Gambar halaman
PDF
ePub

treaty with Tripoli the property of a decedent is to be placed under the immediate direction of the consular officer, without interference from the Government or the subjects of the country. In Tunis the consular officer has the right to the possession of the effects without interference by the local government.

414. Peru.-By treaty with Peru, in the absence of the legal heirs or representatives, a consular officer is made ex officio the executor or administrator of the property of citizens of the United States dying within his district and that of his countrymen who die at sea which may be brought to his district. He is required to make an inventory of the property conjointly with a local judicial officer; but the effects are to remain in his hands, with authority to sell the perishable part and to dispose of the remainder according to the instructions of his Government. If the deceased was engaged in business, the property is to be held for twelve calendar months, during which time creditors may present their claims. All questions between the consular officer and creditors are to be determined by the local laws; but if no claim is presented, the consular officer may close the estate and dispose of the effects and property according to the instructions of his Government.

415. Salvador.-In Salvador a consular officer has the right to nominate curators to take charge of the property, so far as the laws of the country will permit, for the benefit of heirs and creditors, giving proper notice of such nomination to the authorities of the country. He has the right to take possession of the personal and real estate. He is required to make an inventory conjointly with two merchants, and to publish the death in a newspaper of the country. It is his duty to collect all debts due the deceased in the country and to pay the debts due from him. He may sell the perishable part of the property and such other part as may be necessary to pay the debts; but he is prohibited from paying any claim, not reduced to a judgment, for damages for any wrongful act of the deceased. When there is no consular officer present, the local authorities are to receive the property and notify the nearest consular officer of the United States.

416. In non-Christian countries.-In China, Japan, Madagaswar, Siam, Turkey, and other non-Christian countries the property of decedents, both personal and real, is administered under the probate jurisdiction of the consular courts in those countries, without interference in any respect by the local governments.

ARTICLE XXIV.

MISCELLANEOUS INSTRUCTIONS.

MARRIAGES.

In non

417. Consuls not to celebrate.-A consular officer of the United States has no power to celebrate marriages in a Christian country between citizens of the United States unless specifically authorized by the laws of the country to do so. Christian countries his authority to perform this rite is not sufficiently well established and defined in the jurisprudence of the United States to justify action upon it. It is deemed safer to forbid consular officers, and they are hereby forbidden, to solemnize marriages in any case.—7 Op. Att. Gen., 23, 30, 31, 342, 346; 1 Halleck, Ch. XI, sec. 14; 1 Bishop, Marriage and Divorce, 298.

418. May act as witnesses.—A consular officer may, when requested, be an official witness of the ceremony of marriage where one of the contracting parties is a citizen of the United States. In all cases of marriage in the presence of a consular officer he shall give to each of the parties a certificate of such marriage, and shall also send forth with a certificate thereof to the Department of State.

419. Certificate.—This certificate must be under the official seal of the consulate, and must give the names of the parties, their ages, places of birth and residence, the date and place of the marriage, and must certify that the marriage took place in the presence of the consular officer giving the certificate. (Form No. 87.)

420. Effect of marriage in presence of consul.—It is provided by statute that “Marriages in presence of any consular officer of the United States in a foreign country, between persons who would be authorized to marry if residing in the District of Columbia, shall be valid to all intents and purposes, and shall have the same effect as if solemnized within the United States.”R. S. sec. 4082. The statute does not exclude modes of solemnization other than that in presence of a consular officer. Marriages abroad, when not in the presence of a consular officer, if otherwise valid, are not invalidated by the above statute. The statute does not authorize the consular officer to perform the ceremony, but simply prescribes the legal effect which will be given to a marriage performed in his presence. In view of the exclusive authority of the States in such matters, this statute would probably not be operative outside of the District of Columbia and the Territories.

421. General principles as to solemnization.—It is a principle of international law that the law of the place of solemnization shall, whenever this is practicable, determine the mode of solemnization. When consuls are requested to act as official witnesses of marriages, they should see that the requirements of the law of the place of celebration have been, as far as practicable, complied with. It is not intended, however, in these instructions in any way to question or modify the principle of international law that, while the form of solemnizing marriage is determined ordinarily by the law of the place of solemnization, exceptions are recognized, (1) when it is impossible to use such form, (2) when it is repugnant to the religious convictions of the parties, (3) when it is not imposed on foreigners by the sovereign prescribing it, (4) when the ceremony is performed in a non-Christian or semicivilized country.-7 Op. Att. Gen., 18.

422. Not to certify as to laws of marriage in United States.-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.

EXTRADITION OF FUGITIVES FROM JUSTICE.

423. Requisitions for extradition.— The United States have treaties with most foreign powers providing, within specified limitations, for the extradition of fugitives from justice upon the demand of the state from which the fugitive has fled. The demand, or requisition, for extradition is usually presented by the diplomatic representative of the demanding government, where there is such a representative in the country of refuge. In the absence of a diplomatic representative, it is provided by some of the treaties that the requisition may be presented by “consular officers," "superior consular officers,” or “the superior consular officer.” (Paragraph 92.)

424. Act only upon instructions of Department. When a consular officer is required to make requisition for the extradition of a fugitive from justice, full instructions adapted to the particular case will be given him. In the absence of instructions from the Department of State, a consular officer is not authorized to intervene in extradition matters, nor to ask for the arrest and detention of a fugitive.

425. Authenticating foreign extradition papers.--The act of August 3, 1882, prescribes the manner in which documentary evidence offered by foreign governments in support of requisitions for the extradition of criminals from the United States shall be authenticated. The language of the statute is as follows:

That in all cases where any depositions, warrants, or other papers, or copies thereof, shall be offered in evidence upon the hearing of any extradition case under title sixty-six of the Revised Statutes of the United States, such depositions, warrants, and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant, or other paper, or copies thereof, so offered, are authenticated in the manner required by this act.-22 Stat. L., 216 sec. 5; 22 Fed. Rep., 699; 30 Id., 57; 33 Id., 165; 44 Id., 422; 136 U. S., 330,

The greatest care should be exercised in making the authentication provided for in the act above quoted. The form of such certificate (Form No. 36) has been tested by actual use and found to be legally sufficient.

TAXES AND DUTIES.

426. Taxes.—Unless exempt by treaty, consular officers are subject to local taxation in the country and city in which they reside. (Paragraph 83.) As a matter of courtesy or comity they are often excused from personal tax and more rarely from the payment of customs duty on their personal effects.

« SebelumnyaLanjutkan »