in some instances expressly directed, that the old usages should remain in force; and, after the antient Codes and Capitularies fell into disuse, these customs greatly multiplied. The monarchs of the Capetian line, in the charters by which they granted fiefs, prescribed the terms on which they were to be holden; and, in imitation of their sovereigns, the great vassals of the crown granted their charters for regulating the possessions holden of them. Thus each seignory had its particular usages; and such was their diversity that, throughout the whole kingdom, two seignories could scarcely be found which were governed in every point by the same law. Charles the Seventh, some time after he had expelled the English from France, (i. e. in the year 1453,) adopted a plan for ascertaining rather than reducing to uniformity these various usages. By his letters-patent, he assembled the three estates in each province; and, under the direction of this assembly, the judges, greffiers, and the other judicial and ministerial officers, prepared memoirs of all the customs, usages, and forms of practice, which they had been accustomed to observe from traditionary authority. These memoirs were laid before the assembly, who referred them to chosen committees, to arrange and report their contents. The minutes thus framed were read in the assembly; and the articles being separately approved or corrected, according to the knowlege and suggestions of the individual members, the whole was ratified and transmitted to parliament to be registered. The customs of each place, thus reduced to writing and sanctioned, were called the Coutumier of that place; and these were formed into one collection, and called the Coutumier de France, or the Grand Coutumier. As we may readily suppose, the variation in these customary laws was so great, that the Chancellor D'Aguesseau regarded the project of Bourjon, of finding out a common principle among them all, as wholly impracticable. The impossibility of superseding or of reconciling this variety of local jurisprudence frustrated all the good effects that were intended by the measure of Louis XIV.; and, while the excellence of the Marine Code of that monarch, which was not impeded by a similar obstacle, has led to its adoption as a standard by the consent of most European nations, the Civil Code became altogether ineffective.

In this state of things, the Revolution, by levelling the antient edifice to the ground, afforded the only possible means of removing the evil. Advantages that are purchased at a price so much above their value should least of all be neglected; and both the design and the execution of a systematic code, which might give to France the benefit of an uniform jurisprudence,

must

must be applauded as the wisest and most salutary measure which its existing condition could suggest. The several parts of the work were not published at one time, but the respective titles or heads were promulgated as each received the sanction of the legislature at different periods, between the 15th of March 1803, and the 25th of March 1804.

We shall now take a succinct view of the principal contents of the Code; which we shall do the more summarily because we have already performed the same task in our review of the Discussions on the Civil Code, (see Appendix to Vol. lv. p. 449. and Appendix to Vol. lvi. p. 449.) and shall consider this article as only a supplement.

The arrangement is the same with that which prevails in the Institutes of Justinian, and is the most simple and natural which the subject admits, viz. proceeding from Persons_to Things. The first title regards the Enjoyment and the Privation of Civil Rights. The second regulates the form of the Public Registries, or what are called Acts of the Civil State; a most useful and important ordinance, by which a register is provided for births, marriages, and deaths. Whether any provision of this sort existed under the old order of things, we are not able to say: but, if it be newly introduced by the present system, it is a strong recommendation of the good sense of the new legislators. The heads of Domicile and Absentees occupy the third and fourth titles. The regulations regarding the latter are numerous and minute; arising, probably, from the peculiar circumstances of the country, in consequence of the emigration caused by the Revolution.

The fifth title concerns the important subject of Marriage: which is divided into separate chapters, relating first to qualifications and conditions, and secondly to the formalities necessary to constitute a good marriage. The age at which marriage may be contracted is eighteen for the man, and fifteen for the woman: but it requires the consent of parents or guardians for the son who has not attained the age of 25 years, and for the daughter under 21. Of the formalities relative to the celebration of marriage, the most remarkable feature is that the ceremony is performed and the union declared by the civil officer, without any mixture of spiritual interference. This is a very wide departure from the antient establishment; and we shall venture to predict that the prejudices of old times will restore the solemnity of this institution to the ecclesiastics. The puritanical government formerly established in this country, in its zeal to depart as far as possible from the ceremonies of the Romish church, by an ordinance passed in 1653 abolished the old marriage-service, took it out of the hands of the miniREV. MAY, 1814.

F

ster,

ster, and vested it in those of the Justice of peace; making him merely the witness to the mutual consent of the parties to the union, which was placed on the footing of a civil contract merely. It is probable, however, that the people themselves still adhered, from invincible custom, to the religious rites with which it had been usual to accompany this ceremony; because, in the year 1656 the ordinance of 1653 was modified by leaving out the clause which declared all marriages, that had been solemnized in any other manner than as therein directed, to be. void. The forms requisite to give validity to a marriage, by the French, are well calculated to prevent, even more carefully than our marriage-act, the evil of clandestine unions. The obligations arising from marriage, and the rights and respective duties of husband and wife, occupy the rest of this title.

A subject which naturally follows the preceding, and forms the sixth title, is that of Divorce. While the matrimonial union was ranked among the sacraments of the church, it could not admit of dissolution except by the spiritual interference of the Holy See but, in consequence of its change into a contract of a merely temporal nature, it may be rescinded by the civil authority. The causes of divorce are adultery; excess, cruelty, or grievous injurics; condemnation of one of the married parties to an infamous punishment; and, lastly, the mutual and persevering consent of the parties, expressed in the manner prescribed by law. The complaint must be laid before the judge of the tribunal; and, except for adultery or condemnation to infamous punishment, the divorce cannot be pronounced immediately, but the parties must undergo a year's probation, separated from each other's society: if, at the end of that time, they persist in their resolution, the tribunal is to pronounce the sentence. Divorce by mutual consent, without any of the foregoing causes assigned, cannot take place if the husband be under 25, or the wife under 21, nor before two years or after 20 years of marriage; nor unless authorized by their fathers or mothers, or other ascendants, whose consent is required for the marriage of parties under age.

Title 7th relates to the rights of Paternity and Filiation, and the eighth to Adoption. -These subjects, as well as those of Minority, Guardianship, and Emancipation, bear a great affinity to the rules of the civil law, from which many of them are borrowed. Such are the principal topics of the first book. The second, relating to things, is intitled of Property, and different modifications of ownership. The laws respecting the use and enjoyment of property, as they regard chiefly the particular modes of cultivation and tenure in France, do not afford any thing interesting to an English reader.

8

Book IIId

Book IIId and last is by much the most comprehensive. It comprizes the different ways in which ownership is acquired, including Succession, Testaments, Gifts, and, lastly, Contracts: but we shall spare our readers a repetition of what we have already noticed sufficiently in former articles.

The observation which strikes an English inquirer, on the perusal of this part of the Code, is that no distinction is made in the rules which regulate the transfer or possession of real and of personal property. This is agreeable to the plan of the Roman law, and forms the most fundamental difference between that and the feudal law. It is not the least remarkable feature in our jurisprudence, though the natural consequence of the mixed sources from which it springs, that not more diversity exists between the laws of different nations than between those of our own country, as they relate to the descriptions of property which we distinguish by the denominations of real and personal. The modes of ownership, possession, and transfer, the succession, rights, and incumbrances of each, are governed by maxims not only entirely dissimilar, but often directly opposite to each other. It is foreign from our present purpose to discuss the merits or disadvantages of such a system, or to examine whether it would occur to a legislator to devise an original system of jurisprudence after a similar plan: it certainly was, with respect to our laws, the effect of no such original design, but of accidental causes which, during the vigour of feudal institutions, made personal property of so little consequence as to be scarcely the object of legal regard. In the Roman law, the distinction between real and personal property, except in the term of prescription, is seldom discoverable; and the same principle of uniformity is adopted in the French Code, which recognizes no distinction in the legal qualities and incidents of the two kinds of property, except such as inseparably adhere to the nature of each.

We cannot dismiss this subject without noticing a topic which the present discussion naturally awakens. It is common to attribute the obscurity, delay, and expence of litigation in this country, to the multifariousness and variety of resolutions that constitute the law of the land; which require a library to be ransacked on every question, keep the bulk of the community in ignorance of their rights, and oblige them to commit their interests blindly to professional guides, who are seldom agreed, and almost always dubious. It is a notion eagerly entertained by many, that the formation of a code in digest would remove all this obscurity and uncertainty, render the knowlege of law simple and accessible, and annihilate litigation. We do not concur in the extent of these expectations, nor believe that the Code Na

F 2.

poleon,

poleon, or any other code, ever will produce such an effect as to answer the hopes of those who are persuaded that nothing more would be necessary on every question that could arise, than to open the reformed digest, and find a solution of all difficulties. The Code Napoleon is only a summary of principles: but the application of these to particular cases, which forms the law to which Judges must appeal, will gradually accumulate, till in process of time, and by the fluctuations of society, the attainment of legal knowlege will be as intricate and ambiguous as ever. The chicanery of mankind, and the infinite combinations of circumstances, will give rise to questions on the import and construction of the articles of the Code; and the precedents established by decisions of these questions will thenceforwards constitute a necessary comment on those articles for the guidance of future judgments. Let us observe what has happened with regard to certain portions of our own law. The acts known by the names of the Statute of Frauds and the Statute of Distributions may be deemed particular codes, as applicable to the subjects which they concern. The first of these was drawn up with the most attentive care by the most correct lawyer of his own or any other time, Sir M. Hale; yet it is well known to every professional man that the resolutions and authorities, according to which these acts are now interpreted, form a very voluminous collection.

It is, however, of no small moment to have a body of clear and well-digested principles to which we may resort; and we do not think that the most prejudiced judges of the fallen dynasty, will deny that the merits of the Code Napoleon ought to protect from entire reprobation the name which it bears.

The first volume of the work before us consists of an elaborate introduction by the translator, which contains an account of the most remarkable of the antient systems of jurisprudence, viz. the Jewish Law, the Ordinances of Menu, the Ta Tsing Leu Lee, the Zend Avesta, the Laws of Solon, the Twelve Tables of Rome, the Laws of the Barbarians, the Assizes of Jerusalem, and the Koran. Mr. Barrett has collected a great portion of learning on these several subjects; and we are sorry that our present limits preclude us from that examination of the Introductory Discourse, which it might well merit as an independant production.

ART.