Note 251 — Chapter XI · HISTORY OF SEPARATION AND DIVORCE UNDER ENGLISH AND ECCLESIASTICAL LAW (continued 2)

By the act of 1 James I., c. xi, "bigamy" is used in the modern sense. In mediæval law a "bigamist" is one who marries again after his first wife's death; the word "polygamist" being employed for the person who takes another woman before the death of the first spouse. By 4 Ed. I., 1276 (Stat. de bigamis, Stat. at Large [Pickering], I, 116), benefit of clergy is denied him who is a bigamist, i. e., has contracted a second marriage after death of the first wife: Jeaffreson, Brides and Bridals, II, 327. Compare Glasson, Hist. du droit, III, 184, 185.

"As for the crime of polygamy [the modern bigamy], it hath not been made penal by any statute, till the time of James the First. A canon of Pope Gregory the Tenth had taken away all clerical privileges from a bigamist, as the marrying a second wife was considered by the ecclesiastical law, to be proof of a most incontinent disposition; this regulation having been adopted in England, the clergy had a doubt, whether a person, who had been guilty of this offence before the canon law took place, might claim the indulgence of the common law; this statute [4 Ed. I.], therefore, retrospectively declares, he shall not be entitled to such privilege."—Barrington, Observations upon the Statutes (4th ed., London, 1775), 106; also Jeaffreson, op. cit., II, 327, note. But it may be noted that by 1 Ed. VI., c. 12, sec. 16: Stat. at Large (Pickering), V, 265, 266, benefit of clergy is restored in terms which may leave it in doubt whether bigamy in the modern sense is intended. This privilege is granted to offenders, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." On the ancient meaning of "bigamy" see also Glasson, op. cit., III, 184.