The North American Review

astical causes; and besides the study of the Roman law might
divert the attention of the clergy from the holy scriptures.
He therefore forbade all persons whatsoever from teaching the
civil law at Paris, or in the neighbourhood, under the penalty
of being interdicted from practising as advocates, and of ex-
communication; and it is a remarkable fact, that, until the
year 1679, there was no professor of the civil law in that
celebrated university.* It has commonly been supposed that
the Roman law was entirely disused in the southern provinces
after the firm establishment of the barbarian kingdoms in that
part of Gaul, or at least that the text was forgotten or lost, and
it only survived as a sort of traditionary usage or customary
law, until the celebrated epoch of the discovery of the Pan-
dects at Amalfi. But the Theodosian code could hardly have
been obliterated; and when that of Justinian was revived, it
was eagerly adopted in that congenial soil where the Romans
left so many vestiges of their power and institutions, and was
soon applied even in the pays coutumier to the improvement of
the local usages: so that the entire law of France is strongly
imbued with the spirit and principles of Roman legislation.
These customs were at a very early period reduced to a writ-
ten text, and thus delivered from that uncertainty which must
always attend the administration of a system of laws resting in
tradition, and depending upon the frail testimony of witnesses
for its ascertainment. Such were the Etablissemens de St.
Louis, published by that monarch in 1270, before his expedi-
tion to Africa, containing the customs of Paris, Orleans, and
Anjou, as they then existed; the Coutumes de Beauvoisis*
compiled by Philip de Beaumanoir in 1285; the Assises de
Jerusalem, composed by Godfrey of Bouillon for the govern-
ment of the kingdom established by the French crusaders in
Palestine, and the Grand Coutumier, containing a collection
of all the customs of the different provinces made in the reign
of Charles VI. But these works, adapted to the simplicity of
the rude age in which they were compiled, were found to be
too general in their provisions and too succinct in their style
to satisfy the wants of a more advanced stage of society; and
when Charles VII. had accomplished the great work of ex-
pelling the English from France, he set about an undertaking
hardly less important to the nation, that of amending the cus-

* Fleury, &c. p. 67, 68. Decretal. Gregor. 1. v, t. 33, c. 28.

toms and re

text We

tion of this

code for the
same design
strong desir

inconveniences

toms and republishing them in a more ample and intelligible
text. We are informed by Dumoulin, that the ultimate inten-
tion of this monarch was to reduce the whole to an uniform
code for the entire kingdom; and De Comines attributed the
same design to Louis XI, who is said to have expressed a
strong desire that an uniformity of laws, and of weights and
measures, might be established throughout the kingdom;
qu'en ce Royaume on usát d'une coutume, d'un poids, d'une
mesure, et que toutes les coutumes fussent mises en François
dans un beau livre.** But the accomplishment of these de-
signs and wishes was reserved for our own times, and even
the more indispensable work of revising the different customs
and reducing them all to an accurate text was not achieved,
until more than a century after the death of Charles VII.

Besides these two great sources of the laws of France, the
Droit Français, and the Roman code, another was to be found
in the statutes enacted by royal authority. These were called un-
der the Merovingian and Carlovingian princes, Capitulaires;
and under the third race they acquired the name of Ordonnan-
ces, although all letters patent, by which a general rule of con-
duct was prescribed, had the force and effect of law. At first
these statutes were enacted by the king in an assembly of his
barons, and with their advice and consent, in the same man-
ner as the great vassals of the crown legislated within their
fiefs, with the advice and consent of their vassals. And even
after the independent and exclusive legislative authority of the
crown came to be habitually exercised, many of the most im-
portant ordonnances were enacted in an assembly of the states
general of the kingdom. Such, for example, is the celebrated
ordonnance of Moulins, requiring all contracts, the considera-
tion of which exceeds a hundred livres in value, to be in writ-
ing. This, like all the other French statutes, is drawn up with
great simplicity and precision, and appears never to have given
rise to those innumerable questions, which have occurred un-
der the English statute of frauds, and which have perverted
its original design, so as almost to make it a statute for the
promotion of frauds. Indeed the extreme verbosity of the
legislative style in the English parliament, which has been
too much copied in this country, is attended with very great
inconveniences, and entirely defeats the great end of a written
* Fleury, &c. p. 91.

code. Among the French ordonnances, those of Louis XIV.
are the most beautiful models of legislation, especially the
Commercial ordonnance of 1673, which was compiled by a
commission of the most eminent merchants and lawyers
under the direction of Colbert; and the celebrated Marine
ordonnance of 1681, better known by the admirable commen-
tary of Valin, which prepared the way for the elementary
works of Pothier and Emérigon. It is only necessary to name
these three illustrious men to assert the fame of their country
in legal science.

To this immense pile was superadded the jurisprudence des
arrets, or the decisions of the courts of justice, ascertaining
the law, or having proprio vigore the force of law for though
judicial decisions and precedents never appear to have acquir-
ed that authority which they have in England, and in this
country, nor to have contributed so much to swell the mass of
law, and to fill the lawyer's library, yet they were regarded
with very great respect, and the parliaments and other sove-
reign courts even asserted the right, in many cases, of promul-
gating what were called arrêts reglementaires, and had the
force of general prospective enactments.

The revolution came, and swept away this vast accumula-
tion of laws. To supply its place, temporary decrees were
enacted by the different legislatures. The project of a general
civil code was first drawn up by Cambaceres under the repub-
lic, and before the return of Bonaparte from Egypt. On the
accession of the latter to the first consulship, his ardent and
restless mind was turned to this important subject, and he
aspired to combine the fame of the legislator with the glory
which he had acquired in arms. The same object had before
occupied the attention of the different national assemblies which
rapidly succeeded each other; but they were too much dis-
tracted by external danger and domestic faction, to mature a
work, to accomplish which required either the tranquillity of
peace and social order, or the power of a single will. After
the return of the first consul from the field of Marengo, he
appointed a board of commissioners to draw up the plan of a
code, which should supersede all the pre-existing laws con-
cerning private civil rights. It consisted of MM. Portalis,
Tronchet, Bigot-Preameneu, and Malleville, all eminent and
experienced lawyers of the old school, who produced the
Projet de Code Civil, which was printed, and submitted to

discussion in

remove the

Visions, and
perfect mod
revolution, w
institutions o
the evil, ren
merable cust
multitude of

the different
that reveren
works of ma
select such m

his new edific
efficacious au
which it mus

known and es

tory of legal p
ized and polis
sions to be co

this source the

and especially
the materials
After this w
the Courts of
plan, which w
jected to the
was then separ
adoption, accor
servations of the
in the Council
mentary upon t
which was prind
matters of the d
ordinance of 16
after these sud
Code Penal, and
form, with a v
certainly if desp
of beneficent des
by military amb
degree be justifie
power only for th

discussion in a mode adapted to free it from imperfections, to remove the objections to its general plan, to simplify its provisions, and render them more explicit, and produce the most perfect model of legislation the world had yet seen. The revolution, which had levelled in the dust almost all the social institutions of France, without discriminating the good from the evil, rendered the task comparatively easy. The innumerable customs of the provinces had disappeared; and the multitude of royal ordinances was superseded by decrees of the different national assemblies, which had not yet gained that reverence and strength which time alone can give to the works of man. From this mass of ruins the legislator might select such materials as he thought fit for the construction of his new edifice. The Roman law was alone left, having the efficacious authority of a code of written reason; an authority which it must always command wherever it has been once known and established. It furnished an inexhaustible repository of legal principles, adapted to the wants of a highly civilized and polished state of society, and had no small pretensions to be considered as the universal code of Europe. From this source then, from the ancient customary law of France, and especially from the works of Pothier himself, they drew the materials of their new creation.

After this work had been prepared, it was submitted to all the Courts of Appeal, who made their observations upon the plan, which were also printed, and the whole was then subjected to the revision of the Council of State. Each book was then separately submitted to the legislative body for its adoption, accompanied with an exposé des motifs. These observations of the judges, the proces-verbal of the deliberations in the Council of State, and the motifs form an excellent commentary upon the text of the code. The Code de Commerce which was principally compiled from, and includes the subject matters of the commercial ordinance of 1673 and the marine ordinance of 1681, was prepared in a similar manner; and after these succeeded the Code de Procédure Civil, the Code Penal, and Code de Procédure Criminelle. These still form, with a very few alterations, the law of France; and certainly if despotic authority exerted for the accomplishment of beneficent designs can compensate for the miseries inflicted by military ambition, the fame of Napoleon must in some degree be justified from the imputation of having wielded his power only for the destruction of mankind.

Whatever could be done by the mere private authority of an individual to give a methodical system, fixedness and uniformity to the complicated legal institutions of France, had already been accomplished by the genius of Pothier; and it is his highest praise to have anticipated that reform in the legislation of his country, which he did not live to witness, but to which his works have essentially contributed. After a long life of incessant labour and usefulness, he died 1772, leaving behind him a character of probity and virtue equal to his reputation for talents and learning.* His memory is still revered among his countrymen as the great oracle of their jurisprudence; and his fame has not been confined to his own age and nation, since his works are constantly cited at Westminster and Washington as of the highest authority in all questions not exclusively depending upon positive and local institutions. It therefore appears to us that Mr. Cushing could not have performed a more valuable service to the profession, than by naturalizing among us these works. The translation which he has executed of the Contrats de Louage Maritimes is done with great fidelity and exactness, and is an earnest of what may be accomplished, should the editor be induced to persevere in his undertaking, and extend it to the other treatises of Pothier. The notes which are appended to this part of the work are of very great value, and indispensably necessary to render the text intelligible to readers not familiar with the French and Roman law. Should the public patronage justify a continuation of the work, as we feel confident it will, we would recommend to Mr. Cushing to collate the citations of Pothier from the commercial and marine ordinances of Louis XIV. with the correspondent provisions of the new commercial code; as alterations more or less important have been made in the text of those ordinances by the latter compilation, which is now the law of France, and may sometimes be referred to in our own courts either as illustrative of the general maritime

* Public funeral services were performed in the cathedral of Orleans on his account, and the following inscription, in letters of gold, on a marble tablet, may still be read there:

Hic jacet ROBERTUS JOSEPHUS POTHIER, vir juris peritia, æqui studio, scriptis consilioque, animi candore, simplicitate morum, vitæ sanctitate præclarus. Civibus singulis, probis omnibus, studiosæ juventuti, ac maxime pauperibus, quorum gratia pauper ipse vixit, æternum sui desiderium reliquit, anno reparate salutis MDCCLXX11, ætatis vero suæ LXXIII. Præfectus et Ediles, tam civitatis nomine quam suo, posuere.

law, or as o
tractus.

An intere
the sources
Cushing to
with some p

In the co Havre was made, in the posing his gr draw for a s benefit of re he commonly assiduously e tion. Many amusements t occasional vis he acquired g 'He never he had not suf who had; thi for one who w to tranquil an

to execute m ried life woul tions, and din person eve the cares of a indifferent to th the managemen to his servants, relieved him fro his personal int cerns appeared, and in his cabin about in the gre ously never seek not proceed fro was sufficient for his character. 1 the patrimony of his charities wer

« 上一頁繼續 »

圖書

The North American Review, 第 13 卷