pp. 143-144.

[38] A. Lefebvre Teillard, La société anonyme au XIXe siècle. Du Code de commerce à la loi de 1867 histoire d’un instrument juridique de développement capitaliste, Paris 1985, pp. 21-105 e 419-448; Ead., L’industrialisation et le droit. Le développement des sociétés par actions en France au XIX, inStudien zur Einwirkung der Industrialisierung auf das Recht, H. Coing (ed.), Berlin 1991, pp. 51-77; P. Didier, Le capital social et la protection des créanciers sociaux, in Livre du bicentenaire (1), pp. 202-207; J.-P. Alline, Le développement du droit commercial en dehors du Code et l’influence des droits étrangers 1807-1925, in Qu’en est-il du Code (1), pp. 77-87. Due to the strict regulation, many entrepreneurs created limited-joint-stock companies divided by shares, instead of anonymous companies. J. Hilaire, Le Règne et la spéculation. Les sociétés en commandite depuis le Code de commerce, inLa société en commandite entre son passé et son avenir, Paris 1983, pp. 19-62, a shorter version in Id., Le Droit. Les affaires et L’Histoire, Paris 1995, pp. 159-218.

[39] See P. Ungari, Profilo storico del diritto delle anonime in Italia, Roma 1974, pp. 51-59; A. Padoa Schioppa, Disciplina legislativa e progetti di riforma delle società per azioni in Italia (1862-1942), in Studien zur Einwirkung (38), pp. 79-98, also in Saggi di storia (1), pp. 207-216; Id., Omologazione delle s.p.a. nell’Italia post-unitaria: il ruolo del notaio, in «Rivista di Storia del Diritto Italiano», LXXXV (2012), pp. 109-128; Id., La normativa sulle società per azioni: proposte e riforme, un concerto a più voci (1882-1942), in La società per azioni, A. Padoa Schioppa e P. Marchetti (ed.), Roma-Bari 2011, pp. 7-15; Acerbi, Le società per azioni (7), pp. 33-56. During the Napoleonic era there had been some bills which proposed doing away with government authorization for anonymous companies, but one of the partners had to be a general partner. See A. Padoa Schioppa, Le società commerciali nei progetti di codificazione del Regno italico (1806-1807), inLa formazione storica del diritto moderno in Europa, Firenze 1977, pp. 1015-1039, also in Saggi di storia (1), pp. 130-135; I progetti del Codice di commercio del Regno italico: 1806-1808, Milano 1999, A. Sciumè (ed.), pp. 117-129 for the bill of 1806, pp. 465-474 for the bill of 1808. For an overview of these bills, see Berlinguer, Sui progetti di codice di Commercio (3), pp. 7-74; A. Sciumè, I tentativi per la codificazione del diritto commerciale nel Regno Italico (1806-1808), Milano 1982. For the origin and content of the code of 1882, see A. Padoa Schioppa, La genesi del codice di commercio del 1882, in 1882-1892, Cento anni dal codice di commercio (Atti del Convegno internazionale di studi, Taormina 4-6 novembre 1982), Milano 1982, pp. 1-51, also in Saggi di storia (1), pp. 157-203

[40] He was fascinated by the development of the East India Company. See GIL e BI, 12 (1845), pp. 45-47. On the East India Company, see Gialdroni, East India Company. Una storia giuridica (1600-1708), Bologna 2011.

[41] GIL e BI, 9 (1844), p. 47.

[42] GIL e BI, 12 (1845), pp. 71-72 and supra nt. 38.

[43] Both Gargano and Valerio took part in the Risorgimento and wrote in Lorenzo Valerio’s journals. The Senator Valerio Lorenzo was Giuseppe’s brother. See Lucchini, Introduzione, in «Rivista delle società», 15 (1970), pp. 683-684.

[44] GIL e BI, 12 (1845), pp. 79-152, pp. 116-152. The manuscript, preserved in the Archivio dell’Istituto Lombardo, fondo Concorsi biennali scientifici 1842-1844, Foglio di cop. n. 518, is slightly different than the printed version.

[45] GIL e BI, 9 (1844), p. 48.

[46] Carera, I limiti del tentato decollo (20), p. 236 and Acerbi, Le società per azioni (7), pp. 15-16. Carlo Cattaneo criticized the negative attitude towards joint-stock companies in C. Cattaneo, Alcune ricerche sul Progetto di un Monte delle Sete, in Scritti sulla Lombardia, A. Quadrio Curzio e A. Moioli (ed.), II, Milano 1969, pp. 285-286.

[47] GIL e BI, 12 (1845), p. 130.

[48] GIL e BI, 12 (1845), pp. 143-151.

[49] GIL e BI, 12 (1845), p. 133.

[50] GIL e BI, 12 (1845), p. 134.

[51] GIL e BI, 9 (1844), p. 48.

[52] The selection committee severely criticized the suggestion to share the profit with workers and to make it easier for small investors to invest. GIL e BI, 9 (1844), p. 48.

[53] GIL e BI, 11 (1845), pp. 59-199, pp. 132-147. The manuscript is held in the Archivio dell’Istituto Lombardo, fondo Concorsi biennali scientifici 1842-1844, foglio di cop. n. 519.

[54] GIL e BI, 11 (1845), pp. 105-127.

[55] GIL e BI, 11 (1845), pp. 127-196.

[56] GIL e BI, 9 (1844), p. 49.

[57] In 1847 he was asked to examine Francesco Alecchi’s Regolamento sulle contravvenzioni boschive and to prepare two proposals to reform law studies at the University of Pavia; in 1857 he was asked to write a paper on intellectual property law for the Brussels conference.

[58] On the Milanese lawyer, who played a leading role in the revolution of 1848 and then became senator of the Italian Kingdom, see A. Monti, Un italiano: Francesco Restelli 1814-1890, Milano 1933, and V. Belloni, Avvocati della Milano austriaca ed edificazione del nuovo stato, in «Rassegna forense. Rivista trimestrale del Consiglio Nazionale Forense», 44, n.1 (2011), pp. 201-214; Ead., Francesco Restelli, in Avvocati che fecero l’Italia, S. Borsacchi e G.S. Pene Vidari (ed.), Bologna 2011, pp. 214-226.

[59] GIL e BI, 11 (1845), pp. 133-134.

[60] GIL e BI, 11 (1845), pp. 134-148.

[61] See supra nt. 3.

[62] GIL e BI, 11 (1845), p. 134 e Cod. comm., art. 19.

[63] Codice di commercio del Regno d’Italia, Milano 1882, art. 76. For a comparison between the two codes, see U. Santarelli, Società commerciali, credito e mercatura, in «Rivista di diritto civile», 36, n.5 (1990), pp. 610-611, also in Id., Ubi societas ibi ius. Scritti di storia del diritto, II, A. Landi (ed.), Torino 2010, pp. 561-576; Id., Di certe aporie (passate presenti e future) del sistema societario, in A Ennio Cortese, III, D. Maffei, I. Birocchi, M. Caravale, E. Conte, U. Petronio (ed.), Roma 2001, pp. 204-209.

[64] GIL e BI, 11 (1845), pp. 136, par. 12, and 156-160; Cod. comm. artt. 24-28.

[65] The power of directors would increase in the decades that followed, to the detriment of the shareholders’ power. Restelli was conservative when it came to this matter. Cf. GIL e BI, 11 (1845), p. 138, par. 24; Cod. comm. artt. 31-32.

[66] GIL e BI, 11 (1845), pp. 139-140 e 177-178. See Ungari, Profilo storico (39), pp. 67-68; Padoa Schioppa, Disciplina legislativa (39), pp. 211 e 220-222.

[67] GIL e BI, 11 (1845), pp. 140 e 180-182.

[68] GIL e BI, 11 (1845), p. 153.

[69] See Ungari, Profilo storico (38), p. 51; Padoa Schioppa, Disciplina legislativa (39), pp. 209-210.

[70] Supra nota 38.

[71] The “partners” (accomandatari) referred to here correspond to what today are known as “general partners”.

[72] GIL e BI, 11 (1845), pp. 136, par. 14, e 152-153.

[73] GIL e BI, 11 (1845), pp. 137 e 161-163.

[74] On the limited role of the Chamber of Commerce in Lombardy, see Sciumè, Organizzare l’economia (21), pp. 42-52.

[75] GIL e BI, 11 (1845), pp. 141 e 150-151.

[76] GIL e BI, 11 (1845), pp. 144-145 e 186-187.

[77] GIL e BI, 11 (1845), pp. 138 e 163-169.

[78] GIL e BI, 11 (1845), pp. 139 e 174-176.

[79] GIL e BI, 11 (1845), pp. 147-148 e 193-194.

[80] The same rule applied to the directors of anonymous companies.

[81] GIL e BI, 11 (1845), pp. 148-148 e 195-196 and Codice dei delitti e delle gravi trasgressioni politiche, Milano 1815, parte I, sez. I, §§ 176-184. On the development of business criminal law, see R. Ferrante, Il diritto penale dell’economia nell’età dei codici. Dall’illuminismo giuridico ai “nuovi reati”, in Itinerari in comune. Ricerche di storia del diritto per Vito Piergiovanni, Milano 2011, pp. 63-114.

[82] Cf. supra nt. 36 and the text referred to therein.

[83] Cf. supra § 3.

[84] In general, the lessons held at the University of Pavia lacked originality, and commercial law lessons were worse than the others, due to Antonio Volpi’s incompetence. See supra nt. 11 and 14.

[85] Similar considerations, with reference to practicing law within the same framework, can be found in Belloni, Avvocati della Milano (58), pp. 232-234.

[86] Supra nt. 36.

When Private Vice Meets Public Virtue: The End of Count Giuseppe Brebbia’s Career as a Public Official

Filippo Rossi

Università degli Studi di Milano

filippo.rossi@unimi.it

Abstract: Milano, 1827. The criminal proceeding against Count Giuseppe Brebbia, a Lombardo-Venetian’ senior official accused of misfeasance, is of considerable significance to investigate the interlinkage between social classes and administration assessment in the first years of Austrian restoration in Italy. At that time, undeniable signs of Adelstand’s difficulties in handling public affair occurred, mainly at local level. The questions of how and why an impersonal administration rose can be answered only taking a closer look at this trial, around which many social and political interests clustered around.

Keywords: Lombardo-Venetian Kingdom; criminal law; public administrations and bureaucracy; provincial delegations; social classes

In the summer of 1827, Austrian authorities became aware of some questionable conduct surrounding the management of theFondo di Primitiva Istruzione, a government institution set up to pay primary school teachers in the department of Mella[1]. They promptly summoned Giuseppe Brebbia to provide answers, as the recently-appointed counselor of the Milanese government was also the former provincial delegate of Brescia[2].

This was not the first time that the high official had been ordered to account for issues regarding the institution, which he had administered up until the previous year[3]; yet this time, the withdrawals were far too substantial for the eagle eye of the empire to ignore. Despite the fact that the Fondo received an annuity of approximately 80,000 lire[4], thirty years had passed since its establishment and it found itself having to deal with inexplicably meager resources[5]: £ 57,680.27 of «active loans» and £ 25,123.83 of «income properties». In short, an initial estimate put the deficiency at a hefty 131,755.23 Austrian lire[6].

The expense items aroused suspicion as well, as the descriptions listed («classified police expenses»; «repayable subsidies»; «salary advances») had everything to do with the administration of the provincial delegation and nothing to do with running a scholastic institution. Thus, the authorities called for an immediate explanation, as well as the prompt repayment of all amounts taken out of the coffers[7]: Brebbia, however, did not do exactly as ordered, as a series of complications would result in his waiting until 5 October to deposit a modest partial payment of 18,000 lire in the institution’s funds[8], and only after having reached an agreement with the Imperial-Royal tax authorities to do so. Though there may be interesting aspects to consider from a civil-law point of view, what really makes this matter so compelling is the criminal case that was looming on the horizon.

The Austrian criminal code (Franziskana) – famous for investing the powers of both judge and examining magistrate in the same person – had provided for the introduction of a criminal procedure in Lombardy starting in 1816[9]. The various steps could be described as a mix of repressive measures with the occasional glimmer of respect for civil liberties, and they were distinctly inquisitorial in nature: it would start with the «notice of crime» and proceed to verify the existence of «legal evidence» («preliminary investigation», §§ 211-333 of the first part). From there, a search for «piena prova» (incontrovertible evidence, as provided for by either the «ordinary inquisition process» or «special inquisition», §§ 334-414) would led to the sentencing phase (§§ 415-444)[10]. In addition, the Austrian regime also charged the judge with acting as the defense attorney of the accused, a peculiarity that arose from the fact that «defense was one of the official duties in criminal proceedings» (§ 337)[11].

The Habsburg obsession with ‘formalizing’ all administrative affairs meant that the proceedings were meticulously transcribed. As such, we are able to consult a step-by-step record that takes us from beginning to end in an intricate and sensitive case[12]. In accordance with the tasks assigned to him by the Strafgesetz, a judge operating in the Italian Länder had to first open an investigation so as to establish valid grounds for bringing charges. Thus, the initial phase of this case saw the loyal magistrate sleuthing behind the scenes as thoroughly as he could, and almost two years after the first injunction, he finally had enough evidence to issue a decree that called for the opening of a «special inquisition».

The charge brought against the counselor on 4 May 1829 would have set anyone’s pulse racing: abuse of power, on the grounds of having maliciously taken advantage of his official capacity and breaching the duties thereof, thereby causing great detriment to the public administration[13]. To make matters worse, it was also held that he had breached his oath of allegiance in the form of aggravated theft, thus constituting grounds for a concurrent charge of treason[14].

Brebbia was promptly suspended from all official duties without pay and placed under arrest: he had been deemed a ‘flight risk’, and there was also the fear that he could tamper with evidence[15]. For the Milanese aristocrat, the next stop on this tumultuous journey would be prison[16]. This level of severity was nothing out of the ordinary for the Habsburg criminal procedure, as preliminary detention was considered a fundamental and instrumental part of exercising criminal jurisdiction: indeed, it was no coincidence that the code provided for «criminal arrest» and «preliminary examination of the accused» (§§ 281-306, first part)[17] immediately following the «investigation» (§§ 226-280), as it was an appropriate way to cap off this initial phase[18].

The second phase of the processura focused on gathering legal proof of guilt of the person placed under investigation, and whose status was «aggravated by the existence of legal evidence of a crime»[19]. In this case, it became very difficult to substantiate the allegations against the Count. The only irrefutable fact available was that the accused had reached an agreement with the Imperial-Royal tax authorities in which he undertook to pay back the missing money to the Fondo[20]. This sort of unsolicited apology on his part – an excusatio non petita – might have been incriminating, but from a penal point of view it was irrelevant: according to the Franziskana, «when deciding on a case, only that which has been legally proven may be held as true» (§ 396).

In that regard, the magistrates had some initial hurdles to overcome, as they were faced with a lack of evidence: the Fondo’s cash books had been missing for some time. For Gaudenzio De Pagave, who was Brebbia’s successor to the Brescia delegation, this was somewhat embarrassing to admit[21]. Yet in the spirit of fair play, De Pagave sought to release the Count of all responsibility, as he felt any potential involvement on the part of Brebbia was unlikely and unsubstantiated[22]: to what advantage, he argued, seeing as how he had already declared himself the debtor for sums that he had even partly repaid? De Pagave was of the opinion that in order to track down the culprit, it was necessary to shift the focus elsewhere: namely, to someone who was afraid of being connected to the crime, and who would have had no difficulty in eliminating evidence of the misdeed; in short, someone who could have easily arranged for all responsibility to fall upon the then delegate[23].

Now, it would be a mistake to claim that Brebbia had absolutely nothing to do with the missing books. But then again, he would have never been able to withdraw all of that money without paying off the officials in charge of the institution’s financial administration: namely, the cashier, Giovanni Cantoni, and the accountant, Antonio Superti. The former was in charge of payments and balancing the fund’s budget[24]: his malfeasance could be inferred based on the amount of money he was paid by Brebbia himself, in what were only described as «advances»[25]. The latter was responsible for approving accounts that had clearly been forged, and his wrongdoing could also be deduced from the disappearance of the books, a fact for which he was at least strictly liable: had they been kept properly, those records would not have vanished so soon after the investigation began[26]. Lucky for them, these hypotheses, which were certainly well-founded, were nonetheless tenuous in terms of probative value, and as such insufficient to include as the «legal evidence» required by § 281 of the first part of the code.

In the end, it would be the provincial delegation’s expense reports that revealed the fraudulent workings behind the Brebbia administration’s ‘creative’ money management scheme: the listed descriptions showed substantial cash withdrawals had been made to compensate for the payment of classified police expenses, not to mention «salary advances»[27]. Put briefly: the Count was trying to make up for the Fondo’s losses by dipping into the delegation’s funds!

The prosecution was pleased, as it had finally found the foothold it needed to knock down this house of lies once and for all. In fact, even if one admitted that the civil unrest of the early 1820s had indeed called for «costly surveillance», the 88,279.25 Austrian lire withdrawn between 1821 and 1825 still came off as an exorbitant amount of money; all the more so if one considered that in the same time period, the Count had requested a hefty 49,302.19 lire from the general director of police, for the same reason no less[28].

And it was hard to turn a blind eye to the regrettable event that had occurred in September of 1825, when a certain Professor Horaczech was to be sent back to Moravia, and to do so the then delegate had withdrawn 1,705.29 lire not once, but twice: one withdrawal had been from the scholastic fund, while the other from a fund for the secret police. Brebbia, however, had not repaid the amount relative to the unjustified withdrawal, and to make up for the deficiency, there had been no other choice but to dock the sum from the professor’s pension[29].

Yet what counted more than anything else were the statements made during interrogation, a phase that was known as «ordinary examination»[30]. Standing before the ‘three-headed dog’ that was the Lombardo-Venetian criminal judge, Brebbia did not attempt to evade questioning: rather, he sought to fend off attack by adopting a clumsy and awkward defense. After admitting to his mistakes, the ex-delegate assured the judge that he had not misappropriated the Fondo’s resources «with iniquitous intent», but rather to deal with his own «domestic needs», and that he had done so with the intention of paying the money back; at a certain point, however, his accumulation of debt had become so uncontrollable that it became impossible for him to make good on the repayment[31].

Luce meridiana clarioris : in light of the confession, the actual facts of the case could now be held as legally true, thus eliminating the need for due process and further investigation[32]. In an inflexible criminal procedure that revolved around legal evidence, an admission of guilt was tantamount to a relevatio ab onere probandi, meaning that the Austrian judge was now relieved of the burden of proof. Just three months after the trial had begun[33], the judge was now in the position to make a ruling in the case.

Thus, on 25 August 1829, Giuseppe Brebbia was found guilty of abuse of power. He was sentenced to two years of carcere duro (harsh imprisonment), stripped of his nobility, and ordered to pay all court costs; this, of course, in addition to compensating the Fondo for the damages incurred[34].

While the sentence might not have been lenient, it was not as harsh as it could have been: at the time, the standard sentence for that crime was harsh imprisonment for one to five years, which could potentially be extended to ten years based on a «higher degree of malice, and the significance of damage»[35]. The complete text of the ruling delivered by the court of first instance is missing, but it seems reasonable to attribute this act of measured clemency to a combination of «mitigating circumstances relative to the offender» (§ 39): namely, his irreproachable behavior before the crime (letter b), his willingness to compensate for the damage caused (letter g), and above all, his confession (letter h)[36].

There is also another factor to consider. It is a well-known fact that the Austrian system provided for a series of checks in the most serious of crimes[37], in order to ensure greater certainty in sentencing and at the same time compensate for the lack of a defense attorney during trial: as such, all court documents relating to the case were sent to the court of appeal (§ 433), and from there to the supreme court, known as the Lombardo-Venetian Senate of the Supreme Court of Justice (§ 442).

The court of appeal’s task was to ensure the proper application of criminal law: in this case, the ruling at first instance was upheld, though the sentence was reduced «for the purpose of mitigation» to two years of ordinary imprisonment[38].

The counselors of the Senate continued the trend of progressively reducing Brebbia’s original sentence by putting forward an even more lenient proposal. While all of the senators «unanimously» confirmed the defendant’s guilt, only five magistrates suggested commuting the sentence to one year’s imprisonment, and in the end the entire assembly proposed that His Majesty «reduce the sentence, for the purpose of a pardon, to the time served under arrest up until that moment»[39]. Even though the emperor would not ultimately accept this request[40], it was clear that the judges did not have it in them to come down mercilessly on the Count.

There were a few factors that had worked in the Count’s favor. First of all, not only had Brebbia been held in high regard for his loyalty to the regime, but also for his commitment and dedication to the administration of a turbulent province during some difficult years. This loyalty and selflessness – the highest values that the Austrians asked of their officials – had allowed the Milanese nobleman to garner the esteem and respect of the empire’s upper echelons. Those same high officials, however, would eventually be put in the difficult and somewhat embarrassing position of removing Brebbia from public office.

Though he did not know Brebbia personally, Governor Franz Hartig felt there was a special set of mitigating circumstances working in the Count’s favor[41]. And so too did the general director of police, Carlo Torresani, who wrote a most heartfelt report to the Governor to inform him of the situation. Normally parsimonious with praise, he described a Beamte who had had a «long and brilliant career», who had been «appreciated for his noble and courteous ways», who – it was true – had «erred by making use of some funds under his tutelage meant for the public administration», but that «he did so without committing an immoral act». And Torresani lauded Brebbia for the economic sacrifice he had made in agreeing to repay such a considerable amount of debt, which in his view was only further testament to the Count’s good intentions; moreover, he would repay the sum «with the appropriate interest on the amount owed»[42].

Similar considerations had indeed led the magistrates to conclude that the delegate’s conduct had not been the result of a «well-thought-out deliberation», but rather an improper decision made without reflecting upon his duties, and even less upon the potential consequences of his actions[43].

Yet one fact remained: the case against the Count had been brought to three trials, and though the sentence had been gradually reduced, the verdict had stayed the same. In short, the judicial system believed that the elements of the crime as described in § 85 of the criminal code did in fact exist. After all, the provincial delegate was tasked with overseeing and safeguarding the empire’s resources, and those of the Fondo, «due to its very nature and purpose, and to the duties of the Authority in charge of it», were to be considered «a sacred object, not to be touched for any other purpose»; as such, it was clear that any misappropriation of the institution’s money could only have resulted in charges against him for abuse of power[44].

There was no doubt about the defendant’s «culpability» according to Vincenzo Raicich, the reporting judge for the supreme court trial. In his opinion, not only was the commission of the crime clearly evidenced by the amount of embezzled money, but also by the way in which the offender carried out the withdrawals. Indeed, if «it was already abuse to use the money of a charitable Institution for purposes other than those for which the money was meant», then «such an arbitrary act is all the graver, when that purpose is for private use»[45].

Placing all the facts in a legal context, the magistrates took a number of erroneous assertions off the table. First of all, contrary to what was initially alleged, they excluded the possibility of concurrent offenses having been committed: namely, the Count’s conduct could not be considered grounds for a charge of treason, as such a charge implied a direct connection to «the property of others as entrusted […] by virtue of public office»[46], and Giuseppe Brebbia could not have managed the Fondo’s money without going through Cantoni and Superti. Even the special inquisition had acknowledged that there were doubts surrounding this issue[47]: Brebbia had not had direct access to the misappropriated funds, and therefore the intervensio possessionis (change of possession), which was a fundamental element of the crime, could not be legally proven.

Secondly, the fact that Brebbia had attempted to repay the embezzled money did not even partially absolve him of criminal liability. Indeed, this had no bearing on the charge of abuse of power, because § 85 clearly stipulated that «the law only provides for the potential damage [caused], and any indemnification that should perchance be provided after the fact does not invalidate the criminal nature of the action»[48]. Likewise, even a charge of theft would not have been affected by Brebbia’s attempt at reparations. The law provided for ‘exoneration’ if the stolen property was returned in full, in a timely fashion and before the public authorities became aware of the crime[49], but Brebbia’s case clearly did not meet those conditions, as he had only partially repaid the amount he owed, and had been late in doing so[50].

Moreover, the magistrates did not lend any credence to Brebbia’s spurious and fanciful theory that as the supposed administrator of the Fondo – having identified himself as such in report n. 9938, dated 6 June 1819 – he had had the power to use its money at will[51]. In their eyes, this was nothing but a laughable attempt at «vain refuge», and was not worthy of the slightest consideration: even if the management of the institution did not fall within the duties of provincial delegate, there were specific rules in place – set forth in both the civil code and in several circular letters – that forbade «any guardian» from claiming the right to use money to his own benefit[52]. What’s more, any respectable public official could certainly not «in such a strange and bizarre manner authorize operations that he himself had put into action in his own interest or for secret, illegitimate purposes»[53].

The duty of «administration or oversight» meant that Brebbia would never have had the authority to make such arbitrary decisions, and each of the three courts had taken this into account when issuing their sentences[54].

With the punishment of a rogue official, human dignity and institutional dignity converge. Thus, the House of Austria had no intention whatsoever of absolving Brebbia by citing his innocence of the crime, or even a lack of evidence[55]: on the contrary, the official was held to his undeniable responsibilities. They used no uncertain terms in denouncing him for having stained «the integrity and purity that each Royal Clerk, especially high-ranking Officials, must exemplify», and they stripped him of his prestigious public office, as the high ranks had definitively lost all confidence in him due to his conduct[56].

None other than the governor of Lombardy himself reaffirmed the upper echelon’s stance on the matter: even if one were to ignore the conviction delivered by the supreme court, which by law would have resulted in Brebbia’s removal from office[57], «the arbitrary and illegal withdrawals made by Count Brebbia in his capacity as Delegate, from a public fund under his charge and tutelage, and put to his private use, would be such an [egregious] offense, that it alone could have resulted in that grave disciplinary action»[58].

Indeed, the Count had been granted somewhat special treatment up until that point: the court of appeal had even moved to sentence him to ordinary imprisonment after his initial sentence of the much harsher carcere duro[59]. But once the conviction was delivered in Milan, there was a marked turnaround and the government counselor was a dead weight to be unloaded as soon as possible.

What was unfolding bordered on damnatio memoriae. But upon further reflection, perhaps such a reversal was not to be unexpected: after all, in the kingdom of Lombardy-Venetia, a public official was looked to as a repository of public virtue; he was a living, idealized model that the sovereigns hoped could inspire profound feelings of loyalty and respect for the res publica on the part of the kingdom’s subjects[60].

It was no coincidence that after the «opening of the special inquisition», the ‘imperial eagle’ had swooped in to conceal the Count’s inopportune arrest from its subjects, in anticipation of how the matter would unfold: in a world of appearances, nothing was to disturb the regular course of events. None other than the general director of police himself had dealt with the issue, and he had been quick to report the success of his operation to the governor, stating that everything had gone swimmingly, «without anybody noticing a thing»[61].

And yet, while Brebbia was left to his fate – as he appealed to the sovereign for «any means to free himself and his innocent victims from the distress caused by his first and only transgression»[62] – the sad ending to Giuseppe’s career was also the consequence of an inveterate vice that ran in the family.

Indeed, the Brebbia family’s financial situation had been anything but stable since the late 18th century: there was no other explanation for the considerable sum of money (24,000 lire!) lent to Francesco Brebbia and his sons Giuseppe and Luigi by Pietro and Alessandro Verri on 27 March 1783. The loan – which was to be paid back at 5% interest over three years – was so substantial that it required a special dispensation from the Senate, as the Count had guaranteed repayment with the income earned on a trust (Pietro was not concerned, however, as he considered Francesco «a temperate, punctual and honorable man»[63]). A few years later, Francesco would have his wife register «596 poles and 13 planks estimated to be worth 2293.5.3. scudi» in his name, so that he could then transfer them to Count Andrea Passalacqua Lucini on 14 August 1792[64]: it is very likely that this was yet another debt to be settled. In the autumn of 1827, his inept first-born son was only able to reimburse a very small portion of what he had so inexpertly embezzled; Giuseppe was already in prison by the spring of 1829, when the family’s financial status had become so precarious that his relatives were no longer able to come to his aid, and he was forced to ask the court for financial support during his incarceration (as per § 313)[65].

Yet not all of the blame lay with Giuseppe. Indeed, the wealthy, notable and liberal province of Brescia certainly needed more than a tarnished coat of arms at the helm of its government in order to feel represented. While it was true that Giuseppe had given in «to a sort of hereditary disease in his family by spending beyond his means»[66], things would have been better had the regime appointed someone who would have exalted the province’s pedigree and heritage; someone who would have made his mark on the way the province was run and have his own success come to be identified with the position itself. This was certainly not the case with the poor Count, whose family funds had already been in dire straits for some time. In short, though he had proved himself a fairly capable Beamte over his career, it had been an ill-advised decision to appoint Brebbia to Brescia: it had only damaged the efforts of a foreign government to be socially accepted by a demanding province with a strong, class-driven identity[67].

The center-periphery dialectic was an unavoidable variable to consider when building and managing an imperial system[68], but it did not account for all the factors at play in what was still a ‘trial phase’ for the kingdom of Lombardy-Venetia. One must only take a closer look at how the functions of local government were put in practice to get a clearer idea of what the role of provincial delegate entailed: while the position’s responsibilities made it an extremely delicate office to hold, it was tremendously appealing to those who wished to hold it.

Delicate indeed. A telling memorial written around that time period revealed that «little is needed to be a counselor of the government», but that on the contrary, «the good government of a province requires greater intelligence, more skill, more knowledge of the world, a conviction that the public Spirit of the citizens towards the Sovereign must be preserved as is when favorable, and if it is not too favorable, that it may become so». The key to success, therefore, was staying in contact with the people, in order to examine things from up close. Thus, it had been a wise decision to call Brebbia back to the capital and assign him a role in Government, where high-ranking officials had nothing to deal with except «the things on [their] desk». All the more so considering that he was in such «bad shape» physically that he had actually been impeded in his work[69].

On the other hand, it would not be fair to accuse these provincial officials of being unjustifiably ambitious. After all, the law itself provided for it, as demonstrated by some of the broadly-defined tasks that were assigned to the provinzial Delegiert in the Istruzioni published on 26 May 1817: «inform and consult» the government; «oversee […] all things related to the public administration»; «take definitive measures […] for public order»; what’s more, this same legislation allowed delegates to expand these powers at their discretion during emergencies (§15)[70]. A counselor of the government had far less authority, as the organic laws of 1815 commanded his strict subordination to the «aulic ministers whose orders he must carry out» (§ 4)[71].

Of course, a delegate was expected to be willing to travel, as duly confirmed by the regulatory framework in place. There was indeed historical precedent: the protocol under Joseph II had provided for the heads of departments to make periodic visits to their offices, a practice that could even be partially traced back to the Spanish reign[72]. A circular letter sent out on 17 December 1817 recalled as much, ordering provincial officials to personally inspect their areas of jurisdiction at least once a year, not necessarily in one fell swoop but «even in various phases […] in order to enlighten the government as to the wishes and needs of the citizenry, and as to the conduct of its local administrations»[73].

In short, this was one of the few opportunities left for those in the noble ranks to show what they were made of in terms of running an administration: the imperial system was not yet fully operational, and there was still some control to be had at this intermediate level in the Italienische Provinzen[74]. Although the new political climate was not particularly hostile to the Adelsstand, the latter had lost much of its past glories: from the period under French rule to the return of the Austrians, ‘bureaucratic reform’ had cut all ties to the venality and inheritance of office. Any members of the nobility who wished to undertake a public career would now have to be properly inserted into the government hierarchy: they were to be subjected to an oath of office and all the symbolism that that entailed; they were to respect the rules of public office if they wished to remain in that role; and they were to comply with any procedures put into place to remove them from office in the event of serious offenses. Put briefly, they were to be treated on the same terms as any other official: the conclusion of the so-called ‘dethronement of the noble ranks’[75].

While the Napoleonic élite were being deprived of their rank in those early years of Lombardy-Venetia, the bourgeoisie had not yet formed. Consequently, the Lombard aristocracy was able to assert itself in the management of local affairs, if nothing else because there were quite a few positions to be covered, in addition to the fact they put up less resistance to the changes taking place. It is no secret that the initial appointments of high officials to the provincial government had one thing in common, «which evens out the apparent lack of homogeneity: namely, membership of the nobility»[76]. From this point of view, Giuseppe Brebbia’s curriculum was very similar to that of the other provincial delegates at the time, as were his origins. It would not be until the decades to follow – and the change would become increasingly apparent from the late 1830s to 1848 – that a more clear-cut ‘professional calling’ emerged, thus marking a new way of becoming part of the establishment[77].

Even though social class and administrative institutions were inextricably tied, it is certainly not difficult to see that therein lay a fundamental contradiction: on the one hand, the central government was relying on a ‘traditional’ aristocracy that represented the society’s élite, «a landed nobility that, on a provincial level, counted the most important and influential people among its ranks»[78]; on the other hand, the Habsburg regime aspired to a modern sense of impersonal, or better still, classless administration. Therein lay the empire’s weakness in mediating between the political and social spheres during this stage of their rule; that is, before the cards would be reshuffled in the bourgeoisie’s favor.

And just when the time was ripe to take stock of what was, for the most part, the positive work that had been carried out by the aristocrats in the department, Count Giuseppe Brebbia of Milan risked stoking tensions and throwing everything out of balance with his misconduct, which very well might have be the spark that set off the powder keg. No wonder, then, that the upper echelons took immediate action to contain the damage; that they carefully performed a thorough investigation; and that they discreetly and promptly took all the necessary steps to eventually remove him from office and deliver a sentence in the utmost secrecy.

Of course, whether they were counselors or magistrates, the fact that the high officials of Lombardy had to bring one of their own to trial clearly put them in a difficult position, and no less so when it came time to permanently dismiss him from his post. In sum, can it be said the scandal surrounding the Fondo di primitiva istruzione was actually the first step towards a change in how one gained access to local government? That finally, it was no longer social prestige that opened the doors to the high ranks, but rather the high ranks that opened the doors to social prestige?

Not yet. Rather, I would say that the problem was still being ‘digested’ towards the end of the 1820s, and while there was growing awareness that the traditional order was flawed, there were still no signs of making any radical adjustments. Witness Brebbia’s replacement to the Brescia delegation, Gaudenzio De Pagave: a man of similar ‘caliber’, he was a capable official who belonged to the gentry, and indeed his social class had had a decades-long history of members in public office[79].

________________________
[1] Counselor of government Luigi Crespi to Brebbia, July 14, 1827 (Asmi, Presidenza di Governo, fold. 102, n. 87/geheim). For some information about the Fondo – created by the Brescia provisional regency on September 30, 1797 (when «Brotherhoods and charities had been suppressed and all their properties had been confiscated, devolving their funds to communes and provinces to aid primary education», ibidem, n. 1266/geheim), later placed under the direction of departmental administration in accordance with the law of July 24, 1802, and still not yet abolished when the Austrians came back to Italy – seePiano provvisorio per la pubblica istruzione del Dipartimento del Mella (found in Archivio di Stato di Milano, hereinafter Asmi, Studi, parte moderna, fold. 396, file 1); report n. 16125 of Prefecture of Mella department to minister of interior, November 14, 1803 (ibidem, file. 11), M. Agosti, La tradizione pedagogica bresciana nei secoli XIX e XX, in Storia di Brescia, vol. IV, Dalla Repubblica bresciana ai giorni nostri (1797-1963), Milano 1964, pp. 787-789 e 821-822). With regard to Fondo’s workforce cfr. Almanacco Imperiale Reale per le provincie del Regno Lombardo-Veneto soggette al governo di Venezia per l’anno 1843, Milano 1844, p. 310. For a detailed bibliography on brotherhoods and other aid agencies, see M. Gazzini, Confraternite e società cittadine nel medioevo italiano, Bologna 2006, pp. 22-57.

[2] Eldest child of Francesco (1750-1818) and Camilla Arrigoni (1753-1843), heir of an old noble family, the House of Brebbia Counts of Barzago (see, amongst others, Alberi genealogici della case nobili di Milano, con uno scritto di C. Manaresi, introduzione di M.P. Zanoboni, blasonature di C. Maspoli, Milano 2008, pp. 236-237), Giuseppe (1777-May 24, 1851) gradually rose through the public service ranks. In March of 1802 he became an apprentice in the Italian Republic ministry of justice, and two years later he was promoted to administrative assistant. Starting on September 16, 1808, he served in the same capacity in the Council of State’s legislative and ecclesiastical sections (see Raccolta delle leggi, decreti e circolari che si riferiscono alle attribuzioni del Ministero dell’Interno del Regno d’Italia, vol. I, Milano 1808, p. 11), where, on December 14, he was appointed as an additional member. After Lombardy was re-assigned to Austria, he embarked again on an administrative career, holding higher and more sensitive positions: member of the committee for the liquidation of the public debt from December 1814, on January 19, 1816, he was made provincial delegate of Sondrio (cfr. Gazzetta di Milano, Milano 1822, n. 22, January 22, 1816, p. 95). In 1817 he was placed in charge of the more prominent delegation of Brescia (where he took office the following year, on February 11). With the sovereign resolution of June 19, 1826, Emperor Francis finally declared Brebbia’s appointment as an additional counselor of the Lombardy presidency government («Consigliere soprannumerario presso questo Governo») (see protocol July 12, 1826, n. 21864/4088, in Asmi), Uffici e Tribunali regi, parte moderna, fold. 479, file Brebbia Conte Gius., e Presidenza del Governo, fold. 105, n. 570/geheim, May 28, 1827, Stato personale di Servizio del Conte Giuseppe Brebbia).

[3] Cfr., e.g., Luigi Crespi to Brebbia, June 11, 1827 (Asmi, Presidenza di Governo, fold. 102, n. 87/geheim).

[4] Brescia provincial delegate Gaudenzio De Pagave to President of Milanese government Giulio Strassoldo, February 18, 1829, Asmi, Presidenza di Governo, fold. 110, n. 217/geheim.

[5] De Pagave to Strassoldo, December 17, 1827, report drafted in despatch n. 791/geheim of July 18, in Asmi, Presidenza di Governo, fold. 102, n. 1266/geheim

[6] Then rose to 142,384.39 lire, as a result of supplementary investigations (Asmi, Presidenza di Governo, fold. 102, nn. 788, 931, 1180, 1183 and 1184/geheim).

[7] See Crespi to Brebbia, n. 327/geheim, August 27, 1827, in Asmi, Presidenza di Governo, fold. 102, n. 87/geheim.

[8] Report n. 931/geheim, in Asmi, Presidenza di Governo, fold. 102.

[9] See sovereign resolution of October 22, 1815, in circular letter of October 26, 1815 (Raccolta degli Atti del Governo e delle disposizioni generali emanate dalle diverse autorità in oggetti sia amministrativi che giudiziarj, Milano 1815-1839, from now on only Atti del Governo, 1815, vol. II, second part, n. 55, p. 361). In Venetian territory the 1803 penal code had been in force since July 1, 1815 (cfr. sovereign resolution of April 24, 1815, in Collezione delle leggi, istruzioni e disposizioni di massima pubblicate o diramate nelle provincie venete in oggetti di amministrazione politica, camerale e giudiciaria, Venezia 1815, vol. II, first part, p. 139).

[10] Codice Penale Universale Austriaco, coll’Appendice delle più recenti norme generali. Seconda versione ufficiale, Milano 1815 (hereinafter only Codice Penale). Similar, but simplified, the procedure for serious police trangressions: §§ 293-406, second part. On this, see E. Dezza, L’impossibile conciliazione. Processo penale, assolutismo e garantismo nel codice asburgico del 1803, in Saggi di storia del processo penale nell’età della codificazione, in Casi, fonti e studi per il diritto penale, S. Vinciguerra (ed.), serie III, vol. 19, Padova 2001, pp. 141-169, previously in Codice penale Universale austriaco (1803), Casi, fonti e studi per il diritto penale, ristampa anastatica con scritti di S. Ambrosio, A. Cadoppi, A. Cavanna, C. Carcereri de Prati, M.A. Cattaneo, M. da Passano, P. de Zan, E. Dezza, P. Pittaro, P. Rondini, S. Tschigg, S. Vinciguerra, S. Vinciguerra (ed.), serie II, vol. 18, Padova 2001, pp. CLV-CLXXVIII.

[11] Cfr. Dezza, L’impossibile conciliazione [note 10], p. CLXXIII, and Id., Il nemico della verità. Divieto di difesa tecnica e giudice factotum nella codificazione penale asburgica (1768-1873), in M.N. Miletti (ed.), Riti, tecniche, interessi. Il processo penale fra Otto e Novecento: Atti del Convegno (Foggia, 5-6 maggio 2006), Milano 2006, pp. 32-47.

[12] See, generally, N. Raponi, Il Regno Lombardo-Veneto (1815-1859/66), in Amministrazione della giustizia e poteri di polizia dagli stati preunitari alla caduta della destra: Atti del LII Congresso di storia del Risorgimento italiano (Pescara, 7-10 novembre 1984), Roma 1986, p. 99; L. Rossetto,Un protagonista nascosto: il ruolo del fascicolo nella giustizia criminale asburgica in territorio veneto, in G. Chiodi-C. Povolo (edd.), Amministrazione della giustizia penale e controllo sociale nel Regno Lombardo-Veneto, Sommacampagna 2007, pp. 61-91.

[13] Codice Penale, first part, § 85.

[14] Codice Penal e, first part, § 161. For an account of the oath of loyalty which all Lombardy-Venetian employees took, see, at length, A. Arisi Rota, Pubblici impiegati e processi politici nel Lombardo-Veneto degli anni Trenta, in Storia Amministrazione Costituzione, 9 (2001), p. 118, and also F. Rossi, Il cattivo funzionario. Fra responsabilità penale, amministrativa e disciplinare nel Regno Lombardo-Veneto, Milano 2013, pp. 153-155.

[15] Asmi, Uffici e Tribunali regi, parte moderna, fold. 479, session of May 15, 1829. With regard to the suspension from service (with or without pay) see circular n. 17043-2375 P, June 18, 1828, in Atti del Governo, 1828, vol. I, second part, n. 27, p. 76, and also Rossi, Il cattivo funzionario [note 14], pp. 278-279.

[16] General police director of Lombardy Carlo Giusto Torresani to Strassoldo, n. 2538 PR, May 4, 1829, in Asmi, Presidenza di Governo, fold. 117, n. 374/geheim, and also Asmi, Uffici e Tribunale regi, parte moderna, fold. 479, session of the government of May 15.

[17] The police interrogation, technically speaking. In this regard, see L. Garlati, Il volto umano della giustizia. Omicidio e uccisione della giurisprudenza del Tribunale di Brescia (1831-1851), Milano 2008, pp. 70-72, note 194.

[18] Cfr. G.A. Castelli, Manuale ragionato del codice penale, e delle gravi trasgressioni di polizia ossia Prontuario per agevolare ai pubblici funzionarj criminali e politici la notizia di tutte le disposizioni che hanno rapporto con ciascun paragrafo di detto Codice penale, e delle gravi trasgressioni, ed in ispecie quelle state pubblicate posteriormente alla sua attivazione ecc. ecc., 4 voll., Milano 1833-1834, vol. II, § 281, pp. 72-73 and Garlati, Il volto umano della giustizia [note 17], pp. 69-70.

[19] Codice Penale, first part, § 281.

[20] See supra, text and note 8.

[21] «With reference to the disappearance of acts, records and documents, the Delegation can only refer to the reports of March 16 and April 19, 1828. […] Up to now, the search for cash books has not led to any results» (De Pagave to president of criminal court in Milan, Giovanni Gognetti, 12 May, 1829, in Asmi, Presidenza di Governo, fold. 117, n. 429/geheim).

[22] De Pagave to Strassoldo, n. 298 PR, May 26, 1829, in Asmi, Presidenza di Governo, cart. 110, n. 472/geheim. In response Count Brebbia will blame his successor for the loss of records (see Crespi to Strassoldo, n. 1369/geheim, February 23, 1831, in Asmi, Presidenza di Governo, fold. 148, n. 954/geheim).

[23] De Pagave to Strassoldo, n. 429/geheim, May 17, 1829, in Asmi, Presidenza di Governo, fold. 117.

[24] De Pagave to Gognetti, May 12, 1829, n. 409/geheim, in Asmi, Presidenza di Governo, fold. 117.

[25] De Pagave to Gognetti, n. 283 PR, May 20, 1829, in Asmi, Presidenza di Governo, fold. 117, n. 446/geheim.

[26] De Pagave to Strassoldo, n. 298 PR, in Asmi, Presidenza di Governo, fold 110, nn. 446 and 472/geheim.

[27] De Pagave to Gognetti, May 12, 1829, n. 409/geheim, in Asmi, Presidenza di Governo, fold 117.

[28] Gognetti to Strassoldo, n. 2908 PR, May 28, 1829. The certified abstract demonstrating the liquidation of his accounts, as provided by the then-delegate, shows that Brebbia’s excuses are full of holes: from June, 1821 to April, 1825 he had a «permanent fund» of £ 1,200 for secret expenses, which rose to £ 1,500 on June 14, 1822».

[29] Gognetti to Strassoldo, May 28 (Asmi, Presidenza di Governo, fold 117, n. 483/geheim).

[30] Codice Penale, first part, §§ 348-373. That is, the «structured examination of the accused» (S. Jenull, Commentario sul Codice e sulla processura criminale della Monarchia Austriaca ossia il diritto criminale austriaco esposto secondo i suoi principj ed il suo spirito da Sebastiano Jenull, Dottore in legge, Professore ordinario delle scienze politiche, e del diritto criminale privato austriaco. Prima versione italiana dal tedesco. Con l’aggiunta delle leggi e disposizioni colle quali venne posto in attività il Codice predetto nel Regno Lombardo-Veneto, 4 voll., Milano 1816, vol. III, § 348, p. 322). For a discussion in detail about the meaning of the word, and especially about thedifference between costituto sommario and ordinario, see Garlati, Il volto umano della giustizia [note 17], pp. 70-72, note 194; with regard to interrogation see also A.A. Cassi, Negare l’evidenza e avere salva la vita. Codice penale e tribunali speciali nei processi contro la Carboneria bresciana, in L’ABGB e la codificazione asburgica in Italia e in Europa: Atti del Convegno Internazionale, Pavia, 11-12 settembre 2002, Padova 2006, pp. 317-337, p. 327.

[31] Asmi, Senato lombardo veneto, Protocolli di consiglio, fold. 132, protocol November 17, 1829, spokesman counselor Raicich, p. 2966.

[32] On this aspect, see Dezza, Il nemico della verità [note 11], pp. 60-61.

[33] Cfr. Mazzetti to Hartig, n. 14254, December 28, 1830, in Asmi, Presidenza di Governo, fold. 136, n. 1285/geheim.

[34] In the court of appeal’s sentence we can find the ruling (conchiuso) of the first instance (see Sentenza del 25 agosto 1829, n.° 1908, dell’I.R. Tribunale Criminale in Milano, in Asmi, Presidenza di Governo, fold. 136, n. 1825/geheim, and also in Asmi, Senato lombardo veneto, Protocolli di consiglio, fold. 132, protocol November 17, 1829, p. 2962).

[35] Codice Penale, first part, § 87.

[36] See G. Chiodi, Il fascino discreto del libero convincimento. Per un identikit del giudice penale lombardo-veneto, in Amministrazione della giustizia penale [note 12], Sommacampagna 2007, p. 23.

[37] For a detailed account see Garlati, Il volto umano della giustizia [note 17], pp. 29-30, and for a general discussion, Dezza, L’impossibile conciliazione [note 10], p. CLXXII.

[38] Cfr. Sentenza n.° 9133, Milano, dall’I.R. Tribunale d’Appello generale il 8 ottobre 1829, in Asmi, Presidenza di Governo, fold. 136, n. 1825/geheim, and also Asmi, Senato lombardo veneto, Protocolli di consiglio, fold. 132, protocol November 17, 1829, p. 2962.

[39] Asmi, Senato lombardo veneto, Protocolli di consiglio, fold. 132, protocol November 17, 1829, pp. 2970-2972.

[40] Sovereign resolution of February 6, 1830, in Asmi, Senato lombardo veneto, Protocolli di consiglio, fold. 133, protocol February 25, 1830, p. 485.

[41] President of the government of Lombardy Franz Hartig to Smira (= Sua Maestà Imperiale Reale Apostolica, His Imperial and Royal Apostolic Majesty), n. 1363/geheim, April 26, 1832, ASMi, Presidenza di Governo, fold. 176.

[42] Torresani to Hartig, n. 4141 PS, June 28, 1832, in Asmi, Presidenza di Governo, fold. 176, n. 641/geheim. On Carlo Giusto Torresani de Lanzfeld (1779-1852), cfr. Biographischer Lexicon des Kaiserthum Oesterreichs, vol. XLVII, Wien 1833, p. 161; P. Pedrotti, Contributo alla biografia di Carlo Giusto Torresani, in Lombardia nel Risorgimento italiano, 16 (1929), pp. 3-55; M. Bellabarba, Il «fondamento dei miei regni». Giudici, cultura politica e letteratura nell’Impero austriaco di primo Ottocento, in M. Bellabarba, B. Mazhol, R. Stauber, M. Verga (ed.), Gli imperi dopo l’Impero nell’Europa del XIX secolo, Bologna 2008, p. 286.

[43] Asmi, Senato lombardo veneto, Protocolli di consiglio, fold. 132, protocol November 17, 1829, p. 2967.

[44] Counselor Vincenzo Raicich (Asmi, Senato lombardo veneto, Protocolli di consiglio, fold. 132, protocol November 17, 1829, p. 2963).

[45] Asmi, Senato lombardo veneto, Protocolli di consiglio, fold. 132, protocol November 17, 1829, p. 2963.

[46] See Codice penale, first part, § 167. «The crime of treason cannot be committed by anyone other than he to whom the thing has effectively been entrusted».

[47] Crespi to Hartig, n. 1369/geheim, February 23, 1831, in Asmi, Presidenza di Governo, fold. 148, n. 954/geheim.

[48] Asmi, Senato lombardo veneto, Protocolli di consiglio, fold. 132, protocol November 17, 1829, p. 2965. See also Hartig to Ranieri, n. 1361/geheim, April 26, 1831, and Crespi to Hartig, February 23, 1831 («the crime of abuse of power […] cannot be invalidated by the provision of indemnification»), Asmi, Presidenza di Governo, fold. 148, n. 954/geheim.

[49] «any theft or robbery shall cease to be a crime when the offender has compensated for all of the damage caused by his action before the authorities have been informed of his guilt» (Codice penale, first part, § 167).

[50] President of court of appeals in Milan Carlo Della Porta to Hartig, n. 58 PS, April 21, 1831 (Asmi, Presidenza di Governo, fold. 148, n. 954/geheim).

[51] The report shows that he «replaced his precedessor» in the administration of the Fondo (Crespi to Hartig, n. 1369/ geheim, February 23, 1831, in Asmi, Presidenza di Governo, fold. 148, n 954/geheim).

[52] Cfr. Codice Civile Generale Austriaco. Edizione seconda e sola ufficiale, Milano 1815, first part, §§ 234-236; circulars dated June 9, August 13 and 21, 1828, in Atti del Governo, 1818, vol. I, second part, n. 101, pp. 353-354, vol. II, second part, n. 134, pp. 457-458, and n. 143, pp. 468-475.

[53] Crespi to Hartig, n. 1369/geheim, February 23, 1831, Asmi, Presidenza di Governo, fold. 148.

[54] Della Porta to Hartig, n. 58 PS, April 21, 1831, in Asmi, Presidenza di Governo, fold. 148, n. 954/geheim.

[55] Codice Penale, first part, §§ 427 e 428.

[56] Crespi to Hartig, n. 1369/geheim, in Asmi, Presidenza di Governo, fold. 148, n. 954/geheim).

[57] V. Guazzo, Il funzionario pubblico ossia Manuale pratico-disciplinare pegl’impiegati regii, pegli addetti ai Corpi tutelati e pei disciplinati dallo stato, in cui sono e saranno raccolte tutte le prescrizioni delle leggi civili, giudiziarie, amministrative (politico-camerali), ecclesiastiche, militari e penali di ogni genere che si riferiscono al personale di tutti i pubblici funzionarii, Venezia 1846, tit. XII, cap. IV, §§ 113 e 125, pp. 207 e 209, especially § 99, p. 206. In particular, see F. Rossi, Il cattivo funzionario [note 14], pp. 105-106, 216, 238-239.

[58] Hartig to Ranieri, n. 1363/geheim, April 26, 1831, in Asmi, Presidenza di Governo, fold. 148, n. 954/geheim.

[59] Codice Penale, first part, §§ 12 e 13.

[60] Cfr. C. Mozzarelli, Il modello del pubblico funzionario nella Lombardia austriaca, in L’educazione giuridica, vol. IV, Il pubblico funzionario: modelli storici e comparativi, part. II, L’età moderna, Perugia 1981, pp. 439-459; Rossi, Il cattivo funzionario [note 14], pp. 55-86.

[61] Torresani to Strassoldo, n. 2538 PR, 4 maggio 1829, in Asmi, Presidenza di Governo, fold. 117, n. 374/geheim, and also Asmi, Uffici e Tribunale regi, parte moderna, cart. 479, government session of May 15.

[62] Hartig to Smira, n. 1363/geheim, April 26, 1832, in Asmi, Presidenza di Governo, fold. 176, n. 641/geheim.

[63] Letter of March 15, 1783, cited in G. di Renzo Villata, Verri contro Verri. «Una famiglia sbranata pel delirio di pochi anni» (1782-post 1709), in Edizione nazionale delle opere di Pietro Verri, vol. V, Scritti di argomento familiare e autobiografico, (ed. G. Barbarisi), Roma 2003, pp. 727-728). For a good description of Senato dispensations, see A. Monti, Iudicare tamquam Deus. I modi della giustizia senatoria nel Ducato di Milano tra Cinque e Settecento, Milano 2003, pp. 184-216.

[64] Asmi, Presidenza di Governo, fold. 125, n. 1184/geheim.

[65] In addition to an imprisonment treatment ensuring only their survival, the criminal code allowed detainees «to dispose of their property» and even «to receive aid from other people», usually close relatives (see Codice Penale, first part, § 312).

[66] Torresani to Hartig, n. 4141 PS, June 28, 1832, in Asmi, Presidenza di Governo, fold. 176, n. 641/geheim.

[67] Cfr. C. Mozzarelli, Sovrano, aristocrazia e amministrazione: un profilo costituzionale, in P. Schiera (ed.), La dinamica statale austriaca nel XVIII e XIX secolo, Bologna 1981, pp. 127-159, particularly p. 147, and also A. Gottsmann,I rapporti politici e istituzionali tra il veneto e l’area centro-europea nell’Ottocento, in La storia e le tradizioni del Veneto. Le relazioni e la forma della comunicazione tra l’area veneta e il mondo germanico: Atti del convegno, Venezia 2003, p. 165.

[68] Cfr. L. Mannori Introduzione, in L. Mannori (ed.), Comunità e poteri centrali negli antichi Stati italiani: Atti del Convegno «Comunità e poteri centrali negli antichi Stati italiani», Napoli 1997, pp. 38-42; Id., Modelli di governo territoriale nell’età della Restaurazione, in F. Micolo, G. Baggio, E. Fregoso (edd.), Diritto, cultura e riforme nell’età di Maria Luigia: Atti del Convegno – Parma, 14 e 15 dicembre 2007, Parma 2011, pp. 242-243.

[69] Pro Memoria per VE il Signor Conte Presidente di Strassoldo, August 29, 1825, in Asmi, Presidenza di Governo, fold. 57, n. 1104/geheim. This was confidential information taken from a report on higher officials in Lombardy, drafted by Giulio Strassoldo on July 24, 1825 (in Haus-, Hof- und Staatsarchiv, Verträulichen Akten, fold. 56-10, file CCXVIII, pp. 38-66, particularly pp. 38-44).

[70] Istruzioni per le imperiali regie delegazioni del regno lombardo-veneto approvate da S.M. con risoluzione sovrana data a Klausenburg il 26 agosto 1817, in Atti del Governo, 1818, vol. I, second part, n. 16, §§ 3-4, 14 and 16, pp. 62-92. Cfr., on the theme, N. Raponi, Politica e amministrazione in Lombardia agli esordi dell’unità. Il programma dei moderati, Milano 1967, p. 31; B. Mazhol-Wallnig, Ordinamento centrale e amministrazioni locali: burocrazia austriaca nella tensione tra interessi statali e interessi locali. La provincia di Verona 1848-1859, in I problemi dell’amministrazione austriaca nel Lombardo-Veneto: Atti del Convegno di Conegliano organizzato in collaborazione con l’Associazione Italia-Austria 20-23 settembre 1979, p. 30; Gottsmann, I rapporti politici e istituzionali [note 67], pp. 161-182; Rossi, Il cattivo funzionario [note 14], pp. 29-30; L. Rossetto, Il commissario distrettuale nel Veneto asburgico. Un funzionario dell’Impero tra mediazione politica e controllo sociale (1819-1848), Bologna 2013, p. 208.

[71] Regolamento per il Governo ed il Senato politico, cap. II, §§ 3-11, found in A. Sandonà, Il Regno lombardo veneto. La costituzione e l’amministrazione. Studi di storia del diritto: con la scorta degli atti ufficiali dei Dicasteri centrali di Vienna, Milano 1912, pp. 105-110, and also Rossi, Il cattivo funzionario [note 14], pp. 23-24.

[72] See edict of January 20, 1784, in Biblioteca Ambrosiana, ms. H 113 suss., Raccolta di Piani, Regolamenti ed Ordini, pp. 145-183, found, in printed version, in ASMi, Uffici e Tribunali regi, parte moderna, fold. 3, under the title Disposizione di SMIRA L’Imperadore Giuseppe II ai corpi dei Dipartimenti sul modo di trattare gli uffici pubblici, datata in dicembre 1783, avanti la sua partenza per l’Italia. Tradotta dal tedesco. In this regard, see C. Mozzarelli, Per la storia del pubblico impiego nello Stato moderno: il caso della Lombardia austriaca, Milano 1972 e A.A. Cassi, Il bravo funzionario asburgico tra Absolutismus e Aufklärung: il pensiero e l’opera di Karl Anton von Martini (1726-1800), Milano 1999, p. 304). For the previous period one can think of the visitors («visitatori»), Spanish nobles in whom the king had complete confidence, sent to the Duchy of Milan to verify the office attendance of Italian public employees (see F. Chabod, Usi e abusi nell’amministrazione dello Stato di Milano a mezzo del ‘500, inStudi storici in onore di Gioacchino Volpe per il suo 80° compleanno, vol. I, Firenze 1958, pp. 93-194, D. Sella, Sotto il dominio della Spagna, in D. Sella, C. Capra (edd.), Il Ducato di Milano dal 1535 al 1796, Torino 1984, p. 40, C. Porqueddu, Amministrazione centrale e amministrazioni periferiche in Lombardia tra ‘500 e ‘600, in Comunità e poteri centrali [note 68], pp. 89-92). For a detailed account of visits between the 16th and 17th centuries within Italian territories, see A. Dani, Le visite negli Stati italiani di Antico regime, in Le Carte e la Storia, 18.1 (2012), pp. 43-62.

[73] Atti del Governo, 1817, vol. II, second part, n. 186, pp. 454-455, also cited in A. Lorenzoni, Instituzioni del diritto pubblico interno per il Regno Lombardo-Veneto, vol. I, Padova 1835, § 45, p. 55.

[74] On this, see cfr. F. Arese, Nobiltà e patriziato nello Stato di Milano, in S. Pizzetti (ed.), Dallo Stato di Milano alla Lombardia contemporanea, vol. I, Milano 1980, pp. 71-96; A. De Maddalena, E. Rotelli, G. Barbarisi (edd.), Economia, istituzioni, cultura nella Lombardia di Maria Teresa, vol. III, Istituzioni e società, Bologna 1983; M. Meriggi, Amministrazioni e classi sociali nel Lombardo-Veneto (1814-1848), Bologna 1983, especially pp. 87-149; M. Bigaran (ed.),Istituzioni e borghesie locali nell’Italia liberale, Milano 1986; B. Mazohl Wallnig,Österreichischer Verwaltungstaat und administrative Eliten im Königreich Lombardo-Venetien (1815-1859), Mainz 1993; E. Tonetti,Governo austriaco e notabili sudditi. Congregazioni e Municipi nel Veneto della Restaurazione (1816-1848), Venezia 1997; L. Rossi,I ceti nobiliari europei nell’800, Napoli 1998, especially pp. 72-75 and 147-155; G. Melis (ed.),Le Élites nella storia dell’Italia Unita, Napoli 2003; W. Heindl,Bureaucracy, Officials, and the State in the Austrian Monarchy: Stages of Change since the Eighteen Century, in Austrian History Yearbook, 37 (2006), pp. 35-57; A.G. Manca-F. Rugge (edd.), Governo rappresentativo e dirigenze amministrative (secoli XIX-XX)/Repräsentative Regierung und führende Beamte (19.-20 Jarhundert), Bologna-Berlin 2007; M. Meriggi, Gli stati italiani prima dell’Unità, Bologna 20112, especially pp. 125-154.

[75] Quote from Mazhol-Wallnig, Ordinamento centrale e amministrazioni locali [note 70], p. 33.

[76] Meriggi, Amministrazioni e classi sociali [note 74], p. 102.

[77] On this matter see C. Mozzarelli, Il modello del pubblico impiegato nel Lombardo-Veneto della Restaurazione, in F. Valsecchi-A. Wandruzka (edd.), Austria e province italiane 1815-1918. Potere centrale e amministrazioni locali, Bologna 1981, pp. 279-300; W. Heindl, Gehorsame Rebellen. Bürokratie un Beamte in Österreich 1780 bis 1848, Wien 1991.

[78] Gottsmann, I rapporti politici e istituzionali [note 67], p. 166.

[79] On De Pagave (1776-1833) see ASMi, Uffici e Tribunali Regj, parte moderna, fold. 594; Meriggi, Amministrazioni e classi sociali [note 74], pp. 105-106; Rossi, Il cattivo funzionario [note 14], pp. 32 e 212.