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The industrious business man, with his frugal wife, is not in any way affected by it; but if an idle, dissipated, visionary, or impractical man, brings his family to penury and want, then I say it is our duty to put this provision in the Constitution for the protection of that family who are helpless, and who have no other means of subsistence. I see a disposition on the part of the House to oppose this provision. Representing, as I do, a constituency entirely of native Californians, be. cause the few Americans in my district are identified with them and may classed as native Californians, I am compelled, not against my wishes, for my wishes coincide with theirs, to advocate it on this floor. I believe that much opposition to the protection of the separate property of the wife arises from a degree of false pride on the part of man; placing it in the position of a distinct and separate in terest on the part of the wife, and regarding any thing that can bear such a con struction as a reproach upon himself. 1. look upon the marriage contract as a civil contract. I consider that the wife's interest is the husband's interest; and whatever can afford protection, and security to her, must necessarily be to his adtage as well as hers. I trust, in consideration of the peculiar' necessity which must exist here for such a provision, owing to the inducements for wild and hazardous speculations, and the probability of frequent and sudden losses which' would otherwise involve families in ruin ; in consideration, also, of the native population of California, who have always lived under this system, that it will become a part of our fundamental law.
Mr. HALLECK. I am not weddedi either to the common law or the civil law, nor as yet, to a woman; but having some hopes that some time or other I may be wedded, and wishing to avoid the fate of my friend from San Francisco, (Mr. Lip. pitt) I shall advocate this section in the Constitution, and I would call upon all the bachelors in this Convention to vote for it. I do not think we can offer å greater inducement for women of fortune to come to California. It is the very best provision to get us wives that we can introduce into the Constitution.
Mr. BOTTs. Feeling as unwell as I do to.night, I had hoped that the gentle. man from San Francisco (Mr. Lippitt) who I understood would open this debate, would so far have been the exponent of my own sentiments as to have enabled me to be silent on this subject. But he has not taken the ground that I would have taken, and which I hope some other gentleman will advocate. I trust it is by no such light and trival arguments as those which have just been advanced to the House, that this important question is to be settled. Before I go further, Mr. Chairman, I would deprecate the distinction that has been drawn here between one portion of the inhabitants of California and another. I do not, in discussing any question in this body, stop to consider the claims of particular classes. All distinctions should be lost among us; I consider that we are all Californians.
The question then is, what is best-what is most desirable for the great majority of the people of California ? I not only object to this clause, but I object to the amendment. I believe there is but one proper course to pursue, and I shall vote for any amendment that will accomplish that object--to expunge it altogether from the Constitution. I object to it on the general principle so often avowed in this Convention, that it is a legislative enactment; but I would object, also, to see it upon our statute books, because I think it is radically wrong. In my opinion, there is no provision so beautiful in the common law, so admirable and beneficial, as that which regulates this sacred contract between man and wife. Sir, the God of nature made woman frail, lovely, and dependant ; and such the common law pronounces her. Nature did what the common law has done-put her under the protection of man, and it is the object of this clause to withdraw her from that protection, and put her under the protection of the law. I say, sir, the husband will take better care of the wife, provide for her better and protect her better, than the law. : He who would not let the winds of heaven too rudely touch her, is her best protector. When she trusts him with her happiness, she may well trust him with her gold. You lose the substance in the shadow; by this provision you risk
hér happiness forever, whilst you protect her property. Sir, in the marriage con. tract, the woman, in the language of your protestant ceremony, takes her husband for better, for worse ; that is the position in which she voluntarily places herself, and it is not for you to withdraw her from it. I beg you, I entreat you, not to lay the rude hand of legislation upon the beautiful and poetical position in which the common law places this contract. There is not only much of poetry and beauty in it; sir, but there is much of sound sense and reason in it. This proposition, I believe, is calculated to produce dissention and strife in families. The only des. potism on earth: that I would advocate, is the despotism of the husband. There must be a head and there must be a master in every household; and I believe this plan by which you propose to make the wife independent of the husband, is contrary to the laws and provisions of nature-contrary to all the wisdom which we have derived from experience. This doctrine of woman's rights, is the doctrine of those mental hermaphrodites, Abby Folsom, Fanny Wright, and the rest of that tribe. I entreat, sir, that no such clause may be put in this Constitution. It is not desirable to introduce into every household that state of things which must en sue from the enactment of such a clause. It is often the case that the union takes place between a man of little or no property, and a woman of immense landed es. tate. But do you mean to say that, under such circumstances, the husband must remain a dependant upon his wife ? a dependant upon her bounty ? would you, in short, make Prince Albert's of us all ?
Mr. Chairman, I am so very unwell that I find it utterly impossible to give ex. pression to the opinions that I entertain upon this subject. I hope that the suggestions which are here thrown out may serve as a basis for some gentleman who coincides with me in opinion, to make such an elaborate argument upon as I find myself entirely incompetent to offer at this time.
Mr. LIPPITT. I am sorry that am not able myself to make the elaborate argument which my friend (Mr. Botts) desires. I presume the House will recollect that the object of the amendment is to give power to the Legislature to try the experiment which many of us think ought to be tried. I must confess that, for one, I am wedded to the common law. I am wedded to it as a member of this convention, as representing a portion of the people, and as a citizen of California ; and if I were in the Legislature, I should be, as a member of the Legislature, and for this reason: that the common law, and no other law, is the law under which nine.tenths of the people now in California were born and educated; it is the only law, which is known, the only law which her lawyers and judges know, and which we have access to. For this reason it must be the law of the land hereafter, whether it is established this month or next, this year or next. I do not wish to make any distinctions between the native and the American population of Cali. fornia. I will go on that point just as far as my friend from San Louis Obispo, in doing everything, by legislative enactment, to preserve all the rights of the na. tive population, and as far as I would in protecting the rights and interests of my own countrymen; but this Convention cannot cover one-tenth part of the ground which my friend wishes to have covered in order to protect their rights. It will be a matter of very great difficulty to determine what laws shall be passed hereafter in our Legislature in order to protect all the rights of the California popu. lation, without sacrificing the rights of the great American population. It is very certain we have all got to come under one uniform code of laws.
The general rights of property must be considered with reference to the great mass of the popu. dation--the Americans; the smaller party, the Californians, must yield. But the rights of property in reference to man and wife, and a thousand other matters, are totally different at present. The Americans have been living under the common
law; the Californians have been living under the civil. It is useless to disguise the fact, that in course of a few months, the question has to be settled under what code of laws the people are to live. The great mass must live under the common law. It would be unjust to require the immense måss of Americans to yield their own system to that of the minority. There will have to be a great deal of legislation in order to cover all this ground; a very small portion of it can be covered by the insertion of any constitutional provision. In order to carry out the views of my friend from San Luis Obispo, we may as well at once pass another section making the whole civil law the law of the land. It would be impossible in any other way to carry out the system. There is another objection to this en: actment. It is contrary to general and well-established principles that any community, or any branch of a community, can long exist where there is more than one head. This enactment certainly goes to conflict with this great law of nature. It introduces a separation of interests; and where there is a separation of interests, there must of necessity exist a contrariety of interests. I recollect reading of an English case in one of the courts, where the trustees of the wife sued her husband for the use of her carriage in' riding to the theatre one evening. The suit was decided against him. This goes to show, that where you have a separation of property and interests in the marriage contract, the moment there is any unkind feeling, you may, depend upon it, it will be kindled into a flame-it will soon show itself, and destroy the happiness of the couple. An old French philosopher (Chau. part was his name) lays it down, that all mankind are divided into two classes: those who have better appetites than dinners, and those who have better dinners than appetites. I am inclined to think that all wives may be divided into two classes : those who wear the breetches, and those who do not. If that he so-if there are two classes of wives--those who submit, and are under the influence of their husbands, in all matters, and those who set up against his influence, then, sir, with respect to the first class, I say that such a constitutional provision would be perfectly nugatory. You may introduce it into your statute book or your Constitution-you may make it the law of the land-you may give the right and control of separate property to the wife--but every wife who habitually yields to her hus. band, will yield to him in all cases relative to the disposition of that property, and the husband will have the control of it, just as if no such enactment existed. If, on the other hand, the wife is of that class which does not yield, I think it is evidence that the very existence of such a right would only tend to increase and foment every dissension, no matter how trifling the cause may have been in the first place. I have lived some years in countries where the civil law pres yails, and where precisely such a separate right of property is given to the wife. I have seen, therefore, something of the working of the principle. I have lived in Paris, and I was assured by respectable inhabitants there, that it was an as. certained fact, that two-thirds of the married couples in Paris were living sepas rately the husband living separate from the wife. If there is any country in the world which presents the spectacle of domestic disunion more than another, it is France, where this principle is carried most completely into effect. There the husband and wife are partners in business—there you find precisely the point of difference between myself and my friend from San Luis Obispo--the principle of setting the wife up as an equal, in every thing whatever, to the husband-raising her from the condition of head clerk to partner. The very principle, Mr. Chairman, is contrary to nature, and contrary to the real interests of the married state. But there is another consideration, and that is, that there is no necessity, at least not the necessity that is supposed, under the common law, for any such enactment or incorporation of the civil law; because, Mr. Chairman, în every case where the wife has property before her marriage, it is competent for the parties, by an ante. nuptial contract, under our system, to provide for that separate property and sea parate control. It is done in every country where the marriage contract prevails, especially where the property owned by the wife is large ; so that whenever the parties please, they can so make their contract as to secure to the wife all the benefits that can result from the provision which is proposed to be inserted in the Constitution, and where that is not done--that is, where the wife has no con siderable property, or where the parties do not choose to make such contract, it is évidence that they do not désire it, and they are certainly the parties most interested. There is another consideration which has not been adverted to. We must be careful how we undertake to repair a building by taking away one part from it. The wbole building may fall down, if we do not understand the con struction of it--the relative support given to it by the different parts. If we are going to incorporate such an enactment as this upon our established system, we must take care to make such provisions as will not impair the rights of the husa band. Under he marriage contract, as it exists, the husband becomes liable the moment he is married for every cent of his wife's debts, which she may contract. Upon what does the law found this liability ? On this very ground ; that the husband at the time of the marriage, immediately becomes the owner of all his wife's property-all her tangible personal property. He is supposed to come into possession of his wife's property, and hence the common law makes bim liable for her debts. No matter what the amount may be, the law throws the liability upon him. If we introduce any such provision, we must look to the rights of the husband, and introduce another to free him from this liability, after we have taken from him the control of his wife's property. We must also look to the rights of the creditor in this matter---they have some' rights 'too. We must take care how we introduce a constitutional enactment which, for ever and ever, until this Constitution is altered or amended by the people, puls the creditors of the husband completely in the power of the husband himself, if he is a dishonest man. How does the section read? It declares that the Legislature shall pass laws providing for the registration of the wife's separate property. It is' a matter of absolute necessity that that should be done, otherwise the creditors of the husa band are completely at his mercy. As the section stands, there is no obligation imposed upon the Legislature to pass a registration law before this enactment goes into operation. Suppose the Legislature does not pass this registration law, what will be the consequence? If the husband is a dishonest man, gets in debt, and cannot or will not pay his debts, he has only to pretend, when a bill or execu- • tion is sent against his property, that it belongs to his wife that it is her separate property. There is a law.suit to ensue. It is throwing impediments against the collection of debts. There is nothing in the section which declares that it shall not go into operation until the Legislature shall pass a registration law. If the Legislature should pass such a registration law, it would diminish the obstacle ; but we do not know whether the Legislature will pass any such law for the first, second, or tenth session'; and if they do pass it, we cannot now tell what kind of a law it may be. Meantime, creditors are certainly, if not deprived of the power of collecting their debts, put completely at the mercy of every dishonest man who has a wife, and can say that the property belongs to her." But after all, what is the object of the amendment which I propose as a substitute ? Precisely the object which my friend from San Luis Obispo, (Mr. Tefft,) agrees with me in. It says, let us try the experiment--let us see how it works ; let the Legislature pass the enactment, because if it does not work well they can repeal it. If we insert such a provision in this Constitution, it may be found to operate badly, and then we place ourselves in the position of having adopted an objectionable provision, which must remain the law of the land so long as the Constitution adopted by this Convention exists. Mr. DIMMICK. It will be remembered that this section proposed in the Constitution is, and always has been, the law of this country. When we propose, therefore, to put it in the Constitution, we are not stepping upon untried ground. We are only reiterating that which is already the law of the country. For this reason, I am in favor of making it a constitutional provision. It is no experiment in this country. The main reason which the gentleman from San Francisco, (Mr. Lippitt,) has so urgently presented against this provision, is that the common law will soon be the established law of this country. If that is to be so, it will make a great change over the laws as they now exist, and will materially affect
the rights of women, unless we incorporate a portion of it so far as relates to this subject. Women now possess in this country the right which is proposed to be introduced in the Constitution. Blot it out, and introduce the common law, and what do you do? The wife who owns her separate property loses it the moment the common law prevails, and it is to avoid taking a way that right of control over her property that I would wish to see this provision engrafted in the Constitution. Instead of an argument against its introduction, I think the gentleman has ad. vanced a very strong reason in favor of it. He told us it was introducing a principle which could not work prosperously in any community. Has it worked any evil in California ? It may not work well in Paris, but we are now to consider the experience, character, and condition of California, not the nations of Europe, The only country I have ever lived in where the civil law prevails is California, where I have resided for the brief period of three years. I admire many provi. sions of the civil law. I am, however, in favor of the adoption of the common law, but while we adopt that, there are certain provisions of the civil law which 1 prefer, and when we adopt it in the Constitution, it is no more an invasion of the common law than certain local enactments of the State. The time was, sir, when woman was considered an inferior being; but as knowledge has become more generally diffused, as the world has become more enlightened, as the in. Auence of free and liberal principles has extended among the nations of the earth, the rights of woman have become generally recognized. At the time the com mon law was introduced, woman occupied a position far inferior to that which she now occupies. As the world has advanced'in civilization, her social position hasi been the subject of increased consideration, and by general consent of all intelligent men, she is now regarded as entitled to many of the rights in her pe. culiar sphere which were formerly considered as belonging only to man. This part of the common law is one of those portions belonging to the dark ages, which has not yet been expunged by the advance of civilization, Sir, I cannot see any of the evils which the gentleman fancies he sees in introducing into this Constitu. tion, or making it 'a permanent law of the country, a provision for the protection of the wife's property. It has been found to work well here ; it works well now; why should it operate worse if we adopt other portions of the common law? It is true, that under the common law, when a man marries a wife he becomes re. sponsible for the debts of that wife ; but I would not shield her property from her own debts. No man is compelled to pay the debts of his wife when she has pro. perty of her own. I have yet to learn that there is any principle in the common law which releases her property from this liability, or impairs the contract hereto fore existing between her and her creditors. If she had property previous to her marriage, that property is still liable for her debts, and the marriage contract does not release it from that liability. We are told, Mr. Chairman, that woman is a frail being ; that she is formed by nature to obey, and ought to be protected by her husband, who is her natural protector. That is true, sir; but is there any thing in all this to-impair her right of property which she possessed previous to enter. ing into the marriage contract ? I contend not. In justice to her and to her fami. ly, who may become dependent upon her, these rights should not be impaired. Mr. Jones. Following after my able friend from San Jose, (Mr. Dimmick, and being on the same side of the question, I feel some difficulty in giving er. pression to my views. I shall say but few words on the subject, and, if it were not for hints thrown out from time to time, I should certainly, in my présent exhausted state of health, say nothing. But, sir, to this complexion has it come at last:- but yesterday the gentleman from Monterey (Mr. Botts) inquired if there was to be an article introduced to adopt the common law, and but to-day the gen. tleman from San Francisco, (Mr. Lippett,) another member of the bar, arose in his seat and said this was a strange admixture, some horrible principle of the civil law, that gentlemen were going to incorporate in this Constitution. Here is to be the battle-ground, and here will I meet the gentlemen. I have yet to learn