Page:Harvard Law Review Volume 32.djvu/512

476 476 HARVARD LAW REVIEW Since the Council of Trent (1563) matrimonial consents must be exchanged according to the Canon Law before a priest and at least two witnesses. Otherwise the marriage is invahd. There appears to have been at first considerable dispute among the canonists on the point whether this new requirement affected the rules of the Canon Law relating to marriage by p^ox)^ Some argued that the priest and the witnesses were to identify the parties and ascertain their intention to marry and that this necessitated the presence of both parties. This contention was rejected, it being held that the main object of the provision of the Council of Trent was to give pubhcity to the marriage, to bring the fact of marriage to the notice of the church. ^^ Thereupon some maintained that the power of attorney must be executed in the presence of a priest and two witnesses, but this view also did not prevail.^^ The result was that even in those countries in which the Council of Trent was accepted a marriage conforming to the requirements of this Council might be entered into by proxy upon the same conditions, so far as the proxy is concerned, as before.^* The decretal above quoted requires that the mandate or power of attorney be special and that it has not been revoked before the celebration of the marriage.^^ It mentions also the fact that in the absence of an express authorization the proxy shall have no power of substitution. No special form is prescribed for the power of attorney, so that a mere oral authorization would be sufficient.^ The agent may be either a man or woman, no distinction being made between the sexes.^^ The provisions of the Canon Law relating to marriage have ^* 5 Ferraris, Prompta Bibliotheca Canonica, Juridica, Etc., Matrimonixjm, Articulus I, No. 34. " Sanchez, De Sancto MATRUioNn Sacramento Disputationum Toin Tres, DiSPUTATIO, II, No. 23. RECHTS, 490; RiCHTER, II33; 2 V. SCHERER, 5«/»ra, I92; V. SCHXTLTE, LeHRBUCH DES KATHOLiscHEN UND evangelischen Kirchenrechts, §159; Van Espen, Jus Ecclesi- asticum Universum, Pt. 2, § I, Tit. 12, No. 10. The canonists advise parties marrying by proxy to exchange matrimonial consents in person later. Sanchez, supra, No. 31, note. " As regards ordinary contracts the continental rule of agency allows the agent to bind the principal notwithstanding a revocation of the agent's authority if the contract was entered into before the agent knew of the revocation. '" 2 V. ScHERER, supra, 192. " Sanchez, supra, No. 15.
 * ' Carriere, De Matrtmonio, § 4. See also Friedberg, Lehrbuch des Kirchen-