cannot be considered an offence to break through restraint when no restraint is imposed. Undoubtedly it is a high phase of Socratic heroism for a man condemned to death or imprisonment to walk back, when let loose, to be executed or imprisoned. But the law does not undertake to establish by indictment Socratic heroism. It would not be good for society that the natural instinct for self-preservation should be made to give way to so romantic a sentiment as is here invoked; and it is a logical contradiction to say that the scaffold and the cell are to be used to proɣe that the scaffold and the cell are of no use. If men voluntarily submit to punishment, then compulsory punishment is a wrong. Besides this, to hold that a prisoner is under bonds as much when he is let loose as well as when he is locked up, is to make it a matter of indifference to the jailer whether or no he keeps vigilant guard, and to destroy the difference between jail and no jail. Following these views, the conclusion has been reached that an unresisted escape is not per se an indictable offence;d and this view has been adopted by all modern German codes. The Anglo-American decisions on this point may be too firmly settled to be now shaken; but considerations such as those which have been mentioned may not be without their use in adjusting the punishment on convictions for unresisted escapes. III. RESCUE. § 2615 f. Rescue is a violent delivery of a prisoner from lawful custody; and is committed by one who would be a principal in the second degree in a prisoner's breach of prison, and who was present actually or constructively assisting by violence in such prison breach. It may also be consummated by wresting a prisoner violently from custody, even though the prisoner should take no part in the violence. e Rescue, like prison breach, is either felony or misdemeanor, as the crime charged on the prisoner rescued is felony or misdemeanor.f But there must be knowledge by the rescuer that the person rescued was under some arrest. g An unsuccessful rescue may be indicted for an attempt. h d See Berner, Lehrbuch, p. 548; Henke Handbuch, III. § 179; Koch, $ 618. f 2 Hawk. P. C. c. 18, § 10. g State v. Hilton, 26 Mo. 199. h See post, § 2692; State v. Mur e State v. Cuthbert, T. Charlton, 13. ray, 15 Me. 100. CHAPTER XI. BIGAMY AND POLYGAMY. I. EFFECT OF PLACE OF FIRST MARRIAGE, § 2616. II. EFFECT OF PLACE OF SECOND III. THIRD MARRIAGE DURING SEC- IV. ACCESSARIES, § 2620. V. WHEN SECOND MARRIAGE WAS VIII. CONSUMMATION NOT NECES- IX. INTERMEDIATE DIVORCE, § 2629. X. EVIDENCE, § 2630. 1. PROOF OF MARRIAGE, § 2630. 2. PROOF OF DEATH OF FIRST HUS- 3. PROOF THAT FIRST HUSBAND OR Husband and wife, § 2637. XI. INDICTMENT, § 2638. 1. SECOND MARRIAGE MUST APPEAR TO BE UNLAWFUL, § 2638. 2. AVERMENTS AS TO SECOND MARRIAGE, § 2639. 3. EXCEPTIONS, § 2640. 4. AVERMENTS AS TO FIRST MARRIAGE, § 2641. I. EFFECT OF PLACE OF FIRST MARRIAGE. § 2616. Foreign first marriage valid by lex loci contractus.— Ordinarily a foreign marriage, valid by the place where it was solemnized, is regarded in bigamy as valid by the lex delicti commissi, which is usually the law of the place where the bigamous second marriage is prosecuted. But to this rule there are some, marked exceptions. The first is where the parties to such foreign first marriage 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. a 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. § 2617. Foreign first marriage invalid by lex loci contractus.Yet the converse of the last proposition is by no means univera Wh. Confl. of L. § 160-5. sally true. A marriage which a foreign law may hold, on grounds of purely local and arbitrary policy, to be invalid, may nevertheless be adjudged by our courts valid. b II. EFFECT OF PLACE OF SECOND MARRIAGE. § 2618. 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 commissi has sole jurisdiction of the offence.c A man, 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. 4, c. 31, § 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."d 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. e III. THIRD MARRIAGE DURING SECOND BIGAMOUS MARRIAGE, BUT AFTER DEATH OF FIRST WIFE. § 2619. Supposing there is a second and bigamous marriage, during which the first wife dies, and the man then marries a third time, is the third marriage bigamous? Technically it is not; for the second marriage was void, and the third marriage therefore valid. But if the defendant, after the death of his first wife, acknowledged the second marriage, and recognized the second wife as his legal wife, this, according to the common law view of marriage elsewhere vindicated, g would constitute such a marriage b Wh. Confl. of L. § 169-181; though see Weinberg v. State, 25 Wisc. 370; Bird v. Com. 21 Grat. 800; and fully, post, § 2630. c 1 Hale, 693; 1 East P. C. 466; Finney v. State, 3 Head, 544; People v. Mosher, 2 Parker C. R. 195. d For a conviction under this statute, see R. r. Topping, 7 Cox C. C. 103; Dears. 647. e State v. Palmer, 18 Vt. (3 Wash.) 570; Com. v. Bradley, 2 Cush. 553; Finney v. State, 3 Head, 544; State v. Johnson, 12 Minn. 476. f 1 Hale, 693; People v. Mosher, 2 Parker C. R. 95; 11 East P. C. 466; State v. Moore, 3 West. L. J.. 134. See State v. Palmer, 18 Vt. 570. g Wh. Confl. of L. § 169–181. as would make the third marriage bigamous. h Of course this does not hold in a trial where the lex fori treats a consensual marriage as invalid, i or where the indictment does not aver a consensual marriage. ¿1 IV. ACCESSARIES. § 2620. To bigamy, as to all other offences, applies the law of principal and accessary, as hereinbefore expressed. Where the offence is a felony, then one present, aiding and abetting, is a principal in the second degree;j and those promoting, without being present, are accessaries before the fact. Where the offence is a misdemeanor, all concerned are principals. § 2621. Party marrying bigamous person. — If this view be correct, a person who, knowing the fact, marries another who has another husband or wife, is principal in the bigamy. We must admit, however, on this same point, a probability of the same conflict of opinion as exists on the question whether a person having carnal intercourse with an adulterer is guilty of adultery. k V. WHEN SECOND MARRIAGE WAS ON INDEPENDENT GROUNDS VOID OR VOIDABLE. § 2622. The offence consisting in entrapping another into marital intercourse on a false plea, it is no defence that the second marriage was void on other grounds than that of bigamy; as where the second wife was incompetent to marry, or where the second marriage was within the prohibited degrees. A fortiori does this view obtain where the second marriage is simply voidable, or technically defective. m VI. WHERE THE FIRST MARRIAGE WAS VOIDABLE OR VOID. any il Hayes v. People, 25 N. Y. 390. § 2623. Though the first marriage be contracted under h See Hayes v. People, 5 Parker C. R. 325; Patterson v. Gaines, 6 How. U. S. 550. Thus, cohabitation, subsequent to emancipation, by an emancipated slave, with a woman to whom he was invalidly married prior to emancipation, validates the invalid prior marriage. McReynolds v. State, 5 Cold. (Tenn.) 18; Hampton v. State, 45 Alab. 82. Ante, § 770; though see Williams v. State, 44 Alab. 24. i Denison v. Denison, 35 Md. 361. of 1 R. v. Allen, 1 L. R. C. C. R. 367; 26 Law J. 664, overruling R. v. Fanning, 10 Cox C. C. 411 (Irish Q. B.) ; R. v. Brown, 1 Cox C. C. 313; 1 C. & K. 144. m R. v. Penson, 5 C. & P. 412; Hayes v. People, 5 Parker C. R. 325; S. C. 25 N. Y. 390; Robinson v. Com. 6 Bush, 309. those disabilities or impediments which render it voidable, yet a second marriage, whilst the former is subsisting in fact, comes within the statute, for the first is a marriage in judgment of law, until it is avoided. n But should the first marriage be contracted under any of those disabilities or incapacities which render it void ab initio, or be for other reasons void, the case is otherwise. o Thus in Ohio, a marriage contracted by parties, either of whom are under the age of consent, and not confirmed by cohabitation after arriving at that age, will not subject a party to punishment for bigamy, for contracting a subsequent marriage, while the first husband or wife is still living; p and generally, if a boy under fourteen, or a girl under twelve, contract matrimony, it is void, unless both husband and wife consent to confirm the marriage after the minor arrives at the age of consent. q On the other hand, in conformity with the first proposition of this section, in South Carolina, where a marriage of a nephew to an aunt is valid, if the nephew after such marriage marry another, the first wife living, he is indictable for bigamy. r VII. PARTIES BEYOND SEAS OR ABSENT. § 2624. It has been held that the first exception, that the statutes shall not extend "to any person or persons, whose husband or wife shall be continually remaining beyond the seas by the space of seven years together," applied, under the earlier statutes, though the party marrying have notice that the other is living. 8 Now, however, by 9 Geo. 4, if the party knows that the other is alive, the exception does not relieve. t And this is uniform law. t1 § 2625. The second exception, that the statute shall not extend to any person or persons "whose husband or wife shall absent himself or herself, the one from the other, by the space of seven years together, in any place within the (United States of n 1 East P. C. 466. o 1 Russ. 290. p Shafer v. State, 20 Ohio, 1. r State v. Barefoot, 2 Rich. 209. See R. v. Turner, 9 Cox C. C. 145; t R. v. Turner, 9 Cox C. C. 145. 11 See Com. v. Johnson, 10 Allen, 196. |