IRREGULAR MARRIAGE. OFFENCE. Celebrating mar banns or certifi ter celebrating. minister not THE unauthorised celebration of marriage is not an STATUTORY offence at common law (1). But by statute if any person, whether a minister of religion or not, performs riage without the marriage ceremony "contrary to the established cate of banns. "order of the kirk," that is, without banns having been proclaimed or a certificate of banns presented to him he is liable to banishment from Scotland under pain of death if he return (2). Also, if any person, not one not a minisbeing a minister of religion duly vested in his office, celebrate a marriage, he is liable to the same punishment (3). This does not imply that he pretends to Pretence of being be a minister. Falsely assuming the character of a essential." clergyman, and performing clerical functions is a crime at common law (4), and falls under falsehood, fraud, and wilful imposition. But although he does Use of religious not pretend to be, and is known by the parties not sufficient. to be, a clergyman, still, if he assume ministerial functions, and celebrate a marriage, he is liable to the penalty. To what extent the assumption must go, is a question depending upon circumstances (5). And no ceremonial, such as the mere witnessing of a exchange of consent by a magistrate falls within the 1 John Ballantyne, H.C., Mar. 14th 1859; 3 Irv. 352 and Appendix i. p. 667, and 31 S. J. 387.Alison i. 547 contra. 2 Act 1661, c. 34.-Hume i. 465, 466, and cases of Duguid: Muir: Wyllie and Strang: Craighead: and Wilson there.-Alison i. 546. 3 Act 1661, c. 34, as amended by 4 and 5 Will. IV. c. 28. 4 Hume i. 467, and case of Craighead there. - John Ballantyne, H.C., Mar. 14th 1859; 3 Irv. 352 (Lord Justice-Clerk Inglis' opinion, p. 373) and 31 S. J. 387 (do., p. 391). 5 John Ballantyne, H.C., Mar. 14th 1859; 3 Irv. 352 (Lord Jus tice-Clerk Inglis' opinion, p. 373), and 31 S. J. 387 (do., p. 391). ceremonial No offence if nothing done of a religious character. STATUTORY STATUTORY AND COMMON LAW OFFENCE. IRREGULARITY IN EITHER Banns not pro claimed. Act, unless there be some religious ceremony such as offering up prayer, or pronouncing a benediction (1). BIGAMY. Bigamy, or the contracting of a second marriage by a person during the life of his or her spouse, is a crime by statute (2), and at common law (3). 66 Where either marriage was celebrated in facie ecclesiæ, it is not the less bigamy because banns were not proclaimed. Where the clergyman deponed that, at the second marriage, a certificate of the names had been given to the session-clerk for proclamation, and that he mistook it for a certificate of proclamation, the informality was held not to make the second marriage incomplete (4). Again, where it was objected that the prosecutor had failed to prove the first marriage, as he had not proved that banns had been proclaimed, although the marriage was performed by a clergyman, it was laid down by Lord Justice-Clerk Hope, "with I the full concurrence of Lord Mackenzie:"--First, that the words, "lawfully married by" (in the libel), meant only that the ceremony was regularly performed by the clergyman; second, that the husband whose duty it was to make every arrangement for the marriage, was not entitled to state the objection that he had omitted anything on the performance of which by him the wife was entitled to rely; third, that the presumption in law, as to the celebration of the ceremony by the legal officer-the clergyman-was, that all requisites had been complied with; and fourth, that even if proclamation had been omitted in the first marriage, still the crime of bigamy was com 1 Hume i. 465, and case of Lyon in note 1.-Alison i. 545, and case of Nicolson there.- More ii. 417. 2 Act 1551, c. 19.-The statute treats it as perjury, but it is now usually prosecuted at common law. But IRREGULARITY IN EITHER con- MARRIAGE. pute or promise subs, cop. suffi cient? plete (1). Neither marriage need be regular (2). it has not been decided whether a marriage stituted only by habit and repute, or promise subse- Is habit and requente copula, can be libelled to constitute bigamy (3), Perhaps, if the cohabitation was long continued, and of universal reputation, this might be enough (4), but the difficulty would be the libelling of the place and manner of the marriage. An objection to a libel for want of these particulars was sustained. Possibly a written acknowledgment would be sufficient (5). MUST BE LEGAL a defence, The first marriage must have been between parties FIRST MARRIAGE lawfully entitled to marry (6), and it must have been AND SUBSISTING. subsisting at the time of the second marriage. A decree of divorce of prior date to the second marriage Divorce. is a good defence (7), but it is no defence that proceedings are in progress, unless a decree have been pronounced (8). A decree is a good defence, even Decree of divorce though it be afterwards set aside, unless this be on the ground that it was obtained corruptly (9). the accused can prove that he had reasonable grounds Ground to befor believing that the other spouse was dead at the a defence. time of the second marriage he cannot be convicted (10). Whether impotency of the other spouse Is impotency may be relevantly averred to prove the non-subsist- fence? 1 Duncan Macdonald, Glasgow, Dec. 21st 1841; Lord Justice-Clerk Hope's MSS. 2 Will. Brown, H.C., Dec. 24th 1846; Ark. 205 (1st marriage irregular)-Will. Sharpe or Macfie, H.C., July 10th 1843; 1 Broun 568 and Bell's Notes 112 (2d marriage irregular). Septimus Thorburn, Glasgow, Jan. 4th 1844; 2 Broun 4 (2d marriage irregular).-Jas. Purves, H.C., Nov. 20th 1848; J. Shaw 124 (2nd marriage irregular, but followed up by regular ceremony).--Abraham Langley, H.C. June 9th 1862; 4 Irv. 190 and 34 S. J. 541 (both marriages irregu done though after If lar).-Hume i. 459, 460 contra.- 3 John Armstrong, H.C., July 4 Hume i. 461.-Alison i. 537. 6 Hume i. 461.-Alison 537, 538. 9 Hume i. 461.-Alison i. 538. wards set aside. lieve spouse dead of spouse a de FIRST MARRIAGE ence of the first marriage, has not yet been de MUST BE LEGAL AND SUBSISTING. cided (1). SECOND MAR RIAGE NEED NOT BE LEGAL. PUNISHMENT. NATURE OF Parties must have known relationship. FORBIDDEN The second marriage, if formally celebrated, need not be otherwise legal. It is not a marriage, but is an illegal connection, on a criminal pretence of marriage, and is not affected by the fact that it is otherwise vicious, as, for example, by being incestuous (2). The punishment is generally imprisonment, but in aggravated cases penal servitude is inflicted. INCEST. Incest is the crime of carnal intercourse between near relations. There must have been actual connection; mere attempt is not sufficient (3). But attempt to commit incest is itself a crime (4). The relationship must have been known to the parties; but this will be presumed in the absence of counter-proof (5). The general rules are those of the eighteenth chapter of Leviticus (6). The following are undoubtedly forbidden degrees (7): Parent and child. Step-parent and step-child. Parent-in-law and child-in-law. 1 Hume i. 461, referring to p. 2 Hume i. 462.-Alison i. 539.- 3 Hume i. 452-Alison i. 566. Jas. 13th 1870; 1 Couper 437 5 Hume i. 452.-Alison i. 565.More ii. 414. 6 Act 1567, c. 14, 15.-Hume i. 446, 447. 7 Hume i. 448, 449.-Alison i. 562 to 564. 8 This extends by construction to all ascendants and descendants in the direct line.-See Fraser i. 70. Husband and granddaughter of his wife. Wife and FORBIDDEN grandson of her husband. Brother and sister. Half-brother and half-sister. Uncle and niece (1). Aunt and nephew (2). Nephew and uncle's wife. Niece and aunt's husband. Man and brother's wife. Whether this rule applies to a brother's widow is a more difficult question (3), In one early case it was held to be incest (4). Woman and sister's husband (5). Wife and husband's brother's or sister's son. Husband and wife's brother's or sister's daughter (6). The following cases have also occurred in practice:Widower and daughter of wife's brother in halfblood (7). Husband and sister of wife's mother (8). DEGREES. . two sisters or Intercourse between a man and two sisters, or a Intercourse with woman and two brothers, without marriage, was for- two brothers. merly held incestuous; but this would certainly not of bastard except be held now (9). Bastards cannot commit incest, No incest in case unless it be where the mother of a male bastard have with mother. intercourse with him, she being the only person whose relationship is recognised in law, but even this has never been decided (10). 1 Jean Stewart and John Wallace, jun., Perth, Oct. 11th 1845 and H.C., Nov. 24th 1845; 2 Broun 544. 2 This extends by construction to grand-uncles and grand-aunts.— See Fraser i. 71. 3 Deuteronomy xxv. 5.- See Fraser i. 72. 4 Hume i. 449, and case of Irvine there. 5 Hume i. 449, 450.- John Oman, Inverness, April 14th 1855; 2 Irv. 146 and 27 S. J. 368.-See also More ii. 413. construction extends this to the grandchildren of the spouse's 9 See Hume i. 451, and cases of 10 Hume i. 452.-Alison i. 565.More ii. 414. |