Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1907, (In two parts), Part I
File No. 6878/–4.
The Acting Secretary of State to Ambassador Tower.
Washington, August 7, 1907.
Sir: I inclose herewith copy of a dispatch from the American consul at Tsingtau transmitting copies of correspondence between [Page 520] himself and Mr. A. B. Dodd, and asking for information regarding methods to be pursued in cases of marriages between Americans in Germany or German territory. Copies of the department’s reply and of a memorandum of the department’s law officer are also inclosed herewith.
The department will be glad if you will consider the questions involved and report as to the advisability of bringing the matter informally to the attention of the German Government, with a view to arriving at some satisfactory solution of the difficulties presented.
I am, etc.,
Consul Gracey to the Assistant Secretary of State.
Tsingtau, China, April 24, 1907.
Sir: I have the honor to inclose herewith copies of correspondence between this office and Mr. A. B. Dodd, of Tsinanfu, regarding his marriage.
After receiving my dispatch No. 127, Mr. Dodd telegraphed me “Gracey, Tsingtau. Would you accept invitation from Fowler (consul at Chefoo) to represent him at wedding here. (Signed) Dodd,” to which I replied: “Certainly, if Fowler requests me by direct telegram.” Apparently Mr. Dodd again telegraphed to Mr. Fowler, who wired that he was “powerless to appoint me but had appointed Hamilton as agent,” thus satisfactorily solving the difficulty.
Mr. Dodd’s question as to the possibility of being married in Tsingtau, to which I made a reply in my dispatch No. 127 (inclosure No. 4), raises the question of the method to be pursued in cases of marriage of Americans in Germany or German territory.
In referring to Moore’s International Law I find that this has been the subject of diplomatic correspondence between the department and the ambassador to Germany, but does not explain the final settlement arrived at, and the method now pursued by persons of American birth desiring to contract a marriage in Germany.
The government officials here seem to consider that it would be possible for the American consul in Tsingtau to issue such a certificate as is necessary, but I see no authority by which such a certificate could be issued by this office, nor do I believe this would be sufficient under the law which expressly states that the certificate must be issued by “a competent magistrate of the country to which they belong that he does not know of any impediment under its laws to their marriage.”
This question is one which has undoubtedly come before the department on numerous occasions, and I shall be greatly obliged if you will inform me what advice I should give to Americans applying to me for information on this subject.
I am, etc.,
Consul Gracey to Mr. Dodd.
Tsingtau, China, March 30, 1907.
Sir: Replying to your letter of the 27th instant, I beg to inform you that I have consulted with the German official here who is authorized to perform marriages (Doctor Gunter), and on consulting the law it appears to be impossible to perform the ceremony of marriage here as suggested by you.
[Page 521]- First. It is impossible for me to perform the ceremony, as I have no extraterritorial rights here.
- Secondly. If the service was performed by an American minister, as you suggest, he would be liable to arrest and punishment by the local authorities for performing the ceremony without a license from the local government.
- Thirdly. The colonial German officials are unable to marry you here without “a certificate from a competent magistrate of the country to which they belong that he does not know of any inpediment under its laws to the marriage, the competency of such magistrate to issue the certificate to be attested by a diplomatic or consular officer of the German Empire.” The Department of State informed the German ambassador at Washington that it was not advised of any federal, state, or territorial law that provided for the issuance by any magistrate of such a certificate.
It appears, therefore, that owing to this law, which was inaugurated in 1900, Americans can not be married in Germany or on German territory. I can find nothing to show how a marriage could now be performed in Germany, and presume that the question is still under discussion. In any event I am informed by the colonial officials that you could not be married here without the production of such a certificate, and there appears to be no way by which I or any one in China could provide you with such a paper.
I am obliged to telegraph you “No” as an answer in the negative to your question as to whether “a marriage of marriageable American citizens by an ordained minister in my presence at Tsingtau would be practicable and unquestionably valid.”
As suggested in my previous letter, your wisest course would be to go to Chefoo and be married there before the American consul-general.
The validity of a marriage contracted in China by a minister of the gospel without the presence of a consul has never, so far as I know, been settled by judicial proceedings. Any views expressed by myself or any government official can only be considered as executive advice. It is not possible for me or any one to predict what might be the future judicial rulings on this difficult question of law regulating matrimonial capacity in cases of marriage in China. I have in my office the opinion of Mr. Bayard, Secretary of State, Mr. Blaine, Secretary of State, Mr. Denby, late minister to China, and others, and the opinions seem to agree in the fact that such a marriage “being exclusive sexual union for life” would be “in conformity with the great body of judicial authority in the United States,” but that it would establish a valid marriage has, so far as I know, not been decided.
Under the existing condition I would give it as my opinion, and in this I am speaking with the same words used by Mr. Denby and approved by Mr. Blaine, that “it is a wise precaution, in order to avoid any possible future trouble, for marriages between Americans in China to be performed in the presence of the consul.”
While entertaining this view, Mr. Den-by did not pretend to say that the courts might not hold a marriage valid when the ceremony had been performed by a clergyman, or even in cases where there was no ceremony at all, if cohabitation and public recognition of the conjugal status existed; nor did he pretend that he had any official right to dictate to parties how they should be married, but it appeared to him to be necessary to use all care in explaining the conditions in order that the parties might not be misled by his silence.
As you have asked in a confidential manner for my advice, while not presuming to dictate, I would certainly advise your not being married at Tsinanfu unless the consul at Cheapo, or his vice and deputy consul, consents to go to that city to be present at your wedding. If this is not possible, then I should advise you, although it may be inconvenient, to go to Cheapo.
I am, unfortunately, not able to assist you, as not only is Tsinanfu outside my district, but it is, also, in a different country from the one from which I have received my exequatur.
I am most sorry for you in your predicament, and wish I could be of service to you, but under the circumstances you will recognize the impossibility.
I am, etc.,
The Secretary of State to Consul Gracey.
Washington, July 29, 1907.
Sir: I have to acknowledge the receipt of your dispatch No. 10 of April 24, 1907, inclosing copy of correspondence between your office and Mr. Albert B. Dodd, of Tsinanfu, China, relative to his marriage, and requesting to be informed as to what course you should pursue in cases of marriages of Americans in German territory.
In reply I have to state that your course of action with regard to the difficulty of Mr. Dodd in having his marriage properly witnessed and performed is approved by the department.
As to the question of marriages of Americans in German territory, the matter in regard to which you inquire is still in the same unsatisfactory situation indicated in section 245 of Moore’s International Law Digest. As there stated, the department, as a result of an inquiry from our consul-general at Berlin, addressed a circular letter to the governors of the various States and Territories, inquiring whether the courts issue certificates of competency such as are required by section 2 of the German Imperial Marriage Code. As a result of the replies received to these inquiries, the department learned that there was “no person in any State authorized to issue the certificate” in question; but the department does not authorize American consular or diplomatic officers to certify to this effect. 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.
Should any more definite adjustment of this troublesome question be reached, you will be promptly advised by the department.
I am, etc.,
(For the Secretary of State).
Marriage of American citizens in Germany.
Washington, July 26, 1907.
Under date of April 24, 1907, our consul at Tsingtau, China, a German port, asked to be informed what advice he should give to those applying to him for information concerning the method pursued by American citizens desiring to be married in Germany.
Bearing on this subject is a portion of section 1315 of the Civil Code of Germany, which provides that foreigners who, according to the laws of the State require a permit or certificate, are not permitted to contract a marriage without such certificate.
In a note to this section Schumann, in his compilation, “The Law of Marriage and Divorce of the German Empire,” says, on page 7:
“All the States of the German Empire require of foreigners, besides a certificate of birth, a certificate from the authorities of the foreigner’s place of residence, certifying that no obstacle to the contemplated marriage exists, according to the laws of the foreigner’s place of residence. Both certificates must be certified to by an imperial consular officer. Besides this, the banns of marriage must be published in the place the foreigner has resided in during the six months prior to the contemplated marriage.”
The law of Prussia on this point (art. 43) provides that aliens desiring to marry in that Kingdom must present a certificate from a competent magistrate of the country to which they belong that he does not know of any impediment under its laws to their marriage, the competency of such magistrate to issue [Page 523] the certificate to be attested by a diplomatic or consular officer of the German Empire. (Moore Int. Law Dig., vol. 2, p. 542.)
The department informed the German ambassador that it was not advised of any federal, state, or territorial law that provided for the issuance by any magistrate of any certificate. (Hay to von Holleben, February 21, 1900, Foreign Relations, 1900, p. 522.)
The correspondence shows that Mr. Mason, our consul-general at Berlin, twice brought the matter to the attention of the department, requesting that “Consular officers in Germany be authorized by the department to issue to applicants certificates in a prescribed form, to the effect that courts of the United States, the States, and Territories do not grant certificates of the form and purport required by the Imperial German Marriage Code of January 1, 1900, and that the affidavit of one or more reputable citizens, executed before a notary or qualified magistrate in the United States, would be there regarded as valid testimony.” (Mr. Mason to the department, February 13, 1903, Consular Letters, Berlin, vol. 26.)
In response to this letter of Consul-General Mason the department, after having sent a circular of inquiry to the governors of the various States and Territories, informed him “that there is no person in any State authorized to issue the certificate.”
The department made no comment on Mr. Mason’s suggestion that our consular officers be permitted to certify that the United States courts and state courts did not grant the certificates which the German law requires, this silence on the part of the department being, of course, in accordance with its general position that consuls are not permitted to certify to the laws of the various States
By section 90 of the Consular Regulations of 1888, diplomatic and consular officers of the United States are declared incompetent to certify officially as to the status of United States citizens desiring to be married abroad, and this same provision is, in effect, contained in section 422 of the Consular Regulations of 1896.
It would seem, therefore, that strict compliance with the “certificate” requirement of the German marriage laws would be practically impossible for an American citizen.
It is stated by the Consular Bureau that inquiries as to these laws received by it are answered by simply sending copies of the appropriate sections of the German Civil Code.
Mr. Ingram, a consular clerk, now detailed to the department, who was recently located in the United States consulate at Berlin, says that Americans who apply to that consulate for advice as to their marriage in Germany are advised, because of the obstacles presented by the law, not to attempt to contract marriage in that country, but to journey to England for that purpose. He adds, however, that in some instances the law is evaded, with the sanction of the German local authorities, by the procurement from an attorney at law of the American State, where those desirous of marriage in Germany reside, of an opinion to the effect that the laws of that State 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.
In a letter of the department to the governor of New York, presumably one of the circular letters of April 20, 1900, the department said: “It is the department’s intention, in any event, in order to be of such benefit to our citizens as may be practicable, in view of this requirement of the German code, to make an official representation to the German Government on the subject.”
A search of the records of the department, however does not show that any such representation as that here foreshadowed has ever been made.