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CHAPTER XI.

BIGAMY AND POLYGAMY.

1. EFFECT OF PLACE OF FIRST

MARRIAGE, $ 2616.
II. EFFECT OF PLACE OF SECOND

MARRIAGE, $ 2618.
III. THIRD MARRIAGE DURING SEC-

OND BIGAMOUS MARRIAGE,
BUT AFTER DEATH OF FIRST

WIFE, S 2619.
IV. ACCESSARIES, $ 2620.
V. WHEN SECOND MARRIAGE WAS

ON INDEPENDENT GROUNDS

VOID OR VOIDABLE, § 2622.
VI. WHEN THE FIRST MARRIAGE

WAS VOIDABLE OR VOID, $ 2623.
VII. PARTIES BEYOND SEAS OR AB-

SENT, $ 2624.
VIII. CONSUMMATION NOT NECES-

SARY, $ 2628.
IX. INTERMEDIATE DIVORCE, $

2629.

X. EVIDENCE, § 2630.

1. PROOF OF MARRIAGE, $ 2630.
2. PROOF OF DEATH OF FIRST HUS-

BAND OR WIFE, $ 2632.
3. PROOF THAT FIRST HUSBAND OR

WIFE WAS ALIVE, S 2634.
4. WITNESSES, $ 2637.

Husband and wife, § 2637.
Other witnesses ; experts ; foreign

law, $ 2637 a.
XI. INDICTMENT, $ 2638.

1. SECOND MARRIAGE MUST APPEAR

TO BE UNLAWFUL, 2638. 2. AVERMENTS AS TO SECOND MAR

RIAGE, § 2639. 3. EXCEPTIONS, S 2640. 4. AVERMENTS AS TO FIRST MAR

RIAGE, $ 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 univer

a 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 AF

TER 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. f 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, I would constitute such a marriage 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. il

b Wh. Confl. of L. & 169–181; though e State v. Palmer, 18 Vt. (3 Wash.) see Weinberg v. State, 25 Wisc. 370; 570; Com. v. Bradley, 2 Cush. 553 ; Bird v. Com. 21 Grat. 800; and fully, Finney v. State, 3 Head, 544; State post, $ 2630.

v. Johnson, 12 Minn. 476. ci Hale, 693 ; 1 East P. C. 466 ; f 1 Hale, 693 ; People v. Mosher, 2 Finney v. State, 3 Head, 544; People Parker C. R. 95; 11 East P. C. 466 ; v. Mosher, 2 Parker C. R. 195.

State v. Moore, 3 West. L. J.. 134. d For a conviction under this stat- See State v. Palmer, 18 Vt. 570. ute, see R. r. Topping, 7 Cox C. C. g Wh. Confl. of L. $ 169–181. 103 ; Dears. 647.

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. l 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.

$ 2623. Though the first marriage be contracted under any of 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

h See Hayes v. People, 5 Parker C. il Hayes v. People, 25 N. Y. 390. R. 325; Patterson v. Gaines, 6 How. j Boggus v. State, 34 Ga. 275. U. S. 550. Thus, cohabitation, subse- k See post, $ 2643 et seq. quent to emancipation, by an emanci- I R. v. Allen, 1 L. R. C. C. R. 367; pated slave, with a woman to whom he 26 Law J. 664, overruling R. v. Fanwas invalidly married prior to emanci- ning, 10 Cox C. C. 411 (Irish Q. B.); pation, validates the invalid prior mar- R. v. Brown, 1 Cox C. C. 313; 1 C. riage. McReynolds v. State, 5 Cold. & K. 144. (Tenn.) 18; Hampton v. State, 45 m R. v. Penson, 5 C. & P. 412; Alab. 82. Ante, $ 770; though see Hayes v. People, 5 Parker C. R. 325; Williams r. State, 44 Alab. 24. S. C. 25 N. Y. 390; Robinson r. Com. i Denison v. Denison, 35 Md. 361. 6 Bush, 309.

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. I

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.

See R. v. Turner, 9 Cox C. C. 145; 0 1 Russ. 290.

Gibson v. State, 38 Mississippi, 313. p Shafer v. State, 20 Ohio, 1.

t R. v. Turner, 9 Cox C. C. 145. 9 Co. Lit. 79. See R. v. Gordon, See Com. v. Thompson, 6 Allen, 591; R. & R. 48.

R. v. Briggs, 7 Cox C. C. 175; D. & go State v. Barefoot, 2 Rich. 209. B. 98. 1 Hale, 693; 1 East P. C. 466. 11 See Com. v. Johnson, 10 Allen,

196.

America) or elsewhere, the one of them not knowing the other to be living within that time,” according to its express words, only applies when the party marrying again has no knowledge that the former husband or wife is alive. The mode of proving this exception is hereafter distinctively discussed. t2 When there is no local law, these statutes are presumed to be part of the common law of the United States. u In Mississippi the term is five years. v

$ 2626. In Pennsylvania “if any husband or wife, upon any false rumor, in appearance well founded, of the death of the other (when such other has been absent for two whole years),” shall marry again, this is not bigamy.w Under this statute, the rumor must not be vague or fleeting, but must be circumstantial as to place, time, and mode of death. x

$ 2627. The exception does not release a party deserting husband or wife ; it only applies to the party deserted. x]

VIII. CONSUMMATION NOT NECESSARY. $ 2628. Marriage is in law complete when parties able to contract and willing to contract have actually contracted to be man and wife, in the forms and with the solemnities required by law. Consummation by carnal knowledge is not necessary to its validity. 22

IX. INTERMEDIATE DIVORCE. § 2629. If the divorce was such as by the lex fori entitles the defendant to marry again, then he cannot be convicted of bigamy. y But this is a matter the lex fori alone must decide. When a man, for instance, is indicted in Pennsylvania, for marrying a second time in that state, the first wife being alive, it is no defence to the indictment that the defendant was divorced from the first marriage in Indiana, if the Indiana divorce is not valid by Pennsylvania law. z As a principle of international 42 Post, $ 2636.

m2 Com. v. Thompson, 11 Allen, 23. u Eubanks v. Banks, 34 Ga. 407; x? State r. Patterson, 2 Iredell, 346. Whar. Con. of Laws, $ 133.

y Lolley's case, 2 Cl. & F. 567 n; v Gibson v. State, 38 Miss. 313. R. & R. 237; State r. Weatherby,

w Revised Act, Bill I. $ 34 (reën- 43 Me, 258; People r. Hovey, 5 Baracting colonial act of 1705, as modi- bour, 117. fied in 1790 and 1815).

: Wharton on Conflict of Laws, s 2 Com. v. Smith, Wharton on Hom. 224. App. ; 1 Wh. Dig. 826.

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