paternal power of life and death over the *wife, but to the civil law in the more polished ages of the Roman juris

quired after a change of domicil from Louisiana to another state. Saul v. His Creditors, supra. This was the doctrine in the Partidas, but it seems according to the jurists in France and Holland, that the community principle prevails and follows the property even subsequently acquired after a change of domicil, on the ground of a tacit or implied contract having the effect of an actual marriage settlement. While it was admitted in the case of Saul v. His Creditors, that by the comity of nations, contracts were to be enforced according to the principles of law which governed the contract in the place where it was made, yet it was equally part of the rule, that a positive law, regulating property in the place where it was situated, and which the European continental jurists call real statutes, in contradistinction to those personal statutes which follow and govern the individual wherever he goes, must prevail when opposed to the lex loci contractus. The right of sovereignty settles the point, whenever the rules of the place of the contract, and of the place of its execution conflict. The comity of nations must yield to the authority of positive legislation; and it was admitted, that, independent of that authority, the weight of the opinion of civilians in France and Holland was, that the law of the place where the marriage was contracted ought to be the guide, and not that of the place where it was dissolved. The property of married persons is divided into separate property, being that which either party brings in marriage, or subsequently acquires by inheritance or gift, and common property, being that acquired in any other way by the husband and wife during marriage. (Art. 2314.) The community of acquets and gains ceases on the death of either party, and the survivor takes only his or her undivided moiety of the common property. Cooney's Heirs v. Clark, 7 Louisiana Rep. 156. Broussard v. Bernard, id. 216. Stewart v. Pickard, 10 Robinson's Lousi. Rep. 18. The surviving wife cannot renounce the community of gains, if she takes an active part in the community of gains, but in that case she is only responsible for one half of the debts contracted during the marriage. Code Civil, art. 2982, 2378. Lynch v. Benton, 12 Robinson's Louisi. Rep. 113. The separate property of the wife is divided into dotal, being that which she brings to the husband to assist in the marriage establishment, and extra-dotal, or paraphernal property, being that which forms no part of the dowry. (Art. 2315.) The husband is the head and master, and the proceeds of the dowry belong to the husband during the marriage, and he has the administration of the partnership or community of profits of the matrimonial property, and he may dispose of the revenues which they produce, and alienate them, without the consent of the wife. But he cannot convey the common estate, or the acquets and gains, to the injury of the wife during coverture, and she may, at his decease, by action, set aside the alienation. The wife has a tacit mortgage for her dotal and paraphernal

prudence when the wife was admitted to the *benefit of a liberal antenuptial contract, by which her private pro

property, and also upon the community property from the time it comes into the hands of the husband. There is a marked difference on this point between the community law in France and in Louisiana. In the latter taken from the Spanish law the wife has an interest in the community property, and not a mere hope or expectancy, during the coverture It is not the law in force at the time the community is dissolved, but that in vigor when it was formed, which regulates the rights of husband and wife to the property acquired during coverture. (Art. 2373.) Porter, J., Dixon v. Dickson's Executors, 4 Miller's Rep. 188, 192. He cannot alienate the dotal estate though he may enjoy the fruits of it, nor can the income of the dotal property be seized by the husband's creditors. Buard v. De Russy, 6 Robinson, 111. But he is subject, in respect to that property, to all the obligations of the usufructuary. (Art. 2344.) The paraphernal property of the wife is not bound for the debts contracted by the husband while at the head of the community; neither are the fruits of that property liable, when administered by the wife. (L. Code, Art. 2371.) Lambert v. Franchebois, 16 Curry's Louis. Rep. 1.) If the husband and wife stipulate that there shall be no partnership between them, the wife preserves the entire administration of her property, movable and immovable, and may sell it. (Art. 2394, 2395.) She has the right, during the existence of the community, to the administration of her paraphernal property, and on her death, her heirs take her separate estate, and moneys received by her husband on her account during marriage form part of it. Robin v. Castille, 7 Louis. Rep. 295. And if there be no agreement as to the expenses of the marriage, the wife contributes to the amount of one half of her income, (Art. 2397;) but a married woman cannot, under any circumstances, become a surety for her husband. Hughes v. Harrison, 19 Martin's Louis. Rep. 251. A sale by the husband to his wife, to replace her paraphernal property, sold by him, is good. Her land, whether dotal or not, is not affected by her husband's debts. Christy's Dig. tit. Husband and Wife. If the wife renounces the community, she in that case has a mortgage on the property purchased by the husband during coverture, which takes precedence of the ordinary creditors of the husband. M'Donogh v. Tregre, 19 Martin's Louis. Rep. 68. But she must, as against creditors, produce other proof of the payment of the dot or dotal portion on marriage, than the husband's confession in the marriage contract. Buisson v. Thompson, 19 Martin's Louis. Rep. 460; and she has no mortgage on her husband's estate for the fruits of her paraphernal estate, 18 ibid. 103; but she is a privileged creditor, 15 ibid. 239, and has a tacit mortgage for replacing her paraphernal effects sold by the husband. 16 Ibid. 404. Johnson v. Pilster, 4 Rob. Louis. Rep. 71. The civil law, in order to protect the wife, would not allow her dotal property to be alienated, during the

perty was secured to her, and a more reasonable equality of condition between the husband and *187

coverture, even with her consent; and the Spanish laws declare void any contract in which the wife binds herself with her husband, unless the debt be contracted for her particular benefit. 1 Martin's Louis. Rep. 296. But I cannot go further, and give a more detailed view of the rights of married persons in Louisiana. My object is merely to state enough to show, that its regulations on the subject are entirely different from the laws of the other states; and to a mere English lawyer they will probably appear to be embarrassing, and rather forbidding. Our taste and modes of thinking, are very much under the influence of education; and we are naturally led to give a preference to the institutions under which we live, and with which we are best acquainted.

The Louisiana Code appears to be a transcript in this, as well as in most other respects, of the Code Napoleon; and the very complicated regulations of the French code on the subject of marriage property, occupy a wide space, even in that comprehensive and summary digest of the French law. Pothier had devoted three volumes of his works to the conjugal rights in community; and M. Toullier, who had discussed extensively the law of marriage, in the former part of his Droit Civil Francais suivant l'ordre du code, devoted his last volumes to a commentary upon the regulations of the Code Civil concerning the community system; and Mr. Burge, in his Commentaries on Colonial and Foreign Laws, vol. i. 332413, and again from p. 599 to 640, has also digested with much labour and research, the law of the community of goods between husband and wife. I have selected, for the information of the student, a few of the leading principles of the French code on the subject.

It is declared, that the husband owes protection and maintenance to the wife, according to his means and condition. Code Civil, No. 213, 214. The wife owes him obedience, and cannot do any act in law, without the authority of her husband; and without his concurrence, she cannot give, alien, or acquire property. Ibid. No. 215. 217. But if the husband refuses to authorize his wife to do any act in law, she may apply to a judicial tribunal for leave to act. Ibid. No. 218, 219. If she be a public trader, she may bind herself without the authority of her husband, in whatever concerns that business. Ibid. No. 220. She may also make a will without his authority. Ibid. No. 226. No general authority, though stipulated by the marriage contract, is valid, except as to the administration of the wife's property. Ibid. No. 223. But the law allows the husband and wife to make any special contract as to property, which is not incompatible with good morals, and does not derogate from the power of the husband over the person of the wife and children, nor change the legal order of succession. Ibid. No. 1387, 1388, 1389. The parties may stipulate in writing, before marriage, that the conjugal relation, in respect to property, shall VOL. II.

17

wife introduced. The civil law at first prohibited the husband and wife from making valid gifts to each

be regulated either under the community, or under the dotal rule, and the code prescribes their rights and powers under each of these systems, and they may modify as they please the management and disposition of the joint property placed in community. They may stipulate that each of the married parties shall separately pay their own debts, and this stipulation will bind them, on the dissolution of the community, to account to each other. Ibid. No. 1391. 1395. 1401, 1402. 1421. 1497. 1500. 1510. 1526. Before the French revolution, the northern provinces of France were under the customary law, and the community of property governed the nuptial contract; while in the southern provinces, where the Roman law prevailed, the contract was governed by the dotal system. The Code, by way of compromise, left the parties to elect the law by which the marriage was to be governed; and if no election was made, the community system was to prevail. Ibid. 1391. 1393. These marriage contracts cannot be altered after marriage; and, ordinarily, the husband administers the personal property in community, and may sell or incumber it, but he cannot take away, by will, the rights of the wife as survivor. If they stipulate that they shall be separate in property, the wife retains the entire administration of her real and personal property and revenues, and each party contributes to the charges of the marriage according to agreement. Ibid. No. 1536, 1537. In no case can the wife have a power given to her to alienate her real estate without the consent of her husband; and if they marry under the dotal rule, and not under the rule of the community, the husband has the sole administration of the dotal property during the marriage. Ibid. No. 1531.

The Dutch matrimonial law in respect to property is essentially the same. See Van Leeuwen's Commentaries on the Roman Dutch Law, b. 4. ch. 23, 24. Voet's Commentaries on the Pandects under the appropriate titles. Vanderlinden's Institute of the Laws of Holland, translated by Henry, p. 86-88. Burge's Commentaries on Colonial and Foreign Laws, vol. i. 276-332. The Master's Report on the matrimonial Dutch law, in the colony of Demerara, as given in Martin v. Martin, 2 Russ. § Mylne, 507. The Dutch and all the nations of Europe, except the Spaniards, have rejected that part of the Roman law, which secured to the wife all her property, and protected it against the debts of her husband. In Holland the goods of both parties are brought into community at marriage, and it concludes all property subsequently acquired, and is liable for the debts of both parties, unless it be property affected by a trust or fidei commissum. At the death of either party, one half goes to the survivor, and the other half to the representatives of the deceased. In Scotland the community of goods between the husband and wife is of a more limited character than that which exists in the continental nations, and does not

other causa mortis; yet the rigor of the law was afterwards done away, and donations between husband and wife were good if they were not revoked in the lifetime of the parties; and Justinian abolished the distinction between donations inter vivos ante nuptias et post nuptias, and he allowed donations propter nuptias as well after as before marriage. The wife could bind herself by her contracts without charging her husband. She was competent to sue and be sued without him. They could sue each other, and, in respect to the property, were considered as distinct persons, and the contracts of the one were not binding on the other.b

Whatever doubts may arise in the mind of a person educated in the school of the common law, as to the wisdom or policy of the powers, which by the civil law, and the law of those modern nations which have adopted it, are conceded to the wife in matters of property; yet, it cannot be denied, that the pre-eminence of the Christian nations of Europe, and of their descendants and colonists in every other quarter of the globe, is most strikingly displayed in the equality and dignity which their institutions confer upon the female character.

extend to real property or subjects which produce annual profits. The effect of marriage on the property of the husband and wife in Scotland is largely and learnedly considered in Burge's Com. vol. i. p. 423–462.

b Inst. 2. 7. 3. Bynk. Opera, tom. i. p. 166. Obsev. Jur. Rom. lib. 5. ch. 18.

A summary of the rules of the civil law on the rights and powers of the husband and wife in relation to their property, is given in Burge's Comm. on Colonial and Foreign Laws, vol. i. 262--265. The law concerning the conjugal obligations under the Scotch law, is fully stated and condensed in Lord Stair's Institutions by More, vol. 1. note b. See also a learned note of John George Phillimore Esq. annexed to his translation of the celebrated case of Manby v. Scott, from 1 Sidefin, 109, on the early periods of the Roman law in respect to conjugal rights and duties.