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shall be absent for seven
band or wife “whose husband or wife shall be continually remaining beyond
t “ the seas by the space of seven years together; or whose husband years.
“ 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.” Sect. 3. ex. And the third section provides, “that this act, nor any thing cepts from the “ herein contained, shall extend to any person or persons that are statute persons divorced,
1. “ or shall be at the time of such marriage divorced by any sentence those whose “ in the ecclesiastical court; or to any person or persons where former mar- “ the former narriage shall be by sentence in the ecclesiastical riage has been a declared void,
“ court declared to be void and of no effect; nor to any person or and those mar- “ persons for or by reason of any former marriage had or made ried within age 6 within age of consent.” (C) of consent.
. In the construction of this statute, it has been holden, that if a Construction of the statute.
woman marries a husband in Ireland, and afterwards, such husband still living, marries another husband in England, it is within the act. 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
The provisoes in the second and third sections of the statute of the excep- contain exceptions in respect of five cases in which a second martions in the
riage is no felony within the statute. The first exception is that statute.
the statute shall not extend “to any person or persons whose husFirst exception-Where “band or wife shall be continually remaining beyond the seas by husband or “the space of seven years together;" upon which the construction
(c) There is a fourth section, pro. "Black Act, and 10 and 11 W. 3. c. 25. viding that attainder shall not make "for trial in any county here of murcorruption of blood, loss of dower, or “der, &c. committed in Newfounddisinberison of heirs.
"land) is sufficient to take this case • (d) i Hale 692, 693. i East. P. C. “out of the general rule. The quesc. 12, s. 2. p. 465. Hawkins (B. I. c. “tion must still be, whether, without 44. s. 7.) doubts as to the last point, “a positive enactment for that purand refers to the words in the latter “pose, any act be cognizable as an part of section 1. of the statute “ that "offence against the law of England, « the parties so offending shall receive “which was committed out of the ju“such or the like proceeding, &c. in “risdiction of that law. Besides that "such county where such person or “the very words of the enacting clause “ persons shall be apprehended, as if “in grammatical construction confine “ iho offence had been committed in such “the operation of it to persons who "county where such person or persons "being married, shall, within England “ shall be taken or apprehended." But “and Wales, marry any other." The upon this Mr. East says, “I cannot same doubt, however, appears in Kel. " think that this provision, which is to 80. “ be found in other statutes, (vide the (e) Lady Madison's case, 1 Hale 693.
wife shall be
has been that it will apply though the party in England have wife shall be
ot it beyond the notice that the other is living. (f) The second exception is that it 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 excep“ years together, in any parts within his Majesty's dominions, the tion-Where
, husband or “ one of them not knowing the other to be living within that time.” 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 seven years,
and not known alive. But the obligation of a party to use reasonable diligence to to be livin 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 Third exces exception provides that the act shall not extend “ to any person or tion-Divorce. “ persons that are, or shall be at the time of such marriage, di“ vorced 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.(?). 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) i Hale 693. 3 Inst. 88. 4 Blac. (1) i Hale 694. 3 Inst. 89. I Hawk. Com. 164. This is remarked upon as P. C. c. 42, s. 5. 4 Blac. Com. 164. an extraordinary provision in i East. Middleton's case, Old Bailey, 14 Car. P. C. c. 12. S. 3. p. 466.
2. Kel. 27. And see 1 East. P. C. c. (5) See 1 East. P. C. c. 12. S. 4. p. 12. s. 5. p. 467. where it is said that 467. where Mr. East says that they are this construction prevails, though it questions which he does not find any must be admitted to be entirely beside where touched upon ; but which seem the reason and justice of the excepworthy of mature consideration. tion ; letting in the very mischief in
(h) 1 Hale 693, where he says also, tended to be provided against by the “however the isle of Wight is not be statute. “yond the sea within the first clause, () 3 Inst. 89. Hale 694, citing " because infra corpus comitatus South- Co. P. C. cap. 27. p. 89. and stating “ amplon: so for Scilly, Lundy. Quære further that if the sentence of divorce “of Guernsey and Jersey."
be repealed, a marriage afterwards is (0) Porter's case, Cro. Čar. 461.where not aided by the exception, though the divorce was causa sævitiæ.
there was once a divorce.
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 Englund; 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 extion-Sen- ception is that the act shall not extend “ to any person or persons tence in the ecclesiastical
esiastical “where the former marriage shall be, by sentence in the ecclecourt. « 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 Fifth excep- to have been obtained by fraud or collusion. (n) The fifth excep
tion provides that the act shall not extend “ to any person or performer marriage was had “sons for or by reason of any former marriage had or made within within the age “ the age of consent." This age of consent is fourteen years in a of consent.
man, and twelve years in a woman;(0) 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
(m) Rex v. Lolley, December, 1812. Decisions of that Court, by James FerMS. Bayley, J. and Russ. and Ry. 297. gusson, Esq. Advocate, one of the This case is referred to by the Lord Judges. Chancellor, and also by Mr. Brougham, (n) Duchess of Kingston's cas?, in Tovey v. Lindsay, i Dow's Rep. Dom. Proc. 16 Geo. 3. 11 St. Tri. 262. 117. And scc 5 Ed. Coll. Stat. 348. I Leach 146. 1 Hawk. P. C. c.49. soll. note (4). The prisoner was sentenced (0) I Blac. Coin. 436. Rex v. Jorat the Lancaster Spring Ass. 1813, to dan, Mich. T. 1802. Russ. and Ry. be transported for seven years; and he 48. Post, 192. was sent on board the Portland hulk at (p) 3 Inst. 89. Haie 694. Hawk. Langtone harbour, where he continued P. C. c. 42. s 6. The reason given is some time; but it is understood he that the power of disagreeing to such received a pardon before any consi- marriage is equal on both sides. But derable portion of his sentence was ex- in a civil light a promise of marriage pired. Upon the important subject of by au adult to one under age will subthe dissolution of marriages, cele- ject the adult to an action for a breach brated under the English law, by the of such promise. Holt v. Ward, Tr. consistorial court of Scotland, see a 5 Geo. 2. cited i East. P. C. c. 12, s. 6. publication of Reports of some recent 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. (9)
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) It is directed by the statute that parties offending against it Proceedings
upon the sta6 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 the
1 party is ap“ where such person or persons shall be taken or apprehended.”
aPPicucnucu. 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. () 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. East. P.C. 2 Leach 826. It sccms, however, to c. 12. s. 6. p. 468.
be well established that where the ju(r) Blac. Com. 164. note (3). risdiction of the court depends upon
(s) Lord Digby's case, Hutt. 131. particular circumstances, exclusive of Rex v. Jordan, post. 192.
the offence itself, it is in general un(1) Starkie Crim. Pl. 412. note (6). pecessary to aver them upon the face 3 Chit. Crin. L. 719. notes. But in of the indictment. Thus though the 1 East. P. C. c. 12. S. 8. p. 469. it is common commission of gaol delivery said that where the trial is in the extends only to prisoners in actual county where the party was appre custody, it need not be averred in the hended there is an averment in the indictment that the defendant was then indiciment of that fact. And in.a case in prison. And where the crown isat the Old Bailey, in 1798, the court sues a commission to try certain peris stated to have beld, (upon an objec- sons in custody before a particular tion taken by the prisoner's counsel,) day, the indictment need not allege that as the warrant for the prisoner's that the defendant was in custody beapprehension had not been produced, fore that day. See Starkie, 27, 28. and as it had not been proved that citing Berwick's case. Fost. 10. 12 the prisoner was apprehended in the Mod. 449. county of Middlesex, they had no ju- (u) 1 Hale 694. 3 Inst., 87. Starkie risdiction to try him. Forsyth's case, 11.
Of the first marriage.
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; (x) 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. (2) 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 inarriages 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
(u) Rex v. Jordan, Mich. T. 1803, (2) Lyon's case, Old Bailey, 1738. Russ. & Ry. 48.
1 East. P. C. c. 12. s. 10. p. 469. citing (w) 3 Inst. 88.
serjeant Forster's MS. (a*) By Denison, J. on the Norfolk (a) To this Mr. East (id. ibid.) subcircuit, referred to by the court in joins a quære; and says that it must Morris v. Miller, 1 Blac. R. 632. at least be understood of the marriage
(y) Rex v. Brampton, 10 East. 287. of perons of that communion. note (6).
(6) S. II. By s. 12. provision was
Former marriage acts.