No. 397.
Mr. Bayard
to Mr. Stallo.
Department
of State,
Washington, October 22,
1887.
No. 78.]
Sir: Referring to your No. 149, of the 30th of July
last, in which you informed the Department that the law of Italy in relation
to the marriage of foreigners in that country requires as evidence of the
capacity of the parties—not a consular certificate—but either a certificate
of the competent authority of the state in which the foreigner proposing to
marry in Italy is domiciled, or else a certified copy of the law of such
domicile, I inclose herewith, for your information, a copy of a dispatch
just received from the consul-general at Rome, in which it is stated that
the civil tribunal there has lately decided the proper evidence of
matrimonial capacity of foriegners to be such as you describe.
[Page 641]
It is supposed that this is the decision to which your dispatch referred, and
which, as you say, fully sustains the views of this Department as to the
impropriety of consular and diplomatic officers of the United States issuing
such certificates in relation to matrimonial capacity as are inhibited by
the recent order of the Department.
I am, etc.,
[Inclosure in No. 78.]
Mr. Alden to Mr.
Porter.
Consulate-General of the United States,
Rome, September 27, 1887. (Received October
17.)
No. 168.]
Sir: I have the honor to acknowledge the
receipt from the Department of State of an instruction numbered 43 and
dated July 6, 1887, inclosing a copy of a letter dated July 1, 1887,
from the Hon. T. F. Bayard, Secretary of State, to the Hon. E. D.
Hay-den, showing the Department’s views as to the issuance by consular
officers of certificates of matrimonial status.
Referring to my dispatch No. 143, dated Juno 1, 1887, I beg to say that
although for many years it has been the custom of the Italian
authorities to require the consular certificate if “nulla osta” as a condition precedent to marriage of an
American citizen in Italy, and although the chief officer of the “stato civile”—the bureau of the Roman municipal
government having charge of the matters relating to marriages—
repeatedly assured me that the Italian law required the issuance of such
certificate of “nulla osta” “by a consular officer,” and that he
therefore had no discretion in the matter and could not waive the
requirement of such certificate; and although the same statement was, as
I am informed, repeatedly made by the officer of the stato civile to several American citizens during the past
winter and spring, it has now been decided by the civil tribunal of Rome
that as section 103 of the Italian civil code specifies that as a
condition precedent to the marriage of an American citizen in Italy such
citizen must present a certificate of “nulla osta” from the “competent
authority of the place where the foreigner intending to contract
marriage here (i. e., in Italy) is domiciled,” the stato civile has been mistaken in its claim that a consul is
“the competent authority” referred to in the civil code, and that an
American or other foreigner, desiring to be married in Italy, must
present a consular certificate of “nulla osta.” As no court will sustain
a rule adopted by any municipal authority which rule is in conflict with
the civil code, it follows that the rule of the stato
civile, which has hitherto required a consular certificate of
“nulla osta,” can no longer be enforced
here.
The civil tribunal has farther decided that when an American citizen
desires to be married in Italy, such citizens must furnish a certificate
of “nulla osta” from the proper officer of the
State where such citizen is domiciled; and that in case ho such
certificate can be procured, either because there is no state officer
whose province it is to issue such certificates or because the chief
executive officer of such state declines to issue such certificate on
the ground that he is not legally competent to do so, then a certified
copy of the laws of such state relating to the matter in hand may be
accepted by the stato civile inplace of a
certificate of “nulla osta”
I am, etc.,
