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band or wife

for seven

"whose husband or wife shall be continually remaining beyond shall be absent the seas by the space of seven years together; or whose husband 66 or wife shall absent him or herself, the one from the other, by the space of seven years together, in any parts within his Majesty's "dominions, the one of them not knowing the other to be living "within that time."

years.

Sect. 3. ex

cepts from the

statute persons divorced, those whose

former mar

riage has been

declared void, and those mar

ried within age

of consent.

Construction

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66

And the third section provides, "that this act, nor any thing "herein contained, shall extend to any person or persons that are or shall be at the time of such marriage divorced by any sentence "in the ecclesiastical court; or to any person or persons where "the former marriage shall be by sentence in the ecclesiastical court declared to be void and of no effect; nor to any person or persons for or by reason of any former marriage had or made within age of consent." (c)

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In the construction of this statute, it has been holden, that if a of the statute. Woman marries a husband in Ireland, and afterwards, such husband still living, marries another husband in England, it is within the But that if she marries a husband in England, and afterwards, such husband still living, marries another husband in Ireland, it is not within the act: on the ground that the second marriage, which alone constitutes the offence, is a fact done within another jurisdiction; and, though inquirable here for some purposes, like all transitory acts, is not cognizable as a crime by the rule of the common law. (d) In another case it was ruled, that if A. takes B. to husband in Holland, and then, in Holland, takes C. to husband living B., and then B. dies, and then A. living C. marres D., this is not marrying a second husband, the former being alive; the marriage to C. living B. being simply void. But if B. had been living, it would have been felony to have married D. in England. (e)

Construction of the exceptions in the statute.

First excep tion-Where husband or

The provisoes in the second and third sections of the statute contain exceptions in respect of five cases in which a second marriage is no felony within the statute. The first exception is that the statute shall not extend "to any person or persons whose hus"band or wife shall be continually remaining beyond the seas by "the space of seven years together;" upon which the construction

(c) There is a fourth section, providing that attainder shall not make corruption of blood, loss of dower, or disinherison of heirs.

(d) 1 Hale 692, 693. 1 East. P. C. c. 12. s. 2. p. 465. Hawkins (B. I. c. 44. s. 7.) doubts as to the last point, and refers to the words in the latter part of section 1. of the statute "that "the parties so offending shall receive "such or the like proceeding, &c. in "such county where such person or persons shall be apprehended, as if "the offence had been committed in such "county where such person or persons "shall be taken or apprehended." But upon this Mr. East says, "I cannot "think that this provision, which is to "be found in other statutes, (vide the

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a positive enactment for that pur"pose, any act be cognizable as an "offence against the law of England, "which was committed out of the ju"risdiction of that law. Besides that "the very words of the enacting clause "in grammatical construction confine "the operation of it to persons who "being married, shall, within England "and Wales, marry any other." The same doubt, however, appears in Kel. 80.

(e) Lady Madison's case, 1 Hale 693.

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seas for seven

,,husband or

seven years, and not known

Third excep

has been that it will apply though the party in England have wife shall be notice that the other is living. (f) The second exception is that it beyond the shall not extend to any person "whose husband or wife shall ab- years. "sent him or herself, the one from the other, by the space of seven Second excepyears together, in any parts within his Majesty's dominions, the tion-Where "one of them not knowing the other to be living within that time." wife shall be Here, by the express words of the clause, the party marrying again absent for must have no knowledge of the former husband or wife being alive. But the obligation of a party to use reasonable diligence to to be living. inform himself of the fact, and the question whether if he neglect or refuse to avail himself of palpable means of acquiring such information, he will stand excused, are points which do not appear to be settled. (g) With respect to the words in this second clause "within his Majesty's dominions," Lord Hale says that they must, in favorem vitæ, be intended to mean within England, Wales, or Scotland, in order to make both clauses consistent. (h) The third exception provides that the act shall not extend "to any person or tion-Divorce. 66 persons that are, or shall be at the time of such marriage, divorced by any sentence in the ecclesiastical court;" upon which it has been held, in respect of the generality of the words, that the clause applies as well to a divorce a mensa et thoro, as to a divorce a vinculo matrimonii: and, though in one case much doubted, (i) the point appears to be so settled. (k) And if there be a divorce a vinculo matrimonii, and an appeal by one of the parties, though this suspends the sentence, and may possibly repeal it, yet a marriage pending that appeal will be aided by this exception. (1) In a late case the question arose, whether a divorce by the commissary or consistorial court of Scotland would operate so as to excuse a person, who, having been married in England, had been divorced by that court, and had then married again in England, from the penalties of bigamy. And, from the decision of the Judges, it appears, that, if the first marriage has taken place in England, it will not be a defence to prove a divorce a vinculo matrimonii before the second marriage, if such divorce were out of England; unless the divorce were upon a ground, which, by the law of England, would warrant such a divorce: the divorces and sentences referred to in the third section being divorces and sentences of the ecclesiastical courts within the limits to which the statute 1 Jac. 1. c. 11. applies.

(f) 1 Hale 693. 3 Inst. 88. 4 Blac. Com. 164. This is remarked upon as an extraordinary provision in 1 East. P. C. c. 12. s. 3. p. 466.

(g) See 1 East. P. C. c. 12. s. 4. p. 467. where Mr. East says that they are questions which he does not find any where touched upon; but which seem worthy of mature consideration.

(h) 1 Hale 693. where he says also, "however the isle of Wight is not be"yond the sea within the first clause, "because infra corpus comitatus Southampton: so for Scilly, Lundy. Quære "of Guernsey and Jersey."

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(1) Porter's case, Cro. Čar. 461.where the divorce was causa sævitiæ.

(k) 1 Hale 694. 3 Inst. 89. 1 Hawk. P. C. c. 42. s. 5. 4 Blac. Com. 164. Middleton's case, Old Bailey, 14 Car. 2. Kel. 27. And see 1 East. P. C. c. 12. s. 5. p. 467. where it is said that this construction prevails, though it must be admitted to be entirely beside the reason and justice of the exception; letting in the very mischief intended to be provided against by the statute.

(1) 3 Inst. 89. 1 Hale 694, citing Co. P. C. cap. 27. p. 89. and stating further that if the sentence of divorce be repealed, a marriage afterwards is not aided by the exception, though there was once a divorce.

tion-Sentence in the ecclesiastical

The prisoner Lolley was indicted for bigamy: both his marriages were in England; but before his second marriage his wife had obtained a divorce a vinculo from him, in the commissary court of Scotland. It appeared that he took his wife into Scotland, that she might be induced to institute a suit against him there; and that he cohabited with a prostitute there, for the very purpose of irritating his wife, and furnishing ground for the divorce. A case being reserved and argued, the Judges were unanimous, that no sentence or act of any foreign country or state could dissolve an English marriage a vinculo for grounds on which it was not liable to be dissolved a vinculo in England; and that no divorce of an ecclesiastical court was within the exception in the third section of the statute, unless it was the divorce of a court within the limits to which this statute extends. The Judges gave no opinion upon the husband's conduct, in drawing on his wife to sue for the Fourth excep- divorce, because the jury had not found fraud. (m) The fourth exception is that the act shall not extend "to any person or persons "where the former marriage shall be, by sentence in the eccle"siastical court, declared to be void and of no effect." But it was resolved by all the Judges that a sentence of the spiritual court against a marriage, in a suit of jactitation of marriage, is not conclusive evidence, so as to stop the counsel for the crown from proving the marriage; the sentence having decided on the invalidity of the marriage only collaterally, and not directly. And further, admitting such sentence to be conclusive, yet that the counsel for the crown may avoid the effect of such sentence, by proving it to have been obtained by fraud or collusion. (n) The fifth exception provides that the act shall not extend" to any person or per"sons for or by reason of any former marriage had or made within the age of consent." This age of consent is fourteen years in a man, and twelve years in a woman; (o) and the construction upon the clause has been, that if either of the parties were within such age at the time of the first marriage, not only the one within the age, but the other also who was above it, is entitled to the benefit of the exception. (p) But, in a case of this kind, it seems that if the parties afterwards, when at the age of consent, agree to the

court.

Fifth exception-Where former marriage was had within the age

of consent.

(m) Rex v. Lolley, December, 1812. MS. Bayley, J. and Russ. and Ry. 237. This case is referred to by the Lord Chancellor, and also by Mr. Brougham, in Tovey v. Lindsay, 1 Dow's Rep. 117. And see 5 Ed. Coll. Stat. 348. note (4). The prisoner was sentenced at the Lancaster Spring Ass. 1813, to be transported for seven years; and he was sent on board the Portland hulk at Langtone harbour, where he continued some time; but it is understood he received a pardon before any considerable portion of his sentence was expired. Upon the important subject of the dissolution of marriages, celebrated under the English law, by the consistorial court of Scotland, see a publication of Reports of some recent

Decisions of that Court, by James Fergusson, Esq. Advocate, one of the Judges.

(n) Duchess of Kingston's cas?, Dom. Proc. 16 Geo. 3. 1ĭ St. Tri. 262. 1 Leach 146. 1 Hawk. P. C. c. 42. s. 11. (0) 1 Blac. Coin. 436. Rex v. Jordan, Mich. T. 1802. Russ. and Ry. 48. Post, 192.

(p) 3 Inst. 89. 1 Tale 694. 1 Hawk. P. C. c. 42. s 6. The reason given is that the power of disagreeing to such marriage is equal on both sides. But in a civil light a promise of marriage by an adult to one under age will subject the adult to an action for a breach of such promise. Holt v. Ward, Tr. 5 Geo. 2. cited 1 East. P. C. c. 12. s. 6. p. 468.

marriage, as such agreement would complete the contract, and would indeed be the real marriage, a second marriage would be within the reason and penalties of the act. (g)

It may be observed that if a person marrying again come within any of the three first of these exceptions, though the second marriage is not felony, yet, as before the statute, it is null and void, and the parties will be subject to the censures and punishment of the ecclesiastical courts. (r)

upon the sta

where the

It is directed by the statute that parties offending against it Proceedings "shall receive such and the like proceeding, trial, and execution, tute. Trial in "in such county where such person or persons shall be appre- the county "hended, as if the offence had been committed in such county "where such person or persons shall be taken or apprehended." party is al prehended. This clause has been held to mean the place where the party is imprisoned; (s) and, as it appears from the record itself that he is brought to the bar in the custody of the sheriff, it is doubted whether it is necessary to aver in the indictment that the party was apprehended in the county where the venue is laid. (t) But the provision of the statute is only cumulative, and the party may be indicted where the second marriage was, though he be never apprehended; and so may be cutlawed; for in general where a statute creating a new felony directs that the offender may be tried in the county in which he is apprehended, but contains no negative words, he may be tried in that county in which the offence was committed. (u)

Where the prisoner, having been apprehended for another offence, is detained in the same county for bigamy, the detainer is such an apprehension as will warrant the indicting him in that county. The indictment was for marrying Elizabeth Lane, whilst Mary the prisoner's former wife was living; and it charged that the prisoner was apprehended for the felony aforesaid at the parish of Astley, in the county of Worcester. It appeared that the prisoner was taken up for a larceny; and, whilst in the house of correction for that offence, a bill for bigamy was found against him at the quarter-sessions, upon which that court made an order for his

(g) 4 Blac. Com. 164. 1 East. P. C. 2 Leach 826. It seems, however, to c. 12. s. 6. p. 468.

(r) 4 Blac. Com. 164. note (3). (s) Lord Digby's case, Hutt. 131. Rex v. Jordan, post. 192.

(1) Starkie Crim. Pl. 412. note (b). 3 Chit. Crim. L. 719. notes. But in 1 East. P. C. c. 12. s. 8. p. 469. it is said that where the trial is in the County where the party was apprehended there is an averment in the indictment of that fact. And in.a case at the Old Bailey, in 1798, the court is stated to have held, (upon an objection taken by the prisoner's counsel,) that as the warrant for the prisoner's apprehension had not been produced, and as it had not been proved that the prisoner was apprehended in the county of Middlesex, they had no jurisdiction to try him. Forsyth's case,

be well established that where the ju-
risdiction of the court depends upon
particular circumstances, exclusive of
the offence itself, it is in general un-
necessary to aver them upon the face
of the indictment. Thus though the
common commission of gaol delivery
extends only to prisoners in actual
custody, it need not be averred in the
indictment that the defendant was then
in prison. And where the crown is-
sues a commission to try certain per-
sons in custody before a particular
day, the indictment need not allege
that the defendant was in custody be-
fore that day. See Starkie, 27, 28.
citing Berwick's case. Fost. 10. 12
Mod. 449.

11.

(u)

Hale 694. 3 Inst. 87. Starkie

Of the first marriage.

Former marriage acts.

detainer. At his first marriage he was of the age of twenty only, and he was a bastard; the second marriage was not in Worcestershire. Two points were saved: first, whether the prisoner could be considered as apprehended for this offence in Worcestershire; and, secondly, whether as the statute 1 Jac. 1. c. 11. s. 3. exempts persons where the first marriage was under the age of consent, the age of consent since the marriage act was not to be considered twenty-one. The Judges were against the prisoner upon both points. (v)

A first marriage de facto, subsisting in fact at the time of the second marriage, is sufficient to bring a case within the act, though such first marriage be voidable by reason of consanguinity, affinity, or the like; for it is a marriage in judgment of law until it is avoided. (w) But it has been ruled that though a lawful canonical marriage need not be proved, yet a marriage in fact, (whether regular or not) must be shewn; (2) which it seems must be understood where there is a prima facie evidence of a lawful marriage. (y) In a case where the first marriage, which was with a Roman Catholic woman, was by a Romish priest in England, not according to the ritual of the church of England, and the ceremony was performed in Latin, which the witnesses did not understand, and could not therefore swear that the ceremony of marriage according to the church of Rome was read; it was directed that the defendant should be acquitted. (z) Willes, C. J. who tried him seemed to be of opinion that a marriage by a priest of the church of Rome was a good marriage, (a) if the ceremony according to that church could be proved; namely, the words of the contracting part of it.

The former marriage act, 26 Geo. 2. c. 33. required all marriages to be by banns or licence: and declared that all marriages solemnized in any other place than a church or public chapel (unless by special licence) or solemnized without publication of banns or licence, should be null and void to all intents and purposes. It contained also special provisions as to the publication of banns; and, as to marriages by licence, it provided that all such marriages, where either of the parties, not being a widower or widow, was under the age of twenty-one years, had without the consent of the father of such of the parties so under age (if then living) first had and obtained; or if dead, of the guardian or guardians of the person of the party so under age, lawfully appointed, or one of them; and in case there was no such guardian or guardians, then of the mother (if living and unmarried); or if there was no mother living and unmarried, then of a guardian or guardians of the person appointed by the Court of Chancery; should be absolutely null and void to all intents and purposes whatsoever. (b) But these provisions as to marriages by licence

(v) Rex v. Jordan, Mich. T. 1803,
Russ. & Ry. 48.

(w) 3 Inst. 88.
(a) By Denison, J. on the Norfolk
circuit, referred to by the court in
Morris v. Miller, 1 Blac. R. 632.

(y) Rex v. Brampton, 10 East. 287.
note (b).

(z) Lyon's case, Old Bailey, 1738. 1 East. P. C. c. 12. s. 10. p. 469. citing serjeant Forster's MS.

(a) To this Mr. East (id. ibid.) subjoins a quære; and says that it must at least be understood of the marriage of perons of that communion.

(b) S. 11. By s. 12. provision was

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