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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.
within the meaning of the 57th secAnte, S 95a.
tion of 24 & 25 Vict., ch. 100. It will 3 Reg. v. Allen, Law R. 1 C. C. 367, be time enough to deal with a case 374, 375, 12 Cox, C. C. 193. The learned of this description when it arises. It judge said in conclusion: “In thus is sufficient for the present purpose holding, it is not at all necessary to to hold, as we do, that, where a persay that forms of marriage unknown son already bound by an existing to the law, as was the case in Burt v. marriage goes through a form of marBurt, 2 Swab. & T. 88, 20 L. J. (N. S.) riage known to and recognized by P. & M. 133, would suffice to bring a the law as capable of producing a case within the operation of the stat- valid marriage, for the purpose of a ute. We must not be understood to pretended and fictitious marriage, mean that every fantastic form of the case is not the less within the marriage to which parties might statute by reason of any special cirthink proper to resort, or that a mar- cumstances, which, independently of riage ceremony performed by an un- the bigamous character of the mar. authorized person, or in an unauthor. riage, may constitute a legal disabilized place, would be a marrying ity in the particular parties, or make
$ 591. Limit of doctrine. It had before been ruled to a jury, in England, to be no defense that the parties had undertaken to conceal their second marriage by having the banns published in a wrong name; though, had there been no impediment, the irregularity would, under a statute, have rendered the marriage void. Further as to the scope of this doctrine we appear to have no English determinations.
$ 592. With us,—so far as adjudication has spoken, it accords rather with the English than with the Irish exposition. Thus, in Michigan, a second marriage between a negro man and a white woman was adjudged to be within the statute against polygamy, though marriages of this sort are by another statute forbidden and declared void. But,
Formalities at second marriage.- If what was done in the way of celebrating the second marriage was such as in no sense and under no circumstances to constitute matrimony, and was not meant by either of the parties to be such, the crime of polygamy is not committed,-a doctrine the exact limits of which are not quite apparent. In a state where mutual consent alone constitutes matrimony," as with the first marriage, so with the second, no added formalities need be shown. Likewise in localities where marriage is good, though celebrated by an unauthorized person, a polygamous marriage of the like kind will sustain an indictment. Or, if a married man, meaning seduction, conceals from his victim the fact of his prior marriage, and thus enters into what would be a valid marriage were it not for the impediment, he commits polygamy. And it is the same whatever be the defect in the ceremony, if it is not such as in other cases would make the marriage invalid.
the form of marriage resorted to spe 2P. v. Brown, 34 Mich. 339, [22 Am. cially inapplicable to their individual R. 531.] case.” Page 376. The point adjudi. 3 Kopke v. P., 43 Mich. 41. cated in this case had before been 41 Bishop, Mar., Div. & S., SS 295, held by a single judge. Reg. v. Brawn, 320, 410. 1 Car. & K. 144.
Hayes v. P., 5 Park. Cr. 325, 25 N. 1 Rex v. Penson, 5 Car. & P. 412. Y. 390, [82 Am. D. 364; U. S. v. Tenny And see Rex v. Allison, Russ. & Ry. (Ariz.), 11 Pac. R. 472; P. v. Beevers, 109; Reg. v. Rea, Law R. 1 C. C. 365, 99 Cal. 286, 33 Pac. R. 44.) 12 Cox, C. C. 190; Reg. v. Asplin, 12 6 Robinson v. Com., 6 Bush, 309. Cox, C. C. 391; Rex v. Edwards, Russ. ? Hayes v. P., 25 N. Y. 390. & Ry. 283.
8 Carmichael v. S., 12 Ohio St. 553.
§ 593. Further of informal marriages,- In those states wherein mere mutual consent constitutes true matrimony, various questions will arise unknown in England and in the other states. But it is believed that the author's expositions in “Marriage and Divorce” will suffice for them.
$ 594, Relations of competent party — (Principal of second degree).— Most of our statutes, like the English,' declare punishable only the previously-married party, being silent as to the other. Nor, plainly, by their construction, is the other to be punished if ignorant of the impediment. But we have seen that the common-law principle which imputes criminality to the participants in a crime extends to statutory offenses; therefore it has been adjudged that a third person, an unmarried man, who is present abetting a friend in the commission of polygamy, may be convicted thereof as principal in the second degree. Consequently, in reason, if the competent party to a second marriage knew of the impediment in the other, he would be punishable as an aider in the other's crime, unless the statute was in terms to exclude this consequence. In the facts of most cases, the competent party was the dupe of the incompetent, so that this question does not often arise. In the only case raising it, now before the author, the indictment was on 9 Geo. 4, ch. 31, $ 22,9 which expressly makes punishable persons “counseling, aiding or abetting such offender,” the allegation was of “counseling,” and both the parties to the polygamous marriage were convicted.?
$ 595. “ Beyond seas.”—The meaning of the expression “ beyond seas” is explained in another connection. By the terms of the statute of James, its penalties did not extend “to any person or persons whose husband or wife shall be continually remaining beyond the seas by the space of seven years together.” Consequently, in a case of such absence continued
1 Ante, $ 581.
luded to, as to this point, in Reg. v. 2 Crim. Law, I, SS 301, 303; Reg. v. Allen, Law R. 1 C. C. 367, 370. See, Brawn, 1 Car. & K. 144.
for an illustrative case, under 25 3 Ante, SS 135, 136.
Edw. 3, stat. 5, ch. 2, Crim. Law, I, * Boggus v. S., 34 Ga. 275.
$ 659; referring to 1 East, P. C. 65; 1 5 Ante, g 145. And see, as illustra. Hale, P. C. 89, 128; 3 Inst. 1, 2, 9; tive, Hatfield v. Gano, 15 Iowa, 177. Eden, Penal Law (3d ed.), 125. 6 Ante, 8 581.
8 Ante, S 261b. 7 Reg. v. Brawn, supra; briefly al- 9 Ante, $ 579.
seven years, a second marriage was not punishable, while yet for civil purposes it was void, though the absent party was, and was known by the other to be, alive. Some of our American statutes contain the like exception, yet so qualified as not to protect wilful offenders. Thus, in Massachusetts, the penal consequences “shall not extend to any person whose husband or wife has been continually remaining beyond sea, or has voluntarily withdrawn from the other and remained absent for the space of seven years together, the party marrying again not knowing the other party to be living within that time." And the last clause was held to qualify the first as well as the intermediate one; so that, where a man emigrated from England to Massachusetts leaving a wife behind, and here married another a year or so afterward, he was adjudged to have committed polygamy, though the first wife had always been beyond sea, for he knew her to be living within seven years.?
$ 596. Knowledge of being alive. The modern form of the enactment is in most localities substantially the same which we have just seen it to be in Massachusetts. In England it is, as to the knowledge, “and shall not have been known by such person to be living within that time.”Now, by the rule of statutory interpretation that a defendant, to avail himself of a provision in his favor, need only bring himself within its words, however much he may violated its spirit,“ if one on trial did not in fact "know" the former husband or wife to be living, though he might have known had he chosen to inquire, he is within the exception of the statute and is to be acquitted. Thus it is where the full statutory absence of, for example, seven years has elapsed. But,
$ 596a. Mistaken information of death.- Where the absence has continued a less time than the statutory seven years, other considerations govern the case. It is not, to any extent, within the exception, if, after a period however brief, the ab
11 Hale, P. C. 693; 1 East, P. C. 466. icism may show that this case does 2 Com. v. Johnson, 10 Allen, 196. not support my text; and, indeed, the
3 Stat. 24 & 25 Vict., ch. 100, 57; judges did not reason out the point ante, & 581.
in the way I have done. Yet the docAnte, SS 190e, 193, 196, 220, 230. trine of the text is certainly correct 5 Reg. v. Briggs, Dears. & B. 98, 2 in principle, and in a sense it is susJur. (N. S). 1195, 26 Law J. (N. S.) M. C. tained by this case, though not as. 7,7 Cox, C. C. 175. Perhaps a nice crit- absolutely as one might wish.
sent party dies. The other is thereby made single, and he may marry, not by virtue of this exception in the statute of polygamy, but, quite aside from it, by the same natural and legal right under which he contracted the first marriage. And, if information of the death comes to him, and, acting cautiously and circumspectly, he, without any fault, believing it, marries, while yet the information was erroneous and there was no death, the case has no more relevancy to the statutory exception than if the information were correct. He is to be judged by the rule of the unwritten law, which pervades the entire system of our criminal jurisprudence, that, in the absence of carelessness or other fault, men are exempt from criminal liability who act uprightly on what appear to them to be the facts, equally when the appearances are found afterward to be false as when they are true.?
11 Bishop, Mar., Div. & S., SS 9, 11, to be dead, though the period of 890.
seven years had not fully run. On 2 Crim. Law, I, SS 301, 303, and par- the other side, in two cases,— Reg. v. ticularly the long note at $ 303a. It Gibbons, 12 Cox, C. C. 237, and Reg. will be seen, at the place thus re- V. Bennett, 14 Cox, C. C. 45,- the ferred to, that the question has been judges who tried them laid it down a good deal muddled in some of the to the jury that a belief of the death cases. Compactly to repeat some of of the absent party constituted no the things there said, and to add defense unless the absence had conothers, it may be stated here that, tinued seven years. So far as the not speaking now of the reasoning, mere words of these cases go, they the conclusion of the text is the are directly in conflict with the othsame which has been arrived at by ers; though, looking into the facts, the Scotch courts. McDonald's Case, there may perhaps be distinctions, 1 Broun, 238; 1 Alison, Crim. Law, as see the foot-notes to the case last 535, 536, 541. The question has been cited. It is to be further noted of considered in a number of English them, as circumstances not inspiring cases, and the opinions therein have confidence in their conclusions, that greatly preponderated in favor of this the judges seemed utterly oblivious view. On the side which sustains it to the familiar rule of statutory interwe have Reg. v. Turner, 9 Cox, C. C. pretation (ante, SS 131–144), that leg. 145; Reg. v. Jones, 11 Cox, C. C. 358; islative acts are to be construed in Reg. v. Horton, 11 Cox, C. C. 670; connection with, and as limiting and Reg. v. Moore, 13 Cox, C. C. 544; [Reg. limited by, the unwritten law. And, v. Tolson, 16 Cox, C. C. 629.] In looking only at the statute, as they which cases it has been deemed by a should not, and taking no cognizance considerable number of judges to be of the doctrines of the common law, a good defense that, at the time of which they should, they were so conthe second marriage, the party mar- fident in their own"superior wisdom rying bona fide and on reasonable as to refuse, to convicted men, the ground believed the former consort boon of laying the question before