No. 286.
Mr. Marsh
to Mr. Evarts
.
Rome , November 1, 1877. (Received November 26.)
Sir: The marriage of American citizens with each other and with Italians and other foreigners is becoming every year more and more frequent in Italy, and I am often applied to for information respecting the legal requisites for such marriages and their effects as to rights of property and inheritance. Large pecuniary interests are sometimes involved in these cases, and complicated and difficult questions of law growing out of them are not unfrequently propounded to the legation for solution. The American party to a marriage contracted here is usually a woman, and, if consulted, I always advise that before the marriage such steps be taken for the security of the wife’s American property as are sanctioned by the laws of the State to which she belongs; that the marriage itself be performed in strict compliance with the provisions of the Italian civil code on that subject; and, for further security, that a consular officer of the United States be invited to be present at the ceremony and certify accordingly.
It is always difficult, and sometimes impossible, to follow either branch of this advice, and the parties not unfrequently choose to run the risk of the illegality of the marriage rather than attempt to conform to the provisions of the codice civile, and they content themselves with a marriage ceremony performed by an American or other clergyman in the presence of a consular officer of the United States. In many cases, I suppose, such marriages, followed by cohabitation, would be held valid by the legal tribunals of American States, but it is quite uncertain how far any of them would be recognized as legal by courts in Italy.
I have been told, indeed, by eminent Italian jurists that any marriage regarded as valid by the laws of the party’s country would be considered as valid here, so far as the rights and liabilities of such party were concerned. But this is merely a professional opinion, not founded, so far as I know, on legal enactment or judicial decision, and, besides, it by no means covers the whole ground. It seems desirable that a remedy be provided for these difficulties, but whether that is possible otherwise than by treaty stipulation between the two governments it is not for me to say.
If the United States statute providing for marriages contracted abroad in the presence of a consular officer of the United States (Revised Statutes, section 4082) is to be construed as giving validity to marriages so contracted, without other ceremony or sanction than the declaration of the parties before the consul, per verba de presenti, that they take each other as man and wife respectively—as until recently the law was generally understood among American citizens abroad—the consul being supposed to perform the same functions as a justice of the peace in marrying by the laws of many of the States of the Union; and if, besides, Congress had the constitutional power to pass this statute, Federal legislation could hardly go further, so far as the personal rights and duties of the parties and their rights of property within the United States are concerned. But the Department of State appears to have considered the statute as defectively worded, in not providing, in express terms, for what was thought to be implied, namely, some sort of a ceremony or formal celebration beyond the mere words of consent and mutual [Page 466] acceptance by the parties in the official presence of a consular officer, and it supplemented this defect by prescribing a form of consular certificate (Consular Regulations, pp. 416, Form 87), which supposes a ceremonial celebration performed by some legally-authorized functionary, lay or ecclesiastical, of the country where the marriage takes place. The same construction is still more distinctly given to the statute in paragraph 278 of the Consular Regulations, p. 67.
As a matter of taste and from religious feeling a clergyman is usually invited to perform the ceremony when American Protestants are married before a consul in Italy, but the local civil authorities alone are authorized by Italian law to celebrate marriages, and that only when all the requisites of the civil code have been fulfilled. Of course the cases are rare when a consul can truly certify that the ceremony was performed by a person authorized by the laws of Italy to celebrate it.
This subject was a good deal discussed between the Department of State and several American consulates in the years 1874 and 1875, but I have thought, in view of its growing importance, it well to bring it again to the notice of the Department, supposing that it may perhaps be thought expedient to attempt the introduction of some stipulations respecting international marriages into the new treaty which must ere long be negotiated between the United States and Italy. Of course, any proposal of this sort would be strenuously resisted by the influence of the Roman Catholic clergy, who claim marriages as a subject over which they alone have jurisdiction, but I think it not probable that this influence would prove strong enough to defeat the measure.
I have, &c.,