form in respect of the mode of celebration to the German law of marriage.52

From the standpoint of the conflict of laws of the United States the law of the place of celebration will decide, therefore, whether a marriage by proxy is valid. If the lex loci celebrationis allows this mode of celebration it will determine not only all the special questions relating to the power of attorney but also the formalities applicable to marriage in general. This law would decide, for example, whether the power of attorney must be in writing, whether the government consent to such marriage is necessary, and the effect of a failure to obtain such consent. It will control the question whether a mere consent to take each other from the present moment as husband and wife is sufficient to constitute the parties husband and wife, or whether they must be joined in marriage by some official before witnesses and after the publication of banns, etc. Marriage by proxy is possible under certain conditions in Austria, Belgium, France, and Italy, but it is evident that the legislation relating to marriage by proxy operates only as a waiver of the requirement of personal presence. In all other respects the local provisions relating to the celebration of marriage must be observed. These provisions are far more stringent than those prescribed by the statutes governing the marriage ceremony in this country. The ceremony itself can be performed only by an officer of the civil status, and one of the parties must be domiciled in the place where the marriage is to be celebrated or have lived there for a specified period of time.53 The parties must also submit various certificates relating to birth, parental consent, publication of banns, etc., before the marriage can be performed.54 For an American it is very difficult, if not impossible, to satisfy these requirements. We have no registers of the civil status in this country; hence no official birth certificates as required by the foreign law can be obtained. Where no birth certificates can be presented the foreign law, it is true, provides a method for proving the time of birth, but such

52 Article 13, Introductory Law, CIVIL CODE; 5 PLANCK, BÜRGERLICHES GesetzBUCH, 3 ed., 50.

53 Belgium, CIVIL CODE, Art. 74; France, Art. 4 of Law of June 21, 1907, repealing Art. 74, CIVIL CODE, DUVERGIER, 1907, 287; Italy, Art. 93, CIVIL CODE.

54 Belgium, CIVIL CODE, Arts. 63 et seq., and Law of December 26, 1891. France, CIVIL CODE, Arts. 63 et seq., and Law of June 21, 1907; DUVERGIER, 1907, 287; Italy, CIVIL CODE, Art. 79.

method is frequently of no avail to Americans. For example, Article 70 of the French Civil Code authorizes an acte de notoriété as a substitute for a birth certificate, but this involves a proceeding before a French court in which the facts relating to birth and parentage must be proved by seven witnesses.55 In Italy the parties must be competent to marry each other not only under the national law but also according to the Italian law.56 The capacity to marry according to the foreign law must be proved by an official certificate. As there is no American official who is authorized by law to execute such a certificate 57 an American can

55 The practical impossibility of satisfying these requirements has led in France to an arrangement between the Department of Justice and the American Embassy under which courts will accept a certificate based upon affidavits by an American attorney whose competency is certified by the American Embassy, setting forth the circumstances of birth. See KELLY, THE FRENCH LAW OF MARRIAGE, MARRIAGE CONTRACTS AND DIVORCE, 2 ed., 63.

56 Article 102, Civil Code; App. Ancona, March 12, 1884, Foro Italiano, 1884, I, 574.

Article 102 of the Civil Code reads as follows: "A foreigner's capacity to contract matrimony is governed by the law of the country to which he belongs.

"The foreigner is also subject to the impediments mentioned in Sec. 2, Chap. I, of the present title (Arts. 55 et seq.)."

Among the text-writers there is the greatest dispute concerning the meaning of Article 102. Most of them maintain that the foreigner must comply with the law of his own country and that of Italy. Emilio Bianchi, “Studi di Diritto Internazionale Privato," 10 ARCHIVIO GIURIDICO, 433; 9 DE FILIPPIS, CORSO COMPLETO DI DIRITTO CIVILE ITALIANO COMPARATO, 185-86; 1 LOMONACO, ISTITUZIONI DI DIRITTO CIVILE ITALIANO, 316; 7 PACIFICI-MAZZONI, ISTITUZIONI DI DIRITTO CIVILE ITALIANO, 3 ed., 83; I RICCI, Corso di Diritto CIVILE, 2 ed., No. 260. But see 5 BIANCHI, CORSO DI CODICE CIVILE ITALIANO, 828; 1 BORSARI, COMMENTARIO DEL CODICE CIVILE ITALIANO, 382; ESPERSON, IL PRINCIPIO DI NAZIONALITÀ APPLICATO ALLE RELAZIONI CIVILI INTERNAZIONALI, 77–78.

According to some writers there is no general test, but each provision must be examined with a view of ascertaining whether it affects the public policy of Italy or only the private interests of the contracting parties. 2 FIORI, DIRITTO INTERNAZIONALE PRIVATO, 3 ed., Nos. 533-34; 2 GALDI, COMMENTARIO DI CODICE CIVILE, 597.

57 A marriage by an American was annulled in Italy a few years ago on the ground that the American consular agent who had executed such a certificate was not authorized by American law to do so. TRIB. CIV. DE ROME, June 19, 1911, REVUE DE DROIT INTERNATIONAL PRIVÉ, 1912, 493.

Continental countries regard the parental consent as relating to capacity and not to the formalities of marriage. App. Besançon, January 4, 1888, D. 89, 2, 69; App. Florence, August 7, 1907, LA LEGGE, 1907, 2230; A. G. Celle, January 15, 1870, 24 SEUFFERT'S ARCHIV, I. The consent of parents was formerly regarded in France as relating to the formalities of the marriage. See decision of Parliament of Paris of June 26, 1634, given by 1 BOUHIER, OBSERVATIONS SUR LA COUTUME DU DUCHÉ DE BOURGOGNE, Chap. 28, 774.

marry in Italy only if his capacity has been established in an Italian court.58

An American, whether he be a soldier or a civilian, who can meet the above requirements will generally be able to be married in person, so that the foreign legislation on the subject of marriage by proxy is not likely to have great practical importance so far as the United States are concerned.

It is possible, of course, that an American soldier, while he was a prisoner in Germany or Austria, may have desired to marry by proxy a young lady to whom he had become engaged in Belgium, France, or Italy. Such a marriage could not take place in Germany because the German law does not recognize marriage by proxy. If the American were a prisoner in Austria the marriage could be celebrated there only with the permission of the government, and it is most improbable that such a consent could be obtained. Could the marriage be performed at the place of the residence of the fiancée in Belgium, France, or Italy? As the Belgian law of May 30, 1916, appears to have a general application it would seem as if such a marriage could be celebrated in Belgium. In regard to France and Italy there is doubt. The legislation of these countries applies to persons connected with the Army or Navy, and the question is whether it refers exclusively to the national Army and Navy. In the opinion of Professor Wahl 59 the French legislation applies also to the Army and Navy of the Allies. If this view is correct the

58 Article 75, CIVIL CODE; 5 BIANCHI, supra, 833; I LOMONACO, DIRITTO CIVILE ITALIANO, 319.

Such a proceeding may be instituted upon a declaration from an American consul that the American authorities do not execute such certificates of capacity. BUZZATI, LE DROIT INTERNATIONAL PRIVÉ D'APRÈS LES CONVENTIONS DE LA HAYE I, LE MARIAGE, 279.

A certificate of capacity according to the national law was formerly required in France by a circular of the Minister of Justice of March 14, 1831 (see S. 36, 2, 342) but this requirement is no longer in force. According to a note of the Minister of Justice of August 1, 1911, the French officer of the civil status can no longer require of foreigners proof of their capacity to marry according to their national law. SURVILLE & ARTHUYS, DROIT INTERNATIONAL PRIVÉ, 6 ed., 373. Under the former requirement it had become the settled practice in France to accept as a substitute for such certificate the opinion of an American attorney whose competency was certified by the American Embassy, that according to the law of the state to which the party belonged parental consent and the publication of banns were not required. KELLY, supra, 57-63.

59 Wahl, "Mariage par Procuration," REVUE TRIMESTRIELLE DE DROIT CIVIL,

1915, 15.

American prisoner in Germany could marry his fiancée in France, provided the French legislation is applicable to American soldiers and sailors who are prisoners in foreign countries.60

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 fiancée in the state in which she lived. 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 fiancé'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 validity of the marriage. American courts have gone to the very extreme in sustaining 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 recognize, on the ground that there has been an evasion of the domestic law, a marriage validly 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 question whether a marriage may be entered into by proxy relates clearly to the formalities, 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,61 A logical

60 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.

61 Upon the reasoning of the court in Freeman's Appeal, 68 Conn. 533, 37 Atl. 420 (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

application of the principle would enable the parties to get married in a state authorizing marriage by proxy without going there themselves, both parties being represented by proxies.62

NEW HAVEN, CONN.

Ernest G. Lorenzen.

attorney is, however, obviously erroneous, and there is no likelihood that any court would follow it with respect to marriage by proxy.

62 As this article was going through the press, the Judge Advocate General rendered an opinion in which he held that soldiers abroad might marry their sweethearts in the United States through interchanging a marriage contract by mail, provided that such marriage does not contravene state statutes, and that this method might properly be facilitated by the military authorities in France.