ITALIAN CODES. The principal are the civil and the penal codes. The Italian civil code was promulgated on June 25, 1865, and came into force on Jan. 1, 1866. It was promulgated on Nov. 27, 187o, in the province of Rome and on June 25, 1871, in the provinces of Mantua and Venice. The States into which Italy was divided before unification, except the Papal State and Tus cany, had their own codes of civil laws. The first idea was to extend the "Codice Albertino," duly revised, throughout the king dom. But the need soon became apparent for a new code more in accordance with the basic principles of the new constitution. Pisanelli understood this need and it rested with him to carry out his scheme. Several weighty voices were raised against the codification, wishing to return to the common law or ins receptum. The historian Cantu and D'Ondes Reggio main tained in the Italian chamber that codes were not necessary. Ninchi boldy stated : "You do not perceive that under the new code the State binds and shackles you from the hour of your birth to that of your death ; that the code leads, hinders and encircles you in all the activities of your life; under this code you will not be free." But Pisanelli who, in point of codification was a follower of Thibaut and not of Savigny, successfully contended that it was undesirable to destroy all existent Italian codes, thus "submerging the whole of Italy in the uncertainty of customs, judgments and common law, and to restore that jus vagum the miserable condition in which people exist at the beginning of their civilization." The Civil Code.—The Italian civil code was moulded on the Code Napoleon. One of the principal criticisms, especially in Italy, is that the Italian code has a foreign origin. Indeed, when one sees that its framework is almost entirely that of the Code Napoleon, which in its turn followed the division of the Institutes of Gaius, and that there are several articles in the Italian code which are simply a literal translation of the Code Napoleon, one cannot help thinking this criticism is well founded. Yet the Italian civil code is essentially national. The fact that before the unification of the kingdom all the Italian codes (with the exception of the Austrian which was in force in Lombardy and Venetia) had taken the Code Napoleon as a model does not mean that such a code was accepted in Italy as "a system of laws which was imposed," but that the Code Napoleon was a system of laws in harmony with Italian sentiments, customs and needs, of which the principal contents were, to quote Pisanelli again, "our legacy, fruit of the ancient Italian sapientia." So it was that doctrines in the Code Napoleon which were not in accord ance with Italian traditions, such as, for instance, divorce, the system of community of property as between husband and wife, the distinction between "inheritance" and "universal legacy," were not accepted by the Italian code, whereas Roman doctrines, suitable to Italian customs and traditions, which were lacking in the Code Napoleon were restored in the Italian code; e.g., the equality as between the universal successor under testacy and the universal successor under intestacy, who is in both cases "heir." The Italian code has, as it were, Romanized the German "saisine hereditaire " ("Le mort saisit le vif").
The Italian civil code is founded upon : (a) Roman law such as was commonly accepted at the time in Italy (hence the name of "common law") ; (b) the Code Napoleon, especially for the laws relating to the registration of births, deaths and marriages, to the doctrine of absence and to the civil form of marriage ; (c ) the civil codes which from 1$ 16 to 1865 were in force in the different Italian States (e.g., the laws regarding the easements created by the law were derived from the Parmensis code) ; (d) canon law, from which some rules relating to marriage and legitimation were drawn; (e) text writers and the decisions of the courts. The rules relating to private international law were derived from this source. The Italian code was the first which contained rules with reference to the conflict of laws.
From the Italian rules of private international law it is ap parent that the term "national law" or "law of the nation" means the local or territorial law, and does not extend to the whole law of a foreign country including the rules of private international law. The Italian code refers to a foreign law for the solution of the substance of a question and not for the determination of the rules of private international law to be applied to a given case. How could the Italian legislature, which was the first to enact rules relating to the conflict of laws, accept the doctrine of the renvoi, which at the time was quite unknown? The Italian code was the first to lay down the liberal principle that an alien is admitted to enjoy the same civil rights as those of nationals even if not resident in the kingdom, and this without any regard to reciprocity.
As regards the amendments which had to be made to satisfy the wants of a rapidly developing community, up to the present day there have been very few alterations of a fundamental kind.
Suffice it to remember (a) the law of Dec. 6, 1877, which abolished the penalty of imprisonment for civil and commercial debtors; (b) the law of Dec. 9, 1877, which removed the incompetence of women to act as witnesses to private and public documents; (c) the Italian Nationality law, 1912, which repealed articles 4 to (d) the law of Nov. 9, 1916, which made the so-called "trans
cription" of immovables obligatory; (e) the Decree law, Nov.
16, 1916, whereby if a person dies intestate leaving no surviving next of kin within the sixth degree, the estate goes to the Crown; (f) the Married Women's Status law, 1919, which introduced the greatest change in the law relating to married women. The code used to subject a married woman to a variety of disabilities; e.g., a married woman was incompetent, without her husband's con sent, to make a donation, to alienate or mortgage her real property, to make a contract of loan, to assign or collect moneys, to be a guarantor, to compromise or to sue or be sued in respect of these matters, to act as an agent. But now by the Married Women's Status law, 1919, all these and other disabilities have disappeared.
After the World War, the provisions of the civil code were gradually extended to the annexed provinces. The Fascist Govern ment soon awakened to the necessity for the revision of the civil code, and by the law of Dec. 3o, 1923, the Government was empowered to alter the code where it deals with absence, illegiti mate children, nullity of marriage, adoption, paternal authority, guardianship, transcription and prescription, and to amend those articles which give rise to traditional disputes or which are recognized as imperfect in form. By the law of Dec. 24, the Government was also empowered to introduce other altera tions and additions to the code, keeping intact fundamental prin ciples. A preliminary project of the new rules relating to obliga tions and contracts is now ready and it has been submitted to the courts, universities, etc., for their advice and suggestions.
The Zanardelli code was promulgated on June 3o, 1889, and came into force on Jan. 1, 189o. Following the Tuscan code of 1853, it divides offences into crimes (delitti) and contraventions (contravvenzioni). A contravention is an act which, although it may be innocuous per se, yet is a danger to the public tran quillity and other people's rights; such as exceeding the speed limit without injuring anyone.
The Zanardelli code will soon be superseded by a new one which will bring penal law more in accordance with the funda mental rights and interests of the new society which has sprung out of the Fascist revolution. The new code, which has been well received in Italy, has been prepared by Rocco, and will be the first of the Mussolini codes.
Extending the doctrine of the so-called "juridical territoriality," the new code deals with offences of an international nature. Thus whosoever shall offend the Italian State is punished according to Italian law, whether he be a citizen or a foreigner, and whether he be in the kingdom or abroad. In the case of extradition the code provides for the surrender of nationals and of political offenders.
Dealing with the defence of the State, the new code introduces capital punishment for any person who endeavours :—to submit the State or a part thereof to a foreign Sovereign; to weaken its independence or dissolve its unity; to detach a colony from the mother country; to make an attempt on the life, integrity or personal liberty of the king, the queen, the crown prince or the head of the Government ; to reveal political or military secrets; to incite to insurrection or civil war. The death penalty is in flicted also on the citizen in a high military command who takes arms against the State or serves a foreign country at war with Italy. Apart from war time, the citizen who shall spread abroad false or injurious news concerning the internal condition of the State is punishable by five years' imprisonment. Whoever in the State organizes associations calculated to establish by violence the dictatorship of a social class or to suppress by violence either the economical and social order of the State or its political and juridical order is also liable to imprisonment. The refusal to obey an official is now treated as a crime punishable with imprisonment.
The code contains further and more stringent provisions for the protection of family life. Besides increasing punishment for adultery and concubinage, punishing bigamy even if the first marriage be void, and considering incest as a crime even if it does not give rise to public scandal, the code provides that who ever makes propaganda in favour of birth control is punishable with imprisonment, and that a married man who seduces a girl is liable to imprisonment from six months to three years.
The new code contains rules aimed at strengthening the pro tection of cults and religious sentiments and especially the Catholic religion. Economic and political strikes, boycotts and lockouts are considered as crimes. The crime of usury is created. Whoever fails to pay a debt incurred with the intention of not paying is punishable with imprisonment. The crime of exceeding the speed limit is established and is punishable with imprisonment.
(G. M. P.)