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the repealed statutes, are worthy of observation. The taking alone did not constitute the offence under the repealed statute, and it was necessary that the woman taken away should have been married or defiled by the wrong doer, or by some others with his consent.(p)
But the new enactment makes the taking away or detaining a woman, with intent to marry or defile her, a complete offence. And it seems that an indictment under the new act must aver that the taking was with an intention to marry or defile, although such an averment was not necessary under the repealed statute.(9)
It was necessary to set forth in an indictment under the repealed statute, that the woman taken away had lands or goods, or was an heir-apparent, and that the taking was against her will, and also that she was married or defiled; such statement being necessary to bring a case within the preamble of that statute, to which the enacting clause clearly referred, in speaking of persons taking away a woman " so against her will.”(r)
It was held, that if the first taking away of a woman was forcible, the offence was complete, under the repealed statute, 3 Hen. 7, c. 2, that the offence was not purged by the subsequent compliance of the woman and consent to the marriage,(s) on the ground that an offender should not be exempted from the provisions of the act, by having prevailed over the weakness of a woman whom he had got into his power by such base means.
Under the repealed statute, if the forcible abduction was confined [ *219]
to one county and the marriage was solemnized by *con
sent in another, the defendant could not be indicted in either: though, had the force been continued into the county where the marriage took place, no subsequent consent would avail.(1) It seems, however, that such an objection will not hold, since the stat. 7 Geo. 4, c. 64, s. 12, which enacts, that a felony or misdemeanor begun in one county and completed in another, may be dealt with, inquired of, tried, determined, and punished in any of the said counties, in the same manner as if it had been actually and wholly committed therein.
It was no excuse that the woman was at first taken away with her own consent, if she was afterwards forced against her will to continue with the offender; for until force was put upon her, she was in her own power, and may from that time be considered as taken against her will, as if she had never consented.(u) So inveigling a woman by confederates, and then detaining and taking her away, was within the statute.(u)
Parties only privy to the marriage, but neither concerned in the forcible taking, nor consenting thereto, were not within the repealed statute.(w)
(p) And. 115; Cro. Car. 486. 489 ; 12 cited ibid. 596, n. See 7 Mod. 102; Hawk. Rep. 100.
P. C., Book 1, c. 41, s. 8; East, P. C. ch. 11,'. (9) Cro. Car. 488. See 1 Russ. C. L. 570, s. 4. 571 ; Add. p. xiv. 2d ed.
(1) Rez v. Gordon, 1 Russ. C. L. 572 ; (r) 1 Hawk. P.C. c. 41, s. 4:1 Hale, 400; Add. p. xiv. 2d ed. 4 BI. Comm. 208.
(u) I Hawk. P. C. c. 41, 8. 7 ; Cro. Car. (8) Per Holt, C. J., Swendsen's case, 14 485. How. St. Tr. 559; Rex v. Lockhart, before (v) Rex v. Brown, 1 Ventr. 243. Lawrence, J., Oxford Spring Assizes, 1804, (w) Hale's P, C. 660; 1 Hawk. P. C. C.
Evidence of Woman admissible.]—Upon an indictment for forcible abduction and marriage of a woman, she may be a witness for the crown,(z) or the prisoner,(y) for she is not legally his wife, a contract obtained by force having no obligation in law.(z) It has been questioned whether her evidence ought to be received, if the actual marriage is valid; as where the woman, after the abduction consents to the marriage voluntarily, and is not induced by any precedent menace.(a) There are however, considerable authorities in favour of allowing her evidence, even in such a case.(b)
In Wakefield's case,(c) the defendants were indicted for a *misdemeanor in conspiring to carry away a young lady,
[ *220 ] under the age of sixteen, from the custody appointed by her father, and to cause her to marry one of the defendants; and in another count, for conspiring to take her away by force, being an heiress, and to marry her to one of the defendants. Mr. Baron Hullock was of opinion, even assuming the young lady to be, at the time of the trial, the lawful wife of one of the defendants, she was a competent witness for the prosecution, although there was no evidence to support that part of the indictment which charged force.(d)
The unlawful abduction of a girl under the age of sixteen from her parents, or persons having the charge of her is a misdemeanor. By the stat. 9 Geo. 4, c. 31, s. 20, repealing 4 & 5 Ph. & Mar. c. 8, it is enacted, “ That if any person shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable to suffer such punishment, by fine or imprisonment, or by both, as the court shall award.”(e)
42, s. 8. As to accessories after the fact, see the will of her father or mother, or of any 1 East, P. C. 453; 3 Chit. C. L. 818. other person having the lawful care or charge
(1) Gilb. Ev. 120; I Hale, P. C. 301, 302: of her, and shall contract matrimony with 2 Hawk. P. C. c. 46, s. 78.
her or shall defile her, every such offender (y) Rex v. Perry, cited in Rez v. Ser shall be guilty of a misdemeanor, and being jeant, 1 Ry. & M. 354.
convicted thereof, shall be liable to such im(2) Gilb. Ev. 120; 1 Hale, P. C. 302; prisonment, not exceeding the term of three Bull. N. P. 286.
years, as the court shall award, and shall be (a) I Halc's P. C. 302.
incapable of taking any estate or interest (6) 4 Bl. Com. 209; 1 East, P. C. c. 11, legal or equitable, in any real or personal 8. 5; 1 Russ. C. L. 577, 2d ed.
property of such girl; and such property (c) Lancaster Spring Assizes, 1827. See shall, upon such conviction, be vested from the trial, published by Murray, ante, pp. 214 the time of such marriage in such trustees -216.
as the lord chancellor, lord keeper, or cum. (d) See 2 Russ. C. L. 605, 2d ed.
missioners for the custody of the great seal (e) Abduction of an Unmurried Girl, in Ireland shall appoint, for the sole and sepunder Eighteen Years of Age, in Ireland.)- arate use of such girl, in the like manner as By 10 Geo. 4, c. 34, sect. 23, it is enacted, if such marriage had not taken place." " that when any unmarried girl under the Abduction of an Unmarried Girl under age of eighteen years shall have any inter. Sixteen Years in Ireland.]—The 24th secest, whcther legal or equitable, present or tion enacts, “ That if any person shall unlawfuture, absolute, conditional, or contingent fully take, or cause to be taken, any unmar. in any real or personal estate, or shall be an ried girl under the age of sixteen years, out heiress presumptive, or next of kin to any of the possession and against the will of her one having such interest, if any person shall father or mother, or of any other person fraudulently allure, take or convey away, or having the lawful care or charge of her, cause to be allured, taken or conveyed away, every such offender shall be guilty of a missuch girl, out of the possession and against demeanor, and being convicted thereof, shall
*The taking away a nutural daughter, under sixteen
years of age, from the care and custody of her putative father, was an offence within the repealed stat. 4 & 5 Ph. & M. c. 8.(f) It was also decided that a mother retained her authority notwithstanding her marriage to a second husband, whose assent was not material.(g) It was also decided, on the repealed statute that the marriage must be clandestine, and to the disparagement of the heir. ess.(h)
It has been said, that the refusal of the parents or guardians' consent must be continued, and that if once given, it was within the statute, notwithstanding subsequent dissent, but this was merely a dictum, which appears to want confirmation.(k)
It seems to be no legal excuse that the defendant had been frequently invited to the father's house, and used no other art than the common blandishments of a lover, to induce the lady secretly to elope and marry him; if it appear that the father intended to marry his daughter to another person, and so that the taking was against his consent.(?). This offence is within the jurisdiction of the Court of Queen's Bench.(m)
Impeachment of Marriage on the ground of Error.]—By the canon law there were four species of error forming a ground for impeaching a marriage. The first is error persone, as when a person intend- . ing to marry Ann by mistake married Jane. An error of this kind is not only an impediment to a marriage contract, but dissolves it through a defeci of consent in the party contracting.(n) No advantage can be taken of such deceit by the person by whom it is practised. [ *222 ]
Another species of error which by the canon law
was an impediment to a matrimonial contract, is styled an error of condition; as when a person thinking to marry a free woman, through mistake contracted with a bond woman, and vice versa.(0)
The third species is error fortunæ, as when a man intending to marry a rich wise, has in truth, contracted matrimony with a poor one. Such an error, however, did not, by the canon law dissolve a marriage contract made simply and without any condition subsisting(p); but it was otherwise by that law, if a person had contracted to marry a woman upon condition that she was worth a certain sum, and the condition was not made good.,
The last species of error was that of quality, as when a man marries a woman believing her to be a chaste virgin, or of a noble family and the like, and afterwards finds her to be a person deflowered, or of mean parentage.(a) But according to the opinion of the canon lawyers, ihis does not render the marriage invalid, because matrimony celebrated under such kind of error in point of consent, is deemed to be simply voluntary, as to the nature and substance of it, though in respect of the accidents it is not voluntary.(r)
be liable to suffer such punishment by fine (k) See 1 East, P. C. c. 11, s. 6, p. 457. or imprisonment, or by both, as the court (1) Rex v. Twisleton, 1 Lev. 257 ; 1 Sid. shall award."
387; 2 Keb. 32; 1 Hawk. P. C. c. 41, 8. (f) Rex v. Cornforth, 2 Strange, 1162 ; 1 10. Hawk. P. C. c. 41, s. 14; Rex v. Sweeting, (m) Rex v. Moor, 2 Mod. 128 ; 2 Lev. 179; 1 East, P. C. c. 11, s. 6, p. 457.
1 Freem. 444; 3 Keb. 708. (g) Ratcliffe's case, 3 Rep. 39.
(n) Sec Sanchez, lib. 7, tit. 18, No. 11. (h) Hicks v. Gore, 1 Mod. 84; 1 Hawk. X. 4. 1, 25; D. 24, 4, 1. P. C. c. 41, s. 11. See 1 East, P. C. c. 11, s. (0) X. 4, 9, 2. Sce Sanchez, lib. 7, Disp. 6, p. 457.
19. (i) Calthorpe v. Artell, 3 Mod. 169. (P) X. 4, 1, 26.
It is perfectly established by our law, that no disparity of fortune, or mistake'as to the qualities of the person, will impeach the vinculum of marriage. So the representations of a man that he is of superior condition, or has great expectations, will not of itself invalidate a marriage, as the law expects that parties should use timely and effectual diligence in obtaining correct information on such points.(s)
Error about the family or fortune of the individual, though produced by disingenuous representations, does not at all affect the validity of a marriage. A man who means to act upon such representations, should verify them by his own inquiries; the law presumes that he uses due caution in a matter in which his happiness for life is so materially involved, and it makes no provi
[ *223] sion for the relief of a blind credulity, however it may have been produced.(0)
If a husband can show that he has been imposed upon by a false name, he may upon that ground falsify the marriage, but he must set forth the fraud, and prove it to the satisfaction of the court.(u)
Sect. 5.-OF BIGAMY.
Former Marriage undetermined.)-One of the chief impediments to contracting a lawful marriage is the having a husband or wife, of a prior legal marriage, living at the time of the ceremony of the second marriage.(2)
A second marriage, whilst the former husband or wife is living, is ipso facto, null and void, without any divorce as well by the spiritual as by the common law.(y) Duas uxores eodem tempore habere non licet, is the rule of the civil law, which has been adopied and enforced by the codes of all civilized countries.(z)
(9) 39 Q. 1, 1.
vivus apud hostes teneatur, vel morte præven. (r) Ayliffe's Parer. 362, 363. See San: tus est, tunc si quinquennium a tempore cap. chez, lib. 7, Disp. 18, No. 170.
tivitatis excesserit, licentiam habet mulier ad (s) Ewing v. Wheatley, 2 Hagg. Cons. R. alias migrare nuptias ; ita tamen, ut bona 182, 183.
gratia dissolutum videatur pristinum matri. (t) Wakefield v. Mackay, 1 Phill. R. 137. monium, et unusquisque suum jus habeat (u) Heffer v. Heffer, 3 Maule & S. 265. imminutum. Eodem jure et in marito in (1) See ante, p. 89.
civitate degente et uxore captivâ observan. (y) 2 Hagg. C. R. 129 ; 1 BI. C. 436; 4 B. do."-Dig. lib. 24, tit. 2, 1. 6. C. 163; Pride v. Earls of Bath and Montague, * Among modern civilized nations, polyga. 1 Salk. 121 ; Perk. S. S. 304, 305; Riddlesden my has scarce ever been legalized, not even v. Wogan, Cro. Eliz. 857; Com. Dig. Baron in Muscovy; Charlemagne, at that early & Feme, (B. 6,) Bastard (A.;) 1 Roll. Abr. period punished it as adultery. It is remark. 310, 1. 13; Bro. Abr. tit. Bastardy, pl. 8. able that the Mahometans at present, though
(z) By the civil law if the husband or they practise it themselves, are said to forbid wife had been captive, and had continued in it to the Jews.”—1 Browne's Civil Law, 20; captivity for 5 years, a second marriage was Dr. Madan's Attempt to defend Polygamy. legalized." Sin autem in incerto cst, an Successive polygamy, lliat is, a subsequent
[ *224 ]
*A marriage may be contracted in good faith, and in
ignorance of the existence of those facts which constituted a legal impediment to the intermarriage. Such a marriage is described by jurists as "matrimonium putativum, id est, quod bona fide et solemniter saltem opinione conjugis unius justâ contractum inter personas vetitas jungi."'(a) This species of marriage was introduced by the canon law, and is unknown in the law of England or Ireland.(b)
We have already adverted to a question which arose upon a marriage of this description in Scotland.(c)
The offence of having a plurality of wives at the same time is more correctly denominated polygamy, but the term bigamy is more commonly used in legal proceedings. Bigamy, in its proper signification, is said to mean only being twice married, and not having a plurality of wives at once. According to the canonists bigamy consisted in marrying two virgins successively, one after the death of the other, or in once marrying a widow.(d)
· This offence was originally of ecclesiastical cognizance only, but it was made a felony by stat. 1 Jac. 1, c. 11. This statute has been repealed, but remains in force as to all offences within it committed before or upon the last day of June, 1828.(e) Punishment of Bigamy.)-By 9 Geo. 4, c. 31, s. 22,(s) it is enacted
that if any person, being married, shall marry *any other [ *225]
person during the life of the former husband or wife,
marriage after the death of the first consort, aniy, Polygamy.
(f) Irish Stutute against Bigamy.}-By Archdeacon Paley, after alluding to the 10 Geo. 4, c. 31, s. 26, it is enacted, " That if equality in the number of males and females any person being married, shall marry any born into the world, and the indication of other person during the life of the former the Divine will by the creation at first of husband or wife, whether the second mar. only one woman to one man, observes, “Po. riage shall have taken place in Ireland or lygamy not only violates the constitution of elsewhere, every such offender shall be guilty nature, and the apparent design of the Deity, of felony, and being convicted thereof shall but produces to the parties themselves, and be liable to be transported beyond the seas to the public, the following bad effects; con- for the term of seven years, or to be impris. tests and jealousies amongst the wives of the oned, with or without hard labour, in the same husband; distracted affections, or the common gaol or house of correction, for any loss of all affection in the husband himself; term not exceeding two years, and any such a voluptuousness in the rich, which dissolves offence may be dealt with, inquired of, tried, the vigour of their intellectual as well as determined, and punished in the county active faculties, producing that indolence and wbere the offender shall be apprehended or inbecility both of mind and body, which be in custody, as if the offence had been have long characterised the nations of the actually committed in that county : Provided East; the abasement of one-half of the hu- always, that nothing herein contained shall man species, who, in countries where polyg- extend to any second marriage contracted amy obtains, are degraded into mere instru. out of Ireland by any other than a subject of ments of physical pleasure to the other half; his majesty, or to any person marrying a neglect of children; and the manifold, and second time whose husband or wife shall sometimes unnatural mischiefs, which arise have been continually absent from such per. from a scarcity of women. To compensate son for the space of seven years then last for these evils, polygamy does not offer a sin. past, and shall not have been known by such gle advantage."-Paley's Moral and Political person to be living within that time, or shall Philosophy, B. 3, part 3, ch. 6.
extend to any person who at the time of such (a) Hertius de Matrim. Putat.
second marriage shall have been divorced (b) See 1 Burge on For. Law, 152. from the bond of the first marriage, or to any (C) Ante, pp. 89, 90.
person whose marriage shall have been de(d) 4 BI. Comm. 163, n. 5. See Bac. clared void by the sentence of any court of Abr. tit. Bigamy; Bura's Eccl. L. tit. Big competent jurisdiction.”