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THE


DEPOSITED BY THE
UNITED STALTES OF AMERICA












LIBRARY OF CONGRESS
GUIDE
TO THE
LAW AND LEGAL LITERATURE
OF


FRANCE
PREPARED UNDER THE DIRECTION.^Oj':*:'..
EDWIN M. BORCHARD              * *
Professor of Law, Yale University
Formerly Law Librarian (1911-1916)
BY
GEORGE WILFRED STUMBERG
Professor of Law, University of Texas
Sterling Fellow, Yale University (1927-1928)


UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON: 1931


For sale by the Superintendent of Documents, Washington, D. C. - - - Price $1.25 (cloth)




L. C. card, 30-26002




DtEYG2,TED BY THE
UNITED StATLO OF AMERICA
PREFACE
The Guide to the law aind legal literature of France is
the fifth in the series of guides to foreign law published by
the Library of Congress. It was preceded by the Bibliography of international law Cand continental law (1913), the
Guide to the law and legal literature of Germany (1912),
the Guide to the law and legal literature of Spain (1915),
and the Guide to the law and legal literature of Argentina,
Brazil, and Chile (1917).
There are in the main three groups of investigators whose
need for a knowledge of foreign law the Library of Congress has sought to meet: First, the lawyer, the judge, and
the citizen, who require practical information of the legal
institutions of foreign countries in the solution of practical problems affecting the individual; second, the legislator and the student of comparative government, who desire
familiarity with the methods by which foreign governments
have solved the economic and social problems which face
an industrial age; and third, the student of jurisprudence,
who is interested in legal method, doctrine, and philosophy
for purposes of scientific investigation.
For all these purposes French law and legal institutions
afford a fruitful source of information. The important
commercial relations of foreign countries with France and
the great number of foreigners who live in and visit France
have created an ever-widening practical interest in French
law. In the solution of social questions, notably in the legal
control of the relations between the group and the individual, French administrative law has created legal institutions of the greatest importance to all investigators.
For example, in the field of governmental responsibility for
the torts of state officers, French science and practice stand
preeminent among the nations. Finally, as a state with
centuries of cultural background, France has been the center of an intellectual life which is as noteworthy in the
III




IV


PREFACE


field of jurisprudence as it is in many other departments
of the humanities. As a leader in the modern movement
for codification, France has inspired many of the codes of
other Latin and of Latin-American countries; and, though
the French codes are no longer the best, French courts have
demonstrated that codification does not necessarily imply
rigidity and inflexibility. The jurists of France, by their
productive scholarship, will long afford materials for the
foreign student of legal method and philosophy. Included
among these jurists are names immortal in the history of
law.
The general plan of the guides to foreign law has been
to combine with an introduction to the legal system as a
whole, emphasizing its distinctive contributions to legal
thought and development, certain practical information concerning positive law and legal institutions accompanied by
a critical comment upon the literature in which those institutions are described and discussed.
For the preparation of the present guide, the Yale Law
School granted to Prof. G. W. Stumberg, of the University
of Texas, who in 1924 obtained his doctorate in law from the
Yale Law School, a Sterling fellowship to enable him to
spend a year in New Haven, Washington, and Paris in the
pursuit of the studies necessary to prepare the guide. The
assistance of eminent scholars of France was invoked in the
comparative estimates placed upon the value of different
works in a given field. Professor Stumberg has, it is believed, accomplished his task with marked ability and discrimination, and the volume is offered to the public in the
hope that it may serve to acquaint the investigator with the
outlines of French law and the resources of French legal
scholarship.
EDWIN M. BORCHARD.
HERBERT PUTNAM,
Librarian of Congress,
Washington, D. C., March 1, 1930.




CONTENTS
Page
Preface --- —---------------------------------------------— III
Introduction ----------------------------------------------   1
Bibliography -----------------------------------------------  7
Law  libraries --- —-----------------------------------------  12
Law publishers --- —----------------------------------------   13
Legislation, --- —-------------------------------------------  14
Treaties --- —------------------------------------------       18
Court reports --- —----------------------------------------    18
Encyclopedias --- —-----------------------------------------   23
Legal education --------------------------------------------  26
Philosophy of law --- —-------------------------------------   32
Legal history --- —-----------------------------------------   51
Civil code --- —---------------------------------------------  71
Commercial law --- —---------------------------------------    99
Literary and industrial property --- —-----------------------  131
Civil procedure --- —----------------------------------------  137
Labor and social legislation --- —----------------------------  153
WVorkmen's compensation --- —-------------------------------  162
Social insurance --- —--------------------------------------  165
Criminal law --- —------------------------------------------  167
Criminal procedure --- —------------------------------------  180
Extradition --- —-------------------------------------------  188
Private international law --- —------------------------------  189
Public law --- —--------------------------------------------  204
Constitutional law --- —-------------------------------------  206
Administrative law --- —------------------------------------  210
Responsibility of the State for torts --- —--------------------  216
Sovereignty-The Personality of the State --- —--------------  221
Eminent domain --- —--------------------------------------    223
Railroad --------------------------------------------------  225
Public education --- —--------------------------------------  226
Church and State --- —-------------------------------------   227
Individual rights-Freedom of speech --- —-------------------  229
Colonial law --- —-----------------------------------— 230
Alsace and Lorraine --- —----------------------------------   231
Public finance --- —-----------------------------------------  231
V








GUIDE TO THE LAW AND LEGAL
LITERATURE OF FRANCE
INTRODUCTION
The legal profession in the United States, along with that
in England, has been but little inclined to look beyond the
common law for aid in the solution of legal problems. With
a few notable exceptions such as social legislation, where
our English brethren have been more willing to accept modern movements, particularly those of German origin, there
has been since the early part of the last century no marked
evidence of any tendency in this country or England to draw
from the vast reservoir of continental legal thought and
learning, whether in the field of general jurisprudence, legislation, procedure, or judicial decision. By way of contrast
American judges in the earlier period of our legal development freely made use of the then current continental literature. Dean Pound, in an article in the Illinois Law Review,
The influence of French 1aw in America (v. 3, p. 354), tells
us that one who reads the older American reports, particularly those of the state of New York, can not fail to notice
the unusual number of references which they contain to the
writers and authorities of the civil law. This early civil
law influence, chiefly that of France, was due to a number of
causes. Among others could be named hostility toward
England and the popular favor that the French revolutionary movement received in this country. Probably a better
reason is that judges and jurists dealing with a system of
law undergoing a process of creation and formation naturally turned to the well-ordered outstanding treatises of the
time. Inasmuch as legal thinking in Germany did not reach
its high development until a much later period and Dutch
legal literature had already passed its highest point, it was
only natural that French works, such as those of Pothier and
Domat, should be the ones to which judges and writers, such
as Story and Kent, should turn.




2


GUIDE TO THE LAW OF FRANCE


Evidence of French influence on American law in the
early stage of its evolution is also to be found in the Livingstone Codes in Louisiana where the Civil code remains to this
day the only example of wholesale incorporation of a nonEnglish system of law into the legal system of an American
commonwealth. Perhaps one might attribute to the codification in France in the early nineteenth century some influence on the American movement for codification resulting
in the draft codes of David Dudley Field.
American law has long since passed through the formative
stage. The codification movement has largely spent its force,
leaving in its train codes of pleading and in a few commonlaw states civil and penal codes. But law is a progressive
social science which, if it is to develop properly, should take
into consideration the best available thought. Nor is it
wholly a national product. Its proper development makes
it desirable to have an acquaintance with foreign legal systems. As early as 1872, Sheldon Amos in his Science of
jurisprudence said that "the study of systems of law prevailing in a variety of countries is, indeed, the most fruitful of all experiences to the intelligent jurist" (p. 501).
He also said that the prospects of the science of jurisprudence will depend largely upon familiarity with the
vast and invaluable juridical literature of Germany and
France.
Some of the literature of these countries, as well as of
others, has been made available in English through the disinterested efforts of various associations. Notable examples
are the Modern criminal science series,1 Continental legal
1The Modern criminal science series. Published under the auspices of the American institute of criminal law and criminology.
Boston, Little, Brown, and company, 1911-17. 9 v. The series
comprises:
1. Modern theories of criminality. By C. Bernaldo de Quir6s.
Tr. from the 2d Spanish ed. by Alfonso de Salvio. 1911. 249 p.
2. Criminal psychology. By Hans Gross. Tr. from the 4th
German ed. by Horace M. Kallen. 1911. 514 p.
3. Crime, its causes and remedies. By Cesare Lombroso. Tr.
from the French and German editions by Henry P. Horton. 1911.
471 p.
4. The individualization of punishment. By Raymond Saleilles.
Tr. from the 2d French ed. by Rachel Szold Jastrow. 1913. 322 p.




INTRODUCTION


3


history series,2 and Modern legal philosophy series3     The
first guide in the present series was that to the law and
5. Penal philosophy. By Gabriel Tarde. Tr. from the 4th French
ed. by Rapelje Howell. 1912. 581 p.
6. Crime and its repression. By Gustav Aschaffenburg. Tr. from
the 2d German ed. by Adalbert Albrecht. 1913. 331 p.
7. Criminology. By Raffaele Garofalo. Tr. from the 1st Italian
and the 5th French editions by Robert W. Millar. 1914. 478 p.
8. Criminality and economic conditions. By W. A. Bonger. Tr.
from the French by Henry P. Horton. 1916. 706 p.
9. Criminal sociology. By Enrico Ferri. Tr. from the 4th Italian and the 2d French editions by Joseph I. Kelly and John Lisle.
Edited by William W. Smithers. 1917. 577 p.
2 The Continental legal history series, published under the auspices
of the Association of American law schools. Boston, Little, Brown,
and company, 1912-27. 10 v. The series comprises:
I. A general survey of events, sources, persons and movements
in continental legal history. By various European authors. 1912.
754 p.
II. Great jurists of the world, edited by Sir John Macdonell and
Edward Manson. 1914. 607 p.
III. A history of French private law. By Jean Brissaud. Tr.
from the 2d French ed. by Rapelje Howell. 1912. 922 p.
IV. A history of Germanic private law. By Rudolf Huebner.
Tr. by Francis S. Philbrick. 1918. 785 p.
V. A history of continental criminal procedure, with special
reference to France. By Adhemar Esmein. Tr. by John Simpson,
1913. 640 p.
VI. A history of continental criminal law. By Carl Ludwig
von Bar and others. Tr. by Thomas S. Bell and others. 1916.
561 p.
VII. A history of continental civil procedure. By Arthur Engelmann and others. Tr. and edited by Robert W. Millar. 1927. 948 p.
VIII. A history of Italian law. By Carlo Calisse. Tr. by Layton
B. Register. 1928. 827 p.
IX. A history of French public law. By Jean Brissaud. Tr.
by James W. Garner. 1915. 581 p.
X. The progress of continental law in the nineteenth century.
By A. Alvarez, L. Duguit, J. Charmont, and others. Tr. by L. B.
Register and E. Bruncken. 1918. 558 p.
8Modern legal philosophy series. Edited by a Committee of the
Association of American Law Schools. Boston, The Boston book
company; New York, Macmillan, 1911-25. 13 v. (Vol. 6 not yet
issued.) The series to date comprises:
Introduction to the science of law; systematic survey of the law
and principles of legal study. By Karl Gareis. Tr. from the 3d. rev.
ed. of the German by Albert Kocourek. 1911. 375 p.




4


GUIDE TO THE LAW OF FRANCE


legal literature of Germany, published by Professor Borchard in 1912. Later guides were devoted to the law and
legal literature of Spain and of Argentina, Brazil, and Chile.
There are a number of reasons why American lawyers
and legislators should be particularly interested in French
law and its literature. One would naturally expect a people who, like the French, have long occupied a foremost
place in the world's culture, to supply much that is well
worth while in every department of life. Further, to
quote from Arthur W. Spencer's editorial preface to Modemr  French legal philosophy (p. xxix) " there is a marked
propinquity of the institutions of the two countries," and
examination of the treatment of the problems of law and
state by French writers affords " the opportunity to become better acquainted with views we are likely to find
acceptable."
The world's legal philosophies. By Fritz Berolzheimer. Tr.
from the German by Rachel Szold Jastrow. 1912. 490 p.
Comparative legal philosophy applied to legal institutions. By
Luigi Miraglia. Tr. from the Italian by John Lisle. 1912. 793 p.
General theory of law. By N. M. Korkunov. Tr. from Russian
and French by W. G. Hastings. 1909. 524 p. 2d ed. New York,
The Macmillan company, 1922. 524 p.
Law as a means to an end. By Rudolf von Ihering. Tr. from
the German by Isaac Husik. 1913. 483 p.
Modern French legal philosophy. By A. Fouillhe, J. Charmont,
L. Duguit, and R. Demogue. Tr. by Mrs. Franklin W. Scott and
Joseph P. Chamberlain. 1916. 578 p.
The theory of justice. By Rudolf Stammler. Tr. by Isaac
Husik. 1925. 591 p.
Science of legal method. By various authors. Tr. by Ernest
Bruncken and Layton B. Register. 1917. 593 p.
The formal bases of law. By Giorgio del Vecchio. Tr. by John
Lisle. 1914. 412 p.
Philosophy of law. By Joseph Kohler. Tr. from the German
by Adalbert Albrecht. 1914. 390 p.
Philosophy in the development of law. By Pierre de Tourtoulon.
Tr. by Martha McC. Read. 1922. 653 p.
Rational basis of legal institutions. By various authors. Edited
by John H. Wigmore and Albert Kocourek. Macmillan, New
York. 1923, 603 p.




I.N TRODUCTION


5


It is often said that the French codes, particularly the
Civil code, reflecting the political theories of the Revolution, were impregnated with the spirit of individualism.
Liberty of contract and individual freedom of action are
not solely American conceptions. Indeed, in France as in
this country they were concepts which played an important part in the development of the law. While not embodied in formal constitutional provisions, expressly or by
implication, they were long assumed to be the guiding force
of legislation and judicial interpretation. Within recent
years they have become the battle ground of legislation
and juridical opinion, with a resulting reexamination of
old standards or concepts, and a revival of philosophical
thinking.
One is apt to get the impression that codification arrests
legal development. This was perhaps true during the period immediately following the promulgation of the codes,
when legal thought was preoccupied with commentary and
interpretation. But, as a matter of fact, the French codes,
particularly the Civil code, in stating the law in the form
of general principles, left a place for future evolution with
the aid of courts and writers. There is here room for
thought by American jurists who are attempting to restate
our common law. The experience in France-undoubtedly
not originally intended-with a pliable and adaptable code,
is somewhat comparable with American experience in constitutional interpretation. Recent literature-such as that
from the pen of Professor Geny-pertaining to methods of
interpretation, is well worth consultation.
French contributions in the field of public law are particularly noteworthy. No other country has progressed so
far in the development of administrative law. The modern
French theory of the legal responsibility of the State for
the torts of its officers is one which could be emulated with
profit in other countries. Likewise, at a time when administration of criminal justice is receiving serious thought in
America, efforts to meet the problems of crime should be
of particular interest.  Here French thought has been
strikingly fertile. The theories of the classical school (to




6


GUIDE TO TIHE LAW OF FRANCE


which the legislation of the United States still adheres)
and the biological and sociological theories of Lombroso and
Ferri have been subjected to searching criticism from which
a workable compromise between the classical and modern
social concepts of the functions of criminal law has been
reached. Then, too, much of French thought in the field
of criminology has found its way into legislation either in
the form of revision of the Penal code or additions to it.
Until recently, while in advance of this country, social
legislation in France went through much the same process
as in the United States. The arguments used in the early
opposition to social and industrial legislation sound familiar
to American ears. Here individualism and collectivism have
passed through a struggle which has now culminated in the
enactment of social legislation which is probably comparable in merit with the earlier legislation of Germany.
The vast volume of excellent literature produced in Germany and culminating in the German codes has drawn attention from the less spectacular but no less valuable literature produced in France since the promulgation of the
Napoleonic codes. For the practitioner coming in contact
with legal problems arising out of our constantly growing
international commercial relations and the large number of
nationals resident abroad a working knowledge of this literature is of importance, not merely because of the position
of France in these respects, but also because of the fact
that French law and its literature occupy such an important
place in the legal systems and legal literature of all civil
law countries. Time will not be taken to discuss in detail
the influence, direct and indirect, of the French codes on the
law of other countries. Interesting short discussions may be
found in Doctor Alvarez's Une nouvelle conception des
etudes juridiques,4 parts of which appear in volume 11 of
the Continental legal, history series, and in Professor
Planiol's Traite eCeimentaire.5  A translation of this latter
4Alvarez, A. Uine nouvelle conception des etudes juridiques et de
la codification du droit civil. Paris, Pichon et Durand-Auzias, 1904.
234 p.
6 Planiol, M. F., et G. Ripert. Trait 616mentaire de droit civil.
10. ed. Paris, Librairie gendrale dle droit et de jurisprudence, 1926 -27. 3 v. (11. ed., v. 1- 1928-.)




BIBLIOGRAPHY


7


discussion also appears in the first volume of the Continental
legal history series (p. 302). The second volume of the
Livre du centenaire6 published in 1904 on the occasion of the
hundredth anniversary of the Civil code, contains a valuable
collection of articles by legal scholars of a number of civil
law countries.
One could hardly presume to pass judgment unaided on
the literature of a foreign system of law. Necessarily, recourse has been had to the opinions of French jurists. The
writer wishes to express his appreciation of the aid received from the members of the Paris law faculty without
whose help it would have been impossible to gather the
material which forms the subject matter of this volume.
Appreciation is also due Yale University, Professor Borchard, and the staff of the Law Library of Congress, particularly Miss Olive M. Jack, Chief Assistant to the Law
Librarian, Mr. John T. Vance.
BIBLIOGRAPHY
Until the recent publication of Grandin's Bibliographie
des sciences juridiqes 7 there was no comprehensive modern
bibliography of French legal literature. Grandin's bibliography, however, is undoubtedly one of the most useful
pieces of work of its kind. Covering the period from 1800
to 1926 it gives an exposition of French legal publications
as well as of those published in the French language in
other countries, thus constituting in addition a bibliography
of a large part of the legal. literature of Belgium and
Switzerland. The plan followed is that of division according to general subject matter, with Roman law, legal
history, civil law, commercial law, etc., forming distinct
headings. The material under each heading is classified
alphabetically. It is worthy of remark that the material
covered includes, in addition to strictly legal subjects, political economy and sociology. In his preface M. Grandin
states that it is the intention of the publishers to keep the
"Le Code civil. Livre du centenaire. Paris, Rousseau, 1904. 2 v.
7Grandin, A. Bibliographie genSrale des sciences juridiques, politiques, 6conomiques et sociales. Paris, Recueil Sirey, 1926. 3 v. 1 er
Supplement, 1926 et 1927. Paris, 1928. 234 p. 2 Supp6lment, 1928.
Paris, 1929. 167 p. 3 Supplement, 1929. Paris, 1930. 186 p.




8


GUIDE TO THE LAW OF FRANCE


work up to date through annual supplements. Three such
have been published. Attention should also be called
to the fact that the use of the bibliography is facilitated
through the inclusion of an exhaustive subject and author
index.
French bibliographic material then in existence was described in detail in 1913 by Professor Borchard, at that
time Law Librarian of the Library of Congress, in his useful
Bibliography of international latu and continental lawo8
(pp. 55-62). Much of the material discussed by Mr. Borchard
has been superseded by Grandin's work, but there are several important bibliographic sources which still merit special
consideration. Grandin's publication does not profess to
include legal literature or historical sources prior to 1800,
with the result that recourse must be had to other publications for earlier material. A useful list of French legal
bibliographies is to be found in Dr. Fuchs' Juristische
iicherkunde, items 1327-1386.8a
The best bibliography of early French legal literature is
that contained in the second volume of Dupin's fifth edition
of Profession davocat.9   Originally the work of Camus, it
was first published in 1772 and went through five editions,
the fourth and fifth having been edited and revised by
Dupin, a leading lawyer of his time. The bibliography is
particularly valuable for its critical discussions. The last
50 pages are made up of historical and critical notes on a
number of notable French books which are remarkable for
their permanence in authority and for their originality.
The literature dealing with the history of French law and
its sources is also discussed in a work by Gavet, published
in 1899.10 Gavet's work, however, is difficult to read, and
8 Borchard, E. The bibliography of international law and continental law. Washington, Govt. print. off., 1913. 93 p.
8a Fuchs, Wilhelm. Juristiche biicherkunde. 3. aufl. Linz, Franz
Winkler, 1928. vii, 245 p.
9 Camus. Profession d'avocat. 5. ed. Paris, Waree, 1832. 2 v.
(4. and 5. Mds. revised by Dupin.)
10Gavet, G. Sources de l'histoire des institutions et du droit
frangais; manuel de bibliographie historique. Paris, Larose, 1899.
783 p.




BIBLIOGRAPHY


9


its original reputation may have been dimmed by latterday investigations by French scholars. The source material
prior to the official compilation of customary law in the fifteenth century was dealt with by Koenigswarterll in 1853.
Two useful works containing historical material are Warnkoenig's Franzosische staats-und    rechts-geschichte,l2  and
Brissaud's History of French private law.'3    The histories
of French law by Glasson 4 and Viollet 15 are likewise useful as bibliographic sources of historical material, but the
latest as well as most accurate discussion of historical sources
is that contained in Professor Chenon's 6 recent history of
French law, in which the learned author devotes a considerable part of the treatment of each period of legal history
to the source material.
Unfortunately a work as large as that. of Grandin
can not pretend to be descriptive or critical. In his Bibliographie raisonnee du droit civil,17 published in 1879, Dramard listed French books and articles relative to the Civil
code under their appropriate headings, giving descriptive
and, occasionally, critical notes. While now somewhat old,
the Bibliographie raisonnee is still well worth consulting.
A number of publications devoted to French law give useful bibliographic notes. The different encyclopedias which
will be discussed in a later chapter give a bibliography for
every important subject. Particularly extensive bibliog" Koenigswarter, L. J. Sources et monuments du droit francais
ant6rieurs au xvesiecle, ou Bibliothlque de l'histoire du droit civil
francais depuis la premiere origine jusqu'a la redaction officielle des
coutumes. Paris, Durand, 1853. 132 p.
2 Warnkoenig, L. A., und Stein, L. Franzosische staats-und rechtsgeschichte. 2. aufi. Bale, 1875. 3 v.
1Brissaud, J. Manuel d'histoire du droit francais. Paris, Fontemoing, 1898-1904. 1,892 p.
4Glasson, E. Histoire du droit et des institutions de la France.
Paris, Pichon, 1887-1903. 8 v.
15Viollet, P.  Droit priv6 et sources.  Histoire du droit civil
frangais. 3. ed. Paris, Larose et Tenin, 1905. 1,012 p.
eChinon, E. Histoire genarale du droit francais public et prive,
des origines A 1815. Paris, Recueil Sirey, 1926-29. 2 v.
1T Dramard, E. Bibliographie raisonn6e du droit civil.... Paris,
Firmin-Didot et cie, 1879, 371 p.




10


GUIDE TO THE LAW OF FRANCE


raphies accompany the essays and monographs in the Repertoire general alphabetique.8   A number of recent publications dealing with some particular branch of the law contain bibliographic notes. In the field of civil law, the elementary work 19 of Professors Planiol and Ripert has copious references to other treatises as well as to monographs
and theses. These distinguished writers also give an excellent critical discussion of the leading treatises on civil
law. The various treatises which make up the Colleetion
Thaller, on commercial law,20 contain bibliographic notes.
In private international law, penal law and Roman law the
treatises of Professors Weiss21 and Pillet,22 that of Professor Garraud 28 and the manual of Professor Girard,24 respectively, give important bibliographic references. In connection with Roman law, mention should also be made of
an important recent bibliography, Bibliographie des travaux
de droit romain en langue frangaise, prepared by Professor
Collinet of Paris and published by Sirey.
Periodical sources of French legal bibliography are not
numerous. The Librairie Dalloz publishes a bibliography
as a supplement to its court reports, and valuable book reviews and bibliographic lists are published in a number of
important periodicals, such as the Nouvelle revue hitorique,
sRepertoire general alphabetique du droit frangais, pub. par A.
Carpentier et G. Frerejouan du Saint. Paris, Librairie de la Societe
du Recueil g6n6ral des lois et des arrets, 1886-1906. 37 v. Supplement. 1911-28. 7 v.
19Planiol, M., et G. Ripert.  Traite elementaire de droit civil.
10. ed. Paris, Librairie g6enrale de droit et de jurisprudence. 1926 -27. 3 v. (11. ed., v. 1- 1928-.)
20Thaller, E. Traite general theorique et pratique de droit commercial. Paris, Rousseau, 1907-26. The collection, incomplete, consists of nine volumes covering partnerships, transportation, maritime
law, and bankruptcy. See Commercial law (p. 104, note no. 4).
Weiss, A. Traite th6orique et pratique de droit international
prive. 2. dd. Paris, Larose et Tein, 1907-13. 6 v.
22Pillet, A. Traite pratique de droit international prive. Paris,
Recueil Sirey; Grenoble, Allier, 1923-24. 2v.
23Garraud, R. Trait6 theorique et pratique du droit p6nal franGais. 3. ed. Paris, Larose et Tenin, 1913-24. 5 v.
"Girard, P. Manuel 0lEmentaire de droit romain. 7. Ed. Paris,
Rousseau, 1924, 1,138 p.




BIBLIOGRAPHY


11


Revue trimestrielle de droit civil, Revue penitentiaire, and
Revue du droit public. It might be stated in passing that
the book reviews in the Nouvelle revue and the Revue
trimestrielle have the reputation    of being particularly
good.
Several of the more important legal publishers publish
useful bibliographic catalogues of modern and current
literature. The Bibliographie pratique of the Recueil Sirey
and the Bibliographie generale et complete of Godde, while
not as valuable as the bibliography by Grandin, may be
consulted with profit. The annual and monthly catalogues
of the Librairie Arthur Rousseau are also well worth
consulting.
Before passing on to the general bibliographies of French
literature, attention should be called to two student guides
which contain useful information as to the more important
French legal works. Professor Capitant's little book, Comment il faut faire sa these,25 in addition to giving information as to the steps to be taken by a candidate for the
doctor's degree and the best method for preparing a thesis,
also contains a chapter devoted to bibliography, in which the
more important general publications are discussed. A
former librarian of the Paris Law School, Gautier, prepared a Guide 26 to the library in 1919. While the information given is somewhat meager, it contains a valuable
general description of the material in the library as well
as important information as to its use.
In addition to the bibliographic material devoted particularly to legal literature, there are several publications covering the entire field of French literature which may be of
use in connection with legal works. The Catalogue general
de la Librairie fran~aise,27 begun by Lorenz and continued
by Jordell and Stein, covers practically all literary productions between 1840 and 1921. La bibliographie de la France,
25 Capitant, H. Comment il faut faire sa these de doctorat en droit.
2. 6d. Paris, Dalloz, 1928. 87 p.
Gautier, J. La bibliothbque de la Facult( de droit de Paris.
Guide A l'usage des 6tudiants. Paris, Recueil Sirey, 1919. 58 p.
27 Lorenz, Jordell, Stein. Catalogue general de la Librairie francaise. 1840-1921. Paris, Champion, 1867-1927. 29 v.
49926~ —31   2




12


GUIDE TO THE LAW OF FRANCE


Journal egeneral de 'imprmerie et de la Libtairie appears
weekly and lists the works alphabetically, according to
names of authors, with a classified supplement, La semaine
du livre, cumulated monthly as Les livres du mois. An
author index and a classified subject index are published
annually. It covers all books deposited with the Ministry
of the Interior in compliance with French copyright laws.
The Bibliotheque Nationale published the Bulletin mensuel
des recentes publications franaises, from 1882 to 1920 and
the Bulletin eensuel des publications etrangeres from 1877
to 1921. It now issues the Bulletin des acquisitions.
LAW LIBRARIES
Some reference might be made at this point to the more
important libraries.
As would be expected, the Bibliotheque Nationale, occupying in France the same position as the British Museum
in England and the Library of Congress in this country,
contains the richest collection of legal literature and
historical documents. As it is visited daily by thousands,
better results can often be obtained by using some of the
smaller libraries. The Bibliotheque Sainte Genevieve, also
a general library, is likewise rich in French legal works.
Of the libraries devoted especially to legal publications,
the more important are those of the law schools. Naturally
that of the Paris school is the most important. Consisting of
somewhat over a hundred thousand volumes, its collection
is now increasing at the rate of about 5,000 books and pamphlets a year through purchase, gift, and exchange. The
exchange of theses with French and foreign universities
has permitted the library to build up an excellent collection
of this type of legal works which, due to the limited number
published, are often difficult to obtain.
Another important law library is the Bibliotheque de
l'ordre des avocats at the Palace of Justice. Other libraries
are the Bibliothque de legislation etrangere at the Ministry
of Justice, containing a unique collection of the literature
relating to the legislation of practically all countries in the
world; the Bibliothgque de la Societe de legislation con?paree, containing about 22,000 volumes devoted to interna



LAW LIBRARIES


13


tional law and French and foreign legislation; and the Bibliotheque de la Prefecture de la Seine, which is particularly
rich in publications concerning administrative law.
Several of the libraries just referred to have printed
catalogues which require mention. The library of the Bar
association published catalogues 28 in 1866-67 and 1880. The
library of the prefecture of the Seine published a 2-volume
catalogue29 in   1892 and   1898.  A   catalogue30 of the
Bibliotheque de la Societe de 7egislation comparee was begun by Christian Daguin and completed by Fernand Daguin.
A  second edition was published in 1899.     Several years
ago the Office de legislation etrangere began the gigantic
task of preparing a synthetic catalogue or encyclopedia of
the juristic literature of the world based on the catalogues
of such libraries as the Library of Congress and other
national libraries.  While the library of the Paris Law
School has no printed catalogue its card indices give complete references to general works and theses. In addition
there is a complete index of the articles appearing in the
reviews received by the library.
LAW PUBLISHERS
Some mention should be made at this point of the principal law publishers. The Librairie Dalloz, or as it is often
designated Dalloz, had its origin in the court reports established by Desire Dalloz, who in 1822 took over the
direction of the Journal des audiences de la Cour de Cassation, the precursor of Dalloz periodique.  (Court reports,
infra.) In 1845 Desire and Armand Dalloz began the publication of an encyclopedia, and since then the Librairie
28 Catalogue des livres imprimes de la Bibliothbque des avocats A la
Cour imp6riale de Paris. Paris, Durand, 1866-67. 2 v. Catalogue des
livres imprimes de la Biblioth:que des avocats a la Cour d'appel de
Paris. Tome I. Theologie et jurisprudence. Paris, Durand, 1880.
486 p.
29Catalogue de la Biblioth-que administrative de la Prefecture
du d6partement de la Seine. (Section 6trang~re) Paris, Imprimerie
nationale. 1892. 711 p.  (Section franaaise) Paris, Imprimerie
municipale, 1898. 890 p.
30 Daguin, C. Catalogue de la Bibliotheque de la sociWte de legislation comparee. 2. ed. Paris, Pichon, 1899. 599 p.




14


GUIDE TO THE LAW OF FRANCE


Dalloz has been publishing, in addition to court reports
and encyclopedias, annotated editions of the codes, treatises,
and monographs covering the entire field of law. The
Societe anonyme du Recuteil Sirey had its origin in the
court reports established by J. B. Sirey at the end of the
eighteenth century. The present company represents an
amalgamation of a number of publishing houses, and, like
Dalloz, publishes annotated editions of the codes, encyclopedias, treatises, and monographs covering the entire field
of the law. In this connection attention should be called
to the fact that the annotated codes cited under the name
Sirey are not published by the Recueil Sirey but by G.
Godde, likewise an important publisher of legal works.
The Librairie Arthur Rousseau is also important, and mention should be made of the Librairie generale de droit et de
jurisprudence.  Giard and Briere, now conducted under
the name of Marcel Giard, were at one time among the
most progressive publishers of France and are responsible
for the publication in French of some of the more notable
German, Italian, and other foreign works on law, economics,
and sociology.
All these publishers are also booksellers and have their
offices on Rue Soufflot. As an important center of legal interest this street has acquired world fame.
LEGISLATION
The modern era of French legislation begins with the promulgation of the Civil code in 1804. Historically, however,
the assumption of national sovereignty by the Assembly on
June 17, 1789, marks the end of the old and the beginning
of a new legislative regime. Legislation prior to 1789 is
properly a part of legal history and will be discussed in
connection with that subject in a subsequent chapter.
The general growth of the law through legislation, particularly with reference to civil law subsequent to 1804,
has been dealt with by a number of writers such as Professors Charmont, Duguit, and Morin, whose works will be
referred to again in connection with the discussion of the
Civil code. A very good summary may be found in the
Traite elementaire de droit civil by Professors Planiol and




LEGISLATION


15


Ripert (v. 1, pp. 39-48) and the Cours e'lmentaire de
droit civil by Professors Colin and Capitant (v. 1, pp.
21-24).  The civil legislation from  1789 to 1804, usually
called the intermediary period, was made the subject of a
special study by Sagnac in La legislation civile de la Revolution francaise,3' published in 1898. The subject is, of
course, dealt with as historical material in legal histories
which go beyond the end of the ancien regime.
The official publications recording French legislation, in- official
eluding laws and decrees, are the Journma officiel or Official PublicaGazette and the Bulletin des lois. The former first appeared
on May 5, 1789, under the title Moniteur universel and became the official organ of the Government in 1799. In
1869 the loniteur, without changing its form, became the
Journal officiel de l'Empire franeais; and on September 5,
1870, the name was changed to Journal oficiele de la Republique francaise. The Journal appears daily and forms annually from 12 to 15 volumes. The portion containing laws
and decrees is issued separately.  The Bulletin des lois,
which was created by the convention through an act of
December 4, 1793, began publication June 13, 179X (25
prairial, year ii). Since 1832 it has been published in two
parts-the principal part (subdivided in 1909 into two
sections) containing laws and decrees of general interest and
special and local laws and the supplementary part containing
special and local decrees. The Bulletin appears bimonthly
and usually forms two volumes per year. The legislation
of the revolutionary period, prior to June 10, 1794, the date
of the first act in the Bulletin, is contained in an 18-volume
publication, ordinarily designated under the title Collection
generale des lois. In 1806, the earlier edition having become rare, a new and abridged edition in eight volumes was
published under the title Lois et actes due Gouvernement.
This later edition is usually designated as forming the first
part of the Bulletin des lois. The Bulletin is published
by the Government press.
The official publication of laws and decrees is important
in determining the time at which they go into effect. The
Sagnac, P. La legislation civile de la Revolution frangaise
(1789-1804). Paris. Hachette; Fontemoing, 1898. 445 p.




16


GUIDE TO THE LAW OF FRANCE


present system was inaugurated by a decree of November
5, 1870, which, modifying article 1 of the Civil code, provides that a new law is effective in each arrondissement a
full day after the copy of the Journal officiel in which it is
contained arrives at the seat of the arrondissement. The
same decree also provides that the insertion in the Bulletin
of a law not published in the Journal operates as promulgation. With respect to decrees the same system ordinarily
applies to those which are published in the Journal officiel,
but the Government may provide that a decree become effective immediately. Good short discussions of the promulgation of laws appear in the elementary treatises of Professors
Planiol and Ripert and Colin and Capitant.
Private   Both the Journal officiel and Bulletin are difficult to use
Publica-  for research purposes, though there are indices to each.
Better results can be obtained by referring to private publications. Of these the most complete is the Collection complete des lois et d~ecrets d'inte'rt general, which was founded
by Duvergier and continued by Bocquet. It appears
monthly and is published by the Recueil Sirey. Legislation from 1788 through 1830 was published in a 30-volume
edition between 1825 and 1831, and since then a volume has
been added each year. Each volume contains an index, and,
in addition, there are separate indices for the periods from
1831 to 1889 and 1890 to 1899.
The principal legislative acts also appear in the Annuaire
de lgislation frangaise, with important commentaries. This
annual collection of laws has been published since 1882 by
the Socitet e  lde  gislation comparee.  A periodical, Lois
nouvelles, likewise published since 1882, reports important
legislation. This useful publication, which appears bimonthly, is made up of two parts-the first containing commentaries on legislation, and the second legislative texts
without commentary.
Collections of important legislative acts, often with valuable notes and commentaries, are published by the Recueil
Sirey and the Librcirie Dalloz. The Lois annotdes of the
Recueil Sirey is an appendix to the court reports (Recueil
general) of the same publishers and appears monthly.
These annotated laws, however, form a separate collection.




LEGISLATION


17


The laws from 1789 through 1848 are contained in two
volumes-those from 1849 through 1854 and from 1855
through 1860 in a third and fourth volume and since 1861 in
one volume for every five years. The annotated laws published by Dalloz appear in the fourth part of its Recueil
periodique (infra).
Since 1918 Dalloz has also been publishing monthly texts war Leg.
of laws and decrees in its Bulletin  egislatif. This latter islation
publication is a continuation of an important 26-volume collection of war legislation and regulations which was published under the title Guerre de 1914. It is sometimes called
Collection rouge. The Recueil Sirey published a somewhat
similar collection, Legislation de la Guerre, consisting of
12 volumes. In this connection reference should be made to
La legislation des annees de guerre, in two volumes, which
gives texts and analyses of war legislation. This publication, in two volumes, was compiled by Colin and published
by Godde.
Strictly speaking, codes are legislative acts, but thecodes and
official and private editions of the different codes will beLaws
discussed later in connection with the discussion of their
subject matter. Attention should be called, however, to
the fact that the annotated editions are annotated to both
court decisions and legislative acts, the latter being ordinarily set forth in full. A number of publishers issue all
the codes in one collection along with the existing legislation in force (Lois usuelles). The more important collections of this type are those cited under the names of
their compilers, Roger and Sorel,32 Riviere,3 and Carpentier.34  Only the last seems to have been kept up to date.
The twentieth edition was edited by Colin35 and consists
of two volumes, one devoted to the codes and the other
2 Roger, A., et Sorel, A. Codes et lois usuelles classees par ordre
alphabetique. Paris, Garnier, 1882. 2 v.
3 Riviere, H. Codes francais et lois usuelles. Paris, Pichon et
Durand-Auzias. 1914. 2 v.
3 Carpentier, A.  Codes et lois pour la France, l'Algerie et la
Tunisie. 19. ed. Paris, Marchal et Godde, 1914. 2 v.
N6Colin, P. Codes et lois pour la France, l'Algrie et les colonies.
20. ed. Paris, Godde, 1924-25. 2 v. Supplement. 1927. 478, 63 p.




18


GUIDE TO THE LAW OF FRANCE


(sold separately) to legislative enactments. It is kept up
to date through a publication called La semaine juridique.
A very good but smaller publication in the nature of a
handbook was until recently published by Dalloz under
the title Codes d'audience.36 The five codes are united in one
publication under the title Petits codes et lois Carpentier,87
published by Sirey. When completed it will include
existing legislation.
TREATIES
There are two important French collections of treaties.
The Recueil des traites de la France 38 was compiled by de
Clercq and covers the period from 1713 to 1906. The collection of Traites et conventions en vigueuw39 is an official
publication of the Ministry of Foreign Affairs and was
compiled with the assistance of Professor Basdevant of the
University of Paris. Franco-American treaties are also
reported in Malloy's Treaties, conventions, and agreements
and in the Treaty series printed at the United States Government Printing Office.
COURT REPORTS
Doctrine   When dealing with interpretation of legislative acts, inand Juris- cluding codes. French legal writers often employ the terms
prudence
"doctrine " and " jurisprudence."    The former applies to interpretation by text writers whose treatises, to employ an
expression of Professors Planiol and Ripert, occupy much
the same position in legal science as public opinion does in
politics. As persuasive authority they are the directive
force of both legislation and judicial decision.
a Codes d'audience. 17. ed. Paris, Dalloz, 1926. 477, 53 p.
3Carpentier, A. et E. Petits codes et lois Carpentier. Paris,
Recueil Sirey, 1929. 2 v.
S Clercq, A. de. Recueil des traites de la France, pub. sous les
auspices du Ministere des affaires 6trangtres. 1713-1906. Paris,
Amyot; Pedone, 1864-1917. 23 v. Vol. 23, incomplete, in two parts.
89 Basdevant, J. Traitds et conventions en vigueur entre la France
et les puissances 6trangeres (Publication officielle du Ministere des
affaires dtrangires). Paris, Imprimerie nationale, 1918-22. 4 v.




COURT REPORTS


19


The term  "jurisprudence " is applied to court decisions. Authority
of Court
It would seem from the provisions of the Civil code that Decisions
judicial decisions can never technically acquire the force
of law. Article 5 in effect forbids a court to attribute to a
decision the binding force of precedent. Under article 1351
the effect of a decision of a court is limited to the parties.
But in his Introduction a l'etude du droit civil 40 (p. 54 et
seq.) Professor Capitant states that as a matter of fact, in
spite of these provisions, judicial decisions enjoy an authority
comparable with that of the written law. When a legal
question is first submitted to lower courts for decision
they may reach different results, but after the matter has
been submitted to the court of last resort, Couw de Casscation, the solution of the latter is ultimately followed by all
courts and the law "is settled " or, to use a French expression, the "jurisprudence becomes fixed." While a reversal of former decisions is always possible it occurs but
rarely and then, only, when conditions demand it. As a
result the decisions of courts, particularly the Cour de Cassation, are cited by counsel and occupy in French legal
literature a position which is only secondary to that of the
codes and statutory law.
Judicial organization will be discussed in connection with
procedure, but it would not be out of place to mention here
that the decisions of the Cow  de Cassation as the court of Cassation
last resort are the most important. The decisions of the
court are reported in an official publication, Bulletin des
arrets de la Cour de Cassation, published by the Government press. Divided into two parts, the Bulletin has reported civil cases since 1792 and criminal cases since 1798.
The civil series reports only those cases which come before
the Chambre civile, and not decisions of the Chambre des
requetes rejecting applications for review. While valuable,
in that it gives all the decisions of the criminal and civil
chambers, the Bulletin is not habitually consulted by lawyers and therefore is not as important a part of legal literature as the reports published through private enterprise.
4 Capitant, H. Introduction A 1'6tude du droit civil. Notions
g6n6rales. 4. 6d. Paris, Pedore, 1922. 455 p.




20


GUIDE TO THE LAW OF FRANCE


Of these the most valuable are those published by Dalloz
and Sirey.
Private   The Recueil periodique et critique, generally known under
Reports  the name of Dalloz or Dailoz periodique, had its origin in
the Journal des audiences de la Cour de Cassation, a court
report which was originally limited to decisions of the Cour
de Cassation. Published after 1822 under the direction of
Dalloz, the Journal took the name of its director in 1825.
The present report was founded in 1845. It appears
monthly, forming a volume a year, and is divided into four
principal parts: (1) Decisions of the Court of Cassation;
(2) decisions of appellate courts and courts of original jurisdiction (tribunuaux); (3) administrative decisions; and (4)
laws and decrees along with legislative reports and discussions. In addition, a fifth part contains head notes of court
decisions (somrnaires). The Recueil priodique is completed by alphabetical subject-index digests (tables). The
index for the period from 1845 to 1867 consists of two volumes. For the period from 1867 to 1907 there is a onevolume index for each ten years, and since the latter date one
volume for every five years. Inasmuch as some of the volumes of the reports between 1845 and 1897 are difficult to
procure, the indices for the periods prior to the latter date
may be used as a supplement to the reports. Dalloz also
reports weekly, in its Recueil hebdomadaire de jurisprdence,
begun in 1924, the text of decisions of particular interest.
This publication contains a special part, entitled chronique,
consisting of short articles on legal matters. Citations to
the Recueil periodique give the year, the part, and the page,
e. g., D. P. (or D.), 1900.2.350. Citations to the Recueil
hebdomnadaire give the year and the page, e. g., D. H.
1924.189.
The Recueil general des lois et des arrets de Sirey goes
back to 1791. Decisions prior to 1830 are collected in a
9-volume publication. At present the Recueil appears
monthly, and since 1830 it has formed a volume a year. The
publishers are now engaged in preparing a 20-volume
abridged reprint of the reports covering the period from
1791 to 1900 (Refonte du Recueil Sirey) of which nine
volumes reporting decisions from 1876 to 1900 have already
appeared. Each volume of the Recueil is divided into four




COURT REPORTS


21


parts: (1) Decisions of the Court of Cassation; (2) decisions of appellate and lower courts; (3) administrative
decisions, and (4) foreign decisions. Like the Recueil
periodique of Dalloz the Recueil general is also supplemented by a valuable publication containing head notes
(sommaires) called Recueil des sommaires.   As already
stated, legislative acts and decrees are reported in Lois
annotees, which, while an appendix to the court reports, are
published separately. An extremely important part of the
Recueil Sirey is its alphabetical subject-index digest (tables).
That for the period from 1791 to 1850 consists of four
volumes, and between 1850 and 1910 six decennial volumes
were published. Since 1910 there has been a volume every
five years. This index digest is particularly valuable, inasmuch as it gives, in addition to references to decisions, a
resume of diverse opinions of text writers.
Citations to the Recueil general give the year, the part,
and the page, e. g., S. 1903.1.5.
Two other important reporters were published during
the nineteenth century but were absorbed into the Recueil
general published by Sirey.
The Pandectes franqaises, forming one volume annually,
began publication in 1886 and was combined with the
Recueil general in 1908, continuing, however, to appear,
until recently, under separate cover. The collection includes
Pandectes chronologiques reporting decisions from 1789 to
1886 and forming the first six volumes of the complete set.
The Journal d& palais also began publication as a distinct periodical. Decisions from 1791 through 1836 were
collected in a 27-volume edition in 1837, and beginning with
that date, one volume was published annually. In 1866 the
Journal was united with the Recueil general. From then
on its content was the same though the cover remained different. In 1924, the Pandectes franfaises, the Journal du
palais, and the Recueil were definitely combined into one
publication with the same content and cover.
While the reported decisions of the courts are in themselves of value, an important feature of the private reporters
which have just been mentioned consists of the notes and
commentaries which accompany the cases. The unique sys



22


GUIDE TO THE LAW OF FRANCE


ter of combining court decision and commentary has, it is
believed, a value which would be well worth consideration
by publishers in this country. The comments are not merely
annotations of previous decisions, like L. R. A., but critical
comment by an authority on the order of our case notes
and comments in legal periodicals. Combining the functions of a court reporter and case notes and comments the
French system not only serves the useful purpose of furnishing the lawyer valuable information with respect to
the reported case, but, at the same time, through wholesome criticism by leading authorities, permits the bar and
the teaching profession to bring to bear on the shaping of
the law their accumulation of knowledge and thought. Unlike those of the law reviews of this country, the editorial
staffs of the two leading reporters include lawyers, judges,
and teachers. One of the results of this combination has
been to bring the bench and the bar and the practitioner
and teacher into closer contact, with the result that doctrine
and jurisprudence instead of working at cross purposes
are engaged together in the problem of shaping and applying the law. An interesting article by Professor Meynial
on case comments and notes appears in the Livre du centenaire (v. 1, p. 173), under the title Les reueils d'arrets.
In addition to the monthly publications just discussed,
there are a number of important daily legal journals which
also report court decisions. They are the Gazette du
pa/ais, the Gzette des tribzunax, the Loi, and the Droit;
the first two also publish, monthly, the decisions already
reported in the dailies. The Gazette du palais began publication of its monthly reports in 1881 and the Gazette des
tribunaux in 1898. Both form   several volumes annually
and like the reporters already mentioned contain valuable
commentaries.
Besides the reporters, devoted to court decisions generally,
there are a number of important publications which report
decisions relating to some particular field of the law. Decisions in commercial matters are reported monthly in the
Journal des tribunaux de, commerce which was founded in
1852. Cases involving maritime as well as other commercial
matters are reported in several periodicals published in im



COURT REPORTS


23


portant commercial centers and sea ports. These include
the Journal de jurisprudence commerciale et maritime, published at Marseilles; Jurisprudence commerciale et naritime de Nantes, founded in 1859 and since 1923 published
by the bar of Nantes and the Recueil de uwrisprudence cornmerciale et maritime du Ha vEe, founded in 1855.
The most complete report of administrative decisions is
the Recueil des arrets du Conseil d'Etat, a monthly publication, which was founded in 1821. It is sometimes referred
to as Recueil Panhard, after its founder, and is often called
Recueil Lebon, after one of its later directors. It should be
recalled that both Dalloz and Sirey devote a special part
of their reports to administrative decisions.
In addition to reporters, a number of the more important
periodicals-which will be discussed in connection with their
subject matter-contain sections devoted to court decisions.
ENCYCLOPEDIAS-DICTIONARIES
Legal encyclopedias, giving as they do a general exposi- Encyclotion of legislation, doctrine, and jurisprudence, naturally edias
constitute an important and valuable part of French legal
literature. Consisting of separate treatises and monographs, arranged alphabetically according to subject matter, they cover the entire field of the law or sometimes a
particular branch. Of those covering the whole of the law,
the most important are the Repertoire general alphabetique
and the Repertoire pratique.
The Repertoire general alphabetique,4  in 37 large volumes, was published between 1886 and 1906 under the direction of Fuzier-Herman, a former magistrate; Carpentier,
an advocate; and Frerejouan du Saint, also a former magistrate. A supplement of about 10 volumes is now being
prepared by the Recueil Sirey under the direction of
Frerejouan du Saint and Professor Eugene Godefroy. At
present, volumes 1 to 7 have appeared. It is usually cited
under the name Fuzier-Herman.
41 Fuzier-Herman, E., Carpentier, A., et Frcrejouan du Saint, G.
Repertoire general alphabetique du droit frangais. Paris, Recueil
Sirey, 1886-1906. 37 v. Supplement, 1911-28. 7 v.




24


GUIDE TO THE LAW OF FRANCE


The Repertoire pratique,2 although less voluminous than
the Repertoire general, gives a very practical and valuable
exposition of French legislation and decision. The entire
publication consisted originally of 12 volumes, which appeared between 1910 and 1926. A 2-volume supplement has
now been added, having been published in 1927 and 1929.
In addition, Dalloz published during the course of the
last century a more extensive encyclopedia which, while
still valuable, is unfortunately somewhat out of date. This
publication, Repertoire merthodique,43 was compiled between
1845 and 1870. A supplement was added between 1887 and
1897.
More recently a somewhat similar publication, Juris-classeurs,44 has been added to the list of modern encyclopedias.
The entire collection consists of a number of different parts
designated under the headings civil, penal, procedure civile,
colnmercial, societes, notariat, enregistrement.  The publication is made up of interchangeable sheets which are kept
up through addition or replacement by new sheets. While
the plan may be a good one, the Juris-classeurs does not seem
to be as popular with the teaching profession as the other
encyclopedias. It is, however, often recommended by practitioners.
42 Dalloz. Repertoire pratique de legislation, de doctrine et de
jurisprudence, par G. Griolet, C. Verge, C. Kehler et W. Robinet.
Paris, Dalloz, 1910-26. 12 v. Supplement. 1927-29. 2 v.
43Dalloz, D. R6pertoire methodique et alphabetique de legislation,
de doctrine et de jurisprudence. Paris, Dalloz, 1845-70. 44 v.
Supplement, 1887-97. 19 v.
" Juris-classeurs. Paris, Librairie des Juris-classeurs. Godde.
The collection was made up of the following parts at the end of 1927:
Civil: Code civil annot0, 18 v.; Jurisprudence, 2 v.; Annexes, 2 v.Procedure civile: Code de procedure civile annote, 5 v.; Jurisprudence,
1 v.; Formulaire analytique de procedure civile, 3 v.-Commercial:
Code de commerce annot6, 4 v.; Jurisprudence, 1 v.; Annexes, 2 v.P6nal et d'instruction criminelle: Code penal annote, 2 v.; Code d'instruction criminelle annot6, 2 v.; Jurisprudence, 2 v.-Accidents du
travail: Textes, 1 v.; Commentaire, 2 v.; Jurisprudence, 2 v.-Societes: Trait4, 9 v.; Formules annotees, 2 v.-Justice de paix, 5 v.Notarial: Repertoire doctrinal, 26 v.; Formules, 16 v.; Recueil, 1 v.;
Fiscal, 2 v.; Enregistrement, 2 v. The publishers intend to add other
volumes to the various parts.




ENCYCLOPEDIAS-DICTIONARIES


25


The Nouweau repertoire,45 usually cited under the title
Pandectes fran~aises, is also an excellent comprehensive
piece of work, but its place has been largely taken by the
encyclopedias just mentioned. The original encyclopedia
was published between 1886 and 1905 and a 4-volume supplement appeared between 1907 and 1910.
In connection with encyclopedias, mention should be
made of the much earlier and extremely popular encyclopedic works of Merlin.      His Repertoire universel46 was
published in a fifth edition in 1827 and 1828 and his Questions de droit 47 in a fourth edition between 1827 and 1830.
Encyclopedias devoted to particular branches of the law
will be discussed in connection with their subject matter.
The most complete French legal dictionary is the Dic- Dictiontionnaire pratique,48 published by the Librairie Dalloz inariei
encyclopedic form.
There are several small Anglo-French legal dictionaries.
The more recent include a Dictionary of Anglo-Belgian
law49 by Anspach and Coutanche, A        French-English dictionary of legal and commercial terms 50 by Graham Olver,
and Dictionnaire juridique anglais-franfais5l by FernandLaurent and Daumas.       There is also an earlier FrenchEnglish dictionary of legal words and phrases by Williamson.52
45Pandectes francaises. Nouveau repertoire de doctrine, de legislation et de jurisprudence. Paris, Pichon et Durand-Auzias, 1886 -1905. 59 v. Supplement. 1907-10. 4 v. Begun by Riviere and continued by Weiss and Frennelet.
4 Merlin. Repertoire universel et raisonn6 de jurisprudence. 5. (d.
Paris, 1827-28. 18 v.
47Merlin. Recueil alphabetique des questions de droit. 4. ed.
Paris, Garnery, 1827-30. 8 v.
8 Dictionnaire pratique de droit. Paris, Dalloz, 1913-14. 2 v.
Supplement and additions, 1922, 1925, 1926, 1929.
49Anspach and Coutanche. Dictionary of Anglo-Belgian law. London, Sweet and Maxwell, 1920. 181 p.
00 lver, Graham. A French-English dictionary of legal and commercial terms. London, Stevens and sons, 1925. 170 p.
1 Fernand-Laurent et Daumas, G. Dictionnaire juridique anglaisfrancais et frangais-anglais. Paris, Rousseau, 1927. 227 p.
52Williamson, A. A French-English dictionary of legal words and
phrases including legal commercial terms most commonly in use.
London, Stevens and sons, 1911. 135 p,




26


GUIDE TO THE LAW OF FRANCE


LEGAL EDUCATION
Educational methods are apt to be looked upon as a matter
of common knowledge by those most intimately connected
with them, i. e., teachers, and, unless the subject of special
investigation resulting in reports, such as those of the
Carnegie Foundation in this country, they are not likely to be
dealt with in current literature. Prior to 1928 there seems
to have been no comprehensive study of legal education in
France, and information necessarily had to be gleaned from
student guides and a few articles in periodicals, or, better,
from  actual contact with French law  schools and their
faculties. This lack is now covered by a critical comparison
of the teaching of law in France and in the United States
in a work by Valeur and Lambert, L'eneignement    dr oit
en France et aux Etats-Unis.53
Various publishers issue student guides. The best seems
to be Guide Dallos 54 which gives in convenient form the
regulations of the Paris Law School with respect to matriculation, courses of study, degrees, examinations, scholarships
and prizes. Professor Berthelemy, dean of the Paris Law
School, is the author of an interesting sketch in nontechnical
language appearing in the Revue des deux Mondes (v. 36
(1926), p. 303) in which he discusses instruction, teachers,
and students, particularly in the Paris school. A very
good, short, but comprehensive study, by J. P. Bullington
of the Houston (Tex.) bar, appeared in the Texas Law
Review in 1926 under the title Legal education in France.
(v. 4, p. 461.) Meager and superficial information may
be obtained from two articles appearing in the Pennsylvania
Law Review in 1912 and 1913-A morning at the Paris Law
School and A Paris law examination (v. 61, p. 33, v. 62,
p. 187.) And a very good but now superannuated article
on French schools of law was published in the Law Quarterly
Review (v. 6, p. 42) by Malcolm McIlwraith in 1890. The
3 Valeur et Lambert. L'enseignement du droit en France et aux
]tats-Unis. Paris, Giard, 1928 (Biblioth6que de 1'Institut de droit
compare de Lyon, t. 23) cxix, 393 p.
54Universit6 de Paris. Guide Dalloz de 1'etudiant en droit. Annee
scolaire 1927-28. Paris, Dalloz, 1927. 117 p.




LEGAL EDUCATION


27


Journal of Comparative Legislation (v. 2, p. 131) published
an address, ihe teaching of law in France, delivered by
Thomas Barclay before the American Bar Association in
1900. The scientific and social missions of schools of law,
with particular reference to the school at Nancy, were dealt
with by Professor Geny in an address delivered on the
occasion of the sixtieth anniversary of the reestablishment
of the Nancy Law School. This address which was subsequently published in pamphlet form55 gives an excellent
idea of the concept entertained by a large number of French
law teachers of the mission of legal education in general.
An American, having as a background, contact with the Law
Schools
so-called better schools in this country, is likely to be surprised by the size and variety of the student bodies in
French schools. One would naturally expect the school
at Paris to be the largest; but it is a distinct surprise to
find that it numbers its student body by thousands where,
with one notable exception, outstanding American schools
number theirs by hundreds and are all tending consciously
toward smaller enrollment by insisting on high quality. In
the article previously referred to, Professor Berthelemy gives
8,557 as the total enrollment in the Paris Law School during 1925. Since then, there has been some increase. Although the discrepancy between the enrollment at Paris and
in the provincial schools is great (that in the next largest,
Lyon, having been 773 in 1925, and that in the smallest
school well over 300), comparatively, student bodies seem
large.
The size of enrollment in French schools is due to aEnrollnumber of causes. Including the University of Algiers,ment
there are only fifteen universities in France proper having
law schools authorized to grant the degree of licence, which
is a prerequisite to practice in French courts as advocate.
In addition, while practically all students in American
schools intend to practice, an important part of those in
French schools study law for other purposes. The article
6 G6ny, C. La mission scientifique et sociale des Facult&s de droit
A l'heure actuelle. Comment elle est comprise et pratiqu6e & Nancy.
Paris, Recueil Sirey, 1925. 35 p.
49926~-31-  3




28


GUIDE TO THE LAW OF FRANCE


in the Texas Law Review (4 Tex. L. R. 461) already referred to, gives a short description of the classes of students
in French schools.
Some knowledge of law is considered to be necessary in a
number of occupations in France and a not inconsiderable
portion of the student bodies in the various schools consists of students who for one reason or another only attend lectures (auditeurs) or who are preparing for the
certificate of "capacity in law " (capaaite en droit). Even
a number of those preparing for the licence do not intend
to engage in court practice but expect to go into one of the
allied professions such as that of notary or pleader (avouw)
or to take up Government work or even to use their knowledge of law as an asset in ordinary business pursuits. In
addition, inasmuch as a number of countries have modeled
their legal system on that of France, French schools, particularly the Paris Law School, draw students from jurisdictions other than France, very much as national law
schools in the United States draw students from jurisdictions other than those in which they are located.
Degrees   Leaving aside the certificate of capacity in law, preparation for which requires no prior diploma, the degrees and
diplomas awarded in French law schools comprise the
licence, diplomas of advanced study (diplornes detudes
superieures) and the doctorate. Students who enroll for the
licence are required to have the French baccalaureate or its
equivalent. The list of degrees which take the place of the
baccalaureate for French students is too long to set forth
in detail here. The degrees and diplomas listed are, however, seemingly more than the equivalent of the baccalaureate. Foreign students who do not have the French
baccalaureate are in principle entitled to enroll, provided
they have completed studies which permit them to undertake advanced work in the universities of their own countries. The ministry of public education publishes annually
a list of foreign degrees, diplomas or certificates which will
be recognized as permitting their holders to pursue advanced work. The course of study in the law schools
normally covers three years, examinations being given annually. Its content is governed by a decree of August 2,




LEGAL EDUCATION


29 -

1922, and practically all the work is compulsory. Also, the
courses are somewhat broader in their scope than those
given in American schools. In addition to subjects which
normally form a part of legal cu'rriula such as constitutional law, civil law, criminal law, commercial law and
procedure, the course of study in French universities includes
Roman law, legal history, and financial legislation as required subjects, and fiscal and industrial legislation, among
others, as optional subjects, as well as two years of
political economy.
Diplomas for advanced studies are given in four different
lines of endeavor-one in Roman law and legal history, one
in private law, one in public law, and one in political economy. The licence is a prerequisite. The doctorate is conferred on students who have published a printed thesis
which has been found worthy by an examining committee.
A candidate for the doctor's degree must also have obtained
two diplomas for advanced study. The reputation of the doctorate in law was materially compromised by the military
law of 1889 which excused its holders from military service.
But the abolition of this exemption, in decreasing the number of applicants, increased the standards required, with
the result that doctor's theses form a valuable part of
French legal literature, often constituting the only literature
on a given point. Reference should again be made at this
point to Professor Capitant's little book on the preparation
of the doctor's thesis.56
It would of course be presumptuous for an outsider to Yacuwties
attempt to give an estimate of the relative standing of the
different schools. Due to its location in the political and
cultural center of France, that at Paris is naturally able
to draw the largest student body, and, in addition, the greatest number of outstanding legal educators. But no single
school has a monopoly of the best legal talent. Hence it
should occasion no surprise to find that eminent scholars
are located among the schools in the provinces. To mention only a few examples, Bordeaux can boast of the late3 Capitant, H. Comment il faut faire sa those de doctorat en droit.
2. Ad. Paris, Dalloz, 1928. 87 p.




30


GUIDE TO THE LAW OF FRANCE


Professor Duguit and Professor Bonnecase; Lyon of Professors Lambert, Pic, and Josserand; Montpellier of the late
Professor Charmont; Grenoble of Professor Cuche; Toulouse
of the late Professor Hauriou; and Nancy of Professor G6ny.
Aubry and Rau were at Strasbourg when they first produced
their classical work on the Civil code.
In connection with the eminence of the names of members of various law faculties, attention should be called here
to the fact that law teachers have contributed a preponderant part to the legal literature of France since the promulgation of the Napoleonic codes. Mention has already been
made of Aubry and Rau. Later works on civil law are
connected with the names of Demolombe, Beudant, Planiol,
Ripert, Baudry-Lacantinerie, Colin, Capitant, and Demogue, all of whom have been or still are prominent law
teachers. In the field of commercial law the outstanding
treatises are the works of Thaller and Percerou and LyonCaen and Renault; in the field of public law the prominent
names include Professors Duguit, Hauriou, Berthelemy,
JFze, Bonnard, and Appleton; and in criminal law, a subject which has been but little dealt with by American and
English legal educators, the best literature is also the work
of members of law faculties.
While a few of the smaller schools call on prominent
members of the bar to supplement the regular teaching
staff, full-time professors are the rule and part-time teachers
the exception. Professors, however, are frequently called
upon for legal opinions.
Method of  To the American who has come to accept the case method
instrton as the only method for legal instruction the lecture method
may seem somewhat of an anachronism. Supplemented by
conferences, consisting of informal discussions, it is, however, the mode employed generally in French as in other
European law schools.
One of the results of the lecture system has been the publication of notes and small texts as aids or even cram books.
While students are always advised to depend on lectures as
superior to books, in later years there seems to have been
a tendency on the part of teachers to cooperate with legal
publishers in preparing small texts. These texts, while not




LEGAL EDUCATION


31


to be confused with such superior works as the scholarly
elementary treatises of Professors Planiol and Ripert and
Colin and Capitant in the field of civil law or the more pretentious manuals in commercial and criminal law, such as
those of Professors Thaller and Percerou or Garraud, give
important summaries and may be of value if one desires
only a superficial knowledge of various parts of the law.
The best seem to be those published by the houses of
Dalloz57 and Sirey.58
The American case method has received some attention on
the part of French teachers. Several years ago, with our
method in mind, Professors Lambert and Capitant, with
the collaboration of a number of instructors, compiled a
small collection of legal problems which was published
under the title Especes choisies.59  An excellent exposition
of the method was published in the Revue interntionale
d'enseignement in 1920 (p. 160), under the title Le systene
du '"case," by Pierre Lepaulle, who, while not contending
7 Petits precis Dalloz. Paris, Dalloz. The collection, the parts of
which are revised from time to time, includes: Droit administratif
par L. Rolland, 1 v.; Droit constitutionnel par A. Bonde, 1 v.; Droit
civil, 3 v.; Droit commercial par L. Lacour, 1 v.; Droit criminel par
P. Cuche, 1 v.; Droit maritime par L. Lacour, 1 v.; Droit romain par
P. Collinet and A. Giffard, 2 v.; Economie politique par P. Reboud,
2 v.; Histoire du droit par A. Bonde; Legislation industrielle par
H. Capitant and P. Cuche; Procedure civile et commerciale par
P. Cuche; and Voies d'execution par P. Cuche. The last four 1 v.
each.
68La licence en droit. Precis 6lementaire. Paris, Recueil Sirey.
The collection comprises: Droit civil par Joseph Hemard, v. 1, 1928;
v. 2, 1st and 2d parts, 1929; Droit administratif par Maurice Hauriou,
1925, 521 p.; Droit constitutionnel par Maurice Hauriou, 1925, 318 p.;
Droit administratif par Roger Bonnard, 1926, 555 p.; Droit penal et
de procedure penale, par A. Roux, 1925, 425 p.; Legislation industrielle
par Georges Scelle, 1927, 362 p.; D'Economie Politique par H. H.
Truchy, 2 v., 1927; Procedure civile par Ch. Cezar-Bru, 1927, 510 p.;
Voies d'execution, 7e ed. par Louis Josserand, 1925, 406 p.; Droit
international prive par J. P. Niboyet, 1928, 361 p.; Droit romain par
Ernest Perrot, 1927, 468 p.; Droit romain (Notes de cours): Les obligations, 1926, 301 p.; Droit public par Roger Bonnard, 1925, 376 p.
9 Capitant et Lambert. Espcces choisies empruntees a la jurisprudence, publiees par un groupe de professeurs des Facultes de
droit. Paris, Dalloz, 1924. 2 p. 1, ii, xix, 301 p.




32


GUIDE TO THE LAW OF FRANCE


that it be adopted in France to replace the lecture method,
urged that it.be considered by French teachers for its value
in connection with the teaching of a system of jurisprudence
not based on the common law.
Before closing the discussion on legal education attention
should be called to a comparatively recent work criticizing
the methods of French law schools, L'enseignement du droit
et la formation du citoyen,60 published by Professor Aron,
in charge of the course of study at the law faculty of the
University of Caen. A number of points in legal education were also critically dealt with in an article, Facltes et
ecoles de droit, which was published by Professor Cuche,
of Grenoble, in the Revue internationale de l'enseignemnent
for 1918 (p. 355). Attention might also be called here to a
recent publication by Professor Bonnecase, Qu' est ce qu'
une faculte de droit.60a  In addition, mention should be made
of a recent work of a popular nature, dealing with students,
by Professor Mestre, of Paris.6~b
PHILOSOPHY OF LAW
Philosophy of law, as the term (philosophic du droit) is
used by French writers, has as its object a search for the
underlying foundations and purposes of law. Taking as
their background the entire field of the intellectual movement in Europe during the course of the last century, comprised within the general scope of the terms "theoretical
jurisprudence," "rechtsphilosophie," and " philosophie dict
droit," a number of writers have undertaken to classify
jurists according to their views of the nature of law or
methods of approach to the science of law. Lord Bryce
in his Studies in history and jurisprudence 61 tells us that
four methods are commonly spoken of as employed in legal
science, namely: the metaphysical or a priori method, the
'Aron, G. L'Enseignement du droit et la formation du citoyen.
Paris, Boccard, 1920. 127 p.
60a Bonnecase, J. Qu' est ce qu' une facult6 de droit. Paris, Sirey,
1929. 202 p.
Gb Mestre, A. ttudes et Btudiants. Paris, Dalloz, 1928. 160 p.
e1 Bryce, J. Studies in history and jurisprudence. New York, London, Oxford University Press, 1901. 2 v.




PHILOSOPHY OF LAW


33


analytical method, the historical method, and the comparative method. Dean Pound in a series of articles in the
Harvard Law Review62 says that until recently it was
possible to divide jurists into three principal groups which
he calls the philosophical school, the historical school, and
the analytical school. To these he would add a " rising and
still formative school " which " may be styled the sociological
school."
Of the three groups first named by Dean Pound, the
philosophical school, which has as its characteristic the
study of the philosophical and ethical bases of law, legal
systems and doctrines, is the oldest. Having its origin in
the metaphysical speculations of Greek philosophers, the
philosophical method constituted the principal method of
approach during the seventeenth and eighteenth centuries.
Borrowing from antiquity a concept of ius naturale, the philosophers of this latter period appealed to natural law or
the law of nature for their guiding principles in determining the ethical foundations of law. In the hands of
the seventeenth and eighteenth century philosophers, however, natural law was divorced from theology. Instead of
having a theological foundation its basis became a rational
one. Grotius (1583-1645), to whom belongs the honor of
reviving the concept of natural law and founding the modern philosophical method of jurisprudence, while not completely separating natural law from the will of God, in the
first book of De jure belli et pacis describes it as supplying
the rules which are suggested by reason and from which
we necessarily determine whether particular action is just
or unjust. The philosophical method of the first half of
the last century was primarily metaphysical. Its adherents,
usually using the philosophy of Kant, the outstanding
founder of this school, as their starting point, investigated
the abstract ideas of right and law in their relation to
62 Scope and purpose of sociological jurisprudence. 24 Harvard Law
Review 591; 25 Harvard Law Review 140, 489; The progress of the
law: Analytical jurisprudence, 1914-1927. 41 Harvard Law Review
174. In this last article Dean Pound devotes considerable space to
French legal philosophy, particularly with reference to Ldvy-Ullmann's
La definition du droit (infra, p. 47, note 12).




34


GUIDE TO THE LAW OF FRANCE


morality, freedom, and the human will. The metaphysical
abstractions of this branch of the philosophical school fell
an easy prey to its opponents and the philosophical method
for a while was in disrepute. But as pointed out by Dean
Pound in the series of articles already referred to, a reaction has set in, especially in France, where the philosophical method was never completely abandoned.
The long list of nineteenth century jurists who adopted
the philosophical method is ample evidence of its continuous importance in French thought. The list, to mention only the more important names in chronological order,
includes Lerminier, whose Philosophie du droit 63 was published in three editions between 1831 and 1853; Jouffroy,
the author of Cours de droit nature,64 published in five
editions between 1833 and 1876; Belime, whose Philosophie
du droit65 was published in four editions between 1843 and
1881; Oudot, whose works, Premiers essais de philosophie
du droit 66 and Conscience et science du devoir 67 were published in 1846 and 1856; Franck, the author of Philosophie
du droit ecclsiastique,   published in two editions, and of
Philosophie du droit ivil,69 published in 1886; Renouvier,
whose Science de la morale 70 appeared in first and second
editions in 1869 and 1908; Boistel, the author of two works,
the first, Cours elementaire de droit naturel,71 published in
Lerminier, J. Philosophie du droit. 3. ed. Paris, Guillaumin,
1853. 535 p.
6 Jouffroy, Th. Cours de droit naturel. 5. 6d. Paris, Hachette,
1876. 2 v.
Belime, W. Philosophie du droit, ou cours d'introduction a la
science du droit. 4. ed. Paris, Durand, 1881. 2 v.
"Oudot, J. Premiers essais de philosophie du droit et d'enseignement methodique des lois frangaises. Paris, Joubert, 1846. 415 p.
Oudot, J. Conscience et science du devoir, introduction a une
explication nouvelle du Code Napoleon. Paris, Durand, 1856. 2 v.
8Franck, A. Philosophie du droit ecclesiastique. Paris, GermerBaillitre, 1864. 192 p.
e Franck, A. Philosophie du droit civil. Paris, Alcan, 1886.
295 p.
70Renouvier. Science de la morale. Nouv. ed. Paris, Alcan, 1908.
2 v.
71Boistel, A. Cours elementaire de droit naturel ou de philosophie
du droit, suivant les principes de Rosmini. Paris, Thorin, 1869.
461 p.




PHILOSOPHY OF LAW


35


1869, and the second, Cours de philosophie du dpoit,72 in
1899; Fouillee, whose most important work, L'Idee moderne
du droit,78 was first published in 1878; Rothe, the author
of a philosophical treatise in six volumes, which was published under the title Traite de droit naturel theorique et
applique74 between 1885 and 1912; Lucien Brun, author of
l'Introduction a' l'etude du droit,75 published in a second
edition in 1887; Beaussire, author of Les principes du
droit,76 published in 1888; de Vareilles-Sommieres, who published his Les principes fondamentaux du droit77 in 1889,
and Beudant, whose important work, Le droit individuel et
l'Etat,78 first appeared in 1891.
There was, however, during the course of the century an
evolution in method of approach. The philosophy of the.
early period was impregnated with the idea that there
exists over and above positive law an ideal system of law
consisting of immutable principles which are discoverable
through reason and to which positive law should conform.
The authors of the Civil code were under the influence of
the then prevailing transcendentalism when they proposed
to inscribe at the head of the code the formula: " There is
an universal law, immutable, the source of all positive
laws." The works of the metaphysicians of the first half of
the century were imbued with the same thought. Professor
Jouffroy in his popular Cours de droit naturel speaks of
natural law as having as its subject the rules of human conduct under all possible circumstances. Professor Oudot in
his Premiers essais defined natural law as the collection of
rules which it is desirable to see immediately transformed
'2Boistel, A. Cours de philosophie du droit. Paris, Fontemoing,
1899. 2 v.
" Fouillee, A. L'idee moderne du droit. Nouv. ed. Paris, Hachette, 1923. 408 p.
74Rothe, T. Trait6 de droit naturel theorique et applique. Paris,
Larose et Forcel, 1885-1912. 6 v.
5"Brun, Lucien. Introduction A l'6tude du droit. 2. ed. Paris,
Lecoffre, 1887. 400 p.
Beaussire, E. Les principes du droit. Paris, Alcan, 1888. 427 p.
"La Broiie de Vareilles-Sommimres, G. Les principes fondamentaux du droit. Paris, Pichon, Guillaumin, 1889. 491 p.
*  Beudant, C. Le droit individuel et l'ltat. Introduction a l1'tude
du droit. 3. ed. Paris, Rousseau, 1920. 290 p.




36


GUIDE TO THE LAW OF FRANCE


into positive laws. Even the more recent works of Professor
Franck and de Vareilles-Sommieres were inspired by the
earlier concept of natural law.
But during the latter part of the nineteenth century the
earlier metaphysical conception gave way, particularly in
the hands of such writers as Fouillee, Boistel, and Beudant,
to a concept of ideal justice supplying the principles which
should direct man in his effort to perfect the social order.
Opinions, however, differed as to the content which should
be given this ideal.
The prevailing nineteenth century content as conceived
by the natural law or philosophical school (which in France
seem to be synonymous) was individualistic. Respect for
human personality has always been important in French
thought. Its principles were contained in the Declaration
of the rights of man, and individual liberty also formed
the background of the codes of the Napoleonic era. The
abstractions of the metaphysicians, dealing as they did
with the relations of right and law to morality and freedom of the human will, naturally led with some to definition
in terms of the individual and a conception of fundamental
subjective rights which are indispensable if man is to live
in a manner that conforms to his nature and which, for
that reason, should not be encroached upon. Lerminier, Renouvier, Franck, and Boistel dealt with a natural law defined in terms of respect for the individual. Beudant's Le
droit individuel et l'Etat was written as a protest against
the ever-growing encroachment of society on the individual.
But not all of the French law-of-nature philosophers of
the last century were necessarily individualists. Belime,
Oudot, and Beaussire seem to have found duty rather than
freedom to be the basis of law. Professor de Vareilles-Sommieres along with Senator Lucien Brun looked upon natural
law, derived from divine law, as supplying the principles
underlying the maintenance of social order. Professor
Fouillee, whose L'idee moderne du droit is translated in part
in Modern French legal philosophy,79 v. 7 of the Moderv
7 Modern French legal philosophy, by A. Fouillee, J. Charmont, L.
Duguit, and R. Demogue. Tr. by Mrs. Franklin W. Scott and Joseph
P. Chamberlain. Boston, The Boston book co., 1916. lxvi, 578 p.




PHILOSOPHY OF LAW


37


legal philosophy series, identifies justice with liberty, but
at the same time, under the influence of the prevailing positivist sociological doctrine, he assigns to law the dual purpose of promoting the interests of society and protecting
the individual.
In France, as elsewhere on the Continent and in England,
the early part of the nineteenth century saw a reaction
against the traditional philosophical method. This reaction
came from three well-defined groups which are usually designated under the terms the "historical school," the " analytical school," including the social-utilitarian school, and
the "positivist-sociological school."
The historical school saw in law a product of time and
unconscious evolution. Law is not made, but is the result
of growth. German in origin, its chief connection with
France as a school is Savigny's warning, in his celebrated
Of the vocation of our age for legislation and jurisprudence,80 against hasty codification along the lines of the
French codes. Although the historical school has come in
for considerable discussion in various works of French
writers, usually critical, no outstanding French jurist can
be strictly said to be included among its adherents. An
article in the Livre du centenaire,81  Le Code civil et la?nethode historique, by Professor Saleilles, in which that
learned and versatile writer attempts to show that, contrary
to the predictions of Savigny, codification in France has not
impeded the historical evolution of French law, might serve
to identify him with the historical method, but Professor
Saleilles, in his studies in criminology and comparative law,
showed himself to be too catholic in his interests to be
strictly identified with any school.
Anglo-American lawyers usually think of Austin in connection with the analytical method. If the analytical method
is defined so as to include only an examination of existing
legal data with a view to their classification and an explana80 Savigny. Of the vocation of our age for legislation and jurisprudence, from the German by Abraham Hayward (from the 2d, 1828,
ed.). London, Littlewood, 1831. 192 p.
81 Le Code civil, 1804-1904; livre du centenaire, pub. par la Soci6et
d'etudes legislatives. Paris, Rousseau, 1904. 2 v.




38


GUIDE TO THE LAW OF FRANCE


tion of their connotation and interrelation, one would
naturally expect to find it employed more or less in France
in treatises devoted to positive law as contained in the different codes. In this sense it is the method of Aubry and Rau
in their classical work on the Civil code; 82 instead of following the order of the Code, the authors discuss the subject in
monographic form scientifically classified. Professor Capitant, professor of civil law at the University of Paris, adopts
this method, with a philosophical background, however, in
his comparatively recent and extremely useful introductory
work on civil law,83 in which he discusses such subjects as
subjective rights and their division, persons capable of enjoying rights, property, the acquisition and loss of rights
and proof.
But the analytical jurist also looks upon law as something which is consciously made. Bentham, who is usually
referred to as the founder of the analytical method, represented the English reaction against the metaphysical abstractions of continental philosophy and against the then
current self-satisfaction of the English lawyer as typified
by Blackstone's Commentaries. Not content with classification for its own sake, Bentham made the theory that law
is a conscious creation serve as the basis for a doctrine that
it should be made to promote a social utilitarian purpose.
His utilitarianism, which was more a theory of legislation
than a legal philosophy, has always had a certain attraction
for French scholars, both because of French influence on
Bentham during his youth and because of the fact that the
utilitarian doctrine was followed in Engand by a liberal
movement comparable with that which resulted on the Continent in the revolutionary movement of 1848. In his excellent study of Bentham and the evolution of the utilitarian
doctrine Professor Halevy describes the parallel movement
in the following language: "The philosophy of the rights
of man led to the Revolution of 1848 on the Continent;
Aubry et Rau. Cours de droit civil frangais, d'apr~s la m6thode
de Zacharle. 5. ed. Paris, Marchal et Godde, 1897-1922. 12 v.;  Capitant, H. Introduction a i'tude du droit eivil. Notions
gunkrales. 4. ed. Paris, Pedone, 1922. 455 p.




PHILOSOPHY OF LAW


39


utilitarianism in England, at about the same time, led to
the triumph of the Manchester doctrine of free trade."8,
Nevertheless, the utilitarian doctrine remained essentially
English in its subsequent development, as, essentially, it
was English in origin.
Leaving aside the royalistic and theoretic doctrines of de
Bonald, de Maistre, and Lamennais, which were political
rather than juristic, the reaction in France against the
classical philosophical method came from the positivistsociological school which was founded by Auguste Comte
and represented the predominant realistic element in French
thought during the course of the last century. Due to their
importance with respect to the realistic movement in France
the doctrines of Comte85 deserve more than passing notice.
According to Comte, every science passes through three
stages. In the first, phenomena are explained as resulting
from the supernatural; in the second, the supernatural gives
way to a metaphysical explanation; and in the third, their
explanation is founded on observation with the formulation
of rules or laws based upon experimentation and induction.
Carrying his theory a step further, he concluded that juridical and political thought had already passed through the
second stage and that the time had come to adopt a truly
scientific method based upon an experimental study of social
facts. Rejecting the traditions of the classical school along
with natural law individualism, he says that positivism
only recognizes duties since its objective, being social, can
not be reconciled with a concept of right based on the
claim of the individual. As a result, law, instead of being
limited by a priori necessary respect for the individual, is a
means of intervention on the part of society in its own interest, and for its own protection. Time can not be taken
to refer to all the nineteenth century French philosophers
who were influenced more or less by the sociological methods
of the Comtian positivist school. A complete list would
include names of philosophers whose methods range all the
' Haikvy, E. La formation du radicalisme philosophique. Paris,
Alcan, 1901-1904. 3 v. The quotation is from v. 1, p. 37.
"*Comte, A. Cours de philosophie positive. 2. 6d. Paris, Baillre
et fils, 1864. 6 v.




40


GUIDE TO THE LAW OF FRANCE


way from out and out positivism to rationalism as well as
a number of sociologists and economists whose works do
not fall within the scope of this discussion. The more important names include Littre, Richard, Courcelle-Seneuil,
Tanon, and Durkheim.
Littre's Application de la philosophie positive au gouvernement des societess6 published in 1849, like Comte's Cours de
philosophie positive, is devoted to a scientific study of the
organization of humanity. Also, like Comte, he rejects individualism as unscientific and even goes so far as to express
a willingness to confide the direction of society to the more
intelligent class.  Gaston Richard's L'origine de l'ide du
droit,87 published in 1892 as a doctor's thesis, is an ingenious
but not always convincing study of intervention by society
in its own interests. Calling to his aid resources drawn
from a scientific study of comparative law, the learned writer
bases social intervention through law on the interest of
society in its own preservation from the consequences of
conflicts between individual activities, appetites, and desires. It is the intervention of society to preserve social
order which has given rise to such institutions as the family,
marriage, property, and contract. A right instead of preceding a wrong is created by society as a means of preserving the social order. Professor Courcelle-Seneuil in his two
more important works, Etudes sur la science sociale 88 and
Preparation a l'etude du droit,8s seems to have been inspired
in part by Bentham's utilitarianism, Spencer's individualism, and Comte's positivism. Utilitarian and at the same
time individualistic, even to a certain extent idealistic, he
also derives his concept of law from a study of the social
sciences. Rejecting the idealistic concept of justice of the
86 Littre, E. Application de la philosophie positive au gouvernement
des sociktes. Paris, Ladrange, 1849. vii, 159 p.
8Richard, G. Essai sur l'origine de l'id(e du droit. Paris, Thorin,
1892. xxiii, 263 p.
88Courcelle-Seneuil, J. G. Etudes sur la science sociale. Paris,
Guillaumin, 1862. 492 p.
' CourcelIe-Seneuil, J. G. Preparation a 1'6tude du droit, 6tude des
principes. Paris, Guillaumin, 1887. xi, 489 p.




PHILOSOPHY OF LAW


41


classical school, he finds law to be a collection of rules
founded on utility and having their source in the state.
Tanon, who was influenced both by historical and positivist
doctrines, in his study of law and the evolution of the social
conscience,90 assigned as the purpose of law the designation
of obligatory relations between men which are imposed by
the ideas of justice existing in the common conscience of a
social group at a given moment.
Standing alone, the sociological school in supplying a
scientific approach to the problems of legal philosophy
would be important enough as an historical factor in the
evolution of French juristic thought. But a greater importance lies in the fact that it contributed the doctrine of
social solidarity to the cross currents of present day French
legal thought. Professor Durkheim's work, Division -du
travail,91 is of particular importance in connection with the
doctrine, not only because he is one of the precursors of the
modern movement but also because his ideas were freely
drawn from by the present outstanding French realist, Professor Duguit. An advocate, primarily as a sociologist and
moralist and not as a lawyer, of the integration of social
science in the general system of natural sciences, Professor
Durkheim found social solidarity to be the outstanding vital
social phenomenon and the only basis for law and morality.
In considering the forces which bring men together into
a society Professor Durkheim names two contributing
causes-solidarity through similarity of desires and interests,
which he calls mechanical solidarity, and solidarity through
independent functions. In the beginning, in primitive society, men were drawn together through the similarity of
their needs, desires, and beliefs, but as society advances,
their desires and needs, as well as aptitudes, become more
and more diverse. As a result men are held together
through the facility for exchange of services to satisfy
their individual desires and needs. This cohesion through
"Tanon, L. L'6volution du droit et la conscience sociale. 3. 6d.
Paris, Alcan, 1911. 166 p.
91Durkheim, E. De la division du travail social. Paris, 4893. 471
p. 5. 6d. Paris, Alcan, 1925. 416 p.




42


GUIDE TO THE LAW OF FRANCE


satisfaction of differing needs he calls solidarity through
division of labor. It is worthy of remark that the bond
of union or social interdependence through independent
functions instead of destroying the individual is assumed
to bring about his development through increased activity
as a means of satisfying his desires. Michel, in his important work, L'idee de l'Etat,92 develops the same idea from
another point of view when he says that true individualism
does not isolate the individual but conceives of him as a
member of society developing along with the group.
The solidarist doctrine has received extensive discussion
at the hands of French philosophers, sociologists, and economists. The more important works not yet mentioned include Gide's L'idee de solidarite93 and Bougles' Le solidarisne.94 Mention shodld also be made of Solidarite,9
by Leon Bourgeois, who as a political leader made the doctrine the basis of a program of a political party. In the
hands of others it became the basis of a legal philosophy,
sometimes as a social fact to be accepted, and to which law
must conform, at others as an ideal which law should
promote.
The present century began with a number of legal problems to be solved. The centenary of the Civil code
brought to the front the question of revision. As might be
expected, a century-old code, little changed by legislation,
must, in order to apply to changed conditions, be either
revised or be given a new content through interpretation.
Thus arose an important question of method of interpretation. Also, during the hundred years since the codification of the Napoleonic era, changed social and economic
"Michel, H. L'id&e de l'itat; essai critique sur l'histoire des
theories sociales et politiques en France depuis la revolution. 3. ed.,
rev. Paris, Hachette, 1898. 659 p.
"Gide, Ch. L'idV e de solidarity en tant que programme &conomique (Extrait Revue internationale de sociologie). Paris, Giard et
Briere, 1893. 16 p.
'Bougl6, C. Le solidarisme. 2. ed. Paris, Giard, 1924. 208 p.
Bourgeois, L. SolidaritY. (SolidaritY. Justice. LibertY. L'idee
de solidarity et ses consequences sociales.) 10. dd. Paris, Colin, 1925.
294 p.




PHILOSOPHY OF LAW


43


conditions raised important questions of the direction to
be followed in social legislation, in which France had lagged behind her more advanced neighbors.        Separation of
church and state also raised important questions. It is not
surprising, therefore, in view of these problems, to find
French scholars in increasing numbers devoting their attention to the foundations and purposes of law. The more
important works of the pre-war period are those of Duguit,
Demogue, Geny, and Charmont.
Inasmuch as his theories are the ones around which most
of the discussions in leading French philosophical works
center, it might be well first to turn our attention to Professor Duguit. Professor of constitutional law at the University of Bordeaux and a prolific writer, he has produced
a number of works on public law in its philosophical aspects. The most comprehensive exposition of his doctrines
is contained in his L'Itat, le droit objectif et la loi positive
which forms the first volume of Etudes de droit public.96
They were further elaborated in a series of lectures which
were published under the title Le droit social, le droit individuel et les transformtions de l'Etat.97    But all of his
writing has a philosophical background, and if one were to
give a complete list of his philosophical works it would be
necessary to include his Manuel de droit constitutionnel,98
Traite de droit constitutionnel,99 Les transformations generales d   ru doit privej, and Les transformations du droit public,2 translated into English by Harold and Frida Laski
"Dugult, L. etudes de droit public. I. L']tat, le droit objectif et
la loi positive. II. L'A]tat, les gouvernants et les agents. Paris,
Fontemoing, 1901-02. 2 v.
Duguit, L. Le droit social et le droit individuel et les transformations de l'tat. 3. ed. Paris, Alcan, 1922. 160 p.
9 Duguit, L. Manuel de droit constitutionnel. 4. Ad. Paris, de
Boccard, 1923. 605 p.
" Duguit, L. Traits de droit constitutionnel. Paris, de Boccard.
1921-25. 5 v.
'Duguit, L. Les transformations gendrales du droit priv6 depuis
le Code Napoleon. 2. Ad. Paris, Alcan, 1920. 2 p. L, xiv, 206 p.
2Duguit, L. Les transformations du droit public. Paris, Colin,
1921. 285 p. Reprint
49926~-31




44


GUIDE TO THE LAW OF FRANCE


under the title Law in the modern state.3 The last two works
give an interesting exposition of the changing views of the
concept of law, from the individualistic notions of the time of
the compilation of the codes to the social ideas of present
times. Duguit is also the author of a treatise, The law and
the state, which appeared as a whole number of the Harvard
Law Review (v. 31, p. 1) and portions of his L'Etat, le
droit objedtif et la loi positif have been translated and
appear in Modern French legal philosophy (supra). His
objective theory of law is developed in a series of articles in
the Columbia Law Review (v. 20, p. 817; v. 21, pp. 17, 126,
and 242).
Rejecting the classical concept of subjective individual
rights as being based on a pure hypothesis and metaphysical
affirmation, Professor Duguit adopts what he calls an objective theory of law. Like Durkheim he bases social conduct
on solidarity, but unlike many other solidarists he refuses
to give solidarity a moral value. His philosophy might be
summed up as having as its basis a duty to do nothing to
diminish social solidarity; to do everything possible for
its promotion. At times he seems to be making solidarity
an ideal which law should promote, but he aligns himself
with the realists when he says that his rule of conduct for
man to follow is not a rule of morals but a rule of law.
Man should cooperate to promote social solidarity not because such cooperation is good in itself but because such
cooperation has a social value. As a realist, however, he is
not a believer in the omnipotence of the state. On the contrary, he considers the state like the individual to be bound
by the limits placed on it by his doctrine of social interdependence. In thus limiting the state, Duguit, in spite
of his profession of realism, sets up an external standard
which an ideal system is supposed to produce. To quote
from Professor Borchard (Governmental responsibility in
tort vi (The State subject to law), 36 Yale Law Journal,
p. 1039 at p. 1091; see also Governmental responsibility in
3Duguit, L. Law in the modemrn State, tr. by Frida and Harold
Laski. New York, B. W. Huebsch, 1919. 247 p.




PHILOSOPHY OF LAW


45


tort v (The State can not be bound by law), 36 Yale Law
Journal, p. 757 at p. 763): "'Objective law,' 'social solidarity '... like 'natural law '... are value standards
which embody an implicit dogmatism transcending experience and expressing both an ideal, and the quest for, and
supposed need of, perfection and the absolute." In addition
to the exposition and criticism of Duguit's theories in the
article just referred to there are several other expositions
and interpretations, in English. These include Mathews',
A recent development in political theory (24 Political Science Quarterly, 284), Elliott's The metaphysics of Duguit's
pragmatic conception of law (37 Political Science Quarterly, 639), Brown's The jurisprudence of M. Duguit (32
Law Quarterly Review, 168), and Coker's Pluralistic
theories in Merriam   and Barnes' A    history of political
theories, chapter 3.
The reputation of Professor Demogue, formerly professor at Lille and now a member of the law faculty of the
University of Paris, lies primarily in the field of civil law,
particularly obligations. His important work in the field
of legal philosophy is his Les notions fondamentales du droit
prive,4 which was written to serve as an introduction to a
study of obligations. The first part, which is devoted to a
study of fundamental notions of law, appears in Modern
French legal philosophy (supra, p. 3). In accepting a notion of natural law, providing it can be divorced from its
eighteenth century abstractions and treated as something
with changing content to be striven for, he aligns himself
with the idealists. But his ideal is of uncertain quality.
Neither an individualist nor a solidarist, he seems to be a
somewhat detached advocate of reconciliation of conflicting
criteria which have their origin in differing feelings and
tastes as to the importance of needs which law should secure.
Law should have as its purpose "the satisfaction of human
tastes; the realization of varied conceptions of life."
4Demogue, R. Les notions fondamentales du droit prive; essai
critique, pour servir d'lntroduction f l'etude des obligations. Paris,
Rousseau, 1911. 681 p.




46


GUIDE TO THE LAW OF FRANCE


In his Methode d'interpretation en droit prive positif,5
which appears in part in Sience of legal method6 v. 9 of
the Modern legal philosophy series, Professor Geny, of
the University of Nancy, was primarily interested in developing a method of interpretation of the Civil code.
Protesting against the traditional method of attempting
through logical deductions to make the written law all sufficient, he advocated that where the written law is not expressly applicable to a given situation the interpreters have
recourse to the dictates of reason, to sciences auxiliary to
the law and to facts derived from an observation of society,
in order to supplement its deficiencies. In a more recent
and more extensive work, Science et technique en droit prive
positif, he elaborates his earlier ideas of the fundamental
notions of law. After discussing at length current philosophical thought, as well as that of the nineteenth century,
he aligns himself with the school of natural law and rejects
the realism  of Professor Duguit.
Professor Charmont, of Montpellier, in his excellent piece
of work, La renaissance du droi notrel,8 which is translated in part in Modern French legal philosophy (supra),
turned his attention to the philosophical methods employed,
particularly in France, down to the present time. After
reviewing the different schools and discussing the revival
of natural law or the philosophical method, he comes to the
conclusion that it is impossible to justify a notion of law
deprived of its moral content. But his natural law, like
that of Boistel and Beudant, is something different from
that of the early part of the nineteenth century. Having
lost its absolute character it has a variable content. Recog6 G6ny, F. M6thode d'interprttation et sources en droit priv6 positif.
Essai critique. 2. Ad. rev. et mise au courant. Paris, Pichon et
Durand-Auzias, 1919. 2 v.
' Science of legal method. Select essays by various authors. Tr.
by Ernest Bruncken and Layton B. Register. Boston, Boston book
co., 1917. 593 p.
7 G6ny, F. Science et technique en droit prive positif; nouvelle
contribution A la critique de la m6thode juridique. Paris, Recueil
Sirey, 1914-24. 4 v.
Charmont, J. La renaissance du droit naturel. 2. 6d. Paris,
Duchemin, 1927. 222 p.




PHILOSOPHY OF LAW


47


nizing the idea of evolution and utility it takes into account
both the individual and society, thus tending to bring together individual conscience and the law instead of setting
them off against each other. Professor Charmont's works are
few in number, the only others of a philosophical nature being
his Le droit et l'esprit democratique.9 which appeared in 1908,
and Les trawnform   tions daa droit civil, published in 1912.10
In connection with Professor Charmont's works attention
should be called to a somewhat similar study, La crise actuelle
de la philosophie du droit,1l by Professor Ehrhardt, of the
Paris faculty of theology. Reference should also be made
to an article by Professor Saleilles, Ecole historique et droit
naturel, in the first volume of the Revue trimestrielle (1902,
p. 80), in which the learned author discusses the revival
of natural law.
In his important Elements d'introduction generale,'2 written in 1917, Professor ILvy-Ullmann, then of the University of Lille, after reviewing the different definitions of
law which have been current in France, says that it is a
historical fact that after passing through a crisis a nation
reexamines its notion of law. Judging from the philosophical works and articles in periodicals which have been published in France during the last few years, the statement of
Professor Lvy-Ullmann has been substantiated. It is undoubtedly too early to predict what definite form the philosophy or philosophies arising out of these discussions will
take. There are, however, certain defined characteristics.
Most of the works examine the philosophies of the past,
taking stock of the ground already covered. Ultimately
discussions center on the realism of Professor Duguit, which
many writers find to be insufficient. Like Professor Charmont, they refuse to divorce law from its moral content but
9Charmont, J. Le droit et l'esprit d6mocratique. Paris, Masson;
Montpellier, Coulet, 1908. 243 p.
0 Charmont, J. Les transformations du droit civil. Paris, Colin,
1912. 294 p.
u Ehrhardt, E. La notion du droit et le christianisme. Introduction historique: I. La crise actuelle de la philosophie du droit. Paris,
Fischbacher, 1908. 182 p.
' L6vy-Ullmann, H. ]tlments d'introduction gne6rale A l'dtude
des sciences juridiques. I: La d4finition du droit. Paris, Recueil
Sirey, 1917. 176 p.




48


GUIDE TO THE LAW OF FRANCE


set off against positive law  a concept of natural law, not
the concept of the metaphysicians but the latter-day concept of a small group of guiding principles. Perhaps these
principles could all be comprised under the heading " ideal
social justice," or, even, what we call " due process of law."
Among the recent works refusing to divorce law from
morality should be included those of Cuche, Bonnecase, and
Renard, as well as that of Geny, already mentioned. Professor Bonnecase, of Bordeaux, gives an excellent short study
of the notion of law during the last century in his La notion
de droit en Frace 13 and at the end bases natural law on a
metaphysical concept. Other important recent works by the
same author include a recent pamphlet A la recherche du
fondement du droit,13a his Introduction     Z'eltude du droit,l4
published in 1926, and his Science du dcroit et romantisme,15
dealing with the conflict of legal conceptions in France
from 1880 up to the present. Professor Cuche, of Grenoble,
in a somewhat short work, En lisant les juristes philosophes,l1 lays the foundation of law on Christianity and
faith. Professor Cuche is also the author of another
work, published under the title      Conferences de philosophie de droit,l7 dealing with the "mirage of natural law,"
the metaphysical postulates of positivism and legal personality. Professor Renard in a series of works 18 appearing be13Bonnecase, J. La notion de droit en France au dix-neuvieme
sikcle. Contribution a l1'tude de la philosophie du droit contemporaine. Paris, de Boccard, 1919. 236 p.
13a Bonnecase, J. A la recherche du fondement du droit. Paris,
Suey, 1929. 23 p.
14 Bonnecase, J. Introduction a l' tude du droit. Le probl1me du
droit devant la philosophie, la science et la morale. Paris, Recueil
Sirey, 1926. 164 p.
'"Bonnecase, J. Science du droit et romantisme. Paris, Recueil
Sirey, 1928. lv, 745 p.
C Cuche, P. En lisant les juristes philosophes. Paris, de Gigord,
1919. 122 p.
"Cuche, P. Conf6rences de philosophie de droit. Paris, Dalloz,
1928. 128 p.
18Renard, G. De droit, la justice et la volont6; conferences d'introduction philosophique a l'Ptude du droit. Paris, L. Tenin, 1924. 344 p.
Same. Le droit, la logique et le bon sens. 1925. 408 p.
Same. Le droit, l'ordre et la raison. 1927. 433 p.
Same. La valeur de la loi. Critique philosophie de la notion de lIa
loi. 1928. 298 p.




PHILOSOPHY OF LAW


49


tween 1924 and 1928 accepts as the basis of positive law an
"immutable natural law " consisting of a small number of
principles founded on morality. Mention should also be
made of a number of articles by Professor Le Fur 19 of Paris
in which he advocates the application of the same notion to
international law. While the preponderance of idealism may
be recognizable, its content is not yet definable. Perhaps
Professor Cuche expresses a tendency toward conciliation of
individualism and collectivism when he says that present
changes in the notion of the basis of law tend toward an
abandonment of the negative and prohibitive individualistic
functions of classical juristic thought in favor of cooperation
toward social and individual ends.
Not all present French thought is idealistic, however.
Professor Duguit has repeated and added to his ideas in
the new edition of his Traite de droit constitutionnel,20 in
five volumes, all of which have appeared since the war. In
the concluding pages of a little book, Le droit, l'idealisme
et l'experience,21 published in 1922 by Professor Davy, of
the faculty of letters of the University of Dijon, the author, after reviewing the views of Professors Duguit and
Geny, summarizes the relation of realism to idealism in
language which is well worth referring to. Respect for
personality, for justice, for promises made, are not so much
beautiful innate instincts as difficult and slow conquests
made by society in its struggle against itself. Realism is
not a denial of idealism, but it alone is capable of furnishing an experimental justification of a priori values.
19Professor Le Fur's articles, to mention only a few, include: Le
droit naturel et le droit rationnel ou scientifique (Revue de droit
international, 1927, p. 658-698); Le droit naturel ou objectif s'etend
il aux rapports internationaux (La Revue de droit international et de
Legislation comparee, 1925, p. 59-99); Philosophie du droit international (Revue general de droit International public, 1921, p.
565-603). They have been published in reprints by the periodicals
named.
20 Op. cit. p. 43, note 99, supra.
21 Davy, G. Le droit, l'id'alisme et l'experience. Paris, Alcan, 1922.
165 p.




50


GUIDE TO THE LAW OF FRANCE


COMPARATIVE LAW
In connection with the discussion of legal philosophy
some reference should be made to the study of comparative law in France. Doctor Alvarez devotes a few pages
to the subject in his Une nouvelle conception des etudes
junidiques,22 which is translated in part in the Science of
legal method,23 v. 9, of the Modeern legal philosophy series.
Professors Lambert and Saleilles are among the French
writers who have taken a prominent part in developing
the comparative method. A recent work by Professor Lambert, L'enseignenwnt du droit compare,2    should be of interest to Americans, as it deals with a rapprochement of
French and Anglo-American law through a study of comparative law. He is the author of another work, Etudes
de droit commun,25 translated in part in Science of legal
methods (supra). Professor Saleilles was the author of a
number of studies in German law which will be referred
to in the chapter on the Civil code. In 1900 he contributed
an important study of methods of comparative law to the
International Congress of Comparative Law which was
published in the Bulletin de la SovietA de legislation comrn
paree of the same year. It should be remarked here that
this bulletin, the organ of the Societe de legislation comparee, was founded in 1869 and appears monthly. The
same organization publishes the Annuaire de legislation
comparee, which was begun in 1872, and contains the texts
of the principal laws voted during a year in countries other
than France. On the occasion of the fiftieth anniversary of
the society it published a collection of articles relating to
Alvarez, A. Une nouvelle conception des Etudes juridiques et de
la codification du droit civil. Paris, Pichon et Durand-Auzias, 1904.
234 p.
23 Science of legal method. Select essays by various authors. Tr. by
Ernest Bruncken and Layton B. Register. Boston, The Boston book
co., 1917. 593 p.
4Lambert, E. L'enseignement du droit compare  Sa cooperation
au rapprochement entre la jurisprudence franCaise et la jurisprudence
angloam6ricaine. Lyon, Rey; Paris, Rousseau, 1919. 118 p.
' Lambert, E. ~Etudes de droit commun ligislatif ou de droit civil
compar6. Paris, Giard et Brire, 1903. 927 p.




LEGAL HISTORY


51


the changes in the law during the preceding 50 years in
the principal countries of Europe and America.26
LEGAL HISTORY
The study of the evolution of French law from the time
of the Roman conquest of Gaul to the promulgation of the
different codes in the early part of the last century presents a fertile field to the legal historian. Historical
sources are not lacking and sufficient evidence of the legal
institutions of the various periods remains to permit reconstruction of the law in force. While the sum total of
their works is not extremely large, French scholars can not
be said to have been delinquent in making use of the material at hand. On the contrary, the results of their research
have contributed much to the general fund of historical
knowledge. Perhaps the best estimate of the value of their
contributions is that of Dean Wigmore, who, in an introductory preface to the third volume of the Contdinental legal
history series,27 says: " 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." But before going
into a discussion of the works of the more important historians some preliminary reference to historical sources and
the evolution of the French legal system to the end of the
anien regime in 1789 may be of value.
After the Roman occupation of Gaul, the Celtic and Ger- Ga.oman inhabitants seem to have been rapidly assimilated to Roman
the Roman regime. French historians generally make no Roman
attempt to describe the legal system prior thereto but pass AW
on to the Gallo-Roman period, during which the law in
" Les transformations du droit dans les principaux pays depula
cinquante ans. 1869-1919. Paris, Librairie g6n6rale de droit et de
jurisprudence, 1922-23. 2 v.
27 For a discussion of the Continental legal history series see p. 3.
The quotation from Dean Wigmore may be found at p. xxviii, v. 3.




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force was, in the main, that common to the rest of the
Roman Empire. The historical sources of the period are
necessarily the same as those of the Roman law of the time
and are to be found in the various editions of the Roman
texts. For the surviving fragments of the codes, such as
the unofficial Gregorian and Hermogenian codes and the
official Theodosian Code, recourse must be had to the editions of German scholars, notably those of Haenel28 and
Mommsen,29 but the works of the important Roman jurisconsults, such as the Commentarii of Gaius, the Sententice of
Paul, and the Regulce of Ulpian, are contained in an outstanding French edition by Professor Girard.30
As might be expected, the close association of Roman law
with the early history of French law and the later reception
of Justinian as the basic law in that portion of France
designated as pays de droit ecrit have made the study of
Roman law a subject of peculiar interest to French scholars,
who have produced a number of general works of importance. While not especially devoted to Roman law as a
part of historical sources of early French law, they may
be said to be secondary sources of Roman law as applied in
Gaul and later in France at different stages of the evolution
of French legal institutions.
The outstanding French work on Roman law is that of
Girard, formerly professor of Roman law at the Paris
Law School, published in its eighth edition in 1929 under
the title Macnuel elementaire de droit omain.831 The seventh
edition, which was published after Girard's death, is without an index, and is in part uncorrected. The eighth edition
is revised and augmented by Felix Senn, of the Faculty of
law of the University of Nancy. A portion of an earlier
28 Haenel. Codices Gregorianus, Hermogenianus, Theodosianus.
Bonn, Marcum, 1842. Supplementum, 1844. 2 v. in 1.
2 Mommsen et Meyer. Theodosiani libri xvi cum Constitvtionibvs
Sirmondianis et Leges novella ad Theodosianvm pertinentes. Berlin,
Weidmann, 1905. 3 v.
30Girard, P. F. Textes de droit romain. 5. #d. Paris, Rousseau,
1923. 928 p.
1 Girard, P. F. Manuel 6lementaire de droit romain. 8. Ed. Paris,
Rousseau, 1929. 16, 1223 p.




LEGAL HISTORY


53


edition of Professor Girard's work was translated into
English and published in 1906 under the title A short
history of Roman law.32     A  further important contribution by the same eminent authority is his Melacnges de
droit romain83 the first volume of which deals with historical sources and the second with the historical development
of a number of substantive and procedural institutions. Another valuable one-volume work is that of Professor Cuq,
also of the Paris faculty, Manuel des institutions juidique
des Romns.34 Professor Cuq is also the author of a larger
work devoted to the development of Roman legal institutions. The second volume of this latter work, Les institutions
juridiques des Romains,5 contains an excellent account of
classical Roman law and the law of the Western Empire.
In addition attention should be called to a valuable historical study of the law of Justinian, Etudes historiques sur le
droit de Justinien,36 which was published by Professor Collinet and was crowned by the Academy.
Before leaving the literature dealing with Roman law
some reference should be made to a number of more elementary but valuable student texts. Professor Bry, formerly
dean of'the law faculty of the University of Aix-Marseilles,
was the author of a very good text, Principes de droit romain,87 which was recently revised and published in its
sixth edition by his son Joseph Bry. The popularity of
the Traite elementaires3  by Professor Petit, and   Mlments
"2Girard, P. F. A short history of Roman law. Tr. by Augustus
H. F. Lefroy. Toronto, Canadian Law Book Company, 1906. 220 p.
83Girard, P. F. Melanges de droit romain. Paris, Recueil Sirey,
1912-23. 2 v.
4 Cuq, E. Manuel des institutions juridiques des Romains. Paris,
Plon-Nourrit et cie., 1917. 938 p.
8 Cuq, E. Les institutions juridiques des Romains. Paris, Librairie
Plon, 1904-08. 2 v.
3 Collinet, P. Etudes historiques sur le droit de Justinien. Paris,
Larose & Tenin, 1912-25. 2 v.
Bry, G., et Bry, J. Principes de droit romain exposes dans leur
dMveloppement historique. 6. ed. Paris, Recueil Sirey, 1927. 408 p.
88Petit, E. Traite l66mentaire de droit romain. 9. ed. Paris,
Rousseau, 1925. 804 p,




54


GUIDE TO THE LAW OF FRANCE


de droit romawm,89 by Professor May, is attested to by the
fact that they have been recently published, respectively,
in their ninth and seventeenth editions. Professor May's
work has the reputation of being particularly clear. The
list of student manuals was added to by the recent appearance of the Cours elmentaire de droit romain40 which represents, originally, the work of the late Professor Huvelin,
of Lyon, but was published under the direction of Professor
Monier.
Frankish  With the Germanic invasions of the fifth century and the
Period  fall of the Western Roman Empire in 476, the legal system
of Gaul entered a new phase. Law became personal, each
racial element being governed by its own laws. The principal Germanic tribes occupying the provinceBurgundians, Visigoths, and Franks-brought with them their own
customary laws, but at the same time they left to the GalloRoman inhabitants the enjoyment of those already in force.
Even after the establishment of the Frankish Empire the
various German races continued for a time to be governed
by their respective codes. While German law replaced
Roman law as the predominant element, under the theory of
personality of law, the latter was conserved. Additional
factors began to make themselves felt. Canon law became
important, and with the establishment of the Frankish Empire the legislation of the Frankish princes became a part
of the legal order. Due to the ultimate supremacy of the
Franks, this second period is generally referred to by
French historians as the Frankish period.
The principal historical sources are the compilations of
the so-called barbarian laws, leges barbarorum, or folk law.
Of these the Salic law of the Franks or LeaX saica is the
most important. The Franks had no special code for their
Gallo-Roman subjects, but the Burgundians and Visigoths,
in addition to legislating for their own peoples, compiled
codes of Roman law. All of these various compilations are
contained in different modern editions which represent the
8 May G. Elements de droit romain a 'usage de 6tudiants des
facultys des droit. 17. 6d. Paris, Recueil Sirey, 1927. 753 p.
Huvelin, P. Cours Olmentaire de droit romain. Paris, Recueil
Sirey, 1927. 761 p.




LEGAL HISTORY


55


painstaking work of German historical scholars as well as,
in part, that of French and English.
There are a number of modern editions of the Lea sclica.
A  good French edition is that of Pardessus, published by
the French Government in 1843.41    Perhaps the best German
edition is that of Behrend.42  In addition, we have an excellent English edition by Hessels and Kern.43    A new critical
edition is now said to be in the course of preparation for the
Monumenta Germaniae historica.        The Lee romana Bur-:gundionumm, or as it is sometimes erroneously called, Papian,
appears in the Monurnenta Germnaiae historica in two
editions, one by Professor Bluhme, of 1862,44 and another
by Professor Von Salis, of 1892.45 The same collection also
contains two editions of the Burgundian Code, or, as it is
sometimes called in French, Loi Gombette.      Both editions
represent the work of Bluhme and Von Salis.46 Attention
should be called to a new manuscript which received careful study on the part of Professor Petot in the Nouvelle
revue historique de droit in 1913 (pp. 337-375). Professor
Zeumer's edition of the Leges Visigothorumn47 also appears
in the Monuumentd Germaniae historica and the Lex romanc
Visigothorm    or Breviary of Alaric is contained in an excellent edition by Haenel.48
41Pardessus, J. M. Loi salique ou recueil contenant les anciennes
redactions de cette loi et le texte connu sous le nom de lex emendata
avec des notes et des dissertations. Paris, Imprimerie royale, 1843.
lxxx, 740 p.
2 Behrend, F. J. Lex salica. 2. aufi. von R. Behrend. Weimar,
H. Bohlaus, 1897. 236 p.
"4Hessels, J. H., and Kern, H. Lex salica; the ten texts with the
glosses, and the Lex emendata. London, J. Murray, 1880. 692 col.
on 252 p.
4Monvmenta Germaniae historica. Berlin, Wiedmann, 1826-1920;
Bluhme, Lex romana Burgundionum, Leges, v. III, 1863, p. 579-624.
4 Op. cit. note 44. Von Salis, Lex romana Burgundionum, Leges,
pars. i, v. ii, sect. i, 1892, p. 29-116.
Op. cit. note 44. Bluhme, Lex Gundobada, Leges, v. III, 1863,
p. 497-578. von Salis, Lex Gundobada, Leges, sect. i, v. ii, pars. i,
1892.
47 Op. eit. note 44. Zeumer, K. Leges Visigothorum, Leges, sect. i,
v. I, 1902.
48Haenel, G. Lex romana Visigothorum. Lipsise, Teubner, 1849.
468 p.




56


GUIDE TO THE LAW OF FRANCE


The Capitularies, or legislation of the Frankish kings, were
first edited in 1677 by Baluze, Colbert's librarian. In 1780
this edition was revised and added to by Pierre de Chiniac,
who, considering the time at which it was done, did an
excellent piece of work.49 Two new editions appear in the
Monumenta Germaniae historica. Of these that of Boretius and Krause is considered by French historians to be
much the better and is the one which is usually cited.50
Feudal    The disintegration of the Frankish Empire was followed
Period  by feudalism, which, unlike its English counterpart, had
but little effect on the private law, as it ultimately appeared
in the various codes; but, besides having an important bearing on the history of public law, the feudal period, lasting
from the tenth to the sixteenth century, was also marked
by events which played an important part in the evolution
of the modern law. Probably as early as the ninth century
the theory of personality of law began to give way to that
of territoriality, the change becoming complete in the course
of the tenth century. Unfortunately this change did not
bring about uniformity. On the contrary, different communities followed different customary laws, so that from a
diversity growing out of a difference of racial laws the
transition was one to a diversity growing out of a differRegional ence of territorial laws. In the north the Frankish popucustoms  lation was in the majority, and Roman law, rarely applied,
became less important. On the other hand, in the section
of France generally designated as the Midi, the GalloRoman population was more numerous, and Roman law,
more frequently applied, became the predominant basis of
the customary law. In the beginning the Roman law of the
Midi was that of the Theodosian Code conserved in the compilations of the Visigoths and Burgundians. However, the
eleventh century saw the renaissance of the study of Roman
law at Bologna, a renaissance which in spite of opposition
spread to all Europe and eventually brought about the sub49Baluze. Capitularia regum Francorum. Paris, 1677. 2 v. Nova
ed. Curante P. de Chiniac. Parisiis, F. A. Quillau, 1780. 2 v.
0 Op. cit. note 44. Boretus, Leges, sect. ii, v. i, 1881-83; Krause,
v. I, 1890-97. This edition was begun by Boretius and completed by
Krause.




LEGAL HISTORY


57


stitution in France of Justinian, not only as the basic law
of the Midi but also as the secondary source in the north.
Probably by the end of the thirteenth century the Roman
law of Justinian and droit emrit, the term applied to the law
of the Midi, had become synonymous. The general division
of France into sections, one called pays de droit ecrit and
the other pays de droit coutuwmier, with further subdivisions
resulting from local custom, continued until the promulgation of the codes.
A discussion of Roman law and regional customs appears
in Vol. i, pp. 203-250, of the Continental legal history series.
However tempting it might be to linger over the works
of the glossators and their successors, as well as the principal
works of the Middle Ages on canon law, it is necessary to
pass on to the more important historical sources of the period,
the Coutumiers. The customary laws of the different parts
of France were not officially compiled until the sixteenth
century, but as early as the beginning of the thirteenth a
number of books on customary law, called Coutumiers, made
their appearance as the works of the first French juriscon-coutusults, who occupy in French legal history much the samemiers
position as Bracton in the early history of English law.
The first to appear was the Tres ancien coutumier de Norinandie (between 1194 and 1204) which exists to-day in
two forms, one French and the other Latin. Chronologically
it was followed between 1254 and 1258 by the Grand
coutunier de Normandie, the landmark of Norman law and
still the basis of the existing legal system in the Isle of
Jersey. Another outstanding Coutumier of the same century
is Les coutumes de Beavoisis, the work of Beaumanoir, who
in addition to being an authority on legal matters seems
to have been an individual of catholic tastes. Of other works
of the time mention may be made of Conseil a un ami,
Livre de jostice et de plet and the ~tablissements de Saint
Louis.
Beginning with the fourteenth century, private works on
customary law became numerous, the local laws of practically
all of France having become the subject matter of one or
more Coutumviers. Of those which followed, lack of space




58


GUIDE TO THE LAW OF FRANCE


makes it impossible to mention more than two of the more
important, the Trs ancienne coutume de Bretagne and the
Grand ooutumier de France, or as it is sometimes called,
the Grand coutwmier de Charles vi.
The various coutumiers which have just been referred to
are contained in modern editions which display a high
type of French legal research. Both C(oumiers on Norman
law are contained in an excellent work by Professor Tardif
which gives ample introductions to the different texts.81
There is also a very good edition of the Grand cowutrner
by Laurence de Gruchy, of the Isle of Jersey.52      The best
edition of the Coutuwes de Beawdaiss of Philippe de
Remi, is that edited by Salmon.53     Consel a un, am     was
edited in 1846 by Marnier under the title Le conseil de
Pierre de Fontaines4 and the Livres de jostice et de plet
by Rapetti in 1850.55 Professor Viollet published an outstanding critical edition of the Etablissements de Saint
Lois in 1881-1886,56 the text being preceded by an introduction of 480 pages containing a thorough study of the
sources, the contents, and    influence of the    CoWuriers
as well as a study of the different texts. The Trs ancienne
coutume de Bretagne is contained in an edition by Professor Planiol,57 and the Grand coutumier de France 58 was
edited in 1868 by Laboulay and Dareste. Unfortunately
a Tardif, J. Coutumiers de Normandie. Paris, Picard, 1887-96.
2 v.
de Gruchy, William Laurence. L'ancienne coutume de Normandie. Jersey, 1881. 420 p.
" Philippe de Remi. Coutumes de Beauvaisis; texte critique pub... par. Am. Salmon. Paris, Picard, 1899-1900. 2 v.
Marnier, A. J. Le conseil de Pierre de Fontaines, ou Trait6 de
rancienne jurisprudence frangaise. Paris, Joubert; Durand, 1846.
532 p.
" Rapetti, P. Li Livres de jostice et de plet; pub. pour la premiere
fois d'apres le manuscrit unique de la Bibliotheque Nationale, avec
un glossaire des mots hors d'usage par P. Chabaille. Paris, Didot,
1850. lii, 451 p.
"Viollet, P. Les 0tablissements de Saint-Louis. Paris, Renouard,
H. Loones, 1881-86. 4 v.
7 Planiol, M. La tres ancienne coutume de Bretagne, edition
critique. Rennes, Plihon et Hevr6, 1896. 566 p.
8 Laboulay et Dareste. Le grand coutumier de France. Nouv.
6d. Paris, Durand et Pedone-Lauriel, 1868. 848 p.




LEGAL HISTORY


59


the latter only reproduced the Gothic editions and did not
make use of all the available manuscripts.
Lack of space makes it impossible to do more than refer
to a further source of the law of the feudal period, court
decisions. They are dealt with in modern histories such as
those of Chenon and Brissaud, which will be referred to
later, and are also discussed along with regional customs in
the first volume of the Continental legal history series
(p. 203-250).
From the point of view of the historian interested pri- Monarchimarily in external history, the most important events of the cal Period
monarchical period, beginning with the sixteenth century
and continuing to the end of the ancient regime, are the
official compilation of the customary law, the revival of the
importance of legislation, and the appearance of the works
of a number of jurisconsults who occupy much the same
position in the legal literature of France as do Littleton,
Coke, and Blackstone in ours.
Although Charles vii ordered the official compilation of
the customary law, the real work was not begun until the
reign of Charles viii. Of the more important compilations, Coutumes d'OrMeams was promulgated in 1509, Coutumnes de Paris in 1510, and Coutumes de Bretagne in 1539.
Later, near the end of the same century, many of the early
compilations were revised. Bourdot de Richebourg collected
practically all the official compilations in 1724 in a work
which might almost be called classical.59
In so far as effect on modern law is concerned, the most Royal
important legislation is that of the reign of Louis xiv. Legislation
Among the ordinances which should be mentioned are one
of 1667 dealing with procedure and published under the
name Ordonnance civile towchant la reformation de la justice (sometimes called Code Loui) and another of 1670
dealing with criminal matters. But the best known to
Americans are those of 1673 and 1681 concerning, respectively, commercial and maritime affairs. The first was commonly called Code Savary, the name being derived from
9 Bourdot de Richebourg, C. A. Nouveau coutumier gfntral.
Paris, Le Gras, 1724. 8 pt. in 4 v.
49926~-31-  5




60


GUIDE TO THE LAW OF FRANCE


that of its distinguished inspirator. It is also sometimes
referred to as the Code marchand. The second went under
the name of Code de la marine, and in addition to having
formed the basis of modern French maritime law it is often
cited in American and English cases as one of the great
maritime codes. The legislation during the reign of Louis
xiv receives extensive discussion in English in the biography of Colbert, the famous minister of Louis xiv, which
appears in Great juists of the world, the second volume of
the Continental legal histoty series (pp. 248-282).
There are two collections of royal legislation or ordonnances which merit attention. The publication of the first,
Collection des ordonnances et lois franaaises, commonly
called Collection des ordonnanes d   Louvre and often Le
recweil des ordonnarces des rois de France de la troisieme
race60 was begun by Eusebe de Lauriere, the first volume
appearing in 1723. Interrupted by the Revolution its publication was continued by the Academie des imscriptions et
belles-lettres. The legislation covered goes down to 1515.
The legislation after that date, being considered within the
field of modern history, is being prepared for publication
by l'Academie des sciences morales et politiques.    While
this collection is not perfect it is the best that exists. The
other collection is the result of private enterprise and represents the work of Isambert, Jourdan, and Decrusy. Its title
is Recueil yeneral des ancienre lois fran~~aises,G1  but it is
usually cited under the title Recueil dIsambert or Recueil
de Jourdan et Isambert. This latter collection is incomplete and unhappily contains a number of errors.
Juris-    Lack of space makes it impossible to do much more than
consults  mention the names of the outstanding jurisconsults of the
sixteenth century. Judged from the point of view of effect
on modern law the most important is Charles Du Moulin
(1500-1566), who, besides producing as his greatest work
a commentary on the first title of the Custom of Paris,
60 Ordonnances des roys de France de la troisieme race, recueillies
par ordre chronologique. Paris, Imprimerie Royale, 1723-1847. 23 v.
< Isambert, Jourdan, Decruy. Recueil general des anciennes lois
francaises, depuis l'an 420 jusqu'a la Revolution de 1789. Paris,
1822-33. 29 v.




LEGAL HISTORY


61


Traite des fiefs, wrote among other treatises on Roman law
one entitled "Extricatio labyrinthi dwidui et individui,"
which served as the basis of the present French theory of
divisible and indivisible obligations. (Civil code, arts. 1217
to 1225.) Other writers of the same century who helped to
shape the law of their time are d'Argentre, Coquille, and
Loysel.
The foremost writer of the seventeenth century is Jean
Domat (1625-1694), whose treatise, Les lois civiles dans leur
ordre naturel, besides exercising an influence on the writers
of the eighteenth century, notably Pothier, was responsible
for several articles in the Civil code. A 4-volume edition,
with references to the Civil code, was published by Joseph
Remy in 1829 and 1835.62 Attention should be called to an
early English translation (1720) by William Strahan, advocate in Doctors' Commons, which was edited by Luther
Cushing in 1850 and published under the title The civil law
in its natural order.63 The preface to this translation which
was commonly found on the shelves of American lawyers
of two generations ago, contains a short account of Domat's
life.
The best known and most popular pre-code jurisconsult is
Robert Joseph Pothier who was born at Orleans in 1699 and
died in 1772. No other writer contributed as much to
French law as it ultimately appeared in the Civil code.
Professor at the University of his native city, he, unlike his
predecessor Domat, made no attempt to treat the law as a
whole but wrote a series of treatises on the different subjects comprised in practically the entire field of the civil
law. The outstanding qualities of his works are generally
said to be their clarity, precision, and rational arrangement; their greatest defect, lack of originality. Pothier's
scientific career began with the publication iri 1740 of the
Coutumes d'OrlMans, which was revised in 1760 and may
be said to form an introduction to his other works, of which
the best known is his Trate sur les obligations published in
Domat. Les lois civiles dans leur ordre naturel, nouv. 6d. en
rapport avec le Code civil, par J. Remy. Paris, Gobelet, 1835. 4 v.
I Domat. The civil law in its natural order. Edited from the 2d
London ed., by Luther G. Cushing. Boston, Little and Brown, 1850.
2 v.




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GUIDE TO THE LAW OF FRANCE


1760. Usually it is preferable to use original editions but
as these are often difficult to obtain, reference should be
made to the more important later editions of Pothier's works.
Probably the best is that of Bugnet, in 11 volumes, which
were first published between 1845 and 1848 and were annotated to the Civil code.64  Another important edition which
is often referred to is that of Dupin.65
Pothier's treatises in addition to their popularity in
France were well known to the earlier generations of American lawyers. While they are now largely of historical
value only, it is believed that the different translations of
particular treatises which appeared in the first half of
the last century are still of sufficient importance to be
indicated in a note.66
No discussion of French jurists and legal writers would
be complete without some reference to Jacques Cujas (1522 -1590) who was responsible for the firm establishment of
the humanist and historic method of treatment of Roman
jurisprudence as opposed to the earlier scholastic method.
His life, works, and place as a Romanist are fully dealt
with in Great jZowists of the world, the second volume of
the Continental legal history series.
Before turning to modern works on French legal history
mention should be made of the fact that the same volume
contains an essay dealing with Pothier and his place as a
jurist (447-476) and a few pages devoted to a discussion
Bugnet, M. CEuvres de Pothier, annot6es et mises en corr61ation
avec le Code civil et la legislation actuelle. Nouv. 6d. Paris, Cosse
et Marchal. 1861-90. 11 v.
" Dupin. CEuvres de Pothier. Nouv. ed. Paris, BWchet, 1835. 11 v.
Pothier, R. J. A treatise on obligations, considered in a moral
and legal view. Tr. from the French. Newbern, N. C., Martin and
Ogden, 1802. 2 v.
Treatise on the contract of sale. Tr. from the French by L. S.
Cushing. Boston, C. C. Little and J. Brown, 1839. 406 p.
A treatise on maritime contracts of letting to hire. Tr. by Caleb
Cushing. Boston, Cummings and Hilliard, 1821. 170 p.
A treatise on the contract of partnership, with the Civil code and
Code of Commerce relating to that subject, in the same order. Tr.
from the French, with notes referring to the decisions of the English courts.  By O. D. Tudor... London, Butterworths, 1854.
144 p.




LEGAL HISTORY


63


of Du Moulin (pp. 105-106, 458-460). In passing, attention
should also be called to the fact that the essays contained in
this volume give a valuable exposition of the legal background of the time during which each of the jurists discussed lived. A very good short discussion of the jurists,
as well as royal legislation, from 1500 to 1789 may be found
in the first volume of the same series (pp. 251-273).
It is somewhat of a temptation to pass in review the entire Modern
field of works devoted to French legal history, but it is be- Leal.
lieved that the purposes of this discussion can be better Histories
served by devoting our time to those which are more important.
In a review of a recent history of French law written by
Professor Declareuil, of Toulouse, Professor Hazeltine, of
Cambridge, calls attention to the fact that the work of writing a one-volume legal history is a task which few French
jurists have undertaken. (Some aspects of French legal
history, 43 Law Quarterly Review 212.) It was done by
Esmein and Viollet and more recently by Declareuil, who
are representative of that clarity and conciseness of style
which are the outstanding characteristics of the best of
French scholarship.
Professor Esmein's Cours elementaire d'histoire du droit
frangais 67 was first published in 1892 primarily for the use
of first-year law students. Due to this fact it is principally
devoted to a study of the history of public law and only
deals with private legal institutions in so far as they relate
to public law. It begins with a short chapter on Roman
institutions in Gaul in the fourth century and as is usually
the case with French legal histories, goes down to the end of
the ancien regi'm in 1789. Always a very popular work it
was recently revised by Professor Genestal and published in a
fifteenth edition. Although somewhat systematic it should
be classed as one of the best French legal histories.
The recent scholarly work of Professor Declareuil, Histoire generale du droit frangais,6  like that of Professor
6Esmein, A. Cours 6l1mentaire d'histoire du droit frangais. 15. 6d.
Paris, Recueil Sirey, 1925. 784 p.
I Declareuil, J. Histoire gen~rale du droit frangais des origines a
1789. Paris, Recueil Sirey, 1925. 1,077 p.




64


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Esmein, deals primarily with public law. While adapted to
the needs of first-year students it is also intended to be used
by more advanced students. More thorough and equally
scholarly, Professor Declareuil's work should enjoy a popularity comparable with that of its predecessor. It might be
added that it has the reputation of being particularly good
with respect to the institutions of the monarchical regime.
Unlike the two histories which have just been referred to,
the one-volume work of Professor Viollet, Droit prive et
sources. Histoire du droit cvil franais,69 is primarily a
history of private law. The first part is devoted to sources
and the second and third to the development of such important fields as persons, the family, property, and contracts. It is the only good one-volume work on the history
of private law.
Professor Viollet was also the author of an equally important history of political and administrative institutions
which deals at length with the public institutions of the
various periods of French history.70
The different works which have just been referred to are
principally devoted to one particular field, private, or public
law. In addition there are two well-known works which attempt to cover the entire field of legal history, those of
Brissaud and Chenon.
Professor Brissaud's Macnel d'listoire du droit franVais 71 is a 2-volume work which is divided into three parts.
of which the first is devoted to sources, the second to public
law, and the third to private law. The first two parts are
arranged chronologically, while in the third the author
abandons the chronological arrangement for the purpose of
treating the development of leading doctrines under a nume Viollet, P. Droit prive et sources. Histoire du droit civil frangais. 3. 6d. Paris, Larose et Tenin, 1905. 1,012 p.
0 Viollet, P. Droit public. Histoire des institutions politiques et
administratives de la France. Paris, Larose & Tenin, 1890-1893.
3 v.. Priode gauloise, Gallo-romaine, franque, 1890. II. Periode
frangaise, moyen-age, 1898. III. P6riode frangaise, moyen-age suite
et fin, 1903.) Le roi et ses ministres pendant les trois derniers siecles
de la monarchie, 1912. 615 p.
n Brissaud, J. Manuel d'histoire du droit frangais (sources, droit
public, droit priv6). Paris, Fontemoing, 1898-1904. 1,892 p.




LEGAL HISTORY


65


ber of comprehensive headings. The work is remarkable
for its breadth of learning and extensive use of every possible source. At the same time it contains a number of inaccuracies and for that reason should be read with caution.
Different portions of Professor Brissaud's work have been
translated into English and appear in the Continental legal
history series, notably in Volume iii and in Volume Ix,
entitled, respectively, a History of French private law and
a History of French Public Law.
The recent scholarly work of Professor Chenon was cut
short by the unfortunate death of the author, who was only
able to complete the first volume. A second volume is now
being prepared by Professor Olivier Martin, of the Paris
faculty. When finished the Histoire generale du droit franMais public et prive72 will, unlike most French histories,
cover the evolution of public and private law down to 1815.
The first volume, which deals with the Gallo-Roman, Frankish, and feudal periods, is arranged chronologically and
in addition to discussing private and public institutions,
contains excellent summaries of the more important source
material of each period. Probably no work on French legal
history is its equal in the treatment of the evolution of the
law during the feudal-customary period.
Attention should be called here to a valuable periodical
devoted to legal history, La revue kistorique de droit frangais et etranger' which was founded in 1855 by a group of
important legal historians of the time.
Before passing on to the more important historical studies
of particular branches of the law some reference should be
made to several writers whose works, although referred to
from time to time, are no longer considered as of first importance. Professor Glasson, a prolific writer, produced
an 8-volume history of French law and institutions,73 an
elementary manual,74 and a 6-volume comparative history
Chinon, E. IIistoire generale du droit franaais public et prive
des origines A 1815. Paris, Recueil Sirey, 2 v. t. 1, 1926; t. 2, fasc. 1,
1929.
7Glasson, E. Histoire du droit et des institutions de la France.
Paris, Pichon, 1887-1903. 8 v.
4 Glasson, E. Precis le6mentaire de l'histoire du droit frangais.
Paris, Pichon, 1904. 598 p.




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of English and French law,75 none of which measure up to
the high standards of the more important works which
have just been discussed. Professor Beaune's works on customary law, published between 1880 and 1889, including the
most important, Droit cobtumier franfais,76 although good,
are now too old in the light of recent studies. As was often
the case with earlier historical works they are somewhat
superficial. The same criticism could be made of Klimrath's
Travacua  sur l2histoire du droit which was published in
1843.77
Turning now to the more important studies of particular
branches of the law, our task is primarily one of selection.
A number of pages could be profitably devoted to a discussion of a large array of theses and monographs on particular phases of legal history, but it is necessary to confine our attention to those which appear to be of outstanding
importance.
The historical development of marriage has received extensive treatment by a number of French historians. The
most important work is that of Professor Lefebvre, of the
Paris faculty, who, under the heading Cours de doctorat su
l'histoire du droit matrimoniai franqais,7 published several
separate volumes which comprise Introduction generale, Le
lien du marriaage and Le droit des gems maris.       Mention
should be made of an excellent work by Professor Esmein,
Le maniage en droit canonique.79    The best theses are those
7'Glasson, E. Histoire du droit et des institutions politiques,
civiles et judiciaires de l'Angleterre, compar6s au droit et aux institutions de la France. Paris, Pedone-Lauriel, 1882-83. 6 v.
70Beaune, H. Droit coutumier frangais: Introduction a l'6tude
historique du droit coutumier francais. Lyon, Briday, 1880. 566 p.
"'Klimrath, H. Travaux sur L'histoire du droit francais, recueillis,
mis en ordre avec preface par L. A. Warkeenig. Paris, Joubert, 1843.
2 v.
78Lefebvre, Ch. Cours de doctorat sur l'histoire du droit matrimonial francais. Paris, Recueil Sirey, 1906-23. 3 parts and an
appendix.
" Esmein, A. fItudes sur l'histoire du droit canonique prive. Le
mariage en droit canonique. Paris, Larose et Forcel, 1891. 2 v. A
second edition by Genestal is now being published. The first volume
appeared in 1929. The second is announced as in press.




LEGAL HISTORY


67


of Olivier Martin and Basdevant, La crise du mriage dan
la lIgislation intermediaire 80 and Des rapports de l'eglise et
l'Sat dane la legislation d  mariage.81   Professor Lefebvre
is also the author of an important history of the law of successions published under the title L'ancien droit des successions.s2
Professor Esmein, whose manual on French legal history has already been referred to, in addition published a
valuable history of criminal procedure, Histoire de la procedure criminelle en France,s3 which appeared in 1881. A
translation of Part I, Title II, and Parts ii and m of this
outstanding piece of work appears in History of continerats
criminal procedure, vol. v of the Continental legal history
series. The history of civil procedure is dealt with in English in the seventh volume of the same series in a number
of essays from various sources.
Attention should also be called to an important historical
study of the custom of Paris now being prepared by Professor Olivier Martin, of the Paris faculty. The first volume
was published in 1922 under the title Histoire de la coutume
de la privote et icomte de Paris.4     The second volume is
now appearing in parts.     Professor Olivier Martin is also
the author of another shorter work, La coutume de Paris,
trait d'union entre le droit romain et les lMgislations mode1mes.85 This latter work consists of a series of lectures
delivered at the University of Utrecht in 1925.
80Martin, Olivier. La crise du marlage dans la legislation inermddiaire (1789-1804). Paris, Rousseau, 1901. 263 p.
nBasdevant, J. Des rapports de l'6glise et l']tat dans la lgislation du mariage, du Concile de Trente au Code civil. Paris, Larose,
1900. 236 p.
2 Lefbvre, Oh. L'ancien droit des successions. Paris, Recueil
Sirey, 1912-18. 2 v.
Esmein, A. Histoire de la procedure criminelle en France et
specialement de la procedure inquisitoire, depuis le xIII  siecle
jusqu'a nos jours. Paris, Larose et Forcel, 1882. 596 p.
" Martin, Olivier. Historie de la coutume de la pr&vote et vicomth
de Paris. Paris, Leroux, 1922-26. 2 v. Vol. 1 has been published;
parts, only, of v. 2 have been published.
5 Martin, Olivier. La coutume de Paris, trait d'union entre le
droit romain et les legislations modernes. Paris, Recueil Sirey, 1925.
83 p.




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In addition mention should be made of two works on legal
sources by Professor Tardif, Histoire des sources du droit
franfais, oringes romaines 86 and Histoire des sources du
droit canonique,7 which though somewhat old are still considered as important.
Before closing the discussion of French legal history to the
end of the ancien regime, it is believed to be well worth
while again to call attention to the Continental legal history
seriess8 different parts of which have been referred to from
time to time in the foregoing pages. Published under the
direction of an editorial committee of the Association of
American Law Schools the series is intended to give a general survey of the historical development of law on the Continent down to modern times and to render accessible to
the reader limited to English, selected material from the
works of outstanding continental writers. To quote in part
from the general introduction to the series, it covers the
legal history of " France, Germany, and Italy as the central
fields, leaving the history in other countries to be touched so
far as might be incidentally possible." The service rendered
in broadening the horizon of the American lawyer could
hardly be exaggerated.
CODIFICATION
The promulgation of the Civil code in 1804 is the outstanding event in the evolution of French law. The old
regime was primarily one of diversity; one might almost
say of chaos. Although from time to time various writers
expressed a desire for legal uniformity and some progress
in that direction was made in the legislation during the
reign of Louis xiv, it remained for the revolution to prepare the ground for, and the consulate to achieve, what the
monarchy had been unable to bring about-legal as well as
political uniformity.
86 Tardif, A. Histoire des sources du droit frangais, origines
romaines. Paris, Picard, 1890. 527 p.
8[ Tardif, A. Histoire des sources du droit canonique. Paris, Picard,
1887. 409 p.
88 The Continental legal history series, published under the auspices
of the Association of American law schools. Boston, Little, Brown,
& Co., 1912-27. 10 v. See Introduction, p. 3.




LEGAL HISTORY


69


As early as 1790 the Constituent Assembly declared that
it would undertake the compilation of a general code. The
Constitution of 1791 reaffirmed this intention. But the first
real step was not taken until 1793, when the convention
ordered its legislative committee to prepare a general project. Cambaceres, acting for the committee, presented a
plan in August of the same year. It was rejected as being
too complicated, not practical enough, and not in accordance
with the spirit of the times. Rearranged and revised, it was
again presented in 1794 by Cambaoeres and again rejected.
Later a third plan was presented to the Council of Five
Hundred, but without result. A further unsuccessful attempt was made in 1799, when Jacqueminot, a member of the
Council of Five Hundred, submitted various laws looking
toward codification. These were not even examined. Immediately thereafter the project was revived and this time
effectively.
A consular decree of July 13, 1800, named a commission
of four members, Tronchet, Bigot-Preameneu, Maleville,
and Portalis, who after four months' labor presented a
preliminary plan. This plan was submitted to the Court
of Cassation and the Courts of Appeal, after which it was
sent to the Council with the observations of the judiciary.
There it was amended in part and then submitted to the
Tribunat and legislative corps as the official project of the
Government. At first its success seemed doubtful, but the
different titles were eventually approved separately and
united in the one body on March 21, 1804, when the Code
was promulgated under the name Code civil des Frn!ais.
The Civil code was followed by others at short intervals.
The Code of civil procedure was voted in 1806 and became
effective on January 1, 1807. The Code of commerce was
adopted in 1807 and went into effect on January 1, 1808.
The Code of criminal procedure and the Penal code, voted,
respectively, in 1809 and 1810, both went into effect on
January 1, 1811. Since the promulgation of the codes of
the Napoleonic regime other parts of French law have been
codified in whole or in part. Forestry laws were codified
in 1827 under the name of Code forestier and the special
rules concerning the penal law applicable to soldiers and




70


GUIDE TO THE LAW OF FRANCE


sailors in active service were promulgated in the form of
two codes, Code de justice miUtaire powr 'Artme de terre
and Code de justice mritaire pour 'Armwe de mner in 1857
and 1858.
Many of the various general works on civil law, such as
the elementary treatises of Planiol and Colin and Capitant,
give good summary accounts of the adoption and promulgation of the Civil code. A translation of the account given
by Professor Planiol may be found in the first volume of the
Continental legal history series under the title The Revolution and the Codes (pp. 274-305). The best article in
Anglo-American periodicals is that of Judge Charles S.
Lobingier, Napoleon aind i code (32 Harvard Law Review
114, amplified.in 7 American Bar Association Journal, 383).
In addition to giving an historical account of the adoption
of the Code, it also gives an excellent appreciation of the
sources from  which its contents were derived. The complete legal history of the intermediary period, the Consulate and the Empire, is dealt with in a valuable work by
Professor Esmein.89 The various documents concerning the
preliminary work of codification have been published in
different works. In 1805 Maleville, a member of the consular committee, gave a resume of the proceedings in his
Analyse Raisonnee du Code cvil auc Conseil dgEtat.0  They
were also reproduced in two later publications by Fenet and
Locre. The work of the latter, Legislatio  civile, commerdale et criminelle de la Frane 91 embraces the five codes of
the Napoleonic era, but it is less complete than that of
Fenet, Receil oomplet des travauw      preparatoires,2 with
respect to the Civil code, as it does not contain the observaEsmein, A. Prcis el6mentaire de l'histoire du droit frangais de
1789 A 1814. R6volution, consulat & empire. Paris, Recueil Sirey,
reprint 1911. 382 p.
9 Malevlle. J. de. Analyse raisonnge de la discussion du Code civil
an Coaneil d'ltat. 3. Ed. Paris, 1822. 4 v.
"1Locre, J. Legislation civile, commerciale et criminel  de la
France ou commentaire et complement des cinq codes frangais. Paris,
1826-31. 31 v.
" Penet, P. Recnell complet des travaux preparatoires du Code civil.
Pati, 1827. 15 v.




CIVIL CODE


71


tions of the courts. Another work well worth consulting is
that of Portalis, also a member of the consular commission.
The latter was published by his grandson in 1845 under the
title Discours, rapports et travaux inedits sur le Code civil.9
CIVIL CODE
The Civil code is the most important single repository of
French law. As a sort of general common law (droit cornmun) the principles which it contains govern in the absence
of provision in other codes or legislative enactments.
The Code contains a preliminary title and three books,
which in turn are divided into titles, chapters, and sections.
The preliminary title deals generally with the promulgation,
effect, and application of laws. It comprises the first six
articles.
The first book is entitled Des personnes and comprises Contents
articles 7 to 515. Title 1 deals with the enjoyment and loss
of civil rights and the distinction between French citizens
and foreigners. Title 2 treats in general of the recordation
of births, marriages, and deaths. Title 3 deals with civil
domicil; title 4 with absent persons and the effects of absence; title 5 with marriages; title 6 with divorce; title 7 with
paternity, filiation, legitimacy, and legitimation; title 8 with
adoption; title 9 with paternal authority; title 10 with
minority, tutelage, and emancipation; and title 11 with
majority and incompetency.
The second book, comprising articles 516 to 710, deals with
property. Title 1 treats of immovable and movable property. Title 2 deals with ownership and accession, title 3
with usufruct, and title 4 with easements.
The title of the third book is somewhat vague: Des differentes manieres don't on acquiert la propriete. Its general
content is more than twice that of the other two books combined, since it comprises a total of 1,571 articles (articles
711 to 2281). Title 1 deals with successions. It treats of
the opening of a succession and the seisin of the heirs; the
3 Portalis, J. Discours, rapports et travaux inddits sur le Code
civil, publics et pr6ceds d'une introduction par le vicomte F. Portalis.
Paris, Joubert, 1844. 495 p.




GUIDE TO THE LAW OF FRANCE


civil law presumptions of survivorship; the order of inheritance; irregular succession, including the succession of illegitimates; the succession of surviving husband and wife;
escheat; acceptance and refusal of successions; and partition.
Title 2 deals with gifts inter vivos and wills. Title 3 deals
with contracts and consensual obligations in general. It also
contains important provisions concerning proof (arts. 1351
to 1381). Title 4 deals with obligations not arising out of
contract, and title 5 with the marriage contract and the rights
of husband and wife arising out of the community system
and special contract. Titles 6 to 15 deal with a number of
particular contracts, such as sales, the contract of exchange,
hiring, partnership in so far as the civil partnership and
special rules in addition to those contained in the Commercial
code are concerned, loans, deposits, aleatory contracts,
agency, suretyship, and compromises. Titles 16 to 20 deal
with pledges, other than commercial pledges, mortgages and
liens, forcible dispossession, and prescription.
soumes    Excellent summaries of various general matters concerning the Civil code, such as its sources, its qualities and
defects, may be found in the different elementary treatises on
civil law which will be noted later. An exceptionally good
discussion appears in the elementary treatise of Professor
Planiol (infra).
The sources which were utilized are extremely diverse.
The more important in the order named are the Coutuvms,
especially that of Paris, Roman law, royal legislation, and
laws enacted during the revolutionary period. As between
Roman law and the customary law of the North, the influence of the latter was much the greater. The only important
subject in which Roman law, in case of conflict between the
two, was able to predominate is that of the dotal regime
vwhich was not only conserved but extended to all of France.
In addition, it supplied the general rules applicable to obligations and ownership. Most of the provisions with respect
to incapacity of married women, marital authority, and the
community system were derived from customary law, which
also furnished a number of rules concerning successions.
Revolutionary legislation formed the basis of the law relating to majority, the civil marriage, and the hypothecary




CIVIL CODE


73


regime. Royal legislation influenced in part the law of
gifts, wills, substitutions, and proof. In addition, canon
law furnished some of the rules of marriage and those
concerning legitimation.
A number of changes brought about by the Revolution
were maintained; in a sense they portray the general spirit
of the Code. The complete secularization of the law is illustrated in the treatment of marriage which was brought under the control of the civil authorities. Likewise the spirit
of equality which during the Revolution had resulted in the
abolition of the entire feudal hierarchy was conserved. Finally, in forbidding or confining within strict limits agreements tending to restrict alienability of land, the free disposition of property was favored.
It is generally agreed that the outstanding qualities of Qualities
the code are its unity, precision, and clarity. Its unity is.
due to the fact that its preparation was placed in the
hands of a very small group of men. Its precision and
clarity have not been surpassed in either the other codes
or subsequent legislation.
Critics of the Code have in the main directed their attention to its general arrangement and its omissions. The general arrangement has been criticized as being artificial and
without scientific basis. It is to be noted, however, that
Professor Planiol in his elementary treatise does not consider this to be a serious defect. A number of subjects
which should naturally be included are omitted, in some
instances, because they represent modern development of
the law. This is notably true of corporations and industrial, literary, and artistic property, none of which are specifically touched upon.
The official name of the Civil code has been changed from
time to time. It was first published as the Code civil des
Francais. As a result of the law of September 9 1807, its
name was changed to Code Napoleon. Subsequently upon
the Restoration the original name was restored, and finally
a decree of March 27, 1852, reestablished the designation
Code Napoleon. This decree has never been officially abrogated, but since 1870 through usage the code has been cited
and referred to under the name Code civil.




74


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Official  There have been three official editions. The first is that
Editions
of its promulgation in 1804. The second was the result
of a law of September 3, 1807, the object of which was,
principally, to harmonize the terminology of the Code with
the imperial regime which followed the Consulate. Such
words as consul, republique and nation were replaced by
empereur, enmpire, and  taEt. The third and last official
edition was published in 1816. The changes made, like
most of those in the second edition, are of political importance only and explain the presence of the terms, roi, le
royac ne, and procwreur de roi in the Code as it now exists.
Annotated  Private editions vary in size and manner of treatment.
Editions  The large annotated editions such as Dalloz,94 Fuzier-Herman,95 and Sirey96 represent remarkable work. The first
edition of the Code civil annote de Dalloa  was published
in three volumes between 1873 and 1875. It was followed
by a second edition, forming five volumes, which were published between 1900 and 1907 and are annotated to both
jurisprudence and doctrine. A supplement was published
in 1921 under the title addition, and since then shorter supplements have appeared approximately every three years.
The annotated Code of Fuzier-Herman, which follows the
general plan of that of Dalloz and consists of four volumes,
was published between 1882 and 1898. A supplement of
two volumes appeared between 1900 and 1906. That cited
under the name Sirey, now in its fifth edition, was published
in parts between 1911 and 1920. It should be noted that it
is not published by the Recueil Sirey but by Godde.
In addition to the larger works just mentioned excellent
pocket editions with short annotations to subsequent legislation and jurisprudence are published by the same pub"Dallo   Nouveau Code civil annot et expliquk d'apres la jurisprudence et la doctrine. Paris, Dalloz, 1900-1907. 5 v. Additions
1921. Supplements 1924, 1927.
"Fuzier-Herman, E., et Darras, A. Code civil annote. Paris, L.
Larose, 1885-98. 4 v. Supplment par Th. Griffond. Paris, 1900-06.
2 v.
6 Sirey, J. Code civil anote 5. (d. Paris, Marehal et Oodde,
1911-20. 4 v.




CIVIL CODE


75


lishers. That published by Dalloz,97 part of the Petite
collection Dalloz, seems to be the best. Revised annually,
it sets forth in full all legislation pertaining to and modifying provisions of the Code. The similar publication of the
Recueil Sirey, 98 part of the collection of Petits codes Carpentier, is also important.
There are a number of English translations. The latest Traslaare those of Henry Cachard,99 published in 1895, and Blackwood Wright,' published in 1908. The former has the reputation of being the better translation.
The subsequent growth of French civil law can not be dis Development of
cussed in detail here. Attention should, however, be called Civil Law
to a number of scholarly studies of the later evolution of
legal institutions, which are well worth consideration.
The promulgation of the Civil code in France and the subsequent agitation in favor of codification in Germany gave
birth to the German historical school of jurisprudence, an
important doctrine of which was that codification arrests
the full development of the law which can only result from
a slow process of evolution. In an excellent article in the
Livre du centenaire (infra) Professor Saleilles, of Paris,
after referring to Savigny's Of the vocation of our age for
legislation and jurisprudence,2 develops the theory that the
Civil code, in laying down general principles instead of
attempting minute regulation of details, made it possible
for the judge, with the freedom of interpretation provided
for in the Code, to adapt the law to changing economic and
social conditions.
Other writers have developed in greater detail the changes
in the law since the promulgation of the Code. Professor
47 Dalloz. Code civil annote. 29 ed. Paris, Dalloz, 1928-29. 976 p.
8 Carpentier, A. & E. Code civil. Paris, Recuel Sirey, 1927.
1075 p.
9 Cachard, Henry. The French Civil code, with the various
amendments thereto as in force on March 15, 1895. London, Stevens
and sons, 1895. 611 p.
'Wright, E. B. The French Civil code (as amended up to 1906)
translated into English, with notes explanatory and historical, as
comparative references to English law. London, Stevens and sons,
1908. 480 p.
See Philosophy of law, p. 37, note 80.
49926~-31 — 6




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Charmont of Montpellier in Les transfornation~ du~ droit
civil 3 discusses the evolution of the law, as well as the need
for development, in such particular fields as the family,
marriage, the rights of married women, the position of
natural children, property, and the extension of the basis
of responsibility, particularly with reference to the modern
doctrine of division of risk. Professor Duguit, of Bordeaux,
in a series of interesting lectures delivered in Argentina and
later published under the title Les transformations du droit
prive 4 deals with the general trend, not only in France, but
in other countries as well, from the idealism and individualism of the early part of the last century to present-day
realism and socialism.
Translations of portions of both works appear in Progress
of continental law, vol. xi of the Continental legal history series. The same volume contains translations of chapters, relating to the same subject, taken from Dr. Alvarez'
Une nouvelle conception des tudles jrnidiques.5
Another work of importance, dealing particularly with
the inadequacy of the Civil code to meet modern social
problems, is Professor Morin's Lee revoltes des faits.6 Mention should also be made of a series of articles contained in
Les transformations du droit,7 published on the occasion of
the fiftieth anniversary of the Societe de legislation comnparee. This important collection, in addition to a number
of articles devoted to such subjects as social legislation, the
development of administrative jurisprudence, copyright,
maritime legislation, and legislative changes in various
countries during the preceding fifty years, includes an inter3Charmont, J. Les transformations du droit civil. Paris, Colin,
1912. 294 p.
4 See Philosophy of law, p. 43, note 1.
'Alvarez, A. Une nouvelle conception des etudes juridiques et de
la codification du droit civil. Paris, Pichon et Durand-Auzias, 1904.
234 p.
6 Morin, G. La r6volte des faits contre le Code. Paris, Grasset,
1920. 254 p.
' Les transformations du droit dans les principaux pays depuis cinquante ans (1869-1919) Livre du cinquantaire de la legislation comparee. Paris, Librairie gendrale de droit et de jurisprudence, 1923.
2 v.




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77


esting and scholarly dissertation on the growth of French
law through legislation and the influence of doctrine and
jurisprudence, written by Professor Capitant, of the Paris
law faculty.
Before leaving the general subject of the evolution of
civil law since the promulgation of the Code, reference should
also be made to the extended discussion of legislative, jurisprudential, and doctrinal changes since 1804, contained in
the first volume of the supplement to Baudry-Lacantinerie.
Professor Bonnecase,8 of Bordeaux, whose work on the nineteenth century school of interpreters of the Code will be
referred to presently, develops in detail not only legislative
changes in particular fields but also the effect of the present
conception of the role of legal writers on present tendencies
in doctrine and jurisprudence.
At the time of the promulgation of the Code it was not Treatises
uncommonly thought that the text of the law would suffice tOe"
for the solution of legal problems. It was not long, however, before a number of treatises and commentaries devoted
to civil law made their appearance; these with others, which
followed during the course of the last century, represent a
product of juristic labors which is remarkable both for its
quantity and quality.
The general characteristics of the nineteenth century
writers on civil law have received extensive treatment from
the pens of latter-day writers. Short accounts of the development of legal writing are contained in the elementary
treatises on civil law, such as those of Professors Planiol,
Colin, and Capitant, and Baudry-Lacantinerie. Perhaps
the best extensive discussions of the general trend of the
doctrine of the last century are to be found in an article in
the Livre du centenaire, Les interpfetes du Code civil, by
Professors Charmont and Chausse, and a monograph by
Professor Bonnecase entitled "L'ecole de l'exegese."9 To
8 Bonnecase, J. Supplement au traite theorique et pratique de droit
civil de Baudry-Lacantinerie. Paris, Recueil Sirey, 1924-30. 5 v.
See Baudry-Lacantinerie, infra.
9 Bonnecase, J. L'ecole de lex6egse en droit civil. Les traits distinctifs de sa doctrine et de ses methodes d'apres la profession de
foi des plus illustres representants. 2. ed. Paris, de Boccard, 1924.
285 p.




GUIDE TO THE LAW OF FRANCE


paraphrase Professor Bonnecase, the outstanding trait of
the earlier generations of commentators was the cult of the
text and an abounding faith in its proper virtue. Laboring under the illusion of the all sufficiency of the text of the
law and disregarding defects and omissions they attempted
to ascertain through a process of deductive reasoning based
on the text itself or the general spirit of the code, the intention of the legislator. Judged by modern standards this
method of treatment is insufficient; but it served a useful
purpose, namely, that of deriving from the written law its
full import.
Present-day writers follow a bolder and more practical
plan. They no longer regard the textual rule as immutable
and all sufficient but look upon the role of the jurist as including that of pointing out defects and urging reforms.
At present the earlier treatises and commentaries of the
nineteenth century school of interpreters enjoy only a relative authority. Their value is in the main historical and
for that reason the more important only will be mentioned
before passing on to several treatises of the last century
which are still regarded as being of practical value.
We find among the first to appear that of Toullier,10 professor at Rennes, who produced an incomplete work covering
the first 1,851 articles of the code. It was later completed
by Duvergier. The publication of the first edition began
in 1811, and the sixth and last edition was published between 1846 and 1848. The best part is that dealing with
obligations.
The first long and complete treatise devoted to civil law is
that of Duranton, dean of the Paris faculty, which made
its appearance in 1825 under the title Cours de droit hciYl.
The last and fourth edition was published in 1844.
10 Toullier, C. Le droit civil fran:ais, suivant l'ordre du Code, continuk et complt par J. B. Duvergier. 6. 6d. Paris, Cotillon, 18468.
7 v. in 14.
1Duranton, A. Cours de droit frangais suivant le Code civil. 4.
d. Paris, Thorel, 1844. 22 v.




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79


Other general works of about the same time are those of
Troplong 12 and Marcade and Pont.l3     That of the former,
which is seldom cited at present, is sometimes referred to as
" the novel of the law."' The Explication theorique et pratique of Marcade and Pont began to appear in 1842 and passed
through several editions. For a time it enjoyed a certain
popularity in France and in addition is said to have exercised considerable influence on the compilation of the Rumanian Code.
There are four works produced by the nineteenth century
school of interpreters which are of sufficient importance to
merit more than cursory mention.
Of these the more important are the works of Aubry and
Rau and Demolombe.
The Cours de droit civil14 by Aubry and Rau is often
called the chef d'oewure of French juridical science of the
last century. It had as its basic method that of a German
manual published in 1808 by Charles Solomon Zachariae,15
at the time professor at Heidelberg. This manual was imitated by Aubry and Rau, then professors of law at Strasbourg and later counsellors at the Court of Cassation. Little
by little the original German work was revised and added to,
to the point where it became the personal product of the
authors, the first edition appearing in five volumes between
1838 and 1847.   The treatise is remarkable for its original
plan, its rigorous method and concise statement of conclu2 Troplong, R. Le droit civil expliqu6 suivant l'ordre des articles
du code. Paris, Hingray, 27 v. The different parts were published
in several separate editions between 1845 and 1872. They are sold
separately.
12Marcad  et Pont. Explication th6orique et pratique du Code
civil. Paris, Delamotte; Recueil Sirey. 13 v. The different parts
were published separately in second, third, seventh, and eighth editions between 1874 and 1894.
4Aubry et Rau. Cours de droit civil francais, d'apres la mnthode
de Zachariae. 5. ed. rev. par Rau, Falcimaigne, et Gault. Paris, Marchal et Billard, 1897-1922. 12 v.
16 Zacharia von Lingenthal, K. Le droit civil frangais, tr. de l'allemand sur la 5. ed. par G. Masse et Ch. Verg6. Paris, Durand, 1854 -60. 5 v.




80


GUIDE TO THE LAW OF FRANCE


sions. Its plan was revolutionary in that the subject matter, unlike that of the preceding commentaries, was arranged
independently of the order of the Code. The care taken in
the statement of conclusions has not been exceeded in any of
the other general works on French civil law. A fifth edition,
representing the combined work of G. Rau, Falcimaigne, and
Bartin, was terminated in 1922. This last edition, which
contains all the qualities of the work of the original authors,
covers the entire field of civil law in concise form and with
that clarity of style for which French writers are noted.
Demolombe, professor and dean of the faculty of Caen,
in his Cours de Code Napoleon 16 left an uncompleted work
which, in spite of its 31 volumes, only covers the first 1,386
articles of the Code. The work itself consists of a series
of treatises which follow closely the order of the Code. The
first volume appeared in 1844 and with most of those which
followed, has gone through a sixth edition. Professor
Guillouard,17 also of Caen, undertook the publication of a
series of treatises designed to complete the work of Demolombe.   The Cour    de Code Napoleon is noted for qualities quite different from those which characterize the
treatise of Aubry and Rau. Less precise and methodical,
the author reasoned less closely from the text, being more
inspired by the practical needs of the profession. The
treatise is sometimes criticized on the ground that it became too voluminous and failed to take into account the
progress of the law.
1 Demolombe, C. Cours de Code Napol6on. Paris, Lahure. 32 v.
Vols. 11 and 12 on servitudes were published in a 7th ed. in 1882;
vols. 24-31 on obligations in a 5th ed. in 1880-95; vol. 32 on divorce,
by Grevin, in 1896, and the other volumes in a 6th ed. in 1880-82.
17Guillouard, L. Droit civil. Paris, Pedone-Lauriel. 19 v. Guillouard's publications comprise the following treatises: Traits du pret,
2. ed., 1893; Trait6 du contrat de mariage, 3. ed., 1894-96, 4 v.;
Trait6s de la vente et de l'echange, 3. ed. 1902-04, 2 v.; Trait6 du
contrat de louage, 3. 6d. 1891, 2 v.; Traites du cautionnement & des
transactions, 2. ed., 1895; Traites des contrats alWatoires & du mandat,
2. ed., 1894; Trait6 du contrat de soite6, 2. ed., 1892; Trait6s du
nantissement, 2. ed., 1896; Trait6 des privileges & hypotheques, 1897 -1900, 4 v,; Traite de la prescription, 2. ed., 1901-02, 2 v,




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81


The two other works of the nineteenth century school
of interpreters, those of Demante and Colmet de Santerre
and of Laurent, though still consulted, are of less importance.
The former, Cours analytique de Code civil,l8 was begun
by Demante, professor at the Paris faculty. The portion
dealing with the articles of the Code subsequent to article
980 was completed by Colmet de Santerre. The first edition appeared between 1849 and 1873. The different parts
have been published in second and third editions.
The latter, Principes de droit civil frangais,l9 is a Belgian
work by Laurent, professor of law at Ghent, which failed to
obtain in France the same degree of success as other nineteenth century treatises. Although worth consulting, it is
not always a safe guide. Furthermore, marking as it does
the high-water mark of the theory of the all sufficiency of
the text with its resulting rigidity of interpretation, it is
less adaptable to the needs of practitioners.
Within the last few years two new general works, those
of Baudry-Lacantinerie and Planiol and Ripert, have begun
to supplant their predecessors, excepting, of course, Aubry
and Rau, whose treatise is still regarded as among the first
authorities on civil law.
Of all the commentaries or treatises devoted to civil law,
probably the Traite tlhorique et pratique       de droit civil,20
cited under the name Baudry-Lacantinerie, is the best known
in America. The work itself marks a radical change in
method. Instead of representing the efforts of one or two
1SDemante, A., et Colmet de Santerre. Cours analytique de Code
civil. Paris, Plon; Chevalier-Marescq. 9 v. Vols. 1 and 2 on persons, were published in a 3d ed. in 1895-96; the others in a 2d ed.
in 1883-89.
"9Laurent, F. Principes de droit civil frangais. 5. ed. Bruxelles,
Bruylant, 1893. 33 v.
Supplement par Siville. Bruxelles, Bruylant; Paris, Chevalier-Marescq, 1898-1903. 8 v.
2 Baudry-Lacantinerie, J. Trait6 th6orique et pratique de droit
civil. 3. 6d. Vol. 28. 4. ed. Paris, Recueil Sirey, 1905-09. Vol.
28, 1924. 29 v., including index.
Bonnecase, J. Supplement. Paris, Recueil Sirey, 1924-30. 5 v.




82


GUIDE TO THE LAW OF FRANCE


men its publication was begun in 1895 in the form of separate treatises under the direction of Baudry-Lacantinerie,
dean of the Bordeaux faculty, with the collaboration of a
number of eminent professors of the different faculties. At
present the first twenty-seven volumes have gone through
three editions and the twenty-eighth through four. A 4 -volume Supplement, by Professor Bonnecase, also of the Bordeaux faculty, has been recently published. Due to the importance of the work time should be taken to indicate its
general content. Five volumes are devoted to persons. One
treats of property. The law of succession is dealt with in
three volumes. Two volumes are devoted to gifts inter vivos
and testamentary dispositions. Contracts or conventional
obligations form the subject matter of four volumes. Three
volumes deal with the marriage contract. One volume deals
with sales. The contract of hiring is dealt with in three
volumes. Partnerships, loans, and deposits form the subject matter of one volume. Aleatory contracts, agency, and
suretyship are dealt with in a single volume. Three volumes deal with pledges, liens, and mortgages, and prescription forms the subject matter of another and last volume.
The important treatise of Professors Planiol and Ripert,
Traite pratigue de droit civil frangais,21 when completed will
contain about 13 volumes, of which several have already appeared. Its general plan is the same as that of Baudry-Lacantinerie, it being published under the direction of Professors Planiol and Ripert, both of Poris, with the collaboration of a number of important jurists. It is highly recommended because of its practical value.
Critical appreciation is largely a question of individual
taste, but it can be safely said that the two works just mentioned with that of Aubry and Rau represent the leading
present-day French authorities on civil law.
2 Planiol and Ripert with the collaboration of Nast, Morel, Picard,
Rouast, Cassin, Becque, Hamel, Savatier, Maury, Vialleton, Esmein,
Radouant, and Trasbot.  Trait6 pratique de droit civil francais.
Paris, Librairie gon6rale de droit et de jurisprudence. 1925-28.
The parts already published comprise: v. 1, Les personnesl v. 2,
La famille; v. 3, Lwe biens; v. 8 and 9% Les regimes matrimoalaux;
v. 12, Sfretes reelles et hypothbques. The complete collection will
comprise about 13 volumes.




CIVIL CODE


Two other comparatively recent treatises, while not as
important, deserve to be noticed-the Com/mernaire theorique
et pratique 22 by Huc, formerly professor at Toulouse, and
the uncompleted Cours de droit civil francais 23 by Charles
Beudant, formerly dean of the Paris faculty. Published by
his son Robert Beudant, professor of law at the University
of Grenoble, the first volume of the latter work appeared
in 1896.
In addition to the general treatises on civil law there are Elementary Treaseveral elementary works designed primarily for the use of tis
students, but which should be of interest as well as of practical use to those who are not accustomed to the intricacies
of a foreign legal system. Of these the more popular are
the scholarly works of Professors Colin and Capitant 24 and
Professor Planiol.25 That of Professor Baudry-Lacantinerie,26 while not now as popular as the others, is well worth
consulting. Mention should be made of the fact that the
first volume of a student text by Professor Josserand of
Lyon has just been published.26     When completed it will
comprise three volumes.
Before going on to the more important periodicals, mention should again be made at this point of the Livre du centenaire,27 already referred to from time to time in the foregoing pages. Published on the occasion of the hundredth
anniversary of the code, it contains a number of valuable
articles dealing with its adoption, subsequent history, and
influence.
Hue, T. Commentaire theorique & pratique du Code civil. Paris,
F. Pichon, 1892-1903. 15 v.
23 Beudant, C. Cours de droit civil frangais. Paris, Rousseau, 1896 -1908. 7 v. including Introduction. Explication du titre pr6liminaire.
4 Colin et Capitant. Cours,l6mentaire de droit civil. 5 Ad. Paris,
Dalloz, 1927-29. 3 v.
25Planiol, M. Revise par Ripert, G. Trait6 el1mentaire de droit
civil. 10. 6d. v. 1, 11. id. Paris, Librairie g6n6rale de droit et de
jurisprudence, 1926-28. 3 v.
20 Baudry-Lacantinerie, G. Precis de droit civil. Rev. par P. Guyot.
13. 6d. v. 1, 14. Ad. Paris, Recueil Sirey, 1925-27. 3 v.
26a Josserand, L. Cours de droit civil positif frangais. Paris, Sirey,
1929. v. 1, 1015 p.
27Le code civil. Livre du centenaire, pub. par la Societe d'&tudes
l6gislatifs. Paris, Rousseau, 1904. 2 v.




84


GUIDE TO THE LAW OF FRANCE


No discussion of the literature of French civil law would
be complete without some reference to the important periodicals devoted to a study of various legal problems falling
within its scope. While several of those about to be referred to are general in their scope, due to the fact that they
are preponderately devoted to civil law, it is deemed advisable to mention them at this point.
The outstanding periodical is the Revue trimestrielle de
droit civil, which was founded by Professors Esmein, Massigli, Saleilles, and Wahl, the first number appearing in
1902. To paraphrase Professor Planiol, it is an excellent
working tool for those who have a serious interest in the
civil law.
Another extremely valuable review is the Revue critique
de legislation et de jurisprudence, which is the result of the
fusion in 1853 of two older reviews-Revue de legislation et
de jurisprudence, better known under the name Revue
FVolowski, the name of one of its founders, and the Revue
critique de jurisprudence. Suspended during the war, it
began to reappear in 1924 under the direction of Professors
Capitant and Ripert.
Excellent articles pertaining to historical phases of civil
law appear in the Revue historique de droit frangais et
etranger, already mentioned in the chapter on legal history.
Two other reviews, Recueil de l'Academie de legislation de
Toulouse, publication of which began in 1852, and Revue
gejierale de droit, de la legislation et de la jurisprudence, the
first volume of which appeared in 1877, are sometimes cited,
but are usually considered to be inferior to those already
mentioned. Mention should also be made of the Revue
pratique de droit franvais, publication of which began in
1856, and the Semaine jurdique, founded in 1926.
Reference is often made to two older publications, Themis
and the Revue Foelix. At one time very important, they
are now largely of historical value. The first appeared between 1820 and 1829. The second, published successively
after 1834 under the titles Revue franfaise et etrangere de
legislation and Revue de droit frangais et etranger, ceased
publication in 1850.




CIVIL CODE


85


The general treatises on civil law cover thoroughly theDivisions
entire field, but there are a number of works devoted to Code
particular subjects which because of their importance should
be discussed.
Although the first book of the Civil code is entitled Des Pereon
Legal Perpersonnes, juristic persons are not specifically dealt with. sonaity
The legal nature of personality forms, however, an important part of most of the treatises on civil and commercial
law and is also taken up in some of the works on public
law in connection with discussions of the personality of the
state. In addition, it has received extensive individual
treatment by a number of legal scholars and has been the
subject matter of some important and scholarly doctoral dissertations. The term  " juristic person " (personne juridique or personne morale) is applied in French legal literature to establishments founded for public purposes, such
as hospitals, educational and charitable institutions, as well
as to ordinary associations of individuals.
Some preliminary idea of various continental views of
legal personality may be obtained from a series of articles
published in the Harvard Law Review by Arthur Machen
in 1911 under the title Corporate personality (v. 24, pp.
253 and 344).
During the greater part of the last century the traditional
French point of view was that juristic persons are fictitious beings conceived by the legislator to facilitate the
functions of associations and institutions created by men.
Under this theory, which is similar to that of the great German jurist, Savigny, they only possess such rights as are
accorded them by law, and, unlike physical persons, are
not capable of possessing natural rights. Of the various
writers on civil law, it was Laurent who carried the theory
of legal fiction to its ultimate extreme (v. 1, p. 367 et seq.).
From a theory which regards juristic personality as a
fiction of the law, it is an easy step to a second which denies
its existence. Under this latter theory the only real persons
who are capable of possessing rights are those who form the
association. This second theory was first extensively developed in French by Van den Heuvel, a Belgian, in his




86


GUIDE TO THE LAW OF FRANCE


De la situation legale des associations.2   It later formed
the basis of a more important work, Les personnes morales,29
by Professor Vareilles-Sommieres, dean of the Catholic Law
School of Lille, who regarded the fiction of personality as
useful only for the purpose of describing in convenient language a complicated situation or state of affairs.
The outstanding scholarly French work on legal personality is that of Professor Michoud, of the Grenoble faculty,
who besides giving an excellent account of the various
theories, and discussing a number of important questions
relating to juristic persons, develops another theory, that
of the reality of personality, of which Gierke was the leading
German exponent.    The thesis of Professor Michoud is that
the juristic person is not a fiction nor an artifice to describe
a collection of individuals but a reality capable of enjoying
rights. Whether it does or not enjoy such rights depends
on the acceptance of its personality by the law. Professor
Michoud's La theorie de la personnalite morale 30 was recently published in a second edition. Another important
work is that of the eminent Professor Saleilles, De la personralite juidique, histoire et theories.8l Professor Saleilles,
before his unfortunate death a member of the Paris law
faculty, was a partisan of the theory of reality of juristic
personality.
In connection with works developing various theories of
legal personality attention should be called to Professor
Planiol's theory of collective ownership which is set forth in
his Traite elMmentaire (v. 1, p. 984).
The large number of excellent theses which deserve to be
mentioned can not be discussed in detail. Of those relating
to various questions concerning the personality of religious,
8 Van den Heuvel. De la situation legale des associations sans but
lucratif en France et en Belgique. 2. 6d. Bruxelles, Larcier; Paris,
Pedone-Lauriel, 1884. 3 p. 1., [ifi]-iv, [5]-358 p.
29Vareilles-Sommieres de. Les personnes morales. Reprint. Paris,
Pichon, 1919. 683 p.
30 Michoud, L. La th6orie de la personnalit6 morale et son application au droit frangais. 2. ed., by Trotobas. Paris, F. Pichon et
Durand-Auzias, 1924. 2 v.
31 Saleilles, R. De la personnalite juridique. Histoire et theories.
2. ed. Paris, Rousseau, 1922. 684 p.




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87


charitable, and educational foundations the more important include Truchy's Des fondations,32 Ravier du Magny's
Le contrat de fondation,8      Geouffre de Lapradelle's Des
fondctons,34  Coquet's Les fondations 35 and Tronquoy's Notion jwridique intemationale de la fondation.Y8      An excellent thesis giving the various theories of juristic personality
is that of Negulesco, Le probleme     juridique de la personnalite mnoale.87   Mention should also be made of Reni
Adenis' Les associations a but non lucratif38 and Partheniu's Le droit social sur les choses.39     Several theses also
treat the problem of juristic personality from the point of
view of capacity and penal responsibility. Of the former,
the more important are those of Dedier Rousse, Capacite
juridque des associatios,   0 and of Epinay, Capaoite juridique des associations sans but lucratif41   Of the latter the
best is that of Mestre, now professor of law at Paris, Les
personnes morales et leur responsabilite penale.42
The outstanding works dealing with legal personality in
connection with the application of the different theories in
the field of public law will be discussed in a subsequent
chapter.
2Truchy, C. Des fondations. Paris, 1888. 347 p.
33Ravier du Magny, P. Le contrat de fondation. Paris, Larose,
1894. 266 p.
Geouffre de Lapradelle, A. Theorie et pratique des fondations
perpftuelles. Paris, Giard et Briere, 1895. 476 p.
3Coquet, E. Les fondations privees d'apres la jurisprudence.
Paris, Larose et Tenin, 1908. 299 p.
36Tronquoy, M. De la notion juridique internationale de la fondation. Paris, Rousseau, 1908. 336 p.
a7Negulesco, D. Le probleme juridique de la personnalite morale
et son application aux societes civiles et commerciales. Paris, Rousseau, 1900. 227 p.
8 Adenis, R. Les associations a but non-lucratif et le droit de succession. Paris, 1902. 245 p.
39Partheniu, C. Le droit social sur les choses, essai sur la nature
des proprietes collectives. Paris, Giard, 1908. 220 p.
4~Rousse. De la capacit6 juridique des associations en droit civil
frangais. Paris, Rousseau, 1897. 317 p.
Epinay, J. De la capacit6 juridique des associations formees
sans but lucratif. Lille, 1897. 619 p.
'Mestre, A. Les personnes morales et le problome de leur responsabilite p6nale. Paris, Rousseau, 1899. 360 p.




88


GUIDE TO THE LAW OF FRANCE


Before leaving the subject, attention should also be called
to an excellent short discussion of legal personality, with
copious bibliographic notes, contained in Professor Capitant's Introduction a  etude du droit civil 43 (pp. 193 et seq.).
ariage   The French law of marriage received extensive treatment
in English in a work by Kelly,44 formerly an American
lawyer practicing in Paris. Unfortunately Mr. Kelly's
book has not been recently revised and fails to take into
account a number of legislative changes which have taken
place within the past few years. Marriage and divorce in
France were also discussed by Mr. Charles Loeb, an American lawyer practicing in Paris, in the Virginia Law Register of 1913 (v. 18, p. 801, also 45 Chicago Legal News, 248).
The best French discussions are those contained in the better
French treatises on civil law. The latest legislative developments are fully dealt with in the Cours el4mentaire of Colin
and Capitant.
Recent legislation concerning the preliminary formalities
surrounding the celebration of marriage is of particular
interest. As already indicated, the Code completely secularized marriage. The only ceremony having legal effect is
that before the proper civil authorities. In addition, although the age of majority for males was fixed at 21 under
the revolutionary regime, the Code placed it at 25 for marriage with the result that men below that age could not
marry without the consent of their parents. The legal age
for women was placed at 21. Even after attaining majority,
both men and women were required to go through a complicated procedure in requesting, in case of refusal, through
what were called actes respectueux, the consent of their parents before the marriage could take place. During the past
few years these provisions, which were thought to be impediments to the free contraction of marriages and in part responsible for their diminishing number and the resulting
"3Capitant, H. Introduction A l'etude du droit civil. Notions
generales. 4. ed. Paris, Pedone, 1922. 455 p.
44 Kelly, Edmond. The French law of marriage, marriage contracts,
and divorce, and the conflict of laws arising therefrom. 2d ed. rev.
by Bodington. London, Stevens & sons, 1895. 280 p.




CIVIL CODE


89


lowering of the birth rate, have received the special attention of the legislature. An act of June 21, 1907, did away
with the special age of majority for men, making it possible
for them to marry without the consent of their parents upon
attaining 21. The necessity for consulting the parents after
attaining the age of majority and in case of refusal of consent for resorting to the acte respectueux was in part dealt
with as early as 1896. As a result of the laws of June 21,
1907, April 28, 1923, and February 7, 1924, persons of full
age were almost entirely freed from the formalities required
under the older law. Under the law as it now exists if the
future spouses have passed the age of 25 no formality is
required. Between 21 and 25, if the parents refuse their
consent, the marriage may take place 15 days after notification through a notary. If the father and mother disagree
in refusing consent, the marriage may take place at once,
and in case of a second marriage it is never necessary to consult the parents.
More recent legislation (acts of April 8, 1927, and July 17,
1927) has materially modified various provisions of the
Code as to consent of parents to the marriage of minors,
publication of banns, and opposition to the celebration of a
marriage, thus evidencing a tendency toward even greater
liberality. The rules concerning the publication of banns
had also undergone other slight legislative changes as the
result of the law of 1907, already referred to, and a law of
August 9, 1919. At present, although the marriage can not
be celebrated earlier than 10 days after publication, it is no
longer necessary that the banns be published twice nor that
the 10 days include two Sundays.
While the rules relating to capacity and formalities are
contained in the first book of the Civil code (arts. 144 et
seq.), the provisions concerning the marriage contract regulating the property relations of the spouses are to be found
in the fifth title of the third book (arts. 1387 et seq.).
It would hardly be within the scope of the present work Marriage
to give a detailed account of the numerous rules of law con- Contract
cerning the marriage contract. All that can be done is to
point out the principal agreements that the parties may
adopt to govern their future property relations. French law




90


GUIDE TO THE LAW OF FRANCE


specifically recognizes four different types of marriage arrangements: Communmte, regime sans commun   te, eparation de biew, and regime dotal. La commumnaw    or community of property is characterized by a common mass of
property belonging to the two spouses which remains undivided during the duration of the marriage. The coirmunity may comprise all or only a part of the property of
the husband and wife, depending on the contract, the latter
type being the more frequent. Community property is
under control of the husband whose powers are almost as
extensive as if he were sole owner. The separate property
of the wife is also administered by the husband, the revenues
falling into the community. Under the second regime there
is no community, the property of each spouse remains separate property, but as in the preceding systems, the property
of the wife is under the management of the husband. Under
the regime de la separation des biens, or separate property,
there is of course no community or common mass, but the
wife has greater powers of administration than in the second
regime and in addition the revenues from her property belong to her. The dotal regime is of Roman origin and in sum
is a regime of separate property. It owes its name to the
presence of a dowry brought by the wife, the revenues of
which, at least, belong to the husband, who may also acquire
title. The property of the wife which is not a part of the
dowry is called paraphernal property.
In the absence of a special marriage contract, under the
terms of article 1400, the parties are presumed to have
adopted the community regime which is regulated by law
and goes under the name regime legal.
There are a number of individual works on the different
marital regimes which merit attention. Although it was
published in 1894 the Traite du regime de comrmnaute45
by L. and A. Merignhac remains the best work on community
property. Separate property received excellent treatment in
a recent thesis by Moissinac, entitled Essai sur la separation
de biens. It was republished in 1924 under the title Le con45Merignbac, L. et A. Traite du regime de communaute. Paris,
Larose, 1894. 2 v.




CIVIL CODE


91


trat de marnage de separation des bien.46 In 1901 the Institute offered a prize for the best work on the dotal regime.
It was awarded to Professor Eyquem, of the Bordeaux faculty, whose book, Le regnie dotal, son histoire, son evolution,47 besides giving the jurisprudential development of the
applicable provisions of the Code also contains a history of
the dotal regime. Two other works which are considered to
be very good, received honorable mention, those of Depinay,
Le regime dotal, etude historique, critique et pratique,4  and
of Griveau, Le regime dotal en France.4       An older work
which is sometimes referred to and is still considered to be
of value is that of Jouitou, Etude sur le systeme du regime
dotal.50
An important doctrine concerning the marriage contract
is that contained in article 1395 of the code which provides
that no change may be made in the terms of the contract
after marriage. This article has been dealt with in a number of recent theses of which the more important are those
of Louis Henry, De l'immutabilite des conventions matrimoniales,5'  Spineano; Modifications possibles de l'article
1395,52 and Fotino, Etude sur l'immutabilite des conventions
mZatrimoniales.53
Before leaving the general subject of marriage, attention Breach of
should be called to the present jurisprudence concerningto nary
the effect of breach of contract to marry. The maxim gen40Moissinac. Le contrat de mariage de separation de biens. 2. 6d.
Paris, Pichon et Durand-Auzias, 1923. 198 p.
47 Eyquem, A. Le regime dotal son histoire, son 6volution, et ses
transformations au xix siecle. Paris, Marchal et Billard, 1903, 586 p.
48 Ddpinay, J. Le regime dotal, 6tude historique, critique & pratique.
Paris, Marchal et Billard, 1902. 580 p.
49Griveau, P. Le regime dotal en France. Ses avantages et ses
inconvenients. Paris, Marchal et Billard, 1902. 175 p.
60Jouitou, L. Etude sur le systeme du regime dotal sous le code
civil. Paris, Pion; Chevalier-Marescq, 1882-88. 2 v.
61 Henry, L. De l'immutabilite des conventions matrimoniaies.
Paris, 1904. 144 p.
65Spineano, A. Modifications possibles de l'article 1395 du Code
civil. Paris, 1912. 115 p.
u Fotino, N. Etude sur l'immutabilit6 des conventions matrimoniales. Paris, 1917. 213 p.
49926~- 31 --- —




92


CGUIDE TO THE LAW OF FRANCE


erally employed is Toute promesse de manige est wule.
However, French courts allow a cause of action under article 1382 which provides for redress for damages caused
by a wrong done. The present French doctrine is dealt
with in a very good thesis by Angelesco, De la ruptuwre des
promesses de mariage.54
Divorce  French divorce legislation has had an interesting history.
The revolutionary regime which regarded marriage as a
civil contract naturally permitted divorce. But the legislation of 1792 was considered to be too liberal, and, while the
original code made provision for divorce, the number of
causes was materially reduced. Upon the Restoration divorce was abolished and from 1816 to 1884 French law permitted only judicial separation. In the latter year the institution was reestablished and a law of that year as modified in 1886 and 1893 constitutes the existing legislation.
The present grounds for divorce are adultery, conviction
of a felony and, to use the French expressions, exces and
seices and injures graves. Excs and sevices are practically synonymous and seem to be the equivalent of "cruelty"
under the laws of many of the states. Translation of the
term injures gIa:ves is more difficult, due to the fact that it
has received liberal interpretation from the courts. Under
the present jurisprudence it may be said to include every
serious failure to fulfil a marital duty.
Attention should be called to the fact that the procedure
to be followed in actions for divorce is contained in the
legislation reestablishing the institution which was incorporated in entirety in the Civil code. As a result, somewhat illogically, a procedural matter, which should be
dealt with in the Code of procedure, found its way into the
Civil code.
There is surprisingly little modern French literature of
value dealing with divorce as an individual topic. The best
material is that contained in the general treatises on civil
law. Valuable short discussions appear in the elementary
treatises of Planiol and Colin and Capitant. Reference is
'Angelesco, R. De la rupture des promesses de mariage. Paris,
Duchemin, 1914. 146 p.




CIVIL CODE


93


sometimes made to the older works of Coulon 55 and Carpentier.56 Unfortunately neither has been revised, with the
result that they fail to take into account later developments
in jurisprudence. French divorce laws, as well as the conflict of laws rules pertaining to divorce, are discussed, however, in a recent 3-volume Belgian work, Pierard's Divorce
et la separation de corps.57
Several other subjects included within the scope of the
first book of the Civil code have received special treatment.
Mention should be made of Taudiere's Traite ce la puissance
paternelle 58 which, as its title indicates, deals with paternal
authority. Legitimation received valuable treatment in
Levy's Traite pratique de la legitimation,59 and marital authority is dealt with in two very good theses, L'autorite
maritale,60 by Morizot-Thibault, and L'autorite maritale sur
la personne de la femme,61 by Vialleton. Family law and
the philosophy of the Civil code are the subject matter of a
recent publication by Professor Bonnecase.61a     A   short but
very good English summary of the authority of the husband
and father may be found in a translation of an article by
Charles Sans, Organization of the family in French law,
which appears in the Juridical Review for 1902 (v. 14,
p. 281).
5 Coulon, H. Le divorce et la separation de corps: histoire, legislation, debats parlementaires... Paris, Marchal et Billard, 1890-97.
5 v.
5 Carpentier, A. Divorce et separation de corps, doctrine et jurisprudence. (Extr. Repertoire du droit frangais). Paris, Larose, 1899.
2 v. See also Bates, L. T. The divorce and separation of aliens in
France. New York, Columbia university press, 1929. 334 p.
" Pi6rard, A. Divorce et separation de corps. Trait6 theorique et
pratique suivant la legislation, la doctrine et la jurisprudence, beiges
et francaises et le droit international. Bruxelles, Bruyland; Paris,
Recueil Sirey, 1927-29. 3 v.
"Taudiere, H. Trait6 de la puissance paternelle. Paris, Pedone,
1898. 550 p.
59 L6vy, E. TraitG pratique de la legitimation des enfants naturels,
simples... 2. ed. Paris, Recueil Sirey, 1926. 346 p.
Morizot-Thibault, C. L'autoritk maritale (6tude critique du Code
civil). Paris, Chevalier-Marescq, 1899. 408 p.
61 Vialleton, H. L'autorite maritale sur la personne de la femme.
EPtude critique de jurisprudence. Montpellier, 1919. 184 p.
61a Bonnecase, J., La philosophic Code Napoleon appliquee au droit
de famille. Nouv. ed. Paris, de Bouard, 1928. 370 p.




94


GUIDE TO THE LAW OF FRANCE


obliga-   Although occupying one of the most important places in
French civil law, the term obligation is not defined in the
Code. The usual doctrinal definition is one borrowed from
the Institutes of Justinian, namely, a duty to another to perform or refrain from performing some act. Under this
broad definition it includes conventional obligations or contracts, quasi contracts, torts, and quasi delicts, all of which
are dealt with in the Code. The general rules relating to
obligations, such as their effect and extinction, are presented
somewhat haphazardly in articles 1134 to 1303 as a part
of the law of contracts, and quasi contracts and torts receive
comparatively little treatment. This general plan was
taken from Pothier's treatise on obligations and was in turn
borrowed by him from the Institutes of Gaius and Justinian.
Modern writers in discussing the law of obligations often
follow a very different and more logical plan. They deal
with the effect, transmission, and extinction of obligations
in general and under the heading sources take up particular
obligations such as those arising out of contract and tort.
General   There are several important works dealing with obligaliterature
tions in general.   Although somewhat old, the treatise
Theorie et pratique des obligations 62 by Larombiere, published in its second and last edition in 1885, is still considered
to be well worth consulting. This treatise is in the nature of
a commentary on the third and fourth titles of the third book
of the Code. Professor Demogue,63 of the Paris Law School,
is now preparing a general treatise of about eight volumes
of which five dealing with sources have already been published. Judging from the volumes which have appeared,
this work when completed will be the most valuable treatise
on obligations. Another important work is that of Bufnoir,6~
for more than 30 years a popular professor of the Paris
2 Larombiere, L. Theorie et pratique des obligations, ou Commentaire des titres in et iv, livre III du Code civil. Nouv. 6d. Paris,
Pedone-Lauriel, 1885. 7 v.
63 Demogue, R. Traite des obligations en general. Paris, Rousseau,
1923-25. 5 v. When completed the Trait6 will comprise about eight
volumes.
4Bufroir, C. Propriete et contrat. Th6orie des modes d'acquisition des droits reels et des sources des obligations. 2. ed.. Paris,
Rousseau, 1924. 840 p.




CIVIL CODE


95


Faculty. This latter work consists of a series of lectures
and notes collected by his admirers after his death and includes in addition to a discussion of sources of obligations
several chapters relating to the acquisition of ownership.
Mention should also be made of an important work on
the theory of obligations as contained in the German code,
Tkborie generate de l'obligation d'apres le projet de Code
civil allenand,65 by the late Professor Saleilles, of the Paris
faculty. While not concerned directly with French law
it has had considerable influence with respect to a number
of modern French theories relating to obligations.
In addition, attention should be called to an interesting
philosophical work by Professor Ripert, of the Paris Law
School, La regle morale dans les obligations,66 in which the
learned writer deals with the relationship of law and morality in such fields as immoral contracts, fraud, unjust enrichment, and civil responsibility.
The general questions relative to consensual obligations, cauca
such as consent, capacity, and certainty of object, are all
adequately dealt with in different works on obligations or
in their appropriate places in the general treatises on civil
law. Some reference should be made, however, to the literature dealing with the elusive theorie de Ta cause which
has received special treatment in several excellent works in
addition to that contained in practically every treatise from
Toullier down to present times. The starting point is the
Civil code which treats of causa in articles 1108, and 1131
to 1134. These articles provide, among other things, that a
contract without a causa or based upon a false or illicit
causa is invalid, but the term itself is not defined. A common-law lawyer might be tempted to define it in terms of
consideration, but it has a broader meaning. In an important work by Professor Capitant, De la cause,67 recently
e5 Saleilles, R. 1Etude sur la theorie g6n6rale de l'obligation d'apres
le premier projet de Code civil pour l'Empire allemand. 3. ed. Pichon
et Durand-Auzlas, 1914. Reprint 1923. 476 p.
s' Ripert, G. La regle morale dans les obligations civiles. Paris,
Librairie g6ndrale de droit & de jurisprudence, 1925. 398 p.
7 Capitant, H. De la cause des obligations. 3. ed. Paris, Dalloz,
1927. 506 p.




96


GUIDE TO TIHE LAW OF FRANCE


published in a third edition, the learned writer distinguishes
between the purpose of the contract and the motives of the
parties to the contract, the former being the causa of the
contract.  This conception has been dealt with, with variations, in a number of recent theses.    The more important
are Volonte et cause 6    by P.-Louis-Lucas, La notion d'
equivalence 69 by Maury, La cause dans les liberalNtes 70 by
Hamel, and La cause das les actes a titre onereux          by
lonasco. Another important thesis is that of Dabin, La
tzheorie de la cause.72 Attention should be called to the fact
that a number of present-day writers look upon causa as
a useless conception, the mention of which might easily be
dispensed with without causing particular harm to the law
of obligations (cf. Planiol, Traiite e'lUetairc, v. 2, p. 372
et seg.). In this connection mention should be made of an
article, Causa and consideration, in the Yale Law Journal
for 1919 (v. 28, p. 621), in which Professor Lorenzen, after
reviewing civil law authorities, comes to the conclusion that
"there is in reality no definable ' doctrine ' of causa."
An examination of the provisions of the Code relating to
Torts    delicts and quasi delicts (arts. 1382 to 1386) reveals surprisingly few provisions concerning the general field of law
which common-law lawyers designate under the term " torts."
Nevertheless, as in the common law, private wrongs occupy
an important place in French law and legal literature. Attention has been called to the present tendency of modern
68 Louis-Lucas, P. Volonte et cause. Etude sur le role respectif
des elements generateurs du lien obligatoire en droit prive. Paris,
Recueil Sirey, 1918. 320 p.
I Maury, J. Essai sur le role de la notion d'6quivalence en droit
civil frangais. Paris, Jouve, 1920. 2 v.
70 Hamel, J. La notion de cause dans les liberalites. Etude de la
jurisprudence francais et recherche d'une definition. Paris, Recuei'
Sirey, 1920. 392 p.
71 onasco, T. R. L'evolution de la notion de cause dans les conventions a titre onereux. Paris, Les Presses Universitaires de
France, 1923. 189 p.
72Dabin, J. La theorie de la cause. Ittude d'histoire et de jurisprudence. Paris, Recueil Sirey; Bruxelles, P. Van Fleteren, 1919.
334 p.




CIVIL CODE


97


writers to deal with torts as a part of sources of obligations.
This plan is followed by Professor Demogue, who deals extensively with torts in his general work on obligations. Professor Demogue is also the author of an earlier work on torts,
De la reparation civile des delits,73 and has written two articles for American reviews-Fault, risk, and apportionment
of risk, 15 Illinois Law  Review 369, and Validity of the
theory of compensatory damages, 27 Yale Law Journal 585.
In addition delictual responsibility received important treatment in Sourdat's Traite general de la responsabilite,74 published in a sixth edition in 1911.
Attention might also be called here to a text on civil responsibility, Responsabilite civile,75 published by Professor
Lalou in the early part of 1927. This work, devoted principally to delictual responsibility, deals with the general
principles of liability. In addition, Professor Lalou discusses responsibility for one's own acts, for acts of another,
including acts of minor children, and for damages caused by
animals and inanimate objects. He also gives some discussion
of the Workmen's compensation act and state responsibility.
An interesting evolution in civil responsibility is to be
found in the development of liability for, to put it somewhat paradoxically, an illegitimate exercise of a so-called
legal right or privilege (abus des droits). The general
problems arising out of abuse-similar to those raised in
the spite-fence cases, Allen v. Flood (Law reports, Appeals,
1, 1898), and Tuttle v. Buck (107 Minn. 145, 1909), in England and this country-are not infrequently dealt with in
works on civil law. An excellent work specially devoted to
the subject is L'esprit des droits 76 by Professor Josserand,
dean of the Lyon Law School. French doctrines are also
73 Demogue, R. De la reparation civile des delits (ftudes de droit
et de legislation). Paris, Rousseau, 1898. 366 p.
74 Sourdat, A. Trait6 general de la responsabilite ou de l'action en
dommages interets en dehors des contrats... 6. ed., rev. par. L.
Sourdat. Paris, Marchal et Billard, 1911. 2 v.
75Lalou, H. La responsabilite civile. (Principes 6lementaires et
applications pratiques.) Paris, Dalloz, 1927. 479 p.
76 Josserand, C. De l'esprit des droits et de leur relativity. Theorie
dite de l'abus des droits. Paris, Dalloz, 1927. 426 p.




98


GUIDE TO THE LAW OF FRANCE


dealt with in a short but instructive article by M. S. Amos
which appears in the Journal of the Society of Comparative Legislation for 1900 (p. 453 et seq.).
Various other individual problems relating to wrongs
have received excellent treatment in a large number of
theses, of which only a few of the more recent can be
mentioned here. Of those dealing with the elements of
delictual responsibility, particularly with reference to fault,
probably the best are Fromageot's De la faute comzme source
de la responsabilite,77 Bosc's Essai sur les elements constitutifs du delit   ivil,78 Degand's La faute,79 Bettremieux'
Essai historique et critique sur le fondement de la responsabilite civile,80 LIgal's De la negligence et de l'imprudence,81
Meignie's Responsabilite et contrat,82 and Triandafil's L'idee
de faute et l'idee de risque.83  Mention should also be made
of two interesting theses on causation, Guex' La relation de
cause a efet 84 and Marteau's La causalite dans la responsabilite civile.85 The evolution of civil responsibility is dealt
with in Muguet's L'idee de responsabilite civile, son evolution.86
Propertn   There is no general work of importance on property, but
Possession
the entire subject is adequately dealt with in the treatises
77Fromageot, H. De la faute comme source de la responsabilit6 en
droit priv6. Paris, Rousseau, 1891. 276 p.
78 Bosc, J. Essai sur les El6ments constitutifs du delit civil. Paris,
Rousseau, 1901. 273 p.
79 Degand, M. Etude synth6tique et critique des principales theories
modernes sur le role de la faute. Lille, 1912. 180 p.
80 Bettremieux, P. Essai historique et critique sur le fondement de
la responsabilite civile en droit frangais. Lille, 1921. 208 p.
8 Legal, A. De la negligence et de l'imprudence comme source de
responsabilite civile d6lictuelle. Paris, Jouve, 1922. 225 p.
82Meignie, M. Responsabilite et contrat. Essai d'une delimitation
des responsabilites contractuelles et d6lictuelles. Lille, Robbe, 1924.
288 p.
83 Triandafil, E. L'ide de faute et l'idee de risque comme fondement
de la responsabilit6. Paris, Rousseau, 1914. 228 p.
4 Guex, R. La relation de cause a effet dans les obligations extracontractuelles. Lausanne, de C. Pache, 1904. 190 p.
85 Marteau, P. La notion de la causalit6 dans la responsabilit6 civile.
Aix, 1914. 260 p.
s8 Muguet, G. L'id~e de responsabilite civile, son evolution. Paris,
1922. 87 p.




CIVIL CODE


99


on civil law. Reference should be made, however, to an
important study of French and German theories of possession of movables 87 by the eminent Professor Saleilles, who
wrote extensively on German civil law. Important works
on German civil law, by the same writer, and not already
mentioned, are indicated in a note.88
Likewise, the general rules of testate and intestate suc- Succession
cession receive their best treatment in the general treatises
on civil law. Mention might be made of the fact that
testate succession is usually dealt with in connection with
gifts, thus following the order of the Civil code (arts. 901 -1100). An essay on intestate succession, in English,89 was
published by Barthelemy Colin in 1876.       While it gives
some idea of French law and the various theories of intestate succession, due to its age, its present value is doubtful.
A very good English summary of the French law of wills
and probate was published by Pierre Pellerin90 in 1920.
The portion dealing with death duties has been largely
superseded by subsequent legislation. Attention should be
called to a valuable article on Civil law    substitutes for
trusts by Pierre Lepaulle, lecturer on comparative law at
the University of Paris (36 Yale Law Journal, 1126).
COMMERCIAL LAW
The principal sources of the present rules of law govern- Commering commercial transactions are the Commercial code, as cial Cod
87 Saleilles, R. De la possession des meubles; etudes de droit allemand et de droit frangais. Paris, Pichon et Durand-Auzias, 1907.
351 p.
88 Saleilles, R. Introduction a 1'6tude du droit civil allemand. Paris,
Pichon, 1904. 124 p.
Idem. De la declaration de volonte; contribution A l'.etude de l'acte
juridique dans le Code civil allemand. Paris, Pichon, 1901. 421 p.
Reprint 1929. 423 p.
8 Colin, B. H. An essay on intestate succession according to the
French code. London, Stevens & Sons, 1876. 153 p.
90 Pellerin, P. The French law of wills, probate, administration and
death duties. Of the estates of Englishmen leaving property in
France. 2d ed. London, Stevens & sons; Paris, The author, 1920.
90 p.




100


GUIDE TO THE LAW OF FRANCE


modified by subsequent legislation, legislation antedating
the adoption of the code and the Civil code.
Prior to 1808 when the Commercial code went into effect
commercial transactions were mainly governed by the legislation of Louis xiv as contained in the commercial and
maritime ordinances of 1673 and 1681, already mentioned
in the chapter on legal history. As early as 1787 a commission was appointed to revise the existing legislation but the
political events which followed interrupted its work. While
the Constituent Assembly announced its intention to proceed with the codification of both civil and commercial law,
no definite steps were taken with respect to commercial law
until 1801, when a commission of seven members was appointed under the Consulate to prepare a Commercial code.
Although a project was presented to the Government by
Chaptal, Minister of the Interior, in December of the same
year, the general plan was left in abeyance until 1806 when
a financial crisis brought about a number of failures, which
again brought to the fore the need for revision of the commercial laws. Study of the original plan was revived and
the text was ultimately transformed into law through the
same legislative processes as were followed in the adoption
of the Civil code with the result that it went into effect
on January 1, 1808, after having been definitely voted on
during the course of 1807.
It might be stated in passing that the history of the
adoption of the Commercial code is summarized in the different manuals on commercial law. Good discussions may
be found in those by Thaller and Percerou and Lyon-Caen
and Renault and in the treatise by Professors Lyon-Caen
and Renault.
contents  The Commercial code which is, of course, the basic source
of French commercial law, comprises 648 articles and is divided into four books which in turn are divided into titles,
chapters, and sections.
The first book, comprising articles 1 to 189, is entitled
Du commnerce en general and deals with traders, the books of
traders, commercial associations, the publication of the marriage contract of traders, brokers, factors, commercial sales,
bills of exchange, and promissory notes.




COMMERCIAL LAW


101


The second book, comprising articles 190 to 436, deals with
maritime commerce (infra).
The third book, comprising articles 436 to 615, deals with
insolvency and bankruptcy (infra).
The fourth book, comprising articles 615 to 648, deals with
the organization of commercial courts.
There have been two official editions of the Commercial
code, that of its promulgation and a second and last in
1841.
Like those of the Civil code, private editions vary in size Private
and manner of treatment. There are three important an- Edtion
notated editions. Those sold by Dalloz 91 and the Reczteil
Sirey92 are equally valuable and are usually considered to
be better than that published by Marchal and Godde93 and
sometimes cited under the name Sirey. That published by
I)alloz consists of one volume published in 1878, a supplement published in 1896, and "additions complementaires"
published in 1905. Like the annotated Civil code of the
same publishers, it is annotated to both doctrine and jurisprudence. That sold by the Recueil Sirey consists of two
volumes which were prepared between 1903 and 1906 under
the direction of Professor Cohendy, of Lyon, and Alcide
Darras.
There are a number of small pocket editions. That published by Dalloz 94 and belonging to the series, Petite collection Dalloz, seems to be the best. In addition to the Code,
it contains all the important subsequent legislation relating
to commercial matters and short annotations to court decisions. The pocket edition published by Sirey,95 one of
the Petits codes Carpentier, is also important.
There are several English translations. Unfortunately
they are all comparatively old and for that reason fail to
" Dalloz. Les codes annotes d'apres la doctrine et de la jurisprudence: Code de commerce. Paris, Dalloz, 1877. 1,086 p. Supplement. 2. Ed. 1896-1905. 1,041 p.
2 Cohendy, E., et Darras, A. Code de commerce annote. Paris,
Larose, 1903-08. 2 v.
3 Sirey, J., et Sirey, C. Les codes annotes de Sirey: Code de commerce. 4. ed. Paris, Marchal et Godde, 1910. 2 v.
MDalloz. Code de commerce, edition 1928. Paris, Dalloz. 652 p.
95 Carpentier, A. Code de commerce, edition 1927. Paris, Recueil
Sirey. 719 p.




102


GUIDE TO THE LAW OF FRANCE


take into account later legislative developments. The best
seems to be that of Sylvain Mayer,96 published in 1887.
There is also a good translation in Goirand's English Treatise on Fre.nch commercia law.97
Civil ode  As might be expected different parts of the Commercial
and Commercial  code have been amended from time to time to meet changaw      ing economic conditions. Nevertheless, its provisions are not
always adequate to meet present-day legal problems, either
because of total lack of applicable provisions or because of
insufficient treatment. In such cases, following a theory
that the Commercial code is exceptional and the Civil code
the fundamental basis of French private law, it is necessary
to have recourse to the latter to supplement the defects of
the Commercial code. In the case of partnerships it is
expressly provided that the Civil code is to govern in the
absence of applicable provisions in the Commercial code.
(Com. c. 18, Civ. c. 1873.) But in other instances, such as
commercial sales, which are inadequately dealt with in
the Code, or insurance other than marine, which is not
touched upon at all, it is presumed that the general provisions of the Civil code were intended to supplement those of
the Commercial code.
Legislation  The act of September 15, 1807, which fixed the date when
Prior to the
Code    the Commercial code would become effective, expressly repealed all anterior laws dealing with matters touched upon
in the new Code. By implication those subjects not dealt
with are still governed by preexisting laws.  Although referred to in works on commercial law     their number is
limited and comparatively unimportant.
Commen-   Turning now to the general treatises on commercial law
Treatises we find that the evolution in method of treatment was much
the same as that in the treatment of civil law. The earlier
works were largely commentaries while those of to-day are
treatises which follow the same method of treatment to be
found in present-day works on civil law.
9' Mayer, S. The French Code of commerce, as revised to the end of
1886. London, Butterworths, 1887. 307 p.
7 Goirand, L. A treatise upon French commercial law and the
practice of all the courts. 2. ed. London, Stevens & Sons; New York,
Baker, Voorhis & co., 1898. 894 p.




COMMERCIAL LAW


103


Most of the older works are no longer of importance but
there are several which though not often consulted are
worthy of mention. Of the earlier commentators Pardessus
should be classed among the first.       His important work,
Cours de droit commercial,8 first appeared in 1814-1816 and
was published in a sixth edition by Roziere in 1857. Another important earlier work is that of Delamarre and Le
Poittevih which was published in a second edition in 1861.
The first edition was published under the title Contrat 1e
commission ou des obligatione conventionnelles en matiere
commerciale and the second under the title Traite theoriqze
et pratique de droit commercial.99     A somewhat later commentary is that of Bedarride, Droit commnercial.      Commentacre du code de commerce.'      It is interesting to note that
8 Pardessus, J. Cours de droit commercial. 6. Md. par de Rosiere.
Paris, Plon, 1857. 4 v.
ODelamarre, E., et Le Poitevin. Traite th~orique et pratique de
droit commercial. 2. Ad. Paris, Hingray; Plon, 1861. 6 v.
1Bdaridde, J. Droit commercial. Commentaire du Code de commerce:
Des commergants; Des livres de commerce. 2. ed. Paris, Durand
et Pedone-Lauriel, 1872. 542 p.
Des societ6s. 2. ed. 1894. 636 p.
Des bourses de commerce. 2. ed. 1894. Reprint 1921. 666 p.
Des commissionaires. 2. &d. 1894. 636 p.
Achats et ventes. Nouv. ed., par B. Abram. Paris, Larose et
Tenin, 1909. 423 p.
De la lettre de change. 2. Cd. Aix, Makaire, 1894. 2 v.
Du commerce maritime. 2. Ad. 1894. Reprint 1920. 5 v.
Des faillites et banqueroutes. 5. ed. 1874. 3 v.
De la juridiction commerciale.  2. Md.   1891.  Reprint 1920.
584 p.
Commentaire de la loi du 14 Juin, 1865, sur les cheques. Paris,
Durand et Pedone-Lauriel, 1874. Reprint 1920. 302 p.
Commentaire des lois sur les brevets d'invention-marques de
fabrique. Aix, Makaire, 1868. 3 v.
Commentaire de la loi du 10 decembre, 1874, sur l'hypotheque
maritime. 1886.   536 p.
Questions de droit commercial et de droit civil, avec leurs solutions. Reprint 1924. 396 p.
Traite du dol et de la fraude en matiere civile et commerciale.
4. ed., rev. par. A. Riviere. Paris, Chevalier-Marescq, 1887. 4 v.
Commentaire de la loi du 24 juillet, 1867, sur les socites. Aix,
Makaire, 1856. Reprint 1877. 2 v.




104


GUIDE TO THE LAW OF FRANCE


a number of the volumes included within this latter commentary have been recently reprinted.       It should be remarked, however, that their value is far from being the
equal of that of the two important collections or treatises
which have appeared within the past few years. Another
important older work is Bravard-Veyrieres' treatise.        A
second edition was annotated and republished by Professor
Demangeat in 1886-92.
The popular modern treatise, particularly with lawyers,
is that of Professors Lyon-Caen and Renault, both of the
Paris Law   School, Tracite de droit corzrercial,3 consisting
of eight volumes covering practically the entire field of commercial law. The first volume contains a short history of
commercial law and, in addition, deals with commercial transactions, traders, commercial courts, labor courts and chambers of commerce. The second volume, in two parts, deals
with  the   different possible  business associations under
French law. The third deals with general rules concerning commercial contracts and treats in particular of proof in
commercial matters, sales, pledges, warehouses, warehouse
receipts, commissions and transportation. The fourth volume deals with commercial effects, including bills of exchange, promissory notes and checks, banking operations
and transactions on exchanges.     The fifth and sixth are
devoted to maritime law     and the seventh and eighth to
insolvency and bankruptcy.
Another equally important work is the Traite g9"5:       al
theorique et pratiqoe,4 which was originally published -tn2Bravard-Veyribres, P. Trait d(e droit commercial, publie et annote
par C. Demangeat. 2. 6d. Paris, Plon; Chevalier-Marescq, 1SS6-92.
6v.
Lyon-Caen, C., et Renault, L. Trait6 de edroit commercial. Paris,
Librairie generale de droit et de jurisprudence. Vols. 1, 3, and 4.
5. ed. 1921-25. Vols. 2, 5, 6, 7, and 8, 4. ed. 1908-15.
4Thaller, E. Trait6 gCniral th6orique et pratique de droit c:mnmercial. Paris, Rousseau. The following treatises have been published:
Pic. P. Des societes commerciales. 2. ed. 1925-26. 3 v.
Josserand, L. Du contrat de transport. 2. ed. 1926. 1 v.
Ripert, G. Du droit maritime. 2. 6d. 1922-23. 3 v.
Percerou, J. Des faillites, banqueroutes et liquidations judiciaires. 1907-13. 2 v.




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der the direction of Professor Thaller, of Paris, but is at
present under that of Professor Percerou, also of Paris.
The general plan is that followed in the treatise on civil
law published under the direction of Professor and Dean
Baudry-Lacantinerie, of Bordeaux. Instead of representing
the work of one or two legal publicists it consists of a number of separate treatises written by eminent members of
various faculties. At present the collection consists of an
important work on commercial associations, Les societes
commerciales, by Professor Pic, of Lyons; a treatise on
transportation, Les transports, by Professor Josserand, dean
of the Lyon Law School; an outstanding work on maritime
law, Droit mritime, by Professor Ripert, of Paris, and an
important treatise on bankruptcies, insolvency, and judicial
liquidation, by Professor Percerou, also of Paris. Professor
Roubier, of Lyons, is said to be preparing a treatise on industrial and literary property which will form a part of
the collection. When completed the Traite general will
cover the entire field of commercial law.
Turning now to the modern shorter works on commercial
law, we find a larger field to choose from. While they are
intended for the use of students, the more important are
also of practical value. Of these the most popular is that
of Professors Lyon-Caen and Renault, which was published
in a fifteenth edition in 1928, under the title Manuel de
droit commerciatl.5  Unlike the other shorter treatises it
also comprises maritime law. While perhaps not as popular, the Traite e7ementaire 6 of Professor Thaller is equally
valuable and scholarly. Mention should be made of the
fact that the seventh edition represents a revision by Professor Percerou of the Paris Faculty. Other recent im5Lyon-Caen, C., et Renault, L. Manuel de droit commercial (y
compris le droit maritime). 15. 6d. Paris, Pichon et DurandAuzias, 1928. 1,348 p.
6Thaller, E. Traite elementaire de droit commercial A l'exclusion
du droit maritime. 7. Cd. rev. par. J. Percerou.... Paris, Rousseau, 1925. 1,360 p.




106


GUIDE TO THE LAW OF FRANCE


portant works comprise the Precis de droit commercial,7
by Professor Lacour, Professor of commercial law at the
University of Lille, and Dr. Bouteron, and the Precis
theorique et pratique,s by Professor Wahl, of Paris.     The
former consists of four volumes, the third and fourth of
which are devoted to judicial decisions pertaining to commercial matters.    Professor Wahl's Precis is particularly
interesting because of its critical study of the application of the provisions of the Commercial code to presentday problems. Older manuals include those of Professors
Bravard-Veyrieres 9 and Boistel.10
An important periodical devoted entirely to commercial
law is the Annales de droit commercial et industriel franqais,
which was founded by Professor Thaller in 1886 and is now
published under the direction of Professor Percerou.
Before taking up the literature devoted to particular
topics falling within the scope of commercial law, attention
should be called to two works in English, A treatise upon
French mercantile law and the practice of the courts 11 published by Napoleon Argles in 1882 and French cornmercial
law and the practice of the courts12 published by Leopold
Goirand in 1898. The latter, which includes maritime law
and the law of patents and trade-marks, seems to be the better piece of work, but as is often the case with English works
on French law, it has not been revised, with the result that it
fails to take into account later developments through legislation and court decisions.
7Lacour, L., et Bouteron, J. Precis de droit commercial, non
compris le droit maritime. 3. Ed. Paris, Dalloz, 1925. 4 v. Supplement, 1928. 310 p.
8Wahl, A. Precis th6orique et pratique de droit commercial.
Paris, Recueil Sirey, 1922. 1,254 p.
9Bravard-Veyrieres, P. Manuel de droit commercial. 7. ed. rev.
par Demangeat. Paris, A. Marescq, aine, 1868. 793 p.
10Boistel, A. Manuel de droit commercial. 3. ed. Paris, Fontemoing, 1899. 800 p.
"Argles, N. A treatise upon French mercantile law-accompanied
by a new translation of the entire Code of Commerce. London,
Waterlow bro8 & Layton, 1882. 576 p.
" Goirand, L. A treatise upon French commercial law and the practice of all the courts. 2d ed. London, Stevens & sons:; New York,
Baker; Voorhis & co., 1898. 894 p.




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Mention should be made of the fact that a resume of certain parts of French commercial law is contained in a collection 13 published in 1915 by Archibald Wolfe, of the Department of Commerce, in collaboration with Professor Borchard, at the time law librarian of the Library of Congress.
Important bulletins on foreign commercial laws are published from time to time by the Department of Commerce.
Useful information as to commercial matters with a summary of French law may be found in the Manual of French
law14 published in 1902 by Cleveland Coxe, at one time deputy consul general in Paris.
French terminology as applied to the various associations recognized by law is not always easy to understand.
For that reason it is believed that time taken for a preliminary explanation of terms may be well worth while.       AsociaIn non-legal language the French terms societe and asso- tions.
ciation are often used interchangeably to denote any association of two or more persons for a common purpose. In
a narrow legal sense the term association refers to associations organized for some purpose other than that of profit.
In this sense it includes charitable, benevolent, and social
organizations which until recently came within the purview
of articles 291 and 292 of the Penal code forbidding the
union of 20 or more persons without special authorization.
These provisions of the Penal code were repealed by an
enactment of July 1, 1901, which proclaimed the principle
of liberty of association. On the other hand, the term
societe refers to associations organized for the purpose of
gain. The latter did not come within the scope of the prohibition of the Penal code and were, and for that matter
still are, governed by the Civil code (arts. 1832-1873), the
Code of commerce (18-64), and subsequent legislation. In
this narrow  sense the term  societe comprises the French
equivalents of partnerships, limited partnerships, and corporations or companies.
13 U. S. Dept. of Commerce. Commercial laws of England, Scotland,
Germany, and France, by Archibald J. Wolfe in collaboration with
Edwin M. Borchard. Washington, Govt. print, off., 1915. 127 p.
4 Coxe, H. C. Manual of French law and commercial information.
Paris, New York, Brentano's, 1902. 292 p.
49926~-_31  8




108


GUIDE TO TIHE LAW OF FRANCE


Partner-  Sociltes or associations organized for profit are of two
srhipra- kinds, civil and commercial. The former, which are govtions   erned wholly by the Civil code (arts. 1832-1873), comprise
universal and particular partnerships. The first seem to
exist to-day in name only and include associations in which
the members pool all of their property and profits therefrom
or all of their earnings (Civil code, arts. 1836-1840). Particular partnerships are characterized by the union of two
or more persons for profit with respect to a particular thing
or noncommercial venture (Civil code, arts. 1841-1842).
Comparatively, particular partnerships are few in number.
Commercial associations are governed primarily by the
Commercial code (18-64) and subsequent legislation and,
in the absence of applicable provisions in either, by the
Civil code.
Article 19 of the Commercial code states that there are
three kinds of commercial associations (societes) recognized
by law: Societe en nom, collectif, societe en commandite,
and societe anonyme.    In reality there are four, since
societes en commandite are divided into two categories, the
societe en commandite simple and en commandite par
actions.
Independently of the four categories of commercial associations designated under the term  socitess, the Commercial code also recognizes another type of association,
association en participation. This type of association may
exist with respect to one or more operations or with respect
to an entire industry. Its main characteristics are its secrecy with respect to third parties and the fact that those
who act for the association act in their own name. As
between themselves the parties are governed by their contract, which alone constitutes the association.
Commer-   The societe en non collectif resembles the common-law
nerships  partnership. All of the members may participate in the
management of the affairs of the firm  and all are liable
jointly and severally (in solido) for its debts.
iartne-   The societe en commandite simple or as it is often called
ships   par interet resembles the statutory limited partnership of
some of our states. It is characterized by two types of mem



COMMERCIAL LAW1


109


bers-one or more called cornmandites who manage the affairs of the concern and are personally liable for its debts, and
one or more called commanditaires or bailleurs de fonds
who take no part in the management and whose liability is
limited to their financial interest.
The societe en commandite par actions differs from the
ordinary societe en commandite in that the non-managing
members are holders of transferable shares instead of having merely an interest in the concern.
The societe anonyqme resembles the American stock corpo- Corporaration or English company. The members are not per- Companies
sonally liable for debts, and the management of its affairs
is delegated to directors.
Time can not be taken to discuss the numerous legislative
changes of the last century in so far as they concern commercial associations in general. They are all noted in the
various works on commercial law which have already been
discussed and the special works on civil and commercial
associations which will be referred to later. Due to its
importance, reference might well be made here to the legislation governing societes en commandite par actions and
societes anonymes.
Adopting the theory of sovereign grant of corporate life, Legislation.
Limited
the Code originally provided for special governmental au- Partnerthorization for the formation of societes ano'nyves or corpo- ships and
Corporarations. At the same time the societe en commandite was left tions
free from governmental control. One of the results was that
the period following the adoption of the Code was marked
by a preponderance of socitetd en commandite par actions.
Absence of regulation often led to abuses and fraud, and in
1856 the Commandite par actions was brought within governmental supervision. While special preliminary authorization was not required for formation, the amount and subscriptions to shares were strictly regulated. A step toward
the abolition of the requirement of special preliminary governmental authorization for the formation of limited companies or corporations was taken in 1863 through the enactment of a law providing for the formation, without special
charter, of companies with limited responsibility (societes
a responsabilite liimitee), having a capital not exceeding




110


GUIDE TO THE LAW OF FRANCE


20,000,000 francs. In 1867 the necessity for special authorization with respect to the formation of companies or corporations in general was done away with in an act of July
24 which permitted the formation of a corporation by an
instrument under seal if the number of incorporators did
not fall below seven (arts. 21 and 23). Other provisions
of the same law strictly regulated the amount and subscriptions to shares of stock.
This act of 1867 as modified, notably in 1893, 1903, and
1913, is now the controlling legislation with respect to the
formation of both societes en commandite par actions and
societes anonymes. It should be noted that life insurance
companies which are governed by the provisions of an act
of March 17, 1905, as modified in 1921, were excepted from
the terms of the act of 1867, and other insurance companies
are regulated by certain additional provisions (cf. Decree
of March 8,1922). Financial associations were also brought
within closer governmental control by subsequent legislation.
French legal literature concerning business associations is
exceptionally abundant and the task of pointing out the
works which seem to be the more valuable is difficult. The
difficulty is enhanced by the fact that the manner of treatment varies. Certain works deal with both civil and business associations, others with commercial associations in general, and still others with particular kinds of commercial
associations.
General Lit- Of those dealing with associations in general the outstanding treatise is that by Houpin and Bosvieux, Traite
general, theorigue et pratique,15 a 3-volume work which was
published in a sixth edition in 1927. Devoted to associations
with and without profit-making purposes it is kept up to date
by the Journal des societes (infra). A somewhat less valuable treatise covering the same subject matter is Vavasseur's
Traite des societes civiles et comne7erciales,' a 2-volume work
SHoupin, C., et Bosvieux, H. Traite general theorique et pratique des societes civiles et commerciales et des associations. 6. ed.
Paris, Journal des Notaires; Recueil Sirey, 1927. 3 v.
1 Vavasseur, A. Traite des societes civiles et commerciales (avec
formules)... 6. d. Paris, Marchal & Godde, 1910. 2 v.




COMMERCIAL LAW


111


which was published in a sixth edition in 1910. The treatise
by Houpin and Bosvieux besides being decidedly superior
and having the advantage of later publication is probably
the best existing practical guide to the different legal problems concerning partnerships and companies.
There are several important works dealing primarily with
commercial associations, including partnerships and companies. Of these the best is the Traite des societes commerciales 17 by Professor Pic which forms a part of the
Colleotion Tctdler. Another important but less valuable
work is that by Professor Arthuys, Traite des societes commerciales.18 Reference is also sometimes made to Professor
Rousseau's Traite theorique et pratique des societes comrnmerciales 19 which was published in a fifth edition in 1921.
This latter work, however, is not of the same general
scholastic standard as those which have already been mentioned. Mention should also be made here of a recent short
work dealing with the civil law and commercial associations, by Robert Desiry.19a
Most of the questions relating to particular kinds of commercial associations are adequately treated in the general
treatises which have just been mentioned, but reference
should be made to the recent 3-volume Traite theorique et
pratique des societes anonymes 20 by Copper-Royer, dealing
in particular with companies or stock corporations. Very
valuable for its originality and interesting, this work, though
perhaps not always dependable, contains the best individual treatment of societes anonymes. Reference is frequently
made to a popular practical work by Decugis.21         It deals
"TPic, P. Des societWs commerciales. 2. ed. Paris, Rousseau,
1926. 3 v.
8 Arthuys, A. Traite des societes commerciales. 3. ed. Paris,
Recueil Sirey, 1916-17. 2 v. Formulaire par Lecouturier. 1919.
309 p.
19 Rousseau, R. Traite theorique et pratique des socie6ts frangaises
et 6trangeres. 5. ed. Paris, Rousseau, 1921. 2 v.
19a Desiry, R. Droit civil et societes commerciales. Paris. Rousseau, 1929. 357 p.
20 Copper-Royer, E. Traite th6orique et pratique des socite6s
anonymes. 3. ed. Paris, Marchal et Godde; Dalloz, 1925. 3 v.
1 Decugis, H. Traits pratique des societ6s par actions. 6. Md.
Paris, Recueil Sirey, 1926. 984 p.




112


GUIDE TO TIHE LAW OF FRANCE


with both limited partnerships having transferable shares,
and stock corporations.
Private    Recent legislation (act of March 7, 1925) created a new
form  of limited company, similar to the English private
company and characterized by the absence of negotiable
shares, the interest of the members of the association being
only transferable with the consent of a majority of the
shareholders representing three-fourths of the capital stock.
This new type of limited company (societe a responsabilite
limitee), not to be confused with that provided for in the
act of 1863 (supra), has been the subject of two important
commentaries, one by Professors Pic and Bartin, Des
societes e responsabilite limite,22 published in 1927, and the
other by Mr. Drouets, Traite theo-ique et pratique des
societes a responsabilite limitee,23 a second edition of which
appeared in 1927.
Coopera-   French legislation concerning cooperative associations is
usually touched upon in the general works on commercial
law. Very good summaries may be found in the manuals
by Professors Lyon-Caen and Renault and by Professors
Thaller and Percerou. In addition an excellent account of
the legislation up to 1919 is contained in a thesis by Nast,
Le regime juridique des cooperatives. 2
De Facto   Before turning to the status of foreign corporations and
tions   companies in France reference should be made at this point
to an important work by Professor Hemard of Paris,
Theorie et pratique des nullites ce societes et des societes de
fait.25 Published in a second edition in 1926, it deals with
de facto companies and the effect of failure to comply with
22 Pic, P., et Bartin, F. Des societes A responsabilite limitee. Itude
critique et commentaire pratique de la loi du 7 mars 1925. Paris,
Juris-classeurs, 1927. 707 p.
2Drouets, G. Traite theorique et pratique des societes A responsabilite limitee. 2. ed. Paris, Recueil Sirey, 1927. 645 p.
24Nast, A. Le regime juridique des cooperatives. Paris, Jouve &
c ', 1919. 296 p.
2Hemard, J. Th6orie et pratique des nullites de societes et des
societes de fait. i~tude de jurisprudence et de droit compare. 2. 6d.
Paris, Recueil Sirey, 1926. 1,009 p.




COMMERCIAL LAW


113


the positive provisions of the act of 1867 in the formation
of societies en commutandite par actions and soietes anonymes.
With the expansion of American business beyond the con- Foreign
fines of the United States the conditions under which Amer- Corporaican business associations may trade in foreign countries
has become of growing importance. The increase in the
number of American corporations doing business in France
has made the question of the status of foreign corporations
and firms in that country one of peculiar interest to American lawyers and business men.
While foreign partnerships were always permitted to do
business in France under the same conditions as individuals,
prior to 1857 foreign corporations were required to obtain
special governmental authorization. In a law of that year
(May 30) enacted as the result of difficulties with Belgium
arising out of the exclusion of French limited companies
from the latter country, Belgian corporations and other
commercial, industrial, or financial associations were permitted to do business in France under the sole condition
that they conform to French law. The second article of
the same law made provision for the extension through
ministerial decree of the privileges enjoyed by Belgian associations to those of other countries. American corporations were permitted to do business without preliminary
governmental authorization as the result of a decree of August 6, 1882. English companies, however, derive the privilege of doing business from a treaty of June 30, 1862.
The privileges and duties of American corporations in
France are dealt with by Charles Loeb, an American lawyer
practicing in Paris, in a recent work entitled Legal status of
American corporations in France.26  In addition to a discussion of French law with respect to associations in general
and corporations and companies in particular, Mr. Loeb's
book gives excellent translations of all French legislation
concerning corporations. There are several other works in
English dealing with French corporation law and foreign
corporations in France. A practical handbook for lawyers
2 Loeb, Ch. Legal status of American corporations in France.
Paris, Lecram, 1921. 534 p.




114


GUIDE TO THE LAW OF FRANCE


and business men was published by Pierre Pellerin27 in
1920. A   short treatise by Leopold Goirand 28 appeared in
1902 and English companies in France were dealt with by
Thomas Barclay 29 in 1899.
The status in France of foreign companies generally is
dealt with in French works on commercial law and business
associations as well as in important treatises on private international law. In addition, the subject received scholarly
treatment in Professor Pillet's Les personnes mworales en
droit international prive,3   a work which deals not only
with business associations but with the various conflict of
laws problems which concern all types of juristic persons.
Issue and  Closely related to the question of the ability of foreign
Negotiation
of Foreign associations to do business in France is that of the issue and
Securities negotiation in France of securities of foreign companies and
corporations. Besides the treatment received in the different texts on commercial law this important and complicated
question has been dealt with in several individual works.
The most recent, and generally considered the best, is
Lagarde's Lemission de tilres en France.3        Reference is
also sometimes made to a thesis by Paul Dauphin, Emission
et circulation des titres des societes etrangeres.~2  Some discussion may also be found in Mr. Loeb's book.
Nationality  The question of the nationality of companies has given
French courts and writers considerable difficulty. Prior to
the World W'ar the generally accepted doctrine, at least in
so far as jurisprudence was concerned, was that the nation2 Pellerin, P. French company law (societes anonymes); a practical handbook for lawyers and business men. London, Stevens &
sons, 1920. 159 p.
28 Goirand, L. A treatise upon the French law relating to English
companies carrying on business in France. London, Stevens & sons,
1902. 112 p.
29Barclay, T. Companies in France; the law relating to British
companies and securities in France and the formation of French
companies. 2d ed. London, Sweet & Maxwell, 1899. 160 p.
3 Pillet, A. Des personnes morales en droit international prive;
soci6tes etrangeres. ]Etats, etc. Paris, Recueil Sirey, 1914. 434 p.
3 Lagarde, G. L'emission de titres en France par des soci6tes de
commerce etrangeres. Paris, Recueil Sirey, 1926. 424 p.
32 Dauphin, B. P. ~Emission et circulation des titres des societes
Rtrangeres en France. Paris. 1907. 146 p.




COMMERCIAL LAW


115


ality of a corporation depends on the place of its principal
business (siege social) as evidenced by the general management and stockholders' meetings. In determining the enemy
character of companies during the war, however, the courts
adopted as a test the control of the company, following
somewhat the British view in Daimler Co. v. Continental
Tyre and Rubber Co. (L. R. (1916) 2 A. C. 307), adopted
also in article 297 of the Treaty of Versailles. (See Clunet,
1917, 226, for an example of the application of this view.)
Mr. Loeb, in the work just mentioned (p. 21), states that two
other views have from time to time been advanced by different writers, namely, that nationality depends on the law of
the place of incorporation, or, on that of the place where
the principal business interests of the corporation are located.
French writers on commercial law as well as those who
deal specifically with business associations devote some space
to this interesting and difficult problem. In addition, it has
been the subject matter of a number of theses. The best of
those published after the war is, perhaps, Cuq's La nationalite des socites,33 an excellent comparative study of both
jurisprudence and legislation. Another good study is that
of Leven which first appeared in 1900 as a thesis and was
recently republished in a second edition under the title La
nationalite des societes et le regime des societes etrangeres en
Fronce.34 This latter work gives a very.good account of the
French regulations concerning foreign companies doing
business in France. Pepy's La nationalite des societes 35 is
also important and reference is often made to a similar
thesis by Gain.30
Before leaving the general subject of business associations mention should be made of the important periodicals:
Journal des societes, Revue des socites, and Gazette des
socites.
3 Cuq, M. La nationalite des societes. Etude de jurisprudence et
de legislation compar6es. Paris, Recueil Sirey,.1921. 192 p.
8Leven, M. De la nationality des soci(tes et du r6gime des sociWtes 6trangeres en France. 2. 6d. Paris, Rousseau, 1925. 480 p.
6Pepy, A. La nationalite des societes. Paris, Recueil Sirey, 1920.
310 p.
3 Gain. R. La nationality des sociEtes avant et depuis la guerre de
1914-1918. Paris, Dalloz, 1924. 250 p.




116


GUIDE TO THE LAW OF FRANCE


Exchanges  Exchanges, including stock and commodity exchanges,
are governed primarily by the Commercial code (arts. 71 -90), as well as by a number of subsequent laws and decrees.
In addition, they are to some extent affected by legislation
antedating the adoption of the Code.
While the general literature dealing with exchanges is
exceedingly abundant, that which appears to be worthy of
mention is comparatively small. Probably the best general discussions are to be found in the treatise on commlercial law  by Professors Lyon-Caen and Renault and the
shorter works on commercial law, such as the manual of
the same writers and that of Professors Thaller and Percerou.   Though    somewhat old the     Traite theorique    et
pratique des oper ations de Bourse,37 by Buchere, is often
referred to.  Reference is also sometimes made to a later
work on financial and exchange transactions in general,
Traite pratique de droit firnancier, ba;nques, bourses de commerce,38 by   Rousseau    and  Gallie.   Stockbrokers, their
privileges and duties, was the subject of an excellent study
by Waldmann, La profession d'agent de change,39 published
in 1910. In addition, the negotiation on exchanges of registered shares was dealt with in a short work by BezardFalgas, De la negociatino en Bourse des titres nominatifs,4
published in 1921. Attention should also be called to the
fact that the portion of B1darride's treatise dealing with
exchanges was recently reprinted.41
Transfer of  In this connection mention should also be made of two
Shares.
Lst and  valuable works by Bezard-Falgas dealing, respectively, with
Stolen   the loss and restitution of shares made out to bearer and
Shares
questions relating to contests over the transfer of shares
and bonds which have been stolen, lost, or destroyed. The
37 Buchere, A. Trait6 th6orique et pratique des operations de
Bourse. 3. 6d. Paris, PIon; Chevalier-Marescq, 1892. 850 p.
a8 Rousseau, R., et Gallic, L. Trait6 pratique de droit financier,
banques, bourses de commerce, valeurs et marchandises. 2. 6d. Paris,
Rousseau, 1924. 2 v.
39Waldmann, A. La profession d'agent de change, ses droits et ses
responsibilit6s. 2. ed. Paris, Pichon et Durand-Auzias, 1910. 697 p.
40 Bzard-Falgas, J. De la n6gociation en Bourse des titres uoninatifs. Paris, Pichon, 1921. 21 p.
41 Bdarride, J. Des bourses de commerce. 2. ed. Aix, Makaire,
1894. Reprint, 1921. 666 p.




COMMERCIAL LAW


117


first, a comparative study of French and foreign law, was
published in 1923 under the title Traite de la perte et de
la restitution des titres au porteur 42 and the second in 1908
under the title Le contentieux des oppositions sur titres
d'ac'tions et d'obligations.43  Another important work by
the same writer is his Contentieux des transferts,44 recently
published in a third edition. It deals with controversies
arising out of transfers of registered shares.
While relatively not as important as some of the other
topics falling within the scope of commercial law, it is
believed that the general literature dealing with fonds de
commerce, which might be freely translated, a commercial
establishment, including the concepts " going concern " and
" good will," as well as " stock in trade," is of sufficient importance to be mentioned. The legal nature of fonds de
commerce was dealt with in an important thesis by Gombeaux, Notion juridique du fonds de commerce.45       In addition, the important act of March 17, 1909, which, as modified by subsequent legislation, makes provisions for the sale
and mortgage of fonds de commerce, received treatment in
a very good work by Montier and Faucon which was published in a third edition in 1914 under the title De la vente
et du nantissement des fonds de commerce.46      An important
general treatise on the subject is that by Boutaud and Chabrol, Traite general des fonds de commerce.4         Cendrier's
42 Bezard-Falgas, J. Traite de la perte et de la restitution des
titres au porteur, frangais et etrangers. Paris, "Juris-classeurs,"
1923. 632 p.
43 Bzard-Falgas, J. Le contentieux des oppositions sur titres
d'actions et d'obligations; saisie des titres, titres perdus, voles ou
detruits. Paris, Pichon et Durand-Auzias, 1908. 367 p.
44Bezard-Falgas, J. Traite theorique et pratique du contentieux
des transferts d'actions et obligations nominatives. 3. ed. Paris,
Librairie generale de droit et de jurisprudence, 1924. 765 p.
45 Gombeaux, E. La notion juridique du fonds de commerce.
Paris, Rousseau, 1902. 322 p.
4 Montier, F., et Faucon, G. De la vente et du nantissement des
fonds de commerce. 3. ed. Paris, Rousseau, 1914. 365 p. Supplement, 1918.
47Boutard, E., et Chabrol, P. Trait6 general des fonds de commserce et de l'industrie, avec formulaire. Nouv. #d. Paris, Rousseau,
1910. ii, 662, 112 p.




118


GUIDE TO THE LAW OF FRANCE


Traite general,48 recently published in a fourth edition, is
also important.
Transporta- Unlike her continental neighbors, Belgium and Germany,
landNavi- France has no general legislation dealing specially with
gation  the important subject of inland navigation. A project for
the codification of the rules relating to the subject, which
are independent of those dealing with maritime commerce,
has been proposed, but for the time being the regulations,
in so far as the contract between carrier and shipper are
concerned, are those which relate to carriers in general.
These regulations are contained in the Civil code (arts.
1782-1786) under the title Des voituriers parr terre et par
eau and in the Code of commerce under the titles Des commissioznaires pour les transports par? terre et par eau (arts.
96-102) and Du voit-ier (arts. 103-107). While adopted
at a time when modern means of transportation were not
thought of, these provisions are sufficiently broad to permit
their application to all forms of transportation.
Railways  In addition to the general provisions just mentioned, railways are governed by a number of laws and decrees, including a fundamental law of July 15, 1845, by the special regulations contained in the charters or operating concessions
to particular roads and by the official tariffs established with
the consent of the minister of public works.
Aeiaio    Aerial navigation is governed by an important act of May
31, 1924, which might almost be called a code. This act is
divided into five titles dealing with airships-their nationality, ownership and mortgage, the circulation of airships,
transportation, damage and responsibility, and certain penal
dispositions.
The outstanding work on transportation in general, including transportation of passengers as well as merchandise,
is Professor Josserand's Les transports, en service interieur
et en service international.49   A  part of the Collection
48Cendrier, G. Le fonds de commerce, trait6 general th6orique et
pratique. 4. 4d. Paris, Dalloz, 1926. 705 p.
4 Josserand, C. Les transports, en service interieur et en service
international (transports ferroviaires, roulage, navigation interieure et
navigation aerienne) A l'exclusion des transports maritimes. 2. 6d.
Paris, Rousseau, 1926. 1,137 p.




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119


Thaller, it was published in a second edition in 1926. In
addition to dealing with internal and international transportation, it also discusses all forms of carriage, including
that by air and by rail and inland navigation. A good but
less valuable work, confined to inland transportation, is
Roger's Manuel theorique et pratique des transports.50 Reference is also sometimes made to Duverdy's Traite du contrat
de transport, a much older treatise, which deals with land
transportation, particularly by rail. Another old work
which is often cited is Sarrut's Legislation et jurisprudence
sur le transport.52  This latter text is confined to carriage
of goods by rail. Mention should also be made of a practical manual of a popular nature published by Lamy in 1924
under the title Manuel pratique des transports par chemins
de fer.53  This work, while confined to rail transportation,
comprises carriage of passengers and merchandise. Attention should be called to the fact that matters relating to
public administration of railways are usually discussed in
works on administrative law.
International transportation by rail was dealt with in a Internarecent work by Professor Brunet and Doctors Durand and Transportade Fourcauld, Les transports internationaux par voie ferree.54 tion
While perhaps not as valuable as Professor Josserand's
treatment of the same subject this text is also of importance.
The law of bills of exchange and promissory notes is con- Negotiable
tained in the eighth title of the first book (arts. 110-189) of Paper
the Commercial code. The law relating to checks forms
the subject matter of separate legislation, an act of June 14,
1865, as modified by subsequent enactments.
50 Roger, R. Manuel juridique, theorique et pratique des transports
(droit maritime excepts). Paris, Riviere, 1922-24. 2 v.
" Duverdy, D. C. Traits du contrat de transport par terre en general
et sp6cialement par chemins de fer. 2. Ed. Paris, Chaix, 1874. 483 p.
62Sarrut, L. Legislation et jurisprudence sur le transport des
marchandises par chemins de fer. Paris, Chaix, 1874. 636 p.
3 Lamy, L. Manuel pratique des transports par chemins de fer,
voyageurs, marchandises et objets de toute nature. 10. ed. Paris,
Recueil Sirey, 1924. 506 p.
5 Brunet, R., Durand, P., et de Fourcauld. Les transports internationaux par voie ferree. Paris, Recueil Sirey, 1927. 949 p.




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GUIDE TO THE LAW OF FRANCE


Professors Lyon-Caen and Renault give an interesting
account of the steps leading up to the legislation of 1865.
(Manuel, p. 654 et seq.)  The use of bank deposits in
France for checking purposes has always been less general
than in Anglo-American jurisdictions. Their use was particularly limited prior to 1865. But with the establishment
of credit institutions some means for the transfer of funds
had to be found. The logical method would naturally have
been that employed in England, a draft on the bank, payable to order or bearer. Such a draft was subject, however, to a proportional tax under the provisions of an act
of June 5, 1850. In order to avoid its payment, depositors
adopted the practice of signing a receipt which was turned
over to the person to receive payment. Not being made
out to order (to avoid paying the tax) the receipt could
be used by a finder or thief to receive payment of the
amount indicated. The latter possibility naturally discouraged this method of transferring funds.
In order to encourage bank deposits and a resulting use
of checks, the legislature in the act of 1865 declared that
during a period of 10 years checks would be exempt from
a stamp tax; but, at the same time, in order to avoid the
substitution of checks for drafts and thus an evasion of the
stamp tax on the latter instruments their use was subjected
to a number of regulations which explain some of the existing French rules with respect to checks. The most important amendments to the law of 1865 are those of August 23,
1871, February 19, 1874, December 30, 1911, January 26 and
August 2, 1917, and March 22, 1924.
It is somewhat surprising to find that there is no good
modern French work devoted exclusively to bills and notes.
The subject is, of course, dealt with in the different manuals
on commercial law and in the general treatise by Professors
Lyon-Caen and Renault. In addition, there are two very
good works on checks, those of Bouteron, Le cheque,55 and
5 Bouteron, J. Le cheque, th6orie et pratique. Paris, Dalloz, 1924.
918 p. Supplemented by Le droit nouveau du cheque; jurisprudence
et legislation 1924-27. Paris, Dalloz, 1928. 218 p.




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Drouets' La provision en matiere de chcque.56       Payment
of commercial paper by check, under an act of August 28,
1924, and the development of the check in France are dealt
with in a recent work by L. Lamer.57     In this connection,
reference should also be made to a work in English, The
French Law relating to bills of exchange, promisesory notes
and checks,58 published by Williamson in 1912.
Book 2 of the Commercial code is devoted in its entirety Maritime
to the rules governing maritime commercial transactions. commerce
It does not, however, deal with maritime international law
including such subjects as prize and blockade nor with what
some French writers call administrative maritime law, including the relations between the state and the merchant
marine and maritime police.
This second book is divided into 14 titles dealing with
such important topics as: ships and liens (Title i), the seizure
and sale of ships (Title ii), owners and their liability (Title
iii), the captain, his rights and duties (Title iv), the engagement of the crew (Title v), charter parties (Title vi),
bills of lading (Title VII), freight (Title VIII), bottomry
(Title ix), marine insurance (Title x), average (Title xi),
jettison (Title xii), and prescription (Title xiii).
Since the adoption of the Commercial code in 1807 the
second book has undergone but few changes. There are,
however, several legislative enactments of which some mention should be made. The more important include an act
of July 10, 1885, relative to maritime mortgages, an act of
March 24, 1891, modifying article 435 of the Code with respect to suits by shippers for damage and average, an act
of July 15, 1915, modifying articles 407 and 436 with respect to collisions and limitation or prescription, a law of
"Drouets, G. La provision en matiere de ch6que (etude de la doctrine et de la jurisprudence francaises). Paris, Recueil Sirey, 1924.
354 p.
Lamer, L. Le reglement par cheque des effets de commerce, loi
du 28 aott 1924, et le d6veloppement general du chcque en France.
Paris, Sirey, 1928. 90 p.
68 Williamson, A. The French law relating to bills of exchange,
promissory notes, and cheques. London, Stevens & sons, 1912. 224 p.




122


GUIDE TO THE LAW OF FRANCE


April 29, 1916, concerning salvage, and recent extremely important legislation comprising a disciplinary and Penal code
for the merchant marine (act of December 17, 1926), and
a labor code for seamen, replacing the fifth title of the second book (act of December 13, 1926).
General   Maritime law has been the subject matter of an extensive
Literature
literature during the period of more than a century since the
adoption of the Commercial code. Of the older works the
most valuable is that portion of Pardessus's treatise on
commercial law devoted to maritime matters, which, while
perhaps seldom consulted at present, was long looked upon
as a classic. Somewhat later works which can still be consulted with profit include de Valroger's 5-volume commentary, published in 1883-1886 under the title Droit maritime.
Commentaire theorique et pratique du livre II du Code de
commerce,59 Desjardins's 9-volume Traite de droit commercial maritime,60 published in 1878-1890, and de Courcy's
Questions de droit maritime,cl published in four series in
1877-1888. Reference is frequently made to Dufour's Droit
maritime.62
Of the present current works the most important is undoubtedly the 3-volume treatise Droit maritime 63 published
in a second edition in 1922-23, by the eminent Professor
Ripert, of the Paris Faculty. Professor Ripert's treatise, a
third edition of which is now in the course of publication,
contains copious references to the maritime law of other
jurisdictions as well as a scholarly discussion of French law.
The treatment of maritime law in volumes 5 and 6 of Professors Lyon-Caen's and Renault's treatise on commercial
law is also of importance. While of value, Danjon's Trait5
69Valroger, L. de. Droit maritime. Commentaire theorique, et
pratique du livre II du Code de commerce. Paris, Larose et Forcel,
1883-86. 5 v.
0 Desjardins, A. Traite de droit commercial maritime. Paris,
Pedone-Lauriel, 1878-90. 9 v.
l Courcy, A. de. Questions de droit maritime. Paris, A. Cotillon
et cie, 1877-88. 4 v.
2Dufour, E. Droit maritime, commentaire des titres I et II, livre
II, du Code de commerce. Paris, Durand, 1859. 2 v.
63 Ripert, G. Droit maritime. 2. ed. Paris, Rousseau, 1922-23. 3 v.
3. ed. Paris, Rousseau. Vols. 1 and 2, published 1929.




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123


de droit maritime64 is less important. Mention might be
made of the fact that the second edition of this latter work
will contain six volumes, published with the collaboration of
J. Lepargneur.   Four have already appeared.      Reference
should be made at this point to a 3-volume work by F.
Guerin.65 The first volume deals with administrative maritime law, the second with laws and regulations, and the third
with commercial and international maritime law.
The number of one-volume works on maritime law is small,
and none are comparable with the larger treatises. Professor Wahl's Precis theorique et pratique,66 while of value, is,
perhaps, too detailed for a work of this kind. Professor
Bonnecase, of the Bordeaux faculty, is also the author of a
short work, Traite de droit commercial maritime,6    which,
though well written, is not of the same outstanding merit as
his other works. A very good recent summary work, intended entirely for the use of students, is Professor Lacour's
Precis de droit maritime.68  Reference is sometimes made to
Professor Vermond's Manuel.69
An important periodical devoted to maritime law was published from 1885 to 1923 under the title Revue Internationale
du droit maritime. After 1923 its place was taken by the
Revue de droit maritime comrpare, which contains a supplement devoted to French maritime decisions.
As in other fields of French law, the particular topics
or subdivisions probably receive their best treatment in the
general treatises. There are, however, a number of works
devoted to some of the problems arising out of the application of the second book of the Commercial code, or subse4Danjon, D. Trait6 de droit maritime. 2. ed. Paris, Recueil
Sirey, 1926-29. 6 v. 4 published.
5 Guerin, P. Precis de legislation maritime. Paris, Gauthier-Villars, 1927. 3 v.
68 Wahl, A. Precis th6orique et pratique de droit maritime. Paris,
Recueil Sirey, 1924. 614 p.
7 Bonnecase, J. Traite de droit commercial maritime. Paris, Recueil Sirey, 1923. 625 p.
6 Lacour, L. Precis de droit maritime. Paris, Dalloz, 1927. 350 p.
9Vermond, E. Manuel de droit maritime. 5. ed. Paris, Recueil
Sirey, 1920. 467 p.
49926~-31 —  9




124


GUIDE TO THE LAW OF FRANCE


quent legislation, which it is believed are of sufficient interest to warrant some mention.
Liens.    In general, French law admits of the possibility of mortShip Mortgages   gage or hypothecation of immovables and pledge of movables. Prior to 1874 it was legally impossible to mortgage
a ship, as the law of mortgages applied only to realty. It
was practically inexpedient to pledge a vessel, as in order
to prevail over third parties, the pledgee is required under
French law to have possession. As a result, the only legal
or practical method of raising credit on a vessel was the
bottomry bond, the disadvantages of which are as real under
the rules of French maritime law as under those prevailing
in the United States and England. In order to remedy
the existing situation the French legislature in an act of
December 10, 1874, made provision for the hypothecation
or mortgage of ships, thus creating an exception to the general rule limiting mortgages to immovables (cf. Civil code,
2120). A number of modifications were made in the act
of 1874 through a subsequent law of 1885 (July 10), and
it is this latter which, as modified in part, now governs
French ship mortgages.
Maritime liens seems to be better dealt with in the Commercial code than under the existing legislation and court
decisions in the United States. Article 191 enumerates the
different possible liens, or, to use the civil-law term, "privileges," and definitely fixes their relative rank.
A very good comparative study of maritime hypothecation is to be found in a thesis by Doctor Jourdan, Des suretes reelles sur les navires, etude de droit coinpr e.T  Doctor
Jourdan's thesis also contains a chapter on liens and an
interesting historical introduction. Liens for supplies and
repairs are dealt with in a recent work by S. Carrus.71
Collisions  The French law with respect to responsibility for damage
suffered in a collision is contained in article 407 of the
Commercial code as amended in 1915. This amendment
7 Jourdan, L. Des sflret6s reelles sur les navires. Itude de droit
compare. Aix, 1914. 328 p.
71Carrus, S. Les privileges sur le navire pour fournitures et
reparations. Paris, Librairie ge6nrale de droit et de jurisprudence,
1928. 216 p.




COiMMERCIAL LAW


125


was enacted in order to bring French law into complete
harmony with the rules established by the Brussels convention of 1910, to which France adhered. In SQ far as
injuries to the vessels are concerned, the Brussels convention adopted the French point of view with respect to
liability arising out of common fault, namely, division of
damages according to the degree of fault as contrasted with
the American doctrine of equal division and the commonlaw doctrine of contributory negligence. Certain modifications of the former French law with respect to liability to
third parties were, however, introduced by the act of 1915.
Under the existing law each vessel is only liable for its
proportionate share of damages caused to merchandise, but
with respect to persons who have been injured or the heirs
of those who have been killed in the collision the liability
is joint and several (in solido) with recourse over in favor
of the owners of the vessel who have been obliged to pay
more than their share.
The principal French work on collisions is Autran's Code
international de 'abordage, de lassistance et du sauvetage
maritimes.72  A  second edition was published in revised
form in 1902 by Bevotte. It should be remarked, however,
that this work, which also includes salvage, was published
prior to the enactment of the legislation of 1915 to which
reference has just been made. In a very good thesis, also
published prior to the legislation of 1915, Dr. Demey73 gives
an exposition of the different French rules applicable to collision and includes a valuable comparison of the various
contributory negligence doctrines. He also discusses the
liability of the owners to third parties. The present law
is dealt with in the manual on commercial law by Professors Lyon-Caen and Renault and the general treatise
on maritime law by Professor Ripert.
The important maritime doctrine of limitation of lia- Limitation
bility of owners is contained in article 216 of the Commer- of Liability
"7Autran, F. Code international de l'abordage, de l'assistance et
du sauvetage maritimes. 2. 6d. rev. par R. de Bevotte. Paris,
Chevalier-Marescq, 1902. 596 p.
73 Demey, J. De la faute commune, specialement en matiere d'abordage maritime. Paris, 1906. 104 p.




126


GUIDE TO TIE LAW OF FRANCE


cial code as modified by subsequent legislation. This article
makes provision for the surrender of the vessel in its condition at the time with freight for the last voyage, thus providing for a doctrine which is similar to that contained in
the American act of 1851. The laws and theories of the
principal maritime nations were dealt with by Prodromides
in an excellent thesis, Des restrictions legales a la responsabilite des proprietaires de navires.74 A very good discussion may also be found in the second volume of Professor
Ripert's treatise.
Charter    There is no general French treatise on charter parties
Parties.
Maritime  comparable with Carter's English work on the subject, but
Transporta- a useful short practical manual on the contract of marition
time transportation was published in 1926 by Sauvage.75    in
addition, the ability of the carrier to exempt himself from
liability through stipulation in the bill of lading has been
the subject matter of several important theses. Doctor Sauvage is also the author of an excellent comparative study
on negligence and non-responsibility clauses which was pulblished in the form   of a thesis in 1911 under the title La
clause de negligence et les clauses de nonresponsabilite des
fautes.    Other theses were published       by   Tallavignes
d'Angles 77 and Gautier.78  That of the latter appears to be
particularly good. Non-responsibility clauses in bills of lading in general were dealt with in a recent publication by M.
Armand.78a
74Prodromides, M. Des restrictions l1gales a la responsabilite des
propri6taires de navires a raison des actes et des faits du capitaine
et des gens de l'iquipage. Paris, Jouve, 1919. 739 p.
5 Sauvage, F. Manuel pratique du contrat de transport des marchandises par mer. Paris, Librairie generale de Droit et de jurisprudence, 1926. 412 p.
7 Sauvage, F. La clause de negligence et les clauses de nonresponsabilit6 des fautes dans le contrat de transport par mer. Paris,
Pichon et Durand-Auzias, 1911. 213 p.
7 Tallavignes d'Angles, G. La responsabilite dans les connaissements frangais. Paris, 1908. 272 p.
78 Gautier, A. Des clauses d'irresponsabilite en matiere de transport maritime. Paris, Iichon et Durand-Auzias, 1910. 329 p.
78a Armand, M. Le probleme des clauses de nonresponsabilite. Paris,
Sirey, 1929. 250 p.




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Insurance and average are often treated in the same works. ISUrance.
Average
Unfortunately    the  outstanding  French    treatises dealing
with marine insurance are now too old to be of great practical value. The list of important works includes those by
Lemonnier,79 Emile Cauvet,80 Weil,81 and Droz,82 all of
which were published prior to the end of the last century.
An important later Italian work, Vivante's83 treatise on
insurance, was translated into French and is sometimes consulted. In addition, the treatises on maritime law cover
maritime insurance. A recent thesis, Bourbonnaud's Les
courtierss4 dealing with insurance agents, is well worth
consulting.
General average has been the subject matter of a number
of very good theses. Mention should be made of an important comparative study of the distinctive characteristics of
contribution, published by Haralambidis in 1920 under the
title Des caracteres distinctifs des avaries commnunes.85 This
important thesis was published in a second edition in 1924.
Two other valuable theses on general average and contribution were published by Procos and Llinas under the
titles Les caaries et leur reglement dans les tramsports maritimes s6 and Essai sur le fondement juiridique de la contri79Lemmonier, C. Commentaire sur les principales polices d'assurances maritimes usit6es en France. Paris, Videcoq, 1843. 2 v.
"Cauvet, E. Traite des assurances maritimes. Paris, Larose,
1879-81. 2 v.
S Weil, G. Des assurances maritimes et des avaries. Paris,
Marchal et Billard, 1879. ix, 539 p.
S2 Droz, A. Traits des assurances maritimes, du delaissement et des
avaries. Paris, Thorin, 1881. 2 v.
"3Vivante, C. Traite th~orique et pratique des assurances maritimes. Tr. par V. Yseus. Paris, Pedone, 1898. 564 p.
4 Bourbonnaud, J. Les courtiers d'assurances maritimes. Paris,
Rousseau, 1927. 127 p.
S5 Haralambidis, T. Des caracteres distinctifs des avaries communes et du fondement de la contribution a ces avaries en droit
frangais et compare. Paris, Librairie g6nerale de droit et de jurisprudence, 1924. xiv, 686 p., 1 1.
' Procos, J. S. Les avaries et leur reglement dans les transports
maritimes (essai de r6formes). Paris, F. Pichon et Durant-Auzias,
1921. 149 p.




128


GUIDE TO THE LAW OF FRANCE


bution pour avaries conmrunes.87      In addition, reference
should be made to an important commentary, in the form
of a thesis, on the old York-Antwerp and Antwerp rules,
published in 1908 by Bousquet under the title Coommentaire pratique des regles dYork et d'Anvers et de la regle
dcAnvers, 1903.88  A very good thesis dealing with average
and maritime insurance from the point of view of conflict
of laws was published by Darmon in 1908 under the title
Des confiits des lois en mati-re Pavaries et assurances maritimes.89
Law of the  In this comlection reference should be made to an imFlag
portant work on the law     of the flag as the criterion for
regulation of maritime conflict of laws problems, recently
published by Dr. Jacques Eynard under the title La loi daht
pavillon.90
Land Insur- While maritime insurance is dealt with specifically in
ance
the Commercial code, land insurance is not touched upon
in either the Commercial or Civil codes. As a result the
general provisions of the Civil code relative to contracts
in general, are controlling.
The best general work on the subject is that of Professor Hemard, of Paris, Theoaie et pratique des assurrances
terrestres.91  A  very good shorter work was published in
a  second  edition  in  1927 by    Sumien   under the title
Traite thearqigc et pratique des assurances.2     Life insurance was dealt with in an important one-volume work by
87 linas, A. Essai sur le fondement juridique de la contribution
pour avaries communes. Etude historique et critique. Montpellier,
1922. 227 p.
88 Bousquet, A. Commentaire pratique des regles d'York et d'Anvers
et de la regle d'Anvers, 1903. Paris, Larose et Tenin, 1908. 497 p.
89 Darmon, R. Des conflits des lois en matiere d'avaries et d'assurances maritimes. Paris, 1908. 126 p.
' Eynard, J. La loi du pavilion. Recherche d'une regle generale
de solution des conflits de lois en droit maritime international.
Paris, Recueil Sirey, 1926. 269 p.
91 1Hemard, J. Theorie et pratique des assurances terrestres. Paris,
Recueil Sirey, 1924-25. 2 v.
92 Sumien, P. Traite theorique et pratique des assurances terrestres et de la reassurance. 2. Cd. Paris, Dalloz, 1927. 363 p.




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129


Dupuich, Assurance-vie.    Tkhorie et pratique 93 and in two
larger but, perhaps, less valuable works by Lefort, TraitW
theoriqe et pratique du contrat d'assrance sur la vie 94 and
Nouveau traite de l'assurance sgr la vie.95    The latest important work devoted exclusively to fire insurance is that of
Droz.06
Reference is also sometimes made to a number of older
works, which, while at one time valuable, have been replaced
by those just mentioned, particularly by that of Professor
Hemard.    The Traite general des assurances97 published
by Alauzet in 1844 should be numbered among the more
important. Another important earlier text, Manuel general
des assurances,98 by Agnel and de Corny was published in
a sixth edition in 1923. An extensive bibliography appears
in Professor Hemard's treatise (v. 1, p. 641).
As already stated, one of the principal causes for the Bankrpter
adoption of the Commercial code was the large number of
scandalous failures which immediately brought to the fore
the necessity for revision of the then existing commercial
laws. The third book of the Code was devoted in its entirety to insolvency and bankruptcy and through reaction
against the leniency of the earlier laws went to an opposite
extreme in laying down rules which were marked by an
excessive severity. As early as 1827 steps were taken for
the revision of the third book and in 1838 the existing
legislation was completely revised. The new act was incorporated into the Code and. as modified in part, constitutes the present legislation.
3 Dupuich, P. Assurance-vie. Theorie et pratique. Jurisprudence. 2. ed. Paris, Dalloz, 1922. liii p., 1 1., 801 [2] p.
4Lefort, J. TraitC theorique et pratique du contrat d'assurance
sur la vie. Paris, Thorin & fils, 1894-1900. 4 v.
9 Lefort, J. Nouveau traits de l'assurance sur la vie; doctrine,
jurisprudence, droit compare. Paris, Riviere, 1920. 2 v.
9Droz, A. Commentaire des polices d'assurance contre le risque
d'incendie. Paris, Larose et Tenin, 1913. 197 p.
9 Alauzet, Fr. Trait6 general des assurances. Paris, Cosse eti
Marchal, 1843. 2 v.
98Agnel, E. Manuel general des assurances, ou Guide pratique des
assureurs et assures. 6. ed. refondue par C. de Corny et G. Dujon.
Paris, Marchal et Godde, 1923. 854 p.




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GUIDE TO THE LAW OF FRANCE


In present French legal language there are three distinct
terms which are applicable to the situation of debtors
within the purview of the Code as modified by subsequent
legislation. The term   "faillite " (insolvency) is applied
generally to traders who have failed to meet their engagements. The term " banqueroute     (bankruptcy) is reserved
for traders who have been guilty of some act constituting a
serious misdemeanor or felony. The expression " liquidation
juiciaire " (judicial liquidation) was introduced into French
law as the result of an act of March 4, 1889, and designates
the position of a debtor who, although having failed to
meet his engagements, is worthy of special consideration
because of steps taken to reveal his insolvency. It should be
remarked that the latter legislation was not incorporated
into the Commercial code and only modifies directly several articles of the Code (arts. 438, 549, 586). Under the
legislation of 1889 the debtor who has taken the proper
steps for a declaration of his embarrassed state is permitted
to remain in possession of his property with the assistance
of a liquidator, instead of being completely dispossessed by
a trustee or receiver.
It should be remarked that the provisions of the Commercial code and the legislation of 1889 apply only to traders.
The term " deconfiture " is applied to the situation of nontraders who are insolvent and unable to meet their obligations.
The outstanding treatise on insolvency, bankruptcy, and
judicial liquidation is that of Professor Percerou,99 of the
Paris Faculty. It forms a part of the Collection Thaller. In
addition, the general subject is dealt with by Professors
Lyon-Caen and Renault in both their treatise and manual,
as well as in other works on commercial law. Reference is
also often made to a much earlier work by Renouard, Traite
des faillites et banqueroutes, the chief value of which to-day
99 Percerou, P. Des faillites, banqueroutes et liquidations judiciaires.
Paris, Rousseau, 1907-14. 2 v.
1Renouard, A. Trait6 des faillites et banqueroutes. 3. ed. Paris,
Guillaumin, 1857. 2 v.




LITERARY AND INDUSTRIAL PROPERTY


131


lies in the fact that the distinguished author took a prominent part in the earlier revision of the third book of the
Code.
Reference should also be made to two comparatively early
works on judicial liquidation. The act of 1889 was the
subject of an important commentary by Lecomte published
under the title Traite theorique et pratique de la, liquidation
judiciaire,2 and a somewhat less valuable study by Malapert,
Du regime de la liquidation judiciaire,3 consisting of an examination of the advantages and disadvantages of the
regime introduced by the act of 1889.
A good summary (in English) of French bankruptcy
laws 4 was published by Pierre Pellerin in 1907.
Commercial courts will be dealt with in the chapter on
procedure.
LITERARY AND INDUSTRIAL PROPERTY
The rules of law designed to protect creations of the
human mind, which are often designated under the general title industrial and literary property, are dealt with
rather summarily in some of the works on civil law. They
sometimes receive treatment in works on commercial law.
But the best treatment is to be found in specialized works
dealing with such particular topics as copyright, patents,
and trade-marks.
A list of French legislative enactments with respect to
unfair competition, trade-marks, copyright, patents and
models, and designs, with a short bibliography through
1927, may be found in the fifth volume of the Bulletin de
la Socite' italienne pour les etudes de droit industriel, pub2 Lecomte, M. Traite th6orique et pratique de la liquidation judiciaire. Commentaire des lois du 4 mars 1889 et du 4 avril 1890.
Paris, Chevalier-Marescq, 1890. 2 p. 1., iii, 865 p., 1 1.
3 Malapert, E. Du regime de la liquidation judiciaire, de ses inconv6nients et de ses avantages. Paris, Larose & Forcel, 1892. 486 p.
4Pellerin, P. The French law of bankruptcy and winding up of
limited companies. The conflict of laws arising therefrom. London,
Stevens & sons, 1907. 117 p.




132


GUIDE TO THE LAW OF FRANCE


lished at Rome. It should be remarked that this useful
bulletin also contains a synopsis of the enactments, with
bibliographies, of the principal commercial nations.
General Lit- The leading French periodical devoted to literary and
erature
industrial property is the Annales de la propriete industrielle, artistique et litteraire, founded in 1855. It has included in its list of directors the names of Pouillet and Claro,
and is now under the direction of Maillard and Taillefer,
both specialists in the field of patent and copyright law.
The entire field of industrial, literary, and artistic property
is dealt with in the third edition of Professor Bry's Cours
elemnentaire,5 published in 1914. It should be recalled that
Professor Roubier, of Lyons, is said to be preparing a
treatise on industrial and literary property for the Collection Thaller (see Commercial law, supra).
Copyright  The legislation protecting the rights of authors of literary
and artistic works has gone through a complicated history
of successive enactments, with the result that there is at
present no single law governing the matter. The laws now
in force had their origin in certain decrees and legislative
acts of 1791 and 1793 dealing with presentations of dramatic
and musical productions and reproductions of literary and
artistic works. Subsequent laws such as those enacted in
1844, 1845, and 1866 had as their object the prolongation of
the duration of the monopoly of reproduction accorded
authors in earlier legislation. In addition, an act of March
11, 1902, extended the privileges provided under the act of
1793 to architects and sculptors. Recent legislation (act of
May 19, 1925) made provision for special new rules with
respect to the deposit with proper government depositories
of copies of various types of artistic and literary productions.
Attention should also be called here to important legislation
enacted in 1920 establishing in favor of their authors a tax
on public sales of artistic works.
French copyright law is briefly analyzed in Copinger's
Law of copJyrigdt,' a sixth edition of which was published in
Bry, G. Cours 6lementaire de legislation industrielle. II: La
proprite6 industrielle litt6raire et artistique. 3. e(d. Paris, Larose
et Tenin, 1914. 822 p.
6Copinger, W. A. Law of copyright. 6th ed. London, Sweet &
Maxwell, 1927. 607 p.




LITERARY AND INDUSTRIAL PROPERTY


133


1927. The earlier editions, however, devote more space to
the laws of countries other than England, and a more extensive discussion of the French legislation in existence in 1915
may be found in the fifth edition (pp. 352-368). A summary of French legislation and a bibliography may also be
found in Singer's Copyright laws of the world,7 published
in 1909 (p. 42).
There is no outstanding recent French work dealing with
the rights of authors. The best general treatise is that of
Pouillet, a specialist in the entire field of literary and industrial property. It was revised and published in a third
edition in 1908 under the title Traite theorique et pratique.8
Another good but older work is that of Huard, Traite de la
propriete intellectuelle,9 the first volume of which is devoted to literary and artistic productions. There is also a
recent theoretical work on the rights of authors by ReneePierre Lepaulle'1 and another by Marcel Plaisant 1 on
artistic and literary creations. In addition, the protection
of dramatic works was dealt with by Grente 12 in 1925.
The act of 1925 concerning deposits was commented on by
I/forel 13 in 1926.
Reference is sometimes made to a much older work,
Renouard's Traite des droits d'auteursl4 the chief value of
which is, at present, historical. Bibliographic notes (cf.
Aubry and Rau, v. 2, p. 259) frequently list a number of
7 Singer, B. Copyright laws of the world. Chicago, B. Singer, 1909.
196 p.
8Pouillet, E. Trait6 theorique et pratique de la propriet6 litteraire et artistique et du droit de representation. 3. 6d. refondue
par G. Maillard et C. Claro. Paris, Marchal et Billard, 1908.
1,000 p.
Huard, G. Trait6 de la propriete intellectuelle. Paris, Marchal
et Billard, 1903-06. 2 v.
"Lepaulle, R. Les droits de l'auteur sur son oeuvre. Paris,
Dalloz, 1927. 430 p.
1Plaisant, M. La creation artistique et littdraire et le droit.
Paris, Rousseau, 1920. 135 p.
12Grente, M. La protection lgale des oeuvres dramatiques. Paris,
Dalloz, 1925. 119 p.
13Morel, E. La loi sur le depot legal (19 mai 1925). Paris, Champion, 1925. 32 p.
14 Renouard, A. Traite des droits d'auteurs dans la litterature, les
sciences et les beaux arts. Paris, J. Renouard et cIe, 1838-39. 2 v.




134


GUIDE TO THE LAW OF FRANCE


other older works, none of which, however, are of practical
value to-day.
Patents   The legal protection of inventions through patents (brevets d'invention) had its origin in two laws enacted by the
Constituent Assembly in 1791. The law now in force is
that of July 5, 1844, as amended by subsequent legislation,
particularly by an act of April 7? 1902. Articles 3 and 4
of an act of June 26, 1920, establish a special tax on requests for patents.
In addition to the French texts, there are a number of
available sources of French patent laws.     They are systematically presented in the important series edited by
Professor Kohler and Maximilian Mintz, The patent lawns
of all nations 1 (v. 2, pp. 467-494). A    useful summary
is contained in a recent work by Singer, Patent lauws of the
wtorld 16 (pp. 103-116). Wallace Fairweather gives in concise form a summary of French law      (pp. 165-178) in his
comparatively recent work on Foreign and colonial paten/
laws.17 In addition, a very short summary is contained in
Wallace White's Patents throughout t/he world s (pp.
45-47).
The best French work dealing with patent law       is that
of Pouillet, whose work on the law of copyright has already
been referred to. The text was revised in 1915 by Taillefer
and republished in a sixth edition under the title, 7Trait'
des brevets d'invention et secdets de fabrique.19 Another
valuable work is that of Allart, Traite the'orique et pi-atique,20 which was published in a third edition in 1911. In
addition, attention should again be called to Huard's trea5 Kohler u. Mlintz. Die patentgezetze aller vBolker (The pate;t:
laws of all nations). Berlin, Decker, 1907-12. 2 v.
18 Singer, B. Patent laws of the world. 4th ed. Hammond, Ind.,
W. B. Conkey & co., 1924. 303 p.
1 Fairweather. Foreign and colonial patent laws. London, Constable & company, 1910. 279 p.
18 White, W. W. Patents throughout the world. New York, Trade
mark law publishing co., 1923. 244 p.
19Pouillet, E. Traite theorique et pratique des brevets d'invention
et de secrets de fabrique. 6. ed. refondue par A. Taillefer. Paris,
Marchal et Godde, 1915. 328 p.
20Allart, H. Trait6 th6orique et pra'tique des brevets d'inventons.
3. Pd. Paris, Rousseau, 1911. 694 p.




I.TERARY AND INDUSTRIAL PROPERTY


135


tise on intellectual property, the second volume of which is
devoted to patent law. A very good short practical guide,
dealing in particular with the procedure to be followed in
procuring a patent, was published in 1926 by Moreaux and
Weismann.21 A practical manual was also published by
Fernand-Jacq, a specialist, in 1914.22    Mention should be
made of two works on scientific discoveries, one by Suzanne
Munier 23 and the other a thesis by Vigneron,24 both published in 1925.
Trade-marks (marques de fabmgque et de covnmerce) areTraderegulated by an act of June 23, 1857, as amended in 1873,marks
1890, and 1920. The best work on the subject is that of
Pouillet, Traite des marques de fabriqute et de la concurrenee deloyale.25 Another important treatise, Traite theorique et pratique 26 was published by Allart in 1914.
Until comparatively recently, the law protecting designs Designs and
and models was in a rudimentary state due to the insufficiency of earlier legislation. The entire matter is now
regulated by an act of 1909. This act was dealt with in an
able thesis by Marquis, La legislation protectrice des dessins
et modeles.27  Another valuable work is that of Pouillet,
which was revised in 1911 under the direction of Taillefer
and Claro and published under the title Traite des dessim
et modules.28
21 Moreaux, R., et Weismann, C. Les brevets d'invention. Paris,
Dalloz, 1926. 532 p.
Jacq, F. Manuel pratique de la propriet6 industrielle et com —
merciale. Paris, Roger, 1914. 340 p.
3 Munier, S. Les droits des auteurs de d6couvertes ou d'inventions
scientifiques. Essai de philosophic et de technique juridique, suivi
d'une proposition de loi. Paris, Dalloz, 1925. 289 p.
24 Vigneron, M. Essai sur la protection de la propriet6 scientifique.
Paris, Recueil Sirey, 1925. 90 p.
25 Pouillet, E. Traite des marques de fabrique et de la concurrence deloyale en tous genres. 6. 6d. rev. par Taillefer et Claro.
Paris, Marchal et Godde, 1912. 1,358 p.
26Allart, H. Trait6 th6orique et pratique des marques de fabrique
et de commerce. Paris, Rousseau, 1914. 613 p.
"'Marquis, M. La legislation protectrice des dessins et modules.
(Loi du 14 Juillet 1909.) Paris, 1909. 196 p.
28Pouillet, E. Trait6 th6orique et pratique des dessins et modules.
5. {d. refondue par A. Taillefer et C. Claro. Paris, Marchal et
Godde, 1911. 875 p.




136


GUIDE TO THE LAW OF FRANCE


UnfairCom-  In addition to the special statutory regulations protecting
petition
certain categories of industrial and literary property,
French law has made provision for the protection of traders
through judicial development of the doctrine of unfair competition (concurrence deloyale). Starting with the general
provision of article 1382 of the Civil code, providing for
compensation for a wrong done, French courts have developed a theory of delictual responsibility, which in the
main resembles that developed in the United States within
the past few years. Instead of enumerating the acts constituting unfair competition in special legislation, French
law has, through the statement of a broad principle, left
the determination of the acts which give rise to a cause of
action to the discretion of the courts. There is much to be
said in favor of both systems. Enumeration makes for certainty. On the other hand, there is a possibility of courts
holding that acts not included within the listed categories
are impliedly privileged with the result that by hewing close
to the line, business rivalry may lead to tactics which, while
not reprehensible in the eyes of the law, go beyond the pale
of fair dealing. The French system has the disadvantage
of leaving the determination of unlawful acts to the arbitrary finding of the judge. At the same time the danger is
not as great as it might seem, since judicial decisions, while
not necessarily binding precedents, have weight and tend
to give rise to a principle or doctrine for the guidance of
courts, thus taking the matter out of the arbitrary discretion
of a single tribunal.
The latest work on the subject is Pichot's De la concurrence dcloyale et de la contrefa~on,29 which first appeared as
a thesis in 1923 and was republished in 1924. It is also dealt
with in Pouillet's Traite des marques de fabriques et de la
concurrence deloyale, already referred to in connection with
trade-marks. Discussions may be found in treatises on civil
law.
Foreign dThe various enactments dealing with industrial, literary,
Patents and
copyright and artistic property make provision for the protection of
foreigners who have taken out patents and copyrights in
29Pichot, 0. De la concurrence d6loyale et de la contrefacon en
matiere commerciale et industrielle. Paris, Rousseau, 1924. 568 p.




CIVIL PROCEDURE


137


France. Article 27 of the act of 1844 provides for the protection of patents obtained by foreigners in France, foreigners being permitted also (art. 29) to patent inventions already patented in other countries. A decree of March 28-31,
1852, expressly extends the benefits of copyright laws to
foreigners. Foreign authors of designs and models seenm
only to be protected under the provisions of the act of 1909
(art. 13) if they have a domicile or industrial or commercial establishment in France. The act of 1857 protects only
the trade-marks of individuals having an industrial or commercial establishment in France. France is also a party to
a number of treaties and conventions concerning the protection of industrial and literary property, including the Copyright Union.
A good discussion of international protection of copyright, patents, and trade-marks may be found in Professor
Pillet's treatise on private international law.30  Professor
Pillet is also the joint author of an earlier text on the international protection of industrial property, Regime international de la propriete industrielle,83 published in 1911. The
new international regime with respect to industrial property
(Hague conference of 1925) was recently dealt with by
Marcel Plaisant and Fernand-Jacq in their Le nourveau
regime international.32
CIVIL PROCEDURE
Strictly speaking, civil procedure includes only the formal
rules of law to be observed in proceedings before courts. In
this narrow sense it comprises pleading, production of proof,
pronouncement of judgment, and execution. In a wide sense
it is sometimes made to include the organization of courts.
30Pillet, A. Traite pratique de droit international priv6. Paris,
J. Allier, 1923-1924. 2 v.
a Pillet, A., et Chabaud, G. Le regime international de la proprint6 industrielle, droit frangais et conventions internationales.
Grenoble, Allier fr~res; Paris, Larose et Tenin, 1911. 511 p.
83Plaisant, M. et Jacq, F. Le nouveau regime international de la
propriete industrielle. (La Conference de La Haye, 1925.) Paris,
Recueil Sirey, 1927. 208 p.




138


GUIDE TO THE LAW OF FRANCE


The distinction is not without importance in French law
since judicial organization and procedure in a strict sense
are governed by separate laws.
Judicial  Judicial organization has received the attention of the
Organization   legislature in France at different periods with the result
that the present system is based on a succession of laws which
are too complicated to be discussed in detail in a work of
this kind. All that can be done is to point out some of the
more important enactments.
The reorganization of the judicial hierarchy occupied the
immediate attention of the revolutionary government. The
principal enactment is that of August 16-24, 1790, through
which the Constituent Assembly broke entirely with the past
by abolishing the existing courts and establishing a new
regime which forms the fundamental basis of that now in
existence. Under the convention the admirable organization of the Constituent Assembly was destroyed by the partial abolition of courts through the substitution of arbitration in a number of cases, but the directorate reestablished in
part the prior system with important modifications. It was
under the Consulate that the judicial organization of France,
which remained in effect until 1926, took place; since then
the important legislation includes an act of 1810, relating to
judicial organization and administration of justice, a law
of 1883, dealing with certain reforms, a law of April 28,
1919, and a decree of September 6, 1926. The act of 1919
had as its principal purpose a reduction in the number of
magistrates with a view to an increase in the remuneration
of those still forming a part of the general hierarchy. The
decree of September 6, 1926, carried into effect the financial
legislation of August 3 of the same year and in reducing materially the number of courts brought about the greatest
single change in general organization which has been made
since the first Empire.
The present hierarchy includes tribunals of the first instance (tribunaux de premiere instance), justices of the peace
(juges de paix), commercial courts (tribunaux de conmmerce), courts for the arbitration of labor disputes (Conseils
de prud'hommes), courts of appeal (cours d'cappet), and the
Court of Cassation (Cour de Cassation). In addition, there




CIVIL PROCEDURE


139


are special administrative courts which will be discussed
in the chapter on public law.
The "tribunal of the first instance" is the court havingInferior
general original civil jurisdiction. Justices of the peace o
were created by the revolutionary regime and now have
limited jurisdiction as fixed by law. Commercial courts are
the only tribunals existing at present which antedate the
revolutionary regime. Maintained by the law of August
24, 1790, and regulated by the Commercial code (art. 614
et seq.) and an act of 1883, they have jurisdiction of matters relating to transactions of merchants. They only sit
in such centers as are designated by the Council of state,
and, where there is no commercial court, commercial matters are heard by a tribunal of first instance. As brought
out by Paul Fuller, of the New York bar (12 Columbia
Law Review, 145), their retention had as its basis two
underlying principles: Merchants as specialists are best
fitted to judge their own affairs. The interests of business
require that commercial disputes be withdrawn from the
delays of ordinary litigation. A short but very good account of French commercial courts may be found in an
article by B. H. Conner, of the New York bar (17 Green
Bag 304.) A good discussion also appears in Goirand's
English treatise on French commercial law, already mentioned in the chapter on commercial law. They are also
dealt with in French works on commercial law as well as
in those devoted to procedure. Courts for the arbitration
of labor disputes (Consels de prul'hommes) have jurisdiction of difficulties between individual employers and workmen arising out of the contract of employment in the different branches of industry and commerce. The modern
institution dates from Napoleon's visit to Lyon in 1806.
Since then they have become general and at present are
governed by a law of March 27, 1907, as modified principally
by a law of July 3, 1919, and a law of March 30, 1920, now
incorporated in the labor and social code.
The Court of Cassation is the court of last resort, and to courtof
use a Gallicism, it has as its mission the supervision of the Cassation
exact interpretation of the law by other courts. Due to its
position as the highest court in the French judicial hierarchy
49926-31 ----10




140


GUIDE TO THE LAW OF FRANCE


it is sometimes referred to as the Supreme court. The court
is divided  into three chambers-Chamtbre       des requetes,
Chambre civile, and Chaimbre criminelle. The Chambre des
requetes examines all civil cases brought before the court
and determines whether they are based upon sufficient merit
to go before the Chambre civile. If it concludes that they are
not, the request for review is rejected. The outstanding
merit of the system is the lightening of the burdens of the
Chambre civile, which only examines such cases as are based
upon some meritorious claim. The       Chamrnre criminelle
passes on cases which are brought before it from the lower
courts under the provisions of the Code of criminal procedure (arts. 416 et seq.).
The organization and history of the Court of Cassation,
as well as the procedure in resorting to it, were dealt with
by Crepon 33 in a 3-volume work which was originally published as a part of the Repertoire du droit frangais. It was
separately published in 1892. Another important but
shorter work dealing with the powers and jurisdiction of the
court, as well as the procedure in civil matters, is Faye's
La Cour de Cassation.34  The special functions of the Chambre des requetes also received valuable separate treatment in
an interesting thesis, La Chambre des requetes de la Cour de
Cassation,35 which was published by Houyvet in 1906.
In addition, mention should be made of a very good thesis,
Morillot's La Cour de Cassation, Conseil superieur de la
magistrature,6 dealing   with the important disciplinary
jurisdiction over the general magistracy, conferred on the
Court of Cassation as the result of an act of 1881.
a Cr6pon, T.-Cour de Cassation. Origines, organisation, attributions. Du pourvoi en cassation en matiere civile. Paris, Larose et
Forcel, 1892. 3 v. (Extr. Repertoire g6enrale alphabetique du droit
francais.)
8 Faye, E. La Cour de Cassation; traite de ses attributions et de
sa competence et de la procedure observ6e en matiere civile. Paris,
Chevalier-Marescq, 1903. 728 p.
5Houyvet, H. La Chambre des requ6tes de la Cour de Cassation.
Paris, 1906. 187 p.
" Morillot, A. La Cour de Cassation, conseil superieur de la magistrature. Paris, 1910. 152 p.




CIVIL PROCEDURE


141


Unfortunately there is no good special modern French Literature
on Judicial
work dealing with judicial organization in general, but most Organizaof the treatises devoted to procedure, which will be referred tion
to presently, discuss the subject in detail. It might be advisable, however, to mention at this point a number of
works dealing with reform of the French judicial organization. The changes made under the Constituent Assembly
received excellent treatment in a thesis by Giraud which
was published in 1921 under the title L'Oeuvre d'organisation judiciaire de l'Assemblee nationale constituante.37 Judicial reform, particularly with reference to the question Reform
of the establishment of a single judge, instead of the present
system of several judges sitting together, was dealt with by
Leroy in a thesis, Le juge unique.38   Dr. Leroy's thesis
deals not only with the system in vogue since the Revolution but also with the historical and comparative phases
of the much mooted question of the advisability of adopting
the Anglo-American system    of a single judge. Another
outstanding and more recent thesis dealing with the same
question is Pige's Le juge unique et le statut de la magistrature en France.3   Dr. Pige's thesis also gives some idea
of the present system of recruiting judges who, in France,
are members of a special profession and are not recruited
from the bar after long practice as is the case in England
and the United States. In connection with reform of the
magistracy, reference should also be made to a short work
by Malepeyre, La magistrature en France et projet de
reforme,4 which though published in 1899 may still be read
with interest.
There are a number of English sources dealing with
French judicial organization. A good summary was published by Henri Goirand in 1919 under the title The French
37Giraud, E. L'oeuvre d'organisation judiciaire de l'Assemblee
nationale constituante. Les juges. Paris, 1921. 116 p.
38Leroy, G. Le juge unique et la reforme de notre organisation
judiciaire. Paris, 1907. 230 p.
Pig6, B. Le juge unique et le statut de la magistrature en
France. Paris, Sagot, 1925. 308 p.
40Malepeyre, F. La magistrature en France et projet de reforme.
Paris, Fasquelle, 1900. 276 p.




142


GUIDE 'TO0 THE LAW OF FRANCE


judicial system.4' A reprint of a paper on the French judiciary and bar, read in Inner Temple Hall in 1911 by Emanuel Underdown, is also worth consulting.42 An informative article by Charles Gans appeared in the Juridical Review for 1903 (v. 15, p. 362). Another valuable discussion, by Professor Walton, of Magill University, was published in the Law Quarterly Review for 1903 (v. 19, pp.
263 and 402). The second part deals with the relation of
the Ministry of Justice to the administration of civil and
criminal justice as well as with the French bar. Professor
Garner, of the University of Illinois, is the author of an
article in the Yale Law Journal (v. 26, p. 347, 1917) dealing with such subjects as plurality of judges, the excessive
number of judges in France, their appointment and promotion.
Procedure  Rules of procedure are largely contained in the Code of
civil procedure (Code de procedure civile).
History   While the evolution of the present court system in France
began with the legislation of the revolutionary regime, civil
procedure has a much older history. The immediate source
of the rules contained in the present Code was in large part
the legislation of 1667, already mentioned in the chapter on
legal history, but, as brought out in the historical introduction of the recent treatise on civil procedure by Professors
Glasson and Tissier (infra), the ultimate sources are the procedural rules of the canon and feudal courts of the Middle
Ages, which in turn are of Roman and Frankish origin.
Adoption of Professors Glasson and Tissier also give some account of
the Code of the adoption of the Code. The procedure followed was much
cedure  the same as that in adopting the Civil code. The commission charged with its preparation consisted of five members
all of whom were closely connected with the courts or
practice. Treilhard was a former lawyer and president of
the Paris Court of Appeals. Pigeau, also a practicing
lawyer, wrote extensively on procedure, and, it is interesting
41 Goirand, H. The French judicial system and procedure in French
courts. London, Stevens and sons, 1919. 51 p.
2 Underdown, E. M. The French judiciary and bar. [London]
Printed by order of the masters of the bench of the honorable
Society of the Inner Temple, 1911. 39 p.




CIVIL PROCEDURE


143


to note, later became professor of procedure at the Paris
faculty. Sequier was a former magistrate, Berthereau president of the Seine tribunal, and Try a lawyer. After its
preparation the project of the commission was discussed by
the Council of State and then placed before the tribunat
and Legislative Assembly. Although definitely voted in
1806, the Code did not become effective until January 1,
1807. Since its adoption it has undergone surprisingly few
changes.
The Code itself consists of two parts. Part 1 is entitled
Procedure devant les tribunaux, and is divided into five
books comprising 811 articles.     The different books are
entitled, De la justice de paix, Des tribunaux inferieurs, Des
tribunaux d'appel, Des voies extraordinaires pour attaquer
les jugements, De lexzecution des jugemnents. The second
part, comprising articles 812 to 1042, is entitled Procedures
diverses. It is divided into three books and the subject
matter dealt with includes ex parte proceedings, opening of
successions, and arbitration.
Of the different annotated editions of the Code, that pub- Annotated
lished by Dalloz,43 besides being an excellent piece of work,Edition
has the advantage of recent publication. Of the other two
important annotated codes, that of Tissier, Darras, and
Louiche-Desfontaines,44 which is published by the Recueil
Sirey, is usually considered to be better than that cited under
the name Sirey and 45 published by Mlarchal and Billard.
The best pocket edition is that published by Dalloz.46 That
published by Sirey and cited under the name Carpentier47
is also important.
43Dalloz. Nouveau Code de proc6dure civile annote et explique
d'apres la jurisprudence et la doctrine, par G. Griolet, C. Verg6
et St. de Lanzac de Laborie. Paris, Dalloz, 1910-22. 4 v.
iTissier, A., Darras, A., et Louiche-Desfontaines. Code de procedure civile annote. Paris, Recueil Sirey, 1901-04. 2 v. Supplements. 1908. 396 p.
45 Sirey, J. Les codes annotes de Sirey. Code de procedure civile.
4. ed. Paris, Marchal et Billard, 1905-06. 2 v.
4"Dalloz. Code de procedure civile. Paris, Dalloz, 1928. 523 p.
7 Carpentier, A. Code de procedure civile. Paris, Recueil Sirey.
1926. 673 p.




144


GUIDE TO THE LAW OF FRANCE


General   During the now more than a century since its adoption
Literature the Code of civil procedure has been the subject matter
of an extensive literature which is too vast in proportion
to its importance to receive detailed discussion. There are,
however, a number of works which, though largely replaced
by those of more recent date, deserve to be mentioned.
Professor Pigeau, who, as has already been stated, was one
of the members of the preparatory commission, wrote extensively on procedure both before and after the adoption
of the code. His works, such as the Commentaire sur le
Code de procedure civile,48 and La procedwre civile des tribunaux de Franee49 are still of value, not only for historical
purposes but also as sources of interpretation. The Cousr
de procedure ciile 50 of Rauter, though published in 1834,
long enjoyed a reputation comparable with that of Aubry
and Rau in civil law. Rodiere, an extensive writer on procedural matters, left a very good work in his Lois de la
competence et de la proceduire en nmutiere civile.51 Reference is also sometimes made to Elements d'organisation judiciaire, de procedure civile et de droit penacil2 by Ortolan and
Bonnier, which, though now of little practical importance,
was very well done. In connection with the older works
mention should also be made of an early critical philosophical study by Bordeaux which was published in 1857 under
the title Philosophie de la procedure civile.53  Other works
to which reference is sometimes made, but which are no
longer of practical value, include the commentaries and
48 Pigeau. Commentaire sur le Code de procedure civile, revu par
Poncelet et Lucas-Championniere. Paris, 1827. 2 v.
49Pigeau. La procedure civile des tribunaux de France. 5. 6d. par
J. L. Crivelli. Paris, Roret, 1828. 2 v.
ORauter. Cours de procedure civile. Paris, Berger-Levrault, 1834.
465 p.
1 Rodiere, A. Exposition raisonnee des lois de la competence et de
la procedure en matiere civile. 2. ed. Toulouse, Delboy, 1855-57.
3 v.
52 Ortolan, E., et Bonnier. El6ments d'organisation judiciaire, de
procedure civile et de droit penal. Paris, Plon, 1858. 3 v.
3 Bordeaux, R. Philosophic de la procedure civile. Paris, Durand,
1857. 615 p.




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145


treatises of Thomines-Desmazures,54 Berriat Saint-Prix,55
Carre and Chauveau,56 and Boncenne.57
Turning now to modern texts we find a somewhat more
limited field to   choose from. The     Traite theorique et
pratique 68 by Professors Glasson and Tissier, when completed, will probably be the best general work. At present
three volumes have appeared. The publication of the third
and fourth having been interrupted by the unfortunate
death of Professor Tissier, their preparation was continued by Professor Morel, of the Paris faculty, whose
reputation in procedural matters is the equal of that of his
predecessors, Glasson and Tissier, who were long identified
with the teaching of procedure in France. Professor Glasson was responsible for the revision of Professor Boitard's
Legons de procedure civile,69 which were originally published by de Linage and later continued by Professor Colmet-Daage. The popularity of this latter work is attested
by the fact that it was published in a fifteenth edition in
1890. Professor Tissier revised a 2-volume Precis theorique
et pratique de procedure ciile 60 originally written by Professors Glasson and Colmet-Daage. This latter work was
in turn a revision of the earlier lessons by Boitard and was
published in a second edition in 1908. The treatise now
n Thomines-Desmazures. Commentaire sur le Code de procedure
civile. Paris, 1832. 2 v.
55Berriat Saint-Prix, J. Cours de procedure civile. 7. ed. Paris,
Plon; Chevalier-Marescq, 1858. 2 v.
6 Carre et Chauveau. Lois de la procedure civile et commerciale.
5. ed. Paris, Marchal et Billard, 1880-1886. 11 v. in 13 including a
Supplement by G. Dutruc.
5 Boncenne, P. Introduction A l'.tude de la procedure civile. 2. ed.
Paris, Cosse et Marchal, 1859. 635 p. Boncenne et Bourbeau.
Th6orie de la procedure civile. 2. ed. Bruxelles, Bruylant, 1838-63.
7 v.
58 Glasson, E., Tissier, A., et Morel, R. Trait6 theorique et pratique
d'organisation judiciaire, de competence et de procedure civile. 3. 6d.
Paris, Recueil Sirey, 1925-29. 4 v. 3 v. published.
S Boitard, J. Lecons de procedure civile, pub. par G. de Linage,
continaies par G. Colmet-Daage. 15. ed. refondue par E. Glasson.
Paris, Pichon, 1890. 2 v.
6 Glasson, E., et Colmet-Daage, P. Precis th6orique et pratique de
procedure civile. 2. ed., rev. par A. Tissier. Paris, Pichon et
Durand-Auzias, 1908. 2 v.
*:;..



146


GUIDE TO THE LAW OF FRANCE


being published, while having a close connection with the
earlier treatises, is a complete revision and will include organization of courts, jurisdiction, and procedure properly
speaking.
Another almost as important and somewhat larger treatise is that of Professors Garsonnet, at one time dean of the
Paris Law School, and Cezar-Bru, of the University of Aix,
Traite thoorique et pratique de procedure civile.61  A third
edition, which consists of nine volumes, was published between 1912 and 1925. At present it is the only completed
extensive modern work of outstanding value.
The best short work on procedure is probably the Pr cis'
de procedure civile62 by Professors Garsonnet and CezarBru. A very good short elementary text designed primarily
for the use of students is Professor Cuche's Precis de procedure civile et commnerciale.63   Another, more scholarly,
one-volume treatise was published by Professor Japiot, of the
Caen faculty, in 1916 under the title Trait e etl  entaire de
procedwue civile et conmmerciale.4   This latter treatise, now
in a second edition, is a continuation of an earlier important
work on judicial organization, jurisdiction, and procedure
which was published in a third edition by Professors Bonfils and Beauchet in 1901.
Form       In connection with the texts on procedure some mention
should be made of the more important form books. Of
these probably the best is that cited under the name Raviart.
Formiulaire de procedure genevrae,65 published in 1926. Another important work of the same type is that of Chauveau
61Garsonnet, E., et Cezar-Bru, C. Trait6 theorique et pratique de
procedure civile et commerciale. 3. ed. Paris, Recueil Sirey, 1912 -1925. 9 v.
2 Garsonnet, E., et C6zar-Bru, C. Precis de procedure civile. 9. 6d.
Paris, Recueil Sirey, 1923. 803 p.
3 Cuche, P. Precis de procedure civile et commerciale. Paris,
Dalloz, 1925. (Petits precis Dalloz. See Legal education. Page 31,
note 57.
64Japiot, R. Traite elementaire de procedure civile et commerciale.
2. ed. Paris, Rousseau, 1928. 742 p.
65Raviart, E., Raviart, O. et Raviart, J. Traite-formulaire de proc6dure gen6rale, civile, commerciale, criminelle et administrative.
Paris, Juris-classeurs, 1926. 2 v.




CIVIL PROCEDURE


147


and Glandaz, Formnuaire general et complet.66   Both works
give the forms applicable for commercial and administrative procedure as well as for civil procedure.
Reference should also be made to an important encyclo- Encylopedias
pedia or dictionary of procedure, Dictionnaire theorique et
pratique 67 which though published by Rousseau and Laisney
in 1886-96 is still considered an important practical work.
There is no special periodical devoted to procedural matters. Interesting articles touching upon procedure and judicial organization appear from time to time in the important
periodicals devoted primarily to civil law. Mention might
be made in this connection of a special collection reporting court decisions and legislation concerning procedural
matters, published before the war under the title Recueil
perodique de legislation et de jurisprudence en matiere de
procedure. Its publication began in 1880, and it appeared
monthly.
Jurisdictional questions, which are often among the most Juidiksubtle and difficult of application, are dealt with in the different treatises and manuals on procedure which have just
been mentioned. In addition, a number of particular problems have received treatment in several important theses
which are well worth mentioning.
In France, as in other countries, the jurisdiction of a
particular court may depend on jurisdiction of the parties
or of the subject matter of the cause of action. In civil actions the underlying theory of personal jurisdiction is contained in the maxim Actor sequitur forum rei. In principle
the competent court is that of the domicil of the defendant.
There are, however, a number of exceptions. The principal
positive source of the underlying principle and its exceptions
are the provisions to be found in article 59 of the Code of
procedure. In commercial matters the plaintiff is allowed
greater latitude. He may sue the defendant at the domicil
Chauveau, A., et Glandaz, M. Formulaire gen6ral et complet de
procedure civile, commerciale et administrative, annote. 11. 6d.
Paris, Marchal et Billard, 1924. 2 v.
6TRousseau et Laisney. Dictionnaire th6orique et pratique de proe6dure civile, commerciale, criminelle et administrative. 2. Md. Paris,
Rousseau, 1880-96. 10 v.




148


GUIDE TO THE LAW OF FRANCE


of the latter, at the place where the promise was made and
goods delivered, or the place where payment is to take place.
The principal provision is 420 of the Code of procedure.
Waiver of  Jurisdiction of the subject matter is sometimes designated
Juisdic- in French legal works as jurisdiction ratione materia. The
distinction between jurisdiction ratione materiae and ratione
personae becomes of importance with respect to the question
of waiver.   In principle the latter may be waived while
material jurisdiction may not, the classical theory being that
the former jurisdiction is relative while the latter is absolute.
Waiver of jurisdiction received treatment in two important
theses-the first, in order of time, by Lebas, La prorogation
de juridiction en matiTre civile,6  which was published in
1904, and the second, by Delor, La prorogation conventionelle
de jwAidiction en matiere civile.6  Reference should also be
made to an important thesis, consisting of a critical study
of the classical distinction between absolute and relative jurisdiction, which was published in 1919 by Valin under the
title, Etude critique de la distinction de l'incompe'tence
absolue et de l'incompetence relative.70 Article 420 of the
Code of procedure, dealing with commercial jurisdiction,
was also the subject of a critical study by Bonnet in 1912 in
a thesis entitled, "Etude critique de P'artice 420 du Code de
proceduee civile.7
Actions by  Before passing on to proof, attention should be called to
and against
Foreigners the important provision of article 14 of the Civil code dealing with actions brought by French citizens against foreigners. Suits by and against foreigners will be discussed
in the chapter on private international law (infra).
Evidence  The French lawyer is fortunate enough not to be troubled
by the intricate rules of evidence which form a part of the
legal system prevailing in common-law jurisdictions. While
8 Lebas, G. De la prorogation de juridiction en matiere civile.
Paris, Rousseau, 1904. 175 p.
69 Delor, L. La prorogation conventionelle de juridiction en matiere
civile. Paris, Pedone, 1911. 128 p.
7~Valin, J. Etude critique de la distinction de l'incomp6tence absolue et de l'incompetence relative en matiere civile. Dijon, 1919.
217 p.
"Bonnet, L. fitude critique de l'article 420 du Code de proc6dure
civile. Lyon, 1912. 155 p.




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149


proof in England and the United States is primarily oral, in
France in civil matters it is primarily documentary, oral
testimony being exceptional. As stated by Professor Capitant in his Introduction a l'etude du droit civil (p. 426) "it
is generally admitted that the prohibition of proof by witnesses is a fundamental rule of 'our procedure.' It is only
permitted in such cases as are provided for by positive law."
In the French legal system the general principles of proof,
or better, methods of proof, are a part of civil law, being regulated by the Civil code (art. 1315 et seq.) in connection
with the law of obligations. Procedural rules intervene
with respect to the administration of proof before courts of
justice (cf. Code of civ. proc., arts. 252-295, 407-414).
The general theory of proof was summarized by Professor
Capitant in his Introduction a l'Vtude du droit civil.72  In
addition, the subject is dealt with in various treatises on civil
law as well as, in part, in works on procedure. Though now
somewhat old, the leading individual work is that of Bonnier,
Traite theorique et pratique des preuves.73  Professor Mohamed Sadek-Fahmy, of Cairo, is the author of a valuable
comparative study of proof under the legal systems prevailing on the Continent, in England, and in the Orient
which gives some notion of the contrasts between the AngloAmerican and French theories. Professor Sadek-Fahmy's
work was published in 1923 in the form of a thesis under the
title Le fait pertinent et admissible dans ses rapports aveo
la theorie generate des preuves.74  Legal presumptions and
burden of proof received treatment in two theses-Theorie
generale des presomptions legales en droit prive,75 by Aron,
and Essai d'une theorie de la charge de la preuve,76 by
2 Capitant, H. Introduction a l'etude du droit civil. 4. 6d. Paris,
Pedone, 1922. 455 p.
7Bonnier, E. Trait6 theorique et pratique des preuves en droit
civil et en droit criminel. 5. ed. rev. par F. Larnaude. Paris, PlonNourrit, 1888. 707 p.
"4 Sadek-Fahmy, M. Le fait pertinent et admissible dans ses rapports avec la theorie generale des preuves comme e16ment probatoire
en droit civil compare. Paris, Dalloz, 1923. 363 p.
Aron, G. Theorie g~n6rale des presomptions 16gales en droit
prive. Paris, Pedone, 1895. 182 p.
7 Th6nevet, J. Essai d'une theorie de la charge de la preuve en
matiere civile et commerciale. Lyon, Legendre, 1921. 285 p.




150


GUIDE TO THE LAW OF FRANCE


Thevenet. An excellent discussion, in English, of the
French law of evidence was published by Oliver Bodington,77
of the Inner Temple, in 1904.
Attention should be called to the fact that the notary plays
an important part in connection with proof as he prepares
instruments under seal (actes authentiques) which are the
highest form of documentary proof. Notarial practice will
be referred to in connection with the discussion of the French
legal profession (infra).
Execution  Due to the fact that execution is not included in the
usual university course on procedure but forms a part of
a separate optional course, several students' manuals dealing with the subject have been published.        'While these
manuals make no pretense of being other than students'
works, they are valuable sources of information as to execution under French law. These texts, which are all of the
same type and approximately of the same value, include
Professor Cezar-Bru's Theorie et pratique des voies dcexecution,78 Professor Cuche's Precis des voiws d'execution,79
and Josserand's Precis des voies d'execution.8s   The last is
in substance a seventh edition of a similar work by Professor Garsonnet, the sixth edition of which was revised by
Professor Josserand and published under the title Traite
ee1mentaire des voies d'exdcution.81
Appellate  Before passing on to a discussion of the French bar it
Procedure
should be stated that actions and exceptions seem to have
received no important treatment other than that contained
in the general works on procedure.      The sa:me might be
said of appellate procedure.   The only work covering the
7 Bodington, O. An outline of the French law of evidence. London,
Stevens and sons, 1904. 199 p.
8 Cezar-Bru, C. Theorie et pratique des voies d'execution. 3. ed.
Paris, Rousseau, 1927. 515 p.
7 Cuche, P. Precis des voies d'execution. Paris, Dalloz, 1926.
Petit Precis Dalloz. See Legal education. Page 31, note 57.
80 Josserand, L. Precis elementaire des voies d'execution. Paris,
Recueil Sirey, 1925. Collection La Licence en droit. See Leg;al education. Page 31, note 58.
'1 Garsonnet, E. Traite elementaire des voies d'execution. 6. (d.
rev. par J. Josserand. Paris, Recueil Sirey, 1920. Collection La
Licence en droit. See Legal education. Page 31, note 58.




CIVIL PROCEDURE


151


latter is that by Crepon, Traite de l'appel en matiere civile,82
which, like his work on the Court of Cassation, was originally published in the Repertoire general du droit frangais.
Having been separately published in 1888, it is now somewhat superannuated.
American lawyers are, of course, familiar with the dis-LealProtinction between the English solicitor and barrister. A Avoue.
somewhat similar division exists in France, where the func- Aotare
tions of written pleading and argument are performed by
different individuals. The avoue, who is a ministerial officer and not a member of the bar, is, with certain exceptions,
alone authorized to prepare the pleadings (postulation).
The avocat makes the argument before the court (plaidoirie) and is also authorized to give legal advice to his client.
In addition, the notary who, like the avoue, is a public
officer, performs many of the functions of the American
lawyer and English solicitor. His primary duty is to prepare and preserve deeds (actes authentiques), of which he
is legal custodian. He is also employed for other purposes,
such as the drawing of wills in authentic form. Indeed, he
might be compared with the English family solicitor, as he
is consulted on a number of private matters such as marriages, sales and purchase of property, and investments.
A short discussion of the French notary and his functions
in preparing instruments under seal may be found in
Planiol's elementary treatise on civil law (v. 2, p. 47).
Professor Planiol also gives an extensive bibliography of
the literature covering notarial practice. Mention might be
made here of the latest form books. These include Amiaud's
Traite fornulaire 83 and Defrenois' Traite pratique et formzulaire.84 There is also a smaller form book by Defrenois.85
The different branches of the French legal profession
were discussed by Professor Walton in the article on Or82 Cr6pon, T. Traite de l'appel en matiere civile. Paris, Larose et
Forcel, 1888. 2 v.
83Amiaud, A. Traite formulaire general alphabetique et raisonne
du notariat. 7. ed. Paris, Journal des notaires, 1923-26. 5 v.
84 Defr6nois, C. Traite pratique et formulaire g6enral du notariat.
Nouv. 6d. rev. et mis au courant. Paris, Defrenois, 1925-26. 5 v.
85 Defrenois, C. Petit formulaire du notariat. 7. ed. Paris, Defr6nois, 1925. 674 p.




152


GUIDE TO THE LAW OF FRANCE


ganization of justice in France, already referred to (Law
Quarterly Review, v. 19, pp. 402, 409). Like the English
solicitor the French avoue and notary are not members of
the bar. But as brought out by Professor Walton, while
in England the bar is essentially a London bar, in France
the bar of Paris, though the largest, is only one of many.
each having a separate government.
There are a number of sources of information in English
concerning the French bar. The article by Professor Walton, just mentioned, seems the most informative. An interesting historical sketch, with biographical notices of the
leading advocates of the early nineteenth century, was published by Young 8s in 1869. A less valuable historical sketch
by Cox-Sinclair appeared in the Law Magazine and Review
for 1906 and 1907 (v. 31, p. 171; v. 32, p. 406). The
articles by Paul Fuller of the New York bar in the Yale
Law Journal (v. 16, p. 457; v. 23, p. 113) are of interest.
Reference might also be made to a reprint of an address by
Mr. Fuller,87 made before the New York bar in 1913.
The organization of the bar, the qualifications for admission, and the rules regulating the conduct of advocates
are dealt with in French works on procedure. There are
also several important works devoted solely to the bar. The
best for the bar as a whole is that of Appleton, Traite de
la profession d'avocat,88 in which the writer also gives a valuable expose of the requisites for admission in different countries in Europe and America as well as those for admission
in France. A very good work on the Paris bar was recently
published by Payen and Duveau.89 In addition, mention
should be made of a thesis dealing with the role of a lawyer
in criminal matters, published by Saillard under the title
8 Young, A. An historical sketch of the French bar from its origin
to the present day. Edinburgh, Edmonston, and Douglas, 1869. 279 p.
8 Fuller, P. The French bar; address before the Association of
the Bar of the City of New York. New York, G. P. Putnam's sons,
1913. 46 p.
88Appleton, J. Trait6 de la profession d'avocat. 2. ed. Paris,
Dalloz, 1928. 717 p., 1 1.
8Payen, F., et Duveau, G. Les regles de la profession d'avocat
et les usages du barreau de Paris. Paris, Pedone, 1926. 536 p.




LABOR AND SOCIAL LEGISLATION


153


Le role de l'avocat en matiere cririnelleY0 Henri Robert, an
outstanding member of the Paris bar and member of the
Academy, is the author of a short work in popular style, entitled Lavocat.9oa
No discussion of the literature relating to the French bar
would be complete without some reference to the early work
of Dupin and Camus which is in substance a fifth edition
of Lettres sur la profession d'avocat,91 originally published
by Camus. The first volume contains a history of the early
French bar, a dialogue between Loisel and members of the
earlier bar, and the letters of Camus on the profession of a
lawyer. The second volume contains a valuable bibliography
of the then existing French and foreign legal works. As
stated in the chapter on legal history, it is one of the valuable bibliographical sources of pre-code legal literature.
LABOR AND SOCIAL LEGISLATION
Labor and social movements in France have followed
closely the political changes which have taken place during the course of the last century. Further, the movements
have largely constituted a struggle between traditional individualism on the one hand and collectivism and state intervention on the other.
1789 to 1841 was a period of individualism during which Evolution
the accepted doctrines were those of non-intervention by the Legislation
state, prohibition of combinations, and "liberty to work"'
(liberte du travail). The spirit of the times is reflected in
the legislation of March 2-17, 1791, abolishing guilds, and
the loi Chapelier forbidding trade associations and punishing persons taking part in strikes and lockouts as well as
those becoming members of trade-unions. Likewise, the
Penal code in articles 414-416 prohibited coalitions of employers or workmen and in articles 291-294 forbade associations of more than 20 persons. The Civil code practically
90 Saillard, P. Le role de I'avocat en matire criminelle. Paris,
Larose et Tenin, 1904. 244 p.
90a Robert, Henri. L'avocat. Paris, Hachette, 1923. 129, [3] p.
' Camus, A. Profession d'avocat revue par Dupin. 5. ed. Paris,
Waree, 1832. 2 v.




154


GUIDE TO THE LAW OF FRANCE


ignored labor. The labor contract was assimilated to the
contract of hire; but, while the hire of things (bailments)
was regulated in detail, hire of labor and industry was
dealt with in only a few articles (1779-1799), and of these
only two were devoted to labor (1780-81). The insufficiency of the Code is dealt with in the general works on
labor law which will be mentioned presently and in the
various works concerning legislative developments after
1804, already mentioned in connection with the discussion
of the Civil code. Professor Morin's La revolte des faits 9
gives a good exposition and the Civil code and the working classes are the subject of an article in the Livre du centenaire.
An important innovation was the reestablishment by Napoleon in 1806 of the Comneils de prudchommes to arbitrate
differences between individual employers and workmen
(infra Labor disputes), but, in the main, what little state
interference there was, was hostile to labor. The current
thought of the period was founded on the doctrines of Adamn
Smith, Malthus, Ricardo, and Say, which, whether containing the optimism of a Smith or the pessimism of a Malthus
or Ricardo, naturally led to a theory of the futility of attempting through legislation to change the workings of natural laws.
The first step in state intervention in favor of labor was
taken in 1841 through the enactment of modest legislation
regulating the employment of children.
The Revolution of 1848 was preceded by a number of ideas
emanating from Saint-Simon, Fourrier, Considerant, and
Louis Blanc, the dominant ones being the " right to work '
of Fourrier and Considerant, and mutual cooperation and the
Ateliers sociZauw of Louis Blanc. The Revolution itself was
the result of a coalition of the laboring and middle classes,
and the provisional government was friendly to labor. While
the National Assembly was less friendly, ground was gained
in legislation regulating hours of labor (the second instance
of state intervention in favor of labor) and in temporary
2 Morin, G. La revolte des faits contre le Code. Paris, Grasset,
1920. 254 p.




LABOR AND SOCIAL LEGISLATION


155


recognition of the privilege of association and coalition;
the latter privileges were, however, soon lost.
The government of Napoleon III. began as a movement
of reaction, but during its second decade it became necessary to conciliate the rising tide of opposition with valuable concessions, the most important of which was the law
of May 25, 1864, giving the privilege of combination. At
the same time, while the influence of the labor movement
during the second half of the Empire was greater than during any prior time after the first revolution, it was primarily a period of establishment of principles, with the
ideas of Louis Blanc (Organisation du travail) 93 and of
Proudhon (De la capacite politique) 94 predominant.
During the years immediately following the Commune
the prime concern was the firm establishment of the Republic. After 1880, when the dangers of monarchy had been
definitely averted, a number of important reforms were enacted. While not directly connected with labor, the new
liberality is shown by the enactment in 1881 of a law relative to the freedom of the press. But it is with the enactment of a law of March 2, 1884, legalizing unions that the
modern era of social and labor legislation began.
The year 1890 saw the enactment of laws abolishing the
labor certificate (livret owvrier), authorizing a cause of
action for abrupt discharge of employees, thus remedying
a situation growing out of the construction of article 1780
of the Civil code, and of laws providing for labor participation in the supervision of safety in mines. An act of
1892 regulated labor of women and children, and in 1893
important legislation relating to hygiene, safety, and medical attention was enacted. Subsequently, in 1898, a Workmen's compensation act was adopted.
Blanc, Louis. Organisation du travail. Paris, Administration
de librairie, 1841. 224 p.
4 Proudhon, P. De la capacity politique des classes ouvri~res. An
edition with an introduction and notes was published in 1924 by
M. Leroy. Paris, Riviere. The same publisher, Riviere, is now engaged in publishing Proudhon's complete works. The collection will
comprise approximately 20 v.
49926~-31 —11




16


GUIDE TO THE LAW OF FRANCE


At the 1898 elections, when issues were clouded by the
Dreyfus affair, the socialists, who had been gaining rapidly
in power, did no more than maintain their position. A
number of parliamentary groups united, however, under
the leadership of Millerand, who became Minister of Commerce in the cabinet of Waldeck-Rousseau.
When Millerand entered on his duties, a series of revolutionary strikes threatened to stand in the way of carrying
out a social program. Nevertheless, the minister proposed
to strengthen the unions and carry through a number of
important reforms for the benefit of the laboring class as
a whole. Without stopping to enumerate the various reforms, mention should be made of the legislation of March
30, 1900, providing for a 10-hour day.
In the two succeeding legislatures, in which the socialists
played an important and often decisive part, there was no
interruption in social legislation. Among the important
laws were those of 1904 establishing gratuitous employment
agencies and of 1905 providing aid for the aged and infirm.
Subsequently, in 1906, a weekly day of rest was provided for;
1910 saw the enactment of legislation providing for social insurance; and more recently (April 5, 1928) an entirely new
scheme of insurance was adopted (infc a).
During the war and since its conclusion a number of legislative provisions have been adopted. The more important
include an act of 1915 providing for a minimum wage for
home work and an act of 1917 establishing a 5~/2-day week
for workers in the clothing industry. The important
postwar legislation was that of 1919 concerning collective labor contracts, prohibiting night work in bakeries, and
extending the principles of the earlier Workmen's compensation act so as to include industrial diseases. To these
enactments should be added the inauguration of the 8-hour
day. In 1920 Parliament enacted legislation enlarging the
legal capacity of unions.
It is apparent from this necessarily short survey, with
its incomplete list of enactments, that in France, as elsewhere, there has been a steady march toward state intervention. It is also apparent that the Third Republic is being




LABOR AND SOCIAL LEGISLATION


157


used as a vehicle for bringing about social justice through
democratic government.
The history of economic and social movements in France
has been dealt with in one form or another by a number of
French writers. Most of these works are of no particular
interest to lawyers, but reference should be made to Levasseur's Histoie des cdasses m rieeres 95 which gives an excellent
exposition of social movements, with their resulting legislation. Various French works on labor and social legislation,
which will be discussed presently, give historical outlines of
the development of legislation. A very good summary may
be found in Professor Scelle's Pre'cis.9 An interesting study
in English of the labor movement in England and France,
with a summary of legislation, is contained in Professor
Pipkin's recent work, The idea of social justice.97
French labor and social legislation has been fragmentary, Socialand
with the result that the multitude of laws has been spread Lbo Code
among legislative enactments adopted from day to day without any coordination. Following the example of other continental countries, steps were' taken in 1901-through the
establishment of an extra-parliamentary     commission for
that purpose-for the compilation in one body, in the form
of a code, of social and labor legislative provisions. After
four years of labor this commission prepared a social and
labor code (Code du travail et de la prevoyance sociale)
intended to consist of seven books, of which the first four
have been definitely adopted. The first book, promulgated
in 1910, is entitled Des conventions relatives au travail
and deals with apprenticeship, hire of services, wages,
exemption of wages from      garnishment, and employment
" Levasseur, E. Histoire des classes ouvrieres et de l'industrie en
France. Paris, Rousseau. Part 1-avant 1789. 2. ed. 1900-01. 2 v.
Part 2-de 1789 a, 1870. 2. ed. 1903-. 2 v. Part 3-Questions
ouvrieres et industrielles en France sous la 3~ RWpublique. 1907.
lxxii, 968 p.
8 Scelle, G.  Precis lementaire de legislation industrielle. Paris,
Recueil Sirey, 1927. 366 p. (Collection; La Licence en droit.
Page 31, note 58.
97Pipkin C. W. The idea of social justice. New York, The Macmillan Co., 1927. 595 p.




158


GUIDE TO THE LAW OF FRANCE


bureaus. The second book, promulgated in 1912, is entitled De la reglementation du, travail. It deals with the
employment of children, hours of labor, night work, a
weekly day of rest and holidays, health and safety regulations, and inspection. The third book, promulgated in 1927,
is entitled Des groupements professionnels. It deals with
trade-unions and labor cooperatives. The fourth book, entitled De la jwridiction, De la cociliation et de l'arbitrage,
De la representation professionnelle was promulgated in
1924 and deals with labor tribunals (Conseils de prud,
hommnes),   conciliation  and    arbitration  of   collective
differences between employers and employees, and the
establishment of committees of concilation and councils of
arbitration.
There are several compilations of labor and social legislation. A convenient one is the Code du travail 98 published
by Dalloz as a part of its collection of Petits codes. It
gives the first four books of the labor and social code, and
in an appendix sets forth the non-codified legislative provisions and decrees relating to labor and social matters. A
similar compilation was published by Sirey under the direction of Professor Raynaud 99 as a part of the Petits codes
Carpentier. Another compilation is that of Sumien and
Groussier,l covering, however, only the first two books of
the Labor code.
A number of student texts deal with labor legislation as a
whole. A very good comprehensive and probably the best
work is the Traite edlmentaire 2 by Professor Pic. Professors Capitant and Cuche are the authors of a text, Cours de
98Dalloz. Code du travail et de la pr6voyance sociale avec supplement. Paris, Dalloz, 1928. 2 v. in 1. 1,036 p.
E Raynaud, B. Code du travail. Paris, Recueil Sirey, 1925. 591 p.
Supplement, 1927. 1 p. 1., 111, [1] p. Supplement, 1928. 1 p. 1.,
62, [1] p.
1Sumien, P. et Groussier, A. Code du travail et de la pr6voyance
sociale. Paris, Plon-Nourriet et cie. Livre I: Des conventions relative au travail, 1911. Livre II: De la reglementation du travail,
1913.
2Pic, P. Trait elementaire de 6lgislation industrielle. Les lois
ouvrieres. 5. Id. Paris, Rousseau, 1922. 1,043 p. Supplement, 1925.
35 p.




LABOR AND SOCIAL LEGISLATION


159


lMgislation industrielle, which covers combinations, unions,
strikes, the labor contract, and regulation of labor conditions. It was published in 1921 and has the reputation of
being an excellent work from the point of view of clarity of
style as well as content. The same writers recently published
a Precis de legislation industrielle.4 Another important and
very good text is the Cours elmentaire 5 by Professor Bry,
the sixth edition of which was revised and published by Professor Perreau in 1921. Two recent short texts, one by Professor Raynaud,6 of the Law faculty of the University of AixMarseilles, and the other by Professor Scelle,7 of the University of Dijon, give excellent summaries of existing legislation. As already stated, that of the latter gives a particularly good summary of the history of French labor and social
movements. Professor Scelle is also the author of an earlier
work, Le droit owrier,8 published in 1922. It gives a good
account of the then existing legislation. Reference is also
sometimes made to the recent Manuel pratique9 of BovierLapierre, but this work, supposed to be a practical guide, is
not generally considered to be of outstanding value.
Positive provisions of French law recognize, in addition Fbor
to apprenticeships, two types of contracts between employer
and employee: the individual contract and the collective
agreement. As already indicated the existing legislative provisions are contained in the second book of the Labor code.
8 Capitant, H. et Cuche, P. Cours de legislation industrielle. 2. ed.
Paris, Dalloz, 1921. 566 p.
4 Capitant, H. et Cuche, P. Precis de legislation industrielle. Paris,
Dalloz, 1927. 450 p.
Bry, G. Cours 616mentaire de legislation industrielle: I. Les lois
du travail industriel et de prsvoyance sociale; legislation ouvriere.
6. (d. rev. par E. H. Perreau. Paris, Recueil Sirey, 1921. 942 p.
6Raynaud, B. Manuel de legislation industrielle. Nouv. ed. Paris,
de Boccard, 1927. 427 p.
Scelle, G. Precis 6lementaire de legislation industrielle. Paris,
Recrueil Sirey, 1927. 366 p. eso La licence en droit, Legal education.
Page 31, note 58.
8 Scelle, G. Le droit ouvrier. Tableau de la legislation frangaise
actuelle. Paris, Colin, 1922. 212 p.
9Bovier-Lapierre. Manuel pratique de legislation du travail. Paris,
Eyrolles, 1927. 320 p.




160


GUIDE TO THE LAW OF FRANCE


The individual contract was originally solely regulated by
articles 1780 and 1781 of the Civil code. Article 1781,
establishing a harsh rule of proof on the oath of the employer, was repealed in 1868 and article 1780 has undergone
important amendments since 1804. While either party may
terminate, at will, a contract for an undetermined period,
as it now appears in the Civil and Labor codes, article 1780,
as the result of an amendment of 1890, provides that such
termination may give rise to a cause of action.
Contracts of employment are discussed in both works on
labor legislation and treatises on civil law, in the former
under the title Contrat du travail, and in the latter, usually,
under the heading Louage d'ouvrage. A very good separate
study of jurisprudence and legislation was published as a
thesis in 1912 by Martini under the title La notion du contrat du trawail.10
Collective  In his Precis Professor Scelle compares the collective
Contract
agreement to a treaty. While it usually contains as its
principal clause one regulating wages, it also, ordinarily,
regulates the conditions under which employees are to work,
and often contains a stipulation as to arbitration of labor
disputes. Prior to 1919, French courts in giving a cause of
action for breach of a collective agreement, had recourse to
article 1134 of the Civil code, but there was always a certain degree of uncertainty as to its effect, depending on the
particular contract to which it was assimilated. The present law, an act of 1919, grew out of projects proposed by
Doumergue in 1906 and by Viviani in 1910. The act itself
authorizes agreements between representatives of a union or
other groups of employees, on the one hand, and a group of
employers, or several employers contracting individually or
even one employer, on the other.
The collective agreement has been the subject of several
theses which merit mention. The nature of the collective
contract and its evolution are dealt with by Crepin in his
La convention collective.1  An excellent exposition of the
10 Martini, A. La notion du contrat de travail; 6tude jurisprudentielle, doctrinale et legislative. Paris, Juris-classeurs, 1912. 355 p.
"1Cr6pin, H. La convention collective du travail. Sa nature et
son Evolution historique, lot du 25 mars, 1919. Paris, Jouve, 1919.
227 p.




LABOR AND SOCIAL LEGISLATION          161


legal nature of the contract is contained in Brethe's De la
nature juridique de la convention de travail.12   Reference
is also sometimes made to two theses, written before the
act of 1919, one by Professor Rouast,13 now of the Paris
Law School, and another by Professor Raynaud,14 now of
the University of Aix-Marseilles. Professor Raynaud 15 is
also the author of a later work in the nature of a guide
which discusses the economic and juristic nature of the collective contract as well as its practical phases.
Mention has already been made of the fact that an act of Minimum
1915 made provision for a minimum wage for women home age
workers in the clothing industry. This legislation is contained in the first chapter of the third title of the first book
of the Labor and social code (art. 33 et seq.). Its original
scope has been extended to several allied industries as the
result of subsequent decrees. A very good short commentary on the act of 1915 was published in 1916 by Tourret.16
There is also a short thesis by Bouchard,17 which is sometimes
referred to.
The various texts on labor legislation devote a few pages Employto employment bureaus.      Gratuitous municipal bureaus BUus
were provided for and regulated by an act of 1904 and one
of 1925, both acts appearing in the Labor and social code.
There is a good commentary on the earlier legislation, La
reglementation nouvelle18 by Fontaine.
Considerable space is devoted to a discussion of child
labor, hours of labor, days of rest, and hygiene and safety
regulations under the heading Conditions de travail. A very
"Brethe, J. De la nature juridique de la convention collective de
travail. Bordeaux, 1921. 199 p.
13 Rouast, A. Essai sur la notion juridique de contrat collectif dans
le droit des obligations. Lyon, 1909. 434 p.
14 Raynaud, B. Le contrat collectif du travail. Paris, Rousseau,
1901. 365 p.
1 Raynaud, B. Le contrat collectif en France. Paris, Rousseau,
1921. 292 p.
6 Tourret, J. Le salaire minimum des ouvricres a domicile (loi
du 10 juillet 1915). Paris, Recueil Sirey, 1916. 149 p.
17Bouchard, G. Le minimum de salaire dans l'industrie du votement. Paris, 1927. 74 p.
Fontaine, A., et Picquenard, C. La r6glementation nouvelle des
bureaux de placement. Paris, Dupont, 1905. 1,139 p.


A




162


GUIDE TO THE LAW OF FRANCE


good commentary, La protection lgale des travailleurss  was
published in 1910 by Professor Jay, of Paris. Necessarily,
it does not deal with legislation enacted during the war and
establishing a Saturday half holiday for certain classes of
workers nor with recent legislation providing for an 8-hour
day.
There is no outstanding work of a legal character dealing with labor unions. They are dealt with, however, in
the general texts already mentioned and their evolution is
described by Paul Louis in his Histoire du mnouvement
syndicl.20
Labor     Individual and collective conflicts between employer and
Disputes
employee come within the jurisdiction of separate tribunals
under French law. Individual conflicts are within the jurisdiction of the Conseils de prud'hommes, reestablished by Napoleon and now regulated by the fundamental act of March
27, 1907, modified in several respects in 1919, 1920, and 1921,
and incorporated in the Labor and social code in 1924. This
court, composed of an equal number of workmen and employers, now has jurisdiction of controversies between employers and workmen in commerce, industry, and transportation. Its organization and jurisdiction are dealt with in
a treatise by Bloch and Chaumel,21 published in 1912. No
provision is made for compulsory conciliation and arbitration of collective disputes but machinery for their settlement was provided for through authorization, in an act of
1892, of optional submission of conflicts to committees of
conciliation and councils of arbitration. There seems to be
a growing opinion in favor of compulsory settlement.
WORKMEN'S COMPENSATION-INDUSTRIAL
ACCIDENTS
Prior to 1898, in spite of doctrinal criticism, French courts,
basing their decisions on article 1382 of the Civil code,
19Jay, R. La protection legale des travailleurs. 2. ed. Paris,
Larose et Tenin, 1910. 436 p.
20Louis, P. Histoire du mouvement syndical en France. (1789 -1910.) 3. ed. Paris, Alcan, 1920. 2 p. 1., x, 282 p., 2 1.
21Bloch, R. et Chaumel, H. Trait6 thdorique et pratique des
Conseils de prud'hommes. Nouv. ed. Paris, Dalloz, 1925. 562 p.




WORKMEN'S COMPENSATION-INDUSTRIAL ACCIDENTS


163


consistently held that an injured employee was without
redress against his employer unless he discharged the burden
of proving fault. As a result, due to the ordinarily practical impossibility of sustaining the burden of proof, even
where there was fault, the French worker was in most cases
of industrial accidents without relief. As early as 1880 it
was proposed to amend the Civil code so as to shift the
burden of proof to the employer by establishing a presumption of fault, with the result that where the cause of accident
was unknown the duty of making indemnity would fall on
the employer-because of his inability to meet the burden of
proving lack of fault.
At the same time there was a strong doctrinal opinion in
favor of a view to the effect that the responsibility of the
employer grew out of the contract of hiring itself and not
out of a theory of delictual responsibility as established
under article 1382. According to this view the employer
was under a contractual duty to take every necessary precaution to avoid injury through accidents. Supposedly, under
the general rules of proof, the contract of hiring having
been established, the burden of proof would shift to the
employer. Without success in France, the theory of contractual responsibility was admitted by the Court of Cassation of Belgium, which, however, took the position that the
burden of proving that the employer had not fulfilled his
contract was on the employee, a result which gave the employee no relief. A decision of the Civil chamber of the
French Court of Cassation rendered in 1896 seemed, even
before the legislative reform, to have established liability
on the basis of responsibility as proprietor of a thing causing injury to another (cf. D. P. (i. e., Dalloz-periodique)
97.1.433 and S. (i. e., Sirey-Recueil general) 97.1.17.
Civil code, 1384). But all questions arising out of the
amendment of the Civil code or the application of its provisions were definitely cut short by the legislation of April 9,
1898, placing the burden of industrial accidents on employers. Attacked at first, the revolutionary theory of
responsibility without fault has been extended both with
respect to industries and employment and scope of responsibility, so that at present it includes employees in practically all but the liberal professions, government administra



164


GUIDE TO THE LAW OF FRANCE


tion, schools, and hospitals. Existing legislation also provides for compensation for industrial diseases as well as for
injuries from accidents. Some criticism has been made of
the present law because it does not provide for compulsory
insurance by the employer and a simplified procedure in
special tribunals.  In his Preeis, Professor Scelle takes the
position that if the scope of the law were extended so as
to include all employees (it has been proposed so to extend
the benefits of the present law) and provision were made
for special tribunals, the French system could be numbered
among the best.
By far the best work on workmen's compensation is
Sachet's Traite theorique et pratique,22 a seventh edition of
which was published in 1926 in three volumes. There is also
a short supplement which appeared in 1927. There are two
other very good works, the last editions of which are, however, earlier than the seventh editions of Sachet's treatise.
Cabouat's treatise,23 of which only two volumes were published, appeared between 1901 and 1907. Cabouat is also
the author of a somewhat later work dealing with the extension of the principles of the act of 1898.24 The other is
Loubat's   Traite sur le risque professionel.25 Attention
should be called to the fact that valuable discussions of the
liability of employers appear in the leading treatises on civil
law, usually in connection with the contract of hiring.
The act of 1898, as amended, is reported in a number of
publications.  Dalloz publishes a Code des accidents du
Sachet, A. Trait6 theorique et pratique de la legislation sur les
accidents du travail et les maladies professionnelles. 7. ed. Paris,
Recueil Sirey, 1926. 3 v. Supplement: Loi du 30 avril 1926. Paris,
Sirey, 1927. 31 p.
2 Cabouat, J. Traite des accidents du travail. Paris, Larose et
Tenin, 1901-07. 2 v.
4 Cabouat, J. De l'extension du risque professionel aux entreprises
commerciales, aux employeurs et employ6s non assujettes et aux delegu6s A la securitd des ouvriers mineurs. Paris, Recueil Sirey,
1914-16. 2 v.
25Loubat, G. Trait6 sur le risque professionnel; ou, Commentaire
de la loi du 9 avril 1898, concernant les responsabilit6s des accidents
dont les ouvriers sont victimes dans leur travail. 3. ed. Paris,
Pichon & Durand-Auzias, 1906-7. 2 v.




SOCIAL INSURANCE


165


travail,,26 part of the series of Petits codes, and the act is
also reported in the Code civil and Code du travail of the
same series.
SOCIAL INSURANCE
Until the early part of 1928 France had lagged behind her neighbor, Germany, in social insurance legislation. The then existing law was the act of 1910 as modified
by the financial law of 1912. Provision was made for both
optional and compulsory insurance. The latter included
protection against old age and invalidity, but insurance
against illness and unemployment were optional. Compulsory insurance was at first limited to wage earners earning
5,000 francs a' year, but in 1922 the amount was increased
to 10,000 francs. At the same time wage earners earning
more than 10,000 francs but less than 12,000 francs were permitted to take out all types of insurance. Others, such as
small farmers and employers, were also permitted to take
advantage of the act, both with respect to its compulsory
and voluntary features. Contribution was tripartite, the
insured, the employer, and the state contributing. The partial failure of this legislation was due to opposition from
both the employer and working classes and to the fact that
sufficient means for the enforcement of the compulsory features were not provided for. There seem also to have been
unnecessary complications in the process of administration.
The present scheme was the result of a growing opinion
that social insurance is desirable and that to be a success
it must be compulsory. The influence of German legislation
on the same subject was also an important factor. This latter influence was due to the fact that in Alsace and Lorraine
the German regime was maintained after their annexation
to France. Its retention was at first intended to be provisional, but, as the result of a decree of July 17, 1922, it became definite. From then on it was only a question of time
until the class of benefits enjoyed by workers in these two
provinces would be extended to all French workers.
28 Dallos. Code des accidents dutravail. Paris, Dalloz, 1928. 490 p.




166


GUIDE TO THE LAW OF FRANCE


In 1919 a technical commission was appointed for the purpose of formulating a plan. Their project was presented to
the Chamber of Deputies by Daniel-Vincent, Minister of
Labor in the Briand Cabinet, on March 22, 1921. It was
subsequently adopted by the lower house and sent to the Senate in 1924. After discussion in a number of special committees the plan was amended by the Senate and adopted
by it in July of 1927. The Senate bill was adopted by the
Chamber on March 14, 1928, and the law was promulgated
on April 5, it appearing in the Jouvwal oficiel of that date.
The law, consisting of 74 articles, is divided into five titles.
The first title deals with compulsory insurance, the second
with administration, the third with optional insurance, and
the fourth with certain transitory matters, mainly with
respect to situations growing out of the earlier law. The
fifth title contains certain general provisions. The first
article gives the risks included within the compulsory feature of the act. These comprise illness, premature invalidity, old age, death, maternity, and unemployment. Under
the heading ckarge de farmille provision is made for additional benefits for children of the insured, this being a part
of the effort in France to increase the birth rate. Those
coming within the compulsory features of the new law include wage earners and agricultural workers earning not
more than 18,000 francs a year. (Allowances are made for
children.) The optional features of the new law apply to
workers, such as farmers, artisans, and intellectual workers,
who are not employes or wage earners and whose earnings
do not exceed the limits fixed for wage earners.
It should be remarked that the present law differs in detail from the German law which is to remain in force in
Alsace and Lorraine until such future date as may be fixed
by the French parliament.
Social insurance is usually discussed in the texts on labor
law which have already been mentioned. Those in sufficiently late editions devote some space to the new plan as
proposed in 1921. A good summary may be found in Professor Scelle's Precis. The new law has been the subject of




CRIMINAL LAW


167


a commentary by Picard,27 professor at the University of
Lille, and a Guide pratique 28 has been published by Professor Antonelli, of Lyon. There is also a Guide pratique
by H. Solus,29 who, in addition, recently published another
work on the operation of the new law.29a
CRIMINAL LAW
At the 1926 meeting of the Association of American Law
Schools, Dean Pound, of Harvard, called attention to the fact
that the teaching profession in the law schools of the United
States has taken comparatively little interest in the development of criminal law (v. 12, Iowa Law Review, p. 105).
An examination of the leading modern French texts will
reveal that they represent the work of members of French
faculties who, in addition to contributing their legal knowledge to the advancement of the administration of criminal
justice, also discuss some of the problems which fall within
the domain of criminology and penology and which are practically universally omitted from American works. Current
views of the larger questions involved in the administration
of criminal law necessarily have their influence on the legislator and judge and it is believed that they merit some reference in connection with a discussion of the development of
criminal law in France.
The criminal law of monarchical period was marked by Evolutionof
the elements which characterized that in force in all coun- criminal
Law
tries at the time. The underlying bases were vengeance and
intimidation which naturally led to an exaggeration of severity both with respect to the number of crimes and their punishment. The philosophers of the eighteenth century, Diderot, Voltaire, Montesquieu, and others, protested against the
excesses brought about by current governmental views with
27Picard, R. Les assurances sociales. Paris, Juris-classeurs, 1928.
153 p.
28Antonelli, E. Guide pratique des assurances sociales. Paris,
Payot, 1928. 229 p.
9 Solus, H. Qu'est ce que les assurances sociales? Guide pratique
et texte annot6 de la loi du 5 avril, 1928. Paris, Sirey, 1928. 235 p.
29a Solus, H. Comment fonctionnent les assurances sociales? Guide
pratique et texte annot6 du dcret de 30 mars 1929. Paris, Sirey,
1929. 300 p.




168


GUIDE TO THE LAW OF FRANCE


the result that important reforms were undertaken by the
revolutionary regime. In 1790 the Constituent Assembly,
applying the principles of the Declaration of the rights of
man, proclaimed equality before the law. In the following
year it promulgated the most important piece of criminal
legislation prior to the Napoleonic codes, a Penal code, the
principles of which are dealt with in a thesis by Remy, Les
principles generaux du Code penal de 1791.30  The principal
reforms of the revolutionary period were the limitation of
criminal acts to those harmful to society and reduction in the
severity of punishment. At the same time, through excessive reaction against the ancien regime life imprisonment
was abolished and the duration of imprisonment automatically fixed in advance with the result that the judge's role
was limited to arbitrary application of the law. Under the
convention further revision of criminal law was considered;
but the Code of 1795, the work of the noted jurisconsult
Merlin, was more in the nature of a law providing for rules
of procedure than a Penal code.
The codes of the revolutionary regime, in spite of the
progress made, were too concise and too hastily compiled to
be of long duration. Both were replaced under the Empire
by a Penal code and a Code of criminal procedure. The
Penal code of 1810, the last of the imperial codes and, as
revised, the present principal source of criminal law, was
compiled at a time when it was necessary to reestablish
order. Particularly severe, it revived a number of forms of
punishment which had been abolished during the Revolution, such as confiscation of property, mutilation preceding
the execution of the death sentence in the case of parricides,
and life imprisonment. While provision was made for
maximum and minimum penalties, judges were required to
follow the limits fixed by the legislature. One of the results
of the excessive severity of the Code and the limitations
placed on the sentence applied by the judge was an increase
in the number of acquittals at the hands of the jury which
adopted this method of applying in its fashion a theory of
individualization of punishment. The increase in the num30 Remy, H. Les principes g6n6raux du Code p6nal de 1791. Paris,
1910. 256 p.




CRIMINAL LAW


169


ber of acquittals raised a question of the wisdom of the existing system of administration of justice.
A new philosophical doctrine developed. Combining the
idea of expiation developed by Kant and that of social
security contained in the works of Bentham, the statesman
and historian Guizot, in his treatise De la peine de mort 'en
matiere politique,31 the philosopher Jouffroy in his Cours du
droit natrel 32 and Rossi, professor at Geneva and Paris, in
his Traite du droit penal,-3 as well as other writers of the
time, notably Cousin, advocated a system characterized by
limitation of punishment to the requirements of social safety
and justice. An element of moral atonement was added
by Lucas in different works on prison reform; mention might
be made of Du systeme, penal et repressif,34 and Du systeme
penitentiaire en Europe et aux Iltats-Unis.35
Under the influence of these ideas the Penal code was
revised in 1832 and published in a second and last edition.
The severity of the earlier law was reduced and various
forms of punishment done away with. The jury was given
the power of determining the existence of extenuating circumstances, and political crimes were to some extent differentiated from those dealt with in the Code.
The Penal code as revised might be subjected to two
classes of criticism, the first directed against its technical
arrangement or method and the second based on the underlying theories which brought about its revision. The second
only will be discussed at this point.
As already stated, the underlying theories of the philosophical thought preceding the revision of 1832 were expiation and social security, but as brought out by Professor
31Guizot, F. De la peine de mort en matiere politique. Paris,
Bechet ain6, 1828. 185 p.
3 Jouffroy, T. Cours de droit naturel professe A la Facult6 des
lettres de Paris. 1. ed. 1833-35. 2 v. 5. Ed. Paris, Hachette,
1876. 2 v.
Rossi, P. Traite du droit penal. 4. ed. rev. par Faustin-Hlie.
Paris, Guillaumin, 1872. 2 v.
4 Lucas, C.  Du systeme penal et du systeme repressif en g6neral,
de la peine de mort en particulier. Paris, Bechet, 1827. 424 p.
35 Lucas, C. Du systeme penitentiaire en Europe et aux ]tats-Unis.
Paris, 1828-31. 3 v.




170


GUIDE TO THE LAW OF FRANCE


Roux in his recent Cours de droit criminel franrais,8 the
classical school of the early part of the last century, while
responsible for notable reforms, particularly with respect
to punishment, studied the application of criminal law from
the viewpoint of crime in the abstract without considering
the author of the criminal act. As a result the protection of
society against criminality was considered as a battle against
crime rather than as one against the author of crime. The
positive school of Lombroso and Ferri supplied a new
method of attack.
Modern     Translated into French,37 the biological and sociological
Criminol. studies of these outstanding Italian criminologists turned
ogy      attention from  crime in the abstract to the criminal. Introducing a method of observation of criminals as individuals, they served the useful purpose of demonstrating that
the criminal can not be dealt with successfully as a uniform type existing in the abstract but must be considered
as a human being subject to varying influences. At the
same time the elimination of moral responsibility, in the
treatment of criminals as a whole, solely from the point of
view of protection of society, gained but little support in
France.
There has been, however, a fusion of the opinions of the
classical school of the early part of the last century and of
the Italian positivist school with a resulting formation of
what might be called a neoclassical school. While conserving the principle of moral responsibility, modern French
thought recognizes the necessity for classification and the
variation of punishment with respect to the individual prisoner, particularly in so far as occasional and confirmed delinquents are concerned. French publicists who might be
said to be identified with this new school include such emi83 Roux, J. Cours de droit criminel frangais. Droit penal, procedure p~nale. 2. ed. Paris, Recueil Sirey, 1927. 2 v.
"7 See Criminal science series. Introduction, page 2, note 1, for
English translations.
Lombroso, C. Le crime, causes et remtdes. 2. Ad. Paris, Alcan,
1907. 583 p.
idem. L'homme criminel. 2. (d. Paris, Alcan, 1895. 2 v.
Ferri, E. La sociologie criminelle. Tr. par L. Terrier. Paris,
Alcan, 1905. 640 p.




CRIMINAL LAW


171


nent names as Professors Saleilles, Garraud, Vidal, Garqon,
and Cuche, all of whom have been closely connected with
law teaching in France.
Professor Saleilles, whose name has been mentioned in
connection with his valuable studies in the field of comparative civil law, was also the author of a short study of the
later schools of criminology, Les nouvelles ecoles de droit
penal7a   and an important work on individualization of
punishment, L'individualisation de la peine.39 Anew edition
of this last work was recently published by Professor Morin.
Mention should be made of the fact that a translation of
the second edition appears in the Modern criminal science
series.40 Professor Vidal, in addition to his work on criminal law, has contributed an important study of the bases of
penology as conceived by latter-day criminologists. His
work, Introduction philosophique a l'etude du droit penal, 4
though published in 1890, may still be consulted with profit.
Two years later he published a shorter work on the anthropological Italian school under the title Etat actuel de l'anthropologie criminelle.42  Professor Cuche is the author of an
important work on penal science, Traite de science et de
legislation penitentiaires,43 and a shorter study of educational punishment, Les peines educatrices.44
Professor Gargon, whose annotated edition of the penal
code will be referred to presently, was also the author of
38 Saleilles, R. Les nouvelles ecoles de droit penal. Paris, Rousseau, 1901. 29 p.
9 Saleilles, R. L'individualisation de la peine. ]Etude de criminalite sociale, publiee avec la collaboration de G. Morin. 2. 6d. Paris,
Alcan, 1909. 3. ed. 1927. 288 p.
4 See Introduction, p. 2, note 1. Saleilles. The individualization of punishment. Translated from the Second French edition by
Rachel Szold Jastrow. Boston, Little, Brown and co., 1913. 322 p.
Vidal, G. Introduction philosophique a l'6tude du droit penaL
Principes fondamentaux de la p6nalite dans les syst6mes les plus
modernes. Paris, Rousseau, 1890. 637 p.
4Vidal, G. Stat actuel de l'anthropologie criminelle. Paris, Rousseau, 1892.
'4Cuche, P. Traite de science et de legislation penitentiaires.
Paris, Pichon et Durand-Auzias, 1905. 510 p.
Cuche, P. Les peines 6ducatrices. Paris, Chevalier-Marescq,
1903. 99 p.
49926~-31   -12




172


GUIDE TO THE LAW OF FRANCE


a valuable little work on the evolution of criminal law and
its present status, which was published under the title Le
droit penal, origines, evolution, etat actuel.5   It is generally considered to be one of the best available discussions
of the evolution of French criminal law and of the present
views of the purposes of penal laws.
In addition, a valuable study of repression and prevention of crime was recently published by Professor Roux,46
of the Strasbourg Faculty, who accentuates the importance
of prevention of crime as well as its suppression.
In this connection mention should also be made of the
social studies of Tarde, professor of philosophy at the
College of France. They include ttudes penales et sociales,47 consisting largely of articles previously published in
various periodicals, and La philosophic penale,48 a translation of which     appears in the Modern       criminal science
series.49 The works of Joly, such as Le crime, etude sociale,5~ La France criminelle,5' Le combat contre le crime 52 and
Problemes de science crimdneile 53 are also important. Mention may be made of a recent work on the progress
of penal institutions,54 by A. Toulemon. The studies in
criminology (RI'tudes criminologiques) published since 1926
by the Institut de criminologie de l'Universite de Paris,
associated with the Paris Law School, are also important.
45 Gargon, E. Le droit p6nal; origines-6volution-etat actuel. Paris,
Payot, 1922. 160 p.
" Roux, J. La defense contre le crime. R6pression et prevention.
Paris, Alcan, 1921. 280 p.
4T Tarde, G. ]Etudes penales et sociales. 2. ed. Lyon, Storck, 1892.
460 p.
4"Tarde, G. La philosophic penale. 5. ed. Lyon, Storck, 1900.
578 p.
49 See Introduction, p. 2, note 1. Penal philosophy. By Gabriel
Tarde. Translated by Rapelje Howell. Boston, Little, Brown and
co., 1912. 581 p.
0Joly, H. Le crime; etude sociale. Paris, Cerf, 1888. 392 p.
'1 Joly, H. La France criminelle. Paris, Cerf, 1889. 431 p.
J2Joly, H. Le combat contre le crime. Paris, Cerf, 1892. 435 p.
6Joly, H. Probltmes de science criminelle. Paris, Hachette, 1910.
291 p.
Toulemon, A. Le progres des institutions p6nales (Essai de sociologie criminelle), Paris, 1928. 249 p.




CRIMINAL LAW


173


It is usually difficult to give an exact estimate of the
influence of philosophical thought on legal matters. Professor Garraud in his general treatise on criminal law gives
an excellent summary of the reforms during the past century (v. 1, 168). The more important include diminution in the severity of punishment, development of the institution of extenuating circumstances through extension of
the relative provisions of the Penal code, special legislation
for juveniles and the distinction made between first and
second offenders, all of which are closely connected with
the evolution of the attitude towards crime and the criminal
during the course of the nineteenth century.
Although amended from time to time since its revision?enal Code.
in 1832, the Penal code still remains the principal source of Contents
criminal law. The Code itself consists of five preliminary
articles and four books. The first article deals with the
tripartite division of criminal acts into minor misdemeanors,
serious misdemeanors (deits) and felonies (crimes) according to the nature of their punishment. Articles 2 and 3
deal with attempts. The fourth article provides for the
application of the ex post facto doctrine to crimes and article 5 declares that the provisions of the Code are not applicable to military offenses. The first book deals with punishment of felonies and serious misdemeanors. The second
book deals with responsibility for criminal acts and contains
the rules applicable to accomplices, insane persons, and
minors. The third book treats of particular crimes. It is
divided into two titles, the first dealing with acts directed
against the security of the state, counterfeiting, forgery,
misfeasance in office, resistance to public authority, and similar offences, and the second with those directed against individuals and property. The fourth book deals with minor
misdemeanors (conmtaveentions) which are punishable by
fine or simple imprisonment.
In his Cours de droit crimminel franvais (p. 32, et seq.) Professor Roux states that though the technique of the Penal
code should be irreproachable, of all the codes promulgated
under the Empire, it is the least perfect. It is not always
logical in its arrangement and, in addition, a number of doctrines such as fault, mistake, and necessity are not dealt with




174


GUIDE TO THE LAW OF FRANCE


at all, and others, to mention here insanity alone, are insufficiently treated. At the same time, the technical omissions
served a useful purpose in that they permitted the courts to
adapt the general provisions of the Code to the changing
conditions of the last century.
Annotated  Of tlie different large annotated editions of the Code, that
Editions by Professor Garqon,55 a 2-volume work, which appeared
between 1901 and 1906 is, by virtue of its exhaustiveness, universally considered to be much the best. Due to his experience as counsel and teacher of criminal law at the University
of Paris, Professor Garqon was able to bring to his annotations a combination of practical and theoretical skill which
is rarely found in a work of this kind. A third volume covering the fourth book of the Code (not included in the original work) is announced as in press. Of the other two
annotated  codes, those cited under the names Dalloz,66
and Sirey,57 the former has the advantage of later publication and, while less valuable than that of Gargon, is also
of importance. It consists of an original volume published in
1886 and a supplement published in 1899. Sirey is no longer
in current use. In addition to the annotated codes which
have just been mentioned, the various publishers publish
small pocket editions.  Of these that of Dalloz,58 appears
to be the best. As in the case in the other small annotated
codes forming a part of the Petite collection Dalloz, it
contains short references to jurisprudence and, in addition,
gives all the legislation pertaining to criminal matters. It
should be noted that the Penal code and Code of criminal
procedure appear in the same volume, the same being true
of the similar work published by Sirey and cited under the
name Carpentier.59
5 Gargon, E. Code p6nal annote (articles 1 a 463 du Code penal)
Paris, Recueil Sirey, 1901-06. 2 v.
5 Dalloz. Les codes annotes d'apres la doctrine et la jurisprudence:
Code penal. Paris, Dalloz, 1886. 1 v. Supplement, 1899. 1 v. 590 p.
7 Sirey, J. et Gilbert, P. Code penal annote et Supplement.
Paris, Marchal, 1868.
8 Dalloz, Code d'instruction criminelle et Code p6nal. Paris,
Dalloz, 1928. 893 p.
" Carpentier, A. et E. Code d'instruction criminelle et Code penal.
Paris, Recueil Sirey, 1927. 920 p.




CRIMINAL LAW


175


Turning now to the general works on criminal law we Treatises
find an array of treatises which have appeared since the
promulgation of the Code. Most of these are no longer of
great practical value having been replaced by the Traite
theorique et pratique de droit penal fran~ais 60 by Professor
Garraud, of the Lyon Law School, which is easily the most
valuable general modern work on French criminal law.
The third edition is to consist of 6 or 7 volumes of which
5 have already appeared. Mention should also be made of
another important but much older work, that of Chauveau,
Professor at Toulouse, and Faustin-Helie, TUhorie du Code
penal,61 consisting of 6 volumes.    The sixth edition was
annotated by Villey, dean of the Law School of the University of Caen. In addition, a supplement, forming a
seventh volume, was published in 1908 by Mesnard, a magistrate. Faustin-Helie was also the author of another work,
Pratique criminelle des cours et tribunau,62 which was recently revised by Depeiges and published in a 2-volume
third edition.  This work is primarily of a practical iature
and is usually considered to be of far less value than that
of Professor Garraud. Older texts which merit mention
include Professor Boitard's popular Lemons de droit criminel,63 published in a thirteenth edition in 1896; Professor
Ortolan's Elements de droit penal,64 the best of the older
works for theory, and Professor Blanche's voluminous
LEtudes pratiques sur le Code penal,6 the second edition of
f Garraud, R. TraitW th6orique et pratique de droit penal franCais. 3. ed. Paris, Recueil Sirey, 1913-24. 5 v.
" Chaveau, A., et Faustin-Hlle. Theorie du Code p6nal. 6. ed.
Paris, Marchal et Billard, 1887-88. 6 v. v. 7, Supplement, 1908.
a Faustin-H6lie, A. Pratique criminelle des cours et tribunaux.
Resume de la jurisprudence sur les codes d'instruction criminelle et
penal. 3. ed. rev. par Depeiges. Paris, Marchal et Godde, 1920.
2 v.
eBoitard, J. Lecons de droit criminel. 13. Id. rev. par E. Villey.
Paris, Marchal et Billard, 1896. 893 p. Appendice, 51 p.
" Ortolan, J. El6ments de droit penal. Pwnalite, juridictions, procedure. 5. ed. rev. par A. Desjardins. Paris, Plon; ChevalierMarescq, 1885. 2 v.
6Blanche, A. Etudes pratiques sur le Code penal. 2. ed. annotde
par G. Dutruc. Paris, Marchal et Billard, 1888-91. 7 v.




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GUIDE TO THE LAW OF FRANCE


which was annotated in 1888-1891 by Dutruc. The names
of other writers whose works though sometimes consulted
are now largely superannuated include Molinier66 and Trebutien.67
In addition to the general treatises which have just been
referred to, there are a number of very good one and two
volume works intended primarily for the use of students but
which have practical value. Of these that by Professor
Roux,68 professor of criminal law     at the University of
Strasbourg, is often recommended for its clarity of style
and general arrangement. Attention might be called here
to the fact that Professor Roux is the author of a number
of extremely interesting and valuable notes on criminal law
which have appeared from time to time in the Recueil Sirey.
The classical student's manual is Professor Garraud's
Precis de droit criminel69 recently published in a fourteenth
edition. Another scholarly work is that of Vidal and
Magnol, Cours de droit criminel et de science penitentiaire.70 Originally the work of Professor Vidal of Toulouse,
it was recently published in a seventh edition by Professor
Magnol of the same faculty, this last edition being the third
in the publication of which Professor Magnol cooperated.
Of the shorter works on criminal law it probably gives the
best exposition of the schools of thought which have from
time to time influenced the development of French criminal
law. Mention should be made of the fact that it also contains a valuable discussion of the various forms of punishment under French laws (book 7, p. 580 et seq.). Like
the other shorter works on criminal law it deals with criminal procedure. While less important, Professor Degois',i8 Molinier, V. Traite th4orique et pratique de droit penal, annote,
et mis au courant par G. Vidal. Paris, Rousseau, 1893-94. 2 v.
7 Tr6butien, E. Cours elementaire de droit criminel. 2. ed. rev.
par Laisn&-Deshayes et L. Guillouard. Paris, Lahure, 1878-83. 2 v.
8 Roux, J. Cours de droit criminel frangais. Droit p6nal, procedure pdnale. 2. ed. Paris, Recueil Sirey, 1927. 2 v.
Garraud, R., et Garraud, P. Precis de droit criminel. 14. ed.
Paris, Recueil Sirey, 1926. 1,118 p.
70Vidal,G. Cours de droit criminel et de science p6nitentiaire. 7.
ed. refondue par J. Magnol. Paris, Rousseau, 1928. 1,125 p.




CRIMINAL LAW


177


Traite elementaire de droit criminel 71 is also a valuable
work.
Before turning to some of the more important subjects
falling within the scope of the Penal code and subsequent
legislation, reference should be made here to a valuable
French periodical devoted to criminal law and procedure as
well as to general problems of criminology, now published
under the title La revue penitentiaire et de droit penal.
The literature dealing with particular topics comprised
within the field of French criminal law is limited. There
are, however, several subjects which are believed to be of
sufficient general interest to be referred to in spite of the
absence of special studies other than those contained in the
general works which have already been mentioned.
The question of criminal attempt, which may always be Attempts
counted on to give rise to discussion under any legal system,
was the subject of an interesting article by Professor
Saleilles, Essai sur la tentative, which appeared in the Revue
penitentiaire in 1897 (p. 53) and of a thesis by Henri Gallet,
La notion de la tentative pundssable.72
The philosophical question as to the point at which the
law should intervene in the various steps leading up to the
commission of a crime as well as the punishment to be meted
out when it does intervene is of itself a difficult one. The
usual point of view is objective. Under this view the law
should only intervene when the preparatory acts have sufficiently advanced to permit the commission of the desired
result. In addition, the punishment meted out should be in
proportion to the gravity of the effect and not dependent
upon the state of mind of the accused. From the point of
view of the Italian positivist school of thought, since the
measure of punishment is not the gravity of the crime but
the criminal tendencies of the accused, preparatory acts
should be dealt with according to the criminal nature of the
author. Article 2 of the French code, while requiring that
the attempt consist of an overt act which has been inter71Degois, 0. Traits 6Imentaire de droit criminel. 2. ed. Paris,
Dalloz, 1922. 850 p.
" Gallet, H. La notion de la tentative punissable (essai critique).
Paris, Rousseau, 1899. 363 p.




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GUIDE TO THE LAW OF FRANCE


rupted by circumstances independent of the volition of the
accused, adopts a subjective method of punishment in that
the attempt is punished as though the intended crime had
been committed. In this respect it is unique, but it should
be stated tht the liberty allowed the jury in applying the
doctrine of extenuating circumstances generally results in
the application of a lighter form of punishment.
Extenuat-  The history of French law with respect to the effect of
ing Circumstances  the existence of extenuating circumstances, not to be confused with legal excuse, is of itself an interesting one.
Under the prerevolutionary regime the judge was allowed
a wide discretion to alleviate the excessive harshness of the
existing criminal law. As already noted, the legislation of
1791 through an exaggerated reaction against the abuse of
arbitrary punishment took this discretion from the judge.
But limited steps were taken for the reestablishment of the
system in the Penal code of 1810 and legislation of 1824.
With the revision of the Code in 1832 the matter was placed
in the hands of the jury through modification of article
463, which, in its present form, makes provision for the modification of the punishment of the defendant on declaration
by the jury of the existence of extenuating circumstances.
Early views of the system may be obtained from Collard's
Du systeme des circonstances atteriuantes 73 and Bertin's De
la repression penale et des circonstances attenucntes.74 Very
good modern discussions appear in Professor Garraud's general treatise (v. 2, secs. 151 to 154) and Precis (p. 420
et seq.). Professors Vidal and Magnol and Professor Roux
also give short resumes in their works on criminal law.
Professors Vidal and Magnol (p. 363) mention a proposal,
made some years ago, to broaden the existing system beyond
its present limits by creating "very extenuating circumstances" so as to permit the jury to provide even more
lenient punishment in certain cases, notable passional homicides and infanticides, in which French juries too often
3 Collard, C. Du systeme des circonstances attlnuantes depuis son
origine, sp6cialement sous le Code de 1832. Paris, Hingray, 1840.
116 p.
'4Bertin, J. De la repression p6nale et des cironstances attdnuantes. Paris, Durand, 1859. 48 p.




CRIMINAL LAW


179


bring in a verdict of not guilty. But Professors Vidal and
Magnol also call attention to the fact that there has been
some reaction against the system, particularly in the years
immediately preceding the war.
A fairly good discussion in English, by Herbert Bayle,
appears in volume 18 of the Juridical Review (pp. 259, 341).
While French law makes provision for the diminution Habitual
of the sentence on the existence of extenuating circum- Criminala
stances, it is also particularly severe with respect to criminals who have already been convicted of an offense. The
rules of law are contained in articles 56, 57, 58, 474, 478, and
482 of the Penal code as amended in 1891. An act of
May 26, 1885, deals with deportation of habitual criminals
to penal colonies. Its general purpose was to purge French
soil of professional criminals who are presumed to be incorrigible because of the frequency of their conviction.
The best exposition of the various circumstances under
which punishment may be increased upon the commission
of a subsequent offense, or where deportation to a penal
colony may take place because of the frequency of conviction, is to be found in Garraud's treatise. Professors
Vidal and Magnol also give a valuable discussion in their
fCours de droit criminel (p. 396 et seq.).
In this connection reference should be made to the system of recordation and proof of prior conviction, designated under the term Casier judiciaire. This system is casier ju.
extremely simple and consists of a record kept by a clerkdiciaire
of each correctional court. In the case of conviction of a
person born in another jurisdiction a copy of the record is
sent to the clerk of that court and filed there. If the accused is a foreigner or the place of his birth is unknown the
record is sent to the Ministry of Justice. Under these circumstances it is always possible to obtain the record of an
accused, once convicted, by referring to the place of his
birth or to the Ministry of Justice. The easier judiciaire has
been the subject of a number of comparatively recent
studies.  That of Le Poittevin, Le casier judiciaire,75 a
75 Le Poittevin, G. Le easier judiciaire; 6tude critique sur le
easier judiciaire en France et dans les pays Strangers. Paris, Rousseau, 1907. 391 p.




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GUIDE TO THE LAW OF FRANCE


critical study of the French and other systems, is generally
considered to be the best.
Juvenile   Juvenile delinquency, which has occupied the thought of
Delinquency Americans within recent years, has also been the preoccupation of French criminologists. The existing French legislation should be of particular interest because of the influence
upon it of similar legislation in the United States. The law
now in force is that provided for in an act of 1912 as amended
by subsequent legislation. The present age of criminal majority is 18 instead of 16, as had been the case under the
Penal code. Children of 13 or less who commit serious
offenses are not criminally responsible, but appear before a
division of a civil court which is authorized to take special
measures for their protection and care. Minors between
the ages of 13 and 18, while triable before a criminal court.
enjoy the benefits of certain procedural provisions which are
not applicable to mature criminals. The trial court must
pass on their power of discernment. If found guilty their
punishment differs from that of ordinary criminals.
The legal rules concerning juveniles, in force at the time,
are dealt with in the Code manuel des tribunaux pour enfants,76 published in 1913 by Nast and Kleine. They are also
ably discussed in the Cours de droit mriuinel. of Professors
Vidal and Magnol (p. 194 et seq.) and in the Precis of Professor Garraud (p. 196 et seq.). Both works give ample
references to the general literature relating to the subject.
The Comite' de defense des enfants traduits en justice published a " code " 77 of laws pertaining to juveniles in 1904. A
supplement was published in 1922 by the Societe generale
des prisons.
CRIMINAL PROCEDURE
The rules of French law relating to criminal procedure
are contained in the Code d'instruction publique as modified
6 Nast, M., et Kleine, M. Code manuel des tribunaux pour enfants. (Commentaire de la loi du 22 juillet 1912). Paris, Pichon et
Durand-Auzias, 1913. 328 p.
" Code de l'enfance traduite en justice, publi6 par le Comit6 de
defense des enfants traduits en justice de Paris. Paris, Rousseau,
1904. vii, 467, 477 p. Supplement. Societe g6n6rale des prisons,
1922. 64 p.




CRIMINAL PROCEDURE


181


by subsequent legislation. As already stated in connection
with the discussion of legal history, the evolution of criminal procedure in France received valuable treatment in
Professor Esmein's Histoire de la procedure criminelle en
France.7   The general works on the subject also contain
some reference to its history.
Unlike substantive criminal law, criminal procedure was
the object of codification prior to the Revolution, having
been the subject of the famous ordinance of 1670. The principal characteristics of prerevolutionary procedure were
the secrecy of the preparation of the accusation, its inquisitorial method, and the denial of counsel to the accused.
Condemned by the philosophers of the eighteenth century,
this system was not able to survive the establishment of a
new theory of public law under the Revolution. The revolutionary government, influenced largely by the system of
administration of criminal justice in England, made a number of radical changes, which included the establishment
of a jury of presentment, a trial jury, and public hearings.
The Code of criminal procedure, which was voted in 1808 but
did not become effective until 1811, represents a compromise
between the legislation of 1670 and the changes made during
the Revolution. The laws of the latter period furnished
the rules as to publicity of trial, the jury in the Court of
Assize, and the simplified procedure before other courts having criminal jurisdiction. The older legislation supplied
the preliminary preparation of the accusation and the separation of prosecution and accusation. The jury of presentment was replaced in the Code by a special tribunal created
to bring in indictments. Subsequent legislation has to some
extent modified the provisions of the Code, but it still remains the principal source of French procedural law in
criminal matters.
The Code consists of a number of preliminary articles and code of
two books which are in turn divided into titles. The pre-CrmiDal
Procedure
liminary provisions deal with such important matters as Contents
78Esmein, A. Histoire de la procedure criminelle en France et
specialement de la procedure inquisitoire, depuis le xiii I siecle
Jusqu'a nos jours. Paris, Larose et Forcel, 1882. 596 p.




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civil process in connection with the public prosecution and
jurisdiction. The first book is entitled De la police judiciaire. It treats of the officers to whom is confined the duty
of ascertaining the commission of offenses (agents de recherche), those who prosecute and their functions (procureurs),
and committing magistrates     (juges d'instruction). The
second book is entitled De la justice. The first title deals
with police courts and tribunals having jurisdiction of
serious misdemeanors. The second title, which is headed
Des affaires qui doivent etre soumises au. jury, deals with the
process of indictment by a section of a Court of Appeals
and the formation of Courts of Assize. It also treats of the
procedure before the latter court, the examination of the
accused and witnesses, the judgment and its execution, and
the manner in which the jury is selected. The third title
deals with annulments of criminal process, recourse to the
Court of Cassation, and revision. Attention should be
called in this connection to the important provision of article
446, which as amended in 1895 provides for the allowance of
damages to victims of judicial errors. The fourth title deals
with procedure in certain particular matters. The fifth
treats of conflicting claims to jurisdiction and their regulation and the transfer of cases from one court to another.
The seventh contains diverse provisions relating to such matters as records of judgments, detention of persons accused of
a crime, rehabilitation, and prescription.
Of the different annotated editions of the Code that of Le
Poittevin 79 is generally conceded to be much the best. A
2-volume work which was published between 1911 and 1926,
it is comparable with Garqon's annotations of the Penal
code. Of the other annotated codes, those cited under the
names of Dalloz80 and Sirey et Malepeyre,81 the former
though slightly older is generally considered to be the better.
" Le Poittevin, G. Code d'instruction criminelle annote. Paris,
Recueil Sirey, 1911-26. 2 v. Vol. 1 and part of v. 2 have been
published. The annotations cover articles 1 to 360.
80 Dalloz. Les codes annotes d'apres la doctrine et la jurisprudence:
Code d'instruction criminelle. Paris, Dalloz, 1901. vi, 1329 p.
8 Sirey, J., et Malepeyre. Les codes annot6s de Sirey et Gilbert.
Code d'instruction criminelle. 4. Md. Paris, Marchal et Billard, 1903.
853 p.




CRIMINAL PROCEDURE


183


For practical use in connection with the first 360 articles
both have, however,-been replaced by Le Poittevin's work.
Mention has already been made of the fact that the Code of
criminal procedure is combined with the Penal code in Dalloz's and Carpentier's pocket editions.
The outstanding treatise- on criminal procedure is Garraud's Traite theorique et pratique d'instruction criminelle
et de procedure penale,82 representing the work of Professor
Garraud and his son. Faustin-Helie's Traite de l'instruction
criminelle,83 an 8-volume treatise, published between 1866
and 1867, was long the classic work. In this connection it
may be well to again call attention to the fact that criminal
procedure is also dealt with in elementary works on criminal
law.
As is the case with respect to substantive law, there is very
little literature of value dealing with the particular subdivisions of the Code. They are fully dealt with in Garraud's
treatise. For short, clear discussions of such matters as the
organization of the criminal courts, the jury, and the duties
of the committing magistrate, the second volume of Professor
Roux' Cours de droit criminel is recommended. In addition,
Professor Roux gives excellent summaries of such matters as
appeals, procedure before the Court of Cassation, and revision. Professor Garraud's Precis is also valuable in this
connection.
An American or English observer of a felony trial inT l
the Court of Assize is apt to be struck by the absence of
examination and cross-examination by counsel, the absence
of rules of evidence as understood in England and America,
the predominating position of the president of the court,
and the seeming lack of safeguards to the accused which we
deem essential to a fair and impartial trial. These striking differences have led to an abundant literature, consisting
of notes and articles, in Anglo-American periodicals, which,
82 Garraud, R., et Garraud, P. Trait6 th6orique et pratique d'irstruction criminelle et de procedure plnale. Paris, Larose & Tenin, 1907 -29. 6 v.
'8 Faustin-H1lie, A. Traite de l'instruction criminelle, on theorie
du Code d'instruction criminelle. 2. Ed. Paris, Plon, 1866-67. 8 v.




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in the main, has been uncomplimentary to the French system.84 It should be borne in mind, holwever, that the common law prevails only in English-speaking communities and
that the French system, or something similar to it, is in
effect on the Continent, where the administration of criminal
justice is, generally, more efficient than in the United States.
In the Court of Assize, instead of having one judge presiding,
there are three. The case against the accused is presented
by the president of the tribunal following the reading of the
indictment. His presentation is usually followed by examination of the defendant, after which the witnesses are called.
While attorneys may at the discretion of the court ask questions through the president, they have no right to examine the
witnesses nor the defendant, who give their testimony in narrative form without regard to such limitations as hearsay
and opinion. The role of the attorney for the defendant
seems to be limited to a discussion of the testimony of a
witness immediately after it has been given and to his
summing up and rebuttal. As already pointed out, the jury,
in addition to passing on the facts of the case, may determine the existence or nonexistence of extenuating circumstances. It should be recalled that the jury was an innovation introduced from England during the Revolution.
Like the English jury it consists of 12 members, whose
qualifications are now governed by an act of 1872, but unlike
the system prevailing in England a majority is sufficient
for a verdict. If the jury are divided equally, the defendant is acquitted. That the accused, when he gets before the
Court of Assize, is in a defensive position may appear shocking to those accustomed to the presumption of innocence
as it prevails in England and the United States. That this
8 A large part of the periodical literature, in English, is not of
sufficient merit to be worthy of citation. Citations to articles and
notes may be found in the Index to Legal Periodicals under the headings France and Criminal law. The most comprehensive article appears to be Professor Garner's Criminal procedure in France, 25 Yale
Law Journal 255. Other articles include short comments by Thomas
Barclay and Frederic Coudert, respectively, in 10 Harvard Law Review 46 and 19 Yale Law Journal 326; Ferrari's Procedure in the
Cour d'Assize, 18 Columbia Law Review 43; and an interesting "eyewitness " account by " Docket" in 47 American Law Review 300.




CRIMINAL PROCEDURE


185


is true in practice in France is due to the fact that the case
has undergone thorough investigation by an investigating
judge and that the defendant has been indicted by the " Chamber of indictment." The investigating judge, or committing
magistrate (juge d'instruction), gathers all the facts of the
case and of the defendant's past life which can have any
bearing on the commission of the crime. A report, as a part
of the record, is sent to the trial court after indictment.
The indictment, instead of being found by a grand jury of
laymen, is the result of an investigation by a special tribunal
consisting of three judges (Chambre d'accusation) and forming a section of the Court of Appeals. It is not surprising,
therefore, that the Court of Assize recognizes that the accused
should explain why he is before it.
The jurisdiction of the Court of Assize is limited to felonies (crimes). Minor and serious misdemeanors are tried,
respectively, before a police court, consisting of a justice
of the peace, and what is called a "correctional" court,
consisting of judges who are also members of a court of
original civil jurisdiction.
As might be expected, the different international ques-Jurisdictions arising out of the application of penal law   are of ti~n Inter
greater interest to Continentals than to Anglo-Americans. PenalLaw
They have received treatment by a number of continental
writers, among whom should be mentioned Dr. Travers,
who deals with the French doctrines of criminal jurisdiction, as well as with other international penal questions, in
his outstanding Traite de droit penal international.85  Jurisdiction is dealt with in the Introduction a lVetude du droit
penal international 8 by Professor Donnedieu de Vabres,
who is also the author of an important recent work 87 dealing
5 Travers, M. Traits de droit p6nal international et sa mise en
oeuvre en temps de paix et en temps de guerre. Paris, Recueil Sirey,
1920-21. 5 v.
86Donnedieu de Vabres, H. Introduction a l'6tude du droit penal
international; essai d'histoire et de critique sur la competence criminelle dans les rapports avec l'6tranger. Paris, Recueil Sirey, 1921.
482 p.
ST Donnedieu de Vabres, H. Les principes modernes de droit penal
international. Paris, Sirey, 1928. 470 p.




186


GUIDE TO THE LAW OF FRANCE


with modern principles of international penal law. The first
work is devoted primarily to French law.
The French rules of jurisdiction, combining as they do
a territorial and personal theory, are of sufficient interest
to merit some attention. Under the provisions of articles
5 and 6 of the Code, a French citizen who commits a felony
(crime) abroad is subject to French law. If the act consists
of a serious misdemeanor (delit) the author is punishable
in France, but only if it is also prohibited by the law of
the place where committed. In either case the author is
not punishable under French law if he has been tried abroad
and, in case of conviction, has served the sentence or been
pardoned.
Strangely enough, the application of French criminal law
to acts committed in France by foreigners is governed primarily by the provisions of the Civil code, the third article
of which provides that the laws of police and public safety
are applicable to those who inhabit the territory. In 1903
territorial sovereignty was in part relinquished in an act of
April 3 which provided that a foreigner who has committed
a crime or serious misdemeanor in France is not triable
there if tried abroad and, in case of conviction, has served
his sentence or been pardoned. It should also be noted that
article 7 of the Code of criminal procedure, as amended in
1866, adopts a rule which is not unusual in providing for
punishment in France of acts committed abroad by foreigners, when such acts consist of counterfeiting the seal
of the Government, governmental papers or money, or are
directed against the safety of the state. The mere fact that
the victim of a crime committed abroad is French does not
confer jurisdiction.
Among the individual traits of French law pertaining to
procedure, mention should be made of the possibility of
the intervention of the party injured in the public prosecution as the partie civile and the provisions made for compensation to a person who has been the victim of an erroneous conviction, presently to be discussed.
Article 3 of the Code of criminal procedure states that a
civil action may be brought at the same time and before the
same court as the public prosecution, thus making provision




CRIMINAL PROCEDURE


187


for the union in one proceeding of the action of the state
and that of the individual injured. In addition to the discussions contained in the general works on criminal law and
procedure, the matter is also specially dealt with in an old
but still important work by Mangin, Traite de l'action publique et de 'action civile en matiere crniminelle,88 which, as its
title indicates, deals in general with public criminal prosecution and civil actions in criminal matters. An interesting
discussion, in English, by Doctor Lapie, of the Paris bar,
may be found in volume 10 of the Journal of Comparative
Legislation (p. 33, 3d series).
The important French rules as to compensation to a victim of an error in the administration of criminal justice are
provided for in article 446 of the Code of criminal procedure
in connection with the general subject of revision of judgments. This provision received valuable treatment by Professor Borchard in an article entitled European systems of
state indemnity for errors of cr7iminal justice, which appeared in the Journal of the American Institute of Criminal
Law for 1912-13 (p. 684). Appeal and revision were also
discussed by Doctor Weber, of the French bar, in an article
appearing in the Juridical Review of 1899 (v. 11, p. 26).
MILITARY LAW
As already stated, special separate provision for the prosecution and punishment of crimes committed by members of
the public land and naval forces was made by the promulgation of two codes in 1857 and 1858, Code de justice militaire
pour l'Armee de terre and Code de justice pour l'Armee de
mer. The military codes make provision for three categories
of crimes-military crimes in a strict sense, comprising crimes
which consist, particularly, of failure by soldiers and sailors
to fulfil some professional duty, such as revolt, insubordination, or desertion; criminal acts committed by soldiers and
sailors which, while ordinarily criminal, are more severely
punished under the terms of the military codes, including
Mangin, 0. Traite de F'action publique et de F'action civile en
matiere criminelle. 3. 6d. revised by A. Sorel. Paris, Larose, 1876.
2 v.
49926~-31-13




188


GUIDE TO THE LAW OF FRANCE


such acts as theft of military stores and falsification; and
crimes by members of the land and naval forces which are
subject to the same punishment as those committed by
civilians.
Military crimes are triable before special courts, comprising courts-martial and maritime tribunals. In addition to
a difference in jurisdiction, they are also subject to certain
differences with respect to the application of the laws dealing
with second offenses, deportation, and extradition, all of
which are summarized by Professors Vidal and Magnol in
their Cours de droit criminel et de science penitentiaire (p.
111 et seq.).
The most important general work on military criminal
law is the Traite theorique et pratique de droit penal et
procedure criminelle militaires 8 by Augier and Le Poittevin. The first volume, dealing with substantive law, appeared in 1918. A much older and less valuable work,
Commentaire thWorique et pratique des Codes de justice
maritime et militaire,90 was published by Wilhelm in 1897.
The latter consists of a reprint from the Repertoire general
du droit fran~ais.  Some idea of French courts-martial may
be obtained from  an article by Ferrari, of the New York
bar, published in the Journal of the American Institute
of Criminal Law in 1919 (v. 9, p. 5).
EXTRADITION
While extradition is not always dealt with in connection
with criminal law and procedure, it is convenient to discuss the French law relating to the subject at this point.
Prior to 1927 extradition in France was regulated solely
by treaty or declarations of reciprocity. It was also accorded by decree, the provisions of treaties not being considered exhaustive. The subject is now regulated by an
important act of March 10, 1927.
89Augier, J., et Le Poittevin, G. Trait6 theorique et pratique de
droit penal et de procedure criminelle militaires. t. 1, Droit penal
militaire. Paris, Recueil Sirey, 1918.
' Wilhelm, A. Commentaire th6orique et pratique des Codes de
justice maritime et militaire. Paris, Larose, 1897. 155 p.




PRIVATE INTERNATIONAL LAW


189


This act is not applicable to matters regulated by treaties,
but as the latter generally make no provision for the procedure to be followed in extradition proceedings the innovations of the present law have an important effect. Under its provisions, extradition can not take place in the
absence of a favorable finding on the part of an accusatory
court, thus introducing judicial process as one of the important elements in such proceedings. It should be remarked, however, that even though the finding of the court
be favorable to extradition, the Government may refuse to
honor the requisition of a foreign government.
With respect to the conditions under which extradition
may be granted, the provisions of the new law follow generally the principles of international law as understood in
France. Among the more important provisions of the act
are those declaring that extradition can not take place if the
accused is a French subject (at the time of the offense) or if
the crime was committed in France or one of her possessions.
In addition, the requisition will not be honored in the case
of political or military crimes.
Extradition received treatment in Travers' Le droit penal
international (v. 4-5), which has already been referred to in
connection with the discussion of jurisdiction. Reference is
also sometimes made to Beauchet's earlier Traite de ldextradition 91 and different works on international law, but none of
these works deal with the present law. A very good summary of the present act may be found in the manual of
Professors Vidal and Magnol. In addition, it received commentary in a recent publication by Dr. Travers.92
PRIVATE INTERNATIONAL LAW
In French legal terminology the subject, private international law, has a wider scope than its American counterpart, conflict of laws. In addition to conflict of laws,
properly speaking, it includes the rules of law concerning
nationality and privileges of foreigners in France.
tBeauchet, L. Traite de l'extradition. (Extr. des Pandectes frangaises.) Paris, Chevalier-Marescq, 1899. 752 p.
Travers, M. L'entr'aide repressive internationale et la loi frangalse du 10 mars 1927. Paris, Sirey, 1928. 772 p.




190


GUIDE TO THE LAW OF FRANCE


With the exception of those relating to nationality, which
are the subject of minute regulation in practically all countries, positive rules are particularly few and are to be found
in different parts of the Civil code, the Code of procedure,
and the Commercial code. The sparsity and diversity of
positive rules have led to greater development of this important subject through jurisprudence and doctrine than
probably of any other field of French private law.
Indeed, the development of the subject in France has
evoked the admiration of as eminent an American authority
as Professor Lorenzen, who in an article on French rules
of conflicts of lawvs (36 Yale Law Journal 731) says that
" some of the greatest names connected with its science are
French."
The standard current treatises are those of Professor Weiss
and of the late Professor Pillet, both of Paris. The two
treatises reflect to a certain extent the personal views of their
authors and for that reason are to be used with some degree
of care in so far as exposition of modern French law is concerned. The Traite theorique et pratique 93 of Professor
Weiss was originally intended to consist of seven volumes,
of which six were published between 1907 and 1913. An
older work than that of Professor Pillet, it is perhaps better
known and for that reason enjoys a greater degree of popularity. The Traite pratique 94 by Professor Pillet consists
of two volumes published in 1923-24. The subject matter
covered includes, in addition to the usual topics, such as
nationality, domicil, jurisdiction, capacity, property, procedure, and execution of foreign judgments, a valuable discussion of international commercial law. The treatise itself
was written largely from the point of view of a practical
work intended to develop the principles contained in an older
theoretical work by the same writer, Principes de di'oit
international prive95 which, in addition to being a capital
3 Weiss, A. Traite th6orique et pratique de droit international
prive. 2. ed. Paris, Recueil Sirey, 1907-13. 6 v.
94 Pillet, A. Trait6 pratique de droit international privy. Paris,
Recueil Sirey, 1923-24. 2 v.
5 Pillet, A. Principes de droit international prive. Paris, Pedone,
1903. 586 p.




PRIVATE INTERNATIONAL LAW


191


production, exercised considerable influence on French
thought in the field of private international law. Reference
should also be made here to a recent two-volume collection of
essays and notes by Professor Pillet, published by Sirey
under the title, Melanges Antoine Pillet.
Reference is also sometimes made to a much older work,
that of Laurent, a Belgian, Droit civil international,96
which is no longer of practical value. Another old work, at
one time important, but now not often consulted, is the
Traite du droit international prive,7 which was originally
published by Foelix and later revised by Demangeat.
The number of one-volume works is exceedingly large. The
more popular are those of Professors Weiss and Pillet and
Niboyet.   The Manuel de droit international prive',9 by Professor Weiss, has gone through nine editions, and its popularity is in part due to its remarkable clarity of style. It is
not always considered to be the equal in intrinsic merit of
the recent Manuel de droit international prive,99 by Professors Pillet and Niboyet. The older Precis de droit international prive', by Professor Despagnet, a fifth edition of
which was published in 1909 under the direction of Professor de Boeck, and the Cours clementaire de droit international privo2 of Professors Surville and Arthuys, a seventh edition of which appeared in 1925, are also important
works. The latter in particular is informative and comprehensive. It should be remarked, however, that neither
work fully expresses modern thought in the solution of prob9 Laurent, F. Droit civil international. Bruxelles, Bruylant;
1880-81. 8 v.
9 Foelix, J. Trait6 du droit international priv6, ou, Du conflit
des lois de diff6rentes nations en matiere de droit priv6. 4. ed. rev.
par Demangeat. Paris, Marescq, 1866. 2 v.
8 Weiss, A. Manuel de droit international priv6. 9. 6d. Paris,
Recueil Sirey, 1925. 737 p.
9 Pillet, A., et Niboyet, J. Manuel de droit international privd.
Paris, Recueil Sirey, 1924. 792 p. 2. ed. Niboyet, J. P. Manuel de
droit international Driv6. 1928. 1.045 x.
1Despagnet, F. Precis de droit international prive. 5. ed. rev. par
Ch. de Boeck. Paris, Larose & Tenin, 1909. 1,250 p.
2Surville, F., et Arthuys, F. Cours 6elmentaire de droit international priv6. Droit civil. Procedure. Droit commercial.  7. 6d.
Paris, Rosseau, 1925. 948 p.




192


GUIDE TO THE LAW OF FRANCE


lems of private international law. The Manuel,' by Professor Valery is very good and represents in a realistic
manner French jurisprudence, but for some reason it failed
to obtain the same degree of popularity as the works which
have already been mentioned. The recent Precis de droit
international prive,4 by Professor and Judge Arminjon, is
generally considered to be very good, but somewhat difficult
to read. The older short work of Audinet, Principes elenmentaires, while of value, is not considered to be as important
as those of more recent date.
There are two important periodicals devoted to private
international law, which in addition to leading articles contain the important court decisions. The oldest is the Journal
du droit international prive, now called Journal du droit
international. It was founded in 1874 by Clunet and is
usually cited under the name of its founder. Its analytical
indices are important. The well-known Revue de droit international prive, formerly the Revue de droit international
prive et de droit penal international, was founded by Darras
in 1905 and since 1909 has been under the direction of Professor de Lapradelle, of the University of Paris. The latter
review is often cited under the name Darras, but at present
more usually under the name de Lapradelle.
Attention should also be called to an encyclopedia of private international law 6 which was begun by Professor de
Lapradelle in 1914. Eight volumes have appeared to date;
a ninth is announced as in press.
In addition reference should be made to a series of lectures on international unification of the rules of private
international law, delivered by Professor Demogue in
Buenos Aires in 1927.7
3Valery, J. Manuel de droit international prive. Paris, Fontemoing, 1914. 1,391 p.
4Arminjon, P. Precis droit international prive. 2. ed. Paris,
Dalloz, 1927-29. 2 v.
5Audinet, E. Principes 6elmentaires de droit international priv(e.
2. ed. Paris, Pedone, 1906. 692 p.
6 Repertoire de droit international priv6 et de droit penal international, pub. par. A. de Lapradelle. Paris, Recueil Sirey, 1914-30.
8 v. Present collaborator, J. P. Niboyet.
'Demogue, R. L'unification internationale du droit international
prive. Paris, Rosseau, 1927. 205 p.




PRIVATE INTERNATIONAL LAW


193


The article of Professor Lorenzen (36 Yale Law Journal
731), just referred to, is intended to be a part of a series
of articles dealing with the treatment of conflict of laws
problems in France; when completed, it should be an extremely valuable exposition of French law.
Under the impression that the enjoyment of civil rights Nationality
by nationals is the most important incident of nationality,
the authors of the Civil code placed the rules relating to
French nationality in the Code (arts. 8 et seq.). The
original provisions have been amended or changed from
time to time, notably in 1889, and were recently the subject of important legislation which brought about profound
changes in the prior attitude of the legislature. This legislation (act of August 10, 1927) is believed to be of sufficient
importance to warrant some comment.
Reform of the laws of nationality had been considered
for a number of years. A project was proposed as early
as 1913, but it was during the war that the first active steps
were taken. Inspired by the spirit of hostility to foreigners
engendered by the war, two projects were proposed in 1916
and 1917, the second being the result of the labors of the
Societe d'etudes legisatifs (Bulletin 1917-18, pp. 23-82,
283-291.) These were adopted by the Senate in 1922
and ratified by the Chamber, but with sufficient modifications to require that the bill be sent back to the Senate. In
the interval a number of other bills were voted on but without definite results.
In 1924 a new bill was adopted by the Senate. Accepted
by the Chamber in 1927, it thus became a part of French
law. The present law, instead of being less liberal than
that previously in force, is marked by a spirit of liberality
in enlarging the privilege of acquiring French nationality
through birth and naturalization.
As already stated, the French rules of nationality were
originally placed in the Civil code. The present law is intended to group them under a separate heading independent
of the Code and repeals the diverse articles and the act of
1889 as well as all prior laws in conflict with the new act.




194


GUIDE TO THE LAW OF FRANCE


The act itself is set forth in full in the 1928 Dalloz pocket
edition of the Civil code (Petit Dalloz.)8
The principal changes include retention of French nationality by the French wife on marriage to an alien, extension
of the circumstances under which French nationality can be
acquired through birth on French soil, facility of natuiralization, and permanent organization of the machinery for
forfeiture of nationality by naturalized citizens not worthy
of citizenship.
Prior to 1889 a French woman lost her nationality on marriage to an alien. Under the act of that year she lost her
nationality only if the law of her husband's state permitted
her to acquire his nationality. The present law permits her
to retain French nationality or, perhaps more accurately,
provides (art. 8) for the retention of French citizenship in
the absence of a declaration to the contrary, on marriage.
Closely connected with conservation of citizenship, on marriage, is the provision of article 1 of the new law which confers irrevocable citizenship on a child born on French soil of
a French mother. A child born on French soil of a mother
also born in France but not French at the time of the birth
of the child may repudiate French citizenship (art. 2).
Naturaliza- The Civil code as originally adopted made no provision
tion    for naturalization. The matter was successively regulated
by a decree of 1809, another of 1848, and a law of 1849.
This latter law was replaced by an act of June 29, 1867,
which, as incorporated in the Civil code (art. 8) in 1889,
constituted the fundamental legislation until 1927. The
legislation of 1927 is marked by an unusual degree of
liberality. The length of residence required is three years,
and in a number of instances a residence of one year is sufficient. In addition, the provisions of article 13 of the
Code with respect to domicil in France were repealed so
that the usual period of residence required is 3 years instead of 3 or 10 years, depending on admission to French
domicil.
Professor Niboyet, of the Strasbourg Faculty, in a recent
commentary on the new law, gives an interesting account
8 Dalloz. Code civil. Paris, Dalloz, 1928. 933 p. The act appears
at p. 23. See also Journal officiel, August 10, 1927.




PRIVATE INTERNATIONAL LAW


195


of the reasons for its liberality. During the war the general tendency in France was one of restriction upon the
acquisition of French nationality, it being thought that the
existing laws rendered its acquisition too easy. The change
in attitude was largely the result of the enormous increase
in foreign population after the war. The policy of the
new legislation is one of assimilation of this population.
The new law has been the subject of a number of commentaries. That of Professor Niboyet, which has already
been referred to, was recently published as a Supplement
to the Manuel de droit international prive 9 by Professors
Niboyet and Pillet. Professor Valery is the author of
another, published under the title, La nationalite franfaise.10 Mention should also be made of other commentaries by Audinet 1 and Louis-Lucas.l1a In addition, naturalization under the act of 1927 is dealt with in a manual for
foreigners in France, by J. Lidji and A. Le Moal.12
The original Civil code, as compared with the liberality of Rights and
the Revolution, was marked by a spirit of hostility toward ofPFor
foreigners. But such provisions as articles 726 and 912, eigners
dealing with limitations on the privilege of foreigners to
inherit and to receive gifts inter vivos, were repealed by a
law of July 14, 1819, which accorded full capacity in these
respects, with an important qualification as to succession by
foreigners whose national laws do not permit French citizens
to inherit (droit de prelevement).
Other privileges have been accorded foreigners through
express legislative enactments. Protection of patents, designs, trade-marks and literary and artistic property has
' Niboyet, J. P. Supplement au Manuel de droit international priv6
de Pillet et Niboyet. Commentaire de la loi sur la nationality du 10
aoflt 1927. Paris, Recueil Sirey, 1928. 167 p.
10 Valery, J. La nationalit6 frangaise (Commentaire de la loi du 10
aoft 1927). Paris, Librairie g6n~rale de droit et de jurisprudence,
1927. 88 p.
1Audinet, E. La nationalite frangaise. ]tude critique de la loi
du 10 aoft 1927. Paris, Sirey, 1928. 47 p.
ha Louis-Lucas. La nationalite frangaise. Paris, Recueil Sirey,
1929. 2 p.., 343, [1] p.
'Lidji, J., et Le Moal, A. Manuel de l'6tranger en France. La
naturalisation selon la loi du 10 aott 1927. Paris, Sirey, 1928.
174 p.




196


GUIDE TO THE LAW OF FRANCE


been extended by special legislation (see Literary and industrial property, supra). Likewise, foreign workers injured in France enjoy the privileges of the Workmen's
compensation act of 1898 as long as they remain in France.
Some discussion of these legislative provisions may be found
in the various general treatises and manuals. In this connection it should also be noted that certain callings are prohibited to foreigners (See Pillet and Niboyet, Manuel, p. 265
et seq.) They may not practice law as advocates, direct
(gerer) the publication of a newspaper, take part in the
administration of a trade-union or direct the management
of a private educational institution. Likewise, fishing in
French coastal waters is reserved to French citizens. There
are also regulations concerning the practice of pharmacy,
based on reciprocity, and a French diploma is required in
order to practice medicine. In addition, French law requires that three-fourths of the crew of a French merchant
vessel be French and that one-half of its owners be French.
With respect to civil rights and privileges in general, the
important positive provision is article 11 of the Civil code,
which provides for the extension of the same civil rights and
privileges to foreigners in France as are accorded in their respective countries to French citizens by treaty. This article
has been the subject of an extensive literature, particularly
with respect to the interpretation of the term civil rights and
privileges (droits ctvils). According to Professors Pillet
and Niboyet (Manuel, p. 76 et seq.) article 11 has received
three distinct doctrinal interpretations.
Professor Demolombe in his Traite de la publication, des
effets et de l'application des lois13 (v. 1, p. 362 et seq.)
takes the position that the term droits civils is the equivalent
of private civil rights and that in the absence of treaty the
foreigner in France does not enjoy any private rights, with
certain exceptions. This view has now been universally rejected.
"3Demolombe, C. Cours de Code Napoleon. Vol. I. Traite de la
publication, des effets et de l'application des lois en general. 6. Ed.
Paris, Lahure, 1880. See Civil law for a discussion of Demolombe's
work on the Civil code.




PRIVATE INTERNATIONAL LAW


197


In their general treatise on civil law (5th ed., v. 1,
p. 497), Aubry and Rau take the position that article 11 was
intended to apply only to such rights or privileges as are
generally denied foreigners under the principles of international law as accepted generally by civilized nations, foreigners being permitted to enjoy other privileges, even in the
absence of treaty. This view is often represented as that
taken by French courts.
The third view is referred to as that of Demangeat and
Valette (cf. Demangeat, Histoire de la condition civile des
strangers en France 14 and Valette, Explication sommaire 15)
and is actually advocated by Professors Surville and Arthuys and Despagnet in their manuals on private international law. Under this view the term droits civils in article
11 only applies to such rights or privileges as are expressly
denied foreigners.
According to Professors Pillet and Niboyet, French jurisprudence first followed closely the theory of Demolombe,
then adopted that of Aubry and Rau and now seems to be
leaning towards the views of Demangeat and Valette.
Mention should be made of the fact that discussions of
the problems arising out of the application of article 11
appear in the treatises on civil law as well as in those on
private international law. An extensive discussion may be
found in Aubry and Rau (v. 1, p. 471, et seq.). There
is also a recent text devoted to civil capacity of foreigners in
France, by Batifol.l1
Before leaving the subject of privileges of foreigners in
France, attention should again be called to Professor Pillet's work on juristic persons in private international law,l6
already referred to in connection with associations doing
business in France. This work, it will be recalled, contains
4 Demangeat, C. Histoire de la condition civile des strangers en
France dans l'ancien et dans le nouveau droit. Paris, Joubert, 1844.
424 p.
5 Valette, A. Explication sommaire du livre premier du Code Napoleon et des lois accessoires. Paris, Marescq, 1859.  x, 448 p.
15a Batifol, H. La capacite civile des Strangers en France. Paris,
Recueil Sirey, 1929. 322 p.
'1 Pillet, A. Des personnes morales en droit international prive.
Paris, Recueil Sirey, 1914. 434 p.




198


GUIDE TO THE LAW OF FRANCE


a valuable discussion of the privileges of foreign corporations in France.
Mention might also be made here of a recent short work
by M. Lachaze 17 dealing with aliens under French public
law.
Conflict of  Conflict of laws in the narrower sense concerns the probLaws
lem of determining the proper rule of internal law (French
or foreign) to be applied to a fact situation by a French
court when some or all of the operative facts are non-French.
The French approach to the problem is different from that
ordinarily employed by a common-law court. This difference can, perhaps, be best pointed out by reference to concrete
cases.
French and New York rules with respect to both formal
and substantive validity of a marriage are different. New
Yorkers marry in France or French citizens marry in New
York. Having determined that foreigners enjoy the privilege of marrying in France, a French court would apply
New York law with respect to the capacity of New Yorkers
to marry in France. Likewise, because of a provision in
article 3 of the Civil code, the capacity of French citizens
to marry in New York would be determined by French law.
In both cases New York and French law would be given
extraterritorial effect as the national law of the parties.
There are several different theories as to the circumstances
under which law   should be given extraterritorial effect.
Some reference to these theories may be of value.
During the pre-code period when customary law varied
from province to province, not only in France but on the
entire continent, the interprovincial conflicts of laws gave
rise to three schools of thought usually designated as the
Italian, French, and Dutch schools, all of which received
extensive discussion in Professor Laine's important and
classical work, Introduction au droit interna.tiona~l prive.l8
The French school, represented in the sixteenth century by
D'Argentre and DuMoulin and in the eighteenth by Froland,
17Lachaze, M. Les etrangers dans le droit public franqais. Paris,
Dalloz, 1928. 260 p.
1 Lain6, A. Introduction au droit international privY. Paris,
Pichon, 1888-92  2 v.




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Boullenois, and Bouhier, with varying degrees, may be said
to have had as its underlying theory " reality " of law tempered by " personality." Customary laws were divided into
real and personal, the former being those pertaining to
things and the latter those pertaining to persons, and, of
course, attaching to the person wherever he might be. The
theory was that presumptively laws are real, personal laws
being the exception, but those laws which are personal are
enforceable extraterritorially, not through comity but because justice requires it. It is interesting to note that the
Louisiana Supreme Court in Saul v. His Creditors (5 Mart.
n. s., 569, 1827) had recourse to the various theories of
French and Dutch jurists in deciding a question involving
marital property rights and conflict of laws.
More recently, since codification, there have been three
theories of territoriality or extraterritoriality of law, advocated by French writers. The territorial theory, having its
origin in the Dutch school and assumed to be the AngloAmerican theory, has had but few supporters in France.
While foreign to French positive law and jurisprudence, it
had, however, the support of Foelix and more recently of
Professor de Vareilles-Sommieres (cf. Synthese du droit
inteationa,19 v. 1, nos. 117-156). The modern Italian
theory looks on law as personal, since laws are made for
persons, and consequently regards extraterritoriality as the
rule and territoriality as the exception. This theory is
usually credited to the statesman Mancini, and numbers
among its French adherents the eminent Professor Weiss,
whose treatise and manual have already been referred to.
The third view is that of Professor Pillet. Rejecting
the extremes of both the territorial and personal theories as
well as the bipartite division of the pre-code French school
into real and personal laws, Professor Pillet, like Savigny,
divides laws into two categories, those which, in their nature,
are extraterritorial and those which are territorial. He,
however, goes a step further in basing this division on the
social purposes of laws. He would seem to base extraterritoriality and territoriality on a consideration of the person
19 La Broue de Vareilles-Sommicres, G. La synthbse du droit international priv6. Paris, Pichon, 1897. 2 v.




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or persons to be benefited by a law. If it has as its purpose
the benefit of an individual, it is general in its scope and
applies extraterritorially. If it is intended to benefit the
national or collective group, it is territorial. In connection
with the different doctrinal theories which have been advanced or followed by French writers, attention should be
called to a thesis, L'evolution de la jurisprudence, by Professor Donnedieu de Vabres,20 in which the author gives an
exposition of the various views adopted at different times
by French courts with respect to problems of conflict of
laws. A very good short discussion of the different theories
may be found in the manual of Professors Pillet and Niboyet
(p. 336 et seq.).
Theory of  While two different jurisdictions may make use of the
Qualifications   same concepts when dealing with problems of conflicts of
laws, the content given them may differ. Thus, nationality,
domicil, form, capacity, procedure, etc., may be important
terms to be used in reaching results, but their meaning may
differ. So, it is often important to determine what law should
govern in defining their content. This problem, which was
discussed by Professor Lorenzen in the Columbia Law Review for 1920, under the title The theory of qualifications (20
Columbia Law Review 247), was first developed in 1899, in
such a manner as to attract attention, by Professor Bartin,
now of the Paris Law school (Clunet, 1897, pp. 225-255, 466 -495, 720-728). These valuable articles were later republished in an important work, Etudes de droit international
prive.21 Professor Bartin would ordinarily apply the law of
the forum in determining the nature of a given legal institution, but would admit two exceptions, namely, in determining
the nature of property as movable or immovable and in determining the place where a contract has been " made." The
theory developed by Professor Bartin is described by Professor Lorenzen in the article just referred to, which con20Donnedieu de Vabres, H. L'evolution de la jurisprudence francaise en matiere de conflit des lois. Paris, Rousseau, 1905. 644 p.
21 Bartin, E. tEtudes de droit international prive. Paris, ChevalierMarescq, 1899. 284 p.




PRIVATE INTERNATIONAL LAW


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tains some reference to the theories of other writers. Judge Renvoi
Arminjon's Les qualifications legales 22 is also important.
The second part of Professor Bartin's studies is devoted
to a discussion of the renvoi doctrine arising out of the difficulties encountered in determining whether, once it is found
that a foreign rule of law is competent, the foreign internal
rule or the conflict of laws rule should be applied. If an
American testator dies domiciled in France, in so far as
movables are concerned, a French court would apply his
national law in determining testate capacity, while an American court would apply the law of his domicil at the time
of his death. Immediately the question arises as to whether
a French court should refer the matter to the internal or
conflict of laws rule of his nationality, which here would be
those of his state in the United States. If reference is made
to the latter the matter would be referred back to the law of
France (the domicil) for settlement.    Reference back or
renvoi was first adopted in France in the famous Forgo case
and since then has definitely become a part of French law.
Space does not admit of any discussion of the vast literature
relating to the doctrine. In addition to the excellent discussion by Professor Bartin just mentioned and those to be
found in the various French texts and manuals, an extensive and scholarly treatment of the problem, along with a
valuable bibliography and exposition of court decisions, may
be found in a thesis, La question du renvoi,23 published by
Potu in 1913. A valuable series of articles by Professor
Laine appeared in the Revue de Lapradelle between 1906 and
1909.24 The problem has also been discussed by a number
of American and English writers, such as Professors
22Arminjon, P. Les qualifications legales en droit international
priv6. Paris, Recueil Sirey; Bruxelles, Weissenbruck, 1923. 18 p.
(Extr. de la Revue de droit international et de legislation comparde,
1923, p. 272.)
23Potu, E. La question du renvoi en droit international priv6.
Paris, Juris-classeurs, 1913. 361 p.
4 Lain6, A. La theorie du renvoi en droit international prive. 1906,
p. 605; 1907, pp. 43, 313, 661; 1908, p. 729; 1909, p. 12. (Extr. Revue
de droit international privY.)




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Schreiber and Lorenzen and Bate and Dicey.25     In addition,
the various theories were dealt with in In re Tallmadge (181
N. Y. Supp. 336), in which the Surrogate's Court of New
York County came to the conclusion that the renvoi doctrine is not a part of New York law.
The best discussions of problems of conflict of laws in particular fields such as contracts, property, and succession are
to be found in the general treatises and manuals. A good
special study on respect for acquired rights as to movable
property was published in 1912 as a thesis by Niboyet, later
Suits by  professor at Strasbourg.20 With    respect to immovables,
and
gainst  Devin's La propriete immobiliere des etrangers en France27
foreigners is important.
Attention should be called to the provisions of articles 14
to 16 of the Civil code concerning suits by and against foreigners in France. Article 14, providing for jurisdiction of
suits brought by French citizens against foreigners, even
when not residing in France, is dealt with by Professor Bartin in his Effets internationaux des jugements 28 and again in
the twelfth volume of the fifth edition of Aubry and Rau
(no. 748). Professor Bartin's name has already been mentioned in connection with his studies on the theory of qualifications and the renvoi doctrine. Due to his standing in the
field of private international law his part in the revision of
the fifth edition of the classical work of Aubry and Rau is
particularly valuable in so far as problems in this field are
concerned. The same volume contains a discussion of article
25 Lorenzen, E. G. The renvoi doctrine in conflict of laws. 27
Yale Law Journal 508; The renvoi theory and the application of foreign law. 10 Columbia Law Review, 190, 327. Both articles give extensive bibliographies. Schreiber, Doctrine of the renvoi in AngloAmerican law. 31 Harvard Law Review 523. Also 29 Yale Law
Journal 214, 244. Bate, Th. Notes on the doctrine of renvoi in private
international law (1904). Dicey, Conflict of laws, 3d ed. (1922), p.
771 et seq.
26 Niboyet, J. Des conflits de lois relatifs a l'acquisition de la propriete et des droits sur les meubles corporels A titre particulier: etude
de droit international priv6. Paris, Larose et Tenin, 1912. 575 p.
27 Devin, J. La propriete immobiliere des etrangers en France.
Paris, Roustan, 1926. 234 p.
28Bartin, E. Etudes sur les effets internationaux des jugements.
Paris, Pichon et Durand-Auzias, 1907. v. 1. De la competence du
tribunal Stranger.




PRIVATE INTERNATIONAL LAW


203


15, providing for suit in France against a Frenchman on obligations contracted abroad (no. 748), and of article 16 providing for bond to be given by foreign plaintiffs suing in
France (no. 747). The important question of lack of jurisdiction to settle controversies between foreigners, with its
numerous exceptions, is also dealt with in the same work
(no. 748, pp. 47-62). Attention should be called to the fact
that the entire subject is dealt with specially in volumes 5
and 6 of Professor Weiss's treatise. Reference should also
be made to Professor Pillet's Jurisdiction in actions between
foreigners, in 18 Harvard Law Review 325, and to Professor
Beale's Jurisdiction of courts over foreigners, in 26 Harvard
Law Review 193. Mention might be made of two older
French works, Bonfils' De la competence des tribunaux ~0
and a similar work by Lachau.3' International conventions
concerning jurisdiction and execution of judgments are contained in a collection published by Professor Pillet in 1913.32 Foreign
The only positive provisions of French law     relative toJudgments
the execution and enforcement of foreign judgments in
France are those contained in articles 546 of the Code of
procedure and 2123 of the Civil code, with the result that
the insufficiency of legislative texts has left the matter
largely in the hands of the courts. In addition to the treatment to be found in texts on conflict of laws and Professor
Bartin's work on the international effects of judgments, just
mentioned, an extensive discussion appears in Aubry and
Rau (v. 12, pp. 475-519). Execution of foreign judgments
was also   dealt with   in  De l'execution   des jugements
strangers 33 by Lachau and Daguin.
30 Bonfils, H. De la competence des tribunaux frangais f l'rgard des
Strangers en matiere civile, commerciale et criminelle. Paris, Durand,
1865. 392 p.
81 Lachau, C. De la competence des tribunaux frangais a l'rgard des
strangers en matiere civile et commerciale. Paris, Larose et Forcel,
1893. 468 p.
32Pillet, A. Les conventions internationales relatives a la comptence judiciaire et a l'ex6cution des jugements. Paris, Larose et
Tenin, 1913. 401 p.
33Lachau, C., and Daguin, C. De l'ex*cution des jugements etrangers d'apres la jurisprudence frangaise.  Paris, Larose et Forcel,
1889. 240 p.
49926~-31 —  14




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PUBLIC LAW
If internal public law is defined so as to comprise all the
rules regulating the relations between a state and its citizens
or subjects, then criminal law and procedure and civil procedure, at least that portion pertaining to courts, their jurisdiction and organization, should be included. But it has been
found to be more convenient to discuss these topics separately. This leaves for discussion under the present heading
constitutional law, administrative law, and public finance
and taxation. Before turning to these separate topics it
might be worth while to call attention to several short texts
which give a general notion of French government and public law.
The principal elementary student works on public law
are those of Professors Renard,34 Moye,35 Nezard,36 and
Bonnard.37 The Cours el4mentaire de droit public, by Professor Renard of the Nancy Law School seems to be the best.
An even more elementary but comprehensive work on
French government is Professor Barthelemy's Le gouvernement de la France,38 an English translation of which was
published by J. Bayard Morris, of Oxford, under the title
The government of France.39     Another elementary work on
French government which is worth consulting is the English translation by Raymond Poincare's How France is governed,40 originally published for the use of non-university
students.
3 Renard, G. Cours le6mentaire de droit public; droit constitutionnel, droit administratif, droit financier. Paris, Recueil Sirey,
1922. 361 p.
85Moye, M. Precis elementaire de droit public frangais. 2. ed.
Paris, Recueil Sirey, 1920. 289 p.
3Nezard, J. Elements de droit public. 2. ed. Paris, Rousseau,
1922. 403 p.
s Bonnard, R. Precis elementaire de droit public. Paris, Recueil
Sirey, 1925. 376 p.
8 Barthelemy, J. Le gouvernement de la France; tableau des institutions politiques, administratives et judiciaires de la France contemporaine. Nouv. ed. Paris, Payot, 1925. 244 p.
9 Barth6lemy, J. The government of France. Translation by J.
Bayard Morris. London, G. Allen & Unwin, [1924]. 222 p.
0 Poincare, R. How France is governed. Tr. by Bernard Miall.
New York, R. M. McBride & company, 1919. 336 p.




PUBLIC LAW


205


A more scholarly and valuable work on public law in
general is Professor Hauriou's Principes de droit public.41
The general theory of the state, constitutional law, and administrative law are also dealt with in a recent work by X.
Combothecra.42  In addition, attention should be called to a
collection of essays on topics of public law, by a number of
French and foreign writers, in commemoration of the late
Professor Hauriou.42a
From a conception of sovereignty and of the state which
can be expressed in the maxim, "I am the State," or even
from the conception as developed in Rousseau's Du contrat
socialc to modern conceptions of limited sovereignty, the
functional state, and state responsibility for injuries committed by officers, is a long step. The French Revolution
brought about fundamental changes in the overthrow of
the old regime, and while there has from time to time been
temporary reaction, the evolution in governmental and political theories in France has witnessed a gradual but steady
march to a new order in political philosophy. A number of
writers give to sovereignty a changed content. According
to some it is no longer a workable concept. A new doctrine
of state responsibility has been evolved, and with it administrative law has been developed to a point not yet attained
in English and American jurisdictions. Much of the literature produced in France in the last few years is of particular value, not only because it gives an exposition of French
public law, but because it contains so much that represents
an antithesis to classical theories. To some, perhaps, it
embodies ultra modern thought in the problems of the State.
Professor Duguit, dean of the Law School of the University
of Bordeaux, in a small work entitled Les transformations
du droit public,43 gives an account of the changes which
have been taking place. While by no means acceptable to all,
his ideas on the change from the imperialistic conception of
4 Hauriou, M. Principes de droit public. 2. ed. Paris. Recueil
Sirey, 1916. 828 p.
4 Combothecra, X. Manuel de droit public gen6ral du monde
civilise. Paris, Sirey, 1928. 365 p.
42a Mlanges Maurice Hauriou. Paris, Sirey, 1929. 832 p.
43 Duguit, L. Les transformations du droit public. Paris, Colin,
1913. 285 p. Reprint 1921.




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GUIDE TO THE LAW OF FRANCE


sovereignty to public service as the function of the State,
the development of administrative law and state responsibility, are well worth considering as a background to a study
of French public law. To these subjects we shall recur.
Before passing on to constitutional law, attention should
be called to a comprehensive collection of political and administrative laws, Code des lois politiques et administratives,44 which was published in parts between 1887 and 1905.
Mention should also be made here of the principal periodicals
devoted to public law in general. Of these the most important is the Revue dua droit public et de la science politique,
now under the direction of Professor Jeze. Other reviews
are the Revue des sciences politiques and Revue politique et
parlementaire. In addition, useful articles appear from time
to time in the periodicals discussed in connection with civil
law.
CONSTITUTIONAL LAW
The history of constitution making in France begins
with the Constitution of September 3, 1791, adopted by the
Constituent Assembly as the first written constitution, and
ends with the constitutional laws of 1875, which, as revised,
constitute the cornerstone of the present political scheme.
In the introduction to his work on French government, just
referred to, Professor Barthelemy calls attention to the fact
that nearly all the subsequent governments have left their
impression on the administrative foundation built by
Napoleon, with the result that French institutions do not
present "the appearence of a fine, foursquare building,
whose parts are all harmoniously arranged according to a
preconceived plan."' There has been, however, when one
considers the numerous political changes of the last century, a remarkable continuity and adaptation of the older
foundation to new needs.
The present constitutional organization was not provided
for in one document but in five separate laws enacted by
the National Assembly during the course of 1875. Of
44 Dalloz. Les codes annot6s d'apres la doctrine et la jurisprudence:
Code des lois politiques et administratives. Paris, Dalloz, 1887-1905.
6 v.




CONSTITUTIONAL LAW


207


these five laws only three received constitutional form. The
other two, concerning the election of senators and deputies,
were subjected to the same conditions as ordinary legislation. It is an interesting fact that, while the Third Republic has been longer lived than any other government since
the Revolution and now seems destined to be the permanent
form of government, the assembly which created it was
largely anti-republican and monarchist. At the same time
all republicans of every shade were willing to lay aside their
particular beliefs in order to establish a republican form
of government as a fact, with the result that the Constitution of 1875 represents a compromise between conflicting
traditions of monarchy and republic which was, when
adopted, considered to be temporary; by monarchists, as an
expedient to await the proper moment for a return to
monarchy; by republicans, as a makeshift until the Republic could be placed on a firm foundation. The most important revision since 1875 was that of 1884.
The texts of the various constitutions and political laws
since 1789 are contained in Les constitutions de la France 45
originally published by Professors Duguit and Monnier.
A fourth edition was recently published by Professor Duguit, now dean of the law school of the University of Bordeaux. In addition to the texts, this work contains a section
giving the historical background of each of the constitutions.
The two great classics on French constitutional law are
Professor Esmein's Elerments de droit constitutionnel 46 and
Professor Duguit's Traite de droit constitutionnel.47  Both
works are devoted in large part to theory and represent extremely interesting and opposing points of view. The former, originally the work of Professor Esmein of the Paris
Law School and recently revised by Professor Nezard of the
law school of the University of Caen, follows in the main
5 Duguit, L., et Monnier, H. Les constitutions et les principales
lois politiques de la France depuis 1789. 4. ed. Paris, Librairie gOnerale de droit et de jurisprudence, 1925. 385, 61 p.
4" Esmein, A. IElments de droit constitutionnel frangais et compare.
8. ed. rev. par. H. Nezard. Paris, Recueil Sirey, 1927-28. 2 v.
4T Duguit. Traite de droit constitutionnel. 2. ed. Paris, de Boccard,
1921-25. 5 v.




208


GUIDE TO THE LAW OF FRANCE


classical thought. Consisting of two volumes, the first is devoted to a comparative study of the underlying theories of
the political institutions and laws of western Europe; they
are found to be derived from two sources, the English constitution and the French Revolution, along with the movement of ideas which preceded the latter. With these two
sources as a background, but with copious references to the
institutions and theories of other countries, this volume is
taken up with a discussion of representative government, the
bicameral legislative system, parliamentary government,
national sovereignty, separation of powers and individual
liberties. The second volume is devoted to the French constitutional systemn. Basing their theories of the state on
sovereignty and personality as fundamental, Professors
Esmein and Nezard reject the theories of Professor Duguit
as contrary to the outstanding principles on which the public
law of France and a large part of the civilized world have
been based since the American and French Revolutions.
The treatise by Professor Duguit, dean of the law school
of the University of Bordeaux, consists of five volumes, of
which the first two are devoted to general theory, the third
mainly to State responsibility, and the last two to French
political organization and political liberties. The general
survey contained in the last two volumes is an excellent
exposition of French institutions and liberties. The first
three volumes deal with the various doctrines developed by
Professor Duguit in his earlier works, all of which have
been mentioned in connection with the chapter on legal
philosophy.48 In addition, the third volume gives an extremely valuable exposition of the principles of administrative law. It is in his rejection of the classical concept of sovereignty and the personality of the state that
Professor Duguit deserves his reputation as an ultramodernist. Probably no French writer on public law has
been as influential with the younger generation, and certainly the theories of no modern French writer have been
as much discussed, with both praise and condemnation.
To one unacquainted with French political thought the
48 See Legal philosophy. Pages 43-45. notes 96 et seq.




CONSTITUTIONAL LAW


209


discussion in the first part of his work should be of particular value because of his searching criticism of accepted
doctrines, with full bibliographic notes, his answers to his
critics, and his exposition of his own ideas.
Another important work is the Traite elmentaire,9 by
Professors Joseph Barthelemy, of the Paris Law School,
and Paul Duez, of the Law faculty of the University of
Lille. This one volume text devotes but little space to
theory, and gives in convenient form an excellent outline of
the French constitutional organization. The Precis de droit
constitutionznel,5  by Professor Hauriou, dean of the law
school of the University of Toulouse, is an important students' text.
There are several other texts designed primarily for the
use of students. The Manuel 51 by Professor Duguit gives a
summary of the material discussed in his treatise. Professor
Hauriou is also the author of a later elementary work,
Precis elementaire.52  Reference is sometimes made to the
works of Professor de Lapradelle,53 who has already been
mentioned in connection with conflict of laws, and of Professor Moreau.54 Neither work has, however, the reputation
of the elementary treatises of Professors Duguit and
Hauriou.
Logically, the different topics dealt with in works on constitutional law should be discussed at this point. In order
to avoid repetition, it is believed to be more expedient to
postpone their discussion until some reference has been made
to the outstanding works on administrative law.
4 Barth6lemy, J., et Duez, P. Trait6 61ementaire de droit constitutionnel. Paris, Dalloz, 1926. 713 p.
0Hauriou, M. Precis de droit constitutionnel. 2. Md. Paris, Recueil Sirey, 1929. 760 p.
"1Duguit, L. Manuel de droit constitutionnel. 4. ed. Paris, de
Boccard, 1923. 605 p.
I Hauriou, M. Precis lelmentaire de droit constitutionnel. Paris,
Recrueil Sirey, 1929. 332 p. La licence en droit; see Legal education, page 31, note 57.
3 Lapradelle, A. G. de. Cours de droit constitutionnel. Paris,
Pedone, 1912. 592 p.
a Moreau, F. Precis 616mentaire de droit constitutionnel. 9. ed.
Paris, Recueil Sirey, 1921. 595 p.




210


GUIDE TO THE LAW OF FRANCE


ADMINISTRATIVE LAW
Administrative law in France comprises, in the main,
that branch of public law which regulates the organization
of the administrative authorities, their powers, and their
relations to each other and to private individuals. Separate and distinct from the civil law, it is administered by a
separate body of tribunals which have jurisdiction over controversies between the administration and private individuals and over conflicts between administrative and other
courts.
The general outlines of French administrative law     are
given in an article by Professor Garner, of the University
of Illinois, in the Yale Law Journal for 1923-24 (v. 33,
p. 597). This article seems to be the best general survey
published in English. Professor Dicey of Oxford has also
dealt with the subject. He was the author of an article,
" 'Droit adrministratif ' in modern French law," published in
the Law   Quarterly Review   in 1901 (v. 17, p. 302). He
devoted a chapter of his Lawl of the Constitutionr5 to
French administrative law. Some discussion may be found
in Professor Goodnow's Comparative administrative law.56
Due to its age this work does not reflect the more modern
developments.
The classical modern French works are those of Professors Hauriou, dean of the Law School of the University
of Toulouse, and Berthelemy, dean of the Law School of the
University of Paris.
Treatises  The Preis de droit administratif 57 by Professor Hauriou,
now in an eleventh edition, has the reputation of being
original and scholarly, but somewhat abstract and difficult
to read. Professor Berthelemy's Traite e'eleentaire 58 is gen5 Dicey, A. V. Introduction to the study of the law of the Constitution. 8th ed. 1915. Reprint 1924. London, Macmillan and company. 577 p.
56 Goodnow, F. J. Comparative administrative law. Student's ed.
New York and London, Putnam's sons, 1903. 2 v. in. 1.
57 Hauriou, M. Precis de droit administratif et de droit public.
11. ed. Paris, Recueil Sirey, 1927. 1068 p.
58 BerthElemy, H. Traite 1l6mentaire de droit administratif. 11.
ed. Paris, Rousseau, 1926. 1174 p. Supplement 1927. 148 p.




ADMINISTRATIVE LAW


211


erally considered to be an excellent practical guide as well
as a useful theoretical work. Both works take up administrative organization, public service, judicial control of administrative acts and state responsibility.
Another important treatise is that of Professor Jeze, Les
principes gengraux du droit admvinistratif,59 which, influenced by the earlier works of Professor Duguit, was first
published in 1904 in pamphlet form, was revised and republished in a second edition in 1914, and in a third, in 1925 -1930. These editions are devoted to a technical study of administrative law, of governmental agents and their acts, and
of the theory of redress. Reference is also sometimes made
to  Professor Moreau's Mac     uel de droit administratif,60
which, while less valuable than the works already mentioned,
is also important.  The Traite elementaire 61 by Simonet, at
one time a public official, was formerly very popular in administrative circles, but is now of less importance.
Mention might well be made of several books for students
which, while informative, make no pretense of being other
than elementary. The most important are the Precis by
Professors Hauriou,62 Rolland,63 and Bonnard.64
Some reference should also be made to a number of classics
which played an important part in the development of adJeze, G. Les principes g6n6raux du droit administratif:
-. t. 1. La technique Juridique du droit public francais. 3. ed.
Paris, Giard, 1925. 482 p.
-. t. 2. La notion de service public.-Les individus du service public le statut des agents publics. 3. Ad. Paris, Giard, 1930. 848 p.
-. t. 3. Le fonctionnement des services publics. 3. ed. Paris,
Giard, 1926. 540 p.
~Moreau, F. Manuel de droit administratif. Paris, Fontemoing,
1909. 3 p. 1., 640 p.
l Simonet, J. Trait6 616mentaire de droit public et administratif.
4. 6d. Paris, Pichon, 1902. 965 p.
" Hauriou, M. Precis Elementaire de droit administratif. Paris,
Recueil Sirey, 1925.  La licence en droit; see Legal education.
Page 31, note 57.
3 Rolland, L. Droit administratif. One of the Petits precis Dalloz;
see Legal education. Page 31, note 57.
"Bonnard, R. Precis elementaire de droit administratif. Paris,
Recueil Sirey, 1926. See La licence en droit. Page 31, note 58.




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GUIDE TO THE LAW OF FRANCE


ministrative law and are still sometimes cited.     The Cours
de droit administratif65 by Professor Ducrocq, of Paris,
consists of seven volumes and, in addition to administration,
deals with general principles of public law and finance.
Professor Dufour's Traite general 66 consists of 12 volumes,
including a 4-volume supplement published in 1901 by
Taudiere. The Trait 67 by Professor (and Senator) Batbie
consists of nine volumes, the eighth being an encyclopedia
of administrative law. Another work to which reference is
sometimes made is Aucoc's Conferenwes sr           'administration.68
Encyclo-   There are several encyclopedias devoted entirely to administrative law.   The most important is the Repertoire du
droit admiinistratif 69 which was founded by Bequet in 1882
and published between 1883 and 1914 with the collaboration
of a number of public officials.  It is usually cited under the
name of its founder.    Reference is often made to the Dictionnaire de Vadministration,70 by Block, a fifth edition of
which was published in 1905. A supplement was added in
1907. A similar work is that of Blanche,71 a second edition
5 Ducrocq, T. Cours de droit administratif et de legislation francaise des finances, avec introduction de droit constitutionnel et les
principes du droit public. 7. Id. Paris, Fontemoing; Rlvibre, 1897 -1905. 7 v.
'Dufour, G. Trait6 general de droit administratif applique. 3.
Ed. avec supplement par Taudiere. Paris, Marchal et Billard, 1870 -1901. 12 v. including Supplement of 4 v.
' Batbie, A. Traits th6orique et pratique de droit public et administratif. 2. ed. Paris, Larose et Forcel, 1885-94. 9 v. including Supplement by Boillot.
6S Aucoc, L. Conferences sur l'administration et le droit administratif faites A l'PEcole des ponts et chaussees: v. 1, Organisation et
attributions des pouvoirs publics. 3. ed. Paris, Dunod, 1885. v.
2, Regles generales relatives a l'execution des travaux publics.
Service des ponts et chaussees. Finances publiques... 3. ed.
Paris, Dunod, 1886. v. 3, Des routes nationales et departementales... 2. ed. Paris, Dunod, 1882.
GBedquet, Laferriere and Dislere.  Repertoire du droit administratif. Paris, Dupont, 1882-1914. 28 v.
T Block, M. Dictionnaire de l'administration francaise. 5. ed.
by E. Maguero. Paris, Berger-Levrault, 1905. 2 v.   Supplement.
1907. 112 p.
71Blanche, A. Dictionnaire general d'administration. Nouv. &d. par
de Mouy. Paris, Dupont, 1904. 2 v.




ADMINISTRATIVE LAW


213


of which was published in 1904. Both are considered to
be somewhat old for practical purposes, but they are still
usable. Good discussions of administrative matters are also
to be found in the Repertoires of Dalloz and FuzierHerman.
Laws and decrees pertaining to administrative matters Codes
are collected in convenient form  in the Code administrtatif 72 published by Dalloz and forming a part of the Petite
collection Dalloz and in the Code administratif 73 compiled
by Delpech and forming a part of the Collection des Petits
codes Carpentier.
Attention should be called to the reports of administrative decisions, Recuei des arrets du Conseil d'~tat, which
were begun in 1821 and now appear monthly. The Reueil
is sometimes cited under the name Panhard, but more
usually under the name Lebon. Administrative decisions
of the Council of State prior to 1839 were also collected in a
7-volume work by Roche and Lebon published between 1839
and 1846. It should be recalled that both Dalloz and Sirey
devote a part of their Reoueils to administrative decisions.
In connection with administrative decisions, an important
contribution on administrative law will be found in a collection of notes by Professor Hauriou on decisions of the Council of State and Tribunal of Conflicts, contributed between
1892 and 1928 to the Recueil Sirey.73a
The organization of the administrative hierarchy in AdministraFrance is a matter of detail which falls outside of the scope itigan
of this book. National, regional, and local administration
are dealt with in the works on administrative law which
have already been referred to. Very good discussions may
be found in Professor Berthelemy's treatise and Professor
Hauriou's Precis.
Some reference, however, should be made to the distinguishing features of French administrative law.
Dalloz. Code administratif. Paris, Dalloz, 1928. 1389 p.
73 Delpech, J. Code administratif, avec Supplement. Paris, Recueil
Sirey, 1928. 932 p. Supplement, 61 p.
78a Notes d'arrets sur decisions du Conseil d'Itat et du Tribunal
des Conflits publies au " Recueil Sirey " de 1892 A 1928 et classes par A.
Hauriou. Paris, Sirey, 1929. 3 v.




214


GUIDE TO THE LAW OF FRANCE


Tribunals  Unlike the practice of Anglo-American jurisdictions of
submitting controversies arising out of the operation of the
public service to the ordinary courts, in France, suits of this
kind when against the Government, are usually within the
jurisdiction of separate administrative tribunals, whose personnel is drawn from the administrative organization. In
view of this fact, it may seem to an Anglo-Saxon something
of a paradox to say that the individual is probably better
protected against the arbitrary acts of administrative
officials than in any other country. That the latter is true
is largely due to the fact that the administrative tribunals
have been able to build up a body of case law providing
for new remedies for the protection of private individuals
with a degree of skill and ingenuity which have drawn the
admiration even of such a redoubtable critic of the French
system as Professor Dicey. Indeed, it is surprising to find
in France, where so much of the law is codified, that administrative law is almost entirely the result of judicial
decision. Leaving aside certain special courts, the admninistrative tribunals are the prefectoral councils (Conseils
de prefecture), the Council of State (Conseil d'Etat) and the
Tribunal of Conflicts (Tribunal des Conflits).
French administrative courts, with particular reference to
the Council of State and the Tribunal of Conflicts, were
described by Professor Duguit in an article appearing in the
Political Science Quarterly (v. 29, p. 385). According
to Professor Duguit the body of case law worked out by
the Council deals with three principal topics: Acts ultra
vires (exces de pouvoir); misapplication of power (detourneqnent de pouvoir) and the liability of the administration to
individuals. Under the first heading the Council annuls
such acts done under administrative authority as are in
excess of power. The only departments of the Government
which are exempt are the legislative and judicial. Even
the President is subject to the control of the Council in so
far as administrative acts are concerned. Such acts, however, as concern the relation of the President to Parliament
under the Constitution or are performed in his diplomatic
capacity are without its jurisdiction. Under the second
heading, it annuls acts which arise out of misuse of power




ADMINISTRATIVE LAW


215


(detournement de pouvoir). Misapplication of power is
present in cases where administrative acts, while not contravening any express legal provision, are performed by
administrative officials for a purpose other than that which
the law had in view when it conferred authority. It is in
the last field (governmental responsibility) that the jurisdiction of the administrative courts has received its greatest
extension within the last few years (infra).
The Tribunal of Conflicts has jurisdiction of controversies arising out of conflicts between judicial and administrative claims to jurisdiction.
Another article dealing with court control of administrative acts but not specially with organization of administrative  courts is Judicial control of administrative      and
legislative acts by Professor Garner, in the American
Political Science Review (v. 9, p. 637).
There are several French works dealing especially with
the organization, jurisdiction, and powers of administrative
courts. Though old, the Traite de la jwidiction administrative 74 by Laferriere, formerly vice president of the Council of State, is still an extremely valuable text. Long the
classic on judicial control, it is extensively employed in
administrative circles. Two recent works may be used to
supplement, if not to replace Laferriere's treatise. While
not as broad in its scope, Le controle juridictionnel75 by
Raphael Alibert, professor at the Paris School of Political
Sciences, has the reputation of containing an excellent account of jurisdiction and procedure with respect to ultra
vires acts. Professor Appleton, of the University of Lyon,
in his Contentieux administratif 70 gives an extremely valuable short account of jurisdiction, organization, and procedure
in administrative courts. In the words of the author, the
work is intended to be something more than a manual, but
something less than an encyclopedia. Both works give a
7 Laferriire, E. Traite de la juridiction. administrative et des
recours contentieux. 2. Ed. Paris, Berger-Levrault, 1896. 2 v.
75Alibert, R. Le controle juridictionnel de l'administration au
moyen de recours pour exces de pouvoir. Paris, Payot, 1926. 391 p.
76Appleton, J. Trait 6l16mentaire du contentieux administratif;
competence, juridictions, recours. Paris, Dalloz. 1927. 681 p.




216


GUIDE TO THE LAW OF FRANCE


comprehensive survey of the cases in which the administrative courts will and will not give relief.
RESPONSIBILITY OF THE STATE FOR TORTS
Returning to the three types of cases in which the jurisprudence of the Council of State has been developed within
recent years, the last, state responsibility, should be the
most interesting to the student of French public law whose
concern is primarily comparative. It is here that French
law and jurisprudence have produced doctrines which should
be applicable regardless of internal local administrative
organization. The very fact that the modern French
theory has been so largely developed by the Council of State
on its own initiative without extensive intervention of positive law is not only a refutation of criticisms of the French
system, like that of Dicey, who expressed the opinion that
an administrative court drawn from the administrative
class would favor the administration, but affords an interesting basis of comparison with the Supreme Court of
the United States whose independent position has enabled
it to develop doctrines which are of social and political as
well as judicial significance.
One may get the impression from general reading that the
French administrative courts tend to protect unduly the
official class by shifting the burden of responsibility from
the shoulders of the official to the State. This seems to be
partially responsible for Professor Walton's criticism of
-French rules of responsibility.  (French administrctive
courts aind modern French law ae to the responsibility of the
state, 13 Ill. Law Review 204.) French law with respect
to the responsibility of master and servant is, in the main,
similar to that under the common law, both master and
servant being responsible if the servant is guilty of fault
when acting in the scope of the master's business. (If anything, the responsibility of the master is more extensive
under French law.) This rule has not, however, been carried over into the field of administrative law, with the result
that if the case is one for governmental responsibility, aris



RESPONSIBILITY OF THE STATE FOR TORTS


217


ing out of official fault, the state or one of its subdivisions Personal
is alone responsible, the rule being one of non-cumulation ad fficial
Fault.
of liability. Where the official has acted on his personal Personal
account, the traditional doctrine has been that he alone is bility
responsible for his fault and may be sued in a civil court.
Whether the official is responsible or not depends on whether
he was acting officially or in his personal capacity, a troublesome question. Indeed, the difference between personal and
official fault is one of the most difficult subjects in French
administrative law. Beginning with Laferriere every writer
on administrative law has attempted to fix precisely the respective limits of each. The matter has also been dealt with
from  the point of view    of the civil responsibility of the
public servant in a number of theses, of which the more
recent are Depaule's Responsabilite des fonctionnaires,77
Nezard's Theorie jridique de la fonction publique,78 Bernard's De la responsabilite des fonctionnaires,7 Nesmes-Desmarets' De la responsabilite des fonctionnaires,80 Berteaud's
La responsabilite personnelle des fonctionnaires,81 Cot's La
responsabilite civile,s2 and Dupeyroux's Faute personnelle
et faute du service public.83 A short but valuable discussion
may also be found in the third volume (p. 269 et seq.) of
Professor Duguit's treatise on constitutional law, in which
the learned writer gives the views of various writers as well
as his own.
77Depaule, J. ~3tude historique sur la responsabilite des fonctionnaires publics en droit frangais depuis 1789. Carcassonne, A. Gabelle,
1902. 238 p.
8Ne6zard, H. Th6orie juridique de la fonction publique. Paris,
Larose, 1901. 2 p. 1., 770 p.
79Bernard, E. De la responsabilitk personnelle des fonctionnaires
administratifs dans leurs rapports avec les particuliers. Bordeaux,
1909. 214 p.
o8 Nesmes-Desmarets, R. de. De la responsabilite des fonctionnaires
de l'ordre administratif et judiciaire envers les particuliers. Paris,
Giard et Briere, 1910. 352 p.
8 Berteaud, C. De la responsabilite personnelle des fonctionnaires
administratifs envers les particuliers. Bordeaux, 1922. 158 p.
82 Cot, P. La responsabilite civile des fonctionnaires publics. Paris,
Pichon, 1922. 334 p.
83 Dupeyroux, H. Faute personnelle et faute du service public.
Paris, Rousseau, 1923. 294 p.




218


GUIDE TO THE LAW OF FRANCE


Coexistence Mention should be made of recent extension of the scope
of Civil and of state responsibility so as to impose responsibility on the
Administrative Re- state where there is personal fault. In an article appearsponibility ing in the Revue du droit public in 1914 (p. 572) Professor
Jeze, after raising the question of the propriety of the traditional doctrine that the state is not responsible when the
damage arises out of personal fault, expressed the hope that
the Council of State would extend administrative liability
so as to include responsibility where the governmental agent
acts on personal account. Subsequently, in the Lemonnier
case, decided in 1918 (S. 18-19. 3, 41; also (1918) Lebon, 772),
the Council of State seems to have followed the suggestion
of Professor Jeze in applying the doctrine of administrative
responsibility when it had already been held in a civil court,
in a case arising out of the same facts, that an official was
guilty of personal fault and therefore responsible. The
case has been commented on, notably by Professor Jeze in
the Revue du. droit public in 1918 (p. 42) and Professor
Fliniaux of Toulouse in the same review in 1921 (p. 333).
It is interesting to note, however, that neither Professors
Duguit nor Hauriou find that it necessarily detracts in any
way from the traditional doctrine, in that, under their view,
the decision (arising out of responsibility for a wound received from a shot fired at a public shooting gallery erected
at a public fete) merely recognizes responsibility for two
faults, that of the official and that of the administration,
the latter being not the fault of the official but the fault of
the administration in not adequately providing for the
proper functioning of the public service. This ingenious
explanation of Professor Duguit is supported by reference
to other cases and appears at page 478 and following, of the
third volume of his treatise on constitutional law. Some discussion and the doctrine of the question of the coexistence of
civil and administrative responsibility of the governmental
agent and the Government may also be found in the theses
of Berteaud, Cot, and Dupeyroux already referred to.
That the State should be under a duty to fulfil its contracts
would hardly be controverted to-day. Whether it should be
responsible for torts committed by officers is a matter on
which opinions differ. Anglo-American law, on the one




RESPONSIBILITY OF THE STATE FOR TORTS


219


hand-up to the present-and French and German law, on
the other hand, adopt different points of view. Non-responsibility of the State for the acts of its judicial agents seems to
be the rule in France as well as in common-law jurisdictions
but it should be recalled that provision is made for compensation to an accused who has been wrongfully convicted
in a criminal trial. Again, the State is under no legal duty
to make compensation for injury caused by legislative enactments. There is here, however, a strong doctrinal opinion
in favor of compensation. In addition to the discussion to
be found in the works on administrative law and state responsibility, the latter subject has been dealt with in a number of theses of which the more recent are those of Arlet,84
Brulle,85 Despax,86 Giraud,87 and Le Roux.88
It is in the field of administrative responsibility for torts Administrathat the modern French doctrine has been developed. Origi- tive Renally in France, as elsewhere, the underlying theory was that BPonsiiity
" the king can do no wrong." Subsequently even with sovereignty shifting from a prince to the people there was at
first no thought of state liability. But during the course of
the last century a number of civilists took the position that
the State could be assimilated to an ordinary corporate master with a resulting application of the provisions of the
Code (arts. 1382 and 1384). The idea was acceptable to
the Court of Cassation, but in the meanwhile the Council
of State was developing a doctrine to the effect that state responsibility is independent of the provisions of the Code,
falling within the scope of public law. The conflict was decided by the Tribunal of Conflicts in favor of the Council of
State with the result that administrative courts alone have
"Arlet, L. De la responsabilitM de l'6tat legislateur. Sarlat,
Michelet, 1914. 179 p.
85 Brulle, R. De la responsabilitd de 1'Jtat a raison des actes legislatifs. Bordeaux, Y. Cadoret, 1914. 106 p.
86 Despax, R. De la responsabilit6 de l'itat'en matiwre d'actes legislatifs et r6glementaires. Paris, Giard et Briere, 1909. 146 p.
87 Giraud, E. De la responsabilite de l'&tat a raison des dommages
naissant de la loi. Paris, Giard & Briere, 1917. 360 p.
8 Le Roux, P. Essai sur la notion de la responsabilite de 1']Etat
consid6re comme puissance publique et notamment dans 1'exercise du
pouvoir lgislatif. Paris, Pichon et Durand-Auzias, 1909. 120 p.
49926~-31 —  15




220


GUIDE TO THE LAW OF FRANCE


jurisdiction and state responsibility is independent of the
civil law. (The ordinary courts were left with jurisdiction
only when the State acts in gestion prive, as a private corporation might. They also have jurisdiction of suits against
officials guilty of personal fault.) Subsequently, after 1908,
the administrative doctrines were applied to the responsibility of subdivisions of the State and local governmental bodies.
The evolution of administrative theories of responsibility,
based on public law conceptions, need not be discussed here.
Accounts may be found in an article by Professor Borchard
(28 Columbia Law Review 737) and in chapter 10 of Watkins' The State as a party litigant.89  An interesting phase
of the evolution has been the diminishing importance of the
distinction formerly made between " governmental ' acts
(puissance publique) and acts arising out of the public
service (de gestion), with a corresponding extension of state
responsibility in France, further than in any other country.
Governmental responsibility has been the subject of an
extensive literature. The fundamental works include the
texts on administrative law by Professors Berthelemy and
Hauriou, already referred to, and the third volume of Professor Duguit's treatise on constitutional law. Professor
Duguit gives a valuable bibliography not only of the principal texts but also of articles pertaining to various problems arising out of state responsibility which have appeared
from time to time in the Revue du droit public. Valuable
discussions may also be found in Professor Jeze's Principes
generaux, in Laferriere's Juridiction administrative and in
Professor Appleton's Contentieux administratif, all of
which have been mentioned. The last gives extensive references to the decisions of the Council of State.
Of the works devoted solely to state responsibility the
most important are Teissier's La responsabilitJ de lttat,90
which is a reprint of an essay contained in the Repertoire de
droit adlministratif, and a recent text by Professor Duez, La
8Watkins, R. D. The State as a party litigant Baltimore, Johns
Hopkins press, 1927. 212 p.
9Teissier, G. La responsabilite de la puissance publique. Paris,
Dupont, 1906. 301 p.




SOVEREIGNTY-THE PERSONALITY OF THE STATE


221


responsabilite de la puiisance publique.91   Masteau's recent
La responsabilite de Etctat 92 also deserves mention.  On the
theory of responsibility, Marcq's La responsabilite' e el'Itat93
merits an important place. A large number of theses are
cited by Professor Duguit at page 477 of the third volume
of his treatise on constitutional law. It is interesting to note
that in his reference to the two outstanding Belgian works
by Bourquin94 and Wodon,95 Professor Duguit calls attention to the fact that the accepted French doctrines have
not yet been developed in Belgium.
The various sources which have just been referred to are 0otcta
devoted primarily to the noncontractual responsibility of
the State. There is but little material on contractual responsibility. Although now somewhat old, an important
work is Perriquet's Les contrats de l'Etat.9  Some discussion
of state debts and contracts may also be found in volume
three of Professor Duguit's treatise on constitutional law.
In addition, reference should be made to a recent work by
Professor Jeze.7
SOVEREIGNTY-THE PERSONALITY OF THE
STATE
In the introduction to his recent work on governmental
responsibility, Professor Duez, after stating that the
'Duez, P. La responsabilit& de la puissance publique (en dehors
du contrat). Paris, Dalloz, 1927. 210 p.
'Masteau, J. La responsabilite de l'tftat. Paris, Recueil Sirey,
1927. 282 p.
3 Marcq, R. La responsabilit6 de la puissance publique. Bruxelles,
Larcier; Paris, Larose et Tenin, 1911. 443 p.
Bourquin, M. La protection des droits individuels contre les
abus de pouvoir de l'autorite administrative en Belgique. Bruxelles,
Bruylant, 1912. 398 p.
5 Wodon, L. Le controle juridictionnel de l'administration et la
responsabilite des services publics en Belgique. Paris, Rivibre;
Bruxelles, Lamertin, 1920. 270 p.
86 Perriquet, E. Les contrats de l'lttat et travaux publics. Tome 1,
Contrats de l'ttat. 2. Ed. Paris, Marchal et Billard, 1890. 3 p. L.,
[v]-xii, 692, 153 p.
"Jeze, G. Les contrats administratifs de l'Itat, des d&partements,
des communes et des etablissements publics. Paris, Giard, 1927.
256 p.




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GUIDE TO THE LAW OF FRANCE


modern French theory of state liability is the " daughter of
the triumph of the interventionist doctrine," takes the position that it is not only incompatible with imperialistic and
metaphysical notions of the State as conceived by the French
revolutionary movement of the end of the eighteenth century, but fits in perfectly with the realistic conception of
the State as a vast enterprise set up to satisfy certain general
needs. At the head of this enterprise are those who govern
and their agents. The former are the directive forces and
the latter assure the daily functioning of the details of the
public services created to satisfy these general needs. The
learned writer thus connects state liability with political
philosophy.
One would naturally expect a country like France which
has gone through so many political upheavals during the
past century and a half to supply various and conflicting
theories of the nature of the State. It is not surprising therefore to find present-day writers on public law in the country
of Bossuet, Montesquieu, Rousseau, Constant, and Auguste
Comte devoting considerable attention to the nature of the
State, its personality, sovereignty, and the theory of separation of powers. As already indicated the opposing views
on governmental theories are best presented in the works
of Professors Duguit and Esmein and Nezard. A complete
picture of Professor Duguit's views can best be obtained
from his works as a whole, but they are also exposed in
his treatise on constitutional law, the first three volumes of
which are based on his earlier works, already referred to.
First developed in his t'Etat, le droit objectif et kg loi positive in 1901, his views on personality and state sovereignty
might be summed up in the following quotation from the introduction to his book, Les transfornations du droit public,
with which he concludes his article on the Law' and the State
in 31 Harvard Law Review:
The will of those who govern has no force as such; it has value
and force only to the extent that it makes for the organization and
the functioning of a public service. Thus, the notion of public
service comes to replace that of sovereignty. The State is no longer
a sovereign power which commands; it is a group of individuals
having in their control forces which they must employ to create
and manage public service. The notion of public service becomes,
therefore, the fundamental notion of modern public law.




EMINENT DOMAIN-PUBLIC WORKS


223


Professor Duguit also discusses his concept of public service in an article in the Yale Law Journal (v. 32, p. 425).
It would, of course, be a gross exaggeration to pretend
that Professor Duguit's sociological solidarist doctrines represent the predominant note in French thought in public
law. The classical view is that expressed in the opening
phrases of the Elements de droit constitutionnel of Professors Esmein and Nezard:
The state is the juristic personification of the nation; it is the
source of public authority. That which constitutes a nation is the
existence of an authority superior to individual wills.
In addition to the discussion in works on public law in
general and in those on constitutional law, the theory of the
state received extensive discussion by Professor Carre de
Malberg, of the University of Strasbourg, in his ContribWtion a la theorie genwrale de PEtat.98  State personality and
sovereignty are also dealt with in the outstanding French
work on legal personality, La personnalite' morale,9      by
Professor Michoud, of the Law faculty of the University
of Grenoble, which was recently revised by Dr. Trotobas.
It should be recalled that the important works on legal
personality were discussed in the chapter on civil law.
Mention of the fact that the theory of the State is also discussed in a recent work by Combothecra has already been
made.9a
EMINENT DOMAIN-PUBLIC WORKS
Eminent domain (expropriation) is governed by an act
of May 3, 1841, as amended, principally in 1918 and 1921.
Its history is dealt with in Des Cilleuls' Origines et developpement du regime des travaux publics.' Under the amcien
regime the process was virtual confiscation followed by a
98Carr6 de Malberg, R. Contribution a la thdorie g6n6rale de
l'Etat, sp6cialement d'apres les donnees fournies par le droit constitutionnel francais. Reprint. Paris, Recueil Sirey, 1920-22. 2 v.
" Michoud, L. La th6orie de la personnalit6 morale et son application au droit francais. 2. Ad. Paris, Librairie g6ndrale de droit
et de jurisprudence, 1924. 2 v. See Civil code, page 86.
99a See page 205, note 42.
1Des Cilleuls, A. Origines et developpement du regime des travaux
publics en France. Paris, Imprimerie nationale; Pichon, 1895. 305 p.




224


GUIDE TO THE LAW OF FRANCE


problematical indemnity. As early as 1791 the modern
principle that private property may only be taken for a
public use under compensation was incorporated in the Constitution of September 3 of that year. It was subsequently
reproduced in the Civil code (art. 545). But the modern
system of indemnity was not in reality established until the
enactment of a law of July 7, 1833, which has since been replaced by the legislation already mentioned.
Procedure or condemnation proceedings aside, the principal questions arising with respect to the exercise of the
power of eminent domain in France are three: Who may
exercise the power; what may be taken; and for what purposes may it be exercised. Those who may exercise the
power are essentially of the same classes as those who may
exercise it in the United States. On principle, it can not
be exercised in behalf of private enterprises, whatever their
importance or purpose. There are, however, two important
exceptions, namely, taking property for the use of canals
and railways destined for the exploitation of mines and the
taking of land necessary for the exploitation of water power
under state concession. The property which may be taken,
seemingly, includes only corporeal immovables. Movables
may only be requisitioned for military purposes. The purposes for which the power may be exercised can not be
summed up in a sentence. They are often enumerated in
positive legislative enactments. On principle, the administrative authorities may declare a particular purpose to be
public. While their finding as to the utility of the exercise
of the power may be final, the question as to whether its
exercise is for an authorized purpose is subject to administrative review on a contention that the administrative finding is either in violation of positive law or is a misuse of
administrative power. Condemnation proceedings, however,
are judicial.
The substantive law and procedure with respect to eminent domain are summarized in the treatises on administrative law by Professors Hauriou and Berthelemy. The general subject also received attention from Professor Duguit
in the third volume of his work on constitutional law. In
addition, valuable essays are contained in Bequet's Reper



RAILROADS-TRA N SPORTATIO N


225


toire administrative and the encyclopedias published by
Dalloz and Sirey. Most of the works dealing separately
with the subject are old. The more important of these are
Crepon's Code annote,2 published in a second edition in 1899
and annotated to the law of 1841 and legislation down to
1899; and Traite de V'exproTpiation3 by Delalleau, Jousselin, and Perin. The works of Bauny de Recy 4 and Daffry
de la Monnoye,5 though often referred to are too old
to be of practical value. The latest texts devoted to eminent
domain alone seem to be a small encyclopedia published
by the Recueil Sirey 6 and a recent work by P. Couzinet.7
Attention should be called to the fact that expropriation is usually discussed in connection with public works
(travaaux publics), a term applied to construction executed
by the State, or by an administrative body, for a public
purpose.
RAILROADS-TRANSPORTATION
An excellent discussion of the relation of the State to
railways in France may be found in Professor Berthelemy's
treatise (p. 755). The French system is in a sense a combination of or compromise between private and public ownership, the historical background of which is too complicated to set forth here. The principal general works on
railways are Picard's Traite des chemins de fer,8 and a
2Crepon, T. Code annote de 1'expropriation pour cause d'utilite
publique. 2. Ed. Paris, Chevalier-Marescq; Plon, 1899. 230 p.
3Delalleau et Jousselin. Traite de 1'expropriation pour cause
d'utilit6 publique. 8. Ad. par Perin. Paris, Marchal et Billard, 1892 -93. 2 v.
4Bauny de Recy, R. Thnorie de l'expropriation pour cause d'utilit6
publique. Paris, Durand et Pedone-Lauriel, 1871. 251 p.
Daffry de la Monnoye, L. Thoorie et pratique de l'expropriation
pour cause d'utilit6 publique. 2. ed. Paris, Pedone-Lauriel, 1879.
2 v.
6 Carpentier, E. Petit repertoire de l'expropriation pour cause
d'utilite publique. Paris, Recueil Sirey, 1927. 203 p.
'Couzinet, P. La reparation des atteintes portees a la propriete
privee immobiliere par les groupements administratifs. Paris, Sirey,
1928. 340 p.
Picard, A. Traits des chemins de fer; 6conomie politique, commerce, finances, administration, droit. Etudes comparees sur les
chemins de fer Strangers. Paris, Rotschild, 1887. 4 v. Index
general. Paris, Rotschild, 1887. 98 p.




226


GUIDE TO THE LAW OF FRANCE


similar and somewhat later treatise by Carpentier and
Maury.9 Both works, however, because of their age fail to
take into account important latter-day legislation, which
seems to be best summarized by Professor Berthelemy, who
also gives a summary account of the regulations concerning maritime and river transportation, aeronautics, and the
postal service. Professor Berthelemy also devotes some
space to roads (voirie) with short bibliographic references
(p. 513 et seq.).
PUBLIC EDUCATION
Valuable summaries of such subjects as education, public
hygiene, pensions, and public aid to the indigent appear in
Professor Berthelemy's treatise.
The discussion under the first heading includes the administrative organization of education, compulsory school
attendance, and the legal organization of primary, secondary, and university instruction. The legislation with respect
to public and private instruction was also dealt with in
Gobron's Legislation et jurisprudence de lenseignemnent,~
published in a third edition in 1911. In addition, the history of the relation between the state and education, as well
as its present regulation, is discussed by Professor Duguit
in the fifth volume of his treatise.
Health and safety regulations of industries and buildings
are dealt with in the Traite gneral 11 by L. and A. Magistry.
Some discussion of public hygiene, pensions, and aid to the
indigent may also be found in Professor Hauriou's Pracis.
Both Professors Berthelemy and Hauriou give short
bibliographies.
9 Carpentier, A., et Maury, G. Trait6 pratique des chemins de fer.
Paris, Larose et Tenin, 1894. 3 v. Supplement. 1913. 314 p. The
four volumes are reprints from the R6pertoire general du droit
frangais.
0 Gobron, L. Legislation et jurisprudence de l'enseignement public
et de l'enseignement privy en France et en Algerie. 3. 6d. Paris,
Larose & Tenin, 1911. 612 p.
' Magistry, L. et A. Traits gen6ral sur l'application de la
nouvelle legislation des ktablissements class6s. Paris, Godde, 1923.
712 p.




CHURCH AND STATE


227


CHURCH AND STATE
Religious liberty and the relation of the church to the
state receive treatment in the various texts on administrative
and constitutional law. An extensive discussion may be
found in the fifth volume of Professor Duguit's treatise on
constitutional law. Among the other works which may be
consulted with profit are Professor Esmein's treatise on
constitutional law  and the texts on administrative law by
Professors Berthelemy and Hauriou, as well as the latter's
Principes de droit public. Professor Hauriou 2 was also
the author of a separate publication, which was published in
1906 as a reprint of a part of an earlier edition of his work
on administrative law. The literature on the relation of the
church to the state is exceedingly abundant, but most of it is
written from an individualist biased point of view, particularly with respect to the legislation of 1905 and 1907
providing for the separation of church and state. For that
reason it is extremely difficult to estimate its value.
A good, comparatively recent work giving the practical
effect of the legislation of 1905 and 1907 is Bureau's Quinze
annees de separation.13   Other works include Abbe Crouzil's
Traite de la police du culte,'4 De Mouy's Nouvelle legislation des cultes 15 covering the legislation of 1905 and 1907,
Le regime des cultesl6 by Reville and Armbruster and La
separation 17 by De Lamarzelle and Taudiere. In addition,
"Hauriou, M. Principes de la loi du 9 d6cembre 1905, sur la
separation des (glises et de l'ltat. Paris, Larose et Tenin, 1906.
80 p. (Extr. du Precis de Droit administratif.)
"Bureau, P. Quinze annees de separation. Etude sociale dooumentaire sur la loi du 9 d6cembre 1905. Paris, Bloud et Gay, 1921.
248 p.
14 Crouzil, L. Trait6 de la police du culte sous le r6gime de la separation. Paris, Bloud, 1908.
Mouy, R. de. Nouvelle l6gislation des cultes. 1905-1908. Paris,
Dupont, 1908. 2 p. 1., 360 p.
16R4ville, M., et Armbruster, L. Le regime des cultes. Paris, Berger-Levrault, 1906. 324 p.
"Lamarzelle, G. de et Taudiere, H. La separation de l'6glise et de
l']ttat. Paris, Plon-Nourrit, 1906. 462 p.




228


GUIDE TO THE LAW OF FRANCE


there is a three-volume work by Maurice Felix dealing with
the history and legal position of religious congregations.
An extensive bibliography may be found in Professor
Duguit's treatise on constitutional law. A good but not
unbiased analysis of the acts of 1905 and 1907 was published
in the Political Science Quarterly for 1908 (v. 28, p. 259)
by Professor Guerlac under the title, Separation of church
and State in France.
Prior to 1905 the relations between church and State were
regulated by a law of April 8, 1802, enacted after the conclusion of a treaty between the First Consul and Pope Pius
viI designated as the Coneordat. Under this law and later
decrees, provision was made for the practice under state
supervision of three different religions, the Roman Catholic,
the Protestant (comprising Calvinists and Lutherans), and
the Jewish. One of the important provisions of this act was
that the clergy acquired the standing of governmental officials with regular salaries paid by the State. In return the
Church was under the supervision of the Government, which
appointed the bishops and archbishops of the Roman church
with the sanction of the Pope. While the priests were appointed by the bishops and archbishops, appointments could
only be made after consultation with the Government.
The act of 1905 providing for separation was enacted
after 30 years of acrimonious debate. The provisions of the
new law, while ostensibly looking to freedom of religious
worship and complete separation of the internal government
of religious bodies from the supervision of the State, also
brought religious bodies within partial supervision through
the requirement that religious associations comply with state
organization laws. Although accepted by both Protestant
churches and the Jewish faith, the regime provided for was
rejected by the Catholic hierarchy. Accordingly, the Catholic Church is governed by an act of 1907 which withdrew
most of the privileges still conferred by the law of 1905 and
brought the church under the regulations of the law of associations of 1901 and that of 1881 relating to public meetings.
It should be remarked here that Alsace and Lorraine have
not yet been brought within the legislation of 1905 and 1907.
17a F61ix, M. Congregations religieuses. Paris, Rousseau, 1908-29.
3 v.




INDIVIDUAL RIGHTS-FREEDOM OF SPEECH


229


INDIVIDUAL RIGHTS-FREEDOM OF SPEECH
Writers on constitutional law usually consecrate a part
of their works to individual rights-similar to those which
are included under the American bills of rights. Some of
these, such as religious freedom and education, have just
been referred to. Others include such privileges as that of
engaging in a lawful calling, liberty of contract, freedom of
reunion and association, and freedom of speech. Unlike
the earlier French constitutions, the present fundamental
laws contain none of the dogmatic expressions which usually appear in written constitutions, with the result that
the~e rights are wholly governed by statute. Valuable theoretical and practical discussions of these different "liberties" appear in the fifth volume of Professor Duguit's
treatise, and some discussion may be found in the second
volume of Professor Esmein's text. Professor Duguit, in
his fifth volume, also devotes some attention to the prohibition and regulation of certain callings, industries, and
commercial ventures. Reference should also be made to
his Souverainete et liberte,'8 published in 1922 and consisting of lectures delivered at Columbia University in 1919.
Freedom of reunion, association, and speech has passed Freedom
through varying fortunes during the almost a century and aThesPew
half since the first Revolution. Freedom of speech was
first guaranteed in the Constitution of 1791 as one of the
natural rights of man. Since then the position of the press
in particular has depended largely upon the liberal or reactionary nature of the government in power. At present
the law regulating the press, which might be called the
existing charter of its liberty, is that of 1881. Although
entitled "An act concerning the freedom of the press," it
provides for the regulation of other methods of publicity,
such as books and posters. Attention should be called to the
fact that publications in foreign languages are subject to
special regulations.
The legal position of the press is discussed in the treatises
on administrative law as well as those on constitutional
law. In addition, reference may be made to the treatises by
18Duguit, L. Souverainet6 et liberte. Paris, Alcan, 1922. 208 p.




230


GUIDE TO THE LAW OF FRANCE


Fabreguettes 9 and Le Poittevin 20 and Barbier's Code expligu  de la presse.21
COLONIAL LAW
The administration of the French colonies constitutes a
regime separate and distinct from    that of France proper.
The constitutional laws do not apply to the colonies; a fact
also true of legislative enactments which are not expressly
made applicable. Executive authority is greater than in the
mother country, and the colonies are in the main governed
by a distinct body or bodies of law.
The best work on colonial law is that of Arthur Girault,
Principes de colonisation et de legislatin.22 Four volumes
of a fifth edition have been published. These comprise the
first, second, fourth, and fifth volumes dealing with French
colonial history, administration and French northern Africa.
Economic questions will be dealt with in the third volume,
said to be in the course of preparation. A much shorter work
is Merignhac's Traite3    Reference is also sometimes made to
Dislere's Traitg de lgislation coloniale,24 published in a 4th
edition in 1914. In addition, attention should be called
to the 3-volume treatise on Algerian legislation by Larcher
and Rectenwald.25   Mention should be made of the fact that
Algiers occupies a position apart. At one time the tendency
was to treat it as a part of France proper, while at present
the tendency seems to be to assimilate it to the colonies.
1' Fabreguettes, P. Trait6 des delits politiques et des infractions
par la parole, l'ecriture et la presse. 2. ed. Paris, ChevalierMarescq; Plon, 1901. 2 v.
20 Le Poittevin, G. Trait6 de la presse. Paris, Larose, 1902-04. 3 v.
' Barbier, G. Code explique de la presse; traits gtnfral de la police,
de la presse et des d61its de publication. 2. (d. Paris, Marchal et
Godde, 1911. 2 v.
"Girault, A. Principes de colonisation et de legislation coloniale.
5. ed. Paris, Recueil Sirey, 1927-29. 4 v.
3 Merignhac, A. Traite de legislation et d'conomie coloniales. 2.
ed. Paris, Recueil Sirey, 1925. 887 p.
Dislere, P., et Duch6ne, M. TraitS de legislation coloniale. 4,
Cd. Paris, Dupont, 1914. 2 v.
2" Larcher, E., et Rectenwald, G.  Trait6 elementaire de lgislation algerienne. 3. Ad. Paris, Rousseau, 1923. 3 v.




PUBLIC FINANCE-FISCAL LEGISLATION


231


There is also a special compilation of Moroccan laws and
codes.26
ALSACE AND LORRAINE
While Alsace and Lorraine were returned to France as
the result of the armistice and the treaty of Versailles,
their complete reintegration has not yet taken place. Within
the last few years, however, there has been a more rapid
assimilation than during those immediately following their
cession. The present administrative organization is dealt
with summarily in Professor Hauriou's treatise. Due to
their peculiar relation to France the legislation and jurisprudence of both provinces have been the subject of a special
encyclopedia 27 published under the direction of Professor
de Niboyet, of the University of Strasbourg.
PUBLIC FINANCE-FISCAL LEGISLATION
Due to the fact that public finance and fiscal legislation
constitute a part of the law school curriculum as provided
for in the decree of August 2, 1922, members of French law
faculties have produced several general works, giving a comprehensive survey of the subject, which do not have their
counterpart in our legal literature. The most important are
those of Professors Allix and Jeze, the outstanding authorities in their field and both of the Paris Law School. Professor Jeze is the author of a number of texts published
during the past several years under the title Cours de scienwe
des finances.28 Less theoretical, the Traite elementire,29 by
2 Riviere, P. L. Traites, codes et lois du Maroc. Paris, Recueil
Sirey, 1924-25. 4 v. Supplements 1926, 1927, 1928, 1929.
"Niboyet, J. P. R6pertoire pratique de droit et de jurisprudence
d'Alsace et de Lorraine. Paris, Recueil Sirey, 1925. 2 v. Supplements. 1925, 1926, 1927, and 1928.
28Prof. G. Jeze's publications under the title Cours de science des
finances, based on his lectures and all published by Giard, include:
Depenses publiques. Throrie g6n6rale du credit public. 6. 6d. 1922.
507 p. Th6orie gfntrale du budget. 1922. 286 p. Th6orie g6n6rale
de l'emprunt, 1923. 256 p. La technique du credit public. 6. d. 1923.
224 p. La technique du credit public. Taux de l'int&ret...6. ed.
1925. 452 p. Another series under the title Cours de finances
publiques comprises: La technique du credit public. L'immunite
fiscale de la dette publique...  1923. 224 p. La technique du
credit public. Le remboursement de la dette publique, 1925. 312 p.




232


GUIDE TO THE LAW OF FRANCE


Professor Allix, gives in one volume a comprehensive outline of public finance in France. The first part of Professor Allix's work is devoted to a discussion of the preparation, adoption, and execution of the budget, the second to
resources of the State, including taxes and loans, and the
third to local budgets and taxes. A fourth part deals with
colonial budgets and taxation, and a fifth gives a summary
notion of the fiscal legislation of Germany, England, and
Italy. Other texts of value but less important, include
Professor Moreau's Manuel elementaire,30 Professor Moye's
Piecis elemenetaire,31 and Arthur Girault's Manuel.32 Attention should be called to the fact that Professor Allix's
treatise was published in a fifth edition in 1927 and thus
takes into account taxation imposed as the result of the
more recent financial reforms, a matter which is not always
dealt with in some of the other works mentioned.
Budget     In France both the Government and Parliament participate in the preparation of the budget.    Each ministry prepares a budget of expenses which is transmitted to the
Ministry of Finance for coordination.     The latter alone of
the ministries prepares the budget of receipts. After the
complete preparation of the budget by the Ministry of
Finance, it is submitted to Parliament, where it is first sent
to a committee on finance (in both houses) for a study of
its details. There it is subject to modification and even
revision before being submitted to the legislature for adoption. The outstanding general work on the budget is ProLa date de remboursement de la dette publique.     Histoire de
l'amortissement en France, 1926. 384 p. La date de remboursement
de la dette publique. Histoire de l'amortissement en Angleterre.
1927. 261 p.
9Allix, E. Traits elmentaire de science des finances et de legislation financiere frangaise. 5. ed. Paris, Rousseau, 1927. 1,063 p.
' Moreau, F. Manuel 616mentaire de legislation et science financidres. Paris, de Boccard, 1924. 640 p.
8'Moye, M. Pr6cis 616mentaire de legislation financiere, A l'usage
des 6tudiants des Facultes de droit. 8. ed. Paris, Recueil Sirey,
1926. 442 p.
32 Girault, A. Manuel de legislation financiere. Paris, Recueil Sirey,
1924-27. 3 parts.




PUBLIC FINANCE —FISCAL LEGISLATION


233


fessor Stourm's Le budget,83 translated into English in
1917.84
The role played by Parliament in the adoption of the
budget is also discussed by Professor Duguit in the fourth
volume of his treatise, as well as in the general treatises
on public finance and fiscal legislation.
The present system    of direct taxation in France is of Dire'tTacomparatively recent date, having its origin in the fiscal
reforms which took place between 1914 and 1917 and which
were in turn largely based on the proposals made in 1907
by Caillaux, former Minister of Finance. Having as their
basis tax on income, direct taxes are of two species-taxes
on  income from     different categories of sources    (impot
cedulaire) and a complementary tax on total income (impot
general). The first is divided into eight categories, comprising generally two categories of income from land, income from stocks and bonds and capital, income from loans,
industrial and commercial profits, profits from agricultural
ventures, salaries, and income from non-commercial professions. The methods of evaluating income and collecting
the different taxes are outlined in the Traite elementaire
by Professor Allix and several texts devoted specially to
direct taxation.
General summary information concerning direct taxation
is contained in a manual, Notions sommaires des impots,85
published by the Ministry of Finance. This work is of
particular value. The leading treatise is L'impot sur le
revenu,36 published by Professor Allix with the collaboration of Dr. Lecercle. Another important and comprehensive work is Bocquet's L'impot sur le revenu.37          A
3 Stourm, R. Cours de finances. Le budget. 7. Md. Paris, Alcan,
1913. 621 p.
34 Stourm, R. The budget, by Ren6 Stourm... a translation from
the 7th ed., by Thaddeus Plazinski. New York, Appleton and company,
1917. 619 p.
35 Notions sommaires relatives a l'assiette et l'ttablissement des
impOts sur les revenus. Ministere des finances. Paris, Imprimerie
nationale, 1926. 64 p.
86Allix, E. et Lecercle, M. L'impOt sur le revenu, impOts cedulaires et impOt g6neral. Paris, Rousseau, 1926. 2 v. Supplement, 1929.
"Bocquet, L. L'impOt sur le revenu, c6dulaire et g6n6ral. 3. ed.
Paris, Recueil Sirey, 1926. 1111 p. Supplements, 1927-29. 3 v.




234


GUIDE TO THE LAW OF FRANCE


thesis, Le contr6le en matiere de contributions directes,38 by
Champion is often recommended.
Indirect   The best work on indirect taxation seems to be that published by Professor Allix and Dr. Lecercle.39
Total Sales  One of the most lucrative and important taxes resulting
from the war is the tax on business turnover (chiffre d'affaires)
which is imposed on total sales and receipts for services rendered. Those who exercise a liberal profession, agriculturalists selling their own products, artists, and agricultural associations, are, however, excepted from its operation. This form
of taxation, which was carried in the 1927 budget as probably
producing more than seven and a half billion francs, has been
the subject of a commentary 40 by Professor Allix and Dr.
Lecercle, published in a second edition in 1929.
Registra-  Another important source of revenue is the tax imposed
on the registration or recordation of written instruments
(enregistrement). The best recent work 41 is the treatise by
Dublineau, which has been brought down to August 1, 1927,
through the publication of supplements. In this connection
mention should be made of a practical treatise on registration and stamp taxes 42 by Vincent, who is also the author of
a very good small practical resume of the fiscal regime of
associations, stocks and bonds, and insurance.43      Another
valuable work on the fiscal r6gime of associations is that of
Corpra  Lefebvre,44 the first volume of which is devoted to registration, and the second to taxation.
38Champion, R. Le controle en matiere de contributions directes
en France. Paris, Riviere, 1926. 436 p.
3Allix, E. et Lecercl, M. Les contributions indirectes. 3. ed.
Paris, Rousseau, 1929. 920 p.
40Allix, E., et Lecercle, M. La taxe sur le chiffre d'affaires. Traite
theorique et pratique. 2. ed. Paris, Rousseau, 1929. 536 p. Les impots francais.
41Dublineau, E. Traite theorique et pratique de l'enregistrement.
3. Md. Paris, Recueil Sirey, 1924. 1,128 p. Supplements 1925, 1927.
2 Vincent, G. Traite technique et pratique des droits d'enregistrement, de timbre et d'hypotheque. Paris, Riviere, 1927. 516 p.
43 Vincent, G. Le regime fiscal des societes, des valeurs mobilieres
et des assurances. Paris, Juris-classeurs, 1928. 420 p.
Lefebvre, R. et J. Les societes francaises. Traits fiscal des
societes anonymes. Paris, Juris-Classeurs, 1928. 2 v.




INDEX


Abus des droits, 97.
Acquired rights, in conflict of laws, 202.
Administrative law, 210-216.
Codes, 213.
Encyclopedias, 212.
Organization, 213.
Reports of decisions, 23, 213.
Treatises, 210.
Tribunals, 214.
See also Responsibility of State for torts,
216-221.
Aerial navigation, 118.
Agents de recherche, 182.
Agnel and de Corny, insurance, 129.
Alauzet, insurance, 129.
Algiers, 230.
Alibert, administrative law, 215.
Allart:
Patents, 134.
Trade marks, 135.
Allix, public finance, 231, 233, 234.
Alsace and Lorraine, 231.
Alvarez, comparative law, 50.
Amiaud, civil procedure, 151.
Analytical jurisprudence, 37.
Annales de droit commercial, 106.
Annales de la propriete industrielle, 132.
Annotated editions. See Civil code, Commercial law, etc., 74.
Annuaire de legislation francaise, 16.
Antonelli, social insurance, 166.
Antwerp rules, 128.
Appellate procedure, 150.
Appleton:
Administrative law, 215.
French Bar, 152.
State responsibility, 220.
Arbitration of labor disputes, 139, 162.
Argles, commercial law, 106.
Arminjon:
Private international law, 192.
Theory of qualifications, 201.
Arthuys, partnerships and corporations, 111.
Association en participation, 108.
Associations, 107.
Ateliers sociaux, 154.
Attempts, 177.
Aubry and Rau:
Civil law, 79, 82.
Legal philosophy, 38.
Aucoc, administrative law, 212.
Audinet:
Nationality, 195.
Private international law, 192.
Augier et Le Poittevin, military law, 188.
Autran, maritime commerce, 125.
Average, general, 127.
Avocat, 151.
Avou6, 151.
Bankruptcy, 129-131.
Banqueroute, 130.
Bar, 151.
Barbier, press, 230.
Barreau, 151.
Barthelemy:
Constitutional law, 209.
Public law, 204.
Bartin:
Judgments, 202.
Renvoi, 201.
Theory of qualifications, 200.
49926~-31-          16


Basdevant, legal history, 67.
Batbie, administrative law, 212.
Bate, renvoi, 202.
Baudry-Lacantinerie, civil law, 81-82, 83.
Beauchet, extradition, 189.
Beaune, legal history, 66.
Beaussire, legal philosophy, 35.
B6darride, commercial law, 103.
Belime, legal philosophy, 34.
Bentham, legal philosophy, 38.
B6quet, administrative law, 212.
Berriat, Saint-Prix, civil procedure, 145.
Berthelemy, administrative law, 210.
Bertin, criminal law, 178.
B.eudant:
Civil law, 83.
Legal philosophy, 35.
B6zard-Falgas:
Commercial law, Exchanges, 116.
Transfer of stock, 117.
Bibliography, 7-12.
CataloguesLibraries, 13.
Publishers, 11.
General, including non-legal, 11.
Insurance, 129.
Literary and industrial property, 131.
Modern, 7-12.
Periodical sources, 10.
Roman law, 10.
Bills and notes. See Negotiable paper, 119 -121.
Blanc, Louis, 154, 155.
Blanche:
Administrative law, 212.
Criminal law, 175.
Bloch and Chaumel, labor disputes, prud
'hommes, 162.
Block, administrative law, 212.
Bocquet:
Collection complete des lois, 16.
Taxation, 233.
Boistel:
Commercial law, 106.
Legal philosophy, 34.
Boitard:
Civil prodecure, 145.
Criminal law, 175.
Boncenne, civil procedure, 145.
Bonfils, jurisdiction and conflict of laws, 203.
Bonnard:
Administrative law, 211.
Public law, 204.
Bonnecase:
Baudry-Lacantinerie, 82.
Civil code, 77.
Legal philosophy, 48.
Maritime commerce, 123.
Bonnier, proof, 149.
Borchard:
Bibliography, 8.
Commercial law, 107.
Criminal justice, 187.
Responsibility of State, 220.
Bordeaux, civil procedure, 144.
Bougle, legal philosophy, 42.
Bouhier, conflict of laws, 199.
Boullenois, conflict of laws, 199.
Bourgeois, legal philosophy, 42.
Bourquin, State responsibility, 221.
Boutaud, fonds de commerce, 117.
235




236


INDEX


Bouteron, checks, 120.
Bovier-Lapierre, labor and social legislation,
159.
Bravard-Veyrieres, commercial law, 106.
Brethe, labor contract, 161.
Brevets d'inventions, 134.
Breviary of Alaric, 55.
Brissaud, legal history, 64.
Brun, legal philosophy, 35.
Brunet, transportation, 119.
Bry:
Labor and social legislation, 159.
Literary and industrial property, 132.
Roman law, 53.
Buchere, exchanges, 116.
Budget, 232.
Bufnoir, obligations, 94.
Bulletin des arrets de la Cour de cassation, 19.
Bulletin des lois, 15.
Burgundian code, 55.
Business associations. See Partnerships, Associations, and Corporations, 107-115.
Cabouat, workmen's compensation, 164.
Cachard, Civil code, 75.
Cambaceres, codification, 69.
Camus and Dupin, 8, 153.
Capitant:
Bibliography, 11.
Causa, 95.
Civil code, 83.
Legal philosophy, 38.
Persons, 88.
Philosophy of law, 38.
See also Colin and Capitant, 83.
Capitant and Cuche, labor legislation, 158.
Capitularies, 56.
Carpentier:
Administrative code, 213.
Civil code, 75.
Code of civil procedure, 143.
Code of criminal procedure, 174.
Codes and laws, 17, 18.
Commercial code, 101.
Criminal procedure, 183.
Divorce, 93.
Penal code, 174.
Carr6, civil procedure, 145.
Carriers, 126.
See also Transportation, 118-129.
Case method, 31.
Casier judiciaire, 179.
Cassation, Court of, 139.
Causa, 95.
Cauvet, insurance, 127.
Cendrier, fonds de commerce, 118.
Cezar Bru:
Execution, 150.
Garsonnet and Cezar-Bru, Civil procedure, 146.
Chambre des Requites, 140.
Charmont:
Evolution of civil law, 76.
Legal philosophy, 46, 47.
Charter parties, 126.
Chauveau:
Civil procedure, 146.
Criminal law, 175.
Checks, 119-121.
Chenon, legal history, 65.
Chiffre d'affaires, 234.
Child labor, 161.
Church and state, 227.
Civil code, 71-99.
Annotated editions, 74.
Breach of contract to marry, 91.
Causa, 95.
Commentaries, Treatises, 77-83.
Contents, 71.
Development of civil law, 75.
Divisions of Code, particular subjects, 85.
Divorce, 92-93.
Doctrinal treatment, 77.


Civil code-Continued.
Elementary treatises, 83.
Marital property, 88-91.
Marriage, 88.
Marriage contract, 88-91.
Obligations, 94.
Official editions, 74.
Official name, 73.
Periodicals, 84.
Persons, Legal personality, 85-88.
Pocket editions, 74.
Property, 98.
Qualities and defects, 73.
Sources, 72.
Succession, 99.
Torts, 96-98.
Translations, 75.
Treatises, 77-83.
Civil code and Commercial associations, 111.
Civil code and Commercial law, 102.
Civil code and Labor, 154.
Civil procedure, 137-153.
Appellate procedure, 150.
Court of cassation, 139.
Evidence, 148.
Execution, 150.
General literature, 144.
Judicial organization, 138.
Court of cassation, 139.
General literature, 141.
Inferior courts, 139.
Reform, 141.
Jurisdiction, 147.
Actions by and against foreigners, 148.
Waiver, 148.
Legal profession, 151.
Procedure, 142.
Adoption of Code, 142.
Annotated editions, 143.
Encyclopedias, 147.
Form books, 146.
History, 67, 142.
Civil responsibility, 57.
See generally Torts, 96-98.
Clunet, 192.
Coalitions, 153.
Code civil. See Civil code, 71.
Code d'instruction publique, Criminal procedure, 180.
Code de la marine, 60.
Code Louis, 59.
Code Marchand, 60.
Code Napoleon. See Civil code, 71.
Code Savary, 59.
Codes and Laws. See Legislation, 14.
Codes d'audience, 18.
Codification, History of, 68-71.
Civil code, 69.
Civil procedure and other Codes, 69.
Compilations of proceedings, 70.
Efforts of revolutionary r6gime, 69.
Cohendy and Darras, Commercial code, 101.
Colin, Codes and laws, 17.1
Colin and Capitant, Civil code, 83.
Collard, criminal law, 178.
Collection complete des lois, 16.
Collection des ordonnances du Louvre, 60.
Collection g6nerale des lois, 15.
Collection Thaller, commercial law, 105.
Collections of royal legislation, 60.
Collective labor contract, 160.
Collinet, legal history, Roman law, 53.
Collisions, 124.
Colmet-Daage, civil procedure, 145.
Colmet de Santerre, Civil code, 81.
Colonial law, 230.
Combothecra:
Public law, 205.
Sovereignty, 223.
Comit6 de Defense des enfants, 180.
Commentaries. See Treatises under respective subject e. g., Civil law.




INDEX


237


Commercial and maritime legislation during
the reign of Louis XIV, 59.
Commercial associations. See Partnerships,
Associations and Corporations, 107-115;
Commercial law, 99-131.
Commercial courts, 139.
Commercial law, 99-131.
Associations, 107.
See also Partnerships and Corporations, 107-115.
Bankruptcy, 129-131.
Civil code and Commercial law, 102.
Commentaries and treatises, 102-107.
Commercial code, 99-102.
Adoption, 100.
Contents, 100.
English translations, 101.
Private editions, 101.
Corporations, 108.
Exchanges, 116.
Fonds de commerce, 117.
Insurance, 127-129.
Maritime commerce, 121-129.
Average, 127.
Charter parties, 126.
Collisions, 124.
General literature, 122.
Insurance, 127.
Liens, 124.
Limitation of liability, 125.
Transportation and carrier's responsibility, 126.
Negotiable paper, 119-121.
Partnerships, Associations and Corporations, 107-115.
Associations, 107.
Commercial partnerships, 108.
Cooperatives, 112.
Corporations, 109.
De facto corporations, 112.
Foreign corporations, 113.
General literature, 110.
Legislation, Limited partnerships
and Corporations, 108-109.
Limited partnerships, 108.
Nationality of corporations, 114.
Periodicals, 115.
Private corporations, 112.
Transfer of shares of stock, 116.
Transportation, 118-119.
Commercial partnerships, 108.
Committing magistrates, 182, 185.
Community property, 90.
Companies, 109.
Comparative law, 50.
Comte, 39.
Concordat, 228.
Concurrence d6loyale, 136.
Conflict of laws, 198.
See also in general, Private international
law, 189-203.
Conseil d'Etat, 214.
Conseils de prud'hommes, 139,154.
Constitutional law, 206-209.
Constitution of 1875, 206.
Texts of Constitutions, 207.
Treatises, 207-209.
Continental legal history series, 2, 68.
Contracts:
See also Obligations, 94-98.
State responsibility, 221.
Contrat du travail, 160.
Cooperatives, 112.
Copinger, copyright, 132.
Copper-Royer, corporations, 111.
Copyright, 132.
Corporations, 108, 109.
Coulon, divorce, 93.
Council of State, 214.
Cour de cassation, 139.
Courcelle-Senueil, legal philosophy, 40.
Effect of decisions, 19.


Courcy, maritime commerce, 122.
Court control of administrative acts, 215.
Court of assize, trial, 184.
Court of cassation, 139.
Court reports, 18-23.
Administrative decisions, 23, 213.
Authority of judicial decisions, 19.
Commercial decisions, 22.
Court of cassation, 19.
Doctrine and jurisprudence, 18.
Method of reporting, 21.
Official reports of the Court of cassation,
19.
Private reports, 20.
Courts. See Civil procedure, 137-153, and
Judicial organization, 138-141.
Coutumiers:
Modern editions, 58.
Regional customs, 57.
Cr6pin, labor contract, 160.
Crepon:
Court of cassation, 140.
Execution, 151.
Criminal law, 167-180.
Attempts, 177.
Casier judiciaire, 179.
Evolution of criminal law, 167.
Extenuating circumstances, 178.
Habitual criminals, 179.
Juvenile delinquency, 180.
Penal code, 168.
Annotated editions, 174.
Contents, 173.
Criticisms, 169.
Philosophical thought, Penology, 168-173.
Treatises, 174.
Criminal procedure, 180-189.
Code of, 181-182.
Adoption, 181.
Annotated editions, 182.
Contents, 181.
History, 67.
Jurisdiction, 185.
Partie civile, 186.
Treatises, 183.
Under the revolutionary r6gime, 181.
Criminology, 168-172.
Cuche:
Civil procedure, 146.
Criminal law, 171.
Execution, 150.
Legal philosophy, 48.
Cujas, 62.
Cuq, Roman law, 53.
Daily legal journals, 22.
Dalloz:
Administrative code, 213.
Civil code, 74, 75.
Code des accidents, 164.
Code of civil procedure, 143.
Commercial code, 101.
Court reports, 20.
Criminal procedure, 182.
Dictionaries, 25.
Encyclopedias, 24.
Labor code, 158.
Legislation, 16, 17.
Penal code, 174.
Student texts, 31.
Damages in criminal prosecution, 186.
Danjon, maritime commerce, 122.
D'Argentre, conflict of laws, 198.
Darras, 192.
Davy, legal philosophy, 49.
Days of rest, 161.
Declareuil, legal history, 63.
Deconfiture, 130.
Decugis, commercial law, 111.
De facto corporations, 112.
Defr6nois, notary, 151.
Degois, criminal law, 176.




238


INDEX


Delamarre and Le Poitevin, Commercial
law, 103.
De Lapradelle. See Lapradelle, 192, 209.
Demante, Civil code. 81.
Demogue:
Legal philosophy, 45.
Obligations, 94, 97.
Private international law, 192.
Torts, 97.
Demolombe, Civil code, 80.
Depinay, dotal regime, 91.
Des Cilleuls, public works, 223.
Designs and models, 135.
Desiry, commercial associations, 111.
Desjardins, maritime commerce, 122.
Despagnet, private international law, 191.
Detournement de pouvoir, 214.
Devin, immovables and conflict of laws, 202.
Dicey:
Administrative law, 210.
Renvoi, 201.
Dictionaries, 23, 25.
Dictionnaire de procedure civile, 147.
Direct taxes, 233.
Dislere, colonial law, 230.
Divorce, 92-93.
Doctrine and jurisprudence, 18.
Domat, legal history, 61.
Donnedieu de Vabres:
Conflict of laws, 200.
Criminal jurisdiction, 185.
Dotal regime, 90, 91.
Dramard, bibliography, 9.
Droit administratif, 210.
Droit de prelevement, 195.
Drouets:
Checks, 121.
Private companies, 112.
Droz, insurance, 129.
Ducrocq, administrative law, 212.
Duez:
Constitutional law, 2C9.
Sovereignty, 221.
State responsibility, 220.
Dufour:
Administrative law, 212.
Maritime commerce, 122.
Duguit:
Constitutional law, 207, 209.
Evolution of civil law after codification,
76.
Evolution of public law, 205.
Individual rights, 229.
Legal philosophy, 43, 44, 45, 47.
Sovereignty, 222.
State responsibility,f221.
Duguit and Monnier, constitutional law, 207.
Dumoulin, conflict of laws, 198.
Dupin. See Camus and Dupin, 8, 153.
Duranton, Civil code, treatises, 78.
Durkheim, legal philosophy, 41.
Duverdy, transportation, 119.
Duvergier:
Civil code, 78.
Collection complete des lois, 16.
Ehrhardt, legal philosophy, 47.
Eminent domain, 223-225.
Encyclopedias, 23.
Administrative law, 212.
Enregistrement, 234.
Errors of criminal justice, 187.
Esmein:
Constitutional law, 207.
Criminal procedure, 181.
Legal history, 63, 66, 70.
Etudes criminologiques, 172.
Evidence, 148.
Exces de pouvoir, 214.
Exchanges, 116.
Execution, 150.
Exemption of carrier, 126.
Expropriation, 223.


Extenuating circumstances, 178.
Extradition, 188-189.
Eynard, law of the flag, 128.
Eyquem, dotal regime, 91.
Fabreguettes, freedom of speech, 230.
Faillite, 130.
Fairweather, patents, 134.
Faustin-Helie:
Criminal law, 175.
Criminal procedure, 183.
Faye, Court of cassation, 140.
Fenet, legal history, codification, 70.
Ferri criminal law, 170.
Fiscal legislation, 231-235.
Flag, law of, 128.
Foelix, private international law, 191.
Fonds de commerce, 117.
Fontaine, employment bureaus, 161;
Foreign corporations, 113.
Foreign judgments, 203.
Foreigners in France, 195-198.
Forgo case, conflict of laws, 201.
Form books, procedure, 146.
Fouillee, legal philosophy, 35.
Franck, legal philosophy, 34.
Freedom of speech, 229.
French bar, 151.
Froland, conflict of laws, 198.
Fuzier-Herman:
Civil code, 74.
Encyclopedia, 23.
Garcon:
Criminal law, 171.
Penal code, 174.
Garner:
Administrative acts, 215.
Administrative law, 210.
Garraud, criminal law, 171, 173, 175, 176.
Garsonnet, and Cezar-Bru, civil procedure,
146.
Gautier, bibliography, 11.
Gazette des tribunaux, 22.
Gazette du palais, 22.
General average, 127.
German civil law, works on by Saleilles, 99.
Germanic laws and codes, 55.
Gide, legal philosophy, 42.
Girard, Roman law, 52-53.
Girault, colonial law, 230.
Glasson, legal history, 65.
Glasson and Tissier, civil procedure, 145.
Goirand:
Commercial law, 106.
Foreign corporations, 114.
Judicial organization, 141.
Gombeaux, fonds de commerce, 117.
Goodnow, administrative law, 210.
Grandin, 7.
Grente, copyright, 133.
Griveau, dotal regime, 91.
Growth of civil law after codification, 75.
Guerin, maritime commerce, 123.
Guillouard, Civil code, treatises, 80.
Guizot, criminal law, 169.
Habitual criminals, 179.
Hauriou:
Administrative decisions, 213.
Administrative law, 210, 211.
Constitutional law, 209.
Public law, 205.
Health and safety regulations, 226.
Hemard, insurance, 128, 129.
Historical school, 37.
History. See Legal history, 51-71.
Houpin and Bosvieux, partnerships and corporations, 110.
Hours of labor, 161.
Huard:
Copyright, 133.
Patents, 134.
Hue, Civil code, 83.
Huvelin, Roman law, 54.




INDEX


239


Hypothecation of ships, 124.
Indictment, 185.
Indirect taxes, 234.
Individual rights, 229.
Industrial property. See Literary and industrial property, 131-137.
Influence of French law in America, 1-2.
Inland navigation, 118.
Institut de criminologie, 172.
Insurance, 127-129.
International penal law, 185.
International protection of copyright and patents, 137.
International transportation, 119.
Issue and negotiation of foreign securities, 114.
Japiot, civil procedure, 146.
Jeze:
Administrative law, 211.
Public finance, 231.
Responsibility of State, 220.
State responsibility, contracts, 221.
Joly, criminal law, 172.
Josserand:
Civil law, 83.
Execution, 150.
Torts, 97.
Transportation, 118.
Jouffroy;
Criminal law, 169.
Legal philosophy, 34.
Journal du droit international, 192.
Journal du Palais, 21.
Journal officiel, 15.
Judicial decisions, 18.
Judicial organization, 138-142.
Judicial police, 182.
Judiciary. See Judicial organization, 138-142.
Juge d' instruction, 182, 185.
Juris-classeurs, 24.
Jurisconsults, 60.
Jurisdiction in general, 147-148.
Controversies between foreigners, 202.
Jurisprudence:
See Philosophy of law, 32.
Doctrine and jurisprudence, 18.
Juristic persons. See Persons, Legal personality, 85.
Justices of the peace, 139.
Justinian, Roman law, 53.
Juvenile delinquency, 180.
Kelly, marriage, 88.
Klimrath, legal history, 66.
Kohler, patents, 134.
Labor and social legislation, 153-162.
Compilations of labor and social laws, 158.
Employment bureaus, 161.
Evolution of, 153.
General literature, 158.
Labor contracts, 159.
Labor disputes, 162.
Minimum wages, 161.
Protection of labor, maximum hours,
child labor, safety, etc., 161.
Unions, 162.
Labor code, 157-158.
Lachau, jurisdiction and conflict of laws, 203.
Lachau and Daguin, foreign judgments, 203.
Lacour, maritime commerce, 123.
Lacour and Bouteron, commercial law, 106.
Laferriere, administrative law, 215.
Laine:
Conflict of laws, 198.
Renvoi, 201.
Lambert, comparative law, 50.
Lamer, checks, 121.
Lamy, transportation, 119.
Land insurance, 128.
Lapradelle, 192.
Constitutional law, 209.
Larcher, colonial law, 230.
Larombiere, obligations, 94.


Laurent:
Civil law, 81.
Private international law, 191.
Law libraries, catalogues of, 12, 13.
Law publishers, 13.
Laws. See Legislation, 14-18.
Lebon, administrative decisions, 23, 213.
Lecercl6 and Allix. See Allix, 233, 234.
Lecomte, liquidation judiciaire, 131.
Lefebvre, legal history, 66.
Lefort, insurance, 129.
Le Fur, legal philosophy, 49.
Legal education, 26-32.
Case method, 31.
Curricula, 28.
Degrees, 28.
Enrollment in law schools, 27.
Faculties, 29.
Law schools, 27.
Method of instruction, 30.
Student guides, 26.
Student texts, 31.
Teachers, Contribution to legal literature, 29-30.
Legal history, 51-71.
Codification, 68.
Criminal procedure, 67.
Empire, 70.
Feudal period, 56.
Frankish period, 54.
Gallo-Roman period, 51.
German laws and codes, 55.
History of sources, 68.
Jurisconsults, 60.
Leges barbarorum, 54.
Matrimonial law, 66.
Modern legal histories, 63.
Monarchical period, 59.
Royal legislation, 59-60.
Regional customs, 56.
Coutumiers, 57.
Roman law, 52.
Roman texts, 52.
Succession, 67.
Legal philosophy. See Philosophy of law,
32-49.
Legal profession, 151.
Leges Visigothorum, 55.
Legislation, 14-18.
Codes and laws, 17.
Growth of the law through legislation, 14.
Repositories, 16.
War legislation, 17.
Legitimation, 93.
Lemonnier, insurance, 127.
Le Paulle, copyright, 133.
Le Poittevin:
Criminal law, 179.
Criminal procedure, 182.
Press, 230.
Lerminier, legal philosophy, 34.
L6vy, legitimation, 93.
L6vy-Ullmann, legal philosophy, 47.
Lex romana Burgundionum, 55.
Lex romana Visigothorum, 55.
Lex Salica, 54, 55.
Liberty to work, 153.
Libraries, 12.
Licence en droit, student texts, 31.
Life Insurance, 128.
Limitation of liability, 125.
Limited partnerships, 108.
Linage, de, civil procedure, 145.
Liquidation Judiciaire, 130.
Literary and industrial property, 131-137.
Bibliography, 131.
Copyright, 132.
Designs and models, 135.
Foreign patents and copyright, 136.
General literature, 132.
Patents, 134.




240


INDEX


Literary and industrial property-Contd.
Trade-marks, 135.
Unfair competition, 136.
Littre, legal philosophy, 40.
Livre du centenaire, 7, 83.
Locre, codification, 70.
Loeb:
Foreign corporations, 113.
Marriage, 88.
Loi Chapelier, 153.
Loi Gombette, 55.
Lois annotles, 16.
Lois et actes du gouvernement, 15.
Lois nouvelles, 16.
Lois usuelles, 17.
Lombroso, criminal law, 170.
Lorenzen:
Causa and consideration, 96.
Conflict of laws, 193.
Qualifications, 200.
Renvoi, 201.
Lorraine, 231.
Louage du travail, 160.
Loubat, workmen's compensation, 164
Louis XIV, royal legislation, 59.
Louis, Paul, labor unions, 162.
Louis-Lucas, nationality, 195.
Lucas, criminal law, 169.
Lyon- Caen, bankruptcy, 130.
Lyon-Caen and Renault:
Commercial law, 104, 105.
Maritime commerce, 122.
Magistry:
Health and safety, 226.
Reform, 141.
Magnol, criminal law, 176.
Malapert, liquidation judiciaire, 131.
Malberg, Carr6 de, sovereignty, 223.
Malepeyre, magistracy, 141.
Maleville, codification, 70.
Mancini, conflict of laws, 199.
Mangin, partie civile, 186.
Marcade, Civil code, treatises, 79.
Marcq, State responsibility, 221.
Marital authority, 93.
Marital property, 89-95.
Maritime commerce. See Commercial law,
99-131.
Maritime insurance, 127.
Maritime liens, 124.
Marques de fabrique, 135.
Marriage, 88-91.
History of, 66, 67.
Martin, Olivier, 67.
Masteau, State responsibility, 221.
May, Roman law, 54.
Mayer, commercial code, 102.
Merignhac:
Colonial law, 230.
Community property, 90.
Merlin:
Questions de droit, 25.
Repertoire universel, 25.
Methods of interpretation, 46.
Michel, legal philosophy, 42.
Michoud:
Persons, 86.
Sovereignty, 223.
Military codes, 187.
Military law, 187-188.
Millerand, labor and social legislation, 156.
Minimum wage, 161.
Modern criminal science series, 2.
Modern legal philosophy series, 3.
Mois legislatif et reglementaire, 18.
Moissinac, separate property, 90.
Molinier, criminal law, 176.
Montier and Faucon, fonds de commerce, 117.
Moreau:
Administrative law, 211.
Constitutional law, 209.


Morel, copyright, 133.
Morel, Glasson, and Tissier, civil procedure,
145.
Morin:
Evolution of civil law, 76.
Labor legislation, 154.
Moroccan law, 230.
Moulin, Charles du, legal history, 60.
Moye, public law, 204.
Napoleon III and Labor legislation, 155.
Nast and Kleine, criminal law, 180.
Nationality, 193-195.
of corporations, 114.
Natural law, 33-37, 46-48.
Naturalization, 194.
Negotiable paper, 119-121.
Nezard, public law, 204.
Niboyet:
Alsace and Lorraine, 231.
Nationality, 195.
Pillet and Private international law, 191.
Non-responsibility clause, 126.
Notary, 151.
Nouveau repertoire, 25.
Obligations, 94-98.
Ordonnance civile, royal legislation, 59.
Ortolan:
Civil procedure, 144.
Criminal law, 175.
Oudot, legal philosophy, 34.
Pandectes francaises:
Encyclopedia, 25.
Reports, 21.
Panhard, administrative reports, 21, 213.
Pardessus:
Commercial law, 103.
Maritime commerce, 122.
Paris bar, 152.
Partie Civile, 186.
Partnerships, Associations and Corporations,
107-115.
See also Commercial law, 99-131.
Patents, 134.
Paternal authority, 93.
Payen and Duveau, Paris bar, 152.
Pays de droit contumier, 57.
Pays de droit ecrit, 57.
Pellerin:
Bankruptcy, 131.
Foreign corporations, 113.
Penal code, 168.
Penal code and labor legislation, 153.
Penal law. See Criminal law, 167-180.
Penology, 168-172.
Percerou:
Bankruptcy, 130.
See also Collection Thaller, 105.
Periodicals:
Civil law, 84.
Commercial law, 106.
Criminal law, 177.
Dailies, 22.
Literary and industrial property, 132.
Maritime law, 123.
Partnership, 115.
Private international law, 192.
Public law, 206.
Perriquet, State responsibility, 221.
Personality and reality of law, 198 et seq.
Personality of the State, 221.
Personne morale, 85.
Persons, 85-88, 221-223.
Petit, Roman law, 53.
Petits codes et lois Carpentier, 18.
Petits pr6cis Dalloz, 31.
Philosophy of criminal law, 169-172.
Philosophy of law, 32-49.
Analytical jurisprudence, 37.
Comparative law, 50.
Concept of ideal justice, 36.
Duguit's social solidarity, 44.




INDEX


241


Philosophy of law-Continued.
Evolution of philosophical method, 35.
Historical school, 37.
Individualistic content of natural law, 36.
Methods of interpretation, 46.
Natural law, 33-37, 46, 48.
Positivist-sociological school, 39.
Post-war legal philosophy, 47 et seq.
Revival of natural law, 46-47.
Social solidarity, 41.
The philosophical method in France, 34.
Twentieth century philosophical thought,
42 et seq.
Utilitarianism, 38.
Pic:
Labor and social legislation, 158.
Partnership and corporations, 111.
Pic and Bartin, private companies, 112.
Picard:
Railroads, 225.
Social insurance, 167.
Pichot, unfair competition, 136.
Pi6rard, divorce, 93.
Pigeau, civil procedure, 144.
Pillet:
Foreign copyright and patents, 137.
Foreign corporations, 114.
Foreign judgments, 203.
Jurisdiction of suits of foreigners, 203.
Private international law, 190, 191, 199.
Plaisant:
Copyright, 133.
Foreign copyright and patents, 137.
Planiol, civil law, 83.
Planiol and Ripert, civil law, 82.
Poincare, public law, 204.
Police, judicial, 182.
Political laws, 206.
Pont, Marcade and, 79.
Portalis, codification, 71.
Positivist-sociologieal school, 39.
Possession, property, 98-99.
Pothier, legal history, 61.
Potu, renvoi, 201.
Pouillet:
Copyright, 133.
Designs and models, 135.
Patents, 134.
Trade-marks, 135.
Unfair competition, 136.
Press, 229.
Pr6voyance sociale, 157.
Private companies, 112.
Private international law, 189-203.
Acquired rights, 202.
Conflict of laws, 198.
Foreign judgments, 203.
Foreigners, privileges, etc., 195-198.
Nationality, 193-195.
Naturalization, 194.
Periodicals, 192.
Renvoi, 201.
Suits by and against foreigners, 202.
Theories of conflict of laws, 198 et seq.
Theory of qualifications, 200.
Treatises, 190.
Procedure. See Civil procedure, 137-153:
Criminal procedure, 180-189.
Proof, 148.
Proudhon, labor legislation, 155.
Protection of workers, 162.
Prud'hommes. See Conseils de prud'hommes, 139, 154.
Public education, 226.
Public finance, 231-234.
Budget, 232.
Corporations, 234.
Direct taxes, 233.
Indirect taxes, 234.
Registration, 234.
Sales tax, 234.


Public Law, 204-206.
Code of political laws, 206.
Elementary texts, 204.
Evolution of, 205.
Periodicals, 206.
Public works, 223-225.
Punishment, 170, 171, 178, 179.
Qualifications, theory of, 200.
Railroads, public administration, 118, 225.
Rauter, civil procedure, 144.
Raviart, civil procedure, 146.
Raynaud:
Code du travail, 158.
Labor and social legislation, 159, 161.
Recueil d'Isambert, legal history, 60.
Recueil de l'Academie de legislation de
Toulouse, 84.
Recueil Sirey. See Sirey.
Regional customs, 56.
R6my, criminal law, 168.
Renard:
Legal philosophy, 48.
Public law, 204-206.
Renault. See Lyon-Caen.
Renouard:
Bankruptcy, 130.
Copyright, 133.
Renouvier, legal philosophy, 34.
Renvoi, 201.
R6pertoire general, 23.
R6pertoire m6thodique, 24.
Repertoire pratique, 23, 24.
Repertoires. See Encyclopedias, 23.
Responsibility of State for torts, 216-221.
Administrative responsibility, 219.
Coexistence of civil and administrative
responsibility, 218.
Contracts, 221.
General literature, 220.
Personal and official fault, 217.
Revue critique, 84.
Revue de droit international prive, 192.
Revue de droit maritime, 123.
Revue de legislation et de jurisprudence, 84.
Revue Foelix, 84.
Revue gen6rale, 84.
Revue historique, 65, 84.
Revue internationale du droit maritime, 123.
Revue penitentiaire, 177.
Revue pratique, 84.
Revue trimestrielle, 84.
Revue Wolowski, 84.
Richard, legal philosophy, 40.
Ripert:
Maritime commerce, 122.
Obligations, 95.
See also Planiol.
Riviere, Codes and laws, 17.
Robert, French bar, 153.
Rodiere, civil procedure, 144.
Roger, transportation, 119.
Roger and Sorel, Codes and laws, 17.
Rolland, administrative law, 211.
Roman law, 52.
Rossi, criminal law, 169.
Rothe, legal philosophy, 35.
Roubier, literary and industrial property, 132.
Rousseau, partnership and corporations, 111.
Rousseau and Gallie, exchanges, 116.
Rousseau and Laisney, civil procedure, 147.
Roux, criminal law, 170, 176.
Royal legislation, 59.
Sachet, workmen's compensation, 164.
Safety regulations, 161.
Sagnac, 15.
Saillard, French bar, 152.
Saleilles:
Attempts, 177.
Comparative law, 50.
Criminal law, 171.
Evolution of civil law, 75.




242


INDEX


Saleilles-Continued.
Legal philosophy, 37.1
Obligations, 95.
Persons, 86.
Works on German civil law, 99.
Sales tax, 234.
Sarrut, transportation, 119.
Sauvage, maritime commerce, 126.
Savigny, historical school, 37.
Scelle, social and labor legislation, 159.
Schreiber, renvoi, 201.
Semaine juridique, 84.
Separate property, 90.
Ship mortgages, 124.
Simonet, administrative law, 211.
Singer:
Copyright, 133.
Patents, 134.
Sirey:
Civil code, 74.
Code of civil procedure, 143.
Commercial code, 101.
Court reports, 20.
Encyclopedias, 23.
Penal code, 174.
Student texts, 31.
Sirey et Malepeyre, criminal procedure, 182.
Social insurance, 165-167.
Social legislation, 153 et seq.
Social solidarity, 41.
Societe anonyme, 109.
Societe de legislation comparee:
Annuaire de legislation francaise, 16.
Evolution of civil law, 76.
Societe en commandite, 108.
Societ6 en horn collectif, 108.
Societes a responsabilit6 limitee, 112.
See also in general Partnerships, Associations and Corporations, 107-115.
Solidarist doctrine, 41 et seq.
Solus, social insurance, 167.
Sovereignty, 221.
State responsibility, 216.
Stock transfers, 116.
Stourm, budget, 233.
Successions, 99.
History of, 67.
Sumien, insurance, 128.
Sumien and Groussier, code du travail, 158.
Surville and Arthuys, private international
law, 191.
Taillefer, patents, 134.
Tanon, legal philosophy, 41.
Tarde, criminal law, 172.
Tardif, history of sources, 68.
Taudiere, paternal authority, 93.
Taxation. See Public finance, 231-234.
Teissier, State responsibility, 220.
Texts of French Constitutions, 207.
Thaller, commercial law, 105.
Themis, 84.
Theories of conflict of laws, 199.


Third Republic and labor legislation, 155-157.
Thomines-Desmazures, civil procedure, 145.
Tissier, civil procedure, 143.
Tissier and Glasson, civil procedure, 145.
Torts, 96-98.
Toulemon, criminal law, 172.
Toullier, civil law, 78.
Tourret, minimum wage, 161.
Trade-marks, 135.
Translation of Civil code, 75.
of Commercial code, 101.
Transportation, 118-119.
Public administration, 225.
Travers:
Criminal procedure, 185.
Extradition, 189.
Treaties, 18.
Treatises. See Administrative law, 210-216;
Civil code, etc.
Tr6butien, criminal law, 176.
Tribunal of conflicts, 214.
Tribunal of the first instance, 139.
Troplong, Civil code, 79.
Trusts, 99.
Unfair competition, 136.
Unfair dealing, 97.
Unions, 162.
Utilitarianism, 38.
Valery:
Nationality, 195.
Private international law, 192.
Valroger, maritime commerce, 122.
Van den Heuvel, persons, 85.
Vareilles-Sommieres:
Legal philosophy, 35.
Persons, 86.
Territoriality of law, 199.
Vavasseur, partnerships and corporations,
110.
Vermond, maritime commerce, 123.
Victims of erroneous convictions, 187.
Vidal, criminal law, 171, 176.
Viollet, legal history, 64.
Vivante, insurance, 127.
Wahl:
Commercial law, 106.
Maritime commerce, 123.
Waldmann, exchanges, 116.
War legislation, 17.
Well, insurance, 127.
Weiss, private international law, 190, 191.
White, patents, 134.
Wilhelm, military law, 188.
Williamson, negotiable paper, 121.
Wodon, State responsibility, 221.
Workmen's compensation, 162-165.
General literature, 164.
Prior to 1898, 162.
Repositories of, 164.
Wright, Civil code, 75.
York-Antwerp rules, 128.
Zacharia, Civil code, 79.


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