A history of French private law

Front matter

THE LIBRARY

OF

THE UNIVERSITY

Introduction To Private Law

ORIGIN OF THE FAMILY, OF OWNERSHIP, AND OF THE STATE

Topic 1. Origin of the Family, §§ 1-32 1-29

§ 1. In General. § 2. Theories of the Evolutionists. § 3. First Stage. Promiscuity or States bordering upon it. § 4. The Consequences of Promiscuity. § 5. Second Stage. Matriarchate. — Evolution towards the Maternal Family. § 6. The Prohibition of Incest. § 7. Marriage by Groups. § 8. Polyandry. § 9. Among the Reddies. § 10. Exogamy. § 11. Organization of the Maternal Family. Relationship through the Same Mother. § 12. Third Stage. Patriarchate. § 13. Formation of Marriage. — (I) Abduction. § 14. The Same. — (II) Purchase. § 15. Marriage by Servitude. § le. Effects of Marriage. Status of the Wife. § 17. The Position of Children. § 18. Levirate. § 19. The Recognition of Paternity. § 20. Adultery. § 21. Agnatic Relationship. § 22. Systems of Succession. § 23. Ancestor Worship. § 24. Family Communities. § 25. Dissolution of Family Communities. Evolution towards the Simple Family. § 26. Polygamy. § 27. Evolution towards Monogamy. § 28. Forms of Transition. § 29. Monogamy. § 30. Evolution towards the Independence of Children. §§ 31, 32. Evolution towards the Emancipation of the Woman.

§ 33. Ownership of Movables and Ownership of Land.

A. collective ownership

§ 34. Collective Ownership of the Clan or the Tribe. § 35. The Ownership of Land among the Alemanni. § 36. Frankish Period. §§ 37, 38. The Germanic March. § 39. The Marches Disappear. § 40. Anglo-American Townships. §41. The "Mir." §42. The Village Community in India. § 43. The "Dessa" or Commune of Java. § 44. The Abandonment of Collective Ownership.

xvii

B. KEMAINS OF COLLECTIVE OWNERSHIP

PAGB

§ 45. (I) The Manorial System. §§ 46, 47. (II) The Rights of Pre-emption and Repurchase. §48. (Ill) The "Flurzwang." §49. (IV) The Rights of Commons. § 50. "Allmends." § 51. Feudahsm and Rights of Commons. § 52. Theory of the Feudists. § 53. Theory of the Romanists. § 54. The Revolutionary Law; § 55. Partition of Rights of Commons.

C. FAMILY JOINT OWNERSHIP

§ 56. Family Joint Ownership.

D. REMAINS OF FAMILY JOINT OWNERSHIP

§ 57. (I) Rules of Successions. § 58. (II) The Classification of Immovable Property into Personal Belongings and Acquests. § 59. Family Institutions in Our Period. § 60. (Ill) Rules of Feudal Ownership. § 61. (IV) The Process of Evolution towards Individual Ownership.

I. general remarks

§ 62. The Society and the State. § 63. Organic Theory of the State. § 64. Localization of Functions. § 65. Changes in Structure. § 66. Interdependence of the Parts. § 67. Organs and Apparatus. § 68. Political Forms. § 69. Personal Government. § 70. Social Distinctions. Classes and Castes. § 71. How are Societies Formed, Developed, and Reproduced, and how do they Die? § 72. The Factors of Social Evolution. § 73. Social Laws.

II. elementary and composite societies

§ 74. Primitive Societies. § 75. The Clan or the "Gens." § 76. The Maternal "Gens" among the Iroquois. § 77. The Celtic Clan. §78. The Roman "Gens." §79. The "Clientele." §80. The Germanic "Sippe." § 81 . The Germanic Following. § 82. The Tribe. § 83. The Gallic Towns and the Germanic Towns. Political Divisions. § 84. Classes of Population. § 85. The Political Function. § 86. The Political Organs. § 87. The Popular Assembly. § 88. Senate. § 89. Kings or Chiefs. § 90. Composite Societies. § 91. The Ancient Town and its Revolutions.

HISTORY OF PRIVATE LAW § 92. General Evolution 80

Chapter One

§ 93. General Ideas. § 94. Relationship. § 95. The House, or "mesnie" 82-86

Topic 1. Marriage. Legislation and Jurisdiction, §§ 96-100 87-92 § 96. Marriage after the Invasions. § 97. The Church and the Religious Marriage. § 98. Civil Marriage. § 99. Legislation and Jurisprudence of the Monarchic Period. § 100. The Revolutionary Law.

xviii

PAGE

§ 101. Barbarian Period. § 102. The Same. Betrothal Essential. § 103. Consent replaces Betrothal. The Canon Law. §§ 104, 105. Betrothal Restored.

Topic 3. Celebration of Marriage, §§ 106-110 101-110

§ 106. Canon Law Previous to the Council of Trent. § 107. Council of Trent. § 108. Civil Legislation. § 109. Marriage of Protestants. § 110. Revolutionary Law.

Topic 4. Concerning Impediments to Marriage, §§ 111-122 . 111-135 § 111. The Basic Conditions. § 112. Classification of Impediments. § 113. Invalidating Impediments. — (I) Lack or Defects of Consent. § 114. The Same. — (II) The Consent of the Relatives to the Marriage. § 115. The Same. — (Ill) Incapacity. § 116. The Same — (IV) Impediments resulting from Relationship. § 117. The Same. — (V) Incompatibility of Marriage with Certain other Conditions. § 118. The Same. — (VI) Prohibitive Impediments. §119. Preventing a Marriage. § 120. Dispensations. § 121. Nullity of Marriage. § 122. Rehabilitation and Repudiated Marriage.

Topic 5. Effects of Marriage, §§ 123-126 136-140

§ 123. The Legal Consequences. § 124. Adultery. §§ 125, 126. The Same: Penalties.

§ 127. The Death of one of the Spouses. § 128. Divorce. The Lower Empire. § 129. The Germanic Law. § 130. Canon Law. § 131. Judicial Separation. § 132. The Jurisprudence of the Parliaments. § 133. Reaction against Indissolubility. The Reformation. § 134. The Philosophers of the Eighteenth Century. § 135. Revolutionary Laws.

Topic 7. Second Marriages, §§ 136-140 152-157

§ 1.36. Barbarian Law. §137. The "Reipus." § 138. The "Achasius." § 139. Canon Law. § 140. Protection of the Children of the First Marriage.

Topic 8. Union Other than Marriage, §§ 141-143 158-162

§ 141. In General. § 142. Concubinage. § 143. Morganatic Marriages.

§§ 144, 145. Foundations of the Power of the Husband. § 146. Right of Correction. § 147. The Husband's Authority. § 148. The Incapacity of the Wife is General. § 149. How is the Authorization Given ? § 150. Supplementary Authorization Given by Law. § 151. Effects of Authorization. § 152. Lack of Authorization. — Beaumanoir's System. § 153. Rights of Third Parties.

Topic 10. The Paternal Power, §§ 154-168 178-201

§ 154. Sources of the Paternal Power. § 155. Origin. § 156. ''Mundium" and "Patria Potestas." § 157. The Same. — (I) The limited duration of the " mundium " in contrast to the perpetuity of the "patria potestas." § 158. The Same. — (II) The conception of family joint ownership. § 159. Transformation of the "Mun-

xix

PAGE

dium." § 160. Customary "Mainbournie." § 161. Rights over the Person. Correction. § 162. The Duties of Parents. § 163. Rights over Possessions. § 164. Capacity of the Child under Authority. § 165. Right of the Mother. § 166. Emancipation. § 167. Emancipating Majority. § 168. Revolutionary Law.

Topic 11. Concerning Illegitimate Children, §§ 169-176 . . 202-216 § 169. Germanic Law. § 170. Christian Ideas. § 171. The Law of the Monarchic Period. § 172. The Condition of Bastards. § 173. Proof of Natural Filiation. § 174. Revolutionary Law. § 175. Legitimation. § 176. Legitimation by Rescript from the Prince.

§§ 177-179. Adoption. § 180. Fraternization. § 181. Affihation or Foster-Brotherhood.

§ 182. In the Old Germanic Law. § 183. In Public Law. § 184. Changes in the Station of Women. § 185. German and Italian Law. § 186. In France. §§ 187, 188. Velleianum Decree of the Senate.

§ 189. Guardianship of Minors during the Barbarian Period. § 190. Suspension of Actions by or against the Minor. § 191. Intervention of the State. § 192. Feudal Law. § 193. Seigniorial Protection. § 194. The Lease of Fiefs. § 195. Rights of the Guardian. § 196. Obligations. § 197. Nobleman's Custody. § 198. Plebeian Custody. § 199. Citizen's Custody. § 200. Modern Guardianship. § 201. In France every Guardianship is Appointive. § 202. Powers of the Guardian. § 203. Guarantees in the Interest of the Minor. § 204. The Revolutionary Law. § 205. The Question of the Capacity of the Minor. § 206. The Barbarian Majority. §§ 207, 208. Under the Feudal System. §§ 209, 210. Emancipation of Minors under Guardianship. §§ 211-214. Persons who have attained Majority and are under a Disability.

Chapter Two Ownership And Real Rights

Topic 1. Divisions of Property, §§ 215-236 267-287

§ 215. General Remarks. § 216. (I) Movables and Immovables. § 217. Basis of this Division and its Extension. § 218. Movables and Chattels. § 219. Inheritances or Immovables. § 220. (II) Personal Belongings and Acquests. §§ 221, 222. Alienation "inter vivos." § 223. Inheritance of Personal Belongings. §§ 224, 225. Jointly held Personal Belongings. § 226. Proofs. § 227. (Ill) Things which do not Come Within Trade. Royal Prerogatives. § 228. Prerogative over the Ground. — Possessions without an owner. § 229. Expropriation. § 230. Confiscation. § 231. Property of the Enemy. § 232. Prerogative of Mines. § 233. Treasure. § 234. Estrays, Waifs. § 235. The Prerogative of Forests. §236. Prerogative over Waters.

§ 237. "Mobiha Non Habent Sequelam." § 238. The Barbarian Period. § 239. (I) Voluntary Dispossession. §§ 240-242. (II) Loss

XX

PAGE

or Theft. § 243. Feudal Period. — (I) Voluntary Relinquishment of possession. § 244. The Same. — (II) Loss or Theft. § 245. Market Overt. § 246. Reform in the Roman Direction during the Fourteenth and Fifteenth Centuries. § 247. Judicial Law of the Eighteenth Century.

Topic 3. Ownership of Land, §§ 248-258 305-314

§ 248. Real and Personal Rights. § 249. Real and Personal Actions. § 250. "Jus ad Rem." § 25L Ownership of Land. § 252. Restrictions on the Right of Ownership. §§ 253, 254. Freedom to Enclose. § 255. Limited Ownership. § 256. Joint Ownership with Joint Possession. § 257. The Community. § 258. Incorporeal Property.

§ 259. General Remarks. § 260. Canon Law. §§ 261, 262. Origin of the "Remedium Spolii." § 263. Prankish Period. § 264. Feudal Period. § 265. The Seisin. § 266. The Seisin is Acquired. § 267. Seisin under Law. § 268. Yearly Possession. § 269. Possessory Actions. Anglo-Norman Law. § 270. Assize of "Mort D' Ancestor" and Writs of Entry. § 271. The raising of the Hue and Cry ("Haro"). § 272. Possessory Actions in the French Customary Law. § 273. Beaumanoir. § 274. Fourteenth and Fifteenth Centuries. § 275. The Complaint in Cases of Seisin and Trespass. §§ 276, 277. The Procedure of the Complaint. § 278. Action of Simple Seisin. § 279. The Declaration of Recent Work.

Topic 5. Acquisition of the Ownership of Immovables. Occupation AND Prescription, §§ 280-290 350-366

§ 280. The Principal Methods of Acquisition "Inter Vivos." § 281. Occupation. § 282. Prescription. — Short and Long Prescriptions. § 283. The Year and a Day. § 284. "Rechte Gewere." § 285. The Tenure of a Year and a Day. § 286. The Tenement of Five Years. § 287. Good Faith. § 288. Immemorial Possession. § 289. The Roman Prescriptions. Prescriptions of Ten to Twenty Years and Prescriptions of Thirty Years. § 290. In the Sixteenth Century.

Topic 6. Acquisition of the Ownership of Immovables — Delivery, §§ 291-323 367-410

§ 291. The Transfer of Ownership by Agreement. § 292. Prankish Period. § 293. Real Investiture. §§ 294, 295. Symbolical Delivery. § 296. Putting in Possession in Fact. § 297. Juridical Effects of these Acts. § 298. Delivery "Per Cartam." §299. Feudal Period. §§ 300, 301. Fiefs and Copyholds. § 302. Freehold Tenure. § 303. Monarchic Period. § 304. (I) Customs of Public Nams. §§ 305, 306. The "Acts of Law." § 307. The Effects of Public Nams. § 308. The Pubhc Nams Customs. § 309. (II) Public Investiture by Means of Proclamation. § 310. (Ill) Investiture and Giving of Public Notice at Metz. § 311. (IV) German Law. § 312. (V) The Common Law of the French Customs. System of Pretended Delivery. § 313. The Same. — Origin. § 314. Formation of the French Practice. § 315. Conditions and Effects of Pretended Delivery. § 316. Estimate of the System of Pretended Delivery. § 317. (VI) English Law. § 318. (I) Freehold. — (A) Feoffment with Livery of Seizin. § 319. The Same. — (B) Lease and Release. § 320. The Same. — (C) Fine. § 321. The Same. — (D) The Common Recovery. § 322. (II) Copyholds. § 323. (Ill) Formation of Uses.

xxi

PAGE

Topic 7. Rights in Land and Encumbrances upon Landed Property, §§ 324-333 411-425

§ 324. Multiplicity of Rights in Land; Their Relations to Feudalism and Serfdom. § 325. Leases for a Long and a Short Term. § 326. Free Urban Tenure. § 327. Rents and Charges, or Burdens on Real Property. § 328. Rights of Profits. § 329. Usufruct. § 330. Right of the Beneficiary over an Ecclesiastical Benefice. § 331. Real Servitudes. § 332. The Same — (I) Natural Servitudes, § 333. The Same ■^ (II) Servitudes established by the Act of Man.

Topic 8. Restrictions upon the Freedom of Alienating Inter

§ 334. The Freedom of Grant "Inter Vivos." § 335. Repurchase. § 336. Disadvantages of Repurchases and Their Suppression. § 337. The Repurchases of the Civil Code and Actions of Subrogation. § 338. The Repurchasing by a Person of the Same Lineage. § 339. The Consent of the Relatives. § 340. Offer to the Next of Kin. § 341. Repurchase. § 342. Conditions of the Repurchase. — (I) Property Subject to the Repurchase. § 343. The Same. — (II) Acts which give rise to the Repurchase. § 344. The Same. — (III) Who has the right to the Repurchase? § 345. The Same. (IV) Against whom was the Repurchase allowed? § 346. The Same. — (V) The Repurchase of "half funds." § 347. Procedure. § 348. Effects of the Repurchase.

Chapter Three Obligations

§ 349. Number and Importance of Contractual Obligations in Modern Law. § 350. Characteristics of the Obligation in the Old Law. § 351. The Obligation in Modern Law.

§ 352. Public and Private Offenses. § 353. Offenses committed by One Family against Another. § 354. Characteristics of the Offense. § 355. Criminal Intent. § 356. Responsibility for the Act of Another. Damage caused by Animals or Inanimate Things. § 357. Pecuniary Composition. § 358. Family Solidarity. § 359. Damages. § 360. Putting Outside of the Law, and its Varieties. § 361. Concerning Special Kinds of Offenses.

§ 362. Mere Consent does not bind. § 363. Real Contracts. § 364. Formal Contract. "Fides Facta," "Arramitio," "Wadiatio." § 365. Forms and Cases in which the "Fides Facta" was applied. §366. The "Festuca." § 367. The "Wadium." § 368. Security. § 369. Consequences of Formalism. § 370. Formation of Contracts by Means of Writings.

§ 371. Persistence of the Law of the Frankish Period. § 372. Contracts in Re. § 373. Earnest Money. § 374. Faith-Pledging. Blow with the Palm of the Hand. § 375. The Promissory Oath.

xxii

PAGE

§376. The Rule "Solus Consensus Obligat." § 377. Contracts, in English Law. § 378. Obligations by Means of Writing and Written Proof.

§ 379. The Nullity of a Contract. § 380. Origin of the Theory of Nullity. § 381. Nullity and Rescission. § 382. Absolut-e Nullity. § 383. Relative Nullity. § 384. Rescission.

§ 385. Loan with Interest. — (A) Why was it forbidden? § 386. The Same. — (B) Sanction of this Prohibition. § 387. The Same. — (C) Reaction. § 388. Establishment of Rents. — (A) Origin. § 389. The Same. — (B) Rent-charge. § 390. The Same. — (C) Constituted rents. § 391. The Same. — (D) Life rents. § 392. Assignment of Claims. — (A) Early inahenability. § 393. The Same. — (B) Indirect means. § 394. The Same. — (C) Assignment. Transfer. § 395. The Same. — (D) Payment with subrogation. § 396. The Same. — (E) Bills to bearer and to order. § 397. The Same. — (F) Bills of Exchange. § 398. Agency and Representation. — (A) General Remarks. §399. The Same. — (B) "Salmannen." § 400. The Same.

— (C) Attorneys. § 401. Sale. — (A) Formation. § 402. The Same.

— (B) Effects. § 403. The Same. — (C) Warranty because of Eviction. § 404. The Same. — (D) Rescission of the Sale. § 405. Civil and Commercial Partnerships. — (A) Companies. § 406. The Same. — (B) Commercial Partnerships.

Topic 7. Means of Enforcement on the Person and Personal

§ 407. Voluntary Satisfaction. § 408. Compulsory Satisfaction. § 409. The Same: Execution upon the Person — (A) Self-help. § 410. The Same. — (B) Intervention of the Law. § 411. Imprisonment. § 412. The Surrender of Possessions. § 413. Suretyship. § 414. Hostage. § 415. The "Fidejussio" or "Plcgerie." § 416. Modern Suretyship.

Topic 8. Execution upon Possessions and Real Securities,

§§ 417-444 582-620

§ 417. Movables are the Seat of Debts. § 418. Pledging of Movables based upon an Agreement. — (A) Early Conception. § 419. The Same. — (B) The Pledge passes to the Condition of an Accessory Security. § 420. Private Distraint ("Pigneratio") upon Movables. § 421. Pledge by Legal Process. — (A) Barbarian Laws. § 422. The Same. — (B) Customany Law. § 42.3. Execution upon Immovables. Origin of Distraint upon Immovables. § 424. Land Distraint and its Procedure. § 425. The Same. — (A) Documentary Right. § 426. The Same. — (B) The Distraint Proper. § 427. The Same.

— (C) Public Announcements and Award. § 428. The Same. — (D) Preferences. § 429. The Same: Later Law. § 430. Forms of Realty- Mortgage. § 431. The Same: (I) Sale with Redemption. § 432. TheSame: (II) Land-Gage. §433. The Same: (III) "Bond." §434. The Same. — (A) The General Bond. § 435. The Same. — (B) The Special Bond. § 436. The Same. — (C) Comparison of the General Bond and the Special Bond. § 437. The Same: Hypothec-Mortgage. (1) Countries of Public Nam. § 438. The Same: (2) The so-called "Customary Common Law." Mortgage is Creatable only by Notarial Deed. § 439. The Same: Every Notarial Deed Implies a General Mortgage. § 440. The Same: Judgment Lien (Judicial

xxiii

Hypothec). Every Judgment Implies a General Mortgage-Lien. § 441. Implied Liens (Hypothecs). § 442. Consequences of the Mortgage. § 443. "Clearance." § 444. Revolutionary Law.

Chapter Four Intestate Succession And Gratuitous Conveyances

§ 445. Prefei'ence for Intestate Succession. § 446. Various Kinds of Succession. § 447. Plurality of Successions. § 448. Countries of Written Law. § 449. Reservation and Legal Share. § 450. Gratuitous Conveyances.

467 626-657

§ 451. The House and the Lineage. § 452. (I) The House. § 453. (A) Privilege of the Male Line. § 454. (B) The Right of Primogeniture. § 455. Lack of Representation. § 456. (II) Lineage (Ascendants and Collaterals). § 457. Succession to Personal Belongings. § 458. Ascendants. § 459. Collaterals. § 460. The Same. — (A) Nearest in Degree. § 461. The Same. — (B) Privilege of the Double Tie. § 462. The Same. — (C) Representation. § 463. The Same.

— (D) Devolution. § 464. The Surviving Spouse. — (A) Countries of Written Law. § 465. The Same. — (B) Countries of Customs. § 466. Irregular Successions. § 467. The Revolutionary Law.

§§468^85 658-683

§ 468. The Vesting of the Succe.ssion. § 469. Incapacity to Succeed. § 470. Disinheritance. § 471. Disqualification. § 472. The Role of the Heir. § 473. Acquirement of a Title by Inheritance. § 474. Hereditary Seisin. § 475. Acceptance and Rejection. § 476. The Same. — (A) Acceptance pure and simple. § 477. The Same. — (B) The renunciation. § 478. The Same. — (C) Time to make an inventory and deliberate. § 479. The Same. — (D) The privilege of the inventory. § 480. Partition between Co-heirs. § 481. Forms of Partition. § 482. Effects of Partition. § 483. Refunding. § 484. Payment of Debts. § 485. Separation of Assets.

§ 486. Neither Will nor Gifts "causa mortis." § 487. "Thinx" and Ceremony of Appointing an Heir. — (A) Adoption. § 488. The Same.

— (B) Affatomie. § 489. Covenants Pertaining to Succession. § 490. Gifts "Pro Amma"and Share of the Dead. § 491. Testamentary Executors. § 492. The Will. § 493. The Same. — (I) Jurisdiction. § 494. The Same. — (II) Capacity to make a will or to receive by will. § 495. The Same. — (III) The appointment of an heir. § 496. The Same. — (IV) Different forms of wills. (A) the Canon will. §497. The Same. — (B) Modern state of law. § 498. The Same.

— (V) Revocation of wills.

Topic 5. Gifts "inter vivos" and "causa mortis," §§ 499-507 . 703-715 § 499. The Formula of Loysel, 662. § 500. Gifts during the Barbarian Period. § 501. To give and to withhold is not Valid. § 502. Formalities. § 503. Incapacity to give and to receive. § 504. Gifts

xxiv

PAGE

between Spouses. § 505. Mutual Gifts. § 506. Revocation of Gifts. § 507. The Gift "causa mortis."

Topic 6. Covenants Relating to Inheritance, §§ 508-513 . 716-733 § 508. Covenants upon Future Succession. § 509. Renunciations of a Future Inheritance. § 510. Appointment by Contract. § 511. The Abdication of Possessions. § 512. Partition by Ascendants. § 513. Substitutions in Trust (Entails).

Topic 7. Reservation and Legal Share, §§ 514-518 .... 734-748 § 514. Barbarian Legislation. § 515. Feudal and Customary Law. § 516. The Legal Share (" legitime "). § 517. By what Right did one collect the Legal Share? § 518. The Revolution and the Civil Code.

Chapter Five System Of Property Between Spouses

Topic 1. Frankish Period, §§ 519-528 749-764

§ 519. System of the Husband's " Mundium." § 520. "Pretium Nuptiale" or Germanic Marriage Portion. § 521. The Gift of the Morning or "Morgengabe." § 522. Roman Marriage Portion, "Faderfium," "Maritagium." § 523. Rights of the Husband during the Marriage. § 524. Dissolution of Marriage. § 525. The Same. —

(A) The "Morgengabe." § 526. The Same. — (B) The "Pretium." § 527. The Same. — (C) The disposal of the share brought by the wife. § 528. Rights of the Wife over Property acquired jointly.

Topic 2. Dower and Other Rights by Survivorship, §§ 529-541 . 765-782 § 529. Dower. General Ideas. § 530. Conditions Requisite for the Existence of Dower. — (A) Kinds of dower. § 531. The Same. —

(B) The amount of legal dower. § 532. The Same. — (C) The seat of the Customary dower. § 533. The Same. — (D) The wife obtains her dower, upon going to bed. § 534. The Same. — (E) The forfeiture of dower. § 535. Rights of the Wife over the Dower. — (A) During the marriage. § 536. The Same. — (B) At the death of the husband. § 537. The Dower of Children. § 538. The Increase of the Marriage Portion. § 539. Rings and Jewels. § 540. Counter-Increase. § 541. Mourning and Residence.

§ 542. In General. § 543. English System. — (A) The Common Law. § 544. The Same. — (B) Courts of Equity. § 545. The Same. — (C) Act of the 10th of August, 1882. § 546. Norman System.— (A) Incapacity of the Married Woman. § 547. The Same. — (B) The Administration of the Immovables. § 548. The Same. — (C) Inalienability of the Marriage Portion. § 549. German System of Unity of Possessions. § 550. The Roman System of Marriage Portion. § 551. The Partnership of Acquests.

§ 552. Origin of the Community of Possessions between Spouses. Distinctive Characteristics of this System. § 553. Date of the Community. § 554. Causes which produced the Community and directed its Evolution. § 555. Various Forms of the Community. —

XXV

PAGE

(A) General Community. § 556. The Same. — (B) Partial Communities. § 557. Freedom of Matrimonial Agreements. § 558. What the Community Consists of. — (A) Assets. § 559. The Same. —

(B) The Liabilities. § 560. Administration of the Community. § 561. Part Played by the Wife. § 562. The Wife's Personal Belongings. § 563. The Dissolution of the Community. § 564. Continuation after Death. § 565. The Separate Estate (Judicial). § 566. Right of the Wife to Choose between Acceptance and Renunciation, § 567. Transactions Previous to Partition; Reinvestment and Recompenses. § 568. The Same. — (A) Recompense due from the Community. § 569. The Same. — (B) Recompenses due from the spouses to the Community. §570. Partition. — (A) Assets. § 571. The Same. — (B) Liabihties. § 572. The Married Woman's Mortgage.

Chapter Six Status And Capacity Of Persons

Topic 1. Certificates of Civil Status, §§ 573 - 576 862-866

§ 573. Early Methods of Proofs. § 574. Certificates of Religious Status. § 575. Certificates of Civil Status. § 576. Secularization of Certificates of Civil Status.

§ 577. Status and Capacity of Persons. § 578. Foreigners or Ahens. § 579. The Same. — (A) The Feudal Law. § 580. The Same. — (B) Transformation of the seigniorial right into a domanial right. § 581. The Same. — (C) Nationality. § 582. The Same. — (D) Disability of aliens or right of succession to the estate of deceased aliens. § 583. The Same. — (E) How did the Crown's succession to the estate of a deceased ahen disappear? § 584. Those Civilly Dead. § 585. Entering Religious Orders. § 586. The Penal Civil ^Death. § 587. Lepers and Outcasts.

§ 588. Political Bodies. § 589. Corporations (Bodies and Communities, Persons in Mortmain). § 590. Foundations, "Piae Causae."

INDEX 907

XXVI

By JOHN H. VVIGMOREi

A NARROW ridge of upland in southern Switzerland forces apart two streamlets, which afterwards wander away for a thousand miles and emerge as the Rhine and the Danube amidst different races on opposite sides of Europe. But no story of an intellectual separation, entrained by physical facts, is so interesting as that which was effected by the forty-mile Channel between France and England. Eight centuries ago it was possible to expect that there might be a political union and a common growth ; the Franks, the Normans, and the Saxons shared a common stock of Germanic law; France did not exist; Paris was not yet a real capital; the Loire was still a symbolic boundary between two tj-pes of civilization more different than Saxons and Franks; and northern France was capable of a congenial union with the Norman kingdom. Five centuries ago this had ceased forever to be possible; the persistent barrier of the Channel had done its work. Northern France had knit rather with Southern France; and French law was never to be the same as English law.

Yet at the outset of the intervening period the family traits possessed in common were striking. They attract us with the interest which we should have for brothers of the same family who are forced apart by circumstances and grow into totally different careers. Norman barons and clerks filled the judicial benches in England. French was the language of the forum. Numerous surviving legal terms — "mortgage," "nuisance," "attorney," "tort," "plea," "demur," and the rest — show us how thoroughly French lawyers influenced English law.^ In England, the Norman conquerors, few in number, did not and could not wholly displace the content of the institutions which they found; but at least they supplied form and method, and much more. On the French side, the Normans never acquired

' Professor of Law in Northwestern University, and chairman of the

Editorial Committee for this Series.

2 "It would hardly be too much to say that at the present day almost all our words that have a definite legal import are in a certain sense French words." Pollock and Maitland's "History," I, 58.

xxvii legislative domination; but the legal ideas which they knew and brought over were shared in the main features with northern France. The early records of legal custom — such as the " Etablissements" attributed to Louis IX, Beaumanoir's "Coutumes de Beauvoisis," and Bouteiller's "Somme Rurale" — are still good sources for throwing light on English law. Houard made a collection entitled "Anciennes lois des Francois, conservees dans les coutumes Angloises," which contains the text of Littleton, composed in the 1400s.

Political union of North and South France led after several centuries to formal legal unity, under the Code of Napoleon. Yet even here, in spite of the overspreading influence of Roman law and its jurists, the ancient influence of the North persisted; and Napoleon's Code has been called a Germanic rather than a Roman document. Law changes slowly, and only by organic growth, not by instant decrees of a legislator, like erasures from an inscribed slate. Modern French law never had a break in its growth. Everything stimulates us to follow back and compare its history with our own — both originating from our common ancestors, both administered once in a common language, and both developing slowly apart in the hundreds of principles which govern mankind's common stock of transactions. It matters not what part of the law we take, — wills, estates, torts, pleading, courts, jury, criminal practice, mortgages, or the rest, — our profession can never fail to be fascinated with watching the fate of our own familiar terms and ideas, amidst unfamiliar surroundings, in their steady growth further and further away from the common primal stages down into their ahen modern forms.

For this purpose no volume could be better suited than that of Professor Brissaud. French scholarship, to be sure, is ample in its array of works marked by the highest standards of modern research. It is indeed to be regretted that in this, as in other fields, the repute of German studies in the past generation has caused many of us to forget the at least equal merits of French scholarship; not less thorough in standards nor less broad in scope, it is generally more compact in method and more clear in style. In the field of legal history the names of Beaune, Esmein, Caillemer, Flach, Fournier, Fustel, Glasson, Huvelin, Tardif, Viollet, and others, are eminent in the present generation. But the work of Brissaud is peculiarly suited for our own profit. For,

xxviii while writing always a history of French law, the author's eye is kept upon the English sources at the common starting-points. Copious citations of them serve constantly to remind us of the earlier propinquities, and to assist us in our own comparisons of the later divergences.