nience, that the personal capacities resulting from the status should continue to be those which are attached to it by the law of the country where the parties have a permanent residence, than that they should be subject to be varied, when the parties had casually, and for a temporary purpose, visited a country where a different law prevailed.

There is little inconvenience in requiring that a person who deals with a female, who, from her sex, may be a married person, and subject to certain disabilities, should enquire, whether she be married, and what is the degree of disability to which her coverture subjects her. If he does not by enquiry satisfy himself that no such disability exists, as will prevent her from contracting with him, it will be the effect of his own neglect, if his contract should be rescinded.

If it were a rule, that the capacity of the wife was to be decided by the law of the country in which she contracted, it must prevail, whether the husband accompanied his wife, or whether he was still remaining in his own domicile, and had given no sanction to her resort to another country. The consequences which would then result from it, would be repugnant to the respective rights of the parties. To permit her, during her absence from him to enjoy a more ample capacity than is conferred by the law of his domicile, is to give her a status distinct from that of her husband, a capacity different from that which she possesses under that law, and to abridge the authority of the husband.

Even if the capacity of the wife were more restricted in loco contractus, there would still be a great objection to the relaxation of the rule.

The wife can have no other domicile than that of her husband, and whilst he retains it, her incapacities,

as well as his authority, are subject to the law of that domicile. Her capacity could not be restricted, without enlarging his authority, and thus his status, and the authority incident to it, would be affected by a law to which he is not subject.

CHAPTER VII.

EFFECT OF MARRIAGE ON THE PROPERTY OF THE

HUSBAND AND WIFE.

Rights and powers of the husband and wife over the property of each other, as incident to their marriage.-Under the civil law.-The husband's power, and interest, extended only to a part of the wife's property, Dos, Bona dotalia, Paraphernalia, Receptitia.-A part only of the husband's property subject to the marriage, Donatio propter nuptias, or antidos, Bona antidotalia, and Bona non antidotalia.—Restitution of Bona dotalia, and Bona antidotalia on the dissolution of the marriage.—Sole and absolute power retained by the wife over her Bona Paraphernalia, et Receptitia, and by the husband over Bona non antidotalia.—Pacta dotalia.—Donationes inter virum et uxorem.

THE legal effects of the marriage on the rights and powers of the husband and wife, in relation to their own property, and that of each other, are now to be considered.

The subjects which it suggests for inquiry are, the rights which the law gives the husband in, and the powers which it permits him to exercise over the real and personal property of his wife, the rights which it gives the wife in, and the powers which it permits her to exercise over the real and personal property of her husband, the powers which it permits each to exercise over the property which belonged to either party before, or which devolved on that party during the coverture, and the extent to which the property of the one is liable for the debts or engagements of the other.

SECTION I.

RIGHTS AND POWERS OF THE HUSBAND AND WIFE OVER THE PROPERTY OF EACH OTHER, AS INCIDENT TO THE STATUS OF MARRIAGE UNDER THE CIVIL LAW.

THERE is a marked distinction between the civil law and other systems of jurisprudence in the civil rights and capacities of the husband and wife. It does not recognize in the husband and wife that union of persons, by which the rights of the wife were incorporated and consolidated, during the coverture, with those of the husband. It does not, therefore, subject her to those civil disabilities which must have resulted from that union. The husband and wife are regarded as distinct persons, with separate rights, and capable of holding distinct and separate estates. (a)

The wife was alone responsible for, and might be sued, and was competent to sue on her own contracts and engagements, and the husband could not subject her or her property to any liability for his debts or engagements.

The Communio Bonorum, which is to be found in so many systems of jurisprudence, might have been part of the Roman law at an earlier period of its history, but it had, long before the compilation of the Digest, fallen into disuse. The parties might, by their nuptial agreement, adopt it, but it had then ceased to be a provision of the law. (b)

The peculiarities of the civil law in these respects, be referred to the disuse into which the formal rites

may

Columell. lib. 12. Sandes,
Advers. Jur. Tr. 1, n. 10.
A. Math. Parom. Belg.

(a) Pothier, ad Pand. lib. 1, tit. 6. De his qui sui. (b) Dion. Halicarn. Antiq. Rom. lib. 2, c. 26. Decis. Fris. lib. 2, tit. 5, def. 1. Lamb. Goris. A. Wesel, de Conn. Bon. Soc. Tr. 1, n. 2, 3, 4. par. 2, 1, et seq. Voet, lib. 23, tit. 2, de Ritu Nupt. n. 65.

of marriage, per confarreationem et coemptionem, had fallen. Marriages celebrated according to those rites, gave to the husband and wife a community of interest in the property of each other.

By the marriage per coemptionem the husband was considered to have purchased his wife. (a) She ceased to be under her parental power, and became subject to the power of her husband. All her property belonged to him, and she succeeded to it on his death.

Long before the reign of Justinian, marriages per usum, that is, by cohabitation as man and wife, had superseded the more formal marriages. The marriage per usum did not alter the status of the female, nor subject her to the marital power, but she still remained under that of her father.

The marked distinction between these marriages may be inferred from the different appellations bestowed on the female whose marriage was per usum. "Genus est uxor, ejus duæ formæ; una matrumfamilias, earum quæ in manum conveniunt; altera earum quæ tantummodò uxores habentur." (b) The latter species of marriage did not affect the whole of the property of the husband or wife, but, as incident to their status, they acquired an interest in certain parts of it only.

The wife brought her dos, the husband his donatio propter nuptias, or antidos. In all other property belonging to them, they each retained the rights of owners, uncontrolled by their relation of husband and wife.

Thus, with respect to the wife's property, there were the bona dotalia, or the property which was the subject of the dos, and the bona extra dotem, or the property not subject to it. The terms receptitia, and paraphernalia, were applied to the latter.

As to the property of the husband, the terms bona

(a) Tacit. Annal. lib. 4, c. 16. Heinecc. tom. 4, lib. 1, tit. 10, de Nuptiis. (b) Cicero Topics.