No. 206.
Mr. Hoffman to Mr. Fish.
Paris, August 31, 1874. (Received September 17.)
Sir: During his recent visit to Paris, on his way to Berlin, Mr. Davis exhibited to me the advanced sheets of the instructions you propose to issue to the diplomatic officers of the United States. Among them I observed one upon the subject of marriages celebrated at the legations of United States between Americans. During the seven years I have been secretary of this legation, one hundred and fifty marriages have been celebrated here, probably more than in all the other legations of [Page 443] the United States in Europe during the same period. The importance of the subject, and my natural desire to protect my countrywomen from the sad consequences of an illegal marriage, have induced me to give to this subject exceptional attention. You will, therefore, excuse me if I venture to offer some observations upon the proposed instruction in this matter.
I may perhaps remark, in the first place, that the legality of these marriages has been the object of serious consideration by the able and conscientious men who have represented the United States in France. The volume of certificates which I have before me runs back to 1858. Mr. Mason, Mr. Faulkner, Mr. Dayton, Mr. Bigelow, Mr. Dix, and Mr. Washburne, after full examination of the subject, were of opinion that such marriages were perfectly legal, and acted accordingly. The subject seems naturally to divide itself into three points of view: the legality of these marriages under French law, under United States law, and under State law.
When I came here as secretary of legation with General Dix, 1866, being impressed with the importance of the subject, 1 applied, with his assent, to Mr. Moreau, the eminent counsel of the United States in the Arm and suits, for his opinion upon the subject of the legality of such marriages under French law. His opinion lies before me, I translate a portion of it:
“The undersigned, counselor at law at the imperial court of Paris, having been consulted as to the validity of a marriage contracted between Americans before the minister of the United States, and at the hotel of the legation, is of opinion that such marriage is valid in the eyes of the French law.”
Mr. Moreau then proceeds to give his reasons for this opinion.
Under this head I will add that, in two instances in which marriages between an American man and a French woman, and between an Englishman and a French woman, celebrated at their respective embassies, have been annulled by the French courts, it was upon the ground that the woman was French; and it was implied that had she been American or English, as the case might be, the marriage would have been held valid.
The second point of view of this subject is the legality of the marriage under United States law.
This is a point of which I must speak with diffidence. You are necessarily better informed upon this matter at the Department than I can be, and you always have the opportunity of procuring the opinion of the Attorney-General upon the question, if you think it worth while to do so. In the elaborate and learned opinion of Mr. Cushing, then Attorney-General, upon this subject, however, and which, if I am not mistaken, forms the base of its full discussion in the consular regulations of 1868, it is assumed that such a marriage, celebrated at a legation, is valid, and the weight of his argument is directed to show that if celebrated at a consulate it is not valid; and it was in consequence of this opinion that Congress framed the statute of June 22, 1860, (12 U. S. Stat., page 72,) making such marriages valid when celebrated at a consulate under certain prescribed conditions. Had Congress doubted the validity of such marriages at legations, it is scarcely to be supposed that it would not have conferred similar powers upon them. Will it be held irrelevant to suggest that Congress may perhaps have exceeded its powers in passing this law?
Upon the general principle that the powers which are not expressly confided to Congress are reserved to the States, it may be that should a [Page 444] conflict hereafter arise between national and State law upon this subject, involving property, the Supreme Court of the United States would decide that the State law was supreme in matters of marriage.
But the third point is that to which I wish especially to call your attention, the validity of a marriage between Americans celebrated at a United States legation under the laws of these States.
Two residents of Massachusetts come to this legation desiring to be married. The minister quotes to them your instruction, and declines to permit the marriage except under the conditions therein prescribed. They reply that in this matter they have nothing to do with the United States law; that they are citizens of Massachusetts; that the statute of Massachusetts is supreme for them in this matter; that this statute prescribes that “marriages celebrated in a foreign country by a consul or diplomatic agent of the United States shall be valid in this State; and a copy of the record, or a certificate from such consul or agent, shall be presumptive evidence of such marriage.” (Mass. Gen. Stats., ch. 106, § 23.) They ask to be married under this statute. Is the United States minister to refuse them the courtesy of the legation for this purpose? And, if so, could he not with equal propriety refuse to take their acknowledgment to a deed, under the power conferred upon him by the statute of Massachusetts and not by any United States statute?
There is only one other point to which I would call your attention—a minor one in my estimation and in yours, I am sure, but unhappily not such in the opinion of many married people—the question of divorce.. If Americans in France are compelled to comply with the laws of France in reference to the formalities to be observed for a marriage, they will be married at the “mairie,” where alone these formalities can be complied with. Should these Americans afterward be divorced by a competent tribunal in their own country—in Indiana, or elsewhere—the French courts will not respect such a decree. It would be otherwise were they married in the United States or at this legation. And thus the American citizen is deprived of his inalienable right of divorce.
The question of the disturbance and anxiety which will be thrown into many families by any doubt cast upon the validity of these marriages by so high an authority as your own has no doubt already received your attention.
I am, &c.,