Marriage by Proxy and the Conflict of Laws.pdf - MARRIAGE...

HeinOnline -- 32 Harv. L. Rev. 473 1918-1919
MARRIAGE BY PROXY AND THE CONFLICT OF LAWS
473
MARRIAGE BY PROXY AND THE CONFLICT
OF LAWS
I
T
HE question whether a marriage may be celebrated by proxy
has been of very little practical importance in modern times.
So far as England and America are concerned no mention is made
of marriage by proxy in the books of the nineteenth and twentieth
centuries. The only discussion of the subject in the English
language that has come to the notice of the writer is found in Swin-
burne's "Law of Espousals" which was first published in the latter
part of the seventeenth century.
1
The continental writers also, who
are more inclined to discuss problems of a purely theoretical nature
have paid little attention to the subject in recent times.
2
The
legislation of the present war, however, has given to the subject
renewed importance, for in three of the continental countries -
Belgium, France, and Italy- marriage by proxy has been expressly
sanctioned by law. The presence of so many American soldiers
abroad naturally raises the question whether they may contract a
marriage by proxy either by virtue of the American law or by virtue
of the law of the country in which they may happen to be for the
time being. Before an answer can be given to these questions the
subject of marriage by proxy must be considered both from the
standpoint of the internal law of the principal countries concerned
and from the viewpoint of the American rules relating to the conflict
of laws.
That marriage by proxy was allowed in the late Roman law and
in the Canon Law is an established fact. Pomponius says:
3
"M ulierem absenti per litter as eius vel per nuntium posse nub ere placet,
si in domum eius deduceretur: cam vera quae abesset ex litteris vel mmtio
1
The first edition appeared
in
r686, the second
in
17JJ.
2
2 V. SCHERER, !IANDBUCHDES KlRCHEJ).'RECHTS (page 192) gives the following bibli-
ography: Aru:ENs, DE NUPTITs, QUAE PER PROCURATOREM CoNTRAHUNTUR, Traj. 1841;
Kutschk.er,
E. R.
4, 321-46; LUDEWIG, DE MATRIMONIO PRINCIPIS PER PROCURATORES,
1736; MULLER, DE MATRIMONIO A.llSENTIUM, 1740; SANCHEZ, DE SANCTO MATRIMONII
SACRAMENTO DISPUTATIONUM Tom
TREs,
LII, Disp.
n;
SCHOPFER, DE
MATRI-
MONIO PER SUBSTITUTUM CONTRACTO, 1709.
I
DIGEST,
XXIII,
2,
5·

HeinOnline -- 32 Harv. L. Rev. 474 1918-1919
474
HARVARD LAW REVIEW
suo duci a marito non posse: deductione enim opus esse in maritt, non in
uxoris domum, quasi in domicilium matrimonii."
According to this passage a man who was away from home might
marry a woman by letter or messenger, but marriage could not be
contracted in this manner by a woman who was absent from the
man's place of residence. The reason for this difference between
the man and the woman resulted from the requirement of the
Roman law that the wife be led to the husband's home
(deductio in
domum mariti).