The grounds presented in the bill for a divorce are, insanity at the time of making the marriage contract and the marriage, and confirmed and incurable insanity since.
notwithstanding the eighth section of the act in relation to divorces has conferred a discretionary power upon the courts, if literally understood, yet the court has not so construed it, but confines itself to the common, or canon law and statutory causes. Rev. Stat. 1845, p. 197, Sec. 8 ; Birkby v. Birkby et al., 15 Ill. R. 120; Vignos v. Vignos, id. 186; Harman v. Harman, 16 ibid. 85. The largest extent of that section would be to include the common law causes, which had been omitted in the enumeration in the statute. The list of, causes, thus enlarged or defined, would stand, from the bonds of matrimony at the common law: pre-contract; consanguinity, or relation by blood; affinity, or relation by marriage; and corporeal infirmity, or impotency; and from bed and board only at common law, adultery; and cruelty. There is added, by statute, three additional causes: willful desertion, or absence without reasonable cause for two years ; habitual drunkenness for the space of two years; and conviction of felony, or other infamous crime. Harman v. Harman, ibisupra.
Row, insanity is not among the causes known to the common law, nor is it found among the new causes created and defined by our statute. Unless we assume to exercise a discretion, under the general language of the eighth section, we could hardly find a warrant for sustaining the bill. But we have, in the cases cited, already determined that no such discretion was conferred by the act. The pitiable misfortune of the defendant, who, for want of reason- to guide her, appeared in the court below, and here, by a conservator, of the court’s appointment, would hardly call upon us to make a precedent for casting her off from her only domestic stay and support.
If the contract is void, it could only be so upon grounds common to all contracts, that is, for want of sound mind, capable of making and assenting to a contract. Tet putting the contract upon that ground, and still the proof shows, that before, and at the time of, and for some time after the marriage, the defendant suffered only occasional paroxysms of insanity, and in the intervals was capable of all the duties of a citizen or a wife. The plaintiff would, upon the common principle, be required to show that she entered into this contract and relation during a period of mental incapacity, while under an insane paroxysm. The bill alleges the fact, and the evidence shows the contrary. Indeed, the plaintiff proceeds, according to his allegations and proofs, upon the'ground that he was cheated and defrauded by a concealment, or a want of knowledge of the fact before the marriage. If this1 be true as a matter of law or fact, it would be ground of recovery of damages against those practicing the fraud, rather than a ground of rescission of the marriage contract itself, unless, indeed, the law guarantees to every husband a rational mental standard for the mind of a wife. I know of no such standard for lunacy or insanity. It is true, equity might protect a natural fool from pretenses of entering into such relations, by which others might seek to despoil them of their property. But idiocy is a very different tiring from lunacy and insanity. Tet it maybe that these, while laboring under paroxysms rendering them totally incapable of consenting, would find a like protection from spoliations of the designing. An application on their behalf for protection against the designing and cunning, would present the question in a totally different light. A court of equity would find modes of protection, by appointing a trustee for the property; and this might be done without rescinding the contract. Upon the power to rescind upon this ground, 1 am not now called on to decide, and would not without full examination. But so far as the existence of occasional paroxysms of hereditary insanity before marriage, and unknown to the husband, are presented as a ground of divorce, the question does arise, and, I am of opinion, affords no cause of divorce, nor general ground for rescinding the marriage contract on account of fraud, mistake or inadequacy.
So far from presenting features appealing to our feelings of sympathy or sense of justice, for this kind of relief, it rather wears the aspect of brutal insensibility, to cast off the poor, unfortunate wife and unoffending mother. If there be a period during the marital relation, when, more than at any other, the tenderest care, support and watchfulness of an affectionate husband is demanded, it is while the wife is helpless from sickness or insanity. To make this misfortune, the greatest that can befall us, the ground of the next greatest wrong and injustice, would be truly adding insult and injury to providential misfortune. But where to put the unfeeling husband who would thrust his wife away, because she had become totally incapable of self-care, must be left to the dictates of Christian humanity.
The procreation and nurture of children being one of the objects of marriage, the law has provided that corporeal infirmity, or impotency, before marriage, shall be cause to dissolve it. This provision is made for a sound body, but none for the mind. If there be here incongruity, inconsistency, irrationality, we can only say, we do not make, but interpret and apply the rule.
Deoree affirmed.