The fact of insanity of the plaintiff, at the time of the marriage, as charged in the bill, and the fact that the parties have never since lived together, or in any manner cohabited with each other, are proved to my satis
It is too plain a proposition to be questioned, that idiots and lunatics are incapable of entering into the matrimonial contract. In Morrison’s case, before the Delegates, (cited in 1 Bl. Com. 439. and 1 Collinson on Lunacy, 554.) it was held, that the marriage of „a lunatic, not being in a lucid interval, was absolutely void. I cite this case, not so much for the rule which it declares, as to show, that though such marriages be, ipso facto, void, yet that it is proper that there should be a judicial decision to that effect, by some Court of competent jurisdiction; and that, in England, the Spiritual Court is the appropriate tribunal. I should presume, that this was all that could have been intended by the common law judges, in Stiles v. West, (cited in Sid. 112.) where it was said, that if an idiot contract marriage, it was good. In Ash’s case, (Prec. in Ch. 203. 1 Eq. Cas. Abr. 278. pl. 6.) the marriage of a lunatic was controverted ill the Spiritual Court, and the Lord Keeper declared, in that cáse, that if a party contracted marriage when a lunatic, and agreed to it, and consummated it, in a lucid interval, it would be good. In Smart v. Taylor, (9 Mod. 98.) before Lord Ch. Macclesfield, it was taken for granted, and assumed as á settled proposition, that marriage by an idiot, (and of course by a lunatic) was to be impeached in Doctors’ Commons. And in the late case, ex parte Turing, (1 Ves. & Beam. 140.) it seemed to have been thought necessary, notwithstanding the act of 15 Geo. II. c. 30. declaring every marriage of a lunatic void, that there should be a sentence of the Ecclesiastical Court to that effect. This statute could not have been introductory of a new'
The fitness and propriety of a judicial decision, pronouncing the nullity of such a marriage, is very apparent, and is equally conducive to good order and decorum, and to the peace and conscience of the party. The only question, then, is, to what Court does the jurisdiction of such a case belong f There must be a tribunal existing with us competent to investigate such a charge, and to afford the requisite relief; and the power, I apprehend, must reside in this Court, which has not only an exclusive jurisdiction over cases of lunacy, but over matrimonial causes. The Chancery powers, in cases of lunacy, have never been applied to this case, because, there existed in England, another and peculiar jurisdiction 'for the case; but as such a jurisdiction does not exist here, the case seems to belong, incidentally, to the more general jurisdiction of this Court over those subjects. Whatever civil authority existed in the Ecclesiastical Courts, touching this point, exists in this Court, or it exists no where, and all direct judicial power over the case is extinguished; but that is hardly to be presumed. For the more full examination of this very interesting point of jurisdiction, let us suppose the abominable case of a marriage between parent and child, or other persons in the lineal or ascending and descending line, is there no Court that can listen to the voice of nature and reason, and sustain a suit instituted purposely to declare such a marriage void ? If a man marry his mother, or his sister, they are husband and wife, say the old cases, until a divorce, and the marriage be judicially dissolved. (39 Edw. III. 31. b.
We are placed in a singular situation, in this state, and, probably, one unexampled in the Christian world, since we have no statute regulating marriage, or prescribing the solemnities of it, or defining the forbidden degrees. It remains to be settled, not only where the jurisdiction, in some of these cases, resides, but what are the sound and binding principles of common law, under which that jurisdiction is to be exercised.
It was said by Vaughan, Ch. J., in Harrison v. Buswell, (Vaug. 206. 2 Pent. 9. S. C.) in delivering the opinion, which he declared to be given upon consultation with all the judges of England, that by the ancient common law, some marriages were within forbidden degrees, and unlawful, and that the cognisance of such questions belonged to the Spiritual Courts. But he observed, that if it were not for the statutes of Hen. VIII., (and which we have not reenacted,) it would be difficult to prove, that they were civilly bound by the Levitical degrees, in respect to the lawfulness of marriage connections, unless the prohibition was,
Divorces a vinculo, says Lord Coke, (1 Inst. 235. a.) are causa metus, causa impotentice, causa affinitatis, causa consanguinitatis, he. he. (Vide also the case of the Earl of Essex, divorced in the Court of Delegates, and Bury’s case, 1 St. Tr. 315. 10 St. Tr. App. 23. Harg. edit.) These cases, and that of lunacy, are not within the statute, giving to this Court jurisdiction concerning-divorces, for the statute, in respect to divorces a vinculo matrimonii, only applies to adultery. All the causes for divorce specified in our statute, are those which arise subsequent to the marriage, and suppose it to have been lawful in the beginning. But I'presume every one will readily admit, that there are other causes which render the marriage unlawful, ab initio, such as lunacy, idiocy, duress, consanguinity, &c.; and the question is, whether we have not a Court which is competent, not merely collaterally, but by a suit instituted directly, and for the sole purpose, to pronounce a divorce, in such cases-The principles of canonical jurisprudence, and the rules of the common law, are the same, in respect to some of those-■strong instances which I have mentioned, and there must •be a tribunal to apply them. If it were otherwise, there would be a most deplorable and distressing imperfection in the administration of justice.
Besides the case of lunacy, now before me, I have, hypothetically, mentioned the case of a marriage between persons in the direct lineal line of consanguinity, as clearly ¡unlawful by the law of the land, independent of any church •canon, or of any statute prohibition. That such a marriage ■is criminal and void by the Law of Nature, is a point universally conceded. And, by the Law of Nature,.! under
I have been led further than I, at first, intended, by these remarks, which have been made merely by way of argument, and in illustration of the question touching the power and duty of the Court to declare void the marriage of the lunatic in the case before me. I trust I have shown that there must exist such a power for this arid other "cases; and I, also, trust that this Court will never be under the painful necessity of making a more solemn and direct application of the doctrine.
I shall, accordingly, declare the marriage null and void, and that the parties are free from the obligations of marriage with each other.
Decree accordingly.
unheeded