The act, however, excepts from its provisions the following four cases: 1. That of a second marriage contracted out of England, by any other than a subject of the realm„ 2. That of 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. 3. That of a person who, at the time of such second manage, shall have been delivered from the, bond of the first marriage. 4. That of a person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction. The third of these exceptions deserves notice, in consequence of its bearing on a curious question that arose before the passing of the act, and which showed a serious conflict which then existed, if it does not still exist, between the laws of England and Scotland. The referred to is known among lawyers as L0115115 case; it occurred in 1812, and may he shortly stated as follows: Lolly and his wife, two English persons, being tired of each other's conjugal society, and unable to bear the expense of the then English ordeal, went. to Scotland, where, after acquiring a domicile, they applied to the Scotch consistoriat court for a divorce, which was speedily (although it is said collusively) obtained, on the ground of the husband's adultery. Relying on such sentence of the Scotch court. Lolly returned to England, where he married again. Ile was immediately indicted for B.. tried, convicted, and sentenced to seven years transportation, and that in the face of the Scotch decree of divorce, which he reasonably pleaded by way of defense. The. point, however, was reserved for further consideration before the full court (court of Exchequer), who, however, shortly after gave a unanimous judgment holding that Lolly had been rightly convicted; or, in Other words, that the Scotch court had no authority to dissolve an English marriage, and that the decree of divorce which Lolly had obtained, although good in Scotland, was of no force whatever in England. Many dis
tinguished English lawyers were of opinion that the judgment of the English court was wrong. and that the Scotch divorce afforded him a complete defense. halt it is to be observed that the prosecution was founded on the 1 James I. c. 11, to which we have referred, the 3d section of which only excepts from its provision persons divorced sentence had in the ecclesiastical court," meaning, of course, the English eceie stastical court; and thus some color at least is given to the view taken of Lolty's case by the court of Exchequer. But it may well be doubted whether such a conviction could take place in the face of the above third exception in the 9 Geo. IV.. which excepts persons who shall have been divorced, not by any particular court or jurisdiction, but simply divorced from the bonds of the first marriage.
It remains to be added that under the 9 Geo. IV., not only the actual bigamist, but every person counseling, aiding, or abetting the offender• is held equally guilty, and may be sentenced to the same punishment; and by section 31, accessories before and after the fact are also severely punishable.
The 9 Geo. IV. does not extend to Scotland, but the law there on the subject of this par ticular offense is very much the same in principle. although the punishment there is not so severe as in En;land. There is an old Scotch statute. passed in 1551. which declares the punishment of B. to he the same as that of perjury; but the offense is also indictable at common law in Scotland, and in modern it is usual so to deal with it, aunl to limit the punishment to imprisonment. See MARRIAGE, DIVORCE. POINOAMY.
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