MARRIAGE BY PROXY AND THE CONFLICT OF LAWS 485 method is frequently of no avail to Americans. For example, Article 70 of the French Civil Code authorizes an acte de notoriete 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.^^ In Italy the par- ties must be competent to marry each other not only under the national law but also according to the Italian law.^® The capa- city to marry according to the foreign law must be proved by an ofiScial certificate. As there is no American ofiicial who is authorized by law to execute such a certificate ^^ an American can " 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 circum- stances of birth. See Kelly, The French Law of Marriage, Marriage Contracts AND Divorce, 2 ed., 63. " 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 Frivato," 10 Archivio Giuridico, 433; 9 De Filippis, Corso Completo di Diritto Civile Itaeiano Comparato, 185-86; i 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; i Borsari, Commentario del Codice Civile Italiano, 382; EsPERSON, II Principio di Nazionalita Applicato alle Relazioni Civili Internazionali, 77-78. According to some writers there is no general testjljut each provision must be ex- amined with a view of ascertaining whether it aflFects the public policy of Italy or only the private interests of the contracting parties. 2 Fiori, Diritto Internationale Privato, 3 ed., Nos. 533-34; 2 Galdi, Commentario di Codice Civile, 597. " 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 author- ized by American law to do so. Trib. Civ. de Rome, June 19, 1911, Revue de Droit International Priv£, 191 2, 493. Continental countries regard the parental consent as relating to capacity and not to the formalities of marriage. App. Besangon, 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 i Bouhier, Observations sur la Coutume du Duch£ de BouRGOGNE, Chap. 28, 774.
