The question in this case is whether article 1481 of the Civil Code, which forbids a couple who have lived together in open concubinage, without being afterwards married, to give or bequeath to one another anything but personal or movable property, and which even limits that to one-tenth of the value of the estate, is applicable to a case where an unmarried couple have lived together, openly, as man and wife, continuously, for thirty-five years, without making known the fact that they were not married.
The prevailing opinion here is that an unmarried couple, living openly as husband and wife, and hence living in concubinage, are not living in "open concubinage" if they conceal the fact that they are not married. That opinion is said to be founded, in some measure, upon the difference between "those who have lived together in open concubinage" and "those who have openly lived together in concubinage." It is conceded in the prevailing opinion that, if the Legislature, in adopting article 1481 of the Civil Code, had said "those who *Page 43 have openly lived together in concubinage," etc., instead of saying "those who have lived together in open concubinage," etc., "plaintiff's construction [of the law] would be sound." I must confess that I do not see the difference between the meaning of the clause, "those who have lived together in open concubinage," and the meaning of the clause, "those who have openly lived together in concubinage." It is said in the prevailing opinion that, if the language were transposed, in the way suggested, the adverb "openly" would modify the verb "lived." It seems to me that, if the language were transposed thus, the adverb "openly" would qualify the adjective phrase, "in concubinage," or the whole clause, "lived together in concubinage." In other words, the adverb "openly" would describe how the living together in concubinage must be done in order to constitute "open concubinage." To speak of "those who have lived together in open concubinage" is the same as to speak of "those who have openly lived together in concubinage." Which reminds me that the redactors of the Civil Code were right when — in article 14 — they gave the admonition that, in the construction of laws, we must not give too much attention to the niceties of the rules of grammar.
After referring to the decisions which are cited in the prevailing opinion in this case, it is impressed upon me that this is the first instance where the construction which the court is now giving to article 1481 of the Civil Code was ever suggested. In the Succession of Jahraus, 114 La. 456, 38 So. 417, and in fact in every case where this court has decided that the concubinage *Page 44 was not "open concubinage," the feature of the unholy affair that was not "open" was the living together, or cohabitation, not the fact that there was no marriage ceremony. The quotations which are given in the majority opinion in this case, from the Succession of Jahraus, and from the other decisions which are quoted or cited, do not seem to me to be appropriate to this case, because the question which is presented here was not before the court in the Succession of Jahraus, or in any other case referred to in the majority opinion in this case. For example, in Texada v. Spence, 166 La. 1020, 118 So. 120, 122, 62 A.L.R. 281, the question was whether article 1481 was applicable to a putative, ceremonial, but invalid, marriage; and the ruling was that, as the putative wife was in good faith when she contracted the marriage, she was not a concubine; and that a concubine was as essential to a state of concubinage as a ghost is to Hamlet. It was in that case that the court gave this striking declaration of the purpose of article 1481 of the Civil Code, viz.:
"The purpose of the law is to discourage a man and a woman from living together openly as husband and wife without a ceremonial marriage, in the interest of good morals, public order, and the preservation of society. Cole v. Lucas, 2 La.Ann. [946] 952."
In Cole v. Lucas, the purpose of article 1481 (then 1468) of the Civil Code was stated thus:
"The disabilities under which the law places persons who have lived in this condition, are created for the maintenance of *Page 45 good morals, of public order, and for the preservation of the best interests of society."
In the Succession of Jahraus, the author of the opinion, being a French scholar, gave the genesis and a brief history of article1481 of the Civil Code; and he brought out the historical fact that, in the projet of the Code Napoleon, was proposed an article which was rejected, viz.: "Ceux qui ont vécu ensemble dans un concubinage notoire, sont respectivement incapables de se donner." It was said in the Succession of Jahraus that, by using the term "concubinage notoire," notorious concubinage, the intention was to adopt a more conservative doctrine than that which had prevailed under the old law, by applying the incapacity only to cases of notorious concubinage. But the code commission, remembering how the courts had been annoyed by scandalousexposes of men's secret affairs with women, rejected the proposed article, and left unrestricted donations between paramours and concubines. The article which was proposed for the Code Napoleon was adopted, substantially in our so-called Civil Code of 1808, or "Digest of the Civil Laws in force in the Territory of Orleans," as article 10, Title 2, Book III, thus:
"Art. 10. Ceux qui ont vécu ensemble dans un concubinage notoire, sont respectivement incapables de se faire aucunes donations universelles, ou à titre universel, soit entre vifs on pour cause de mort."
In the French text the term "notorious concubinage" was used, but in the translation the term "open concubinage" was used, thus: *Page 46
"Art. 10. Those who have lived together in open concubinage, are respectively incapable to make to each other any universal donation, or on an universal title, whether between inter vivos or mortis causa."
The language of the article, as translated, was very crude. Hence the commission appointed by the Legislature, in 1822, composed of Moreau Lislet, Edward Livingston, and Pierre Derbigny, to revise the so-called Code of 1808, proposed in their report, and in their projet for a new Civil Code, a revision of this article, with material changes. The revision and changes were adopted, exactly as recommended by the commission, as article 1468 of the Civil Code of 1825. In the French text, the word "notoire" — notorious — was omitted; so that the article declared, without qualification: "Those who have lived together in open concubinage are respectively incapable," etc. Here is the French text:
"Art. 1468. — Ceux qui ont vécu ensemble dans le concubinage, sont respectivement incapables de se faire, soit entre vifs, soit pour cause de mort, aucune donation immobilière; et, s'ils se font quelque donation mobilière, elle ne devra pas excéder la dixième partie de la valeur totale de leurs biens.
"Sont exceptés de cette disposition ceux qui viennent ensuite à se marier."
Comparing the French text of the proposed article, which is on p. 206 of Vol. 1 of the Report of the Commission, with the English text, which is on p. 199 of Vol. 2 of the Report of the Commission, we find that in the English text the commission *Page 47 inserted the word "open" before the word "concubinage." The English text of the proposed article was adopted, verbatim, as article 1468 of the Code of 1825, and remains unchanged, as article 1481, in the revision of 1870.
I respectfully submit that, if there is any significance in the substitution of the word "open" for the word "notorious," notoire, the significance is that the redactors of this article of the Civil Code deemed it sufficient that the concubinage — or living together as man and wife — should be "open" — not concealed — in order to come within the purview of article 1481 of the Civil Code. In other words, they deemed it not necessary for the concubinage — or living together as husband and wife — to be notorious, in order for the concubinage to be "open concubinage," in the meaning of article 1481 of the Civil Code. The word "notorious" has an opprobrious sense. According to Webster's New International Dictionary it means: "Generally known and talked of; well, widely, or commonly known; forming a part of common knowledge; * * * universally recognized; — usually unfavorable in sense; as, a notorious thief, vice, fact." I respectfully submit, therefore, that when the law puts the ban upon "open concubinage," it goes a step further than when it puts it only upon "notorious concubinage."
Apropos the difference between "open concubinage" and "notorious concubinage" — if there is a difference — the reason why, in the case of People v. Salmon, 148 Cal. 303, 83 P. 42, 43, 2 L.R.A.(N.S.) 1186, 113 Am. St. Rep. 268, Salmon was not guilty of a violation of the California statute (St. *Page 48 48 Cal. 1871-72, p. 381, § 2), declaring "open and notorious cohabitation and adultery" a felony, was that his offense was not notorious. The case being a prosecution for crime, the statute, of course, had to be construed strictly, and every element of the crime, as defined by the statute, had to be proved, in order to find the defendant guilty. In referring to the element ofnotoriety, the Supreme Court of California said: "Notoriety is the state or character of being well known, usually (and always when applied to crime) in an unfavorable sense. It is often found with words of similar import, such as `open' and `flagrant.'" Salmon and his female companion had come from New Jersey to Los Angeles, where they were unknown, and where they rented a room in a respectable lodging house, and occupied the room as man and wife, and were never suspected of living in a state of adultery. The court said that the purpose of the statute was to prevent evil and indecent examples, tending to corrupt public morals. But the difference between that case and this is that that was a criminal prosecution and the words of the statute were different. Hence I respectfully submit that the citing of the case in the majority opinion in this case is not persuasive.
My understanding of the dissertation in the opinion in the Succession of Jahraus is very different from that which is given in the prevailing opinion in this case. As I understand it, what the redactors of the Civil Code of Louisiana had in mind, when they required that concubinage had to be "open," in order to come under the ban of article 1481, was that there should be no *Page 49 judicial investigation or peeping into the secret rendezvous, liaisons, or love nests of the men and women who sought to keep them hidden. It is not the marriage ceremony, or the want of a ceremony, but the relation of the couple, or their conduct towards each other, that is not to be inquired into, if they keep their secret.
It is observed in the prevailing opinion in this case that various disguises have been used successfully by concubines to conceal their status, e.g., housekeeper, storekeeper, cook, maid, nurse, sister-in-law, etc.; and that, in the cases where the parties have succeeded thus in concealing their illicit relation, it has been held that the concubinage was not open concubinage, in the meaning of article 1481 of the Civil Code. Hence it is reasoned that, if a concubine hides her relation with her paramour behind the disguise of wife, instead of housekeeper, storekeeper, cook, maid, nurse, or sister-in-law, the result ought to be the same. The answer to that is that the one and onlyrelation which, if assumed falsely, constitutes concubinage is the relation of husband and wife. It is not essentially violative of article 1481 of the Civil Code, and hence not unconventional, for a woman to live in the same house with a man under the open but false pretense of being his storekeeper, housekeeper, cook, maid, nurse, or sister-in-law; but it is essentially violative of the article of the Civil Code, and hence very unconventional, for a woman to live in the same house with a man under the open but false pretense of being his wife.
I cannot imagine how an unmarried man and woman who are living together as husband *Page 50 and wife could inform their neighbors, when they move from one neighborhood into another, that they are not married. In introducing her to friends or visitors, he would be obliged, in all decency, to introduce her as his wife, or as Mrs. Himself, not as Miss So and so, or, if a widow, Mrs. So and so. He would never be expected to say: "I beg the honor of presenting my concubine." In her dealings with the local merchants, shopkeepers, or utility representatives, she would shock them if she referred to herself as the concubine of Mr. So and so, or if she referred to him as her paramour. I apprehend that the ruling in this case will put an end to the provisions of article 1481 of the Civil Code. It is well settled, by the decisions cited in the prevailing opinion in this case, that a paramour and concubine who succeed in concealing their cohabiting as man and wife are not guilty of living in open concubinage. Hence, if the paramour and concubine who are so bold in their cohabiting as man and wife that they deceive all of the neighbors into the belief that they are man and wife are not guilty of living in open concubinage, it is hard to imagine how a couple could live in open concubinage. If the ruling in this case is to prevail, article 1481 will have outlived its usefulness, or the spirit of the law will have fled, leaving only the dead letter.
We cannot know all that the lawmakers had in mind when they sought, many years ago, to discourage open concubinage. I doubt that it ever occurred to them that the term "open concubinage" might be construed as it is construed in this case. I prefer to believe that the Legislature realized, *Page 51 even then, that marriage was a very sacred institution, the very keystone in the social structure, and should be safeguarded against simulation. I do not believe that concubinage was so prevalent in Louisiana, at the time when the first Civil Code was adopted, that the Legislature assumed that all men and women who might be living together under a false pretense of marriage should feel safe in the belief that only he that was without sin, among them, might first cast a stone.
I respectfully dissent from the prevailing opinion and decree in this case.