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The supremacy of the law of family should not be forgotten. We come under the dominion of this law at the very moment of birth; we thus continue for a certain period, whether we will or no. Long after infancy has ceased, the general obligations of parent and child may continue; for these last through life. Again, we subject ourselves by marriage to a law of family; this time to find our responsibilities still further enlarged. And although the voluntary act of two parties brings them within the law, they cannot voluntarily retreat when so minded. To an unusual extent, therefore, is the law of family above, and independent of, the individual. Society provides the home; public policy fashions the system; and it remains for each one of us to accustom himself to rules which are, and must be, arbitrary.
So is the law of family universal in its adaptation. It deals directly with the individual. Its provisions are for man and woman; not for corporations or business firms. The ties of wife and child are for all classes and conditions; neither rank, wealth, nor social influence weighs heavily in the scales. To every one public law assigns a home or domicile; and this domicile determines not only the status, capacities, and rights of the person, but also his title to personal property. There is the political domicile, which limits the exercise of political rights. There is the forensic domicile, upon which is founded the jurisdiction of the courts. There is the civil domicile, which is acquired by residence and continuance in a certain place. The place of birth determines the domicile in the first instance; and one continues until another is properly chosen. The domicile of the wife follows that of the husband; the domicile of the infant may be changed by the parent. Thus does the law of domicile conform to the law of nature.
§ 4. Law of Husband and Wife now in a Transition State; Various Property Schemes Stated. The most interesting and important of the domestic relations is that of husband and wife. The law of England and the United States, on this topic, is now undergoing a remarkable change; and so unsettled are its principles at the present time, with reference to the rights and obligations of the married pair, that the
writer has felt constrained to depart somewhat from the usual plan of law treatises, adopting what might be termed a consecutive or historical arrangement of his materials; since otherwise the subject would furnish to the reader's mind little else than a series of unreconciled contradictions. To show clearly why the later cases conflict with the earlier will at least aid the future legislator and jurist in their efforts to place the law of husband and wife upon a firm and just basis; and meanwhile afford to the practising lawyer all the assistance which he can reasonably expect.
This confused state of the law of husband and wife is exhibited in a contest still going on between two opposing schemes for adjusting the property rights of the married parties. The one is the common-law scheme; the other resembles that of the civil law. The former is at the basis of our jurisprudence, English and American. The latter has had a powerful influence in modern times, moulding the doctrines of the equity tribunals and shaping recent legislation. Let us examine these schemes separately, and afterwards a third or intermediate scheme, known as that of community.
§ 5. Common-Law Property Scheme. -(1) The commonlaw scheme makes unity in the marriage relation its cardinal point. But to secure this unity the law starts with the assumption that the wife's legal existence becomes suspended or extinguished during the marriage state; it sacrifices her property interests, and places her almost absolutely within her husband's keeping, so far as her civil rights are concerned. Her fortunes pass by marriage into her husband's hands, for temporary or permanent enjoyment, as the case may be; she cannot earn for herself, nor, in general, contract, sue, or be sued in her own right; and this, because she is not, in legal contemplation, a person. The husband loses little or nothing of his own independence by marriage; but in order to distribute the matrimonial burdens with some approach to equality, the law compels him to pay debts on his wife's account, which he never in fact contracted, not only where she is held to be his agent by legal implication, but whenever it happens that she has brought him by marriage outstand
ing debts without the corresponding means of paying them. Husband and wife take certain interests in one another's lands, such as curtesy and dower, which become consummate upon survivorship. In general, their property rights are summarily adjusted by the law with reference rather to precision than principle. On the whole, however, the advantages are with the husband; and he is permitted to lord it over the wife with a somewhat despotic sway; as the old title of this subject-baron and feme-- plainly indicates. The witty observation is not wholly inappropriate, that, in the eye of the common law, husband and wife are one person, and that one is the husband.1
§ 6. Civil-Law Property Scheme. - (2) The civil-law scheme pays little regard to the theoretic unity of a married pair. It looks rather to the personal independence of both husband and wife. Each is to be protected in the enjoyment of property rights. In the most polished ages of Roman jurisprudence we find, therefore, that husband and wife were regarded as distinct persons, with separate rights, and capable of holding distinct and separate estates. The wife was comparatively free from all civil disabilities. She was alone responsible for her own debts; she was competent to sue and be sued on her own contracts; nor could the husband subject her or her property to any liability for his debts or engagements.2
The more minute details of the common-law scheme of husband and wife belong to the main portion of this volume, and need not here be anticipated. Not so, however, with the civil-law scheme; and we proceed to elaborate it somewhat further. In the earlier period of Roman law the marital power of the husband was as absolute as the patria potestas. But before the time of the Emperor Justinian it had assumed the aspect already noticed; in which it is to be distinguished from all other codes. The communio bonorum, which is to be found in so many modern systems of jurisprudence whose basis is the Roman law, treats the wife's separate property and separate rights as exceptional. The peculiarities of the civil law in this respect may, perhaps, 21 Burge, Col. & For. Laws, 202, 203.
1 See post, Part II., as to coverture doctrine.
be referred to the disuse into which formal rites of marriage had fallen. Formal marriage gave to husband and wife a community of interest in each other's property. But marriage per usum, or by cohabitation as man and wife, which became universally prevalent in later times, did not alter the status of the female; she still remained subject to her father's power. Hence parties united in a marriage per usum acquired no general interest in one another's property, but only an incidental interest in certain parts of it. The wife brought her dos; the husband his antidos; in all other property each retained the rights of owners unaffected by their relation of husband and wife. The dos and anti-dos were somewhat in the nature of mutual gifts in consideration of marriage. Every species of property which might be subsequently acquired, as well as that owned at the time of marriage, could be the subject of dotal gift. The father, or other paternal ancestor of the bride, was bound to furnish the dos, and the husband could compel them afterwards, if they failed to do so; the amount or value being regulated according to the means of the ancestor and the dignity of the husband. This pecuniary consideration appears to have influenced the later marriages to a very considerable extent. And while the husband had no concern with the wife's extra-dotal property, since this she could manage and alienate free from all control or interference, over her dotal property he acquired a dominion which was determinable on the dissolution of the marriage, unless he had become the purchaser at an estimated value. As incidental to this dominion he had the usufruct to himself, he might sue his wife or any one else who obstructed his free enjoyment, and he could alienate the personal property at pleasure. But he could not charge the real estate unless a purchaser; and upon his death the wife's dotal property belonged to her, or, if she had not been emancipated, to her father; and to secure its restitution after the dissolution of marriage, the wife had a tacit lien upon her husband's property. Of the anti-dos, or donatio propter nup tias, not so much is known; but this appears to have generally corresponded with the dos; it was restored by the wife upon the dissolution of marriage, and was regarded as her usufructuary property in like manner. It was not necessarily of the same
value or amount with the wife's dos. Over his general property the husband retained the sole and absolute power of alienation, and his wife had no interest in it, nor could she interfere with his right of management.1
But the civil law allowed agreements to be made by which these rights might be regulated and varied at pleasure. And by their stipulations the married parties might so enlarge their respective interests as to provide for rights to the survivor.2 These agreements were not unlike the antenuptial settlements so well known to our modern equity courts, which we shall consider in due course hereafter.
§ 7. Community Property Scheme. (3) The communio bonorum, or community system, relates to marital property, in which respect it occupies an intermediate position between the civil and common law schemes. The communio bonorum may have been part of the Roman law at an earlier period of its history, but it had ceased to exist long before the compilation of the Digest; though parties might by their nuptial agreement adopt it. This constitutes so prominent a feature of the codes of France, Spain, and other countries of modern Europe, whence it has likewise found its way to Louisiana, Florida, Texas, California, and other adjacent States, once subject to French and Spanish dominion, and erected, in fact, out of territory acquired during the present century upon the Mississippi, the Gulf of Mexico, and the Pacific Ocean, that it deserves a brief notice.
The relation of husband and wife is regarded by these codes as a species of partnership, the property of which, like that of any other partnership, is primarily liable for the payment of debts. This partnership or community applies to all property acquired during marriage; and it is the well-settled rule that the debts of the partnership have priority of claim to satisfaction out of the community estate. Sometimes the community is universal, comprising not only property acquired during coverture, but all which belonged to the husband and
1 1 Burge, Col. & For. Laws, 202; Ib. 263 et seq.
2 1 Burge, Col. & For. Laws, 273.
8 1 Burge, Col. & For. Laws, 202; Ib 263 et seq.