that she is inadmissible for the defence to prove that her marriage was invalid. t1 This, however, is founded on a petitio principii. The question is whether the first marriage is valid. If so, she is not a witness, but she is a witness if such marriage is invalid. For the court to refuse to admit her, when called by the defence, to disprove the marriage, is to prejudge the question in issue. That she cannot be called to sustain the marriage, is clear, for she is excluded by the very hypothesis she is called to support. The proper course is to examine her on her voir dire. If she claims to be the first wife, on her own showing she is inadmissible. If she denies that she was married to the defendant, then she should be admitted, and the jury directed to disregard her testimony if they believe her to be the defendant's wife. u Otherwise material testimony might be excluded on a hypothesis not only artificial but false. § 2637 a. Other witnesses — experts-foreign law. The tes timony of a witness, present at the marriage, is admissible and adequate proof, unless the law requires official evidence. u When the marriage is extra-territorial, the officiating clergyman, according to American cases, may not only prove the marriage, but the foreign law under which it was solemnized. v But in England, unless a witness be an expert, he cannot prove the foreign law. w In domestic marriages, the fact that a justice of the peace or clergyman performed the ceremony is proof that he professed and was generally understood to have the authority so to do. x XI. INDICTMENT. y 1. Second Marriage must appear to be Unlawful. § 2638. The indictment must show by facts or averment that t1 R. v. Madden, 14 Up. Can. Q. B. 588; R. v. Tubbee, 1 Up. Can. P. R. 103. u Peat's case, 2 Lewin, 288; R. v. Wakefield, Ibid. 279; which cases, however, only intimate such a course, without positively sanctioning it. u1 R. v. Manwaring, D. & B. C. C. 132; 7 Cox C. C. 192, and note g; State v. Kean, 10 N. H. 347; Warner v. Com. 2 Va. Ca. 95; Com. v. Putnam, 1 Pick. 136; Wolverton v. State, 16 Ohio, 176. v Bird v. Com. 21 Grat. 800; State v. Abbey, 29 Vt. 60. w R. v. Povey, 6 Cox C. C. 83; S. P., R. v. Smith, 14 Up. Can. Q. B. 565; but see Wh. Con. of L. § 775, and Sussex Peerage case, there cited. x Bird v. Com. 21 Grat. 800; State v. Abbey, 3 Williams (29 Vt.), 60. Ante, § 2533. y For forms of indictment, see Wh. Prec. 985 et seq. (992) Bigamy. Where the first mar the second marriage was unlawful. Even an indictment for polygamy, under the statute of Vermont, which alleges that both marriages were had in another state, and that the respondent has feloniously continued with his second wife in Vermont, must allege the second marriage was unlawful in the state where it was had; and if this allegation is omitted, judgment will, on motion, be arrested. z In Massachusetts, under the statute for continuing to cohabit in this state with a second wife, the defendant having a former wife 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 It is sufficient to aver that the first wife was alive at the second marriage, without alleging that the first marriage still subsists. b 2. Averments as to Second Marriage. § 2639. A variance in setting out the second wife's name is fatal; and so as to any material averments as to second marriage. c riage took place in another county (993) Bigamy in North Carolina. 96, Rev. Stat. Vermont, where both (995) Adultery in Massachusetts, un- (996) Adultery by married men with against the man. (998) Same against the woman. under Ohio statute. A married (1000) Against an uncle and niece for an incestuous marriage, as a joint offence, in Virginia. (1001) Adultery in North Carolina, against both parties jointly. (1002) Fornication and bastardy in South Carolina, against the man. (1003) Same in Pennsylvania. (1004) Same against the woman. z State v. Palmer, 18 Vermont (2 Washb.), 570; but see contra, State v. Johnson, 12 Minn. 473. a Com. v. Bradley, 2 Cushing, 553. b State v. Norman, 2 Dev. 222; Murray v. R. 7 Q. B. 700. c R. v. Deeley, 4 C. & P. 579; 1 M. C. C. 303. But this is amendable under 14 & 15 Victoria. 819 3. Exceptions. § 2640. The exceptions in the act, e. g. divorce, &c., when not part of the description of the offence, need not be negatived. d 4. Averments as to First Marriage. § 2641. The time and place of the first marriage need not be specially averred. e It is enough if a prior existing marriage be stated. But if an averment be attempted, and the date be left blank, this is fatal. f § 2642. In Indiana it is said that it is unnecessary to set out the maiden name of the first wife, g and the argument in this, as well as in the cases cited in Kentucky and North Carolina, goes to the effect that it is enough to aver that the defendant, at the time of the second marriage, had a second wife to whom he had been lawfully married. There are precedents for both modes of stating the first marriage; h but if we lean on the analogy of indictments for receiving 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 to state it in general terms, without specifying the details. If these are needed for justice, 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.j d Murray v. R. 7 Q. B. 700; State v. Loftin, 2 Dev. & Bat. 31; Stanglein v. State, 17 Ohio St. 453; State v. Williams, 20 Iowa, 98; State v. Johnson, 12 Minn. 476; State v. Abbey, 29 Vt. 60. It is otherwise where the exception describes the offence in the enacting clause. Ante, § 378-80; Fleming v. People, 27 N. Y. (13 Smith) 329. Ante, § 378-80. e State v. Bray, 13 Iredell, 289; 820 Com. v. Whaley, 6 Bush (Ky.), 266; f State v. La Bore, 26 Vermont. 765. g Hutchins v. State, 28 Ind. 34; so also, Com. v. Whaley, 6 Bush, 266. h Wh. Prec. 985-999. i Contra, State v. La Bore, supra. j R. v. Gooding, C. & M. 297. 1. By Common Law of Christendom Adultery is Sexual Connection between Man and Woman one of whom is lawfully married to a Third Person. § 2643. 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 receive the English common law, the ecclesiastical law is considered, so far as concerns the definition of the offence, to be in force, a we must begin by inquiring what the ecclesiastical law in this respect prescribes. And this inquiry is doubly pertinent, because not only does this portion of the English ecclesiastical law form part of the Anglo-American common law, but the component elements of the ecclesiastical law-the Roman and the canon law - form the old common law of marriage in a See ante, § 5-7. those parts of the United States which were originally territories of France and Spain. b § 2644. 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 man, 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 distinct islands, so as to be permanently separated: "dummodo in diversas insulas relegantur." The adulteress was fined half of her Dos, and one third of her remaining estate; the paramour, one half of his entire estate.c And the husband was obliged, on discovery, to prosecute, on pain of being convicted as an accomplice. d By an edict of Constantine, an adulteress was to be immured for life in a monastery, 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." e 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. § 2645. But Christianity, speaking through the canon law, materially modified this feature of Roman jurisprudence. On the one side, the autocratic power of the pater familias was greatly reduced; on the other side, the sanctity of 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 republicæ. Hence the offence was committed by a sexual b See Wh. Confl. of L. § 171-3. с “Adulteris vero viris dimidiam bonorum partem auferri." Paull. Rec. sent. II. 26. 14. d L. 2. § 2. D. h. t.- Nov. 134, cap. 9. e L. 10. Cod. ad leg. Jul. § 1. |