ignifies being twice married, but with us the term is used as nearly synonymous with polygamy, or having a plurality of wives at once. A second marriage, while the former husband or wife is still living, is simply void; and a mere nullity, by the ecclesiastical law of England; yet the legislature has thought it just to make it felony, by reason of its being so great a violation of the public economy and decency of a well-ordered state. Hence it was enacted by statute 1 Jac. I. c. 12, that if any person being married, do afterwards marry again, the former husband or wife being alive, it is felony, but within the benefit of clergy. The first wife in this case cannot be admitted as an evidence against her husband, because she is the true wife; but the second may, for she indeed is no wife at all; and so, vice versa, of a second husband. This act makes an exception to five cases, in which such second marriage, though in the first three it is void, is yet no felony. 1. Where either party has been continually abroad for seven years, whether the party in England has notice of the other's being alive or not. 2. Where either of the parties has been absent from the other seven years within this kingdom, and the remaining party has had no knowledge of the other's being alive within that time. 3. Where there is a divorce, or separation a mensa et toro, by sentence in the ecclesiastical court. 4. Where the first marriage is declared absolutely void by any such sentence, and the parties are loosed a vinculo matrimoni. 5. Where either of the parties was under the age of consent at the time of the first marriage; in which case the first marriage was voidable by the disagreement of either party; and this the second marriage clearly amounts to.

But if at the age of consent the parties had agreed to the marriage, which completes the contract, and indeed constitutes the real marriage, and if one of them should afterwards marry again, the other being still alive, Blackstone apprehends that such second marriage would be within the reason and penalties of the act.

In Scotland this offence has been viewed in a light somewhat different. At the date of our only statute respecting bigamy, that of 1551, c. 19, the offence seems to have been chiefly considered in a religious point of view, as a sort of perjury, or violation of the solemn vow or oath which was then used in contracting marriage; and, accordingly, it was ordained to be punished with the proper pains of perjury. But this injunction has not in every instance been complied with; and, from considerations of policy or expediency, the court has long been in use to inflict an arbitrary punishment, suited, as nearly as may be, to the degree and measure of guilt brought home to the prisoner. The most important point concerning the description of bigamy which is the contracting of a second marriage during the subsistence of the first, relates to the quality of the two marriages, and involves the nice and delicate inquiry whether both must be marriages by formal celebration, or whether the charge will lie although both or one of them be contracted in that loose and ceremonious fashion which is sustained, in single cases, by the law and custom of Scotland. And here it may be observed, in the first place, that from the general strain and language of the statute above referred to, which passed at a time when there was no marriage without formal celebration, the presumption appears to be in favour of the more lenient opinion; and this is further confirmed by the circumstance that the application of the pains of perjury to this offence seems plainly to presuppose the contempt of a solemn oath or vow, and a gross abuse of the service of the church. The most favourable case for the offender, therefore, is that where both connections are of this loose and ambiguous character, as by promise and copula, courtship and acknowledgements, or the like; for here it may be urged that there has been no solemn entry into the holy state of matrimony, and no prostitution of religious ceremonies or ecclesiastical ministrations; and that circumstances which may be held relevant in a civil question of status, if consisting merely of probabilities and presumptions of law, cannot afford that full and decisive proof of dolo, or of a settled purpose to marry and betray, without which there ought to be no conviction of the crime of bigamy. Secondly, although this argument does not fully apply to the case of one who, after having duly solemnized a marriage, betakes himself to some clandestine and irregular connection; yet it may still be argued, that, as he knew himself to be already married, and consequently for the time incapable of contracting a second marriage, so it ought to be presumed in his favour as long as it reasonably can, and until he take the decisive step of again undergoing the ceremony, that he had no abusive or deceitful purpose in view, but merely intended an intercourse of a different sort, highly immoral in itself, but by no means tantamount to the celebration of a second marriage. Thirdly, a more unfavourable case than either of the former is that of a regular marriage subsequently to some clandestine connection; yet even here it is doubtful whether we have got the proper materials of the crime of bigamy. For, in those anomalous situations where the female has not been in possession of the repute and status of a married woman, but is merely a claimant or pretender to that character, it may be exceedingly doubtful whether, after all, the man intended to marry, notwithstanding what the civil court may have found; and, while such a doubt exists, it may deserve consideration whether the party can be reasonably and consistently held to have committed the particular crime contemplated by the law. But this will scarcely apply to the case where, instead of a secret and ambiguous intercourse, the woman has been supposed and held to have been in the full and continued enjoyment, not only of that degree of repute which a civil court might possibly sustain as sufficient to entitle her to the legal character and privileges of a wife, but of that public and invariable character which prevents any doubt being raised as to the understood relation of the parties.

So much for the form of the two marriages. The other qualities which must unite in the first marriage to bring it under the safeguard of the law are, 1. That it must be a lawful marriage, such as has not been contracted in contempt of any injunctions of law relative to proximity of kindred or previous conviction of adultery; and, 2. That it be not only a lawful, but a subsisting marriage, the parties living together lawfully married and undivorced. In every case the second marriage is null from being contracted during the subsistence of a previous one; and if it be also an incestuous, adulterous, or otherwise forbidden marriage, this additional aggravation cannot alter the character or shelter from the pains of the crime of bigamy. Further, it is obvious that, according to the circumstances of the case, the guilt of this offence may either be chargeable exclusively against one of the parties, in whose person there is a double marriage; or it may be the common guilt of both the parties to the second marriage, although to one of them it may be a first marriage. (Hume's Commentaries, vol. i. p. 455 et seqq.)