No. 465.
Mr. Maynard to Mr. Evarts.
Legation of the United States.
Constantinople, December 25,
1878. (Received January 20.)
No. 296.]
Sir: I have the honor of recurring to the topic
discussed in my dispatch No. 274, of September 19, 1878, and your reply,
No. 179, of November 1, 1878.
A question has been submitted involving principles similar to those we
then considered.
A young gentleman residing in this capital, an American citizen and a
Protestant Christian, called at this legation for advice in a matter
which he regarded as of great personal importance. Being about to marry
in Persia a lady who resides in that country, herself an American
citizen and a Protestant Christian, he wished to know in what form the
marriage would be valid and effective as a matrimonial contract.
I gave him my opinion, which at his request I reduced to writing. A copy
is inclosed.
Though I never had occasion, professionally, to study the subject, it
certainly cannot be a new one in Christendom, and especially in England.
Besides your dispatch of November last, the only authorities I find in
the legation are the opinion of Supreme Court of the United States in
Hallett vs. Collins (10 Howard, 174); the opinion
of the Attorney-General, November 4, 1854; and the brief notices in Kent
and Wheaton, with the notes of Messrs. Lawrence and Dana.
Would it not be well to ask Congress to revise and enlarge the marriage
act of June 22, 1860 (Revised Statutes, section 4082), so as to make
valid marriages in the presence of diplomatic as well as consular
officers of the United States, and to provide for cases like the
present, where the government is not represented either by a consular or
diplomatic officer, and where there is no local law available?
I am, &c.,
[Inclosure 1 in No.
296.]
Mr. Maynard to
Mr Bliss.
Legation of the United States,
Constantinople, December 25, 1878.
No. 249, M. C.]
Dear Sir: In reply to your inquiry this
morning, how a marriage can he so solemnized in Persia between
American Protestant Christians as to be valid and legally oh
ligatory elsewhere, I remark:
- 1.
- Persia is a Mohammedan country, with which the United
States has a treaty, hut within which we have no diplomatic
or consular agents. The act of Congress making
[Page 978]
valid marriages
contracted in the presence of any consular officer of the
United States In a foreign country cannot therefore be
applied.
- 2.
- The general rule that the contract of marriage is to be
governed by the law of the place where it is celebrated does
not apply in those countries, barbaric or other, in which
there is in fact no local law, or in Mohammedan or Pagan
countries, in which, though a local law exists, Americans
are not subject to it.
It follows, then, in the case you submit that the natural law of
marriage must be observed, which requires no more than the declared
mutual consent of parties competent to contract, and which is the
common law of marriage as now received in all, or nearly all, the
States of the American Union. To give the contract authenticity, it
is usually required to be made in the presence of a clergyman or of
a civil magistrate, and some form of license and of registration is
also enjoined. But the latter regulations are directory only, not
essential.
In the present case, if the marriage take place in the presence of a
regularly-ordained clergyman of the Protestant church, according to
the observance in use by that church, it will undoubtedly be valid.
Let the clergyman give under his hand a written certificate reciting
the contract and signed by the parties and such witnesses as they
may choose, and let the certificate be recorded in the chancery of
the legation and in the consulate-general of the United States at
Constantinople.
The presence also of a diplomatic or consular officer of one of the
Protestant or other Christian powers would be well. For, while it
would add nothing to the validity of the contract, it would give it
higher authenticity.
I am, &c.,
