Page:Harvard Law Review Volume 32.djvu/884

848 848 HARVARD LAW REVIEW keep for two years physicians' prescriptions for the drug? It seems that these provisions are not means to effectuate the object of the act in re- spect to revenue, but are police regulations not even incidental to the revenue end of the act, and tending only to protect against the misuse of the drugs. This being true, the provisions do not take on a constitu- tional gloss by reason of being appended to a revenue measure. The federal government under cloak of the granted power to tax cannot over- step the aim and spirit of that grant. Marriage by Mail. — Some of the problems of the American girl and her soldier fiance on military duty abroad might be solved if a status of marriage could be created while the soldier is still on foreign soil.^ Professor Lorenzen in a recent article^ has considered whether this could be accomplished by means of marriage by proxy. It would be much simpler if it were possible to attain the result by direct com- munication by mail between the parties.^ Whether this can be done involves the following questions: (i) whether or not a marriage is valid which consists merely of an exchange of promises without formal solem- nization; (2) whether or not cohabitation in addition to the mutual promises is a necessary element of such an informal marriage; (3) whether or not it is essential that the promises be exchanged by the parties in the presence of each other; (4) and what law governs the effect of an exchange of promises of marriage when the parties are in different jurisdictions during the transaction. I. Apart from statute, most coiirts in this country recognize as valid a marriage based on mutual consent without formal solemnization or the interposition of officials, civil or religious.^ Although there are 1 Such a marriage might be desired, not only for sentimental reasons, but also in some cases in order to legitimatize children; in others, for such practical purposes as naming the woman as beneficiary with respect to government War Risk Insurance. 2 "Marriage by Proxy and the Conflict of Laws," 32 Harv. L. Rjev. 473. ' An opinion was recently rendered by the Judge Advocate General to the effect that American soldiers abroad might marry women in the United States by inter- changing a marriage contract by mail, provided that such marriage does not con- travene any statute of the state in question. This opinion is, of course, not controlling on the courts. Deming v. McClaughry, 113 Fed. 639 (1902). But it "should receive the careful consideration of the courts, and in doubtful cases . . . should be permitted to lead the way to their decisions." Deming v. McClaughry, supra. However, the opinion is not valuable, since it begs the question, whether such a marriage is contrary to the law of the various states. Campbell v. Gullatt, 43 Ala. 57 (1869); Graham v. Bennett, 2 Cal. 503 (1852); Caras V. Hendrix, 62 Fla. 446, 57 So. 345 (1911); Wynne v. State, 17 Ga. App. 263, 86 S. E. 823 (1915); Hutchinson v. Hutchinson, 196 111. 432, 63 N. E. 1023 (1902); Smith v. Fuller, 108 N. W. (Iowa) 765 (1906); Shorten v. Judd, 60 Kan. 73, 55 Pac. 286 (1898); Dumaresly v. Fishly, 3 A. K. Marsh (Ky.) 368 (1820); Hutchins v. Kimmell, 31 Mich. 126 (1875); State V. Worthingham, 23 Minn. 528 (1877); Howard v. KeUy, in Miss. 285, 71 So. 391 (1916); Gibson v. Gibson, 24 Neb. 394, 39 N. W. 450 (1888); Parker V. De Bernardi, 40 Nev. 361, 164 Pac. 645 (1917); State v. Thompson, 76 N. J. L. 197, 68 Atl. 1068 (1908); Fenton v. Reed, 4 Johns. (N. Y.) 52 (1809); Cheney v. Arnold, 15 N. Y. 345 (1857); Carmichael v. State, 12 Ohio St. 553 (1861); In re Love's Estate, 42 Okla. 478, 142 Pac. 305 (1914); Richard v. Brehm, 73 Pa. St. 140 (1873); Fryer v. Fryer, Rich. Eq. Cas. (S. C.) 85 (1832); Grigsby v. Reib, 105 Texas, 597, 153 S. W.
 * Davis V. Pryor, 112 Fed. 274 (1901); Adger v. Ackerman, 115 Fed. 124 (1902);