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CHAPTER XXXI.

BIGAMY AND POLYGAMY.

I. EFFECT OF PLACE OF FIRST MAR-, IX. INTERMEDIATE DIVORCE.
RIAGE.

Valid divorce from first marriage
Ordinarily marriage valid by lex

is a defence, $ 1695.
loci contractus is valid every Honest belief in a divorce no de-
where, § 1683.

fence, g 1695 a.
But not so as to converse, § 1684. X. EVIDENCE.
II. EFFECT OF TIME AND PLACE OF 1. Proof of Marriage.
SECOND MARRIAGE.

In bigamy prior marriage has to
Offence indictable in place of of-

be proved beyond reasonable fence, $ 1685.

doubt, g 1696. III. THIRD MARRIAGE DURING SECOND

Consensual marriage valid, § BIGAMOUS MARRIAGE.

1697. Third marriage after second void

Lex fori determines as to requimarriage may not be bigamy, s

sites, $ 1698. 1686.

Internationally marriage may IV. ACCESSARIES.

be proved by parol, § 1699. If a misdemeanor, all concerned

Where prior consensual marare principals, $ 1687.

riage is set up, it should not be Hence person marrying bigamous

rested on a mere confession, ş person is principal, 1688.

1700. V. WHEN SECOND MARRIAGE WAS

Of foreign marriages registry is VOID OR VOIDABLE.

best evidence, $ 1701. No defence that bigamous mar

Prior invalid marriages may riage was independently voida.

be ratified, $ 1702. ble, $ 1689.

2. Proof of Death or Divorce of VI. WHERE FIRST MARRIAGE WAS

First Husband or Wife, $ 1703. VOIDABLE.

Death, if occurring within seven No defence that first marriage was

years, must be substantively voidable, § 1690.

proved, § 1704. VII. PARTIES BEYOND SEAS, OR ABSENT.

Divorce to be proved by record, Exception of beyond seas does not

$ 1704 a. apply to cases where offender

Honest belief in death or divorce knows of continuous life of ab

within that time no defence, s sentee, $ 1691.

1705. Exception as to other absence only

Presumption of continuance of applies to cases where there is no

life depends on circumstances, knowledge of such life, $ 1692.

$ 1706. Exception does not apply to party

After seven years, burden is on deserting, $ 1693.

prosecution to prove knowl. VIII. CONSUMMATION NOT NECESSARY,

edge by defendant, $ 1708. § 1694.

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3. Witnesses.

Variances as to second marriage When first marriage is proved,

are fatal, $ 1712. second wife is a witness, $ 1709.

Exceptions in statute need not Other witnesses admissible to

be negatived, 1713. prove marriage, $ 1710.

First marriage must be averred, XI. INDICTMENT.

$ 1714. Second marriage must appear to XII. RELIGIOUS PRIVILEGE NO DEFENCE. be unlawful, § 1711.

No defence that polygamy was a

religious privilege, S 1715.

$ 1682. Bigamy is committed by a party who, when already legally married to one person, marries another person. At common

The following is from Steph. Dig. “(ii.) To any person marrying a C. L. art. 257:

second time, whose husband or wife ." Every one commits the felony called has been continually absent from such bigamy, and is liable, upon conviction person for seven years then last past, thereof, to a maximum punishment of and has not been known by such perseven years' penal servitude, who, be- son to be living within that time. ing married, marries any other person “The burden of proving such knowl. during the life of his or her wife or edge is upon the prosecutor when the husband.

fact that the parties have been contin“The expression being married' ually absent for seven years has been means being legally married. The proved ;' nor, word 'marries' means goes through a “(iii.) To any person who, at the form of marriage which the laws of the time of such second marriage, was diplace where such form is used recog- vorced from the bond of the first marnizes as binding, whether the parties riage, nor to any person whose first are by that law competent to contract marriage has been declared void by marriage or not, and although by their the sentence of any court of competent fraud the form employed may, apart jurisdiction. from the bigamy, have been insuffi- “A divorce a vinculo matrimonii, procient to constitute a binding marriage. nounced by a foreign court between

“ Provided, that this article does not persons who have contracted marriage extend,

in England, and who continue to be “(i.) 6 To a second marriage con- domiciled in England, on grounds tracted elsewhere than in England and which would not justify such a divorce Ireland by any other than a subject of in England, is not a divorce within the her Majesty ; nor,

meaning of this clause. 1 24 & 25 Vict. c. 100, s. 51, as explained by apply to a bigamous marriage in any foreign the authorities referred to in the Illustra country. tions.

7. Lagerwen, L. R. 1 C.C. R. 1. . See Illustration (2).

8 R. o. Lolley, R. & R. 237. The decision 3 Burt v. Burt, 29 L. J. (Probate), 133. does not refer to domicil, but this qdalifica4 See Illustratien (3).

tion appears, from later casss, to be required. 5 See Illustration (4).

All the cases on this subject are collected in 6 The act does extend to a subject of her 2 Sm. L. C. 839-45. The question as to the Majesty who has contracted a second marriage exact time at which a person can be said to be in Scotland during the lifetime of a wife pre- divorced may arise. In 1 Hale, P. C. 694, a viously married in Scotland. R. 0. Topping, case is mentioned in which a person inarrying Dears. 647. The same rule would, of course, after sentence of divorce, but pending an ap

law bigamy is a misdemeanor. It was made a felony by statute 1 Jac. I. ch. 11; but this statute is not, as to the grade of the offence,

Illustrations,

“ Every one is a principal in the (1) A. marries B., a person within second degree in the crime of bigamy the prohibited degrees of affinity, and, who, being unmarried, knowingly enduring B.'s lifetime, marries C. A. ters into a marriage which renders has not committed bigamy.'

the other party thereto guilty of (2) A. marries B., and, during bigamy."6 B.'s lifetime, goes through a form of

This question is discussed in future marriage with C., a person within the sections of the text. Infra, $$ 1687-8. prohibited degrees of affinity. A. has In Reynolds v. U. S., 98 U, S., 145, committed bigamy.'

Waite, C. J., said ;(3) A. marries B. in Ireland, and,

“Polygamy has always been odious during B.'s lifetime, goes through a

among the northern and western naform of marriage with C. in Ireland, tions of Europe, and, until the estabwhich is invalid because both A. and lishment of the Mormon church, almost C. are Protestants, and the marriage is exclusively a feature of the life of performed by a Roman Catholic priest. Asiatic and African people. At comA. commits bigamy.3

mon law the second marriage was al“(4) A., married to B., marries C., ways void (2 Kent's Com. 79), and from in B.'s lifetime, by banns. B. (the the earliest history of England polywoman) being married, for purposes of gamy has been treated as an offence concealment, under a false name. A. against society. After the establishhas committed bigamy."

ment of the ecclesiastical courts, and (5) A., married to B., marries C.

until the time of James I., it was punin B.'s lifetime, in the colony of Vic- ished through the instrumentality of toria. In order to show that A. com

those tribunals, not merely because mitted bigamy, it must be proved that ecclesiastical rights had been violated, the form by which he was married but because, upon the separation of was one recognized as a regular form the ecclesiastical courts from the civil, of marriage by the law in force in Vic- the ecclesistical were supposed to be

the most appropriate for the trial of In art. 258, Steph. Dig. C. L., the matrimonial causes and offences against law is thus further stated :

the rights of marriage, just as they

toria."8

peal, was held to be within a similar proviso ? R. v. Brawn, 1 C. & K. 144; R v. Allen, in 1 Ja c. 11 In R. v Hale, tried at the Leeds L. R. 1 C. C. R. 367. Summer Assizes, 1875, a woman pleaded guilty 3 R. v. Allen, ub. sup pp 373–5, disapprov. to a charge of bigamy before Lindley, J., she ing of R v. Fanning, 17 Ir. C. L 289 baving married after the decree nisi was pro. 4 R. v. Parson, 5 C & P. 412 In Rv Rea, nounced, but before it became absolute, which the prisoner, at the bigamous marriage (before it afterwards did. The judge's attention, the registrar), gave a false Christian name, bowever, was not directed to the passage in and was held to be rightly convicted. Hale.

6 Burt v Burt, 29 L. J. (Probate), 133. IR. 0. Chadwick, 11 Q B 205

6 R v. Brawn, 1C & K 144.

i State v. Darrah, 1 Houst. C. C. 112.

regarded as having been brought to this country as part of the common law.?

I. EFFECT OF PLACE OF FIRST MARRIAGE.

§ 1683. Ordinarily a foreign marriage, valid by the place where Ordinarily

it was solemnized, is regarded in bigamy as valid by the marriage lex delicti commissi, which is usually the law of the valid by lex loci place where the bigamous second marriage is prosecuted. contractus

But to this rule there are some marked exceptions. The is valid every first is where the parties to such foreign first marriage where.

were, by the law of the place of prosecution, incapable of marrying. In such case the first marriage will be adjudged void by the judex fori, and the second marriage will be ruled not to be bigamous. The second is where the first marriage was not solemnized by forms which the law of the place of the second marriage holds to belong to the essence of marriage; when a similar result will be reached.?

$ 1684. Yet the converse of the last proposition is by no means universally true. A marriage which the law of the place of solem

were for testamentary causes and the conscience,' the legislature of that settlement of the estates of deeeased State substantially enacted the statute persons.

of James I., death penalty included, “By the statute of 1 James I. chap- because, as recited in the preamble, ter 11, the offence, if committed in "it hath been doubted whether bigamy England or Wales, was made punish- or polygamy be punishable by the laws able in the civil courts, and the penalty of this Commonwealth.' 12 Hening's was death. As this statute was limited Stat. 691. From that day to this we in its operation to England and Wales, think it may safely be said there never it was at a very early period reënacted, has been a time in any State of the generally with some modifications, in Union when polygamy has not been all the colonies. In connection with an offence against society, cognizable the case we are now considering, it is a by the civil courts and punishable significant fact that, on the 8th of De- with more or less severity. In the cember, 1788, after the passage of the face of all this evidence it is impos. act establishing religious freedom, and sible to believe that the constitutional after the convention of Virginia had guaranty of religious freedom was in. recommended as an amendment to the tended to prohibit legislation in respect Constitution of the United States the to this most important feature of social declaration in a bill of rights that all life.” men have an equal, natural, and un 1 Ibid. ; Barber v. State, 50 Md. 161. alienable right to the free exercise of · Infra, § 1698; Whart. Confi. of L. religion, according to the dictates of $$ 160-5. See supra, § 271.

as to con

nization may hold, on grounds of purely local and arbi- But not so trary policy, to be invalid, may nevertheless be adjudged verse. valid by the courts of the party's domicil.”

II. EFFECT OF TIME AND PLACE OF SECOND MARRIAGE.

Offence in

$ 1685. By the statute of James, the trial could be had only in the place in which the second marriage was solemnized, for the old common law reason that the locus delicti com- dictable in missi has sole jurisdiction of the offence. A man, offence. therefore, could go abroad and marry a second wife, his first still living in England, and bring with impunity the second wife to the very place where the first resided. To meet this was passed the 9 Geo. IV., c. 31, s. 22, which provides that in case of a bigamous second marriage, the offence may be dealt with, where the offender is a British subject, “ in the county where the offender shall be apprehended or be in custody, as if the offence had been actually committed in that county.” In some of the United States a similar statute has been enacted ; in others a “continuance” in a bigamous state is made indictable, no matter where the second marriage was solemnized. But when the act of bigamous marriage is made the subject of indictment, then at common law the place of such act has exclusive jurisdiction.

I Whart Confi. of L. $$ 169-181 ; In New York, trial may be in place though see Weinberg v. State, 25 of bigamous marriage; Collins v. Wis. 370 ; Bird v. Com., 21 Grat. 800; People, 4 Thomp. & C. 77 ; 1 Hun, and fully, infra, $ 1698; supra, § 271. 610; or in county of arrest. Ah King

? 1 Hale, 693 ; 1 East P. C. 466; see v. People, 5 Hun, 297 ; see People 2. People v. Mosher, 2 Parker C. R. 195; Mosher, 2 Parker, C. R. 195. Finney v. State, 3 Head, 544.

In Arkansas, it is held that the leg3 For a conviction under this stat- islature has no constitutional power to ute, see R. v. Topping, 7 Cox C., C. make the offence triable elsewhere 103 ; Dears. 647. Under the statute than at the place of the bigamous this “ apprehending" must be averred marriage. Walls v. State, 32 Ark. 565. in the indictment. R. v. Fraser, 1 In Alabama the venue must be the Moody, 407; R. v. Whiley, Ibid. 186; place of bigamous marriage. Baggs State v. Fitzgerald, 75 Mo. 571.

v. State, 55 Ala. 108; unless * State v. Palmer, 18 Vt. 570 ; Com. tinuous'' bigamy is made indictable. v. Bradley, 2 Cush. 553; Finney v. Brewer v. State, 59 Ala. 101. State, 3 Head, 544; State 1. Johnson, This topic is discussed supra, $$ 284 12 Minn. 476. See State v, Sloan, 55 Iowa, 217; State v. Hughes, 58 Ibid. 6 State v. Burnett, 83 N. C. 615 ; 165; Scoggins v. State, 32 Ark. 205. Brewer v. State, 59 Ala. 101 ; State v.

con

et seq.

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