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. 12 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. Î1

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. x2

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

12 Post, § 2636.

u Eubanks v. Banks, 34 Ga. 407; Whar. Con. of Laws, § 133.

v Gibson v. State, 38 Miss. 313. w Revised Act, Bill I. § 34 (reënacting colonial act of 1705, as modified in 1790 and 1815).

1 Com. v. Thompson, 11 Allen, 23. x2 State v. Patterson, 2 Iredell, 346. y Lolley's case, 2 Cl. & F. 567 #; R. & R. 237; State v. Weatherby, 43 Me, 258; People v. Hovey, 5 Barbour, 117.

z Wharton on Conflict of Laws, §

x Com. v. Smith, Wharton on Hom. 224. App.; 1 Wh. Dig. 826.

law, to give validity to such a divorce, the complainant, at least, must be domiciled in the divorcing state; z1 and there must be due personal notice, if possible, to the defendant. And in Pennsylvania, where the complainant has deserted the defendant, and gone to a foreign domicil, the divorce must be sued in the defendant's domicil. z2

Clearly a divorce subsequent to the second marriage does not purge the bigamy, a

The burden of proving the divorce is on the defendant. b

X. EVIDENCE.

1. Proof of Marriage.

§ 2630. Distinctive presumptions in bigamy. Before laying down any propositions on this complicated topic, it is desirable to recall the fact that the issue in bigamy is very different from the issue in other cases in which marriage is sought to be sustained. An emigrant, for instance, comes to this country with a wife whom he has married without the observance of those restrictions which the peculiar social condition of several European states has imposed. He rears children whom he acknowledges, and

who claim after his death to inherit his estate. Here, the fact of marriage being conceded, come in two important presumptions to sustain the legitimacy of the children. The first is that all acts are presumed to be regular until the contrary appears. The second is that when the evidence is equally balanced, the courts in all questions of legitimacy, will favor the hypothesis of matrimony.c

Suppose, however, the emigrant in question has come to this country without a wife; marries here; establishes a home and family; and then is arrested here on the charge of bigamy,

21 People v. Dawell, S. C. Mich., Chic. Leg. News, 130. See Barber v. Root, 10 Mass. 260; Smith v. Smith, 13 Gray, 209; Shannon v. Shannon, 4 Allen, 134; Jackson v. Jackson, 1 Johns. 424; Borden v. Fitch, 15 Johns. 121; Parish v. Parish, 32 Ga. 653; though see Kinnier v. Kinnier, 45 N. Y. 535.

z2 Colvin v. Reed, 55 Penn. (5 P. F. Smith) 416; Reed v. Elder, 62 Penn.

(12 P. F. Smith) 308; see Turner v. Turner, 4 Alab. 437. Wh. Conf. of Laws, § 224 et seq.

a Baker v. People, 2 Hill N. Y.

325.

b Com. v. Boyer, 7 Allen, 306. See ante, § 614, 708.

c See Patterson v. Gaines, 6 How. U. S. 550; Shafer v. State, 20 Ohio R. 3.

Here, the

based on an alleged marriage in his native land. prosecution, instead of being aided by presumptions which in a doubtful case would turn the scales in its favor, has to encounter presumptions which in a doubtful case will turn the scales against it. The defendant's second marriage is not contested, and is looked on with peculiar favor by the judicial polity of a country such as this, which seeks to encourage family growth. d But what is much more important, the fact of the first marriage is the gist of the prosecution's case, and to it applies eminently the maxim, that the charge of guilt, to justify a conviction, must be made out beyond reasonable doubt. Hence we find courts which are ready, when a marriage is to be adjudicated on its civil relations, to regard the husband's own admissions as proof of the fact, shrinking from this conclusion, when the object is to sustain a criminal prosecution against him for bigamy. Confessions are only authoritative, it is well argued, when there is clear proof of the corpus delicti; e and here the corpus delicti is the alleged first marriage. How is this to be "clearly proved," independent of the defendant's confession? Now, in view of the issue being criminal, we can easily understand how a court should say, as some courts have said: "The lex loci contractus prescribes certain solemnities as necessary to constitute the formalities of marriage, and therefore, in view of the maxim, locus regit actum,' we must hold that any other proof of the fact of marriage is but secondary and is not to be received." Had the first wife been brought to this country, and here acknowledged, the case would have been different. But when the prosecution rests simply on a technical first marriage, it is not inconsistent in courts, who recognize the validity of a consensual marriage, to hold that such technical first marriage should, in a criminal issue, in order to be made out beyond reasonable doubt, be proved in the way the lex loci contractus prescribes; and that secondary evidence should only be received when the presumptions of the lex loci contractus are peculiarly onerous, or when the primary evidence cannot be obtained.f

Passing, however, these preliminary views, and reserving for a

d See Wh. Con. of L. § 150.

e See ante, § 683; and see R. v. Flaherty, 2 C. & K. 782.

314; Weinberg v. State, 25 Wise. 370; Bird v. Com. 21 Grat. 800. See, in a civil issue, Harris v. Cooper,

f See People v. Humphrey, 7 Johns. 31 Up. Can. Q. B. 182.

noteg a recapitulation of the decisions of the courts in this connection, we may accept the following propositions :

§ 2631. First. In all prosecutions for bigamy, the lex fori determines what is the proper proof by which marriage is to be established. If there is in any state a positive law, to the effect that marriage shall be adjudged invalid in such state unless accompanied with certain essential constituents (e. g. that the marriage should be monogamous and for life), then a judge in such state, being bound by his own territorial law, must declare such a marriage, whether foreign or domestic, to be invalid.

Secondly. Where the lex fori simply prescribes certain formalities as the sole evidences of marriage, then the judge, so far as concerns a domestic marriage, must require the production of such evidence. But when the question is the validity of a foreign marriage, such proof, as relating solely to domestic marriages, cannot be exacted.

Thirdly. When the lex fori, as is the case in most of the

states this is by statute. Case v. Case, 17 Cal. 598.

In Massachusetts, Minnesota, Connecticut, and New York, however, a contrary doctrine has been expressed. Com. v. Littlejohn, 15 Mass. 163; State v. Armstrong, 4 Minne. 335; State v. Roswell, 6 Connect. 446; People v. Humphrey, 7 John. 314; Clayton v. Wardell, 4 Comst. 230; Gahagan v. People, 1 Parker C. C. 383. See People v. McCormack, 4 Parker C. C. 17. But while cohabitation may be evidence of marriage, it cannot make a void marriage valid. Williams v. State, 44 Alab. 24 (Safford, J. 1870). See post, § 2631 a.

When the marriage was in a foreign country, such evidence, when made deliberately, has frequently been considered sufficient. Cayford's case, 7 Greenl. 57; Trumman's case, 1 East P. C. 470; R. v. Newton, 2 M. & Rob. 503; 1 C. & K. 164; Rigg v. Curgenven, 2 Wils. 399. See, per contra, People v. Humphrey, 7 Johnson, 314; Weinberg v. State, 25 Wisc. 370; Bird v. Com. 21 Grat. 800, holding that where the lex loci contractus required certain solemnities, such sol

emnities should be proved to have taken place; and although this goes too far, it is clear that without corroboration a confession is insufficient. R. v. Flaherty, 2 C. & K. 782.

It was held not enough to prove a marriage, that the defendant, about twenty years before the offence was committed, stated, when hiring a house, that he had a wife and child, and afterwards moved into the house with a woman whom he called Miss Ham, and .with whom, for several years, he lived as his wife. Ham's case, 2 Fairf. 391; State v. Roswell, 6 Connect. 446.

In Massachusetts it is now provided by statute that circumstantial and presumptive evidence may be received to prove the fact of marriage. Suppl. Rev. Stat. 166–7, 184; Com. v. Johnson, 10 Allen, 196.

Where a slave was married before his emancipation, and subsequently continues to live and cohabit with his wife, this amounts to a legal marriage, and a second marriage is bigamy. MeReynolds v. State, 5 Cold. (Tenn.) 18. See ante, § 2619, note h.