Page:Harvard Law Review Volume 32.djvu/517

481 MARRIAGE BY PROXY AND THE CONFLICT OF LAWS 481 contractus ut ibi dicitur. Ratio est quia deficit consensus mandantis et sic videtur quod ubicunque actus gesti per procuratorem debet adesse verus consensus Domini pro substantia actus non est necesse quod revocatio transeat in notitiam procuratoris." The English law thus adopted the provisions of the Canon Law- relative to marriage by proxy. No change was made in this respect by the Reformation. In the reign of Henry VIII the clergy was prohibited from enacting constitutions and ordinances without the King's consent, but the existing Canon Law was continued in force.^ A revision of the Canon Law by a commission of thirty- two members was contemplated by that statute but this revision was never consummated. Mary the Catholic ^ repealed the above law but it was reenacted under EHzabeth.^^ The statute of Henry VIII has remained the basis of English ecclesiastical law except in so far as the latter may have been changed by special legislation. That marriage by proxy was a part of the English law until the eighteenth century would appear from Swinburne's treatise on Espousals in which he says: ^" "Not only such Persons as be present, but those Persons also which are absent may contract Spousals or Matrimony together. So did Isaac and Rebecca, as it appears in the Sacred Scriptures. Betwixt them that be absent, Spousals or Matrimony may be contracted three manner of ways; that is to say, by Mediation of their Proctors, or of Messengers, or of Letters; provided nevertheless in every of those Cases, that the Parties have some notice or intelligence the one of the other, at hand by Fame or Report; for unto those who be utterly unknown to us, we cannot yield our Consent, (without the which it is impossible to contract Matri- mony or Spousals) no more than it is possible for us to love them, of whom we have never heard." Swinburne thereupon enters upon a lengthy explanation of the subject, as regards the sufl&ciency of the power of attorney, the words to be used by the proxy, et cetera. canons, constitutions, ordinances, and synodals provincial being already made, which be not contrariant or repugnant to the laws, statutes and customs of this realm, nor to the damage or hurt of the King's prerogative royal, shall now still be used and executed, as they were afore the making of this act, till such time as they be viewed, searched, or otherwise ordered or determined by the said two and thirty persons, or the more part of them, according to the tenor, form and effect of this present act." «* I & 2 Ph. & M., c. 8.
 * 25 Hen. VIII, c. 19. The statute contains the following provision: "That such
 * I Eliz., CI. " Swinburne, Espousals, 2 ed., 162.