Bigamy

At Common Law. The willfully contracting a second marriage when the contracting party knows that the first is still subsisting. The state of a man who has two ^ives, or of a woman who has two husbands, living at the same time. When the man has more than two wives, or the woman more than two husbands, living at the same time, then the party is said to have committed polygamy; but the name of _ "bigamy" is more frequently given to this offense in legal proceedings. 1 Russ. fense is marrying a second time while having a lawful husband or wife living, without regard to the number of marriages that may have taken place, 'bigamy' seems not an inappropriate term. The objection to its use urged by Blackstone (4 Bl. Comm. 163) seems to be founded not so much upon considerations of the etymology of the word, as upon the propriety of distinguishing the ecclesiastical offense, termed 'bigamy' in the canon law, and defined below, from the offense known as 'bigamy' in the modern criminal law. The same distinction is carefully made by Lord Coke, 4 Inst. 88. But the ecclesiastical offense being now obsolete, this reason ceases to have weight." Abbott. In the Canon Law. According to canonists, bigamy is threefold, viz., vera, interpretativa, et similitudinaria, real, interpretative, and similitudinary. The first consisted in marrying two wives successively (virgins they may be), or in once marrying a widow; the second consisted, not in a repeated marriage, but in marrying (e. g., meretricem vel ab alio corruptam) a harlot; the third arose from two marriages, indeed, but the one metaphorical or spiritual, the other carnal. This last was confined to persons initiated in sacred orders, or under the vow of continence. Deferriere's Tract. Juris Canon, tit. 21. See, also, Bac. Abr. "Marriage." BILAGINES (Lat.) By-liws of towns; municipal laws.

The state of a man who has two wives, or of a woman who has two husbands, living at the same time. When the man has more than two wives, or the woman more than two husbands, living at the same time, then the party is said to have committed polygamy; but the name of bigamy is more frequently given to this offence in legal proceedings. 1 Russell, Cr. 187. According to the canonists, bigamy Is threefold, viz.: (vera, interpretative, et similitudinaria) real, interpretative, and similitudinary. The first consisted In marrying two wives successively (virgins they may be), or in once marrying a widow; the second consisted, not in a repeated marriage, but in marrying e. g. merctricem vel ab alio corruptam, a harlot; the third arose from two marriages, indeed, but the one metaphorical or spiritual, the other carnal. This last was confined to persons initiated in sacred orders, or under the vow of continence. Deferriere's Tract. Juris Canon, tit xxi. See also Bacon, Abr. Marriage. In England this crime was punishable by the stat. 24 & 25 Viet. c. 100, § 57, which made the offence felony; but it exempted from punishment the party whose husband or wife should continue to remain absent for seven years before the second marriage without being heard from, and persons who had been legally divorced. The statutory provisions in the United States against bigamy or polygamy are in general similar to, and copied from, the statute of 1 Jac. I. c. 11, which was supplied by the act of 24 & 25 Vict. c. 100, excepting as to the punishment. The several exceptions to this statute are also nearly the same in the American statutes; but the punishment of the offence is different in many of the states; 2 Kent G9. Bigamy and polygamy are crimes by the laws of all civilized and Christian countries, and the First Amendment to the constitution declaring that congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof, was never intended to be a protection against legislation for the punishment of such crimes; Davis v. Beason, 133 U. S. 333, 10 Sup. Ct. 299, 33 L. Ed. 637. It is no defence • that polygamy is a religious belief; U. S. v. Reynolds. 1 Utah 226; Reynolds v. U. S., 98 U. S. 145, 25 L. Ed. 244. The act of March 22, 1882, creates a new and distinct offence from bigamy or polygamy, one which is declared to be a misdemeanor (there having been and being no such declaration as to bigamy and polygamy), and the punishment is much less than for bigamy and polygamy. It is the offence of cohabiting with more than one woman; Snow v. U. S., 118 U. S. 346, 6 Sup. Ct. 1039, 30 L. Ed. 207. It is no defence that the accused believed his former marriage was annulled, when the State v. Zichfeld, 23 Xev. 304, 46 Fac. 802, 34 L. R. A. 784, 62 Am. St Rep. 800. If a woman, who has a husband U marries another person, she is punishable, though her husband has voluntarily withdrawn from her and remained absent and unheard of for any term of time less than seven years, and though she honestly believes, at the time of her second marriage, that he is dead; Com. v. Mash, 7 Mete. (.Mass.) 472. See a discussion of this by Mr. Bishop, in which he dissents from its ruling, in 4 So. L. J. (N. S.i 153; Clark. Cr. L. 311 Also, 12 Am. L. Rev. 471. The same rule applies also to the marriage of the husband, where he believes the wile to be dead; Dotson v. State, 62 Ala. 141, 34 Am. Rep. 2; Da Vis v. Com., 13 Bush i Ky.i 318. The same rule now obtains in England, after some conflict of opinion; 14 Cox C. C. 45; but quwrc, if her belief were founded on positive evidence; Steph. Dig. Cr. Law, art. 34, n. 9. On the trial of a woman for bigamy whose lirst husband had been absent from her for more than seven years, the jury found that they had no evidence that at the time of her second marriage she knew that he was alive, but that she had the means of acquiring knowledge of that fact had she chosen to make use of them. It was held that upon this finding the conviction could not be supported; 1 Dearsl. & B. Cr. Cas. 98. If a man is prosecuted for bigamy, his first wife cannot be called to prove her marriage with the defendant; T. Raym. 1; Williams v. State, 44 Ala. 24; 15 Low. Can. J. 21; nor it seems even to prove that the first marriage was invalid; 4 Up. Can. Q. B. 588; but see as to this last point, 2 Whart Cr. L § 1709. In a prosecution for bigamy it devolves on the state to prove a valid lirst marriage and that the lawful spouse of the defendant was living at the time of the second marriage; Sokel v. Feople, 212 111. 238, 72 N. EL 382; State v. Kniffen, 44 Wash. 485, ST l'ac. 837, 120 Am. St. Rep. 1009, 12 Ann. Cas. 113; Mc Combs v. State, 50 Tex. Cr. R. 490. 99 S. W. 1017. 9 L. R. a. (N. S.) 1036, 123 Am. St. Rep. 855, 14 Ann. Cas. 72. I of the death of the former wife is no defence to a prosecution for bigamy; Cornett v. Com.. 134 Ky. 613, 121 S. \V. 424, 21 Ann. ('as. 399. The first marriage1 may be proved by the admissions of the prisoner; Miles v. U. S., 103 U. S. 304. 26 L. Ed. 481. When the first marriage is proved to the satisfaction of the court, the second husband is admissible as a witness for or against the defendant; Whart Cr. Ev. § 397; State v. Johnson. 12 Minn. 476 (Gil. 378), '.>:; Am. Dee. 211: 1 Dp. fan. (Q. B.) 588; Miles v. U. S., 103 U. S. 304. 2(5 L. Ed. 481. A conviction for bigamy has been su] Carniichael v. State, 12 Ohio St. 553, but see Bates v. State, 29 Ohio Cir. Ct. Rep. 2 189; 20 Harv. L Rev. 576. Admissions of a prior marriage in a foreign country are sufficient without proof of cohabitation or other corroborating circumstances to establish the marriage; estate v. Wylde, 110 N. C. 500, 15 S. E. 5. Where the first marriage was made abroad, it must be shown to have been valid where made; People v. Lambert, 5 Mich. 349, 72 Am. Dec. 49. When the celebration of the marriage is once shown, every fact necessary to its validity will be presumed until the contrary is shown; People v. Calder, 30 Mich. 85, Fleming v. People, 27 N. Y. 329; Com. v. Kenney, 120 Mass. 387, where the marriage was performed in a foreign country; but see Weinberg v. State, 25 Wis. 370. Reputation and cohabitation are not sufficient to establish the fact of the first marriage; Gahagan v. People, 1 Park Cr. Cas. (N. Y.) 378. If the second marriage be in a foreign state, it is not bigamy; People v. Mosher, 2 Park. Cr. Cas. (N. Y.) 195; except by statute; 36 E. L. & Eq. 614. Where the first marriage was not performed according to the statute and there is no evidence of subsequent cohabitation of the parties the second marriage is not bigamy; People v. Mc Quaid, 85 Mich. 123, 48 N. W. 161. See Marriage.

The act of having two wives or husbands at the same time, the one dejure, the other de facto. In the civil and canon law, also the act of having one after the death of the other. The proper word would seem to be polygamy, but bigamy in this sense is generally used.

The criminal offense of willfully and knowingly contracting a second marriage (or going through the form of a second marriage) while the first marriage, to the knowledge of the offender, is still subsisting and undissolved. The state of a man who has two wives, or of a woman who has two husbands, living at the same time. The offense of having a plurality of wives at the same time is commonly denominated "polygamy;" but the name "bigamy" has been more frequently given to it in legal proceedings. 1 Russ. Crimes, 185. The use of the word "bigamy" to describe this offense is well established by long usage, although often criticised as a corruption of the true meaning of the word. Polygamy is suggested as the correct term, instead of bigamy, to designate the offense of having a plurality of wives or husbands at the same time, and has been adopted for that purpose in the Massachusetts statutes. But as the substance of the offense is marrying a second time, while having a lawful husband or wife living, without regard to the number of marriages that may have taken place, bigamy seems not an inappropriate term. The objection to its use urged by Blackstone (4 Bl. Comm. 163) seems to be founded not so much upon considerations of the etymology of the word as upon the propriety of distinguishing the ecclesiastical offense termed "bigamy" in the canon law, and which is defined below, from the offense known as "bigamy" in the modern criminal law. The same distinction is carefully made by Lord Coke, (4 Inst. 88.) But, the ecclesiastical offense being now obsolete, this reason for substituting polygamy to denote the crime here defined ceases to have weight. Abbott. In the canon law, the term denoted the offense committed by an ecclesiastic who married two wives successively. It might be committed either by marrying a second wife after the death of a first or by marrying a widow.

2 The offense of having two husbands or wives at the same time, the one dejure and the other defacto.^ Strictly speaking, bigamy means "twice married," as its derivation shows. This was never an offense at common law; it was made an offense by the canonists. Polygamy is the proper term; but, by long usage, bigamy has come to mean the state of a man who has two wives, or a woman who has two husbands, at the same time.* Whence bigamist (not a legal term), and bigamous. The penalties of the offense are not incurred where one of a married couple has been absent and unheard of for a long period, as five to seven years, and the other party marries; nor, in some States, where one is sentenced to imprisonment for a long term, as for life; nor where there has been a legal dissolution of the relation for a cause not involving guilt, as for a contract made within the age of consent.' The first wife is not admitted as a witness against her husband, because she is the true wife: but the sec- 1 Graffam v. Burgess, 117 U. S. 191-93 (1886), cases, Bradley, J. See also Vass v. Arrington, 89 N. 0. 13 <1883) — ten per cent, rule; Hansucker v. Walker, 70 Va. 763 (1882); Langyhec v. Patterson, 77 id. 470 (ISSJ); Central Pacific K. Co. v. Creed, 70 Cal. 501 (1886); Babcock V. Canfield, 88 Kan. 439 (1887). 2L. L. bigamia: bi for Gk. di, double; gamia, for Gk. gdmos, marriage. Gk. di'samia,

— Skeat. s 1 Bishop, Mar. & Div. § 296. < Gise V. Commonwealth, 81 Pa. 482, 430 (1876), Paxson, J. See also 4 Bl. Com. 163; 2 Steph. Hist. Cr. L. ond wife, so called, may be, for she is not a wife at all; and so, vice verm, as to the second husband, so called.' The first marriage may be proved by the admissions of the prisoner.'* In a criminal prosecution strict proof of an actual marriage is necessary; but in a civil suit an admission, or reputation and cohabitation, suf Boes.' The act of Congress of July 1, 1862, isrovided that every person having a husband or wife living, who married another, whether married or single, in a Territory, or other place ov^r which the United States had exclusive jurisdiction, was guilty of bigamy — And should be punished by a fine of not more than five hundred dollars, and by imprisonment for a term of not more than five years.* That act was amended by act of March 23, 1882, to read as follows: Section 1. "Every person who has a husband or wife living who, in a Territory or other place over which the United States have exclusive jurisdiction, hereafter mari'ies another, whether married or single, and any man who hereafter simultaneously, or on the same day, marries more than one woman, in a Territory or other place over which the United States have exclusive jurisdiction, is guilty of polygamy, and shall be punished by a fine of not more than five hundred dollars and by imprisonment for a term of not more than five years; but this section [R. S. § 5352, as amended] shall not extend to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five years, and is not known to such person to be living, and is believed by such person to be dead, not to any person by reason of any former marriage which shall have been dissolved by a valid decree of a competent court, nor to any person by reason of any former marriage which shall have been pronounced void by a valid decree of a competent court, on the ground of nulhtj of the marriage contract." Sec. 2. If any male person cohabits with more than one woman, he shall be guilty of a misdemeanor, punishable by a fine of not more than three hundred dollars, and by imprisonment for not more than six months, or by both. Sec. 5. Cause for challenge of a jm-or is: living or having lived in the practice of bigamy, polygamy, or unlawful cohabitation with more than one woman; or believmg in the practice of bigamy, polygamy, etc... An answer shall not be given in evidence in any criminal prosecution under the act. Declining to answer as a witness renders the person incompetent. Sec. 6. The President may grant amnesty for offenses committed before the passage of the act. Sec. 7. The issue of Mormon marriages, born before January 1, 1883, ai-e legitimated. ' 1 4 Bl. Com. 164. 2 Miles V. United States, 103 U. S. 304, 311 (1880), cases. » The Gaines Cases, 24 How. 605 (1860); 13 id. 472; 6 id. 597; States. Johnson, 12 Minn. 476 (1867), cases: 93 Am. Deo. 241, 251-57, cases; 63 Pa. 132; 14 Tex. 468, 471; 2 See. 8. " No polygamist, bigamist, or any person cohabiting with more than one woman, and no woman cohabiting with any of the persons described as aforesaid.. shall be- entitled to vote at any election.. or be eligible for election or appointment to or be entitled to hold any oi Hce or place of public trust, honor, or emolument in, under, or for any such Territory or place, or under the United States." Sec. 9. Declares all registration and election offices vacant, and provides for their being filled by a board of five persons, appointed by the President, until provision be made by the legislative assembly of tbe Territory as further directed by this section.^ Any man is a polygamist or bigamist, within the meaning of the last recited act, who having previously married one wife, still living, and having another at the time when he presents himself to claim registration as a voter, still maintains that relation to a plurality of wives, although from March 22, 1882, until the day he offers to register, he may not in fact have cohabited with more than one woman... The crime, under the acts of Congress, consists in entering into a bigamous or polygamous miarriage, and is complete when the relation begins. ^ See Religion. The offense of cohabiting with more than one woman, created by § 8 of the act of March 22, 1882, is committed by a man who lives in the same house with two women, and eats at tbeir tables one-third of his time, or thereabouts, and holds them out to the world, by his language or conduct, as his wives. It is not necessary that he and the women, or either of them, shall sleep together. ^ See Cohabit, 2. The uniform current of authority is, that for the purposes of prosecution the offense of bigamy or polygamy can be committed but once prior to the time the prosecution is instituted.* See further Act of March 3, 1888, under-PoLYOAMY. > 22 St. L. 30-32. See 116 tl. S. 66-S7; US id. 350. 2 Murphy v. Eamsey, 114 U. S. 15, 36, 41 (1885), Matthews, J. Approved, 116 id. 72, infra. s Cannon v. United States, 116 U. S. 55 (1885), Blatchford, J. Afterward, May 10, 1886, the court decided that it had no jurisdiction under the writ of error in the case, as see 118 U. S. 854-55. *Mxp. Snow, 120 U. S. 274, 281-86 (1887), cases, Blatchford, J. Snow was convicted of polygamy upon three indictments, exactly alike except that they covered different periods of time, and three sentences were imposed. He complied with the first sentence — paid a fine of $300, and remained in prison six months; and then demanded his release, claiming that his offense had been a continuing one, and that he could not be punished more than once for it. The Supreme Court held that under the theory of the lower court Snow might have been punished under an indictment en-

The oifence of having two wives or husbands at the same time. In the civil and cauon law, having them either at the same time, or one after the death of the other.

[L. Lat. bigamia, from bis, twice, and Gr. y&fiog, marriage.] In criminal law. The crime of marrying a second time during the life of the first wife or husband; or of having more wives or husbands than one at the same time. 4 BU Com, 163. 4 Steph. Com. 300. There are several excepted cases, however, in which a second marriage during the life of a former husband or wife, will not amount to bigamy. See 4 Chitty's BL Com. 164, 165, note. 4 Steph. Com. 301, 302. Wharton's Am. Crim. Law. 652 — 566.

In canon law. The offence of marrying two wives successively, one after the death of the other; or once marrying a widow. 4 Bl. Com. 163, note (6). 3 Inst. 88. See Bigamus. The use of the word bigamy in its present sense, m criminal law, although well settled, is, as Blackstone observes, an obvious corruption of the meaning, ^^y^wy being the proper name for the offence of having a plurality of wives [or husbands] at on«e. 4 Bl. Com. 163. 3 Inst. 88. Co. Lilt Hargr. d B. Note 48, Ub. 2. 2 Kenfs Com. 80, 81. See Polygamy. Bigamy was a term invented by the canonists to describe the offence, peculiar to their law, of being tunce married. See Bigamus. Mr. Stephen, in his valuable Commentaries, questions the correctness of Blackstone's criticism, on the following ground;, that " whatever the number of marriages that may have taken place, the substance of the charge always is, that having a lawful wife still living, the offender married a second time, any intervening marriage being wholly immaterial, and out of the case, so far as the prosecution is concerned/' 4 Steph. Com. 300, note (n). Bui the learned commentator seems to have overlooked the point of Blackstone's objection, which is not that bigamy is incorrectly applied to cases where marriage has been contracted more than tvnce$ but is addressed to the essential and well understood meaning of the term, and mav be more specifically stated in the followmg form: that bigamy, a term always employed in the canon law to denote the offence of marrying a second wife (tfter the death of the first, or of marrying two or more wives successively, was not properly applied to an offence, the essence of which consists in marrying a second time during the life of the first wife or husband, or of having two or more wives or husbands at the same time. The criticism of Blackstone turns upon something more than a question of mere etymological propriety, (between bis, twice, and noX^, many times^ or more than tunce, in the composition of the respective terms,) and is fully borne out by the authority of Lord Coke, who expressly defines polygamy, in the very terms of the modern definition of bigamy^ lo be the having of several husbands or wives at the same time; {polygamia est plurium simul virorum uxorumve connubium;) and goes on to show the difference between bigamy and polygamy. in the Latin passage given under bigamus, supra, 3 InsL 88. The present improper use of the term higamy seems to have grovrn up since the time of Coke, who makes no mention of bigamy in his very full enumeration of offences recog^sed by the English criminal law. In Massachusetts, the term polygamy has been restored to its proper use and meaning, as contended for by Blackstone. Rev, Stat c. 130, § 2. BILAG^. L. Lat.

In old law. By laws. Spelma Uf voc. Bt Uctgines, See Bilctgines, Laga.

crim. law, domestic relations. ‘The state of a man who has two wives, or of a woman who has two husbands living at the same time. When the man has more than two wives, or the woman more than two husbands living at the same time, then the party is said to have committed polygamy, but the name of bigamy is more frequently given to, this offence in legal proceedings. 1 Russ. on Cr. 187. In England this offence is punished by the stat. 1 Jac. 1, c. 11, which makes the offence felony, but it exempts from punishment the party whose husband or wife shall continue to remain absent for seven years before the second marriage, without being heard from, and persons who shall have been legally divorced. The statutory provisions in the U. S. against bigamy or polygamy, are generally similar to, and copied from the statute of 1 Jac. 1, c. 11, excepting as to the punishment. The several exceptions in this statute are also nearly the same in the American statutes, but the punishment of the offence is different Justices, (S 5,); Merlin Répert. mot Bigamie. Code lib. 9, tit. 9, 1. 18; and lib. 5, tit. 5, ]. 2.