Mr. Denby to Mr. Bayard.
Peking , February 6, 1889. (Received March 26.)
Sir: In your dispatch, No. 375, of December 5, 1888, relating to the question of marriage in China, you say:
I am at a loss to understand why you should use the term “perform the ceremony” in connection with the consul.
I have the honor to state that my authority for this statement will be found in section 386 of the Consular Regulations of 1888. The language is this:
It is held also that, in respect to a consular officer in such countries (meaning the East) the right to perform marriage is incidental to the judicial office, and consequently that he may solemnize the ceremony if it is the wish of the parties that he should do so.
The tenor of my dispatch, No. 737, of October 19, 1888, is clearly to the effect that in the case stated I was not to make any official “recognition” whatever, but was simply to express my opinion that the marriage had before the United States Consul was a valid marriage, so far as the American party was concerned.
You agree with me that the validity of such a marriage “being exclusive sexual union for life” would be “in conformity with the great body of judicial authority in the United States.”
I thoroughly apprehend the difficulty which, under our form of government, attends the certain determination of questions affecting the validity of marriages. But it is a “condition and not a theory that confronts us” in China. A well-informed lawyer would know generally what the law governing marriages was. Certainly he could acquire all the information necessary to enable him to determine, in almost every case, whether the parties were competent to marry. Assuming that the conditions authorizing the marriage existed, the question of how to perform the ceremony would alone remain.
As far as the marriage of Americans is concerned, there is no difficulty whatever. There is in China a large American resident population, and marriages between them are frequent. Usually, in the presence of the consul, the ceremony is performed by a minister of the gospel, and no one has ever questioned its validity, and no court, I think, ever could, unless some common law or statutory disabilities existed.
Questions affecting mixed marriages are different, because the laws of two jurisdictions must be complied with. The only mode of satisfying the consciences of both parties is the one suggested by me, that is, a double marriage.
While the executive can not determine legal questions, it can properly control the conduct of its own officials in matter of procedure relating to marriages as to all other subjects. Without defining the power of consuls, it occurred to me that it would be proper to suggest to consuls that in case they were satisfied that two parties, one of American nationality and one foreign, were competent to marry, they might authorize the ceremony to be performed, provided that the Consuls of both nationalities joined in the performance thereof.
In the particular case stated, the parties started to Tientsin to be married but finally agreed to disagree, and my work was “love’s labor lost.”
I have, etc.,