Page:Harvard Law Review Volume 32.djvu/523

487 MARRIAGE BY PROXY AND THE CONFLICT OF LAWS 487 American prisoner in Germany could marry his fiancee in France, provided the French legislation is apphcable to American soldiers and sailors who are prisoners in foreign countries.^" Marriage by proxy, so far as American soldiers are concerned, would have a more practical bearing as regards marriages celebrated in this country. Many American soldiers must have been ordered abroad on such short notice that they were unable to get married before leaving. Suppose that one of these soldiers, feeling that the war might continue several years, should have asked a friend to act as his proxy in this country and that the marriage consents had been exchanged in his behalf with his fiancee in the state in which she Uved. If the common-law marriage still existed in that state such marriage would probably be valid, as has been shown above. If the common-law marriage is not authorized in the state of her residence she might go to a neighboring state where it still exists and exchange marriage consents there with her fiance's proxy. Such a marriage, if valid where celebrated, would be recognized by the other states of this country under the ordinary rules governing the conflict of laws. Even the courts of the home state whose law has been evaded would probably recognize the vaUdity of the mar- riage. American courts have gone to the very extreme in sustain- ing marriages on grounds of policy, notwithstanding an evasion of the domestic law. As regards legal prohibitions to marry there is a conflict of view on the question, but there appear to be no modern cases in England or the United States which have refused to recog- nize, on the ground that there has been an evasion of the domestic law, a marriage vahdly celebrated in accordance with the law of the state where the marriage took place, where the difference in the law concerned merely matters of form. Inasmuch as the ques- tion whether a marriage may be entered into by proxy relates clearly to the formahties, a marriage so celebrated in conformity with the local law will be recognized, notwithstanding any evasion of the law of the state in which the parties were domiciled .^^ A logical •" The provisions of the law of April 4, 1915, were extended, with respect to French prisoners in Germany, by the Law of August 19, 1915. Clunet, 1916, 864. (1897), it might be argued that inasmuch as marriage by proxy is prohibited in the state in which the power of attorney was given the power of attorney itself is void, so that no marriage can be entered into anywhere by virtue of that power of attorney. The conclusion of the court in the above case as regards the validity of the power of
 * ^ Upon the reasoning of the court in Freeman's Appeal, 68 Corm. 533, 37 Atl. 420