Mr. Cadwalader to Mr. Marsh.
Washington , April 15, 1875.
Sir: Your dispatch No. 538, of the 19th ultimo, has been received. It states, in its closing paragraph, that in a case of marriage between American citizens in Italy, you might advise that a blank in the consular [Page 765] certificate should be filled with the words “laws of the United States.” This, however, would, it is apprehended, not be a judicious course, and it might prove to be judicially untenable. The only law of the United States on the subject of marriage is that which provides that all marriages celebrated in the presence of a consular officer in a foreign country between persons who would be authorized to marry if residing in the District of Columbia are valid to all intents and purposes as if said marriage had been solemnized in the United States. The phrase “laws of the United States” might therefore be deemed to imply laws of the several States. Now, as the laws of the several States on the subject of marriage are various, if the certificate were to say that the marriage was performed according to the “laws of the United States,” it might be held to be vague and inaccurate.
The United States statute on the subject of marriages above referred to (Revised Statutes, section 4082) defines those who may be married under its provisions, namely, “persons who would be authorized to marry if residing in the District of Columbia,” but is silent as to the persons who may perform the ceremony. When, however, it speaks of “marriage in a foreign country,” it is but reasonable to hold that to be a marriage, it must be solemnized (in the absence of authority given by the laws of the United States to any other person) by some person authorized, by the law of the country where the marriage takes place, to perform that ceremony, or in some mode recognized by such law.
In this view it is believed that the blank indicated by you in form of certificate No. 87, in Consular Regulations of September 1, 1874, should be filled with the name of the country in which the marriage takes place, and not refer to the authority of the party performing the ceremony, as derived from the laws of the United States, which do not give authority to any person to Solemnize marriages. It is not supposed that actual statutory enactments are essential to give the authority, but such authority as would seem to exist in Italy for the performance of the marriage ceremony by a Protestant priest, as is inferred from the statement in your dispatch, that “while there is no express provision on the point in the Italian code,” you are assured that such a marriage “between Americans would be held legal” in Italy.
Possibly it would be well to use the word “law,” which will cover unwritten as well as statute law, instead of the word “laws.”
I am, &c., &c.,