No. 395.
Mr. Stallo
to Mr. Bayard.
Rome, July 30, 1887. (Received August 13.)
Sir: I have the honor to acknowledge the receipt of your, communication of the 6th instant, inclosing copies of a dispatch from Consul-General Alden to Governor Porter, Governor Porter’s reply thereto; and of copies of circular and other letters addressed to various diplomatic and consular officers of the United States at various times by the Department.
Long before the receipt of your communication I had occasion to examine the questions therein discussed, and found that the Italian law (section 103 of the civil code) not only did not require the consular certificate which our consuls have been in the habit of issuing, but in terms required the certificate of “the competent authority of the place where the foreigner intending to contract marriage here is domiciled” to the effect that there is no legal obstacle to the marriage in question. I called the attention of several Italian lawyers, who came to consult me in behalf of American ladies about to contract marriage in Italy, to the clear terms of the law, and told them that the Italian practice of substituting consular certificates for the certificates called for by [Page 640] the law was founded on a total misapprehension of the relation of consular officers of the United States to the several States whose legislation and judicial action determined the matters to be covered by the certificates. One of these lawyers has recently brought the question before the courts, and it has been decided that in lieu of the former consular certificate the Italian authorities must receive the certificate of the competent officer of the state where the party desiring to be married is domiciled, and, if there be no officer charged with the duty of issuing such a certificate, or, if the highest executive officer of the state refuse, on the ground of incompetency, to issue or cause to be issued such certificate, a certified copy of the law of the state may be received instead. And I have no doubt that, if necessary, the courts will go further and decide that proof of the law on the subject of marriages in any American state may be made by experts or in any other manner in which matters of foreign law are usually proved.
It is, perhaps, not improper to add that the reasons assigned by the Department for its recent action seem to me conclusive, and that the practice, hitherto prevalent in several European states of issuing consular certificates as to the state of the law in any given American State was an abuse which it was eminently proper to abolish.
I have, etc.,