§ 23. Ter

The mission of a foreign minister resident at a foreign mination of court, or at a Congress of ambassadors, may terminate during his life in one of the following modes:

public mission.

territory. Klüber, Droit des Gens, s. 21 and passim; Story's Conflict of Laws,

ch. 2.

"I say, more or less complete; because, although each nation possesses its territory as its own, and exercises jurisdiction within itself, not only as to persons, whether subjects or foreigners, their acts and their property therein, and in general neither claims itself, nor concedes to others, external jurisdiction; yet each yields to the other certain reciprocal rights within itself, which are sometimes denominated by the civil law term, of servitudes of the public law or law of nations. Martens, Précis, s. 83.

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These privileges, servitudes, or easements of public law have grown up either by express convention, or by usage founded on consent. Per Ch. J. Marshall, The Exchange, vii. Cranch, p. 136. Among them are the effect, which, in certain cases, one State concedes to the laws of another in regard to contracts made in the latter, and the reciprocal rights conceded of personal residence or commercial intercourse, and of the interchange of ministers and consuls, which concessions modify to a certain degree the hypothetical completeness of the internal sovereignty of each nation.

"Hence, in all the discussions of private international right, the fundamental and all-pervading distinction between the statute personal, or the laws of one's own proper domicile, and the statute real, or the laws which are independent of the person, and which regulate in a foreign country his acts or interests irrespective of his domicile. The personal statute is transitory, and follows the person; the real statute is chiefly confined to things, which it controls only in the locus rei sitæ, or the given territory. Dalloz, Dict. Juris. s. v. Loi Pers.; Proudhon, Des Personnes, tom. i. p. 8.

"To the regular jurisdiction, however, of each country over persons, things, and acts, being or done within it, there exist, by received public law, certain absolute exceptions. These exceptions are the several cases of exterritoriality that is, the various conditions in which a person, though abroad, is exempt from the foreign jurisdiction, and is deemed to be still within the territory and jurisdiction of his own country.

"The doctrine of exterritoriality is denounced by some speculative publicists as if it were a mere fiction of law. See Pinheiro Ferreira, Droit Public, tom. ii. p. 197. This view of the matter is superficial, for it is only a cavil as to the name; and erroneous, because it argues upon the name, and not the thing which it represents.

"The word 'exterritoriality' is a sufficient definite technical designation for the peculiarity of legal condition already defined as attaching to certain persons in a foreign country, to wit: the case of an actual sovereign of an independent State, his person, suite, residence, and furniture, while he resides or sojourns peaceably in a foreign country; a foreign army, whether in peace or war; a ship of war generally, and sometimes a merchant ship in a foreign port, and either of them

1. By the expiration of the period fixed for the duration of mission; or, where the minister is constituted ad interim only, by

on the high seas in all circumstances; and a foreign ambassador. Wheaton's El. P. 139.

"In all these cases, and expressly in that of foreign ministers, the privilege of exterritoriality extends to the residence as well as the person of the foreign minister, and to certain legal acts performed in his presence. Vattel, 1. 8, ch. 7, 8, 9; Klüber, s. 204; Martens, Précis, 1. 7, ch. 5; Fœlix. liv. 2, tit. 2, ch. 2, s. 4; Ch. de Martens, Guide Diplomatique, ch. 5.

"Such are the rights of an ambassador or other foreign minister. But, although consuls are not merely commercial agents, as many authors assert, (Wicquefort, Ambas., vol. i. p. 133; Bynkersh. de F. Legat., p. 165; Wildman's Institutes, vol. i. p. 130); and although they undoubtedly have certain of the qualities and some of the rights of a foreign minister (see De Cussy, Réglements Consulaires, sec. 7); still it is undeniable that they do not enjoy the privileges of exterritoriality, according to the rules of public law received in the United States. Clark v. Cretico, i. Taunton, 106; The Anne, iii. Wheaton, 446; United States v. Ravara, ii. Dallas, 297; Viveash v. Becker, iii. Maule & Sel. 284; Barbuit's case, Cases Temp. Talbot, 281; Commonwealth v. Korsloff, v. Serg. & R., 545; Durand v. Halback, i. Miles, 46; Davis v. Packhard, vii. Peters, 276; S. C., vi. Wend., 327; S. C., x. Wend., 50; Flynn v. Stoughton, v. Barb. S. C. R., 115; State v. De la Font, ii. Nott & McCord, 217; Mannhardt v. Soderstrom, i. Bin., 138; Hall v. Young, iii. Pick., 80; Sartori v. Hamilton, i. Green's R., 107. "In all the adjudged cases above cited, it is either expressly ruled, or the point presented assumes, that consuls are subject to the local jurisdiction. The same doctrine is recognized in the modern law treatises of most authority, whether in the United States or in Great Britain. Wheaton's Elements, p. 293; Kent's Com., vol. i. p. 43; Wildman's Inst., vol. i. p. 130; Flynn's Brit. Consuls, ch. 5. Notwithstanding the somewhat vague speculations of Vattel and some other continental authors on the question whether consuls are quasi ministers or not, (Vattel, Droit des Géns, 1. iv. ch. 8; De Cussy Réglements Consulaires, sec. 6 ; Moreuil, Agents Consulaires, p. 348; Borel, Des Consuls, ch. 3); it is now fully established by judicial decisions on the Continent, and by the opinions of the best modern authorities there, that consuls do not enjoy the diplomatic privileges accorded to the ministers of foreign powers; that in their personal affairs they are justiciable by the local tribunals for offences, and subject to the same recourse of execution as other resident foreigners; and that they cannot pretend to the same personal inviolability and exemption from jurisdiction as foreign ministers enjoy by the law of nations. Fœlix, 1. ii. tit. 2, ch. 2, s. 4; Dalloz, Dic. de Jurispr., tit. Agents Diplomatiques, No. 35; Ch. de Martens, Guide Diplomat.,

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s. 83.

"In truth, all the obscurity and contradiction as to this point in different authors arise from the fact that consuls do unquestionably enjoy certain privileges of exemption from local political obligation; but still these privileges are limited, and fall very far short of the right of exterritoriality. Massé, Droit Commercial, tom. i. No. 438, 439.

return of the ordinary minister to his post. In either of these cases a formal recall is unnecessary.

"Thus, in the United States, consuls have a right, by the Constitution, to the jurisdiction of the federal courts as against those of States. They are privileged from political or military service and from personal taxation. In some cases we have by treaty given to consuls, when they are not proprietors in the country, and do not engage in commerce, a domiciliary and personal immunity beyond what they possess by the general public law; and the extreme point to which these privileges have been carried in any instance may be seen in the Consular Convention of the 23d of February, 1853, between the United States and France. Session Acts, 1853-4, p. 114.

"Having premised this explanation of the exact status of consuls by the law of nations, it remains for me to deduce from the general doctrine the particular conclusions applicable to the special subject of inquiry.

"In regard to the contract of marriage, the general principle in the United States is that, as between persons sui juris, marriage is to be determined by the law of the place where it is celebrated. If valid there, then, although the parties be transient persons, and the marriage not in form or substance valid according to the law of their domicile, still it is valid everywhere:- with some exceptions, perhaps, of questions of incest and polygamy. If invalid where celebrated, it is invalid everywhere. Story's Conflict of Laws, s. 113; Bishop on Marriage,

s. 125.

"The only exceptions to this last proposition, namely, that marriages not valid by the lex loci contractus are not valid anywhere else, are, first, in favor of marriage, when parties are sojourning in a foreign country where the law is such that it is impossible for them to contract lawful marriage under it. Secondly, in certain cases in which, in some foreign countries, the local law recognizes a marriage as valid when contracted according to the law of domicile. Thirdly, where the law of the country goes with the parties, that is, in the contingency of their personal exterritoriality, as in the case of an army and its followers invading or taking possession of a foreign country, (Ruding v. Smith, ii. Hag. C. R., 371,Huber. Prælec., J. C. de Con. Leg. 1. i., tit. 3, s. 10; J. Voet. in Dig., 1. xxii. tit. 2); and, perhaps, of an army in transitu through a friendly State, (Wheaton's El., p. 140,) and of a foreign ship of war in the ports of the nation. The Exchange, vii. Cranch, p. 136.

"It follows by necessary consequence, save in the excepted cases enumerated, that a marriage, celebrated in any given place, must be celebrated according to the law of the place, and by a person whom those laws designate, unless the person by whom, or the premises in which, it is celebrated, possess the privileges of exterritoriality.

"Therefore it may be, according to the opinion of Lord Stowell, that the presence of a foreign sovereign sojourning in a friendly country, or that of his minister plenipotentiary, or the act of a clergyman in the chapel or hotel of such sovereign, or his ambassador, may give legality to marriage between subjects of

RIGHTS OF LEGATION.

309

When the object of the mission is fulfilled, as in the case of sies of mere ceremony; or, where the mission is special, and the object of the negotiation is attained or has failed.

c.

his or members of his suite. Ruding v. Smith, ii. Haggard's C. R., 371; Prentiss v. Tudor, i. Hagg. C. R., 136; i. Burge on Col. &. F. Laws, p. 168.

"But even such right of a foreign sovereign or his ambassador to celebrate a marriage, if it exist, applies only to his subjects, countrymen, or suite. Such persons would be married according to the law of their domicile, or that of the sovereign or ambassador in whose service they are, on the assumption that for all the purposes of legal right their domicile goes with them, and that they are still at home, and in point of law are not in the foreign country where the marriage is in fact celebrated. A marriage celebrated by such sovereign or his ambassador in a foreign country, between citizens of that country, or foreigners residing there or sojourning there, would derive no force from him: it would be null and void, unless legal according to the law of the place.

"Consuls, it is still more evident, have no shadow of power to celebrate marriage between foreigners. Nor can they between their own countrymen, unless expressly authorized by the law of their own country: because, according to the law of nations, they have not the privileges of exterritoriality, like an ambassador. "That American consuls have no such power is clear, because it is not given them by any act of Congress, nor by the common law of marriage as understood in the several States. See Kent v. Burgess, xi. Simons, 361. And marriage, in the United States, is not a federal question, but one of the resort of the individual States. Bishop on Marriage, passim. Hence it is impossible for me to doubt:

“First, that marriages celebrated by a consul of the United States in any foreign country of Christendom, between citizens of the United States, would have no legal effect here, save in one of the exceptional cases above stated of its being impossible for the parties to marry by the lex loci.

"And, secondly, that marriages, celebrated by a consul of the United States in a foreign country, between parties not citizens of the United States, would have no legal effect here, unless in case they be recognized expressly as valid by the law of the place of contract.

"In countries where the mere consent of the parties, followed by copulation, constitutes marriage, as in Scotland, (McAdam v. Walker, i. Dow's R., 148; Dalrymple v. Dalrymple, ii. Hagg. C. R., 97,) and where the presence and testimony of any person whatever suffice to prove the consent, there a marriage contracted before a foreign consul might be valid, not because he is consul, but because the consent makes the marriage.

But, in most countries of Europe, specific forms of law are to be followed, without which there can be no valid marriage; and as it appears that the marriages, which the consuls of the United States have celebrated abroad, have in most cases been celebrated between persons collected at some seaport for the purpose of emigration, and who are not only foreigners as regards the United States,

3. By the recall of the minister.

4. By the decease or abdication of his own sovereign, or the

but foreigners also as regards the place in which the marriage is celebrated, it becomes material to consider the question, in the sense of this impediment of double alienage, in its relation to the law matrimonial of the United States.

"The general rule of our law is to ascribe validity to marriages when they are valid at the place of celebration.

"If the parties to the marriage are at the time actually in their own proper domicile, as in the case of Spaniards domiciled in Barcelona, and married there, it is clear that the local jurisdiction is absolute and complete, and that a consul of the United States has no more right to celebrate a marriage between such parties there than he has to undertake the duties of Captain-General.

"Suppose, however, that the parties are foreigners to the foreign place, and at the same time not citizens of the United States ?

"The other governments of Christendom, and especially those of Europe, are, it is notorious, much more exacting and punctilious than the United States in the application of their own laws of personal status to their own subjects when absent from their country.

"We may not regard this here, but they do among themselves; and therefore it is important to look at the legal bearings of a marriage celebrated in one European country between the subjects of some other government of Europe.

"The general rule there is, that the civil obligations of a person follow him into a foreign country, save that in some countries forms are prescribed, according to which a subject may relieve himself of his allegiance to his natural sovereign and the consequent civil obligations. It is believed that many of the persons, who emigrate from Europe to the United States, have not taken these preliminary steps; and therefore, until they shall have acquired a new domicile in the United States, and while they are sojourning in some other foreign country on their way for, and previous to, their embarkation, they must of necessity be still subject to the law of their domicile in so far as this law is respected by the country of their transit or of their temporary sojourn; and the question of the validity of their marriage there by a foreign consul must depend on this legal condition of the parties in the countries of Europe.

"In order to appreciate the legal relations in Europe of a marriage between parties foreign to the place of marriage, we may take, as a convenient example, the state of the law in France.

"In France, of course, all Frenchmen must conform to the precise provisions of their own law; nay, as a general rule, if they marry abroad, still they must observe certain of the conditions of the Code Civil, in order to give effect to the marriage in France. Code Civil, No. 170; Foœlix, ubi supra, No. 88.

"In regard to such foreign marriages of Frenchmen it has been adjudged by the courts of that country, that, -1. Frenchmen long established in a foreign country, and who have reserved no habitation and have no domicile there, are not held to the forms of public notice in France required by the code. Dalloz, Dict. Jur., Mariage, No. 374.