BIGAMY. This is an offense which, although perfectly intelligible in itself to the popular and unprofessional understanding, is yet, with a due regard to the strict mean ing of the word, extremely difficult, legally, to define. Blackstone objects to the use of it as a term descriptive of the offense in view; for he says it is called, because B. properly signifies being twice married, which a man or woman may legally be; and he therefore prefers the•term polygamy., B., however, even according to the literal meaning, was an offense, or rather disqualification, according to the canonists, who explained it to consist in marrying two virgins successively, one after the death of the other, or in once marrying a widow; and persons so offending or disqualified were held to be incapable of holy orders, and therefore B. was anciently considered a good terplea to the claim of benefit of clergy (q.v.), although the law in that respect was after wards altered by a statute passed in the reign of Edward VI., when, bigamists or no bigamists, the clergy resumed their strange privilege. Different views prevailed in more modern times, and at a period, too, when the restraints of ecclesiastical dogmas had been thrown off. It is known that certain of the leaders of the German reforma tion. including Luther, Melanclithon, Bucer, and Melander, did not withhold their con sent from Philip. landgrave of Hesse, champion of the reformation, who, having lost conceit of his wife, had applied to the Protestant doctors for license to have another, and which license was not withheld, for the marriage took place, and was performed by Melander in presence of 31elanchthon, Bucer, and others; and prirately, as the mar riage-contract bears, "to avoid scandal, that, in modern times, it has not been usual to have two wives at once, although in this case it be Christian and lawful." Whether Luther and the other Protestant doctors actually held views favorable to poly gamy has been the subject of warm controversy (see sir Hamilton's Discussion, on Philosophy and Literature, 1852, 2{1 ed., 1853; and archdeacon Hare's Vindication of Luther, 1855). Sir William Hamilton asserts that Luther believed in " the religious legality" of polygamy, and wished it to be sanctioned by the civil authorities—an asser tion, however, of which the promised proof never appeared. Archdeacon Hare, on the other hand, maintains that Luther and Melanehthon only held that in certain extraor dinary emergencies dispensations from the usual law of marriage might be granted. Be that as it may, the conduct of the reformation leaders in this matter has been univer sally condemned, even by Protestants. The ideas referred to never gained ground in
Germany; while in Great Britain " monogamy" not only continued an institution, but its violation was regarded as a serious offense, which continues to be treated in statutes, law-hooks, and in the practice of the criminal courts in the three kingdoms, under the name of bigamy. Nor, indeed, have the ideas referred to been followed by the Germans as a nation.
The ,first statute which distinctly treated this offense as a felony was the 1 James I. c. 11, which enacted that a person so convicted should suffer death. What now consti tutes the English law regarding the crime of bigamy, h the 22d section of 0 Geo. 1V. c. 31, passed in 1828. B. is there declared to be ,committed by " any person who, being married, shall marry any other person during the life of the former husband or wife, whether the second mar/lame shall have taken place in England or elsewhere"—a defini tion that appears to be adopted by the recent divorce act, the 20 and 21 Viet. c. 85, where, for the purpose of that act, B. is to be taken to mean "marriage of any person being married, to any other person the life of the former husband or wife. whether the second marriage shall have taken place within the dominions of her majesty, or elsewhere." More correctly, however, the offense of B. may be said to con sist in going through the form or appearance of a second marriage, while a first subsists, with a mau or woman, against whom the most odious deceit and fraud is thus prac ticed, and upon whom, especially in case of a woman, the deepest injury is inflicted; for the second marriage is merely a marriage in form—no real marriage at all, because a man cannot have two wives, or a woman two husbands, at one and the same time. In prosecutions under this act, the first wife is not admissible as a witness against her husband, because she is the true wife; but the second may, because she is not only no wife at all, but because she stands in the position of being the party peculiarly injured by the bigamy. The same is the procedure in the case of a second husband. The act the 1 James I. makes B. a felony, and prescribes as the puuishment, upon conviction, transportation for seven years; now changed (by the 16 and 17 Viet. c. amended by the 20 and 21 Viet. c. 3) to penal servitude for the same period, or not less than three years; or to be imprisoned, with or without hard labor, in the common jail or house correction for any term not exceeding two years.