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 BIGAMY

564

BIGAMY

he sacrament, but the unfitness arising therefrom is removed. It is the universal opinion of to-day, whatever may have been the opinion of canonists in the past, that the pope alone can dispense all bigamists, real and interpretative, as regards minor as well as Sacred orders, and the collation and use of the simple, as of great, benefices. The reason is evident: bishops cannot dispense in the laws of their superiors, to wit, the pope or General Council. Some canonists claim that bishops, by virtue of the Coun- cil of Trent (Sess. XXIV, C. 6, De Ref), can dis- pense with interpretative bigamy arising from occult guilt. D'Annibale Oo". cit.) on this point well re- marks that it is exceedingly difficult for such acts to be private. Sanchez asserts that it is of little moment whether or not the fact is private or public, since the irregularity is not e.v delicto, but ex defectu sacramcnti. It is certain that bishops, where there is a grave and positive doubt about the existence of interpretative bigamy and its consequent irregu- larity, can grant dispensation. Bishops can dispense with all similar bigamists as above defined after they have left their putative wives, done penance, and led edifying lives, and can admit them to the exercise of all ecclesiastical functions (Lib. IV, Tit. VI, Cap. i. Qui Clerici et Vov.; Lib. Ill, Tit. Ill, Cap. Sane 4). Regular prelates, i. e. generals, provincials, abbots, priors, guardians, having quasi-episcopal jurisdiction, cannot, in virtue of the common law and apart from special privileges, dispense their own subjects with real or interpretative bigamy, even as regards minor as well as major orders. No such power has been given them by pope or general council. By virtue of privilege of Pius V (Constit. "Rom. Pont. Circumspecta", June 21, 1571, Sec. 3), joined with that of the Council of Trent (Sess. XXIV, Cap. vi, etc.) power to dispense in irregularities on account of occult guilt, given to bishops, was ex- tended to regular prelates. By virtue of the privilege of Sixtus IV, regular prelates cannot dispense with real, interpretative, and public similar bigamists (P. Venantius, O. F. M., Compend. Privil. Regu- larium, ed. 1906; Piat, Vol. II, p. 577, 2). .\s a matter of fact, the Sixtine constitution (Reg. LTniv. Eccles., August 31, 1474) makes a special exception in the case of bigamy. The general opinion, that they cannot grant dispensation to their subjects who are real or interpretative bigamists, is evident from the fact that the decretal law (C. Altercationis in 6°) has reserved that faculty to the pope; second, Tridentine law is against such faculty; third, declara- tion of s. c. c. (3 January, 1589) has so decided; fourth, present practice of granting privileges and faculties to religious orders as a rule makes an ex- ception of bigamy v. g., constit. of Leo XII, 1826, "Plura Intra", directed to the Society of Jesus, withholds the faculty of dispensing with bigamists. If religious prelates do possess the faculty of dis- pensing in such cases, it must be by virtue of some special privilege of recent date. Bishops of the United States and of England, and vicars Apostolic subject to the Propaganda (these latter only !>i foro interna) have special faculties (Formula I, II, and IV respectively) to dispense interpretative bigamists; and in cases of paramount importance, on account of great scarcity of priests, bishops in the United States can dispense also with real bigamists. Ac- cording to general opinion, the multiplication of marriages does not increase the number of irregu- larities contracted; so the bigamist and trigamist equally incur only one irregularity. In applications for dispensations mention of only two out of the many marriages is sufficient, and that whether they are all real or interpretative or mixed bigamies. In the opinion, however, of those who divide inter- pretative bigamies into ex defectu sacramenii and ex delicto bigamies, it is necessary, in the case where

a grave sin is the cause of the irregularity, to name both the irregularity ex delicto (with sin) and the irregularity ex defectu sacramenii (without sin).

Ferr.\ris, BihlwtJieca (Rome. 1885), s. v.; Fac.nanus, Comment, in Decret. (1709). I. 497 sqq.; PlRHlNG (ed.. 1674).

I. 4S9-499; Van Espen. Jus. Eccles. Univ. (ed., 1781), II. Pars. II, pp. 104 sqq.; Devoti, Jus. Can. Univ. (Rome, 1839).

II, 206 sqq.; Wernz, Jus. Decret.. II. 156-164; Gaspari, De Sacrii Ordinal., I, 236-254; Santi (ed.. 1898), 1, 203-210, D'Annibale, Summida Theol. Mot.. Pars. I, 428, Ed. IV; Ballerini-Palmieri. Opus. Theol., VII, De Censuris, 385 sqq.; Andr^Wagner, Diction. Canonique, s. v.

P. M. J. Rock.

Bigamy (Fr. bigamie, from Lat. bis, twice, and Gr. 7d;ios, marriage) in Civil Jurisprudence, and especially in criminal law, is "a formal entering into of a marriage while a former one remains un-dis- solved" (Bishop, Commentaries on the Law of Stat- utory' Crimes, § 577), "the crime of having two wives or husbands at once" (Murray, New Diet., s. v.) or two or more wives or husbands (Centurj' Diet., s. v.). Big- amy, being "a species of polygamy" (Stephen, New- Commentaries, IV, 83), may be designated by the lat- ter word (Bishop, op. cit.); for Sir Edward Coke de- fines "polygamus" to be one "qui duas vel plures duxit uxores" (3d Instit., XXVII). But its very gen- eral use in English statutes and authorities renders bigamy in many instances the word of more ready reference (Russell, A Treatise on Crimes, 659).

Bigamy as defined is classed by jurists among those acts injurious to public morality by which the State or community generally is injured, and which may therefore properly be made criminal. The crime consists, according to French law (Car- pentier. Codes et lois; Code p6nal, 340, note) "in the fact of the celebration of the second marriage before dissolution of the first", or, to quote an American authority, in "the prostitution of a solemn ceremony which the law allows to be applied only to a legitimate imion", involving "an outrage on public decency and morals" and "a public scandal" (Bishop, op. cit.). And so Boswell quotes Dr. Samuel Johnson, commenting on Luther's allowing the Landgrave of Hesse two wives with the consent of the wife to whom he was first married, thus: "There was no harm in this, so far as she was only concerned, be- cause volenti non fit injuria. But it was an offence against the general order of society, and against the law of the Gospel, by which one man and one woman are to be united."

Although among many nations plurality of wives or polygamy has been legally recognized, yet the fact has been observed "that among not a few un- civilized people polygamy is almost unknown or even prohibited" (\Vestermarck, The History of Human Marriage, 435), and where tolerated, bigamy is its usual form, as was the case among the Hebrews (op. cit., 430). In the earlier days of Babvlon, bigamy is said to have been the exception and monogamy the prevailing practice (Jolms, Babylonian and Assyrian Laws, 134). The Assyrian kings appear to "have been monogamists, the kings of ancient Egj-pt seem to have had only one wife, and the same remark may be made of their subjects (Wester- marek, 432, 442, 447). The law of China prohibits taking of a second wife during lifetime of the first (Westermarck, 445). Mohammed, when allowing his followers four wives, is said to have sought to restrict what he felt himself unable to abolish. And he is said to have been of opinion that, although an unlimited number of wives might live together in harmony, tliis among so few as four would be im- possible. Events seem to have proved the correctness of his judgment, for "the quarrels, jealousies and expenditure of four wives v'j'ing with each other" (Colquhoun, Summary etc., | 575) are said to have brought about the monogamy usual among modern Mohammedans. Of those in India ninety-five per cent are monogamists, and it is said that in Persia