Mr. Bayard to Mr. Denby.

No. 375.]

Sir: I have to acknowledge the receipt of your dispatch No. 737, of October 19, 1888, which has been considered with the care and interest which its importance and the ability shown in it call for. In it you state that a marriage being in contemplation in China between Mr. J. B. Thompson, a subject of Great Britain, and Miss Vetter, a citizen of the United States, both missionaries of the American board of commissioners of foreign missions, and it appearing desirable that the marriage should be celebrated at the chapel of the British legation at Peking, you were informed by the British minister that in order, in case of a mixed marriage, to enable the ceremony to be there performed, it would be requisite for you, as minister of the United States, to certify that the mixed marriage in question so proposed to be celebrated at the British legation “will of itself, and without any preliminary or other [Page 83] ceremony, be recognized as legal and binding in the United States.” This certificate you inform me, you declined, to give. Your action in this respect was proper and is approved.

You proceed in your dispatch to refer to recent instructions from the British foreign office, a fair construction of which you state to be, 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 which event the certificate above referred to 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.”

You then state that “if the American consul shall perform the marriage ceremony between these persons I shall certainly ‘recognize’ the validity of the marriage.”

I am at a loss to understand why you should use the term “perform the ceremony” in connection with the consul. The act of Congress of June 22, 1860, refers only to marriages in the presence of a consul; and it affects, as you have already been instructed, only persons domicited in the District of Columbia or the Territories. If, however, you should “recognize” as valid consensual marriages in China, such marriages being exclusive sexual unions for life, you would be acting in conformity with the great body of juridical authority in the United States. This, I presume, is what you virtually proposed to do.

The marriage to which you refer was to be unquestionably of the class stated, and while to make it valid it is not necessary that the ceremony should be performed by the consul, yet the fact that the consul is able to attest the fact that the marriage took place will add to the solemnity of the proof by which it is hereafter to be sustained. If the consul’s “officiating” at the ceremony tends to relieve any difficulties as to the future British solemnization, there is no reason why he should not so officiate) and though neither under the act of Congress nor by the principles of international law is his officiating essential, yet you would be right as a matter of abundant caution to approve of his taking this course.

You are entirely correct in saying that it is the position of this Department that the rule of the ubiquity of the lex loci celebrationis in marriage applies only to countries in which marriages are by law monogamous. But great difficulties lie in the way of compliance with your suggestion that instructions should be issued by this Department” defining the power of consuls to solemnize marriage where the contracting parties are an American and a foreigner.” To this I have to reply that the marriage of citizens of particular States being, under the Constitution of the United States, exclusively under the control of the States in which they are domiciled, no act of Congress and, a fortiori, no instruction of this Department can operate to effect such marriage. That the British foreign office has taken the ground that legislation of this character, even when it rests on the alleged extraterritoriality of embassies in which such marriages are solemnized, has not necessarily any effect on the subjects of foreign states, you correctly state; and the cases to which you refer in which in France and Switzerland the ubiquitous validity of such ceremonies had been denied have been already brought to the notice of this Department. The attitude assumed in France and Switzerland towards British legislation of this character bears equally on similar legislation or diplomatic regulation coming from the United States. For the Department to advise marriages which [Page 84] might thus be declared invalid would be to expose citizens of the United States to peril in the most sacred as well as the most important relations.

You will remember, also, that the difficulties which beset questions of this class do not relate merely to the marriage ceremonial. They involve the question of matrimonial capacity; as, for instance, whether to the validity of a marriage family consent is essential. On this topic there is a conflict between local jurisprudences which it is not within the province of this Department to determine. By the common law of Christendom, brought with them to this country by its European settlers, want of family consent did not by itself invalidate a marriage, however much it might expose the parties concerned in the marriage to ecclesiastical censure. But since the time when this common law was thus accepted in this country as the basis of our system several leading European Governments have made family consent essential to the validity of the marriage of minors; and by these Governments this disability is held to adhere to their minor subjects wherever they may travel. As to the disability attached to a prior marriage alleged to have been dissolved by divorce, the diversity of legislation is even greater, and the permanency of disabilities of this class has been maintained with peculiar rigor by those sovereigns by whom it is imposed. Nor, to revert to the disability caused by the want of permission of home local authorities, can we forget that statutes of this class are imposed by several European States as matters of high domestic polity, and that the position taken by them is that this polity would be overridden if their subjects, by crossing a boundary line, could bind themselves and their country by marriages solemnized in evasion of its laws. We may deplore this conflict of jurisprudences in a matter of so great importance and interest as marriage. But it exists; and no instructions issued by this Department can validate, in a European country, marriages in China by domiciled subjects of such European country when such marriages are by its municipal law invalid.

I am far from retracting the opinion expressed by me in the personal instructions issued shortly after I assumed my present duties that to the general rule that the lex loci prevails in determining the form of marriage, marriages in barbarous or semi-barbarous or Mohammedan lands form an exception, and that consensual marriages in the last-named countries by citizens of the United States, or by Europeans will, if duly authenticated, be regarded as everywhere valid. But to this opinion two important qualifications are to be attached. The first is that these views are expressed as a matter of executive advice and not of judicial decision. The second is that the question of form of marriage is to be separated from that of capacity to marry, as to which the prevalent view is that the lex domicilii prevails. It is not for me to predict what may be the future judicial rulings on this difficult question of the law regulating matrimonial capacity in cases of mixed marriages in China or in Mohammedan countries. My duty is to point to the questions arising as to such marriages, and to instruct our diplomatic and consular representatives to advise Americans who desire to contract such marriages to take such precautions as may secure the marriage from impeachment in the country in which is domiciled the party whom such American proposes to marry.

I am, etc.,

T. F. Bayard.