Page:Harvard Law Review Volume 32.djvu/516

480 As for England, marriage by proxy is incompatible with the modern marriage acts. The marriage act of 1898 prescribes that the parties must say in the presence of the registrar or authorized person and of the witnesses, "I call upon these persons here present to witness that I, AB, do take thee, CD, to be my lawful wedded wife [or husband]," or in eu thereof the following words: "I, AB, do take thee, CD, to be my wedded wife [or husband]." These provisions evidently contemplate the personal presence of the par- ties and thus preclude the possibility of marrying by proxy. With respect to this country the matter is not free from difficulty. In some of the states, in which the common-law marriage is no longer recognized, the statutes manifestly require the personal presence of the parties. In other states the statutes are not so clear. In the great majority of states the common-law marriage is still vahd, notwithstanding modern statutes relating to the solem- nization of marriage. Is not marriage by proxy vahd in these states? The answer will depend in the first place upon the question whether marriage by proxy was recognized by the English law at the time our colonies were settled. On this point there can be httle doubt. We need not inquire here whether the general Canon Law had force in England propria vigore before the time of the Reforma- tion or whether it required acceptance by the King's Ecclesiastical Law. As regards marriage by proxy we have the clearest proof that the Canon Law was so accepted in England, for we find in Lyndwood's Provinciate, written in 1430, which contains the accepted constitutions of the Church of England the following:

"Contradibus matrimonialibus qui non solum possunt fieri utraque parte prcesente, sed altera absente ut videlicet contrahatur matrimonium per procurator em, sicut legitur et notatur de procuratione c. ulti. li. vi et in hoc casu requiritur mandatum speciale ut ibi dicitur: nee potest talis procurator alium substituere, ut ibi dicitur. Absque speciali mandato et si revocetur mandatum talis procuratoris etiam ipso ignorante re integra non tenebit