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"be left open for the legislature to determine. If special "elections are provided by the legislature, the Constitution "should further provide that at such special elections no "officers other than Judicial should be elected.
"FRANK H. Graves, "W. H. WHITE,
"E. C. MILLION."
Hon. James B. Reavis, of North Yakima, read before the Association a paper on the subject of "Our Exemption Laws." (See Appendix "G.")
The subject of this paper being open for discussion, Judge Richard Osborne argued that, as homes were exempt from execution, so, also, should the money paid for insurance on the home, if it be burned. The question was also discussed by Messrs. White, Thompson and Evans, and quite a number of amendments to the law suggested.
Hon. Frank T. Post, of Spokane, read before the Association a paper on the subject of "Material-man's Lien." (See Appendix "H.") The discussion of the subject of this paper being short.
Hon. Orange Jacobs, of Seattle, read his paper on "Reminiscenses of the Bench and Bar of Washington." (See Appendix "I.")
Humorous and interesting remarks were made by Messrs. Elwood Evans, John B. Allen and William H. White.
Mr. Evans moved that the author of that paper, Hon. Orange Jacobs, be requested to prepare further "Reminiscenses," for publication. Motion carried.
On motion of Elwood Evans the thanks of this Association were tendered to the King County Bar Association and the citizens of Seattle for the hospitable manner in which the members of the Bar of this State have been treated during the session of the Association.
The business of the session being complete, the President declared the Association adjourned. N. S. Porter,
NOTE-The excursion on Lake Washington in the afternoon and the banquet at the Ranier hotel in the evening of July 20th, 1894, given by the Bar Association of King County, contributed greatly to the pleasure of their guests, the visiting members of the Washington State Bar Association. At the close of each of such occasions enthusiastic thanks were returned by the visitors by an unanimous
Paper read by R. A. Ballinger, Judge of the Superior Court, Port Townsend.
Subject: OUR COMMUNITY PROPERTY LAWS.
In attempting a discussion of our community property laws, I feel like the astronomer who fixes his telescope upon a nebulous mass in the heavens, and sighs for a larger lens, that he may get a closer grasp of vision upon the subject of his investigation.
I shall, however, without further apologies, proceed to consider the subject assigned to me, in two aspects:
FIRST: The Origin and History of Community property Laws; and,
SECOND: The general characteristics and peculiarities of our own system.
The matter proposed to be discussed in this paper, is so radically at variance with the principles of the Common Law, and so utterly devoid of analogies with its jurisprudence, that it is apparent, that we need not look to English law to find the source from which the community sprung, and for the further reason, as I will presently show, that its existence as a part of the lex scripta, antedates the written laws of England.
By the Common Law, as stated by Blackstone, the husband and wife are one person; that is, the very being or legal existence of the woman is suspended, during marriage, or at least is incorporated and consolidated in that of the husband, under whose wing, protection and cover she performs everything.
These disabilities seem to have had chiefly for their object the protection of the mediæval baron or lord, in the rights acquired by the marriage, and incidentally, of
the wife against the marital relation being made use of as a means of undue influence upon her action.
A marked distinction exists, in respect of the rights and capacities of the husband and wife, between the Common Law of England and the Civil Law of Rome. The Civil Law does not recognize in the spouses that union of persons, by which the rights of the wife were incorporated and consolidated with those of the husband. On the con
trary, it regards the husband and wife as distinct persons, with separate rights, and capable of holding distinct and separate estates. The same characteristics were common to the laws of the Athenians.
It is perhaps natural, in view of those distinctions, to consider the community system as having had its origin in, or as being an outgrowth of, the Roman Civil Law, especially since it is interwoven chiefly with the jurisprudence of Roman nations and their colonies.
An investigation of the Roman as well as the Attic Law, fails, however, to reveal the existence among Romans or Greeks of a marital partnership of acquests and gains, as will presently more fully be shown.
The civil law, nevertheless, formed a more natural basis upon which to engraft a marital partnership in property, than English jurisprudence, mainly because the former system recognized the separate identity of the spouses, while the very being or legal existence of the wife was lost under the latter.
The community system is believed to have had its beginning, at least as a part of the lex scripta, in Spain, but is probably of Teutonic origin, which is somewhat singular considering the fact that Spain was for so long a time a Roman province, and one of the last to succumb to Gothic invasion.
Before the middle of the Fifth century, the kingdom of the Visigoths had become the mightiest of Western Europe. It had driven the Vandals into Africa, and cooped up the earlier invaders, the Suevi, in the mountains of Asturias and Gallicia. It had absorbed the last frag
ment of independent Roman Gaul and Auvergne. It appeared at one time to aspire to be the successor of Roman prestige in Europe, but the Saracens ultimately dissipated all such possibilities.
"As long as the Visigoths themselves," says Gibbon, "were satisfied with the rude customs of their ancestors, they indulged their subjects of Aquitain and Spain in the enjoyment of the Roman laws. Their gradual improvement in arts, in policy, and at length in religion, encouraged them to imitate, and to supersede, these foreign institutions, and to compose a code of civil and criminal jurisprudence, for a great and united people."
Consequently, from the councils of Toledo, in the Seventh century, grew up the Gothic code, the Forum Judicum, "the first law book in which the Roman and Germanic law was attempted to be harmonized into a systematic whole," and, indeed, the most ancient code of Teutonic origin. It was, however, a departure from the Roman law in respect of the property rights of husband and wife. A community of right in the marital gains appears to have been recognized among the customs of the Visigoths, and, whether this custom extended to other tribes of the Germanic race, cannot definitely be asserted; but it would seem, from similar establishments in France and Holland, that these customs were not confined to the Visigoths, yet Tacitus fails to mention them in his history of the Germans. These customs silently and imperceptibly acquired a place in the usages of Spain, and became amalgamated with the Roman law. They first made their appearance in the lex scripta, as before noticed in the Forum Judicum, which is more generally known by the title "Del Fuero Juzgo."
The Fuero Juzgo became the general law of Spain, and superseded all prior systems by which Romans or Goths had been previously governed. The Roman law, while forming the basis of this code, was, however, prohibited under certain penalties from being used in Spain, and a manifest antipathy existed among the Goths to the same.