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if otherwise valid, are not invalidated by the above statute. The statue does not authorize the Consular Officer to perform the ceremony. All that is prescribed is that it is to be in his presence.

384. As it is a principle of international law that the law of the place of solemnization shall, whenever this is practicable, determine the mode of solemnization, Consuls, when giving their sanction to a proposed marriage of this class, should be satisfied, first, that the parties are domiciled in the District of Columbia or in the Territories, and, secondly, that the requirements of the law of the place of celebration should be as far as practicable complied with. It is not intended, however, in these instructions, in any way to question or modify the principle of international law that while the form of solemnizing marriage is determined ordinarily by the law of the place of solemnization, exceptions are recognized, (1) when it is impossible to use such form, (2) when it is repugnant to the religious convictions of the parties, (3) when it is not imposed on foreigners by the sovereign prescribing it, (4) when the ceremony is performed, as will be seen in a subsequent clause, in a non-Christian or semicivilized country.

385. In Massachusetts, where the service must be performed (except in the case of Quakers) by a justice of the peace or by a minister of the Gospel, ordained according to the usage of his denomination, &c. (Pub. Stat., Mass. ch. 145, sec. 22) it is provided that marriages solemnized in a foreign country by a Consul or Diplomatic Agent of the United States shall be valid in this commonwealth. (Ibid., sec. 28.)

As a general rule, matrimonial capacity is determined by the law of the place of domicil of the party in question.

Solemnization by a clergyman or magistrate is not necessary to the validity of a marriage in most jurisdictions in this country.

386. The rule as to prevalence of local forms does not apply to non-Christian or semi-civilized countries where Consular courts are established. In those countries the Consular Officer will have to determine, so far as concerns persons domiciled in the District of Columbia or in the Territories, whether the parties would be authorized to marry if residing

Duties of con suls,

In non-Christian countries.

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in the District of Columbia or in one of the Territories. His duty, so far as concerns persons domiciled in a State, is to inquire whether they are authorized to marry in such State. It is held, also, in respect to a Consular Officer in such countries that the right to perform marriage is incident to the judicial office, and consequently that he may solemnize the ceremony if it is the wish of the parties that he should do so. It is deemed preferable, however, in such cases, where there is a duly qualified minister of a religious denomination, whose services can be obtained, that the ceremony should be performed by him, and that the Consular Officer should confine himself to granting the certificate before mentioned.

387. The statutory provisions refer only to Consuls. It is not unusual for Americans abroad to ask permission to have a marriage ceremony performed in the Legation, and in the presence of the Minister. There is no reason why a Minister or Chargé should not comply with this request. But it is proper, at the same time, to inform the parties making the application that, in the opinion of the Department, a ceremony of marriage, performed within the precincts of a Legation, should with the above limitations comply with the requirements of the laws of the country within which the Legation is situated.

388. Whenever an application is made for the use of the Legation for such a purpose, it will be the duty of the principal Diplomatic Representative to inquire whether the parties may lawfully marry according to the laws of the country in which the Legation is situated; and whether the proper steps have been taken to enable the marriage ceremony to be legally performed according to such laws. If either of these inquiries should be answered in the negative, or if the case does not fall within one of the exceptions above stated, it will be his duty to inform the applicants that he cannot permit the ceremony to be performed in the Legation, as there may be grave doubts respecting its validity.

If it is desired in such cases by citizens of the District of Columbia or of the Territories to avail themselves of the statute above recited, then the Diplomatic Representative

should inform them that under the laws of the United States it will be necessary to have the principal Consular Officer of the United States present, and he should give them an opportunity to have such officer present, if they desire it.

389. In all cases of marriage before a Consular Officer, the officer shall give to each of the parties a certificate of marriage, and shall also send a certificate thereof to the Department of State, there to be kept.

This certificate must be under the official seal and must give the names of the parties, their ages, places of birth and residence, the date and place when and where the ceremony was performed, and state that the marriage took place before the Consular Officer giving the certificate. (Form No. 87.)

The Statute (Rev. Stats., sec. 4082) does not authorize a Diplomatic Officer to witness or certify to a marriage ceremony performed before him.


No certificate as to law of marriage

390. It is not competent, without special authority from the Department, for Diplomatic Agents, Consuls, or Consular to be given. Agents to certify officially as to the status of persons domiciled in the United States and proposing to be married abroad, or as to the law in the United States, or in any part thereof, relating to the solemnization of marriage.*

It is proper for this Department and its representatives to advise citizens of the United States proposing to marry in foreign countries to comply in all respects with the lex loci of the solemnization; but it cannot authorize its representatives to certify to disputed or disputable facts, nor as to the condition of law throughout the United States. Certificates of such a character having no legal authority could have no effect whatever on the judiciary before whom such questions of law or fact would necessarily come for decision. Many illustrations could be given of the danger of exposing marriages contracted abroad in reliance upon such official certificates to being invalidated by the subsequent judg. ments of courts having jurisdiction of the parties and the contract.

The order in question (paragraph 399) is intended to restrain the official action of Consuls, but in no degree to prohibit unofficial advice and counsel to individuals, or giving personal opinions or testimony as to laws or facts with which the Consuls themselves may be familiar. The inhibition applies only to official certification of facts or law outside the scope and function of official duties and power.-Mr. Bayard, Secretary of State, to Mr. Walker, April 7, 1887. MSS. Instructions to Consuls.

fugitive criminals.


Extradition of 391. Consuls are sometimes charged with the duty of making requisitions for the extradition of fugitives from justice, and provision has been made in the treaties with several governments for his authority in this respect. That authority, however, is confined in most of the treaties to superior or principal Consular Officers, and is operative only during the absence of a Diplomatic Representative, and in those countries in which the United States have no such R. S., sec. 5271. representative. The statute also has provided for the Consular certification of copies of depositions, warrants, and other papers of extradition, and for their receipt as evidence on a hearing of the case in the United States. The words "superior or principal Consular Officer,” as found in the treaties and statute, are held to mean a Consul-General, if there be one in the country, or, in his absence, a principal Consular Officer as distinguished from a subordinate officer. Applications for extradition are made, as a rule, by the Diplomatic Representative. In case a Consul is charged with such a duty, he may expect to receive instructions from the Department of State or from the Diplomatie Representative. In the absence of such instructions, a Consul is not authorized to take any part in the arrest and detention of a criminal.

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392. Consuls are requested to inform the Department of State whether, in the countries in which they respectively reside, they are required to pay taxes of any description; and, if so, the rate and amount of such taxes. If in any country or city they are exempted from taxation, through courtesy, by law, or local regulation, they will communicate the fact, with a copy of the law or regulation, if such exist. They should remember, however, that, in the absence of treaty stipulation, they have no right to demand exemption from local taxation. Such exemption is often conceded as a matter of courtesy or comity, especially from a personal tax; but it is more rarely that exemption is granted from payment of duties on their furniture, baggage, or other personal effects.

393. They will also state whether any distinction is made in respect of taxation between Consuls who are permitted to trade or engage in business, and those who are prohibited from so doing. They should also be careful to inform the Department whether they are required to pay duties or other public charges upon supplies of stationery, flags, furniture, and other articles sent to them for official use. It is customary for this Government to admit free of duties and charges at its custom-houses all articles for the official use of the Consular Officers of foreign states, when similar privileges are granted to its officers. If these privileges are refused in any instance, the refusal should be reported to the Department of State for such proceedings as may be deemed proper; or, in the case of Consular Officers of the United States in Mexico, to the United States Minister in that country, who, on being satisfied that the foregoing articles are detained at the customs office, will at once apply to the Mexican authorities for their free entry.


394. Consular Officers are forbidden to recommend any person for office under the Government of the United States, except for the subordinate positions in their several Consulates. They are prohibited by statute, without the consent of the Secretary of State previously obtained, from recommending any person, at home or abroad, for any employment of trust or profit under the government of the country in which they are located.


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395. Consular Officers are not allowed to allude in public Public speeches. speeches to any matters in dispute between the United States and any other government, nor to any matters pending in the Consulate. It is a still better rule to avoid public speeches when it can be done without exciting feeling in the community in which the Officer resides. They will be particularly careful to refrain from unfavorable comment or criticism upon the institutions or acts of the government to which they are accredited; and it is deemed unadvisable

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