No. 9.
Mr. Putnam to Mr. Frelinghuysen

No. 157.]

Sir: The Belgian Parliament at its recent session so amended section 170 of the Civil Code relating to marriage as to authorize Belgian diplomatic and consular agents, under certain circumstances, to perform the marriage service between a Belgian and a foreigner.

The “Exposé des motifs” of the amendment presents an interesting view of the regulations relating to marriage in different countries. I have the honor to send herewith a translation of the amendment and of the material portion of the “Exposé des motifs.”

I have, &c.,

[Inclosure in No. 157, from Exposé des Motifs of the amendment of section 170 of the Civil Code relating to marriage of Belgians in foreign countries.—Translation.]

Belgians can without difficulty follow the method prescribed by articles 47 and 170 of the Civil Code in countries where the civil authority is invested with the power to perform the marriage ceremony. Among such countries in Europe are France, Germany, Italy, Holland, Grand Duchy of Luxembourg, Roumania, and Switzerland.

Elsewhere many obstacles exist. In England parties desiring it may be married by the local authority. But we do not know that the civil marriage is customary in Ireland, in Austria-Hungary, and in Russia. It is not possible in Sweden, in Norway, and in Denmark, except in cases where the parties are of different religions.

Canonical marriage is still the rule in Spain, where the civil marriage is allowed only in the case of dissenters, and in Portugal the celebration of marriage of Catholics is by the church, by virtue of a commission from the state. Of countries where the want of authority in our consuls creates most lamentable situations may be reckoned the Turkish dominions. There persons who do not follow the law of the [Page 14] Prophet cannot regularly marry, the civil state of Turkey being based upon the Koran, which forbids marriages between Musselmans and Christians. There is the nuptial benediction which a minister of one of the tolerated systems of worship (Greek, Armenian, or other) sometimes consents to give. But what guarantees can such marriages afford in view of our own legislation, celebrated as they usually are without any previous formality?

The difficulties which marriages encounter are evidently of a nature which tend to create illegal relations between Belgians living in Mahomedan countries. Do they not for the most part find themselves placed between the alternative of forced celibacy or of irregular life? No less obstacles are in the way of the marriage of our citizens in the Barbary States, on the Mediterranean, and in Egypt. The Greek laws impose on the clergy the responsibility of conducting marriages in due form.

Unions are contracted in the Hellenic Kingdom according to the rules of the communion to which the parties belong. If they profess different faiths, the nuptial benediction is given them by the Oriental church, upon the condition that their children shall be educated in the religion of the orthodox party.

No country of the east, in this matter of marriage, can be compared with China.

Certain ceremonies performed by the family of the contracting parties without the participation either of the magistrate or of the clergy, and the exchange of pieces containing, besides the names of the parties, certain particulars relative to their birth, are sufficient in the Celestial Empire to constitute a perfect legal union. No official act is drawn up, no public registering. Can one imagine how difficult it would be to furnish in Belgium, conformable to articles 47 and 171 of the Civil Code, proof of a marriage celebrated after those patriarchal usages? In Japan the rule as to strangers has been lately modified. At the request of a consular agent, the authorities consented in 1876 to marry two French with Japanese citizens.

Although the laws of different States of the United States of America authorize justices of the peace and the town clerks to receive declarations from those who wish to dispense with the services of a clergyman, an immense majority of the marriages are celebrated in the churches or in temples, either according to the decree of the Council of Trent, as at New Orleans, at Saint Louis, and Detroit, or in conformity with the ancient rule in force throughout Christendom before said decree—that is to say, without requiring publication of bans or of domicile.

We will add, in conclusion of this summary of information received from our foreign representatives, that in Mexico and in the Republics of Guatemala and of Venezuela marriages take place according to the rules established by the civil authority, while they remain subject to rules prescribed by the Catholic Church in Nicaragua, Ecuador, in Peru, Chili, La Plata, Brazil, and Uruguay.

Non-Catholic inhabitants of the last country may sometimes apply to justices of the peace. As a résumé obligatory in some countries, admitted in special cases in others, marriage before the civil authority is impracticable for Belgians over the greatest part of the globe. Those who reside in remote countries have, in general, no other resource than to ask, where circumstances permit, the nuptial benediction of a clergyman. Now, the inconveniences to which a party is exposed who can marry only according to the rights of some confession are numerous by reason especially of the great variety of sects of which the most widely extended systems of religion are composed. In one place the parties are required to pay enormous fees; elsewhere they are forced to undertakings which are contrary to the liberty of conscience, or the clergy, resting upon canonical obstacles, refuse to lend their offices.

For example, before whom can a marriage take place in a Catholic country if one of the parties is a divorced person, a Jew, or belongs to no positive religion? How will the parties proceed who profess a system of faith which does not exist in their place of residence? Where will be the guarantees which the parties have a right to require in this the most important act of their civil life? Is it admissible, in view of these facts, there where the clergy does not observe the formalities prescribed by the Council of Trent, that persons be married by a priest to whom they are unknown? Is it not to be feared, in certain countries at least, that questions will arise based upon the want of the sacred character of the party who shall perform the ceremony? And may not the church registers be stolen, mutilated, or destroyed either in time of insurrection, or by fire, flood, or earthquake?

This situation demands the extreme solicitude of the government. If it encourages its young men who have made a specialty of certain studies to establish themselves among nations with which we are interested to extend our relations, if it invites Belgian commerce to found houses in remote countries, and to create new markets, and so increase the wealth of the country, it is incumbent upon it to see that its citizens who so expatriate themselves may by an act valid in Belgium constitute a legitimate Belgian family.

The “Exposé des Motifs” then proceeds to state that in taking this step it is but following the example of England, Germany, Italy, Holland, and Switzerland; that this right to perform the marriage ceremony conferred on its diplomatic and consular [Page 15] agents is limited to the marriage of its own citizens with foreigners, and in countries where the local civil authorities do not afford desirable guarantees; that it is further limited to cases specially authorized by the minister of foreign affairs (Belgium). It further recognizes the fact that, as a matter of law, this new provision may not be deemed legal in the countries where they are made; but it adds, “while this may so be, a very important point is gained, from a moral point of view, since authority is given to substitute for illegitimate relations a conjugal union perfectly valid in Belgium, and which all the members of its family can sustain when they return to their country.”

It further states that upon the passage of the proposed law the diplomatic and consular agents who may be authorized to perform the marriage ceremony will be instructed—

Not to marry a Belgian with a foreigner until he has ascertained whether the parties find it impossible to be married according to the local usages;
To inform the parties that their marriage, if performed at the chancellerie, is not necessarily valid except in Belgium; and
To require, if there be occasion, of the foreigner to justify her capacity to marry under the laws of her own country, and that to facilitate that examination the representatives of Belgium would be furnished with the laws relating to the marriage of women of the different countries of the world.

Amendment of article 170 of Civil Code

Marriages in a foreign country between Belgians and between Belgians and foreigners will be celebrated with the forms in use in such countries.
Marriages between Belgians can also be celebrated by the diplomatic agents and the consuls of Belgium, conformably to Belgian laws.
Diplomatic agents and consuls of Belgium can celebrate marriages between Belgians and foreigners in cases where special authorization has been granted by the minister of foreign affairs.
Marriages are to be published, conformably to Belgian laws, in Belgium, by the officers of the state civil, and by the diplomatic agents and consuls in the chancelleries where the union shall be celebrated.
Marriages celebrated in the forms prescribed by numbers 1,2, and 3 of this law shall be valid if the Belgians have not violated the provisions prescribed, under the penalty of marriage being void, in Chap. I, Title V, Book I, of the Civil Code.