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 BIGAMY

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BIGAMY

two per cent only have a plurality of wives (Wester- niarck, 439). " 'Tis true", writes Lady Mary Wort- ley Montagu from Adrianople, in 1717, concerning the Turks, "their law permits them four wives; but there is no instance of a man of quality that makes use of his liberty or of a woman of rank that would suffer it" (Works, II, 190). The ancient Romans were monogamists (AVestermarck, 433). And in the time of the Emperor Justinian (527-565) the illegality of bigamy was firmly established: "Duas uxores eodem tempore habere non licet" and "eadem duobus nupta esse non potest" are the expressions of the Institutes (Lib. I, tit. x, vv. 6, 7).

The law of England is thus laid down by an au- thority supposed to be of the time of Edward I (1272-1307), the king, "who", remarks Sir William Blackstone, "hath justly been styled our English Justinian" (Commentaries, IV, 425): "It has some- times been that a man from wickedness has married several women, all living at the same time; but Holy Church says that of such women none but the first is his lawful wife; wherefore, the law regards the others only as false wives" (Britton, Lib. V, 11). While the first marriage continues undissolved by de.iih, or by judgment of a court of competent juris- diction, a subsequent marriage is, by English com- mon law, a mere nullity and void (Kent, Commen- taries on American Law, Part IV, 80; Bishop, New Commentaries on Marriage, etc., 1, § 717). No length of absence and no error as to survival of the absent can render valid the second ceremony. But in defining bigamy as a crime, statutes liave been more indulgent. Notwithstanding what we have quoted from the authority of the thirteenth century, there seems to have been no Englisli statute de- fining and punishing bigamy as a crime until the year 1604, English law being in this respect more backward than the law of Scotland, which so early as 1551 pronounced bigamy a crime punishable with the pains of perjury, these being confiscation of goods, imprisonment, and infamy (Bell, Diet, and Digest of the Laws of Scotland, s. v.). By an English statute of 1604, upon which later English laws and laws in the United States have been mod- elled, any married person who should marry within England or Wales, the former husband or wife being living, became guilty of felony. But the statute did not extend to persons whose husband or wife remained continually "beyond the seas by the space of seven years", nor to a person "whose husband or wife shall absent him or herself the one fro.ii the other by the space of seven years together in any parts within his majesty's dominions, the one of them not knowing the other to be living within that time". The statute thus established an arbitrary period of absence as exempting from criminality a second marriage. That absence within England should justify the second marriage, the one marrying was required to be ignorant of the survival of the absent husband or wife; but respecting absence "beyond the seas" we are told by Blackstone, "Where either party hath been continually abroad for seven years whether the party in England hath notice of tlie other's being living or no" (Commen- taries, Bk. IV, 164), there can be no felony under the statute. The statute, not otherwise providing, and its violation being made a felony, men prosecuted theretmder were, according to the general law of the period, entitled to "benefit of clergy" (Coke, sup.), subject to which, conviction under the statute was punishable with death. The English statute of 1861, now in force, exempts from punishment a second marriage only where there has been con- tinual absence of seven years, and the person marry- ing shall not know the absent husband or wife "to be living within that time ". Tho.se guilty imder the fitaMite are liable to penal servitude of not more II.— 36

than seven nor less than three years or to imprison- ment of not more than two years. Bigamy is a crime within the statute, if committed by a British subject, wherever the offence may be committed. The French "Code p^nal" provides the punishment of "travaux forcds a temps" for a person who, being married, shall contract another marriage before dis- solution of the former marriage.

A LTnited States Statute declares guilty of polyg- amy every person, having a husband or wife living, who "in a territory or other place over which tht United States have exclusive jurisdiction'', marries another, unless there shall have been absence of five years, the absent husband or wife "not known to be living and believed to be dead", or unless there shall have been a divorce or judicial annulment of the previous marriage. The punishment provided is a fine of not more than five hundred dollars and not, more than five years' imprisonment. The Constitu- tion of the United States declares that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof" (Constitution, Amendments, Art. 1). The question has accordingly been raised whether legislation such as has just been quoted may not violate the Con- stitution in the instance of an adherent to a religion of which bigamy is claimed to be a tenet. But the Supreme Court of the United States, speaking by Mr. Justice Field, held that "however free the ex- ercise of religion may be, it must be subordinate to the criminal laws of the coimtry, passed with reference to actions regarded by general consent as properly the subject of punitive legislation", that "bigamy and polygamy are crimes by the laws of all civili.jed and Christian countries", few crimes being "more pernicious to the best interests of society", and therefore that "to call their advocacy a tenet of religion is to offend the common sense of mankind". Free exercise of religion ought not, in the opinion of the Court, to be construed to mean toleration of crime (Davis i'. Reason, United States Reports, CXXXIII, 333,341,342,345). Alien po- lygamists are, by a United States Statute excluded from admission to the LTnited States. The statute books of various States of the Union contain laws modelled upon, and with provisions more or less similar to, those of the English law of 1604, and de- fining bigamy, or in the statutes of some States, polygamy, as a crime. Formerly, by the Virginia law (United States Reports, XCVIII, 165) and by the law of North Carolina (Kent, Commentaries, Part IV, 79, note d), bigamy was punished by death. Now its punishment in Virginia is imprisonment of not more than eight nor less than three years (Code, § 37S1), and in North Carolina of not more than ten years nor less than four months (Revisal, § 3361). In the State of New York the punishment is not more than five years' imprisonment, and the period of absence excusing second marriage is fi.xed at five years, the former husband or wife having been al)- sent from the one remarrj'ing "without being known by him or her within that time to be li\'ing and be- lieved by him or her to be dead" (Birdseye, Revised Statutes, 306). Divorce (unless for fault of the party remarrying), due permission of Court, or annulment of the previous marriage, or sentence to life imprison- ment of the former husband or wife also excuses the remarriage. Absence, therefore, not dissolving a previous marriage, on proof that a husband or wife who had been supposed to be dead is in fact living, the second marriage may be adjudged to be a nullity. The law will not sanction bigamy by recognizing the two marriages to be simultaneously valid. Ac- cording to the law of New York, t'le earlier marriage ceases to be binding until one 0( the three parties to the two marriages procures a judgment pro- nouncing the second marriage vcid (>few York Court