Mr. Bayard to Mr. Winchester.
Washington, August 15, 1885.
Sir: Your dispatch No. 5, July 30, 1885 (Consular series), in which you ask as to the meaning of the “personal instructions” received by you from the Department of State, dated July 3,1885, in regard to marriages, has been received.
These instructions are explained in some detail in a circular to the [Page 808] consular officers of the United States, a copy of which is hereto attached, and which you may have already received. I beg in addition to make the following statements:
- (1)
- In the opinion of the Secretary the act of Congress to which you refer does not affect marriage of persons domiciled in the particular States of the Union. Each of these States is supreme in its legislation as to all matters relating to the conditions of marriage, as well as of divorce, within its limits.
- (2)
- Even to marriage abroad of persons domiciled in the District of Columbia or in the Territories over which Congress has jurisdiction, the presence and attestation of a consular officer is not, under the act of Congress, necessary. Such marriages, if otherwise valid in the District of Columbia or in the Territories, would be valid, although not solemnized before a consular officer. Nor does the presence of a consular officer by itself give validity to marriages otherwise invalid.
- (3)
- It is very questionable whether, even as to marriages of persons domiciled in the District of Columbia and in the Territories, the act of Congress has any effect out of those jurisdictions. It is a principle of international law that the forms of solemnizing marriages must conform to the rules established by the law of the place of solemnization. No particular sovereign can withdraw from the operation of that principle the marriages of his subjects when solemnized abroad. He may say, “In my own dominions these marriages shall be valid,” but he cannot by such a decree change the rule of international law in this respect, which is accepted by foreign nations. In other words, the general position is, that a local law cannot extraterritorially affect the law of nations. We have applied this rule to cases where foreign sovereigns have attempted by local decrees to vary international law in respect to blockade and to piracy. There is no reason why the same rule should not be applied in respect to marriage, and the British Government in its instructions to its diplomatic agents has been careful to make this distinction. It has told them that while marriages of British subjects abroad in ambassadors’ residences would be valid in the British dominions, they are, in the opinion of the crown officers, “not necessarily valid without the dominions of Her Majesty.” (See Lord Stanley’s letter of February 8, 1867, cited in 2 Eraser on Husband and Wife, 2d edit., (Edinburgh, 1878), 1312.)
- (4)
- There is no reason, however, why a consul should not permit marriages of American citizens, no matter what may be their domicile, to be solemnized in his presence whenever they desire it. While he cannot either make or unmake such marriage, he gives in his certificate a memorandum which will enable him, when living, to refresh his memory when called as a witness to the fact of the marriage, and, after his death, such a memorandum may be admissible as documentary proof of the marriage. The fact, also, that the marriage took place in his presence would lead to the inference that it was entered into advisedly.
- (5)
- The conclusion, which cannot be too strongly impressed, is that when a marriage is solemnized by citizens of the United States in a foreign civilized country, the form of solemnization must be in accordance with that prescribed by the local civil law. If the mode of solemnization is good by this law, it is good everywhere 5 if it is bad by this law, it is bad in all countries which do not specially validate it by statute. It is true that there are certain exceptions to this rule, in respect to local forms which are oppressive or which are impossible or which militate against the rational religious convictions of the parties 5 but these exceptions are so rare that it is not necessary here to notice them, or to [Page 809] regard them as in any way diminishing the force of the rule that the mode of solemnization must be in accordance with the law of the place of solemnization.
It is true, also, that in some European countries the law is that it is sufficient to validate the marriages of foreigners within their boundaries that the law of the domicile of the parties be observed. But this is only an application of the rule that the law of the place of solemnization must in such cases be supreme. When it says, “You can follow the law of your domicile,” it gives effect to the law of such domicile only because it itself chooses so to ordain.
In conclusion, the importance of the maintenance in this respect of the supremacy of the law of the place of solemnization cannot be too highly estimated, nor can our consular and diplomatic representatives impress too strongly this rule upon those who come to them for advice. Any variation from this rule may lead to the annulling of marriages entered into in good faith, and in the bastardizing of the issue of such marriages.
It is proper to add that the object of this instruction is not to determine as to the validity of any particular marriages that have taken place or may hereafter take place. Questions of this class are for the judicial tribunals. The function of this Department is simply to instruct its diplomatic representatives in civilized countries what advice to give citizens of the United States applying to them for information as to the proper mode of solemnizing marriages, and the answer must be that the ceremonial prescribed by the law of the place of the ceremony must be adopted. They should also be advised that the act of Congress above referred to cannot operate outside of the District of Columbia and the Territories, and that even to persons domiciled in the latter jurisdictions it is a matter of doubt, which can only be settled in each case by judicial decision, whether the act would be regarded by foreign courts as changing, so far as concerns their action, the rule of international law above stated.
I am, &c.,