MARRIAGE BY PROXY AND THE CONFLICT OF LAWS 473 MARRIAGE BY PROXY AND THE CONFLICT OF LAWS THE 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 EngHsh 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.^ The continental writers also, who are more incHned to discuss problems of a purely theoretical nature have paid little attention to the subject in recent times.^ 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: ^
- ' Mulierem ahsenti per litter as eius vel per nuntium posse nuhere placet ,
si in domum eius deduceretur: earn vero quae abesset ex litteris vel nuntio
- The first edition appeared in 1686, the second in 1711.
- 2 V. ScHERER, Handbuchdes Kirchenrechts (page 192) gives the following bibli-
ography: Ariens, De NxrPTiis, quae per Procuratorem Contrahuntur, Traj. 1841; Kutschker, E. R. 4, 321-46; Lxjdewig, De Matrimonio Principis per Procuratores, 1736; MtJLLER, De Matrimonio Absentium, 1740; Sanchez, De Sancto Matrimonii Sacramento Disputationum Tomi Tres, LII, Disp, ii; Schopfer, De Matri- monio per Substitutum Contracto, 1709. » Digest, XXIII, 2, 5.
