The Hawaiian gazette., 1894-08-03

\. bhINcON' ESQ', bAooE-N 4lNN.J
The question reserved by the Cir
cult Court for our opinion is thai
raised by the demurrer, namely
whether under our statutes person
non cOmpOS may, by his guardian,
maintain libel for divorce.
In the absence of statute, the general
opinion in both England and Americs
is that a suit for either nullity or sepa-
ration may be maintained either by OF
against an insane person, but that in
England a suit for divorce cannot be
maintained either by or against an
insane person, while in those of the
United States in which the question
has arisen a suit for divorce may
be maintained against but not by
an insane person. . Bishop, NJ.
& D., Secs 304 a-307, and cases
there cited. But now in England,
Massachusetts and Rhode Island,
statutes have been passed which
the Counts have construed as author
iZing suits for divorce either by or
against insane persons. 10.
The cases contain lengthy discus
sions of the policy of or reasons for,
the distinction between an insane
plaintiff and an insane defendant.
The argument OF the American Courts
seems TO be that in the case of an in
sane defendant, the two conditions
consent of the injured party is neces-
said to be essential to a divorce may be
present, namely, the fault of one party
and the consent of the other, while
in the case of an insane plaintiff the
sarily wanting, for the reason that an
insane person, having no mind, can
not consent. 1t is argued further that
marriage is a personal status, the
making or unmaking of which is a
personal matter, depending on the
choice of the heart, rather than of the
head "more on feelings and convic-
lions than on considerations apprecia-
bly by Others and that therefore sit
is in the option of the injured party"
alone to say whether be will forgive
the offence or take a divorce for it,"
This reasoning might at first thought
seem to indicate that marriage is
solely a personal matter, in which
the parties alone are interested,
and that there is something in the
nature of things to prevent its dssOlu-
ton without the active consent Of the
injured party. And yet it is perhaps
universally conceded that the state
may, either from considerations of
public policy or from considerations of
what i deemed to be for the best in
terest of the parties Immediately con-
cerned, alter the conditions upon
which the marriage status may be
created or dissolved; and in pursuance
of such power, as we have seen, stat
Utes have been passed authorizing di-
vorce suits by insane persons.
Tie distinction taken by the Amer
can Courts is good so far as it goes.
There are reasons, it is true, that ap-
ply to the case of an insane plaintiff
which do bot apply to the case of an
insane defendant, for the consent of
the plaintiff should, if possible, be re-
quired, while the fault alone of
the defendant is sufficient; yet is
not this position inconsistent, so far
as the question of consent is con-
cerned. with the view that suits for
separation may be maintained on be-
half of an insane person, for is it not
as much a matter of personal option
in the one case as in the other for the
injured party to say whether he will
forgive, or take legal proceedings? 1t
insane person might, upon a possible
return Of reason, forgive his spouse
and take her back; and that in some
instances the protection, maintenance
or other need of the insane person
might be provided for by a decree of
separation, without the necessity of 60
ing to the extent of granting a divorce.
But, so far as the question of status or
= II -
reason in logic why the guardian, I'M
der the control of the Court, may not
exercise the option of forgiveness or
suit in the case of divorce than
in the case of separation, and there
may be cases in which separation
would not be sufficient to do JUS
tice to the injured party. The
question for the Legislature is one
of policy entirely. 1t must be adj
mitted that there are weighty reasons
for and against either policy. The Eng
lish Courts in the early cases considerei
that on the whole the objections out
weighed the advantages, and so, as
we have seen, did not allow such suits
either by or against insane persons
but when the Divorce Act was passed,
giving them an opportunity to recon-
slider the question, they came to the
conclusion that, on the whole it was
better policy to allow such suits either
by or against such persons.
Mordaunt VS.. Mordaunt, L. r. . p
and D. 1903; Baker VS.. Baker, L. r.
5 p. D., 142; p. D., u.
This conclusion commends itself to
our reason. While to allow divorce
proceedings by guardian on behalf
of his insane ward might possibly in
some instances, result in the dissOlu-
ton of status, which the ward, if of
sound mind, might prefer to continue,
yet to allow such proceedings under
no circumstances would operate as a
license for the other spouse to "cOm-
NIT adultery, cruelty, desertion, and
every other marital offense, with i'm
punity." Nor can it even be said |
that to allow such proceedings, is
in all instances to take from the ward |
his right of choice, for if the Offense of |
his spouse was committed without his |
knowledge prior to his insanity, or at |
any time during his insanity, the