Mr. Denby to Mr. Bayard.

No. 737.]

Sir: I have the honor to report that the question of the issuing of marriage certificates by diplomatic officers abroad has finally reached China.

The Department has always most correctly recognized questions relating to the validity of marriages as being of grave importance. I therefore report for your information the latest phase of this question which has arisen here.

Mr. J. B. Thompson is a missionary of the American board, located in Shensi. He is a subject of Great Britain, born in Newfoundland. He made a contract of marriage with Miss Vetter, who is a citizen of the United States, having her home in the State of Missouri. She is a missionary of the same society. Some weeks ago Mr. Thompson arrived here from Shensi. Miss Vetter also arrived a few days ago from the United States. The parties desire to return to their station before the winter sets in. They are anxious for an immediate marriage.

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Under the British statutes a delay of thirty days’ residence in China is necessary. Banns are also to be published twenty-one days before the marriage can be solemnized by a consul. Some officials contend that the time may run concurrently. My opinion is that the thirty days must expire before publication of the banns. For the reasons stated the parties wish to escape the delay.

Under the direction of her British Majesty’s minister a marriage under certain circumstances can take place at the British legation without delay.

Mr. Thompson consulted me. I represented to him that for the tranquillity and safety of the lady the marriage should take place at the British legation. Under the statutes of Great Britain a marriage solemnized at a legation of that country is valid everywhere in the Queen’s dominions.

I did not myself doubt that such a marriage would be held valid in the United States; but I did doubt whether the marriage of a male British subject to an American woman at the United States consulate would be held valid in Great Britain.

At all events, in a matter of such grave importance I desired to be on the safe side, and would therefore in no manner intervene to assist the parties to be married by or before the American consul unless the marriage were to be followed by another marriage between the same parties at the British legation and according to British law.

I advised him to apply to Sir John Walsh am for permission to be married at the British legation. Sir John promptly replied verbally that he would direct the marriage to be solemnized at the British chapel if I, as minister of the United States, would certify that the mixed marriage which it is proposed to celebrate at the British legation, will, of itself and without any preliminary or other ceremony be recognized as legal and binding in the United States.

In an interview with Sir John, in which the whole matter was discussed, I showed him your circular (No. 699, F. R., 1887, p. 1133). This satisfied him that I had no authority to issue such a certificate. But I suggested to him that if his Government insisted on a certificate from me and my Government ordered me not to issue such a certificate, the marriage was evidently blocked and prevented, and we should pursue our investigations further, in the hope that we could find a solution, of the difficulty.

I proposed to him that the parties should first be married before the American consul, and afterwards at his legation, if that were possible. After further consideration an agreement was arrived at.

It appears that a circular had been issued from the British foreign office, July 31, 1886, to the effect that two cases of mixed marriages between British and Swiss citizens, duly celebrated at Her Britannic Majesty’s embassy at Paris, wherein the customary procedure had been followed to the letter, were declared null and void in Switzerland.

The procedure hitherto followed was to obtain, from the representative of the foreigner’s country, a certificate that the marriage at the British embassy should be deemed valid by the laws of his nation.

The ground on which the said marriages were declared null and void was that the validity of mixed marriages celebrated at the British embassy at Paris was not recognized by French law. To meet this objection, before authorizing any mixed marriage at any legation, the minister is to require that a previous marriage shall take place according to the lex loci, and that a certificate, under the hand of the representative of the foreigner’s nation, shall be obtained, that such a marriage is recognized as legal and binding by the laws of his country.

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Ina circular of the British foreign office, dated July 14, 1887, the stipulation that a marriage according to the lex loci shall previously be celebrated, is modified for a form of marriage that is recognized as legal and binding by the law of the nation to which the foreigner belongs.

If, however, the minister is satisfied that such previous marriage is impracticable, he may, at discretion, dispense with it, on being furnished with a certificate, under the hand of the representative of the foreigner’s nation, that the mixed marriage, which it is proposed to celebrate at the British Legation, will, of itself, and without any preliminary or other ceremony, be recognized as legal and binding by the laws of such nation.

A fair construction of these instructions is that the British Minister may allow a mixed marriage to be solemnized at the legation, if a form of marriage, that is recognized as legal and binding by the law of the nation to which the foreigner belongs has previously taken place. In that event the certificate is dispensed with, and “a recognition” of the validity of the previous marriage by the officials of the foreigner’s nation is all that is required.

If the American consul shall perform the marriage ceremony between those persons I shall certainly “recognize” the validity of the marriage. The marriage at the English legation will follow, and I am entirely certain that the double marriage will be firm and effectual in the United States and Great Britain, and I believe everywhere in all the world.

This understanding between Sir John Walsham and myself makes this marriage possible, and does not, in my opinion, in anywise controvert the principles enunciated in the circular cited.

There is a vast difference between “recognizing” the validity of a marriage had before an American consul and giving the certificate which is prohibited in Foreign Relations, 1887, page 1133. The prohibited certificate goes to the validity of the marriage which is solemnized in a foreign jurisdiction, and not to the validity of marriages solemnized before our own consuls. I give no certificate whatever. The consul furnishes the usual marriage certificate, form No. 87, Consular Regulations, 1888. On the faith of that certificate and of my verbal statement, recognizing the validity of the consular marriage only, the second marriage ceremony will be performed in the British legation according to British law.

I trust that this solution of a grave difficulty, which has made two lovers happy, will be approved by both the governments which are interested therein.

It may not be inappropriate to submit a few observations on the general subject as affecting China.

You have repeatedly enunciated the general doctrine to be that the lex loci governs questions involving the validity of marriage. You have, however, in your memorandum attached to your dispatch to me, No. 343, of August 18, 1888, limited this principle to the laws of those countries which recognize monogamous marriages, and not polygamous marriages. It is apparent, therefore, that the lex loci in China can not have any controlling effect, because polygamous marriages are recognized as valid here.

The doctrine of ex-territorality under which, except as to real estate, the laws of each nationality accompany its citizens or subjects in China, also tends to do away with the effect of the local law marriage laws, as far as foreigners are concerned.

For reasons, therefore, more influential in China than in Europe, it is proper to substitute for a marriage governed by a “lex loci, a form of [Page 78]marriage recognized as binding in the United States. It is to be remarked further that, as far at least as I can find, there is nothing in the Consular Regulations relating to mixed marriages. Under section 383, Consular Regulations, 1888, marriages between persons domiciled in the Territories of the District of Columbia, are authorized. Under section 386 persons domiciled in any State may be married by the consul, if the State laws are complied with.

Compliance in China with bare legal forms, as required by State laws, is clearly impossible. Licenses can not be procured; banns can not be published. There is little difficulty in holding that the penalties imposed for failure to comply with these statutory requisites do not affect the validity of marriages in China. Nor is there any trouble in holding that a consul who may lawfully unite in marriage two Americans, may also lawfully unite in marriage one American and one foreigner. The American is bound by the laws of his country, the foreigner by his voluntary submission to the laws then and there complied with, and by his civil contract. I do not doubt that, generally, in the States of the Union, this conclusion of law would be arrived at. But it can not be claimed that the binding force of such marriages would be universally sustained in other countries.

It seems to be important that, so far as possible, these questions should be set at rest by instructions to representatives of the government abroad. A regulation defining the power of consuls to solemnize marriage, where the contracting parties are an American and a foreigner, would greatly simplify the subject. Until some such regulation is formulated I shall, out of abundance of caution, in cases of mixed marriages, adhere to the decision herein reported,—unless disapproved by you,—that two marriage ceremonies be performed—one before the American and one before the foreign consul.

Should, in this particular case, there be other delays or obstacles, I will report them.

I have, etc.,

Charles Denby.