French law

“ But it is certainly satisfactory to learn from the evidence of experts in French law, that the law of Associations is a penal law,-a law of police and order,-and is not considered to have any extraterritorial effect. ”

“ The result of legislation is that summary jurisdiction has been conferred by statutes and by-laws as to innumerable petty offences of a criminal or quasi-criminal character (most of which in French law would be described as contraventions) , ranging through every letter of the alphabet. The most important perhaps are those under the Army, Game, Highway, Licensing, Merchant Shipping, Post Office, Public Health, Revenue and Vagrancy Acts. ”

“ A fault frequently found with the Code Civil is that its general divisions show a lack of logic and method, but the division is practically that of the Institutes of Justinian, and is about as good as any other: persons, things, inheritance, contracts and obligations, and finally, in place of actions, which have no importance for French law except from the point of view of procedure, privileges and hypothecs, as in the ancient coutumes of France, and prescription. ”

“ The French prefaced their first constitution by the memorable words: "All citizens being equal before the law, are alike eligible to all public offices and positions of honor and trust, according to their capacity, and without any distinction, except that of their character and ability." This principle, so different from that which had hitherto prevailed, has been recognized in most of the modern European constitutions. The privileges and exceptions which everywhere existed before the French Revolution have been abolished. ”

“ When we pass from the consideration of the political functions of the Parliaments, and of their composition, to that of the ordinary administration of justice, we are struck by the diversity of the law in civil matters, and by its severity in criminal affairs. The kingdom of France, as it existed in the eighteenth century, was made up of many provinces and cities, various in their history. ”

“ Nemo debet esse judex in propriâ suâ causâ (12 Co. Rep. 114) —“no man ought to be judge in his own cause”—a maxim which French law, and the legal systems based upon or allied to it, have embodied in an elaborate network of rules for judicial challenge ”

“ Natural law may be said to have become the common law of France, or, at all events, the admission of its dignity and claims was the one tenet which all French practitioners alike subscribed to. The language of the præ-revolutionary jurists in its eulogy is singularly unqualified, and it is remarkable that the writers on the Customs, who often made it their duty to speak disparagingly of the pure Roman law, speak even more fervidly of Nature and her rules than the civilians who professed an exclusive respect for the Digest and the Code. ”

“ The highest people in the land, even kings and queens, had to submit to the laws, exactly the same as common subjects; and if a king was wronged, he had to appeal to the law, like other people. A couple of hundred years ago, when the kings of France were, to all intents and purposes, despotic, and could act much as they pleased towards their subjects, a learned French writer on law, during a visit to England, happened to pass near the grounds of one of the palaces, where he observed a notice on the fence of a field belonging to the king:—“Trespassers will be prosecuted according to law.” ”

“ The aggregate of these necessities compelling the submission of man constitutes the principle of sovereignty; by applying it to the life of nations we derive its succession, a principle which governs men and societies, a law belonging to the moral world and therefore beyond the control of man. This is the law which has been misunderstood, this the transgression against constitutional principles committed by French society, entailing nearly a century of misfortune on France. ”

“ He insisted that law shall proceed from common sense, not from custom, and shall draw its precepts from an eternal code. The principle of the higher law signifies Revolution. No government founded on positive enactments only can stand before it, and it points the way to that system of primitive, universal, and indefeasible rights which the lawyers of the Assembly, descending from Domat, prefixed to their constitution. ”

“ Moreover, what is certainly of no less importance—it would enlarge our knowledge of our ancient private law, to which many learned authorities, among others Francesco Forti, attribute the origin of modern jurisprudence, and the germs of many jural provisions, afterwards accepted by us as novelties derived from the French Code.
Public and private law have far more affinity than is generally supposed, and each conduces to the plainer and more exact comprehension of the other. Society and the State have both their birth in the family, reacting upon and modifying it in turn. ”

“ So that, if you chose for representatives friends of the people, is it not clear that the laws they made would be favorable to the people? The law could decree, for example, as in the time of the Republic, the education of children, instructed and maintained by the state, from the age of five to twelve. The law could decree assistance for disabled proletarians, for widows with children. ”

“ Title VI. Rights of Citizens. Frenchmen are equal before the law, whether for contribution to public taxes and charges, or for admission to civil and military employments. No one under any pretext can be deprived of the judges who arc assigned to him by law. No one can be prosecuted, arrested, detained or exiled except in the cases provided for by law and according to the prescribed forms. Liberty of worship is guaranteed to all. ”

“ I know no better man who would accept of it, and it would not be right to turn him out for one not better. But it is the second cause, above mentioned, which is deep seated and permanent. The French members of the legislature, being the majority in both Houses, lately passed an act, declaring that the civil, or French laws, should be the laws of their land, and enumerated about fifty folio volumes, in Latin, as the depositories of these laws. ”

“ Such an instinct is apparent in every department of French life. To their jurisprudence the French have ever attempted to attach a code, to their politics the stone walls of a Constitution, or, at the least, of a fundamental theory. ”

“ No private educational establishment could be opened without the authorization of the state.
But chief among the documents dating from this period are the Codes, which still give laws to France. These are the Civil Code of 1804, the Code de Procédure Civile of 1806, the Code de Commerce of 1807, the Code d’Instruction Criminelle of 1809, and the Code Pénal of 1810. The Codes. These monumental works, in the elaboration of which the conseil d’état took the chief part, contributed, to a greater or less extent, towards the fusion of the old law of France with the laws of the Revolution. ”

“ In the presence of God, I swear to observe faithfully the Constitutional Charter, with the modifications contained in the declaration; to govern only by the laws and according to the laws; to render fair and equal justice to every one according to his right, and to act in every thing in no other view but that of the interest, the happiness, and the glory of the French people. ”

“ But throughout all this realm of England, in all the courts of justice, are observed the laws of the realm, and all causes and controversies judged by the same, so as no other laws have place—which laws of the realm are not the civil laws, nor are grounded upon them, nor have no conformity unto them, so as the knowledge of the civil law serveth nothing at all for the understanding or exercising of them. ”

“ Frenchmen, when we have repelled these unjust aggressions, and Europe is convinced of what is due to the rights and independence of twenty-eight millions of Frenchmen, a solemn law, made according to the forms willed by the constitutional act, shall combine the different arrangements of our constitutions, that are at present scattered. ”

“ This led to the formation of a class of men who, though bound in many ways to the crown, were actually independent. Hence the tendency in the 18th century to create new and important functions under the form, not of offices, but of simple commissions.
In this period of the history of France were evolved and defined the essential principles of the old public law. There were, in the first place, the fundamental laws of the realm, which were true constitutional principles, established Fundamental laws of France. ”

“ The fate of the victim whom they had endeavoured to save would only have been made darker and more hopeless 53by their interference. We have lately seen a signal proof that, in France, the law is now stronger than the sword. We have seen a government, in the very moment of triumph and revenge, submitting itself to the authority of a court of law. ”

“ Now every society has the right of providing for what concerns the general interest, so that in permitting the parties to choose the judges of facts, the State reserves to itself the power to name the judges of right, who are the interpreters of the law. ”

“ These are the general characteristics of that incomparable monument of jurisprudence whose noble conceptions of the ends of legislation are best expressed in its own concise and energetic language:
“The law is the rival of divinity, the messenger of justice, and the guide of life. It dominates all classes of the state, and all ages of humanity, male and female, the young and the old, the wise and the ignorant, the noble and the peasant. It is not designed for the promotion of private aims, but to shelter and [189] protect the general interests of all. ”

“ The language of the great charter is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. And many subsequent old statutes expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or the process of the common-law. ”

“ There is not, and never has been, a question connected with either, in which we do not find every Englishman appealing to the common law, or to the charters and statutes of England, as defining the nature and as furnishing the best protection of his rights. ”

“ France, since her Revolution, is under the sway of a sect whose leaders have deliberately, at one stroke, demolished the whole body of that jurisprudence which France had pretty nearly in common with other civilized countries. In that jurisprudence were contained the elements and principles of the law of nations, the great ligament of mankind. With the law they have of course destroyed all seminaries in which jurisprudence was taught, as well as all the corporations established for its conservation. ”

“ All laws, whether emanating from an absolute monarch or from the representatives of the majority of a state, are mere expressions of the will of the sovereign power, which may be exacted by force. The second use of the word LAW is a record of our experience—e.g., we see the tides ebb and flow, and conclude it is done in obedience to the will of a sovereign power ”

“ The whole life of the Commune is embraced in the statutes: the election and functions of political magistrates; public, civil, criminal, administrative, and commercial law. Public law is the subject most fully dealt with; while, for reasons already explained, civil law is left very incomplete. Nevertheless the statutes handle, with more or less detail, such matters as personal status, dowers, contracts, judicial procedure, succession, wills, rights arising in respect of contiguous lands or houses, and, above all, the family. ”

“ Moreover, these statutes, which at any moment may revolutionize a man's liberty or his property, are not as they were in old times—a mere codification, or attempt at the best expression of a law already existing and well "understanded of the people" ”

“ Thus Napoleon, on the eve of the 18th Brumaire, complained that France, with a thousand folios of law, was a lawless nation. Unquestionably, the political state suffers in authority by the abuse of legislation, and especially by the appeal to law to curb evils that are best left to individual conscience. ”

“ In each of them modern legislation has swept away the arbitrary inferences of lawyers, and has gone back to those simpler principles which the untutored wisdom of our forefathers never thought of calling in question. I could easily make the list much longer. Every act which has restrained the arbitrary prerogative of the Crown, every act which has secured or increased either the powers of Parliament or the liberty of the subject, has been a return, sometimes to the letter, at all times to the spirit, of our earliest Law. ”

“ The whole future will of each individual is concentrated into the one moment when he declares his willingness to participate in the commonwealth; and this extending the present will so as to embrace the whole future, changes the expressed common will into LAW. In so far as the common will determines how far the rights of each person shall extend, the law is called Civil Law; and in so far as it determines the punishment which shall follow a violation of the law, it is called Penal or Criminal Law. ”

“ Their draft of the new code was discussed in the Council of State, and the First Consul had many suggestions to make. The resulting codification of the civil law—the Code Napoléon—is still used to-day, not only in France, but also, with some modifications, in Rhenish Prussia, Bavaria, Baden, Holland, Belgium, Italy, and even in the state of Louisiana. The criminal and commercial law was also codified. These codes carried with them into foreign lands the principles of equality upon which they were based, and thus diffused the benefits of the Revolution beyond the borders of France. ”