On the occasion of the Seminar on December 6th, Dr. Flavia Mancini presented her doctoral research dedicated to the analysis of the Congregatio Boni Regiminis. The congregation – which was created in 1592 – has been among the most enduring institutions of the Papal State. In this sense its studying constitutes a privileged observatory of the state building process and of the construction of the modern administrative apparatus.
As a longa manus of the central authority, the Boni Regimens played a decisive role in the exercise of the public powers over local communities (as in the recognition of collective memberships). Its activity helped to define what should be understood under the words of communitas and collective good. Indeed the ‘communitas’ was identified both as a) a group of individuals who belong and live in a certain territory and b) as the juridical person that represents them.
Firstly, some uncertain definitions have to be cleared: civic uses, collective ownership, communities.
By civic uses we generally mean the collective rights which are exercised by the original communities on the basis of habits or old concessions. The term is used today in a-technical sense in order to include the most disparate situations of collective belonging. Among the uses of the term, however, some common elements can be identified. Indeed it is about:
- rights which can be ascribed to the land (such as the utilities produced and obtained from funds or pastures;
- perpetual rights;
- rights that correspond to members of a given community;
- inalienable, unavailable and imprescriptible rights;
- fundamental rights since they are linked to the satisfaction of essential needs;
- promiscuous rights in so far as they are exercised by each member of the community, individually and collectively (ute singulus et uti civis)
The collective properties – although they are often included in the debate on civic uses – are mostly associated with the concept of civic status, that is, all the goods belonging to a specific community. The related difficulties of definition and conceptualization are primarily understandable as historical reasons. With the triumph of french codification the concept of collective ownership found itself sacrificed on the altar of private property. For instance one may recall the cultural crusade which was conducted by the Enlightenment and Physiocratic philosophies. Those movements identified in that very concept an obstacle to the development of society itself. Subsequently Cattaneo – while studying the plans for the reclamation of the Magadino plan – would have written: “these are not abuses, they are not privileges, they are not usurpations, it is another way of possessing, another legislation, another social order descended from very ancient centuries up to us “.
Finally the term of communitas reflects a multifaceted reality. It is used in sources to define people, the group of inhabitants who live permanently in a territory, as well to identify the legal person that represents them. That emerges clearly from several decisions of the Roman Rota which were collected by De Vecchis.
The Congregatio Boni Regiminis
The Congregation was created in 1592 by Clement VIII with the seal Pro Commissa, which provided it with powers of management and economic control over all the communities of the State. The seal was born almost as an emergency measure: it aimed to intervene on the broken finances of local communities by creating a subject of connection with the central government. About ten years later (1605), Paul V armed the congregation of judicial powers with the seal Cupientes. As Giovanni Battista De Luca commented, that provision “gave it better form”.
The amplitude of the judicial competences assigned to the congregation by the Cupientes was to be extended to
omnes et quascumque causas, tam civiles quam criminales et mixtas ad Communitates et Universitates quascumque Status nostri ecclesiastici nobis mediate et immediate subiectas, tam active, quam passive pertinentes, per se vel alios ab eis subdelegandos, audiendi, discutiendi, examinandi, expediendi, et terminandi, ad omnia alia et singula in eadem constitutione [=Pro Commissa] contenta executioni demandanda…
Thus, the congregation was endowed with an extremely broad power (and legitimized by the concept of protection). In the subsequent decades other seals were issued in order to change or redirect the action of the institution.
In 1701 a real structural reorganization was performed. Under the prefecture of cardinal Giuseppe Renato Imperiali, a new decalogue of powers will be attributed, including the one of the visit. The institute came not new to the Papal State but, once attributed to the congregation, it consolidated and secularised. In terms of judicial competence, the congregation played its role of judge both in first and second instance.
As already mentioned, it is through the Boni Regiminis’ litigations that one can perceive the dimension of collective belonging. In 1801 a motu proprio of Pius VII took over all the debts incurred by the local communities in the hands of the Apostolic Chamber. At the same time it established that the communal goods should be confiscated for the benefit of the central administration. Among these assets collective ones were often listed. The reaction of local communities was almost immediate. In those years, a dense series of appeals by the populations was triggered, such as to induce the Pope to revise what had been laid down by two successive acts: the motu proprio of 1803 – which specified the conditions of confiscation – and the one of 1807 which reads like it follows
“… seguendo gl’impulsi del nostro paterno cuore per i maggiori vantaggi de’ nostri sudditi, non abbiamo potuto non vedere con rincrescimento, che non ostante le diverse providenze date col motu proprio del 19 marzo 1801, ed altro successivo de’ 14 luglio 1803…alla retta amministrazione de’ beni delle comunità dello stato …pure non erasi ancora pienamente conseguito l’intento… Crediamo ancora necessario, ed anche consentaneo alle massime di giustizia, di nuovamente approvare, e ordinare insieme la più esatta esecuzione di quanto dalla nostra Sacra Congregazione del Buon Governo fino dal principio del 1803 ci fu proposto in riguardo alle questioni di pertinenza di alcuni beni, pascoli e pretesi diritti, o popolari o appartenenti a qualche particolare corporazione di cittadini… Di fatti conoscemmo fin da allora che se si fosse lasciato aperto l’adito a simili questioni di pertinenza, l’amministrazione generale de’ beni avrebbe fluttuato sempre nell’incerto; sarebbesi compromessa la dignità dell’anzidetta Congregazione nel dovere per proprio officio sostenere tanti litigi con le comunità alla di lei cura affidate; e quel che è più l’assicurazione da noi data ai creditori di esser puntualmente sodisfatti de’ frutti, e capitale, sarebbe andata a vuoto, tostoché si fossero separati non pochi beni dalla generale amministrazione da quei medesimi comunisti, e cittadini, che pur dovevano essere bastantemente contenti di esser stati con nostra beneficenza sovrana liberati dall’obbligo uti singuli et in solidum…. Quindi, a togliere affatto tutti questi inconvenienti, de’ quali con nostro dispiacere abbiamo veduto sin qui i funesti effetti, vogliamo ed espressamente ordiniamo, che tutte le questioni sulla pertinenza de’ beni, siano di pascoli, o molini, o altri fondi, siano a nome delle comunità o del popolo, o di qualsisia particolare corporazione, restino sospese intieramente, finché non saranno estinti tutti i debiti comunitativi…”
The agents in charge of the forfeiture operations were commanded to interrupt the procedure whenever a doubt arose over the ownership of the asset.
Patrimonial matters invested the courtrooms of the Boni Regiminis for the most. It is noteworthy that in the judicial documents – Series II of the Boni Regimenis – as well as in the petitions, the “Community” and the “People” were recurrent subjects, asking for the exclusion of the assets from their forfeiture.
Eventually, this exclusion was declared in many cases, thanks to the recognition of the collective ownership directly in the hands of the populations.