No. 663.
Mr. Winchester to Mr. Bayard.

No. 97.]

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.,

Boyd Winchester.
[Inclosure in No. 97.]

Circular from the legation of the United States of America at Berne concerning marriages of citizens of the United States in Switzerland.

To___ ____:

Applications are frequently made to this legation by the cantonal or communal authorities, as well as by private individuals, for certificates as to the validity of marriages of citizens of the United States in Switzerland, and these applications are generally coupled with a request that the legation should certify that the marriage is, valid according to the laws of the United States, and that it will be recognized as valid by the laws of the State or Territory from which such citizen comes.

It is not within the province of this legation either to certify officially as to the laws of the different jurisdictions in the United States, or to decide judicially whether any particular marriage is valid or not. The duty of this legation is confined to giving advice.

It is enacted by a statute of the United States that “marriages in presence of any consular officer of the United States, in a foreign country, between persons who would be authorized to marry if residing in the District of Columbia, shall be valid to all intents and purposes, and shall have the same effect as if solemnized within the United States,” as, under the Constitution of the United States, the States have exclusive power of determining the conditions of marriage and divorce as to persons domiciled within their borders. This statute only covers marriages by persons domiciled in the District of Columbia or in the Territories. The general rule of law in the United States, as well as in European countries, is that a marriage solemnized in a foreign country according to the law of that country is valid. This is the rule as [Page 1059] to the ceremony. Matrimonial capacity is generally determined by the law of the place of domicile of the party in question. From what has been said it appears that a marriage solemnized under and in accordance with the Swiss federal law, concernant l’étai-civil, la tenuc des registres qui s’y rapportent et le mariage, of December 24, 1874, would generally be valid to all intents and purposes in the United States. By way, however, of precaution, it would be well to have a consular officer of the United States present at the ceremony.

This legation can not undertake to procure certificates as to the laws of the different States and Territories. Persons desiring such certificates should apply to the proper officials of such States or Territories, either directly, or, in the case of Swiss citizens, through the officials of their own country.

Boyd Winchester,
Minister Resident and Consul-General of the United States of America near the Swiss Confederation.