sovereign to whom he is accredited. In either of these cases, is necessary that his letters of credence should be renewed; which, “2. Generally, all acts appertaining to the civil condition of Frenchmen abroad may be proved by the modes of proof practised in the foreign country; and, therefore, a marriage may be proved by witnesses, or by the certificate of a diocesan, when celebrated in a foreign country where no registers of civil condition exist conformable to the code. Dalloz, ubi supra, Nes. 346–356. "3. There are no differences of opinion as to the point that Frenchmen, who marry abroad, must conform to the provisions of the code as to capacity, age, consent, and other conditions of substance; but there are contradictory decisions and opinions as to the point, whether it be or not essential to the validity of such marriage that there should have been previous publication of bans in France; and whether, if this be a radical defect, it is curable or not; (Dalloz, ubi supra, Nos. 357-375;) because the article of the code, (No. 170,) which legalizes a marriage contracted between Frenchmen abroad according to the forms used in the foreign country, adds, provided (pourvu) the marriage be preceded by the publication of bans, and do not contravene the other conditions of law, as prescribed by the 1st and 2d chapters of the 5th title of the code. See Toullier, Droit Civil, tom. 1, No. 576-579. "4. The code (art. 47 and 48) provides that any civil act of Frenchmen abroad shall be valid if it be drawn up in pursuance of the forms of the place, according to the rule locus regit actum; or if it has been received conformably to the laws by the diplomatic agents or consuls of France. It has been doubted whether this applies to marriage; though the better opinion is that it does. Dalloz, ubi supra, No. 362-363; Toullier, Droit Civil, tom. i, No. 360; Merlin, Répert., Mariage, p. 641. It is said, however, that if one of the parties to a marriage by a French consul abroad is French and the other not, then the marriage is null, because the consul has no jurisdiction as to the party not French, and the marriage may be attacked by either party. Dalloz, ubi supra, No. 365, 366. In one of the cases where this point was decided, the parties possessed an act of marriage, with twenty years cohabitation, and two children. Proudhon, Tr. des Personnes, tom. i. note a. "5. Finally, a marriage contracted in France by a foreigner according to the exterior forms prescribed by the law would be null, of intrinsic nullity, if the foreigner infringed any of the prohibitions of his statute personal, that is, of the personal law of his domicile. Fœlix, ubi supra, s. 88. "These views might be extended in detail to other countries of Europe. 66 Thus, in the Dutch Netherlands, in addition to the conditions of competency and of publication of bans, there must be a legal contract before the proper magistrate, without which the marriage is a nullity. Van der Linden, by Henry, p. 83. As to this, no exception is made in favor of any persons whatever, being foreigners, or in itinere, or otherwise. See Ruding v. Smith, ii. Hag. C. R., 371, note. "So, in Spain, marriage must be solemnized by prescribed rule, that is, through the intervention of the parish priest, or other clergyman with license of his ordinary, according to the articles of the Council of Trent concerning the in the former instance, is sometimes done in the letter of notification written by the successor of the deceased sovereign to the reformation of matrimony. Tapia, Febrero Novis., lib. i. cap. 2; Sala, Derecho real de España, lib. i. tit. 4. "It is unnecessary to extend these examples. Suffice it to say, that in some countries religious or ecclesiastical impediments exist; in others, where that is not the case, the legal conditions of capacity and requisite forms are very serious obstacles. A critical examination of the law of different countries of Europe would only serve to augment the weight of legal objections to the celebration of marriages by consuls of the United States. "It may be, that a marriage between foreigners, celebrated by a consul of the United States abroad, though utterly null in the country where it is celebrated, might, if the parties emigrate to this country, acquire validity in some of the States of the Union, as a marriage proved by repute and by cohabitation following consent, according to the old rule of the common law. Even then, the certificate of the consul would not constitute the marriage; it would serve at most only as proof of consent, to be connected with proof of cohabitation. "But the practice of celebrating such marriages would be objectionable even then, because it is in fraud of the local jurisdiction, and contrary to the dictates of international comity, if not to positive law. "In what precedes, the inquiry has been treated as relating entirely to marriages assumed to be legalized by consuls of the United States residing officially in any of the countries of Christendom. "For, in regard to States not Christian, although we make treaties with them as occasion may require, and assert in our intercourse with them all such provisions of the law of nations as are of a political nature; yet we do not suffer, as to them, that full reciprocity of municipal obligations and rights which obtains among the nations of Christendom. "This point is determined very explicitly in our treaty with China, which, in the most unequivocal terms, places all the rights of Americans in China, whether as to person or property, under the sole jurisdiction, civil and criminal, of the authorities of the United States, (see the Treaty, viii. Stat. at Large, p. 592); and Congress has made provision to meet the exigencies of the treaty in this respect. Act of August 11, 1848, ix. Stat. at Large, p. 276. "Our treaty with Turkey is less explicit on this point; but it expressly ascribes to citizens of the United States exterritoriality in criminal matters (see the Treaty, viii. Stat. at Large, p. 408,) provision as to which is made by the above cited act of Congress: and as the treaty stipulates how controversies in Turkey, between citizens of the United States and subjects of the Porte, shall be adjudicated, that is, by the local authorities in presence of a representative of the United States; and as it stipulates that only a certain class of litigation shall be submitted to the Porte; and as it gives to Americans in Turkey all the rights of the most favored nation, with express reference to "the usages observed towards other Franks," it might be assumed that the doctrine of exterritoriality applies to Americans in Turkey, as it certainly does to subjects there of all the Christian States of Europe. Moreuil, Guide des Agents Consulaires, tit. ii. prince at whose court the minister resides. In the latter case, he is provided with new letters of credence; but where there is "Our treaties with the minor Mohammedan governments of Tripoli, Morocco, Muscat, and Bruni, are even less explicit than that of Turkey. Still it may be assumed in regard to them, as a principle of the international law of the world, so far as there is any, that unless there be express agreement to the contrary, no Christian nation admits a full reciprocity of municipal rights as between itself and any State not Christian; and therefore, that in the Mohammedan governments above enumerated, Americans possess the rights of exterritoriality which belong to all other "Franks," that is, the races of independent Christian Europe and America. See Ward's Law of Nations, vol. ii. passim; Klüber, Droit des Gens, s. 1d.; Wiseman's Institutes, vol. i. p. 130. In our treaty with Siam, we have inconsiderately engaged that our citizens being there "shall respect and follow the laws and customs of the country in all points." See the Treaty, viii. Stat. at Large, p. 455. That provision of the treaty is, in the international relations of the United States, the solitary exception, it is believed, to the rule that the municipal rights of citizens of the United States are not subject to the local law of any State not Christian. "True, we deal with such States as governments, and apply to them, so far as we can, the doctrines of our international law. The Helena, iv. Robins. Adm. R. 5. But, when we speak of the law of nations, we mean the international law of the nations of Christian Europe and America. Our treaties with nations other than these bring them practically within the pale of our public law, but it is only as to political rights: municipal rights remain as they were. Wheaton's Elements, p. 44; Polson's Law of Nations, p. 17; Phillimore's International Law, p. 86. "The doctrine above enunciated applies to Japan; to the minor independent States of Asia and its islands, whether Mohammedan, Indo-Chinese, Malay, or what others; to the barbaric political communities of Africa; and still more to the petty insular tribes of Oceanica. “Our treaty with the Hawaiian Islands places them on the footing of a Christian State, with the municipal rights belonging to the international law of Christendom. ix. Stat. at Large, p. 977. "Now, in regard to the States not Christian, not only the Mohammedan States but all the rest, it seems to me that the true rule is, that contracts of citizens of the United States in general, and especially the contract of marriage, are not subject to the lex loci, but must be governed by the law of the domicile; and that, therefore, in such countries, a valid contract of marriage may be solemnized, and the contract authenticated, not only by an ambassador, but by a consul of the United States. 66 "The English authorities come to substantially the same conclusion, for similar reasons. Nobody can suppose," says Lord Stowell, "that whilst the Mogul empire existed, an Englishman (in Hindostan) was bound to consult the Koran for the celebration of his marriage. In most of the Asiatic and African countries, indeed, the law is personal, not local, as it was in many parts of Modern Europe in the formative period of its present organization. Hence, in British India, reason to believe that the mission will be suspended for a short time only, a negotiation already commenced may be continued with the same minister confidentially sub spe rati. Hindus, Parsis, Jews, Mohammedans, Christians, all marry according to the law of their religion. Nay, the ecclesiastical law of England goes further than this, for it recognizes the marriage of Englishmen, celebrated according to the English law, that is, by a clergyman, in British factories abroad, though situated in Christian countries, but countries of the Roman Catholic or Greek religion. Ruding v. Smith, ii. Hagg. C. R., p. 371; Kent v. Burgess, xi. Simons, 361. Indeed, in the preceding cases, as in others, the English authorities, as we have already seen, lay down the broad rule that where, owing to religious or legal difficulties, the marriage is impossible by the lex loci, still a lawful marriage may be contracted, and of course authenticated by the best means of which the circumstances admit, as in many cases of marriages contracted in the East Indies and in other foreign possessions of Great Britain. See Catterall v. Catterall, i. Roberts, 580. "This doctrine is conformable to the canon law, which gives effect to what are called matrimonia clandestina, that is, marriages celebrated without observance of the religious and other formalities decreed by the Council of Trent (Cavalario, Derecho Canonico, tom. ii. p. 172; Escriche, s. v. Matr.), when contracted in countries where, if those decrees were enforced, there could be no marriage. Walter, Derecho Ecclesiastico, s. 292-294. Nay, in such countries, in the absence of a priest, there may be valid marriage by consent alone, conformably to the canon law as it stood before the Council of Trent, either by verba de præsenti or by verba de futuro cum copulâ, as happened ex necessitate rei, under the Spanish law, in remote parts of America. Of course, in circumstances like this, a marriage might be legalized by a mere military commandant. Patton v. Phil. & New Orleans, i. La. An. R., p. 98. Surely this doctrine applies to the present question; for, seeing that by the common law of marriage, as now received in all or nearly all the States of the Union, marriage is a civil contract, to the validity of which clerical intervention is unnecessary, (Bishop on Marriage, s. 163,) it would seem to follow, at least as to all those countries, barbaric or other, in which there is in fact no lex loci, or those Mohammedan or Pagan countries in which, though a local law exists, yet Americans are not subject to it, that there the personal statute accompanies them, and the contract of marriage, like any other contract, may be certified and authenticated by a consul of the United States. "But this doctrine does not apply to the countries of Europe, and their colonies in America or other parts of the world, in all which there is a recognized law of the place, and the rule of locus regit actum is in full force. There, in my opinion, a consul of the United States has no power to celebrate marriage between either foreigners or Americans. "It appears that, in some parts of Europe, in consequence of poverty, or other impediments thrown in the way of marriage, there is great prevalence of concu 5. When the minister, on account of any violation of the law of nations, or any important incident in the course of his negotiation, assumes on himself the responsibility of declaring his mission terminated. 6. When, on account of the minister's misconduct or the measures of his government, the court at which he resides thinks fit to send him away without waiting for his recall. 7. By a change in the diplomatic rank of the minister. When, by any of the circumstances above mentioned, the minister is suspended from his functions, and in whatever manner his mission is terminated, he still remains entitled to all the privileges of his public character until his return to his own country.1 § 24. Let A formal letter of recall must be sent to the minister by his government: 1. Where the object of his mission ter of recall. has been accomplished, or has failed. 2. Where he is recalled from motives which do not affect the friendly relations of the two governments. In these two cases, nearly the same formalities are observed as on the arrival of the minister. He delivers a copy of his letter of recall to the minister of foreign affairs, and asks an audience of the sovereign, for the purpose of taking leave. At this audience the minister delivers the original of his letter of recall to the sovereign, with a complimentary address adapted to the occasion. binage; that the desire of lawful cohabitation enters into the inducements of emigration; and that it becomes an object, especially with emigrant females, to obtain, before leaving their country, if not a marriage, yet an assured matrimonial engagement; and that such parties are in the practice of entering into mutual promises of marriage, and procuring the contract to be certified by the consul of the United States. Such a contract would probably give rights of action to the parties in this country; it must have a tendency to promote good morals, and be particularly advantageous to the party most needing protection, that is, the female emigrant; and nothing in our own laws, or in our public policy, occurs to me as forbidding it, unless it be contrary to the law of the land in which the contract is made." Mr. Cushing, Attorney-General, to Mr. Marcy, Secretary of State, November 4, 1854.] 1 Martens, Manuel Diplomatique, ch. 7, § 59; ch. 2, § 15. Précis, &c., liv. vii. ch. 9, § 239. Vattel, liv. iv. ch. 9, § 126. |