Page:The Green Bag (1889–1914), Volume 09.pdf/570

 Chapters in the English Law of Lunacy.

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CHAPTERS IN THE ENGLISH LAW OF LUNACY. BY A. Woo» RENTON. IV. MARRIAGE. THE English law as to the marriage of lunatics falls naturally under three heads : — 1. The effect of insanity upon the capacity to marry. 2. The effect of supervening insanity upon marriage, and the rights, duties and legal remedies of the contracting parties. 3. The question whether adultery com mitted by a spouse who is at the time in sane is a bar to an action of divorce. ( i ) There are some obscure dicta in the earliest commentators on the law that the marriage of an insane person could not be in validated on that account, founded, as Lord Stowell, then Sir William Scott, pointed out in Turner v. Meyers (1808, I Hagg. Con sist. Reps. 414) "on some notion that pre vailed in the dark ages of the mysterious nature and the contract of marriage in which its spiritual almost obliterated its civil char acter." Thus we read in Rolle's Abridgment (357; 50; 7) tnat " an ideot à nativitate poet consenter en marriage, et ses issues seront legitimates." By the middle of the eighteenth century, however, a more rational rule had clearly been established. It was settled in conformity with the civil law that idiots, being incapable of giving the consent which is the basis of marriage, were ipso facto incapable of marrying, and that the marriage of a lunatic was absolutely void unless it had been con tracted during a lucid interval. In the reign of George II this doctrine was carried to a rather absurd extent. It was provided that the marriage of lunatics and persons under frenzies (if so found by inquisition or com mitted to the care of trustees by any Act of

Parliament), contracted before they were de clared of sound mind by the lord chancel lor or the majority of such trustees, should be totally void by the operation of the stat ute alone and without the necessity of any proceedings for declaration of nullity being taken in the Ecclesiastical Courts. It is stated that this Act was passed to meet the case of Mr. Newport, the natural son of the Earl of Bradford, who had left him a very large fortune, with remainder to another person. It remained on the statute booktill 1873, since when the lunatic so found, and the lunatic not so found, by inquisition have been, as regards their capacity to marry, on the same footing. The modern English law may be stated thus : marriage, being the voluntary union for life of one man and one woman to the exclusion of all others (Hyde v. Hyde, i P. and M. 133. Re Bethell, L. R. 38 Ch. D. 394), can be validly entered into by such persons only as are capable at the time of understanding its nature and comprehending its effects as above described. It may be interesting to refer for a moment to re Bethell as illustrating the Eng lish legal idea of marriage. Christopher Bethell, whose domicile was English, went to South Africa in 1878, and afterwards re sided at Matcking in Bechuanaland. In 1883 he went through a ceremony of marriage with Teepoo, a woman of the Baralong tribe, among whom polygamy is allowed, and lived with her for some time as his wife. He was killed in the colony in 1884, and about ten days after his death Teepoo gave birth to a female child. Bethell, in a document which he wrote and signed in 1883, made some