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a British mi

riages solem

the validity of marriages, solemnized by a minister of the church of chapel, &c. of England, in the chapel or house of any British ambassador or mi

nister residing within the country to the court of which he is nister, or of a accredited, or in the chapel belonging to any British factory abroad, British factory, or in the house of any British subject residing at such factory, as or in the army abroad. well as from any possibility of doubt concerning the validity of

marriages solemnized within the British lines by any chaplain or officer, or other person, officiating under the orders of the commanding officer of a British army serving abroad : and then enacts, that “all such marriages shall be deemed and held to be as valid “ in law as if the same had been solemnized within his Majesty's “ dominions, with a due observance of all forms required by law.” But there is a proviso that this act shall not confirm, or impair, or affect the validity of any marriages solemnized beyond the seas, save and except such as are solemnized as herein specified and

recited. (a) Marriages in Marriages in the colony and dependencies of Newfoundland are Newfoundland. especially regulated by the statute 5 Geo. 4. c. 68. which repeals a

former statute, 57 Geo. 3. c. 51. upon the same subject. .

Though the first marriage may be abroad, the offence is not cognizable here if the second marriage, which makes the offence, were abroad. The question was moved to Kelyng, C. J. at the Old Bailey, whether, if a man marry one wife in France, and a second in England, he might be indicted for this in England; and he took the difference that if the second marriage, which makes the felony, were in England, the offender might be indicted and tried here; but otherwise if the second marriage were abroad; because felonies in another kingdom are not by the common law triable here in

England. (b) The marriage

It was formerly held that if an idiot contracted matrimony, it of lunatics

was good and should bind him : but modern resolutions appear to have proceeded upon the more reasonable doctrine of the civil law, by determining that the marriage of a lunatic, not being in a lucid interval, is absolutely void. And as it might be difficult to prove the exact state of the mind of the party at the actual celebration of the nuptials, the statute 15 Geo. 2. c. 30. has provided that if persons found lunatics under a commission, or committed to the care of trustees by any act of Parliament, marry before they are declared of sound mind by the lord chancellor, or the majority of

such trustees, the marriage shall be totally void. (s) Marriage by Upon indictments for bigamy it has been heid not to be sufireputation not cient to prove a marriage by reputation, but that either some per

son present at the marriage must be called, or the original register, or an examined copy of it, be produced. (1) The marriage act, 4 Geo. 4. e. 76. s. 28. requires that marriages shall be solemnized in the presence of two or more credible witnesses, besides the minister who shall celebrate the same, and that it shall be entered in the register; in which entry it shall be expressed, that the marriage was celebrated by banns or licence, and with consent, as the case may be, and be signed by the minister and parties married, (a) S. 2.

(1) Morris v. Miller, 4 Burr. 2057. (6) Kel. 79.

Birt v. Barlow, Dougl. 162. (8) i Blac. Com. 438, 439.

void.

and attested by two witnesses. But, 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 the 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 bell-ringers were paid by them for ringing for the wedding, or the like. (w) And it was held that if the marriages were proved by a person present at them, it was not necessary to prove the registration, or licence, or banns. The prisoner was indicted for marrying Ann Epton, whilst Jane, his former wife, was living : each marriage was proved by a witness who was present at the ceremony; and it appeared that at the first marriage the prisoner went by the name of Allison, and at the second by the name of Wilkinson. Chambre, J. doubted whether the evidence was sufficient without proof of the registration of either marriage, or of any licence, or publication of banns : but the Judges held that it was. (a)

How far the acknowledgment of the defendant upon the subject Hor far the of his marriage is sufficient evidence of the fact may admit of some acknowledgdoubt. In one case it was held, that proof of the prisoner's co

defendant is habiting with and acknowledging himself married to a former wife evidence. then living, such assertion being backed by his producing to the witness a copy of a proceeding

in a Scotch court against him and his wife for having contracted the marriage improperly, (the marriage, however, being still good according to that law), was sufficient evidence of the first marriage; and upon such evidence, together with due proof of the second marriage, the prisoner was convicted. The point being reserved for the opinion of the Judges, all of them (with the exception of Perryn, B. and Buller, J. who were absent,) held the conviction proper. Two of them observed that this did not rest upon cohabitation and bare acknowledgment; for the defendant had backed his assertion by the production of the copy of the proceeding : but some of the Judges thought that the acknowledgment alone would have been sufficient, and that the paper produced in evidence was only a confirmation of such acknowledgment. (*)

After proof of the first marriage the second wife may be a wit- The true wise ness : but it is clear that the first and true wife cannot be admitted cannot be a to give evidence against her husband. (y)

ment of the

witness.

(w) 1 East. P. C. c. 12. s. 11. p. 472. circumstances be entitled to little or Bull. N. P. 27.

no weight; for such acknowledgments (a) Rex v. Allison, East. T. 1806. made without consideration of the MS. Bayley, J. and Russ. and Ry. 109. consequences, and palpably for other

(1) Truman's case, Nottingham Spr. purposes at the time, are scarcely deAssiz. 1795, decided upon by the serving of that name in the sense in Judges in East. T. 1795, MS. Jud. 1 which acknowledgments are received East. P. C. c. 12. s. 10. p. 470, 471. as evidence; more especially if made where see some remarks as to the ad- before the second marriage, or upon mission of a bare acknowledgment in occasions when in truth they cannot evidence in a case of this nature. That be said to be to the party's own preit may be difficult to say that it is not judice, nor so conceived by him at the evidence to go to a jury: but that it time. must be admitted that it may under (y) i Hale 693. 1 East. P. C. c. 12.

Punishment. Though the statute 1 Jac. 1. c. 11. enacts, that persons offending

against it shall suffer death as in cases of felony, clergy is not thereby taken away; and the punishment for bigamy by the 18th Eliz, c. 7. s. 2, 3. was burning in the hand and imprisonment not exceeding a year. (2) But the statute 35 Geo. 3. c. 67. s. 1., reciting that the punishment of persons convicted under the act of 1 Jac. 1. c. 11. had not proved effectual, enacts, “ that if any per“son or persons within his Majesty's dominions of England and “ Wales, being married, or which hereafter shall marry, do, at any “ time from and after the passing of this act, marry any person or

persons, the former husband or wife being alive, and shall be in “ due manner convicted thereof under the said act, shall be sub“ject and liable to the same penalties, pains, and punishments, as,

“ by the laws now in force, persons are subject and liable to who Persons trans- “ are convicted of grand or petit larceny.” By the second section ported and

of this statute any person ordered to be transported by virtue of returning, felony without the act, and being afterwards at large within Great Britain, without clergy. lawful cause, before the expiration of the term, is declared to be

guilty of felony, and made liable to suffer death without benefit of clergy. And (by s. 3.) the trial for such offence may be in the county where such person was convicted and ordered to be transported, or in the county, within England and Wales, where such person shall be apprehended: and, in the latter case, provision is made for certifying a transcript of the former proceedings as evidence upon the trial.

s. 9. p. 469. and i Hawk. c. 42. s. 8. Feb. Cess. 1786, is cited.
where it is said that this rule has been (2) And by 19 Geo. 3. c. 74. s. 3. a
so strictly taken that even an affidavit moderate fine or whipping in the man-
to postpone the trial made by the first ner therein specified may be substi-
wife has been rejected, and Old Bailey, tuled for the burning.

CHAPTER THE TWENTY-FOURTH.

OF LIBEL AND INDICTABLE SLANDER,

It appears to be well settled that publications blaspheming God, or

What publicaturning the doctrines of the Christian religion to contempt and tions in generidicule, may be made the subject of indictment; and it is now ral are libelfully established, though some doubt seems formerly to have been lous. entertained upon the subject, that such immodeșt and immoral publications as tend to corrupt the mind, and to destroy the love of decency, morality, and good order, are also offences at common law. (a) It is also a misdemeanor wantonly to defame or indecorously to calumniate that æconomy, order, and constitution of things which make up the general system of the law and government of the country. (b) And it is especially criminal to degrade or calumniate the person and character of the sovereign, and the administration of his government by his officers and ministers of state, (c) or the administration of justice by his Judges. (d) And the same policy which prohibits seditious comments on the king's conduct and government extends, on the same grounds, to similar reflections on the proceedings of the two houses of Parliament. (e) Such publications also as tend to cause animosities between this country and any foreign state, by the personal abuse of the sovereign of such state, his ambassadors, or other public ministers, may be treated as libels. (f) With respect to libels upon individuals, they have been defined to be malicious defamations, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt, and ridicule. (g)

Upon some of these subjects a publication by slander, or words or slanderous spoken only, though not properly a libel, (1) may be the subject of words. criminal proceeding, as will be shewn in the course of the Chapter,

(a) See the cases collected in Star- 4 Bac. Abr. Libel, p. 449.; and see as to kie on Lib. 486 to 504.

libel by a picture, a late case, Du Bost (b) Holt on Lib. 82.

v. Beresford, 2 Campb. 511. (c) Rex v. Lambert and Perry, 2 (h) A libel is termed Libellus famo. Campb. 398.

sus seu infamatoria scriptura, and has (d) Starkie on Lib. 532.

been usually treated of as scandal (e) Starkie on Lib. 535.

wrillen or expressed by symbols. Lamb. i) Rex v. Peltier, Holt. on Lib. 78. Sax. Law, 64. Bract. lib. 3. c. 30. 3 Rex v. D'Eon, 1 Blac. R. 517.

Inst. 174. 5 Co. 125. i Lord Raym. (5) I Hawk, P. C. c. 73. s. 1, 2, 3, 7. 416. 2 Salk. 417, 418. Libel may be VOL. I.

P

Of the mode A libel may be as well by descriptions and circumlocutions as in of expression.

express terms; therefore scandal conveyed by way of allegory or irony amounts to a libel. As where a writing, in a taunting manner, reckoning up several acts of public charity done by a person, said, “ You will not play the Jew, nor the hypocrite,” and then proceeded, in a strain of ridicule, to insinuate that what the person did was owing to his vain glory. Or where a publication, pretending to recommend to a person the characters of several great men for his imitation, instead of taking notice of what great men are generally esteemed famous for, selected such qualities as their enemies accuse them of not possessing ; (as by proposing such a one to be imitated for his courage who was known to be a great statesman but no soldier, and another to be imitated for his learning who was known to be a great general but no scholar) such a publication being as well understood to mean only to upbraid the parties with the want of these qualities as if it had done so directly and expressly. (i) And, upon the same ground, not only an allegory but a publication in hieroglyphics, or a rebus or anagram, which are still more difficult to be understood, may be a libel ; and a Court, notwithstanding its obscurity and perplexity, shall be allowed to judge of its meaning, as well as other persons. (k) And it is now well established that slanderous words must be understood by the Court in the same sense as the rest of mankind would ordinarily understand them. (1) Formerly it was the practice to say that words were to be taken in the more lenient sense; but that doctrine is now exploded: they are not to be taken in the more lenient or more severe sense ; but in the sense which fairly

belongs to them, and which they were intended to convey: (m) Name of the

Upon the same principles it has been resolved that a defamatory person libelled in blanks.

writing, expressing only one or two letters of a name, in such a
manner that from what goes before, and follows after, it must
needs be understood to signify a particular person, in the plain,
obvious, and natural construction of the whole, and would be non-
sense if strained to any other meaning, is as properly a libel as if
it had expressed the whole name at large; for it brings the utmost
contempt upon the law to suffer its justice to be eluded by such
trifling evasions; and it is a ridiculous absurdity to say that a
said to be a technical word, deriving licacy forbad him from bringing a
its meaning rather from its use than its “ direct charge—but it was a male
etymology. “There is no other name “child who complained to him ;” and
“but that of libel applicable to the these words were understood to mean
“offence of libelling; and we know a charge of unnatural practices.
“ the offence specifically by that name, (m) By Lord Ellenborough, C. J. in

as we know the offences of horse- Rex v. Lambert and Perry, 2 Campb.

stealing, forgery, &c. by the names 403. And in a case of libcl, Rex v. “ which ihe law has annexed to them.” Watson and others, 2 T. R. 206, BulBy Lord Camden, in Rex v. Wilkes, 2 ler, J. said, “Upon occasions of this Wils. 121.

“sort I have never adopted any other (i) 1 Hawk. P. C. c. 73. s. 4. 4 Bac. "rule than that which has been freAbr. Libel, (A) 3. p. 453.

" quently repeated by Lord Mansfield (k) Holt on Libel, 235, 236. “to juries, desiring them to read the

(1) Woolnoth v. Meadows, 5 East. paper stated to be a libel as men of 463. In this case the defendant had “common understanding, and say said of the plaintiff, " that his charac- " whether in their minds it conveys the “ter was infamous--that he would be “idea imputed.” “ disgraceful to any society—that de

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