482 HARVARD LAW REVIEW 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 valid- ity 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 reUgious ceremony constituted a perfect marriage, al- though the English House of Lords has since declared in the famous case of Regina v. Millis ^^ 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 Swin- burne, 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 estab- lished 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. ^^ That there are serious objections to marriage by proxy is appar- ent. The uncertainty in regard to the legal existence of such a
- 10 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. Hammtck, The Marriage Law of England, 2 ed., 13. ^ According to a newspaper report a man in Chicago married recently a woman in Egypt by proxy.
