No. 242.
Mr. Bayard to Mr. McLane.

No. 223.]

Sir: I have received your No. 370 of the 2d ultimo, in which you request that this Department reconsider, so far as the legation of the United States in France is concerned, the recent circular of February 8 last, instructing the diplomatic agents, consuls, and consular agents of the United States to refrain from certifying officially, without the special authority of this Department, as to the status of persons domiciled in the United States and proposing to be married abroad, or as to the law in the United States, or in any part thereof, relating to the solemnization of marriages.

The question to which the circular relates being one of very grave importance, the Department has given it the most careful consideration before and since the issuance of the circular, and has found no reasons to change the conclusions therein stated. Whilst always solicitous to aid in every proper way and by all legitimate means citizens of the United States in foreign lands, the Department is of opinion that in respect to marriage there are more important considerations than that of the mere convenience of the contracting parties.

As was said in the circular, “if citizens of the United States desire to be married before a foreign officer who requires information as to their individual status and the laws of their domicile, the information can be obtained from persons familiar with the facts, or from experts acquainted with the laws of such domicile $ and In matters involving the validity of marriage and the legitimacy of children, too great trouble in this respect can not be taken.”

It appears, however, from your dispatches, as well as from other sources, that in recent years a practice has sprung up in France and certain other countries, of diplomatic and consular officer of the United States giving official certificates not only as to the personal status of Americans desiring to be married abroad, but as to the law of their supposed domicile in respect to the forms of solemnization of marriage.

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This arose in France (as you state in your No. 370) from the fact that it was deemed necessary, under the law, “for an American desiring to be married in France 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.”

But all these requisites could, it is supposed, be proved, and before the practice in question sprang up must have been proved by other evidence than the official certificate of a consular or diplomatic officer of the United States; and although such certification may be the most convenient form of proof, there are, in the opinion of the Department, serious objections to its use for the purpose indicated. Aside from the impropriety of consular or diplomatic officers certifying generally as to the law in different parts of the United States, such certification as you describe requires a judgment upon matters of fact. It is obvious that such a judgment, while it may expedite the performance of a marriage ceremony, is not conclusive as to the validity of that ceremony, and is not known to be receivable as evidence by judicial tribunals before whom the marriage might be called in question. Neither is it known to be receivable under the laws of France by the French magistrates; and this doubt is increased by the statements in your No. 334 that, when the practice of issuing the certificates in question began, they were frequently rejected by the French mayors; that “gradually, however, the practice established itself, and the Duke Decazes, minister of foreign affairs, haying countenanced and recommended it, although unofficially, it was respected by the French authorities; but that even now occasionally a new mayor or an unreasonable subordinate refuses one or more of these papers and compels thereby the legation to ask the interposition of the higher authorities.”

These statements suggest two conclusions: (1) That there is no law that makes those papers competent evidence in France of what they purport to prove; (2) that their reception is a matter of grace, brought about or aided by the unofficial advice of the French minister of foreign affairs, acting, it may be presumed, on the assurance of the minister of the United States, that the marriages of Americans upon such certificates would be valid in the United States.

It is, as stated in Department’s circular of February 8, a principle of international law, recognized throughout the United States, that a solemnization of marriage, valid by the law of the place of solemnization, will be regarded as valid everywhere.

This rule is the principal safeguard of persons marrying abroad, and when it is relaxed in favor of the law of the domicile of the parties it is important that the greatest care should be taken to ascertain what that law is in order that the ceremony may be not only performed, but performed validly. The Department is not, however, aware that the law of France in respect to marriage makes any difference between citizens and foreigners. It was declared at the time of the preparation of the French codes, in answer to the question of the First Consul with respect to marriages of foreigners in France:”Foreigners residing in France are subject to French laws.” (See article on the international law of marriage by the late W. B. Lawrence, XI Albany Law Journal, p. 33.) It is true that the French law may, as to certain elements of personal capacity, employ the law of the domicile as the test of such capacity, but the Department is not informed that under the French law the requirements of a valid marriage between foreigners are in any other respect different from those of a marriage between citizens.

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Now, as to the personal status or capacity of the parties to a projected marriage, there may be both questions of contested or contestable law and of contested or contestable fact; and to neither of these is a diplomatic or consular officer of the United States competent to certify officially. In an instruction to Mr. Fay, minister of the United States to Switzerland, under date of November 12, 1860, Mr. Cass said that when “the inquiry is made in Europe how a marriage must be celebrated there, not only to be valid but to carry with it its proper rights in the United States, no general answer can be given to the question. The answer must embrace not only the provisions of the laws of the United States so far as regards the places governed by those laws, but must embrace also the laws of thirty-three States, besides the Territories.”

It may be observed that Mr. Cass while Secretary of State gave special attention to the subject of foreign marriages, and it was by his instruction, which has never been revoked, that an end was put to the practice of performing marriage ceremonies in legations, in supposed conformity with the law of the place of the American domicile of the parties. So decided was he in the opinion that the lex loci celebrationis should be followed, that on the occasion of the marriage of his own daughter, while he was minister of the United States at Paris, to the American secretary of legation, he did not consider the marriage of the parties at his hotel as sufficient, notwithstanding their extraterritorial immunities, and after taking the advice of the most eminent French lawyers, obliged the parties to be married at the mayoralty and to fulfill all the formalities required of a French citizen by the Code Napoleon. (XI Albany Law Journal, p. 34.)

In your No. 334, of December 31 last, you Inclosed blank forms of the certificates which the legation has of late years been issuing. The first of these states generally that proof having been made to the legation of certain facts as to the birth of a certain person, it is given to take the place of an extract from the register of the civil state. The second certificate states that according to the terms of the American laws the consent of parents is not necessary to a marriage of persons twenty-one years of age. The third form states that according to the American laws the publication of the marriages of Americans, celebrated in a foreign country, is not required at the domicile of the parties in the United States.

The second of these certificates is regarded as the least open to objection, and may indeed be regarded in the light of a certificat de contume, twenty-one years being the age of majority and emancipation from parental and other control all over the United States.

The first is open to the serious criticism that, while it takes the form of an official judgment upon questions of fact, it is not authorized by any law, and while it may expedite the performance of a marriage ceremony, would not, as has already been remarked, necessarily be received by any judicial tribunal before whom the marriage might be called in question as evidence of the facts stated. The third form of certificate states a general conclusion of law, which the Department is not competent to authorize. Publication of bans is a matter under the regulation of the different States and Territories, and this Department certainly is not competent to declare what the law in this relation of those States and Territories either is or may be ascertained by their judicial courts to be. The danger of such an attempt is shown by Circular No. 39, to which you refer as furnishing reliable information. The requisites of a valid marriage in the different States and Territories are sometimes matters of judicial ascertainment as well as of statutory enactment. For example, Circular No. 39, in giving the requisites of a [Page 298] valid marriage in Massachusetts, wholly omits to state what has since been decided by the supreme judicial court of that Commonwealth, that a consensual marriage, without the presence of an officiating clergyman or magistrate, and to which neither party was a Friend or Quaker, is invalid. (Com. v. Munson, 127 Mass., 459.) It has also recently been held in the District of Columbia that a marriage in the District by consent, without some religious ceremony, is not sufficient to make a valid marriage by the law there existing.

In a general note to Circular No. 39, it is stated that in “the several States and Territories penalties are imposed by the statutes for a failure to comply with the requirements as to license or return of certificate; * * * but in none of the States or Territories is the marriage null and void because of a noncompliance with the Requirements of the statute.”

It is, however, understood that by an old statute of North Carolina marriages solemnized without a license first had are null and void, and the same rule has been held to exist in Tennessee, where the statute of North Carolina was in force. (Wharton on the Conflict of Laws, § 173, note 1, 2d ed., 1881.) Whether the same rule would be held to be in force in other places in the United States, under the special provision of statutes, it is not within the province of this Department to declare, and can only be conjectured.

It is important to observe that in recent years the tendency of the courts in the United States has been to require a stricter compliance than formerly with forms and ceremonies in the solemnization of marriages. As population has increased and the difficulties of complying with forms has been diminished, considerations of convenience have been given less and less weight. And, on the other hand, there has been a growing tendency, both in legislation and in judicial decision, to place some check on inconsiderate and informal alliances.

Under these circumstances it would be highly inexpedient for this Department to undertake to declare in advance what may be the decisions of the judicial branch with whom the sole power to decide in these important matters rests. The function of delivering judgments whether orally or in the form of certificates is wholly judicial, and is not under oar system confided to the executive branch. The authentication of a statute or other matter of record may be the duty of an executive officer, but not to declare its effect.

Holding these views, it would be a breach 0f duty in this Department to authorize its diplomatic or consular agents to issue, in matters which from the nature of things are uncertain, certificates which, if erroneous, would be productive of consequences so disastrous as the illegitimation of marriages, however innocently solemnized, on the faith of such certificates, and the bastardizing of the issue of such marriages.

All these serious responsibilities and dangers are avoided by the parties conforming to the lex loci celebrationis

I am, etc.,

T. F. Bayard.