Belgium, France, and Italy have authorized marriage by proxy again during the present war. The Belgian law of May 30, 1916, provides that "during the duration of the war either or both of the parties may appear before the officer of the civil status either in person or by a special and authentic power of attorney." According to Masson,35 the law was passed for the benefit of Belgian soldiers residing abroad. The wording of the law gives it a general application.

9934

The French law of April 4, 1915,36 authorized soldiers and sailors with the colors to marry for grave reasons by proxy with the permission of the minister of justice and of the minister of war or the minister of the navy. A circular of the minister of justice of April 8, 1915, defines more fully the object of the law and the particular steps to be followed.37

Soldiers and sailors, employees of the Army and Navy, and persons in the service of the Army and Navy, were authorized in Italy to marry by proxy by a decree of June 24, 1915.38

24 MASSON, LA LÉGISLATION DE GUERRE, London, 1917, 146.

35 Ibid., 145.

36 DUVERGIER, LA LÉGISLATION COMPLÈTE DES LOIS, ETC., 1915, 113.

The law of August 19, 1915, has extended the benefit of the law of April 4 to French prisoners of war in Germany. CLUNET, 1916, 864.

37 DUVERGIER, supra, 1915, 119, 120.

As grave reasons the following are specified: (1) the existence of illegitimate children; (2) pregnancy; (3) imminent death of either party; (4) promise to marry before mobilization and service in a place dangerous to life.

The proxy must be at least twenty-one years of age and be of the male sex. He must not be a relative within the prohibited degrees of relationship, nor have been convicted of crime.

The power of attorney must be executed in accordance with the law of June 8, 1893, relating to acts of persons in the army.

For a criticism of the above provisions see Albert Wahl, “Mariage par Procuration," REVUE TRIMESTRIELLE DE DROIT CIVIL, 1915, 5.

38 67 LA LEGGE (Supplemento Legislativo), Col. 511; CLUNET, 1917, 1172.

The power of attorney must be special and under penalty of nullity must indicate (1) the first and last name of the person giving the proxy; (2) the age and the place of birth of himself and of the person with whom he contemplates matrimony; (3) if he is a soldier, his rank and the regiment to which he belongs. The power of attorney must be executed in the presence of two witnesses, in conformity with article 2 of the decree of May 23, 1915. The marriage is valid notwithstanding a defect in the power of attorney at the expiration of six months after the husband has left the military service. 67 LA LEGGE (Supplemento Legislativo), Col. 511; CLUNET, 1917, 1172.

An agreement was entered into between the French and Italian governments according to which Italian soldiers may get married by proxy in France under the conditions prescribed by the Italian decree of June 24, 1915, and by way of reciprocity

As for England, marriage by proxy is incompatible with the modern marriage acts.39 The marriage act of 1898 prescribes that the parties must say in the presence of the registrar or authorized person and of the witnesses, "I call upon these persons here present to witness that I, AB, do take thee, CD, to be my lawful wedded wife [or husband]," or in lieu thereof the following words: “I, AB, do take thee, CD, to be my wedded wife [or husband]." These provisions evidently contemplate the personal presence of the parties and thus preclude the possibility of marrying by proxy.

With respect to this country the matter is not free from difficulty. In some of the states, in which the common-law marriage is no longer recognized, the statutes manifestly require the personal presence of the parties. In other states the statutes are not so clear. In the great majority of states the common-law marriage is still valid, notwithstanding modern statutes relating to the solemnization of marriage.40 Is not marriage by proxy valid in these states? The answer will depend in the first place upon the question whether marriage by proxy was recognized by the English law at the time our colonies were settled. On this point there can be little doubt. We need not inquire here whether the general Canon Law had force in England proprio vigore before the time of the Reformation or whether it required acceptance by the King's Ecclesiastical Law. As regards marriage by proxy we have the clearest proof that the Canon Law was so accepted in England, for we find in Lyndwood's Provinciale, written in 1430, which contains the accepted constitutions of the Church of England the following: 42

41

"Contractibus matrimonialibus qui non solum possunt fieri utraque parte præsente, sed altera absente ut videlicet contrahatur matrimonium per procuratorem, sicut legitur et notatur de procuratione c. ulti. li. vi et in hoc casu requiritur mandatum speciale ut ibi dicitur: nec potest talis procurator alium substituere, ut ibi dicitur. Absque speciali mandato et si revocetur mandatum talis procuratoris etiam ipso ignorante re integra non tenebit French soldiers may be married by proxy before the proper Italian officer of the civil status upon compliance with the provisions of the French law of April 4, 1915. See note of Minister of Justice, CLUNET, 1917, 1171.

39 MARRIAGE ACT, 1836, 6 & 7 WILL. IV, c. 85, § 20; MARRIAGE ACT, 1898, 61 & 62 VICT., c. 58, § 6.

40 The states are enumerated in L. R. A. 1915E, 19-20; ANN. CAS. 1912D, 598 ff.

41 In regard to this question see Maitland, “Canon Law in England,” 11 ENG. HIST.

REV., 446; OGLE, THE CANON LAW IN MEDIEVAL ENGLAND, London, 1912.

Bretton-Hopyl edition, 1505. Fol. CXLVIII,

contractus ut ibi dicitur. Ratio est quia deficit consensus mandantis et sic videtur quod ubicunque actus gesti per procuratorem debet adesse verus consensus Domini pro substantia actus non est necesse quod revocatio transeat in notitiam procuratoris."

The English law thus adopted the provisions of the Canon Law relative to marriage by proxy. No change was made in this respect by the Reformation. In the reign of Henry VIII the clergy was prohibited from enacting constitutions and ordinances without the King's consent, but the existing Canon Law was continued in force.43 A revision of the Canon Law by a commission of thirtytwo members was contemplated by that statute but this revision was never consummated. Mary the Catholic 44 repealed the above law but it was reenacted under Elizabeth.45 The statute of Henry VIII has remained the basis of English ecclesiastical law except in so far as the latter may have been changed by special legislation.

That marriage by proxy was a part of the English law until the eighteenth century would appear from Swinburne's treatise on Espousals in which he says:

46

"Not only such Persons as be present, but those Persons also which are absent may contract Spousals or Matrimony together. So did Isaac and Rebecca, as it appears in the Sacred Scriptures. Betwixt them that be absent, Spousals or Matrimony may be contracted three manner of ways; that is to say, by Mediation of their Proctors, or of Messengers, or of Letters; provided nevertheless in every of those Cases, that the Parties have some notice or intelligence the one of the other, at hand by Fame or Report; for unto those who be utterly unknown to us, we cannot yield our Consent, (without the which it is impossible to contract Matrimony or Spousals) no more than it is possible for us to love them, of whom we have never heard."

Swinburne thereupon enters upon a lengthy explanation of the subject, as regards the sufficiency of the power of attorney, the words to be used by the proxy, et cetera.

43 25 HEN. VIII, c. 19. The statute contains the following provision: "That such canons, constitutions, ordinances, and synodals provincial being already made, which be not contrariant or repugnant to the laws, statutes and customs of this realm, nor to the damage or hurt of the King's prerogative royal, shall now still be used and executed, as they were afore the making of this act, till such time as they be viewed, searched, or otherwise ordered or determined by the said two and thirty persons, or the more part of them, according to the tenor, form and effect of this present act." 44 1 & 2 PH. & M., c. 8.

45 I ELIZ., C. I.

46 SWINBURNE, ESPOUSALS, 2 ed., 162.

Did marriage by proxy become a part of the common law of this country? In the absence of decisions on the point no absolutely certain answer can be given to this question. In favor of the validity of marriage by proxy the following may be said. The American colonies are deemed to have brought with them the English law of marriage, so far as it was adapted to their environment. They accepted the then prevailing view that a marriage de praesenti without a religious ceremony constituted a perfect marriage, although the English House of Lords has since declared in the famous case of Regina v. Millis 47 that this has never been the English law. That such consent might be expressed by an agent was admitted by the Roman law, by the Canon Law, and, according to Swinburne, by the English law as late as the eighteenth century. If marriage by proxy did not become law in this country it must have been because it did not suit our conditions. A comparison of the conditions in England and in the American colonies would lead to the conclusion, however, that during our colonial days there existed stronger reasons for the recognition of marriage by proxy in this country than ever existed in England. Many a colonist must have left his sweetheart behind when he first ventured over seas. Others, without being engaged, must have desired, after becoming established in this country, to marry someone whom they had known in their native land. A trip to the old country for that purpose was long and costly. Unless marriage could be celebrated abroad by proxy the woman would be compelled to go to the man in a strange land and cross the seas unmarried. Marriage by proxy would enable the woman to become the man's wife before leaving her home.

Marriages by proxy have doubtless taken place in this country, but no record thereof can be found in the decisions of the courts.48 That there are serious objections to marriage by proxy is apparent. The uncertainty in regard to the legal existence of such a

47 IO CL. & F., 534 (1844). That the decision of the House of Lords is historically unsound, see 2 POLLOCK AND MAITLAND, supra, 367 et seq.; BISHOP, MARRIAGE AND DIVORCE, 5 ed., § 276 et seq.; FRIEdberg, LehrbucH DES KIRCHENRECHTS, 309 et seq.; HOWARD, supra, 316.

Marriage based upon mere present consent came historically to an end in England through Lord Hardwick's Act of 1753, 26 GEO. II, c. 33. HAMMICK, THE MARRIAGE LAW OF ENGLAND, 2 ed., 13.

48 According to a newspaper report a man in Chicago married recently a woman in Egypt by proxy.

marriage arising from the fact that the power of attorney is revocable and may have been revoked without knowledge of the other party or the proxy prior to the celebration of the marriage would suggest of itself the expediency of prohibiting such a marriage. In view of the fact, however, that marriage by proxy was permissible in England until the eighteenth century and has been recognized in all countries so long as marriage rested upon mere consent, it must be regarded as valid in those states in which the common-law marriage still exists. Should this view be taken by the courts it would follow logically that marriage might be contracted in such a state by proxy, although neither of the parties was present when the consents were exchanged by the proxies.

II

Turning from the internal law of marriage to marriage by proxy in its international aspects, it is apparent that the question relates to the formalities or to the mode in which the marriage must be celebrated. According to the generally accepted view a marriage is valid as regards the mode of celebration if it conforms to the law of the place of celebration.49 In nearly all of the countries, including the United States, the rule lex loci celebrationis has a mandatory character, so that a marriage not celebrated in accordance with its provisions is void.50 In Italy the marriage is valid if it satisfies as regards form either the law of the place of celebration or the national law of the parties.51 Germany recognizes the same principle except that marriages celebrated in Germany must con

49 Belgium: Brussels, May 29, 1852, Pas. 52, 2, 237. England: Kent v. Burgess, II Sim. 361 (1840); Butler v. Freeman, Ambl. 303 (1756); DICEY, CONFLICT Of Laws, 2 ed., rule 172; WESTLAKE, PRIVATE INTERNATIONAL LAW, 5 ed., 60. France: App. Paris, Dec. 18, 1837, S. 38, 2, 113; Trib. Civ. Seine, July 27, 1897, CLUNET, 1897, 1029. United States: See note 57 L. R. A., 155-59; STORY, CONFLICT OF LAWS, 8 ed., 216; I WHARTON, CONFLICT OF LAWS, 3 ed., 366 et seq.

The rule is applied in England and in this country although there has been an evasion of the local law. Compton v. Bearcroft, cited in Middleton v. Janverin, 2 Hagg. C. R. 444, note; Simonin v. Mallac, Sw. & Tr. 67 (1860). See also Medway v. Needham, 16 Mass. 157 (1819); Sturgis v. Sturgis, 51 Ore. 10, 93 Pac. 696 (1908); State v. Hand, 87 Neb. 189, 126 N. W. 1002 (1910); Leefield v. Leefield, 85 Ore. 287, 166 Pac. 953 (1917). Contra, Cunningham v. Cunningham, 206 N. Y. 341, 99 N. E. 845 (1912).

50 BUZZATI, L'AUTORITÀ DELLE LEGGI STRANIERE RELATIVE ALLA FORMA DEGLI ATTI CIVILI, 187 et seq.

51 Article 9, Preliminary Dispositions, CIVIL CODE.