1 Ed. 6. c. 12. s. 16. 3 Inst. 88. Cro. Eliz. 94. the former being places where they are not known, and there become to be married, living. having another husband or wife living, to the great dishonour of God, and utter undoing of divers honest men's children, and others;" and enacted, "That if any person or persons within his majesty's dominions of England and Wales, being married, or "which hereafter shall marry, do marry any person or persons, "the former husband or wife being alive; that then every such "offence shall be felony, and the person and persons so offending shall suffer death as in cases of felony; and the party and "parties so offending shall receive such and the like proceeding, "trial, and execution, in such county where such person or per"sons shall be apprehended, as if the offence had been committed "in such county where such person or persons shall be taken or "apprehended." 1 Hale's P. C. 692. To what persons not extend. Sect. 2. By 1 Jac, 1. c. 11. s. 2. it is provided, "That this this statute shall act, nor any thing therein contained, shall extend to any person "or persons whose husband or wife shall be continually remaining beyond the seas by the space of seven years together, or "whose husband or wife shall absent him or herself the one from "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." No corruption of blood, loss of dower, or inheritance. 1 Hale, 692. S Inst. 89. Kely. 27. C. Čar. 461, 462. S Inst. 89. 141. 66 66 Sect. 3. By 1 Jac. 1. c. 11. s. 3. it is also provided, "That "this act, nor any thing herein contained, shall extend to any person or persons that are or shall be at the time of such marriage divorced by any sentence had or hereafter to be had in "the ecclesiastical court; or to any person or persons where the "former marriage hath been or hereafter shall be, by sentence in "the ecclesiastical court, declared to be void and of no effect; nor to any person or persons for or by reason of any former marriage had or made, or hereafter to be had or made, within age of consent." 66 66 66 Sect. 4. By 1 Jac. 1. c. 11. s. 4. it is also provided, "That no attainder for this offence, made felony by this act, shall "make or work any corruption of blood, loss of dower, or disin"herison of heir or heirs." In the construction of this statute it has been holden: Sect. 5. FIRST, That not only those who are divorced à vinculo matrimonii, but also those who are divorced only à mensâ et thoro causâ adulterii or sævitia are within the exception in this statute, notwithstanding there be not the word " divortiamus," but only the word "separamus," in the sentence: because the statute, being penal, shall be construed favourably, and such separations are taken for divorces in common understanding. Sect. 6. SECONDLY, Where either of the parties were within 1 R. Abr. 340, the age of consent at the time of the first marriage, that not only such person as was within such age, but also the other who was above it, is within the exception of the statute, because the power of disagreeing to such marriage is equal on both sides. Co. Lit. 79. 1 Hale, 692. 1 Sid, 171. Kely. 80. Sect. 7. THIRDLY, That if the first marriage were beyond sea, and and the latter in England, the party may be indicted for it here, because it is the latter marriage that makes the offence; but if the first marriage were in England, and the latter beyond sea, it is said that the offender cannot be indicted here; sed quare, why not? Because the apprehension to be legal must be founded on a previous offence, but the party has committed no offence against the law of England by a marriage in a foreign country; for the words of the statute are, "That the parties so offending "shall receive such and the like proceeding, trial, and execution, "in such county where such person or persons shall be apprehended, as if the offence had been committed in such county "where such person or persons shall be taken or apprehended." + Sect. 8. FOURTHLY, That the first and true wife cannot be 1 Hale, 692. admitted to give evidence against her husband; and this rule has been so strictly taken, that even an affidavit to postpone the trial, made by the first wife, has been rejected; but it is agreed, that the second woman is a competent witness, even to prove the mar- 1 Hale, 693. riage, for she is not his wife so much as de facto. Sess. 1786. + Sect. 9. FIFTHLY, That on the trial of this offence, a mar- Morris v. Milriage in fact must be proved, for that neither acknowledgment, ler, nor cohabitation, nor reputation, nor the production of articles 4 Burr. 2059. between the parties for settling the estate between them as man and wife, nor even the confession of the parties, are sufficient to maintain an indictment on this statute. + Sect. 10. SIXTHLY, That the evidence necessary to prove a Morris, v. Milmarriage in fact is the production of the register, pursuant to the ler, statute 26 Geo. 2. c. 33. s. 14. or, if that be lost or cannot be 4 Burr. 2059. had, by the viva voce testimony of some person who was present at the celebration of the marriage. (1) 11 St. Tr. 262. + Sect. 11. SEVENTHLY, That a sentence obtained in the spiri- Duchess of tual court, in a suit of jactitation, does not preclude the prose- Kingston's Case, cutor from proving a marriage between the same parties on an indictment for bigamy; for if even such a sentence were primâ facie evidence, it might be avoided by shewing that it was obtained by fraud. 2. Clandestine and Irregular Marriages. Marriage, as the most important of all civil contracts, has in (1) This ruling seems however to be shaken by a subsequent case of R. v. Truman, who was tried at the Nottingham Spring Assizes, 1795. The prisoner was indicted for that he having married Mary Russel, spinster, at Ragan, in Scotland, afterwards married Jane Cass, his former wife being still living. A witness proved that the prisoner had cohabited with Mary Russel as his wife, and had often acknowledged to the witness that he had married her in Scotland, and to back his assertion he once shewed witness a paper, (which the prisoner not having produced pursuant to notice given him for that purpose) a copy of it was proved. It purported to be a proceeding before a court in Scotland, by which the prisoner was tried for having contracted marriage with Mary Russel in an un christian orderly manner against the rules of the Kirk. Upon a question reserved for the judges whether this was sufficient evidence of the first marriage, they held that it was; for it did not rest upon the bare acknowledgment of the prisoner, but the defendant had backed his assertion by producing a proceeding in court which verified it. One of the judges observed, there was a distinction in the acknowledgment of a marriage between this case and in an action for criminal conversation. In the latter case the acknowledgment of the plaintiff that he was married was no evidence against the defendant. And the acknowledgment of the defendant that the plaintiff was married was an acknowledgment of a fact not within his own knowledge. christian countries always been accompanied by the solemnities of religion, and, except by special dispensation from ecclesiastical authority, authenticated, by the ceremony being performed in facie ecclesia. But certain irregularities having grown up occasioned the statute of 26 Geo. 2. c. 53. which, after reciting that many persons did solemnize marriage in prisons and other places without publication of bans or license of marriage first had and obtained, enacted certain regulations upon these subjects, and made it a felony subject to fourteen years transportation for any one to solemnize marriage in any other place than a church or public chapel. This act continued in force until the 3 Geo. 4. c. 75. which repealed many of the provisions, and enacted other regulations in lieu thereof; this latter act was also repealed, together with the 26 Geo. 2. the next session, by stat. 4 Geo. 4. c. 17. and another act passed at the same session of parliament, enacting other regulations-repealing 26 Geo. 2. and 4 Geo. 4. c. 17.—and this last statute, viz. the 4 Geo. 4. c. 76. which directs certain regulations to be observed in the celebration of marriages, by sect. 21. enacts, "That if any person shall, from and after the 1st day of November, (1823), solemnize matrimony in any other place "than in a church or such public chapel wherein bans may be pórted for four" lawfully published, or at any other time than between the hours teen years. of eight and twelve in the forenoon, unless by special license from "the Archbishop of Canterbury, or shall solemnize marriage "without due publication of bans, unless license of marriage be “first had and obtained from some person or persons having "authority to grant the same; or if any person falsely pretending "to be in holy orders shall solemnize matrimony according to "the rites of the Church of England; every person knowingly " and wilfully so offending, and being lawfully convicted thereof, "shall be deemed and adjudged to be guilty of felony, and shall "be transported for the space of fourteen years, according to the "laws in force for the transportation of felons; provided that all prosecutions for such felony shall be commenced within the space of three years after the offence committed." Persons cele brating marriage in an irregular way to be trans felony, and to be transported for life. 66 By sect. 28. in order to preserve evidence of the marriage, an entry is directed to be made in the registry book of the Persons forging parish; and by sect. 29. it is enacted, "That if any person shall, or altering mar-after the said 1st day of November, with intent to elude the riage register or license, guilty of "force of this act, knowingly and wilfully insert or cause to be "inserted in the registry book of such parish or chapelry as "aforesaid, any false entry of any matter or thing relating to any "marriage; or falsely make, alter, forge or counterfeit, or cause "or procure to be made, altered, forged, or counterfeited, or "assist in falsely making, altering, forging or counterfeiting any "such entry in such register; or falsely make, alter, forge, or counterfeit, or cause or procure to be made, &c. or assist in "falsely making, &c. any such license of marriage as aforesaid, "or alter or publish as true any such false, altered, forged, or "counterfeited register as aforesaid in a copy thereof, or any "such false, altered, forged, or counterfeited license of marriage, "knowing such register or license of marriage respectively to be "false, altered, forged or counterfeited; or if any person shall, 66 "from 66 "from and after the said 1st day of November, wilfully destroy, or cause or procure to be destroyed, any register book of marriages, or any part of such register book, with intent to avoid any marriage, or to subject any person to any of the penalties "of this act; every person so offending and being thereof law"fully convicted, shall be deemed and adjudged guilty of felony, "and shall suffer the punishment of, transportation for life, according to the laws in force for the transportation of felons." 66 By a preceding statute, 52 Geo. 3. c. 146. the false entry of any matter relating to any marriage, or to forge or alter any such register, &c. is made a felony, subject to fourteen years transportation. (Vide unte, p, 290.) 3. Vagrancy. The statute of 5 Geo. 4. c. 83. repeals all the former laws relative to rogues and vagabonds. 66 66 66 66 66 The act then declares that the following shall be deemed Idle and Disorderly Persons. By sect. 3. it is enacted, "That every person being able 5 Geo. 4. c. 83. wholly or in part to maintain himself or herself, or his or her Persons committing certain family, by work or by other means, and wilfully refusing or offences how to neglecting so to do, by which refusal or neglect he or she, or be punished. "any of his or her family, whom he or she may be legally bound "to maintain, shall have become chargeable to any parish, township or place; every person returning to and becoming charge"able in any parish, township, or place, from whence he or she "shall have been legally removed by order of two justices of the peace, unless he or she shall produce a certificate of the church"wardens and overseers of the poor of some other parish, township, or place, thereby acknowledging him or her to be settled in "such other parish, township, or place; every petty chapman or pedlar wandering abroad and trading, without being duly licensed, or otherwise authorized by law; every common prostitute wan"dering in the public streets or public highways, or in any place "of public resort, and behaving in a riotous or indecent manner; and every person wandering abroad, or placing himself 66 or herself in any public place, street, highway, court, or passage, to beg or gather alms, or causing or procuring or encouraging any child or children so to do, shall be deemed an idle "and disorderly person within the true intent and meaning of "this act; and it shall be lawful for any justice of the peace "to commit such offender (being thereof convicted before him "by his own view, or by the confession of such offender, or by "the evidence on oath of one or more credible witness or wit"nesses) to the house of correction, there to be kept to hard "labour for any time not exceeding one calendar month.' 66 66 VOL. I. Y Y Rogues 5 Geo. 4. c. 83. Persons committing certain offences to be 66 Rogues and Vagabonds. By sect. 4. it is further enacted, "That every person committing any of the offences herein-before mentioned, after hav"ing been convicted as an idle and disorderly person; every deemed rogues" person pretending or professing to tell fortunes, or using any and vagabonds.subtle craft, means, or device, by palmistry or otherwise, to "deceive and impose on any of his majesty's subjects; every 66 66 66 66 66 person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, "or under a tent, or in any cart or waggon, not having any vi"sible means of subsistence, and not giving a good account of "himself or herself; every person wilfully exposing to view, in any street, road, highway, or public place, any obscene print, "picture, or other indecent exhibition; every person wilfully, openly, lewdly, and obscenely exposing his person in any street, "road, or public highway, or in the view thereof, or in any place "of public resort, with intent to insult any female; every person wandering abroad and endeavouring by the exposure of wounds or deformities to obtain or gather alms; every person going "about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence; every person running away " and leaving his wife, or his or her child or children, chargeable, or whereby she or they or any of them shall become chargeable "to any parish, township, or place; every person playing or "betting in any street, road, highway, or other open and public place, at or with any table or instrument of gaming, at any game or pretended game of chance; every person having in "his or her custody or possession any picklock key, crow, jack, "bit, or other implement, with intent feloniously to break into any dwelling house, warehouse, coach-house, stable, or outbuild"ing, or being armed with any gun, pistol, hanger, cutlass, "bludgeon, or other offensive weapon, or having upon him or "her any instrument, with intent to commit any felonious act; every person being found in or upon any dwelling house, "warehouse, coach-house, stable, or outhouse, or in any inclosed "yard, garden, or area, for any unlawful purpose; every sus"pected person or reputed thief, frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or ware"house near or adjoining thereto, or any street, highway, or " avenue leading thereto, or any place of public resort, or any " avenue leading thereto, or any street, highway, or place adja"cent, with intent to commit felony; and every person appre"hended as an idle and disorderly person, and violently resisting "any constable or other peace officer so apprehending him or "her, and being subsequently convicted of the offence for which "he or she shall have been so apprehended, shall be deemed a rogue and vagabond, within the true intent and meaning of this act; and it shall be lawful for any justice of the peace to "commit such offender (being thereof convicted before him by "the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses) to the house of "correction, " 66 66 |