A valid marriage must be proved in the first instance in order to support a charge of bigamy. A voidable marriage, such as were marriages between persons within the prohibited degrees before the Marriage Act 1836, will be sufficient, but a marriage which is absolutely void as all such marriages now are, will not. For example, if a woman marry B during the lifetime of her husband A, and after A’s death marry C during the lifetime of B, her marriage with C is not bigamous, because her marriage with B was a nullity. In regard to the second marriage (which constitutes the offence) the English courts have held that it is immaterial whether, but for the bigamy, it would have been a valid marriage or not. An uncle, for example, cannot marry his niece; but if being already married he goes through the ceremony of marriage with her he is guilty of bigamy. In an Irish case, however, it has been held that to constitute the offence the second marriage must be one which, but for the existence of the former marriage, would have been valid. With reference to the case in which the parties to the first marriage have been divorced, it may be observed that no sentence or act of any foreign country dissolving a vinculo a marriage contracted in England by persons continuing to be domiciled in England, for grounds on which it is not liable to be dissolved a vinculo in England will be recognized as a divorce (R. v. Lolley 1812, R. & R. 237). Hence, a divorce a vinculo for adultery, in a Scottish court, of persons married in England, is not within the statute. But if a person charged with bigamy in England can prove that he has been legally divorced by the law of the country where the divorced parties were domiciled at the time (even though the ground on which the divorce was granted was not one that would justify a divorce in England) it will be good defence to the charge. Criminal jurisdiction is always regarded as purely territorial, but bigamy (together with homicide and treason) is an exception to this rule. A British subject committing bigamy in any country may be tried for the same in the United Kingdom (Earl Russell’s case, 1901).
In Scotland, at the date of the only statute respecting bigamy, that of 1551, cap. 19, the offence seems to have been chiefly considered in a religious point of view, as a sort of perjury, or violation of the solemn vow or oath which was then used in contracting marriage; and, accordingly, it was ordained to be punished with the proper pains of perjury.
Bigamy was punished in England until the reign of William III. by death, then the penalty changed to life imprisonment and branding of the right hand. An act of George I. still in force lessened the penalty to deportation for seven years or imprisonment for two years with or without hard labour. The Offences against the Person Act 1861 changed deportation to penal servitude.
In the United States the law in regard to bigamy is practically founded on the English statute of 1604, with the exception that imprisonment and a fine, varying in the different states, were substituted instead of making the offence a felony. Congress has passed a statute declaring bigamy within the territories and places within the exclusive jurisdiction of the United States to be a misdemeanour (U.S. Rev. Stat. § 5352). By statute in some states, upon absence of one spouse from the state for five years without being heard of, the other may marry again without committing bigamy, in other states the period is seven years. In most of the states, prosecutions for bigamy are barred after the lapse of a certain number of years. The marriage wherever solemnized must be a valid marriage according to the law of the place of solemnization; if void there, no prosecution for bigamy can be founded upon it. In some jurisdictions, an honest belief that a prior divorce of one of the parties was valid would be a defence to a prosecution for bigamy, in others the contrary is held.
On the continent of Europe, bigamy is punishable in most countries with varying terms of imprisonment, with or without hard labour, according to the circumstances of the case.
See Stephen, History of Criminal Law; Dicey, Conflict of Laws; Report of the Royal Commission on Marriage Laws (1868).
BIGELOW, JOHN (1817- ), American journalist and diplomat, was born at Malden, New York, on the 25th of November 1817. He graduated at Union College in 1835, practised law in New York for several years after 1839; took up journalistic work; was joint owner (with William Cullen Bryant) and managing editor of the New York Evening Post (1849-1861); was United States consul at Paris in 1861-1864, and was minister to France in 1864-1867. While consul, Bigelow wrote Les États-Unis d’Amérique en 1863 in order to counteract the apparent desire of the French people for a dissolution of the American Union, by showing them the relative importance of the commerce of the northern and southern states. On discovering in 1863 that a French shipbuilder, with the connivance of Napoleon III., was constructing two formidable iron-clads and two corvettes for the use of the Confederacy, he devoted his energies to thwarting this scheme, and succeeded in preventing the delivery of all but one of these vessels to the Confederate agents. In his work entitled France and the Confederate Navy (New York, 1888) he gives an account of this episode. In 1865-1866, it devolved upon Bigelow, as minister to France, to represent his government in its delicate negotiations concerning the French occupation of Mexico, and he discharged this difficult task with credit. From 1875 to 1877 he served as secretary of state of New York. He wrote books of travel, of popular biography, or of historical or political discussion, &c., from time to time; but his principal literary achievements were editions, between 1868 and 1888, of Franklin’s autobiography and autobiographical writings, copiously annotated; and of the complete works of Franklin, in ten octavo volumes (New York, 1887-1889). These editions were based in part upon the editor’s personal investigations of manuscript sources in France and elsewhere, and supplanted the well-known, long serviceable, but less accurate edition of Jared Sparks (Boston, 1836-1840); they have in turn been supplanted by the edition of A.H. Smythe (10 vols., 1905-1907). Mr Bigelow was a close friend of Samuel J. Tilden, and became his literary executor, editing his speeches and other political writings (1885), publishing a biography in 1895, and editing a two-volume collection of Tilden’s letters and literary memorials (1908). He also wrote a biography of William Cullen Bryant (1890). In 1897 he published a volume entitled The Mystery of Sleep (2nd ed., 1903). In 1909 he published Retrospections of an Active Life.
BIGGAR, a police burgh of Lanarkshire, Scotland. Pop. (1901) 1366. It is situated about 10 m. S.E. of Carstairs Junction (Caledonian railway), where the lines from Edinburgh and Glasgow connect. Lying on Biggar Water and near the Clyde, in a bracing, picturesque, upland country, Biggar enjoys great vogue as a health and holiday resort. It was the birthplace of Dr John Brown, author of Rab and his Friends, whose father was secession minister in the town. It was created a burgh of barony in 1451 and a police burgh in 1863. St Mary’s church was founded in 1545 by Lord Fleming, the head of the ruling family in the district, whose seat, Boghall Castle, however, is now a ruin. John Gledstanes, great-grandfather of W.E. Gladstone, was a burgess of Biggar, and lies in the churchyard. Easter Gledstanes, the seat of the family from the 13th to the 17th century, and the estate of Arthurshiels, occupied by them for nearly a hundred years more, are situated about 3½ m. to the north-west of the burgh. On the top of Quothquan Law (1097 ft.), about 3 m. west is a rock called Wallace’s Chair, from the tradition that he held a council there prior to the battle of Biggar in 1297. Lamington, nearly 6 m. south-west, is well situated on the Clyde. It is principally associated with the family of the Baillies, of whom the most notable were Cuthbert Baillie (d. 1514), lord high treasurer of Scotland, William Baillie, Lord Provand (d. 1593), the judge, and William Baillie (fl. 1648), the general whose strategy in opposition to the marquess of Montrose was so diligently stultified by the committee of estates. The ancient church of St Ninian’s has a fine Norman doorway. Lamington Tower was reduced to its present fragmentary condition in the time of Edward I., when William Heselrig, the sheriff, laid siege to it. The defenders, Hugh de Bradfute and his son, were slain, and his daughter Marion—the betrothed, or, as some say, the wife of William Wallace—was conveyed to Lanark, where she was barbarously executed because she refused to reveal the whereabouts of her lover. Wallace exacted swift vengeance. He burnt out the English garrison and killed the sheriff.