The San Francisco call., 1897-12-19


jurisdiction, common-law marriage
Which is generally supposed to have
been prohibited in California by the
act of March &c, 1895" (Which, how
ever, 1 doubD must be recognized in
California after the contracting par
ties return"
The error in this assertion believe
to be threefold
First-The high seas" is not a coun-
try; it has no civil government or laws
of its own.
II is but an element common to all
nations and peoples, where their ships
may pass and repass, each subject to
the jurisdiction and laws of its sover-
elgn whose flag it bears, and such rules
as have been accepted and recognized
py nations regulating international
commerce.
Second-No vessel large or small
floating the stars and stripes is ever
out of the jurisdiction of the United
States.
The ships OF each nation that plow
the bosom of old ocean are integral
parts of the nation whose flag they
bear; are as much a part of it's terri
tory as though attached to its soil
miles from water, and the law of each
nation is the law of its vessels, sub
ject in some respects Gmmaterial to
this subject) to the laws of other ma
tIons whose ports they enter
Third-But further than this and
more significant, these vessels q am
not referring to Government vessels)
are a part of the United States only
because they are portions of the State,
be it Maine, Texas or California,
Wh Groin ic Sit THAR homo MORT.
the place where under the law they are
required to register.
a ship, tug or a yacht whose home
port is in California is a part of the
territory of California, and it and the
people upon it's decks are subject
wherever it sails upon the high seas
to the local laws and regulations of
the State of California. 1t is a piece
of the State of California, floating
away from it's rock-imbedded parent,
but carrying with it all the rights and
privileges of Californian territory, and
the persons on board are protected
and governed by Californian laws,
save only in those respects pertaining
to maritime regulations which by
common consent Of the States were
specifically delegated to Federal au-
thority under article of the conSti-
tuition of the United States, which eX-
tends the judicial power of the courts
of the United States to "all cases of
admiralty and maritime jurisdiction" &"
Marriage and divorce are not within
admiralty jurisdiction and there is no
marriage law of the Federal Govern
ment, except if it may be (Which is
doubtfuD in relation to the District of
Columbia and authorizing United
States Consuls in foreign countries to
sOlemnize marriages between those
who might lawfully marry if within
the District of Columbia.
The authorities supporting this doc
trine are of the highest respectability
and numerous. l cite a few:
First Kent's Commentaries, sec. 26
Story on Conflict of Laws, sec. 4239.
Wharton's Conflict of Laws, sec. $50.
Stewart on Marriage and Divorce,
sec. Ill.
And cases cited:
Crapo VS.. Kelly, 16 Wallace, 61O.
Wilson VS., McNamee, 102 United
States, 572.
United States VS.. Rogers, $50 United
States, 264.
Mcdonald VS.. Mallory, u New York,
SO.
Case of Chinese cabin waiter "a San
Francisco case), 13 Fed. Reporter, 2S6-
Thus we see even if there is a COM
mon law of the United States (Which
there is noO [See Wheaton VS.. Peters,
| 33d u. s., 591, and cases cited. Brown
| ing VS.. Browning, 9Th Pacific Reporter
| 677, ; which would be the law of itsves-
| sells (Which it is noO, such common
law must give way to the law of the
T.
as to marriage the law of the State is
supreme.
1 do not say a common law mar
riage cannot be entered into in Cali
fornia or on board a California ship
between those capable of contracting
marriage, not withstanding the act OF
| 1895, requiring all marriages to be sol
ennized. While it is involved in grave
doubt 1 would not advise any one tC
| try it, and L am inclined to think that
| act does not make such marriage
when consummated void if, as 1 said
the parties are capable of contracting
marriage, but it is my opinion that one
whose decree of divorce is not yet a
year old cannot be legally married in
| the State of California or on a Cali
| fornian vessel.
That the ceremony might be per-
formed on the ''high seas" by clergy
man or Justice of the Peace adds
nothing to it's validity, for if the shiI
| is a portion of the State Of California
these individuals would have no great
er power to solemnize the ceremony
! at sea than on shore.
I understand that Judge Allen Of the
| Superior Court of Los Angeles County
! in a habeas corpus proceeding has pro-
nounced high seas marriages void
but 1 have not seen his opinion nor
been informed on what grounds he
based his decision. Judge Allen is a
good lawyer, and if the case was prop
erly presented to him on the merits
I.a.-o "A do,1It his rna snns Mera sound