Page:Harvard Law Review Volume 32.djvu/887

851 NOTES 851 personal presence, if it existed, was confined within very narrow limits. Swinburne has expressly declared that a valid marriage might be con- tracted by mail.^^ The opposing view seems to rest on the reasoning that, in a marriage contract, the consents must be given at the same instant, apparently an impossibility where the agreement is entered into by mail.^* But the theory of the law of contracts, — that an offer sent by mail continues to be made during every moment of its travel, so that when accepted, the offer and acceptance are contemporaneous,^^ — seems as applicable to contracts creating the marriage status as to or- dinary contracts.^° It is true that the marriage status is of such vital importance that its creation should be closely guarded.^^ But, on the other hand, the public policy favoring the legitimation of children and lawful, in preference to iUicit, relations militates against the require- ment of formalities of any sort.^ The fact that the promises must be per verba de praesenti furnishes a substantial safeguard against the possibility of contracting marriage "accidentally." Therefore, where the parties during the exchange of promises are in the same jurisdiction, assuming that it is one where informal marriages are valid, it is safe to assert that a valid marriage may be contracted by mail.^^ 4. But where the parties are in different jurisdictions during the ex- change of promises, there arises the further question of what law de- termines the effect of the transaction. This was the situation in Great " Swinburne, Spousals, 2 ed., 162, 181-83. Bishop accepts Swinburne's state- ment as the correct common-law doctrine, i Bishop, Marriage, Divorce, and Separation, § 325. 1* See Campbell v. Sassen, 2 Wils. & S. 309, 317-319 (1826); i Fraser, Domestic Relations, 155, 156. 1^ "The defendants must be considered in law as making, during every instant of the time their letter was traveUing, the same identical offer to the plaintiffs and then the contract is completed by the acceptance of it by the latter." Adams v. Lindsell, I B. & Aid. 681, 683 (1818). 2° The argument that the offeror of marriage may change his mind between the time of mailing the offer and the time of its acceptance, with the serious consequence that, if the offer was accepted, a marriage would be created which was not based on real mutual consent, is not of much consequence practically, since it would be a rare case indeed where so rapid a change of heart took place as to so momentous a de- cision. Also, the decision is, in the first place, mqre likely to be a well-dehberated one when arrived at away from the presence of the enchantress. Moreover, an ana- logous argument applies with equal force to marriages by proxy, should the party desire to revoke the proxy's authority. See E. G. Lorenzen, supra, 482, 483. of a common-law marriage is based should be subjected to the careful scrutiny of the courts, especially after the death of one of the parties. See Bishop v. Brittain In- vestment Co., 229 Mo. 699, 724; 129 S. W. 668, 675 (1910). And it would seem that this is a sufficient protection against any possible danger of promoting blackmail or perjury that might arise out of the practice of allowing letters to be held to consti- tute a binding marriage. ^ See In re Sanders' Estate, 168 Pac. (Okla.) 197, 198 (1917); Houston Oil Co. of Texas v. Griggs, 181 S. W. (Tex. Civ. App.) 833, 836 (1915); i Bishop, Marriage, Divorce, and Separation, § 77. ^ A search of the American authorities has failed to reveal any case in which the validity of a marriage by mail has been under consideration, with the exception of the recent case discussed in the text, infra. There is, however, a case decided under the Scotch law, in which a valid marriage was based primarily on a letter, addressed to the woman, but delivered to a third party, although there was no direct evidence that the woman knew of the letter's contents before the man's death. Hamilton v. Hamilton, 9 CI. & Fin. 327 (1842).
 * ^ Willing assent is given to a proposition that the transactions on which a claim