living, it is a sufficient statement of the time when the offence was committed to allege that the second marriage was on a certain day, and that the defendant "afterwards did cohabit and continue to cohabit with said S. J., at L., in said county, for a long space of time, to wit, for the space of six months."

A second marriage by a party who, divorced for misconduct, is not entitled to marry again, is not technically bigamy, but may be a special statutory offence.2

It is sufficient to aver that the first wife was alive at the time of the second marriage, without alleging that the first marriage still subsists.

§ 1712. A variance in setting out the second wife's name is fatal; and so is a variance in any material averment as to the as to second second marriage."

Variances

marriage are fatal.

Exceptions in statute

need not be

§ 1713. The exceptions in the statute, when not part of the description of the offence, need not be negatived," nor is it necessary to allege that the defendant knew at the time of his second marriage that his former wife was then living, or that she was not beyond seas, or to deny her continuous absence for seven years prior to the second marriage.

negatived.

First mar

§ 1714. It has been held that the time of the first marriage need not be specially averred, and that it is enough if a prior riage must existing marriage be stated." But if an averment be attempted, and the date be left blank, this is fatal.

be averred.

1 Com. v. Bradley, 2 Cush. 553.

2 Com. v. Richardson, 126 Mass. 34. See Com. v. Lane, 113 Ibid. 458. As to extra-territoriality of divorce restrictions, see Whart. Conf. of L. §

135.

3 Murray v. R., 7 Q. B. 700; State v. Norman, 2 Dev. 222.

R. v. Deeley, 4 C. & P. 579; 1 Mood. C. C. 303. But this is amendable under 14 & 15 Victoria.

6 Murray v. R., 7 Q. B. 700; State v. Abbey, 29 Vt. 60; Stanglein r. State, 17 Ohio St. 453; State v. Williams, 20 Iowa, 98; State v. Johnson, 12 Minn.

476; State v. Loftin, 2 Dev. & Bat. 31. It is otherwise where the exception describes the offence in the enacting clause. Whart. Cr. Pl. & Pr. § 238; Fleming v. People, 27 N. Y. 329; Brutton v. State, 4 Ind. 601.

6 Barber v. State, 50 Md. 161, citing Bode v. State, 7 Gill, 326.

7 Ibid. State v. Bray, 13 Ired. 289; Hutchins v. State, 28 Ind. 34; Watson v. State, 13 Tex. Ap. 76; contra, State v. La Bore, 26 Vt. 765; Davis v. Com., 13 Bush. 318, overruling Com. v. Whaley, 6 Ibid. 266. In New York, see Sauser v. People, 15 N. Y. Sup. Ct. 302.

State v. La Bore, 26 Vt. 765.

Unless the place of marriage is other than that of the place of arrest,' it is not necessary to aver the place of the first marriage.2 In several States it is held unnecessary to set out the name of the first spouse, and there are precedents in the books sustaining this view and if we lean on the analogy of indictments for receiv ing stolen goods, we should hold that the more general statement is enough. If we are forced to state in detail the marital relations. of the parties, it would be necessary to go still further and aver that the first wife or husband of the defendant was capable of consenting to marriage, and was not bound by other matrimonial ties. As, however, the first marriage in all its relations is simply matter of inducement, it is enough, so it is maintained, to state that the defendant, at the time of the second marriage, had a legal husband or wife, as the case may be, without giving name, place, or date. If further specifications be needed, they can be supplied by a bill of particulars. Where, however, the details of the first marriage are given, a variance in the name is fatal."

XII. RELIGIOUS PRIVILEGE NO DEFENCE.

§ 1715. It is no defence that polygamy is a religious privilege, sanctioned by local usage."

Unless bigamy is made a continuous offence, the statute of limitations begins to run at the date of the bigamous marriage. Scroggins v. State, 32 Ark. 205; Gise v. Com., 81 Penn. St. 428. Supra, § 1685.

That "feloniously" is bad at common law, see State v. Darrah, 1 Houst. C. C. 112. As to Maryland, see Barber v. State, 50 Md. 161.

That in this case there must be special averment of the place of marriage and the place of arrest, see R. v. Whiley, 2 Mood. C. C. 186; State v. La Bore, 26 Vt. 765; Davis v. Com., 13 Bush, 318; Sauser v. People, 15 N. Y. Sup. Ct. 302.

2 State v. Bray, ut supra; Hutchins v. State, ut supra; State v. Hughes,58 Iowa,

165; State v. Armington, 25 Minn. 29; People v. Giesca, 61 Cal. 53.

3 State v. Bray, 13 Ired. 239; Hutchins v. State, 28 Ind. 34; Watson v. State, 13 Tex. Ap. 76; see Com. v. Whaley, 6 Bush, 266.

4 Whart. Prec. 985-999.

Hutchins v. State, 28 Ind. 34; Sauser . People, 8 Hun, 302; contra, State v. La Bore, supra. Davis v. Com., 13 Bush, 318; State v. Bray, 13 Ired. 289.

R. v. Gooding, C. & M. 297.

1 U. S. v. Reynolds, 1 Utah T. 226; aff. S. C. U. S., 98 U. S. 145. See supra, §§ 84-8, and Bankus v. State, 4 Ind. 114; State v. Pearce, 2 Blackf. 318; State v. Fore, 1 Ired. 378. As to conscientious convictions as a defence see supra, §§ 88, 336.

Nor" honest belief" or ignorance, VI. ATTEMPTS, SOLICITATIONS.

§ 1726.

Nor illusory marriage of defend

ant, § 1727.

Attempt to commit offence indicta able, § 1738.

I. DEFINITION.

Ecclesiasti

cal law in this respect part of

American common law.

§ 1717. ADULTERY is not cognizable penally by the English common law, its punishment being reserved in England to the ecclesiastical courts. As, however, in those portions. of the United States which accept the English common law, the ecclesiastical law is considered, so far as concerns the definition of the offence, to be in force, we must begin by inquiring what the ecclesiastical law in this respect prescribes. And this inquiry is doubly pertinent, because not only does this por tion of the English ecclesiastical law form part of our own common

law, but the component elements of the ecclesiastical law-the Roman and the canon law-form the old common law of marriage in those parts of the United States which were originally territories of France and Spain.1

By Roman

tery is illicit intercourse with mar

ried woman

§ 1718. Adultery, by the Roman law, was confined to illicit sexual intercourse with a married woman, the woman and her paramour being principals in the offence. A married law, adulman, who had illicit intercourse with an unmarried woman, was not guilty of this specific crime. Two reasons were assigned for this limitation: first, the exclusive rights of the husband, as head of the family, were thus distinctively asserted; secondly, the line of descent from father to child was thus signally guarded. The old law authorized the husband to kill the adulterer caught in the act, and to punish at his discretion, as head of the family, the wife. But the growing license of the empire required more definite legislation; and this was supplied by the Lex Julia de adulteris. By this famous statute the adulteress and her paramour were, on conviction, to be transported to separate islands, so as to be permanently separated: "Dummodo in diversas insulas relegantur." The adulteress was fined half of her Dos, and onethird of her remaining estate; the paramour one-half of his entire estate. And the husband was obliged, on discovery, to prosecute, on pain of being convicted as an accomplice. By an edict of Constantine, an adulteress was to be confined for life in a convent, and the adulterer (i. e., the man married or unmarried who had sexual intercourse with a married woman) was amenable to capital punishment. "Sacrilegos nuptiarum gladio puniri jubemus." For such adultery was an invasion of a fundamental sanction of the Roman law, the absolute supremacy of the husband and father in his own home. It was a species of high treason, and was to be punished as such.

§ 1719. But Christianity, speaking through the canon law, materially modified this feature of Roman jurisprudence. On the one side, the autocratic power of the paterfamilias was greatly reduced; on the other side, the sanctity of

By ecclesiastical law ual viola

it is a sex

1 See Whart. Conf. of L. §§ 171-3, bonorum partem auferri." Paull. Rec.

Supra, § 20.

2 "Adulteris vero viris dimidiam

sent. ii. 26. 14.

8 L. 2. § 2. D. h. t.-Nov. 134, cap. 9. L. 10. Cod. ad leg. Jul. § 1.

tion of the marriage relation.

the marriage vow was greatly enhanced. Marriage, as a solemn tie, binding as long as life lasts, was regarded as the true principium urbis, et quasi seminarium reipublicae. Hence the offence was committed by a sexual violation of the marriage vow, be the offender male or female. The married man having sexual intercourse with a woman other than his wife was as guilty of adultery as a married woman having sexual intercourse with another than her husband. "Christiana religio adulteriam in utroque sexu pari ratione condemnat." Adultery, according to the definition thus established, is sexual connection between a man and a woman, one of whom is lawfully married to a third person; and the offence is the same whether the married person in the adulterous connection is a man or a woman. The Roman law being in this respect superseded, this definition was accepted by every Christian State at the time of the colonization of America; and is no doubt part of the common law brought with them by the colonists of all Christian nationalities. That it corresponds with a sound judicial philosophy is illustrated by the fact that it is incorporated in the codes of the principal continental European States.

In the United States definition varies with local statutes.

§ 1720. Such was the common law brought with them by the American colonists; but while some of the States, as they established their independent jurisprudences, held that the offence, at least when creative of public scandal, was cognizable at common law ;3 others, adhering to colonial precedents, were inclined to hold that the offence is one of which there is no common law jurisdiction. In those States, however, which hold the offence is not cognizable by the common law courts, the subject has been generally covered by legislation. And as in many cases this legislation consists simply in making "adultery" penal, the question has constantly arisen, What is adultery? Unfortunately, in seeking for the international common law on this point, the courts have gone back sometimes to the old Roman

1 Causs. 32. qu. 5. can. 23.
• See Berner, Lehrbuch, 473.

3 N. Hampshire: State v. Wallace, 9 N. H. 515; Connecticut: State v. Avery, 7 Conn. 267; N. Carolina: State v. Cox, N. C. T. R. 165. See, also, State v. Moore, 1 Swan, 136.

Vermont: State v. Cooper, 16 Vt. 551; S. Carolina: State v. Brunson, 2 Bailey, 149; Virginia: Anderson v. Com., 5 Kand. 627; Com. v. Isaacs, Ibid, 634; Com. v. Jones, 2 Grat. 555.