Page images

of the peace.

shewing any particular facts, it is clearly settled that the prose-
cutor must, before the trial, give the defendant a note of the par-
ticular acts of barratry which he intends to prove against him ;
and that, if he omit to do so, the Court will not suffer him to pro-
ceed in the trial of the indictment. (i) And the prosecutor will be
confined to his note of particulars; and will not be at liberty to
give evidence of any other acts of barratry than those which are

therein stated. (K)
Trial may be It has been adjudged that justices of peace, as such, have, by
before justices virtue of the commission of the peace, authority to inquire and

hear this offence, without any special commission of oyer and ter

miner. (1)
Punishment. The punishment for this offence in common persons is by fine

and imprisonment, and binding them to their good behaviour ;
and in persons of any profession relating to the law, a further
punishment by being disabled to practise for the future. (m) And
it may be observed that by 12 Geo. 1. c. 29. s. 4. if any person
convicted of common barratry shall practise as an attorney, solicitor,
or agent, in any suit or action in England, the Judge or Judges of
the Court where such suit or action shall be brought shall, upon
complaint or information, examine the matter in a summary way

open Court; and, if it shall appear that the person complained
of has offended, shall cause such offender to be transported for

seven years. (n) Of suing in In this place may be mentioned another offence of equal maligthe name of nity and audaciousness; that of suing another in the name of a a fictitious

fictitious plaintiff; either one not in being at all, or one who is plaintiff.

ignorant of the suit. This offence, if committed in any of the
king's superior Courts, is left, as a high contempt, to be punished
at their discretion : but in Courts of a lower degree, where the
crime is equally pernicious, but the authority of the Judges not
equally extensive, it is directed by the statute 8 Eliz. c. 2. s. 4. to
be punished by six months' imprisonment, and treble damages to
the party injured. (o)

(i) Rex v. Grove, 5 Mod. 18. J'Anson' Hawk. P. C. c. 81. s. 8. there is a quere
v. Stuart, 1 T. R. per Buller, J. And to this point, as having been ruled dif-
per Heath, J. in Rex v. Wylie and an- ferently in Rolle's Reports.
other, 1 New R. 95.

(m) 34 Edw. 3. c. 1. 1 Hawk. P.C.
(k) Goddard v. Smith, 6 Mod. 262. c. 81. s. 14. 1 Bac. Abr. 509, Barratry

(1) Barnes v. Constantine, Yelv. 46. (C). 4 Blac. Com. 134.
Cro. Jac. 32. S. C. recognized in Busby (n) This act was revived and made
v. Watson, 2 Blac. R. 1050. See Rex perpetual by 21 Geo. 2. c. 3.
v. Urlyn, 2 Saund. 308. note (1). In (0) 4 Blac. Com. 134.


[ocr errors]



The offence of having a plurality of wives at the same time is more correctly denominated polygamy: but, the name bigamy having been more frequently given to it in legal proceedings, it may perhaps be a means of more ready reference to treat of the offence under the latter title. (a) Originally this offence was considered as of ecclesiastical cognizance only; and though the statute 4 Ed. 1. stat. 3. c. 5. treated it as a capital crime, (o) it appears still to have been left of doubtful temporal cognizance, until the statute 1 Jac. 1. c. 11. declared that such offence should be felony.

The first section of this statute, after reciting the mischiefs of 2 (vulgo !) the offence, enacts, “that if any person or persons within his Jac. 1. c. 11.

Bigamy made Majesty's dominions of England and Wales, being married, or felony. “ which hereafter shall



marry any person or persons, the “ former husband or wife being alive: that then every such offence “shall be felony, and the person and persons so offending shall “ suffer death, as in cases of felony; and the party and parties so “ offending shall receive such and the like proceeding, trial, and “ execution, 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 and apprehended.

By the second section it is provided, “ that this act, nor any Sect. 2. makes thing therein contained, shall extend to any person or persons where the hus(a) Bigamy, in its proper significa- like that of bastardy. And by 1 Edw. tion, is said to mean only being twice 6. c. 12. s. 16. bigamy was declared to married, and not having a plurality of be ao impediment to the claim of clerwives at once. According to the ca- gy, as it had been taken to be in connonists, bigamy consisted in marrying sequence of the statute 4 Edw. 1. st. 3. two virgins successively, one after the c. 5. See note b. to p. 163, of 4 Blac. death of the other ; or in once marry. Com. (13th Ed.) But see 5 Evans' Col. ing a widow. 4 Blac. Com. 163. note Stat. 347. where it is said that the 0. And see I Bac. Abr. 525. Bigamy, enactment in 4 Ed. 1. c. 5. did not rein the notes.

late to marriage during the life of a (6) This statute adopted and ex- former husband or wife as being a subplained a canon of the council of Lyons stantive felony, but to the excluding in 1274, in the time of Pope Gregory from the privilege of clergy persons X. by which persons guilty of bigamy convicted of any other felony who had were omni privilegin clericali nudati et been twice married, or who bad marcoercioni fori secularis addicti. But ried a widow or widower ; which by the cognizance of the plea of bigamy the later statute 1 Edw. 6. c. 12. s. 16. was declared by statute 18 Edw. 3. st. was abrogated. 3.c.2. to belong to the Court Cbristian,


Sect. 3. ex

statute per

band or wife “ whose husband or wife shall be continually remaining beyond fba debe absent “ the seas by the space of seven years together; or whose husband

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 56 within that time.”

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 sons divorced,

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 marriage shall be by sentence in the ecclesiastical riage has been a court declared to be void and of no effect; nor to any person or declared void, and those mar- persons for or by reason of any former marriage had or made ried within age “ 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 marriage is no felony within the statute. The first exception is that

the statute shall not extend “to any person or persons whose hustion- Where

“ band or wife shall be continually remaining beyond the seas by husband or “ the space of seven years together;" upon which the construction

tions in the statute,

First excep

[ocr errors]


(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. conimitted in Newfounddisinberison of heirs.

* land) is sufficient to take this case (d) ) Hale 692, 693. | 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 srction 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 the 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.

[ocr errors]

seas for seven

» husband or


Third excep

[ocr errors]

has been that it will apply though the party in England have wife shall be

beyond the notice that the other is living. (8) 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 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 seven years, 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.

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. (1) 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. I. c. 11. applies.

In a

(f) i Hale 693. 3 Inst. 88. 4 Blac. (k) i Hale 694. 3 Inst. 89. i Hawk. Com. 164. This is remarked upon as

P. C. c. 49. 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. (g) 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, (1) 3 Inst. 89. i 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 (1) 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 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 extion-Sentence in the

ception is that the act shall not extend “to any person or persons ecclesiastical

« 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 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

of consent. This

age of consent is fourteen years in a man, and twelve


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 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

Fifth excep

tion- Where

of consent.

(m) Rex v. Lolley, December, 1812. Decisions of that Court, by James Fer.' MS. Bayley, J. and Russ. and Ry. 237. 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 case, in Tovey v. Lindsay, 1 Dow's Rep. Dom. Proc. 16 Geo. 3. Ii St. Tri. 262. 117. And see 5 Ed. Coll. Stat. 348. I Leacb 146. 1 Hawk. P. C. c. 42. s. 11. note (4). The prisoner was sentenced (0) 1 Blac. Com. 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. Hale 694. 1 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 io such received a pardon before any.consi- marriage is equal on both sides. But derable portion of his sentence was ex- ia a civil light a promise of marriage pired. Upon the important subject of by an 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.

« EelmineJätka »