riage is contracted before the first has been actually dissolved by decree of divorce by the Commissary Court, although legal proceedings may have been adopted for that purpose, and though the process was on the point of being brought to a conclusion by such decree being pronounced. So the Court held in the case of Janet Henderson, December 27. 1829, where the defence that a process of divorce was in dependence was repelled, and the pannel sentenced to six months' imprisonment.1

It seems a good defence that the former marriage was truly and on reasonable grounds believed to have been dissolved by death. But it will not do for the pannel to allege merely that he believed his former wife to have been dead, for that is easily done, and seldom omitted by persons in this predicament: it is necessary that the proof on the prosecutor's part, in this particular, arising from the completion of the first marriage, shall be met by evidence on his part that he had reasonable grounds for believing that the former marriage was dissolved by death.3 It is of no consequence, provided the second marriage be formal and ceremonious, how vitious and exceptionable it may be in other respects. It is always null in consequence of the prior legal connexion; and if it be also incestuous, adulterous, or vitious in any other respect, this cannot wipe away the guilt, or shelter from the pains of bigamy.

4. The pains of bigamy may be incurred not only by the person who marries the second time, but by the one who becomes art and part with him in that offence, by marrying him pending his known legal connection with another.

The second wife, in general, is the innocent victim of the fraud or deceit of her seducer. But this is not always the case. If she was in the knowledge of the first impediment, and nevertheless knowingly and wittingly entered into the connexion, she becomes art and part of his offence, and may be prosecuted as such. The same is true of the priest who marries, or the witnesses who are present at the second marriage, if they can be clearly shewn to have been aware of the prior subsisting impediment; for although bigamy, like rape, can only be ac

1 Unreported. Hume, i. 461. Campbell's Case, March 9. 1680; Hume, i. 461.- Ibid. i. 462.

tually committed by one person, yet others may be implicated as art and part of his offence.'

5. The best evidence of which the case will admit must be adduced to prove both marriages; and though the first wife is an incompetent, the second is a competent, witness against the husband.

As both marriages must, in the general case, be formal and regular, there should exist the regular evidence in proof of each, arising from the extract of proclamation of banns and the marriage-certificate of the clergyman, and that is the documentary evidence usually adduced on such occasions, coupled with the testimony of the clergyman and witnesses who officiated or were present at the ceremony. And there seems to be no reason to believe, that a marriage will be held as competently proved if such documentary evidence exists, and is not laid before the jury, upon the general principle that the best evidence of which the case admits must always be adduced. But if it be proved that the extract of proclamation or certificate has been either destroyed or lost, or never existed, then the next best evidence of which the case will admit may be received, and will be deemed sufficient, arising from the testimony of the persons present at the marriage; or, if these are dead, of those who knew by report that the parties were married, and lived openly as man and wife. The clergyman, if he be alive, must swear to his certificate; or, if he be dead, some one who knows his handwriting must prove it, and also the application of the certificate to the prisoner in question. The extract of proclamation of banns, if it be regular, will prove itself in the same way as the extract of a conviction; but the application of it to the pannel and the first marriage must be established by parole evidence.

As the second marriage is null, there can be no objection to the admissibility of the second wife against the husband; but, to render her unobjectionable, a foundation must be laid by proving the first marriage in the first instance. It has been decided on the Circuit, by Lord Gillies, that the first wife is inadmissible against her husband to prove the first connexion;2

1 Hume, i. 462.-2 John Rodger's Case, Aberdeen, Sept. 1813; Hume ii. 349.

and this decision seems supported by the authority of Burnett;1 but it deserves consideration whether it is not at variance with the rule, that a wife, though generally inadmissible against her husband, may be received in the special case of an injury inflicted on herself, and whether there is any sufficient ground for holding that she may be received to prove the most trifling assault, and may not establish the greatest injury which she can receive at his hands.

3

In the law of England it is settled, that a marriage in Scotland, though between minors, is valid if good according to the lex loci, and that it is sufficient to shew that it was performed according to the rites and custom of the country where it was celebrated. In an indictment for bigamy, a marriage by a dissenting teacher in a private room in Ireland, was good. On indictments for bigamy, it is not deemed sufficient to prove a marriage by reputation; but either some person present at the marriage must be called, or the original register, or an attested copy of it, be produced. If the register or the copy of it be produced, any evidence which satisfies the jury as to the identity of the parties is sufficient; and, on the other hand, if the marriages are each proved by a person present at the time, it is neither necessary to prove the registration, license, nor banns. Acknowledgment by the pannel of his marriage, accompanied with any documentary evidence tending to substantiate it, will be deemed sufficient. After proof of the first marriage, the second wife may be a witness; but the first and true wife is inadmissible.9

6

6. Having proved the first marriage, and that the first wife is still alive, and a second marriage contracted, the prosecutor has made out his case; and this it lies on the pannel to rebut, by shewing that he had reasonable ground to believe her dead.

In every charge of bigamy, the prosecutor undertakes to prove that the pannel contracted the second marriage, while he knew that the first one was still subsisting. This, however,

1 Burnett, 433.-2 Ross's Case, May 11. 1824; Hume ii. 349.- H. Blackstone, 145; Russell, i. 201; Rex v. Brampton, East. x. 282.- Russell, i. 205. 5 Burr. iv. 2057; Russell, i. 206.—6 East. i. 472.- Alison's Case, Russell, i. 207.- Thomson's Case, East i. 470.—9 Hale, i. 693; East. i. 469; Russell, i. 207.

like every other kind of guilty knowledge, must be established by external conduct; and it is justly held sufficient to infer guilty knowledge, if the contracting of both marriages is proved, and the existence of the first wife at the contracting of the second. This being done, it is presumed that the pannel was aware of the impediment at the time of the second contract, as no man can be allowed, without evidence, to plead ignorance of the fate of his own wife; and, if he does so, he must elide the presumption, by shewing such circumstances as might, on reasonable grounds, warrant him in concluding that the first contract was dissolved, and a second might be lawfully contracted.

7. The punishment of bigamy, in modern practice, at common law, is imprisonment; but, by the statute, confiscation of moveables, and infamy, is superadded.

The act 1551, c. 19, declares the punishment of bigamy to be the same as those of perjury; that is to say, "confiscation of all their gudes moveable, warding of their persons for year and day, and longer during the Queen's will, and, as infamous persons, never able to bruick office, honour, dignity, nor benefice, in time to come." But these pains are not only unsuitable to modern ideas, but are founded on the notion of the perjury involved in bigamy,—a principle which is more founded on the statutory than the common law view of the offence. In modern practice, accordingly, it is usual to libel only on the common law, and limit the punishment to imprisonment. Indeed this is done whether the statute has been libelled on or not. Thus, at Inverness, September 1814, on a libel laid both at common law and on the statute, the prisoner was sentenced to six months' imprisonment.1 Arthur O'Niel, Ayr, autumn 1816, received six months' imprisonment, even where the first marriage was according to the Catholic form, and thus the guilt of perjury had been incurred.2 On 17th July 1817, Andrew Craig, convicted of bigamy on his own confession, on a charge laid at common law and on the statute, was imprisoned twelve months. James Macadie, 13th March 1821, on an indictment limited to the common law, was imprisoned ten months.1 James Sime, 24th March 1824, on an indictment at common law, was

1 Hume i. 460.2 Ibid. Ibid. Ibid.

imprisoned three months. Andrew Scott Wilson, 2d June 1828, on a confession of a charge of bigamy of a much more aggravated kind, was imprisoned twelve months; as was Alexander Cullen, 8th November 1827, on a conviction of a similar kind. Charles Wilson, 3d March 1828, was imprisoned nine months; and John Macinnes, 12th March 1828, twelve months on the same charge:2 At Glasgow, spring 1828, John Macewan was sentenced to eighteen months' confinement in Bridewell; he having been proved to have married two wives, and the circumstances of the case leaving no doubt, though not libelled on from defect of evidence, that he was in reality married to a third. It is the extraordinary prevalence of this crime among the numerous Irish settlers in this country of late years, which has rendered necessary the increased severity in its punishments.

CHAPTER XXV.

OF CLANDESTINE MARRIAGE.

THE offence of celebrating clandestine marriages consists in the contracting or performing the marriage ceremony, without the forms which the law has prescribed for this important contract. For though marriages of this irregular and clandestine fashion are sustained as sufficient quoad civilem effectum, yet the law does not approve them; but, on the contrary, subjects both the contracting parties and the celebrators to penalties. None are approved of but such as are celebrated by a priest duly ordained by some church, and after regular proclamation of banns.5

1. By special statute the parties to clandestine marriages are liable to imprisonment for three months, and certain fines, according to their rank; and the witnesses to certain fines.

By 1661, c. 34, the parties to a clandestine marriage are

1 Syme's Cases.-2 Hume i. 462.—3 Unreported.1 Hume, i. 464.—5 Ibid.