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wife before or at their marriage. It is evident, therefore, that the provisions of such codes may differ widely in different States or countries. The principle which distinguishes the community from both the civil and common law schemes is, however, clear; namely, that husband and wife should have no property apart from one another.

Under modern European codes this law of community embraces profits, income, earnings, and all property which, from its nature and the interest of the owner, is the subject of his uncontrolled and absolute alienation; but certain gifts made between husband and wife in contemplation of marriage are of course properly excluded.2 Whether antenuptial debts are to be paid from the common property, as well as debts contracted while the relation of husband and wife continues, would seem to depend upon the extent of the communio bonorum, as including property brought by each as capital stock to the marriage, or only such property as they acquire afterwards. The codes of modern Europe recognize no general capacity of the wife to contract, sue, and be sued, as at the later civil law. On the contrary, the husband becomes, by his marriage, the curator of his wife. He has, therefore, the sole administration and management of her property, and that of the community; and she is entirely excluded in every case in which her acts cannot be referred to an authority, express or implied, from her husband. Hence, too, all debts and charges are incurred by the husband. The community ceases on the termination of marriage by mutual separation or the death of either spouse. And the various codes provide for the rights of the survivor on the legal dissolution of the community by death.

The reader may readily trace the influence of the community system upon the jurisprudence of Louisiana and the other States to which we have referred, whose annexation was subsequent to the adoption of our Federal Constitution, by exam

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ining their judicial reports. The Civil Code of Louisiana, as amended and promulgated in 1824, pronounced that the partnership or community of acquêts or gains arising during coverture should exist in every marriage where there was no stipulation to the contrary. This was a legal consequence of marriage under the Spanish law. The statutes of Texas, Florida, Missouri, California, and other neighboring States, are characterized by similar features. But all of these laws have been modified by settlers bringing with them the principles of the common law. So, too, the doctrines of separate estate, revived in modern jurisprudence, are introduced into the legis lation of these as other American States.2 The American community doctrine, as we may term it, is that all property purchased or acquired during marriage, by or in the name of either husband or wife, or both, including the produce of reciprocal industry and labor, shall be deemed to belong prima facie to the community, and be held liable for the community marriage debts accordingly.3 But it will be perceived that, in our American codes, community, as an incident to marriage property, is only a presumption, which may be overcome in any instance by proof that the property was acquired as the separate estate of either the husband or wife. This community rule, moreover, as it is evident, does not apply to the property which either husband or wife brought into the marriage; such property, by the codes, being distinctly kept to each spouse apart as his or her separate prop

2 Texas Digest, Paschal, "Marital Rights;" Cal. Civil Code, “Husband and Wife;" Parker's Cal. Dig. "Husband and Wife;" Walker v. Howard, 34 Tex. 478; Caulk v. Picou, 23 La. Ann. 277. And see Forbes v. Moore, 32 Tex. 195.

1 Art. 2312, 2369, 2370; 2 Kent, Cal. 428; Eslinger v. Eslinger, 47 Cal. Com. 183, n. 62. The wife's earnings, unless given her by the husband, and likewise property bought with such earnings, must belong to the community. Johnson v. Burford, 39 Tex. 242; Ford v. Brooks, 35 La. Ann. 157. But see Fisk v. Flores, 43 Tex. 340. The husband, as head and master of the community, has the right to dispose of its movable effects. Cotton v. Cotton, 34 La. Ann. 858. For the American community doctrine in detail, see Schouler, Hus. & Wife, §§ 339-345; Stimson, Am. Stat. Law, § 6434.

3 Louisiana Civil Code, §§ 23692372; Succession of Planchet, 29 La. Ann. 520; Tally v. Heffner, 29 La. Ann. 583. Land owned by a spouse at the time of marriage does not fall into the community. Lake v. Lake, 52

erty.1 And, besides, it is now usually provided by legislation that property acquired during marriage, "by gift, bequest, devise, or descent," with the rents, issues, and profits thereof, shall be separate, not common property. The tendency, then, in our States, where the law of community still existsthough all have not proceeded in legislation to the same length is to limit rather than extend its application. The wife has a tacit mortgage for her separate property, so far as the law may have placed it in her husband's control; also upon the community property from the time it went into his hands; and, moreover, she may, on surviving her husband, renounce the partnership or community, in which case she takes back all her effects, whether dotal, extra-dotal, hereditary, or proper.2

On the whole, there is in the doctrine of community much that is fair and reasonable; but in the practical workings of this system it is found rather complicated and perplexing, and hence unsatisfactory; while in no part of the United States can it be said to exist at this day in full force, since husband and wife are left pretty free to contract for the separate enjoyment of property, and so exclude the legal presumption of community altogether; and, moreover, the constant tendency of our Southwestern States is to remodel their institutions upon the Anglo-American basis, common to the original States and those of the Ohio valley.

1 La. Code, §§ 2316, 2369, 2371; Pinard's Succession, 30 La. Ann. 167; McAfee v. Robertson, 43 Tex. 591; Hanrick v. Patrick, 119 U. S. 156; Myrick's Prob. 93; Schmeltz v. Garey, 49 Tex. 49. But the wife should not mingle her separate funds with those of the community in making a purchase, as of her separate estate. Reid v. Rochereau, 2 Woods, 151. See Schouler, Hus. & Wife, § 341.

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reference to the husband's liability for her paraphernal property, is discussed by Mr. Justice Gray in Fleitas v. Richardson, 147 U. S. 550.

See Packard v. Arellanes, 17 Cal. 525; Waul v. Kirkman, 25 Miss. 609; Succession of McLean, 12 La. Ann. 222; Jones v. Jones, 15 Tex. 143; Ex parte Melbourn, L. R. 6 Ch. 64; La. Civil Code, §§ 2369-2405; 1 Burge, Col. & For. Laws, 277 et seq., where the law of community as it was about half a century ago is fully set forth; and the learned note to 2 Kent, Com. 183. See also Schouler, Hus. and Wife, §§ 335345.

§ 8. The Recent Married Women's Acts. - What are familiarly known as the "married women's acts," the product for the most part of our American legislation since 1848, and more recently engrafted upon the code of Great Britain, aim to secure to the wife the independent control of her own property, and the right to contract, sue, and be sued, without her husband, under reasonable limitations. These acts, therefore, substitute in a great measure the civil for the common law. It may be laid down that the common law, in denying to the wife the rights of ownership in property acquired by gift, purchase, bequest, or otherwise, did her injustice, and that a radical change became necessary; and this is shown, not only in the legislation of our States, but by the fact that the equity tribunals gradually moulded the unwritten law of England so as to secure like results.

All this separate property legislation, as well as the equity doctrines pertaining to the subject in England and the several United States, will be duly set forth in these pages hereafter, so far as the chaotic condition of the law at this transition period will permit. And the modification of the respective property rights of a married pair by marriage contracts or settlements will also be considered.2

In the connubial

§ 9. Marriage and Marital Influence. joys to which every age and nation bear witness, the vast majority of this globe's inhabitants must have participated from one era to another, with a certain voluntary adjustment of the reciprocal burdens, such as relieved both husband and wife of a sense of bondage to one another. And thus have the inequalities, the hardships of marriage codes, proved less in practice than in literal expression. For whatever the apparent severity of the law, human nature or love's divine instinct works in one uniform direction, namely, towards uniting the souls once brought into the arcana of married life in an equally honorable companionship. Woman's weakness has been her strongest weapon; where her influence

1 See coverture doctrine, modified by equity and modern statutes, Part

II., post.

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2 Marriage Settlements, post.

could not overflow, it permeated; and if her life has been, legally speaking, at her husband's mercy, her constant study to please has kept him generally merciful. She has not been superior to her race and epoch, but on the whole as well protected, as well advanced, in her day, as those of the other sex. Except for this, the wife's lot must have been miserable indeed, even under the most civilized institutions ever established. Codes and the experience of nations in this respect show strange inconsistencies: laws at one time. degrading to woman, and yet marital happiness; laws at another elevating her independence to the utmost, and yet marital infelicities, lust, and bestiality.1

§ 10. General Conclusions as to the Law of Husband and Wife. The conclusions to which this writer's investigation upon the general subject of husband and wife conducts him, are these. Marriage is a relation divinely instituted for the mutual comfort, well-being, and happiness of both man and woman, for the proper nurture and maintenance of offspring, and for the education in turn of the whole human race. Its application to society being universal, the fundamental rights and duties involved in this relation are recognized by something akin to instinct, and often designated by that name, so as to require by no means an intellectual insight; intellect, in fact, impairing often that devotedness of affection which is the essential ingredient and charm of the relation. Indeed, the rudest savages understand how to bear and bring up

1 See examination of ancient marriage systems, including that of the Roman Republic, in Schouler's Hus. & Wife, §§ 4-6.

Whether, in setting at naught that identity of interests which is essential to domestic happiness, the later Roman scheme was fatally defective, or the conjugal decay which ensued was due to causes more latent, need not here be discussed. Certain it is, however, that widespread incestuous intercourse, licentiousness most loathsome and unnatural, followed in the wake of marital independence, and as the interests of husband and wife began to diverge,

the bonds of family affection became weakened. When the Empire sank into utter dissolution woman possessed a large share of cultivation and personal freedom; yet she had touched the lowest depths of social degrada tion.

This degradation it became the mission of the Christian Church to correct during the lapse of the dark ages by restoring the dignity of marriage,exalting it, in fact, to a sacrament, and almost utterly prohibiting its dissolntion. From so strict a view of mar riage, however, Protestant countries in modern times dissent. Ib.

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