The Sun.
London, England, 1870-06-03 00:00:00

THE MORDAUNT APPEAL CASE.

[The following is a more extended report than that
which appeared in our afternoon edition of yesterday.]
On Thursday the Lord Chief Baron, Lord Penzance,
and Mr. Justice Keating—the judges who tried the appeal
case " Mordaunt v. Mordaunt"—delivered their judg-
ments. The question was whether the insanity of
Lady Mordaunt is a permanent bar to the progress of the
divorce suit which has been commenced by the husband,
Sir Charles Mordaunt.

Mr. Justice Keating first read his judgment, as follows :
This is an appeal against an order made by the Judge
Ordinary on the Bth of March, 1870,. directing " that no
further proceedings be taken in this suit until Lady
Mordaunt recovers her mental capacity, and that the
petitioner be at liberty to apply to the court whenever he
is able, to affirm the respondent's recovery." It appears that
the petitioner, Sir Charles Mordaunt, on the 30th April
1869 filed his petition in this court for a divorce, on the
ground of the alleged adultery of the respondent with the
co-respondent, and that the petition and citation were
duly served upon the respondent. Citations were also
served upon the co-respondents, who appeared and filed
their answers, denying the alleged adultery. An appli-
cation was afterwards, on the 9th May, 1869, made on
behalf of the respondent to stay the proceedings, on the
ground of her mental incapacity, and to extend the time
for entering an appearance, and filing an answer on her
behalf. The judge ordinary therefore, on affidavits, ordered
that the respondent's father should appear as guardian
ad letem, and allege the insanity. The guardian accord-
ingly *appeared, and pleaded the insanity of the respondent
formally. The petitioner took issue on the plea, and that
issue was tried before a special jury, who found that the
respondent was at the date of the service of the citation
in a state of mental derangement, which rendered her wholly
unfit and unable to answer the petition or duly instruct
an attorney for her defence, and that she had ever since
remained, and then still remained so, unfit ani. unable.
The Judge Ordinary afterwards, and upon the under-
standing of both parties that the question should be sub-
mitted to the full court, made the order appealed from,
and the question is whether that order should be rescinded
or varied, or in other words, whether proceedings
upon a charge of adultery with a view to a divorce
can or ought to be continued against a respondent who at
the commencement of the suit was, and still is, wholly
unable and unfit, through mental incapacity, to defend
herself so long as that mental incapacity continues ; and
I am of opinion that the order made ought not to be
rescinded or varied. If this were a criminal proceeding,
or a proceeding in pcenam, properly so called, of course,
there could be no doubt upon the subject. Mental inca-
pacity not only excuses the commission of what otherwise
would be crime, but is a bar at every stage to any pro-
ceeding on the part of the Crown in respect of it. It
excuses the act charged as crime, because the essence
of crime is the mens rea, which could not exist
in such a case, and it is a bar to criminal proceedings, in
consequence of want of capacity on the part of the ac-
cused to understand the change, or make a defence to it.
Now, it is true, that by the law of England adultery
is not the subject of indictment, and therefore cannot,
with strict technical accuracy, be termed a crime; yet the
charge, both in its nature and consequences, much
resembles a criminal charge. Indeed, Mr. Emlym,
whose learning and ability are vouched by
Mr. Hargrave in his preface to the second
edition of " State Trials," expresses an opinion that
it was indictable by our laws, and cites authorities for his
opinion. By the law of France it is punishable as a
-criminal offence, and we have the authority of Lord Holt
in the case referred to (Galyard and Rigault) that it is
considered as such in the spiritual courts. In divorce pro-
ceedings in the House of Lord also it appears to be so treated.
The nature of the offence charged seems to me to distin-
guish the proceedings in divorce essentially from those
merely of a civil character, in which the object is the reco-
very of debt or damages for an injury to person or property.
In proceedings for a divorce, although the consequences
to the party charged, and found guilty are certainly not
the same as in misdemeanour, yet in the case of a wife
respondent they are so incalculably more terrible than
fine and imprisonment, that (as argued by Mr. Archibald)
it seems contrary to all sense of natural justice that
a woman should be convicted of adultery involving
a change in her personal status that by a judgment in rem
without the fullest opportunity of making her defence.
By analogy, therefore, to those principles which have
been established in the administration of criminal
justice in this country, it seems to me that
the proceeding for a divorce from cause of adultery,
although not strictly a criminal proceeding, is a least a
proceeding quasi in poenam, and ought to afford similar
protection to parties accused. But by far the
most cogent reasons for supporting the present order
are in my opinion to be found in the provisions of the
statute itself upon which the jurisdiction of the court is
founded, and in order to appreciate their effect it is neces-
eary to bear in mind that before the passing of the statute
20 and 21 Vic. cap. 83, by the law of Eng-
land marriage, when lawfully contracted, was an
indissoluble contract. Unlike all other civil contracts it
could neither be put an end to by mutual consent nor by
act or operation of law. The husband whose wife had
proved unfaithful might, indeed, go into the spiritual
court, and, upon proof of adultery, without fault on his
part, obtain a divorce a mensci et thoro, and also
bring an action for damages against the adulterer ; but the
marriage contract remained undissolved, nor could the
parties during their joint lives marry again, unless by
special interference of the Legislature. In that state of
things the statute 20th and 21st Victoria, c. 85, was
Passed, which for the first time gave to a court of law the
Power to dissolve a lawful marriage, but only
sub mock), and subject to certain conditions.
Mere the learned judge recapitulated some of the
Principal sections of the Act. That Act and another
more recent one enables any person to present a petition
for dissolution of marriage, but the court must be satisfied
that there is no collusion between the parties, that the
petitioner has not condoned the adultery, that the peti-
tioner has not himself or herself committed adultery, that
there be no unreasonable delay in presenting the petition,
and that the petitioner has not separated from the other
Party, or deserted him or her without reasonable
cause, &c. Now, continued the judge, it appears,
to me to be impossible to apply these provisions of the
statute in the manner contemplated by the Legislature
in a case where one of the parties is insane. The court
cannot pronounce a decree of divorce unless
satisfied after inquiry which it is bound to
make that none of the statutable impediments exist. Yet
if the existence of those impediments, or of most of them is
Peculiarly and often exclusively within the knowledge of
the parties themselves, how, then, can it be supposed
that the Legislature contemplated such a suit pro-
ceeding- during the insanity of one of the parties to it?
Take the case of a petitioner. Is a petition for a divorce
to be presented or prosecuted on behalf of a lunatic with
a view to alter his or her personal status, without his or
her consent ? Who can say that such a proceeding, if it
could be taken, would necessarily be for his or her
benefit, or would be approved of upon recovery ?
proceeding for a judicial separation stands upon a
totally different ground. It is temporary in its effects, and
always contemplates the possibility of reunion, and there
certainly is authority for such a decree being made
in the petition of the committal of a lunatic
" Woodgate v. Taylor." The decision also seems
to have been present to the minds of the
Lords Justices in making their order for proceedings.
But whatever may have been the case with reference to a
Petitioner, yet in the case of a respondent, although pro-
ceedings for judicial separation are not fenced round with
all the statutable conditions applicable to cases of divorce
there is no instance to be found in which a decree for even
a judicial separation has been made against a lunatic re-
sPondent ; and there seems to be an additional objection
to making such a decree in the fact, by a recent statute he
or she is made a competent witness, and has the right
to give evidence in disproof of the charge of adultery. It
is not difficult to suppose many cases where suspicion of
the gravest kind, resulting from conversations or letters, or
entries, might be dispelled by a few words of explanation,
Which could only be given by the absent lunatic, or where
a totally different complexion might be put upon facts ap-
parently of a highly criminatinot character by the evidence
of the party charged. I do not wish to attach undue im-
Pertance to the fact that charge or counter-charge is
either by statute or rule to be made upon
the oaths of the parties respectively, as perhaps
the Court could in furtherance of justice relax the strin-
gency of requirements ; but such a provision in the statute
In the case of a petition tends at least to shew the Legis-
lature contemplated the parties being in a state of sanity.
Neither does it seem to me that the argument
urged at the bar that as the court could pronounce a
decree of divorce against a party not served with the
citation, so it might do in the case of a lunatic, avails
Pilch to the case of the apellant. When such a' decree
18 made the court is satisfied either that the
['salty has gone away to avoid service or may
have had notice, by means of advertisements or other-
wise directed to be given, whereas in the case of an insane
Person the court knows that the party had not and
sib cutuld not have had notice, and cannot pos-
-8 ,-,„tlY d
sjueefend himself or herself against the charge.
stion arose before the late Sir Cresswell Cress-
well in the case of Bawden v. Bawden, on a petition for
a divorce under the present Act, and that eminent judge,
after taking time to consider, gave judgment that
„slie proceedings should be stayed. In my judg-
ment, that case was rightly decided. The order
Zi4 made stays the proceedings until the peti-
e°Tler, who has the custody of the respondent, can assert
r recovery. Meanwhile lie is in the same position as he
~euld have been in before the passing of the statute.
upon
these of this ease are not before us, but should it upon
(,nese facts, in consequence of any peculiar hardship, be
"ell-led one fit for legislation, of course there is nothing to
prevent it. In my opinion, the order of the Judge-
yirBdlninisasreyeas right, and the appeal against it ought to be
Lord Penzance, the Judge Ordinary, then proceeded to
deliver his judgment. The law di not permit a
t?arriage to be dissolved against a huand
;handuless
e had been guilty of adultery and cuelty
bus wife committed adultery, and it was proved that the
and had deserted his wife, or had not proceeded
with his suit within a reasonable tithe, then the court
did not ordinarily interfere between the parties. Mar-
riage not an ordinary contract, and there was no
analogy between it and an ordinary point of law. No
his natic petitioner could take proceedings to dissolve
marriage, and why, then, should a sane one proceed
against an insane wife the case would, if such were per-
ehrt d' only be a one-sided interpretation, and a wife in
hen condition could not explain away maters, which
'e could do if she was in a proper state oft mind. His

Lordship concluded by expressing his opinion that the
order originally made should be affirmed, but if it was the
intention of the petitioner to appeal against this decision
in the House of Lords, then he would hear any argument
as to whether the order might be varied.
The Lord Chief Baron held that the order of the court
made in this case ought to be rescinded or varied. If this
were not so, grievous wrong, for which there was no
remedy, might be inflicted on a husband who
was tied to an adulterous wife. The interests
of a lunatic respondent, in his view would be
sufficiently secured by the appointment of a guardian
ad litela, according to the ordinary practice of the courts.
In the case of Hancock v. Hancock, a wife had brought
a suit against her husband for nullity of marriage on the
ground of her insanity at the time of its being contracted,
and in this case the interests of the parties were as deeply
involved as they were in that now under consideration.
The true question was whether the court had any
power to stop the suit, once commenced, except upon
final judgment on all the matters laid before it; and he
held that there was'no such power. In ordinary cases the
suit was not stopped, .but set aside upon some overruling
consideration, and to stop a suit in the way proposed ap-
peared to him to be an usurpation of powers beyond the
competence of the court. The statute gave no such powers to
stay a suit by reason of insanity in any of the parties, but, on
the contrary, directed the court to pronounce a decree of
dissolution of marriage when it was satisfied upon the
evidence that the facts alleged had -been proved. His
lordship referred to several of the sections in support
of this view, and explained their provisions at length.
If the making of the order contravened the provisions
of the Act of Parliament, it was unnecessary to
consider the analogies drawn from the practice in criminal
proceedings, but he must still declare his opinion that
that there was really no such analogy between a
criminal proceeding and a suit for divorce. In civil
cases, again, insanity was no defence or bar
to proceeeding in 'an action and there was an
instance in which Lord Eldon issued a commission of
bankruptcy, which partook both of a civil and criminal
nature against an insane person after an act of fraudulent
bankruptcy. That the respondent's status might be affected
was no real objection. In the present case the gravest
charges were brought against two co-respondents, charges
which might be fatal to domestic happinness in the case of a
married co-respondent. Upon what ground was a co-
respondent to be refused his right to insist upon giving
eyidence of the falsity of the charges brought against him?
Again, if the principle of the order was to be adopted
as sound, the case of a lunatic husband who was
made respondent in such an action must be in-
cluded. In such a case charges of adultery might be brought
against a woman which there would be no opportunity
of effectually rebutting if the suit were to be stayed, and
under the imputation of which she might remain during
her lifetime. Upon all these grounds, he was of opinion
that the order could not be sustained.

The majority of the court, as will we seen, were for
upholding the order; the result is that the divorce suit
cannot be proceeded with.

A LETTER FROM THE PRINCE OF WALES.

A French paper publishes a letter purporting to be ad-
dressed by the Prince of Wales to the Duke of Edinburgh
in India. We do not vouch for the authenticity, but
there is nothing in the letter to lead to the suspicion
that it is otherwise than genuine. It is such a letter
as his Royal Highness might very well have written
to his wandering brother, and it gossips gaily about
" Alex " and " Bertibus" (whom we know as Prince
Albert Victor), and " Thyra," the Princess, Alexandra's
youngest sister, about whom and the Duke of Edinburgh
a romance seems to be weaving. Of the much talked-of
Mordaunt case, the Prince writes as follows, (we must
premise that this is a re-translation back from the French
to the English) : _ _

" The Mordaunt affair has occasioned us a good deal of
annoyance as you may suppose, but as I had done nothing
for which I need blush, I thought I ought not to be
gagged. La mere expressed a wish that my name should
not appear in that affair, but Mordaunt would
not agree and I was not sorry after all, because all sorts of
rumours were afloat, which I had a good deal of trouble
to draw from Harris (an equerry of the prince). I told
Gladstone that I wished to be called as witness
when the case was tried ; he consulted the other
Ministers, and went several times to Windsor.
In the end it was settled that we should take the public
into our confidence. It was not very pleasant for me to
appear in a court of law, but after all the thing went off
better than I hoped, for Penzance was cautious as were
the lawyers. I told all the truth, remembering what
Hatherley said to me once, 'Be brief, and go direct to
the point.' Naturally the papers attacked me, and the
Times gave me a lecture. But I am getting used to this
sort of thing, and if it pleases the papers they are welcome.
Alex does not like it, but she cannot suggest any
cure for it. If I hunt or shoot, I am called empty-headed,
and if I exercise the least influence in public affairs, I am
told I have no right to do so yet. I am constantly
reminded of the example of our poor father, as if my posi-
tion were the same as his. I ought not to do this or that.
I ought to do always as he did. I ask myself whether other
people are always thinking of their fathers, long since
dead? I know more than one young man who seems to
have forgotten he ever had one. As for me, though, our
poor father has been dead these nine years, I am
always to be sitting in ashes and honouring
his memory ! Really, it is a little too strong, and I,
as well as Alex, am beginning to get tired of it.
You often say to me that you would like to change places
with me, but you would soon regret it, my good fellow, if
we could get our friends—and our enemies—at West-
minster to sanction the little arrangement. I can assure
you that very often when I am passing in the railway
by the comfortable houses of the bourgeoisie in the suburbs,
and see how happy they look, I think they need not
envy me. Neither need you, because as Thyra says—
' Alfred is too good to be king.' You missed being so
one day, and George hastened to go where you feared
to reign. Poor George !"
Speaking of a possible visit to Ireland, the writer says :
" I would willingly spend a summer or an autumn in
Ireland if it would do any good. If any of the Irish
want to assassinate me, why don't they try to do so in
London, instead of waiting till Igo there ? I don't mean
to say I want to be shot at, far from it ; but now-a-days
there are many things we must put aside. I am
getting somewhat tired of the life I lead here, and should
be glad to make friends in Ireland. lam told the Irish
make the best soldiers in the world. Do they make good
sailors ? What do you say ? Childers sa' s no, and he
ought to be a judge.
I hope you will be back in July, and if we are then in
England we shall reckon on having you at Sandringham.
"The house is nearly finished, and will be really fine.
Alex sends you her love, and Bertibus too. He
is growing somewhat impudent, and I think seriously
in calling the Usher of the Black Rod ; but you may be
sure that if the execution does take place it will be inside
the walls. Joking apart he is a good little fellow,
who grows wonderfully like the other young chickens.
But 1 Imow that you bachelors cannot sympathise
with the father of five bairns. Alex says, Ah,
bachelors are always selfish,' and I agree with her ; but
Thyra will not allow a word to be said against your class.
Naturally you pay little heed to what Thyra says, and
you will excuse the simplicity of a ' gentle creature of
seventeen summers.' She is growing more beautiful than
ever, but she resembles Dagmar more than Alex
Pleasant. voyage to you, and take care of yourself, old
fellow. —Your affectionate brother,

" BERTIE."

MR. ROYD'S MISADVENTURE ON THE
ALPS.

" A Traveller " supplies some further particulars of the
accident by which Mr. Royds, son of the well-known
banker of Rochdale, recently lost his life near Lugano,
as previously reported. Mr. Royds, it appears, arrived
at the Hotel du Parc with his uncle. Mr. Smith, and
others of his family, on the evening of Wednesday, the
25th ult., and set out for Monte Salvatore,accompanied by
a sister and a cousin. The long-continued hot weather had
made the grass very slippery, and the ill-fated young man
missed his footing, fell over the perpendicular precipices
of the mountain, and was killed, probably instan-
taneously. The poor young ladies, heartbroken, spent.
some hours, with utmost peril to themselves, in searching
for his body. When found one of the two remained on the
mountain to keep watch over the corpse, while the other
returned to Lugano for assistance. It was far in the night
before the sorrow-stricken girl reached the hotel, and
about 1 a.m. a large body of men with lanterns, and ac-
companied by a doctor, started for the scene of the acci-
dent. They relieved the solitary guardian of her agonis-
ing midnight watch, and conveyed Mr. Royd's remains to
the hotel. The relatives were stunned with the sudden-
ness of the calamity.

WOLVES IN FRANCE.—It is now nearly two cen-
turies since wolves were exterminated in Great Britain—
the last was killed in Scotland by Sir Evan Cameron in
1680—and it seems curious to an English reader to find a
French country gentleman at an agricultural meeting
taking the trouble to discuss the best means of getting rid
of a beast of prey which in these islands is as little likely
to trouble our farmers as the mastodon or the
megalosaurus. At the Congres Lainier,at Dijon, however, a
week or two ago, the Comte d'Esterno called the
attention of the meeting to the depredations of wolves
in Burgundy, and urged his hearers not only to wage
a war of extermination against the wolves themselves,
but to do all in their power to get rid of the louvetiers—
i. c., the officers who are supposed to organise wolf-hunts,
&c., and . who are named by the Government
in all departments where wolves abound. These
gentlemen the Comte d'Esterno accused of being no more
real enemies of the wolves or anxious for their extermina-
tion than are the masters of hounds for the total destruc-
tion of foxes in England. Not only do they take good
care—in order to insure a run and to avoid all danger of
" chopping" the wolves in their lairs—to sound the horn
(and a sportsman's horn is something like a horn in
France) when approaching a wolf covert, but they
even offer a reward for litters of young wolves and
turn them down in the woods—just like young
cubs. At present a reward of 15f. is given to whoever
destroys a she-wolf, 12f. for a wolf, and (if. for a
wolf-cub. M. d'Esterno considers that these prices are
not high enough, and proposes a reward of 200 f. (28) for
whoever shall kill a full-grown wolf. We do not know
what influence the lieutenants de louveterie, or, as they
are also called, louvetiers (M. Paul de Cassagnac styles
himself a " louvetier de l'Empire ") enjoy in the provinces,
and how they will receive Comte d'Esterno's proposition
to do away with the animal that shews sport to them and
their packs, but we should like to see the man who would
be bold enough to set a reward of £8 on foxes' heads in
Leicestershire.—Pall Me,( Gazette.