Page:Harvard Law Review Volume 32.djvu/519

MARRIAGE BY PROXY AND THE CONFLICT OF LAWS 483 marriage arising from the fact that the power of attorney is revoc- able and may have been revoked without knowledge of the other party or the proxy prior to the celebration of the marriage would suggest of itself the expediency of prohibiting such a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 per- missible 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 vahd 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 con- tracted 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 formaUties 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.^^ In nearly all of the coimtries, includ- ing 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.^° In Italy the marriage is valid if it satisfies as regards form either the law of the place of celebration or the na- tional law of the parties .^^ Germany recognizes the same prin- ciple except that marriages celebrated in Germany must con- « Belgium: Brussels, May 29, 1852, Pas. 52, 2, 237. England: Kent v. Burgess, 11 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 coimtry although there has been an eva- sion of the local law. Compton v. Bearcroft, cited in Middleton v. Janverin, 2 Hagg. C. R. 444, note; Simonin v. Mallac, Sw. & Tr. 67 (i860). See also Medway v. Needham, i6 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. Cxmningham, 206 N. Y. 341, 99 N. E. 845 (1912). '" BUZZATI, L'AUTORITA DELLE LeGGI StRANIERE RELATIVE AlLA FoRMA DEGLI Atti Civili, 187 et seq. " Article 9, Preliminary Dispositions, Civil Code.