File No. 6241.

Ambassador Wright to the Secretary of State.

No. 204.

Sir: I have the honor to report that shortly after the coming into force of the treaty of 1894 between the United States and Japan, namely, in May, 1900, a religious marriage between American citizens was solemnized at Tokyo by an American missionary bishop in the presence of the American deputy consul-general. The then newly promulgated codes of Japan being the subject of much difference of construction, especially as to the applicability of certain of their provisions to foreigners resident in Japan, the question of the necessity of the registration of such marriage arose. Article 775 of the Japanese civil code (Lonholm’s translation) reads:

A marriage takes effect upon its notification to the registrar. The notification must be made by the parties concerned and at least two witnesses of full age, either orally or by a signed document.

As to form the customary Japanese marriage ceremony is not religious, and consists simply of a declaration of the contract in the presence of witnesses.

The opinion of one of the most eminent Japanese barristers (Mr. R. Masujima) was taken and he advised that this article did not apply to foreigners in Japan. For further security the parties concerned caused formal inquiry to be addressed to the registrar of Kiobashi Ky, Tokyo, within whose jurisdiction the marriage was contracted. On May 8, 1900, that officer replied that no report was required to be made to the registrars of Japan when each party to the marriage was a foreigner and the marriage ceremony was celebrated in accordance with the law of their countries.

Up to the latter part of 1906 our consular officers in Japan continued to issue certificates of marriage contracted in their presence in the form prevailing here previous to the operation of the treaty of 1894 (July 17, 1899). A like course, and without registration at the local Japanese office, I am informed, has been followed by British and other foreign consular officers in Japan.

Such marriages of Americans during that period, I am informed, were in all cases solemnized by religious ministers or priests. In October, 1906, however, two American citizens of the Jewish faith at Yokohama desired to intermarry and insisted that the ceremony should be in accordance with the forms of their religion or, failing that, in a form of a purely civil character. There was then no Jewish [Page 762] rabbi available in Japan and the problem was brought to my attention by Vice-Consul-General Babbitt in a letter dated October 17, 1906, a copy of which is herewith inclosed.

Upon inquiry I learned that the opinion among officials of the Japanese foreign office and of the Department of Justice was that article 775 of the civil code, quoted above, applied to all persons domiciled in Japan, except where otherwise provided by treaty and, in this connection, attention was called to section 13, of the Japanese law concerning the application of laws in general, a translation of which by Lonholm reads as follows:

The requisites of a marriage are governed as to each party by the law of his or her nationality. As to the forms, however, the law of the country where it is celebrated governs.

It thus becomes apparent that a serious difference of opinion had existed between executive officers of the Japanese Government as to the scope of the term “forms” as applied to foreigners domiciled here and, pending a solution of the question by some authoritative judicial decision, and to provide against possible complications in future cases, I replied to Vice-Consul-General Babbitt, under date of November 2, 1906:

First. That American consular officers in Japan have no authority to perform a civil marriage ceremony.

Second. That a civil marriage, consented to and announced by parties competent to contract it, in the presence of two or more witnesses, and duly registered before the proper local Japanese registrar, would be in accordance with the laws of Japan and would be held as lawful and binding in the United States and elsewhere.

Third. The contracting parties may, at the time of such civil marriage, add to the form of the contract such ceremonies and forms as may be dictated by their religious belief.

The consular officer can then certify as to the forms followed and that the marriage has been contracted in accordance with the laws of Japan. I inclose a form of certificate to be used in such case. The Japanese authorities being now willing to register marriages between foreigners in Japan, I suggest that it will be your duty in the future to see that all marriages of Americans in your presence, where your official certificate is desired, are duly registered by the proper local Japanese authority.

It is desired that you will furnish copies of this letter to the several consular officers subordinate to your consulate-general for their guidance.

A full copy of this letter is herewith inclosed.

Since this letter to Mr. Babbitt all marriages between Americans in Japan, I believe, have been registered both at the consulate and at the local registry office. The consul-general at Yokohama, after frequent consultations with the authorities there, has finally succeeded in preparing forms in Japanese and English that meet with official approval, and under date of yesterday has transmitted to me copies thereof and a copy of the form of his official certificate now in use.

Copies of this letter and forms of my reply are herewith inclosed.

I have, therefore, this day addressed letters to the American consuls at Kobe, Nagasaki, and Tamsui, and to the consular agent at Hakodate, in the following words:

With a view to securing uniformity of practice and for the purpose of removing any possible doubt as to the regularity of the mode of celebration and registration of marriages of American citizens in Japan, and in view of the fact that the Japanese authorities will now register such contracts, I inclose herewith for your information and guidance forms of consular certificate and of necessary documents in the Japanese language, which, after consultation with this embassy, are now in use at the consulate-general at Yokohama.

[Page 763]

Your particular attention is called to that part of the consular certificate which, to achieve the object sought now states that the contracting parties were “united in marriage before me, and in my presence, and in that of___________, who performed the ceremony, and that such marriage has been duly registered, and is in accordance with the laws of Japan; “and you will notify any American citizens who may apply to you in contemplation of marriage of the importance of complying with the formalities necessary to effect registration in Japan before the issuance of your certificate.

A copy of this communication is herewith inclosed.

I have, etc.,

Luke E. Wright.
[Inclosure 1.]

Vice-Consul-General Babbitt to Ambassador Wright.

No. 1258.]

Sir: Mr. M., an American citizen of Jewish faith, born in Mississippi and with a legal residence in that State, but now a resident of Yokohama, desires to be married here.

There being no rabbi at this port, certain of the Jewish community have appointed Mr. Maurice Russell rabbi pro tem., “to perform such functions as may be required of him.” A certificate of appointment, accepted by Mr. Russell, is inclosed herewith, and I have the honor to request that I be advised if a marriage ceremony performed by him will be considered legal and will permit the issuing of a marriage certificate by me.

This procedure was followed in the marriage of Mr. R. before Consul-General Bellows, April 8, 1904, by “Rabbi pro tern.” L. Abenheim, elected for that purpose by the Jewish Benevolent Society, as in the present case. A copy of certificate issued herewith.

I am told that this question came before Consul-General Miller, who declined to sanction the marriage, not being assured that the Jewish Benevolent Association had the authority to appoint a rabbi empowered to perform the marriage ceremony, and I do not care, without higher authority, to act in opposition to Mr. Miller’s judgment.

I am, etc.,

E. G. Babbitt.

[Subinclosure.]

We, the undersigned, representing the Jewish Benevolent Association and acting on behalf of the Jewish community in Yokohama, do appoint Mr. M. Russell to act as rabbi pro tern, to perform such functions as may be required of him.

(Signed)
Seigfreid Komor.

J. H. Rosenthal.

H. S. Blum.

S. Isaacs.

I accept the position as mentioned above.
(Signed)
Maurice Russell,
President.
[Inclosure 2.]

Ambassador Wright to Vice-Consul-General Babbitt.

No. 60.]

Sir: I have to acknowledge the receipt of your letter, No. 1258, of October 17, 1906, in which you ask instructions as to your authority to certify to the capacity of Mr. Maurice Russell to solemnize a marriage between American citizens at Yokohama, he having been appointed acting rabbi by the leading [Page 764] Jewish residents of that place. It appears also that the parties concerned desire to contract a civil marriage, if there should be the slightest question as to Mr. Russell’s authority.

After careful consideration and inquiry I am of opinion:

  • First. That American consular officers in Japan have no authority to perform a civil marriage ceremony.
  • Second. That a civil marriage, consented to and announced by parties competent to contract it, in the presence of two or more witnesses, and duly registered before the proper local Japanese registrar, would be in accordance with the laws of Japan and would be as lawful and binding in the United States and elsewhere.
  • Third. The contracting parties may, at the time of such civil marriage, add to the form of the contract such ceremonies and forms as may be dictated by their religious belief.

The consular officer can then certify as to the forms followed and that the marriage has been contracted in accordance with the laws of Japan. I inclose a form of certificate to be used in such a case. The Japanese authorities being now willing to register marriages between foreigners in Japan, I suggest that it will be your duty in the future to see that all marriages of Americans in your presence, where your official certificate is desired, are duly registered by the proper local Japanese authority.

I am, etc.,

Luke E. Wright.

N. B.—It is desired that you will furnish copies of this letter to the several consular officers subordinate to your consulate-general for their guidance.

[Inclosure 3.]

Consul-General Miller to Ambassador Wright.

Sir: I have the honor to transmit herewith six sets of forms of certificates of marriage (Form 87, consular), and of registration of same in accordance with the laws of Japan, one set each of which might be supplied to the consuls at Nagasaki and Kobe.

The certificates retained as a part of the records of this consulate are bound in book form.

Very respectfully, yours,

Henry B. Miller.
[Inclosure 4.]

Ambassador Wright to Consul-General Miller.

Sir: I have to acknowledge the receipt of your letter of yesterday, covering six sets of forms of certificates and notices of registration to be used in cases of marriages of American citizens in Japan.

With a view to securing uniformity of procedure among our consular officers, I shall forward copies of these forms to the consuls at Kobe, Nagasaki, Tamsui, and the consular agent at Hakodate.

I am, etc.,

Luke E. Wright.
[Inclosure 5.]

Ambassador Wright to Consul Sharp.

No. 217.]

Sir: With a view to securing uniformity of practice and for the purpose of removing any possible doubt as to the regularity of the mode of celebration and registration of marriages of American citizens in Japan, and in view of the [Page 765] fact that the Japanese authorities will now register such contracts, I inclose herewith for your information and guidance forms of consular certificate and of necessary documents in the Japanese language, which, after consultation with this embassy, are now in use at the consulate-general at Yokohama.

Your particular attention is called to that part of the consular certificates which, to achieve the object sought, now states that the contracting parties “were united in marriage before me, and in my presence, and in that of---- --------, who performed the ceremony, and that such marriage has been duly registered and is in accordance with the laws of Japan;” and you will notify any American citizens who may apply to you in contemplation of marriage of the importance of complying with the formalities necessary to effect registration in Japan before the issuance of your certificate.

I am, etc.,

Luke E. Wright.

Mutatis mutandis:
Consul at Nagasaki.
Consul at Tamsui.
Consul at Hakodate.