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CODES, LES CINQ. 



CODES, LES CINQ. 



the internal factions, the cares of foreign war, and the frequent changes 

 of rulers, prevented any calm deliberation on the subject during the 

 first years of the revolution. After Bonaparte became first consul, he 

 appointed, in 1800, a commission, consisting of Tronchet, president of 

 the Court of Cassation, Bigot de Preameneu, Portalis, and Malleville, 

 to draw up a project of a civil code. The project was printed early in 

 1801, and copies were sent to the Court of Cassation and the Courts of 

 Appeal for their observations and suggestions. 



These observations and suggestions were likewise printed, and the 

 whole was then laid before the section of legislation of the council of 

 state, consisting of Boulay, Berlier, Emmery, Portalis, Roederer, Real, 

 and Thibaudeau. Bonaparte himself, and Cambacdres, one of his 

 colleagues in the consulship, took an active part in the debates. The 

 various heads of the code were successively discussed in the presence 

 of the members of the commission, after which they were laid before 

 the tribunate, where some of the provisions met with considerable 

 opposition. The code, however, passed at length both the tribunate 

 and the legislative body, and was promulgated in 1804 as the civil law 

 of France, " Code Civil des Francais." Under the Empire its name 

 was changed into that of Code Napoleon, by which it is still often 

 designated, though it has now officially resumed its original title of 

 Code Civil. This code affects to define the civil rights of. Frenchmen, 

 and their legal relations to each other, and to society at large. In its 

 general arrangement and distribution it resembles the institutions of 

 Justinian ; like them, it has adopted the great distinction of laws con- 

 cerning the person, and laws concerning property. It consists of a 

 preliminary title or introduction on the subject of the publication, the 

 effects and the application of laws in general ; and of three books, 

 divided into titles or heads, each of which is subdivided into chapters 

 and sections. Book I., in eleven heads, treats of persons ; specifies 

 their civil rights ; regulates the means by which their rights are certi- 

 fied ; prescribes the mode of registering births, marriages, and deaths ; 

 defines the conditions constituting the legal domicile of each individual ; 

 and provides for cases of absence. It then treats of marriage as a civil 

 contract, the forms required, the obligations resulting from it, and 

 lastly, of separation and divorce. The articles concerning divorce, 

 which gave rise to much debate and opposition at the time, have been 

 repealed since the Restoration, by the law of the 8th of May, 1816, and 

 separation alone is now allowed ; but with respect to the articles com- 

 prised in the 6th title on the subject of divorce, the editors of ' Los 

 Codes Francais annote'es, 1850,' say that although xmdoubtedly divorce 

 was abolished by the above law of 1816, yet from the want of any 

 explanation accompanying that abolition, the result has been to intro- 

 duce such disorder into this part of the Code, that it is very difficult 

 to determine in any precise and satisfactory way what articles of this 

 8th title were intended to be preserved, and what have been actually 

 destroyed ; hence, as they point out, one consequence has been to 

 enlarge the jurisdiction of the bench in these matters, to give the 

 judges greater latitude in doubtful questions on this branch of the 

 French law ; and, it may be added, to inflict no little injury upon the 

 system of codification by substituting for the litera scripta of the Code, 

 the uncertain and varying opinions of the judge. The code proceeds 

 to treat of the relations of father and son, of legitimate and natural 

 children, of adoption and guardianship, and of paternal power. Under 

 this last head the French code, without adopting the rigid principle of 

 the old Roman law in its full extent, gives to a father the right of 

 imprisoning lu's son, if he be less than 16 years of age, for a term not 

 exceeding one month ; but if he have attained the age of 16, then, 

 between that time and the commencement of majority or emancipation, 

 for a term not exceeding six months, by a petition to that effect, 

 addressed to the president of the local court, who, after consulting 

 with the king's attorney, may give the order of arrest without any 

 other judicial forms being required; and may in the first case abridge 

 the time of confinement required by the father. The remaining heads 

 treat of minority, guardianship, and emancipation ; majority, which is 

 fixed for both sexes, at 21 years complete ; of interdiction, and the 

 council of trustees, called "judicial" advisers, appointed in certain 

 cases to administer the property of a man who is incapable of doing it 

 himself. Book II. treats of property and its various kinds and modi- 

 fications. The 1st head draws the distinction between meubles and 

 immeiAlei, or personal and real property ; though these two words do 

 pot express, to an English lawyer, the distinction between meubles and 

 immeubles. The 2nd defines the different rights of ownership. The 

 3rd treats of \isufruct, use, and habitation. The 4th concerns rural 

 servitudes, the prnxliorum servilities of the Roman law, excluding all 

 former personal servitudes which were abrogated at the revolution. 

 Book III. treats of the various modes by which property is legally 

 acquired, such as inheritance, donation inter vivos, and wills or testa- 

 ments. A father can dispose by testament of one-half of his property 

 if he has but one legitimate child, of one-third only if he has two, and 

 of one-fourth if he has three or more. The law then proceeds to treat 

 of contracts or conventional obligations, specifying the modes of prov- 

 ing them by written documents, official or private, or by witness, or 

 lastly by presumption; and after briefly explaining the subject of 

 engagements arising without contract, it proceeds to the 5th head, 

 which treats of the marriage contract, and the respective rights of 

 husband and wife according to the various stipulations, either by com- 

 munity or separation of property, or by dowry. Next come the heads 



of sales, exchanges, contracts of hire, partnerships, loans, deposits, and 

 sequestration. The 12th head concerns aleatory contracts (including 

 insurance, bottomry, loans, plays and wagers, and annuity contracts). 

 The 13th, 14th, 15th, 16th, and 17th heads, treat of mandate, or pro- 

 curations, suretyship, transactions, arrest of body and security, &o. The 

 law treats next of power of attorney, of bail and security, and of 

 amicable compromise. The 18th head concerns privileged creditors 

 and mortgages. This subject is very elaborately treated, and has been 

 much extolled as a very valuable part of the Civil Code, on account of 

 the security which it gives to property by means of the public offices 

 for registering mortgages, of which there is one in every district. The 

 registration of mortgages has been adopted in most of the Italian states, 

 and other countries besides France ; but even this system is not con- 

 sidered perfect, because there is no obligation to register every sale or 

 transmission of property, nor the servitudes affecting property, and 

 because the French code admits of sales by private contract, and of 

 mortgages in favour of minors or wives, even without registration. 

 In this particular the Austrian code is considered superior, because it 

 enforces the registration of every transmission of property, and of every 

 burthen or servitude, on the book of census, or cadasto, for each dis- 

 trict. Monsieur Anthoiue de St. Joseph, in his very valuable work, 

 ' Concordance entre les Codes Civil Strangers et Code Napoleon,' has 

 extracted from Dr. Schein's ' Treatise on Public Registers,' the Austrian 

 regulations on the subject, from which it appears that the intention 

 aimed at in the establishment of public registration in Austria, is, as is 

 stated in the text, to enforce the registration of all proprietary rights 

 over immoveables, for which purpose there are five classes of public 

 registers : 1, The principal book, containing a full description of the 

 property, the owner's name, its estimated value, its incumbrances, 

 burdens, mortgages, &c. 2. The book of documents, that is, of those 

 documents on which the owner's title rests. 3. The book of debts. 

 4. The book of receipts and acquittals. 5. The urbarium, or book 

 comprising a detailed statement of all the charges to which the estate 

 is liable, certified by the owner's signature. The reader is referred 

 to the preface of St. Joseph's ' Treatise,' pp. 89, et seq., and to the 

 preface of Troplong's ' Droit Civil ExpliqueY vol. i. of ' Privileges et 

 Hypotheques," for some very able and searching criticisms on this 

 part of the French civil code. (See also Grenier, ' Trait*! des Hypo- 

 theques,' 1824: 'Introduction.') The 19th head of the French civil 

 code treats of expropriation or seizing, or selling off by execution ; and 

 the 20th, or last, of prescription. 



Much has been written on the merits and defects of this celebrated 

 code. In order to judge of its value, we ought to read the reports of the 

 discussions in the council of state by the most distinguished jurists of 

 France. (Locre, ' Esprit du Code Napoldon tire" de la discussion,' 6 vols. 

 8vo, 1805 ; Malleville, ' Analyse raisonnee de la Discussion du Code Civil 

 au Conseil d'Etat,' 4 vols. 8vo, 1807; and Lerminier, ' Introduction a 

 1'histoire du Droit,' &c. c. 20.) On the other side, several distinguished 

 German jurists have pointed out its imperfections. (Savigny, ' On the 

 Aptitude of our Age for Legislation,' translated from the German by a 

 barrister of Lincoln's Inn ; Rehberg ' iiber den Code Napoleon,' Hanover, 

 1814 ; Thibaut, Schmidt, &c.) With regard to the part which Bonaparte 

 took in its discussion, not of course as a professional man, but as a 

 quick-sighted observer and critic, a lively account is given in Thibau- 

 deau's Me'moires sur le Consulat,' in which his own original expressions 

 are preserved. (See also Barrett, ' Translation of the Code Napole'on,' 

 vol. i., p. ccclxxxviii. &c. ; and Blaxland's ' Codex legum Anglicanarum,' 

 pp. 173, et seq., where a very good sketch appears of CambaceYes' three 

 projects, that of the legislative commission, and Napoleon's commission 

 for a Code. 



Code de Procedure Civil. The Code Civil having determined what 

 was law, it remained to prescribe the forms of civil process and the 

 practice and rules of the courts. The Code de Procedure is divided 

 into two parts. The first part treats of the ordinary forms of proce- 

 dure before the various tribunals, and contains five books, of which the 

 1st relates to justices of peace and their jurisdiction. There are about 

 2840 of these magistrates in France, who decide petty cases not ex- 

 ceeding 300 francs, and also act as conciliators between parties at 

 variance, who are not allowed to plead before a court without haying 

 first appeared before the juge de paix. The 2nd, to the process before 

 the tribunaux de premiere instance, which try civil cases without jury. 

 There is one of these courts in every arrondissement. The 3rd, treats 

 of appeals to the Cours Imperiales, of which there are 27 established in 

 the larger towns, each having several departments under its jurisdic- 

 tion; these courts try cases by jury. The 4th, of various modes of 

 attacking judgments. The 5th, of the execution of judgments. The 

 second part treats, iu three books, of the different forms of procedure 

 in the several cases indicated ; the 1st book discusses (inter alia) offers 

 of payment on the debtor's part, and of ' consignation ' or payments 

 into court in satisfaction of a debt ; separation between husband and 

 wife ; interdiction and cession of property by an insolvent debtor. 

 Foreigners are excluded from the benefit of the cessio bonorum. The 

 second passes to the subject of inheritance, the affixing of seals, taking 

 inventories, &c. The last book treats of arbitration. The Code de 

 Procedure was in great measure founded on, or rather is a modification 

 of, the ordonnance of 1667 of Louis XIV., with considerable ameliora- 

 tions. It was framed by a commission appointed in 1802, consisting 

 of Treilhard, Try, StSguier, Berthereau, and Pigeau, then discussed in 



