"Since the arrival in this country of Mr. R. Schleiden, the minister resident from Bremen, I have learned from him that Mr. King, notwithstanding the positive instructions which he had received from Mr. Webster, continued the practice of solemnizing marriages, or of giving what was considered by the emigrants as equivalent thereto, the certificates above named. Such a procedure on the part of an officer of this Government merits its severest censure, and had it been known to the Department at an earlier period it would have recommended Mr. King's immediate removal. "I have been thus particular in making known to you the views of the Department on this subject that you may have no difficulty as to your own course in reference to any application that may be made to you by Germans or others for certificates of marriage or intention of marriage. "If Mr. King has not left Bremen when you receive this dispatch, you are at liberty to read it to him." Mr. Marcy, Sec. of State, to Mr. Hildebrand, consul at Bremen, July 22, 1853, 17 MS. Dispatches to Consuls, 28. "In the statement of fees accompanying your No. 44, I observe several charges for certificates of marriage.' You will explain without delay the nature and object of these certificates, whether the parties applying for them have been legally married according to the laws of Hamburg, and desire to obtain from you, as a United States officer. an authentication of that fact; or, whether the consular certificate is obtained for the purpose of evading the laws of Hamburg, or those of any of the United States. You are doubtless aware that United States consuls are not authorized to perform the marriage rite unless in accordance with the laws of the country in which they reside, and consequently any act of theirs purporting to be a solemnization of that contract is without validity, and will lead most probably to great immorality as well as vexatious litigation." (Mr. Marcy, Sec. of State, to Mr. Bromberg, consul at Hamburg, Oct. 25, 1853, 17 MS. Disp. to Consuls, 128.) Marriages celebrated by a consul of the United States in any foreign country of Christendom, between citizens of the United States, would bave no legal effect here, save in one of the exceptional cases of its being impossible for the parties to marry by the lex loci. American consuls have no such power given them by act of Congress, nor by the common law of marriage as understood in the several States. And marriage, in the United States, is not a Federal question (save as to places under the absolute legislative jurisdiction of the United States), but one to be determined by the several States. Cushing. At. Gen. (1854), 7 Op., 18. The foregoing opinion was given in response to the following letter: to some extent among the United States consuls abroad of marrying parties, either American citizens or foreigners, who call upon them for that purpose. "No regard is paid by the consuls to the forms or the laws relating to marriage of the country in which they reside. In a recent case at Havana, the consul read the Episcopal service; among the documents annexed are forms which have been used at Bremen and elsewhere. I will thank you to inform me if, in your opinion, the contracts of marriage made under such circumstances would be recognized by the courts of the United States, and if the issue of parties thus married could inherit any property, either in this country or abroad, belonging to their parents. "It was stated some time since in the public prints that titles to property have been contested in consequence of the alleged illegality of the marriage of one of the parties by a United States consul.” (Mr. Marcy, Sec. of State, to Mr. Cushing, At. Gen., Nov. 3, 1854, 43 MS. Dom. Let. 198.) A consul can not, as consul, solemnize a marriage, whether he be or not a subject of the foreign government. (Cushing, At. Gen. (1855), 7 Op. 342.) "With respect to the validity of the marriage celebrated by Mr. Goundie [United States consul at Zurich]. . ., it is a question upon which this Department can pronounce no authoritative opinion, so far as the rights of the parties may be involved. When, in matters of administration, it becomes necessary for a Department to issue instructions or to establish regulations with a view to ensure the correct and uniform execution of duties which are enjoined by law, this must be done with reference to the subject under consideration. The Department necessarily forms and makes known its opinion upon the various points connected with its action and prescribes the limitations to be observed or the mode in which the duties required are to be performed. But there its right of interference ceases. It is confined to the proceedings of the officer responsible to such Department. But important subjects of controversy may arise between parties involving the legality or effect of such instructions or regulations, and which the Department issuing them has no power to adjust and ought not to attempt it, nor to interfere in any manner with the prosecution of the claims of persons arising out of the exercise of disputed power. Such cases become the subject of judicial and not of administrative action, and the questions involved can only be authoratively settled by the judicial tribunals. Rights claimed under alleged marriages may be there investigated, upon the demand of any person interested, and the decision, if involving the validity of the marriage, settles that question. "I make these remarks in consequence of the opinion communicated by you to the Federal council upon its application, that the marriage ceremony performed by the American consul in the case and Miss of Mr. was invalid. From the views presented in this despatch, it is obvious that this Department fully concurs with you in the opinion. But it may be that a question may arise, under that marriage, calling for the decision of courts of justice in order to determine the rights of the parties. It is desirable therefore that the Swiss Government should understand the position occupied by this Department; that, although it may incidentally judge of the legality of a marriage so far as the conduct of our diplomatic or consular functionaries is connected with its celebration, still its views can have no effect whatever, when the rights of parties, under such marriage, are in controversy. The whole subject then passes from the administrative authorities to the judicial tribunals. And therefore, in the event of the institution of proceedings, either at home or abroad, to test the validity of this marriage, the opinion of this Department can have no effect whatever. It affords me pleasure to inform you that I think the advice given in your note of August 4, 1860, to Mr. — -, to have the marriage. again celebrated and agreeably to the law of the place, in order to obviate difficulty, was wise, and that the course indicated was the proper one to adopt." Mr. Cass, Sec. of State, to Mr. Fay, min. to Switz., Nov. 12, 1860, MS. "A consular officer of the United States is not authorized to perform the marriage ceremony in a foreign country of which he is a resident, unless it is performed within the precincts of a legation of the United States, or of a consulate, which has by treaty or custom the privilege of exterritoriality, or unless he is expressly authorized to do so by the laws of the country in which he resides; nor are such officers invested by the laws of the United States with any of the functions or duties pertaining to ministers of the Gospel." Mr. Fish, Sec. of State, to Mr. Christensen, Dec. 10, 1872, MS. Notes to A "deputy consul-general" is not a "consular officer" whose action val- An American citizen, residing in the United States, can not contract marriage before an American consul in Italy through power of attorney. (Mr. Cridler, Third Assist. Sec. of State, to Mr. Giallorenzi, Jan. 15, 1901, 250 MS. Dom. Let. 229.) "No doubt as to its illegality [of a marriage ceremony performed by a consul] could be entertained after the passage of the act of Congress of the 22nd of June, 1860. Formerly unmarried emigrants to the United States about to embark at Hamburg or Bremen were in the habit of having that ceremony performed for them by the consul. As this was not in accordance with the local law, the practice was complained of by the German Government, and those consuls were directed to desist from it. The act of 1860 accordingly only authorizes marriage to take place in the presence of consuls, who are officially to attest the fact.” Mr. Fish, Sec. of State, to Mr. Logan, min. to Chile, Aug. 19, 1874, MS. "A United States consul has no authority, under the laws of the United States, to solemnize marriages, and even if he had such authority it would have to be exercised in obedience to the laws of the country in which he is resident as such consul. Consuls do not possess any extraterritorial privileges in regard to private matters between individuals. The law provides that a United States consul may be present and witness the ceremony, and may give to the parties a certificate of the fact under the consular seal and make a record of it in the archives of the consulate. A marriage thus celebrated between American citi zens in a foreign country, and not in contravention of the laws of such foreign country, if performed by a minister of the gospel or other person who by the laws of the country in which it takes place is authorized to solemnize marriages, and between persons who would be competent to marry in the District of Columbia, is held by the laws of the United States to be valid in the United States." Mr. Frelinghuysen, Sec. of State, to Mr. Kohnstamm, Dec. 20, 1883, 149 "In your despatch No 126, after stating the laws of Ecuador on the subject of marriage, you ask whether a marriage solemnized by you as consul-general, under the circumstances narrated, would be valid in the United States and other countries than Ecuador. The quotation you give from instructions of this Department of November 20, 1885, to Mr. Hodges exhibits the view of the law in this relation, which the Department continues to maintain. When the law of the place of celebration,' I again affirm, imposes conditions. repugnant to the conscience of the parties,' then the law of the place. of celebration does not necessarily prevail so as to invalidate everywhere a marriage not solemnized in conformity with such conditions. This has been held in England to be the case with regard to marriages of Protestants at Rome, solemnized by Protestant clergymen, and of marriages in France by Protestant clergymen, at a time when the local law required celebration by Catholics. In the present case there is not only this conscientious objection which may be entertained by Protestants to a Catholic ceremonial, but the still more serious objection which might be made by a Protestant to baptism by a Catholic priest, which it seems is in Ecuador a prerequisite to an Ecuadorian marriage. "Such being the case, it would probably be held by the courts of this country and of England that a consensual marriage in Ecuador by two citizens of the United States would be valid here, though its validity might be denied in Ecuador. But the marriage of the parties as described, they not being domiciled in the District of Columbia or in one of the Territories, would derive no force from your officiating at it as consul-general, though your presence and attestation as a witness might hereafter be of value as attesting the fact of consent. And it is my duty also to inform you that the Department in giving these views does not and can not speak judicially. Parties marrying abroad must do so at their own risk, remembering that the law, especially in such a question as you now put, is still open to doubts which can be solved only by judicial action in the concrete case. It is proper at the same time that you should advise Mr. and Miss that if they should live together as man and wife in Ecuador without a ceremonial marriage in conformity to Ecuadorian law, they might possibly be subjected to prosecution, civil or ecclesiastical, and that in such case it might not be within the range of the powers of this Department to interfere for their relief." Mr. Rives, Assist. Sec. of State, to Mr. McGarr, cons. gen. at Guayaquil, "I have before me your despatch No. 3, written at Quito on April 13th, 1888, asking whether the Department would disapprove of your officiating at the marriage of two American citizens, in Ecuador, the reason given being that they cannot conscientiously be married in Ecuador in conformity with Ecuadorian law, such law prescribing a Roman Catholic ceremony and prior baptism by a Catholic priest. As to the validity of a consensual marriage by American citizens in Ecuador, such marriage not being in conformity with Ecuadorian law, I have already expressed my views in my instruction of January 7, 1888, No. 48, which I now reaffirm. 6 ( 6 "As to your present specific request I now say that the Department cannot express its approval of your officiating' as consul general at a consensual' marriage of the parties in question. Aside from the objection that your so officiating' as 'consul general' would put you, in your official capacity, more or less in collision with the local law of Ecuador, there is nothing in the legislative specification of the functions of consuls, or in the Consular Regulations, which would authorize such official action on your part. In the only statute which touches this question-a statute which in any view applies only to persons domiciled in the Territories or in the District of Columbiathe idea of conveyance of power to officiate' is excluded by the |