« EdellinenJatka »
States is as follows:-The usual modes of authenticating foreign lawsthere, are by an exemplification under the great seal of state; or by a copy proved to be a true copy; or by the certificate of an officer authorised by law, which certificate itself must be duly authenticated. But foreign and unwritten laws, customs, and usages, may be proved, and indeed must ordinarily be proved, by parol evidence. The usual course is to make such proof by the testimony of competent witnesses, instructed in the law, under oath; sometimes, however, certificates of persons in high authority have been allowed as evidence. Story on the Conflict of Laws, 530.
Proof of the marriages-marriages abroad in British factories.] On the subject of the mode of performing marriages in British factories abroad, Lord Stowell has made the following observations. "What is the law of marriage in all foreign establishments, settled in countries professing a religion essentially different? In the English factories at Lisbon, Leghorn, Oporto, Cadiz, and in the factories in the east, Smyrna, Alleppo, and others, in all of which (some of these establishments existing under authority, by treaties, and others under indulgence and toleration,) marriages are regulated by the law of the original country to which they are still considered to belong. An English resident at St. Petersburgh does not look to the ritual of the Greek church, but to the rubic of the church of England, when be contracts a marriage with an Englishwoman. Nobody can suppose that, whilst the Mogul empire existed, an Englishman was bound to consult the Koran for the celebration of his marriage. [*288] Even where no *foreign connexion can be ascribed, a respect is shown to the opinions and practice of a distinct people. The validity of a Greek marriage in the extensive dominions of Turkey, is left to depend, I presume, upon their own canons, without any reference to Mahomedan ceremonies. There is a jus gentium upon this matter, an amity, which treats with tenderness, or at least, with toleration, the opinions and usages of a distinct people in their transactions of marriage. It may be difficult to say, a priori, how far the general law should circumscribe its own authority in this matter; but practice has established the principle in several instances, and where the practice is admitted, it is entitled to acceptance and respect. It has sanctioned the marriages of foreign subjects in the houses of the ambassadors of the foreign country to which they belong. (See Portreis v. Tondear, 1 Hagg. Cons. Rep. 136 (a); and now, stat. 4 G. 4, c. 91, s. 2.) I am not aware of any judicial determination on this point, but the reputation which the validity of such marriages has acquired, makes such a recognition by no means improbable, if such a question were brought to judgment." Ruding v. Smith, 2 Hagg. Cons. Rep. 371 (b).
The validity of marriages celebrated in the chapel of any British fac-. tory abroad, or in the house of any British subject residing at such factory, is recognized by the statute 4 Geo. 4, c. 91, s. 2, (stated post, 289.)
Proof of the marriages—marriage in British colonies.] What form of celebration will confer validity on a marriage in a British colony, must depend upon the peculiar circumstances of the case. This question came before Lord Stowell, in a case in which the validity of such marriage,
(a) Eng. Eccl. Rep. iv. 357. (b) Id. 560.
celebrated at the Cape of Good Hope, between English subjects, by a chaplain of the British forces, then occupying that settlement under a capitulation recently made, was brought before him for his decision. After some observations (which have already been cited, ante, p. 285,) he held the marriage valid, on the ground of the distinct British character of the parties, on their independence of the Dutch law, on their own British transactions, on the insuperable obstacles of obtaining any marriage conformable to the Dutch law, on the countenance given by British authority and British administration to this transaction, and on the whole country being under British dominion. Ruding v. Smith, 2 Hagg. Cons. Rep. 371 (a). Story on the conflict of Laws, 111.
A similar question arose in a case before the King's Bench, respecting the legitimacy of a pauper. A soldier on service with the British army in St. Domingo, being desirous of marrying the widow of another soldier, who had died there, the parties went to a chapel in the town, and the ceremony was there performed by a person appearing and officiating as a priest, the service being in French, but interpreted into English by a person who officiated as clerk, and understood at the time by the pauper to be the marriage service of the church of England. After eleven years' cohabitation, this was held to be sufficient evidence that the marriage was *properly celebrated, although the pauper (the wife) stated that [*289] she did not know that the party officiating was a priest. Lord Ellenborough considered the case, first as a marriage celebrated in a place where the law of England prevailed, (supposing, in the absence of any evidence to the contrary, that the law of England, ecclesiastical and civil, was recognized by subjects of England in a place occupied by the king's troops, who would impliedly carry that law with them,) and held that it would be a good marriage by that law; for it would have been a good marriage in this country before the marriage act, and consequently would be so now in a foreign colony to which that act does not extend. In the second place he considered it upon the supposition that the law of England had not been carried to St. Domingo by the king's forces, nor was obligatory upon them in this particular, and held that the facts stated would be evidence of a good marriage according to the law of the country, whatever it might be, and that upon such facts every presumption was to be made in favor of the validity of the marriage. R. v. Brampton, 10East, 228.
So a marriage between two British subjects at Madras, celebrated by a Catholic priest, not conformably to the laws of the natives of India, nor with the license of the governor, which it had been the uniform custom to obtain, was held valid. Latour v. Teesdale, 8 Taunt. 833 (b), 2 Marsh. 243.
Proof of marriages—abroad—in houses of ambassadors, &c.] It appears that before the passing of the statute 4 Geo. 4, c. 91, a marriage celebrated in the house of an English ambassador abroad, was held valid. R. v. Brampton, 10 East, 286; Ruding v. Smith, 2 Hagg. Cons. Rep. 371 (c). And now, by the 2d section of that statute, reciting that it is expedient to relieve the minds of all his majesty's subjects from any doubt of the validity of marriages, solemnized by a minister of the church of England in the chapel or house of any British ambassador, or minister re
(4) Eng. Eccl. Rep, iv. 560. (b) Eng. Com. L. Rep. iv. 299. (c) Eng. Eccl. Rep. iv. 560.
siding within the country, to the court of which he is accredited, or in the chapel belonging to any British factory abroad, or in the house of any British subject residing at such factory, as well as from any possibility of doubt concerning the validity of marriages solemnized within the British lines, by any chaplain, or officer, or other person officiating under the orders of the commanding officer of a British army serving abroad; it is enacted that all such marriages shall be deemed and held to be as valid in law, as if the same had been solemnized within his majesty's dominions, with a due observance of all forms required by law. And it is provided that the act shall not confirm, or impair, or affect the validity of any marriage solemnized beyond the seas, save and except such as are solemnized as therein specified and recited.
Marriages in Newfoundland are regulated by the statute 5 Geo. 4, c. 68, repealing the 57 Geo. 3, c. 51.
Venue.] The stat. 9 Geo. 4, like that of 1 Jac. 1, enacts, that [*290] *the prisoner may be tried in the county in which he is apprehended. Upon the latter statute, it was held that the prisoner, having been apprehended for larceny in the county of W., and a true bill having been found against him while in custody under that charge, for bigamy, he might be tried for the latter offence in the county of W. Jordan's case, Russ. and Ry. 48 (a). The second marriage was at Manchester, and a warrant was issued by a magistrate there to apprehend the prisoner. He having removed to London, surrendered to one of the police magistrates there, who admitted him to bail. On his trial at the Old Bailey, the court, on an objection taken by his counsel, were of opinion, that as the warrant had not been produced, and as it had not been proved that the prisoner was apprehended in the county of Middlesex, the court had no jurisdiction to try him. Forsyth's case, 2 Leach, 826. But now, by stat. 9 Geo. 4, the prisoner may be tried in the county in which he is in custody.
An indictment for bigamy committed in one county, found by a jury of another, where the party was apprehended, must state that fact. The prisoner was tried and convicted in Middlesex, in which county he was apprehended, of bigamy committed in Surrey. It being discovered, after the trial, that the indictment contained no averment as to the place or county where the prisoner was apprehended, the case was submitted to the judges, who determined that the judgment should be arrested. Fraser's case, 1 Moody, C. C. 407 (b).
Proof for the prisoner under the exceptions.] The prisoner may prove under the first exception in the statute 9 Geo. 4, that he is not a subject of his majesty, and that the second marriage was contracted out of England. Secondly, he may prove that his wife has been continually absent from home for the space of seven years last past, and was not known by him to be living within that time. There is no exception as in the 1 Jac. 1, with regard to persons" continually remaining beyond the seas for the space of seven years together." That statute, like the 9 Geo. 4, contained an exception, exempting persons absent, without knowledge by the other party of their being alive. The question, whether a prisoner setting up
(a) 1 Eng. C. C. 48. (b) 2 Ibid. 407.
this defence ought to show that he has used reasonable diligence to inform himself of the fact, and whether, if he neglects the palpable means of availing himself of such information, he will stand excused, does not appear to be decided. 1 East, P. C. 467. I Russell, 189.
The third exception is where the party, at the time of the second marriage, has been divorced from the bond of the first marriage. The words of the 1 Jac. 1, were " divorced by the sentence of any ecclesiastical court," and were held to extend to a divorce à mensî et thoro. 1 Hale, P. C. 694; 4 Bl. Com. 164; 1 East, P. C. 467. But now a divorce à vinculo matrimonii must be proved. It is not sufficient to prove a divorce out of England, where the first marriage was in this country. The prisoner was indicted for bigamy under the 1 Jac. 1. It appeared that he had been married in England, *and that he went to Scotland, and procured there [*291] a divorce à vinculo matrimoni on the ground of adultery, before his second marriage. This, it was insisted for the prisoner, was a good defence under the third exception in the statute 1 Jac. 1; but on a case reserved, the judges were unanimously of opinion that no sentence or act of any foreign country could dissolve an English marriage à vinculo matrimonii, for ground on which it was not liable to be dissolved à vinculo matrimonii in England, and that no divorce of an ecclesiastical court was within the exception in sec. 3 of 1 Jac. 1, unless it was the divorce of a court within the limits to which the 1 Jac. 1 extended. Lolley's case, Russ. and Ry. 237 (a).
The fourth exception is where the former marriage has been declared void by the sentence of any court of competent jurisdiction. The words in the statute of 1 Jac. 1 were, "by sentence in the ecclesiastical court ;" and under these, it was held that a sentence of the spiritual court against marriage, in a suit of jactitation of marriage, was not conclusive evidence, so as to stop the counsel for the crown from proving the marriage, the sentence having decided on the validity of the marriage only collaterally, and not directly. Duchess of Kingston's case, 11 St. Tr. 262, fo. ed.; 20 How. St. Tr. 355; 1 Leach, 146.
The 9 Geo. 4, unlike the 1 Jac. 1, contains no exception with regard to cases where the first marriage was within the legal age of consent, that is, fourteen in a male, and twelve in a female. 1 Bl. Com. 436; Gordon's case, Russ. and Ry. 48 (b). It has been observed, that notwithstanding this omission, no judge, probably, would direct a jury to find a party guilty of bigamy, where the first marriage was within that age, and not followed up by any subsequent agreement or cohabitation, after the parties had attained that age. 1 Deac. Dig. C. L. 143.
Nature of the offence.] Bribery is a misdemeanor punishable at common law. Bribery in strict sense, says Hawkins, is taken for a great misprision of one in a judicial place, taking any valuable thing except
(a) 1 Eng. C. C. 237. (b) 1 Ibid. 48.
meat and drink of small value of any man who has to do before him in any way, for doing his office, or by color of his office. In a large sense, it is taken for the receiving or offering of any undue reward by or to any person whomsoever, whose ordinary profession or business relates to the administration of justice, in order to incline him to do a thing against the known rules of honesty and integrity. Also bribery sometimes signi[*292] fies the taking or giving a *reward for offices of a public nature. Hawk. P. C. b. 1, c. 67, s. 1, 2, 3.
An attempt to bribe is a misdemeanor, as much as the act of successful bribery, as where a bribe is offered to a judge, and refused by him. 3 Inst. 147. So it has been held, that an attempt to bribe a cabinet minister for the purpose of procuring an office, is a misdemeanor. Vaughan's case, 4 Burr. 2494. So an attempt to bribe, in the case of an election to a corporate office, is punishable. Plumpton's case, 2 Ld. Raym. 1377.
Bribery at elections for members of parliament.] Bribery at elections for members of parliament, is an offence at common law, punishable by indictment or information, and the statute 2 G. 2, c. 24, which imposes a penalty upon such offence, does not affect that mode of proceeding. Pitt's case, 3 Burr. 1339, 1 W. Bl. 380. Where money is given it is bribery, although the party giving it take a note from the voter, giving a counter note, to deliver up the first note when the elector has voted. Sulston v. Norton, 3 Burr. 1235, 1 W. Bl. 317. So also a wager with a voter, that he will not vote for a particular person. Loft, 552. Hawk. P. C. b. 1, c. 67, s. 10 (n.)
Where a voter received money after an election for having voted for a particular candidate, but no agreement for any such payment was made before the election; it was held not to be an offence within the 2 G. 2, c. 24, s. 7. Lord Huntingtower v. Gardiner, 1 B. and C. 297 (a).
If A. give money to B. to induce him to vote for a candidate, and B. agree to do so in consideration of the gift, A. is liable to the penalty of 5001. for corrupting B. to vote within the 2 G. 2, c. 24, s. 7, though B. does not give the vote; and a jury may infer the agreement from circumstances, although B., who is a witness, does not state that he ever intended to vote. Henslow r. Fawcett, 3 Ad. and E. 51 (b). If, in fact, B. never did so intend, A's. offence was complete by his giving the money for the purpose of inducing B. to vote, and by B's. professedly accepting it on these terms. Per Patteson and Coleridge, JJ. Ib. See also Webb v. Smith, 4 Bing. N. C. 373 (c).
As to bribery at municipal elections, see 5 and 6 W. 4, c. 76, s. 54; and Harding v. Stokes, Tyr. and Gr. 599, 2 M. and W. 233.
As to bribing officers of the customs, see 3 and 4 W. 4, c. 51, s. 8; and Everett's case, 8 B. and C. 114 (d).
(a) Eng, Com. L. Rep. viii. 83. (b) Id. xxx. 24. (c) Id. xxxiii. 382. (d)` Id. xv. 158.