BIGAMY. The state of a man who has two wives, or of a woman who has two hus bands, living at the same time.
When the man has more than two wives, or the woman more than two husbands, living at the same time, then the party is said to have committed polygamy; but the name of bigamy is more fre quently given to this offence in legal proceedings. 1 Russell, Cr. 187.
According to the canoniste, bigamy is threefold, viz.: (Vera, interpretativa et similitudinaria) real, interpretative, and eimilitudinary. The first con sisted in marrying two wives successively (virgins they may be), or in once marrying a widow ; the second consisted, not in a repeated marriage, but in marrying e. g. meretricem vel ab alto corruptam, a harlot; the third arose from two marriages, indeed, but the one metaphorical or spiritual, the other car nal. Thie iast was confined to persons initiated in sacred orders, or under the vow of continence. De ferriere's Tract. Juris Canon. tit. xxi. See also Bacon, Abr. Marriage.
In England this crime was punishable by the stat. 24 & 25 Vict. c. 100, § 57, which made the offence felony ; but it exempted from punishment the party whose husband or wife should continue to remain absent for seven years before the second marriage with out being heard from, and persons who had been legally divorced. The statutory provi sions in the United States against bigamy or polygamy are in general similar to, and copied from, the statute of 1 Jac. I. c. 11, which was supplied by the act of 24 & 25 Vict. c 100, excepting as to the punishment. The several exceptions to this statute are also nearly the same in the American stat utes; but the punishment of the offence is different in many of the states; 2 Kent 69.
Bigamy and polygamy are crimes by the laws of all civilized and Christian countries, and the First Amendment to the constitution declaring that congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof, was never intended to be a protection against legislation for the punishment of such crimes; Davis v. Beason, 133 U. S. 333, 10 Sup. CL 209, 33 L. Ed. 637. It is no defence that polygamy is a religious belief ; U. S. v. Reynolds, 1 Utah 226; Reynolds v. U. S., 98 U. S. 145, 25 L. Ed. 244.
The act of March 22, 1882, creates a new and distinct offence from bigamy or polyga my, one which is declared to be a misde meanor (there baying been and being no such declaration as to bigamy and polygamy), and the punishment is much less than for bigamy and polygamy. It is the offence cf cohabit ing with more than one woman; Snow v. U. S., 118 U. S. 346, 6 Sup. CL 1059, 30 L. Ed. 207.
It is no defence that the accused believed his former marriage was annulled, when the statute merely defines the offence as marry ing again where a former spouse is living; State v. Zichfeld, 23 Nev. 304, 46 Pac. 802, 34 L. R. A. 784, 62 Am. St. Rep. 800.
If a woman, who has a husband living, marries another person, she is punishable, though her husband has voluntarily with drawn from her and remained absent and unheard of for any term of time less than seven years, and though she honestly be lieves, at the time of her second marriage, that he is dead; Com. v. Mash, 7 Metc. (Mass.) 472. See a discussion of this case by Mr. Bishop, in which he dissents from its ruling, in 4 So. L. J. (N. S.) 153; Clark, Cr. L. 311. Also, 12 Am. L. Rev. 471. The same rule applies also to the marriage of the husband, where he believes the wife to be dead; Dotson v. State, 62 Ala. 141, 34 Am. Rep. 2 ; Davis v. Com., 13 Bush (Ky.) 318. The same rule now obtains' in England, after some conflict of opinion; 14 Cox C. C. 45; but quwre, if her belief were founded on positive evidence; Steph. Dig. Cr. Law, art. 34, n. 9. On the trial of a woman for bigamy whose first husband had been ab sent from her or more than seven years, the jury found that they had no evidence that at the time of her second marriage she knew that he was alive, but that she had the means of acquiring knowledge of that fact had she chosen to make use of them. It was held that upon this finding the conviction could not be supported; 1 Dearsl. & B. Cr. Cas. 98. If a man is prosecuted for bigamy, his first wife cannot be called to prove her marriage with the defendant; T. Raym. 1; Williams v. State, 44 Ala. 24; 15 Low. Can. J. 21; nor it seems even to prove that the first marriage was invalid ; 4 Up. Can. Q. B. 588; but see as to this last point, 2 Whart. Cr. L. § 1709.