Page:Harvard Law Review Volume 32.djvu/845

809 JURISDICTION TO ANNUL A MARRIAGE 809 for causes existing prior to the marriage. All matters pertaining to the marriage relation were adjudicated in the ecclesiastical courts, and the doctrine of the church was firm against the possibility of dissolving a valid marriage. The theory was preserved by giving wide scope to the doctrines by which a marriage could be avoided. While it accomplished for the party the same practical results as a modern divorce, freedom from a burdensome matrimonial yoke, and was perhaps easier to get, the theory was entirely different. A marriage, said the Jchurch court, had never existed.^ Though in exceptional cases, beginning with the seventeenth century, mar- riages were dissolved by Act of Parliament, it was not until the Matrimonial Causes Act that an English court could decree a dissolution of a validly existing marriage.^^ Coke and Blackstone were not confused on the difference be- tween divorce and annulment, because divorce as we now have it in the law was unknown to them. If divorce in our day meant the same as in Coke's, perhaps we should have no need to distinguish divorce and nullity jurisdiction. Since it does not, it would be well to keep the difference clearly in mind. With characteristic felicity of statement, Mr. Justice Holmes has used, in another connection, language applicable here:^^ "As long as the matter to be considered is debated in artificial terms there is a danger of being led by a technical definition to apply a certain name, and then to deduce consequences which have no relation to the grounds on which the name was applied." It is clear that divorce and annulment do not affect marital re- lations in the same way. It is the contention here that as the results of the two differ, so jurisdiction for an action to nullify a marriage differs from that for divorce, and the difference is caused by the 2" See the interesting discussion by J. W. Brodie-Innes, " Some Curiosities of Marriage Law," 13 III. L. Rev. 183. See also Lord Bryce, "Marriage and Divorce," 3 Select Essays in Anglo-American Legal History, 782, 822 et seq. ^1 See Holdworth, "Ecclesiastical Courts," in 2 Select Essays in Anglo-American Legal History, 297 et seq. Sir W. Page Wood, V. C, in Wilkinson v. Gibson, L. R. 4 Eq. Cas. 162, 166 (1867); "... Whenever such expressions as divorce d vinculo occur, they always refer to cases where there never existed a vinculum, and the so- called marriage was never a marriage at all." Sir William Scott in Proctor v. Proctor, 2 Hagg. Cons. 292, 296 (1819): "The obligations of marriage might be suspended but could not be extinguished, the parties might be released in certain cases from personal cohabitation, but the relations of husband and wife still subsisted."
 * Guy V. Donald, 203 U. S. 399, 406 (1906).