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whether the second marriage shall have taken place in England or elsewhere, every such offender, and eyery person counselling, aiding, or abetting such offender, shall be guiliy of felony, and being convicted thereof shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, 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 England 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 former marriage shall have been declared void by the sentence of any court of competent jurisdiction.”
An indictment for bigamy committed in one county, but found by a jury of another county where the prisoner was *apprehended, must contain an averment as to the place or
[ *226 ] county where the prisoner was apprehended. (g)
This statute differs in some important points from the former one, 1 Jac. 1, c. 11, s. 3, under which a person whose consort had been abroad for seven years, though known to be living, might have married again with impunity.(h) And so might a person who had been divorced a mensâ ei thoro.(i) It will be observed, that by the 9 Geo. 4, c. 31, s. 22, the divorce must be from the bond of marriage.
Presumption as to death of former Consort.]—The presuinption of law is in favour of innocence; thus where a woman had married again within the space of twelve months after her husband had left the country, the presumption that she was innocent of the bigamy was held to preponderate over the usual presumption of the continuance of life.(k)
There is no strict presumption of law on questions of fact as to the existence of human life, without reference to accompanying circumstances, as the age or health of the party. If the first consort be shown to have been alive within a short time of the second marriage, the law in favour of innocence cannot presume that the party was not alive at the actual time of the second marriage.
Where upon a question as to the validity of a marriage between A. and C. it appeared that A.'s first wife B. was alive in a distant colony 26 days before the second marriage, it was held that the sessions or jury were justified in finding the second marriage to be void : neither the sessions nor a jury trying an issue as to the validity of
(g) Rer v. Frazer, 1 Mood. C. C. 407. divorce was for cruelty ; 4 Bl. Comm. 464;
(h) 4 BI. Comin. 164; 3 Inst. 88; 1 Hale 1 Russ. C. L. 189, 2d edit. P. C. 693.
(k) Rez v. T'wyning, 2 B. & Ald. 386. (i) Porter's case, Cro. Car. 461, where the
such a marriage being bound to presume the death of B. in favour of the innocence of A. in contracting a second marriage, but may look to the evidence in each particular case.)
Sentence of Ecclesiastical Court.)- Another defence on a charge [ *227 ]
of bigamy is, that the former marriage has been declared
*void by the sentence of a court of competent jurisdiction. A sentence against a marriage in a suit of jactitation is not conclusive evidence against an indictment for bigamy, for such sentence may be impeached by showing that it was obtained by fraud or collusion.(m)
On an indictment for bigamy, where the first marriage is in Eng. land, it is not a valid defence to prove a divorce a vinculo matrimonii out of England before the second marriage, founded on grounds on which a marriage cannot be dissolved a vinculo matrimonii in England.
Lolley having been married in England subsequently went to Scotland, and there procured a divorce, and then returned to England, where he married a second time, his former wife being living, and he was in consequence tried for bigamy. His defence was, that he had been legally divorced in Scotland: but the twelve judges, to whom the case was referred, were unanimously of opinion, that no sentence or act of any foreign country or state could dissolve an English marriage a vinculo matrimonii, for grounds on which it was not liable to be so dissolved in England, and that no divorce of an ecclesiastical court was within the exception in the 3rd section of 1 Jac. 1, c. 11, unless it was the divorce of a court within the limits to which that statute extended.(n)
If a marriage be declared void by an ecclesiastical sentence, and there be an appeal to a higher spiritual tribunal, which by suspending the sentence is a supposed continuation of the marriage, yet one of the parties marrying again does not incur the penalties of the law, although such second marriage is indeed unlawful.(o)
On a trial for bigamy, the registry of the first marriage stated it to be by license generally, without saying by consent of parents or guardians; the prisoner proved that he was an infant at the time, and that his parents were never known to have been in England. This
was held to be prima facie *evidence that the first mar[ *228 )
riage was without consent of parents or guardians, and that the jury might have acquitted the prisoner, if such evidence was unanswered. (p) It seems that on such trial the prisoner ought not to be called on to prove a negative, it being sufficient for the prisoner to prove himself under age at the time of the first marriage, and it then rested with the prosecutor to show that the marriage was with the consent of parents or guardians.(I)
(1) Rer v. Inhabitants of Harborne, 4 See observations on this case in Warrender Nev. & M. 341; 2 Ad. & Ell. 540. See Doe V. Warrender, 2 Clark & Finn. 546–551. d. Knight v. Nepean, 2 Nev. & M. 219; 5 557—559 ; Tovey v. Lindsay, 1 Dow, 118. B. & Ad. 86; Watson v. King, 1 Stark. N. (0) Gibson's Cod. tit. 22, c. 4; 3 Inst. 89 ; P. C. 21.
1 Hale P. C. 694. (m) Duchess of Kingston's cose, 20 How. (p) Rex v. James, R. & R. C. C. 17; 1 St. Tr. 355; I Leach, C. C. 146; 1 East, P. Russ. C. L. 201. C. 468.
(9) Id.; S. P. Rez v. Morton, R. & R. C. (n) Rex v. Lolley, Russ. & Ry.C. C. 237. C. 19, 11.; 1 Russ. C. L. 201.
Where, on an indictment for bigamy, the first marriage was proved to have been by license, and that the party was under age at the time of such marriage, but it did not appear that the marriage was with consent of parents or guardians :—it was held to lie on the part of the prosecutor to prove such consent given.()
The marriage however of a minor by license without the consent required by the 4 Geo. 4, c. 76, s. 16, is valid. (s)
On an indictment for bigamy, if the first marriage was by banns, it is no objection that the parties did not reside in the parish where the banns were published and the marriage celebrated.(i) It seems that assuming a fictitious name upon the second marriage will not prevent the offence from being complete.(u) On an indictment against a man for bigamy, it appeared that for the purpose of concealment the second wife was married by a name by which she had never been known. This was held to be no answer to the charge, although if the first marriage had taken place under such circumstances, that
would have been thereby rendered void.(x) And if the prisoner have I written down the names for the publication of banns, he is precluded
from saying that the woman *was not known by the name he delivered in, and that she was not rightly de
[ *229] scribed by that name in the indictment.(y)
Proof of a former Marriage subsisting.)-The indictment must state the two marriages, and aver that the former consort was alive at the time of the second marriage. In a prosecution for bigamy, although a lawful canonical marriage need not be shown, a marriage de facto subsisting at the time of the second marriage must be proved.(z) A marriage voidable by reason of consanguinity, affinity or the like, is sufficient, for it is a marriage in judgment of law until avoided.(a)
Upon indictments for bigamy, it is not enough to prove a marriage by reputation, but either some person present at the marriage must be called, or the original register, or an examined copy of it, must be produced.() It should seem, however, not to be necessary to prove a compliance with all the requisites of the 28th sect. of 4 Geo. 4, c. 76; for upon a provision nearly similar in the former marriage act, it was held not to be necessary to call one of the subscribing witnesses to the register, in order to prove the identity of the persons married; but that the register or a copy of it, being produced, any evidence which satisfied the jury as to the identity of the parties was sufficient, as if their handwriting to the register were proved, or that the bellringers were paid by them for ringing for the wedding, or the like ;(c) but if the marriages be proved by a person present at them, it is not necessary to prove the registration, or license or banns.(d) It seems
(1) Rex v. Butler, R. & R. C. C. 61; 1 (z) 1 W. Pl. R. 632; 1 East's P. C. 469. Russ. C. L. 202.
(a) 3 Inst. 88; 1 Cast's P. C. 466 ; but (8) Rex v. Birmingham, 2 M. & R. 238; now see stat. 5 & 6 Wm. 4, c. 54, ante, pp. 8 B. & C. 29. See Rex v. Waully, 1 Mood. 155, 156. C. C. 163; Lew. C. C. 23.
(b) Morris v. Miller, 4 Burr. 2057. Birt (1) Rer v. Hind, Russ. & Ry.C. C. 253. v. Barlow, 1 Dougl. 162. (u) Rez v. Allison, Russ. & Ry. C. C. (C) I East P. C. c. 12, s. 11, p. 472. 109.
(d) Rex v. Allison, Ru. & Ry. C. C. 109. (2) Rex v. Penson, 5 C. & P. 412. The want of due publication of banns may (y) Rex v. Edwards, Russ. & Ry. C. C. be shown on the other side ; Standen v. 283.
Standen, Peake, 32.
doubtful how far the acknowledgment alone of the defendant upon the subject of his marriage is sufficient evidence of that fact, unless coupled with circumstances showing a marriage.(e)
After proof of the first marriage the second wife may be a witness; but it is clear that the first and true wife cannot be admitted
to give evidence against her husband, nor to establish [ *230 ]
*the first marriage. (f) But the second wife is competent to prove the marriage, for she is not his wife even de facto.(g)
Jurisdiction of Ecclesiastical Courts.]—It is to be observed, that if a person marrying again come within the two first exceptions in the aci;(h) though the second marriage is not felony, yet it is void, and the parties will be subject to the censures and punishment of the ecclesiastical courts.(i)
In a suit of nullity of marriage, by reason of a former marriage, strict proof of the identity of the parties is requisite. It is a clear rule that the identity must be proved by other testimony than that of the parties themselves, that is, by witnesses who can speak to the facts from their own personal knowledge. This rule is adopted as a guard against imposition, and the danger of a marriage being set aside by collusion between the parties.(k)
Conviction for Bigamy not conclusive in Ecclesiastical Courts.)- As a general rule it seems that a verdict or judgment in a criminal case is not evidence of the fact upon which the judgment was founded in a civil proceeding (1) Thus where the father was acquitted on an indictment for having two wives, it was held that the record was not evidence in a civil case, where the validity of the second marriage was controverted.(m)
Sir John Nicholl said, that, generally speaking, however, he appre[ *231 ]
hended the true rule to be, that a record of conviction
*is evidence of the same fact in a civil cause, only that it is not conclusive evidence. This is the rule to be collected from the following case, as cited by Chief Baron Gilbert :(n) “ If a man has two wives, and be thereof convicted, and dies, and the second wife claims dower, the verdict and conviction cannot be given (i. e. conclusively given) in evidence; but in this case, the writ must go to the bishop; for whether the marriage be lawful or not is the point in controversy, and that is of ecclesiastical jurisdiction, and is not to be decided at common law. But the verdict may be made an exhibit in the cause before the bishop, to induce him to believe there was a former marriage."
(e) Rex v. Truman, 1 Russ. C. L. 207 ; 1 quam contra superinductam ; alias senten. East P. C. c. 12, s. 10, pp. 470, 471.
tia divortii lata contra virum (non vocalà (5) 1 Hale P. C. 693; 1 East P. C. c. 12, superinductå muliere) non valet quoad eam 8. 9, p. 469; 1 Hawk. P. C. c. 42, s. 8; nec ei lis hujusmodi præjudicabit; quod Gregg's case, Sir T. Raymond, 1.
alias faceret, si vocata, et lis predicta contra (g) 1 Hale P. C. 693; Gilb. Ev. 120, 6th utrosque instituta fuisset. Quæ dicta sunt, ed.
de muliere, locum etiam habent, de viro."(h) 9 Geo. 4, c. 31, s. 22, ante 225. Oughton, tit. 193, ss. 4, 5. (i) 4 BI. Comin. 164, n. (3).
(k) Searle v. Price, 2 Hagg. Cons. R. 187; "Si quis solemnizaverit matrimonium Bayard v. Morphew, 2 Phill. R. 321. cum una, et postea convolaverit ad secundas (1) I Starkie on Evid. 219. nuptias; si legitima uxor capit viro suo (m) Gilb. Evid. 35; Bull. N. P. 232, 233. restitui, instituenda est lis, in causa divortii See Boyle v. Boyle, Comberb. 72 ; 3 Mod. a vinculo matrimonii, et restitutionis obse. 164: Hudson v. Robinson, 4 Maule & S. quiorum conjugalium :-Lis tamen est ista 479. instituenda, tam contra superinducentem, (n) Law of Evidence, 28, 6th edit.
It seems, therefore, that if A. be convicted of bigamy by reason of his marriage with C. living B. his first wife, it is still competent to A., on Cés death, to propound his interest as the lawful husband of C. in a suit in the ecclesiastical court, touching the administration of her effects, and to succeed in such suit on proof of the validity of such marriage, notwithstanding bis said conviction for bigamy pleaded and proved.(0)
In a later case the party convicted of bigamy was allowed to plead and prove, in a suit in the ecclesiastical court for nullity of marriage on account of a former subsisting marriage, the invalidity of the first marriage. The court, however, held, that in this case the defence set up was not made out in evidence; but that the defendant's first marriage was valid and subsisting at the time of his marriage de facto with the complainant, and consequently that she was entitled to a sentence of nullity.(p)
On a citation issuing, as in a cause of nullity of marriage by reason of a former marriage, the court will not pronounce a sentence of nullity by reason of an undue publication of banns, the woman being therein described as spinster, the first husband having died subsequent to the publication of the banns but prior to the marriage.(9)
Meaning of Divorce.]—The meaning of the word divorce is separation; its derivation is sufficiently plain from divertere, to turn away. In its most general acceptation it means the complete lawful separation of husband and wife : Divortium a diversitaie mentium dictum est, quia in diversas partes eunt qui distrahunt matrimonium.
A divorce is a lawful separation of husband and wife made before a competent judge on due cognizance had of the cause, and sufficient proof made thereof.(a) According to another definition, it is a senience pronounced by an ecclesiastical judge, whereby a man and a woman formerly married to each other are separated and parted. (b)
(a) Ayl. Parer. 225.
(b) Godol. Abr. 493.