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"I have pleasure, therefore, in approving your judgment that it was proper to decline to advise the making of a certificate, even in the quoted language of Mr. Bayard's circular instruction of February 8, 1887,"

Mr. Olney, Sec. of State, to Mr. Runyon, amb. to Germany, Dec. 9. 1895,
For. Rel. 1895, I. 538.

Section 390, Consular Regulations, 1888, provided: It is not competent,
without special authority from the Department, for diplomatic agents,
consuls, or consular agents to certify officially as to the status of
persons domiciled in the United States and proposing to be married
abroad, or as to the law in the United States or any part thereof
relating to the solemnization of marriage."
The commercial agent of the United States at Freiburg, in Baden, having
certified "that according to the laws of the United States there is no
impediment to the marriage" of a certain citizen of the United States,
and that especially he does not need the consent of his parents, and
that the proclamation of the banns of his marriage in Cleveland is
not necessary," Cleveland apparently being considered the American
home of the individual in question, attention was called to the con-
sul's "violation of the Department's rules," in certifying as to things
"none of which was within his official cognizance;" and particular
reference was made to the instruction to Mr. Runyon of Dec. 9, 1895.
(Mr. Olney, Sec. of State, to Mr. Uhl, amb. to Germany, Nov. 20, 1896,
MS. Inst. Germany, XIX. 684.)

"Consular officers are not competent to certify officially as to the status and ability to marry of persons domiciled in the United States and proposing to be married abroad; nor as to the laws of the United States, or of the States or Territories, touching capacity for marriage or the solemnization thereof. The power to make a certificate as to the legal requisites in the United States for a valid marriage abroad is not conferred on consular officers by the laws of the United States nor by international law, and they have no official powers which are not derived from any of these sources. Whatever private knowledge a consular officer may have respecting the laws of marriage, he is not authorized to certify the same officially."

Sec. 422, Consular Regulations of the United States, 1896.

The word ability" in the first sentence of this section evidently refers to the capacity of the parties to contract a marriage.

It is not competent for a diplomatic agent of the United States abroad to give an authoritative certificate as to the effect of a divorce granted in the country of his legation.

Mr. Frelinghuysen, Sec. of State, to Mr. Cramer, Jan. 10, 1883, MS. Inst.
Switz. II. 161.

"Mr. Eustis's dispatch No. 500 of the 21st of May last, in relation to the certification by the embassy or consul-general of the opinions of American counsel on points of the law of the United States or

of the several States of the Union, has been carefully considered with a view to meeting, as far as might be practicable, the inconveniences which, as the enclosures to Mr. Eustis's dispatch show, would be occasioned to American citizens residing or being in France were the custom of giving such certificates suspended.

"A somewhat similar despatch on the same subject, No. 141 of May 22, has also been received from Consul-General Morss.

"In the practice of the French courts in regard to proof of foreign law in cases brought before them, as stated by Mr. Leopold Goirand in the affidavit attached to Mr. Eustis's dispatch, it appears to suffice when a legal practitioner, duly qualified as such in the country whose law is to be proved, gives a written opinion thereon. To this opinion must be subjoined a declaration of the ambassador or consul of his country, stating that the said practitioner is duly qualified, according to the law of his country, and that consequently he is competent to deliver the opinion which precedes such certificate.'

"The form of certificate heretofore employed in the consulate general, and presumed to be identical with that employed in the embassy, appears to meet these requirements with two exceptions. It is not clearly stated that the qualification of the counsel to deliver an opinion or attestation in question flows from and is solely a consequence of his membership of a stated bar, but the certificate. appears to be an independent certification of such qualification. Furthermore, the certificate adds that faith is due to the counsel's attestation of the law, which involves virtually, if not in fact, an independent certification of the embassy or consulate-general that the counsel's certificate of opinion imports a verity. In none of the enclosures with Mr. Eustis's dispatch does it appear that this supplementary certification is required.

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"An attestation by the competent representative of the United States that the counsel is a member of a bar and as such qualified to render the opinion to which his name is signed necessarily carries with it an assumption that the paper is given by him in good faith, and as such entitled to credence as the testimony of an expert. It is, of course, beyond the official competence of our representatives to attest the verity of his statements.

"It is furthermore noted that the form of authentication heretofore used describes the attested paper as 'a certificate,' a term usually applied to the attestation of a fact, while in practice the paper is an opinion of counsel, and may and frequently does involve the construction and application of the law to the case in point. It cannot well be regarded as a simple attested copy of the text of the law, and it might also be open to question, inasmuch as under our system a practitioner at the bar is not legally competent to give a certified copy

of the law of any State as evidence of record before a court, he not being a certifying officer of the State. The same consideration holds good as regards Federal laws.

"The Department has not been able to ascertain definitely, either from the correspondence or from text-books, what are the requirements in French judicial procedure when the application of foreign law becomes necessary, nor in what character' proofs of foreign law' are received and viewed by the courts. There are indications, however, that foreign law is not considered purely as a fact to be proved by the party who relies upon it as any other facts supporting his case, but that, when a case turns upon a rule of foreign law, the foreign law is judicially recognized and administered as, for the particular case, a part of the law of the land. In such circumstances, the maxim which rules in native law-Jura novit curia-cannot of course be assumed, and the court is entitled to the aid of the parties in obtaining requisite knowledge of the foreign law which is to be applied. In this view, the so-called 'certificates of law' which have been the subject of this correspondence may be considered, not as evidence proving a fact, but as sources of information to the court, designed to relieve the judge from laborious inquiry and to protect him from error which might result from his unaided investigations. If it be true that foreign laws are not required in France to be proved as substantive facts, but are required to be made known to the court for its information and enlightenment merely, the court being the final judge of what is the law, and at liberty to extend its investigations beyond the statement or proof' of the law furnished by the parties, an opinion upon any matter of American law, by a person qualified to render such an opinion, would seem to be as properly admissible in the courts and as valuable in the way of information as the certificate of law' which has been the subject of the Department's objection.

66

'Being satisfied of the necessity of continuing in some practicable and legitimate form the custom of attestation of the testimony and opinions of counsel which has so long prevailed in France, this Department, upon reconsideration of the matter, is prepared to authorize the use of an amended form of certificate, of which copies in French and English are appended hereto. You will ascertain whether this draft form is acceptable to the French judicial authorities, and if it be it may be forthwith substituted for that heretofore used. If, however, an amendment or alteration be suggested to conform to the French requirements or usage, you will report the same to the Department for its further consideration. It is hoped, however, that the form now given will suffice, as it appears to meet all the essential conditions described in the enclosures to Mr. Eustis's dispatch.

"Unless the Department is mistaken in its conception of the French law, as above given, the proposed form of certificate is more consistent with what the French courts require than the certificate heretofore in use, but it must be remembered that the Department has no reliable information as to what is the French requirement, and must leave the question of the sufficiency of the proposed form to be settled by submission to the proper authorities.

"A similar instruction will be sent to the consul-general in answer to his later representations on the subject. When the adoption of an amended form in this or some other equally acceptable shape is decided upon, you will advise Mr. Morss thereof in order that it may be forthwith adopted in the business of the consulate-general.

I note Mr. Eustis's suggestion that this matter of certification of the opinions of counsel might be left wholly to the consulate-general, but I do not see the necessity for such a course, or that there is any objection to the attestation of the embassy being given in the proper cases when requested by the parties in interest.'

Mr. Olney, Sec. of State, to Mr. Vignaud, chargé at Paris, July 13, 1896,
MS. Inst. France, XXIII. 311.

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I, the undersigned, certify and attest that A. B. is a member of the bar of the supreme court of the State of qualified to give the preceding opinion.

and that, as such, he is legally

(Signature and official title.)

"Referring to the Department's instruction to you of the 13th altimo, authorizing the use by your embassy and by the consul-general of an amended form of certificates of law,' I have to acknowledge the receipt of your despatch No. 551, of the 10th instant, stating that the French Government is willing to accept the form proposed with the single substitution of the word attestation' or 'declaration' for the word' consultation.'

"In reply I have to inform you that this Government accepts the amendment la declaration, so that the certificate will read in French as follows:

Je soussigné certifie et atteste que Mr. la cour Supreme de l'Etat de

la declaration ci-dessus.

est membre du barreau de et quá ce titre il a qualité pour delivrer

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"The form in the English language will remain unchanged as follows:
"I, the undersigned, certify and attest that A. B. is a member of the bar
of the supreme court of the State of
and that, as such, he is legally
qualified to give the preceding opinion.

"Paris,

18-.

"L. S.

(Signature and official title.)"

"You are instructed to take the necessary steps to have the
amended form adopted at once."

Mr. Adee, Act. Sec. of State, to Mr. Vignaud, chargé at Paris, Aug. 27,
1896, MS. Inst. France, XXIII, 334.

4. LAWS OF VARIOUS COUNTRIES.

(1) ARGENTINE REPUBLIC.

§ 242.

"As a number of vexatious delays and embarrassments have occurred here recently among citizens of the United States in reference to rights of marriage I have deemed it advisable, for personal information, to transmit to the Department duplicate copies of the law of matrimony which went into effect in this country April 1, 1889, together with translations of the same, also in duplicate.

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By article 19 of this law, it is provided that the parties intending to contract matrimony, at the time of expressing their consent as required by article 14 of the law, must produce before the public officer having charge of the respective civil registry the following papers:

"(1) Certificate of birth or baptism.

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(2) In case of previous marriage, certificate of death of former

spouse.

(3) A duly legalized copy of the decree annulling any previous marriage of either party.

(4) The authentic declaration of the person whose consent is required by the law. Also, in case the original domicile of either party is not in the Argentine Republic, such party must produce a certificate of his or her civil status in that domicile.

"In case of the non-existence of the certificates required by the
above article 19, the facts may be shown under article 21 by other
modes of proof permitted by the Argentine civil code."

Mr. Hanna, min. to Arg. Rep., to Mr. Blaine, Sec. of State, May 20, 1889,
For. Rel. 1889, 7. The translation of the law, which was passed Nov.
12, 1888, is printed with the dispatch.

Art. 14 reads: "The consent of the contracting parties expressed before
the public officer in charge of the civil register is indispensable for
the existence of matrimony. The act in which any of these requisites
shall be wanting shall not produce any civil effects, even if the parties
acted in good faith."

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