COUNSEL: John Foster for the wife. Colin Duncan for the King’s Proctor.

SOLICITORS: Hardman, Phillips & Mann (for the wife); Treasury Solicitor (for the King’s Proctor).

JUDGE: Lord Merriman, P.

HEADNOTE: The celebration of marriage by proxy is a matter of the form of the ceremony or proceeding and is not an essential of the marriage, and there is no doctrine of public policy which invalidates in this country a proxy marriage celebrated in a foreign country between a person domiciled in England and a person domiciled in that county, provided that the form of the ceremony or proceeding is valid in that country and is performed strictly in accordance with the laws of that country and contains nothing abhorrent to Christian ideas.

INTRODUCTION: Petition by wife for nullity of marriage on the ground that the ceremony of marriage having been performed by proxy in Argentina was invalid as being against public policy.

Cur. adv. vult. Mar. 18.

JUDGMENT

LORD MERRIMAN, P., read the following judgment: This is a wife’s petition for nullity. On Jan. 15, 1941, while the wife was in this country, she being not only resident but domiciled, here, a ceremony of marriage was celebrated in Buenos Aires between the husband and the wife. She was represented by a person who, by power of attorney executed on Nov. 8, 1940, in London, before a notary public, she had named as her representative to contract the marriage. It is proved that the ceremony was valid and effectual by the law of the Argentine, which recognises proxy marriages, but the wife contends that it is not a marriage recognised by the law of this country. The question whether in these circumstances English law will recognise the celebration of a marriage by proxy as creating the status of marriage in this country is manifestly one of considerable public importance. There is, so far as I am aware, no English authority directly on the point. In these circumstances I invoked the assistance of the King’s Proctor in the elucidation both of the facts and the law.

The facts are as follows. Both parties were German nationals of Jewish origin. They were acquainted with each other when they were both living in Germany, but there was at that time no suggestion of marriage. In 1936 the husband emigrated to the Argentine as a refugee from the Nazi regime. In July, 1937, the wife and other members of her family came to England for the same reason. As regards the wife, it was admitted by the King’s Procter that she was at all material times domiciled in this country. The evidence on this point seems to me to be quite clear, and I so find. As regards the husband, whose domicile of origin was unquestionably Germany, it is quite clear from the evidence of the wife that his intention was to leave Germany for good, but I have no conclusive evidence that he had acquired a domicile of choice in the Argentine. There is no doubt, however, that he was still resident there, not only at the time of the ceremony of marriage, but also when the wife’s petition, dated Dec. 4, 1945, was served on him there. It is also clear from the wife’s evidence that at the time of the celebration their mutual intention was to make the matrimonial home in the Argentine when circumstances permitted. That being so, it is conceded by counsel on both sides that for the purposes of my decision I can safely ignore any question of the husband retaining his domicile of origin and can proceed on the footing that he is domiciled in the Argentine. He has certainly lived there consistently since his flight from Germany, and he is not only described in the wife’s power of attorney as domiciled in the Argentine, but he is also so described in the marriage certificate. I do not ignore the possibility that the use of the word “domiciled” in these documents may not be conclusive, but I think that there is sufficient evidence to justify me in holding, as I do, that the husband at all material times had acquired a domicile of choice in the Argentine.

In 1940 the husband wrote to the wife proposing marriage. At the time it was impossible for her to travel to the Argentine owing to wartime restrictions. Eventually, on the advice of Dr. F. M. Palacios, a doctor of laws in the Argentine, who gave evidence before me, she executed before a notary public the power of attorney dated Nov. 8, 1940. The original, of course, has been filed in the marriage registry in Buenos Aires, and no copy was kept in this country, but I have a translation of a similar power of attorney executed four days earlier before another notary public, which for some reason (I think a misdescription of the proxy) it was impossible to use. I am assured that otherwise there is no material difference between the two documents. The power of attorney recites that before the notary public and the subscribing witness the wife, described as having been born in Berlin, on Aug. 12, 1917, of named parents, domiciled at 71, Lindsay Drive, Kenton, of full age, single, capable, and known to the notary, appeared before him and said that she was engaged to be married to the husband, described as having been born in Berlin on June 7, 1916, the son of named parents, domiciled in Buenos Aires, Argentine Republic, at Sucre Street, No. 2923, single, whom she had known for many years, and that in order to contract that marrfiage she gave a special power to Mrs. Senta Goldglanz, nee Gundermann, of a certain address, so that in her name and as her representative she should contract the marriage in Buenos Aires with the husband, and empowering her to sign in the wife’s name the respective act of marriage and any other document that might be necessary. As the marriage certificate shows, the proxy presented this power of attorney, and it is admitted that the marriage was thereupon duly celebrated in accordance with Argentine law.

The wife gave evidence, which I accept, that she had no intention of revoking the power of attorney, that she was informed in due course of the performance of the ceremony, that she was not merely ready and willing but eager to join the husband in Buenos Aires, and that she made repeated efforts to that end during the war, but that she was not allowed to leave England in spite of the marriage. Dr. Palacios proved that the husband had obtained a permit for her to enter the Argentine, but that this permit was not effective without the consent of the Argentine ambassador in London. He told me that he himself had applied to the ambassador personally for his consent, but that permission was refused on the ground that it was not convenient to allow a wife of German origin to enter the Argentine. After the war, the wife made further attempts to join her husband, but by the autumn of 1945, as the husband was no longer replying to her letters, and took no steps, in spite of her requests, to obtain or enable her to obtain a fresh permit, as was then required, she came to the conclusion that he had ceased to wish her to join him. She suggested a meeting in the United States, but this suggestion was also ignored. In these circumstances she decided to bring this petition.

I must now deal with the Argentine law on the subject as this was elucidated by Dr. Palacios. He proved that the power of attorney used in this case was valid in Argentine law to enable the proxy to contract the marriage, and that the certificate of marriage based thereon was evidence of a valid marriage. As regards the Argentine law covering proxy marriages generally, he told me that it was permissible to insert conditions, for example, that the marriage should be celebrated within a certain time limit, and, that if, as here, no such time limit is expressed, the registrar might ask for confirmation if the power of attorney was of old standing. Again, the power of attorney might contain conditions defining the town where the celebration should take place, as is the case here, or even defining the particular registry office and the day and hour at which the celebration should take place, or stipulating that certain relatives should be present. He expressed the opinion that if any such conditions were not fulfilled the registrar would be obliged to refuse to perform the ceremony, but he seemed to me to be somewhat uncertain about conditions which he described as trivial, about which he thought that the registrar would have a discretion. By this I understood him to mean that, although the registrar might decide to allow the ceremony to go on, his decision about the essentiality of a particular condition would not be final, but would be subject to review by the court. He gave some very important evidence on the subject of revocation. Here, again, there appeared at first to be some confusion in his evidence, but in the result it came to this, that the intending spouse could revoke the power of attorney at any time before the ceremony, but that, if the power of attorney had been acted on before either the other spouse or the proxy had notice of the revocation, the marriage would be valid. If, however, the spouse giving the power of attorney had meanwhile lost the capacity to contract the marriage, for example, by an intervening marriage or by becoming of unsound mind, although the marriage certificate would be prima facie evidence of the ceremony having been performed, the court would declare the marriage null and void. The witness drew a clear distinction between revocation by operation of law through loss of capacity to contract the marriage and revocation by the party. In the latter case he expressed, and maintained, the definite opinion that, unless either the other spouse or the proxy had notice of the revocation before the ceremony, the marriage in Argentine law would be held to be valid. He put the case of the loss or miscarriage of a letter of revocation in the following words: “If the proxy is revoked without any change of capacity and the revocation is not known to the attorney or the husband because the letter is lost in transit, a court would hold the marriage valid, but if the revocation is due to a change of capacity (for example, marriage or insanity), then the court will hold that the marriage is void.” I will revert to this point later in the judgment, as it is one on which counsel for the petitioner laid great stress.

Now, as to the English law, VISCOUNT DUNEDIN in Berthiaume v. Dastous (1) ([1930] A.C. 83) said:

If there is one question better settled than any other in international law, it is that as regards marriage — putting aside the question of capacity — locus regit actum. If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would or would not constitute marriage in the country of the domicil of one or other of the spouses. If the so-called marriage is no marriage in the palce where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding if conducted in the place of the parties’ domicil would be considered a good marriage. These propositions are too well fixed to need much quotation.

This absolves me from any examination of the authorities for this proposition, but the crux of the argument put forward by counsel for the wife is that it is vital to determine what in relation to any marriage is merely, in VISCOUNT DUNEDIN’s words “proceeding or ceremony.” In Brook v. Brook (2) the distinction between what are described as forms and essentials is fully discussed. That was a case in which the husband, a domiciled British subject, after the death of his wife went through a ceremony of marriage with her sister, also a domiciled British subject, in Denmark, where the marriage of a man with his deceased wife’s sister was valid. LORD CAMPBELL, L.C., said (9 H.L. Cas. 207):

There can be no doubt of the general rule, that “a foreign marriage valid according to the law of a country where it is celebrated is good everywhere.”But while the forms of entering into the contract of marriage are to be regulated by the lex loci contractus, the law of the country in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated. Although the forms of celebrating the foreign marriage may be different from those required by the law of the country of domicile, the marriage may be good everywhere. But if the contract of marriage is such, in essentials, as to be contrary to the law of the country of domicile, and it is declared void by that law, it is to be regarded as void in the country of domicile, though not contrary to the law of the country in which it was celebrated.

It was held the relationship between the spouses, being domiciled British subjects, was not a mere matter of form but was of the essence of the marriage, and that, marriage with a deceased wife’s sister then being forbidden in this country, not because it was contrary to God’s law, but because Parliament had declared it to be contrary to God’s law — (ibid: see LORD CAMPBELL, L.C., at p. 215, LORD CRANWORTH at p. 226, LORD ST. LEONARDS at p. 233, and LORD WENSLEYDALE at p. 245) — the relationship between the spouses was fatal to the validity of the marriage, notwithstanding the fact that in the country where the ceremony was performed the marriage was valid. In arriving at this conclusion the noble Lords examined several examples of the distinction between form and essence. For example, in discussing Gretna Green marriages (at p. 214 and i15) LORD CAMPBELL, L.J., said of Lord Hardwicke’s Act:

But I do lay very great stress on the consideration that LORD Hardwick’s Act only regulated banns and licences, and the formalities by which the ceremony of marriage shall be celebrated. It does not touch the essentials of the contract or prohibit any marriage which was before lawful, or render any marriage lawful which was before prohibited. The formalities which it requires could only be observed in England, and the whole frame of it shows it was only territorial. The nullifying clauses about banns and licences can only apply to marriage celebrated in England.

Again, referring to the case of marriage of a minor in Scotland, where the marriage was valid by the law of Scotland though declared by an Irish statute, [see Irish Statutes, 9 Geo. 2, 611] to be absolutely null and void to all intents and purposes for lack of consent, LORD CAMPBELL, L.C., in the same case (at p. 216) clearly regarded the lack of consent as being a matter of form and not of essence, but this class of case is contrasted (on p. 219) with incestuous marriages, and LORD CAMPBELL, L.C., was plainly of opinion that a marriage between a mulatto and a white woman prohibited by the law of Massachusetts, in which State the parties lived, ought to have been held to be invalid although the spouses went for the ceremony to the neighbouring province of Rhode Island, where such a marriage was valid. LORD CRANWORTH (in the same case at p. 224) put the question thus:

… that though in the case of marriages celebrated abroad the lex loci contractus must quoad solemnitate determine the validity of the contract, yet no law but our own can decide whether the contract is or is not one which the parties to it, being subjects of Her Majesty domiciled in this country, might lawfully make.

Moreover, the passage in the treatise of STORY, J., on the CONFLICT OF LAWS (8th ed., pp. 188, 189), in which he specifies the exceptions to the rule that a marriage valid where celebrated is good everywhere (ibid, pp. 208 and 209) was referred to with approval: see Brook v. Brook (9 H.L. Cas. 208, 209). He excepts marriages involving polygamy and incest, those positively prohibited by the public law of a country from motives of policy, and those celebrated in foreign countries by subjects entitling themselves, in special circumstances, to the benefit of the laws of their own country. There was some criticism, however, of the sentence in which he lays down that in speaking of incestuous marriages care must be taken to confine the doctrine to such cases as by the general consent of all Christendom are deemed incestuous. As has already appeared, all the noble Lords took the view that they were not so much concerned with the general consent of all Christendom, but rather with the fact that Parliament had declared what God’s law on the subject was deemed to be in this country, and it was suggested that the particular case would most properly fall within the exception of a positive prohibition by the public law of this country from motives of policy — in other works, not as being incestuous in fact, but as being declared to be so by Parliament.

The question therefore is: Into which category, form or essence, do proxy marriages fall? If they are to be likened to polygamous or incestuous marriages or those positively prohibited by the public law of the country from motives of policy, the recent case of Baindail (otherwise Lawson) v. Baindail (3) establishes that the wife may obtain relief by a decree of nullity, although polygamous marriages are not otherwise recognised. But, as neither polygamy nor incest is in question, I am driven back to the question whether proxy marriages are positively prohibited by law for motives of policy. Counsel for the wife concedes that the Marriage Acts have a territorial effect only, and that there is no express statutory provision against a domiciled British subject contracting a marriage by proxy out of this country, but he argues that, at least as concerns a British subject domiciled and actually present in this country at the time of the ceremony, there is one matter as to which public policy points in the same direction as do the Marriage Acts, that is to say, the personal presence of both parties. This, he argues, is an essential, whatever form the ceremony itself may take. The argument may be summarised as saying that the distinction between form and essence is not absolute, but that public policy requires certain essential ingredients in the ceremony or proceeding itself. Put another way, the classification of the ceremony, celebration, proceeding, or whatever word one may choose to describe the formality of the marriage contract, must be determined by the law of this country. For this he relies on the section on the problem of classification in DR. CHESHIRE’s PRIVATE INTERNATIONAL LAW (2nd edn., pp. 24 to 45). Manifestly, he argues, there may be certain primitive tribal marriage rites which could not possibly be classified in this country as being a marriage ceremony at all, because they would offend our conception of propriety. Likewise he suggests that the question whether the presence of both parties is essential to the classification of this ceremony as a ceremony of marriage must, at any rate in the case where one at least of the parties is domiciled and resident in this country at the time of the ceremony, be determined as a matter of public policy by English law. He enumerated the respects in which a proxy marriage offended public policy under the following heads: —

First: The wife is entitled to change her mind up to the very last moment before the conclusion of the marriage contract, and, therefore, it is contrary to public policy that when the power of attorney has actually been revoked before the ceremony the parties should be compelled to conclude the contract of marriage because the accident of delay by post, telegram or telephone prevents the communication of the revocation from reaching either the other party or the proxy in time.

Secondly: If the wife can do everything necessary to effect a valid marriage in the Argentine merely by signing a document in this country, her marriage, with all the attendant changes of domicile, nationality and status generally, is, so far as concerns this country, a clandestine marriage and, therefore, contrary to public policy. This point was emphasised by pointing to the possibility that both parties, being resident in this country, might contract a marriage by proxy in some country, the law of which entitled both parties to be represented by proxy at the ceremony. It was suggested that this is the case in Mexico (see RINGROSE, MARRIAGE AND DIVORCE LAWS OF THE WORLD, p. 202) and it appears also to be the case in Portugal (p. 95). But although this appears to be so as regards the actual ceremony or celebration, I gather from the work in question that the date and place of the celebration are only fixed after certain preliminary formalities have been completed, which seem to me to involve the presence in the country of at least one of the parties. However this may be, and I have no evidence on the subject, it only affords an extreme instance of the same point.

Thirdly: Since it is well settled that in the case of a conflict of laws governing consent to the marriage of minors the question is one of form and the lex loci contractus is, therefore, decisive (Brook v. Brook, 9 H.L. Cas. 216), it would follow that minors, either or both of whom were living in England, could evade parental control by marrying by proxy in a country where either the consent of the parents is unnecessary or where the age of majority is lower. It was admitted that it is open to English minors, if they were personally present in the country in question, though with the express intention of evading English law, to effect a valid marriage, but it was suggested that it was contrary to public policy that they should be able to do so by proxy without the necessity of travelling.

Fourthly: The admission of a proxy marriage such as this would open the door much wider to the invard traffic in prostitution, since the husband in what are colloquially known as “five-pound marriages,” instead of being shipped abroad go through the ceremony and bringing the wife into the country on his passport, could effect his purpose by simply signing a power of attorney here.

Fifthly: There is, in truth, no locus contractus in this case, seeing that the husband was present in the Argentine and the wife in England, and, therefore, that the public policy which, by the universal comity of nations, compels the recognition of a celebration valid by the lex loci contractus, does not apply.

Sixthly: The Marriage Acts of this country, including the Foreign Marriage Act, 1892, all require the presence of both parties at the ceremony, and, therefore, that this must be taken to be a declaration of the public policy of this country.

I will deal with the last two propositions first. Number 5 seems to me to beg the question at issue, which is whether there is or is not a valid contract of marriage. If there is not, cadit quaestio, but, in so far as the place where the ceremony or celebration took place is material, it is indisputable, and, indeed, it was not seriously disputed, that this was Buenos Aires. The power of attorney expressly empowers the proxy to contract a marriage in Buenos Aires in the wife’s name and as her representative, and incidentally give the proxy power to sign in the wife’s name the act of marriage and any other document that may be necessary. The marriage certificate seems to me to be conclusive as to the place of celebration. As to No. 6 I have no doubt that the Marriage Acts, in common with public Acts of parliament in general, declare the public policy of this country regarding their subject-matter, but, as is conceded, they have only territorial effect so far as concerns forms and ceremonies. The argument that such declarations of public policy operate universally seems to me to ignore the fact that public policy also demands, by virtue of the comity of nations, the recognition of marriages celebrated out of this country in accordance with forms and ceremonies in no wise conforming to those prescribed by the Marriage Acts. As regards Nos. 2, 3, and 4, I recognise the possibility that the mischiefs depicted under these headings may arise from a judicial declaration in favour of this marriage, but, if so, they are all matters which can be dealt with by the legislature. There is nothing whatever to prevent Parliament from enacting in relation to domiciled British subjects generally that proxy marriages shall not be recognised in this country wherever celebrated, or (leaving aside the point that a minor cannot give a power of attorney in this country: see Oilver v. Woodroffe (4) that marriages by minors domiciled in this country, wherever celebrated, shall be invalid without the prescribed consent, or, more specifically, that the proxy marriage of a domiciled British subject, wherever celebrated, shall not be recognised for the purposes of immingration.

Before I deal with head No I, it will be well to deal generally with the question of public policy in relation to all these heads. I was laid down by the House of Lords in Janson v. Driefontein Consolidated Mines, Ltd. (5) that public policy is not a safe or trustworthy ground for legal decision. At [1902] A.C. 491, in an oft-quoted passage, the EARL OF HALSBURY, L.C., says: “… but I deny that any court can invent a new head of public policy…” This sentence was the subject of adverse comment by McCARDIE, J., in Naylor, Benzon & Co., Ltd. v. Krainische Industrie Gesellschaft (6) ([1918] 1 K.B. 342), but it seems to me that such force as this criticism may have depends entirely on what was intended by the words “new head” of public policy. The EARL OF HALSBURY, L.C, goes on:

… so a contract for marriage brokerage, the creation of a perpetuity, a contract in restraint of trade, a gaming or wagering contract, or, what is relevant here, the assisting of the King’s enemies, are all undoubtedly unlawful things; and you may say that it is because they are contrary to public policy they are unlawful; but it is because these things have been either enacted or assumed to be by the common law unlawful, and not because a judge or court have a right to declare that such and such things are in his or their view contrary to public policy. Of course, in the application of the principles here insisted on, it is inevitable that the particular case must be decided by a judge; he must find the facts, and he must decide whether the facts so found do or do not come within the principles which I have endeavoured to describe — that is, a principle of public policy, recognised by the law, which the suggested contract is infringing, or is supposed to infringe.

I ask myself, therefore, what principle of public policy, recognised by the law this suggested contract infringes or is supposed to infringe. It is, of course, necessary to bear in mind the distinction in the use of the word “marriage” between the contract itself and the status created by the contract: see per BRETT, L.J., in Niboyet v. Niboyet (7) (4 P.D. 11), and per SIR JAMES HANNEN, P., in Sottomayer v. De Barros (8) (5 P.D. 101). As regards the status, there can be no question, in my opinion, that what was intended to be created in this case was a Christian marriage within LORD PENZANCE’s “the voluntary union for life of one man and one woman to the exclusion of all others.” This definition has repeatedly received judicial approval, recent instances of which are R. v. Hammersmith Superintendent Registrar of Marriages (10) ([1917] 1 K.B. 640, 645, 657, 658, 660), and Nachimson v. Nachimson (11) ([1930] P. 224, 227, 228, 238).

What is in question here, therefore, is the form of contract. By this contract a woman domiciled in this country wished to assume the character of the wife of a foreign husband. The words of LORD SELBORNE, L.C., in Harvey v. Farnie (12) (8 A.C. 50, 51):

The marriage is contracted with a view to that matrimonial domicil which results from her placing herself by contract in the relation of wife to the husband whom she marries, knowing him to be a foreigner, domiciled and contemplating permanent and settled residence abroad.

describe this case exactly. I ask myself, therefore, what public policy is infringed by the wife adopting a form of contract lawful in that country. Had she gone to the Argentine and had there signed a power of attorney enabling her to be represented at the ceremony by proxy, the case would be covered expressly by LORD DUNEDIN’s words:

… no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would or would not constitute marriage in the country of the domicil of one or other of the spouses

in the passage from his opinion in Berthiaume v. Dastous (1) ([1930] A.C. 83), which I have already quoted. In her case, therefore, the issue as to public policy is reduced to the question whether or not she should be allowed to sign the power of attorney here, but it is said that, in considering whether or not the subject-matter is contrary to public policy, one must look at the problem as a whole and not allow one’s self to be influenced by the fact that in individual cases no harm, or even benefit, may accrue. As a general proposition that is, no doubt, true, but I am by no means satisfied that the problem here is one and indivisible and embraces proxy marriages as a whole. It may well be that the problem should be sub-divided into categories and the test of public policy be applied, if at all, to each category separately. For example, the converse case of the husband in the Argentine being a domiciled Englishman and intending to make the matrimonial home here, and the case of a minor domiciled in this country where the law does not permit him to give a power of attorney at all, seems manifestly to call for separate consideration, as does the case, which I will consider shortly, of the revocation of the power of attorney before the ceremony. I do not think it is necessary to pursue this topic further than to say that I am not satisfied that a single test of public policy can be applied to all proxy marriages indiscriminately.

Undoubtedly, proxy marriages are liable to abuse, but, as I have already said, if these abuses occur or are apprehended they can be prevented or cured by legislation. The objection that clandestine marriages may be promoted appears to me to go too far, in view of the fact that Gretna Green marriages were tolerated for years in spite of their notorious abuse for the very purpose of evading the mischief of Lord Hardwicke’s Act, which was expressly directed to the preventing of clandestine marriages, and, incidentally, of evading the restrictions on the marriage of minors. It is true that after 1856 the condition of residence for 21 days was imposed by 19 and 20 Vict., c. 96 [an Act for amending the Law of Marriage in Scotland], and and that, by the recent Marriage [Scotland] Act, 1939, s. 5, irregular marriages in Scottland are abolished. So slow a process of legislation to deal with abuses not less glaring than anything that is likely to result from the recognition of a proxy marriage such as this seems to call for caution in invoking the doctrine of public policy in this connection, and emphasises the point that the matter is one to be dealt with by legislation.

I will deal next with the suggestion that it is a matter of public policy that both parties should be present. It seems to me that it is hardly possible to base this argument on the principle that the presence of both parties at the celebration is necessary for a Christian marriage. It is not disputed that proxy marriages were recognised by the canon law. In SWINBURNE’s TREATISE OF SPOUSALS OR MATRIMONIAL CONTRACTS (1686 ed., pp. 162 and 163) the conditions of a valid proxy marriage are described. Moreover, proxy marriage are recognised, not only in the Argentine, but in other Christian countries such as Portugal and Spain. Also, in the United States of America, where the regulation of marriage and divorce remains within the jurisdiction of individual States, the validity of proxy marriages has been recognised. As a result or the industrious researches of counsel for the wife I have had the advantage of considering many reported cases decided in various States of the Union. Most of these arise out of the immigration laws. They are none the less important for that reason, for, as LORD CAMPBELL said in Brook v. Brook (2) (9 H.L. Cas. 219), some very important social questions have arisen on cases raising the kindred question of the settlement of the poor. Counsel for the wife quoted the following dictum of BURNHAM, J., in Commonwealth v. Formers’ and Shippersˆ Tobacco Warehouse Co. (13):

There are acts of so peculiarly personal a nature that their performance cannot be delegated. To this class of cases belong the making of wills [and] the contracting of marriages.

The immigration cases show that the generality of this dictum requires considerable qualification.

In Re Lum Lin Ying (14), decided in the District Court of Oregon, it was held that a marriage solemised in China according to the laws and customs thereof, but while the bridegroom was in America, in not valid in America. The decision, however, a appears to turn not on any dissent from the proposition that a marriage which is valid in the place where it is contracted is valid everywhere, but a doubt whether China was in fact the place of solemnisation of the marriage. Apparently, the parties had been betrothed when the bride was two years of age. In accordance with Chinese customs, the marriage was arranged by professional go-betweens with the parents and families of the respective parties. The particulars of the engagement were committed to writing on duplicate cards, and the ceremony was completed by sewing the cards together, whereupon the bride attempted join her husband, who was all the time domiciled in the United States. The district judge expressed a doubt whether this was a China marriage. He said that it was not enough that such a marriage was valid under the laws of China, but was of opinion that it must not only be valid under such laws, but to be valid elsewhere must have been solemnised within the jurisdiction of those laws, but he made an order allowing the wife’s admission on the ground that the parties had acted in good faith. I do not think that this decision, depending as it does on the question whether there could be said to be a solemnission in China, affords much guidance in the present case.

More directly in point is Ex parte Suzanna (15) decided in the District Court in Massachusetts. The husband was resident in Pennsylvania. By the relevant Act it was provided that an illiterate woman over 16 years of age should not be admitted unless she was, among other things, the wife of an admissible or domiciled alien or a citizen. The wife was resident in Portugal at the time of the alleged marriage. The marriage was by proxy, and Portuguese law recognises proxy marriages. Presumably, it was the husband who was represented by proxy at the ceremony in Portugal, though this fact is not expressly stated except by inference from the statement in the last sentence of the judgment that the proxy marriage was celebrated in Portugal. On the ground that the question must be decided on the law of Pennsylvania, where it was well settled that a common law marriage was valid and that nothing in the law of Pennsylvania required the personal presence of the parties at the ceremony, the judge decided that the petitioner had the right to admission as a wife.

An even stronger case is United States ex rel. Modianos v. Tuttle (16). In this case, decided in the New Orleans division of the District Court of Louisiana, the husband, born a Tuckish subject, but at the time of the celebration of the alleged marriage in 1922 a naturalised American citizen domiciled in the state of Louisiana and actually in New Orleans, was represented at the ceremony in Turkey by proxy, proxy marriages being valid in Tuckey. The revised civil code of Louisiana (art. 109) expressly declares: “No marriage can be contracted or celebrated by procuration.” The district judge held that this prohibition only applied to marriages celebrated in the State, while at the same time he held that the State legislature had the right to declare what marriages would be recognised, regardless of whether the participants were domiciled within or without the State, and that a statute invalidating proxy marriages, wherever performed, would be valid. In the absence of any such legislation, he held that the particular marriage was valid, and that the wife was entitled to admission as such, regardless of the question whether the quota of Turkish immigrants had been exhausted or not. It is interesting to note that the learned judge expressly held that there was nothing in the circumstances of this marriage conflicting with the views of Christendom, and that he was also of opinion that, if it was desired to except from the general principle that marriages celebtrated in accordance with the lex loci contractus are valid everywhere, a marriage by proxy celebrated out of the particular State, it was for the State legislature so to enact.

The fact that it was conceded that no American case has been found conflicting with this decision, which obviously is directly in point, absolved me from the necessity of any further examination of American cases. It is clear, however, not only from the cases cited, but also from the article, MARRIAGE BY PROXY AND THE CONFLICT OF LAWS, by PROFESSOR E. G. LORENZEN, in 32 HARVARD LAW REVIEW, pp. 473-488, that the view is held in America that the common law inherited by certain States of the Union at the time of their settlement enabled a marriage to be contracted per verba de praesenti, or per verba de futuro, followed by consummation: see also the argument in R. v. Millis (17) (10 Cl. & F., 545). That a proxy marriage can take either form appears from SWINBURNE, at p. 164, and see ss. 10 and 11 of the same work. It has been accepted throughout the argument, and I think rightly, that this marriage was celebrated, if at all, per verba de praesenti, and that the question of consummation is, therefore irrelevant, but, whatever view may be held in America, I think that I am precluded by the actual decision in R. v. Millis (17) from holding that the common law ever recognised the validity of a marriage per verba de praesenti unless celebrated before an episcopally ordained priest. Nevertheless, the point seems to me to be that it is difficult to assert that a marriage ceremony expressly recognised by the common law and adopted in civilised countries with a long Christian tradition is so essentially abborrent to Christian ideas as to take a proxy marriage out of the category of ceremony or proceeding and to classify it with incest or polygamy.

Reliance was also placed on the passage in LORD FRASER’s work on HUSBAND AND WIFE, 2nd ed., p. 319:

Suppose an offer of marriage is sent through the post-office from Scotland, and an acceptance sent by return of post from England, it is obvious that there could be no marriage in such circumstances, because marriage cannot be entered into in England merely by a declaration of present consent. It marriage can be entered into after this fashion, the two parties must be in Scotland at the time.

But the question is not the same as is raised in this case. The wife did not purport to constitute the marriage by the power of attorney signed here. She merely authorised her proxy to constitution it on her behalf in the Argentine.

This brings me to a consideration of head No. 1. The objection based on the Argentine law regarding revocation of the power of attorney seems to me to be the most formidable argument against the validity of the marriage. In s. 13, entitled “Of Contracting Spousals either betwixt parties present or absent,” SWINBURNE, in para. 22, p. 165, says:

Furthermore, it is not only necessary that the proxy be sufficient, and that the contract be made in due form, as aforesaid; but it is requisite also that the party which did constitute the proctor, do persevere and continue in the same mind and purpose, until the contract be finished; for if he repent in the meantime, or revoke his proctor (which thing is lawful for him to do though he has covenanted, yes and sworn not to revoke him) the contract is utterly void, which conclusion hath place, albeit the proctor were ignorant of the parties repentance or revocation of the proxy, seeing the perseverance and continuance of the parties consent, which did constitute, is so necessary, as without the which the contract is not of any force.

There is a passage to the same effect with regard to contracting matrimony by letter in para. 39 on p. 182. SWINBURNE died in 1623, and his book was first published posthumously in 1686. That he was an ecclesiastical lawyer of repute appears from the DICTIONARY OF NATIONAL BIOGRAPHY, vol. LV, pp. 228 and 229.

Now, manifestly, in the case of the revocation of a power of attorney like the present, the communication of which for whatever reason has miscarried, it would not be true to say that the party giving it still continued in the same mind without alteration until the time of the other’s consent. That is to say, the Argentine law differs from the canon law, as expressed by SWINBURNE, in this respect. The question as I see it is whether this objection applies to the validity of proxy marriages in general or only to the validity of those which are actually affected by the Argentine law regarding revocation. No such question arises, as has already been said, in this case. Supposing, however, that had been the situation in this case, I incline to the opinion that the marriage would not be a Christian marriage as defined by LORD PENZANCE in Hyde v. Hyde and Woodmansee (9), which I have already quoted. The case might be put as follows: The wife was a domiciled British subject when she gave the power of attorney. This is not expressed to be irrevocable. Although her intention at the time she gave it was to contract a Christian marriage and to acquire the husband’s domicile when the marriage was celebrated, she changed her mind and revoked the power of attorney before the celebration, while she was still a British subject. The marriage ceremony, therefore, did not effect a “voluntary” union, but only a union which is deemed to be voluntary by the law of a country to which she was not subject at the time of the revocation of the power of attorney. That being so, the effect of the revocation should be decided according to English law. I do not think that it is necessary or desirable for me to decide that point. Suffice it to say that the manifest distinction between that case and the present points strongly against there being one test of public policy with regard to all proxy marriages alike and towards the propriety of the definition by Parliament of the conditions in which proxy marriages shall or shall not be recognised.

My conclusions, therefore, are (i) that the contract of marriage in this case was celebrated in Buenos Aires; (ii) that the ceremony was performed strictly in accordance with the law of that country; (iii) that the celebration of marriage by proxy is a matter of the form of the ceremony or proceeding and not an essential of the marriage; (iv) that there is nothing abhorrent to Christian ideas in the adoption of that form; and (v) that, in the absence of legislation to the contrary, there is no doctrine of public policy which entitles me to hold that the ceremony, valid where it was performed, is not effective in this country to constitute a valid marriage. For these reasons, whatever may be the petitioner’s remedies as a wife, I am obliged to hold that this petition must be dismissed.

DISPOSITION:

Petition dismissed.