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 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."

Mr. Stallo, min. to Italy, to Mr. Bayard, Sec. of State, July 30, 1887, For.
Rel. 1887, 639.

"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 foreigners to be such as you describe.

"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."

Mr. Bayard, Sec. of State, to Mr. Stallo, min. to Italy, Oct. 22, 1887, For.
Rel. 1887, 640.

"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. Hayden, showing the Department's views as to the issuance by consular officers of certificates of matrimonial status.

"Referring to my dispatch No. 143, dated June 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 further 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 no 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 in place of a certificate of nulla osta.'”

Mr. Alden, consul-general at Rome, to Mr. Porter, Assist. Sec. of State, Sept. 27, 1887, being the dispatch accompanying Mr. Bayard's instruction to Mr. Stallo of Oct. 22, 1887, supra. (For. Rel. 1887, 640, 641.)

(6) PERU.

§ 247.

By a circular of July 31, 1840, the Peruvian Government prohibited the authorities of the country to permit marriages to take place between alien men and Peruvian women unless such aliens should inscribe themselves in the civil register, in conformity with the sixth article of the constitution, touching the acquisition of Peruvian citizenship. The British chargé d'affaires in Peru, acting under instructions, made representations in relation to the circular. By a circular of the ministry of foreign affairs of November 10, 1841, the prohibition was suspended, subject to the action of Congress. The object of the prohibition, as stated in the circular of 1841, was to secure observance of the principle that children born in Peru were Peruvians for all the purposes specified in the fifth article of the constitution. This principle, the circular observed, was not inconsistent with the privilege, which belonged to the children of aliens, on attaining their majority, "of claiming the citizenship of their fathers, being considered Peruvians in the meantime for all purposes whatever." It was stated in the circular that the British chargé d'affaires admitted in his representations the principle "that the authorities of Peru have a right to dictate the laws that they may deem proper relative to the marriage of Peruvians with foreigners," and that his remonstrance against the prohibition of 1840 was based on considerations of morality and policy. The circular of 1841 directed the authorities to issue the usual licenses for the marriage of aliens, provided that they should declare in their petitions that they would not contest the principle of the law of nations by virtue of which their children born in Peru would be "considered Peruvians by birth for all purposes whatever," until on attaining their majority they should claim the nationality of their fathers.

66

MSS. Department of State.

Referring to Department's instruction of July 29th last, No. 175, and to your despatch of October 26th, No. 334, concerning the registration of the marriage of foreigners in Peru, I enclose herewith copy of a letter from the Honorable R. R. Hitt in further relation to the subject.

"As you are aware, this Department is interested in seeing, if possible, the adoption of a marriage law in Peru more consonant with the general practice of modern nations than that which now prevails, and is particularly concerned lest the civil rights of American citizens in that quarter, as in the case alluded to in the enclosed letter, may be impaired through the deficiency of the existing law. This Government would be glad to learn that the subject will be revived at the next session of the Legislature, during the present year, and satisfactorily disposed of."

Mr. Sherman, Sec. of State, to Mr. McKenzie, min. to Peru, March 31,
1897, MS. Inst. Peru, XVIII. 23, enclosing copy of a letter from Mr.
Hitt, of March 27, 1897.

See Mr. Adee, Act. Sec. of State, to Mr. Hitt, M. C., Dec. 4, 1897, 223 MS.
Dom. Let. 687, referring to a civil marriages bill which had passed
the Peruvian Congress, and which then awaited the approval of the
President.

The Government of Peru issued, May 9, 1899, a decree prescribing a mode of legal proof to be followed by those desiring to marry outside the Roman Catholic Church, by availing themselves of the provisions of the civil marriage law of the 23rd of December, 1897. The law in question legalizes civil marriage when both parties to the contract are non-Catholics, and when, only one of the parties being of that church, the ecclesiastical authority refused to perform the ceremony.

Mr. Dudley, min. to Peru, to Mr. Hay, Sec. of State, May 24, 1899, For.
Rel. 1899, 590.

The text of the decree is printed with Mr. Dudley's dispatch.
"Our representative has been instructed to use all permissible friendly
endeavors to induce the Government of Bolivia to amend its marriage
laws so as to give legal status to the non-Catholic and civil mar-
riages of aliens within its jurisdiction, and strong hopes are enter-
tained that the Bolivian law in this regard will be brought, as was
that of Peru some years ago, into harmony with the general practice
of modern states." (President McKinley, annual message, Dec. 5,
1899, For. Rel. 1899, xv.)

In order to satisfy the law of 1897, the mayor may authorize the marriage
if either of the contracting parties declares that he or she never
belonged to the Catholic communion or had separated from it. (For.
Rel. 1903, 694.)

As to a decree requiring diplomatic or consular certificates of celibacy and its revocation, see For. Rel. 1904, 687–692.

(7) RUSSIA.

§ 248.

Mr. Breckinridge, United States minister at St. Petersburg, transmitted to the Department of State, with his dispatch, No. 373, of August 27, 1896, an extract sent him by the Russian foreign office

from the Russian Civil Code, containing the law of that country relating to marriage. The extract was as follows:

Extrait du Code Civil de Russie (T. X, 1re p.)

ART. 1. Les personnes professant la religion orthodoxe grecque, quelle que soit leur condition civile, peuvent contracter mariage sans demander l'autorisation spéciale de l'autorité ou le permis des corporations et communautés, dont elles font partie. Aux mêmes conditions est soumis le mariage d'un étranger de religion orthodoxe grecque avec une sujette russe du même culte.

ART. 12. Le mariage ne peut être valablement contracté sans le consentement libre et mutuel des parties; en conséquence il est défendu aux parents et tuteur de contraindre leurs enfants et mineurs, se trouvant sous tutelle, à contracter un mariage contre leur vouloir.

ART. 25. Celui qui désire contracter mariage doit donner par écrit ou verbalement au Prêtre de sa paroisse, ses noms, prénoms, qualités ou condition, ainsi que les noms, prénoms et condition de la future.

ART. 26. Aprés cette communication, il sera procédé á l'église à la publication des bans trois dimanches ou jours de fêtes consécutifs après la messe; ensuite s'effectue l'enquête préalable ordonnée suivant les règles prescrites par l'autorité ecclésiastique et dans les formes voulues.

ART. 27. A la suite de la publication des bans, tous ceux qui auraient connaissance de quelques empéchements au mariage sont tenus d'en informer le Prêtre verbalement ou par écrit immédiatement ou au plus tard lors de la dernière des trois publications précitées.

ART. 31. Le mariage entre particuliers doit être (conjointement avec les fiançailles) célébré à l'église en présence des contractants aux jours et heures pour cela fixés, devant deux ou trois témoins-le tout conformément aux règles et rites de l'église orthodoxe grecque. Chaque union est portée sur les livres de la paroisse.

ART. 61. Il est permis aux personnes professant les diverses communions chrétiennes de contracter en Russie mariage d'aprés les règles et rites de leurs églises, sans requerir au préalable le consentement de l'autorité civile, sauf à observer les prescriptions des lois russes relatives au culte de leur religion.

ART. 65. Dans tout les cultes chrétiens les mariages sont célébrés d'après le rite de l'église à laquelle appartiennent les contractants et par l'ecclésiastique competent. Néanmoins ces mariages seront valables s'ils ont été célébrés par le prêtre greco-russe à défaut du curé ou du ministre de la communion des contractants; dans ce dernier cas, la célébration ainsi que la dissolution du mariage ne pourra avoir lieu que d'après les prescriptions et les rites de l'église orthodoxe grecque.

ART. 90. Dans chaque tribu et peuplade sans en excepter les païens, le mariage peut êtré contracté d'après le culte et les coutumes des contractants, sans intervention de l'autorité administrative ou ecclésiastique de l'un des cultes chrétiens.

ART. 102. La femme mariée à un étranger qui n'est ni au service de Russie ni naturalisé sujet russe, suit la condition et acquiert le domicile du mari. (49 MS. Desp. from Russia.)

Jewish marriages and divorces, performed and granted by Jewish rabbis in Russia, are recognized by the Russian law.

For. Rel. 1903, 715.