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We think it self-evident that the statements we have thus made as to the existing law of the land, by which it will be seen that two different sets of Courts dispense diametrically opposite rules, and in point of fact two distinct codes, on the all-important subject of marriage, are most discreditable to our system of laws, if any claim for principle on comprehensive views should be set up for them.

It appears, however, to your Committee that the operation of the law is even more reprehensible than its want of scientific character and uniformity.

Law as to Married

Women.

Under the present law the practice in society is, that among the upper and wealthier classes parents rarely allow their Operation of the daughters to marry without securing for them some provision by the interposition of trustees. If the woman has property she may, by this mode, secure the separate enjoyment of it to herself. So also, any relative or friend who desires to give separate property to a married woman, may secure the possession of it to her by law, without the least right of interference on the part of the husband.

But in all cases where parties marry without any antenuptial contract, and where property is bequeathed to or acquired by the wife, without the technical words which create separate property, such property and acquisitions fall into the possession and absolute power of the husband.

The operation of these laws is, that the rich are enabled, in many cases, to avoid the harshness of the Common Law, from which the middle classes, and those too poor to encounter the expenses of Courts of Equity, are unable to escape. But even the rich, in many cases, fall under the rigour of the Common Law; for wherever a marriage takes place without settlements, the Common Law rules prevail. So also do they in numerous cases in which Equity, from its limited power of modifying the Common Law, has been unable to extend or apply the broad and just principle on which, in other cases, it proceeds. The petitions which have been presented to Parliament during the present session, signed by about 24,000 persons, show that public attention is attracted to the subject, and we have reason to believe that the existing law operates grievously in society.

Your Committee, therefore, are clearly of opinion that it is the duty of the Legislature to amend the present state of the law affecting the property of married women, and to introduce one uniform rule, based on general principles, which shall keep in view all the relations of the married state, be applicable to all classes, and be administered by all courts of justice, whether of law or of equity.

Before proceeding to discuss the principles on which a new law should be founded, we think that it will facilitate the inquiry to state the mode in which other countries, especially France and America, have dealt with the subject.

Marriage Law of France.

We believe that the following may be taken as a sufficiently accurate summary of the present law of France.

Marriages take place in France under the Régime de Communauté, or Régime dotal.

1. Régime de Communauté is either légale or contractuelle. By the first, which is by operation of law without any contract, all the moveable property of the man and woman, both at marriage or acquired during marriage (except specific legacies specially tied up), and the immoveable property acquired during marriage, form one mass called communauté, which is administered by the husband, and may be aliened by him during marriage, but cannot be bequeathed except as to his share; and

at the dissolution of the marriage, a partition takes place between husband and wife or their representatives.

The wife's immoveable property belongs to the wife alone, but the rents, and profits, and administration go to the husband.

The communauté, and therefore the husband, is answerable for all the debts (except those belonging to the real estate) of the wife, both before marriage, or contracted during the marriage. The wife can obtain a séparation des biens, that is, a division of the moveable property, and have the administration of her share committed to her, on application to a Court of Justice, if the husband is making away with the property.

By the communauté conventionelle, any provisions modifying the community of law may be introduced in the antenuptial marriage contract. The usual modification is to give the wife a lesser share than haif, according to the amount of moveable property she brings into the common stock.

2. Régime dotal. Under this system the dowry is the sum brought to the husband to sustain the charges of the marriage, and is specified in the antenuptial contract. But the contract, like English marriage settlements, may introduce any provisions whatever.

All property of the woman, not specified in the contract, is called paraphernal, and belongs absolutely to the wife, but she cannot alienate it without the authority of her husband.

Previously to the Revolution, the law of France differed greatly in the districts of what was called Pays de Droit écrit, and Pays de Droit coustumier. In the former division the Roman code formed the Common Law; in the latter, customs derived from the Franks and Celts prevailed. Accordingly the conflicting rules founded on Roman and German customs were in operation, as to marriage property, and it became a serious question, when the framing of a civil code for the whole nation. was under deliberation, which of these rules to adopt. A most interesting discussion on the subject will be found in the "Discussions du Code Civil," tom. ii., containing the debates in the Council of State over which Napoleon presided; and the conclusion arrived at was, that parties should be at liberty to marry either under the Roman or the German régime, but if

no agreement took place on the subject before marriage, then the marriage was to be deemed to have proceeded on the principle of community of goods.

The following interesting information has been obtained by a member of your Committee as to the mode in which this law operates. The law being quite free to parties to choose which régime they will, Baron Charles Dupin states that "ninety-nine per cent. of all marriages are made en communauté-all those of the industrial classes without exception, and also nearly all of the middle classes. The dotal is chiefly resorted to when the parents or guardians of the wife have a distrust of the prudence of the husband." Count de Circourt also says, "The dotal régime is found very efficient for the protection of the wife's property against a spendthrift or inconsiderate husband, but impedes the freedom of operation to such a point, that among the tradesmen of all ranks and denominations the régime dotal is either impossible or ruinous. Nor can it agree with the habits, and still less with the interests, of the middle class. The effects upon the good harmony of married persons are not decidedly bad, but on the whole it is disliked among us, and many gentlemen do positively object to its being made a part of their matrimonial contract."

The United States of America, which for the most part adopted the Common Law of England, some with, some without, the correctives of Courts of Equity, have, dur

Law of America. ing a long course of years, gradually modified

the harshness of the law which denies property to married women. And in the great States of New York and Pennsylvania, as well as in New England, in Texas, California, and the newly settled States, a married woman is allowed, with more or less modification, the same rights over property as if she were single. In the States where the civil law prevailed, the provisions of the Roman code had already secured independence to married women. We have obtained on this subject, from the Rev. F. Channing, of New England, such an interesting synopsis of the law of the different States, with extracts from their different statute-books, that we have inserted it in the Appendix.

VOL. I. NO. II.

3 F

Law of Scotland.

By the Scotch law the principle of communio bonorum prevails. Under that law a widow takes half the moveable property on her husband's death if there are no children, and one-third if there are. If she predecease her husband, until last year her heirs or legatees were entitled to one-half, or one-third, as the case might be; but by a law introduced by Mr. Dunlop, 18 and 19 Vict. c. 23, this provision was repealed in favour of husbands. The widow also takes the terce, or life-rent of one-third of all the lands or heritable property of the husband.

The husband, however, by the Scotch law, is entitled to the administration of the wife's property, and this principle was formerly carried so far, as, in fact, to deny her the enjoyment of any separate property, unless it was, for her benefit, vested in trustees. But now, according to Fraser, vol. i. 406:-"This refined subtilty, which has for its basis the assumption that a wife is absolutely incapable of holding any right to property," is completely exploded-and if the jus mariti be renounced by the husband, or the wife's property is declared to be free from it, the declaration or renunciation will be as valid as if it were a contract made between two strangers. And by the present law, a Scotch wife may possess property of all kinds, even furniture, independent of her husband, and such property, though living with him, is not liable to seizure by creditors for her husband's debts.

German Law on Subject.

The following extract from Thibaut (System des Pandekten Rechts, vol. i. 257) shows what the law on the subject is in modern Germany: "By custom and Statute Law in Germany, marriage very frequently creates a community of goods between husband and wife, either of the whole property, or by special agreement, sometimes as to the property during marriage, sometimes only as to what is acquired by the joint efforts of the married couple. . . By the Common Law (Roman) the general principle is, that husband and wife acquire a separate property in their own earnings (excepting the domestic services of the wife,) and that in joint labours they acquire pro ratâ.”

It will be thus seen that the codes of all nations in a pro

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