The yeoman-usher of the House. The barons, two and two, beginning with the youngest baron.

The bishops, two and two."

The viscounts and other peers, two and two. The lord privy seal and lord president. The archbishop of York and the archbishop of Canterbury.

before the king himself at Westminster, on the first day of next term, and so from day to day until he shall be discharged by the said court, and not to depart that court without leave, to answer to those things which, on the behalf of our said lord the king shall be objected against him; and also for his appearance from time to time, until he the said Charles lord Orrery shall be discharged by due course of law, before our lord the king in parliament, whenever by our said lord the king he shall be thereunto required, to answer to those things, which on behalf of our said lord the king shall be there objected against him." Cowper's Reports, p. 283.

Upon occasion of these proceedings against the prisoner in the following Trial, Mr. Hargrave was consulted on the part of the prosecution. With his wonted zeal he composed, previously to the trial, a most elaborate, learned, and able discourse Concerning the Effect of Sentences of the Courts Ecclesiastical in Cases of Marriage when pleaded or offered in evidence in the Courts Temporal,' which several years afterwards he published in his ' Collection of Tracts relative to the Law of England.' In this discourse he has accumulated a vast mass of judicial decisions and legal reasonings respecting the two main questions of law which were made in this case, viz.

1. Whether a sentence of the spiritual court against a marriage in a suit for jactitation of marriage is conclusive evidence so as to stop the counsel for the crown from proving the said marriage in an indictment for polygamy ? 2. Whether, admitting such sentence to be conclusive upon such indictment, the counsel for the crown may be permitted to avoid the effect of such sentence by proving the same to have been obtained by fraud or collusion?

In addition to what will be found in this report of the trial, I must refer the reader for far ther illustration of the law respecting these two questions to that treatise of Mr. Hargrave; which it is to be hoped will be incorporated into his valuable Jurisconsult Exercitationes' now in course of publication.

Four serjeants at arms with their maces, two and two.

The serjeant at arms attending the great seal, and purse-bearer.

Then Garter king at arms, and the gentleman-usher of the Black Rod carrying the white staff before the Lord High Steward.

Henry earl Bathurst, chancellor of GreatBritain, Lord High Steward, alone, his train borne.

His royal highness the duke of Cumberland, his train borne.

The Lords being placed in their proper seats, and the Lord High Steward upon the woolpack, the House was resumed.

The clerk of the crown in Chancery, having his majesty's Commission to the Lord High Steward in his hand, and the clerk of the crown in the King's-bench, standing before the clerk's table with their faces towards the state, made three reverences; the first at the table, the se. cond in the mid-way, and the third near the woolpack; then kneeled down; and the clerk of the crown in Chancery, on his knee, presented the Commission to the Lord High Steward, who delivered the same to the clerk of the crown in the King's-bench to read: then rising, they made three reverences, and returned to the table. And then proclamation was made for silence, in this manner:

Serj. at Arms. Oyez, oyez, oyez! Our sovereign lord the king strictly charges and commands all manner of persons to keep silence, upon pain of imprisonment.

Then the Lord High Steward stood up, and spoke to the Peers.

L. H. S. His majesty's Commission is about to be read: your lordships are desired to attend to it in the usual manner; and all others are likewise to stand up uncovered while the Commission is reading.

All the peers uncovered themselves; and they, and all others, stood up uncovered, while the Commission was read.

"GEORGE R.

"George the third, by the grace of God, of Great-Britain, France, and Ireland king, defender of the faith, and so forth. To our right trusty and right well-beloved cousin and counsellor Henry earl Bathurst, our chancellor of Great-Britain, greeting. Know ye, that whereas Elizabeth the wife of Augustus John Hervey, late of the parish of St. George, Hanover-square, in our county of Middlesex, esq. before our justices of Oyer and Terminer, at Hicks's-hall, in St. John-street, in aud for our county of Middlesex, upon the oath of twelve jurors, good and lawful men of the said county of Middlesex, then and there sworn and charged to enquire for us for the body of the said county, stands indicted of polygamy, and

feloniously marrying Evelyn Pierrepont late duke of Kingston, she being then married, and the wife of the said Augustus John Hervey: we, considering that justice is an excellent virtue, and pleasing to the Most High, and

siastical cognizance only: though so early as the stat. 4 Ed. 1, c. 5, de Bigamis, it was treated as a capital offence, and ousted of clergy by that statute. The benefit of clergy was however restored by the stat. 1 Ed. 6, c. 12, § 16. And the crime itself being as it seems left of doubtful temporal cognizance, the stat. 1 Jac. 1, c. 11, enacts, that if any person or persons within England and Wales, being married, or who hereafter shall marry, do marry any person or persons, the former husband or wife being alive, every such of fence shall be felony; and the person and persons so offending shall suffer death as in cases of felony.' Clergy however is not thereby taken away; but by the stat. 18 Eliz. c. 7, § 2, 3, the offender, besides being burned in the hand, may be imprisoned not exceeding one year and by stat. 19 Geo. 3, c. 74, § 3, a moderate fine or whipping, in the manner therein specified, may be substituted in lieu of burning; but not to abridge the power of the court to imprison under any former act. And now by the stat. 35 Geo. 3, c. 7, If any person or persons within England and Wales being married, do at any time from and after the passing of this act marry any person or persons, the former husband or wife being alive, and shall be in due manner convicted under the said act (of Jac. 1,) they shall be subject to the same punishments, pains and penalties, as by the laws now in force, persons are subject to, who are convicted of grand or petit larceny.'

"This by stat. 4 Geo. 1, c. 11, (and stat. 6 Geo. 1, c. 23,) may be transportation for seven years in lieu of burning or whipping. But though the stat. 35 Geo. 3 merely re-enacts the enacting part of the statute of James, yet it also virtually includes all the exceptions contained therein and after mentioned, for the title of the act is for rendering more effectual the statute 1 Jac. 1,' and it begins by reciting that whereas the punishment of persons convicted of felony under the statute 1 Jac. 1, has not proved effectual to deter wicked persons from the offence therein described, be it enacted, &c.' and it afterwards attaches the increased punishment upon such as are convicted of the offence specified under the said act.

"By.§ 2, (of stat. 35 G. 3, c. 67,) if any person ordered to be transported by this act shall be afterwards at large within Great Britain, without some lawful cause, before the expiration of the terin, &c. every such person being thereof lawfully convicted, shall be guilty of felony, and suffer death without benefit of clergy.

64

By § 4, of 1 Jac, 1, c. 11, no attainder for any felony by that act shall work corruption of blood, loss of dower, or disherison of heirs." East's Pleas of the Crown, c. 12, § 1.

being willing that the said Elizabeth of and for the felony whereof she is indicted as aforesaid, before us, in our present parliament, according to the law and custom of our kingdom of Great Britain, may be heard, examined, sentenced,

What Mr. East in the above passage has said concerning the statute 4 Ed. 1, c. 5, de Bigamis, is not altogether correct. That statute has for its object the case of bigamists in the proper sense of the word who might be convicted of felony; and it does not at all relate to polygamists. Possibly Mr. East was led into the incorrectness by an error in the quarto edition of the Statutes. This error had been pointed out by the very learned and accurate annotator upon lord Coke's first Institute, in the following note to lord Coke's fourth kind of disparagement, sc. propter jacturam privilegii,' &c.

"The word bigamy' is frequently used to describe the crime of marrying a second wife during the life of the first; but the proper name for this offence in our law is polygamy,' and with us a bigamist is a man who either marries a widow, or after the death of his first wife marries a second time, in consequence of which he formerly could not claim the benefit of clergy. This denial of the benefit of clergy to bigamists was in consequence of some antient papal constitutions and canons of councils against admitting bigamists into holy orders; a prohibition, which, however speciously defended by texts of scripture, wholly originated from the injurious policy of the church of Rome in discouraging the marriages of the clergy, and lead the way to the complete establishment of celibacy amongst them. See Levit. c. 21, v. 13, 14. 1 Tim. c. 3, v. 12, Summa Concil. per Mirand. fol. 4, a. 119, a. 168, b. 230, b. Bingh. Ant. Christ. Ch. b. 4, c, 5, Tayl. Elem. Civ. L. 295, and the word biga'mus' in the index to the Corp. Jur. Canon. ed. Pithæor. However, the exclusion of bigamists from the benefit of clergy was not entirely accomplished till the council of Lyons ended the doubts which before prevailed, by positively declaring bigamists, omni privilegio clericali

uudatos.' It appears, that this constitution was immediately received in England; for the statute of 4 E. 1, de Bigamis, takes notice of it, and explains how it should be construed, by directing that it should be understood to comprebend bigamists before, as well as those who became so after. See 4 E. 1, c. 5. 2 lust. 273. 2 Hal. Hist. Pl. Cr. 372. 2 Hawk. Pl. Cr. b. 2, c. 33, § 5, and Barringt, on Ant. Stat. 2d ed. 73. When the benefit of clergy by being allowed to all who could read, was extended to laymen as well as persons in orders, the reason for ousting bigamists of clergy in great measure ceased; but notwithstanding this, the exception of bigamy continued till it was taken away by the statute of Edw. 6. The pointing out exactly the appropriated sense of the word

bigamy' in our law was the more necessary, because very sensible writers have been inatten

and adjudged; and that all other things which are necessary in this behalf may be duly extive to it. We find a remarkable instance of this in the quarto edition of the statutes, the editor of which, in a note on the 4 E. 1, c. 5, refers to the 1 Jam. 1, c. 11, as making bigamy a felony." See notes to Hargr. Co. Litt. 80, b. I will here insert the enactment under consi

deration, as it is exhibited in the authentic

edition of the Statutes.

"4 Ed. 1, c. 5.-Statutum de Bigamis. "THE STATUTE OF BIGAMY.

"Ex MS. Harl. 395, f. 80. "De Bigamis quos da's ppa in consilio Lugdun' om'i p'vileg' clicali p'vavit p' constitucom' inde editam et un' quidam p'lati illos qui eff 'ci fiu'int bigami ante p'd'cam constitucom' qn' de felon' rettati fiu'int tanq'am clicos exigu't sibi lib❜andos; concordatum est et declaratum coram R' et co'silio suo q'd constituco' illa intelligenda est q'd sive eff'ci fiu'int Bigami ante p'd'cam constitucom', sive post deceto' non libent'r p'd'cis p'latis: Immo fiat de eis justicia sicut de laicis.

"Concerning men twice married, called Bigami, whom the bishop of Rome, (more correctly, our Lord the Pope) by a constitution made at the council of Lyons, hath excluded from all clerks privilege, whereupon certain prelates, when such persons have been attainted for felons, have prayed for to have them deli. vered as clerks, which were made Bigami be fore the same constitution;" (more correctly, when such persons, as were twice married before the same constitution, have been called in question for felony, have prayed for to have them delivered as clerks,) "it is agreed and declared before the king and his council, that the same constitution shall be understood in this wise, that whether they were Bigami before the same constitution, or after, they shall not from henceforth be delivered to the prelates, but justice shall be executed upon them, as upon other lay people.","

"A canon of Pope Gregory the 10th had taken away the benefit of clergy from a bigamist; which having been adopted in England, the clergy had a doubt, whether a person in holy orders, who had been guilty of this offence before the canon took place, might claim the indulgence of the common law; this statute, therefore, retrospectively declares, he shall not be entitled to such privilege. Prynne [Records vol. 3, p. 151,] takes notice of two mistakes made by sir Edward Coke. The first relates to the name of the Pope, who made the canon; and the second to the preamble, which is misrecited. The Pope who summoned the council at Lyons was Gregory the 10th, and not Boniface the 8th, who was not elected till the 28th of Edward the 1st, and consequently not till four and twenty years after this statute was acted," Barrington.

|ercised and executed; and for that the office of High Steward of Great Britain (whose presence

In the Appendix to sir Samuel_Romilly's most able, valuable, and instructive Tract, entitled, Observations on the Criminal Law of England, (Note M,) are the following very judicious observations on this offence:

"The crime of bigamy comprehends two species of offences, differing greatly from each other in their character and effects, and in their degree of moral guilt; and the circumstances which mark the distinctions between these different offences are clear and unequivocal. If the atrocity of a crime is to be measured by the extent of the wrong done to the person who is the victim of it, few crimes can be more atrocious than that of a married man, who, by representing himself to be a bachelor, prevails on a modest woman to become his wife. He possesses himself by fraud of her person, knowing that he may at any moment dismiss her as a prostitute from his bed; and nothing can exceed the horror she must feel, whenever, the secret of his first marriage being divulged, she shall be awakened to her real situation, and shall find herself despoiled of her honour, and that the children she has borne are bastards and outcasts. The real nature of this crime is that of a fraudulent and most aggravated seduction, effected under colour of law, with all the solemnities of religion, and under such circumstances that no prudence or caution could effectually guard against it. But he, who, before his second marriage, apprizes the woman that he is already a husband, does her no wrong. His offence is one to the state alone, and consists in nothing but the public scandal it affords. The bigamist, who had concealed his first marriage from his victim, is equally guilty of this outrage on public decency, and has besides done one of the greatest possible injuries to an individual. It results from these considerations that in a woman the crime of bigamy can never be so heinous as in a man, and that in a man the heinousness of the crime consists altogether in the concealment of the former marriage. Mr. Justice Blackstone however, not adverting to those distinctions, tells us that bigamy. has been made felony by reason of its being so great a violation of the public economy and decency of a well-ordered state.'It is that,' he says, which never can be endured under any rational civil establishment; and, in northern countries,' he observes, the very nature of the climate seems to recoil against it.' Comm. vol. 4, p. 163. But he does not even glance at the injury done to the woman, who suffers from the crime: and even the more philosophical author of the Principles of Penal Law,' defines polygamy only to be a gross species of adultery, aggravated by the profanation of a religions rite,' p. 105.

6

Although, as has been already observed, this is in women a crime of much less magnitude than in men, yet until the stat. of 3 and

in this behalf is required) is now vacant (as we are informed) we, very much confiding in your fidelity, prudence, provident circumspection, and industry, have for this cause ordained and constituted you Steward of Great Britain, to hear, execute and exercise for this time the said office, with all things due and belonging to the same office in this behalf: and therefore we command you, that you diligently set about the premises, and for this time do exercise and execute with effect all those things which belong to the office of Steward of Great Britain, and which are required in this behalf. In witness whereof we have caused these our letters to be made patent. Witness ourself at Westminster, the 15th day of April, in the 16th year of our reign.

"By the KING himself, signed with his own

hand.

YORKE."

Serjeant at Arms. God save the king! Then Garter, and the gentleman-usher of the Black Rod, after three reverences, kneeling, jointly presented the white staff to his grace the Lord High Steward: and then his grace, attended by Garter, Black Rod, and the Pursebearer (making his proper reverences towards the throne) removed from the woolpack to an armed chair, which was placed on the uppermost step but one of the throne, as it was prepared for that purpose; and then seated bimself in the chair, and delivered the staff to the gentleman usher of the Black Rod on his right hand, the Purse-bearer holding the purse on his left.

Clerk of the Crown. Serjeant at Arms, make proclamation.

Serj. at Arms. Oyez, oyez, oyez ! Our sovereign lord the king strictly charges and commands all manner of persons to keep silence, upon pain of imprisonment.

Then the Clerk of the Crown, by direction of the Lord High Steward, read the Certiorari, and the Return thereof, together with the Caption of the Indictment, and the Indictment certified thereupon, against Elizabeth duchess-dowager of Kingston; in hæc verba:

"George the third, by the grace of God, of Great Britain, France, and Ireland king, defender of the faith, and so forth, To our justices of Oyer and Terminer, at Hicks's-ball, in St. John-street, in and for our county of Middlesex, and to every of them, greeting. We being willing, for certain reasons us thereunto moving, that all and singular indictments of whatsoever felonies whereof Elizabeth calling herself duchess-dowager of Kingston, by the name of Elizabeth the wife of Augustus John Hervey late of the parish of St. George, Hanover-square, in the county of Middlesex, esq.,

4 W. and M. (which extended the benefit of elergy to women) passed, it was punishable in female offenders with death, but in males only with burning in the hand, and a year's imprisonment."

is indicted before you (as is said) be determined before us in our parliament, and not elsewhere; do command you and every of you, that you, or one of you, do send under your seals, or under the seal of one of you, before us in our present parliament, immediately after the receipt of this our writ, all and singular the indictments aforesaid, with all things touching the same, by whatsoever name the said Elizabeth is called in the same, together with this writ, that we may cause further to be done thereon what of right and according to the law and custom of England we shall see fit to be done. Witness ourself at Westminster the 11th day of November, in the 16th year of our reign. YORKE."

at Hicks's-hall, in St. John-street, in and for "To the Justices of Oyer and Terminer, the county of Middlesex, and to every of them, a writ of Certiorari to certify into the upper house of parliament the indictment found dowager of Kingston, by the name of Elizabeth against Elizabeth calling herself duchesswife of Augustus John Hervey, for bigamy, liament.-By order of the Lords spiritual and returnable immediately before the king in partemporal in parliament assembled.

YORKE."

The execution of this writ appears by the schedules and indictment to this writ annexed. "The ANSWER of sir JOHN HAWKINS, knt. one

of the justices within-written.

"Middlesex. Be it remembered, that at the general session of Oyer and Terminer of our lord the king, holden for the county of Middlesex, at Hicks's-hall, in St. John-street, in the said county, on Monday the 9th day of January, in the 15th year of the reign of our sovereign lord George the 3d, king of Great Britain, and so forth, before sir John Hawkins, knt., John Cox, David Wilmot, John Brettell, esqs. and others their fellows justices of our said lord the king, assigned by his majesty's letters patent under the great seal of Great-Britain directed to same justices before named, and others in the said letters named, to enquire more fully the truth by the oath of good and lawful men of the said county of Middlesex, and by other ways, means, and methods by which they shall or may better know (as well within liberties as without) by whom the truth of the matter may be better known, of all treasons, misprisions of treason, insurrections, rebellions, counterfeitings, clippings, wasbings, false coinings, and other falsities of the money of Great Britain and other kingdoms and dominions whatsoever, and of all murders, felonies, manslaughters, killings, burglaries, rapes of women, unlawful meetings, conventicles, unlawful uttering of words, assemblies, misprisions, confederacies, false allegations, trespasses, riots, routs, retentions, escapes, contempts, falsities, negligences, concealments, maintenances, oppressions, champarties, de ceipts, and all other evil-doings, offences, and injuries whatsoever, and also the accessaries of