The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-11-26

fee i: to say that In some countries religious Or co.
clssiasicA mpe exist in Others, where that
is Of the case, the legal conditions Of capacity and
requisite forms are very serious obstacles critical
examination o. the Law Of dinei ent c,unies o. Eu
rope would only serve augment the Weigh OF legal
OBJ ections 20 the celebration Of marriages by consus
OF the United States.
Il msy be, that marriage between foreigners
though utterly null in the country where it is cele:
bra.ed, nj sht II the parties emigrate to this coun.
try, acquire validity in some Of tho States Of tas
Union, as marriage proved BY repute and by coas.
bitasop following consent, according to the old rule
Of the common law. Even than, the certificate OF
the consul would not constitute the marriage; 1t
would serve AZ most only proof Of consent, to be
connected with proof Of cohabitation.
Bot tie practice Of celebrating such marriages
would be Objectionable even then, because It u 10
fraud Of tie local Jurisdiction, and contrary to the
dictates OF international comfy, not TO positive
| lay.
In what y1ecedes, the inquiry has been treated as
relating entirely to marriages assumed 70 be legal
| lied by consuls of the United States residing ON.
cielly IN any Of the countries Of Chris.endom;
For, in regard to States not Christian, although
i we make treaties with them % occasion may re.
quire, and assert in our intercourse with them all
such provisions of the Laws of nations % are OF
tba. full reciprocity Of municipal obi cations and
rights which obtains among the nations Of Chris.en-
dom.
This point is determined very explicitly IL our
treaty with China, which in the most unequiya;cal
whether as to person Or property, under the sole
jurisdiction civil and criminal Of the authorities OF
the Unitsd States (see the Treaty, viii Stat ..
Large, p.592); and Congress has made provisions
10 meet the eXe OF the treaty Ia this respect
(Aet OF August IL, 1913, tx Stat. at Large, p 276)
Our treaty with Turkey is less explicit On this
pCip; but il expressly ascrioes to citizens OF the
| led VIE f0riQ ~
Csc the Treaty VIII Stat. AZ Large, p. 1851 pro
vision to which is made by the above cited act OF
Congress: and as the treaty stipulates how con,ro
verses in Turkey, between citizens Of the United
States and subjects of the Porte, shall be ajjudca
ted that IL, by The local authorities in presenc- of
repre- sentative OF the United States aud as ]. stpa-
Iates that only o certain class Of litigation shall be
submits TO the Porte and it gives to Americans
in Turkey a]l the rights Of the most favored patton,
with express reference to the usages observed 70
wards other Franks.".-it might be assumed that
in Turkey as it certainly does to subjects there Of
all tie Christian States Of Europe (Mofeuil, Guide
des Agents ConsulaiIes, tit. iI.)
Our treaties with the minor Mob amDedan
governments of Tripoli, Molc,co, Muscat, and
Buni, even less explicit, than that with Turkey.
stu, 1t may be assumed in regard to them as
principal 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 full reciprocity Of municipal rights as
between itself and any State not Christian; and
above enumerated, Americans possess the rights Of
exceptionally which belong to all other FRANKS"
that is, the races Of independent Christian Europe
and America (See Wards Law Of n att ms, vol. Il,
passim; Kluber, Droit des Gems, 9. i'd; Wsenans
In our treaty with Siam, we have incon-
s;deraely engaged that our citizens bling there
Of the t eoastry in all i points, esse the Tleaty
viii Stat at Large, p. 455.) do not know how they
are to do this, unless they become Pagans in al
points That provision of the treaty is, in the inter
national relations of the United States. the solitary
exception, it is believed, to the rule that the muni
cipal rights of citizens of the United States not
subject to the local law Of any State not Christian.
9rue, we deal with such States as governments,
and apply 10 them, SO far as we CAM the doctrines
Of 0ui International Law. (fhe Helena, ~. Robins.
Adm. R., ~ But, when we speak of the law Of M
tions we me an the international law Of the nations
Of Christian Europe aud America. Our treaties with
nations other than these bring them practically
within The pale Of publ, law but it is only to
political rights: municipal rights remain es they
wele. (Whe atoms Ell ments. p. "A Polson's Law
| Of nations, p. II; Pnilhmores International Law,
p. S6)
Onttis point, as on 81 Others in the course of the
present opinion, English and American au horltiss
arc cited incis Intimately, because the law Of bota
countries maiI tails the same d0ctriue il the prem
ses; ard Great Britain is in advance Of rather than
thind, the other Datiops Of C1ristendom, IN re-
pellng the municipal Jurisdiction OF communities
In regard to Mr.. phillinore, however, IL needs to
be roted, that lis late work is only Of value as
repository Of Ieie ces; fo it is very Inaccurate in
matters OF facts and is tbrsugl out 50 colored aud
perverted by national prejudIces, that 1t is entitled
70 no respect or authority as treatise Of positive
| law.
| Tie doc irine above enun lated applies to Japln;
to the minor indepeLden states Of Asia an. its
| islands, whether Mohammedan, lido Chinese, or
what OF hers: to he barba'ic communities OF Africa
and still more to the petty rsuar tribes Of Oceanica
Our treaty with the Hawaiian Islands places them
on the footing Of Christian Stsre, with the munich
pal rights pgiDg to the international Law of
Chlistendom. Gx Stat a. Large, p. 9I7)
Nov, il Iegsrd to the States not Christian. not
only the Mohammedan States, hut all the rest, II
seems to that the true rula is, that contracts OF
citizeIs of the United States in general, and esped
ally the contract Of marriage, are not subject TO the
ir oci hu. must be governed by the law OF the DO,
mici; and that therefore, in such countries, valid
contract of marriage mag be so.emnized, and the
contract authenticated, not only by an ambassador,
but by COZ sol Of the United States
The English author tiles come to substantially the
same con fusion, for similar reasons. "Nobody can
suppose says Lord Stowe "tbat whilst the Mogn,
empire existed. an Enaiishman Tin Hindost,n) was
bound to consult the Koran for the celebration Of
his marriage"
In most OF the Asiatic and African countries, IN
ded, the law is personal, not local, as it was In
many parts Of modern Europe in the formative
period If its present organization. Hence, in BIZ
fish India, Hindus, Pars,s, Jews, Mohamme isns,
Christians, all marry according to the law OF their
religion. Nay, the ecclesiastical Law Of England
| goes further than this tor II recognizes the mar
rage OF Epgisbmen, celebrated according t, the
English lrw-- that is, by clergyman, in Britiah
factories abroad though situated Christian coun-
tii.s-but Countries OF the Roman Catholic or Greek
religion. Ruding w. Smith, ii. Hsgg. c. r., p.
37l; Kent VS.. Burgess, xi. Sirons, 36l.) Indeed,
in the preceding cases as In others, the English
authorities, IS we have already seen, lay down the
bread Iu,e that where, owing TO religions legal
difficulties, the marriage is impossible by the lea
loci, still Lawful marriage ray be contracted aud
of course authenticated by the best means Of which
the circumstances admit IS IN many cases Of mar
riaees contra red in the East Indies and in other
foreign possessions Of Great Britain. (sse Cattsrali
VS.. Cate rail-. l. Roberts, 5S0.)
This doctrine is conformaole to the canon law,
which gives effect to what are called matrimonial
cf0ndtsi'no, that Is, marriages celebrated without
ob, ervances of the religious and other formalities
dscreed by ihe Council o. Trent, (Cavasrio, Dsre