Mr. Winchester to Mr. Bayard.
Berne, February 4, 1887. (Received February 18.)
Sir: In my dispatch No. 62, 8th of June, 1886, the Department was advised that the officers of the état civil in Switzerland declined to accept the circular prepared and issued by this legation, by and with the advice and consent of the Department, concerning marriages of citizens of the United States in Switzerland as satisfactorily meeting the requirements of the Swiss law of December, 1874, concerning the social state, in that it fails to declare the publication of the bans, as required under the Swiss law, is not demanded by the laws of the country of origin (citizenship) of the parties. The object of the circular was to explain the impossibility of there being a literal compliance with that provision of the law concerning the publication of the bans, owing to the Status of the question of marriage in the United States, and to persuade the officers of the état civil that such literal and technical compliance as to American citizens was not necessary to insure the substantial intent and purpose of the law, the unquestioned recognition and validity of the solemnization, if otherwise according to the law of the country. The whole difficulty resulted from the confusion of conflicting circulars upon the question issued by this legation. Mr. Fish cited section 4082, Revised Statutes of the United States, as determining the conditions of marriage of all citizens of the United States in foreign countries, and gave the law of the District of Columbia fixing matrimonial capacity. Mr. Cramer confined his circular to the simple statement “that a previous publication in the United States or any State or Territory thereof of a proposed marriage is not required by the laws thereof,” and “that a marriage performed in accordance with the Swiss federal law of 1874, if performed in the presence of a consular officer of the United States, will be valid to all intent,” etc. Having serious doubt as to the correctness of the view taken of the question by Mr. Fish or Mr. Cramer in their respective circulars, even before the receipt of instructions from the Department, I had made material modification of the statements I found to be in use by the legation, and referred the matter to the better judgment of the Department, and a form of circular was agreed upon which, it was thought, would subserve every purpose. It failed to do so, as stated in my dispatch of June, 1886. Not feeling justified to make any additional statement, the consuls were instructed that in every case where the etat civil exacted the declaration that the publication of the bans was not necessary under the law of the place of citizenship, this statement should be made only after communicating with the proper [Page 1058] officer of the state whereof the parties claimed citizenship; and being thus officially advised of the law, I was not entirely satisfied on the point of a consular officer certifying to the law of a given state, even under the conditions above named, and this doubt was largely due to general views of the main question contained in previous dispatches from the Department. Therefore my dispatch of June, 1886, desired the decision of the Department as to the right or the propriety of a consul giving the certificate indicated. To this no answer has been received, and the consuls continue to pursue the course named. Thinking that an appeal to the high federal council might secure a solution of the trouble, on the 18th of June, 1886, a note was addressed to that body, setting forth fully the case and respectfully urging such modification of the law as might be found practicable. To this note an answer has been received of date February 1, 1887. A copy of the circular issued by the legation and heretofore approved by the Department is inclosed.
The federal council indicates a willingness to instruct the cantonal officers to grant the exemptions desired from the provision as to publication of bans, when assured by the Department of State as to the exact scope and extent of section 4082, Revised Statutes, and that the publication of the bans is not required except in a few States, and that the failure to publish the bans by citizens of said States, married outside of said States or in foreign countries, would not invalidate the solemnization when complying with the law of the place of celebration. It is earnestly hoped the Department may see its way to satisfy the request of the federal council and put at rest this vexed question. In dispatch No. 23, November 14, 1885, the Department indicated Pennsylvania and Connecticut as requiring previous publication of bans. The secretary of the former State has advised this legation that it is not necessary.
I am, etc.,