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shewing any particular facts, it is clearly settled that the prosecutor must, before the trial, give the defendant a note of the particular 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 proceed 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)

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 terminer. (1)

of the peace.

Punishment.

Of suing in the name of a fictitious plaintiff.

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 in 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)

In this place may be mentioned another offence of equal malignity and audaciousness; that of suing another in the name of a fictitious plaintiff; either one not in being at all, or one who is 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. (0)

(i) Rex v. Grove, 5 Mod. 18. J'Anson v. Stuart, 1 T. R. per Buller, J. And per Heath, J. in Rex v. Wylie and another, 1 New R. 95.

(k) Goddard v. Smith, 6 Mod. 262. (1) Barnes v. Constantine, Yelv. 46. Cro. Jac. 32. S. C. recognized in Busby v. Watson, 2 Blac. R. 1050. See Rex v. Urlyn, 2 Saund. 308. note (1). In

Hawk. P. C. c. 81. s. 8. there is a quære to this point, as having been ruled differently in Rolle's Reports.

(m) 34 Edw. 3. c. 1. 1 Hawk. P. C. c. 81. s. 14. 1 Bac. Abr. 509, Barralry (C). 4 Blac. Com. 134.

(n) This act was revived and made perpetual by 21 Geo. 2. c. 3. (0) 4 Blac. Com. 134.

CHAPTER THE TWENTY-THIRD.

OF BIGAMY.

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, (b) 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 the offence, enacts, "that if any person or persons within his "Majesty's dominions of England and Wales, being married, or "which hereafter shall marry, do 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 thing therein contained, shall extend to any person or persons

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(a) Bigamy, in its proper signification, is said to mean only being twice married, and not having a plurality of wives at once. According to the canonists, bigamy consisted in marrying two virgins successively, one after the death of the other; or in once marrying a widow. 4 Blac. Com. 163. note b. And see 1 Bac. Abr. 525. Bigamy, in the notes.

(b) This statute adopted and explained a canon of the council of Lyons in 1274, in the time of Pope Gregory X. by which persons guilty of bigamy were omni privilegio clericali nudati et coercioni fori secularis addicti. But the cognizance of the plea of bigamy was declared by statute 18 Edw. 3. st. 3.c.2. to belong to the Court Christian,

like that of bastardy. And by 1 Edw.
6. c. 12. s. 16. bigamy was declared to
be no impediment to the claim of cler-
gy, as it had been taken to be in con-
sequence of the statute 4 Edw. 1. st. 3.
c. 5. See note b. to p. 163, of 4 Blac.
Com. (13th Ed.) But see 5 Evans' Col.
Stat. 347. where it is said that the
enactment in 4 Ed. 1. c. 5. did not re-
late to marriage during the life of a
former husband or wife as being a sub-
stantive felony, but to the excluding
from the privilege of clergy persons
convicted of any other felony who had
been twice married, or who had mar-
ried a widow or widower; which by
the later statute 1 Edw. 6. c. 12. s. 16.
was abrogated.

2 (vulgo 1) Bigamy made Jac. 1. c. 11. felony.

Sect. 2. makes

an exception

where the hus

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

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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 66 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 ried within age within age of consent." (c)

riage has been declared void, and those mar

of consent. Construction

of the statute.

Construction of the exceptions in the statute.

First excep tion-Where husband or

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In the construction of this statute, it has been holden, that if a 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)

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.

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(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

"Black Act, and 10 and 11 W. 3. c. 25. "for trial in any county here of mur"der, &c. committed in Newfound"land) is sufficient to take this case "out of the general rule. The ques"tion must still be, whether, without "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.

husband or

wife shall be

absent for seven years, to be living.

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 seas for seven 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 66 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 must have no knowledge of the former husband or wife being alive. But the obligation of a party to use reasonable diligence to 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) 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 South "ampton: so for Scilly, Lundy. Quære "of Guernsey and Jersey."

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(i) 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 persons 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 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

of consent.

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(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 case, Dom. Proc. 16 Geo. 3. ¡¡ St. Tri. 262. 1 Leach 146. 1 Hawk. P. C. c. 42. s. 11. (0) 1 Blac. Com. 436. Rex v. Jordan, Mich. T. 1802. Russ. and Ry. 48. Post, 192.

(p) 3 Inst. 89. 1 Hale 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.

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