age, apart from its blighting consequences to survivers, death may be considered a fit basis of a system of insurance.

It remains to be seen, why all the other mischances of life, equally calling for this beneficent system of recompenses, equally capable of its application, should not also be made subjects of mutual insurance.

Art. IV.-LAW OF DEBTOR AND CREDITOR IN LOUISIANA.

NUMBER IV."

In a previous article, reference has been made to the principles of the civil law, governing the relation of husband and wife.

So widely different are these principles from those of the common law, and of such great importance is some knowledge of them to a mercantile community, in so far as they affect the commercial relation of debtor and creditor, and so little general information exists upon the subject out of the State of Louisiana, that no apology is deemed requisite for giving to its consideration a space not usually allotted in this Journal to any other than purely commercial topics.

Before proceeding to consider the civil law provisions controlling the rights and duties of husband and wife, upon the subject matter of property, it may not be uninteresting to glance at the articles of that code defining the relation itself, the character of the contract of marriage, and the causes for which it may be dissolved in the life-time of the parties;—and here, it seems a matter of no slight surprise that the civil law, which establishes upon a broader and more liberal basis than any other system the pecuniary rights of married women, and most carefully and jealously watches over and protects such interests, should, in many of its provisions, betray so manifest a disregard to those rights which the sex so much more highly prize, as above riches, and which pertain to the feelings and the affections. What an insult to her dignity and purity of character is that article of the code which declares that the woman shall not be at liberty to contract a second marriage until after the expiration of ten months from the dissolution of the first, while it leaves the man to marry when he pleases!—as if the marriage of the widow at a time when, by any possibility, she could be in that situation so evidently in the mind of the law-makers, could only be prevented by a legal prohibition! Such a provision might have been a wise one, and adapted to the prevailing character of the sex, in the meridian of Rome and Byzantium, after the glory of the ancient republic had departed, and the empire was in its decline; and, even there and then, one would suppose that the legal restraint upon a woman who could think of marrying a second husband, while in a state of pregnancy by her first, would be likely to provoke greater evils than it was designed to prevent; yet, strange as it may seem, this prohibition is retained in the code of Louisiana, copied from the Code Napoleon, which received it from the Roman law. Nay, in the Louisiana code, it is dignified with an entire

*For No. I. of the series of articles relating to the Law of Debtor and Creditor in Louisiana, see Merchants' Magazine, for July, 1846, (No. L., Vol. XV., page 70-75.) For No. II., see same for November, 1846, (Vol. XV., No. V., page 471-475;) and for No. III., see Magazine for January, 1847, (Vol. XVI., No. I., page 53-57.)

chapter, composed of one article-no other provision being allowed, by its proximity, to detract from its emphatic character.*

But, in another respect, the civil code of Louisiana has made a long stride of improvement upon the Code Napoleon and the Imperial rescripts. By the latter, a dissolution of the marriage bonds for the cause of adultery can only be claimed by the injured husband; by the former, "the wife may also claim a separation in case of adultery on the part of her husband, when he has kept his concubine in their common dwelling." The language of this article is quoted that the reader may fully appreciate the extent of the moral stride of advancement in the legislation of one of our sister States! It would be doing great injustice to the moral enlightenment of a recent legislature of that State, if the writer failed to notice another prodigious stride in the march of improvement, by an amendment of this article, thus-" by adding after the word 'dwelling' the words, or openly and publicly anywhere!'"

By the civil code of Louisiana, as also by the Napoleon code, if the wife who sues for a separation from her husband has left the common domicil, or declared her intention to do so, the judge before whom her suit is brought shall "assign a house where she shall be obliged to dwell, until the determination of the suit ;" and further, she is held to prove that she has not broken bounds, as often as it may be required of her, (“la femme est tenue de justifier de cette residence, toutes les fois, qui elle en est requise,") under the penalty of a total suspension of all proceedings on her behalf. With such Argus vigilance does the civil law watch over the husband's honor, by preserving the person and chastity of the wife during this short suspension of his absolute control, that she may be returned to him unbesmirched by soil or cautel, should it be decided that she is not entitled to have her demand for separation allowed!

By the civil code, a separation may be claimed by either party on account of ill-treatment, if that be of a nature sufficiently cruel and outrageous to render their living together no longer supportable. It may also be claimed by either party if the other have "publicly defamed," "abandoned," or made "an attempt against the life" of the complaining party. These are all the enumerated causes for which the dissolution of the marriage contract may be obtained under the civil code of Louisiana.

The separation "grounded on abandonment" is that which is the most frequent subject matter of petition to the courts of that State. The course pointed out by the law to secure a separation for this cause, is so clear and simple, involves so little expense and so little publicity, that the legislative branch of the government is relieved from a burden which is not a little troublesome to some of our State legislatures. It may not be uninteresting to take a passing glance at this very convenient mode of untying this, so often, very inconvenient knot. Those who have "got in" to our Court of Chancery for that purpose, and are despairingly persuaded that they have got into the fire from the frying pan, will lament their deprivation of

* Chapter VI., Art. 134, Louisiana Code-228 Code Napoleon. † Art. 137, Louisiana Code.

Art. 145, Louisiana Code-Code Napoleon, Art. 268.

We perceive, by a very ably written article in the "Commercial Review," published in New Orleans, upon the subject of "Divorce," that, by a provision in the new Constitution of the State of Louisiana, no divorce can be granted by the legislature of that State.-[ED.]

such reasonable redress; and those who are trembling on the brink of the cavern, almost ready to leap into its capacious maw, may be led to the conclusion that a short sojourn in New Orleans would be much plea. santer, and more satisfactory.

Where the parties mutually seek the separation, the thing is accomplished without the slightest difficulty, and as a matter of course. But suppose the case-not a very violent supposition-of one of the parties being unreasonably refractory; and suppose, too,-not a very unnatural supposition -that that party is the woman. She is sent--her health requires itpoor thing! to France, or to the North; or perchance she is not there at all, and never has been there-the climate would never agree with her frail constitution-and her husband goes without her. He would not leave her, could he avoid it; but his business requires it. The petition is filed in court-the petitioner does not swear to it--he does not even sign it-his lawyer does it all. He has told his lawyer that he wishes to be separated from his wife by a good and valid judgment of a court of competent jurisdiction, and that his wife is out of the State-anywhere--in Bordeaux or Mirimachi. The petition declares that she has withdrawn from the common dwelling without lawful cause, and that she has constantly refused to return and live with her disconsolate husband; and then prays that, after due proceedings had, a judgment of separation be decreed in his favor, and that she pay the costs of the suit! And what are the due proceedings? Why, of course, proceedings "to make it appear" to the judge that she-wicked woman!--has refused to return to her husband's home and arms. Now, mark how ingeniously this is "made to appear.' The 143d article of the civil code provides for it thus :-"The abandonment with which the husband or wife is charged must be made to appear by three reiterated summonses--(very much like those made by Charles Kean's horn-blowers before the walls of Angiers)-made to him or her from month to month, directing him or her to return to the place of the matrimonial domicil, and followed by a judgment which has sentenced him or her to comply with such request, together with a notification of such judgment given to him or her from month to month, for three times successively." But how is she to be summoned to comply with this demand, or notified of this judicial sentence?—and, being summoned and being notified, how quickly would she fly to her lord's embraces, and yield herself to the sentence of the cruel judge! All this is provided for as it is foreseen; the latter clause of the article does it beautifully: :-"The sum. mons and notification shall be made to him or her at the place of his or her usual residence, if he or she lives in this State; and if absent, at the place of the residence of the attorney who shall be appointed to him or her by the judge for that purpose, at the suit of the husband or wife praying for separation." Thus, upon filing the petition, in which it is represented that she is out of the State, (the only allegation in it, perhaps, which the petitioner would like to swear to,) Oily Gammon is appointed her attorney, to represent and defend her-the summonses are served upon him--the notifications are given to him. It is his duty to correspond with his fair client; to inform her of the proceedings had against her, and urge her compliance with her liege lord's wishes. He does write, and directs his letters where he is informed she has fled-to Siberia or Canada; and when the three summonses and the three notifications have all been duly served, he answers the petition, and tells the court that his client, so far

from returning to the matrimonial domicil, has even refused to acknowledge the receipt of his very polite and professional epistles. At this, the judge's patience is exhausted. He forthwith decrees a separation of the parties, and condemns her to pay all the costs of the proceedings, not forgetting a fee of one hundred dollars to Oily Gammon, attorney for the defendant, for his trouble in endeavoring to woo her back to the path of duty!! There is still, to be sure, a locus penitentia for the wicked and obstinate woman. This is not a dissolution of the bonds of matrimonyit is only a separation from bed and board; and from the date of this judgment she has two years for repentance, and endeavors to find forgiveness for her offences, and a reconciliation with her injured master. Should she fail in this, (and it is for her husband to decide whether she shall fail or not, for there is no power to compel him to become reconciled, against his will, in that manner which it has been decided to be within the intention of the law,) then, at the expiration of that time, a divorce a vinculo matrimonii is decreed, as a matter of course, upon the mere filing of the petition, setting forth the previous judgment, and that no reconciliation has been had.

How different-how lamentably different is all this from the well-estab. lished policy of the common law, to preserve inviolable the sacred relation of husband and wife !--to impress upon society the solemn and indissoluble character of that contract which lies at the foundation of the well-being of a community; to erect about the conjugal relation barriers which may not be thrown down, nor easily overleaped; and, by the imposition of a salutary restraint, to teach and enforce the performance of the social duties. Compare the policy of the civil law, as evinced by the articles of the code, with that announced by Lord Stowell, when presiding in the Ecclesiastical Court of England. "The policy of our law," (says that profound master of this branch of jurisprudence,)" is not that limited humanity which looks only at individuals: it is that real and extended humanity which regards the general interests of mankind. If it were once understood that, upon mutual disgust, married persons might be legally separated, many persons who now pass through the world with mutual comfort, with attention to their common offspring, and to the moral order of civil society, might have been, at this moment, living in a state of mental unkindness-of estrangement from their children, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the general and greater good. When people understand that they must live together, they learn to soften, by mutual accommodation, that yoke which they know they cannot break. They become good husbands and wives, from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties it imposes."*

It is gratifying to turn from this branch of the subject to that, the consideration of which was the particular design of this article-viz: the provi sions of the civil law upon the rights and duties of husband and wife, on the subject matter of property.

It cannot be expected that a cursory review of this nature should enter at any great length into the details of a system which constitutes so large a portion of the civil code. Some of the general principles of that system

* Evans vs. Evans, 1 Consistory Rep., 33.

only can be noticed, by which the reader will perceive the fundamental differences between the civil and common law of this domestic relation.

The civil code regulates the conjugal association, in relation to property, in the absence of particular agreements, which the parties are at liberty to stipulate as they please, provided the stipulations be not contrary to good morals; be not in contravention of the legal order of descents in what concerns the inheritance of their children or posterity, or of their children as between themselves; and provided that such stipulations be made by an act before a notary and two witnesses.

The property of married persons, by the civil code, is divided into separate property and common property.

Separate property is that which either party brings in marriage, or during the marriage acquires by inheritance or donation to him or her particularly.

Common property is that which is acquired by the parties during marriage, in any other manner than by inheritance or donation.

The separate property of the wife is divided into dotal and extra-dotal. Dotal property is the dowry, or marriage portion, and consists of the effects which the wife brings the husband, to assist him in bearing the expenses of the marriage establishment. The extra-dotal property consists of the paraphernalia of the wife, which form no part of the dowry;--this is called the paraphernal property.

And first, as to the common property. Every marriage contracted in Louisiana superinduces a partnership or "community of acquets and gains" between the parties, if there be no stipulation to the contrary; and the same partnership in property exists by law between persons going there to reside who were married elsewhere, with respect to property acquired during their residence. Of this partnership, the husband is the head and administrator; but his disposition of the moveables or immoveables of the community is restrained within certain legal limitations. As in any other partnership, the debts contracted during marriage enter into the community acquets, and must be acquitted out of the common fund; while the debts of both husband and wife, anterior to the marriage, must be acquitted out of their own personal and individual effects.

Upon the dissolution of the marriage, by the death of either party, all the effects possessed by the husband and wife, reciprocally, are presumed to be community property, unless satisfactorily proved to be separate property; and upon such dissolution, the partnership property is divided into two equal portions, (the community debts being first paid,) between the surviver and the heirs of the deceased. If the wife be the surviver, she has the right of renouncing the community, if, during its existence, she took no active part in its administration. This renunciation must be made within a time limited, and with certain formalities. If not made, or if not made in good faith, or legally, judgment may be rendered against her as a partner; which can be satisfied from her individual, separate property, if the community property be insufficient.

As has been before stated, the partnership in property, of the husband and wife, exists in the absence of any agreement of the parties. It may be modified or limited by contract entered into with the solemnities required by law. In case it is stipulated that the partnership shall not exist, the wife preserves the exclusive and absolute control and administration of her moveable and immoveable property, and the free enjoyment of her