Mr. Runyon to Mr. Olney.
Berlin, November 15, 1895. (Received Nov. 30.)
Sir: Application is made to me by the United States consul at Munich for advice as to whether a consul may certify that a marriage valid in Germany will be valid in the United States. The forms of certificate which have been submitted to me are such as certify that the marriage between the parties, designating them by name, if valid in Germany will also be valid in the United States. The form of the certificate, however, is not in particular the subject of this present consideration. It is very important to an American who intends to marry a German here that it be made known by certificate to the authorities by whom the marriage is to be solemnized that the proposed marriage will be valid in the United States if valid here. Such certificates were made under the instruction of Secretary Bayard of February 8, 1887, in which he said:
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 [Page 537] 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.
This has been understood to warrant the making of a certificate accordingly as to the recognition in the United States of the principle of international law referred to. It is to be observed, however, that the instruction does not provide that a certificate may be made, but (in terms) that it is competent for diplomatic agents or consular officers to state that the principle mentioned is recognized, etc.
Section 390 of the Consular Regulations is as follows:
It is not competent without special authority from the 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 any part thereof relating to the solemnization of marriage.
See, also, the note thereto which refers to a MSS. instruction of Secretary Bayard to Mr. Walker, of April 7, 1887 (about two months later than the instruction above mentioned and quoted from), and MSS. instructions to consuls. I have not in my possession, nor have I been able to find, the instructions to consuls. It will be seen by paragraph 390 of the Consular Regulations, diplomatic agents, consuls, and consular agents are forbidden to certify “as to the law in the United States, or any part thereof, relating to the solemnization of marriages.”
It is said that recently the United States consul at Nuremberg asked permission of the State Department to issue a certificate “that a marriage solemnized in Bavaria will hold good and binding in the United States,” and he was instructed by the State Department that a consul is not permitted to make such a certificate, and that he could not safely do so for want of knowledge, and he was referred to section 390 of the Consular Regulations and the note thereto before mentioned. Neither the instruction of February 8, 1887, nor paragraph 390 of the Consular Regulations prohibits the statement of the condition of the law as the diplomatic agent or consul or consular agent may know it. The note to paragraph 390 expressly says that that section is intended to restrain the official action of consuls, but in no degree to prohibit unofficial advice and counsel to individuals, or giving personal opinions or testimony as to laws or facts with which the consuls themselves maybe familiar. It also says they are not authorized to certify “as to the condition of law throughout the United States.”
The only matter to be considered is whether, under the instructions, they may certify as to the prevalence in the United States of the principle of international law in regard to the solemnization of marriage referred to in the instruction of February 8, 1887, and above quoted. It would seem that they may not; for in the expression “the law in the United States * * * relating to the solemnization of marriage,” used in paragraph 390, the fact of the prevalence of the principle of international law above mentioned may well be considered to be included. Under the circumstances—being asked for advice—I have deemed it proper to decline to advise the making of a certificate even in the above-quoted language of the instruction of February 8, 1887, and have thought it advisable to state the matter to the State Department for directions on the subject.
I have, etc.,