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Law Magazine & Law Review:
QUARTERLY JOURNAL OF JURISPRUDENCE.
ART. I.-CONCORDANCE ENTRE LES CODES CIVILS ETRANGERS ET LE CODE NAPOLEON.
Par M. ANTHOINE DE ST. JOSEPH, Juge au Tribunal de Première Instance de la Seine, etc. Ouvrage terminé et publié par M. A. de St. Joseph, son fils. 4 vols. Cotillon. Paris, 1856.
FIRST comparison of the laws of England with those of the continental nations painfully brings before us the fact, that while we have pursued the practical detailed administration of law, and have had a great measure of success in this respect, we have wholly neglected the cultivation of juridical method and the expression of the higher and broader principles of scientific jurisprudence. We find ourselves quite in the rear of all the principal nations of the Continent in the expression of our scientific principles, and the orderly and systematic arrangement of details. In the mass of the laws of the civilized world presented to us in these volumes, we have found some difficulty in selecting what to fix on first for consideration; but as the Code Napoléon is made the metewand or standard of comparison for all the systems of laws here collected, and as that code has been said, by one so eminent as M. Bigot Preameneu, to have become in a great measure "the Common Law of Europe;" and further, has been held up
VOL. II. NO. III.
as a model for codification, we shall make that our first and principal subject.
The merits of the Code Napoléon have been keenly contested; but whatever its defects, that it has been of immense benefit to France is manifest from a very slight acquaintance with the history of the laws of that country; that it has exercised a very extensive influence over the legal systems of a large part of the other continental nations, is equally clear; and notwithstanding the disapproval it has met with from M. de Savigny, and some of the most eminent jurists in Germany, it cannot fairly be denied that it has contributed materially to advance juridical science throughout the world, not only by its own merits, but from the strenuous opposition with which it has been encountered. Whether, however, the example set in France, and so largely followed on the continent, should be adopted in England; whether the English system of law would be advanced or deteriorated by reduction into a code; whether the Code Napoléon should be our model or our warning-are questions which demand fair and deliberate consideration, and which must be determined by dispassionate examination and reasoning, and not by prejudice on the one hand, or blind enthusiastic admiration on the other. These considerations are forced upon us by the volumes before us. The other four great nations of Europe -Russia, Prussia, Austria, and France-have codes, and in this work a whole army of continental codes presents itself in array against our insular peculiar English system, so long branded as an unwieldy, undigested, chaotic mass. Few perhaps will be willing to believe it can be a serious question whether we should be benefited by adopting as a pattern any, even the very best, of the codes which have ever yet been devised. But examination renders this more than doubtful.
Ere discussing the materials before us, we must remark that the title of this work does not convey to English ears its true character. Whatever meaning the word concordance may convey to Frenchmen (and in legal matters they are in the habit of using words common to both languages in new, enlarged, or restricted senses unknown to us1), with us the word refers essen
"Legislation" with them means a system or body of laws, not the act
tially to agreement (concord). In our sense a concordance, verbal or material, may be found of the works of an author, or of a series of works proceeding from one mind, because all the parts are as concordant as the author's own mind. But the laws of different nations, as far as they portray the peculiarities of the national mind, are discordant. It is true that among European nations the influence of Rome and of our common Christianity, as well as the Germanic mixture of the races and the extended sway of the feudal system, have produced many great features of resemblance; but a collection of those points of resemblance would be of comparatively little value. The present work is rather a comparison of the systems of law (des législations comparées) of about forty civilized states with the Code Napoléon. The original arrangement of the codes of most of the nations which have codes is preserved, and references are made to the Code Napoléon whenever there is either an analogy or difference which deserves notice; but where the rule of foreign law corresponds with the Code Napoléon, the rule is omitted; so that in truth the work is rather an exhibition of the differences, than, in an English sense, a concordance of foreign laws. And, besides the point on which we are mainly interested, namely the comparison between English and continental law, it presents three classes of systems of law: First, those codes of law which originated from the French code, or have been formed on it as a model; secondly, those codes which are wholly independent of the French one; thirdly, those systems of law which have not been reduced to a code, and among which our own system is the most important, not only in the contrast it presents to the codified system, and the importance of the nation amongst the powers of Europe, but also from its independent insular origin, and its entirely different methods of development.
We shall endeavour not to weary our readers with too much of the commonly known history of the French codes; but in
of making laws; so that des législations comparées means compared systems of law. "Jurisprudence," not the divinarum et humanarum rerum notitia, justi atque injusti scientia, but the series of decisions of a court, its particular mode of judging of a question.
order to form any opinion of the applicability of a code, even the best which has been formed, we must examine a little the favourable circumstances under which it originated, how it was formed, and how it has worked.
Much credit is due to the Emperor Napoleon I. for the code which he gave to France; but at the time when he became first consul, the course of events had rendered it necessary to provide a new system of law, and the studies and pursuits of French jurists of the past generation had prepared the materials which enabled him to do so efficiently. The time and the circumstances of the French nation were as favourable as can be conceived for extensive legislation of the most unshackled character, and to Napoleon's sense and prudence must be attributed the practical excellences of the French codes.
Before the Revolution, France consisted of a number of separate states united under one head. The supreme power was originally the suzerain of powerful feudatories, and having sprung from the like position with themselves, the first among equals, he had at first little or no authority over the rest of France. Two distinct systems of law pervaded the country; the south was governed by the Roman law with a mixture of Germanic principles and feudal notions, and the north was governed by customary law derived from the Germanic invaders, not unaffected by—indeed largely imbued with--the principles of Roman jurisprudence. The kings of France gradually united the great fiefs to the crown, and assumed and had long exercised a power, with the aid of the local parliaments, of making laws for the whole of France; so that at the time of the French revolution the French law consisted of royal ordinances, Roman law, and the customary law of each district. The customary laws were limited in their application to particular districts, and were so numerous, that Voltaire declared that in travelling through France one changed the laws as often as one changed horses. This was no doubt an exaggeration. The exact number of systems of customary law which existed in France is not agreed upon. Ferriere says there were 300, Fleury 285, Dupin 550 different customs governing the nation. The want of an uniform system of law for the whole kingdom had long been