To diplomatic and consular officers
Washington, February 8, 1887.
Gentlemen: Information has reached the Department that it is the practice with some of its diplomatic and consular representatives to issue, at the request of American citizens proposing to marry abroad, certificates as to the freedom of such parties from matrimonial disabilities, and as to the law in the United States regulating the mode of solemnizing marriage.
Waiving other objections to certificates of this class, it is enough now to say that the practice of issuing them is objectionable, because they may contain erroneous statements which may be productive of difficulty.
Diplomatic and consular agents can ordinarily certify in respect to the matrimonial disabilities of individuals (e. g., as to prior marriage, or parental control) upon hearsay only, and therefore unreliably.
In certificates as to the laws in the United States regulating the solemnization of marriage the possibilities of error are great and manifest. Of these laws no accurate or reliable summary could be given. It is essential, for instance, to the validity of a marriage solemnized in Massachusetts and other New England States, that it should be solemhized by a local clergyman or magistrate after a license taken out in the office of the town clerk, which is virtually a publication. In other States [it is alleged] it is necessary to the ceremony that it should be solemnized by a minister of the gospel. In most States a marriage by consent so far as concerns ceremonial form, is valid; but even in these States law is frequently undergoing alteration.
Serious consequences may ensue from errors made in this relation in diplomatic or consular certificates. A foreign local official may solemnize a marriage on such a certificate, but when a question involving the validity of the marriage arises in a superior court of law, it may well be decided that such certificate can not prove matters of fact, nor the law in that particular State, Territory, or District of the United States in which the parties were domiciled.
The issue of these certificates is not authorized by statute nor by the instructions to diplomatic agents or consuls.
The withholding of such certificates may prevent serious disaster. 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 marriages and the legitimacy of children, too great trouble in this respect can not be taken.[Page 1134]
To the position that it is not competent for diplomatic or consular officers to state the law of the United States as to marriage, there is, however, one important exception to which your attention has been heretofore directed. Throughout the United States is recognized the principle of international law that a solemnization of marriage valid by the law of the place of solemnization will be regarded as valid everywhere. Hence, where persons domiciled in any part of the United States propose to be married in a foreign land, the forms of solemnization prescribed by the law of the domicile are of con sequence only when the law of such foreign land adopts those forms as sufficient.
Nothing in this order is intended to preclude a chief diplomatic representative of the United States, having obtained permission of the Department for that purpose, from certifying as to the law of any particular jurisdiction in the United States when called upon by a judicial tribunal, or a consul, who is an expert as to such law, from testifying thereto when called upon in a court of justice, or from certifying thereto when excused from testifying in such court.
I am, etc.,
Ordered by the Secretary. It is not competent, without the 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 in the United States, or in any part thereof, relating to the solemnization of marriages.