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that at this present sitting the common law is the law of the land that its principles have been adopted, except perhaps by the San Francisco Legislature. That may possibly be ; but that this is an invasion upon any existing law in this country, I deny. With the permission of the gentleman, I will translate the principle : The property of the wife owned or claimed by her before marriage, and acquired afterwards by gift, devise, or descent, shall be her separate property, and laws shall be passed more clearly defining the rights of the wife in relation, as well to her separate property, as that held in common with her husband.
Now, does this section of the Constitution introduce any invasion into the common law of this land. No, sir, it but enforces what is the law of the land, and the principle which I shall sustain here. These nice distinctions of the common law, what are they? What is the principle so much glorified, but that the husband shall be a despot, and the wife shall have no right but such as he chooses to award to her. It bad its origin in a barbarous age, when the wife was considered in the light of a menial, and had no rights. But in this age of civilization, it has been found that the wife has certain rights. State after State has adopted this principle. The barbarous principles of the early ages have been done away with from time to time. For forty, or fifty years the States of the American Union have been trying to modify and simplify, this principle of the common law.. Sir, I want no such system; the inhabitants of this country want no such thing; the Americans of this country want no such thing. They want a code of simple laws which they can understand; no common law, full of exploded principles, with nothing to recommend it but some, dog latin, or the opinions of some lawyer who lived a hundred years ago ; they want something that the people can comprehend. The gentleman forgets that the law. is the will of the people properly expressed, and that the people have a right to understand their own will and derive the advantage of it, without going to a lawyer to have it expounded. It is absurd to require them to apply for legal advice to learn how they are to collect a debt of fifty dollars. Where is this common law that we must all revert to ? Has the gentleman from Monterey got it?, Can he produce it? Did he ever see it? Where are the ten men in the United States that perfectly understand, appreciate, and know this common law? I should like to find them. When that law is brought into this House-when these thousand musty volumes of jurisprudence are brought in here, and we are told this is the law of the mass--I want gentlemen to tell me how to understand it. Iam no opponent of the common law, nor am I an advocate of the civil law. Sir, I am an advocate of all such law as the people can understand. Whether I find it in that book or this, I say, let us give to the people, who have been chained down for hundreds of years, the right and privilege of understanding their own laws. I would make the laws of this Territory, if possible, so plain, simple, and comprehensible, that every man in the Territory could go into a court of justice and defend himself; and he has just as much right to do that as to de. fend himself in a street fight. The member from Monterey (Mr. Botts) intimated that if this Committee of the Whole did not introduce an article proposing the common law, he would do it. When that resolution is introduced, I will meet the gentleman at Phillippi. I put one question to the gentleman from Monterey. Whom does he represent upon this floor in abolishing the law of the land, and substituting a law which the ninety-six votes by whom he was elected, never heard of?
Mr. Botrs. Will the gentleman permit me to interrupt him ? I was called to order here the other night for something that it was supposed I was going to say out of order. He is reprehending me for something he supposes I am going to do. Would it not be well to reserve his strictures until the article is introduced ?
Mr. JONES. I understood the gentleman here and elsewhere to express his en. tire support of such an article. The question which I asked was a sort of an. swer, in a plain way, to what had been adduced here as argument. If gentlemen have a right to get up here and advocate a principle, and I have no right to get
up here and oppose it, I might as well take my seat. But I will confine myself to the question before the House. What, under the laws of this country and under the laws of all civilized nations, is the marriage contract ? Does it merge in the husband every right of woman? Has she no right whatever ? Does she become annihilated because she enters into this contract, or does she preserve certaiq rights? Are we to adopt laws which make man a despót of woman, and give woman no right because she has no representation ? Sir, I consider the marriage contract as a civil partnership--a civil contract. It is not that sacrament which the gentleman would make it, and as to all this talk about the poesy of the mar. riage contract, I did not come here to advocate poesy. Gentlemen preach poesy
let them convince me by any principle of reason that there should be this merging, this annihilation of the woman, let them convince me that the wife should have no rights, and that the law should give her no protection, it will have a much stronger influence upon my feelings than these rhapsodies about poésy. Şir, the marriage contract is 'a civil contract--not a sacrament. It is recognized and prescribed by law, and every single one of its conditions is a legal matter ; it is not a part of the conventional law; it is part of the municipal law of the country. The law must prescribe the rights of the contracting parties. You cannot say that one party consents to have all its rights annihilated, all its property lost, by this contract of marriage.
Sir, the member from San Francisco (Mr. Lippitt) says that there are two class ses of wives those who wear the breeches, and those who do not. I admit the distinction ; and where the woman wears the breeches, and intends to wear them, she will take advantage of this common law right and secure her property; but, sir, it is to those who do not wear the breeches it is to those gentle and confid. ing creatures' who do not think of contracts--that the protection of the law is de. signed to be given. A man marries a woman of this kind, and owes debt after debt. She knows nothing of it; she does not stop to inquire whether he owes debts or not. No, sir, she enters into this contract blindly confident. There is a true poesy in the confidence with which the woman yields herself to man, be. lieving him to be all that is upright and honorable. Now, would it not be a very poetical idea for one of these gentle and confiding creatures to ask the man to whom she had given her heart and pledged her hand, whether he owed his tailor or shoe. maker ? how many small bills he had outstanding ? whether he was in the habit of being dunned or not? Is she to say to him : let us go before a notary, sir, you to whom I have given my heart and hand ; let us draw up a certain contract ; I want certain lands and tenements secured by marriage contract. Is not that a regu. lar knock-down to poesy? Let the law secure to this class of women their rights, for they have no power themselves to secure them. I would never, under the common law, unite myself to a woman of wealth who would want me to draw up a marriage contract before the notary public. This much for the rights of women.
Sir, I suppose from the course that has been pursued here, and from the manifestations which I have seen of the sense of this House, that the common law is. to be visited upon this country. Very well, sir ; I can stand it; I have practised under it and can comprehend it; but do not, I entreat you, make women the subject of its despotic provisions.
Mr. NORTON. I am in favor of the section as reported by the Committee, and being so, am of course, opposed to the substitute of my colleague, (Mr. Lippitt.) I regret that, during this discussion, gentlemen should have made this a question between the common and the civil law. It is taken for granted that if we adopt this section, or that of my colleague, we are going to adopt the civil or the com mon law.
I insist that that question has nothing to do with it; and that she whole course of argument, whether we are to 'adopt common or civil law is totally irrele. vant to the question under consideration. The question before the Committee is, whether or not we shall adopt a certain section as introduced here, providing for the security of property, both real and personal, of the wife. The gentleman from
San Jose (Mr. Dimmick) tells you that all of this is secured by the civil law, and that the civil law is the existing law of the land. If that law is adopted as the law of the land, there will be no necessity whatever for this provision, if not, and if the common law should be established hereafter, as I hope it will be, it is neces sary, if we attempt at all to provide for the security of the wife, that we should adopt some such article as this. I believe, sir, that we should do this as a matter of necessity. Every one here can relate to you instance after instance where the property of the wife has been sacrificed through the idle habits, carelessness or dissipation of the husband; and is it not necessary, forming a new State as we are about to do, that we should protect the wife against such contingeneies 'as this? We are peculiarily situated here; in'a country where wealth is acknowledged to be abundant, and where lucrative speculations are made every day; but no man can tell how long he can stand upon the pinnacle of wealth that he has reared for hima self. No man can tell how soon he may tumble down from that lofty 'height to which he has risen within the last two years ; and if, in the meantime, he takes to himself a partner, it is necessary that she should be protected against the reckless. ness of speculation. Gentlemen say that this is an invasion upon a great princi. pleman invasion upon the common law-an invasion against a time honored cus. tom. I care not, sir, if it is all this , if members of this Convention are satisfied that the principled embodied in the section is a good and valid principle, it matters not to me how long the custom has existed, or how great may be the invasion, I will go heart and hand for the adoption of the principle. We should be satisfied that the principle embodied here is a correct one; and the experience of every man who has lived as long as I have, (though there are many who have lived a great deal longer,) shows full well the necessity of this provision. We are sent here to form a Constitution for what I trust will soon be a great and glorious and prosperous State ; and I think it is not only incumbent upon us to make such pros visions in our Constitution as will protect the stronger sex, but such as will also protect frail and lovely woman. I think, sir, that in doing this, we are doing no more than what is due to her;' but I trust we shall hear no more distinctions drawn in this discussion between the common and the civil law.
The gentleman from San Joaquin (Mr. Jones) would make you believe that the common law is inexplicable and incomprehensible that it is so musty from its Jong existence, that' no man can tell what it is. I believe, sir, that there are gen. tlemen on this floor who are somewhat conversant with the common law; who have explored the mustý volumes of the common law; and dug out of them great and glorious principles ; principles upon which the Constitution of the United States is founded ; principles which are now. the fundamental law of twenty-nine of the thirty States of this Union. For gentlemen to say here that we have no right to adopt the common law that it is unintelligible, that it is written in dog latin or some other dead language, and that no man knows what it is _I trust, sir, that under the writings of Blackstone, Kent, and of all common law writers, through all the reports of the various States of the Union-the large field of learning-that we have such a common law, that he who runs may read. It is entirely useless here to go against the common law. Nine-tenths of all the population of this country are its warmest advocates. They have been born and brought up under its glorious protection; they have learned it from their boyhood; they understand its provisions, and have been protected under its influence. And, Mr. Chairman, these are not the men to throw away the early predelictions of their youth, to dis. card what they know to be good, and embrace something that they know not of; and are these men to be told that, because the civil law may have heretofore ex isted in this country, that it shall forever exist ? No, sir ; according to a principle that we have adopted in our Bill of Rights, the people are sovereign, and they have a right to alter their organic law-alter their whole system of jurisprudence do away with it, and establish another in its stead. And whenever it shall be the wish of a majority of the people of this country in a legitimate way to provide for the establishnient of one system or the other, no man can dispute but they have that right. But, sir, the whole discussion between the common and the civil law is inapplicable to the question under consideration. The section now before the House is one providing for the rights of the wife against the misconduct or misa fortune of the husband. The man when he takes to himself a wife, knowing this to be the law of the land, cannot say, with any degree of fairness, that her separate property should not be so taken care of that no matter whatever
misfortune should happen to him, her property shall not go to the common wreck. He has no right to object to it. No matter what may become of the husband, the wife should be pro. tected; her property should be sacred to her; and whatever she may be wling to do for her husband thereafter, she can do. But, under this provision, if; upon the celebration of the marriage, the wite desires to convey all her property to her husband, she can make such disposition of it. Gentlemen contend here that it will cause a disunion in families; that it will be a source of, dissention between the husband and the wife during the whole time that they live together.'. I do not be. lieve any such thing. If this is provided for by the law of the land, the husband when he marries a wife, knows full well the rights that belong to her. “ If what. ever property she is possessed of should remain vested in her, and not subject to his control, he knows beforehand that suck is the case, and he has no cause to complain. But if, under the common law, à marriage should be celebrated, and it should be the desire of the parents to enter into an ante nuptial contract, these are the occasions which create difficulties between the husband and wife ; these cases are not expressly provided for by the law, but in an ante-nuptial contract, and hence they give rise to all these difficulties. I believe that it is essentially ne. cessary that the wife's property should be so protected. I expect myself, sir, at some future time, to take to myself a wife. She may be possessed of some little property, and I am not sure but that if it is not secured to her, I may squander its
Mr. BOTTs. I have lately given to this House sufficient proof that any thing I skall say to-night, will probably be very crude; büt, sir, my pulse would have to cease altogether before I could remain silent under such doctrines and propositions as have been broached here. I find, sir, that the burden of this defence is resting altogether upon the shoulders of myself and the gentleman from San Francisco, (Mr. Lippitt.) I anticipated as much. That you may know how it is, Mr. Chair. man, that the common law views this contract, I will read you the words of one of the oldest commentators upon it :-“By marriage:” says Blackstone, “the husband and wife are one person in law." (See Blackstone in'full on this subject.) This is but another mode of repeating the declaration of the Holy Book, that they are flesh of 'one flesh, and bone of bone. That is the principle of the common law, and it is the principle of the bible." 1 It'is a principle, 'Mr. Chairman, not only of poetry, but of wisdom, of truth, and of justice. Sir, it is supposed by the common law that the woman says to the man in the beautiful language of Ruth: "Whither thou goest I will go; and where thou lodgest, I will lodge; thy people shall be my people, and thy God my God." This, sir, is the character of that holy ceremony which gentlemen have considered as a mere money copartnership. Sir, it is this view of that contract that has produced that peculiar and lovely English word home, which it has been said no other people on the face of the earth know. It arises from the very peculiar light in which the English law looks upon this social relation. Bear that in mind, you who love your homes. I tell you, Mr. Chairman, that if you introduce this clause, you must take care to carry along with it a speedy and easy and effectual way of procuring divorces, for they will come as sure as you live, as a necessary consequence. That very moment that you set up two heads in one family, you sow dissentions which lead to applications for divorces, and your courts and Senate chambers will be filled with them. . There was one statement of my friend from San Francisco, (Mr. Lippitt,) that under the common-law, anteanuptial contracts were frequent. So far as my expe. rience goes, they are any thing but frequent. The man who lacks the spirit of a
man so far as to enter into such a contract, is a rara avis. I have known such cases; it was the sort of cases where a man who had been unfortunate in life or reduced in circumstances, was about to make a union with a lady of 'wealth. It was for the purpose of protecting the property from his former creditors, that this ante-nuptial contract was entered into. But so far as my experience goes, it is a very unfrequent'thing to find an individual who will, of his own consent, agree to put himself in this humble position. The love and affection of which the gentleman talks can never, I believe, accompany this arra.gement. If there is one thing more than another upon which this high'affection hangs, it is the dependency of the wife ; it is that she is frail and weak and tender, that she calls for all the sympathies of man; and she has them. :) Sir, if she had a masculine arm and a strong beard, who would love her? She had just as well have them as a strong purse ; she is rendered just as independent by the one as the other, and as little loveable.
"It has been my fortune this night, for the first time in my life, to hear the com. mon law reviled; yes, sir, that which has been the admiration of all ages, and of the able and wise and learned of all climes, has been in this House, this night, spoken of with contempt and derision. Sir, I would as soon think of slandering the mother to whom I owe my life, as I would the common law ito which I owe my liberty. Do you remember, Mr. Chairman, that it is to the common law that you owe the writ of habeas corpus, to which you have already paid the tribute of respect?
Mr. Jones. The writ of habeas corpus is contained in the first Justinian.
Mr. Borts. It has been said by some of the greatest civil lawyers in the world that the 's
superior freedom of the English was attributable to the practical opera. tion of the common law of England. This is the reason why, of all who live under monarchies, they are the freest people on earth. It is our boast to have derived our descent from them; it is our boast to have borrowed this system from them, and made it the basis of our free institutions. And yet, it is this that is made the subject of common reviling and common sneering. Sir, I believe the greatest republican that ever lived, considering the lights under which he lived, was the greatest common law writer of the world, Sir Edward Coke. The gen.. tleman tells you that there are not ten men that understand the principles of the common law; and if he had not himself asserted afterwards that he understood them, I should not have supposed from the way he spoke that he was one of the ten. He tells you that the civil law is so compact and so brief-this is exactly my'objection to it, it is so brief that the people cannot find it. The dictates of Draco were said to be written in blood ;. but that was not the only difficulty; they were hung so high that nobody could read them. The worst law on the face of the earth is the law that resides in the breast of the judge. The great beauty of the common law is that it is so expanded, so full and complete, that it fits all cases, and leaves nothing in the breast of the judge. If the gentleman had un. derstood the common law a little better he would have known that, while he was reviling, he was paying it the greatest compliment. But, Mr. Chairman, to leave this subject, which is extraneous to the matter under debate, and has been lugged in by the gentlemen across the way without reason, without rhyme, without poe. try, I come back to the subject before the House. There are only one or two considerations that I desire to present. I want to know to whose benefit is this provision to enure? What is the provision ? That a married woman shall enjoy the use and control of her own property without any regard to the acts and doings of her husband; that is to say, that the husband and wife together may enjoy my property and yours, and become possessed of thousands and thousands, leaving us beggars; and then, sir, under this system, while they are indebted to us to gether for that which they here jointly used and occupied, under the pretence of this clause, they may leave us pennyless while they revel in luxury. I ask you, sir, what honest woman could avail herself of this clause ?: I ask you what honest