I may add that this circular has materially facilitated the work of the
legation, and has at the same time removed some of the embarrass
[Page 958]
merits which the Swiss law tended
to place in the way of marriages of our citizens in Switzerland. * * *
[Inclosure in No. 303.]
Circular from the legation of the United States of
America at Berne, concerning marriages of citizens of the United
States in Switzerland
Applications are frequently made to this legation, by the cantonal or
communal authorities as well as by private individuals, for certificates
as to the validity of a marriage of a citizen of the United States,
performed in Switzerland; these applications are generally coupled with
a request that the legation should certify that the marriage is valid
according to the laws of the United States, and that it will be
recognized as valid by the laws of the State or Territory from which
such citizen comes.
It is not within the province of the legation to certify officially as to
the laws of the different States, nor is it called upon to decide
whether a marriage is valid or not. Those questions are properly within
the competence of the judiciary, and the legation therefore confines
itself to giving a statement of the laws of the United States concerning
marriages in foreign countries, and the instructions issued to the
consular officers on the subject, as follows:
“Sec. 4082. 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. And such consular
officers shall, in all cases, give to the parties married before them a
certificate of such marriage, and shall send another certificate thereof
to the Department of State, there to be kept; such certificates shall
specify the names of the parties, their ages, places of birth, and
residence.” (Revised Statutes of the United States, section 4082.)
The instructions to the consuls from the Secretary of State of the United
States contain the following:
“In the District of Columbia at the time of the passage of the act, males
who had arrived at the age of twenty-one years, and females who had
reached the age of sixteen were held competent to marry; and every
minister of the gospel appointed or ordained according to the rights or
ordinances of his church, whether his residence was within the District
of Columbia or not, could be licensed to perform the ceremony.”
(Consular regulations, § 275.)
“The statute does not authorize the consul to perform the ceremony. It is
not to be supposed that Congress intended to authorize a consul to
perform the ceremony of marriage, or to countenance the doing of any act
which would be or even seem to be a violation of the laws of the country
in which he resides. Marriage is a contract which each State regulates
for itself by its own laws. Inasmuch as rights of inheritance may depend
upon the validity of marriages, consuls cannot be too cautious in
satisfying themselves, when their presence is asked at a proposed
marriage, not only that the parties may lawfully intermarry according to
the laws of the country in which the ceremony is to take place, but also
that all requirements of law necessary to give vidality to the marriage
have been had. In no case should the consul himself assume to perform
the ceremony, unless authorized by the laws of the country to do so. The
statute contemplates that the ceremony is to be performed in his
presence, but it should be done according to local laws. These
considerations, however, do not apply to oriental countries, such as
China, Japan, Turkey, &c.” (Consular regulations, § 278.)
From examination of the above it appears that a marriage performed under,
and in accordance with the Swiss Federal law, concernant l’êtat-civil, la tenue des registres qui s’y rapportent
et le mariage, of December 24, 1874, if performed in the
presence of a consular officer of the United States, will be valid to
all intents and purposes, and shall have the same effect as if
solemnized within the United States.
The legation cannot undertake to procure certificates as to the laws of
the different States or Territories (each of which has its own laws on
marriage, divorce, and the rights of married women). Persons desiring
such certificates should apply to the-proper officials of such States or
Territories, either direct, or in the case of Swiss citizens through the
officials of their own country.
Legation of the United States,
Berne, July 20, 1880.
NICHOLAS FISH,
Chargé d’ Affaires of the
United States to the Swiss Confederation.
