No. 397.
Mr. Bayard to Mr. Stallo.

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.,

T. F. Bayard.
[Inclosure in No. 78.]

Mr. Alden to Mr. Porter.

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.,

William L. Alden.