5 Barb. 474 | N.Y. Sup. Ct. | 1849
The second section of the act of April 7th, 1848, under which the plaintiff claims the possession of the property in this case and that the defendant be restrained from interfering with the same, &c. is as follows: “ The real and personal property, and the rents, issues and profits thereof, of.any female now married, shall not be subject to the disposal of her husband* but shall be her sole and separate property, as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted.” (Laws of 1848, p. 307.) It is a general rule that courts incline against such a construction of a statute as would give it a retrospective action, so as to take away a vested right. (7 John. Rep. 477.) But when the intention of the legislature is apparent, it is the duty of the courts to see that the Statute has its full effect, and is not eluded by construction.- (15 Id. 358.) I do not for a moment doubt that it was the intention of the legislature, by this statute, to give to the wife control over her real estate, and to sever the husband’s rights to possess it. This, it seems to me, is most manifest from the plain reading of the statute itself. The husband, by the marriage, does not become absolute proprietor of the wife’s inheritance, but, as governor of the family, is so far master of it as to receive the profits of it during her life, but has no power to make an absolute sale of it without her consent. (2 Bacon's Abr. Bouv. ed. tit. Baron & Feme, C. p. 15.) This is an estate growing out of the marital relations, and is wholly dependant upon them. In the language of the common law, the husband becomes a tenant by the curtesy; the title in fee remaining in the wife. This is one of the legal effects which the common law attaches to the marriage. The wife’s legal existence and authority is in á degree lost or suspended, and the husband succeeds to the possession of her lands, and takes the rents and profits jure uxoris, and if the wife dies before the husband, without having issue of the marriage born alive, her heirs succeed to the estate. If, however, there' has been a child of the marriage born alive, the husband takes the estate absolutely for life as tenant by the curtesy. (2 Kent's Com. 3d ed. 130, 131,)
It cannot be denied that, while the marriage relation is said to be a civil contract between the parties, it is not a contract in the full common law sense of the term. It is from the Romans, from whom we have derived the civil law, that the idea has come that marriage was a civil contract. It was however with them a contract without much of an obligation; as the continuance of the relation depended almost wholly upon the caprice of one or the other of the parties. (2 Kent’s Com. 85, 2d ed.
The next question which I propose to consider in this case is, does the statute under consideration violate the first section of article one of the constitution of this state, which is as follows : “No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.” The defendant in this suit, by virtue of the marriage contract with the plaintiff, became seised of a freehold estate in this farm. He not only succeeded to rights of property, but he became actually seised of the freehold jure uxoris, and entitled to take the rents and profits during their joint lives in any event; and as there were children born alive of the marriage, he took an absolute freehold estate for life as tenant by the curtesy. (2 Kent's Com. 130,1, 2d ed. Adair v. Scott, 3 Hill, 182.) This section one of article one of the present constitution is but a copy of section one of article seven of the former constitution of the state, and has received judicial construction. The question arose in the case of Taylor v. Porter & Ford, (4 Hill, 140,) as to the validity of a general statute of the state authorizing private roads to be laid out over the lands of others, for the use of the applicant, his heirs and assigns. And the act of the legislature was adjudged to be unconstitutional, as coming in conflict with this section of the constitution. We must therefore regard this section of the constitution as having received judicial construction. “ No member of this stale shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” The court, in the case of Tay
But again, it seems to me that this act of the legislature must be adjudged void as controverting the sixth section of article one of the constitution of this state, which declares that “ No person shall be subject to be twice put in jeopardy for the same offence; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. Nor shall private property be taken for public use, without just compensation.” (Art. 1, sec. 6, Const.) This is an exact copy of a part of the 7th section of article 7 of the former constitution of this state, and the expression “ nor be deprived of life, liberty or property, without due process of law,” received judicial construction in the case of Taylor v. Porter and Ford, supra ; and the court, in com-
But again ; I am not prepared to admit that the legislature of a state possesses any such power as would authorize them to take the property of one person and give it to another, against the consent of the owner, were there no such prohibitions contained in the constitution. It has been said that the British parliament is omnipotent; but the great commentator upon the laws of England seems to think that when they speak of the omnipotence of parliament they use a figure of speech rather too bold. (1 Black. Com. 161.) But the omnipotence of parliament signifies nothing^more than the supreme sovereign power of the state; and I think therefore that Be Lolme made an unwarrantable assertion, when he said that “ it is a fundamental principle with the English lawyers, that parliament can do every thing but make a woman a man and a man a woman.” The legislature, however, is not supreme under our form of government. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people. (4 Hill, 144.) It was said by the late Justice Story, in the case of Wilkerson v. Leland, (2 Peters, 657,) “ That a government can scarcely be deemed to be free when the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred.” Again, he says, “ We know of no case in which a legislative act to transfer the property of A. to B. without his consent has ever been held a constitutional exercise of legislative power, in any state in the union. On the contrary, it has constantly been resisted as inconsistent with first principles, by every judicial tribunal in which it has been attempted to be enforced.” I maintain, therefore, that the security of the citizen against such arbitrary legislation rests upon the broader and more solid ground of natural rights, and is not wholly dependent upon these negatives upon the legislative power contained in the constitution. It can never be admitted as a just attribute of.sovereignty in a
See Holmes v. Holmes, (4 Barb. Sup. Court Rep. 295,) S. P.