traced up and resolved into 2281 general rules. Each article of the code therefore contains a general principle involving a large number of cases, and it is the office of jurisprudence to expound these general principles by sound juridical reasoning, and apply them to cases as they occur in the business of life; and it is supposed that every possible combination of facts, to which the various transactions of active life can give rise, may, by just and logical induction, be shown to fall within the principle of some article of the code. The subject will be best illustrated by an example. The 1235th article of the code is in

these terms:

'Every payment supposes a debt; what is paid without being due is subject to repetition.

The recovery back is not permitted in regard to natural obligations, which have been discharged.'

The legislature does not undertake to give a reason for the law, nor define the terms which it uses. It is expressed in the smallest number of words that will clearly give the meaning of the law maker. It is presumed that the professors of the law understand the language in which it is written. It is also taken for granted that the judicial tribunals are familiar with the principles of natural justice and universal equity, and it leaves them to interpret and apply the general rule in conformity with these principles; not the principles of any artificial system of natural law, nor of any particular theory of moral obligation, but by those general and obvious rules of right, which impress themselves on all mankind in the same manner; by those maxims of natural reason and common sense, to which the human mind assents under all circumstances and conditions. The code does not therefore proceed to describe what it is that constitutes a natural obligation. To describe the nature of such obligations, to point out that which constitutes their essence, and to enumerate and distinguish the various species, is properly within the province of jurisprudence and doctrine. Let any man attempt to make the enumeration, and he will soon find the difficulty of rendering it complete.

It is sometimes said that all obligations are derived from the law. The word is defined by Tribonian to be vinculum juris. Instit. L. 3, 14, 1; and there may be many which can be traced to no higher origin. 6 Toull. 379. But most obliga

tions may be followed back to a higher source, which exists independently of the law. To these the law merely comes in aid and lends its power to enforce them. In all conventional obligations it is the will of the individual expressed in the agreement that binds him, and the law accedes to the obligation expost facto to compel its execution. That it exists independently of the law is certain, because the law cannot dissolve it. The most it can do is to withhold its agency in enforcing its execution; and these obligations are by the law itself viewed as subsisting, even when it refuses, from motives of general policy and considerations of public order, its direct agency in carrying them into effect. It allows their validity as an exception by way of defence when it will not support them as the foundation of an original action. And when the obligation is acquitted by the person bound, he will not be relieved from his own voluntary act on the ground that it is without consideration. It is this principle of natural justice that is recognised in the latter clause of the above article, and which is sanctioned in every system of just and enlightened jurisprudence.

But dropping these general observations, we will proceed to show the manner in which the code is expounded by the commentators, confining ourselves to the latter clause in the article. Toullier has explained this with several analogous articles of the code in the eleventh volume of his Droit Civile Francais. Pothier has also a treatise upon it, which makes the third part of his Traités des Contrats de Bienfaisance, and the law itself is derived from the civil law, and makes the subject of the 6th title of the 12th book of the Pandects.

If a minor, or a married woman without the authorization of her husband, borrow a sum of money, no action will lie to recover it back, without the creditor proves that it was beneficially employed by the borrower. Such persons, on principles of public policy, are placed in a state of wardship and rendered incapable of binding themselves by their contracts. But though the law confers no civil rights on the lender, it imposes a natural obligation on the borrower to repay the money. If the woman, therefore, after the death of her husband, or the minor, after arriving at his majority, pay the debt, it is considered as the acquittal of a natural obligation, and the money cannot be recovered back. Toull. vol. 11, No. 87.

When the civil obligation is cancelled by a perpetual bar, but one that does not extinguish the natural obligation, the latter is considered as still subsisting. If a man, therefore, pays a debt after it is barred by a prescription or by the statute of limitations, with the knowledge that the time of prescription has run out, he cannot recover it back.

Another example is where a man pays a debt after a judgment in his favor by a court in the last resort. The presumption of verity, which the law attaches to a judgment, cannot change the truth of things; it can only exclude the civil remedy. The right of action still subsists on the immutable principles of justice, which are anterior to the civil law. But the law ut finis sit litium permits the debtor to plead the judgment as a perpetual bar. If, however, he pays the debt after he has acquired this peremptory exception, he is presumed to pay it from a consciousness that the judgment which has discharged him is unjust, and thus the natural obligation still subsists. This presumption stands on satisfactory reasons when he pays after he knows of the judgment in his favor. No other motive can be assigned for his paying it, than the internal conviction that it is justly due, and that the equity of his own conscience will not permit him to protect himself behind a legal exception from paying a just debt. This doctrine is supported by the text of the Roman law. Judex si male absolverit, et absolutus sua sponte solverit, repetere non potest. Pand. 12, 6, 22. Licet enim absolutus sit, natura tamen debitor permanet. Pand. 12, 6, 60.

If the payment be made by the debtor before he knows of the judgment in his favor, the posture of the case will be somewhat changed. Pothier thinks that the presumption should be extended to this case. His reasoning is that it is not the knowledge which the debtor has of the judgment which excludes the repetition of the sum paid; it is the natural obligation which the judgment leaves subsisting, and which is in force whether he knows of the judgment or not. Traité Condictio Indebiti, No. 145. The reasoning of Pothier has not in this case his customary exactness. Toullier combats his opinion and refutes it, as it seems to us, by solid reasons. It is the precise fact of the knowledge, which the debtor has of the peremptory exception, which he has acquired in his favor, that raises

the presumption against the presumed verity of the judgment, that he paid the debt in compliance with the natural obligation which the judgment had not extinguished. This, according to Voet, is the doctrine of the civil law. Ad Pandectus 12. 6. 4. If paid before the debtor has knowledge of the judgment it would stand on precisely the same reasons as a payment made during the pendency of a suit, and it could with no more certainty be inferred that the payment was an acknowledgement of the debt in one case than in the other. But a payment while a suit is pending may be recovered back on full proof, which must be given in all cases, that the debt was not justly due. The only exception is when the payment is made under what is technically called in the civil law a transaction, or what we should call a compromise. And when a payment is made in the case which we are considering, the law will not presume a transaction, so as to exclude proof that there was nothing due. Toull. vol. 11, No. 88.

Suppose a legacy to be void from the incapacity of the testator or from a want of formality in the execution of the will, and the legacy paid by the heir; if it is done with a knowledge of the infirmity of the will, it cannot be recovered back. Though in strictness it may be argued that the heir is not under a natural obligation to pay it, yet the law will presume that it was paid from a just and honorable motive of respect for the memory of the deceased, and the commendable desire of carrying into effect the last will of the testator, though made known in an instrument that is void. The payment cannot be said to be without a reasonable cause and is not subject to repetition. 11 Toull. 72-80.

A note or bond is extorted from a man by duress, and he pays the bond. He will not be allowed to recover it back on the simple proof that it was extorted by that degree of violence, which may justly be supposed to overcome the constancy of a man of ordinary firmness. He must prove further that the violence continued until the bond was paid. Otherwise it will be presumed that though the bond was legally void, the payment was made to preserve the sanctity of his word and the purity of his honor. For a promise, though extorted by duress, is still a promise. Coacta voluntas est t men voluntas. It would be otherwise, if a man paid a bond or note extorted from a parent.

If, after he has paid it, he discovers the infirmity of the bond, on proof that it was extorted by violence, it will be presumed. that he paid it, not knowing it to be void. 11 Toull. 73.

A mother erroneously supposes that she is bound by a marriage contract to give her daughter an advancement on her marriage, and pays it under this erroneous belief. When she afterwards discovers her error, she cannot recover it back on proof that she paid it under a mistake of her liability. The natural duty of parents fo favor the establishment of their children is a just cause or good consideration for the payment, and this natural obligation excludes the recovery back. This is the decision of the civil law. Sublata enim falsa opinione relinquitur pietatis causa, ex qua solutum repeti non potest. Dig. 12. 6. 32. If, however, the parent had been indebted to the child on another account, the law would impute the payment to this debt, and it would not be presumed to be a payment under the marriage articles which had been misinterpreted. 11 Toull. 29.

It would be easy to multiply examples, but those we have given are sufficient for our purposes, which are to show, in the first place, how large a number of cases may by just logical induction be decided by the proper application of a single general principle; and in the second, how principles common to every system of jurisprudence are opened and explained by the commentators on written law, and in what manner a body of sound doctrine and rational jurisprudence grows up and arranges itself around the sententious and pregnant text of a well digested code. It is easy to perceive that an attempt to exhaust the whole subject by a complete enumeration of all the cases, which may arise under the general principle, and thus render the jurisprudence under this article perfect at once, must almost unavoidably prove a failure. The code therefore wisely confines itself to the general principle, and leaves to the speculation of the sages of the law, to the practice of the courts, and above all to time and the experience of society, to fill up the jurisprudence. The most approved commentators refer sparingly to arrets or decisions of the courts in particular cases. Courts must decide such cases as are brought before them, and but a small proportion of them will be of a character so well adapted to expound and open the sense of the law as those which may be imagined by the commentator or such as he may find in the