No. 354.
Mr. Marsh
to Mr. Fish.
Rome, October 12, 1874. (Received Nov. 4.)
Sir: Referring to the personal instructions to the diplomatic agents of the United States, under date of the 15th of August, 1874, section 48, I beg leave to submit some observations respecting the laws of Italy on the subject of the marriage of foreigners in that country, and respecting the practice of citizens of the United States marrying in Italy since the passage of the act of Congress of June 22, 1860, the 31st section of which makes certain provisions in regard to the marriage of American citizens abroad.
The requirements of the Italian Codice Civile, in regard to marriages between Italian citizens, can seldom be complied with by citizens of the United States, or other foreigners in Italy, and I remember no instance in which any attempt has been made to conform to them by foreigners, except where one of the parties was an Italian citizen.
In order not to burden this long dispatch with unnecessary manuscript matter, I simply refer to the Codice Civile, which is, no doubt, in the library of the State Department, title V, chap. I, section second, ¶ 55, 57, 60, 62, 63, 64, 65; chap. II, ¶ 70, 74, 79, 80, 81; chap. III, entire; chap. V. ¶ 102, 103.
Paragraphs 102 and 103 are, I believe, the only provisions of the Italian code which relate especially to the marriage of foreigners in Italy, except that by ¶ 9, of title I, it is declared that “a foreign woman marrying an Italian citizen, acquires citizenship and retains it even as a widow.”
It will be observed that ¶ 102 refers merely to the capacity of the parties to contract matrimony, and not to the mode of celebration; and that ¶ 103 evidently contemplates the performance of marriage before the civil authorities of Italy, in conformity with the general provisions of the code; but it is proper to observe here, that, though I have never taken the formal opinion of counsel on the subject, in writing, I have been more than once assured by eminent Italian lawyers that any marriage between foreigners in Italy, which would be valid by the laws of their own country, would be recognized as such by the tribunals of Italy.
I think it proper to draw the attention of the Department to the provision in ¶ 103 respecting the “declaration of the competent authority” in regard to the absence of impediments to the marriage. What would be regarded as “the competent authority” does not appear from the code. I was once called upon to make such a declaration, in a case where I happened to have personal knowledge of the history of the party. I gave the declaration, but at the same time I informed the party and the civil officer who asked it that I could not vouch for the authority of the legation to issue such a certificate as an official act. It has [Page 756] very lately, for the first time, come to my knowledge that consuls of the United States in Italy, if not elsewhere, sometimes give, under their official seals, certificates of this sort which are accepted by the civil authorities as a sufficient compliance with the provision in question.
When the parties to marriages in Italy are both citizens of the United States—a ease of by no means frequent occurrence—they are generally married by some American clergyman who happens to be officiating in a church or congregation in Italy. The consul is requested to attend the ceremony, and his presence in his official capacity, duly certified by him, has been supposed to be a sufficient legal sanction to the marriage. I do not know that it is a point of any importance, but it may not be amiss to say that, so far as I know, no American church or congregation in Italy, except that of the Rev. Mr. Nevin, at Rome, has any corporate or other legally recognizable existence, according to the laws of this country.
Marriages of American citizens with foreigners in Italy are almost uniformly between American women and Italians, and sometimes French and German men, and I remember but two cases of marriage between male citizens of the United States and foreign women in Italy during my residence in this kingdom.
In the case of marriages of mixed nationality, I have always been careful to warn the parties, when I have had opportunity to do so, that possibly a marriage which would be recognized as legal by the courts of one country, in cases affecting the rights and liabilities of the party citizen of that country, would not be deemed valid by the tribunals of the other country; and I have never failed to add that I could venture no opinion on questions of this sort, and to advise the parties to take legal counsel on the subject. I have also thought it my duty to inform American women, about to contract marriage with Italian citizens, that, by Italian law, the act of marriage deprives such women of their American nationality, and invests them with that of the husband, and hence Ithat they should inform themselves how far their rights of inheriting, holding, and conveying or transmitting real estate in the United, States might be affected by their marriage abroad.
With regard to marriages between citizens of the United States in foreign countries, I have always supposed the statute of June 22, 1860, to be an enabling act, and that its purpose was to invest the consul “before” whom such a marriage is celebrated with higher functions than those of a witness as a mere certifying officer. I have construed the statute as designed to facilitate marriages between American citizens abroad, by clothing an officer of the United States with power, if not technically to solemnize them by pronouncing a form of espousal, still to give them a valid sanction by his official presence; and the law seems to me nugatory on any other supposition. So far as the proof of the fact of marriage is concerned, the testimony of any other witness would be as good as that of the consul, and I do not know any principle upon which Congress can be supposed to have intended to give special value to the certificate of a consul to a purely private and unofficial act of third persous, in which, as seems to be supposed by the instructions, he figures in no other character than that ot a simple spectator. In the case of marriages before magistrates or clergymen, authorized by law to perform the ceremony, at least in the United States, the certificate is issued, not by a bystander, official or private, but by the functionary whom the law empowers to give a legally binding sanction to the act. The certificate prescribed by the consular regulations (p. 324, Form No. 80) seems to assume that the consul is a witness and nothing more, for it [Page 757] requires him to certify, not an act in which he participates, but the celebration by some other person, whom he abjudicates to be “authorized by the laws of to perform such ceremony.” Whether the blank is to be filled with the name of the country where the marriage is solemnized, or with that of the American State of which the parties are citizens, does not in the least appear. And though the consul is treated as having no functions with regard to the marriage itself, he is empowered to pronounce, afterward, a legal decision oh the question, what lay or ecclesiastical officer is authorized by foreign or by State law [as the case may be] to celebrate marriage in a foreign country. Now, on these points the statute is absolutely silent. It says nothing whatever in regard to the form of solemnization, or to the character of the functionary by whom it is to be performed, nor does it require or authorize the consular officer to certify anything beyond the simple fact of the marriage; still less does it empower him to adjudicate on what may be, and in fact, according to some opinions, at this moment is, in Italy, a difficult question of law.
In Section XLVIII of the new instructions, the Department expresses doubts whether marriage can be legally celebrated at all between citizens of the United States in a foreign country, unless it be solemnized in conformity with the laws of such country. It does not appear whether the Departmentquestions the power of auy government to legislate respecting marriage between its citizens within a foreign territorial jurisdiction; whether it questions the power of the Federal Government, as a government of limited attributions, to legislate on the subject of marriage at all, except as respects the citizens of the District of Columbia; or whether, as a matter of legal construction of the statute, it questions the intention of Congress to provide a mode of celebrating marriages between American citizens abroad.
With regard to the first point, it may be observed that such doubts are not entertained by the governments of Europe. The British statute (George IV, chap. 91) declares marriages between British subjects solemnized abroad by clergymen of the Church of England to be valid; the statute 12 and 13, Victoria, chap. 68, provides that British consuls in foreign countries may “solemnize or allow to be solemnized” such marriages at their consulates; and I am informed that in 1853 Lord Clarendon decided that marriages between British subjects, under those acts, could be celebrated, in foreign countries, nowhere but at British consulates, and that the actual presence of the consul was necessary to the validity of the marriage. Marriages between British subjects, however, continue to be solemnized occasionally at the legations, under the principal of exterritoriality. The British statutes prescribe no observance of any of the requirements of the local law of the place of marriage, and in fact such observance would be impossible when the ceremony is solemnized either at the legation or at a consulate. The number of British citizens domiciled in this country is vastly greater than of American, and marriages bet ween them are frequent. In practice, they content themselves with complying with the provisions of their own statute, and observe no formality whatever ordained by the laws of Italy.
France and Germany have analogous laws, and though I am unable to quote them specifically, I am informed that they require no conformity to any provision of the Italian code in case of the marriage of their citizens in Italy.
As to the jurisdiction of Congress over the subject, it would be a singular anomaly if the Federal Government, the only government in the Union legally recognized by foreign states and officially known to them, [Page 758] cannot provide a mode of legalizing all contracts between its citizens while temporarily without the limits of its territorial jurisdiction. Nor does this appear to be the view generally entertained by the Federal Government in regard to its own powers. Not to speak of the authority conferred on consuls in this respect by Congress, § XLIII of the personal instructions of August 15, 1874, empowers secretaries of legation to administer oaths, take depositions, and to perform any notarial act which a notary public is authorized by law to do or to perform, and such acts he is required to attest under the special seal of his secretaryship. No act of Congress is referred to in this paragraph, and if any exists on this subject it has escaped me; but, in either ease, it is not easy to see how the Government of the United States can by law or departmental regulation authorize secretaries of legation or consuls to perform in foreign countries acts necessary to give legal force to contracts as solemn and as weighty in the eye of the law as the celebration of a marriage, unless, it has the power to make regulations on the latter subject also. The performance of notarial acts is a duty everywhere discharged by local officers, but the power of the United States to confer upon its diplomatic and consular officers notarial authority, in respect to acts of American citizens in foreign countries, does not appear to be doubted. Unless, then, marriage is a contract more completely sui generis than it is now considered to be in countries where English jurisprudence is the basis of legislation, I am unable to perceive why the Federal Government has not as large powers respecting it as respecting any other contracts between its citizens abroad not relating to real estate.
It appears to me that there is room for serious doubt whether the laws of the several States of the Union have any legal force in relation to the marriage of their citizens when out of the jurisdiction of those States, and, consequently, whether Congress is not the only body which can legislate on the subject. I do not forget that acknowledgments of deeds of lands in the States, executed abroad, taken and certified by consuls, are generally considered as owing their validity not to the position of the consul as a Federal officer, but to the laws of the State, which authorize him to receive and certify such acknowledgments. But in this case the land, the subject-matter, remains always within the territorial jurisdiction of the State, while in the case of a marriage or other personal contract entered into in a foreign country, by persons not at the time amenable to the laws of the State or within reach of process from its tribunals, it is not clear that the laws of the State have any greater applicability than to offenses committed by such persons on foreign soil.
Whatever doubts may be entertained as to the power of Congress to legislate on this subject at all, except in regard to citizens of the District of Columbia, I cannot find in the language of the statute of June 22, 1860, any room for question as to the intention of the national legislature. The construction which I find myself obliged to give to the law is, that it regards the form and minister of the ceremonial part of the celebration as altogether indifferent, as mere matters of taste and feeling with the parties, and makes the legal and effectual solemnization to consist exclusively in the mutual assent of the parties, solemnly pronounced by them in the presence of the consul in his official capacity, as a special functionary ad hoc, precisely as in the case of a marriage before a justice of the peace or other civil magistrate in many of the United States. The consul appears to me to be acting in this case as a notary acts in receivig and certifying an acknowledgment of a deed of law; while the construction given to the statute by form No. 80, treats him as merely a witness to the act, though attesting it by a separate instrument [Page 759] instead of subscribing the contract in that capacity. If it were the purpose of Congress to make valid a marriage which, perhaps, without its provisions would not be so, I do not know what stronger language it could have used than that actually employed in the statute in question; and, unless it is interpreted as conferring upon the consul the same authority as that which British legislation in the like case and in like terms confers on British consuls, and which the laws of the several American States confer on magistrates and clergymen, I do not perceive that it serves any purpose whatever. For if the presence of the consul does not give validity to the act of the parties in taking each other as man and wife, per verba de presenti, without the recitation of a matrimonial formula, not alluded to in the statute by a clergyman or magistrate, then his presence has no legal effect at all, inasmuch as it can hardly be contended that a consular opinion on the legal powers of a foreign magistrate, certified in pursuance of a simple administrative regulation of a Department, but neither required nor authorized by the statute, can make legal an act which would be void without such certificate, or that the judgment of a consul would be any evidence at all incase of a doubt as to the authority of the officiating magistrate.
At the same time the consideration of possible questions of conflicting jurisdiction has led me to advise the parties, in the few cases of marriage beween American citizens in Italy, where I have been consulted, to conform as far as possible to the laws of the State to which they belong, but always to secure the presence of a consular officer at the ceremony.
In conclusion, I beg pardon for the freedom with which I have discussed this important question. I have gone into it at length, not with the purpose of asking a reconsideration of any of the questions which my official superiors have decided, or even a reply to the arguments which have had weight with myself, but simply as an explanation of the grounds on which I have thought that a marriage in Italy between citizens of the United States, competent to contract matrimony, celebrated by any ceremony whatever, or without any ceremony, but the formally expressed assent of the parties before or in the presence of a consular officer of the United States, is “valid to all intents and purposes.”
At all events, I shall hereafter strictly conform to the instructions whenever I have occasion to give any advice on the subject.
I have, &c.,