A BARRATOR is defined to be a common mover, exciter, or maintainer of suits or quarrels either in courts or in the country, and it is said not to be material, whether the courts be of record or not, or whether such quarrels relate to a disputed title or possession, or not; but that all kinds of disturbances of the peace, and the spreading of false rumors and calumnies, whereby discord and disquiet may grow amongst neighbors, are as proper instances of barratry as the taking or keeping possession of lands in controversy. But a man is not a barrator in respect of any number of false actions brought by him in his own right, unless, as it seems, such actions should be entirely groundless and vexatious, without any manner of color. Nor is an attorney a barrator in respect of his maintaining his client in a groundless action, to the commencement of which he was in no way privy. Hawk. P. C. b. 1, c. 81, ss. 1, 2, 3, 4; 1 Russ. Cri. 362, 5th ed.

Barratry is a cumulative offence, and the party must be charged as a common barrator. It is, therefore, insufficient to prove the commission of one act only. Hawk. P. C. b. 1, c. 81, s. 5. For this reason the prosecutor is bound, before the trial, to give the defendant a note of the particular acts of barratry intended to be insisted on, without which the trial will not be permitted to proceed. Id. s. 13. The prosecution will be confined by these particulars. Goddard v. Smith, 6 Mod. 262. See Car. Supp. 321; supra, p. 194.

The punishment of this offence is fine and imprisonment, and being held to good behavior, and in persons of any profession relating to the law, the further punishment is added of being disabled to practise for the future. Hawk. P. C. b. 1, c. 81, s. 14; 34 Edw. 3, c. 1.

By the 12 Geo. 1, c. 29, s. 4, if any person convicted of common barratry shall practise as an attorney, solicitor, or agent, in any suit or action in England, the judge or judges of the court where such suit or action shall be brought, shall, upon complaint or information, examine the matter in a summary way in open court, and if it shall appear that the person complained of has offended, shall cause such offender to be transported for seven years. This Act was revived and made perpetual by 21 Geo. 2, c. 3, which is repealed, but the above enactment is now made perpetual by the repeal of the section which provided for its expiration, viz., the last section of the Act. See the Stat. Law Rev. Act, 1867.

As to maintenance, see post, tit. "Maintenance."

1 State v. Chitty, 1 Bailey, 379; Commonwealth v. Cooper, 15 Mass. 187; Commonwealth v. Davis, 11 Pick. 434; 1 Russell, C. & M. 185, et seq., b. 2, c. 23, 3d Am. ed. S.

By statute. The offence of bigamy was originally only of ecclesiastical cognizance, but was made a felony by the 1 Jac. 1, c. 11. By the second section of that statute, it was provided that the Act should not extend to any person or persons whose husband or wife should be continually remaining beyond the seas by the space of seven years together, or whose husband or wife should 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. By section 3, it was provided that the Act should not extend to any person or persons that are, or shall be, at the time of such marriage, divorced by any sentence in the ecclesiastical court, or to any person or persons where the former marriage shall be by sentence in the ecclesiastical court *declared to be void and of no effect, nor to any person or per

sons in or by reason of any former marriage had or made within [*327

age of consent.

By the repealed statute 35 Geo. 3, c. 67, persons guilty of bigamy were made liable to the same punishment as persons convicted of fraud or petit larceny.

.

By the 9 Geo. 4, c. 31 (E.), both of the above statutes were repealed, and other provisions substituted in their place.

This statute is also now repealed, and by the 24 & 25 Vict. c. 100, s. 57, "whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England, or Ireland, or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years, and not less than three [now five] years; or to be imprisoned for any term not exceeding two years, with or without hard labor; and any such offence may be dealt with, inquired of, tried, determined, and punished in any county or place in England or Ireland where the offender shall be apprehended, or be in custody, in the same manner in all respects as if the offence had been actually committed in that county or place: Provided, that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of her Majesty; or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time; or shall extend to any person who at the time of such second marriage shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction." 1

Proof. Upon an indictment for bigamy, the prosecutor must prove: 1. The two marriages; 2. The identity of the parties; 3. That the first wife is alive; and if she has been absent for seven years, then, 4. That the prisoner knew she was alive.

I. THE TWO MARRIAGES.

Proof of valid marriage-second marriage. Very considerable difficulties occur, in some cases, in ascertaining how far either or both marriages must be shown to be valid. So far as relates to the first marriage, the question, what marriages will be considered void for the purpose of bigamy, will be found discussed, infra, p. 328, et seq. With

1 In England adultery is cognizable in the Ecclesiastical Courts. In some of the States it has been held an offence cognizable at common law. State v. Wallace, 9 N. H. 515; State v. Avery, 7 Conn. 266; State v. Cox, N. C. Term R. 165. But in most of the States the subject has been generally covered by legislation. As in bigamy, the allegation of marriage is essential and must be proved. Buchanan v. State, 55 Ala. 154; Commonwealth v. Holt, 121 Mass. 61. But the indictment need not mention the wife's name. Davis v. Commonwealth, 1 Pa. Sup. Ct. Dig. 228. Adultery is proved where only one of the parties is married. White v. State, 74 Ala. 31. On whether the adultery may be inferentially proved. Alsabrooks v. State, 52 Ala. 24; State v. Way, 5 Neb. 283; State v. Bridgman, 49 Vt. 202. Evidence of a conversation between the defendants to show that their object in coming together was other than an adulterous one, is inadmissible. Commonwealth v. Bowers, 121 Mass. 45. In an indictment for adultery, the husband of the woman is not a competent witness when both are on trial together. Birge v. State, 78 Ala. 435.

regard to the necessity of proving the validity of the second marriage, but for the existence of the first marriage, considerable doubt used to exist, for it was thought that it was necessary to prove such a legal marriage as would but for the prior marriage have been a binding marriage for all purposes. But it was held, that where a woman already married, and having a husband alive, marries with the widower of her deceased sister, she was guilty of bigamy, though by the 5 & 6 Will. 4, c. 54, such a marriage is declared to be null and void to all intents and purposes whatsoever. R. v. Brawn, 1 C. & K. 144, 47 E. C. L. And in R. v. Allen, L. R., 1 C. C. R. 367; 41 L. J., M. C. 97, confirming the above decision, and disapproving of R. v. Fanning, 10 *Cox, C. C. R. (Irish) 411, post, p. 334, it was held that where a person already bound by an existing marriage [*328

goes through a form of marriage known to and recognized by the law as capable of producing a valid marriage, that will be a bigamous marriage, although invalid by reason of some legal disability in the parties. If, however, the form of marriage gone through is not shown to be one recognized by the law, it is not a bigamous marriage. Burt v. Burt, 29 L. J., P. M. & A. 133, approved in R. v. Allen, supra.

Where in a marriage before a registrar the prisoner, who had been previously married, gave a false name without the knowledge of the woman, it was held that this would not invalidate the marriage so as to acquit the prisoner of the charge of bigamy. R. v. Rea, L. R., 1 C. C. R. 365; 41 L. J., M. C. 92.

Proof of a valid marriage-first marriage-not presumed. The law will not in cases of bigamy presume a valid marriage to the same extent as in civil cases. Per Bailey, J., Smith v. Huson, 1 Phill. 287.2

It is not sufficient to prove cohabitation and marriage by reputation. Catherwood v. Caslon, 13 M. & W. 261.3 "A certified copy of the certificate of the marriage with B. and evidence of cohabitation with a

1 Proof of first marriage by cohabitation. Langtry v. State, 30 Ala. 536. In bigamy, confessions of defendant are not enough to prove the first marriage, though supported by evidence of cohabitation and reputation; proof of actual marriage, either by the record or an eye-witness, is requisite. Gahagan v. People, 1 Park. C. R. 378; Bird v. State, 21 Gratt. 800. An indictment for bigamy should allege the first marriage to be a lawful marriage, and that at the time of the second marriage the accused knew his lawful wife to be alive. King v. State, 40 Ga. 244. To support an indictment for bigamy, it is a sufficient marriage in fact that the parties agree to be husband and wife, and cohabit and recognize each other as such. It is immaterial whether a person who pretended to solemnize the contract was or was not a clergyman or magistrate, or that either party was deceived by his false representation of that character. Hayes v. People, 25 N. Y. 390. S.

Marriage to a second woman in another State, followed by cohabitation, in Illinois will support an indictment. Tucker v. People, 117 Ill. 88. On an indictment for bigamy it is not necessary to prove cohabitation; the crime is complete though there be an immediate separation without cohabitation. Gise v. Commonwealth, 81 Pa. St. 428.

2 People v. Wentworth, 4 N. Y. Crim. Rep. 207.

But where the proof of marriage is contradicted, cohabitation is competent evidence in corroboration. People v. Wentworth, 4 N. Y. Crim. Rep. 207.

person of that name immediately afterwards was held insufficient by Hawkins, J. (Recorder of London, diss.), R. v. Simpson, 15 Cox, C. C. 323."

Proof of valid marriage—prisoner's admission. In R. v. Newton, 2 Moo. & Rob. 503, Wightman, J., held that the prisoner's admissions, deliberately made, of a prior marriage in a foreign country are sufficient evidence of such marriage, without proving it to have been celebrated according to the law of the country where it is stated to have taken place. And the same learned judge held the same in R. v. Simmonds, 1 C. & K. 164, 47 E. C. L.; but in R. v. Flaherty, 2 C. & K. 782, 61 E. C. L., where a man went to a police station, and stated that he had committed bigamy, and when and where the first marriage took place, and while in custody signed a statement to the same effect, Pollock, C. B., thought this, though some evidence of the first marriage, was not sufficient. Probably this opinion was founded on some suspicion, in the particular case, of the truth of the admission.1

Proof of a valid marriage-second wife a competent witness. After proof of the first marriage, the second wife is a competent witness, for then it appears that the second marriage is void. Bull. N. P. 287; 1 East, P. C. 469.

Proof of a valid first marriage-proof that valid ceremony was performed-marriages in England. It is clear that unless the first marriage be valid, the crime of bigamy cannot be committed. Where the marriage has taken place in England, it may have been celebrated either in a church or chapel where marriages have been usually solemnized, or which is duly licensed by a bishop, according to the rites of the Church of England, or in a duly registered chapel according to such form as the parties please, before some registrar of

The confessions of one indicted for bigamy, of a prior marriage in another State than the one in which the indictment is laid, is properly received in evidence against him. The jury have only to be satisfied that the admission of a prior marriage involved an admission of its validity. Williams v. State, 54 Ala. 131. But though the admissions of defendant, as to a prior marriage, are evidence against him, they cannot be introduced in his favor unless as part of matters called out by the State. State r. Hughes, 35 Kan. 626. The force of the evidence of a prior marriage, derived from the defendant's admissions thereof, depends upon the circumstances under which such admissions were made. Commonwealth v. Henning, 10 Phil. (Pa.) 209; Arnold r. State, 53 Ga. 574; Brown v. State, 52 Ala. 338; Commonwealth v. Jackson, 11 Bush, (Ky.) 679. The second marriage must be proved. The admission of the defendant is not sufficient. Tucker v. People, 117 Ill. 88.

"In a trial for bigamy, the true wife cannot be admitted as a witness to prove her own marriage, or her husband's confession that he had subsequently married another woman. Williams v. State, 44 Ala. 24. A wife cannot testify against her husband on a charge of bigamy, even with his consent. Wilson v. Hill, 2 Beasley, (N. J.) 143; State v. McDavid, 15 La. An. 403. S.

The offer of one indicted for polygamy to show that a polygamous marriage was a part of his religion, refused on the ground that such evidence has no foundation for its admission in either justice, reason, or law. United States v. Reynolds, 1 Utah Ty. 226.