No. 262.
Mr. Bayard to Mr. McLane .

No. 276.]

Sir: I inclose for your further information in reference to the question of official certificates as to the domiciliary laws of this country for Americans desiring to be married abroad, a copy of a dispatch from our consul-general in Paris (No. 462 of the 18th of March last), together with my instruction in reply to the same.

I am, etc.,

[Inclosure 1 in No. 276.]

Mr. Walker to Mr. Porter .

No. 462.]

Sir: I have to acknowledge the circular instructions of the honorable “Secretary of State, dated February 8, ultimo, in relation to the certification by diplomatic and consular officers of the American law and of the particular facts bearing upon American citizens desiring to contract marriage in foreign countries. At the conclusion of the circular it is ordered by the Secretary that “it is not competent, without special authority of this Department, for diplomatic agents, consuls, or consular agents to certify officially as to the status of persons domiciled in the United States and proposing to be married abroad, or as to the law of the United States or any part thereof relating to the solemnization of marriages.”

In view of this order I respectfully ask that I may be specially authorized by the Department to give certificates on “the application of American citizens desiring to marry in France, in which shall be officially declared the status of such citizens and the law of their State of American domicile relating to the solemnization of marriages.

I make in his application for the following reasons: As I have already advised the Department in my dispatch No. 452, dated January 7, 1887, the practice of giving certificates to American citizens intending to marry in France has existed at this consulate for many years past. Such certificates have embodied declarations both as to the status of the applicants and as to the law of their American domicile relating to marriage.

That the Department should carefully inquire into the competency of a consular officer authorized to give certificates of this character is a step the propriety of which I fully recognize, and to such a scrutiny I am quite ready to submit myself.

I am a lawyer of forty years’ standing at the bar of Massachusetts, where I had for many years a considerable practice; I am a bachelor of laws of Harvard University, and I am a counselor of the Supreme Court of the United States. I have at my own expense, since I came to Paris, purchased the latest revisions of the statutes of the most important States-of the Union, such as New York, Pennsylvania, Massachusetts, [Page 357] Louisiana, California, etc., and I have access to those of all the States at the law library of the ministry of justice, to which I resort in all doubtful cases; I have also general manuals which give the changes made in these laws from year to year. With this education, experience, and equipment I believe myself to be more competent than any French magistrate or public officer can be, and as competent as any American lawyer in Paris, to ascertain and certify the exact status and capacity for marriage of American citizens desiring to marry here.

The purpose of the Department’s action is to protect American citizens from illegal marriages abroad. I do not believe that there is any person now in France more competent to do this than myself.

I have not in any certificates heretofore given presumed to state a general rule of American law in respect of marriage, except in those particulars on which there is a unanimity of legislation. As for example in the capacity of persons of full age to marry without consent of parents. In all other respects I certify the law of the actual State of American domicile.

I apprehend that a very great hardship would be imposed on American citizens if if they were called upon to prove their birth and parentage in a foreign country, without the intervention of the diplomatic or consular officers of their country. It is often impossible to obtain witnesses to these facts. But the diplomatic or consular officer can always exercise the same care in obtaining the facts by declarations and the examination of the parties themselves, which is exercised by licensing officers, magistrates, or clergymen in the United States, and they are much better judges of such evidence than any foreign functionary can be. Moreover it is, as I conceive, a function especially belonging to consuls by international law to make such certificates. In proof of this, I beg to refer again to the recent treaty on the subject of marriage between France and Great Britain, and inclose herewith translation of the instructions transmitted to French consuls in England by the minister of foreign affairs, under date of December 23, 1884.

By the law of October 23, 1883 (Lois Usuelles), French consuls are made “offieiers do l’état civil” (officers to receive, record, and certify births, marriages, and deaths), in respect to their countrymen in foreign countries.

The Revised Statutes of the United States recognize the official relation of consular officers to marriages of Americans taking place within their jurisdiction by providing (section 4082) that the marriage so solemnized between persons who would be authorized to marry if residing in the District of Columbia may be certified to the Department of State and shall have the same effect as if solemnized within the United States.

I beg also testate that a registry of births has been kept at this consulate since 1830, and perhaps from an earlier period. It would seem, therefore, that the functions of an “officer of the civil state” so far as consistent with American legislation have been accorded to consuls both by statute and by usage. If I rightly understand the circular instructions of February 8, it authorizes a consular officer to certify that a solemnization of marriage valid by the law of the place of solemnization will be regarded as valid anywhere (that is, in the United States, the country of domicile). In respect of evidence to be given by consuls, either by oral testimony or where that is not required, by certificate respecting American law. I understand that this is still permitted to be done where the consul is an expert as to such a law. There is, however, a limitation in the circular which I respectfully suggest may properly be omitted. This limitation is covered by the words “when called upon in a court of justice.” In point of fact most applications for certificates made at this consulate are at the instance of notaries, avoués, or other legal advisers of Government bureaus, or of banks or other incorporated companies, and relate to such questions as the power of married women to mortgage their separate property, to receipt for legacies, to sell and convey real and personal property, etc., of executors and administrators to receive and receipt for, sell and give title to, property in France.

In all such cases the certificate is based upon the statute law of the State of domicile in the United States in the case of married women, or of the State where the letters testamentary or of administration have been granted when the powers of such functionaries are in question.

I suggest, therefore, that the limitation to evidence before, or certificates given to, a court of justice shall not be insisted on.

Great respect is here paid to consular certificates in such cases, and if the granting of them were prohibited much embarrassment would be imposed on American citizens doing business in France.

The certificate of an American lawyer, however competent, will not be received unless the consular or diplomatic representative of his country also certifies that the lawyer is in regular standing and competent to give the certificate and that the opinion given by him is good law.

With high respect, I am your obedient servant,

George Walker,
[Page 358]
[Inclosure 2 in No. 276.—Translation.]

Marriage between French and English.

Sir: In consequence of the difficulties that have arisen with regard to mixed marriages celebrated in Great Britain between French citizens and English subjects, the Government of the Republic has, in concert with that of Great Britain, sought means for preventing certain irregularities in the accomplishment of the formalities prescribed by French law, the omission of which renders such marriages voidable.

It has been agreed by diplomatic correspondence between the two cabinets that consuls of France in England shall be henceforth authorized to deliver a certificate which, in order the better to secure the validity of mixed marriages shall certify the accomplishment of the formalities in question. You will find annexed hereto a copy of the certificate and I beg you, sir, to comply upon the occasion presenting itself with the terms of the adopted agreement. In case you are called upon to deliver a certificate of this character please charge therefor the fee Bet forth in Article 174 of the consular tariff, except in the case provided for in number one of the general observations regarding Article 1 of the said tariff. You will please also open a special register, in which you will transcribe the certificates, which interested parties may ask of you, in the order in which you deliver them.

Permit me, sir, to assure you of my highest consideration.

Jules Ferry.

[Certificate annexed to the instructions of the premier, minister of foreign affairs.]

The consul of France at ____ declares:

That French citizens may not marry without having previously published in France the notices of the marriage required by law, and without having obtained the consent of their parents or such other persons as are set forth in the law.
That from the papers and documents produced:
It appears that M— (surnames, Christian names and profession), born at, the—, residing at—who proposes to marry M— (surnames, Christian names, and profession) —born at ____, the ____, residing at ____, is of French nationality.
That the notices of the proposed marriage prescribed by the law of France have been duly published at the domiciles specified in the law
That the party to the proposed marriage has produced papers (specify them) which prove either that he has obtained the consent of the parents or relations, whose consent is necessary, or that the relations whose consent was necessary are dead; or that the actes respectueux have been duly served on the parents, the which service takes the place of consent (the consul may here set forth from what persons consent has been obtained,)
That no opposition to the marriage has been made to date, and that if none is made prior to the celebration of the marriage the parties would be permitted to marry in France.

The consul declares further, that a marriage celebrated in a foreign country between a French citizen and an alien is valid if it has been celebrated in conformity to the laws of their country, but on the following conditions:

That the publications in France and the consent of the persons required by law shall have preceded the marriage. (Articles 148 to 159 of the Civil Code.)
That the parties be of the age prescribed by law—eighteen for the man and fifteen for the woman. (Article 144 of the Civil Code.)
That the consent of the parties be absolutely unconstrained (Article 146 of the Civil Code.)
That neither of the parties be already bound by a subsisting marriage. (Article 147, Code Civil.)
That the proposed marriage do not violate the provisions of the law prohibiting marriage between relations and connections within defined degrees.* (Articles 161 to 163, Civil Code.)

The consul further declares that an alien woman who marries a citizen of France becomes French by the mere fact of marriage, and that all children born of such marriage, even abroad, are French. (Articles 12 and 10, Civil Code,)

In witness whereof we have delivered the present certificate to certify that which is set forth therein

[Page 359]
[Inclosure 3 in No. 276.]

Mr. Bayard to Mr. Walker .

No. 231.]

Sir: I have before me your No. 462 of date of the 18th ultimo, and note your comment upon a circular order lately issued by this Department that “fit is not competent, without special authority of this Department, for diplomatic agents, consuls, or consular agents to certify officially as to the status of persons domiciled in the United States and proposing to be married abroad or as to the law of the United States or any part thereof relating to the solemnization of marriages.”

Among the causes which induced this order were statements made to this Department that not only had the law as to marriage in the United States been erroneously certified to by its representatives abroad, but that for such certificates excessive fees had been exacted. Printed certificates had also been issued by certain United States consuls in Europe which stated, without qualification, that in no part of the United States are bans of prior publication or the assent of parents or the presence of any particular civic or ecclesiastical official essential to the due celebration of marriage. I need scarcely say that such certificates are on their face erroneous.

You remark that the practice of granting certificates as to both status and marriage laws “has existed at this (your) consulate for many years past,” and, after saying that you recognize “the propriety” of the Department carefully inquiring “into the competency of a consular officer authorized to give certificates of this character,” you proceed to give reasons why you, from your prior experience and knowledge and from the books at your command, are to be considered as “competent” to give such certificates.

It is evident that you have misapprehended the meaning and application of the word “competent” as used in the circular order. It had no bearing upon the individual qualifications of the parties addressed nor their capacity as legal experts, but relates solely to the extent of their official functions and their official capacity or competency to perform certain acts. No reflection was implied or intended upon your professional attainments as a lawyer nor your ability to give reliable opinions in the line of that profession.

But, as it is not within the competence of any officer of the executive branch of this Government to create new law or in any sense to exercise legislative powers, it is equally outside of executive duty or power to invade judicial functions and to certify construction of laws. The status of the parties to a projected marriage may be a matter of contestable fact, and equally the legal requisites of marriage in a particular jurisdiction may be a matter of contestable law. To neither of these is a consul of the United States legally competent to certify.

It is proper for this Department and its representatives to advise citizens of the United States proposing to marry in foreign countries to comply in all respects with the lex loci, of the solemnization, but it can not authorize its representatives to certify to disputed or disputable facts, nor as to the condition of law throughout the United States. Certificates of such a character haying no legal authority could have no effect whatever on the judiciary before whom such questions of law or fact would necessarily come for decision. Many illustrations could be given of the danger of exposing marriages contracted abroad in reliance upon such official certificates to being invalidated by the subsequent judgments of courts having jurisdiction of the parties and the contract.

The order in question is intended to restrain the official action of consuls, but in no degree to prohibit unofficial advice and counsel to individuals or giving personal opinions or testimony as to law or facts with which the consuls themselves may be familiar. The inhibition applies only to official certification of facts or law outside the scope and function of official duties and power.

I am, sir, etc.,

T. F. Bayard.
  1. It should be observed that inasmuch as dispensations will not be given to aliens in Franco on this score, it is highly probable that French courts would not admit the validity of a dispensation accorded to a French citizen by a foreign Government.