The herald., 1897-08-15

minutes west, he was married. to said
Janett Thomson on board the vessel
known as the u. Wiley" by one Pier
son, who performed the marriage cere-
mony, then and there being licensed
sailing master; that said ceremony was
performed upon the high seas and with
out the limits of the territory of the
United States or the state of California;
that he is now living with and cohabit-
ing with said Janett Thomson as his
Wife, who resides with him voluntarily.
Upon the return of this writ testimony
was heard, which was to the effect that
the vessel upon which the parties en-
barked, and upon which the alleged mar
riage ceremony was performed. was
schooner of a net tonnage of 17.17 tons,
licensed for the coasting trade, and that
Pierson had taken the oath required by
law and was the master of said schooner.
THE PLACE OF CEREMONY
"The testimony as to the place where
the alleged ceremony was performed is
conflicting. The certificate given to the
parties at the time, and signed by the
master and a number of witnesses, fixes
the place at about latitude 33 degrees
40 minutes north, longitude 11S degrees
20 minutes west This is a point 3.4
miles from Point F'irmin, point on the
mainland of this state, and may be with
| in the limits of Los Angeles county,
California, or not, as shall be construed
the effect Of the word about The
captain, upon the witness stand, fixed
point where the ceremony was per-
formed which is some twelve miles from
the place specified in his certificate, be-
ing between the southern end of the is
land of Catalina and the mainland. The
testimony further shows that no license
was procured, authorizing the cere-
mony, nor the consent Of the parents OBJ
tanned thereto; that the reason why the
services of the schooner and the master
were called in was to evade the law of
the state of California relating to mar
riages; and that said Pierson was not
one of the persons designated by the
laws of California as being authorized
to solemnize marriages.
Extended briefs have been filed by,
counsel on both sides. On the part of
Norman, upon whom, by reason Of the
character Of the return, is devolved the
duty of showing his right to the Gus,
| tody of the girl as husband, 1t is insisted
that marriage is an institution of, so I
| ciety, founded upon consent and the con
tract Of the parties That infancy is.not'
a bar to the same extent as in ordinary
contracts; that to constitute marriage,
where there are no civil requirements,
words clearly expressing mutual con-
sent are sufficient without other solemni-
ties; that even an agreement between a
man and woman to have commerceifoiN
the propagation and aging up. Of
children in a state Of nature would be
| marriage in the absence of civil and
religious Institutions; that, being a
natural and common right, the non-ob-
! servance of prescribed regulations relat-
/ ing to the formal ceremony would not
| invaidate the marriage; neither would
the absence of parental consent affect
its validity, nor the violation of the
statutory requirements of the state of
California. Much stress is laid upon
the provisions of section 56 of our civil
code, which provides, Any unmarried,
male of the age of eighteen years or up
wards, and any unmarried female of the
age of fifteen years or upwards and not
otherwise disqualified, are capable of
consenting to and consummating mar
riage; and it is insisted that this Sec
ton determines the capacity of the par
ties, and this being the place of the
domicile, and they having the capacity
| to marry, a marriage without formal,
ceremony s sufficient If celebrated
~ crr rIuonJ 1SsarsS>.s
and the parties have capacity by the
laws Of the domcile.
A COMMON LAW MARRIAGE
at is argued further that this agree
ment of the parties in the presence of
| the master Of the schooner, being upon
the high seak If any2laW was in force it
was the common law, which recognizes
| consent as the only element necessary to
create the contract OF marriage. That,
being a valid marriage under such law,
| 1t is a valid marriage in this state upon
their return. And citing Civil Code and
Pierson VS.. Person, 81 Cal. 120 in sup
port. 1t is further contended that this
! writ will not lie, because the marriage
| is valid, until annulled by competent de-
cree; and until then this court cannot
| inquire into the rights of the husband
to the control and care of the wife.
LAWS OF MARRIAGE MANDATORY
| Counsel for petitioner, in his very
able and carefully prepared brief, com-
vanced in behalf Of Norman, and con-
tends that the laws of this state in re-
lation to marriage are mandatory; that
no attempt at marriage within this
Istate, or at any place not having local
laws upon the subject, is a marriage rec
ognized by our laws unless consent is
| followed by solemnization; that'the COM
mon law is not the recognized law OF the
| high seas, nor does the law of the United
| States extend thereon, except as to mat
| ters purely within admiralty and mari
| time jurisdiction; that, outside of this
| limited jurisdiction, no power is dele
gated the United States, and the state
| of California is sovereign power as
| to all other matters, as completely as
any independent nation; that citizens
| of California, on, board ship owned By
citizens OF California, at high sea, are
within the territorial limits of the state,
| subject to its laws in all respects other
than as to those matters by the consti-
tuition delegated to the general govern
ment; that no power has ever been del
egated to the general govrnment to reg
ulate marriages on the high seas, nor
has congress. ever attempted so to do;
that no marriage. therefore, having
taken place, the care and custody of