Hawaiian Islands.

Contracts in

Christian.

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.

240. 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.1

241. Now, in regard to the States not Christian, States not not only the Mohammedan States, but all the rest, the true rule appears to be, 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.

riage.

English autho- 242. The English authorities come to substantially rities on the the same conclusion, for similar reasons. "Nobody subject of mar- can suppose," says Lord Stowell, "that while 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, 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, Hindus, Parsis, Jews, Mohammedans, Christians, all marry according to the law of Ecclesiastical their religion. The ecclesiastical law of England law in Eng goes further than this, for it recognizes the marriage of Englishmen, celebrated according to the English

land.

1 Statutes at Large, vol. ix. p. 977.

law, that is, by a clergyman, in British factories abroad, though situated in Christian countries, but countries of the Roman Catholic or Greek religion.1 Indeed, in the preceding cases, as in others, the English authorities, as has already been 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."

3

243. This doctrine is conformable to the canon Canon law. 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, when contracted in countries where, if those decrees were enforced, there could be no marriage. In such countries, in the absence of a priest, there may be valid marriage by consent alone, conformable 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.5

244. This doctrine applies to the present question; Consular marfor, seeing that by the common law of marriage, as riages in Monow received in all, or nearly all, the States of the Pagan coun

1

1 Ruding v. Smith, 2 Hagg. C. R. p. 371; Kent v. Burgess, 11 Simons,

p. 361.

2 See Catterall v. Catterall, 1 Roberts, p. 580.

* Cavalario, Derecho Canonico, tome ii. p. 172; Escriche, s. v. Matr. Walter, Derecho Ecclesiastico, s. 292, 294.

Patton v. Phil. and New Orleans, 1 La. An. R. p. 98.

hammedan and

tries

Marriages in

tries.

Union, marriage is a civil contract, to the validity of which clerical intervention is unnecessary,' 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 exist, 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.

245. But this doctrine does not apply to the counChristian countries of Europe, or 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 a consul of the United States has no power to celebrate marriage between either foreigners or Americans.

tificates to

marriage.

Consular cer- 246. It appears that, in some parts of Europe, in promises of consequence of poverty or other impediments thrown in the way of marriage, there is great prevalence of concubinage; 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 protectionthat is, the female emigrant; and nothing in our own

1 Bishop on Marriage, s. 163.

laws, or in our public policy, seems to forbid it, unless it be contrary to the law of the land in which the contract is made.

247. It has been suggested1 that there are consid- Marriages erations which render it desirable that consuls in emigrants. Germany, especially at the points of collection or embarkation of emigrants, should possess the power to legalize matrimony. Although there is much force in what has been said on the subject, nevertheless it remains indisputable that consuls do not, in fact, possess the power; and that it cannot be imparted to them by any act of the Department of State.

of

be authorized

248. They might possibly acquire it in three ways, Mode by which namely: first, by municipal act of any foreign gov- consuls could ernment giving legality to a marriage within it so to celebrate celebrated, in which case there would be nothing in marriages. our law, or in our public policy, to forbid a consul officiating in that relation; secondly, perhaps, specially by treaty, or generally by act of Congress. But these are questions of political expediency, not of practical jurisprudence.

tract.

249. Upon principles of general legislation the Validity of the validity of a marriage, or of any other contract, de- marriage conpends upon the law of the place where such marriage or other contract is entered into. If there is no special legislation to the contrary the effect of such marriage is legally the same in every country as if celebrated therein. But the validity of a marriage, and the consequences to result from it to persons or property, are very different questions, and depend

1 Despatch (MS.) of Mr. Samuel Ricker, U. S. consular officer at Frankfort-on-the-Main; Opinions of the Attorneys General, vol. vii. p. 343.

Since the delivery of this opinion a provision in relation to the rite of marriages performed in the presence of a consular officer has been introduced into the act of June 22, 1860. See Statutes at Large, vol. xii.

p. 79.

Consular au

marriages.

upon different principles. It is competent for every nation to provide by its own laws that marriages, wherever they take place, unless celebrated in a particular manner or under particular circumstances, shall be ineffectual to secure to parties claiming under them the rights they would have been entitled to had no such disabling legislation existed.

250. This is a subject of internal policy wholly dependent upon local considerations. But the validity of the marriage itself is quite another matter, which cannot justly be thus dealt with. Not only is it binding upon the parties in foro conscientiæ, but it is beyond the reach of any rightful legislation.

251. The provision of the thirty-first section of the thentication of act of Congress of June twenty-second, eighteen hundred and sixty, which declares that marriages celebrated in the presence of any consular officer in a foreign country, between persons who would be authorized to marry if residing in the District of Columbia, shall have the same force and effect, and shall be valid to all intents and purposes, as if the said marriage had been solemnized within the United States, specially provides for the presence of a consular officer upon such an occasion. And the provision is no doubt a wise one, not only because it furnishes security against fraud, but because it renders more easy the authentication of such marriages in the United States. It does not necessarily withdraw the celebration of such marriages from the authority of the country in which they take place, or give power to the consular officer himself to perform the ceremony in Christian countries. It will be evident from what has been stated that, in order to preserve all the legal rights of the parties to a contract of mar