No. 236.
Mr. McLane to Mr. Bayard.

No. 370.]

Sir: I have just received your circular of February 8, forbidding diplomatic and consular officers of the United States to issue certain papers this legation has been in the habit of delivering for the purpose of enabling Americans desiring to marry in France to comply with certain forms of the French law.

[Page 288]

As strict compliance with this instruction is calculated to be a source of serious inconvenience to many of our countrymen, I venture to call your attention to the matter with a view of obtaining a reconsideration of your action.

The principle that Americans proposing to marry abroad should conform to the laws of the country where the marriage is to be solemnized has been strictly adhered to by this legation, and for the last ten years Americans have been married in France in accordance with French law. But to comply with these laws it is necessary to furnish the French authorities with papers of a certain kind, almost impossible to procure if the legation does not provide for them. It is necessary, for instance, for an American to produce an official document showing when and where he was born, and to furnish evidence that if he is above age he can marry in the United States without the consent of his parents, and that publication of bans is only necessary where the marriage is solemnized.

An ordinary statement to that effect, such as a certificate signed by a clergyman, a physician, or a notary, will not satisfy the French authorities; they insist upon having an official paper written in French and bearing the seal of an authority recognized in France; in fact, nothing less than the seal of this legation is acceptable to them. A marriage thus solemnized in France is perfectly legal and valid, and therefore in strict conformity with the instructions issued to diplomatic and consular officers of the United States, and this explains why the legation has assumed the responsibility of issuing the papers in question.

No serious error can be committed by certifying to the age of an American, if the fact is satisfactorily established, or to his capacity to marry without the consent of his parents if he has attained his majority. The circulars of the Department No. 18 and No. 39 furnish authentic and reliable information to serve as a basis upon which such certificates can be given, and therefore they are in no sense dependent upon “hearsay,” as the circular of February 8 supposes to be the case. It is true that these certificates are not expressly authorized by statute or by personal instructions, but they are of such a character as to justify such authorization, and I recommend that I be authorized to issue them as heretofore, as they are merely matters of form.

In my No. 334, under date of December 31, 1886, I called your attention to this subject and gave you a very full explanation of the circumstances which gave rise to the practice by this legation. I did this in connection with a request that the consul-general in Paris should not issue the certificates, which this legation issued, under van understanding with the French authorities, as the intervention of the consul created embarrassment and might bring into question the whole practice. I have had no answer to this dispatch although I inclosed for your information a letter from the consul-general, advising me of his hesitation to conform to my wishes, and I informed you at the same time that the certificates he had already issued had created embarrassment and obliged me to correspond with the French authorities, which correspondence terminated most satisfactorily, and authorized and permitted the continuance of the certificates heretofore issued. I think if your attention had been called to this dispatch as particularly as I desired, the practice of this legation, which has been in existence for more than ten years, would have received your approbation and the consul-general would have been instructed not to interfere with it, whatever he might have been authorized to issue in the nature of certificats de coutume having no connection with the solemnization of marriages, that matter being left to [Page 289] the legation as understood between it and the French authorities. Indeed the statement I had occasion to make in that dispatch as to the practice of consuls in issuing certificats de coutume as illustrated in the particular case noted in the same, required your personal attention, that you might not be held responsible for the abuse of the practice even when authorized by law or custom. Certificates stating what is the law or custom in the United States as to matters of general concern are constantly applied for at this legation and at our consulates, and it is generally understood that it is part of their functions to issue them. In France particularly, where foreigners in all cases involving their personal status are subjected only to the laws of their nationality, such certificates could not be refused without great detriment to their personal interest, but I am quite of opinion that it is a practice which should be regulated by law or by instruction and not permitted to become an occasion for illegal fees and exactions upon American citizens seeking the aid and protection of the diplomatic and consular agents of the United States.

Please pardon me for recurring at length to this matter in connection with your circular of February 8, but I do so because I am persuaded that while this legation may be authorized to issue certificates which are purely matters of form sanctioned by the French authorities, consular officers should not be authorized to confound them with certificats de coutume as to the laws or customs of the United States on matters of general concern.

I have, etc.,

Robert M. McLane.