marriage shall have taken place in England or elsewhere, every such offender, and every person counseling, etc., shall be guilty of felony, and being convicted thereof shall, etc.; and any such offense may be dealt with, inquired of, tried, determined, and punished in the county where the offender shall be apprehended or be in custody, as if the offense had been actually committed in that county: provided always, that nothing herein contained shall extend to any second marriage contracted out of England by any other than a subject of his majesty, or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past and shall not have been known by such person to be living within that time, or shall extend 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." § 582. American legislation on this subject has substantially copied the later English. There may be minor diversities, and it is not absolutely identical in our states. There is no need to give specimen statutes here, but something will be seen of them as we proceed.1 § 583. "Divorce." This word, in the statute of James, was held to mean divorces from bed and board as well as from the bond of matrimony; "notwithstanding," observes Hawkins, "there be not the word divortiamus, but only the word separamus, in the sentence; because the statute, being penal, shall be construed favorably, and such separations are taken for divorces in common understanding." Later enactments, in both countries, are in terms to avoid this construction. § 584. "Within age of consent." What is the age of consent to marriage the author has explained elsewhere. This exception, in the statute of James, was held to protect as well the party above the age as within it; "because the power of disagreeing to such marriage is equal on both sides." [The crime was a misdemeanor in North Carolina before the passage of section 988 of the code, making it a felony. S. v. Burns, 90 N. C. 707.] 21 Hawk. P. C. (Curw. ed.), p. 686, § 5. 4 § 585. Place of first marriage.— Marriage being both a domestic institution, and also within the jurisdiction of the law of nations and therefore international, so that the courts of every country take cognizance of the marriages in every other, the place where the first marriage was celebrated, whether at home or abroad, is immaterial; "because," says Hawkins, "it is the latter marriage that makes the offense." 2 But, § 586. Place of second marriage. Since the offense consists of the second marriage, it, like any other criminal act,3 must transpire within the locality of the indictment; as, says Hale, if “A. takes B. to husband in England, and after takes C. to husband in Ireland, she is not indictable in England; because the offense was committed out of this kingdom." So that, with us, where nothing in the statute otherwise provides, there can be no criminal prosecution out of the state and county wherein the second marriage was solemnized. But this conclusion has been, in most localities, avoided by legislative devices. Thus,— § 587. Punishing marriage celebrated abroad.— In England the modern statutes expressly make it immaterial, as we have seen," "whether," in the case of a British subject, "the second marriage shall have taken place in England or elsewhere." And to obviate the common-law want of jurisdiction they permit the offense to be dealt with "in the county where the offender shall be apprehended or be in custody." Therefore, where the two marriages of an Englishman occurred in Scotland, it was held that he was properly convicted in England under this provision. Obviously this statute, thus limited to British subjects, is proper and just, and conformable to the law of nations. Were it not thus limited in terms, the courts 11 Bishop, Mar., Div. & S., §§ 833838; Anonymous, J. Kel. 79; Com. v. Johnson, 10 Allen, 196; Com. v. Kenney, 120 Mass. 387; Reg. v. Savage, 13 Cox, C. C. 178. Putnam, 8 Pick. 433; 1 Hawk. P. C. (Curw. ed.), p. 687, § 7. 51 Hale, P. C. 692. 6 S. v. Barnett, 83 N. C. 615; Walls v. S., 32 Ark. 565; Beggs v. S., 55 Ala.. 21 Hawk. P. C. (Curw. ed.), p. 687, 108; Scoggins v. S., 32 Ark. 205; Will would limit it by interpretation; for, by the law of nations, one government cannot punish the subjects of another for what they do on foreign soil. The author has not observed much of this sort of provision in our American legislation. And perhaps, in some of the states, it would be constitutionally objectionable,3 particularly as respects the Place of trial.- The Arkansas court has held that, under the constitution of the state, the legislature can direct this offense to be prosecuted only in the county of the polygamous second marriage, not in another wherein the arrest took place. And in New York, where the statute, after providing a punishment for "every person having a husband or wife living who shall marry any other person," added that the "indictment may be founded in the county in which such person shall be apprehended; and the like proceedings, trial, judgment and conviction may be had in such county as if the offense had been committed therein; " the court, construing the provision, deemed it to be a mere regulation of the venue. So that, when a man who had a wife living in Pennsylvania married another woman in Canada, and came and cohabited with her in New York, his case was adjudged, by a tribunal not of the last resort, yet doubtless correctly, not to be within the statute. But § 588. Continuing to cohabit. The difficulty may be met, and in the greater number of our states it is, by making a continuance of cohabitation under the void second marriage a separate offense, or separate form of offense. For example, the Tennessee enactment declares punishable every person who, "being married, shall marry another person, the former husband or wife then living, or continue to cohabit with such second husband or wife in this state." So that, while the constitution secures to those indicted under the former clause the right to decline trial in any county other than the one in which the 1 Ante, § 141. 2 Crim. Law, I, §§ 109–123 and notes, particularly the note to § 115, par. 7–9; P. v. Mosher, 2 Park. Cr. 195. As to the power of a state to punish what is done outside of its territory, see Crim. Law, I, §§ 152, 153. Sweetsir, 53 Me. 438. And compare 6 P. v. Mosher, 1 Park. Cr. 195. For another view of the proper proceed. ing on facts like these, see post, § 593. 4 Wall v. S., 32 Ark. 565. See v. [And see P. v. Chase, 27 Hun, 256.] second marriage took place, the latter clause is violated in whatever county there is a cohabitation under the forbidden marriage, and there the trial may be.2 § 589. Validity of first marriage. The first marriage, whether domestic or foreign,3 must be, within the contemplation of the domestic law, valid; and it is immaterial to this proposition whether it is valid or void by the foreign law. There are various circumstances in which a marriage may be good in the place of its celebration abroad, and void in another country or state wherein its validity is drawn in question; and the reverse. Yet, for reasons explained by the present author in another work, a first marriage defective in the peculiar way termed voidable by the special rules which we brought from England as a part of our unwritten law is sufficient as the foundation of an indictment for this offense of contracting a second marriage while it is undissolved. " § 590. Validity of second marriage.— The second marriage is, of course, void. Still the Irish court held that it must be such as, but for the impediment of the first, would be good. This doctrine is repudiated in England; as, for example, if, were the first marriage not subsisting, the second would be void by reason of too near an affinity, the offense of polygamy is not the less committed. The verb "to marry," and its par 1 Ante, § 587; Crim. Pro., I, § 50. 2 Finney v. S., 3 Head, 544. To the like effect in Alabama, Brewer v. S., 59 Ala. 101. And see ante, § 260a; S. v. Sloan, 55 Iowa, 217; Com. v. Bradley, 2 Cush. 553; S. v. Palmer, 18 Vt. 570. 3 Ante, § 585. 4 Madison's Case, 1 Hale, P. C. 693; S. v. Moore, 3 West. Law Jour. 134; Halbrook v. S., 34 Ark. 511, [36 Am. R. 17;] S. v. Goodrich, 14 W. Va. 834; Weinberg v. S., 25 Wis. 370; Hayes v. P., 25 N. Y. 390, [82 Am. D. 364;] Reg. v. Willshire, 6 Q. B. D. 366, 14 Cox, C. C. 541; Reg. v. Cresswell, 1 Q. B. D. 446, 13 Cox, C. C. 126; Hull v. S., 7 Tex. Ap. 593; King v. S., 40 Ga. 244; Reg. v. Wilson, 3 Fost. & F. 119; Oneale v. Com., 17 Grat. 582; P. v. Baker, 76 N. Y. 78, [32 Am. R. 274;] Shafher v. S., 20 Ohio, 1; [S. v. Nadal, 69 Iowa, 478, 29 N. W. R. 451; S. v. Sherwood, 68 Vt. 414, 35 Atl. R. 352; Green v. S., 21 Fla. 403, 58 Am. R. 670.] 51 Bishop, Mar., Div. & S., chapter beginning at § 825; 2 id., a series of chapters beginning at § 1; and §§ 1514-1595. 1 Bishop, Mar., Div. & S., §§ 255, 259, 272; Beggs v. S., 55 Ala. 108; Cooley v. S., 55 Ala. 162; P. v. Baker, supra; Rex v. Lolley, Russ. & Ry. 237; [S. v. Cone, 86 Wis. 498, 57 N. W. R. 50; P. v. Beevers, 99 Cal. 286, 33 Pac. R. 844.] 71 Bishop, Mar., Div. & S., §§ 262, 288, 290, 717-719; Johnson v. S., 61 Ga. 305. 8 Reg. v. Fanning, 17 Irish Com. Law, 289, 10 Cox, C. C. 411. ticiple, in the phrase "if any person being married shall marry another," etc., cannot have the same meaning in both places;2 but it denotes a valid marriage in the one, and a void form in the other. The latter is a departure from its common signification. And, in such a case, "the true rule of construction," said Cockburn, C. J., speaking for the whole court, "appears to us to be, not to limit the latitude of departure so as to adhere to the nearest possible approximation to the ordinary meaning of the term, or to the sense in which it may have been used before, but to look to the purpose of the enactment, the mischief to be prevented, and the remedy which the legislature intended to apply. The ground on which such a marriage is very properly made penal is, that it involves an outrage on public decency and morals, and creates a public scandal, by the prostitution of a solemn ceremony which the law allows to be applied only to a legitimate union, to a marriage at best but colorable and fictitious, and which may be made, and too often is made, the means of the most cruel and wicked deception. It is obvious that the outrage and scandal involved in such a proceeding will not be less because the parties to the second marriage may be under some special incapacity to contract marriage. The deception will not be the less atrocious because the one party may have induced the other to go through a form of marriage known to be generally binding, but inapplicable to their particular case." 1 Ante, § 581. 2 Ante, § 95a. 'Reg. v. Allen, Law R. 1 C. C. 367, 374, 375, 12 Cox, C. C. 193. The learned judge said in conclusion: "In thus holding, it is not at all necessary to say that forms of marriage unknown to the law, as was the case in Burt v. Burt, 2 Swab. & T. 88, 20 L. J. (N. S.) P. & M. 133, would suffice to bring a case within the operation of the statute. We must not be understood to mean that every fantastic form of marriage to which parties might think proper to resort, or that a marriage ceremony performed by an unauthorized person, or in an unauthorized place, would be a marrying within the meaning of the 57th section of 24 & 25 Vict., ch. 100. It will be time enough to deal with a case of this description when it arises. It is sufficient for the present purpose to hold, as we do, that, 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, the case is not the less within the statute by reason of any special circumstances, which, independently of the bigamous character of the marriage, may constitute a legal disability in the particular parties, or make |