(compounded of the Latin bis, twice, and the Greek γαμέω, I marry) literally signifies being twice married; but with us the term is used as nearly synonymous with polygamy. Wherever Christianity prevails, the union with more than one spouse is condemned by religion, public opinion, and law; although in the polemical contests of the Reformation there was some risk of the principle being relaxed, in the zeal with which the spirit of celibacy attri- buted to the Church of Rome was controverted. Most nations of modern Europe have taken their law of bigamy in some measure from the canon law; but England, with her usual jealousy of the influence of that system, has dealt with bigamy penalily through the statute law. A second marriage while the former husband or wife is still living, is simply null by ecclesiastical law. By the Act of 9th Geo. IV., cap. 31, § 22, amending first of James I., cap. 10, the offence is declared felony, and all concerned in it as principals or accessories are liable to transportation for seven, or imprisonment with hard labour for two years. By the act of 1853 this, with other offences incurring transportation, may be punished with penal servitude. The statute law makes an exception of cases where the second marriage is a question of foreign law, or where it has been contracted in innocent unconsciousness; as for instance where the spouse of the first marriage has been for seven years absent, and is believed to be dead.

The offence is not incurred under the act where at the time of the second marriage the party is "divorced from the bond of the first;" or where it has been declared "void by the sentence of any court of competent jurisdiction." But here the rigid character of the English law comes in conflict with those systems which, founded on the common principles of canonical jurisprudence, are easily adjusted to each other. The English courts, for instance, counting an English marriage as indissoluble by law, have refused to admit a Scottish divorce as having any effect on the condition of the married persons; and in the celebrated case of Lolley, who had been divorced for adultery in Scotland and married again in England, on the understanding that he was safe from penal consequences, sentence was passed on the verdict of a jury after solemn argument before the twelve judges. (Russell and Ryan's, cc. 257.) In the subsequent case of Conway v. Beazley (1831, Haggart's Ecclesiastical Cases, iii. 639), the sweeping character of this decision seemed to create some uneasy doubts; but it was unnecessary in Beazley's case to decide the ultimate question whether the bond of the English marriage can ever in any circumstances be legally dissolved, and it was held that a Scottish marriage following a Scottish divorce was ineffective against a previous English marriage, the parties having their domicile in England. The question how the law would have stood had they been domiciled in Scotland was left open.

In Scotland, at the date of the only statute respecting bigamy, that of 1551, cap. 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 unceremonious 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 acknowledgments, 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 dote, 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. (Home's Commentaries, vol. i. p. 459 et seq.)