"Litium series rescisae". Le "decisiones"del Supremo Magistrato di Giustizia di Malta nel repertorio di Antonio Micallef

ABSTRACT. On 12 November 1775 the Frenchman Fra Emmanuel de Rohan was elected Grand Master of the Order of St John. He embarked on a series of reforms for the Maltese Islands in the wake of what had already occurred in Europe. In 1776 de Rohan brought over to Malta the Neapolitan lawyer and jurist Giandonato Rogadeo, a well-known expert in matters of the Order, to develop the reforms. Upon arriving in Malta Rogadeo was appointed Secretary of Justice. He began to develop the constitution of the Supremo Magistrato di Giustizia and drafted a Code of Diritto Patrio. Three years later, however, he was compelled to return to Italy due to the bitter controversies that aroused the opposition of local jurists and that attest to the difficulty of implementing reforms in those years. The first part of the reforms planned by Rogadeo, that is, the institution of a collegiate tribunal, was a success and the 24th November 1777 saw the promulgation of the Constituzione per la Erezione del Supremo Magistrato di Giustizia nel Principato di Malta e Gozo. This constitution did not define complete disciplinary measures but left this task to a successive document which was in the process of preparation, the Codice di Diritto Municipale. The final text of this new Code, promulgated in 1784, was not drawn up by Rogadeo, since he had already left the island. The difference between the two texts is evident. The Constiuzione, perhaps more innovative in its choices, was drawn up in the style of the Ancien Régime, while the Codice Municipale, which touched upon certain choices of Rogadeo’s, restored old customs and was written with clearer and simpler propositions. The new Judge was given the general competence of acknowledging in appeals stage the contestation of first-degree sentences of the tribunals; besides he was given exclusive competence in a series of cases of particular public interest. In the Constituzione del Supremo Magistrato, Rogadeo stated that the motivation should be based on the law. In the case of doubt, the decision could be taken by the Tribunal at its discretion with “potestà arbitraria”, but the exercise of such power was possible so long as it was supported by the majority of votes. With the Codice Municipale the norms to be observed at the point of judgement were varied by limiting the potestà arbitraria. For every case the Tribunal was assigned the task of drawing up a “ristretto” which would contain the list of points of controversy and reasons for the decision. The Supremo Magistrato di Giustizia began its activity in the year 1778 and proceeded uninterruptedly until 21st July 1798, that is, until a few days after the fall of Malta into French hands. During the British protectorate, the situation reverted to that prior to the arrival of the French, even though the competences hitherto pertaining to the Supremo Magistrato di Giustizia were now attributed to another new tribunal, the Suprema Curia d’Appello, a collegial body composed of three judges. From the juridical point of view, the arrival of the British is marked, following some provisional orders, by the Avviso dated 23rd July 1801 which proclaimed that the juridical disciplines established during the period of the Order’s rule, were to be observed and maintained. In particular de Rohan’s Codice Municipale was to remain in force due to the importance of the text. One of the Maltese jurists appointed to re-organize the local juridical system was Antonio Micallef. A cultured and refined jurist, he had lived for a long time in England where he had had the opportunity of deepening his knowledge of common law and therefore of better understanding the moment of intersection of the two juridical experiences that the British administration was slowly implementing. Among his publications, which are fundamental for the understanding of the evolution of Maltese law in the 19th century, was the new edition of the Codice Municipale, printed in 1843. It was probably due to his search for a solution to the problem of the certainty of the law that a couple of years before, in 1841, Antonio Micallef had published anonymously a Repertorio of decisions of the old Supremo Magistrato di Giustizia in civil matters. The book is composed of a collection of 281 decisions, limited to the civil sphere, which constitute less than 10% of the decisions pronounced over the span of the existence of the Supremo Magistrato and arranged according to an alphabetical index of about 80 topics. One gathers from Micallef’s own assertions that the author selected those decisions which resolved controversies still affecting Malta in the first half of the 19th century. The entries naturally reflect the economic reality of the island, seven relate to maritime commerce, and all the others to agricultural economy with problems regarding dowries, hereditary succession and agricultural funds. The consuetudine dei Maltesi or consuetudine del paese play an important role especially with regard to marriage relations such as “il matrimonio contratto ad uso del paese”. Marriage contracted between Maltese partners, unless otherwise agreed upon, resulted in the constitution of a society between the spouses in which the children participated. The administration of the society, which was dissolved only in the case of the dissolution of the marriage (that is, with the death of one of the spouses), was in the hands of the husband. In cases where the marriage was not celebrated in Malta or between Maltese or in any other way as agreed upon, the marriage was celebrated ad uso de’ greci o Romani and did not entail the community of acquests. As far as maritime commerce was concerned, a reference to the Lex Rhodia which was declared to be in uso nei nostri tribunali was included. The only sentences reported in the penal sphere were those regarding “falsità” and “stupro”. Always in the case of maritime commerce there were problems with the insurance contract. The acts of the Supremo Magistrato di Giustizia were conserved in the fonds entitled “Supremum Justitiae Magistratum” (1778-1798) in the National Archives of Malta, legal documents situated in the old palace of the Banca Giuratale di Mdina, the “Città Notabile”. The fonds consists of 295 volumes. Of interest to us are naturally the eight Registri Sententiarum, which contain the decisiones pronounced by the Supremo Magistrato in order of the cases examined. The decisiones were written in Italian and amount to 3067 in number; the first is dated 9th March 1778, the last 21st July 1798. They are preceded by a few lines from the Acts of the Proceedings in Latin, including the date of the sittings and the names of the judge and of the parties. The decisions pronounced after the arrival of the French on 12th July 1798 amount to 36 in number. In the first years of the 19th century, three volumes of indices of the cases were compiled indicating the names of the litigant parties.