Page:The Green Bag (1889–1914), Volume 09.pdf/572

 Chapters in the English Law of Lunacy.

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by the idea of marriage. Sir James Hannen which it creates. ... It appears to me that the contract of marriage is a very simple one, granted a decree of nullity. In Cannon v. Smalley, on the other hand, which does not require a high degree of in although the wife was shown to have been telligence to comprehend. It is an engage dull and melancholy before her marriage and ment between a man and a woman to live to was clearly insane ten days after it, the court gether and love one another, as husband and held that there was no evidence to show that wife, to the exclusion of all others. This is expanded in the promises of the marriage she was incapable. Durham г>. Durham is a famous case not ceremony by words ' having reference to the natural relations only intrinsically but w h i с h spring from because it settled the that engagement, law on its present such as protection on basis. This was a the part of the man, petition by the Earl and submission on of Durham for a dec the part of the laration of the nullity woman.' ... A mere of his marriage with comprehension of the the Countess of Dur ham, nee Ethel Eliza words of the prom ises exchanged is not beth Louisa Milner. The parties were mar sufficient. The minds ried on the 28th of of the parties may be Oct., 1882; and by capable of under the spring of the fol standing the language lowing year Lady used, but may yet be Durham was un affected by such delusions, or other doubtedly insane. The question, how symptoms of insanity, ever, was whether she as may satisfy the was insane at the time tribunal that there of the marriage. Sir was not a real appre James Hannen an ciation of the engage 1.0RI) LHIH- JUSTICE COCKBUKN. ment apparently swered this question entered into." It is in the negative. He here that we stand at the present day. held that the lady was of less than aver age intellectual power, that she was shy, (2) Insanity is a bar to criminal proceed and that her affections were set on an ings, as we have already seen. What is its other gentleman before she became engaged effect upon divorce? The answer to this to the petitioner, and these circumstances question depends on whether divorce pro accounted for the strangeness in her conduct ceedings are criminal. This point was raised for the first time in Mordaunt v. before marriage from which the Earl of Dur ham asked the court to infer insanity. " I Mordaunt (L. R. 2 Sc. and Div. App. 374). accept, "said his Lordship, " for the purposes On April 28, 1869, Sir Charles Mordaunt of this case, the definition which has been presented to the divorce court a petition for substantially agreed upon by counsel, viz., the dissolution of his marriage with Lady a capacity to understand the nature of the Mordaunt, on the ground of her adultery. contract of the duties and responsibilities Two days afterwards the citation was duly