Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873

[Untitled]

Florence, December 19, 1868.

My Lord: With reference to Lord Stanley’s dispatch of the 16th of June last, I have the honor to inclose herewith to your lordship a translation of a report which has been drawn up by Sinor Corsi, legal adviser to this mission, relative to the disabilities to which aliens residing in Italy are subjected by Italian law.

I have, &c.,

A. PAGET.

The Right Honorable The Earl of Clarendon, K. G.

[Translation.]

Memorandum on the laws which regulate the rights of aliens in Italy.

The civil capacity of aliens in Italy in regard to their private rights is as follows: As a general rule “the alien is admitted to the enjoyment of all civil rights accorded to the citizen,” (art. 3 of the Civil Code.)

If a citizen has lost his nationality before the birth of a child, the latter is considered a citizen if born in the kingdom and resident there; but he can, within a year of the attainment of his majority, determined by the laws of the kingdom, select the quality of an alien, by making a declaration to that effect before the civil authorities of his domicile, or, if he is abroad, before the king’s diplomatic or consular agents, (art. 5 of the Civil Code.)

“A child born abroad of a father who has lost his nationality before his birth is reputed an alien.

“He can, however, select the quality of a citizen provided he makes a declaration to that effect in accordance with the foregoing dispositions, and provided he fixes his domicile in the kingdom within one year of such declaration.

“If, however, he has accepted state employ in the kingdom, or serves in the army or navy, or has otherwise complied with the terms of the conscription law, without invoking exemption therefrom on the plea of being an alien, he is considered a citizen without further formalities, (art. 6 of the Civil Code.)

“When the father is unknown, the child, born of a mother who is a native, is a citizen.”

“If the mother has lost her nationality before the birth of her child, the dispositions of the two preceding articles apply.”

If the mother be likewise unknown, the child born in the kingdom is a citizen, (art. 7 of Civil Code.)

“A child, born in the kingdom, of an alien father who has been domiciled there for ten years uninterruptedly is considered a citizen. Residence on account of commercial affairs does not constitute domicile.”

“He can, however, select the quality of alien, but the dispositions of the two first paragraphs of art. 6 are applicable to this case, (art. 7 of Civil Code.)

“An alien woman married to a citizen acquires citizenship, and retains it as a widow, (art. 9 of Civil Code.)

“All alien can also obtain citizenship by naturalization granted by law or royal decree.”

“The royal decree is not effective unless registered by the civil authority of the place where the alien intends to fix or has fixed his domicile, and unless he swears before the said authority to be faithful to the king and to observe the statutes and the laws of the kingdom.”

“The wife and minor children of an alien who has obtained citizenship become citizens, provided they have a fixed residence in the kingdom, but the children can select the quality of aliens by making the declaration mentioned in art. 5, (art. 10, Civil Code.)

Citizenship is lost:

1st. By a person who renounces it by a declaration to that effect before the civil authority of his domicile, and transfers his residence to a foreign country.

2d. By a person who, without the permission of his government, has accejited employment from a foreign government, or has entered the military service of a foreign power.

“The wife and minor children of a person who has lost his nationality become aliens, unless they continue to reside in the kingdom.

“They can nevertheless regain their nationality in the cases and manner described in the first paragraph of art. 14 as regards the wife, in the first two paragraphs of art. 6 as regards the children, (art. 11, Civil Code.)

“The loss of nationality, as described in the preceding article, does not imply exemption from the obligations of military service, nor from the penalties inflicted on those who bear arms against their native country, (art. 12, Civil Code.)

“The citizen who has lost his nationality from any of the causes mentioned in art. 11, regains it, provided—

• “1. That he returns to the kingdom with a special permission from the government.
• “2. That he renounces his foreign nationality, the employment or military service taken abroad.
• “3. That he declares before the civil authorities that he intends fixing, and really does fix, his domicile in the kingdom within the space of one year, (art. 13, Civil Code.)

“A woman who marries an alien becomes an alien whenever by the fact of marriage she acquires the nationality of her husband.

“If left a widow, she regains her nationality if she resides in the kingdom, or if she returns there and declares in both cases before the civil authorities that she wishes to fix her domicile there, (art 14, Civil Code.)

“The acquisition or resumption of nationality in the preceding cases only takes effect from the day succeeding that on which the prescribed conditions and formalities are fulfilled, (art. 15, Civil Code.)”

The law of the 15th November, 1865, for the regulation of the civil status, ordains:

Art 44. “In the registers of citizenship are inscribed:

1st. “The declarations of a reputed alien who desires Italian nationality.

2d. “The declaration of a reputed Italian subject who selects the quality of an alien.

3d. “Declarations renouncing Italian nationality.

4th. “Declarations relative to fixing, or the intention of fixing, domicile in the kingdom.

5th. “Declarations relative to the transfer of domicile from one commune of the kingdom to another.

Art. 45. “In the said registers are transcribed the royal decrees conferring nationality.

Art. 46. “The declarations mentioned in Nos. 1, 2, and 3 of art. 44, are received by the civil authorities of the domicile of the person making them, if he resides in the kingdom, and by the diplomatic and consular agents if abroad.

“The said agents transmit, within three months after the date given them, copy off the declarations they have received to the ministry of foreign affairs, whence they are forwarded to the civil authorities of the last domicile of the person making the declaration; or, in default of that, of the last known domicile of the father.

Art. 47. “The declarations mentioned in No. 4 of art. 44 must be made before the civil authority of the place in which the person making the declaration resides, or intends residing.

Art. 48. “The declarations mentioned in Nos. 1 and 2 of art. 44 must explain the circumstances of their origin.

“The person making the declaration must further prove, by the production of his; certificate of birth, or of a notarial document, that he has attained majority according to the laws of the kingdom.

Art. 49. “The declaration contained in No. 4 of art. 44 must explain the motive of its origin and the object in view.

“When a declaration is made by a widow in accordance with art. 14 of the Civil Code, she must prove her widowhood by producing a certificate of the death of her husband.

Art. 50. “Before transcribing the decree conferring nationality, the civil authority must demand from the alien an oath, according to the special rites of the religion he professes, that he will be faithful to the king and will observe the statutes and laws of the realm.

“The fulfillment of this formality must appear on the register.

Art. 51. “If the civil authority is requested to register said decree after a lapse of more than three months from its date, he must refuse to accept the oath and to register the decree.”

With reference to the influence of foreign laws on personal capacity and family relations, art. 6 of the law of the 25th June, 1865, ordains: “The personal status and capacity and family relations are regulated by the laws of the country to which the persons belong.”

As to matrimony, however, attention must be paid to the following articles of the Civil Code:

Art. 100. “A marriage celebrated in a foreign country between subjects, or betweeni a subject and an alien, is valid, provided it be celebrated according to the established custom of that country, and provided the subject has not contravened the dispositions contained in section 2 of chapter I on this matter.

“The marriage must be notified within the realm in accordance with arts. 70 and 71. If the subject has not residence in the realm, the notification must be made in the commune of his last domicile.

Art. 101. “A subject who has contracted marriage abroad must, within three-months after his return to his native country, cause his marriage to be registered by the civil authority of the commune in which he takes up his residence, under pain of at fine to the extent of one hundred lire, (francs.)

Art. 102. “The capacity of an alien to contract marriage is determined by the laws of his country.

“But an alien is subject to the impediments contained in section 2 of chapter I, on this matter.

Art. 103. “An alien desirous of contracting marriage in the realm must present to the civil authority a declaration from the competent authorities of his country, proving that according to the laws of his country there is no obstacle to the intended marriage.

“If the alien resides in the realm he must further make the notification required by the dispositions of this code.”

The influence of foreign laws of property is explained in art. 7 of the said law of 25th of June, 1865, as follows:

“Personal property is subject to the law of the proprietor’s country, unless the law of the country where it is situated disposes otherwise.

“Real property is subject to the laws of the place where it is situated.

Article 9 of the same law refers as follows to the form of deeds:

The extrinsic form of deeds executed between living persons, and of wills, is determined by the law of the place where they are made. The disposers or contractors may, however, adopt the forms of their own national laws, provided the latter are common to all the parties.

“The substance and effects of testamentary donations and dispositions are considered as being regulated by the laws of the disposer’s country. The substance and effects of obligations are considered as being regulated by the law of the place in which the deeds were drawn, and if the contracting aliens belong to the same country, by their national laws. In every case the proof of a contrary desire holds good.”

Alien successions are regulated by art. 8 of this law, as follows:

“Legitimate and testamentary successions, however, whether with reference to the order of succession, or with regard to succession rights, and the intrinsic validity of the dispositions, are regulated by the law of the person deceased, whatever may be the nature of the property, and without regard to the country of its situation.”

For the forms of procedure, and the influence of foreign sentences in the realm, art. 10 in the same law ordains:

“The competency and the forms of procedure are regulated by the law of the place where, sentence is given.

“The proofs of obligation are determined by the laws of the place where the deed was drawn.

“The sentences pronounced by foreign tribunals in civil matters will be executed in the realm, if declared capable of execution according to the forms established by the code of civil procedure, and if not opposed to internationalstipulations.

“The manner of execution of deeds and sentences is regulated by the law of the place where execution ensues.”

A general clause, placed at the end of this law, (art. 12,) prevents a too extensive applieution of its various dispositions from clashing with the laws in force in the realm, and says:

“Notwithstanding the stipulations of the preceding articles, the deeds and sentences of a foreign country, as well as private dispositions and agreements, can in no case be derogatory of the prohibitive laws of the realm which concern persons, property, or deeds, nor of the laws which in any way regard public order and morality.”

The mode of citing aliens before the tribunals is traced in the following articles of the Code of Procedure:

• “Art. 105. An alien who has no domicile in the realm may be cited before the judicial authority of the realm even when absent from it—
  • “1st. In a question regarding real or personal property situated in the realm.
  • “2d. In a question of obligations arising out of contracts or deeds executed or to be executed in the realm.
  • “3d. In every other case in which there is reciprocity.
• “Art. 106. Besides the cases indicated in the preceding articles an alien can be cited before the judicial authority for obligations contracted abroad—
  • “1st. If he has his residence in the realm, though not actually there.
  • “2d. If he happens to be in the realm, though having no residence there, provided he be personally cited.
• “Art. 107. When an alienhasno residence, dwelling, or chosen domicile in the realm, and no place has been fixed on for the execution of the contract, personal or real action as regards personal property, (l’azoine personales d’reale su beni mobili,) takes place before the judicial authority of the place in which the plaintiff has his residence or domicile.”

With reference to commercial relations, the stipulation of art. 3 of the civil code above cited, which concedes to aliens the same rights as to subjects, independently of political treaties, is to be observed.

Anonymous foreign commercial companies carrying on business in the realm must be authorized by the government like Italian ones.

A law of the 20th October, 1860, allows French anonymous companies recognized in France to operate in Italy, and to have legal standing without any special authorization.

Two diplomatic conventions, concluded on December 5, 1867, with England, and on December 8, 1867, with Russia, repeat similar dispositions as regards English and Russian commercial companies, but in the Russian convention insurance companies are excluded.

A French decree dated in September, 1860, and the above-mentioned conventions, grant full reciprocity to Italian companies in those states.

These, and in general all other foreign commercial societies, (accomandite collective,) must publish their charter in the chancery of the tribunal of commerce of the district in which they choose a domicile.

With reference to questions of criminal law the Sardinian code has hitherto been applied in all parts of the realm except Tuscany.

The above-mentioned law of the 25th June, 1865, in art. 11, contains the following general dispositions: Criminal laws, and those of police and public security, are binding on all persons who may be within the territory of the realm.

The criminal code contains the following dispositions:

Art. 5th. “The native of the kingdom who commits on foreign territory a crime against the security of the realm, or who forges the seal, the moneys, bank-notes, obligations of the state, or documents of public credit equivalent to money, is to be tried and punished in the realm according to the provisions of the present law.

Art. 6th. “The native of the kingdom who commits on foreign territory a crime against another native of the kingdom, or against a foreigner, when he returns to the realm, is to be judged and punished according to the penalties established by the present law, which, however, may, according to circumstances, be diminished by one degree.

“The same rule will be applied to the native of the kingdom who commits on foreign territory a crime against another native of the kingdom, provided the injured party commences an action against him.

“The same rule will also apply if the crime be coinmitted on foreign territory against a foreigner, provided that in the country to which the foreigner belongs the same treatment is extended to inhabitants of the kingdom.

Art. 7th. “The foreigner who on foreign territory commits a crime against the security of the state, or forges the seal, the moneys, bank-notes, obligations of the state, or documents of public credit equivalent to money, and who is arrested within the realm, or is given up by foreign governments, is to be judged and punished according to the provisions of the present law.

Art. 8th. “The foreigner who commits on foreign territory, either against a native of the realm or against another foreigner, any of the crimes indicated in articles 596–600 exclusively, if arrested in the realm or given up by other governments, is to be judged and punished according to article 6, provided the crime shall have been committed within half a miriametre of the frontiers of the realm, or, in case the crime has been committed at a greater distance from the frontiers, when the culprit brings into the realms moneys or effects which he has stolen.

Art. 9. “Besides the cases mentioned in the preceding article, the foreigner who on foreign territory commits a crime against a native of the realm and then enters the royal states is to be arrested, and the authorization of the king’s government having first been obtained, an offer of his surrender is to be made to the government within whose jurisdiction the crime has been committed, in order that he may be tried there. But if that government should fail to receive the culprit, he is to be judged and punished in the royal states according to article 6.

“The same rule applies to crimes committed by a foreigner against an inhabitant of the realm in a foreign country, when under similar circumstances an inhabitant of the realm would be punished in the country to which the foreigner belongs, except in case of civil actions.”

Art. 10. “Articles 6, 8, and 9 are not to be applied when the culprit shall have been tried and sentenced in the country where the crime has been committed, and in case of his having been condemned, shall have there gone through the term of punishment.

Art. 11. “No culprit can be surrendered to any state without the order of the king’s government.”

In the Tuscan provinces, where, as has been already said, there still exists the penal code promulgated by the Grand Ducal government in 1853, the regulations respecting foreigners are as follows:

Art. 3. “1. Whoever commits a crime on Tuscan territory, whether he be a Tuscan subject or not, is punishable according to the provisions of the present law.”

2. “However, soldiers in the service of the state do not come under the above head, insomuch as crimes committed by them are punishable according to the military laws.”

Art. 4. “A Tuscan subject is punishable according to the present law also for crimes committed out of the Tuscan territory—

• “(a.) Against another Tuscan;
• “(b.) Against the internal or external security of the state;
• “(c.) Forgery of moneys or documents of public credit having legal or commercial circulation in Tuscany;
• “d.) Forgery of the seal of a public authority or of a public office of the Grand Duchy, or of the instruments used in making it.

“The same rule applies to crimes committed by Tuscans out of Tuscany against a foreigner; but in such cases—

• “(a.) For the punishment of death is substituted imprisonment (‘ergastolo’);
• “(b.) For imprisonment (‘ergastolo’) is substituted the penitentiary (‘Casa di Forga’) for twenty years;
• “(c.) The penitentiary can be reduced witbin the legal limits; and
• “(d.) If the crime is punishable with less than the penitentiary, not only may the punishment be diminished, as laid down under letter c, but moreover the person injured must bring the action against the culprit.”

Art. 5. “When arrested in Tuscany, or given up by other governments, a foreigner is liable to punishment under the present law, when beyond the limits of the Tuscan territory he has been guilty of a crime—

• “(a.) Against the internal security of the state;
• “(b.) Forgery of moneys or of public papers of credit in Tuscany; or
• “(c.) Forgery of seals of a public authority, or of a public office of the Grand Duchy, or of the instruments for making them.”

“The same rule applies to crimes committed by foreigners out of Tuscany against a Tuscan; but in such cases are applied the limitations laid down in sec. 2 of the preceding article.”

Art. 6. “In the cases foreseen in sec. 2 of art. 4, and sec. 2 of art. 5, acts are not to be punishable which, although punishable in Tuscany, are not liable to punishment in the country where they are committed.”

Art. 7. “If the Tuscan subject, as mentioned in art. 4, or the foreigner as mentioned in art. 5, has, beyond the Tuscan frontiers, suffered the punishment inflicted by law on his crime, no criminal proceedings can be taken against him in the Grand Duchy.

“But if, condemned out of Tuscany, he has not gone through his punishment, or has only done so in part, he is liable to be tried again in Tuscany, but at his trial the amount of punishment he may already have gone through will be taken into consideration.

Art. 8 “The rules laid down in articles 4 and 5 are to be observed in every case where there are no others laid down by special public conventions between Tuscany and other states.”

Art. 9. “No Tuscan subject can be given up to another state for any crime whatever, whether committed in Tuscany or elsewhere.”

As regards criminal proceedings, the following are the provisions of the various articles of the code applicable to foreigners:

Art. 34. “For crimes and offenses punishable according to articles 5, 6, 7, 8, and 9 of the Criminal Code in the kingdom, the place of domicile or of arrest, or of surrender of the accused, determines the competency of the court, and a preventive arrest may be made.” (“E si fa luogo a la prevenzione.”)

“However, the court of appeal may, on the demand of the public ministry or of the other parties, send the affair before the court or tribunal nearest to the place where the crime or offense has been commited.

Art. 35. “The court or tribanal competent to take cognizance of the crimes mentioned in the preceding article may make use of acts made abroad.

“These acts may, moreover, serve to determine the indemnity due to the injured party in the case of crimes committed abroad which are not punishable in the kingdom:” (C. S. 33.)

Art. 36. “Whenever a judge receives notice of an action or a denunciation about a crime committed abroad, which can be adjudicated on in the kingdom, he must give notice of it to the ‘procureur du roi,’ who will call upon the ‘procureur gene’raP under whom he is placed.” (C. S. 34.)

Art. 853. “When in criminal proceedings it is necessary to proceed to the examination of witnesses or to the drawing up of deeds with foreign judicial authorities, or to demand the arrest and extradition of a criminal who may be in a foreign country, the person drawing up the accusation must inform the court (‘sezione d’accusa’) to which he belongs, and the court, where necessary, will make the demand in the customary form, and will forward it through the public ministry, with the necessary documents, to the ministry of grace and justice, in order that it may insure the carrying out thereof.

“The extradition of an accused person may also be demanded directly by the government of the King.”

“When the extradition of an accused person can be obtained from a foreign government, only on sworn testimony, the judge who hears the case may examine on oath the witnesses whose depositions are required; of these depositions a separate volume is to be made, which will serve for the demand of extradition. At the trial, however, these witnesses must again be sworn in the manner laid down by the law.” (C. S., 832.)

Art. 854. “When in criminal matters it is necessary to draw up acts of accusation at the request of foreign judicial authorities, it shall be done by the court of appeal in the ‘sezione d’accusa,’ and the judge appointed by it.

“In such case witnesses may, if required, be examined on oath.” (C. S., 833.)

Art. 855. “No alteration is made in the rules in force for communications between the authorities of the kingdom and those of foreign governments on matters concerning criminal jurisprudence, and the special conventions now in force are to he observed.” (C.S.,834.)

“In the cases in which, according to the provisions of the criminal code, the tribunals of the state are competent to take cognizance of crimes committed by subjects in foreign countries, when they return home, the act of accusation and the documents necessary to prove and maintain the guilt of the accused may be drawn up; but he cannot be summoned or arrested until he returns into the country.”

In the international treaties there are special dispositions respecting the enjoyment of civil rights accorded to the subjects of each contracting state separately; but, if exception is made of the stipulations exempting foreigners from any forced loans which may be raised in the kingdom, it may be said that they have been placed there more to satisfy the contracting powers than because they were necessary, for the provisions of law, as above explained, are framed on the most liberal principles of international law.

Such are, both in matters of private and of criminal law, the rules affecting foreigners in Italy.

AVO. CORSI.

Florence, December 10, 1868.