No. 104.
Mr. Evarts
to Mr. Logan.
Washington, June 8, 1880.
Sir: I have received and considered your dispatch No. 83, in which you inquire concerning the faculties of ministers and consuls to perform the marriage ceremony. You therein ask specifically—
- “1st. Has a public minister or consul of the United States the legal faculty of celebrating a marriage in the District of Columbia?”
- “2d. Has a public minister or consul of the United States the legal faculty of celebrating a marriage in a foreign country wherein he resides, even if there be nothing in the lex loci to prohibit it?”
The first of these queries must be answered in the negative. The marriage ceremony in the District of Columbia, to be legal, requires to be performed under license by a minister of the Gospel, or, as a civil contract, it can be authenticated by the competent judicial officers of the District.
The second query is best answered by the following citation from the Consular Regulations of 1874, which have superseded those to which you refer of 1870.
“278. The statute does not authorize the consul to perform the ceremony. It is not to be supposed that Congress intended to authorize a consul to perform the ceremony of marriage or to countenance the doing of any act which would be, or even seem to be, a violation of the laws of the country in which he resides. Marriage is a contract which each State regulates for itself by its own laws. Inasmuch as rights of inheritance may depend upon the validity of marriages, consuls cannot be too cautious in satisfying themselves, when their presence is asked at a [Page 118] proposed marriage, not only that the parties may lawfully intermarry according to the laws of the country in which the ceremony is to take place, but also that all requirements of law necessary to give validity to the marriage have been had. In no case should the consul himself assume to perform the ceremony unless authorized by the laws of the country to do so. The statute contemplates that the ceremony is to be performed in his presence, but it should be done according to local laws,” &c.
The act of June 22, 1860, now incorporated in the Revised Statutes (section 4082), neither expresses nor, implies that a minister shall have like powers with a consul as regards the authentication of a marriage and the performance of a marriage ceremony within the precincts of a legation would require the presence of the consul to fulfill the law. (Personal Instructions, XLVIII.)
Unless, therefore, a minister of the United States be required or authorized by the lex loci where he officially resides to perform the marriage ceremony, he cannot lawfully do so.
I am, &c.,