No. 356.
Mr. Fish
to Mr. Marsh.
Washington , January 19, 1875.
Sir: Your dispatch No. 522 of the 12th of October last, relative to the marriage of citizens of the United States in Italy, has been received. It is replete with luminous remarks, but the Department cannot concur in all its conclusions. The subject has been deliberately considered here prior to the framing of the new personal instructions. It has since, on several occasions, engaged attention, especially with reference to a dispatch from the legation at Paris, a copy of the instruction to Mr. Washburne,* in answer to which, is inclosed for your information.
You remark that you had only recently become aware that consuls of the United States in Italy had been in the habit of issuing certificates to meet the requirements of § 103 of the Italian civil code, which requires a declaration from competent authority that there are no impediments to a proposed marriage. It is probable, however, that the practice of issuing such certificates has long prevailed, and the Department sees no objection to them if due inquiry be made as to the facts before they are issued.
The purpose of Congress in requiring the presence of a consul at a marriage may have been to secure the testimony of an official witness of our own to the act, a witness, too, who would be bound to record the transaction in the archives of his consulate and attest it under his official seal.
Though unofficial witnesses might be held competent to testify, their testimony might not be held available when required. The parties to [Page 762] the marriage, however, could always produce the consul’s certificate when occasion might call therefor.
You are believed to be mistaken in saying that the 48th section of the new instructions of the Department expresses doubt as to 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. Your mistake upon this point will, it is believed, be clear to you upon a further examination of the paragraph referred to. The Department has been careful not to express an opinion as to the validity of any marriage under particular circumstances. Its object has been merely to warn, so as to lessen, as far as might be practicable, the peril of contracting a marriage which in any case might be declared to be invalid. It is not the province of an executive department to decide the question.
The provisions of our act of 1860 upon the subject of marriages abroad are not supposed to have been influenced by the legislation of any other country. They are understood to have been in the main designed to correct a practice which prevailed at some points of marriages by consuls without reference to the local law.
Marriage at legations without regard to the law of the country, on the ground of exterritoriality, as it is called, is at best a questionable proceeding, which it may be apprehended would scarcely be sanctioned by the courts of the nation where they were solemnized. The tendency of opinion is believed to be towards narrowing the immunities of diplomatic officers and their places of abode to those limits only which may be indispensable to enable them to discharge their official duties without molestation or restraint.
The use of the legation for the marriage of persons, even of the nationality of the country to which it belongs, cannot be said to be necessary or even convenient for diplomatic purposes.
The competency of this Government to provide generally for the marriage of citizens of the United States abroad has not been called in question, nor has any opinion upon that point been expressed.
You seem to have overlooked § 24 of the act of Congress of the 18th of August, 1856, which confers upon secretaries of legation authority to act as notaries in certain cases.
When the consequences of marriage in respect to property in possession, or which may be acquired by gift, purchase, or inheritance to the offspring of the parties, or to the peace of mind or good name of the latter, are duly considered, the weight of the responsibility which an officer of this Government abroad may incur by in any way countenancing a rash contract of that kind may become apparent.
I am, &c., &c.,
- See under France, Mr. Fish to Mr. Washburne, No. 660.↩