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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. 22
Clearly a divorce subsequent to the second marriage does not purge the bigamy. a
The burden of proving the divorce is on the defendant. 6
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. Art 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, based on an alleged marriage in his native land. Here, the 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 ler 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
z1 People v. Dawell, S. C. Mich., (12 P. F. Smith) 308; see Turner v. Chic. Leg. News, 130. See Barber Turner, 4 Alab. 437. Wh. Conf. of v. Root, 10 Mass. 260; Smith v. Smith, Laws, $ 224 et seq. 13 Gray, 209; Shannon v. Shannon, a Baker v. People, 2 Hill N. Y. 4 Allen, 134; Jackson v. Jackson, 1 325. Johns. 424 ; Borden v. Fitch, 15 Johns. b Com. v. Boyer, 7 Allen, 306. 121; Parish v. Parish, 32 Ga. 653; See ante, $ 614, 708. though see Kinnier v. Kinnier, 45 N. c See Patterson v. Gaines, 6 How. Y. 535.
U. S. 550; Shafer v. State, 20 Ohio 22 Colvin v. Reed, 55 Penn. (5 P. F. R. 3. Smith) 416; Reed v. Elder, 62 Penn.
Passing, however, these preliminary views, and reserving for a d See Wh. Con. of L. & 150. 314; Weinberg v. State, 25 Wisc.
e See ante, $ 683; and see R. v. 370; Bird v. Com. 21 Grat. 800. Flaherty, 2 C. & K. 782.
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 :
9 In those countries where a con- 347; Warner v. Com. 2 Va. Cas. 95; tract in writing is by the law of the Com. v. Putnam, 1 Pick. 136; Wolvercountry made essential to the mar- ton v. State, 16 Ohio, 176; R. v. Manriage, it should, as a rule, be produced. waring, Dears. & B. 132; 7 Cox C. C. 1 Camp. 61. In New Hampshire, a 192; R. v. Cradock, 3 F. & F. 837; copy of the record of the marriage, R. v. Hawes, 2 Cox C. C. 432; 1 Den. from the clerk's office, duly certified, C. C. 270. with proof of the identity of the In another work it is abundantly party, is proper evidence. State v. shown, that mere consent is sufficient, Wallace, 9 New Hamp. 514. In Eng- by the common law of Christendom land, the register of the parish is to establish marriage. Whart. Con. of admissible for the same purpose. 2 Laws, $ 172. And so far as concerns Bacon's Ab. Ev. F. ; Gilb. Ev. 72; the United States, this may be viewed 1 Greenleaf on Ev. § 434, 493, 544, as judicially determined. Ibid.; Pat545, though the original record is not terson v. Gaines, 6 Howard U. S. 550; necessary ; Sayer v. Glossop, 2 Exch. Hayes v. People, 5 Parker C. R. 409; 2 C. & K. 694. In Illinois, it is 325; though see Denison v. Denison, competent, on a trial for bigamy, to 35 Md. 36. prove the first marriage, or either In Maine, Pennsylvania, Delaware, marriage, by producing a copy of the Virginia, South Carolina, Georgia, marriage license, with the certificate Alabama, Indiana, Texas, and Ohio, of the justice, indorsed on the license, as well as in England, the defendant's that he had solemnized the marriage, admissions as to a former marriage and a certificate of the clerk of the may be given in evidence to prove the county commissioners' court of the fact of such marriage. Cook v. State, county that the same was a true copy, 11 Georg. 53; State v. Lash, 1 Harr. transcribed from the original on file in (N.J.) 380; Cayford's case, 7 Greenl. his office. Jackson v. People, 2 Scam. 57; State v. Hodgskins, 19 Maine, 155; 232.
State v. Libby, 44 Maine, 469; GorIn Vermont, where it was proved man v. State, 23 Tex. 646; Com. v. that parties appeared before a magis- Murtagh, 1 Ashmead, 272; Forney v. trate, or one acting as such, in New Hallacher, 8 S. & R. 159; Warner's York, and declared their consent to a case, 2 Va. Cases, 95; State v. Hilton, marriage, and this was followed by 3 Rich. 434; State v. Britton, 4 Mccohabitation and recognition of each Cord, 256 ; R. v. Simmonsto, i Car. other as man and wife, it was held to & Kir. 164; Wolverton v. State, 16 be sufficient proof primâ facie of such Ohio, 173; Langtry v. State, 30 Alab. marriage. State v. Rood, 12 Vermont, 536; State v. Seals, 16 Ind. 352 ;
Carmichael v. State, 12 Ohio State R. Where the lex fori does not require 553 ; Cameron v. State, 14 Alab. 546 ; record proofs, the testimony of a wit- State v. Sanders, 30 lowa, 582 ; ness, present at the marriage, is primâ O'Neale v. Com. 17 Grattan, 582. As facie evidence to prove such marriage, to Kentucky, see Robinson v. Com. 6 and as such, if undisputed, is suffi- Bush, 309. The same view is taken in cient to convict. Greenleaf on Ev. Canada. R. v. Creamer, 10 Low Can. § 464, 493; State v. Kean, 10 N. H. R. 404. "In California, as in other
$ 2631. First. In all prosecutions for bigamy, the ler 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, emnities should be proved to have 17 Cal. 598.
taken place; and although this goes In Massachusetts, Minnesota, Con- too far, it is clear that without corrobnecticut, and New York, however, a oration a confession is insufficient. contrary doctrine has been expressed. R. v. Flaherty, 2 C. & K. 782. Com. v. Littlejohn, 15 Mass. 163; It was held not enough to prove a State v. Armstrong, 4 Minne. 335; marriage, that the defendant, about State v. Roswell, 6 Connect. 446; Peo- twenty years before the offence was ple r. Humphrey, 7 John. 314; Clayton committed, stated, when hiring a v. Wardell, 4 Comst. 230; Gahagan v. house, that he had a wife and child, People, i Parker C. C. 383. See Peo- and afterwards moved into the house ple v. McCormack, 4 Parker C. C. 17. with a woman whom he called Miss
But while cohabitation may be evi- Ham, and .with whom, for several dence of marriage, it cannot make years, he lived as his wife. Ham's a void marriage valid. Williams v. case, 2 Fairf. 391; State v. Roswell, 6 State, 44 Alab. 24 (Safford, J. 1870). Connect. 446. See post, $ 2631 a.
In Massachusetts it is now provided When the marriage was in a foreign by statute that circumstantial and country, such evidence, when made presumptive evidence may be redeliberately, has frequently been con- ceived to prove the fact of marriage. sidered sufficient. Cayford's case, 7 Suppl. Rev. Stat. 166-7, 184; Com. v. Greenl. 57; Trumman's case, 1 East Johnson, 10 Allen, 196. P. C. 470; R. v. Newton, 2 M. & Rob. Where a slave was married before 503; 1 C. & K. 164; Rigg v. Curgen- his emancipation, and subsequently ven, 2 Wils. 399,
See, per contra, continues to live and cohabit with his People v. Humphrey, 7 Johnson, 314; wife, this amounts to a legal marriage, Weinberg v. State, 25 Wisc. 370; and a second marriage is bigamy. MeBird v. Com. 21 Grat. 800, holding Reynolds v. State, 5 Cold. (Tenn.) 18. that where the lex loci contractus re- See ante, $ 2619, note h. quired certain solemnities, such sol
United States, and as is required by the original common law of the Anglo-American colonies, recognizes a consensual marriage as valid, the proof of a consensual marriage will sustain an indictment for bigamy. But the proof must establish the marriage beyond reasonable doubt. Mere confessions in a matter of this kind, where talk is often so careless, and words used in such varied significations, require a peculiarly large measure of that scrutiny which all confessions invoke. Of course, if a man, after a consensual marriage in a country where consensual marriages are invalid, comes with his wife to a country where they are valid, and there lives with her as man and wife, then this is, at least, a validation of the former invalid marriage. But suppose he leaves her abroad, without such validation, then a court in our own land, should a prosecution be brought against him for bigamy, may well refuse to be satisfied by mere admissions, or even by proof of cohabitation. There must be proof, to sustain the allegation of the indictment, of the solemnization of the first marriage. We may not insist upon proof that all the prescriptions of the lex loci contractus were complied with ; for these are sometimes so contrary to our national policy, and so repugnant to the common law of Christendom, that there may be cases in which we may refuse to recognize them as limiting an international institution such as marriage really is. But while we may thus occasionally dispense with these formalities, we must, nevertheless, insist, when a foreign marriage is made the basis of a criminal prosecution in our own land, that such foreign marriage should be proved by showing that in such marriage there was a bona fide matrimonial contract by parties capable of contracting, followed by cohabitation. To establish the contract, the foreign registry, sustained by proof of the foreign law, is the best evidence. For this, however, the testimony of witnesses to the fact may be substituted, supposing the registry cannot be obtained. And this holds good even where the marriage was not, in matters purely artificial, in compliance with the law of the place of solemnization, if it was a valid marriage by the common law of Christendom, - i. e. if the parties were capable of contracting, and the contract was an exclusive sexual union for life.
§ 2631 a. Subsequent ratification of prior invalid marriage. It should not be forgotten that, as has been already stated, a marriage which is at its solemnization invalid (e. g. where at the