The case accordingly came on before Lord Penzance (the Judge Ordinary) on the 16th of February, and lasted for more than a week. Though the real issue was the state of mind of Lady Mordaunt, witnesses were called to prove her adultery with several persons, in order to show that her insanity was feigned and that she had a strong motive for the pretence. Amongst others his Royal Highness the Prince of Wales was examined as to his conduct with the respondent, and he satisfactorily denied that there had ever been any improper familiarity between him and Lady Mordaunt. In the end the jury found that on the 30th of April the respondent was in such a condition of mental disorder as to be unfit and unable to answer the petition and to instruct her attorney for her defence, and the order of Lord Penzance for staying further proceedings on that account was subsequently affirmed by a majority of the full Court.

The learned judges differed in opinion, Lord Penzance and Mr. Justice Keating holding that the respondent's insanity was a bar to the petitioner's proceeding for a divorce, while Chief Baron Kelly took a contrary view of the case. The judgments were as follows:

Mr. Justice Keating: The question is whether the order of the Judge Ordinary appealed from should be rescinded or varied, or, in other words, whether proceedings upon a charge of adultery, with a view to a divorce, can or ought to be continued against a respondent who at the commencement of the suit was, and still is, wholly unable and unfit, through mental incapacity, to defend herself, so long as that mental incapacity continues; and I am of opinion that the order made ought not to be rescinded or varied. If this were a criminal proceeding or a proceeding in pænam, properly so called, of course there could be no doubt upon the subject. Mental incapacity not only excuses the commission of what otherwise would be crime, but is a bar at every stage to any proceeding on the part of the Crown in respect of it. It excuses the act charged as crime, because the essence of crime is the mens rea, which could not exist in such a case, and it is a bar to criminal proceedings in consequence of want of capacity on the part of the accused to understand the charge or make a defence to it. See the rule and the reason for it well stated in 4 Broom and Hadley's Commentaries on the Laws of England, p. 22, citing Hale, P.C., 14. Now, it is true that by the law of England adultery is not the subject of indictment (2 Co. Inst., 488; "Galizard v. Rigault," Holt's Reports, 598), and therefore cannot with strict technical accuracy be termed a crime; yet the charge, both in its nature and consequences, much resembles a criminal charge. Indeed, Mr. Emlyn, whose learning and ability are vouched by Mr. Hargrave in his preface to the second edition of the State Trials, p. 33, note H, expresses an opinion that it was indictable by our law, and cites authorities for his opinion. By the law of France it is punishable as a criminal offence, and we have the authority of Lord Holt in the case referred to ("Galizard v. Rigault") that it is considered as such in the Spiritual Courts. In divorce proceedings in the House of Lords also it appears to be so treated. In the Duchess of Norfolk's case (12 State Trials, 890) the entry is, "Upon reading the charge which Henry Duke of Norfolk hath exhibited against his wife, Mary Duchess of Norfolk, for the crime of adultery, it is ordered-." No case is to be found in the Ecclesiastical Courts where the question has arisen how far adultery to justify a divorce could be committed in the absence of the mens rea, but it seems clear that by the French law it is essential to the commission of the crime (Gilbert, Codes, Annotés par Sirey; Code Pénal, 336; and Merlin, 1 Rep. Adultère, n. 10). In America the decisions

conflict upon the point (2 Wheaton's Com., 82). How that question will be dealt with should it arise in the courts of this country it is not necessary to anticipate; for, at all events, the nature of the offence charged seems to me to distinguish the proceedings in divorce essentially from those merely of a civil character, in which the object is the recovery of debt or damages for an injury to person or property (see Bacon's Abridgment, title Trespass G.), but where the personal status of the defendant is wholly unaffected. In proceedings for a divorce, although the consequences to the party charged and found guilty are certainly not the same as in misdemeanour, yet in the case of a wife respondent they are so incalculably more terrible than fine and imprisonment that it seems contrary to all sense of natural justice that a woman should be convicted of adultery, involving a change in her personal status, and that by a judgment in rem, without the fullest opportunity of making her defence. By analogy, therefore, to those principles which have been established in the administration of criminal justice in this country, it seems to be that the proceeding for a divorce for cause of adultery, although not strictly a criminal proceeding, is at least a proceeding quasi in pœnam, and ought to afford similar protection to parties accused. But by far the most cogent reasons for supporting the present order are, in my opinion, to be found in the provisions of the statute itself upon which the jurisdiction of this Court is founded; and in order to appreciate their effect it is necessary to bear in mind that before the passing of the statute 20 and 21 Victoria, cap. 83, by the law of England marriage, when lawfully contracted, was an indissoluble contract. Unlike all other civil contracts, it could neither be put an end to by mutual consent nor by act or operation of law. The husband whose wife had proved unfaithful might, indeed, go into the Spiritual Court, and, upon proof of adultery, without fault on his part, obtain a divorce a mensâ et thoro, and also bring an action for damages against the adulterer; but the marriage contract remained undissolved, nor could the parties during their joint lives marry again unless by special interference of the Legislature. In that state of things the statute 20 and 21 Victoria, cap. 85, was passed, which for the first time gave to a court of law the power to dissolve a lawful marriage, but only sub modo, and subject to certain conditions. The 27th section of that statute enables either party to present a petition for dissolution of marriage. The 28th section provides that the person charged with adultery with either party may be made respondent, and that either party may have the facts tried by a jury. Section 29 enacts that " upon any such petition for a dissolution of marriage it shall be the duty of the Court to satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or no the petitioner has been in any manner accessory to or conniving at the adultery, or has condoned the same, and shall also inquire into any counter-charge which may be made against the petitioner." By section 30,"in case the Court, on the evidence in relation to any such petition, shall not be satisfied that the alleged adultery has been committed, or shall find that the petitioner has been accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then in any of the said cases the Court shall dismiss the said petition." The 31st section provides "that in case the Court shall be satisfied on the evidence that the case of the petitioner has been proved, and shall not find that the petitioner has been in any manner accessory to, or conniving at, the adultery of the other party to the marriage, or has condoned the adultery complained of, or that

the petition is presented or prosecuted in collusion with either of the respondents, then the Court shall pronounce a decree declaring such marriage to be dissolved; provided always that the Court shall not be bound to pronounce such decree if it shall find that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner shall, in the opinion of the Court, have been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct as has conduced to the adultery." And the 43rd section enables the Court to have the petitioner examined and cross-examined on oath, if necessary, in order to obtain information with reference to the various matters upon which it is to satisfy itself, saving only the right of the petitioner to refuse to answer any question tending to prove his or her adultery. Now, it appears to me to be impossible to apply these provisions of the statute in the manner contemplated by the Legislature when one of the parties is insane. The Court cannot pronounce a decree of divorce, unless satisfied, after inquiry, which it is bound to make, that none of the statutable impediments exist, yet the existence of those impediments, or of most of them, is peculiarly, and often exclusively, within the knowledge of the parties themselves. How, then, can it be supposed that the Legislature contemplated such a suit proceeding during the insanity of one of the parties to it? Connivance, condonation, cruelty, desertion, wilful separation without reasonable excuse, wilful neglect or misconduct, conducing to the adultery, are all matters upon which it is the duty of the Court to satisfy itself, as to some absolutely, as to others if charged; but how are they ever to be supported, much less proved, when one of the parties is insane? Take the case of a petitioner. Is a petition for a divorce to be presented or prosecuted on behalf of a lunatic with a view to alter his or her personal status without his or her consent? Who can say that such a proceeding, if it could be taken, would necessarily be for his or her benefit or would be approved upon recovery? A proceeding for a judicial separation stands upon a totally different ground. It is temporary in its effect, and always contemplates the possibility of reunion, and there certainly is authority for such a decree being made on the petition of the committee of a lunatic ("Woodgate v. Taylor," 30 L. J., Probate and Divorce, 197, and see Note 1), where the distinct, but judicial, separation and divorce seems to have been present to the minds of the Lords Justices in making their order for proceedings. It is also to be observed as to the case that the attention of the Court does not seem to have been called to the provisions of the 41st section of the statute. But whatever may have been the case with reference to a petition, yet in the case of a respondent, although proceedings for judicial separation are not fenced round with all the statutable conditions applicable to a case of divorce, there is no instance to be found in which a decree for even a judicial separation has been made against a lunatic respondent, and there seems to be an additional objection to making such a decree in the fact that by a recent statute, 32 and 33 Victoria, cap. 68, he or she is made a competent witness, and has the right to give evidence in disproof of the charge of adultery. It would seem, therefore, extremely unjust to deprive the parties charged of the right without any fault on their part. It is not difficult to suppose many cases where suspicion of the gravest kind resulting from conversations or letters or entries might be dispelled by a few words of explanation, which could only be given by the absent lunatic, or when a totally different complexion

might be put upon facts apparently of a highly criminating character, by the evidence of the party charged. I do not wish to attach undue importance to the fact that charge or counter-charge is either by statute or rule to be made upon the oaths of the parties respectively, as, perhaps, the Court could, in furtherance of justice, relax the stringency of the requirements; but such a provision in the statute in the case of a petitioner tends at least to show the Legislature contemplated the parties being in a state of sanity. Neither does it seem to me that the argument used at the Bar, that as the Court could pronounce a decree of divorce against a party not served, so it might do in the case of a lunatic, avails much to the case of the appellant. When such a decree is made the Court is satisfied either that the party has gone away to avoid service, or may have had notice by means of advertisements or other notices directed to be given, whereas in the case of an insane person the Court knows that the party had not and could not have had notice, and cannot possibly defend himself or herself against the charge. The authorities upon this point are necessarily few, but what authority there is upon the subject is clearly in favour of the present order. In a case not reported, but furnished from the notes of the late Sir Herbert Jenner Fust, the question seems to have arisen whether a decree a mensâ et thoro could be made against a lunatic respondent. That learned Judge, expressing a doubt whether he could make such a decree, took time to consider. No judgment is known to have been given, nor is there any trace of such decree having been made. However, the question arose afterwards before the late Sir Cresswell Cresswell in the case of" Bawden v. Bawden," reported in 2nd Swabey and Tristram's Reports, on a petition for a divorce under the present Act, and that eminent Judge, after taking time to consider, gave judgment that the proceedings should be stayed. Now, this decision is admitted to be in point, and indeed the present appeal is with a view to overrule that case, although in form it is directed against the order of the Judge Ordinary made upon its authority. In my judgment, however, that case was rightly decided. I do not refer to the cases of hardship suggested, quite as great on the one side as on the other, as it was admitted the case must be decided on other considerations. The order as made stays the proceedings until the petitioner, who has the custody of the respondent, can assert her recovery. Meanwhile, he is in the same position as he would have been in before the passing of the statute. The facts of this case are not before us, but should it upon those facts, in consequence of any peculiar hardship, be deemed one fit for legislation, of course there is nothing to prevent it. In my opinion the Order of the Judge Ordinary was right, and the appeal against it ought to be dismissed.

LORD PENZANCE.-The main question to which the insanity of the respondent gives rise is, whether the suit can be permitted to proceed to a decree against her so long as she remains insane. A suggestion has been made that the order now under appeal should be altered by staying the proceedings for a time, until recovery shall be declared hopeless. An obvious objection to this course is that the probability of recovery is a matter more of speculation than of definite conclusion. But it seems to me that the propriety of adopting it depends upon the legal effect of the respondent's insanity, so long as that insanity continues. If while the insanity continues the petitioner is entitled, nevertheless, to proceed to prove his case, it would still be right, in justice to the respondent, to stay the proceedings for a reasonable time, to take the chance of her recovery, before the charge is pressed against her. If, on the other hand, the true view is that no

proof or decree can lawfully be made against her so long as she continues insane, there is no need, as it seems to me, for a stay of proceedings for any period short of her recovery, and no justification for the postponement of a decision on the main matter, which the parties have asked at our hands. The authority of this Court to entertain a suit for the dissolution of marriage is derived wholly and solely from the statute by which this Court was first instituted. The relief which the Court was then for the first time empowered to give in cases where the marriage vow had been violated has been defined and regulated by the various provisions of that statute, and restricted by the conditions thereby imposed. The language that has been held in argument invites and provokes some consideration of the nature and extent of these various provisions. It has been argued that marriage is nothing but a contract, subject to all the legal incidents of an ordinary contract, and giving rise to the like legal remedies. From this position, if tenable, the conclusion would not be difficult that insanity in her who has broken the contract, should be no bar to the remedy of him who complains of the breach of it. For the Courts of Law and Equity have always, though in different ways, enforced remedies arising out of contract, notwithstanding the insanity of the defendant. But, is it true that marriage is an ordinary contract? Surely it is something more. I may be excused if I dwell somewhat on this matter, because I conceive it lies at the very root of the question in discussion. Marriage is an institution. It confers a status on the parties to it and upon the children that issue from it. Though entered into by individuals, it has a public character. It is the basis upon which the framework of civilized society is built, and, as such, is subject in all countries to general laws, which dictate and control its obligations and incidents, independently of the volition of those who enter upon it. Marriage, moreover, has features which belong to no other contract whatever, and notably these two-it cannot be rescinded, even by the consent of both parties to it, and it is commonly contracted under the sanction of a religious ceremony. This, the leading feature of marriage, its indissolubility, was preserved by the law of this country up to the time that the statute constituting this Court passed into legislation. No matter how flagrantly the obligations of the contract had been violated on one side, there was no right to a release from the corresponding obligations on the other. Cases of grievous hardship brought about a remedy by measures above and beyond the law for those who could afford to pay for them; but the essence of the marriage contract remained the same, and the bargain to live together for better and for worse continued to be one from which there was no voluntary retreat or legal escape. To what extent, then, did the Legislature intend by the Divorce Act to break in upon the integrity of this system? It is worth while to examine this matter, for the power conferred by this Act of resorting to this Court has been treated in argument as if it were simply a new means of asserting a pre-existing right. According to this view the act of adultery is treated as conferring at once the right to a dissolution, and the Divorce Act only as furnishing the necessary machinery. But is this so? It appears to me that the new remedies, like those of a more limited character accorded by the Ecclesiastical Courts, were granted, if I may use the expression, rather ex gratia than ex debito justitiæ. The Divorce Act kept alive the restrictions under which the Legislature in the case of Divorce Bills, and the Spiritual Courts in the case of divorce suits a mensâ et thoro, had been used to act, and those restrictions plainly show the spirit in which the relief was granted. It was a principle of universal application in the Spiritual Courts that a suitor who prayed