Page:Harvard Law Review Volume 32.djvu/853

817 JURISDICTION TO ANNUL A MARRIAGE 817 ment to what would be required for jurisdiction on general principles of law. An analogy for this could be found in divorce law. Resi- dence for a given period of one, two, or three years is a frequent statutory provision. This, by the prevailing view, is interpreted as an addition to the common-law requirement of domicile.^^ Presence of the respondent within the limits of the jurisdiction or his appearance in court seemed to be necessary in order for the ecclesiastical court to proceed.^^ This rule apparently has an historical foundation.^^ It is not a question of jurisdiction in the wider sense, but of the competency of this particular court. Since the English authorities insist strongly that the capacity of an Englishman to marry is governed by Enghsh law, it would be expected that English courts would assert their power to deter- mine annulment suits brought by persons domiciled there when the questioned marriage took place elsewhere. There is such authority both in England ^ and Ireland.^® (1865); Johnson v. Johnson, 12 Bush (Ky.) 485 (1877); Tipton v. Tipton, 87 Ky, 243, 8 S. W. 440 (1888); Pate v. Pate, 6 Mo. App. 49 (1874); Hopkins v. Hopkins, 35 N. H. 474; (1857) Schonwald v. Schonwald, 2 Jones Eq. (N. C.) 367 (i856);|Dutcher V. Dutcher, 39 Wis. 651 (1876); Long v. Long, 18 Victorian L. R. 792 (1892). " Williams v. Dormer, 2 Rob. Ecc. 505 (1852); Chichester v. Donegal, i Add, Ecc. 5, 19 (1822). " The following from 11 Halsbury's Laws of England, 507, note, seems to explain this further. "The Consistory Court of London from the time of Queen Elizabeth down to January, 1858, . . . was the only ecclesiastical court of first instance in England which was accustomed to entertain matrimonial and divorce suits from all parts of England. The origin of this jurisdiction was as follows: Prior to the reign of Henry VIII, a person might cite to appear in the ecclesiastical court of his own diocese a party residing in another diocese. By Stat. (1531), 23 Hen. VIII, c. 9, parties were not to cite a defendant to appear in a court out of his diocese. The common law courts, however, held that this statute was intended to be merely for the benefit of the subject, and that if both parties to a suit were willing to have it tried in a court in a diocese in which one of them did not reside, they might do so. Suitors ... in heavy and important causes preferred to have their case tried in the Consistory Court of London. ... In these cases the practice was for the petitioner in the suit to take up a residence for twenty-one day's in the diocese of London, and then to apply to the Consistory Court to issue a citation to the proposed defendant in the suit. ... If the defendant entered an appearance objecting under the Statute of Henry VIII to the jurisdiction of the court the suit was dropped; but if the defendant entered an appearance to the citation or took no notice of it, it was assumed that the party waived the objection to the jurisdiction, and the suit proceeded and was heard and decided in the London court in due course." 5* Bonaparte v. Bonaparte, [1892] P. 402; Bater v. Bater, [1906] P. 209. " Johnson v. Cooke, [1898] 2 I. R. 130, commented upon in 13 Harv. L. Rev. 604
 * 2 Joseph H. Beale in 4 lowA L. Bulletin 3, 8, citing Jenness v. Jenness, 24 Ind. 355