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 suggested' that there are consid- Marriages of 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.

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.

2

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

riage, it is expedient that the marriage ceremony should, if possible, be performed in the manner required by the law of the place of contract.1

252. It is suggested that no notice has been taken Objections anof "the difference between consuls who are subjects swered. of the State where they reside, and those who are not such subjects." Undoubtedly such difference exists, since a subject cannot escape his local obligations by means of an appointment as foreign consul; but that is immaterial to the question, because the consul does not, by reason of his being a foreigner, become therefore authorized to solemnize marriage. If, indeed, being a subject of the State, he have power as a local magistrate to solemnize marriage, or, being a foreigner, he have the same power as a clergyman, he may do it; but, in either case, not in his capacity of consul.

253. Another point of consideration is further suggested, namely, "the difference between consuls residing in a State where there is a minister representing the government by whom they were appointed, and consuls residing in a State where there is no minister;" and the peculiar importance of this point in Germany has been mentioned. It is true, that in a country where his government has no minister, the duties of the consul expand, of necessity, into a larger field, because he will be called upon to communicate with his own government, or with that near which he resides, in matters which would otherwise devolve on a minister; but that circumstance does not cure his legal incapacity as consul to solemnize marriage in Christian countries without authority of the local government.2

1 Statutes at Large, vol. xii. p. 79; Instructions to Mr. Fay, November 12, 1860, MS.

2 Opinions of the Attorneys General, vol. vii. p. 343.

CHAPTER IX.

THE DUTIES OF A CONSULAR OFFICER AFTER RECEIVING

NOTICE OF HIS APPOINTMENT.

Bonds to be 254. As soon as a consul general, consul, or comgiven by con- mercial agent is officially notified of his appointment, and conditions he must, without unnecessary delay, before he receives

sular officers,

thereof.

his commission or enters upon the duties of his office, take the oath of office and allegiance, and also enter into a bond with the United States, with such sureties (who shall be permanent residents of the United States) as shall be approved by the Secretary of State, in a penal sum of not less than one thousand nor more than ten thousand dollars, and in such form as the President shall prescribe, conditioned for the true and faithful accounting for, paying over, and delivering up of all moneys, goods, effects, books, records, papers, and other property which shall come to his hands, or to the hands of any other person to his use as such consul general, consul, or commercial agent, under any law now or hereafter enacted, and for the true and faithful performance of all other duties now or hereafter lawfully imposed upon him as such consul general, consul, or commercial agent; and in the cases of consuls general, consuls, and commercial agents embraced in schedule B of the act of August 18, 1856, such bond must contain, by way of further condition, the stipulation required by section five of the said act, namely, that they shall not, while holding their

offices, be interested in or transact any business as merchants, factors, brokers, or other traders to, from, or within the ports, places, or limits of their consulate or commercial agencies, directly or indirectly, either in their own name or in the name or through the agency of any persons.1 In the case of consuls included in schedules B or C, there is the further condition that all official fees shall be accounted for and paid to the United States.

255. He must at the same time inform the Department of the place of his birth and the State of which he was a citizen at the time of his appointment.

256. There are certain formalities which must be Formalities to strictly observed in the execution of the bond.

1. The Christian names must be written in the body of the bond in full, and so signed to the bond.

2. The places of residence of the principal and the sureties must also be stated in the bond or in the certificate of the District Attorney.

3. Each signature must be made in the presence of two persons, who must sign their names as witnesses.

4. The United States Attorney of the district in which the sureties reside must certify that they are severally sufficient to pay the penalty of the bond, and are citizens of the United States.

5. The date of the execution of the bond must be inserted.

257. If the consulate is one of those included in schedule B of the diplomatic and consular act of August eighteen, eighteen hundred and fifty-six, the bond must be executed in the manner prescribed by Form No. 2. If the consulate is included in schedule C the bond must be executed agreeably to Form No. 3.

1 Statutes at Large, vol. xi. pp. 56, 57.

be observed in

the execution of bonds.