Bigamy

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.