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Bigamy (in Civil Jurisprudence)
(Fr. bigamie, from Lat. bis, twice, and Gr. gamos, marriage)
Bigamy, in civil jurisprudence, and especially in criminal law, is a "formal entering into of a marriage while a former one remains un-dissolved" (Bishop, Commentaries on the Law of Statutory Crimes § 577), "the crime of having two wives or husbands at once" (Murray, New Dict., s.v.) or "two or more wives or husbands" (Century Dict., s.v.). Bigamy, being "a species of polygamy" (Stephen, New commentaries, IV, 83), may be designated by the latter word (Bishop, op. cit.); for Sir Edward Coke defines "polygamus" to be one "qui duas vel plures duxit uxores" (3d Instit., XXVII). But its very general 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 (Carpentier, Codes et lois; code pénal, 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 union", 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, because 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 uncivilized people polygamy is almost unknown or even prohibited" (Westermarck, 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 Babylon, bigamy is said to have been the exception and monogamy the prevailing practice (Johns, Babylonian and Assyrian Laws, 134). The Assyrian kings appear to have been monogamists, the kings of ancient Egypt seem to have had only one wife, and the same remark may be made of their subjects (Westermarck, 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, this among so few as four would be impossible. Events seem to have proved the correctness of his judgment, for "the quarrels, jealousies and expenditure of four wives vying 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 two per cent only have a plurality of wives (Westermarck, 439). "'Tis true", writes Lady Mary Wortley 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 (Westermarck, 433). And in the time of Emperor Justinian (527-565) the illegality of bigamy was firmly established: "Duas uxores codem 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 authority supposed to be of the time of Edward I (1272-1307), the king, "who", remarks Sir William Blackstone, "hat justly been styled our English Justinian" (Commentaries, IV, 425): "It has sometimes 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 death, or by judgment of a court of competent jurisdiction, a subsequent marriage is, by English common law, a mere nullity and void (Kent, Commentaries 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 have been more indulgent. Notwithstanding what we have quoted from the authority of the thirteenth century, there seems to have been no English statute defining 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 as a crime punishable with the pains of perjury, these being confiscation of goods, imprisonment, and infamy (Bell, Dict. 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 modelled, 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 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". 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 the other's being living or no" (Commentaries, 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 thereunder 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 continual absence of seven years, and the person marrying shall not know the absent husband or wife "to be living within that time". Those guilty under the statute are liable to penal servitude of not more than seven nor less than three years or to imprisonment 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 pénal" provides the punishment of "travaux forcés à temps" for a person who, being married, shall contract another marriage before dissolution of the former marriage.
A United States Statute declares guilty of polygamy every person, having a husband or wife living, who "in a territory or other place over which the United States have exclusive jurisdiction", marries another, unless thee 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 Constitution of the United Sates 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 Constitution 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 exercise of religion may be, it must be subordinate to the criminal laws of the country, 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 civilized and Christian countries", few crimes being "more pernicious to the best interest 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 v. Reason, United States Reports, CXXXIII, 333, 341, 342, 345). Alien polygamists are, by a United States Statute excluded from admission to the United 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 defining 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 § 3781), and in the 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 fixed at five years, the former husband or wife having been absent from the one remarrying "without being known by him or her within that time to be living and believed 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 imprisonment 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. According to the law of New York, the earlier marriage ceases to be binding until one of the three parties to the two marriages procures a judgment pronouncing the second marriage void (Ne York Court of Appeals Reports, CXIV, 120; Birdseye, op. cit., 1042; cf. Bishop, New Commentaries).
The recently recovered Code of the Babylonian King Hammurabi (about 2250 B.C.), in its regulations respecting bigamy affords some interesting comparisons with modern legislation on the same subject. By that ancient statute a wife "has no blame" who remarries after her husband has been taken captive, "if there was not maintenance in his house" (§ 134). But "if there was maintenance in his house", the captive's wife who remarries "shall be prosecuted and shall be drowned' (§ 133). Another section resembles a provision of an existing New York statute. By this statute, if the second marriage be annulled because the former husband or wife is living, children of this marriage are deemed to be "legitimate children of the parent who at the time of the marriage was competent to contract" (Birdseye, Revised Statutes, 993). In like manner this code of four thousand years ago ordains that if, in the instance of the woman who "has no blame", there be children of her second marriage, she shall return to her first husband if "he return and regain his city", "but the children shall follow their own father". As if to rebuke want of patriotism or love of home the wife of a man who "has left his city and fled" might remarry and "because he hated his city and fled" the fugitive returning was not allowed to reclaim his wife (§ 136).
Tennyson has made double marriage the subject of his poem "Enoch Arden". We may notice how carefully the poet causes a period to elapse longer than the seven years mentioned in the English Statute:-
. . . . . .ten years
Since Enoch left his hearth and native land
Fled forward, and no news of Enoch came,
before his wife listens to the argument, which, however, the poet is not so unpoetical as to reinforce by quoting the statute:-
It is beyond all hope, against all chance,
That he who left you ten long years ago
Should still be living.
- and, like the woman pronounced blameless by the old Babylonian code, for whom "there was not maintenance", Enoch's wife was "poor and wanting help" when she consented to the remarriage which Enoch, returning contrary to all seeming hope and chance, after having been so long "cast away and lost", ratified in his self-effacing prayer for strength "not to tell, never to let her know"-- cf. Hammurabi, Code, § 135.
MURRAY, New English Dictionary (Oxford and New York 1988), s.v.; The Century Dictionary (New York), s.v.; BISHOP, Commentaries on the Law of Statutory Crimes (3d ed., Chicago, 1901); ID., New Commentaries on Marriage, Divorce, and Separation (Chicago, 1891); STEPHEN, New Commentaries on the Laws of England (14th ed., London, 1903); RUSSELL, A Treatise on Crimes and Misdemeanours (6th ed., London, 1896); HOLLAND, The Elements of Jurisprudence (10th ed., New York and London, 1906); The Statute at Large (London, 1710), 111; A Compendious Abstract of the Public General Acts (London, 1861), XXXIX; BELL, Dictionary and Digest of the Laws of Scotland (Edinburgh, 1890). Tit. Bigamy; CARPENTIER, Codes et lois (Paris, 1899); COKE, The Third Part of the Institutes of the Laws of England (London, 1680), XXVII; BIRDSEYE, The Revised Statutes, Codes, and General Laws of the State of New York (3d ed., New York, 1901); Reports of Cases decided in the Court of Appeals (Albany, 1889), CXIV, 120; POLLARD, code of Virginia (St. Paul, 1904), §§ 3781, 3782; Revisal of 1905 of North Carolina (Raleigh, 1905), § 3361; Compiled Statutes of the United States, 1901 (St. Paul, 1902), 3633; Supplement (to the same), 1905 (St. Paul, 1905), 276; BOSWELL, Life of Johnson, ed. HILL (Oxford, 1887), V, 217; WESTERMARCK, The History of Human Marriage (London, 1891); DE COLQUHOUN, A Summary of the Roman Civil Law (London, 1849); works of the Rt. Hon. Lady Mary Wortley Montagu (6th ed., London, 1817), II, 180; BRITTON, tr. NICHOLS (Washington, 1901; JOHNS, (Babylonian and Assyrian Laws, Contracts, and Letters (New York, 1904).
CHARLES W. SLOANE