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ment is binding, according to its terms, upon the parties. The terms are fixed by the custom of the society in which the parties are included, and such custom is the law. In the United States and throughout Christendom, custom has affixed to the nuptial compact a life duration, and upon this basis it is legislatively protected and judicially defined and enforced. Except in the case of a single community, custom, in the United States, prescribes one wife at a time as the proper domestic allotment; and, accordingly, where such is the rule, the marital covenant is monogamous in its conditions. The husband promises to marry no other woman, the wife, to marry no other man; and this agreement is enforced under statutes which provide to annul fraudulent after-marriages, and to punish the perfidious party for the commission of a crime, for centuries known to criminal jurisprudence as "Bigamy."
Bigamy is a fraudulent after-marriage by a person having a wife or husband living and undivorced. The essence of the crime is wilful breach of an express contract, and fraud committed upon one or more innocent parties. It is a crime of perfidy, and, as such, is properly regarded with dread, and its perpetrator with repugnance. Between this felony and the polygamy in Utah, except in the naked fact of pluralism, there is not the remotest resemblance; and yet, in the act of Congress of 1862, the two are dishonestly confounded. The words of the act are as follows:
"Every person having a husband or wife living who marries another, whether married or single, in any Territory or other place over which the United States have jurisdiction, is guilty of bigamy."
It will be seen that the act describes polygamy, gives it a name which, for centuries, the criminal law has specifically affixed to an infamous offense to which it bears no likeness, and, as such menaces it with severe and disgraceful penalties. And, strange as it may seem, this misnomer—which would be ludicrous if it were inadvertent, but, being intentional, is cruel—is adopted by the Supreme Court of the United States, in a laborious attempt to find a sanction for the anomaly it seeks to establish.
The Judges of the Supreme Court of the United States are lawyers. All of them have the experience of years of practice at the bar, and several of them upon the bench before they attained to their present positions; and, without doubt are more or less conversant with criminal forms and definitions. They could not otherwise than have known that bigamy was a crime at common
