the husband; and in its judgment the English Court of Appeal specially pointed out that the Scotch divorce a vinculo which in R. v. Lolley, was held to be invalid in England was that of persons whose marriage had been solemnized in England, and whose domicil at the time of the divorce was also English. (\)

Although, in the first part of article 275, bigamy is defined to be the act of a person who, being married, marries another person, in any part of the world, subsection 4 modifies the latter part of this clause by declaring that ;

"No person shall be liable to be convicted of bigamy in respect of having gone through a form of marriage in a place not in Canada, unless such person, being a British subject resident in Canada, leaves Canada with intent to go through such form of marriage."

The explanation of this proviso given by Sir John Thompson, during the progress of the Code through the Committee of the House of Commons, was to this effect, that, Canada being a colony, and our parliament, having power only to legislate for offences committed within Canada, the clause was intended to restrict, to our own jurisdiction, the early words of the Article, speaking of marriages in any part of the world; and to, thus, make it an offence to leave Canada for the purpose of committing bigamy in any other part of the world,— that being the full extent of the power of the Canadian Parliament, as a colonial Legislature, according to a decision, in that respect, rendered in regard to the jurisdiction of an Australian Parliament, by which it was held that, although the words used extended beyond the territorial jurisdiction of the parliament, the parliament had no authority, and that its legislation must be confined to its jurisdiction and be interpreted accordingly. Sir John Thompson added: "While it is, morally, the same offence to commit bigamy outside our jurisdiction, all we can do is to punish any person who leaves this country for the purpose of committing it."(2.)

The case here referred to, by Sir John Thompson, is, evidently, that of McLeod v. Attorney General for New South Wales, decided, two years ago, on an appeal to the Privy Council, in England, from a judgment of the Supreme Court of New South Wales, the latter judgment having rejected an appeal from a conviction by the Court of Quarter Sessions at Sidney.

It appears that, at Sidney in May 1890, the appellant was tried, found guilty of bigamy and sentenced to three years' imprisonment with hard labor; the following facts being proved at the trial:

The appellant, a British subject, was a Minister of the Presbyterian Church in the colony of New South Wales, where he married his first wife, in 1872. After residing there for some time he and his wife left, and went to Scotland, thence to Canada, thence back to Scotland, thence to New-Zealand, and from there they returned to New South Wales in 1887. They again left, and went to the United States, and thence to London, where on the 25th June 1888, the appellant's wife left him and returned to New South Wales. Subsequently, in May 1889 the appellant married another woman, at St. Louis, Missouri, in the United States, his first wife being still alive, he and his second wife, after their marriage, living together as husband and wife. The appellant, however, in March 1889, before the second marriage, had obtained from a district Court of the United States, -Territory of New Mexico,-a decree of divorce from his first wife; which decree was put in evidence at the trial; but it was found to be a decree which had been obtained without notice having been given to the first wife of the divorce proceedings.

The appellant's counsel, objected to the reception in evidence of certain letters from the appellant, on the ground that they were immaterial, written after the second marriage, and could not be used as admissions; but the letters were admitted as tending to prove the bigamous marriage.

(1) Harvey v. Farnie, L. R. 5 P. D. 153; L. R. 6 P. D. 35; Arch. Cr. Pl. & Ev. 21 Ed. 1024.

(2) See House of Commons Debates, in Extra Appendix, post.

The marriage certificate and the copy of the marriage license, with the solemnization of the marriage certified, by the officiating minister, at the foot thereof were also objected to; but they were admitted in evidence

At the request of the appellant's counsel the trial judge, or chairman of the Court of Quarter Sessions, reserved, for the opinion of the Supreme Court of the Colony, the following points, namely, 1. Were the letters and documents, objected to, rightly admitted? and 2. Was it right to direct the jury that, if they were satisfied that the appellant had gone through the form and ceremony of marriage with Miss Cameron, he could be found guilty of bigamy, although no formal evidence was given as to the marriage laws of the State of Missouri?

The Colonial Supreme Court confirmed the ruling of the lower court and upheld the conviction.

In the Privy Council the judgment of their Lordships, delivered by the Lord Chancellor (Halsbury), was as follows:

•

"The facts upon which this appeal arises are very simple. The appellant was, on the 13th July, 1872, at Darling Point, in the colony of New South Wales, married to one Mary Manson, and, in her lifetime, on the 8th May. 1889, he was married at St. Louis, in the State of Missouri, in the United States of America, to Mary E izabeth Cameron. He was afterward indicted, tried and convicted, in the colony of New South Wales, for the offence of bigamy, under the 54th section of the Criminal Law Amendment Act of 1883 (46 Vict., No. 17). That section, so far as it is material to this case, is in these words: Whosoever being married, marries another person during the life of the former husband or wifewheresoever such second marriage takes place-shall be liable to penal servitude for seven years. In the first place, it is necessary to construe the word whosoever; and in its proper meaning it comprehends all persons all over the world, natives of whatever country. The next word which has to be construed is wheresoever.' There is no limit of person, according to one construction of whosoever'; and the word wheresoever' is equally universal in its application. Therefore, if their Lordships construe the statute as it stands, and upon the bare words, any person, married to any other person, who marries a second time anywhere in the habitable globe, is amenable to the criminal jurisdiction of New South Wales, if he can be caught in that colony. That seems to their Lordships to be an impossible construction of the statute; the colony can have no such jurisdiction, and their Lordships do not desire to attribute to the colonial Legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with the powers committed to a colony, and, indeed, inconsistent with the most familiar principles of international law. It therefore becomes necessary to search for limitations, to see what would be the reasonable limitation to apply to words so general; and their Lordships take it that the words whosoever being married' mean, whosoever being married, and amenable al the time of the offence committed to the jurisdiction of the colony of New South Wales. The word wheresoever' is more difficult to construe, but when it is remembered that in the colony, as appears from the statutes that have been quoted to their Lordships, there are subordinate jurisdictions, some of them extending over the whole colony, and some of them, with respect to certain classes of offences, confined within local limits of venue, it is intelligible that the 54th section may be intended to make the offence of bigamy justiceable all over the colony, and that no limits of local venue are to be observed in administering the criminal law in that respect. Wheresoever,' therefore, may be read Wheresoever in this colony the offence is committed.' It is to be remembered that the offence is the offence of marrying, the wife of the offender being then alivegoing through in fact, the ceremony of marriage with another person while he is a married man. That construction of the statute receives support from the subordinate arrangements which the statute makes for the trial, the form of the indictment, the venue, and so forth. The venue is described as New South Wales and sect. 309 of the statute provides that New South Wales shall be a sufficient venue for all places, whether the indictment is in the Supreme Court, or any other court having criminal jurisdiction. Provided that some district, or place, within, or at, or near which, the offence is charged to have been com

6

"

mitted, shall be mentioned in the body of the indictment. And every such district or place shall be deemed to be in New South Wales, and within the jurisdiction of the court unless the contrary be shown.' That, by plain implication, means that the venue shall be sufficient, and that the jurisdiction shall be sufficient, unless the contrary is shown. Upon the face of this record the offence is charged to have been committed in Missouri, in the United States of America, and it therefore appears to their Lordships that it is manifestly shown, beyond all possibility of doubt, that the offence charged was an offence which if committed at all, was committed in another country, beyond the jurisdiction of the colony of New South Wales. The result, as it appears to their Lordships, must be that there was no jurisdiction to try the alleged offender for this offence, and that this conviction should be set aside. Their Lordships think it right to add that they are of opinion that, if the wider construction had been applied to the statute and it was supposed that it was intended thereby to comprehend cases so wide as those insisted on at the bar, it would have been beyond the jurisdiction of the colony to enact such a law. Their jurisdiction is confined within their own territories, and the maxim which has been more than once quoted, extra territorium jus dicenti impune non paretur, would be applicable to such a case. Lord Wensleydale, (when Baron Parke), advising the House of Lords in Jefferys v. Boosey (1) expressed the same proposition in very terse language. He says: The legislature has no power over any persons except its own subjects, that is, persons natural-born, or resident, while they are within the limits of the Kingdom. The legislature can impose no duties except on them; and, when legislating for the benefit of persons, must prima facie be considered to mean the benefit of those who owe obedience to our laws, and whose interests the legislature is under a correlative obligation to protect.' All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed, and except over her own subjects Her Majesty and the Imperial Legislature have no power whatever. It appears to their Lordships that the effect of giving the wider interpretation to this statute necessary to sustain this indictment would be to comprehend a great deal more than He Majesty's subjects; more than any persons who may be within the jurisdiction of the colony by any means whatsoever; and that, therefore, if that construction were given to the statute it would follow as a necessary result that the statute was ultra vires of the colonial legislature to pass. Their lordships are far from suggesting that the legislature of the colony did mean to give to themselves so wide a jurisdiction. The more reasonable theory to adopt is, that the language was used subject to the well-known and well-considered limitation, that they were only legislating for those who were actually within their jurisdiction, and within the limits of the colony. For these reasons their Lordships will humbly advise Her Majesty that the judgment of the Supreme Court should be reversed, and that this conviction should be set aside." (2)

In an American case a somewhat similar decision was rendered, under the following circumstances. The Code of the State of North Carolina provides that "if any person, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in the State of North Carolina or elsewhere, every such offender shall be guilty of a felony, and every such offence shall be punished in the County where the offender shall be apprehended as if actually committed there"; and the Supreme Court of North Carolina considered such a provision repugnant to the constitution, and held that an indictment would not lie against the defendant for having contracted a bigamous marriage in South Carolina and afterwards ceming into the State of North Carolina to cohabit with the person so married.

Avery, J., in the course of his remarks in rendering the judgment, said :

"The general rule is that the laws of a country do not take effect beyond its

(1) Jefferys v. Boosey, 4 H. of L. Cas. 815-926.

(2) McLeod v. Attorney Gen. N. South Wales, 14 L. N. 402-405.

territorial limits, (1) and that a state will take cognizance only of offences committed within its boundaries. Among the exceptions to this general rule are the cases where one, being at the time in another state or country, does a criminal act which takes effect in our own state; as where one, who is abroad, obtains goods from some one here by false pretences, or, from a stand point beyond the line of our state, fires a gun or sets in motion any force that inflicts within the state an injury for which a criminal indictment will lie. (2) Persons guilty of such acts are liable to indictment and punishment when they venture voluntarily within the territorial bounds of the offended sovereignty, or, when, under the provisions of extradition laws and treaties they are allowed to be brought into its limits to answer such charges.

"It was contemplated by the framers of the constitution that ordinarily there would be but one state where a crime could be properly said to have been committed, and whose courts would have cognizance of it.

46

The state of South Carolina was the sovereign whose authority was disre garded when the bigamous marriage was celebrated. The completed act of entering into a second marriage in a neighboring state is not analogous to the cases where a mortal wound is inflicted in one state, and the wounded man lingers and dies from its effects within the limits of another state during the next ensuing twelve months.

(6

The attempt to evade the organic law by making the coming into this state, (after committing an offence in another), a crime is too palpable, in view of the admitted fact that the constitution of the United States gives to citizens of all the States the immunities and privileges of its own citizens, and of their guaranteed right, under the interstate commerce clause, to pass through another state without arrest and inquiry into their accountability for offences against their own sovereignty, but especially because the trial for the new felony involves an investigation of the original bigamy by a jury not of the vicinage, and remote from witnesses. No court has ever questioned the power of a state to pass quarantine laws and statutes regulating the entrance of paupers within its limits, but this does not include the authority to impose a tax per capita, even on immigrants from a foreign nation arriving at its ports, or on passengers in transitu from one state to another. (3)

"When the act of bigamous marriage is made the subject of indictment, the place of such act has exclusive jurisdiction. (4) The court of Alabama has expressly held, in Beggs v. State, that where a person is indicted for the bigamous act of marrying a second time, in another state, the indictment could not be sustained. (5)

"If a state has the power to punish one caught within its borders as a felon for a bigamous marriage committed within another state, what is to prevent the trial of a citizen found in a neighboring state for a homicide, if the statute were broad enough to include murder as well as bigamy-if the statute made it a felony punishable with death to come into the state after committing murder in another? The express provision for the extradition of criminals excludes the idea of trying them outside of the limits of the state where the offence is committed, even if there were no direct guaranty that they should not be subject to arrest and trial for offences against their own sovereign, when beyond her limits.

"The additional counts in which it is charged that the defendant, after the bigamous marriage in South Carolina, came into North Carolina, and cohabited with the person to whom he was married, cannot be sustained, because that offence is not covered by our statute.

(1) I Bish. Cr. L., 7 Ed., ss. 109, 110; People v. Tyler, 7 Mich. 161; 8 Mich. 338; State v. Barnett, 83 N. C. 616.

(2) Bish. Cr. L., s. 110; Ham v. State, 4 Tex. App. 659.

(3) Norris v. Boston, & Smith v. Turner, 2 Myers Fed. Dig. 665, 675, 677, 684. (4) 2 Whart. Cr. L. s. 1685.

(5) Beggs v. State, 55 Ala. 108.

"

We do not, however, wish to be understood as questioning the power of the state to punish one of its citizens who goes out of the state with intent to evade its laws by celebrating a bigamous marriage beyond its jurisdiction, and returning to live within its borders. We affirm the judgment of the court below quashing the indictment. (1)

A decree of divorce obtained in a foreign court may be impeached by extrinsic evidence shewing that such court had no jurisdiction or that such decree was obtained by fraud. (2)

277. Feigned marriages.—Every one is guilty of an indictable offence and liable to seven years' imprisonment who procures a feigned or pretended marriage between himself and any woman, or who knowingly aids and assists in procuring such feigned or pretended marriage. R.S.C., c. 161, s. 2.

Under article 684, post, no person can be convicted of an offence against article 277 upon the evidence of one witness, unless such witness is corroborated in some material particular by evidence implicating the accused.

278. Polygamy. - Every one is guilty of an indictable offence and liable to imprisonment for five years, and to a fine of five hundred dollars, who

(a.) practises, or, by the rites, ceremonies, forms, rules or customs of any denomination, sect or society, religious or secular, or by any form of contract, or by mere mutual consent, or by any other method whatsoever, and whether in a manner recognized by law as a binding form of marriage or not, agrees or consents to practise or enter into

(i.) any form of polygamy ;

(ii.) any kind of conjugal union with more than one person at the same time;

(iii) what among the persons commonly called Mormons is known as spiritual or plural marriage;

(iv.) who lives, cohabits, or agrees or consents to live or cohabit, in any kind of conjugal union with a person who is married to another, or with a person who lives or cohabits with another or others in any kind of conjugal union; or

(b.) celebrates, is a party to, or assists in any such rite or ceremony which purports to make binding or to sanction any of the sexual relationships mentioned in paragraph (a) of this section; or

(c.) procures, enforces, enables, is a party to, or assists in the compliance with, or carrying out of, any such form, rule or custom which so purports; or

(d.) procures, enforces, enables, is a party to, or assists in the execution of, any such form of contract which so purports, or the giving of any such consent which so purports. 53 V., c. 37, s. 11.

This is a re-enactment of 53 Vict., c. 37, sec. 11; shortly after the passing of which it was held, that mere cohabitation was not sufficient to sustain a con

(1) State v. Cutshall, (S C.), 15 S. E. Rep. 261. (2) R. v. Wright, 1 P. & B. 363.