Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 8, 1908
File No. 6878/8–10.
The Acting Secretary of State to Ambassador Hill.1
Washington, July 24, 1908.
Sir: I have to inclose herewith, for the information of the embassy, a copy of a dispatch, dated February 5, 1908, from the consul at Tsingtau, China, wherein he requests instructions in regard to the authority of consular officers to issue certain certificates required by the regulations of the colony at Kiaochow to persons who desire to be married; also a copy of the department’s reply dated July 24, 1908, to which is attached a memorandum prepared by the law officer of the department.
I am, etc.,
Consul Gracey to the Assistant Secretary of State.
Tsingtau, February 5, 1908.
Sir: I have the honor to communicate to the department certain further particulars regarding the possibility of marriage of Americans within the German colony of Kiaochow.
On April 24, 1907, I addressed my dispatch No. 10 to the department, relative to this subject, and have received reply of July 29, 1907, dispatch No. 22, in which you inform me that the question of marriage of Americans in German territory is still in the same unsatisfactory state.
I have noted the fact that “The department understands that the German local authorities frequently accept an opinion from an American lawyer to the effect that the laws of the State or States of the Union in which the Americans who wish to contract a marriage in Germany reside interpose no obstacle to the marriage, such opinion being supplemented by a certificate of a German consular officer as to the professional standing and competency of the attorney rendering the opinion,” and have addressed a dispatch to the colonial officials asking if such a certificate as above outlined would be considered sufficient if accompanying the opinion of an American attorney.
I am now in receipt of the reply, as per inclosure No. 1, from which it would appear that Americans might be married in Tsingtau if they have resided in the colony for the previous six months, on the following conditions:
- First. By presenting an opinion from an American lawyer to the effect that the laws of the State or States of the Union to which the Americans belong interpose no obstacle, such opinion being supported by the certificate of a German consular officer.
- Second. By proving their birth, either by birth certificates, military papers, certificates of residence, citizenship papers, witnesses, or sworn statements.
- Third. By proving that, if they are of age, the consent of parents or other persons is unnecessary, which fact could probably be proved by inclusion of a statement to that effect in the certified opinion of the American attorney or by a certificate from the American consul at Tsingtau to that effect.
The important question here is, however, whether Americans resident in Shangtung Province, at places remote from the American consulate general at Chefoo, which has jurisdiction over them, can, by coming to Tsingtau, be married in accordance with the law of the German colony.
The last paragraph of the dispatch from the colonial governor (referring to copy of the law, par. 5) says: “If for six months previous to the intended marriage the parties have lived outside the colony, a paper from the authorities of the place where they have lived is needed which shows that there are, so far as known, no impediments to the proposed marriage in the place of previous residence.” As the United States has extraterritorial rights in China, it would appear that such a certificate should not be obtained from the Chinese authorities, but from the American official who has jurisdiction over the parties; in other words, the American consul.
There appear to be two important questions, therefore:
- First. Is the consul at Tsingtau authorized to issue a certificate stating that “according to the terms of the American laws the consent of parents, or other persons, is not necessary to a marriage of persons 21 years of age”?
- Second. Is an American consul in China authorized to issue a certificate stating that, “so far as known, there are no impediments to the proposed marriage in the place of previous residence in his district”?
This office has already had inquiries from two parties resident in Shangtung Province of China relative to the possibility of marriage on German territory, and owing to the ease with which this city can be reached by rail, and the difficulty of getting to Chefoo, it seems probable that other cases may occur, especially as it is recognized that a marriage performed on German territory and legal there will be considered legal everywhere, and the legality of a marriage performed in China has never been clearly proven.
It seems important, therefore, to have an opinion from the department as to the possibility of issuing such certificates as herein mentioned, in order that this office may be in a position to advise Americans who may make application to it.
I have, etc.,
Governor of the German Colony of Kiaochow to Consul Gracey.
I have the honor to reply as follows to your letter No. 365, of the 21st instant:
According to paragraph 7 of the law of the German colony regarding marriage, the law of May 4, 1870, is applicable. A copy of paragraph 7 of the colonial law and of paragraphs 3 to 9 of the law of May 4, 1870, which relate to this matter, is inclosed.
According to these regulations (par 3), the engaged couple has to prove to the registrar that they are entitled to marry according to the laws of their country. Proof of this fact can be made in any way which the registrar deems good; therefore, probably also by a certificate from an American lawyer.
Furthermore, however, the parties have to present, in authenticated form, a record of their birth and the consent of the persons whose consent is necessary according to the laws of their country. These documents can not be replaced by the opinion of an attorney. It is permissible, however, for the registrar to forego the presentation of these papers if the facts they would represent are otherwise proved to his satisfaction. This proof might be rendered by such documents as certificates of birth, military papers, certificates of residence, citizenship papers, witnesses, sworn statements, etc.
Finally, if for six months previous to the intended marriage the parties have lived outside the colony, a paper from the authorities of the place where they have lived is needed, which shows that there are no obstacles to a marriage in the place of their last residence. This can not be replaced by the opinion of an attorney.
(For the Governor.)
The Secretary of State to Consul Gracey.
Washington, July 24, 1908.
Sir: I have to acknowledge the receipt of your No. 43, of February 5, 1908, inclosing a copy of a letter from the governor of the German colony of Kiaochow, setting forth the conditions under which Americans may be married in that colony. You request instructions in regard to the authority of certain American consular officers to issue the certificates required by the regulations of the colony of Kiaochow to persons who desire to be married.
As will be observed in the attached memorandum of the law officer of the department, the department answers your first question in the negative and your second question in the affirmative, this second answer being applicable, however, only in the case of a consul exercising extraterritorial jurisdiction. The department desires to emphasize the limitation upon the validity of the proposed certification by an American consul in China set forth in the passage of the solicitor’s memorandum, which reads, “so far as is known, there are no impediments to the proposed marriage in the place of previous residence in his district.”
I am, etc.,
(For the Secretary of State.)
Marriage of American citizens in Germany.
Washington, May 7, 1908.
In his No. 43, of February 5, 1908, Consul Gracey Tsingtau, continuing previous correspondence upon the subject of the marriage of American citizens in the German colony of Kiaochow, China, forwards a copy of a communication from the governor of the colony, setting forth the law regarding the marriage of [Page 365] foreigners therein. It appears therefrom that Americans may be married in this colony, provided they have resided there for the previous six months, upon these conditions:
- First. By presenting an opinion from an American lawyer to the effect that the laws of the State or States of Union to which they belong interpose no obstacle to the marriage, such opinion being supported by a certificate of the German consul as to the legal standing of the one giving it.
- Second. By proving their birth, either by birth certificate, military papers, certificate of residence, citizenship papers, witnesses, or sworn statements.
- Third. By proving that, if they are of age, the consent of parents or other persons is unnecessary, which fact, says the consul, could probably be proved by the inclusion of a statement to that effect in the certified opinion of the American attorney, or by a certificate from the American consul.
With relation, however, to Americans residing outside the colony, it appears to be necessary for them to submit a statement from the authorities of the place of their residence showing that there is, so far as known, no impediment to the marriage.
The consul says that he has had several inquiries from Americans residing in China, outside the colony, relative to their possible marriage therein, and in the cases of such persons, because of the extraterritorial rights of the United States in China, he considers that the authorities of the place of residence mentioned in the colony law are properly the American consuls.
In view of the foregoing the consul asks two questions, namely, Is the consul at Tsingtau authorized to issue a certificate stating that “According to the terms of the American laws, the consent of parents or other persons is not necessary to the marriage of persons 21 years of age?” Second, Is an American consul in China authorized to issue a certificate stating that “So far as is known there are no impediments to the proposed marriage in the place of previous residence in his district?”
On February 8, 1887, the department issued an order intended to put an end to a practice in vogue at some of our consulates, of certifying as to the marriage laws of particular jurisdictions in the United States. This order was incorporated as section 390 into the Consular Regulations of 1888, and, somewhat amplified, forms section 422 of the Consular Regulations of 1896, which reads as follows:
“Consular officers are not competent to certify, officially, as to the status and ability to marry of persons domiciled in the United States and proposing to marry abroad, nor as to the laws of the United States, or of the States or Territories, touching capacity for marriages or the solemnization thereof. The power to make a certificate as the legal requisites in the United States for a valid marriage abroad is not conferred on consular officers by the laws of the United States, nor by international law, and they have no official powers which are not derived from one of these two sources. Whatever private knowledge a consular officer may have respecting the laws of marriage, he is not authorized to certify the same officially.”
This regulation which has continued to represent the attitude of the department on the matter in question would seem to render it necessary to answer “No” to the first of the consul’s inquiries.
As to the second inquiry, some interesting questions arise. It is believed that the certificate here called for, since it is in addition to the statement already covered in regard to the “consent of the persons whose consent is necessary according to the laws of their country,” merely refers to possible impediments arising out of matters of law and fact within the extraterritorial jurisdiction of the consul making certificates. That is, the matters of law which are to be covered by this certification are simply the questions of American extraterritorial law which the consul administers, not the law of the States of the United States in which the parties in question may, perhaps, have their domicile. (But see Judge Wilfley’s recent decision in the matter of Young John Allen, holding that it is possible for an American to acquire legal domicile in China.)
Under these circumstances it is believed that such a certificate as is here suggested is not within the prohibition which the department has so often made against consuls certifying to the laws of the various States and Territories, or even of the United States. The certificate here called for covers only matters of fact, so far as known to the consul, and the law of his district which he administers, and it would seem that a consul exercising extraterritorial jurisdiction should be permitted and instructed to give this certificate in a proper case.
- Same mutatis mutandis to China, No. 490.↩