Morris (x), which was decided principally on the ground of fraud; or, whether it is effected by a trustee, procuring the solemnization of the marriage of his own daughter with a person of very weak mind, over whom he has acquired a great ascendancy. A person incapable from weakness of detecting the fraud, and of resisting the ascendancy practised in obtaining his consent to the contract, can hardly be considered as binding himself in point of law by such an act. At all events, the circumstances preceding and attending the marriage itself, may materially tend to shew the contracting party was of unsound mind, and was so considered and treated by the parties engaged in fraudulently effecting the marriage. In respect of Lord Portsmouth's unsoundness of mind, the case set up is of a mixed nature, not absolute idiocy, but weakness of understanding-not continued insanity, but delusions and irrationality on particular subjects. Absolute idiocy, or constant insanity, would have carried with them their own security and protection; for, in either case, the forms preceding, and the ceremony itself, could not have been gone through without exposure and detection; but here a mixture of both, by no means uncommon, is set up-considerable natural weakness, growing at length, from being left to itself and uncontrolled, into practices so irrational and unnatural as in some instances to be bordering upon idiocy, and in others to be attended with actual delusion-a perversion of mind-a deranged imagination—a fancy and belief of the existence of things which no rational being, no person possessed of the powers of reason and judgment, could possibly believe to exist."

"It appeared, that, in February, 1814, Lord Portsmouth was brought to London by his medical attendant, and delivered up to his trustees, Hanson being one, and then in town-that day week he was married to the daughter of Mr. Hanson. The confidential solicitor of the family, one of the trustees, who had a great ascendancy over himwho owed him every possible protection-married him to one of his daughters! It is unnecessary to state the

(a) 2 Hagg. Cons. Rep. 423.

jealousy with which the law looks at all transactions between parties standing in those relations to each other."

acter.

"The whole transaction will bear but one interpretation: every part of it is the act of the Hansons! Lord Portsmouth is a mere instrument in their hands, to go through the necessary forms; the settlement is begun in forty-eight hours after Lord Portsmouth's arrival in London! The contents of that settlement-the mode in which it is prepared— the concealment of the whole from the friends and the other trustees, who were in town, some in the same house with Lord Portsmouth-all these particulars bear the same charThe necessary forms are gone through, but, in support of these mere forms, not a witness is produced to shew that this nobleman was conducting himself as a man understanding what he was doing, or capable of judging, or acting as a free and intelligent agent: nothing tending to shew that he was a person of sound mind-nothing in his conduct inconsistent with unsoundness of mind; every circumstance conspires to prove that he was the mere puppet of the Hanson family, and that the celebration of this marriage was brought about by a conspiracy among them, to circumvent Lord Portsmouth, over whom they, and particularly the father, had a complete ascendancy and control, so as to destroy all free agency and rational consent on his lordship's part to this marriage. A marriage so had, wants the essential ingredient to render the contract valid― the consent of a free and rational agent. The marriage. itself, and the circumstances immediately connected with it, do not tend to establish restored sanity; it was neither 'a rational act,' nor was it rationally done'-the whole 'sounds to folly,' and negatives sanity of mind. The Hansons, in the mode of planning and conducting the transaction, shew that they treated and considered Lord Portsmouth as a person of unsound mind; and Lord Portsmouth in submitting, acquiescing, and not resisting, confirms his own incompetency. Even if no actual unsoundness of mind, strictly so called—if no insane derangement had existed—if only weakness of mind-and all admit he was weak-yet, considering the passiveness and timidity of his character

on the one hand, the influence and relation of Hanson, his trustee, on the other, and the clandestinity and other marks of fraud which accompanied the whole transaction, the learned Judge was by no means prepared to say, that, without actual derangement in the strict sense, the marriage would not be invalid; but, in his judgment, Lord Portsmouth was of unsound mind, as well as circumvented by fraud." Upon the whole, the Court pronounced the marriage in fact solemnized between the Earl of Portsmouth and Miss Hanson, to be in law null and void, he being at that time not of sound mind sufficient to enter into such a contract; and that the celebration of such marriage was effected by fraud and circumvention: and, on the latter ground, the Court granted the prayer for costs (y).

Where a suit was brought by the father to annul the marriage of a party of competent age, without setting up any special interest, but averring the insanity of the son at the time; and the only question was, whether the person before the Court was the proper person to plead it-the Court held that the father could not sustain the suit, no commission of lunacy having been obtained (≈).

Where a lunatic, after having been so found by inquisition, married, and his committee presented a petition for the purpose of taking the opinion of the Court, whether any steps should be adopted in the Ecclesiastical Court to have the marriage declared void-Lord Chancellor Eldon referred it to the Master to see what proceedings ought to be taken, who having stated in his report that the marriage was void by operation of the statute alone, and that no proceedings were necessary to be had in the Ecclesiastical Court to have the marriage declared void, such report was firmed by the Lord Chancellor on the petition of the committee (a).

The rights of property arising out of a marriage contract, must be understood of one which is contracted by persons

(y) The Countess of Portsmouth v. The Earl of Portsmouth, 1 Haggard's Eccl. Rep. 355.

(*) 1 Hagg. Cons. R. 414, note. (a) Ex parte Turing, 1 Ves. & Bea. 140, and note. See ante, p. 447.

of competent understandings; and, therefore, the right of curtesy or dower will not attach where a marriage is void on account of the lunacy of one of the parties, although, if there was a valid marriage, the subsequent insanity of either of them will not prevent such interests taking effect as in other cases (b).

A marriage has been declared void in the Ecclesiastical Court, on the ground of one of the parties being incompetent from mental incapacity to contract, even after the death of such person; and administration of the effects of a wife was refused to the husband, on the ground that his marriage had been illegally contracted (c).

The committee of a lunatic may institute proceedings in the Ecclesiastical Court, without obtaining the sanction of the Lord Chancellor, against the wife of the lunatic for adultery (d). In a further proceeding in the case last cited, Lord Stowell said, "that he was not aware of any case which had occurred precisely similar; it must therefore be decided, not on express authority, but on principle, or rules of analogy drawn from other authorities, which are clear and undisputed. The question resolves itself into two points:first, whether a lunatic is put out of the protection of the law; and, secondly, if he is not, whether there is any other mode in which redress can be obtained. On the first, there can be no doubt; and it never can be asserted that the wives of lunatics should be universally released from the duties of their marriage vow. It would be an imputation on the law of this country, to suppose that it had not provided some remedy against such a mischief. Then, in what way is this protection to be afforded? It must be in the same way as in other cases, by the committee. The lunatic cannot personally institute the suit, and, therefore, he must act by his ordinary guardian. It is true, as has been observed, that, in complicated matters, the committee ordinarily applies to the Lord Chancellor for authority to sue; but the learned Judge did not know that it would

(b) Co. Litt. 30. b., and note by Harg. Bac. Abr. tit. Idiots and Lun. (D).

(c) Browning v. Reane, 2 Phil. 69. See ante, p. 338.

(d) Parnell v. Parnell, 2 Phill. 158.

be advisable to promote a suit before the Lord Chancellor, preparatory to proceedings of this nature. The Ecclesiastical Court has no authority over the committee, to require that he should make an application to it. It is bound to receive his plea when brought, as matter of right. On these grounds, and upon principle, the powers of the committee must be upheld, to protect the lunatic from the greatest of all possible injuries (e).”

To marry, or procure the marriage of an idiot by contrivance, is a criminal offence, for which an information may be filed by the Attorney-General (ƒ). Also, to marry a non compos, the custody of whom has been granted by the Great Seal, is a contempt of the Court of Chancery, for which the offender may be committed (g). The Lord Chancellor has sometimes ordered the property of a non compos who has married, to be secured (h).

(e) Parnell v. Parnell, 2 Hagg. Chanc. 203; S. C. 1 Eq. Cas. Abr. Cons. R. 170, 171. 278.

(f) Smart v. Taylor, 9 Mod. 98;

S. C. 2 Eq. Cas. Abr. 584.

(h) Packer v. Wyndham, Prec. in Chanc. 412; 2 Eq. Cas. Abr. 583;

(g) Mrs. Ashe's case, Prec. in Gilb. Ch. 276.