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the repealed statutes, are worthy of observation. The taking alone did not constitute the offence under the repealed statute, and it was necessary that the woman taken away should have been married or defiled by the wrong doer, or by some others with his consent.(p)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aver that the taking was with an intention to marry or defile, although such an averment was not necessary under the repealed statute.(q)

It was necessary to set forth in an indictment under the repealed statute, that the woman taken away had lands or goods, or was an heir-apparent, and that the taking was against her will, and also that she was married or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It was held, that if the first taking away of a woman was forcible, the offence was complete, under the repealed statute, 3 Hen. 7, c. 2, that the offence was not purged by the subsequent compliance of the woman and consent to the marriage, (s) on the ground that an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Under the repealed statute, if the forcible abduction was confined to one county and the marriage was solemnized by *con[ *219 ] sent in another, the defendant could not be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.(t) 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.(v)

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 Rep. 100.

(9) Cro. Car. 488. See 1 Russ. C. L. 570, 571; Add. p. xiv. 2d ed.

(r) 1 Hawk. P. C. c. 41, s. 4 : 1 Hale, 400; 4 Bl. Comm. 208.

(8) Per Holt, C. J., Swendsen's case, 14 How. St. Tr. 559; Rex v. Lockhart, before Lawrence, J., Oxford Spring Assizes, 1804,

cited ibid. 596, n. See 7 Mod. 102; Hawk. P. C., Book 1, c. 41, s. 8; East, P. C. ch. 11,. s. 4.

(t) Rex v. Gordon, 1 Russ. C. L. 572; Add. p. xiv. 2d ed.

(u) 1 Hawk. P. C. c. 41, s. 7; Cro, Car.

485.

(v) Rex v. Brown, 1 Ventr. 243.
(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, (a) or the prisoner,(y) for she is not legally his wife, a contract obtained by force having no obligation in law. (2) It has been queslaw.(z) tioned 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
1 East, P. C. 453; 3 Chit. C. L. 818.
(x) Gilb. Ev. 120; 1 Hale, P. C. 301, 302:
2 Hawk. P. C. c. 46, s. 78.

(y) Rex v. Perry, cited in Rex v. Serjeant, 1 Ry. & M. 354.

(z) Gilb. Ev. 120; 1 Hale, P. C. 302; Bull. N. P. 286.

(a) 1 Halc's P. C. 302.

(b) 4 Bl. Com. 209; 1 East, P. C. c. 11, 8.5; 1 Russ. C. L. 577, 2d ed.

(c) Lancaster Spring Assizes, 1827. See the trial, published by Murray, ante, pp. 214 -216.

(d) See 2 Russ. C. L. 605, 2d ed.

(e) Abduction of an Unmarried Girl, under Eighteen Years of Age, in Ireland.]— By 10 Geo. 4, c. 34, sect. 23, it is enacted, "that when any unmarried girl under the age of eighteen years shall have any interest, whether legal or equitable, present or future, absolute, conditional, or contingent in any real or personal estate, or shall be an heiress presumptive, or next of kin to any one having such interest, if any person shall fraudulently allure, take or convey away, or cause to be allured, taken or conveyed away, such girl, 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, and shall contract matrimony with her or shall defile her, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to such imprisonment, not exceeding the term of three years, as the court shall award, and shall be incapable of taking any estate or interest legal or equitable, in any real or personal property of such girl; and such property shall, upon such conviction, be vested from the time of such marriage in such trustees as the lord chancellor, lord keeper, or commissioners for the custody of the great seal in Ireland shall appoint, for the sole and separate use of such girl, in the like manner as if such marriage had not taken place."

Abduction of an Unmarried Girl under Sixteen Years in Ireland.]-The 24th section enacts," That if any person shall unlawfully take, or cause to be taken, any unmar. ried girl 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

*The taking away a nutural daughter, under sixteen [ *221 ] 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 heiress.(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.(7) 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 persona, as when a person intending 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 defect of consent in the party contracting.(n) No advantage can be taken of such deceit by the person by whom it is practised.

Another species of error which by the canon law [ *222 ] 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.(o)

The third species is error fortunæ, as when a man intending to marry a rich wife, 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

be liable to suffer such punishment by fine or imprisonment, or by both, as the court shall award."

(f) Rex v. Cornforth, 2 Strange, 1162; 1 Hawk. P. C. c. 41, s. 14; Rex v. Sweeting, 1 East, P. C. c. 11, s. 6, p. 457.

(g) Ratcliffe's case, 3 Rep. 39.

(h) Hicks v. Gore, 1 Mod. 84; 1 Hawk. P. C. c. 41, s. 11. See 1 East, P. C. c. 11, s. 6, p. 457.

(i) Calthorpe v. Axtell, 3 Mod. 169.

(k) See 1 East, P. C. c. 11, s. 6, p. 457. (1) Rex v. Twisleton, 1 Lev. 257; 1 Sid. 387; 2 Keb. 32; 1 Hawk. P. C. c. 41, s. 10.

(m) Rex v. Moor, 2 Mod. 128; 2 Lev. 179; 1 Freem. 444; 3 Keb. 708.

(n) Sec Sanchez, lib. 7, tit. 18, No. 11. X. 4. 1, 25; D. 24, 4, 1.

19.

(0) X. 4, 9, 2. See Sanchez, lib. 7, Disp.

(p) X. 4, 1, 26.

BIGAMY.

of mean parentage.(9) But according to the opinion of the canon lawyers, this 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)

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 [ *223 ] uses due caution in a *matter in which his happiness for life is so materially involved, and it makes no provision for the relief of a blind credulity, however it may have been. produced.(t)

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.(x)

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 adopted and enforced by the codes of all civilized countries.(2)

(2) 39 Q. 1, 1.

(r) Ayliffe's Parer. 362, 363. See Sanchez, lib. 7, Disp. 18, No. 170.

(s) Ewing v. Wheatley, 2 Hagg. Cons. R. 182, 183.

(t) Wakefield v. Mackay, 1 Phill. R. 137.
(u) Heffer v. Heffer, 3 Maule & S. 265.
(x) See ante, p. 89.

(y) 2 Hagg. C. R. 129; 1 Bl. C. 436; 4 B. C. 163; Pride v. Earls of Bath and Montague, 1 Salk. 121; Perk. S. S. 304, 305; Riddlesden v. Wogan, Cro. Eliz. 857; Com. Dig. Baron & Feme, (B. 6,) Bastard (A.;) 1 Roll. Abr. 340, 1.13; Bro. Abr. tit. Bastardy, pl. 8.

(z) By the civil law if the husband or
wife had been captive, and had continued in
captivity for 5 years, a second marriage was
legalized.-"
"Sin autem in incerto cst, an

Q 2

vivus apud hostes teneatur, vel morte præventus est, tunc si quinquennium a tempore cap. tivitatis excesserit, licentiam habet mulier ad alias migrare nuptias; ita tamen, ut bonâ gratiâ dissolutum videatur pristinum matrimonium, et unusquisque suum jus habeat imminutum. Eodem jure et in marito in civitate degente et uxore captiva observando."-Dig. lib. 24, tit. 2, 1. 6.

Among modern civilized nations, polygamy has scarce ever been legalized, not even in Muscovy; Charlemagne, at that early period punished it as adultery. It is remarkable that the Mahometans at present, though they practise it themselves, are said to forbid it to the Jews."-1 Browne's Civil Law, 20; Dr. Madan's Attempt to defend Polygamy.

Successive polygamy, that is, a subsequent

*A marriage may be contracted in good faith, and in [*224 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,(f) it is enacted [ *225 ] that if any person, being married, shall marry *any other person during the life of the former husband or wife,

marriage after the death of the first consort, was esteemed indecorous, but not forbidden by the canon law.

Archdeacon Paley, after alluding to the equality in the number of males and females born into the world, and the indication of the Divine will by the creation at first of only one woman to one man, observes, "Polygamy not only violates the constitution of nature, and the apparent design of the Deity, but produces to the parties themselves, and to the public, the following bad effects; contests and jealousies amongst the wives of the same husband; distracted affections, or the loss of all affection in the husband himself; a voluptuousness in the rich, which dissolves the vigour of their intellectual as well as active faculties, producing that indolence and imbecility both of mind and body, which have long characterised the nations of the East; the abasement of one-half of the human species, who, in countries where polygamy obtains, are degraded into mere instruments of physical pleasure to the other half; neglect of children; and the manifold, and sometimes unnatural mischiefs, which arise from a scarcity of women. To compensate for these evils, polygamy does not offer a single advantage."-Paley's Moral and Political Philosophy, B. 3, part 3, ch. 6.

(a) Hertius de Matrim. Putat.
(b) See 1 Burge on For. Law, 152.
(c) Ante, pp. 89, 90.

(d) 4 Bl. Comm. 163, n. 5. See Bac. Abr. tit. Bigamy; Bura's Eccl. L. tit. Big.

amy, Polygamy.

(e) Stat. 9 Geo. 4, c. 31, s. 1.

(f) Irish Statute against Bigamy.]-By 10 Geo. 4, c. 31, s. 26, it is enacted, "That if any person being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in Ireland or elsewhere, every such offender shall be guilty of felony, and being convicted thereof shall be liable to be transported beyond the seas for the term of seven years, or to be impris oned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years, and any such offence may be dealt with, inquired of, tried, determined, and punished in the county where the offender shall be apprehended or be in custody, as if the offence had been actually committed in that county: Provided always, that nothing herein contained shall extend to any second marriage contracted out of Ireland by any other than a subject of his majesty, or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who at the time of such second marriage shall have been divorced from the bond of the first marriage, or to any person whose marriage shall have been declared void by the sentence of any court of competent jurisdiction."

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