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4i; ■




THE LIBRARY

OF

THE UNIVERSITY

OE CALIEORNIA

RIVERSIDE



THE CONTINENTAL
LEGAL HISTORY SERIES

Volume Three



HISTORY

OF

FRENCH PRIVATE LAW



The Continental Legal History Series

Publ'isJied under' the auspices of the

Association of American Law Schools



I. A GENERAL SURVEY OF EVENTS, SOURCES, PERSONS,
AND MOVEMENTS IN CONTINENTAL LEGAL HISTORY.
By Various Authors. Translated by Rapelje Howell, F. S.
Philbrick, John Walgren, and John H. Wigmore. $6.00 net.

II. GREAT JURISTS OF THE WORLD, FROM PAPINIAN TO
VON IHERING. By Various Authors. Illustrated. (Extra vol-
ume. By arrangement with John Murray, London.) $5.00 net.

III. HISTORY OF FRENCH PRIVATE LAW. By J. Brissaud, late
of the University of Toulouse. Translated by Rapelje Howell, of
the New York Bar. $5.00 net.

IV. HISTORY OF GERMANIC PRIVATE LAW. By Rudolph
HuEBNER, of the University of Rostock. Translated by Dr. Francis
S. Philbrick, of New York, N. Y. $4.50 net.

V. HISTORY OF CONTINENTAL CRIMINAL PROCEDURE. By

A. EsMEiN, Professor in the University of Paris, with chapters by
Francois Garraud, of the University of Lyon, and C J. A. Mitter-
MAiER, late of the University of Heidelberg. Translated by John
Simpson, of the New York Bar. $4.50 net.

VI. HISTORY OF CONTINENTAL CRIMINAL LAW. By Ludwig
von Bar, of the University of Gottingen. Translated by Thomas S.
Bell, of the Tacoma Bar. $4.00 net.

VII. HISTORY OF CONTINENTAL CIVIL PROCEDURE. By

Arthur Engelmann, Chief Justice of the Court of Appeals at Breslau,
with a chapter by E. Glasson, late of the University of Paris. Trans-
lated by Robert W. Millar, of Northwestern University. $4.00 net.

VIII. HISTORY OF ITALIAN LAW. By Carlo Calisse, of the Italian
Council of State. Translated by John Lisle, of the Philadelphia
Bar. $5.00 net.

IX. HISTORY OF FRENCH PUBLIC LAW. By J. Brissaud, late of
the University of Toulouse. Translated by James W. Garner, of
the University of Illinois. $4.50 net.

X. HISTORY OF CONTINENTAL COMMERCIAL LAW. By Paul
HuvELiN, of the University of Lyon. Translated by Ernest G.
Lorenzen, of the University of Wisconsin. $5.50 net.

XL THE EVOLUTION OF LAW IN EUROPE. By Gabriel Tarde,
Raoul de la Grasserie, and others. $5.00 net.



THE CONTINENTAL LEGAL HLSTORY SERIES

Published under the auspices of the
ASSOCIATION OF AMERICAN LAW SCHOOLS



A HISTORY

OF

FRENCH PRIVATE LAW



JEAN'BRISSAUD

LATE PROFESSOR OF LEGAL HISTORY IN THE UNIVERSITY
OF TOULOUSE



TRANSLATED FROM THE SECOND FRENCH EDITION

BY

RAPELJE HOWELL

OF THE NEW YOKlv BAB



WITH INTRODUCTIONS BY

W. S. HOLDSWORTH

READER IN ENGLISH LAW, ST. JOHn's COLLEGE, OXFORD
AND

JOHN II. WIGMORE

PROFESSOR OF LAW, NORTHWESTERN UNIVERSITY



BOSTON

LITTLE, BROWN, AND COMPANY

1912



KJJ



Copyright, 1912,
Bt Little, Brown, and Company.



All rights reserved



The University Press, CAMnRiPOE, U.S.A.



EDITORIAL COMMITTEE

OF THE

ASSOCIATION OF AMERICAN LAW SCHOOLS

Ernst Freund, Professor of Law in the University of Chicago.

CiiARLES H. HuBERiCH, ProfessoF of liaw in Stanford University.

Ernest G. Lorenzen, Professor of Law in the University of
Wisconsin.

Wm. E. Mikell, Professor of Law in the University of Penn-
sylvania.

John H. Wigmore, Chairman, Professor of Law in Northwestern
University.



LIST OF TRANSLATORS

Thomas S. Bell, of the Tacoma Bar.

James W. Garner, Professor in the State University of

lUinois.
Rapeue Howell, of the New York Bar.
John Lisle, of the Philadelphia Bar.
Ernest G. Lorenzen, of the Editorial Committee.
Robert W, Millar, Lecturer in Northwestern University.
Francis S. Philbrick, of Washington, D. C.
John Simpson, of the New York Bar.
John Walgren, of the Chicago Bar.
John H. Wigmore, of the Editorial Committee.



I might instance in other professions the obligation men lie under of
applying themselves to certain parts of History; and I can hardly for-
bear doing it in that of the Law, — in its nature the noblest and most
beneficial to mankind, in its abuse and debasement the most sordid and
the most pernicious. A lawyer now is nothing more (I speak of ninety-
nine in a hundred at least), to use some of Tully's words, "nisi leguleius
quidem cautus, et acutus praeco actionum, cantor formularum, auceps
syllabarum." But there have been la\vyers that were orators, philoso-
phers, historians: there have been Bacons and Clarendons. There will
be none such any more, till in some better age true ambition, or the love
of fame, prevails over avarice; and till men find leisure and encourage-
ment to prepare themselves for the exercise of this profession, by climb-
ing up to the vantage ground (so my Lord Bacon calls it) of Science,
instead of grovelling all their lives below, in a mean but gainful applica-
tion of all the little arts of chicane. Till this happen, the profession of the
law will scarce deserve to be ranked among the learned professions. And
whenever it happens, one of the vantage grounds to which men must
cUmb, is Metaphysical, and the other. Historical Knowledge. Henry
St. John, Viscount Bolingbroke, Letters on the Study of History (1739).

Whoever brings a fruitful idea to any branch of knowledge, or rends
the veil that seems to sever one portion from another, his name is written
in the Book among the builders of the Temple. For an English lawyer
it is hardly too much to say that the methods which Oxford invited Sir
Henry Maine to demonstrate, in this chair of Historical and Comparative
Jurisprudence, have revolutionised our legal history and largely trans-
formed our current text-books. — Sir Frederick Pollock, Bart., The
History of Comparative Jurisprudence (Farewell Lecture at the Univer-
sity of Oxford, 1903).

No piece of History is true when set apart to itself, divorced and iso-
lated. It is part of an intricately pieced whole, and must needs be put
in its place in the netted scheme of events, to receive its true color and
estimation. We are all partners in a common undertaking, — the illumi-
nation of the thoughts and actions of men as associated in society, the
life of the human spirit in this famihar theatre of cooperative effort in
which we play, so changed from age to age, and yet so much the same
throughout the hurrying centuries. The day for synthesis has come. No
one of us can safely go forward without it. — Woodrow Wilson, The
Variety and Unity of History (Address at the World's Congress of Arts
and Science, St. Louis, 1904).



CONTINENTAL LEGAL HISTORY SERIES
GENERAL INTRODUCTION TO THE SERIES

"All history," said the lamented master Maitland, in a memo-
rable epigram, " is but a seamless web ; and he who endeavors to
tell but a piece of it must feel that his first sentence tears the
fabric."

This seamless web of our own legal history unites us inseparably
to the history of Western and Southern Europe. Our main interest
must naturally center on deciphering the pattern which lies
directly before us, — that of the Anglo-American law. But in
tracing the warp and woof of its structure we are brought inevi-
tably into a larger field of vision. The story of Western Continental
Law is made up, in the last analysis, of two great movements,
racial and intellectual. One is the Germanic migrations, planting
a solid growth of Germanic custom everywhere, from Danzig
to Sicily, from London to Vienna. The other is the posthumous
power of Roman law, forever resisting, struggling, and coalescing
with the other. A thousand detailed combinations, of varied
types, are developed, and a dozen distinct systems now survive
in independence. But the result is that no one of them can be
fully understood without surveying and tracing the whole.

Even insular England cannot escape from the web. For, in
the first place, all its racial threads — Saxons, Danes, Normans —
were but extensions of the same Germanic warp and woof that
was making the law in France, Germany, Scandinavia, Nether-
lands, Austria, Switzerland, Northern Italy, and Spain. And,
in the next place, its legal culture was never without some of the
same intellectual influence of Roman law which was so thoroughly
overspreading the Continental peoples. There is thus, on the
one hand, scarcely a doctrine or rule in our own system which can-
not be definitely and profitably traced back, in comparison, till
we come to the point of divergence, where we once shared it in
common with them. And, on the other hand, there is, during all
the intervening centuries, a more or less constant juristic socia-
bility (if it may be so called) between Anglo-American and Con-

ix



CONTINENTAL LEGAL HISTORY SERIES

tinental Law; and its reciprocal influences make the story one
and inseparable. In short, there is a tangled common ancestry,
racial or intellectual, for the law of all Western Europe and ourselves.

For the sake of legal science, this story should now become a
familiar one to all who are studious to know the history of our
own law. The time is ripe. During the last thirty years Euro-
pean scholars have placed the history of their law on the footing
of modern critical and philosophical research. And to-day, among
ourselves, we find a marked widening of view and a vigorous
interest in the comparison of other peoples' legal institutions.
To the satisfying of that interest in the present field, the only
obstacle is the lack of adequate materials in the English language.

That the spirit of the times encourages and demands the study
of Continental Legal History and all useful aids to it was pointed
out in a memorial presented at the annual meeting of the Asso-
ciation of American Law Schools in August, 1909:

"The recent spread of interest in Comparative Law in general is
notable. The Comparative Law Bureau of the American Bar Associa-
tion; the Pan-American Scientific Congress; the American Institute
of Criminal Law and Criminology; the Civic Federation Conference
on Uniform Legislation; the International Congress of History; the
libraries' accessions in foreign law, — the work of these and other
movements touches at various points the bodies of Continental law.
Such activities serve to remind us constantly that we have in English
no histories of Continental law. To pay any attention at all to Con-
tinental law means that its history must be more or less considered.
Each of these countries has its own legal system and its own legal
history. Yet the law of the Continent was never so foreign to Eng-
lish as the English law was foreign to Continental jurisprudence.
It is merely maintaining the best traditions of our own legal litera-
ture if we plead for a continued study of Continental legal history.

" We believe that a better acquaintance with the results of modern
scholarship in that field will bring out new points of contact and
throw new light upon the development of our own law. Moreover,
the present-day movements for codification, and for the reconstruc-
tion of many departments of the law, make it highly desirable that
our profession should be well informed as to the history of the nine-
teenth century on the Continent in its great measures of law reform
and codification.

" For these reasons we believe that the thoughtful American lawyers
and students should have at their disposal translations of some of
the best works in Continental legal history."

And the following resolution was then adopted unanimously by
the Association:



CONTINENTAL LEGAL HISTORY SERIES

" That a committee of five be appointed, on Translations of Conti-
nental Legal History, with authority to arrange for the translation
and publication of suitable works."

The Editorial Committee, then appointed, spent two years in
studying the field, making selections, and arranging for trans-
lations. It resolved to treat the undertaking as a whole; and to
co-ordinate the series as to (1) periods, (2) countries, and (3)
topics, so as to give the most adequate survey wuthin the space-
limits available.

(1) As to j)eriods, the Committee resolved to include modern
times, as w'ell as early and mediseval periods; for in usefulness
and importance they were not less imperative in their claim upon
our attention. Each volume, then, was not to be merely a valu-
able torso, lacking important epochs of development; but was
to exhibit the history from early to modern times.

(2) As to countries, the Committee fixed upon France, Ger-
many, and Italy as the central fields, leaving the history in other
countries to be touched so far as might be incidentally possible.
Spain would have been included as a fourth; but no suitable book
was in existence; the unanimous opinion of competent scholars
is that a suitable history of Spanish law has not yet been written.

(3) As to iopics, the Committee accepted the usual Continental
divisions of Civil (or Private), Commercial, Criminal, Procedural,
and Public Law, and endeavored to include all five. But to repre-
sent these five fields under each principal country would not only
exceed the inevitable space-limits, but would also duplicate much
common ground. Hence, the grouping of the individual volumes
was arranged partly by topics and partly by countries, as follows:

Commercial Law, Criminal Law, Civil Procedure, and Criminal
Procedure, were allotted each a volume; in this volume the basis
was to be the general European history of early and mediaeval
times, with special reference to one chief country (France or
(jermany) for the later periods, and with an excursus on another
chief country. Then the Civil (or Private) Law of France and
of Germany was given a volume each. To Italy was then given
a volume covering all five parts of the field. For Public Law (the
subject least related in history to our own), a volume was given
to France, where the common starting point with England, and
the later divergences, have unusual importance for the history
of our courts and legal methods. Finally, two volumes were
allotted to general surveys indispensable for viewing the connec-

xi



CONTINENTAL LEGAL HISTORY SERIES

tion of parts. Of these, an introductory volume deals with Sources,
Literature, and General Movements, — in short, the external
history of the law, as the Continentals call it (corresponding to
the aspects covered by Book I of Sir F. Pollock and Professor
F. W. Maitland's "History of the English Law before Edward I") ;
and a final volume analyzes the specific features, in the evolution
of doctrine, common to all the modern systems.

Needless to say, a Series thus co-ordinated, and precisely suited
for our own needs, was not easy to construct out of materials
written by Continental scholars for Continental needs. The
Committee hopes that due allowance will be made for the diflS-
culties here encountered. But it is convinced that the ideal of
a co-ordinated Series, which should collate and fairly cover
the various fields as a connected whole, is a correct one; and the
endeavor to achieve it will sufficiently explain the choice of the
particular materials that have been used.

It remains to acknowledge the Committee's indebtedness to
all those who have made this Series possible.

To numerous scholarly advisers in many European universities
the Committee is indebted for valuable suggestions towards
choice of the works to be translated. Fortified by this advice,
the Committee is confident that the authors of these volumes
represent the highest scholarship, the latest research, and the
widest repute, among European legal historians. And here the
Committee desires also to express its indebtedness to Elbert H.
Gary, Esq., of New York City, for his ample provision of
materials for legal science in the Gary Library of Continental
Law (in Northwestern University). In the researches of prep-
aration for this Series, those materials were found indispensable.

To the authors the Committee is grateful for their willing
co-operation in allowing this use of their works. Without ex-
ception, their consent has been cheerfully accorded in the
interest of legal science.

To the publishers the Committee expresses its appreciation
for the cordial interest shown in a class of literature so impor-
tant to the higher interests of the profession.

To the translators, the Committee acknowledges a particular
gratitude. The accomplishments, legal and linguistic, needed for
a task of this sort are indeed exacting; and suitable translators
are here no less needful and no more numerous than suitable
authors. The Committee, on behalf of our profession, acknowl-

xii



CONTINENTAL LEGAL HISTORY SERIES

edges to them a special debt for their cordial services on behalf
of legal science, and commends them to the readers of these vol-
umes with the reminder that without their labors this Series
would have been a fruitless dream.

So the Committee, satisfied with the privilege of having intro-
duced these authors and their translators to the public, retires
from the scene, bespeaking for the Series the interest of lawyers
and historians alike.

The Editorial Committee.



xni



HISTORY OF FRENCH PRIVATE LAW



CONTENTS

PAGB

Editorial Committee and List of Translators v

General Introduction to the Continental Legal History

Series ix

Editorial Prefatory Note by John H. Wigmore xxvii

Introduction by William Searle Holdsworth xxxiii

Translator's Remarks xliii

General Reference List of Treatises Cited xlv

Table of Abbreviations most frequently used xlvii

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 Conse-
quences 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 Mono-
gamy. § 28. Forms of Transition. § 29. Monogamy. § 30. Evolu-
tion towards the Independence of Children. §§ 31, 32. Evolution
towards the Emancipation of the Woman.

Topic 2. Origin of Ownership, §§ 33-61 30-54

§ 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 Vil-
lage Community in India. § 43. The "Dessa" or Commune of Java.
§ 44. The Abandonment of Collective Ownership.

xvii



CONTENTS

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 Indi-
vidual Ownership.

Topic 3. Origin of the State, §§ 62-91 55-79

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 Dis-
tinctions. 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

THE FAMILY

§ 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



CONTENTS

PAGE

Topic 2. Betrothals, §§ 101-105 93-100

§ 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. Coun-
cil of Trent. § 108. Civil Legislation. § 109. Marriage of Protes-
tants. § 110. Revolutionary Law.

Topic 4. Concerning Impediments to Marriage, §§ 111-122 . 111-135
§ 111. The Basic Conditions. § 112. Classification of Impedi-
ments. § 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 Condi-
tions. § 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.

Topic 6. Dissolution of Marriage, §§ 127-135 141-151

§ 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 Parlia-
ments. § 133. Reaction against Indissolubility. The Reformation.
§ 134. The Philosophers of the Eighteenth Century. § 135. Rev-
olutionary Laws.

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

§ 1.36. Barbarian Law. §137. The "Reipus." § 138. The "Acha-
sius." § 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 Mar-
riages.

Topic 9. Power of the Husband, §§ 144-153 163-177

§§ 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 Authori-
zation 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



CONTENTS

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. Eman-
cipating Majority. § 168. Revolutionary Law.



Online LibraryJean BrissaudA history of French private law → online text (page 1 of 125)