No. 208.
Mr. Fish
to Mr. Washburne.
Washington, November 14, 1874.
Sir: Referring to Mr. Hoffman’s dispatch of the31st of August last, No. 1027, on the subject of marriages abroad between American citizens, I deem it proper to call your attention to the recent instructions , of the Department on that subject, to which the observations of Mr. Hoffman, in the dispatch referred to, are directed.
The question, no less from the intrinsic importance which attaches to a contract of so serious a nature, than in view of the grave consequences which may result, not only to the parties themselves, but to their offspring, from a misapprehension of the law governing such contracts, has been one of no little solicitude to the Department. It may be stated as a general rule, subject to few and rarely-occurring exceptions, that a marriage, solemnized according to the laws of the country in which it is celebrated, will be recognized as valid and binding under the laws of all other civilized or Christian nations; hence, while it was deemed proper to gratify the natural wish of American citizens to have a contract of such interest to them solemnized under the flag of their own country, and that the hospitality of the legation should be extended to them for that purpose, the Department at the same time considered it only safe and prudent to advise them “that a ceremony of marriage performed within the precincts of a legation may nevertheless be deemed to be performed in the country within which the legation is situated, and therefore ought, in all respects, to comply with the requirements of the laws of that country, in order to insure its validity.” The wisdom of this precautionary measure with regard to the marriage of American citizens at the United States legation in Paris is at once evident from the two cases which Mr. Hoffman instances, in which marriages, solemnized in each case at the respective embassy of one of the contracting parties, were both subsequently annulled by a French judicial tribunal. These two cases suggest a rather awkward commentary on the opinions of Mr. Moreau, adduced by Mr. Hoffman, in support of his own criticism of the views of the Department. Mr. Moreau’s opinion is to the effect “that a marriage contracted between Americans before the minister of the United States, and at the hotel of the legation, is valid in the eyes of French law.”
In both of the cases in which the marriages were held void by the French court the women were French, and it was upon this ground, as Mr. Hoffman states, that the contracts were held invalid, but the consequences were no less unfortunate on that account; rights of property acquired by the husbands or wives, either in consequence of or during coverture, were more or less affected by the decrees annulling the marriages. There may have been children of those marriages, and the consequences to them would be of a still more serious character. And if, in the case of a marriage solemnized at the legation between Americans, who might from any cause be incompetent to enter into such contract under the laws of France, its validity should be brought in question before a French tribunal, it is to be feared that even the opinion of the learned counsel in question would be found insufficient to secure the sanction of the court to its validity. It was in view of such considerations as these, and admonished by the frequent recurrence of questions growing out of the subject, that the Department deemed it [Page 446] advisable to instruct the diplomatic representatives of the United States, when application might be made for the use of the legation for such a purpose, to satisfy themselves by inquiry whether the parties might lawfully marry according to the laws of the country in which the legation is situated, and in case they were found incompetent thus to marry, to inform them that the ceremony could not be permitted to be performed in the legation. There is, moreover, a manifest impropriety in thus using the privileges of the legation to give even an implied sanction to the completion of a contract which may be held by the tribunals of the country in which the legation is situated to be in contravention of the laws of that country.
It may also be supposed that these considerations were not overlooked by Congress in prescribing, as it did, by the thirty-first section of the act of the 22d of June, 1860, a general and uniform rule for the consular officers of the United States in relation to such marriages of American citizens in foreign countries. The Department finds itself unable to agree with Mr. Hoffman in his inference that Congress, in omitting to name the diplomatic officers, is to be taken as having assumed that a marriage solemnized in presence of the minister would be per se valid. It may with quite as much propriety be assumed that Congress looked upon the functions of the diplomatic representative as pertaining more to national affairs, and that, as there is a consul of the United States at every considerable port, while there is but one diplomatic representative, and he, at the capital of the country, the convenience of the parties to the marriage may also have had some weight in the legislative deliberation. With reference to the suggestion that Congress may have transcended its constitutional powers in the passage of the law referred to, it may be observed that, the power of determining that question being reserved to the judicial branch of the Government, it is no part of the duty of the executive branch, or its administrative officials, to question the constitutionality of an act of Congress that has become a law according to the prescribed constitutional forms. The law in question, moreover, was evidently intended for the better protection of the rights of American citizens abroad. It imparts the sanction of legal validity within the United States to a most solemn contract entered into by them in a foreign land during a temporary absence from their own country. It is difficult to perceive that Congress, in thus investing Federal officers with certain powers to be exercised beyond the territorial limits of the United States, and alike for the benefit of all citizens of the United States, can have transcended the just limits of their constitutional powers, or infringed upon any reserved sovereign rights of the States. Mr. Hoffman supposes a case of two citizens of Massachusetts presenting themselves at the legation for the purpose of having a marriage ceremony performed, and, upon their being informed of the minister’s instructions from this Department, insisting that in that matter they have nothing to do with the United States law; that for them the statute of Massachusetts is supreme.
It is scarcely supposable that citizens of Massachusetts would, at any period in the history of this Government, have advanced that doctrine, and it is scarcely to be expected that so extreme a practical assertion of State sovereignty will henceforth be put forward from any section of the country. Nor is it probable, especially with reference to the marriage-contract, and the relations resulting therefrom, that any prudent persons would willingly put themselves in such an attitude with reference to a law of the United States; but, should such a case arise, it is only necessary to say that a Federal officer is not bound to execute a [Page 447] State statute unless required so to do by act of Congress, and in the case supposed by Mr. Hoffman, it would be an answer to the imaginary citizens of Massachusetts, who might thus insist upon forcing themselves into the legation, to require from them the production of their right to the use of the legation for their private or family arrangements. The Department’s instructions on this, as on other subjects, are intended as a guide for the diplomatic and consular officers of the United States, with the supervision of whose official duties it is charged; these instructions are promulgated from time to time with a view of enabling such officers the better to conform their action to the laws of the United States, these laws being the guide of official conduct for the Department and its officers, whether abroad or at home.
Marriages of American citizens abroad, celebrated according to the requirements of the act of Congress of the 22d of June, 1860, are recognized as valid by the Department. But while thus confining its own action within the prescribed limits of the statute, the Department carefully avoids the expression of an opinion in regard to the validity or non-validity of the marriage of citizens celebrated abroad in any other manner than in conformity with the statute requirements. The forms and modes which may attend the performance of that interesting ceremony, as well as the particular place in which it shall be celebrated, are properly left to the determination of the parties themselves; while the legal consequences of the adoption or omission of the observances prescribed by the act of Congress rest with the judicial tribunals of the country, whose exclusive province it is to decide upon such questions, when, in the course of legal proceedings, such decision may become necessary. The aim of the Department, in the instruction which it has issued, has been one of precaution and admonition, prescribing only what was clearly within the statutory enactments, cautioning against what is uncertain or doubtful, and withholding the use of the legation in cases where the possibilities of a decision adverse to the legality of a marriage celebrated within it seem to approach to a certainty, or, at least, are potential.
I am, &c.,