riages solcmnized in the chapel, &c. of a British mi nister, or of a British factory, or in the army abroad. Marriages in the validity of marriages, solemnized by a minister of the church of England, in the chapel or house of any British ambassador or minister residing within the country to the court of which he is accredited, or in the chapel belonging to any British factory abroad, or in the house of any British subject residing at such factory, as well as from any possibility of doubt concerning the validity of marriages solemnized within the British lines by any chaplain or officer, or other person, officiating under the orders of the commanding officer of a British army serving abroad: and then enacts, that "all such marriages shall be deemed and held to be as valid "in law as if the same had been solemnized within his Majesty's "dominions, with a due observance of all forms required by law." But there is a proviso that this act shall not confirm, or impair, or affect the validity of any marriages solemnized beyond the seas, save and except such as are solemnized as herein specified and recited. (a) Marriages in the colony and dependencies of Newfoundland are Newfoundland. especially regulated by the statute 5 Geo. 4. c. 68. which repeals a former statute, 57 Geo. 3. c. 51. upon the same subject. The marriage of lunatics void. Marriage by reputation not sufficient. Though the first marriage may be abroad, the offence is not cognizable here if the second marriage, which makes the offence, were abroad. The question was moved to Kelyng, C. J. at the Old Bailey, whether, if a man marry one wife in France, and a second in England, he might be indicted for this in England; and he took the difference that if the second marriage, which makes the felony, were in England, the offender might be indicted and tried here; but otherwise if the second marriage were abroad; because felonies in another kingdom are not by the common law triable here in England. (b) to It was formerly held that if an idiot contracted matrimony, it was good and should bind him: but modern resolutions appear have proceeded upon the more reasonable doctrine of the civil law, by determining that the marriage of a lunatic, not being in a lucid interval, is absolutely void. And as it might be difficult to prove the exact state of the mind of the party at the actual celebration of the nuptials, the statute 15 Geo. 2. c. 30. has provided that if persons found lunatics under a commission, or committed to the care of trustees by any act of Parliament, marry before they are declared of sound mind by the lord chancellor, or the majority of such trustees, the marriage shall be totally void. (s) Upon indictments for bigamy it has been held not to be sufficient to prove a marriage by reputation; but that either some person present at the marriage must be called, or the original register, or an examined copy of it, be produced. (t) The marriage act, 4 Geo. 4. c. 76. s. 28. requires that marriages shall be solemnized in the presence of two or more credible witnesses, besides the minister who shall celebrate the same, and that it shall be entered in the register; in which entry it shall be expressed, that the marriage was celebrated by banns or licence, and with consent, as the case may be, and be signed by the minister and parties married, (a) S. 2. (b) Kel. 79. (8) 1 Blac. Com. 438, 439. (1) Morris v. Miller, 4 Burr. 2057. Birt v. Barlow, Dougl. 162. and attested by two witnesses. But, upon a provision nearly similar in the former marriage act, it was held not to be necessary to call one of the subscribing witnesses to the register in order to prove the identity of the persons married; but that the register, or the copy of it, being produced, any evidence which satisfied the jury as to the identity of the parties was sufficient; as if their handwriting to the register were proved; or that bell-ringers were paid by them for ringing for the wedding, or the like. (w) And it was held that if the marriages were proved by a person present at them, it was not necessary to prove the registration, or licence, or banns. The prisoner was indicted for marrying Ann Epton, whilst Jane, his former wife, was living: each marriage was proved by a witness who was present at the ceremony; and it appeared that at the first marriage the prisoner went by the name of Allison, and at the second by the name of Wilkinson. Chambre, J. doubted whether the evidence was sufficient without proof of the registration of either marriage, or of any licence, or publication of banns: but the Judges held that it was. (a) How far the acknowledgment of the defendant upon the subject of his marriage is sufficient evidence of the fact may admit of some doubt. In one case it was held, that proof of the prisoner's cohabiting with and acknowledging himself married to a former wife then living, such assertion being backed by his producing to the witness a copy of a proceeding in a Scotch court against him and his wife for having contracted the marriage improperly, (the marriage, however, being still good according to that law), was sufficient evidence of the first marriage; and upon such evidence, together with due proof of the second marriage, the prisoner was convicted. The point being reserved for the opinion of the Judges, all of them (with the exception of Perryn, B. and Buller, J. who were absent,) held the conviction proper. Two of them observed that this did not rest upon cohabitation and bare acknowledgment; for the defendant had backed his assertion by the production of the copy of the proceeding: but some of the Judges thought that the acknowledgment alone would have been sufficient, and that the paper produced in evidence was only a confirmation of such acknowledgment. (x) After proof of the first marriage the second wife may be a witness but it is clear that the first and true wife cannot be admitted to give evidence against her husband. (y) (w) 1 East. P. C. c. 12. s. 11. p. 472. Bull. N. P. 27. 1 (a) Rex v. Allison, East. T. 1806. MS. Bayley, J. and Russ. and Ry. 109. (x) Truman's case, Nottingham Spr. Assiz. 1795, decided upon by the Judges in East. T. 1795, MS. Jud. East. P. C. c. 12. s. 10. p. 470, 471. where see some remarks as to the admission of a bare acknowledgment in evidence in a case of this nature. That it may be difficult to say that it is not evidence to go to a jury: but that it must be admitted that it may under circumstances be entitled to little or (y) 1 Hale 693. 1 East. P. C. c. 12. Hor far the acknowledg ment of the defendant is evidence. The true wife cannot be a witness. Punishment. Though the statute 1 Jac. 1. c. 11. enacts, that persons offending against it shall suffer death as in cases of felony, clergy is not thereby taken away; and the punishment for bigamy by the 18th Eliz. c. 7. s. 2, 3. was burning in the hand and imprisonment not exceeding a year. (2) But the statute 35 Geo. 3. c. 67. s. 1., reciting that the punishment of persons convicted under the act of 1 Jac. 1. c. 11. had not proved effectual, enacts, "that if any person or persons within his Majesty's dominions of England and "Wales, being married, or which hereafter shall marry, do, at any "time from and after the passing of this act, marry any person or "persons, the former husband or wife being alive, and shall be in "due manner convicted thereof under the said act, shall be subject and liable to the same penalties, pains, and punishments, as, by the laws now in force, persons are subject and liable to who Persons trans-" are convicted of grand or petit larceny." By the second section of this statute any person ordered to be transported by virtue of the act, and being afterwards at large within Great Britain, without lawful cause, before the expiration of the term, is declared to be guilty of felony, and made liable to suffer death without benefit of clergy. And (by s. 3.) the trial for such offence may be in the county where such person was convicted and ordered to be transported, or in the county, within England and Wales, where such person shall be apprehended: and, in the latter case, provision is made for certifying a transcript of the former proceedings as evidence upon the trial. ported and returning, felony without clergy. 66 s. 9. p. 469. and I Hawk. c. 42. s. 8. Feb. Sess. 1786, is cited. (z) And by 19 Geo. 3. c. 74. s. 3. a moderate fine or whipping in the manner therein specified may be substi tuted for the burning. CHAPTER THE TWENTY-FOURTH. OF LIBEL AND INDICTABLE SLANDER. It appears to be well settled that publications blaspheming God, or turning the doctrines of the Christian religion to contempt and ridicule, may be made the subject of indictment; and it is now fully established, though some doubt seems formerly to have been entertained upon the subject, that such immodest and immoral publications as tend to corrupt the mind, and to destroy the love of decency, morality, and good order, are also offences at common law. (a) It is also a misdemeanor wantonly to defame or indecorously to calumniate that economy, order, and constitution of things which make up the general system of the law and government of the country. (b) And it is especially criminal to degrade or calumniate the person and character of the sovereign, and the administration of his government by his officers and ministers of state, (c) or the administration of justice by his Judges. (d) And the same policy which prohibits seditious comments on the king's conduct and government extends, on the same grounds, to similar reflections on the proceedings of the two houses of Parliament. (e) Such publications also as tend to cause animosities between this country and any foreign state, by the personal abuse of the sovereign of such state, his ambassadors, or other public ministers, may be treated as libels. (f) With respect to libels upon individuals, they have been defined to be malicious defamations, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt, and ridicule. (g) Upon some of these subjects a publication by slander, or words of slanderous spoken only, though not properly a libel, (h) may be the subject of words. criminal proceeding, as will be shewn in the course of the Chapter. (a) See the cases collected in Starkie on Lib. 486 to 504. (b) Holt on Lib. 82. (c) Rex v. Lambert and Perry, 2 Campb. 398. (d) Starkie on Lib. 532. (e) Starkie on Lib. 535. ) Rex v. Peltier, Holt. on Lib. 78. Rex v. D'Eon, 1 Blac. R. 517. (g) 1 Hawk, P. C. c. 73. s. 1, 2, 3, 7. VOL. I. Of the mode of expression. Name of the person libelled in blanks. A libel may be as well by descriptions and circumlocutions as in express terms; therefore scandal conveyed by way of allegory or irony amounts to a libel. As where a writing, in a taunting manner, reckoning up several acts of public charity done by a person, said, "You will not play the Jew, nor the hypocrite," and then proceeded, in a strain of ridicule, to insinuate that what the person did was owing to his vain glory. Or where a publication, pretending to recommend to a person the characters of several great men for his imitation, instead of taking notice of what great men are generally esteemed famous for, selected such qualities as their enemies accuse them of not possessing; (as by proposing such a one to be imitated for his courage who was known to be a great statesman but no soldier, and another to be imitated for his learning who was known to be a great general but no scholar) such a publication being as well understood to mean only to upbraid the parties with the want of these qualities as if it had done so directly and expressly. (i) And, upon the same ground, not only an allegory but a publication in hieroglyphics, or a rebus or anagram, which are still more difficult to be understood, may be a libel; and a Court, notwithstanding its obscurity and perplexity, shall be allowed to judge of its meaning, as well as other persons. (k) And it is now well established that slanderous words must be understood by the Court in the same sense as the rest of mankind would ordinarily understand them. (7) Formerly it was the practice to say that words were to be taken in the more lenient sense; but that doctrine is now exploded: they are not to be taken in the more lenient or more severe sense; but in the sense which fairly belongs to them, and which they were intended to convey. (m) Upon the same principles it has been resolved that a defamatory writing, expressing only one or two letters of a name, in such a manner that from what goes before, and follows after, it must needs be understood to signify a particular person, in the plain, obvious, and natural construction of the whole, and would be nonsense if strained to any other meaning, is as properly a libel as if it had expressed the whole name at large; for it brings the utmost contempt upon the law to suffer its justice to be eluded by such trifling evasions; and it is a ridiculous absurdity to say that a said to be a technical word, deriving its meaning rather from its use than its etymology. "There is no other name but that of libel applicable to the "offence of libelling; and we know "the offence specifically by that name, "as we know the offences of horse"stealing, forgery, &c. by the names "which the law has annexed to them." By Lord Camden, in Rex v. Wilkes, 2 Wils. 121. "licacy forbad him from bringing a "direct charge-but it was a male "child who complained to him ;" and these words were understood to mean a charge of unnatural practices. (m) By Lord Ellenborough, C. J. in Rex v. Lambert and Perry, 2 Campb. 403. And in a case of libel, Rex v. Watson and others, 2 T. R. 206, Buller, J. said, "Upon occasions of this "sort I have never adopted any other "rule than that which has been fre"quently repeated by Lord Mansfield "to juries, desiring them to read the 66 paper stated to be a libel as men of "common understanding, and say "whether in their minds it conveys the "idea imputed." |