Mr. Olney to Mr. Runyon.
Washington, December 9, 1895.
Sir: Your No 408, of the 15th ultimo, has been received. You therein examine the various rulings of the Department, so far as accessible to you, touching the regularity or propriety of permitting consuls to certify to, or state for the information of whom it may concern, the announcement found in Mr. Bayard’s circular instruction to diplomatic and consular officers of February 8, 1887, that—
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.
The language of this instruction appears to be guardedly confined to the question of the form and manner in which a marriage may be solemnized under the laws of the State where it is performed. It does not touch the question of the status of the individuals as a condition to the validity of the marriage, as to which important exceptions are found in the legislation of many countries. Consequently your suggestion is confined merely to certifying to the fact that if parties, citizens of a State or States of this Union, are competent under the laws thereof to contract matrimony, their marriage abroad according to the laws of the country of their temporary sojourn would be held valid as to form in the State or States of which they are citizens.
The value of such a conditional certification may be doubtful, as it leaves untouched the essential factor of the question, namely, the lawful ability of the parties to contract matrimony according to the statutes of the State or States of their residence. As to this latter point the rule of the Department prohibiting certification is clear and necessary.
There is another reason why a diplomatic or consular officer should decline to certify as to the legal requisites of marriage in the United States. The power to make such a certificate is not conferred on him by the laws of the United States, nor by international law, and he has no official powers which are not derived from one of these sources. Therefore, whatever private knowledge a diplomatic or consular officer may have respecting the laws of marriage, he is not authorized to certify them upon that knowledge. It is not a question of individual knowledge, but of official competency.
I have pleasure, therefore, in approving your judgment that it was proper to decline to advise the making of a certificate, even in the quoted language of Mr. Bayard’s circular instruction of February 8, 1887.
As you mention your inability to find the instruction to Consul-General Walker, at Paris, referred to in a footnote to section 390 of the Consular Regulations of 1888, I inclose a copy thereof for your information.1 The phrase “MSS. instructions to consuls” does not refer to a separate instruction on the same subject, but to the manuscript volume of the recorded instructions to consuls, in which the paper in question is found.
I am, etc.,