The herald., 1897-08-15


which would result in marriage. To
hold otherwise, to say that its terms are
directory, is to admit that crimes against
good morals, the peace of society, the
good name of the commonwealth, are
not possible of CORRECTION if the citizen
chooses to disregard the plain provls-
ions of the law.
I'm Sharon vs. Sharon, 70 Cal, 633, in
which case our supreme court had under
consideration the character of the re-
quirements of section 55, the court says:
If consent and consummation by sexual
intercourse Were sufficient to constitute
marriage at common law it clearly ap-
pears to have been the intention of our
legislature to change that rule and re-
quire something more. Under our stat
ute two things must be proved to consti-
tute marriage, viz: the contract and the
mutual assumption of marital rights,
duties and obligations In Blythe VS..
Blythe, 105 Cal, 357, the construction was
to the same effect. These decisions m
dicate to my mind that, in the opinion. of
the supreme court, the things defined by
c ur code as requisite to constitute
marriage are mandatory. And to the
same effect are numerous decisions cited
by counsel for petitioner in his brief;
notably that of Holmes vs. Holiness re-
ported in J. Abbott's U. s. Reports, page
525, in which case the court says in plain
terms that such provisions are manda
tory. No reason is, apparent why a diff
ferent character should be given those
provisions relating to solemnization than
is given to the provisions OF the original
section requiring the mutual assump-
ton of the marriage relation In my
opinion, therefore, no agreement, con-
tract or act Of the parties, not in strict
conformity to the existing marriage laws
of this state, creates a marriage in this
state or subjects the parties to its du-
ties and obligations, unless it shall have
been entered into in some other juris-
dittion, under the laws of that iurisdlc-
ton; in which case its validity will be
recognized even if entered into in a man
ner different from the procedure re-
qured by our own law
THE QUESTION OF JURISDICTION
This leads us, then, to inquire wheth-
er or not the said Janet Thomson and
Norman entered into the marriage re-
tion in any other jurisdiction and in
conformity to the laws thereof. The
Cured cannot be definitely stated. The
certificate issued by the man Pierson at
the time is entitled to greater weight
than his subsequent statement. This
shows that about four-tenths of a mile
from the border line of the state Nor
man. citizen of the state, consented to
marry this girl, upon schooner owned
by citizen of the state of California.
In view of the broad expanse of ocean
lying to the westward of this state, the
statement which shows that it was
about four-tenths of a. mile" is very
uncertain and unsatisfactory designa-
ton OF distance or actual location. Such
designation upon land, in city or
populous country, might be held to ex-
clude the idea that it was remote from
the point named, while a like express
sion as to distance on the ocean might
render the word "about" of peculiar sig
nificance, and reasonably include va
ration much in excess of four-tenths of
la mile. 1t is scarcely incumbent upon
this court, in order to aid Norman in
ibis confessed attempt at evasion of the
law, to hold that the word about ex-
cludes the possibility that the act was
not done within a marine league of our
shore.
..Wai,r;-- .a-i--,- i.v,,vvvi, are III ac-
| cord with counsel for petitioner in his
claim that the United States has no ju-
risdiction upon the high seas, other than
the maritime' and admiralty jurisdicl
tioc1 delegated to it, And L apprehen nd
that it will not be seriously contended
that within the maritime and admiralty
juriSdfctfonN as recognized, car be in
cluded jurisdiction relative to marriage
contracts made on board ships That
congress has nothing to do with the va
lidity or the effect of marriage, or with
the marriage contract, except in places
I subject to its exclusive jurisdiction, has
been the uniform instruction to all con-
sular agents and the uniform construc-
tior. of the constitution given by
all courts and officials of our govern
ment. In point upon this proposition is
Crepo vs.. Kelly, SO Sup. Ct. Report Law
Ed, 430 That congress has enacted a
law or regulation that masters Of ships
of seventy tons and over shall record in
the log book marriages celebrated upon
the high seas, is far from asserting a
right to legislate upon the marriage
question, or to define it's forms or pre-
requisites.
PRESERVATION OF RECORD
1T is, at most, an order for the preser-
walton of the record of a valid marriage;
not an authority to marry or asserting
jurisdiction over the citizens of other
states or nations as to the validity OF
marriages. The high seas know no law
of marriage or divorce. Neither the
common law Of England, the statute law
of California, nor those Of the Turkish Or
Russian empires, extend upon the high
seas to the exclusion of one over tha
other; nor can a contract made thereon
be claimed to be under the sanction of
either, except as by the law of nations
iEand common consent, the territory of
civilized nations is permitted to include
vessels of each upon this common high
way. And even upon these vessels of
the United States, that nation is restrict
bed to admiralty and maritime jurisdc-
tion, and has naught to do with civil con-
tracts See Crepo vs. Kelly, page 436.
|. eff the government of the United
States has no jurisdiction over the par
ties in relation to these contracts made
upon the high seas can it be claimed,
that any government other thar the
sovereign state in waioh the parties are
domiciled has jurisdiction? Immigrants
marrying at a port of embarkation in
ve,y. 0f settling in the TTnftad States