Page:Harvard Law Review Volume 32.djvu/844

808 8o8 HARVARD LAW REVIEW cree, in short, cuts off and destroys the ill-favored" marriage plant, annulment tears it up by the roots. Through a great deal of the authority on this subject of annulment of marriage, there is nevertheless a failure to distinguish nullity and divorce suits. One judge has called an attempt to dififerentiate them a mere juggling with terms.^^ That courts should often use the terms interchangeably and apply statutes provided in divorce cases to suits for annulment is not surprising; nor is it to be won- dered at that legislatures assume a common ground of jurisdiction for both. The common use of the terms is of long standing. Back in the time of Coke that venerable jurist, in commenting on a state- ment of Littleton's concerning the effect of a divorce in the law of estates, explains that there are two kinds of divorce :^^ "One d vinculo matrimonii, and the other d mensd et thoro. . . . Divorces d, vinculo matrimonii are these; Causd praecontractHs, causd meiiis, causd impotentiae seu frigiditatis, causd affinitatis, causd con- sanguinitatis. . . . A mensd et thoro, as causd adulterii, which dissolveth not the marriage d vinculo matrimonii, for it is subsequent to the marriage." Blackstone^^ also, instead of contrasting divorce and annulment, speaks of two kinds of divorce, and points out that a total divgrce must be for some of the canonical causes or impediments existing before marriage. "For in cause of total divorce, the marriage is declared null, as having been absolutely unlawful ah initio, and the parties are therefore separated pro salute animarum." The issue of the marriage thus entirely dissolved are bastards. Divorce in ecclesiastical law, and in the sense in which these writers are using the term, meant two things : first, divorce a mensa, or modern judicial separation, after which, as Coke says, " the coverture continueth;" second, annulment, which then as now was declared New York Domestic Relations law which seems to make nullity decrees in some cases speak from the time they are pronounced only. " Mitchell V. Mitchell, 63 Misc. 580, 117 N. Y. Supp. 671 (1909). "A mere diflfer- •ence in form" it was called in Turner v. Thompson, 13 P. D. 37 (1888). Perhaps it was in the particular case, where a woman who had previously secured a divorce in the United States on the groimd of her husband's incompetency, was seeking an annulment of the marriage, which had taken place in England. Being akeady free, she was in no need of a further decree. 1* Coke on Littleton, 235 a. i» I Commentaries, 440 et seq.