« ZurückWeiter »
French code, without adopting the rigid | extolled as a very valuable part of the principle of the old Roman law in its Civil Code, on account of the security full extent, gives to a father the right of which it gives to property by means of imprisoning his son during his minority the public offices for registering mortfor a term not exceeding six months, by gages, of which there is one in every a petition to that effect, addressed to the district. The registration of mortgages president of the local court, who, after has been adopted in most of the Italian consulting with the king's attorney, may states, and other countries besides France; give the order of arrest without any other but even this system is not considered judicial forms being required. The re- perfect, because there is no obligation to maining heads treat of minority and register every sale or transmission of emancipation; majority, which is fixed, property, nor the servitudes affecting for both sexes, at 21 years complete; of property; and because the French code interdiction, and of trustees who are ap- admits of sales by private contract, and pointed in certain cases to administer the of mortgages in favour of minors or property of a man who is incapable of wives, even without registration. In this doing it himself. Book II. treats of pro- particular the Austrian code is considered perty. The ist head draws the distinc- superior, because it enforces the registration between meubles and immeubles, or tion of every transmission of property, personal and real property; though these and of every burthen or servitude, in the two words do not exactly express, to an book of census, or cadasto, for each disEnglish lawyer, the distinction between trict. (Grenier, Traité des Hypothèques, meubles and immeubles. The 2nd defines | 1824: Introduction.) The nineteenth the different rights of ownership. The head of the French civil code treats of 3rd treats of usufruct, use, and habitation. expropriation or seizing, or selling off by The 4th concerns rural servitudes, the execution; and the twentieth, or last, of pradiorum servitutes of the Roman law: prescription. all former personal servitudes were abo Much has been written on the merits lished at the Revolution. Book III. treats and defects of this celebrated code. In of the various modes by which property order to judge of its value, we ought to is legally acquired, such as inheritance, read the reports of the discussions in the donation inter vivos, and wills or testa council of state by the most distinguished ments. A father can dispose by testament jurists of France. (Locré, Esprit du Code of one-half of his property if he has only Napoléon tiré de la Discussion, 6 vols. one legitimate child, of one-third only if | 8vo., 1805; and Malleville, Analysis he has two, and of one-fourth if he has raisonnée de la Discussion du Code Civil three or more. The law then proceeds to au Conseil d'Etat, 4 vols., 8vo., 1807.) treat of contracts, and specifies the modes On the other side, several distinguished of proving them by written documents, German jurists have pointed out its imofficial or private, or by witnesses, or perfections. (Savigny, On the Aptitude lastly by presumption. The 5th head of our Age for Legislation, translated treats of marriage, and the respective from the German by a barrister of Linrights of husband and wife according to coln's Inn; Rehberg, Veber den Code the terms of the marriage contract. Next Napoleon, Hanover, 1814 ; Thibaut, come the beads of sales, exchanges, leases, Schmidt, &c.) With regard to the part partnerships, loans, deposits, and seques- which Bonaparte took in its discussion, tration. The 12th head concerns the not as a professional man, but as a quickcontracts called aléatoires, which depend sighted observer and critic, a lively acin a great measure upon chance, such as count is given in Thibaudeau's Mémoires insurance, annuities, &c. The law treats sur le Consulat, in which his own original next of power of attorney, of bail and expressions are preserved. security, and of amicable compromise. Code de Procedure Civile.—The Code The 18th head concerns privileged credi- de Procédure is divided into two parts. tors and mortgages. This subject is very The first part treats of the various courts : elaborately treated, and has been nuch | Ist. Of the justices of peace and their
jurisdiction. There are about 2840 of Cassation—these are essential and lasting these magistrates in France, whose powers advantages. are very similar to those of magistrates The Code de Commerce was promulin England in matters of police; but they gated in January, 1808. It was founded also decide petty cases not exceeding 200 in some measure upon the ordonnances of francs, and in certain cases not exceeding 1673-81 of Louis XIV. On account of 100 francs their decision is without appeal. the many modifications which the Code They also act as conciliators between of 1805 had undergone, a new text of the parties at variance, who are not allowed Code was promulgated in January, 1841. to take proceedings in a court without The Code de Commerce is considered the having first appeared before the juge de best part of French legislation. The instipaix. 2nd. Of the process before the tution of the commercial tribunals has been tribunaux de première instance, which of great advantage to France, and has been try civil cases without jury. There is adopted in other countries. These courts, one of these courts in every arrondisse- of which there are 213, consist of a presiment. 3rd. Of appeals to the Cours dent and two or more judges, all chosen Royales, of which there are 27 estab- by the merchants among themselves, and lished in the larger towns, each having for a limited time; they are not paid, but several departments under its jurisdic- the greffier or registrar receives a salary. tion: these courts try cases by jury. 4th. The Code de Commerce consists of four Of various modes of judgment. 5th. Of books : the first treats of commerce in the execution of judgments. The second general, of the various descriptions of part treats of the various processes for commercial men, of the keeping of books, the recovery of property, separation be- of companies and partnerships, of brokers, tween husband and wife, interdiction and commissioners, carriers, &c.; the second cession of property by an insolvent debtor. treats of maritime commerce, shipping, Foreigners are excluded from the benefitof insurances, bankruptcy, &c.; the third the cessio bonorum. The code then passes concerns bankruptcies; and the fourth to the subject of inheritance, the affixing treats of the commercial tribunals, their of seals, taking inventories, &c. The last jurisdiction and proceedings. By a law of book treats of arbitration.
April, 1838, appeals in matters above 1500 The Code de Procédure was in great francs (formerly 1000 francs) lie to the measure founded on the ordonnance pro- Cour Royale of the district. mulgated in 1667 by Louis XIV., but Code d'Instruction Criminelle.--The with considerable ameliorations. It was criminal laws of France under the moframed by a commission appointed in narchy were defective, confused, and arbi1800, then discussed in the council of trary. There was no penal code, but state and the tribunate, and lastly passed there were various ordonnances for the by the legislative body. It was put in punishment of particular offences. The force in January, 1807. The expenses, ordonnance of Louis XIV. for regulating duties, fees, &c. attending civil process proceedings in criminal cases introduced are now regulated by the Code des Frais. something like uniformity, but it mainThe principal reproach made against the tained torture and secret trial. Torture Code de Procédure is the multiplicity of was abolished by Louis XVI. The first formalities, written acts, registrations, National Assembly in 1791 recast the cristamps, &c. Another objection is, that in minal legislation, introduced the trial by actions in which the state is concerned, it jury, and remodelled the criminal courts has advantages over private parties. But after those of England. Bonaparte, when the publicity of the discussions, the security First Consul, appointed a commission, to all civil proceedings by means of regis- consisting of Viellard, Target, Oudard, tration, the well-defined authority of the Treilhard, and Blondel, to frame a crimivarious courts, the independence of the nal code. The fundamental laws were judges, and the establishment of local | drawn up in 1801, and were then discourts all over the country, and above all cussed in the council of state. Bonaparte the institution of the supreme Court of took a lively part in these first discussions,
especially on the institution of the jury, | able by peines afflictives or infamantes, which he strongly opposed on the ground the prisoner takes his trial before the next of the probable incapacity or party spirit cour d'assise of the department. If for of jurors : he looked upon the question in mere delit or misdemeanor, he is sent a political rather than a judicial light before the correctional tribunal. The Portalis, Simeon, Bigot de Préameneu, courts of assize consist of two of the judges and Ségur sided with Bonaparte. Treil- of the Court of First Instance of the town, hard, Berlier, Defermon, Crétet, Bérenger, and the president is a member of the Cour Merlin, and Louis Bonaparte defended Royale of the department. Their sessions the jury. There is an interesting account are held every three months in the chef of this discussion in Thibaudeau (vol. vii. lieu of each department. The jury vote pp. 88, &c.). The question being put to by ballot, and decide by a majority on the vote, the majority was in favour of the fact of the charge ; eight constitute a the jury.
The matter, however, was majority. The mode of voting was regufinally settled by suppressing the jury lated by a new law, May, 1836. The d'accusation, or grand jury, and retaining court then awards the sentence, having a the jury de jugement. The jurors are discretion between a maximum and a taken from the electors who are qualified minimum penalty. By a law passed in to vote for a member of the legislature, 1831 the court was prohibited from setting graduates in law, medicine, and other aside the verdict of the jury and referring sciences, notaries, members of the Insti- the case to a new trial; but by the law of tute, and of other learned bodies recog- September, 1835, the judges can order the nised by the State, officers on half-pay case to be tried at the next assizes by a who have been domiciled for five years in new jury, when they must pronounce senthe department, and whose pay amounts tence according to the verdict, although it to 1200 francs a-year, &c. A list of per- may not differ from that of the first jury. sons so qualified is made out by the pre- The prisoner may challenge twelve jurors. fect of the department, from which the One or two juges d'instruction are attached President of the Cour Royale, or of the to each court of assize for criminal cases; Cour d'Assise, selects the number required they are generally taken from among the to serve. The proceedings in criminal juges de première instance, and for a trials are partly written and partly oral. definite time only. The Code d'InstrucThe accused is first brought before the tion Criminelle consists of the following procureur du roi (king's attorney), who books : 1. Of the judiciary police and the examines him, and simply reports the various officers whose duty it is to inquire case to the juge d'instruction, without after offences, collect the evidence, and giving any opinion upon it. At the same deliver the prisoners to the proper courts. time, if the accused is charged with a These officers are very numerous, includcrime punishable with personal and de- ing the maires and their assistants, the grading penalties, he orders his detention. commissaries of police, the rural guards For mere délits or misdemeanors, bail is and forest-keepers, the justices of the allowed. The juge d'instruction summons peace, the king's attorneys and their suband examines the witnesses, and then stitutes, the juges d'instruction, &c. It sends back the report to the procureur du also treats of the manner of proceeding by roi, who makes his remarks on the case, the king's attorney, as already stated; and which is then laid before the chambre de of the juge d'instruction and his functions. conseil, consisting of three judges of the Book 2 treats of the various courts; tritribunal de première instance. These bunaux de simple police, which take cogjudges investigate the case minutely, and nizance of petty offences, and can inflict decide if there is ground for further pro- imprisonment of not more than five days, ceedings. In such case the report is laid and a fine not exceeding fifteen francs; before the chambre d'accusation, composed tribunaux en matière correctionelle, which of five judges of the Cour Royale, who are composed of at least three judges of ultimately decide for commitment or ac- the tribunaux de première instance, and quittal. If committed for a crime punish- take cognizance of délits or misdemeanors,
the penalties for which are defined in the | in January, 1810. Its discussion occupied Code Penal; and cours d'assise, already forty-one sittings of the Council of State. mentioned, from which there is an appeal of these sittings Napoleon attended only for informality or want of jurisdiction to one (21st January, 1809). Cambacérès the Court of Cassation. The cours spé- presided at all the rest. “ Napoleon was ciales, or exceptional courts, which Napo- therefore a stranger to its discussions; be leon insisted upon having at his disposal, only expressed an opinion that the laws and which were often resorted to after the ought to be concise, and leave much latiRestoration, are abolished by Art. 54 of tude to the judges and the government in the Charte of 1830. These special courts the application of the penalty, because,' were assembled in cases of armed rebellion said he, ‘men had feelings of compassion against the authorities, and they also took unknown to the law.' He insisted upon cognizance of the offence of coining, and the penalty of confiscation being retained of crimes committed by vagabonds and in certain cases, because most nations had convicts who have escaped; they were sanctioned it in cases of conspiracy, rebelcomposed of a president taken from among lion, and false coining. But the definithe judges of the Cour Royale, four tion of crimes and offences, the nature of judges, and three military officers of the the penalties, and the mode of their applirank of captain or above. They tried cation, were the work of criminal jurists, without jury, judged by majority and who were generally inclined to severity, without appeal, and the sentence was and were well acquainted with the ideas executed within twenty-four hours. The of Napoleon, who was persuaded that Chamber of Peers, by virtue of Art. 28 criminal legislation ought to be very of the Charte, sits as a court of justice in rigorous in order to maintain order and matters of high treason and attempts support the authority of the government.” against the safety of the State. On the (Thibaudeau, vol. viii. p. 3.) Hence the subject of the Code d’Instruction, Thibau- penalty of death was fixed in numerous deau observes that it retained many of the cases, and those of perpetual imprisonameliorations introduced by the National ment, hard work, or transportation for Assembly, especially the publicity of trial life, in a still greater number. The pillory and the institution of the jury. Its chief is also one of the punishments. faults are, the great number of officers, If we look at book iii. ch. I, which whose business it is to follow up offenders, treats of the crimes and offences against by which circumstance the citizens are the safety of the State (a term susceptible often exposed to vexatious interference; of indefinite and arbitrary application, the too great extent given to the jurisdic- we find that the penalties of death and tion of the correctional courts, by which, confiscation are fixed very generally. in many cases, the citizens are deprived Confiscation, however, has been abolished of the security of the jury; the restrictions by a law passed under Louis XVIII. By on the choice of jurors, which is too much the head Des critiques, censures, ou pro in the power of prefects and other local vocations contre l'autorité publique dans authorities ; and, lastly, the frequent un discours pastoral,” any clergyman abuse of the power of the police, by which found guilty of having, in a pastoral its agents could issue warrants of arrest. charge, sermon, or other public address, This last abuse is now corrected, or at spoken or printed, criticised or censured least greatly mitigated. Other provisions any act of the government authorities, is of the Code d’Instruction, as well as of the subject to banishment, transportation, and Penal Code, have been also altered for even death, according to the consequences the better by the law of April 28, 1832, which have resulted from his act. The entitled “Modifications aux Codes d'In- following head,"Résistance, désobéissance, struction Criminelle et Pénal,' which is et autres manquemens envers l'autorité found at the end of the later collections of publique,” is equally severe. The article the French codes.
« Delits commis par la voie d'écrits, images The Code Pénal, or the laws that define ou gravures, distribués sans nom de l'aucrimes and punishments, was completed teur,” &c., concerns the press, which was
under a strict censorship in Napoleon's | where there is a workhouse or depôt for time. Since the Restoration the censor- the poor is subject to from three to six ship has been abolished, and several laws months' imprisonment. In places and have been enacted to repress abuses of cantons where there is no depôt for the the press, especially in April and October, poor (which is the case in most rural dis1831. The last law on this subject was tricts of France), able-bodied beggars may promulgated in September, 1835, and con- be imprisoned for a period of from one to sists of five heads : 1. Crimes, delits, et three months; and if arrested out of the contraventions. 2. Du gérant (editor) canton where they reside, they are imprides journaux ou écrits périodiques. 3. soned for a term of from six months to Des desseins, gravures, lithographies, et two years. By Art. 402, fraudulent bankemblêmes. 4. Des théâtres, et pièces de rupts may be punished by imprisonment théâtre. 5. De la ponrsuite et du juge- with hard labour, and bankrupts not ment. By the section of the Penal Code fraudulent are liable to imprisonment entitled “Des Associations ou Réunions from one month to two years. Fraudulent illicites," which continues in force to this brokers are condemned to hard work for day, every association of more than twenty a time. The law of France makes a wide persons for the purpose of meeting on distinction between native and foreign infixed days to discuss either political, reli- solvents. Foreigners not domiciled in gious, literary, or other subjects, is de France, having no commercial establishclared illegal, unless the approbation of ment or real property there, are liable to the government is obtained, which can double the period of imprisonment that a preseribe conditions and fix regulations at Frenchman is, but it must not exceed two its pleasure. The chiefs or directors of years for a debt less than 500 francs; four any such illegal association are punished years for a higher sum under 1000 francs; by fine. If at the meetings of such assem- six under 3000; eight for less than 5000; blies there has been any provocation to and ten years for 5000 and upwards. crimes or délits, as defined in the other (Okey, Concise Digest of the Law, Usage, articles of the Penal Code, the chiefs or and Custom affecting the Commercial and directors and administrators are liable to Civil Intercourse of the Subjects of Great imprisonment from three months to two Britain and France. There is also a years, besides fine, although they them- useful epitome of the French law as it selves may not have been guilty of the affects British subjects in Galignani's offence. No individual can lend his house Paris Guide.) By the head “ Violaor apartments for the meeting even of an tions des réglemens relatifs aux manuauthorized association, unless with the factures, au commerce, et aux arts,” any permission of the municipal authorities. coalition between masters to lower wages By a law which passed the Chambers in is punished by a fine of from 200 to 3000 April, 1834, the above regulations have francs, besides imprisonment not exceedbeen made even more strict. Every mem- ing a month. Coalition among workmen, ber of an illegal association is liable to a followed by an attempt to stop the works fine of 1000 francs, and to imprisonment of a manufactory, is punished by imprifrom two months to one year. "Under the sonment of from one to three months; heads “ Vagabondage” and “ Mendicité,” the leaders or originators of the coalition vagrants are defined to be all those who or attempt are subject to imprisonment have no fixed domicile nor means of sub- from two to five years. By Art. 417, sistence, and who do not follow habitually any one who, with the view of injuring any trade or profession. On the legal French industry, has removed to a foreign evidence of being such, they are con- country the workmen or clerks of a manddemned to an imprisonment of from three factory, may be imprisoned from six to six months, after which they are under months to two years, besides paying a fine the surveillance of the police for periods of from 50 to 300 francs. Art. 418: varying from six months to ten years. Any director, clerk, agent, or workman, With regard to mendicants or beggars, of a manufactory, who communicates to any person found begging in a place foreigners or to Frenchmen residing