the trial of James Ripley and others, March 1815, who were accused of killing two persons, in defence of Mr Robinson's house, against a formidable attack on occasion of the corn bill.1

All those who were present when the proclamation was made are presumed to have heard and understood it; and if they are found in the assembly after the hour, this brings them within the statute, without any proof of their having been there during the intermediate time. Those who shall join themselves to the multitude, however recently, and whether they know of the proclamation having been made or not, must run the risk of any violence being used to suppress the tumult, and this should be in an especial manner recollected by all who, either from ignorance or curiosity, intermingle with such perilous assemblies.3 But, on the other hand, one who was not present when the proclamation was made, cannot be convicted under the clause of the statute of the capital offence, of obstinately remaining during the hour; because it is the wilful holding together during that whole period which constitutes the crime. But if it can be proved that, after joining the mob, he was informed of proclamation having been made some time before, and he still continues with them till the hour has expired; or if he joins after the hour, is then told, or learns, that the hour had expired, and does not go home, he contracts the same guilt as the others, and becomes liable to the same penalty.5

The riot act was passed in aid, not in limitation, of the common law; and therefore every power originally inherent in the magistrates for the preservation of the peace remains in them notwithstanding its enactment. Every magistrate has, both by the Scotch and English law, an inherent power of checking riotous or tumultuous proceedings, by whatever number of persons, the moment they are committed; and for his support in this attempt, he is entitled on the spot to summon the aid of all well disposed subjects, as well before as after proclamation, under the riot act.7 It is in the power of dispersing a tumultuous or menacing assembly, before they have proceeded to any excesses, that the addition to his power by the riot act was made. 1 Hume, i. 436; Russell, i. 266.-2 Hume, i. 436.—3 Ibid.— Ibid.-5 Ibid. 6 Blackstone, b. iv. c. 11; Hume, i. 437.7 Hale, i. 53, 293, 495; Hawkins, i. 158, 159; Foster, 270; Blackstone, b. iv. c. 11; Hume, i. 437.8 Hume, i.

In an indictment for riot, it was held that resolutions passed at a former meeting assembled a short time before in a distant place, but at which the pannel presided, he having also presided at the one in question, was admissible evidence to shew the intent of assembling and attending the meeting in question. And that a copy of these resolutions, delivered by the pannel to the witness, and which corresponded with those which the witness heard read from a written paper, was admissible without producing the original.' It was also held in the same case, where large bodies of men came marching in regular order to the place of assemblage, that it was competent to prove that within two days of the time when it took place, a number of persons were seen drilling before day-break at a place from whence one of their bodies had come to the place of assemblage, and that they ill-treated the persons who saw them, and made them take an oath never to be a King's man again; and that parole evidence of the inscriptions and devices on banners and flags was competent without producing the originals.2 When the question is quo animo a number of persons assembled to drill, declarations made by those assembled and in the act of drilling, and farther declarations or solicitations made by them to others to accompany them, declaratory of their object, are admissible to prove the intent of the assemblage, and, in general, any evidence to shew that the meeting caused alarm and apprehension, and that in consequence thereof information was given to the proper authorities.

CHAPTER XXIV.

OF BIGAMY.

BIGAMY is the wilful contracting of a second marriage when the contracting party knows that the first is still subsisting; and is justly regarded as a serious offence, from the disregard of the prior obligations of the married state which it infers, and the irremediable ruin to the deceived party which it occasions.

1 Hunt's Case; Russell, i. 268.2 Ibid.3 Stark, iii. 1510; Redford v. Birley, 1822 ; Russell, i. 218.

1. By special statute, bigamy is declared punishable. with the pains of perjury, and it is also an offence at common law.

The act 1551, c. 19, enacts, that "Whatsumever person marries twa sindrie wivis, or woman marries twa sindrie husbands, livand together, undivorced lawfully, contrair to the aith and promise maid at the solemnization and contracting of the matrimony, and swa are of the law perjured and infamous, therefore, that the pains of perjuring be execute upon them with all rigour." From these words it appears that it was chiefly the violation of the sacrament and solemn vow or oath contained in marriage which the statute had in view. But it is also, independent of the act, an offence cognizable and punishable, like every other transgression of civil rights, by the common law.2

2. To authorize a charge of bigamy, it is necessary that both marriages shall have been formal and regular.

The most important question in the law of bigamy is, whether both marriages must be by formal celebration, or whether the charge lies though one of them or both has been contracted in that loose and unceremonious fashion which is sustained by the custom of Scotland. In those cases where both the matrimonial connexions were of this ambiguous character, there seems to be no doubt that no prosecution for bigamy can lie; and that a second wife who marries either by promise and copula, courtship and acknowledgment, or habite and repute, takes her chance of a previous matrimonial connexion having been contracted in the same irregular manner. Where the first marriage has been regular, but the second clandestine, the offending party seems entitled to plead, that he truly never did intend to marry at all, but was bent upon a connexion of a different nature, and that the partner of his crime has herself to blame for not having taken those precautions, by proclamation of banns and otherwise, which the law has provided for that very case.4 But in the case of George Story, Dumfries, April 1824, Lord Justice-Clerk Boyle sustained as relevant a charge of bigamy, where the second marriage was a clandestine one, solemnized at Annan after the fashion of that place. In re

5

1 1551, c. 19.-2 Hume, i. 459.-— Ibid. i. 459, 460.- Ibid. i. 460.—5 Unreported.

gard to the most unfavourable case for the pannel, that of a regular marriage following a clandestine matrimonial connexion; still it deserves consideration, that possibly the man did not intend to marry in the first instance, and was entirely ignorant that he had involved himself in its bonds; a situation by no means unlikely to occur, when it is recollected how many men, under the present law of Scotland, do not know whether they are married or not and how long an investigation is frequently required to enable others to determine the point. So that, as law cannot sustain a criminal prosecution where the criminal intent is not apparent, it rather appears, though there is no decided case expressly in point, that there are not the requisite materials for a prosecution for bigamy unless both marriages were formal.1

In the case of John Roger, Aberdeen, September 1813, it appeared that the pannel had had a connexion with Mary Innes, with whom he had cohabited many years, and had a family. The woman having been brought before the kirk-session, and rebuked for fornication, the prisoner, in presence of the minister, admitted that she had yielded in consequence of a promise of marriage on his part; upon which the minister, somewhat rashly, declared them married persons, much against the prisoner's will. They afterwards cohabited as man and wife in the house of the woman's father. In these circumstances there was a promise and copula, and marriage by habite and repute, but as the case was of an ambiguous character, the jury, under the direction of Lord Gillies, found the pannel not guilty; a verdict evidently implying that a charge of bigamy could not be supported where the first marriage was of this irregular and disputed description.2

If, however, the first marriage, though clandestine in the outset, has gradually assumed the character and consistence of a regular connexion, and the parties have lived together invariably in that way for a length of time, there seems to be little doubt that a second regular marriage, following such a permanent and acknowledged status with another woman, will expose to the pains of bigamy,3

3. The first marriage, to support a charge of bigamy, must be a lawful and subsisting connexion; but it is not

! Hume, i. 460.2 Ibid. Ibid. i. 461.

necessary that the second should be the same, if it has been regularly solemnized.

Should the first marriage be null on account of any intrinsic or fatal defect, as near relationship, adultery, or the like, there can be no prosecution for bigamy; for the law will not employ its vengeance in defence of that which itself has forbidden. The marriage also must have been not only lawful but subsisting; and, therefore, if before the second marriage, the first has been dissolved by decree of divorce in due course of law, the parties are free to contract anew. Though the decree of divorce be afterwards set aside, yet it shall afford a good defence to the party who in the mean time, on its faith, has proceeded to form a new connection; unless the reduction has taken place on such grounds as bribery, perjury, subornation, collusion, or the like, as imply fraud and deceit on the part of the parties obtaining the separation.*

3

To this just and necessary rule the proceedings of the English courts furnish a singular and anomalous exception. William Martin Lolly, an Englishman, married regularly at Liverpool, having been divorced at the suit of his wife for adultery by the Commissary Court in Edinburgh, Lolly was tried and convicted of bigamy at the Lancaster Assizes, autumn 1812; and, after a full argument before the Twelve Judges, the sentence was sustained, upon the ground that an English marriage is indissoluble all the world over, except by English act of Parliament. The obvious hardship of this judgment, which appears, independent of its injustice, to be directly contrary to that comitas which the laws of all countries preserve towards the decisions of each other, has led to the statute 9th Geo. IV. c. 31, § 22, by which it is provided that the pains of bigamy shall not extend to any person whose husband or wife shall have been continually absent for seven years, and not known by such person to be living; nor "to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction."

The crime of bigamy is clearly committed if a second mar

1 Hume, i. 461.—2 Ibid.—3 Mackenzie, tit. Bigamy; Hume, i, 461.—1 Ibid. 5 Russell, 190.