case should be held to fall within the general principle of governmental prevention above set forth.29

It may, however, be thought that the argument previously developed, as applied to such acts as the issue of priority certificates, must be limited to cases involving contracts entered into prior to the establishment of the priority system. One who, after that system had been put into operation and had become thoroughly familiar to the commercial world, made an absolute contract to make and deliver commodities of a kind on which priority certificates were issued might be said to have deliberately taken the risk of this sort of interference.

It may be doubted, however, if such was the real intention of the parties in the ordinary case. Business men no doubt frequently find it convenient to make sales in an informal manner without the drafting of elaborate contracts, and the absence of an explicit statement that the seller's obligation was subject to governmental interference or priority certificates should not be held to make the contract an absolute guaranty of delivery. As Holmes, J., said in a recent case (8) in which the doctrine of impossibility of performance was given a rather broad scope, “Business contracts should be construed with business sense, as they would naturally be construed by intelligent men of affairs." 30

In a recent English case a contract to export aluminum made after war had begun and exports were restricted was treated as a contract to make reasonable efforts to obtain an export license.31 It is true that to export without a license probably was illegal, which would not have been the case with regard to the giving priority to an order on which no priority certificate was issued. Nevertheless, if an agreement to export is not to be treated as a guaranty to obtain an export license,32 it may fairly be argued that

29 Cf. The Kronprinzessin Cecilie, 244 U. S. 12 (1917), in which the court held that a German ship was excused for failure to deliver a cargo of gold in England by the fact that, since war was imminent, there was grave danger that such a course would have resulted in the capture of the ship and in the detention of the German passengers.

30 Ibid., 24.

31 Anglo-Russian Merchant Traders v. John Batt & Co. [1917] 2 K. B. 679. See also Allan Wilde Transport Co. v. Vacuum Oil Co., Sup. Ct. Unoff. Jan. 13, 1919.

32 Such a guaranty would not be illegal, although it might have some tendency to cause the use of improper means to obtain such a license. See English case cited in preceding note.

an agreement to produce is not a guaranty that government regulations such as those relating to priority will not make production impossible.

Wherever a court can thus find that a contract is not an absolute guaranty of performance, it is the contention of this article that performance should not be required by the courts of a defendant who had disregarded his contractual obligations because of administrative regulations aimed at the defendant or the class to which he belonged, where the government had the power and the apparent intention to enforce the regulations directly or indirectly in a manner which would either have made performance of the particular contract impossible or have interfered with the defendant's business so drastically as to constitute what could fairly be called administrative coercion.

It is possible that Congress may render the incorporation of such a doctrine in the common law unnecessary under present circumstances by passing an immunity act which will protect persons who have complied with administrative regulations irrespective of the existence of statutory authority for such regulations, and a precedent for so doing exists in the acts passed in 1863 and 1866 with regard to things done during the Civil War, the constitutionality of which acts was upheld by the Supreme Court in Mitchell v. Clark.33 No doubt such a statute would simplify the situation and furnish a ready means of doing justice in cases where justice cannot be done by the courts in the present state of the law without straining that law. Nevertheless it is the writer's belief that the courts can, if the facts with regard to the true character and scope of governmental action in war time are properly brought to their attention, deal with the matter of contracts in a manner which will in general protect those who have obeyed administrative regulations during the war period.

E. Merrick Dodd.

BOSTON, MASS.

33 110 U. S. 633 (1884).

JURISDICTION TO ANNUL A MARRIAGE

THE

HE law has gone a long way from the theory that a valid matrimonial union is indissoluble. Whatever the church may say about remarriage of a party once married and divorced, the civil authority has no difficulty in saying that marriage bonds may be completely severed. It is now clear that power to dissolve a marriage relation by divorce belongs to the law where the parties are domiciled, and is based on the jurisdiction of a state to deal with the status of its citizens.1

Is the situation different when the relation of the parties is ended by a decree that the marriage was null and void, as distinguished from a divorce decree which dissolves it? In other words,, does jurisdiction to annul a marriage differ from that of divorce? It is, of course, granted that any state if it pleases may treat two people as unmarried while within its borders. It may give a man a divorce whether he is domiciled there or not. Such procedure has been a national scandal. But his decree will not keep him out of trouble if he marries again in another state. In the same way a court could grant an annulment of marriage to any party before it, which, if in accordance with the local law, would entitle the party to the privileges and immunities of a single person within its borders. But this is not jurisdiction in what may be termed the international sense, in the sense in which the word is used in Conflict of Laws, a jurisdiction which will entitle the decree to recognition elsewhere. Does jurisdiction in this sense depend on domicile as does that for divorce? Eminent authority has so declared. Says Bishop:2

"A suit to declare a marriage void from the beginning concerns the marriage status precisely like one to break the marriage bond for a postnuptial delictum. Therefore it may be and should be carried on in the courts of the domicile."

That a suit for annulment concerns the marriage status there is no doubt, that it concerns this relation precisely like one to break off the tie for a postnuptial delictum is not so clear. The effect of 1 MINOR, CONFLICT OF LAWS, § 88.

2 2 BISHOP ON MARRIAGE, DIVORCE AND SEPARATION, § 73.

a divorce decree and one of nullity are certainly different. It is true that after a divorce decree the parties become strangers in the eyes of the law. Each may sue the other as though no marriage had existed; the relationship by affinity is terminated; the parties are no longer disqualified from testifying in a suit in which the other is concerned on the ground of interest; the wife may be a competent witness in a criminal case against the former husband as to matters arising after the divorce. But there is real significance in the statement that the relation is destroyed "as if by death."" It once had a lawful existence, of which the legal consequences continue even though the relation itself has terminated. Offspring born or conceived during the wedlock are legitimate; personal choses of the wife, already reduced to possession by the husband remain his.9 Communications between the parties made during the time of wedlock come within the rule excluding the admission in evidence of confidential communications between the husband and wife.10

An annulment cuts deeper. The woman, after such a decree, can sue a seducer notwithstanding a form of marriage between them, which if valid would have defeated the action." Communications made between the parties after the marriage and prior to the decree are not treated as confidential communications between husband and wife, and there is no prohibition upon their admissibility in evidence.12 The husband acquires no rights in the wife's property.13 The woman may maintain an action against the man for the wrongful cohabitation.14 She is not entitled to the homestead exemption given a divorced wife.15 Unless a statute protects them, the children of the parties are illegitimate.16 The divorce de3 Carlton v. Carlton, 72 Me. 115 (1881).

9 Lawson v. Shotwell, 27 Miss. 630 (1854).

10 Griffeth v. Griffeth, 162 Ill. 368, 44 N. E. 820 (1896).

11 Henneger v. Lomas, 145 Ind. 287, 44 N. E. 462 (1896).

12 Wells v. Fletcher, 5 Car. & P. 12 (1831).

13 Aughtie v. Aughtie, 1 Phillimore Ecc. 201 (1810).

14 Blossom v. Barrett, 37 N. Y. 434 (1868).

15 Floyd County v. Wolfe, 138 Iowa, 749, 117 N. W. 32 (1907).

16

I BISHOP, MARRIAGE, DIVORCE AND SEPARATION, § 277; 2 Ibid. § 1602. See 3 CORNELL L. QUART. 51, for collection of New York cases under the provisions of the

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 differentiate them a mere juggling with terms.17 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 wondered 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 statement of Littleton's concerning the effect of a divorce in the law of estates, explains that there are two kinds of divorce:18

"One â vinculo matrimonii, and the other à mensâ et thoro. . . Divorces à vinculo matrimonii are these; Causâ praecontractûs, causâ metûs, causâ impotentiae seu frigiditatis, causâ affinitatis, causà consanguinitatis. . . . A menså et thoro, as causà adulterii, which dissolveth not the marriage à vinculo matrimonii, for it is subsequent to the marriage."

Blackstone 19 also, instead of contrasting divorce and annulment, speaks of two kinds of divorce, and points out that a total divorce 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 ab 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.

17 Mitchell v. Mitchell, 63 Misc. 580, 117 N. Y. Supp. 671 (1909). "A mere difference 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 ground of her husband's incompetency, was seeking an annulment of the marriage, which had taken place in England. Being already free, she was in no need of a further decree.