taken effect within a State, would fall within the range of State jurisdiction.

That a sovereign has a police jurisdiction over all offenses committed by means of shot from a ship taking effect on shore is maintained by very high authority. "The extension," says Perels (Das Internationale öffentliche Seerecht der Gegenwart), "of the line depends on the range of cannon shot at the particular period. It is however at such period the same for all coasts." To this effect is cited Martens, Précis i, p. 144; Bluntschli, § 302; Heffter, § 75; Klüber, § 130; Ortolan, i, 153; and Schialtarella, Del Territorio, p. 8.

Mr. Lawrence thus states the rule: "The waters adjacent to the coast of a country, are deemed within its jurisdictional limits only because they can be commanded from the shore." (Note to Wheaton, p. 846.)

According to Gessner, "Les droits des riverains ont été augmentés par l'invention des canons rayés." As far as a State can protect itself, so far does its jurisdiction extend. (Kent, i, p. 158.) "La plus forte portée de canon selon le progrès commun de l'art à chaque époque."

"Inasmuch as cannon-shot can now be sent more than two leagues, it seems desirable to extend the territorial limits of nations accordingly. The ground of the rule is, the margin of the sea within reach of the land forces, or from which the land can be assailed." (Field Int. Code, 2d ed., § 29.)

"It is probably safe to say," says Mr. Hall (Int. Law, 127), "that a State has the right to extend its territorial waters from time to time at its will, with the now increased range of its guns, though it would undoubtedly be more satisfactory that an arrangement upon the subject should be arrived at by common consent."

The United States, following the precedent of Great Britain, have made it an offense to transship foreign goods within four leagues of the coast; * and this has been held by the Supreme Court of the United States to be consistent with international law. It is no doubt argued by Sir R. Phillimore, that a statute of this class cannot be enforced against foreign States unless by adopting a similar provision they have incorporated it, so far as concerns the parties, into the Law of Nations. But it may be replied that a State cannot be expected to permit the waters surrounding it, at least within cannon shot of the shore, to be the site of smuggling adventures, or of the illegal transfer of goods; and so far as this limit goes, it should be entitled to enforce its rights against all intruders. It would seem right, therefore, that for the two purposes of defense against aggression and prevention of interference with its trade, a State should have jurisdiction over the seas washing it, as far as cannon shot extends. If there be no such jurisdiction, there would be no tribunal having cognizance of the of

That a seizure of vessels engaged in an illegal trade is not limited to a range of three miles from shore, see Church v. Hubbart, 2 Cranch, 187.

+ Church v. Hubbart, 2 Cranch, 187.

fense of throwing [projectiles from the sea on to the shores. The offense is not piracy by the Law of Nations, no matter how great may be the damage inflicted. It is not an offense by Federal stat| ute. But no matter how great may be the distance at which the projectile is thrown, the offense, if consummated in a State, is subject to such State. FRANCIS WHARTON.

MARRIAGE- PRESUMPTION OF DIVORCE FROM
SECOND MARRIAGE PRESUMPTION
OF DEATH.

SUPREME COURT OF WISCONSIN, APRIL 28, 1885.

WILLIAMS V. WILLIAMS.*

No presumption of law as to the dissolution by divorce of a former marriage arises from the fact of a second marriage being contracted by one of the parties to the first marriage during the life-time of the other.

When a man has deserted his wife, the fact that he has heard nothing from her for more than seven years will not create a presumption as to her death, and render a second marriage contracted by him innocent.

Illegal intercourse on the part of a woman before marriage, even if concealed from the man she marries, will not, when discovered, be ground for a divorce, or operate as an impediment to the marriage.

A decree of divorce on the ground of desertion, rendered in an action in which the defendant made no defense, will not preclude the plaintiff, in an action after the death of a man to whom she was married, before the divorce was obtained, to recover dower in his lands, from showing by facts dehors the divorce record that she was never legally married to the man made defendant in the divorce suit, because at the time the marriage was contracted he had no capacity to contract a valid marriage by reason of his being at that time the husband of another woman.

APPEAL from Circuit Court, Milwaukee county.

This is an action of ejectment, commenced September 7, 1874, by the plaintiff, as the widow of Lewis Williams, Sr., for dower of an undivided one-third of 260 acres of land in Kenosha county, and damage for withholding the same. The answer denies that she was ever such widow, or the wife of the deceased. On the first trial the jury found in favor of the plaintiff, and the judgment entered upon the verdict was reversed by this court for intervening error. 46 Wis 464. Upon the cause being remanded, the jury was waived, and the case was tried by the court, which found, in effect, that William Jones married Amelia Rees, April 6, 1860, at Ebber Vale, Wales, Great Britain, but abandoned her in June, 1860, and never returned to or saw her thereafter; that the same William Jones married the plaintiff (then Jane Davis), at Newtown, Wales, June 13, 1864, and cohabited with her as late as 1869 in Kenosha county; that May 9, 1870, the plaintiff married Lewis Williams, Sr., at Racine, Wisconsin; that in October, 1870, the plaintiff, by the name of Jane Jones, commenced an action for divorce against William Jones, upon personal service and verified complaint, on the ground that he had willfully deserted her in 1868, and had not returned, and obtained judgment of divorce therein, in the Circuit Court for Kenosha county, in November, 1870; that Lewis Williams, Sr., was seised of the premises in question May 9, 1870, when he was married to the plaintiff, and

*S. C., 23 N. W. Rep. 110.

thereafter conveyed the same to the defendant without the signature of the plaintiff; that Lewis Williams, Sr., died August 25, 1873; that William Jones was divorced from Amelia Rees before he married the plaintiff; that the plaintiff was, May 9, 1870, and until her divorce in November, 1870, the wife of William Jones; that Amelia Rees was living as late as October, 1877; that the plaintiff was not the wife of Lewis Williams, Sr., at the time of his death; that the plaintiff demanded possession of the premises in question before commencement of this action, which the defendant refused to deliver up. Upon the findings judgment was rendered against the plaintiff and in favor of the defendant, from which the plaintiff brings this appeal.

J. V. Quarles and Charles Quarles, for appellant. Fish & Dodge and D. S. Wegg, for respondent. CASSODAY, J. Was the marriage between the plaintiff and Lewis Williams, Sr., legal and binding upon the parties at the time it was consummated, on May 9, 1870? The answer to this question must be in the affirmative, unless the plaintiff was at the time the wife of William Jones. If she was at the time the wife of Jones, then she was incapable of entering into the marriage contract with Lewis Williams, Sr. Section 2330, Rev. Stat. The statute expressly prohibits such second marriage. Id. It goes further and declares that "if solemnized within this State," as this was, it shall be absolutely void, without any judgment of divorce or other legal proceedings." Section 2349, Rev. Stat. Whether the plaintiff was at that time the lawful wife of Jones, depends upon whether the mar riage between them in Wales, June 13, 1864, was a legal marriage. It is a verity in the case that four years prior to that marriage Jones had been lawfully married to Amelia Rees, who was then still living, and who continued to live for at least three years after the commencement of this action. It is claimed that the trial court was bound to presume, in the absence of testimony, that the marriage between Jones and Amelia, April 6, 1860, had been dissolved prior to his marriage with the plaintiff. The finding of the trial court to that effect is based entirely upon that presumption. There is no claim or preteuse that there is in the record any evidence of any such divorce, except the alleged presumption arising from the fact that Jones married the plaintiff. It is claimed that this alleged rule of presumption is settled by the authorities conclusively, and beyond all question. Several cases are cited in the brief of counsel in support of this statement. Some of these cases will be considered.

The leading case cited is King v. Twyning, 2 Barn. & Ald. 386. That case is cited in support of several of the other cases cited by counsel, as in Yates v. Houston, 3 Tex. 449; Carroll v. Carroll, 20 id. 741; Harris v. Harris, 8 Bradw. 65; Blanchard v. Lambert, 43 Iowa, 230.

In King v. Twyning, the question was whether the pauper, Mary Burus, was then the lawful wife of Francis Burns. It appeared that about seven years before she had married Richard Winter, with whom she lived a few months, when he enlisted as a soldier and went abroad on foreign service, and had never thereafter been heard of. A little more than a year after his departure Mary married Francis Burns, by whom she had children, and with whom she continued to live. In favor of innocence, the court presumed that Winter was dead before Mary married Burns. A person who has not been heard of for seven years is presumed to be dead, but there is no legal presumption that the death occurred at the end of the seven years, nor at any precise time during the seven years. Doe v. Nepean, 5 Barn. & Adol. 86.

In King v. Harborne, 1 Adol. & El. 540, one Henry Smith had married the pauper Ann Smith, April 11, 1831, and then deserted her. It appeared also that he had married Elizabeth Meadows, October 4, 1821, and continued to live with her about four years, when he left her, and she went to the hospital, and a letter was produced from her, dated in Van Diemen's Land twenty-five days before Smith married Ann. In that case it was held that the sessions were authorized to presume that the first wife was living at the time of the second marriage. In giving the opinion of the court, Lord Denman, C. J., in speaking of King v. Twyning, supra, said this court in that case "merely decided that the case raised no presumption upon which the findings of the sessions could be disturbed. The two learned judges (writing the opinions) certainly appear to have decided the case upon more general grounds. The principle however upon which they seem to have proceeded was not necessary to that decision. I must take this opportunity of saying that nothing can be more absurd than the notion that there is to be any rigid presumption of law on such a question of fact, without reference to accompanying circumstances; such for instance as the age or health of the party. There can be no such strict presumption of law. * * * I think that the only question in such cases is, what evidence is admissible, and what inference may fairly be drawn from it.' Littledale, J., expressed himself of the same opinion, and said: "All these questions depend upon the facts. There can be no direct evidence as to the fact, unless the party be shown to be alive after the marriage." All the judges concurred.

In that case there was no evidence tending to show any divorce from Elizabeth, and no intimation that the court had any right to presume such divorce. Several years afterward the House of Lords, after considering both of the above cases, and in opinions delivered by Lord Chancellor Cottenham and Lords Campbell and Brougham, declared substantially the same rule, and held that "there is no absolute presumption of law as to the continuance of life, nor any absolute presumption against a party doing an act because the doing of it would make him guilty of an offense against the law. In every instance the circumstances of the case must be considered." Lapsley v. Grierson, 1 H. L. Cas. 498. The question there involved was the legitimacy of Robert Lapsley and his sister Joanna, born in 1807 and 1810, and whose parents were John Lapsley, who died in 1810, and Janet McKinley, who was alleged to have been his wife. In behalf of Robert and Joanna, it was claimed that their mother, Janet McKinley, had been married three times in Scotland; first, to Kidd, who died in 1796; secondly, to Paul, who left for America in 1801 and was lost at sea in 1804 or 1805; and thirdly, to their father, John Lapsley, in 1807. The first two marriages were admitted, but the third was denied, and it was alleged that the cohabitation commenced unlawfully soon after Paul's departure from Scotland, and so continued, without its character having been changed, until the death of the father, John Lapsley, in 1810. "To make such children legitimate, it was held necessary for those who assert their legitimacy to prove either a legal origin of the cohabitation, or a change in the nature of it after the death of [Paul] had been known to all the parties. The mere fact that [John Lapsley] and the woman [Janet McKinley] continued to live together was not sufficient for that purpose. Under the circumstances the children were held illegitimate, though born after the date of [Paul's] death." But there is no intimation in the case of any presumption of any divorce of Paul and Janet McKinley in order to sustain the innocence of her and John Lapsley, and thus legitimatize the children. Of course where there

has been a marriage ceremony, it is prima facie valid, for the law presumes in favor of marriage. Piers v. Piers, 2 H. L. Cas. 331.

In the recent case of Queen v. Willshire, 6 Q. B. Div. 366, the indictment charged the prisoner with having married Charlotte Lavers, September 7, 1879, and then, while she was still living, having feloniously married Edith Miller, September 23, 1880. These charges having been clearly proved, the prisoner, to prevent conviction on that indictment, himself proved that he had been convicted of bigamy in June, 1868, on au indictment charging him with having married Ellen Earle in 1864, and then, while she was still living, having feloniously married Ada Leslie, April 22, 1868. There was no evidence that Ellen Earle was living September 7, 1879; nor that her marriage with the prisoner in 1864 had ever been dissolved or declared a nullity. The prisoner was convicted; and upon the question reserved, Lord Coleridge, C. J., among other things, used this language: "It is said, and I think rightly, that there is a presumption in favor of the validity of this latter marriage (1879), but the prisoner showed that there was a valid marriage in 1864, and that the woman he then married was alive in 1868. He thus set up the existence of a life in 1868, which in the absence of any evidence to the contrary, will be presumed to have continued to 1879. It is urged, in effect, that the presumption in favor of innocence a presumption which goes to establish the validity of the marriage of 1879-rebuts the presumption in favor of the duration of life. It is sufficient to raise a question of fact for the jury to determine. It was for the jury to decide whether the man told and acted a falsehood for the purpose of marrying in 1879, or whether his real wife was then dead." Because the determination of the fact as to whether she was then living or dead, from these conflicting presumptions, was withdrawn from the jury, the court were unanimous in holding that the conviction could not be sustained. Hawkins, J., said: "This case depended on the question of fact whether Ellen Earle was alive September 7, 1879, or not. If she was alive the prisoner was entitled to be acquitted; if she was dead he was rightly convicted. There was proof that Ellen was alive in 1868. There was presumption that her life continued. The only evidence to the contrary was that the prisoner presented himself as a bachelor to be married in 1879. Whether that would have satisfied the jury that his former wife was then dead, was a question for them to decide, but it was not left to them for decision."

The Dysart Peerage case, decided in the House of Lords the same month, covered some of the questions before this court on the former appeal, but nothing in conflict with the English rule as to conflicting presumptions, above stated. 6 App. Cas. 489; S. C., 34 Moak, 550. That rule has judicial sanction in this country. Wiseman v. Wiseman, 73 Ind. 112; S. C., 89 id. 479; Com. v. Thompson, 6 Allen, 591; S. C., 11 id. 23; Gorman v. State, 23 Tex. 646; Ellis v. Ellis, 58 Iowa, 720; Best Ev., § 334. The Texas and Iowa cases, here cited, virtually overrule the prior cases in the same State, respectively cited by counsel. Under the rule suggested, there is no rigid presumption against the continuance of the life of one of the parties to a prior marriage in order to establish the innocence of the other party to a subsequent marriage; much less is there any rigid presumption of a dissolution of the first marriage by a divorce prior to the second, in order to establish such innocence. Smith v. Smith, 5 Ohio St. 32. Probably there are cases in which the facts and circumstances were such as to justify the inference that the former marriage had been dissolved by a divorce; but the rule indicated authorizes no absolute presumption of law to that effect. Each case must be

determined upon its own facts and circumstances, and such inferences as should fairly and reasonably be drawn from them. The question whether the plaintiff was lawfully married to Jones, June 13, 1864, must be so determined. It is confessed that four years before that marriage the same Jones had been married to Amelia in Wales; that he only lived with her about twelve weeks; that during the most of that time they were at the house of Amelia's father; that just before the end of the twelve weeks, and in order to start Jones in business, his father gave him £12, and Amelia's father gave him £20 more; that a few days after receiving these gifts, Amelia's husband left the house of her father without saying whither he was going, aud never returned. On his departure Amelia found that he had taken £10% of her own money. On the next day Amelia and her father went in search of him as far as Liverpool, where they were informed that he had embarked on board a vessel bound for America. Amelia continued to live with her father, or in the vicinity, as late as 1877; but during all that time she never received any paper or letters from her husband, Jones.

The opinion of the court in the Massachusetts case cited, is peculiarly applicable to this state of facts. It is there said: "But the case stated in this bill of ex ceptions is wanting in one of the essential facts stated as the foundation for a right to presume the death of the husband. It is only to the person who leaves his home or place of residence, and is gone more than seven years and not heard of, that this presumption is applicable. Here the wife went away, and the husband, for aught that appears, remained at Lawrence, or in the vicinity. * * * In the facts stated we see no sufficient ground for any presumption of the death of the husband upon which the wife of Carleton or the defendant could properly have acted." Applying these principles to this case, and it follows that since Jones went to parts unknown to Amelia, and she remained at her father's home when he left her, or in that vicinity, an inference of Jones' death, and possibly of his divorce, might have been fairly drawn from the facts and circumstances in favor of Amelia's innocence, had she got married, yet that no such inference could reasonably be drawn in favor of the innocence of Jones; for as to him he knew where he left his wife, and hence could easily have ascertained the facts. From the facts stated, it cannot fairly be inferred that Jones and Amelia were divorced at any time, much less prior to the time when the plaintiff and Jones went through the marriage ceremony in 1864. On the contrary, we must infer that no such divorce was ever obtained.

In addition it appears that the plaintiff and Jones separated in 1868 or 1869, while living in Kenosha, and that the plaintiff, near where Jones then lived, publicly married Williams, and openly lived with him there as her husband. These facts of themselves raise an inference against the validity of the marriage of 1864. Jones v. Jones, 48 Md. 391; Weatherford v. Weatherford, 20 Ala. 548. These things, in connection with the other facts and circumstances stated, force upon us the conviction that Amelia was the lawful wife of Jones at the time he went through the marriage ceremony with the plaintiff. This being so, that marriage, had it been consummated in this State, would have been absolutely void without any judgment of divorce or other legal proceeding under the statutes above cited, which were in force at the time. § 3, ch. 109, and § 1, ch. 111, Rev. Stat. 1858. The same would be true in respect to that marriage if we are to presume, as claimed, that the law in Wales at the time was the same as our own. There are decisions author. izing such presumption. In addition to those cited by counsel, see Hynes v. McDermott, 82 N. Y. 41; Com. v.