No. 465.
Mr. Maynard to Mr. Evarts.

No. 296.]

Sir: I have the honor of recurring to the topic discussed in my dispatch No. 274, of September 19, 1878, and your reply, No. 179, of November 1, 1878.

A question has been submitted involving principles similar to those we then considered.

A young gentleman residing in this capital, an American citizen and a Protestant Christian, called at this legation for advice in a matter which he regarded as of great personal importance. Being about to marry in Persia a lady who resides in that country, herself an American citizen and a Protestant Christian, he wished to know in what form the marriage would be valid and effective as a matrimonial contract.

I gave him my opinion, which at his request I reduced to writing. A copy is inclosed.

Though I never had occasion, professionally, to study the subject, it certainly cannot be a new one in Christendom, and especially in England. Besides your dispatch of November last, the only authorities I find in the legation are the opinion of Supreme Court of the United States in Hallett vs. Collins (10 Howard, 174); the opinion of the Attorney-General, November 4, 1854; and the brief notices in Kent and Wheaton, with the notes of Messrs. Lawrence and Dana.

Would it not be well to ask Congress to revise and enlarge the marriage act of June 22, 1860 (Revised Statutes, section 4082), so as to make valid marriages in the presence of diplomatic as well as consular officers of the United States, and to provide for cases like the present, where the government is not represented either by a consular or diplomatic officer, and where there is no local law available?

I am, &c.,

[Inclosure 1 in No. 296.]

Mr. Maynard to Mr Bliss.

No. 249, M. C.]

Dear Sir: In reply to your inquiry this morning, how a marriage can he so solemnized in Persia between American Protestant Christians as to be valid and legally oh ligatory elsewhere, I remark:

Persia is a Mohammedan country, with which the United States has a treaty, hut within which we have no diplomatic or consular agents. The act of Congress making [Page 978] valid marriages contracted in the presence of any consular officer of the United States In a foreign country cannot therefore be applied.
The general rule that the contract of marriage is to be governed by the law of the place where it is celebrated does not apply in those countries, barbaric or other, in which there is in fact no local law, or in Mohammedan or Pagan countries, in which, though a local law exists, Americans are not subject to it.

It follows, then, in the case you submit that the natural law of marriage must be observed, which requires no more than the declared mutual consent of parties competent to contract, and which is the common law of marriage as now received in all, or nearly all, the States of the American Union. To give the contract authenticity, it is usually required to be made in the presence of a clergyman or of a civil magistrate, and some form of license and of registration is also enjoined. But the latter regulations are directory only, not essential.

In the present case, if the marriage take place in the presence of a regularly-ordained clergyman of the Protestant church, according to the observance in use by that church, it will undoubtedly be valid. Let the clergyman give under his hand a written certificate reciting the contract and signed by the parties and such witnesses as they may choose, and let the certificate be recorded in the chancery of the legation and in the consulate-general of the United States at Constantinople.

The presence also of a diplomatic or consular officer of one of the Protestant or other Christian powers would be well. For, while it would add nothing to the validity of the contract, it would give it higher authenticity.

I am, &c.,