A Treatise on Criminal Law as Applicable to the Dominion of Canada

signable at law.

This enactment conflicts in principle with the 32 Hy. 8, c. 9.

Bigamy. It would seem from the express language of the 32 & 33 Vic., c. 20, s. 58, that it only applies to the case of a second marriage, and that the offence of polygamy, in its ordinary acceptation, is not comprehended within its provisions. Assuming that under this Statute a person guilty of polygamy cannot relieve himself from the penalties attaching to bigamy, it may a question, in the event of a plurality of marriages, to which of them proof should be directed; whether any two of them, or the first and second, or all.

The 4 Ed. 6, Stat. 3, c. 5, and 1 Jac. 1, c 11, may perhaps apply here, except in so far as they are superseded by the Colonial Act.

On trials for bigamy, the guilt or innocence of the defendant depends upon the legality of the first marriage; and before the jury can convict him they must clearly see that a prior legal marriage has in fact taken place (a) It seems that if the marriage is voidable merely, it will suffice to constitute bigamy. (b) It has been held that though the second marriage would have been void, as for consanguinity or the like, the defendant is guilty of bigamy. (c) But the majority of the Judges of the Irish Court of Criminal Appeal have held that to constitute the offence of bigamy, the second marriage must be one which, but for the existence of the previous marriage, would have been a valid marriage. (d) This doctrine has been very materially modified in a late case. (e) It is there laid down that it is the appearing to

(a) Breakey v. Breakey, 2 U. C. Q. B. 353, per Robinson, C. J.

(b) R v. Jacobs, 2 Mood. C. C. 140; Arch. Cr. Pldg. 886.

(d) Reg. v. Fanning, 10 Cox, 411; see also Reg. v. Clarke, ib. 474; Arch. Cr. Pldg. 887.

(e) Reg. v. Allen, infra.

contract a second marriage, and the going through the ceremony which constitutes the crime of bigamy. (a)

Where a person already bound by an existing marriage, goes through a form of marriage known to and recognized by the law as capable of producing a valid marriage, for the purpose of a pretended and fictitious marriage, such person is guilty of bigamy, notwithstanding any special circumstances which, independently of the bigamous character of the marriage, may constitute a legal disability in the parties, or make the form of mar riage resorted to inapplicable to their particular case. The prisoner, having a wife living, went through the ceremony of marriage with another woman, who was within the prohibited degrees of consanguinity, so that the second marriage, even if not bigamous, would have been void under the 5 & 6 Wm. 4, c. 54, s. 2:-Held that the prisoner was guilty of bigamy. (b)

The material enquiry, therefore, in cases of bigamy, is as to the validity of the alleged marriages, and the evidence by which such validity may be established.

Under the Con. Stat. U. C. c. 32, s. 6, a copy of an extract from the register of the marriage produced from the proper custody, if signed and certified in compliance with this clause, is sufficient evidence of the marriage, provided some proof, either direct or presumptive, be given of the identity of the parties. (c)

Evidence of reputation, or the presumption of marriage, arising from long cohabitation, will not suffice on indictments for bigamy, but there must be proof of a marriage in fact, such as the court can judicially hold to be

(a) See Reg. v. Brawn, supra, 144, per Ld. Denman; Reg. v. Penson, 5 C. & P. 412.

(b) Reg. v. Allen, L. R. 1, C. C. R. 367; Reg. v. Fanning, supra, disapproved. (c) Re Hall's Estate, 22 L. J. (Ch.) 177; Ře Porter's Trusts, 25 L. J. (Ch.) 688; Arch. Cr. Pldg. 884.

valid. (a) The admission of the first marriage by the prisoner, unsupported by other testimony, is sufficient to support a conviction for bigamy (b) The prisoner's admission of a prior marriage is evidence that it was lawfully solemnized. (c) The first wife is not admissable as a witness to prove that her marriage with the prisoner was invalid (d); and she cannot be allowed to give evidence either for or against the prisoner. (e) But, after proof of the first marriage, the second wife may be a witness; (f) for then it appears that she is not the legal wife of the prisoner. (g)

On an indictment for bigamy, the witness called to prove the first marriage swore that it was solemnized by a Justice of the Peace, in the State of New York, who had power to marry; but this witness was not a lawyer or inhabitant of the United States, and did not state how the authority was derived, as by written law or otherwise. Although the Court, in their individual capacity, knew that Justices of the Peace had such power in the State of New York, and that the evidence given was correct, yet they held it insufficient (h)

Where the prisoner relies on the first wife's lengthened absence, and his ignorance of her being alive, he must shew enquiries made, and that he had reason to believe her dead, or, at least, could not ascertain where she was, or that she was living, more especially where he has

(a) Reg. v. Smith, 14 U. C. Q. B. 567-8, per Robinson, C. J.; Breakey v. Breakey, 2 U. C. Q. B. 353, per Robinson, C. J.; and see Doe Dem, Wheeler v. M'Williams, 3 U. C. Q. B. 165.

(b) Reg. v. Creamer, 10 L. C. R. 404.

(d) Reg. v. Madden, 14 U. C. Q. B 588; 3 U. C. L. J. 106; Reg. v. Tubbee, 1 U. C. P. R. 103, per Macaulay, C. J.

(e) Reg. v. Bienvenu, 15 L. C. J. 141.

(f) Reg. v. Tubbee, supra, 98.

(g) Reg. v. Madden, supra, 3 U. C. L. J., 106, per Robinson, C. J.

(h) Reg. v. Smith, 14 U. C. Q. B. 565.

deserted her, and this notwithstanding that the first wife has married again. (a)

Upon a trial for bigamy, when it is proved that the prisoner and his first wife have lived apart for the seven years preceding the second marriage, it is incumbent on the prosecution to shew that during that time he was aware of her existence; and, in the absence of such proof, the prisoner is entitled to an acquittal. (b) The ground of the decision in this case was, that the prisoner should not be called upon to prove a negative. (c)

On an indictment for bigamy, it is incumbent on the prosecution to prove to the satisfaction of the jury that the husband or wife, as the case may be, was alive at the date of the second marriage. This is purely a question of fact for the jury to decide on the particular circumstances of the case, and there is no presumption of law either that the party is alive or dead. (d) Therefore, where, on a trial for bigamy, it was proved that the prisoner married A. in 1836, left him in 1843, and married again in 1847. Nothing was heard of A. after the prisoner left him, nor was any evidence given of his age. The Court held that there was no presumption of law either in favour of or against the continuance of A.'s life up to 1847, but that it was a question for the jury, as a matter of fact, whether or not A. was alive at the date of the second marriage. (e) But when the case is brought within the operation of the proviso in the 32 & 33 Vic., c. 20, s. 58, which exempts from criminal liability "any person marrying a second time, whose husband or wife has been continually absent from such person for the

(a) Reg. v. Smith, 14 U. C. Q. B. 565.

(b) Reg. v. Curgerwen, L. R. I, C. C. R. 1; 35 L. J. (M. C.) 58; Reg. v. Bienvenu, 15 L. C. J. 141.

(d) Reg. v. Lumley, L. R. 1 C. C. R. 196; 38 L. J. (M. C.) 86. (e) Ib.

space of seven years, then last past," there is no question for the jury, and the prisoner is exonerated from criminal liability, though the first husband or wife be proved to have been living at the time when the second marriage was contracted. By this proviso, the Legislature sanctions a presumption that a person who has not been heard of for seven years is dead; but the proviso affords no ground for the converse proposition,-namely, that when a person has been seen or heard of within seven years, a presumption arises that he is still living. (a)

The prisoner having a wife living, was married to another woman in the presence of the registrar, describing himself, not as E. R., his true name, but as B. R. There was no evidence to shew that the second wife knew that his christian name was misdescribed:-Held, nevertheless, that the prisoner was guilty of bigamy, for the presumption in favour of marriage clearly imposed the burden of proving the invalidity of the second marriage upon the prisoner. (b)

The Common and Statute Law of England in relation to marriage, as existing at the time of the enactment of the 32 Geo. 3, c. 1, was introduced by this Statute. The Canon Law, so far as it was part of the law of England at that time, was also introduced, with the 26 Geo. 2, c. 33, 25 Hy. 8, c. 22, 28 Hy. 8, c. 7, 28 Hy. 8, c. 16, and 32 Hy. 8, c. 38, so far as they remained in force in England. (c)

Before the 26 Geo. 2, c. 33, clandestine marriages, though not void, were illegal, and subjected the parties to ecclesiastical censure: i. e., all marriages were required to be celebrated in facie ecclesia, and by banns or licence, or if a minor, by consent of parents, otherwise they were

(a) Reg. v. Lumley, L. R. 1 C. C. R. 198, per Lush, J. (b) Reg. v. Rea, L. R., 1 C. C. R. 365.

(c) Hodgins v. M'Neil, 9 U. C. L. J. 126, per Esten, V. C., 9 Grant, 305; Reg. v. Roblin, 21 U. C. Q. B. 357. See 9 U. C. L. J. 1, as to the English mar riage laws when the 32 Geo. 3, c. 1, was passed.

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