Page:Harvard Law Review Volume 32.djvu/846

8 10 HARVARD LAW REVIEW fundamental distinction between the objects of the two suits. It seems worth while to analyze the situation as it appears on princi- ple, then to ascertain how far court decisions and legislative enact- ments affect the result. Suppose that parties resident in state A have married there, and have lived (that is, have been domiciled) successively in states A, B, C, and D. Now while they are domiciled in D one of them seeks to have the marriage annulled. It would be an anomalous doctrine that would permit state D to declare the relations of this pair were meretricious throughout, to go back and change the whole legal effect of their relations prior to the time they became citizens of D. The man might have married his deceased wife's sister, and the marriage might have been perfectly lawful in A, and in B and C as well. Is the effect of the D decree to proclaim the children for- ever bastards, to make confidential communications between these people subject to disclosure in any court, to render this man liable to an action by the woman? It is conceded, of course, that D can say, for whatever reasons that seem to it sufficient, that these parties, now domiciled within its borders, are no longer fit to live together as husband and wife, and can divorce them, free them from that time on. But how can it say that they never were married, when A, in which jurisdiction they lived when the contract took place, and which controlled their status then as fully as D does now, declared them husband and wife? Jurisdiction A would not and could not say that because a pair entered into the marriage relation as citizens therein, that another state in which they subse- quently became domiciled could not put an end to the status.^ But A has fully as much right to take this ground as D has to say the status never existed. A court having a thing before it may, by a decree in rem, change rights in the thing the validity of which will be recognized everywhere. But no one would contend that such a court could effectively say that rights vesting under a prior decree in a different jurisdiction where the res then was, had never existed. So here: the marriage relation is the res, and is so treated in divorce actions. The court having the domicile of the parties has jurisdic- » See Harvey v. Famie, L. R. 8 A. C. 43 (1882); Bater v. Bater, [1906] P. 209; and as recognizing an opposite doctrine, Hull v. Hull, 2 Strob. Eq. (S. C.) 174, i77 (1848). The court there opines that a South Carolina marriage may not be dissolved, though that of another state may.