The San Francisco call., 1897-12-19
ON THE HIGH SEAS.
Reasons VIM a Captain Has No Rjoht
to Perform the Cerennonu.
BY Ex-Judee w. L. Pierce.

Editor The Call: In complying with
S'9!F request to give for publication
the. opinion 1 expressed to you that the
captain of a vessel on the high seas"
mas no more authority to perform a
marriage ceremony than the cook and
t1at the sO-called high sea" mar
riages so frequent nowadays Cbetween
persons who since the act of February
70, 1897, have been prohibited from
marrying on account of one or both of
them having been divorced within one
year are of no validity whatever, I
think it proper to say here that, while
/ do not lay claim to infaniblity, I
am so thoroughly convinced that my
Interpretation of the law is correct that
in expressing my opinion 1 desire to
give in brief form some of my reasons
as Well as some of the authorities on
which my belief is based.
AS l stated to you, realize that the
publication of this article will cause
modification and annoyance to those
and the friends of those who in good
faith believe themselves to have been
made husband and wife by such a
ceremonial, but, on the contrary, if nv
Conclusions are right, their own status
ana the question of the legitimacy of
thelr children yet unborn, to say moth
ing OF property rights, make it seem
better that they should know the truth
now, when their situation NAV be
remedied, than later.
Again, If one of these parties is not
gulItless of wrong intention and the
other is, l believe it better that the
uecelt De disclosed now than deferred
uhtIi assertion has ensued, with no re-
dress whatever. And still again, these
IdlSe maria haoor7oi,,or
mon in this State that if innocent girls.
restlVe under parental restraint or
smartlng under real or fancied wrongs
Deheath the home roof, may know be-
Tore the irrevocabIe step is taken that
IN all probability an elopement to this
blilow-tossed Gretna Green is ilIusive
and is but the beginning Of real
trouble, much sorrow and perhans
crime may be avoided.
My attention was first called to this
matter early last summer, soon after
opening my office in this city, when a
lady client, who had but recently
been participant in such a cere-
monial, called on me and stated that
having some fears as to the legality,
OF the marriage, she desired to know
What l thought of it. Having more
leisure than anything else. I made in
Vesugation, and think I made a pretty
thorough one, although I was inclined
al nrst TO think as many do, that the
nleh seas" was a sort Of no mans
land" out of the jurisdiction of any
State; and that the captain was. on
the deck Of his vessel, almost as su-
pTeme as the Little White Gar" and.
IN fact, 1 sought earnestly and dill
gently to justify this opinion, but to
fny regret was compelled to arrive at
lst the opposite conclusion, and was
4 5iiged to inform my client, to her
tgTeat dismay and modification, that
n my opinion her supposed marriage
was no marriage at all, and 1 advised
that she and her reputed husband go
at once to a State that has not vet
passed any act prohibiting divorced
persons from marrying within any
prescribed time, and be there married
according to the laws of that State.
) assuring her that a marriage entered
into in conformity to the laws of
another State, if legal in such State,
must be recognized as legal in Cali
foruia.
Mr.. Bishop, in his work on Mar
riage and Divorce" section 355, says:
The general principle has been settled
that in the absence of any local stat
ute compelling the courts to violate a
national law, a marriage valid by the
law Of the country in which it is cele-
brated, though the parties are but
transient persons, though it would be
invalid entered into under the same
fOrmalitieS in the place of their dOmi-
ciIe, and even though contracted in
express evasion of their own laws, is
good everywhere. Were the
rule otherwise, marriage would lose
its protection under the law of nations
and then one country holding parties
to be married in one way and another
a man having one lawful wife in Con-
necticut, another in New York, and sc
on Of all the States, and then another
in England and another in France, we
I should have an international polygamy
more detestable than any purely mu-
nicipal one ever known
Our own statutes, section 63 of the
Civil Code provide that:
"All marriages contracted without
this State which would be valid by the
laws of the country in which the same
were contracted, are valid in this
State"
Therefore, if the high seas consti.
tute a country, and there is a law OF
that country which recognizes the
kind Of marriage we are speaking ol
or if the common law prevails there
y which does recognize as legal what is
called a "common-law marriage" tC
wit: present consent, followed by mu-
tuaI assumption of marital rights
then such a marriage must be recog-
nized as legal in California in spite oi
the statute Of 1897 pronouncing it void
I think this is the point that has
proved so delusiVe.
1t has been said: "At the distance
Of a marine league from shore the ju-
risdiction of the United States and OF
the State of California ceases, and