INSANITY AND DIVORCE.
THE question about to be argued before Lord Penzance whether the insanity of a respondent ought to bar an action for divorce, would seem prima facie to admit of only one answer. There can be no such bar, for none such is admitted in any other civil case, and in the eye of the law marriage is a civil contract made for life, and a suit for divorce a civil process. There is no penalty for adultery as such in our law, nor does a " conviction " involve any kind of civil disability. The guardians of a lunatic would not be exempt from satisfying claims incurred by him when sane, nor would the fact of his condition exonerate his estate. Technically speaking, therefore, the right of a petitioner to relief would seem to be perfect, though he must, of course, suffer some- what from the obligation to prove his case more perfectly than he need otherwise have done,—so perfectly as to raise a fair presumption that the mental condition of the respondent has made no serious difference in the verdict. This, too, would seem to be the theory upon which the Divorce Court has hitherto acted, for although insanity has never been pleaded in such a suit, and Lord Penzance will have to exercise what is virtually legislative power, still a large proportion of such cases are heard in the absence of the respondent, who has fled abroad or remains in concealment until the ease is decided. In such cases the Court acts as absolutely as if she were present, and as, if the suit were considered a trial, it could not do, and frequently gives judgments affecting great masses of property on ex parte evidence alone. It would seem, therefore, that the Court on the precedents it has itself created must allow a petitioner to claim, and if he proves his case to obtain, the usual relief. Nevertheless, it is to be hoped that should such be the decision, Lord Penzance will accompany it with reasons more convincing than the argument from analogy. The point is one on which the public sentiment and the public idea of expediency are very curiously at variance. The country, as usual, has acted on the latter, and for centuries has steadily refused to punish adultery as a crime, fearing among other things lest if it were called a crime the injured must be legally prohibited from a forgiveness which might, under circumstances, be a display of the highest Christian virtue. But the public never- theless holds adultery—in the wife, at all events—to be a crime, punishes it by an extra-legal process with extreme severity, and insists on calling a suit for divorce a " criminal " trial. The law, too, oddly enough, takes this view with one side of its head, authorizing the Court to inflict what is occasionally a tremendous fine on the guilty woman, by transferring her settlement, even when made out of her own money, to
trustees for the benefit of her children, or others who, had the marriage continued, might have benefited by it. A great shock is therefore likely to be felt by the public, if it is found that a
woman may really be tried and virtually punished with great severity, after a trial in which she can neither explain nor suggest an explanation of hostile evidence, neither answer nor cross- examine any accusing witness. It will be said that the evidence in such cases is almost always of the precise kind which nobody but the accused can answer, because nobody else interested in her defence can know anything about it; that the analogy of an absent respondent is no analogy at all, absence being wilful, while insanity is involuntary ; and that in many cases a woman may be punished for the offence of suffering under the heaviest affliction God sends on man. A precedent, it will be argued, will be laid down by such a decision upon which lawyers may build till insane per- sons are held as liable for their acts as persons in full possession of their reason, till moral justice, in fact, is sacrificed to a supposed social expediency, a sacrifice of which the English people have always entertained an unusual horror. Judgment par contumace is wholly unknown both to English and American criminal law.
We own that we are not satisfied with the usual answer to these pleas,—that no injustice is done, because, as the respondent could not appear to give evidence, her friends could fight for her as well as herself. That may be very true in a case like the one heard last week, but it very often happens that the friends have no interest in the matter, or are the first to deduce guilt from appearances, or are entirely in the husband's interest, while they never, from the nature of the inquiry, can know the facts as well as the respondent. There must be injustice in such a proceeding, and the only question, as it seems to us, is on whom the injustice shall fall. Is the wife to be tried when incapable of understanding evidence, or is the husband to be refused justice because his wife, having been bad, has also become mad ? That is the first point, and if it were the only one, most people would, we think, have some difficulty in coming to a conclusion. The husband would be pronounced unfortunate, but there are many misfortunes which are irremediable, and the rare occurrence of this one would hardly justify a breach in the grand theory of English justice, that the defence must precede the sentence. But unfortunately the con- sequences of adultery may involve others than the husband, and inflict wrongs other than those he has sustained in his conjugal character. It may very easily happen that a refusal of divorce may be the refusal, to perfectly innocent persons unconnected with the case, of property which is justly theirs, which failing the supposititious child must descend to them. That difficulty arises in every case of entail. Their claim, which is purely civil, could not be justly barred by the plea of insanity ; yet if that can be used to bar an action for divorce, it can also be used to bar an inquiry into paternity, which would equally be a " trial " of the wife, and equally involve the penalty of a loss of reputation, which her ability to instruct counsel might have avoided. Taking into consideration the right of the father not to be burdened with a child not his own, and the right of his heirs not to be plundered by a fraud, the balance of abstract justice must, we think, be held to incline heavily on the side of allowing the procedure.
There is far deeper difficulty in another possible case, one which we wonder has not frequently occurred, the case of adultery by a woman who is really insane at the time, though the insanity has not been suspected. By every just principle of morals she is innocent, and yet the consequences of her acts may be as injurious to society as if she were really guilty. The husband is equally burdened, the heir in tail equally robbed, the loss of honour to the family, if not equally great, still, in the excessive unfairness of mankind, very considerable. If the husband condones, as doubt- less a just husband would condone, he is helping a fraud ; if he does not, he is destroying his wife for a misfortune which may be as external to herself as blindness or a broken leg, —for what, in fact, may be mere hereditary defect of the brain.
The case supposed, is, we fear, a case in which human justice is powerless, in which justice cannot be done, and in which if justice is our sole end the wisest course must be to refuse to act. Unfortunately, there is the safety of society also to be considered, and nothing is so unsafe as to allow insanity to be pleaded in bar of civil remedy in countries where trial by jury is established. The temptation to simulate madness is very strong, experts in lunacy have a permanent theory that everybody is mad but themselves, and an average jury once well impressed by a clever counsel is about as capable of distinguishing between lunacy and eccentricity as a group of oxen or sheep would be. The late Dyce Sombre was adjudged mad half-a-dozen times over on honest testimony which, to Anglo-Indians, seemed to prove that he was just as bad as a bad Indian Mussulman Prince thrown out of his groove would be likely to appear. Nothing could be more unjust than a divorce for crime committed during insanity, yet if we once allowed that defence it would be always pleaded, and that without the tremendous check imposed by our criminal law, which refuses to try a homicidal lunatic, but sentences him to perpetual incarceration without a trial.
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