4i; ■
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OE CALIEORNIA 
 
 RIVERSIDE
 
 THE CONTINENTAL 
 LEGAL HISTORY SERIES 
 
 Volume Three 
 
 HISTORY 
 
 OF 
 
 FRENCH PRIVATE LAW
 
 The Continental Legal History Series 
 
 Publ'isJied under' the auspices of the 
 
 Association of American Law Schools 
 
 I. A GENERAL SURVEY OF EVENTS, SOURCES, PERSONS, 
 AND MOVEMENTS IN CONTINENTAL LEGAL HISTORY. 
 By Various Authors. Translated by Rapelje Howell, F. S. 
 Philbrick, John Walgren, and John H. Wigmore. $6.00 net. 
 
 II. GREAT JURISTS OF THE WORLD, FROM PAPINIAN TO 
 VON IHERING. By Various Authors. Illustrated. (Extra vol- 
 ume. By arrangement with John Murray, London.) $5.00 net. 
 
 III. HISTORY OF FRENCH PRIVATE LAW. By J. Brissaud, late 
 of the University of Toulouse. Translated by Rapelje Howell, of 
 the New York Bar. $5.00 net. 
 
 IV. HISTORY OF GERMANIC PRIVATE LAW. By Rudolph 
 HuEBNER, of the University of Rostock. Translated by Dr. Francis 
 S. Philbrick, of New York, N. Y. $4.50 net. 
 
 V. HISTORY OF CONTINENTAL CRIMINAL PROCEDURE. By 
 
 A. EsMEiN, Professor in the University of Paris, with chapters by 
 Francois Garraud, of the University of Lyon, and C J. A. Mitter- 
 MAiER, late of the University of Heidelberg. Translated by John 
 Simpson, of the New York Bar. $4.50 net. 
 
 VI. HISTORY OF CONTINENTAL CRIMINAL LAW. By Ludwig 
 von Bar, of the University of Gottingen. Translated by Thomas S. 
 Bell, of the Tacoma Bar. $4.00 net. 
 
 VII. HISTORY OF CONTINENTAL CIVIL PROCEDURE. By 
 
 Arthur Engelmann, Chief Justice of the Court of Appeals at Breslau, 
 with a chapter by E. Glasson, late of the University of Paris. Trans- 
 lated by Robert W. Millar, of Northwestern University. $4.00 net. 
 
 VIII. HISTORY OF ITALIAN LAW. By Carlo Calisse, of the Italian 
 Council of State. Translated by John Lisle, of the Philadelphia 
 Bar. $5.00 net. 
 
 IX. HISTORY OF FRENCH PUBLIC LAW. By J. Brissaud, late of 
 the University of Toulouse. Translated by James W. Garner, of 
 the University of Illinois. $4.50 net. 
 
 X. HISTORY OF CONTINENTAL COMMERCIAL LAW. By Paul 
 HuvELiN, of the University of Lyon. Translated by Ernest G. 
 Lorenzen, of the University of Wisconsin. $5.50 net. 
 
 XL THE EVOLUTION OF LAW IN EUROPE. By Gabriel Tarde, 
 Raoul de la Grasserie, and others. $5.00 net.
 
 THE CONTINENTAL LEGAL HLSTORY SERIES 
 
 Published under the auspices of the 
 ASSOCIATION OF AMERICAN LAW SCHOOLS 
 
 A HISTORY 
 
 OF 
 
 FRENCH PRIVATE LAW 
 
 JEAN'BRISSAUD 
 
 LATE PROFESSOR OF LEGAL HISTORY IN THE UNIVERSITY 
 OF TOULOUSE 
 
 TRANSLATED FROM THE SECOND FRENCH EDITION 
 
 BY 
 
 RAPELJE HOWELL 
 
 OF THE NEW YOKlv BAB 
 
 WITH INTRODUCTIONS BY 
 
 W. S. HOLDSWORTH 
 
 READER IN ENGLISH LAW, ST. JOHn's COLLEGE, OXFORD 
 AND 
 
 JOHN II. WIGMORE 
 
 PROFESSOR OF LAW, NORTHWESTERN UNIVERSITY 
 
 BOSTON 
 
 LITTLE, BROWN, AND COMPANY 
 
 1912
 
 KJJ 
 
 Copyright, 1912, 
 Bt Little, Brown, and Company. 
 
 All rights reserved 
 
 The University Press, CAMnRiPOE, U.S.A.
 
 EDITORIAL COMMITTEE 
 
 OF THE 
 
 ASSOCIATION OF AMERICAN LAW SCHOOLS 
 
 Ernst Freund, Professor of Law in the University of Chicago. 
 
 CiiARLES H. HuBERiCH, ProfessoF of liaw in Stanford University. 
 
 Ernest G. Lorenzen, Professor of Law in the University of 
 Wisconsin. 
 
 Wm. E. Mikell, Professor of Law in the University of Penn- 
 sylvania. 
 
 John H. Wigmore, Chairman, Professor of Law in Northwestern 
 University. 
 
 LIST OF TRANSLATORS 
 
 Thomas S. Bell, of the Tacoma Bar. 
 
 James W. Garner, Professor in the State University of 
 
 lUinois. 
 Rapeue Howell, of the New York Bar. 
 John Lisle, of the Philadelphia Bar. 
 Ernest G. Lorenzen, of the Editorial Committee. 
 Robert W, Millar, Lecturer in Northwestern University. 
 Francis S. Philbrick, of Washington, D. C. 
 John Simpson, of the New York Bar. 
 John Walgren, of the Chicago Bar. 
 John H. Wigmore, of the Editorial Committee.
 
 I might instance in other professions the obligation men lie under of 
 applying themselves to certain parts of History; and I can hardly for- 
 bear doing it in that of the Law, — in its nature the noblest and most 
 beneficial to mankind, in its abuse and debasement the most sordid and 
 the most pernicious. A lawyer now is nothing more (I speak of ninety- 
 nine in a hundred at least), to use some of Tully's words, "nisi leguleius 
 quidem cautus, et acutus praeco actionum, cantor formularum, auceps 
 syllabarum." But there have been la\vyers that were orators, philoso- 
 phers, historians: there have been Bacons and Clarendons. There will 
 be none such any more, till in some better age true ambition, or the love 
 of fame, prevails over avarice; and till men find leisure and encourage- 
 ment to prepare themselves for the exercise of this profession, by climb- 
 ing up to the vantage ground (so my Lord Bacon calls it) of Science, 
 instead of grovelling all their lives below, in a mean but gainful applica- 
 tion of all the little arts of chicane. Till this happen, the profession of the 
 law will scarce deserve to be ranked among the learned professions. And 
 whenever it happens, one of the vantage grounds to which men must 
 cUmb, is Metaphysical, and the other. Historical Knowledge. Henry 
 St. John, Viscount Bolingbroke, Letters on the Study of History (1739). 
 
 Whoever brings a fruitful idea to any branch of knowledge, or rends 
 the veil that seems to sever one portion from another, his name is written 
 in the Book among the builders of the Temple. For an English lawyer 
 it is hardly too much to say that the methods which Oxford invited Sir 
 Henry Maine to demonstrate, in this chair of Historical and Comparative 
 Jurisprudence, have revolutionised our legal history and largely trans- 
 formed our current text-books. — Sir Frederick Pollock, Bart., The 
 History of Comparative Jurisprudence (Farewell Lecture at the Univer- 
 sity of Oxford, 1903). 
 
 No piece of History is true when set apart to itself, divorced and iso- 
 lated. It is part of an intricately pieced whole, and must needs be put 
 in its place in the netted scheme of events, to receive its true color and 
 estimation. We are all partners in a common undertaking, — the illumi- 
 nation of the thoughts and actions of men as associated in society, the 
 life of the human spirit in this famihar theatre of cooperative effort in 
 which we play, so changed from age to age, and yet so much the same 
 throughout the hurrying centuries. The day for synthesis has come. No 
 one of us can safely go forward without it. — Woodrow Wilson, The 
 Variety and Unity of History (Address at the World's Congress of Arts 
 and Science, St. Louis, 1904).
 
 CONTINENTAL LEGAL HISTORY SERIES 
 GENERAL INTRODUCTION TO THE SERIES 
 
 "All history," said the lamented master Maitland, in a memo- 
 rable epigram, " is but a seamless web ; and he who endeavors to 
 tell but a piece of it must feel that his first sentence tears the 
 fabric." 
 
 This seamless web of our own legal history unites us inseparably 
 to the history of Western and Southern Europe. Our main interest 
 must naturally center on deciphering the pattern which lies 
 directly before us, — that of the Anglo-American law. But in 
 tracing the warp and woof of its structure we are brought inevi- 
 tably into a larger field of vision. The story of Western Continental 
 Law is made up, in the last analysis, of two great movements, 
 racial and intellectual. One is the Germanic migrations, planting 
 a solid growth of Germanic custom everywhere, from Danzig 
 to Sicily, from London to Vienna. The other is the posthumous 
 power of Roman law, forever resisting, struggling, and coalescing 
 with the other. A thousand detailed combinations, of varied 
 types, are developed, and a dozen distinct systems now survive 
 in independence. But the result is that no one of them can be 
 fully understood without surveying and tracing the whole. 
 
 Even insular England cannot escape from the web. For, in 
 the first place, all its racial threads — Saxons, Danes, Normans — 
 were but extensions of the same Germanic warp and woof that 
 was making the law in France, Germany, Scandinavia, Nether- 
 lands, Austria, Switzerland, Northern Italy, and Spain. And, 
 in the next place, its legal culture was never without some of the 
 same intellectual influence of Roman law which was so thoroughly 
 overspreading the Continental peoples. There is thus, on the 
 one hand, scarcely a doctrine or rule in our own system which can- 
 not be definitely and profitably traced back, in comparison, till 
 we come to the point of divergence, where we once shared it in 
 common with them. And, on the other hand, there is, during all 
 the intervening centuries, a more or less constant juristic socia- 
 bility (if it may be so called) between Anglo-American and Con- 
 
 ix
 
 CONTINENTAL LEGAL HISTORY SERIES 
 
 tinental Law; and its reciprocal influences make the story one 
 and inseparable. In short, there is a tangled common ancestry, 
 racial or intellectual, for the law of all Western Europe and ourselves. 
 
 For the sake of legal science, this story should now become a 
 familiar one to all who are studious to know the history of our 
 own law. The time is ripe. During the last thirty years Euro- 
 pean scholars have placed the history of their law on the footing 
 of modern critical and philosophical research. And to-day, among 
 ourselves, we find a marked widening of view and a vigorous 
 interest in the comparison of other peoples' legal institutions. 
 To the satisfying of that interest in the present field, the only 
 obstacle is the lack of adequate materials in the English language. 
 
 That the spirit of the times encourages and demands the study 
 of Continental Legal History and all useful aids to it was pointed 
 out in a memorial presented at the annual meeting of the Asso- 
 ciation of American Law Schools in August, 1909: 
 
 "The recent spread of interest in Comparative Law in general is 
 notable. The Comparative Law Bureau of the American Bar Associa- 
 tion; the Pan-American Scientific Congress; the American Institute 
 of Criminal Law and Criminology; the Civic Federation Conference 
 on Uniform Legislation; the International Congress of History; the 
 libraries' accessions in foreign law, — the work of these and other 
 movements touches at various points the bodies of Continental law. 
 Such activities serve to remind us constantly that we have in English 
 no histories of Continental law. To pay any attention at all to Con- 
 tinental law means that its history must be more or less considered. 
 Each of these countries has its own legal system and its own legal 
 history. Yet the law of the Continent was never so foreign to Eng- 
 lish as the English law was foreign to Continental jurisprudence. 
 It is merely maintaining the best traditions of our own legal litera- 
 ture if we plead for a continued study of Continental legal history. 
 
 " We believe that a better acquaintance with the results of modern 
 scholarship in that field will bring out new points of contact and 
 throw new light upon the development of our own law. Moreover, 
 the present-day movements for codification, and for the reconstruc- 
 tion of many departments of the law, make it highly desirable that 
 our profession should be well informed as to the history of the nine- 
 teenth century on the Continent in its great measures of law reform 
 and codification. 
 
 " For these reasons we believe that the thoughtful American lawyers 
 and students should have at their disposal translations of some of 
 the best works in Continental legal history." 
 
 And the following resolution was then adopted unanimously by 
 the Association:
 
 CONTINENTAL LEGAL HISTORY SERIES 
 
 " That a committee of five be appointed, on Translations of Conti- 
 nental Legal History, with authority to arrange for the translation 
 and publication of suitable works." 
 
 The Editorial Committee, then appointed, spent two years in 
 studying the field, making selections, and arranging for trans- 
 lations. It resolved to treat the undertaking as a whole; and to 
 co-ordinate the series as to (1) periods, (2) countries, and (3) 
 topics, so as to give the most adequate survey wuthin the space- 
 limits available. 
 
 (1) As to j)eriods, the Committee resolved to include modern 
 times, as w'ell as early and mediseval periods; for in usefulness 
 and importance they were not less imperative in their claim upon 
 our attention. Each volume, then, was not to be merely a valu- 
 able torso, lacking important epochs of development; but was 
 to exhibit the history from early to modern times. 
 
 (2) As to countries, the Committee fixed upon France, Ger- 
 many, and Italy as the central fields, leaving the history in other 
 countries to be touched so far as might be incidentally possible. 
 Spain would have been included as a fourth; but no suitable book 
 was in existence; the unanimous opinion of competent scholars 
 is that a suitable history of Spanish law has not yet been written. 
 
 (3) As to iopics, the Committee accepted the usual Continental 
 divisions of Civil (or Private), Commercial, Criminal, Procedural, 
 and Public Law, and endeavored to include all five. But to repre- 
 sent these five fields under each principal country would not only 
 exceed the inevitable space-limits, but would also duplicate much 
 common ground. Hence, the grouping of the individual volumes 
 was arranged partly by topics and partly by countries, as follows: 
 
 Commercial Law, Criminal Law, Civil Procedure, and Criminal 
 Procedure, were allotted each a volume; in this volume the basis 
 was to be the general European history of early and mediaeval 
 times, with special reference to one chief country (France or 
 (jermany) for the later periods, and with an excursus on another 
 chief country. Then the Civil (or Private) Law of France and 
 of Germany was given a volume each. To Italy was then given 
 a volume covering all five parts of the field. For Public Law (the 
 subject least related in history to our own), a volume was given 
 to France, where the common starting point with England, and 
 the later divergences, have unusual importance for the history 
 of our courts and legal methods. Finally, two volumes were 
 allotted to general surveys indispensable for viewing the connec- 
 
 xi
 
 CONTINENTAL LEGAL HISTORY SERIES 
 
 tion of parts. Of these, an introductory volume deals with Sources, 
 Literature, and General Movements, — in short, the external 
 history of the law, as the Continentals call it (corresponding to 
 the aspects covered by Book I of Sir F. Pollock and Professor 
 F. W. Maitland's "History of the English Law before Edward I") ; 
 and a final volume analyzes the specific features, in the evolution 
 of doctrine, common to all the modern systems. 
 
 Needless to say, a Series thus co-ordinated, and precisely suited 
 for our own needs, was not easy to construct out of materials 
 written by Continental scholars for Continental needs. The 
 Committee hopes that due allowance will be made for the diflS- 
 culties here encountered. But it is convinced that the ideal of 
 a co-ordinated Series, which should collate and fairly cover 
 the various fields as a connected whole, is a correct one; and the 
 endeavor to achieve it will sufficiently explain the choice of the 
 particular materials that have been used. 
 
 It remains to acknowledge the Committee's indebtedness to 
 all those who have made this Series possible. 
 
 To numerous scholarly advisers in many European universities 
 the Committee is indebted for valuable suggestions towards 
 choice of the works to be translated. Fortified by this advice, 
 the Committee is confident that the authors of these volumes 
 represent the highest scholarship, the latest research, and the 
 widest repute, among European legal historians. And here the 
 Committee desires also to express its indebtedness to Elbert H. 
 Gary, Esq., of New York City, for his ample provision of 
 materials for legal science in the Gary Library of Continental 
 Law (in Northwestern University). In the researches of prep- 
 aration for this Series, those materials were found indispensable. 
 
 To the authors the Committee is grateful for their willing 
 co-operation in allowing this use of their works. Without ex- 
 ception, their consent has been cheerfully accorded in the 
 interest of legal science. 
 
 To the publishers the Committee expresses its appreciation 
 for the cordial interest shown in a class of literature so impor- 
 tant to the higher interests of the profession. 
 
 To the translators, the Committee acknowledges a particular 
 gratitude. The accomplishments, legal and linguistic, needed for 
 a task of this sort are indeed exacting; and suitable translators 
 are here no less needful and no more numerous than suitable 
 authors. The Committee, on behalf of our profession, acknowl- 
 
 xii
 
 CONTINENTAL LEGAL HISTORY SERIES 
 
 edges to them a special debt for their cordial services on behalf 
 of legal science, and commends them to the readers of these vol- 
 umes with the reminder that without their labors this Series 
 would have been a fruitless dream. 
 
 So the Committee, satisfied with the privilege of having intro- 
 duced these authors and their translators to the public, retires 
 from the scene, bespeaking for the Series the interest of lawyers 
 and historians alike. 
 
 The Editorial Committee. 
 
 xni
 
 HISTORY OF FRENCH PRIVATE LAW
 
 CONTENTS 
 
 PAGB 
 
 Editorial Committee and List of Translators v 
 
 General Introduction to the Continental Legal History 
 
 Series ix 
 
 Editorial Prefatory Note by John H. Wigmore xxvii 
 
 Introduction by William Searle Holdsworth xxxiii 
 
 Translator's Remarks xliii 
 
 General Reference List of Treatises Cited xlv 
 
 Table of Abbreviations most frequently used xlvii 
 
 INTRODUCTION TO PRIVATE LAW 
 
 ORIGIN OF THE FAMILY, OF OWNERSHIP, AND OF 
 THE STATE 
 
 Topic 1. Origin of the Family, §§ 1-32 1-29 
 
 § 1. In General. § 2. Theories of the Evolutionists. § 3. First 
 Stage. Promiscuity or States bordering upon it. § 4. The Conse- 
 quences of Promiscuity. § 5. Second Stage. Matriarchate. — 
 Evolution towards the Maternal Family. § 6. The Prohibition of 
 Incest. § 7. Marriage by Groups. § 8. Polyandry. § 9. Among 
 the Reddies. § 10. Exogamy. § 11. Organization of the Maternal 
 Family. Relationship through the Same Mother. § 12. Third 
 Stage. Patriarchate. § 13. Formation of Marriage. — (I) Abduction. 
 § 14. The Same. — (II) Purchase. § 15. Marriage by Servitude. 
 § le. Effects of Marriage. Status of the Wife. § 17. The Position 
 of Children. § 18. Levirate. § 19. The Recognition of Paternity. 
 § 20. Adultery. § 21. Agnatic Relationship. § 22. Systems of 
 Succession. § 23. Ancestor Worship. § 24. Family Communities. 
 § 25. Dissolution of Family Communities. Evolution towards the 
 Simple Family. § 26. Polygamy. § 27. Evolution towards Mono- 
 gamy. § 28. Forms of Transition. § 29. Monogamy. § 30. Evolu- 
 tion towards the Independence of Children. §§ 31, 32. Evolution 
 towards the Emancipation of the Woman. 
 
 Topic 2. Origin of Ownership, §§ 33-61 30-54 
 
 § 33. Ownership of Movables and Ownership of Land. 
 
 A. collective ownership 
 
 § 34. Collective Ownership of the Clan or the Tribe. § 35. The 
 Ownership of Land among the Alemanni. § 36. Frankish Period. 
 §§ 37, 38. The Germanic March. § 39. The Marches Disappear. 
 § 40. Anglo-American Townships. §41. The "Mir." §42. The Vil- 
 lage Community in India. § 43. The "Dessa" or Commune of Java. 
 § 44. The Abandonment of Collective Ownership. 
 
 xvii
 
 CONTENTS 
 
 B. KEMAINS OF COLLECTIVE OWNERSHIP 
 
 PAGB 
 
 § 45. (I) The Manorial System. §§ 46, 47. (II) The Rights of Pre- 
 emption and Repurchase. §48. (Ill) The "Flurzwang." §49. (IV) 
 The Rights of Commons. § 50. "Allmends." § 51. Feudahsm and 
 Rights of Commons. § 52. Theory of the Feudists. § 53. Theory 
 of the Romanists. § 54. The Revolutionary Law; § 55. Partition of 
 Rights of Commons. 
 
 C. FAMILY JOINT OWNERSHIP 
 
 § 56. Family Joint Ownership. 
 
 D. REMAINS OF FAMILY JOINT OWNERSHIP 
 
 § 57. (I) Rules of Successions. § 58. (II) The Classification of 
 Immovable Property into Personal Belongings and Acquests. § 59. 
 Family Institutions in Our Period. § 60. (Ill) Rules of Feudal 
 Ownership. § 61. (IV) The Process of Evolution towards Indi- 
 vidual Ownership. 
 
 Topic 3. Origin of the State, §§ 62-91 55-79 
 
 I. general remarks 
 
 § 62. The Society and the State. § 63. Organic Theory of the 
 State. § 64. Localization of Functions. § 65. Changes in Structure. 
 § 66. Interdependence of the Parts. § 67. Organs and Apparatus. 
 § 68. Political Forms. § 69. Personal Government. § 70. Social Dis- 
 tinctions. Classes and Castes. § 71. How are Societies Formed, 
 Developed, and Reproduced, and how do they Die? § 72. The 
 Factors of Social Evolution. § 73. Social Laws. 
 
 II. elementary and composite societies 
 
 § 74. Primitive Societies. § 75. The Clan or the "Gens." § 76. The 
 Maternal "Gens" among the Iroquois. § 77. The Celtic Clan. §78. 
 The Roman "Gens." §79. The "Clientele." §80. The Germanic 
 "Sippe." § 81 . The Germanic Following. § 82. The Tribe. § 83. The 
 Gallic Towns and the Germanic Towns. Political Divisions. § 84. 
 Classes of Population. § 85. The Political Function. § 86. The 
 Political Organs. § 87. The Popular Assembly. § 88. Senate. § 89. 
 Kings or Chiefs. § 90. Composite Societies. § 91. The Ancient Town 
 and its Revolutions. 
 
 HISTORY OF PRIVATE LAW 
 § 92. General Evolution 80 
 
 CHAPTER ONE 
 
 THE FAMILY 
 
 § 93. General Ideas. § 94. Relationship. § 95. The House, or 
 "mesnie" 82-86 
 
 Topic 1. Marriage. Legislation and Jurisdiction, §§ 96-100 87-92 
 § 96. Marriage after the Invasions. § 97. The Church and the 
 Religious Marriage. § 98. Civil Marriage. § 99. Legislation and 
 Jurisprudence of the Monarchic Period. § 100. The Revolutionary 
 Law. 
 
 xviii
 
 CONTENTS 
 
 PAGE 
 
 Topic 2. Betrothals, §§ 101-105 93-100 
 
 § 101. Barbarian Period. § 102. The Same. Betrothal Essential. 
 § 103. Consent replaces Betrothal. The Canon Law. §§ 104, 105. 
 Betrothal Restored. 
 
 Topic 3. Celebration of Marriage, §§ 106-110 101-110 
 
 § 106. Canon Law Previous to the Council of Trent. § 107. Coun- 
 cil of Trent. § 108. Civil Legislation. § 109. Marriage of Protes- 
 tants. § 110. Revolutionary Law. 
 
 Topic 4. Concerning Impediments to Marriage, §§ 111-122 . 111-135 
 § 111. The Basic Conditions. § 112. Classification of Impedi- 
 ments. § 113. Invalidating Impediments. — (I) Lack or Defects of 
 Consent. § 114. The Same. — (II) The Consent of the Relatives 
 to the Marriage. § 115. The Same. — (Ill) Incapacity. § 116. The 
 Same — (IV) Impediments resulting from Relationship. § 117. The 
 Same. — (V) Incompatibility of Marriage with Certain other Condi- 
 tions. § 118. The Same. — (VI) Prohibitive Impediments. §119. 
 Preventing a Marriage. § 120. Dispensations. § 121. Nullity of 
 Marriage. § 122. Rehabilitation and Repudiated Marriage. 
 
 Topic 5. Effects of Marriage, §§ 123-126 136-140 
 
 § 123. The Legal Consequences. § 124. Adultery. §§ 125, 126. The 
 Same: Penalties. 
 
 Topic 6. Dissolution of Marriage, §§ 127-135 141-151 
 
 § 127. The Death of one of the Spouses. § 128. Divorce. The 
 Lower Empire. § 129. The Germanic Law. § 130. Canon Law. 
 § 131. Judicial Separation. § 132. The Jurisprudence of the Parlia- 
 ments. § 133. Reaction against Indissolubility. The Reformation. 
 § 134. The Philosophers of the Eighteenth Century. § 135. Rev- 
 olutionary Laws. 
 
 Topic 7. Second Marriages, §§ 136-140 152-157 
 
 § 1.36. Barbarian Law. §137. The "Reipus." § 138. The "Acha- 
 sius." § 139. Canon Law. § 140. Protection of the Children of the 
 First Marriage. 
 
 Topic 8. Union Other than Marriage, §§ 141-143 158-162 
 
 § 141. In General. § 142. Concubinage. § 143. Morganatic Mar- 
 riages. 
 
 Topic 9. Power of the Husband, §§ 144-153 163-177 
 
 §§ 144, 145. Foundations of the Power of the Husband. § 146. 
 Right of Correction. § 147. The Husband's Authority. § 148. 
 The Incapacity of the Wife is General. § 149. How is the Authori- 
 zation Given ? § 150. Supplementary Authorization Given by Law. 
 § 151. Effects of Authorization. § 152. Lack of Authorization. — 
 Beaumanoir's System. § 153. Rights of Third Parties. 
 
 Topic 10. The Paternal Power, §§ 154-168 178-201 
 
 § 154. Sources of the Paternal Power. § 155. Origin. § 156. 
 ''Mundium" and "Patria Potestas." § 157. The Same. — (I) The 
 limited duration of the " mundium " in contrast to the perpetuity 
 of the "patria potestas." § 158. The Same. — (II) The conception 
 of family joint ownership. § 159. Transformation of the "Mun- 
 
 xix
 
 CONTENTS 
 
 PAGE 
 
 dium." § 160. Customary "Mainbournie." § 161. Rights over the 
 Person. Correction. § 162. The Duties of Parents. § 163. Rights 
 over Possessions. § 164. Capacity of the Child under Authority. 
 § 165. Right of the Mother. § 166. Emancipation. § 167. Eman- 
 cipating Majority. § 168. Revolutionary Law. 
 
 Topic 11. Concerning Illegitimate Children, §§ 169-176 . . 202-216 
 § 169. Germanic Law. § 170. Christian Ideas. § 171. The Law 
 of the Monarchic Period. § 172. The Condition of Bastards. § 173. 
 Proof of Natural Filiation. § 174. Revolutionary Law. § 175. Le- 
 gitimation. § 176. Legitimation by Rescript from the Prince. 
 
 Topic 12. Adoption, §§ 177-181 217-220 
 
 §§ 177-179. Adoption. § 180. Fraternization. § 181. Affihation 
 or Foster-Brotherhood. 
 
 Topic 13. Condition of Women, §§ 182-188 221-231 
 
 § 182. In the Old Germanic Law. § 183. In Public Law. § 184. 
 Changes in the Station of Women. § 185. German and Italian Law. 
 § 186. In France. §§ 187, 188. Velleianum Decree of the Senate. 
 
 Topic 14. Guardianship and Custody, §§ 189-214 232-266 
 
 § 189. Guardianship of Minors during the Barbarian Period. 
 § 190. Suspension of Actions by or against the Minor. § 191. In- 
 tervention of the State. § 192. Feudal Law. § 193. Seigniorial 
 Protection. § 194. The Lease of Fiefs. § 195. Rights of the Guard- 
 ian. § 196. Obligations. § 197. Nobleman's Custody. § 198. Plebeian 
 Custody. § 199. Citizen's Custody. § 200. Modern Guardianship. 
 § 201. In France every Guardianship is Appointive. § 202. Powers 
 of the Guardian. § 203. Guarantees in the Interest of the Minor. 
 § 204. The Revolutionary Law. § 205. The Question of the Capacity 
 of the Minor. § 206. The Barbarian Majority. §§ 207, 208. Under 
 the Feudal System. §§ 209, 210. Emancipation of Minors under 
 Guardianship. §§ 211-214. Persons who have attained Majority 
 and are under a Disability. 
 
 CHAPTER TWO 
 OWNERSHIP AND REAL RIGHTS 
 
 Topic 1. Divisions of Property, §§ 215-236 267-287 
 
 § 215. General Remarks. § 216. (I) Movables and Immovables. 
 § 217. Basis of this Division and its Extension. § 218. Movables and 
 Chattels. § 219. Inheritances or Immovables. § 220. (II) Per- 
 sonal Belongings and Acquests. §§ 221, 222. Alienation "inter 
 vivos." § 223. Inheritance of Personal Belongings. §§ 224, 225. 
 Jointly held Personal Belongings. § 226. Proofs. § 227. (Ill) 
 Things which do not Come Within Trade. Royal Prerogatives. 
 § 228. Prerogative over the Ground. — Possessions without an 
 owner. § 229. Expropriation. § 230. Confiscation. § 231. Prop- 
 erty of the Enemy. § 232. Prerogative of Mines. § 233. Treasure. 
 § 234. Estrays, Waifs. § 235. The Prerogative of Forests. §236. 
 Prerogative over Waters. 
 
 Topic 2. System of Ownership of Movables, §§ 237-247 . . . 288-304 
 
 § 237. "Mobiha Non Habent Sequelam." § 238. The Barbarian 
 Period. § 239. (I) Voluntary Dispossession. §§ 240-242. (II) Loss 
 
 XX
 
 CONTENTS 
 
 PAGE 
 
 or Theft. § 243. Feudal Period. — (I) Voluntary Relinquishment of 
 possession. § 244. The Same. — (II) Loss or Theft. § 245. Market 
 Overt. § 246. Reform in the Roman Direction during the Fourteenth 
 and Fifteenth Centuries. § 247. Judicial Law of the Eighteenth 
 Century. 
 
 Topic 3. Ownership of Land, §§ 248-258 305-314 
 
 § 248. Real and Personal Rights. § 249. Real and Personal Actions. 
 § 250. "Jus ad Rem." § 25L Ownership of Land. § 252. Restric- 
 tions on the Right of Ownership. §§ 253, 254. Freedom to Enclose. 
 § 255. Limited Ownership. § 256. Joint Ownership with Joint Pos- 
 session. § 257. The Community. § 258. Incorporeal Property. 
 
 Topic 4. Possession, §§ 259-279 315-349 
 
 § 259. General Remarks. § 260. Canon Law. §§ 261, 262. Origin 
 of the "Remedium Spolii." § 263. Prankish Period. § 264. Feudal 
 Period. § 265. The Seisin. § 266. The Seisin is Acquired. § 267. 
 Seisin under Law. § 268. Yearly Possession. § 269. Possessory 
 Actions. Anglo-Norman Law. § 270. Assize of "Mort D' Ancestor" 
 and Writs of Entry. § 271. The raising of the Hue and Cry ("Haro"). 
 § 272. Possessory Actions in the French Customary Law. § 273. 
 Beaumanoir. § 274. Fourteenth and Fifteenth Centuries. § 275. 
 The Complaint in Cases of Seisin and Trespass. §§ 276, 277. The 
 Procedure of the Complaint. § 278. Action of Simple Seisin. § 279. 
 The Declaration of Recent Work. 
 
 Topic 5. Acquisition of the Ownership of Immovables. Occupa- 
 tion AND Prescription, §§ 280-290 350-366 
 
 § 280. The Principal Methods of Acquisition "Inter Vivos." 
 § 281. Occupation. § 282. Prescription. — Short and Long Pre- 
 scriptions. § 283. The Year and a Day. § 284. "Rechte Gewere." 
 § 285. The Tenure of a Year and a Day. § 286. The Tenement of 
 Five Years. § 287. Good Faith. § 288. Immemorial Possession. 
 § 289. The Roman Prescriptions. Prescriptions of Ten to Twenty 
 Years and Prescriptions of Thirty Years. § 290. In the Sixteenth 
 Century. 
 
 Topic 6. Acquisition of the Ownership of Immovables — De- 
 livery, §§ 291-323 367-410 
 
 § 291. The Transfer of Ownership by Agreement. § 292. Prank- 
 ish Period. § 293. Real Investiture. §§ 294, 295. Symbolical De- 
 livery. § 296. Putting in Possession in Fact. § 297. Juridical 
 Effects of these Acts. § 298. Delivery "Per Cartam." §299. 
 Feudal Period. §§ 300, 301. Fiefs and Copyholds. § 302. Freehold 
 Tenure. § 303. Monarchic Period. § 304. (I) Customs of Public 
 Nams. §§ 305, 306. The "Acts of Law." § 307. The Effects of 
 Public Nams. § 308. The Pubhc Nams Customs. § 309. (II) Pub- 
 lic Investiture by Means of Proclamation. § 310. (Ill) Investiture 
 and Giving of Public Notice at Metz. § 311. (IV) German Law. 
 § 312. (V) The Common Law of the French Customs. System of 
 Pretended Delivery. § 313. The Same. — Origin. § 314. Formation 
 of the French Practice. § 315. Conditions and Effects of Pretended 
 Delivery. § 316. Estimate of the System of Pretended Delivery. 
 § 317. (VI) English Law. § 318. (I) Freehold. — (A) Feoffment with 
 Livery of Seizin. § 319. The Same. — (B) Lease and Release. § 320. 
 The Same. — (C) Fine. § 321. The Same. — (D) The Common Re- 
 covery. § 322. (II) Copyholds. § 323. (Ill) Formation of Uses. 
 
 xxi
 
 CONTENTS 
 
 PAGE 
 
 Topic 7. Rights in Land and Encumbrances upon Landed Prop- 
 erty, §§ 324-333 411-425 
 
 § 324. Multiplicity of Rights in Land; Their Relations to Feudal- 
 ism and Serfdom. § 325. Leases for a Long and a Short Term. § 326. 
 Free Urban Tenure. § 327. Rents and Charges, or Burdens on Real 
 Property. § 328. Rights of Profits. § 329. Usufruct. § 330. Right 
 of the Beneficiary over an Ecclesiastical Benefice. § 331. Real Servi- 
 tudes. § 332. The Same — (I) Natural Servitudes, § 333. The Same 
 ■^ (II) Servitudes established by the Act of Man. 
 
 Topic 8. Restrictions upon the Freedom of Alienating Inter 
 
 Vivos. — Repurchasing, §§ 334-348 426-449 
 
 § 334. The Freedom of Grant "Inter Vivos." § 335. Repurchase. 
 § 336. Disadvantages of Repurchases and Their Suppression. § 337. 
 The Repurchases of the Civil Code and Actions of Subrogation. § 338. 
 The Repurchasing by a Person of the Same Lineage. § 339. The 
 Consent of the Relatives. § 340. Offer to the Next of Kin. § 341. 
 Repurchase. § 342. Conditions of the Repurchase. — (I) Property 
 Subject to the Repurchase. § 343. The Same. — (II) Acts which 
 give rise to the Repurchase. § 344. The Same. — (III) Who has the 
 right to the Repurchase? § 345. The Same. (IV) Against whom 
 was the Repurchase allowed? § 346. The Same. — (V) The Re- 
 purchase of "half funds." § 347. Procedure. § 348. Effects of the 
 Repurchase. 
 
 CHAPTER THREE 
 OBLIGATIONS 
 
 Topic 1. General Ideas, §§ 349-351 450-453 
 
 § 349. Number and Importance of Contractual Obligations in 
 Modern Law. § 350. Characteristics of the Obligation in the Old 
 Law. § 351. The Obligation in Modern Law. 
 
 Topic 2. Offenses, §§ 352-361 454-470 
 
 § 352. Public and Private Offenses. § 353. Offenses committed 
 by One Family against Another. § 354. Characteristics of the 
 Offense. § 355. Criminal Intent. § 356. Responsibility for the Act 
 of Another. Damage caused by Animals or Inanimate Things. 
 § 357. Pecuniary Composition. § 358. Family Solidarity. § 359. 
 Damages. § 360. Putting Outside of the Law, and its Varieties. 
 § 361. Concerning Special Kinds of Offenses. 
 
 Topic 3. Contracts. Frankish Period, §§ 362-370 471-490 
 
 § 362. Mere Consent does not bind. § 363. Real Contracts. 
 § 364. Formal Contract. "Fides Facta," "Arramitio," "Wadiatio." 
 § 365. Forms and Cases in which the "Fides Facta" was applied. 
 §366. The "Festuca." § 367. The "Wadium." § 368. Security. 
 § 369. Consequences of Formalism. § 370. Formation of Contracts 
 by Means of Writings. 
 
 Topic 4. Contracts. Feudal Period, §§ 371-378 491-512 
 
 § 371. Persistence of the Law of the Frankish Period. § 372. 
 Contracts in Re. § 373. Earnest Money. § 374. Faith-Pledging. 
 Blow with the Palm of the Hand. § 375. The Promissory Oath. 
 
 xxii
 
 CONTENTS 
 
 PAGE 
 
 §376. The Rule "Solus Consensus Obligat." § 377. Contracts, in 
 English Law. § 378. Obligations by Means of Writing and Written 
 Proof. 
 
 Topic 5. Nullity of Contracts, §§ 379-384 513-518 
 
 § 379. The Nullity of a Contract. § 380. Origin of the Theory of 
 Nullity. § 381. Nullity and Rescission. § 382. Absolut-e Nullity. 
 § 383. Relative Nullity. § 384. Rescission. 
 
 Topic 6. Some Particular Kinds of Contracts, §§ 385-406 . 519-557 
 
 § 385. Loan with Interest. — (A) Why was it forbidden? § 386. 
 The Same. — (B) Sanction of this Prohibition. § 387. The Same. — 
 (C) Reaction. § 388. Establishment of Rents. — (A) Origin. § 389. 
 The Same. — (B) Rent-charge. § 390. The Same. — (C) Constituted 
 rents. § 391. The Same. — (D) Life rents. § 392. Assignment of 
 Claims. — (A) Early inahenability. § 393. The Same. — (B) Indirect 
 means. § 394. The Same. — (C) Assignment. Transfer. § 395. The 
 Same. — (D) Payment with subrogation. § 396. The Same. — (E) 
 Bills to bearer and to order. § 397. The Same. — (F) Bills of 
 Exchange. § 398. Agency and Representation. — (A) General Re- 
 marks. §399. The Same. — (B) "Salmannen." § 400. The Same. 
 
 — (C) Attorneys. § 401. Sale. — (A) Formation. § 402. The Same. 
 
 — (B) Effects. § 403. The Same. — (C) Warranty because of 
 Eviction. § 404. The Same. — (D) Rescission of the Sale. § 405. 
 Civil and Commercial Partnerships. — (A) Companies. § 406. The 
 Same. — (B) Commercial Partnerships. 
 
 Topic 7. Means of Enforcement on the Person and Personal 
 
 Surety, §§ 407-416 558-581 
 
 § 407. Voluntary Satisfaction. § 408. Compulsory Satisfaction. 
 § 409. The Same: Execution upon the Person — (A) Self-help. § 410. 
 The Same. — (B) Intervention of the Law. § 411. Imprisonment. 
 § 412. The Surrender of Possessions. § 413. Suretyship. § 414. 
 Hostage. § 415. The "Fidejussio" or "Plcgerie." § 416. Modern 
 Suretyship. 
 
 Topic 8. Execution upon Possessions and Real Securities, 
 
 §§ 417-444 582-620 
 
 § 417. Movables are the Seat of Debts. § 418. Pledging of Mov- 
 ables based upon an Agreement. — (A) Early Conception. § 419. 
 The Same. — (B) The Pledge passes to the Condition of an Acces- 
 sory Security. § 420. Private Distraint ("Pigneratio") upon Mova- 
 bles. § 421. Pledge by Legal Process. — (A) Barbarian Laws. § 422. 
 The Same. — (B) Customany Law. § 42.3. Execution upon Immova- 
 bles. Origin of Distraint upon Immovables. § 424. Land Distraint 
 and its Procedure. § 425. The Same. — (A) Documentary Right. 
 § 426. The Same. — (B) The Distraint Proper. § 427. The Same. 
 
 — (C) Public Announcements and Award. § 428. The Same. — (D) 
 Preferences. § 429. The Same: Later Law. § 430. Forms of Realty- 
 Mortgage. § 431. The Same: (I) Sale with Redemption. § 432. 
 TheSame: (II) Land-Gage. §433. The Same: (III) "Bond." §434. 
 The Same. — (A) The General Bond. § 435. The Same. — (B) The 
 Special Bond. § 436. The Same. — (C) Comparison of the General 
 Bond and the Special Bond. § 437. The Same: Hypothec-Mort- 
 gage. (1) Countries of Public Nam. § 438. The Same: (2) The so- 
 called "Customary Common Law." Mortgage is Creatable only by 
 Notarial Deed. § 439. The Same: Every Notarial Deed Implies a 
 General Mortgage. § 440. The Same: Judgment Lien (Judicial 
 
 xxiii
 
 CONTENTS 
 
 Hypothec). Every Judgment Implies a General Mortgage-Lien. 
 § 441. Implied Liens (Hypothecs). § 442. Consequences of the 
 Mortgage. § 443. "Clearance." § 444. Revolutionary Law. 
 
 CHAPTER FOUR 
 INTESTATE SUCCESSION AND GRATUITOUS CONVEYANCES 
 
 Topic L General Ideas, §§ 445-450 621-625 
 
 § 445. Prefei'ence for Intestate Succession. § 446. Various Kinds 
 of Succession. § 447. Plurality of Successions. § 448. Countries of 
 Written Law. § 449. Reservation and Legal Share. § 450. Gratui- 
 tous Conveyances. 
 
 Topic 2. Intestate Succession. Various Kinds of Heirs, §§ 451- 
 
 467 626-657 
 
 § 451. The House and the Lineage. § 452. (I) The House. § 453. 
 (A) Privilege of the Male Line. § 454. (B) The Right of Primogeni- 
 ture. § 455. Lack of Representation. § 456. (II) Lineage (Ascend- 
 ants and Collaterals). § 457. Succession to Personal Belongings. 
 § 458. Ascendants. § 459. Collaterals. § 460. The Same. — (A) 
 Nearest in Degree. § 461. The Same. — (B) Privilege of the Double 
 Tie. § 462. The Same. — (C) Representation. § 463. The Same. 
 
 — (D) Devolution. § 464. The Surviving Spouse. — (A) Countries of 
 Written Law. § 465. The Same. — (B) Countries of Customs. § 466. 
 Irregular Successions. § 467. The Revolutionary Law. 
 
 Topic 3. Acquisition of Heirship and its Consequences, 
 
 §§468^85 658-683 
 
 § 468. The Vesting of the Succe.ssion. § 469. Incapacity to Suc- 
 ceed. § 470. Disinheritance. § 471. Disqualification. § 472. The 
 Role of the Heir. § 473. Acquirement of a Title by Inheritance. 
 § 474. Hereditary Seisin. § 475. Acceptance and Rejection. § 476. 
 The Same. — (A) Acceptance pure and simple. § 477. The Same. — 
 (B) The renunciation. § 478. The Same. — (C) Time to make an 
 inventory and deliberate. § 479. The Same. — (D) The privilege of 
 the inventory. § 480. Partition between Co-heirs. § 481. Forms of 
 Partition. § 482. Effects of Partition. § 483. Refunding. § 484. 
 Payment of Debts. § 485. Separation of Assets. 
 
 Topic 4. Testamentary Provisions, §§ 486-498 684-702 
 
 § 486. Neither Will nor Gifts "causa mortis." § 487. "Thinx" and 
 Ceremony of Appointing an Heir. — (A) Adoption. § 488. The Same. 
 
 — (B) Affatomie. § 489. Covenants Pertaining to Succession. § 490. 
 Gifts "Pro Amma"and Share of the Dead. § 491. Testamentary 
 Executors. § 492. The Will. § 493. The Same. — (I) Jurisdiction. 
 § 494. The Same. — (II) Capacity to make a will or to receive by 
 will. § 495. The Same. — (III) The appointment of an heir. § 496. 
 The Same. — (IV) Different forms of wills. (A) the Canon will. 
 §497. The Same. — (B) Modern state of law. § 498. The Same. 
 
 — (V) Revocation of wills. 
 
 Topic 5. Gifts "inter vivos" and "causa mortis," §§ 499-507 . 703-715 
 § 499. The Formula of Loysel, 662. § 500. Gifts during the Bar- 
 barian Period. § 501. To give and to withhold is not Valid. § 502. 
 Formalities. § 503. Incapacity to give and to receive. § 504. Gifts 
 
 xxiv
 
 CONTENTS 
 
 PAGE 
 
 between Spouses. § 505. Mutual Gifts. § 506. Revocation of Gifts. 
 § 507. The Gift "causa mortis." 
 
 Topic 6. Covenants Relating to Inheritance, §§ 508-513 . 716-733 
 § 508. Covenants upon Future Succession. § 509. Renunciations 
 of a Future Inheritance. § 510. Appointment by Contract. § 511. 
 The Abdication of Possessions. § 512. Partition by Ascendants. 
 § 513. Substitutions in Trust (Entails). 
 
 Topic 7. Reservation and Legal Share, §§ 514-518 .... 734-748 
 § 514. Barbarian Legislation. § 515. Feudal and Customary Law. 
 § 516. The Legal Share (" legitime "). § 517. By what Right did one 
 collect the Legal Share? § 518. The Revolution and the Civil Code. 
 
 CHAPTER FIVE 
 
 SYSTEM OF PROPERTY BETWEEN SPOUSES 
 
 Topic 1. Frankish Period, §§ 519-528 749-764 
 
 § 519. System of the Husband's " Mundium." § 520. "Pretium 
 Nuptiale" or Germanic Marriage Portion. § 521. The Gift of the 
 Morning or "Morgengabe." § 522. Roman Marriage Portion, 
 "Faderfium," "Maritagium." § 523. Rights of the Husband during 
 the Marriage. § 524. Dissolution of Marriage. § 525. The Same. — 
 
 (A) The "Morgengabe." § 526. The Same. — (B) The "Pretium." 
 § 527. The Same. — (C) The disposal of the share brought by the 
 wife. § 528. Rights of the Wife over Property acquired jointly. 
 
 Topic 2. Dower and Other Rights by Survivorship, §§ 529-541 . 765-782 
 § 529. Dower. General Ideas. § 530. Conditions Requisite for 
 the Existence of Dower. — (A) Kinds of dower. § 531. The Same. — 
 
 (B) The amount of legal dower. § 532. The Same. — (C) The seat of 
 the Customary dower. § 533. The Same. — (D) The wife obtains her 
 dower, upon going to bed. § 534. The Same. — (E) The forfeiture of 
 dower. § 535. Rights of the Wife over the Dower. — (A) During the 
 marriage. § 536. The Same. — (B) At the death of the husband. 
 § 537. The Dower of Children. § 538. The Increase of the Marriage 
 Portion. § 539. Rings and Jewels. § 540. Counter-Increase. § 541. 
 Mourning and Residence. 
 
 Topic 3. Systems without Community, §§ 542-551 783-811 
 
 § 542. In General. § 543. English System. — (A) The Common 
 Law. § 544. The Same. — (B) Courts of Equity. § 545. The Same. 
 — (C) Act of the 10th of August, 1882. § 546. Norman System.— 
 (A) Incapacity of the Married Woman. § 547. The Same. — (B) 
 The Administration of the Immovables. § 548. The Same. — (C) In- 
 alienability of the Marriage Portion. § 549. German System of 
 Unity of Possessions. § 550. The Roman System of Marriage Por- 
 tion. § 551. The Partnership of Acquests. 
 
 Topic 4. Systems of Community, §§ 552-572 812-861 
 
 § 552. Origin of the Community of Possessions between Spouses. 
 Distinctive Characteristics of this System. § 553. Date of the 
 Community. § 554. Causes which produced the Community and 
 directed its Evolution. § 555. Various Forms of the Community. — 
 
 XXV
 
 CONTENTS 
 
 PAGE 
 
 (A) General Community. § 556. The Same. — (B) Partial Com- 
 munities. § 557. Freedom of Matrimonial Agreements. § 558. What 
 the Community Consists of. — (A) Assets. § 559. The Same. — 
 
 (B) The Liabilities. § 560. Administration of the Community. 
 § 561. Part Played by the Wife. § 562. The Wife's Personal Be- 
 longings. § 563. The Dissolution of the Community. § 564. Con- 
 tinuation after Death. § 565. The Separate Estate (Judicial). § 566. 
 Right of the Wife to Choose between Acceptance and Renunciation, 
 § 567. Transactions Previous to Partition; Reinvestment and Rec- 
 ompenses. § 568. The Same. — (A) Recompense due from the Com- 
 munity. § 569. The Same. — (B) Recompenses due from the spouses 
 to the Community. §570. Partition. — (A) Assets. § 571. The 
 Same. — (B) Liabihties. § 572. The Married Woman's Mortgage. 
 
 CHAPTER SIX 
 
 STATUS AND CAPACITY OF PERSONS 
 
 Topic 1. Certificates of Civil Status, §§ 573 - 576 862-866 
 
 § 573. Early Methods of Proofs. § 574. Certificates of Religious 
 Status. § 575. Certificates of Civil Status. § 576. Secularization 
 of Certificates of Civil Status. 
 
 Topic 2. Persons under a Disability, §§ 577-587 867-888 
 
 § 577. Status and Capacity of Persons. § 578. Foreigners or 
 Ahens. § 579. The Same. — (A) The Feudal Law. § 580. The Same. 
 — (B) Transformation of the seigniorial right into a domanial right. 
 § 581. The Same. — (C) Nationality. § 582. The Same. — (D) Disa- 
 bility of aliens or right of succession to the estate of deceased aliens. 
 § 583. The Same. — (E) How did the Crown's succession to the es- 
 tate of a deceased ahen disappear? § 584. Those Civilly Dead. 
 § 585. Entering Religious Orders. § 586. The Penal Civil ^Death. 
 § 587. Lepers and Outcasts. 
 
 Topic 3. Legal Persons, §§ 588-590 889-905 
 
 § 588. Political Bodies. § 589. Corporations (Bodies and Com- 
 munities, Persons in Mortmain). § 590. Foundations, "Piae Causae." 
 
 INDEX 907 
 
 XXVI
 
 EDITORIAL PREFATORY NOTE 
 
 By JOHN H. VVIGMOREi 
 
 A NARROW ridge of upland in southern Switzerland forces 
 apart two streamlets, which afterwards wander away for a thou- 
 sand miles and emerge as the Rhine and the Danube amidst 
 different races on opposite sides of Europe. But no story of an 
 intellectual separation, entrained by physical facts, is so interest- 
 ing as that which was effected by the forty-mile Channel between 
 France and England. Eight centuries ago it was possible to 
 expect that there might be a political union and a common growth ; 
 the Franks, the Normans, and the Saxons shared a common 
 stock of Germanic law; France did not exist; Paris was not yet 
 a real capital; the Loire was still a symbolic boundary between 
 two tj-pes of civilization more different than Saxons and Franks; 
 and northern France was capable of a congenial union with the 
 Norman kingdom. Five centuries ago this had ceased forever to 
 be possible; the persistent barrier of the Channel had done its 
 work. Northern France had knit rather with Southern France; 
 and French law was never to be the same as English law. 
 
 Yet at the outset of the intervening period the family traits 
 possessed in common were striking. They attract us with the 
 interest which we should have for brothers of the same family 
 who are forced apart by circumstances and grow into totally 
 different careers. Norman barons and clerks filled the judicial 
 benches in England. French was the language of the forum. 
 Numerous surviving legal terms — "mortgage," "nuisance," 
 "attorney," "tort," "plea," "demur," and the rest — show us 
 how thoroughly French lawyers influenced English law.^ In 
 England, the Norman conquerors, few in number, did not and 
 could not wholly displace the content of the institutions which 
 they found; but at least they supplied form and method, and 
 much more. On the French side, the Normans never acquired 
 
 ' Professor of Law in Northwestern University, and chairman of the 
 
 Editorial Committee for this Series. 
 
 2 "It would hardly be too much to say that at the present day almost all 
 our words that have a definite legal import are in a certain sense French 
 words." Pollock and Maitland's "History," I, 58. 
 
 xxvii
 
 EDITORIAL PREFATORY NOTE 
 
 legislative domination; but the legal ideas which they knew and 
 brought over were shared in the main features with northern 
 France. The early records of legal custom — such as the " Eta- 
 blissements" attributed to Louis IX, Beaumanoir's "Coutumes de 
 Beauvoisis," and Bouteiller's "Somme Rurale" — are still good 
 sources for throwing light on English law. Houard made a col- 
 lection entitled "Anciennes lois des Francois, conservees dans 
 les coutumes Angloises," which contains the text of Littleton, 
 composed in the 1400s. 
 
 Political union of North and South France led after several 
 centuries to formal legal unity, under the Code of Napoleon. 
 Yet even here, in spite of the overspreading influence of Roman 
 law and its jurists, the ancient influence of the North persisted; 
 and Napoleon's Code has been called a Germanic rather than a 
 Roman document. Law changes slowly, and only by organic 
 growth, not by instant decrees of a legislator, like erasures from 
 an inscribed slate. Modern French law never had a break in its 
 growth. Everything stimulates us to follow back and compare 
 its history with our own — both originating from our common 
 ancestors, both administered once in a common language, and 
 both developing slowly apart in the hundreds of principles which 
 govern mankind's common stock of transactions. It matters not 
 what part of the law we take, — wills, estates, torts, pleading, 
 courts, jury, criminal practice, mortgages, or the rest, — our 
 profession can never fail to be fascinated with watching the 
 fate of our own familiar terms and ideas, amidst unfamiliar sur- 
 roundings, in their steady growth further and further away 
 from the common primal stages down into their ahen modern 
 forms. 
 
 For this purpose no volume could be better suited than that 
 of Professor Brissaud. French scholarship, to be sure, is ample in 
 its array of works marked by the highest standards of modern 
 research. It is indeed to be regretted that in this, as in other 
 fields, the repute of German studies in the past generation has 
 caused many of us to forget the at least equal merits of French 
 scholarship; not less thorough in standards nor less broad in 
 scope, it is generally more compact in method and more clear in 
 style. In the field of legal history the names of Beaune, Esmein, 
 Caillemer, Flach, Fournier, Fustel, Glasson, Huvelin, Tardif, 
 Viollet, and others, are eminent in the present generation. But 
 the work of Brissaud is peculiarly suited for our own profit. For, 
 
 xxviii
 
 EDITORIAL PREFATORY NOTE 
 
 while writing always a history of French law, the author's eye is 
 kept upon the English sources at the common starting-points. 
 Copious citations of them serve constantly to remind us of the 
 earlier propinquities, and to assist us in our own comparisons of 
 the later divergences. 
 
 Looking at random, we find (for example) in Chapter II, in his 
 account of the distinction between immovables and movables, 
 Note 3 expounding the English distinction between real and 
 personal property; Note 4 telling us that "Pollock and Maitland 
 rightly point out that the formula 'vis mobilium possessio' 
 has been mistakenly exaggerated"; Note 10 citing Blackstone; 
 Note 11 comparing "chattels" and the French "cheptel," and 
 citing Glanville to elucidate our phrase "goods and chattels"; 
 Note 18, citing Blackstone, to show that English "incorporeal 
 hereditaments" are French "incorporeal immovables"; Note 21, 
 citing Littleton, for the analogy of "chattels real." This feature 
 is continued at every fruitful occasion. And it is unique among 
 treatises on general legal history, — not alone French, but also 
 of other authorship. Its value for the student of Anglo-American 
 law cannot be overstated. 
 
 In breadth of learning, Brissaud is typical of modern French 
 scholarship, in the catholic and cosmopolitan use of every source 
 of authority wherever found. There was a day when a French 
 scholar would not deign to cite a German one, as there were (and 
 occasionally are still) German scholars who ignore French learn- 
 ing. But that day has passed. In Brissaud's field especially is 
 this fortunate. Early Northern French law is a Germanic stock; 
 and its study requires a broad comparative survey. Brissaud 
 forages freely among the Dutch, German, Swiss, Italian, and 
 Spanish records to complete his reconstruction of the primitive 
 institutions; and his citations of foreign savants include Brun- 
 ner, Heusler, Kohler, Grimm, Fertile, Salvioli, and a varied list 
 of others. The large canvas thus used by Brissaud enables him 
 to depict constantly the broad background of European legal 
 life, in which France and England are seen to be the important 
 foreground but never the whole of the picture. In this respect, 
 we are reminded of IMaitland's largeness of view. It may be 
 said that no master-work of modern times, except INIaitland's, 
 contains so emphatically as Brissaud's this spirit of cosmo- 
 politanism in its treatment of the history of a single country's 
 law. 
 
 xxix
 
 EDITORIAL PREFATORY NOTE 
 
 Another consequence of this wonderful breadth of research is 
 that it enables him to see and to show us the inter-relations of 
 the indi\'idual principles. Everything is explained as a growth. 
 Nothing appears as a merely arbitrary fact of law. It is the 
 very antipodes of the formal lifeless treatment of the legal his- 
 torians of fifty years ago. In the philosophic study of causes 
 and conditions, Brissaud exhibits the best type of the modern 
 legal historian. The origin and operation, for example, of the 
 great distinction between hereditary and acquired immovables is 
 explained by considering its relation to the family life of the 
 times; the curious changes in the law for a purchaser's title to 
 goods sold by a thief are examined in the light of feudal custom, 
 Roman theory, and mercantile progress; and so on through all 
 the details of principle. Law is expounded, not mechanically, 
 but (in Mr. Justice Holmes' phrase) as "a felt necessity of the 
 times." 
 
 In the arrangement of his materials, the author has vindicated, 
 we believe, the essential correctness of the topical plan for this 
 purpose. The historian of a European country's law must 
 choose between two plans: either to divide it into three or four 
 periods, and then within each period to treat the several topics 
 contemporarily, resuming them all again within each successive 
 period; or, to divide it into topics, and to trace each topic 
 connectedly throughout the several periods from early to modern 
 times. The great Brunner chose the former plan, for his history 
 of Germanic Law; Brissaud chose the latter plan. Each plan 
 inevitably sacrifices something which the other gains. But it is 
 possible to weigh the net balance of advantages; and we do not 
 hesitate to assert that, for the clear understanding of legal in- 
 stitutions, Brissaud has demonstrated the superiority — at least, 
 in the hands of a master — of the method of exposition selected 
 by him. 
 
 Finally, the author's extraordinary historical sense is seen in 
 his preliminary excursus upon primitive institutions. No history 
 begins; it is always a continuation. And he felt that to plunge 
 abruptly into the detailed story at no matter what historical period 
 was to lose a full understanding of the growth of the law from 
 earlier beginnings; hence his brief but masterly account of pre- 
 historic primitive institutions, — an account which enables the 
 reader at once to perceive tendencies and directions, and to 
 enter into the true historical spirit. 
 
 XXX
 
 EDITORIAL PREFATORY NOTE 
 
 An eminent German legal historian, Professor Rudolf Hiibner, 
 has thus recorded his judgment on Brissaud's great treatise:^ 
 
 " It is a work which amazes us with its richness of material. It testi- 
 fies to an iron-hearted industry and an enviable breadth of historical 
 knowledge. ... Its scope is by no means confined to strictly French 
 law; the mediaeval Roman law, the Germanic law, the English law, 
 receive also consideration; thus throwing sidelights on the develop- 
 ment of the French legal ideas, from Italy, England and Germany 
 Brissaud possessed a \'irtually inexhaustible familiarity with this enor 
 mous mass of literature, — an accomplishment far surpassing in this 
 respect anything found in German works, on legal history." 
 
 And may we not venture to believe that the lamented Mait- 
 land, had he been spared to us, would now have welcomed Bris- 
 saud's masterpiece, put into English, as a useful contribution to 
 the spread of that knowledge so earnestly commended by him? 
 For he says: ^ 
 
 "One of our hopes has been that we might take some part in the 
 work of bringing the English law of the thirteenth century into line 
 with the French and German law of that age. . . . We have often 
 had before our minds the question why it is that systems which in 
 the thirteenth century were so near of kin had such different fates 
 before them. . . . Englishmen should abandon their traditional be- 
 lief that from all time the Continental nations have been ruled by 
 the 'civil law.' They should learn . . . how exceedingly like our 
 common law once was to a French coutume. This will give them an 
 intenser interest in their own history. What is more, in the works 
 of French and German medifevalists they will nowadays find many an 
 invaluable hint for the solution of specifically English problems." ^ 
 
 Henri Brissaud died on August 13, 1904, at the age of fifty 
 years, just as the second edition of the first volume of his great 
 W'Ork was coming from the press. The first edition had appeared 
 in parts between 1898 and 1900; volume I covered Public Law (and 
 will appear later in this Series) ; volume II covered Private Law. 
 The second edition was published in 1904-08. Brissaud had been 
 professor of law at Bern and at Montpellier, and at the time of 
 his death occupied the chair of general history of law at Toulouse. 
 
 1 "Zeitschrift der Savigny-Stif tung fiirRechtsgeschichte, " 1906, XXVII, 337 
 (Germ. Abth.). Professor Hiibner is the author of the "History of Germanic 
 Private Law" in the present Series. 
 
 2 Introduction to Sir F. Pollock and F. W. Maitland's "History of English 
 Law before the Time of Edward I," I, p. xxxvi. It is interesting to compare 
 the same lino of thought in Brissaud's own review of the Pollock and Mait- 
 land " History " '(Nouv. Revue hist, dc dr. fr. et 4tr., XXI, 828). 
 
 xxxi
 
 EDITORIAL PREFATORY NOTE 
 
 His scientific work included (besides numerous articles and essays) 
 the translation of portions of the monumental work of Mommsen, 
 Marquardt, and Kriiger, "Manual of Roman Antiquities," and 
 a memoir on "Claude Joly, a Liberal of the Seventeenth century." 
 But his main task, fortunately achieved before his labors were cut 
 off, was the present magnum opus. 
 
 Needless to say, the task of translating such a work is an exact- 
 ing one, and calls for an unusual equipment of skill. The trans- 
 lator, INIr. Rapelje Howell, has had an ideal preparation for this 
 work. A native of New York City, he continued his education 
 in France, at the Lycee Carnot, in Paris, and afterwards sojourned 
 frequently in that country. Entering Trinity College, Cambridge, 
 England, he received there the B.A. degree in 1902. On his 
 return to New York, he spent some years in business and in jour- 
 naUsm, and then entered the Law School of Columbia University, 
 from which he received the degree of LL.B. in 1909. Wliile 
 there, he became interested in the history of Norman law, and 
 undertook the translation of the "Tres Ancien Coutume." The 
 Committee's call interrupted that task; and for more than a year 
 past he has devoted his time almost exclusively to the present 
 work. The Committee considers itself fortunate in having secured 
 one of Mr. Howell's zeal and accomplishments for the execution 
 of an undertaking so laborious, so difficult, and so useful to legal 
 science. 
 
 xxxu
 
 INTRODUCTION 
 
 By WILLIAM SEARLE HOLDSWORTHi 
 
 This work on the history of French Private law is, in the original, 
 a part of a larger whole. The complete work consists of three 
 parts. The first part deals with the sources of French law; the 
 second with the history of public law; and the third with the his- 
 tory of private law. The first two parts treat the subject chrono- 
 logically. Thus those who have read the whole book have, by the 
 time that they have reached the part dealing with private law, 
 gained a clear idea of the history both of the literature and of the 
 development of French institutions and French law. The third 
 part abandons the chronological arrangement, and treats of the 
 development of the leading doctrines of private law under a few 
 comprehensive headings. In our opinion this is the only method 
 by which a clear account of the evolution of the doctrines of pri- 
 vate law can be given; and we think that this opinion will be 
 shared by all who read this translation. 
 
 Those who study both this Volume, and Volumes I and IX of 
 this Series, which contains the translation of the part of M. Bris- 
 saud's book dealing with sources and public law, will possess an 
 entirely adequate account of the development of French law. The 
 Editors have however realized that there may be some students 
 who will wish to begin their study of the history of French law in 
 this volume, and that they will need something in the way of a 
 general introduction to the subject. There is therefore prefixed 
 to this volume the introductory chapter on Primitive Law, which, 
 in the original, is prefixed to the part which deals with public law. 
 It seems to us that the position of this introduction comes more 
 naturally in the place thus allotted to it in the translation than in 
 the place allotted to it in the original. 
 
 "History," as Maitland said, "involves comparison." — The 
 writer who would tell the tale of the legal development of any of 
 the States of Western Europe must be able to compare and to 
 
 1 D. C. L.; Fellow and Lecturer in Law, St. John's College, Oxford; All 
 Souls Reader in English Law in the University of Oxfordj Professor of Con- 
 stitutional Law at University College, London, 1903; of Lincoln's Inn, Barris- 
 ter-at-law; author of "A History of English Law" (1903-1909). 
 
 xxxiii
 
 INTRODUCTION TO THIS VOLUME 
 
 contrast. But this faculty is especially necessary to the historian 
 of French law. ]\Iany elements and many influences have gone 
 to the making of the French nation and of French law; and there 
 is a great equality in their relative importance. In order to give 
 a true account and a correct estimate of these various elements 
 and influences — Celtic, Roman, and Germanic — the historian 
 of French law must often look abroad and observe legal systems 
 in which the element or influence he is describing can be observed 
 in greater isolation. It is because INI. Brissaud can illustrate 
 and explain many of the various rules which prevailed in different 
 parts of France by apt comparisons and contrasts drawn from 
 English, German, Italian, and Spanish law, that his history gives 
 us an account of the development of French law at once concise 
 and exhaustive, detailed and illuminating. 
 
 We could have no better illustration of the breadth of M. 
 Brissaud's learning than the Introduction to which we have 
 already referred. It deals with the origins of the Family, of Prop- 
 erty, and of the State, and it would serve admirably as a general 
 introduction to a history of the law of the States of Western Europe. 
 The origins of many of the institutions, the beliefs, and the laws 
 of these States are illustrated by parallels drawn from the insti- 
 tutions, the beliefs, and the laws of the Hebrews, the Greeks, the 
 Romans, and many savage tribes. All who have any acquaint- 
 ance with the acute controversies which have been waged, and 
 wild conjectures which have been made, upon many of the topics 
 dealt with in that Introduction will admire both the extent of 
 M. Brissaud's learning, and the sanity of his judgment. And the 
 promise of the Introduction is maintained throughout the book. 
 ]\Iore especially the English lawyer will admire the manner in 
 which M. Brissaud has used doctrines of English law to illustrate 
 the development of the law of his own country. He can, for 
 instance, describe some of the technical doctrines of the law of 
 real property — the most technical part of English law — with 
 substantial accuracy; and he can thereby give to English lawyers 
 an idea of the place which the sources of some of their peculiar 
 rules of private law hold in relation to the sources of the rules of 
 private law on similar subjects in other parts of Europe. 
 
 The English lawyer who reads these pages will naturally find 
 himself comparing the practical results which have followed at 
 different periods from the very different courses which the develop- 
 ment of private law has pursued in France and in England; and 
 
 xxxiv
 
 INTRODUCTION TO THIS VOLUME 
 
 it is possible that he will sometimes be led to conclusions which 
 will surprise him. We are accustomed to regard France as a 
 country in which, in the Middle Ages, the independence of the 
 great feudatories led to the formation of what were almost separate 
 States, while we know that in England the days of true feudal 
 independence were over by the reign of Edward I. Then, from 
 the sixteenth century to the Revolution we think of France as 
 the country in which absolute monarchy attained its zenith; 
 and we contrast, with patriotic pride, the continued existence in 
 England of representative institutions, which succeeded in sub- 
 jecting the power of the king to the law, won for themselves the 
 most authoritative place in the government of the country, and 
 preserved for Europe a model of constitutional rule. Again, 
 when we think of French law, we are apt to think of it as that 
 of a country in which Roman law held a large sway; to infer that 
 this influence of Roman law had something to do with the estab- 
 lishment of absolute monarchy in the sixteenth and seventeenth 
 centuries; and to conclude that the cessation of the direct influence 
 of the Roman law on the common law at the end of the thirteenth 
 century was a wholly unmixed blessing. 
 
 But these familiar comparisons are all made from the point of 
 view of public law. When we turn to private law we see the 
 picture from quite another point of view. If we look at feudalism, 
 not from the point of view of public law as a system of govern- 
 ment, but from the point of view of private law as a system of 
 land tenure, we see that the influence of feudalism was more far- 
 reaching and more permanent in England than in France. French 
 law knew of land that was owned; but from the time of the Con- 
 queror English law only knows of land that is held. In the French 
 law of to-day the principle of tenure has been eliminated. In Eng- 
 land it is still the basis of our land law. The period of the ab- 
 solute monarchy in France was a period of active legislation upon 
 many subjects of private law. English law in the seventeenth 
 and eighteenth centuries can show nothing to match some of 
 those comprehensive Ordonnances which, by reducing to order 
 and system many branches of French law, have made the French 
 nation pioneers in the work of codification. The events of the 
 seventeenth century, which made our public law an example to 
 Europe, cramped the development of our private law. Similarly 
 the results of the cessation of the influence of Roman law, though 
 it may have had beneficial effects on the development of our public 
 
 XXXV
 
 INTRODUCTION TO THIS VOLUME 
 
 law, has had by no means equally beneficial effects on the develop- 
 ment of our private law. The common law became a hard, rigid, 
 and technical system at too early a date. It could give no legal 
 expression to the new ideas and the new activities produced by a 
 changing civilization. These new ideas and activities were obliged 
 to find a space outside its sphere; and, in consequence, English 
 private law long suffered from the inconvenience of consisting 
 of rival and of sometimes contradictory bodies of rules. Even 
 these rivals of the common law did not completely fill the gap. 
 Our family law, for instance, is meagre compared with that of 
 France. Upon such topics as guardianship, adoption, the treat- 
 ment of prodigals, we have something to learn from the manner 
 in wdiich foreign nations have adapted the Corpus Juris Civilis 
 to the needs of the modern state. 
 
 It is good that a complacent, and, may we add, an uninformed 
 belief, in the excellencies of our own private law should be shaken ; 
 for that is the first step to the acquisition of better information 
 and, sometimes it may be, to the making of practical reforms. 
 At the same time we do not wish to contend that there are not 
 some respects in which our English private law may emerge tri- 
 umphantly from such a comparison. We have often arrived at 
 the same goal by different roads; and sometimes our road has 
 been the shorter and the results better. Sometimes, it may be, 
 there is little to choose between the methods and the results 
 achieved. Let us take one or two examples. 
 
 In the first place we have our Trusts. But of their peculiar 
 service to English law we need say little since the publication of 
 Maitland's "Collected Papers" (1911). The readers of some of 
 these papers will learn what these Trusts have done for our public 
 law. As to their influence on our private law we can only say 
 that they are all-pervading. They have given to owners of all 
 kinds of property unique powers and modes of disposing of that 
 property. They permeate our law as to the administration of the 
 assets. They go a long way to fill up those large gaps in our family 
 law which were caused by the summary rejection of Roman rules. 
 
 Then, we have evolved for ourselves a unique law of contract 
 founded upon the doctrine of consideration. The road which our 
 private law has travelled to attain this result is very different 
 from the Roman road; but the results, M. Brissaud thinks (§ 377), 
 are not dissimilar. At any rate we may claim for our own doctrine 
 that it is at least as intelligible and quite as convenient as its rival. 
 
 xxxvi
 
 mTRODUCTION TO THIS VOLUME 
 
 Similarly we have worked out for ourselves some detailed rules 
 as to the incidents of particular contracts. Our Sale of Goods 
 Act need not fear the results of a comparison with the title of the 
 Digest De Contrahenda Emptione, or with the modern systems 
 which have been based upon it. Our theory of possession and 
 ownership is far removed from the Roman theory. Whether it 
 is better to maintain that these two allied conceptions have 
 nothing in common, or to give to the possessor the rights of an 
 owner as against all who cannot prove a better title, is a fit sub- 
 ject for philosophers to debate, for it hardly admits of a conclusive 
 solution. On the other hand, no one can doubt that our private 
 law has suffered much in many departments from the arbitrary 
 divorce between possession and seisin, between realty and per- 
 sonalty. Nor again can we doubt that it has also suffered from 
 its ignorance of Roman rules as to mortgage and pledge, and that 
 it has only partially mended matters by the help of the elaborate 
 law of mortgage created by the court of Chancery, and by detailed 
 statutes on the subject of Bills of Sale. We do not mean to imply 
 that the history of the French law of mortgage has been wholly 
 clear and rational. Indeed, there are some passages in the history 
 of this branch of the law which illustrate the truth, which is writ 
 large upon the face of our law of real property, that landowners 
 cannot have their cake in the shape of secret dealings w^ith their 
 land, and eat it in the shape of cheap and simple forms of trans- 
 fer and of certainty of title. 
 
 Both the countries of the wTitten law and the countries of 
 the Customs have been for many centuries drawing upon the 
 Tvealth of principles to be found in Roman law. They have used 
 them to supplement and adapt old customary rules. They were, 
 therefore, if we may use the expression, far fuller bodies of law 
 than the English common law, which, from the end of the thir- 
 teenth century, had drawn its inspiration almost entirely from the 
 cases which arose for decision in its courts. The peculiarities of 
 the constitutional history of England had made its development 
 extraordinarily precocious. But English judges and English law- 
 yers, though learned in the common law, and endowed for the most 
 part with sound common sense, had come to be very ignorant of 
 any system of law except their own. This combination of pre- 
 cocity and ignorance often made its solution of complex problems 
 extremely hasty and extremely arbitrary. In fact, just as a pre- 
 mature codification of a body of customary law which is being 
 
 XXX vii
 
 INTRODUCTION TO THIS VOLUME 
 
 gradually developed by the writings of the jurists or the work of 
 the courts, destroys much of its adaptability to altering facts 
 and needs; so, the premature hardening of the common law, 
 drew sharp, clear lines across complicated facts and hazy collec- 
 tions of customary rules, and thus prevented natural developments 
 which the indefiniteness of the older rules permitted. We can see 
 from the history of French private law that these characteristics 
 have influenced our law both for good and for evil. When we read 
 the complex history of the various "retraits" which were long 
 possible under French law we are inclined to bless the memory 
 of Bracton and those of his companions who argued successfully 
 for freedom of alienation. On the other hand, when we consider 
 the history of the proprietary and contractual capacity of the 
 married woman in our law, we cannot admire the hasty conclusion, 
 at which our common lawyers arrived, that marriage was a gift 
 of all the wife's chattels to her husband, and that, having no 
 property, she could in general make no contract on her own be- 
 half. How complicated the problem was, how numerous the 
 various competing solutions the student will learn from the study 
 of M. Brissaud's fifth chapter — an extraordinarily able account 
 of one of the most complex subjects in legal history. 
 
 In truth the detailed account of advantage and disadvantage 
 between the English and the French systems of private law would 
 be long and complicated. We can make no attempt to state it 
 here. But the readers of this Series of translations will have before 
 them the material from which they can make such a statement 
 in respect of the particular branch of the law which they may be 
 studying. It seems to us that the power to do this will be valuable 
 not only to those who are interested in the history of the law, but 
 also to those who are interested in its modern working. No doubt 
 the mediaeval history of the law will appeal especially to the 
 historian, and its development during the last century to the 
 practical lawyer. The intermediate stage, from the sixteenth 
 to the eighteenth century, to both alike — to the historian be- 
 cause he will see the results of the mediaeval history, to the 
 practical lawyer because he will see the growth of the modern 
 rules. 
 
 That this study of comparative legal history will be profitable 
 to the students both of the history and of the modern theory of 
 our law will, we think, be obvious to all who read this book. But 
 we may perhaps be permitted to indicate very briefly the kind of 
 
 xxxviii
 
 INTRODUCTION TO THIS VOLUME 
 
 profit which different classes of students may be expected to derive 
 from it. 
 
 Even a slight acquaintance with mediaeval history is sufficient 
 to show that the student of the mediseval history of our law will 
 derive great and immediate profit from the study of the mediaeval 
 law of another State. Right down to the sixteenth century Western 
 Europe was for many purposes one State. No doubt institutions 
 and legal rules differed, and differed considerabl}', in detail. But 
 men's legal ideas were cast in a similar mould. The political 
 theories and speculations and the rules of law evolved by the 
 canonists and civilians were, more or less, a part of the intellectual 
 atmosphere of publicists and lawyers in many different countries. 
 The feudal conception of tenure, and the consequences of the 
 feudal bond between lord and man, dominated the law as to the 
 ownership of land; and the political influence of these feudal 
 conceptions was so deep-rooted that, right down to the latter 
 part of the sixteenth centur^^ it was a weapon in the hands of 
 those who wished to assert themselves against the nascent state. 
 Beneath the feudal pyramid we can everywhere see older commu- 
 nities of cultivators of the soil, held together by customary rules 
 which preserve traces of ideas, and survivals of practices belonging 
 to a remote past. Thus the student of our mediaeval history will 
 find in M. Brissaud's book resemblances in the origin and in the 
 development of legal rules which will help him to understand 
 much that is obscure in the development of his own law. We 
 would recommend to his notice such subjects as M. Brissaud's 
 account of the history of the remedies for the protection of the 
 possession and ownership of chattels; of the actio spolii and its 
 influence on the protection of seisin; of the legal results which 
 might flow from possession for a year and a day; of the primitive 
 forms of liability and their later development; of the institution 
 of dower ; of the history of the assignment of choses in action and 
 negotiability. 
 
 And these are but a few out of many instances in which the 
 resemblances between the English and the French rules shed light 
 upon each other. The contrasts are no less instructive, because 
 from them we can get a just estimate of the far-reaching results 
 which have sometimes flowed from a course of policy or a piece 
 of legislation. Suppose our common law had been developed by 
 lawyers of the type of Bracton — we can find a good deal to help 
 us to an understanding of the different course which its history 
 
 xxxix
 
 INTRODUCTION TO THIS VOLUIVIE 
 
 would have taken in the history of the law in the " pays du droit 
 coutumier." Our reversions and remainders would have been 
 substitutions in trust; our estates for life would have been usu- 
 fructs; our law of inheritance would have lost many of its medi- 
 aeval traits; our law of contract would have owed much to Roman 
 law; and, in the sixteenth century, our common law would have 
 been far more deeply affected by the Reception. Suppose that 
 Council, and Chancery, and common law courts had not worked 
 together in the sixteenth century to effect an equitable settlement 
 of the position of the copyholder — we may remember that it 
 was the wrongs of a class that once resembled our copyholders 
 which was one of the important causes of the French Revolution. 
 
 From the sixteenth century onwards Europe is divided into 
 separate, self-sufficing territorial States. It would be probably 
 true to say that the nations of Europe were more separate from 
 one another in the period from the seventeenth to the first quarter 
 of the nineteenth century, than at any other period in their his- 
 tory. Perhaps during this period it is the contrast between the 
 English and the continental public law, and between the agencies 
 by which the law is developed, which is the most fruitful subject 
 of comparison. But it is a period in which a comparison between 
 the development of the rules of English and French private law 
 is also very instructive. We see rules once similar taking a wholly 
 different form. We see the beginnings of the rules and the tech- 
 nical language of the modern law. 
 
 During the last half of the last century physical science has 
 done much to unite the communities which wars of religion and 
 the growi;h of the sovereign state had separated. Similar problems 
 — social, industrial, and religious — remain to be solved both 
 by the public and by the private law of the principal states of 
 Western Europe. We have only to think of such matter as Cor- 
 porations and other Group Persons, the limits of the right of Com- 
 bination, Strikes and Lock-outs, the relations of Church and State, 
 Divorce, Land Transfer, Codification. The solution of such 
 problems as these taxes to the utmost the resources of all legal 
 systems. If the lawyer or the statesman can understand, not 
 merely the technical rules of his own system, but also the tech- 
 nical rules of other systems, he will be able the more easily to 
 emancipate his mind from the texts of his own law, to discover 
 the principles underlying the various legal solutions of these 
 problems, and to weigh their merits. It is only a comparative 
 
 xl
 
 INTRODUCTION TO THIS VOLUME 
 
 study of legal history which can give this power. Therefore we 
 claim that in these modern days this study is of the first importance 
 to all lawyers and statesmen who wish to criticise intelligently 
 their own legal system, or to reform it wisely. That there should 
 be in the State men thus equipped is the greatest of all safeguards 
 both to the State and to the Law. To the State, because they will 
 know how, by the adjustment of old rules to new needs, to main- 
 tain the authority of the law, and to ensure thereby the peaceful 
 and orderly development of the State. As the Year Book truly 
 says, "the Law is the highest inheritance which the king has; 
 for by the Law he and all his subjects are ruled, and if there was 
 no Law, there would be no king and no inheritance." To the Law 
 itself, because a peaceful and orderly development of the State is 
 its very life. Unintelligent criticism and wild reform can in a 
 short time reduce to chaos the labours of generations of jurists. 
 When continuity fails, law as a science ceases to exist. 
 
 We hope great things from the comparative study of the history 
 of the legal systems of Western Europe. The cosmopolitan charac- 
 ter of French law makes its study an excellent starting point; 
 and M. Brissaud is an ideal guide to its doctrines and its literature. 
 But it is time that the reader ceased the perusal of this hearsay 
 evidence as to the merits of M. Brissaud's book and the advantages 
 to be derived from its study, and began to acquire some more 
 direct evidence upon these matters from the perusal of the book 
 itself. We hope that he will admit that, though hearsay is no evi- 
 dence, it may sometimes contain a substantial modicum of the 
 truth. 
 
 Oxford, England, October 17, 1911. 
 
 xli
 
 TRANSLATOR'S REMARKS 
 
 In the translation of a work of this kind there will necessarily 
 be found a number of words having a technical meaning which 
 have no literal English equivalents, as the systems of English 
 and Continental law differ so greatly on many points. There- 
 fore the nearest English word, or a term coined for the purpose, 
 must be used. Examples of such words are: " hypotheque," 
 " nantissement," " retrait," " delit," etc. In the work of finding 
 suitable equivalents for such words the translator has been very 
 greatly assisted by the Chairman of the Editorial Committee 
 and wishes to take this opportunity of acknowledging the in- 
 debtedness and expressing his sincere thanks and appreciation. 
 
 The question of the notes has been a very difficult one to 
 deal with. In the original French they are not any too clear; 
 rendering them into English cannot do much towards overcom- 
 ing this. This obscurity consists in a lavish use of abbrevi- 
 ations, not all of which are explained by the author in the 
 Table of Abbreviations, and in the fact that a recurring word 
 is very often abbreviated in different ways. Another diffi- 
 culty is the string of numbers following citations; it is some- 
 times difficult to know what they indicate. To be sure, a 
 partial explanation is given in one of the notes, but it is inad- 
 equate. Besides all this there are a goodly number of proof- 
 reader's errors throughout the notes in the original French, To 
 have verified every citation would have been impracticable, 
 especially as many of the works cited probably exist only in the 
 archives of the French Government. 
 
 In this translation Brissaud's original headings have been pre- 
 served with one most important exception. The original work is 
 in two volumes, and is divided into three general Parts, — those 
 of "Sources of French Law," "Public Law," and "Private Law." 
 This volume purports to be a translation of Part III, on "Pri- 
 vate Law," but it has been thought advisable by the Committee 
 to add to it, as a first chapter and by way of introduction, the 
 Introductory Chapter which in the French original is printed at 
 the beginning of Part II, on "Public Law"; this chapter is 
 
 xliii
 
 TRANSLATOR S REMARKS 
 
 called "Origin of the Family, of Ownership, and of the State." 
 It will undoubtedly be of material assistance in understanding 
 the chapters which were included under Part III, on "Private 
 Law," in the original. The remainder of Part II, on "Public 
 Law," will form another of the volumes of the present Series, 
 and extracts from Part I, on "Sources," have been used in con- 
 junction with other authors in the " Historic Survey," the intro- 
 ductory volume of this Series. The author's Introduction to 
 his first volume will be printed in the last volume of this Series, 
 under the title " Philosophy of the Evolution of Law." 
 
 xliv
 
 GENERAL REFERENCE LIST OF TREATISES CITED 
 
 Camus and Dupin, "Profession d'Avocat, Bibliographie choisie 
 des Livres de Droit," II, 5th ed., 1832. 
 
 G. Monod, "Bibliographie de I'Histoire de France," 1888. 
 
 U. Chevalier, " Repertoire des Sources Historiques du Moyen Age," 
 1883 et seq. 
 
 R. de Lasteyrie and E. Lefevre-Portalis, "Bibliographie generale 
 des Travaux Historiques publics par les Societes savantes de la 
 France," 1888 ct seq. 
 
 Holtzendorff, " Encyclopadie der Rechtswissenschaft in systema- 
 tischer und alphabetischer, Bearbeitung," 4th ed., 1882. 
 
 0. Muhlhrecht, " Wegweiser durch die neuere Litteratur des Rechts- 
 und Staatswissenschaften," 1893. 
 
 History of Roman Law. — Public Law : Mommsen and Mar- 
 quardt, "Manuel des Antiquites Romaines," French translation, 
 1887 et seq. Mispoulet, " Les Institutions politiques des Romains," 
 1882-83. Bouche-Leclercq, " Manuel des Institutions Romaines," 1886. 
 Mommsen, "Abriss des romischen Staatsrecht," 1893. Private 
 Law: Accaria, "Precis de Droit Romain," 4th ed., 1886. Cuq, "Les 
 Institutions juridiques des Romains," I, 1891. P. F. Girard, "Manuel 
 elementaire de Droit Romain," 1896 (and numerous authors cited 
 therein). 
 
 History of French Law. — Laferriere, " Histoire du Droit Fran- 
 (?ais," 1845-58. Warnkoenig and Stein, " Franzosische Staats- und 
 Rechtsgeschichte," 1846-48. Schaejfner, "Geschichte der Rechts- 
 verfassung Frankreichs," 1849-50, 2d ed., 1859. Koenigswarter, 
 "Sources et Monuments du Droit Fran^ais anterieurs au Quinzieme 
 Siecle," 1853. Gasquet, "Precis des Institutions politiques et sociales 
 de I'ancienne France," 1885. Ginoulhac, "Cours elementaire d'His- 
 toire generale du Droit Fran^ais, public et prive," 1st ed., 1884; 
 2d ed., 1890. Viollet, "Precis de I'Histoire du Droit Fran^ais," 
 1884-86. The 2d ed. is entitled " Histoire du Droit Civil Fran^ais," 
 1893. Glasson, "Histoire du Droit et des Institutions de la France," 
 I to VII (incomplete), 1887-96. Esmein, "Cours elementaire d'His- 
 toire du Droit Fran^ais," 1892, 2d ed., 1895. Fustel de Coulanges, 
 "Histoire des Institutions politiques de I'ancienne France," 1882-92 
 (ed. Julian). Flach, "Les Origines de I'ancienne France," 1886-93. 
 Luchaire, "Manuel des Institutions Fran(?aises," 1892. Cheruel, 
 " Dictionnaire historique des Institutions, Moeurs et Coutumes de 
 la France" 1st ed., 1855. 
 
 History of Belgian Law. — Warnkoenig, " Histoire du Droit 
 Belgique," 1827, and "Flandrische Staats- und Rechtsgeschichte," 
 
 xlv
 
 GENERAL REFERENCE LIST OF TREATISES CITED 
 
 1835-42. Dcfacqz, " Ancien Droit Belgique," 1846-73. Britz, " Code 
 de 1 'Ancien Droit Belgique," 1847. 
 
 History of Swiss Law. — V. Orelli, " Vorlesungen iiber schweitzer. 
 Rechtsgeschichte, " 2d ed., 1884. 
 
 History of German Law. — Grimm, " Rechtsalterthiimer," 1828, 
 3d ed.; same, 1881. G. Waitz, "Deutsche Verfassungsgeschichte," 
 I and II, 3d ed., 1880-82; III- VI, 2d. ed., 1883-96; VII- VIII, 1st 
 ed., 1878. Stobbe, "Geschichte der deutschen Rechtsquellen," 1860- 
 64; "Handbuch des deutschen Privatsrechts," 1885. Schulte, 
 "Lehrbuch der deutschen Reichs und Rechtsgeschichte," 5th ed., 
 1881 (French translation by Fournier, "Histoire du Droit et des 
 Institutions de rAllemagne," 1882). Sicgcl, "Deutsche Rechts- 
 geschichte," 1886. Brunncr, "Deutsche Rechtsgeschichte," 1887-92. 
 Schroeder, "Lehrbuch der deutschen Rechtsgeschichte," 1882. 
 Heusler, " Institutionen des deutschen Privatrechts," 1885-86. 
 Frommhold, "Deutsche Rechtsgeschichte," 1894. Thudichum, "Ge- 
 schichte des deutschen Privatrechts," 1874. " Untersuchungen zur 
 Deutschen Staats- und Rechtsgeschichte," edited by Gierke. 
 
 History of English Law: Glassoji,- " Histoive du Droit et des 
 Institutions de I'Angleterre," 1882-83. Pollock and Maitland, "His- 
 tory of the English Law before the Time of Edward I, " 1895. 
 
 History of Spanish and Portuguese Law. — Scmpere, " Historia 
 del Derecho Espanol," 3d ed., 1846. Brauchitsch, "Geschichte des 
 spanischen Rechts," 1852. Helfferich, "Enstehung und Geschichte 
 des Westgotenrechts," 1858. Antequera, "Historia de la Legisla- 
 cion Espanola," 1874. Hinojosa, "Historia General del Derecho 
 Espaiiol," I, 1887. On the history of Portuguese law see Camus, 
 p. 637. 
 
 History of Italian Law. — Sclopis, " Storia della Legislazione 
 Italiana," 1833 (French translation, 1861). Pertile, "Storia del 
 Diritto Itahano," 1st ed., 1871; 2d ed. La Mantia, "Storia della 
 Legislazione Italiana," 1884. Salvioli, "Manuale di Storia del Diritto 
 Itahano," 1890. Calisse, "Storia del Diritto Itahano," 1891. Schup' 
 fer, "Manuale di Storia del Diritto Italiano, Le Fonti," 1892. 
 
 xlvi
 
 TABLE OF ABBREVIATIONS MOST FREQUENTLY USED 
 
 "A. C." = " Ancienne Coutume." 
 
 "Archiv. Pari." = Madival and Laurent, "Archives Parlementaires," 1867 
 et seq. (The "Cahiers" of the States General will also be found in- 
 cluded within them.) 
 
 "Ac. Sc. Morales" = "Comptes Rendus de I'Acaddmie des Sciences morales 
 et politiques," 1840 et seq. 
 
 "Ac. Inscr." = "Academie des Inscriptions et Belles-Lettres," 1717 et seq. 
 
 "Ac. Legisl." = "Recueil de I'Academie de Legislation de Toulouse," 1851 et seq. 
 
 "Atti Modena," "Parma," etc. = "Atti e Memorie delle Deputazioni di 
 Storia Patri di Modena," "Parma," "Bologna," etc. 
 
 D. Bouquet = Dorn Bouquet, "Recueil des Historiens dea Gaules et de la 
 France," 1738-1876. 
 
 B. de R. = Bourdot de Richebourg, "Nouveau Coutumier General," 1724. 
 
 "Bourg." = "Coutume de Bourgogne." 
 
 "B. Chartes" = " Bibliotheque de I'Ecole des Chartes," 1835 et seq. 
 
 " B. Comit6 hist." = Bulletin du Comite des Travaux historiques," 1882 et seq, 
 
 "Bull, crit." = "Bulletin critique," 188 et seq. 
 
 "B. Hist. France" = "Bulletin de la Societe pour I'Histoire de France," 
 1834 et seq. 
 
 "B. Hist. Prot." = "Bulletin de la Societe pour THistoire du Protestan- 
 tisme," 1852 et seq. 
 
 "B. Leg. comparce" = " Bulletin de la Societe de Legislation comparee," 1869. 
 
 "B. Antiquaires de France" = "Bulletin de la Societe des Antiquaires de 
 France." 
 
 "Cap." = Capitularia Regum Francorum," ed. Boretius and Krause, 1881. 
 
 "C. Th." or "Cod. Theod." = "Code Theodosien," ed. Haenel, 1842. 
 
 "C. J." or "Cod. Just." = "Code Justinien," ed. Kriiger, 1877. 
 
 "C. J. C." = "Corpus Juris Civilis," ed. Mommsen and Kruger, 1866-77-95. 
 
 "C. J. Can." = "Corpus Juris Canonici," ed., Friedberg, 1878-80. 
 
 "Cone." = "Concilia." 
 
 "D. Greg." = "Decretales de Gregoire IX" or "Extra.," ed. Friedberg, 
 1878-80. 
 
 Daremb. = Daremberg and Saglio, " dictionnaire des Antiquites," 1873. 
 
 "D." or "Dig." = "Digeste," ed. Mommsen, 1866-70. 
 
 "Dipl." = see Pardessus. 
 
 "Forschungen" = "Forschungen zur deutschen Geschichte," 1860. 
 
 "G. Chr." = "Gallia Christiana" 1715-1865. 
 
 "Gr. Cout." = "Grand Coutumier." 
 
 Guyot, "R6p." = Guyot, "Repertoire de Jurisprudence," 1775-86. 
 
 Ruber = E. Ruber, "System und Geschichte des schweitzerischen Privatrechts." 
 
 Isambert = "Recueil des Anciennes Lois Frangaises de 420 k 1789," by Jour- 
 dan, Decrusy and Isambert, 1822-27. 
 
 "J. Savants" = "Journal des Savants," 1665 et seq. 
 
 "L. Sal.," "L. Rib.," "L. Bai.," etc., or "Sal.," "Rib.," "Bai.," etc. = "Lex 
 Salica," "Lex Ribuaria," "Lex Baiuwariorum," etc., etc. 
 
 Loysel 100 = Loysel "Institutes Coutumieres," Rule 100 of the Dupin and 
 Laboulaye edition. 
 
 xlvii
 
 TABLE OF ABBREVIATIONS 
 
 Leber = Leber, "Collection deg meilleurs Dissertations, Notices et Traitds 
 
 particuliers relatifs k I'Histoire de France," 1826-42. 
 "L. L." = Leges. 
 "M. Antiquaires de France" = "M^moires de la Soci^t^ des Antiquaires 
 
 de France." 
 "Mem. Paris" = "Memoiresde la Society de I'Histoire de Paris," 1874 et seq. 
 "M. Boica" = "Monumenta Boica," 1769. 
 "M. G. H." = " Monumenta Germanise Historica," 1826. 
 "M. H. Portug." = " Portugalliaj Monumenta Historica," 1870-73. 
 "M. H. Patr." = "Historia; Patriaj Monumenta, Chartse," Turin, 1836, etc. 
 "N. C." = "Nouvelle Coutume." 
 
 "N. R. H." = "Nouvelle Revue Historique de Droit Frangais et Etranger." 
 "Ord." = "Ordonnances des Rois de France de la Troisieme Race," 1723- 
 
 1849 (collection of the Louvre). 
 Pard. or Pardessus, "Dipl." = Pardesstis, "Diplomata, Chartse et Instru- 
 
 menta iEtatis Merowingicae," 1841-49. 
 "Paris" = "Coutume de Paris," and so generally names of places cited alone 
 
 followed by numbers indicate the Custom of that place; e. g., "Tou- 
 louse" = "Coutume de Toulouse," etc. 
 P^ard = Perard, "Pieces curieuses servant k I'Histoire de Bourgogne," 1654. 
 "R. A." = Grimm, "Rechtsalterthumer." 1828, 3d ed., 1881. 
 "R. Brit. Scriptores" = "Rerum Britannicarum Medii ^vi Scriptores," 
 
 1858 et seq. 
 "R. Quest, hist." = "Revue des Questions historiques," 1866 et seq. 
 "R. H." == "Revue historique," G. Monod, 1876 et seq. 
 "R. crit. d'Hist." = "Revue critique d'Histoire et de Litterature." 
 "R. H. D." = "Revue Historique de Droit Frangais et Etranger," 1855-69. 
 "R. L." = "Revue de Legislation ancienne et moderne," 1870-77. 
 "R. G." = "Revue generale du Droit," 1877. 
 
 Schmidt, "Ang." = Schmidt, "Gesetze der Angelsachsen," 2d ed., 1858. 
 Schoepflin = Schoepfiin, "xHsatia diplomatica," 1772-75. 
 Sagnac =■ Sagnac, "La Legislation Civile de la Revolution Frangaise," 1898. 
 "T. A. C." = "Tros Ancienne Coutume." 
 D. Vaissette = "Histoire generale de Languedoc," by Dom CI. Devic and D. 
 
 Vaissette, ed. Privat, 1874. 
 Varin = Varin, "Archives legislatives de la Ville de Reims," 1840. 
 "V. G." = Waitz, "Deutsche Verfassungsgeschichte," I and III, 3d ed., 1880- 
 
 82; in-VI, 2d ed., 1883-96; VII-VIII, 1st ed., 1878. 
 "Z. R. G." = "Zeitschrift fiir geschichtUche Rechtswissenschaft," 1815 to 
 
 1850; "Zeitschrift fur Rechtsgeschichte," 1862-78. 
 "Z. S. S." = "Zeitschrift der Savigny-Stiftung fiir Rechtsgeschichte," from 
 
 1880. 
 "Z. V. R." = Zeitschrift fiir vergleichende Rechtwissenschaft," 1882. 
 
 Treatises such as those by Stobbe, Fertile, Glasson, Pollock and Maitland, 
 etc., which are given in the General Reference List, ante, p. xlv, are cited by the 
 names of their authors, followed by numerals. For example, Stobbe; Fertile; etc. 
 
 The Roman numerals following the citation generally indicate the volume, 
 the Arabic the 'page. This is not invariable, however, as Loysel 100 means 
 rule 100 of Loysel's "Institutes CoutumiSres," and "Paris, A. C," 100, means 
 article 100 of the "Ancienne Coutume de Paris," and in the Customs 
 the Arabic numeral always refers to the article. By referring to the works 
 cited or the Reference List this distinction as to the numerals may readily be 
 ascertained. 
 
 xlviii
 
 HISTORY OF FRENCH 
 PRIVATE LAW 
 
 INTRODUCTION TO PRIVATE LAW 
 
 Topic 1. Origin of the Family 
 Topic 2. Origin of Ownership 
 Topic 3. Origin of the State 
 
 Topic 1. Origin of the Family 
 
 § 1. In General. 
 
 § 2. Theories of the Evolutionists. 
 
 § 3. First Stage. Promiscuity or 
 States bordering upon it. 
 
 § 4. The Consequences of Promis- 
 cuity. 
 
 § 5. Second Stage. Matriarchate. — 
 Evolution towards the Mater- 
 nal Family. 
 
 § 6. The Prohibition of Incest. 
 
 § 7. Marriage by Groups. 
 
 § 8. Polyandry. 
 
 § 9. Among the Reddies. 
 
 § 10. Exogamy. 
 
 § 11. Organization of the Maternal 
 Family. Relationship through 
 the Same Mother. 
 
 § 12. Third Stage. Patriarchate. 
 
 § 13. Formation of Marriage. (I) Ab- 
 duction. 
 
 § 14. The Same. (II) Purchase. 
 
 § 15. Marriage by Servitude. 
 
 §16. 
 
 Status of 
 
 Effects of Marriage, 
 the Wife. 
 § 17. The Position of Children. 
 § 18. Levirate. 
 
 § 19. The Recognition of Paternity. 
 § 20. Adultery. 
 § 21. Agnatic Relationship. 
 § 22. Systems of Succession. 
 § 23. Ancestor Worship. 
 § 24. Family Communities. 
 
 Dissolution of Family Commu- 
 nities. Evolution towards the 
 Simple Family. 
 Polygamy. 
 
 Evolution towards Monogamy. 
 Forms of Transition. 
 § 29. Monogamy. 
 § 30. Evolution towards the Inde- 
 pendence of Children. 
 §§ 31, 32. Evolution towards the 
 Emancipation of Woman. 
 
 §25. 
 
 §26. 
 
 §27. 
 §28. 
 
 § 1. In General. — Origin of the family, of ownership, of the 
 State, — obscure questions of the most obscure, — good questions 
 for the framers of hypotheses! The facts upon which their reason- 
 ing must be based, which are often very vague, are attested by 
 credulous historians or travelers little worthy of belief; they are to 
 be accounted for in three or four ways; the various systems adopt 
 them, and systems abound. On going through the hastily erected
 
 § 1] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 structures, built on the sand, we experience an impression of in- 
 security and discouragement. All generalizations are as yet vain; 
 we are only at the period of observation and search for details. 
 Only one thing is certain, and that is that human societies have 
 come into existence slowly; the family, ownership, and the State, 
 which we are accustomed to look upon as unchanging institutions, 
 have had humble beginnings and have undergone numerous 
 variations before arriving at their present form. These varia- 
 tions are proved; it remains to establish the law which governs 
 them. It is impossible to maintain that this evolution has been 
 the same everywhere. There is something very unstable about 
 the ties which there has been an attempt to establish between 
 the economic state, the psychological state, and the social state. 
 The three stages through which the various peoples seem to have 
 passed in their economic life, — hunting and fishing, the pastoral 
 life, and agriculture, — do not furnish us with any natural bounda- 
 ries for the principal institutions, whatever the socialist Engels 
 may have said on this subject. Under such conditions as these 
 one will ask if the outline that follows, which is necessarily only 
 superficial and incomplete, and wherein everything, or almost 
 everything, is liable to be contested both in its ensemble and as 
 to its details, will not do more harm than good. We have not 
 thought so. It has seemed to us to be indispensable to give a 
 brief statement of the subject and the problems to which it gives 
 rise. One will find herein in their natural surroundings general 
 ideas which it would have been difficult to set forth or to make 
 comprehensible in what follows. Furthermore, it is impossible 
 not to make some mention of primitive institutions when we 
 come to study the Celtic,^ Germanic ^ and Roman institutions 
 that are at the base of our public and private law. 
 
 1 Sources. — Coesar, " Commentarii de Bello Gallico," ed. Holder, 1882. 
 Did Csesar copy Posidonius, who wrote about the year 100 b. c, and who 
 had visited Gaul? Did Csesar use him in his Book VI, and were his asser- 
 tions controlled by him? Cf. Mommsen, "Hist. Rom.," Alexandre's trans- 
 lation, VII, app. B, p. 338; Ccesar, ed. Krahner, p. 30. — Pliny, Pomponius 
 Mela, Ammian. Marcell., etc. — "Extraits des Auteurs Grecs Concern, la 
 Geogr. et I'Hist. des Gaules," Cougny's translation, 1878 ("Soc. p. I'Hist. de 
 France"). These sources, which are very insufficient, can be completed only 
 with extreme reserve with the aid of documents of a very much later period 
 which we have, and which refer to the Celts of Great Britain and Ireland. 
 No one any longer thinks of finding the law of the Gauls in the "Tres An- 
 cienne Coutume de Bretagne." 
 
 2 Sources. — Ccesar, "De Bello Gallico," IV, 1 et seq.; VI, 21 et seq. (mid- 
 dle of the first century b. c). — Tacitus, "Germania," ed. Halm (end of the 
 first century A. D.). — Strabo, Pliny, Dion Cassius, Ammian. Marcell., etc. 
 
 2
 
 Topic l] ORIGIN OF THE FAMILY [§ 3 
 
 § 2. Theories of the Evolutionists. — It is not so very long 
 since it was thought that the monogamous family, with the father 
 as its head and the wife and children under his power, was as old 
 as humanity itself. This was almost an article of belief. Out- 
 side of Abraham and the patriarchs of the Bible there was nothing 
 but corruption and decadence. Two learned men, — Bachofen, 
 a professor at Bale, and the Scotchman, IM'Lennan, introduced 
 almost simultaneously the transformist idea in the problem deal- 
 ing with the origin of the family; they were led to do this in the 
 most diametrically opposite ways, — the former by the study of 
 the ancient myths, the latter by ethnography. Since the time of 
 their work the patriarchate is looked upon rather as a perfected 
 form of the family which was arrived at when promiscuity was 
 abandoned and after the matriarchate or maternal family had 
 been passed through. There are, however, many learned men — 
 for example, Sumner Maine — who look upon evolution quite 
 differently and give as the origin of the family a rough sort 
 of patriarchate which became altered or perfected in pass- 
 ing through various periods. The tablets of clay found at Tel- 
 1-Sifr about forty years ago proved that the patriarchate 
 family existed in Chaldea about twenty-two centuries before 
 our era. 
 
 § 3. First Stage. Promiscuity or States bordering upon it. — 
 Among the first groups of human beings did men and women 
 live in a confused state of promiscuity? Why not? We must not 
 look for any great delicacy of feeling among cannibals, such as 
 the Scotch were, according to the testimony of writers of ancient 
 times, and as several savage tribes still are. Promiscuity is at- 
 tested ^ — at least, assuming it not to have been a general fact — 
 during certain periods and among certain peoples: at the present 
 time among the inhabitants of the mountains in India, among 
 the Tasmanians and among the natives of Lower California; 
 formerly among the Massagetes and the Garamantes, and a 
 short time ago among the Zaporogue Cossacks, where the wo- 
 men had a separate encampment and belonged to all the men 
 of the horde; and, finally, according to old traditions, in China, 
 
 One can also, but only to a limited extent, make use of the writers after the 
 invasions, of barbarian laws, of Scandinavian laws and sagas, and of the old 
 German Customs: Fustel de Coulfmges, "L'Invasion Germanique," 1891, 
 p. 226; Mullenhoff, "Germania antiqua," 1873, gives the old texts. Bibl. 
 in Glasson, "Hist, du Dr. de la France," II, and in Brunner, "D. Rechtsg." 
 ^ To the contrary, Wesiermarck, Starcke and other recent writers. 
 
 3
 
 § 3] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 in Egypt, and in Greece, where marriage is an invention of legend- 
 ary personages such as Fo-Hi, JNIenes, and Cecrops. 
 
 Even where it has disappeared promiscuity has left its traces: 
 incestuous unions, sacred prostitution, hospitable hetserism. The 
 Arabs, says Strabo, even have intercourse with their mothers. 
 Unions between parents and children, between brothers and 
 sisters, are frequent among the Indians of Brazil, among the 
 Chippewas, and among the Karens (India). They are also in- 
 dulged in among the Aleuts; one of them who was being re- 
 proached with this fact justified himself by replying: The otters 
 do this thing! There are countries where the husband leases, 
 sells, and barters his wife according to the caprice of the moment. 
 The Esquimaux look upon it as a duty to lend their wives to 
 guests whom they receive under their roof. Finally, Herodotus 
 tells us that it was an act of piety for the women of Babylon to 
 prostitute themselves at certain periods in the Temple of Mylitta. 
 
 Divorces without motive, trial marriages, marriages for a time, 
 partial marriages, — these are all things which differ very little 
 from promiscuit3^^ In Scotland until the time of the Reforma- 
 tion a young man and a young woman spent a year together, 
 after which they either married or separated, according as they 
 were or were not satisfied with this trial. " jNIarriage for a term, 
 * mota,' was customary among the Arabs before the time of 
 Mahomet; it is still frequent in Persia, where a woman may be 
 married for a term which varies from one hour to ninety years." 
 Marriage for a year was customary among the pagan Irish: 
 " The terms were fixed in the same way as for a lease; the union 
 terminated on the first of May or the first of November of each 
 year." 
 
 § 4. The Consequences of Promiscuity. — Great mortality 
 among the children; the mother could not raise them by herself 
 and abandoned or else killed them. Relatives whom chance has 
 united and an accident separated will scarcely give each other the 
 support and assistance which are necessary in case of illness or 
 when old age comes on. There is no such thing as relationship, 
 properly speaking; people are not grouped in families, but classed 
 by generations; one would say, for example, that he was the son 
 of all the mature men of the tribe, the grandson of all the old men, 
 
 ^ Is not the right of the lord which exists in various societies for the benefit 
 of the poUtical chiefs or priests a survival of the right which belonged for- 
 merly to the community over all the women? 
 
 4
 
 Topic l] ORIGIN OF THE FAIWILY [§ 5 
 
 and the father of all the children of the tribe, as he was the hus- 
 band of all the women. This system of relationship by classes 
 (the word relationship is very inappropriate) is found among 
 the Malays, the Turanians and the Redskins; it is contrasted 
 with the descriptive system of the Aryans and the Semites, that 
 is to say, a system which we make use of and which is based upon 
 a recognition of individual relationship. 
 
 According to ]\Iorgan, this relationship dates from a period 
 when there was neither marriage nor family. To each method 
 of the constitution of the family there corresponds a different 
 system of relationship. But the constitution of the family becomes 
 modified more rapidly than the nomenclature of relationship; 
 for a language always lags behind with regard to institutions. 
 The nomenclature of relatives may thenceforth show us the ex- 
 istence of a form of family which has long since disappeared : this 
 is so with regard to the system of relationship in force in the 
 Hawaiian Islands. It does not correspond to the modern Ha- 
 waiian family; the same remark applies to the system of relation- 
 ship in use among the Redskins; but, owing to a very curious 
 peculiarity, the nomenclature of relatives used among the Red- 
 skins corresponds with the constitution of the modern Hawaiian 
 family. Morgan deduces from this clever discovery the succes- 
 sive existence among the Redskins of three forms of family: 
 1st. The old Hawaiian family, or, rather, absence of family, with 
 relationship by classes; this state of things has left traces in 
 Hawaii, but not among the Redskins. 2d. The modern Hawaiian 
 family represented among the Redskins, — not in their law, but 
 in their language; it is only found in the nomenclature of rela- 
 tives. 3d. The modern Redskin family to which the system of 
 relationship still preserved in their existing language no longer 
 corresponds.^ 
 
 § 5. Second Stage. Matriarchate. — Evolution towards the 
 Maternal Family. — In a promiscuous society the mother and her 
 descendants have a tendency to form a natural group, an associa- 
 tion for purposes of attack and defense, and production in com- 
 mon. The father, assuming that he be known,^ does not form a 
 
 1 There are sceptics who account for this in other ways, — for example, 
 by seeing in it a mere consequence of poverty of ideas and poverty of lan- 
 guage, and the pecuUaritics of th(! systems of relationship in use among 
 primitive peoples. Cf. "Ann6e sociolog.," I, 311. 
 
 ^ Let us here recall the notion which was widespread among the Egyp- 
 tians and the Greeks according to which the father is alone creator of the 
 child, the mother only nourishing it. 
 
 5
 
 § 5] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 part of this group; he is connected with the family of his own 
 mother. At the same time that the maternal family is being 
 formed promiscuity is being restricted. Marriage is prohibited 
 within the group between relatives descended from a common 
 mother. Incest is forbidden. From what motive? Morgan sees 
 in this one of the finest applications of the law of natural selec- 
 tion. Unions between near relatives result only in children in- 
 ferior to those born from marriages between strangers; the latter 
 became more numerous; they came to prohibit the former under 
 the most severe penalties.^ 
 
 § 6. The Prohibition of Incest, which was at first probably very 
 restricted, became extended and led to the marriage by groups, 
 to polyandry, and to the practice of exogamy .^ 
 
 According to Morgan, in the old society of Hawaii marriage was 
 prohibited only between one class of relatives and another, be- 
 tween ascendants (actual or fictitious) and descendants. In the 
 modern Hawaiian family marriage is forbidden even between 
 brothers and sisters of the same mother and between cousins 
 descended from the same mother. 
 
 § 7. Marriage by Groups was practised in Australia. Among 
 the Negroes of Mount Gambler the tribe is divided into two 
 clans, Krokis and Kumites; every man who is a Kroki is the hus- 
 band by birth of every woman who is a Kumite, and vice versa. 
 This is a case of promiscuity, but of limited promiscuity, because 
 it is not possible for a union to exist between two members of the 
 Kroki group or between two members of the Kumite group. We 
 must assume that all the Krokis are relatives descended from a 
 common mother, and that it is the same with regard to the Ku- 
 mites. The existence of marriage by groups has been revealed to us 
 by an English missionary, the Rev. Mr. Fison, who has passed 
 
 1 The popular notion according to which children born of unions between 
 near relatives are often affected by serious infirmities (deaf mutes, blind, 
 etc.) is rather well founded; assuming that a husband and wife are perfectly 
 healthy, their children will resemble them and will be well formed, whether 
 their father and mother be relatives or not; but this assumption is defective 
 in its basis; a perfect state of health is rare; each one has his weak point; as 
 this weak point will be the same in the husband and in the wife when the 
 latter are near relatives, it will often happen that something that was only a 
 slight imperfection in their case will be a very serious defect in the case of 
 their children. Conversely, the crossing of two pure races will give a mixed 
 race that is superior to each of the former, for it will have at one and the 
 same time qualities of both, or, at least, it will not be open to that aggrava- 
 tion, to that increase as the square, if one may say so, of the causes of weak- 
 ness in the parents. 
 
 ' Unless it be the reverse, and the prohibition of incest be, as Durkheim 
 pretends, a vestige of exogamy. 
 
 6
 
 Topic l] ORIGIN OF THE F.iMILY [§ 8 
 
 many years in Australia. Another missionary, the Rev. iNIr. 
 Mathew, who has passed just as long a time in that country, 
 assures us that nothing of this kind ever existed, and that the 
 Negroes of the country marry one another just as do the white 
 people of our own country. Which are we to believe? 
 
 § 8. Polyandry is a marriage by groups on a small scale: each 
 woman has several husbands, but they are not all the men of a 
 tribe; they are only a few of them, — ten or twelve, for example. 
 Furthermore, polyandry and polygamy may exist at one and the 
 same time; one husband has at the same time several wives; this 
 comes pretty near to being promiscuity. We will give as an ex- 
 ample the Nairs of Malabar (who are comparatively civilized) : 
 " The spouses have a perfect understanding as to the method of 
 the enjoyment of what they are indeed compelled to call the com- 
 mon ownership. The first husband lives with his wife for ten days, 
 after which he gives up liis place to another." As he is at the 
 same time the husband of several other women, when he leaves 
 one it is not to go and live alone; he goes to the others succes- 
 sively. Here the woman must necessarily be the center of the 
 family, and relationship through the woman is the only kind that 
 is recognized. 
 
 From polyandry thus understood we must distinguish fraternal 
 polyandry, which is only one of the forms of the patriarchal family 
 with relationship through the men and the authority of a chief 
 over the wife and children. Brothers living together take only 
 one wife, sometimes from motives of economy, because they are 
 poor and the purchase of a wife for each one of them is a luxury 
 beyond their means (Sparta); at other times, if they are rich, in 
 order that they may not become poor by splitting up the patri- 
 mony of their family (Ceylon). It is especially in Asia that this 
 form of polyandry is met with; it is practised in Tliibet, among 
 the Todas in India; and it was formerly practised in Arabia and 
 Persia, and Caesar attested that in his time it was in use among 
 the Bretons, V, 14: " Uxores habent deni duodenique inter se com- 
 munes, maxime fratres cum fratribus parentesque cum liberis; 
 sed si qui sunt ex his nati eorum habentur liberi quo primum virgo 
 quaeque ducta est." The eldest brother chooses the common 
 wife, for he is the first one to arrive at the age of puberty; as soon 
 as his brothers attain manhood they become the husbands of their 
 sister-in-law, but they are under the authority of their eldest 
 brother; the children are looked upon as being his. 
 
 7
 
 § 9] INTRODUCTION TO PRIVATE LAW [IntRO. 
 
 § 9. " Among the Reddies (India) a young girl of from six- 
 teen to twenty marries a boy who is scarce five or six years old, 
 and sometimes even younger. After the celebration of .the mar- 
 riage the wife goes to live with some relative of her husband, often 
 even with his own father. The latter enjoys all the conjugal 
 rights, and if children are born of this union they are legitimate 
 and are looked upon as being those of the husband, whatever his 
 age may be. When this husband comes to the time of the real 
 marriage he naturally finds his wdfe too old, and he takes another 
 one under the very conditions which he had to undergo himself." 
 This custom makes us think of the levirate law, of the substitu- 
 tion of a ward, by which the Roman " paterfamilias " made sure 
 of having heirs for the one who had not attained puberty by mak- 
 ing a will for him. In this case he provides children for him. 
 
 § 10. Exogamy is marriage outside of the group to which a 
 person belongs; and endogamy, or marriage within the group, is 
 much more readily accounted for. But exogamy seems to be more 
 widespread, and a thing which is still more singular is that it 
 is prescribed under the most severe penalties: death among the 
 Algonquins and Hottentots and in the New Hebrides. 
 
 M'Lennan has seen in this custom a consequence of the in- 
 fanticide of girls, which was very frequent in former times. It 
 was absolutely necessary, where women were lacking, to take 
 them away from other tribes. The extreme poverty of certain 
 groups of people accounts for the murder of girls as soon as they 
 were born. Thus among the Arabs before the time of Mahomet 
 they were looked upon as useless mouths to feed and w^ere buried 
 alive; the Koran prohibited this practice (6, 17, 81). An old Toda 
 used to say: " We cannot support our children; to-day each one of 
 us possesses a cloak; formerly we had only one for the whole 
 family, and the one who had to go out took the cloak; the others 
 stayed naked in the house." The Khonds of India had made a 
 religious precept of the infanticide of girls. In the Fiji Islands 
 they were killed because they could not fight. The Association 
 of the Areoi in the Society Islands practised both abortion and 
 infanticide. 
 
 The murder of new-born girls, however widespread one may 
 suppose it to be, can never have been a general custom; often, on 
 the contrary, girls were looked upon as objects of great value, 
 because it was permissible to sell them and they brought a very 
 high price. M'Lennan's remark, moreover, would explain why 
 
 8
 
 Topic l] ORIGIN OF THE FAMILY [§ 10 
 
 exogamy was a necessity for certain tribes, but not why these 
 same tribes so strictly prohibited endogamy when the girls had 
 escaped from the infanticide which was habitually practised. 
 
 According to Lubbock, among tribes where promiscuity was 
 practised a man could keep for himself alone the woman 
 whom he had captured in war. Unions of this nature had 
 the double advantage of being permanent and of giving birth 
 to a mixed race and, consequently, one which was superior. In- 
 dividual marriage by this means was substituted for community 
 of wives, just as, perhaps, individual ownership was substituted 
 for collective ownership. When customs became less harsh 
 women were purchased from their relatives; actual carrying off 
 ceased to be necessary; its place was taken by the symbolical ab- 
 duction. Under this name it always formed a part of the marriage 
 ceremony, in order that it might be perfectly understood that the 
 woman became the exclusive property of one man. This system 
 assumes a direct passing from promiscuity to the patriarchate, and 
 makes the matriarchate an anomah^ which it is difficult to account 
 for. It conflicts with the fact that the capture of women was 
 carried out nine times out of ten by a troop, and not by an in- 
 dividual; and monogamy could hardly result from this. Further- 
 more, how are we to account for the very great horror which was 
 felt for endogamy? One can readily understand that exogamy 
 should have been preferred, but not that marriage within the 
 group should have been prohibited as a crime under pretext that 
 it amounted to a robbing of the community. 
 
 ]\Iorgan's theory rests upon an observation which is perfectly 
 correct: It is not the tribe, as is said only too often, which is ex- 
 ogamous; it is the clans of which the tribe is composed; the tribe 
 itself is endogamous; people marry from one clan into another. A 
 prohibition against marrying within one's own clan is equivalent 
 to a prohibition against marrying one's relatives, because the clan 
 is a group of relatives, — at least, fictitious ones. Thus is to be 
 accounted for the severe disapproval with which endogamy is 
 looked upon; and thus also is to be accounted for the practice of 
 exogamy among the clans of a maternal family, for it exists 
 therein and is not met with merely among clans of a patriarchal 
 family, as would be required according to Lubbock's system,^ 
 
 ' Durkheim has recently suggested another explanation for exogamy. The 
 members of each clan consider themselves as one flesh and one blood, — 
 the flesh and the blood of the mystical being from whom they all descended 
 ("totem"). If they wish to adopt a stranger, a few drops of the family blood 
 
 9
 
 § 11] DfTRODUCTION TO PRIVATE Lu\W [ixxno. 
 
 § 11. Organization of the Maternal Family. Relationship 
 through the Same Mother. — Exogamy, polyandry, marriage by 
 groups, prohibition of incest, — such are the institutions by 
 means of which promiscuity was discarded. The maternal family 
 or matriarchate was the logical consequence of these; it is more 
 frequent in proportion as the societies among which it is found 
 are more rudimentary. It only includes relatives in the female 
 line.^ Under this system a child takes the name of its mother 
 and belongs exclusively to the family of the latter; its father 
 forms part of another group, the group consisting of his own 
 maternal relatives. The Lycians, Herodotus tells us, take their 
 mother's name; they leave their inheritance to their daughters 
 and not to their sons. Among the Iberians, according to Strabo,^ 
 daughters inherit from their relatives and give a marriage portion 
 to their brothers. It was the same among the Nairs in India, 
 and elsewhere.^ The head of the maternal family is the eldest 
 brother of the mother, and if he is not living the nearest maternal 
 relative. The mother has only a nominal authority; the alleged 
 domination of women, the " gynseocracy " devised by certain 
 advanced minds, is incomprehensible at a period of violence, a 
 continual struggle, such as the early times were."^ The peculiar 
 position of the maternal uncle, the rights of inheritance of women 
 in preference to men, are met with for the first time among the 
 Alemanni at the time of Tacitus, " Germ.," 20; the others, in cer- 
 
 are injected into his veins. It is in this blood that this being resides who is at 
 once the god and the ancestor of the clan. Everything he touches is sacred, 
 "tabu." From this arises the rehgious respect wtiich the men have for the 
 women of their o\vn clan after they attain puberty. Sexual relations are only 
 possible between one clan and another, because each has a different god. 
 Durkheim, by means of these ideas and the habits that they have given 
 rise to, accounts for everything, even to our modern customs. The hypoth- 
 esis is ingenious, but contrary to all probability and not proved ("Ces- 
 sante causa, cessat . . ."). 
 
 1 There has been an attempt to account for relationship through women 
 by seeing in it a means of distinguishing between the children of various 
 uives in the polygamous family. 
 
 2 III, 165- Cordier, "La Famille chez les Basques" ("R. h. Dr.," XIV); 
 Etruscans (' Perrica gnatus"), Locrians; Polybius, XII, 5; Mary Kingslcy, 
 "Travelsin Western Africa," 1897; "N. R. H.," 1891, 302 (Celts); "N. R. H.," 
 1891, 301. 
 
 ' Lnffitau, "Moeurs des Sauvages Americ," I, 69 (1721): neither the hus- 
 band nor the wife leaves the family in order to found a separate family and 
 cabin ; each one remains at home ; the children belong to their mother and are 
 looked upon as belonging to the family and the cabin of the mother (and not 
 to that of the father). In the cabin of the wife the daughters are heiresses 
 in preference to the males, who are given only their sustenance. 
 
 * Among the Natchez, however, the sun-woman had a right of Ufe and 
 death over the children (eighteenth century). 
 
 10
 
 Topic l] ORIGIN OF THE F.AJMILY [§13 
 
 tain manuscripts of the Salic Law which called the mother 
 and the mother's sister to the succession, Title 59. The 
 prohibition of adopting one's sister's son in India, the prohibi- 
 tion of marriage between brothers and sisters born of the 
 same mother in the Athenian law are yet further traces of 
 the matriarchate and bear witness, contrary to Sumner ]\Iaine's 
 opinion, that the Aryans themselves have passed through this 
 phase of evolution. 
 
 § 12. Third Stage. Patriarchate. — Why and how is the transi- 
 tion made from the maternal family to the patriarchate, which 
 gave authority to the husband over his wife and children, and 
 which included agnatic relationship or relationship through the 
 men only? ^ The patriarchal family gave rise to permanent ties 
 between the father and the mother and, consequently, to closer 
 ones; tliis is an advantage for the couple themselves as well as 
 for the children. The union between the man and the woman — 
 which was temporary in the maternal family — is a source of 
 trouble for the latter; the husband finds himself thrown into a 
 conflict with the relatives of his wife with regard to her and his 
 children. These inevitable dissensions were one reason for mak- 
 ing this group an inferior one. It gave way to the patriarchate, 
 which ancestor worship came to fortify by giving it a religious 
 sanction. Looked upon from the point of view of the method in 
 which it was formed and of its consequences, this form of the fam- 
 ily appears as an application of the right of ownership. The head 
 of the family has over his wife and children almost the same 
 rights as a master over his slave, and like a master he is respon- 
 sible for their acts. 
 
 § 13. Formation of Marriage. — (I) Abduction, the carrying 
 off of women, takes place sometimes in a body, like the legendary 
 carrying off of the Sabine women (the Picts, ancient Scandina- 
 vians, Tribe of Benjamin, etc.) and is sometimes individual (Tas- 
 mania, Carribee Islands, etc.). The law of Manu makes abduc- 
 tion one of the eight forms of legal marriage. " On the western 
 coast of Greenland," says Dr. Nansen, " the young man lies in 
 wait for the young girl, takes her by surprise, seizes her by the 
 
 ' The opposite transition from the patriarchate to the matriarchate is with- 
 out an example (?) and would be difficult to account for. One might, how- 
 ever, see in it an extension of institutions which, like marriage "sine manu" 
 at Rome, leave the wife under the authority of her parents; if the husband 
 acquires no more rights over the children than over his wife's possessions 
 this is sufficient to make it a form of purely matriarchal family. — M'Lennan, 
 "Patriarchal Theory," 1885. 
 
 11
 
 § 13] INTRODUCTION TO PRIVATE LAW [ Intro. 
 
 arm or the neck or the hair, and drags her towards his tent in 
 spite of her cries and her struggles." The Austrahans proceed in 
 as summary a manner; they carry off the young girl after having 
 knocked her over with the blow of a club.^ 
 
 The imitation of abduction, which is so frequently found in 
 marriage ceremonies, is a survival of the primitive law in which 
 abductions are a reality (Sparta, Rome, etc.). Among the Tar- 
 tars the young girl leaps upon a horse; the young man, who 
 has already paid her relatives the earnest money for the bargain, 
 rushes to pursue her; and if he does not please the betrothed the 
 chase may be long and difficult. Among the Araucanians every 
 young girl would feel herself dishonored if an energetic fight were 
 not made to keep her in the family. 
 
 In contrast to these customs, among the Kaffirs, the Moquis 
 in America, and the Garros in India, it is the girls who make pro- 
 posals of marriage to the young men. " If the advances of the 
 woman are too direct the frightened young man flees on horse- 
 back in order to give evidence of his resistance. He is at once 
 pursued by the young girls, who bring him back a captive to the 
 one whom he should marry." 
 
 § 14. The Same. — (II) Purchase. — From abduction to pur- 
 chase there is but a step. " Among the Bodos (India) the be- 
 trothed man carries off the young girl with every appearance of 
 violence; then he tenders to her relatives a banquet and pres- 
 ents in conformity with his position, in order to disarm a pre- 
 tended anger." This portrays what took place almost everywhere. 
 When there was an abduction the relatives of the outraged 
 woman sought to take vengeance for the injury which had been 
 sustained ; the abductor appeased them by offering them presents. 
 Customary tariffs came to be established. The composition due 
 by every abductor was paid in advance. Among a great num- 
 ber of peoples the father disposes of his daughters in the same 
 way as a master disposes of his slaves, without consulting them. 
 In India, in ancient Greece, and even in Rome, marriage by pur- 
 chase (" coemtio ") was known. Homer speaks of the "Trapdevot 
 aX(f)€aL8oLai," of young girls, who bring many oxen to their father 
 because the betrothed pay the purchase price in cattle, the cur- 
 rency of that time. The variations in the price of this sort of 
 
 ' Cf. Tacitus, "Ann.," I, 55 (" Arminius "). In Germany the custom of the 
 "Brautlauf," "Brautfahrt," the conducting of the young girl by a numerous 
 cortege to her husband, is a trace of the abduction. — Cf. as to the Jews, 
 "Judges," xxi, 
 
 12
 
 Topic l] ORIGIN OF THE FAJMILY [§ lo 
 
 merchandise are very great. " A rich ' Baschkir ' would take 
 pride in giving 3000 roubles for a wife; his poor neighbor would 
 obtain one for a load of wood or hay." The Papayos of New 
 Mexico sell their daughters at auction. " The Damaras are very 
 poor; a goat seems to them to be a very acceptable equivalent for 
 one of their daughters." Wilson tells us that in Uganda a father 
 offered him his daughter for a pair of shoes or an old coat; and 
 even this was very dear, for the usual price is six needles and a box 
 of percussion caps.^ 
 
 The marriage takes place ordinarily for cash, just like the con- 
 tracts of primitive times; sometimes for credit, but, like a w4se 
 merchant, the father of the family takes precautions. He keeps 
 certain rights over his daughter; the children remain his property 
 until the complete payment of the stipulated price (Islands of 
 the Sonde, IMakololo in Africa); in Unyoro the husband pays a 
 cow at the birth of each child. In other respects he is compelled 
 to live in the house of his father-in-law until he shall have en- 
 tirely freed himself. If he has no money or cattle, the future 
 husband exchanges his sister for the woman whom he desires, 
 becomes the slave of his father-in-law or else hires out his services 
 to him. Must one recall the history of Jacob and the fourteen 
 years which he passed in the house of Laban in order to marry 
 Leah and Rachel, the daughters of the latter? The Redskin each 
 day gives, sometimes to the father and sometimes to the maternal 
 uncle of his wife, a portion of his game or fish. 
 
 § 15. Marriage by Servitude or by letting of services no doubt 
 leads to customs such as those of Ireland or Sumatra (" ambe- 
 lanak "), where it seems to be the wife who buys her husband; the 
 husband, in fact, goes into the house of his wife, or, rather, of the 
 
 1 According to the Icelandic law the future spouse pays the customary 
 price, 1 mark in silver; the father of the girl, or, if he is not living, the nearest 
 male relative, becomes a warrantor and declares that the girl has no hidden 
 defect such as would set aside the sale of a slave; the bargain is then con- 
 cluded by the blow with the palm of the hand ("Handsal"), without its being 
 necessary to have the consent of the woman. The marriage is completed 
 within a year by the handing over of the woman to her future husband: 
 Dareste, p. 349. CJ. ^'The Anglo-Saxon Laws": "^thelb.," 77, 31. — "The 
 purchase of women disappeared at an early date in the Israelitish legislation. 
 Two features of it, however, remained: the woman must be given by those 
 who have authority over her; the man can complete the marriage by giving 
 a sum of money to the woman, — the money being only a symbol. Ordi- 
 narily, the marriage is concluded by the conferring of a marriage portion 
 that is given by the husband to the wife ('khetouba'); from that time on, 
 the adultery of the woman is punished as though she were married." Da- 
 rede, "Etudes," p. 38; Paturet, "Condition de la Femme dans I'ancienne 
 Egypte," 188G. 
 
 13
 
 § 15] INTRODUCTION TO PRIVATE LAW [ Intro. 
 
 relatives of his wife, as a slave; he works for them and possesses 
 nothing of his own, and he may be expelled. 
 
 § 16. EfEects of Marriage. Status of the Wife. — Whether she 
 be carried off or bought, the wife is in a situation differing little 
 from that of a slave. Body and possessions, she is subject to her 
 husband; she is "in manu," under his hand, according to the 
 Roman expression. She cannot possess anything of her own; 
 everything she acquires goes to her husband. He has over her 
 the right of life and death, and after his death religion sometimes 
 even makes it the duty of the widow to burn herself with the 
 mortal remains of her husband so as still to render him beyond 
 the tomb the ser\dces which she carried out on earth. Among 
 the Afghans the widow goes to the heirs of the deceased; " she 
 forms a portion of their inheritance, and if she remarries, her 
 second husband is held bound to indemnify the family of the 
 first husband for the loss which it has sustained." "In Tasmania 
 the wife is treated like a domestic animal, which one has a right 
 to beat, to wound, to kill, and even to eat. In the Viti Islands a 
 savage named Loti savagely devoured his wife, after having had 
 her cooked on a fire which he had compelled her to light herself." 
 Under such conditions as these the right of divorce must of neces- 
 sity have been reserved to the husband; he could repudiate his 
 wife at his pleasure (excepting that he would incur the vengeance 
 of her family, who might keenly resent this insult, or excepting 
 that he might pay an indemnity in advance so as not to run this 
 risk). 
 
 The patriarchate seems like a system which treats the wife with 
 disfavor; in subjection to her father so long as she is a girl, to her 
 husband during the marriage, and after his death to her children, 
 she only changes masters; she is, to use the Roman term, in per- 
 petual guardianship.^ Religion and morals reacted against the 
 severity of the ancient law; thus, according to the barbarian laws, 
 the husband cannot kill his wife without good reason; he is only 
 authorized to sell her by way of punishing her or in case of abso- 
 lute necessity. The Gallic law even gives to the widow a sur- 
 vivor's portion.^ 
 
 * Kovalewsky and other learned men do not believe that this subjection of 
 the wife existed. But the facts that are not in accord with this state of in- 
 feriority are indications of a new law in process of formation or are vestiges 
 of the matriarchate. 
 
 2 Matrimonial System of the Gauls. — The right of Ufe and death which 
 Ccesar recognized the head of the Gallic family to have over his wife as well 
 
 14
 
 Topic l] ORIGIN OF THE FA]\nLY [§17 
 
 At Rome the religious marriage of the patricians, which was 
 characterized by the " confarreatio," an offering of wheat bread 
 to Jupiter, and by the participation of the priests of the official 
 rehgion of the State, places the wife "in manu," but makes of her 
 the mistress of the house, the respected matron, who attains to 
 the same dignity as her husband and shares in his honors.^ In 
 time marriage without "manus," a sort of formal union, without 
 formalities, came to free the wife from the authority of her hus- 
 band and completely emancipate her. 
 
 § 17. The Position of Children is determined according to that 
 of the mother; if they are born of a slave, they themselves are 
 slaves. The paternal power is absolute, just as is the husband's 
 
 as his children (VI, 13, 19; cf. Gains, "Comm.," I, 55, paternal power among 
 the Galates) does not agree very well with the system of possessions between 
 the spouses, which seems to place the husband and the wife upon almost an 
 equal footing: Ccesar, VI, 19. The wife brings her husband by way of mar- 
 riage portion "pecuniae" (sums of money and other valuable movables, but 
 not land; probably the land still belongs to the family; the woman has no 
 right to it); the husband takes out of his own possessions other "pecunise" 
 of equal value according to an appraisement (made by whom and how?). 
 These "pecunise" — those of the husband and those of the wife — are 
 mingled together in one mass ; only one reckoning is made, and the profits are 
 kept; the survivor has all of this, — that is, the capital contributed by him- 
 self and that contributed by his wife, together with the profits. Cf. Roziere, 
 "Rev. de Leg.," 1874, p. 135. — This system has been likened to one of those 
 that was knowTi to the Irish law, and which is to be distinguished by the 
 equality of the share contributed by each spouse; but in the Irish law the 
 position of the spouses is equal ; or, at least, the husband cannot make certain 
 kinds of contracts without the consent of his wife, whereas in the Gallic law 
 she is under the authority of her husband. CJ. Collinet, "R. Celtique," 1897, 
 p. 322. There has been an attempt to construe this as the conjugal com- 
 munity of our Customs of the Middle Ages, but in this case there is no ques- 
 tion of a true community because all the possessions forming a single mass 
 are always conferred upon the survivor, and because in no case can the heirs 
 of the predeceased spouse make any claim to them. If one wishes to under- 
 stand this system one must assume two things that Caesar does not tell us: 
 1st. The share contributed by the wife, and also that contributed by the hus- 
 band, are rather small; the wife's because she has few rights over the posses- 
 sions of her family, the husband's because it is no doubt the purchase price 
 which he paid to the relatives of the wife that has been transformed into an 
 antenuptial gift for the exclusive benefit of the latter. 2d. The profits realized 
 during the marriage are added to the mass and go with it. The preservation 
 of the issues in kind is physicallv impossible. Cf., on this point, Humhert, 
 "Rev. hist, de Dr." IV, 517; D., "de pact, dotal.," 23, 4; 9, 3; D., "de j. dot.," 
 23, 3. The husband disposes of the interest on the price of the issues sold; he 
 keeps this price. D'Arbois de Jubainville, "Rev. crit. d'Hist.," 1879, p. 2: the 
 marriage portion consisted in herds, and the young were raised until they 
 attained the age when they were most valuable for slaughtering purposes. 
 
 ' To judge from the information which has been furnished by comparative 
 jurisprudence, and according to the custom of betrothals ("sponsalia") and 
 the "deductio mulieris in domum mariti" ("rapi simulatur virgo," says 
 Festus), it is very unlikely that the " conf arreatio " was the most ancient 
 form of marriage at Rome. Cf., however, to the contrary, Marquardt and 
 Mommsen, "Man. des Ant. Rom.," French translation XIV, 40, 76; Girard, 
 "Man. de Dr. Rom.," p. 145; Labbe, "N. R. H.," 1887. 
 
 15
 
 § 17] INTRODUCTION TO PRIVATE LAW [ Intro. 
 
 power. It is for their father to decide whether they shall be 
 brought up or not; infanticide, or the exposure of new-born chil- 
 dren, which is so frequent in the old traditions, is only the exer- 
 cising of a right. The father may strike his children, sell them, or 
 put them to death.^ He gives his daughters in marriage upon 
 receiving a sum of money; they are bought from him. Neither 
 sons nor daughters have a right to have any belongings of their 
 own; everything they acquire belongs to the father. At Rome 
 the "patria potestas," which on principle lasted during the entire 
 life of the father, was adhered to through the centuries with this 
 barbarian harshness. However, as children were members of the 
 State, at an age when they were capable of bearing arms they 
 were emancipated, from the political point of view. In Germania 
 military coming of age perhaps meant both political and civil 
 emancipation at one and the same time. 
 
 § 18. Levirate. — All children born during the marriage came 
 under this power; they belonged to the husband even though 
 they were not his issue. This is shown us by the institutions of 
 the " Niyoga " in India and the Levirate among the Hebrews. If 
 a man dies without children his brother should "raise a posterity 
 for him " and for this purpose should marry his widow; this 
 brother who becomes a substitute for the husband is the levirate; 
 a son of the levirate is legally the son of the deceased, because 
 even after the latter's death his wife and children are still virtu- 
 ally under his power; he lives a hidden life beyond the tomb. 
 The worship of ancestors causes the levirate to become a pious 
 duty. It is indispensable that the dead should have descendants 
 in order to receive the worship which is due him. The "niyoga" is 
 only a levirate practised during the lifetime of the husband when 
 he has no children. — " The law of Sparta allow^ed a husband 
 who was impotent to give up his wife to a younger and stronger 
 man." "At Athens, if the relative who was compelled by the 
 law to marry the widow of his near relative was not capable of 
 fulfilling the conjugal duties, she could demand to have another 
 man of the family substituted for him." ^ 
 
 § 19. The Recognition of Paternity did not present any diffi- 
 culties in societies of the patriarchal type. The husband treats 
 as his own all children born of his wife, just as the owner does 
 
 1 Tacitus, "Ann.," IV, 72; "L. Baiuwar.," I, 10; Capitulary, I, 187, 1. In 
 the old Hungarian law the wife and children could be sold for the crime of 
 the husband and father. 
 
 2 M'Lennan sees in this traces of polyandry. 
 
 16
 
 Topic l] ORIGIN OF THE FMIILY [§20 
 
 with respect to the increase of his flocks. If he has any doubts 
 as to their legitimacy he can expose them, kill them, or cause 
 them to be sold as slaves. But in certain societies where maternal 
 institutions obtained more of a foothold, the husband, in order 
 thoroughly to establish his rights over his wife's child, has recourse 
 to a fiction; he simulates a confinement, stays in bed, fasts, and 
 receives the congratulations of his neighbors upon his happy 
 delivery. This custom, the most extraordinary of all, bears the 
 name of " couvade " ; it has existed among the Iberians,^ in Corsica, 
 among the Tartars, in Brazil and elsewhere. Starcke sees in this 
 only a magic proceeding in order to give the new-born the endur- 
 ance and strength to withstand the fasting and abstinence which 
 the father imposed upon himself; if this were the only reason for 
 it, what would be the use of simulating a confinement? 
 
 § 20. Adultery. — The punishment for the adultery of the 
 wife is left to the discretion of the husband, because he has over 
 her the right of life and death. It is at least expulsion from the 
 conjugal domicile. It may be death, as among the Hebrews, 
 where she was stoned. In ancient Egypt her nose was cut off. 
 The Greeks tore off her ears. The Abyssinians were satisfied 
 with shaving her head. In Thibet the matter was arranged by 
 the payment of a fine, which was calmly divided among the 
 various husbands of the wife. According to the Germanic cus- 
 tom,2 the guilty wife, naked and with her hair shaved, was driven 
 out of the house in the presence of the relatives by her husband, 
 who pursued her through the village beating her. This penalty, 
 which became the running of the gauntlet in the Customs of the 
 jMiddle Ages, had not merely a disgraceful character; originally, 
 it meant, no doubt, final expulsion from the house and from the 
 village; this was really in the majority of cases the penalty of 
 death or slavery, for once outside the circle of her natural pro- 
 tectors the woman lost her life or her liberty. 
 
 The infidelity of the husband is far from having similar con- 
 sequences. The woman could not complain of it. We are not 
 unaware of how free morals were in Greece. In Rome, Cato said : 
 If you take your wife unawares in the flagrant offense of adultery 
 you may kill her with impunity; if she takes you by surprise she 
 would not even dare to raise a finger against you, and she has no 
 
 1 Slraho, III, 165; Cordier, "La Famille chez les Basques," "R. h. Dr.," 
 XIV; Tijlor, "Primitive Culture," French translation, 1877. 
 •2 Tacitus, "Germ.," 19. 
 
 17
 
 § 20] INTRODUCTION TO PRIVATE LAW [Intro, 
 
 right to do so.^ In certain localities they even say that women 
 were punished for not having known how to please their husbands 
 and keep them faithful. 
 
 §21. Agnatic Relationship. — In the matriarchate the only 
 relationship that exists is that in the female line; in the patriar- 
 chate, that in the male line. The family constitutes a shut-in group 
 under the power of a head such as the Roman "paterfamilias "; 
 relationship is the bond which unites the members of the family 
 with this head and with one another; it is the result less of com- 
 munity of blood than of the authority of the head, and, as the 
 women are never at the head of the family, relationship never 
 comes from them. Thus one is the agnate of the brother of one's 
 father, and not of the brother of one's mother. Descent from the 
 same father (agnation) is lost for anybody who goes out of the 
 family; for example, for the daughter who in marrying passes 
 under the "manus" of her husband and escapes the power of 
 her father, or for the son given in adoption. One could not be- 
 long to two families at one and the same time any more than one 
 could have two fatherlands. At the death of the head his children 
 become "sui juris "; the one "domus " is replaced by several new 
 ones. The change which then takes place does not break the 
 agnation; it still exists between all those who have been under 
 the same power, or would have been so if the "paterfamilias " 
 had lived indefinitely. 
 
 At Rome this relationship in the family line was called Agnation 
 (among the Slavs of the South it was called relationship by the 
 main blood); this was contrasted with natural relationship, or 
 Cognation 2 (relationship by the inferior blood among the Slavs 
 of the South) which included the relatives in the female line as 
 well as the relatives in the male line, and which is relationship as 
 we understand it, derived from the fact of consanguinity. The 
 Roman and unilateral relationship preceded the double relation- 
 ship of modern law. The effects of relationship — which were 
 mutual protection against attack and mutual defense, the duty 
 of avenging offenses against a relative, impediments to mar- 
 riage, rights of guardianship and succession, and the right to 
 the name and to be worshiped — resulted only among ag- 
 nates: thus the Ossetes allowed marriage with the mother's 
 
 1 Aulus GelUus, X, 23. 
 
 2 However, the Roman law admits impediments to marriage between 
 
 cognates. 
 
 18
 
 Topic l] ORIGIN OF THE FAMILY [§ 22 
 
 sister and looked upon it as being disgraceful if it were with 
 the father's sister.^ 
 
 § 22. Systems of Succession. — One of the most important 
 consequences of relationship is the conferring of rights of succes- 
 sion. Under the patriarchal system succession is organized in 
 various ways. If the family community survives its head, the 
 eldest male member of the community is chosen by the others to 
 succeed; this would ordinarily be the eldest brother of the de- 
 ceased or a near relative, because he is of suitable age and con- 
 stitutes a military chief already appointed; he is already, during 
 the lifetime of the head whose place he must take, the latter's 
 natural assistant (tanistry in Ireland).^ This seniority, how- 
 ever, made way for primogeniture, properly so called, or right of 
 primogeniture, by virtue of which the eldest son of the deceased 
 excludes both his brothers and his uncles. The struggle between 
 the uncle and the nephew was, it would seem, keen and long. 
 If the family should be dissolved and each one of its members 
 should form a separate household, the right of primogeniture was 
 also practised. But it was not a rare thing to find the youngest 
 of the sons being favored and receiving the paternal house; this is 
 the right of "juveigneurie" or of "mainete" (minority),^ the very 
 
 1 The Irish Laws, which recognize agnation or relationship only in the 
 male line, distinguish between four groups of relatives in each one of which 
 relationship ceases with the fourth generation (as in the Athenian law). 
 These groups or "parenteles," which are analogous to those whose existence 
 is ordinarily admitted in the Germanic law, form concentric circles, as is seen 
 from the following table: 
 
 1. Great grandfather. — Relationship 
 
 of the 3d phalanx ("indfine")- 
 
 2. Great uncle. 
 
 3. Great uncle's son. 
 
 4. Great uncle's grandson. 
 
 1. Grandfather. — Relationship of 
 
 the 2d phalanx (" iarfine ") 
 
 2. Uncle. 
 
 3. Uncle's son. 
 
 4. Uncle's grandson. 
 
 1. Father. — Relationship of the 1st 
 phalanx ("derbhfine"). 
 
 2. Brother. 
 
 3. Brother's son. 
 
 4. Brother's grandson. 
 
 1. The deceased. — Relationship of 
 the hand (" geilfine") 
 
 2. Son. 
 
 3. Grandson. 
 
 4. Great grandson. 
 
 5. Great grandson's son. 
 
 The inheritance was conferred upon the first group of relatives of the deceased 
 ("geilfine"); and if this group did not exist, then upon the three others in the 
 following proportion: % to the 2d: % of 34 to the 3d; J<i of 34^ to the 4th. 
 
 2 " Tanistry," an English word derived from the Irish word, " tanist," second 
 in rank in the kingdom, the heir presumptive of the king. When a chief was 
 elected there was joined with him as his eventual heir the eldest of his broth- 
 ers; by this means the disadvantages resulting from a vacancy in the sover- 
 eign power or from the youth of the heir were avoided. Nephews found 
 themselves excluded by their uncles; there was no partition; the "tanist" 
 took everything: De Valroger, p. 537; Sumner Maine, "Instit. primit.,"p. 230; 
 "Etudes sur I'anc. Droit," p. 169. 
 
 * The right of younger sons existed in the country of Wales; in England 
 
 19
 
 § 22] INTRODUCTION TO PRIVATE LAW [IntrO. 
 
 opposite of the right of primogeniture.^ Sometimes also an equal 
 partition takes place between the sons, and when this is so it is 
 similar to the old custom of Irish gavelkind : ' when a man dies his 
 inheritance is not divided among his sons, but the chief of the 
 "seven," or clan, to which he belongs, takes the succession in order 
 to make a new partition of all the lands belonging to the "seven," 
 and gives a portion to each one according to his age. Whatever 
 may have been the system of succession, the exclusion of women 
 is one of its essential rules. The Salic Law in its most celebrated 
 provisions confers the land upon the heirs of the male sex 
 exclusively. 
 
 § 23. Ancestor Worship, which is closely connected with the 
 patriarchate, completed the organization of the family by making 
 of its head a god after his death, just as he had been a master 
 during his life. It is the duty of his descendants to render him 
 funeral honors and the customary worship. And it is a great 
 misfortune not to have any posterity. Celibacy is a crime, the 
 repudiation of a barren wife a duty of conscience, adultery at the 
 same time a sacrilege and a robbery, — a sacrilege because it 
 creates a risk of introducing strangers into the family, and a 
 robbery because the wife is almost a chattel of her husband. 
 Adoption is looked upon by a pious man as a last resource whereby 
 he may prevent the extinction of his family.^ 
 
 § 24. Family Communities. — The modern family is derived 
 from the old patriarchal family; but the latter for a long time con- 
 sisted of a large group of persons, whereas to-day the family is 
 formed of one couple and the children who are their issue. Let 
 us endeavor to get some idea of these family communities of 
 
 (borough English), and in Brittany, according to a few local Customs, such as 
 the Custom of Rohan: Bourdot de Richebourg, IV, 408. It is also met with in 
 many other places, — for example, in certain of the Swiss customs. 
 
 ^ As to the right of primogeniture cf. infra. According to Maine it was 
 derived from the tanistry system. 
 
 2 Sumner Maine, "Etudes sur I'ancien Droit," p. 231; De Valroger, p. 527. 
 Report of Sir John Davis, attorney-general at the beginning of the seven- 
 teenth century, on the Irish custom of gavelkind cited by Laveleye, "De la 
 Propriete," 4th ed. p. 291. The gavelkind of the County of Kent, or equal 
 partition between all the sons, seems to be connected with the Irish gavelkind. 
 
 3 In Ireland, among the Scandinavians, and among the Ossetes, it is 
 customary for the father to have his son brought up in some family other 
 than his own, or by some one other than himself. There exists between the 
 child and the person bringing him up a tie of relationship ("Fosterage" in 
 Ireland). In many places the formalities of adoption imitate birth. Dio- 
 dorus tells us that Juno held Hercules against her breast and let him slide to 
 the ground through her garments, "which is still done by the barbarians 
 when they %\-ish to adopt a child ": Michelet, "Origines du Dr. Fr.," p. 10. 
 
 20
 
 Topic l] ORIGIN OF THE FAMILY [§ 24 
 
 former times: "domus," fire, "maisonnee," "Hausgenossen- 
 schaft,"^ joint-family, which must not be confused vnth. the more 
 extensive group of the "gens," clan, or "Sippe." 
 
 The ancient family communities were associations of relatives 
 giving one another support and assistance under all circumstances, 
 for attack and for defense, for military expeditions as well as for 
 farming. They took the place of the State, carried out police 
 duties within themselves, organized a guardianship for the weak, 
 the women and orphans, were responsible for the acts of their 
 members outside of the community, dispensed charity and managed 
 the household affairs prudently. We must think of them as mod- 
 eled after the Servian "zadruga"^ to the number of twenty indi- 
 viduals, sometimes more, all relatives or else persons who had 
 become members of the family by marriage or adoption, with a 
 chosen head ("domacin," "gospodar") from among the oldest 
 and the married people. His wife, the "domacica," directs the 
 household. The chief is, outside of the community, the represen- 
 tative of the family; he negotiates with third parties, he takes 
 part in the political assemblies (such as municipal councils), he 
 is in touch with the religious and political authorities, and he is 
 responsible for the payment of taxes. Within the community he 
 exercises a disciplinary authority over the members of the family, 
 he enjoys certain honors (they rise when he enters, he distributes 
 to each one a share of the food), he manages the land belonging 
 to the community, designates the work to be done by each one, 
 keeps the funds, and provides for the needs of the community. 
 The family assembly ("skuptschina"), where all the members 
 have a vote, is consulted upon serious questions (borrowings, etc.), 
 receives the accounts of the chief, decides upon marriages within 
 the community, brings in new members and excludes others, dis- 
 charges the chief and prescribes partition. The members of the 
 community have a right to lodging, food and clothing; those 
 who are males and have attained majority have a vote in the 
 family council; they may forsake the community, but they must 
 
 1 "Genealogia," "fara" among the Germans, "consorteriae" in Tus- 
 cany, "trev" in Gaul, "fine" in Ireland, and "verv" in Russia: Kovalewsky, 
 "N. R. H.," 1896. 
 
 ^ Described by Bogisic among the Shivs of the South. Cf. Kovalewsky 
 with regard to the Ossetes of the Caucasus. In the sixteenth century Guy 
 Coquille gives a similar table of the servile communities in Nivernais ("Quest, 
 sur les Coutumes," no. 58); Dareate, p. 244. The "mazades" ("mansata," 
 manse) which have been studied by M. Bauby in Languedoc, are only a 
 variation of these ("Rec. de I'Acad. de Lcgisl. de Toulouse," 1885, p. 69). 
 
 21
 
 § 24] INTRODUCTION TO PRIVATE L.\W [IntrO. 
 
 obtain the consent of the chief in order temporarily to absent 
 themselves from it. The immovable belongings of the community 
 are inalienable, indivisible and cannot be disposed of by will; the 
 women can make no claim to them and have to content them- 
 selves with a marriage portion consisting of movables; the men 
 have as their absolute property only a portion of their earnings 
 ("peculium"). 
 
 This primitive type of the family community has left traces 
 everywhere. It is as a relic of the primitive community that the 
 Roman law designates children as its heirs. The Cretan law of 
 Gortyne declares that the father is master of the children and of 
 the property, and that it rests with him as to how partition shall 
 be made. This recalls the parable of the prodigal son: "And the 
 youngest of the two children said to his father, 'My father, give 
 me the share of the possessions which is mine'; and the father 
 divided it with them." It is very evident that here we are not 
 concerned with a share of an inheritance, but with a share of a 
 community.^ 
 
 § 25. Dissolution of Family Communities. Evolution towards 
 the Simple Family. — How did the family composed of associates 
 become dissolved to make way for the elementary family com- 
 posed only of the father, the mother and the children? It was 
 because, though a force, a defensive arrangement, which was 
 necessary in those troublous times, it was also a hindrance and a 
 tyranny for the individual, — a tyranny in every instance, an an- 
 noyance under all circumstances, the most hateful of servitudes; 
 one only submitted to it very reluctantly because one could find 
 no other means of obtaining the security which was indispensable. 
 Just as soon as the State gained strength and its protection be- 
 came sufficiently effective to enable one to dispense with the pro- 
 tection of the household the individual became detached from 
 the group and formed an independent family. 
 
 § 26. Polygamy. — The family has thus evolved from a com- 
 munity which became more and more extended towards a re- 
 stricted group including only the father and mother with their 
 descendants. Monogamy has been the last step of progress in this 
 direction; but, even in our day, polygamy is still practised among 
 many people. When a man procures wives by purchasing them 
 
 ' After the death of the father the children sometimes remain in joint 
 possession: "Rotharis," 167; Capitulary of 818-19, c. 6 (I, 282). On the 
 right of inheritance cj. injra. 
 
 22
 
 Topic l] ORIGIN OF THE F.UIILY [§27 
 
 or carrying them off, if he has sufficient wealth and power, he will 
 hardly limit himself to only one. The prejudices tend to foster 
 polygamy (such as the one which compels a man to live apart 
 from his wife as soon as pregnancy is disclosed, and even so long 
 as the child has not been weaned; that is to say, often for three 
 or four years); and motives of an economical nature have the 
 same tendency; in women are seen above all, useful workers, 
 workers who are all the more valuable because they receive no 
 salaries. In Germania, according to what Tacitus tells us, the 
 man fought, the woman worked. "If a Redskin succeeds in ac- 
 quiring five or six wives his position becomes quite important, 
 their work being profitable to the family in other ways than hunt- 
 ing, which is the only occupation which the husband will consent 
 to indulge in." 
 
 The more numerous the wives, the less work does each one of 
 them have to do. Therefore it is not a rare thing to find them 
 quarreling with their husband in order to drive him to polygamy. 
 "Livingstone related before the Makololo women that in England 
 a man could marry only one wife, and that he was held bound to 
 be absolutely faithful to her. The unanimous reply to this was 
 that one was very unfortunate to live in such a country as that." 
 
 Other causes of polygamy are premature old age and barren- 
 ness of savage women as a result of excessive labor, privation and 
 bad treatment. The chiefs have several wives so as to give more 
 brilliancy to their suites, or in order to procure themselves alli- 
 ances; so in the " Germania" of Tacitus, 18: "The African and the 
 inhabitant of India are as proud of the number of their wives as 
 we would be of the number of horses in our stables." Finally, if 
 wars are continually carried on and all the men are fighting and 
 many perish, — which is the case among primitive societies, — 
 a polygamous tribe will prevail over a monogamous one because 
 the number of births in the latter will be more numerous. 
 
 § 27. Evolution towards Monogamy. — Whatever the reasons 
 in favor of polygamy may be, it encounters an insurmountable 
 obstacle: the number of women is quite perceptibly equal every- 
 where to the number of men; if one man has several wives, there 
 will be others who have none at all ; this will always prevent polyg- 
 amy from becoming general. It is disappearing at the present 
 time as a consequence of religion, morals, and the material diffi- 
 culties of living. In India more than ninety-five per cent of the 
 Mahometans are driven to monogamy by necessity. The JMoors 
 
 23
 
 § 27] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 and the Kabyles hardly ever have more than one wife. It is the 
 same in Persia and in Egypt. One complaint is that the peace 
 of the polygamous household must often be disturbed. The 
 legislator finds himself compelled to regulate the rights and duties 
 of husbands; according to the Koran, the Mahometan must regu- 
 larly frequent the three or four \vaves which the law permits him 
 to have. Often each wife has a separate house. In the absence 
 of such precautions as these jealousy will result in its natural con- 
 sequences: quarrels, struggles, bad treatment (in the Fiji Islands 
 the rival wives eat each other's noses, literally, in order to dis- 
 figure one another). The rivalry between different wives becomes 
 complicated by the rivalry between the children of various wives. 
 In this way polygamy is found to be one of the causes of the down- 
 fall of the family, 
 
 § 28. Forms of Transition. — 1st, Polygamy with prominence 
 of one wife; 2d, Monogamy with concubinage; 3d, JNIonogamy 
 together with the possession of women slaves. — In the polyga- 
 mous family a hierarchy comes to be established among the wives; 
 one of them occupies the highest place, either because of her for- 
 tune or else because she was united to her husband by the solem- 
 nities of a religious marriage. Among the IMormons only the 
 first wife bore the husband's name. In Turkey the first wife in 
 point of time is mistress of the house; the others must obey her; 
 only her children inherit the position and possessions of the father. 
 The second wife differs little from the concubine,^ who is ordinarily 
 of low extraction, is bought at a rather low price, and to whom 
 one is united without any marriage ceremony.^ The concubine 
 in her turn is similar to the freed woman and the slave. 
 
 § 29. Monogamy has thus prevailed among the superior races. 
 It is beyond a doubt that it is much better than polygamy, 
 even with those unfortunate correctives which form its accom- 
 paniment, — adultery, concubinage, and prostitution, — but 
 which we must not forget are far from being unknown among 
 people who practise polygamy. It better assures peace in the 
 household, harmony of ideas, and unity of purpose. It avoids 
 rivalries and quarrels, whether between the wives or between the 
 
 ' On Roman concubinage c/. P. F. Girard, "Manuel de Dr. Rom.," p. 177. 
 
 * "According to the law of Jutland, I, 27, the concubine becomes a law- 
 ful wife when she has lived in the house for three winters." Cf. Gains, I, 111: 
 the Roman "manus" is acquired by cohabitation during a year (unless there 
 has been an interruption of the "trinoclium"). — In China the lawful wiie 
 is by a legal fiction considered the mother of the children of the concubines 
 or lesser wives. 
 
 24
 
 Topic l] ORIGIN OF THE F.VMILY [§30 
 
 children born of the various wives. If mortality among men is 
 not too great, it is more fruitful than the polygamous family; for, 
 although there may be fewer children born, fewer also die; they 
 are more loved, better brought up. jNIonogamy alone protects 
 the dignity of the woman, and, consequently, that of the man. 
 
 § 30. Evolution towards the Independence of Children. — 
 The domestic authority, which was at first only a form of the 
 right of ownership, has gone on being differentiated and becoming 
 weakened; to-day it is no longer anything but the shadow of it- 
 self. In Rome it meant the right of life and death and ended only 
 with the decease of the "paterfamilias"; in Gaul among the 
 Galates it presented the same characteristics. The Germanic 
 "mundium," ^ which it has been attempted to contrast with the 
 Roman "potestas," did not originally differ perceptibly there- 
 from; it was not a sort of guardianship organized in the interest 
 of the weak, but it became so. It has been wrongly maintained 
 that the child who was politically emancipated by the taking up 
 of arms in the popular assembly, " ipso facto " ceased to be under 
 the paternal " mundium." ^ This is not so at all. In order that this 
 might be so it was necessary for him to found a separate estab- 
 lishment or to pass under somebody else's authority, into another 
 family; perhaps, however, he did thereby acquire the right to go 
 away from the hearth of his father, should he wish to do so. In 
 Ireland old age^ caused the father to lose his authority.^ The 
 State thrust itself into the administration of the group that was 
 formerly independent. It has controlled the exercise of the pa- 
 ternal power, repressed abuses, and transformed this power into 
 one of protection in the interest of the children. The father was 
 formerly a despot with respect to his children; he has become a 
 guide and older brother who is respected (or whom one is sup- 
 
 1 "Mundium," an expression made use of in the barbarian laws, comes 
 from "munt;" a literal equivalent of the Latin "manus." The holder of the 
 "mundium" is called "munt," "muntporo," "mundoaldus," "foramundo." 
 Cf. "Vormund," guardian in the existing German law. 
 
 ^ If the young man receives arms from anyone other than his father, — for 
 example, from a chief, — he then enters that family's "clientele" {Brunner, 
 I, 77; Heusler, "Instit.," II, 435) or becomes his adopted son: Sohm, "Proced. 
 de la L. Sal.," app. V. 
 
 ' Moreover, it is a duty for children to kill and eat their relatives who 
 have become old and stricken down witli infirmities. 
 
 ^ D'Arbois de Juhainville, "La Puiss. pat. en Irlunde" ("R. Celt.," 1891, 
 VII, 241). Unless he is emancipated the son cannot contract without the 
 consent of his father; but, if he has assumed the care of his old and invalid 
 father, the disabihty ceases; when he refuses to take care of his father the 
 latter may adopt a relative or a stranger ("mac gor") who succeeds him if 
 the other relatives have approved of the adoption. 
 
 25
 
 § 30] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 posed to respect) and scarcely more. On coming of age the child, 
 whether a son or a daughter, is always emancipated, even if he 
 continues to live with his parents. The right of correction still 
 exists, but only to a very much lesser degree and under the sur- 
 veillance of the public authorities. The possessions of a child 
 who is a minor are taken care of by the father; he is sometimes 
 allowed to have the enjoyment of them, but still with reservations, 
 — so much so that for him it is rather a care than a benefit. In 
 case he abuses his power the father is deprived of the paternal 
 power. If the father dies, or in case of his absence or of some im- 
 pediment, it is the mother who exercises this power. 
 
 §31. Evolution towards the Emancipation of the Woman. — 
 From a slave, which she was first of all, woman has become al- 
 most the equal of man. The beginning of this evolution is to be 
 found, according to an opinion that was formerly widespread, 
 in the old Germanic customs. However, marriage among the 
 Alemanni as it is described by Tacitus, 18, is only marriage by pur- 
 chase: "The wife does not bring any marriage portion to the 
 husband; it is the husband who settles a marriage portion on 
 his wife. The parents and near relatives accept the presents, 
 which are not those that one uses to please women or those with 
 which a newly married woman decks herself, but oxen, a horse 
 with his harness, a shield with a staff and sword." These objects 
 were the currency of that period, and it is a question of a purchase 
 price paid to the parents, and not to the woman herself, for Taci- 
 tus adds: "In exchange the husband receives the wife as his 
 spouse"; from whom does he receive her if not from her parents? 
 "The wife on her side offers a few arms to her husband "; "aliquid 
 armorum," which can only be understood to apply to a share of 
 little importance. Tacitus has seen in these objects symbols of 
 the life in common which the spouses were about to lead; the wife 
 will learn by this means that she will have to share the fatigues 
 and dangers of her husband. But this symbolical interpretation 
 of the Germanic marriage differs too much from the results fur- 
 nished by a comparison of legislation and the later law ^ for us 
 to be able to accept it. The high character of the conjugal union 
 is scarcely compatible with the facility with which it can be re- 
 pudiated on the part of the husband. If the adultery of the wife 
 
 ^ "L. Saxon.," 49, 65: "uxorem emere," 43: "pretium emptionis"; 
 Richthofen, "L. Sax.," 288, 291; "L. Burg.," 34, 42, 61: "puella emta." In 
 the fifteenth century the purchase of women is still practised among the 
 Dithmarches. 
 
 26
 
 Topic l] ORIGIN OF THE FAJVIILY [§ 32 
 
 is rarely met with, — and the severity of the penalty which she 
 incurs is not unconnected with this result, — the irregularities of 
 the husband remain unpunished. In certain towns second mar- 
 riages are unknown, "unum corpus unaque vita "; but this affects 
 only women; the husband may contract a second marriage, and 
 then the saying "unum corpus " is found to be false, especially if 
 the husband is polygamous; the wife, according to the Germanic 
 ideas, should die with her husband, rather after the manner of 
 the suttee in India. The modern feeling of respect for women has 
 nothing in common with that magical power which the Alemanni 
 believed them to possess; had such feeling existed they would never 
 have been subjected to the most arduous labor, while the men 
 remained idle; they would not have been excluded from the pa- 
 ternal succession, and they would not have been under perpetual 
 guardianship.^ 
 
 § 32. The Same. — In reality the elevation of the condition of 
 women had its origin in the Roman law, in the Christian ideas, 
 and in the customs resulting therefrom. As a young girl or a 
 widow, the woman has ceased to be under guardianship. She 
 only* lacks political rights, and, there are even countries where 
 she enjoys these. Her parents do not marry her any more against 
 her will ; she marries herself. The power of the husband itself has 
 been weakened. The husband is reduced to the supervision of 
 the household, with a moral and sometimes a material responsi- 
 bility which is very heavy. Formerly the husband alone had the 
 right to repudiate his wife. In our day divorce is no longer a pre- 
 rogative of the man's; the woman may demand it for the same 
 causes, and even for incompatibility of disposition, or without any 
 serious reason, according to the Swiss law. 
 
 The wife, who under the primitive patriarchal system was "in 
 manu mariti," and who for" this reason could have nothing of her 
 own, now possesses a fortune of her own. The purchase price 
 paid by the husband to the relatives of the wife ^ is changed into 
 
 1 Tacitus, "Germ.,'; 18, 19. Cf. 15, 8; Procope, "De Bell. Goth.," II, 14 
 (Herules : the widow gives up her life on the tomb of her husband) ; Michelet, 
 "Origines," p. 54. 
 
 * In Ireland the wife's father receives the entire purchase price for the 
 first marriage; for the second marriage the father receives two-thirds and the 
 wife one-third; for the third marriage each one receives a half; at each new 
 marriage the share given to the father decreases until the twenty-first mar- 
 riage, when he receives nothing. If there is no father, then the brother who 
 is the head of the family exercises these rights ; but he gets only half of 
 what the father would have received: D'Arbois de Jubainville, "R. Celt.," Ill, 
 361. 
 
 27
 
 § 32] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 a dower for the widow; the relatives have left only a fictitious 
 price; for example, the "sou" and the "denier" of the Prankish 
 Customs. Originally, the wife entered the husband's family 
 without anything; she brought with her no property excepting a 
 few small objects such as clothing, necklaces and the rough or- 
 naments of primitive times, — the only possessions which she 
 obtained from her father. But in time the reasons which had ex- 
 cluded her from this inheritance were weakened; the daughters 
 inherited, at least if there were no brothers, and brought their 
 husbands so important a marriage portion that it was the por- 
 tion rather than the woman that one married.^ This is just the 
 opposite of what took place in the old times, and the contrast 
 between these two systems had struck Tacitus: " Among the Ale- 
 manni," says he, " the wife brings no marriage portion to her 
 husband; it is the husband who makes a settlement upon the wife." 
 Ownership for the wife means emancipation. In proportion as 
 she becomes more wealthy she becomes more independent of her 
 husband. The portion of her fortune which she keeps for her- 
 self (paraphernalia) is often far greater than the marriage portion 
 that she gives to her husband. Listen to the old Romans, such 
 as Cato, becoming indignant at this subjection of the poor hus- 
 band to the rich wife: "At the time of one's marriage," he used to 
 say, "one's wife brought him a satisfactory marriage portion; since 
 that time she has received considerable sums of money which 
 she has not confided to the absolute power of her husband. This 
 money she has lent to her husband for interest, and as soon as 
 he gets in a bad humor we find her sending some paraphernalial 
 slave to pursue and annoy the poor man." ^ 
 
 The Middle Ages contrasted community of possessions between 
 spouses with the Roman marriage portion system. Although 
 under this latter system the wife is no longer subject to the 
 husband's power, still she has absolutely no share in the advan- 
 
 ' As to the wife's property in India, cj. Sumner Maine, "Inst, primit.," 
 p. 402. 
 
 ^ In the Irish law the position of the married woman depends upon her 
 fortune; she is in a position which is sometimes inferior, sometimes equal, and 
 sometimes superior to that of her husband (the same in Sumatra); the 
 husband who is poor is only the servitor of his rich wife. Women who in- 
 herit the fortune of their relatives must bind themselves not to take the 
 hereditary possessions into another family. The authority of the husband 
 is broken when it comes in contact with the rights of the wife: D'Arbois de 
 Jubainville, "R. Celt.," 1886, p. 267. Diodorus of Sicily tells us that among 
 the Egyptians the woman could in her marriage contract reserve to herself 
 authority over her husband, even though he were king. 
 
 28
 
 Topic l] ORIGIN OF THE FAMILY [§ 32 
 
 tages realized by the husband in the administration of the prop- 
 erty forming the marriage portion. The community still places 
 the wife who has her own possessions under the authority of her 
 husband; but the husband cannot have any disposal of the 
 personal belongings or family possessions of his wife; and, as 
 acquisitions made during the marriage belong to both spouses 
 in common, she receives her share of them when the marriage 
 is dissolved, — a thing which is perfectly equitable when her 
 personal possessions or her labor has contributed, as happens 
 more often than not, to the acquisition of these possessions by 
 the community. 
 
 In England, where the community was never introduced, the 
 evolution of the marriage contract was the same as at Rome. 
 The "feme covert," who was absorbed in and annihilated by her 
 husband, resembles the Roman wife "in manu mariti." But the 
 civil law was often evaded, and the Law of 1882 (Married Woman's 
 Property Act) sanctioning an emancipation which had already 
 taken place in fact, has given her the free administration and 
 the free disposal of her possessions; she is merely asked to con- 
 tribute her share to the expenses of the marriage; she is in the 
 same position as a silent partner. 
 
 Separate maintenance while waiting for the attainment of a 
 judicial separation, say the pessimists. Can this really be the 
 first step towards the disintegration of that partnership which 
 better than any other has succeeded in assuring at one and the 
 same time the preservation of the species and the well-being of 
 individuals? Or, on the other hand, is it a means of still further 
 purifying the ideal of the Christian family, that great school of 
 devotion and self-denial? ^ 
 
 ^ Laboulaye, "Recherches sur la Condition civile et politique des Femmes," 
 1843; P. Gide, "Etude sur la Condition priv6e de la Femme," 2d ed., 1885 
 (added to by Esmein). — Condorcet, in his "Esquisse des Progr^s de I'Esprit 
 humain," already claimed equality of the sexes. The Code of the Convention 
 did not contain any article relating to the husband's power. In our own 
 century the emancipation of women has been sought for by the School of 
 Saint-Simon: J. Stuart Mill, "Subjection of Women," French translation, 
 1874; Bebel, "Ueber die Gegenwartige und Zukunftige Stellung der Frauen," 
 1878; Bridel, "La Puissance maritale," 1879; "Le Droit des Femmes et le 
 Mariage," 1893. 
 
 29
 
 §33] 
 
 INTRODUCTION TO PRIVATE LAW 
 
 Intro. 
 
 Topic 2. Origin of Ownership 
 
 § 33. Ownership of Movables and 
 Ownership of Land. 
 
 A. COLLECTIVE OWNERSHIP 
 
 §34 
 
 Collective Ownership of the Clan 
 or the Tribe. 
 
 35. The Ownership of Land among 
 
 the Alemanni. 
 
 36. Frankish Period. 
 
 § 37, 38. The Germanic March. 
 
 39. The Marches disappear. 
 
 40. Anglo-American Townships. 
 4L The "Mir." 
 
 42. The Village Community in 
 
 India. 
 
 43. The "Dessa" or Commune of 
 
 Java. 
 
 44. The Abandonment of Collective 
 
 Ownership. 
 
 B. REMAINS OF COLLECTIVE 
 OWNERSHIP 
 
 45. (I) The Manorial System. 
 §46, 47. (II) The Rights of Per- 
 emption and Repurchase. 
 
 48. (Ill) The "Flurzwang." 
 
 § 49. (IV) The Rights of Commons. 
 
 § 50. "AUmends." 
 
 §51. Feudalism and Rights of Com- 
 mons. 
 
 § 52. Theory of the Feudists. 
 
 § 53. Theory of the Romanists. 
 
 § 54. The Revolutionary Law. 
 
 § 55. Partition of Rights of Com- 
 mons. 
 
 C. FAMILY JOINT OWNERSHIP 
 
 § 56. Family Joint Ownership. 
 
 D. REMAINS OF FAMILY JOINT 
 
 OWNERSHIP 
 
 § 57. (I) Rules of Successions. 
 
 § 58. (II) The Classification of Im- 
 movable Property into Per- 
 sonal Belongings and Ac- 
 quests 
 
 § 59. Family Institutions in Our Pe- 
 riod. 
 
 § 60. (Ill) Rules of Feudal Owner- 
 ship. 
 
 § 61. (IV) The Process of Evolution 
 towards Individual Owner- 
 ship. 
 
 § 33. Ownership of Movables and Ownership of Land. — 
 
 Ownership of movables, which was the first in point of time, was 
 originally the ownership of animals. It was at first very much 
 restricted. Men who lived by hunting and fishing possessed only 
 a few arms, rough utensils, and skins of animals, which served 
 them as clothing and a hut in which they sheltered themselves 
 at night. Hunting and fishing were carried on in common: 
 the big game and fish that were captured were the collective 
 property of the group. There was no idea of any appropriation 
 of the soil. The tribe believed itself to have exclusive rights only 
 over its hunting grounds. It was the same when the pastoral 
 system was substituted for hunting and fishing. The ownership 
 of land made its appearance only with agriculture. According 
 to an opinion which was very generally accepted a short time ago, 
 but which to-day has many adversaries, the ownership of land 
 must have originated in the tribe and the clan, and then have 
 passed to the family, and finally to the individual. The disagree- 
 
 30
 
 Topic 2] ORIGIN OF OWNERSHIP [§ 34 
 
 ment on this subject is as to whether the collective ownership of 
 the tribe did or did not precede family joint ownership; but there 
 can be no doubt that the first owner of the soil was not the indi- 
 vidual. Jean-Jacques Rousseau could no longer write: "The 
 first man who, having enclosed some land, thought of saying, this 
 is mine, and found people simple enough to believe it, was the true 
 founder of the civic society." 
 
 It is also noticeable that the right over land was not originally 
 determined with the same exactness that it is in our day. It 
 was not very clearly distinguished from the sovereignty which 
 at the present time still belongs to the State. During the feudal 
 period this distinction is not made very clearly. It is only in our 
 day and during the Roman period that the right of the individual 
 has been opposed to that of the State as being something which 
 cannot be altered. 
 
 A. COLLECTIVE OWNERSHIP 
 
 § 34. Collective Ownership of the Clan or the Tribe. — Agra- 
 rian communities are met with in countries of the most widely 
 different character.^ The "Liber Hymnorum," a manuscript of 
 the eleventh or twelfth century, attests their existence in Ireland 
 until the seventh century a. d.: "There was neither ditch nor 
 fence nor stone wall around the land until the period of the sons 
 of Aed Slane (658-694), but only the undivided fields. Because 
 of the great number of families, in their period they introduced 
 the division of land." ^ Among the Arabs of Algeria a distinc- 
 
 ' Community of houses is also found; for example, among the Pueblo 
 Indians. Masselin, in his "Journal des Etats g6n6raux de 1484," speaks of a 
 sort of phalanstery which existed in his time in the region of the Loire. 
 
 2 The Ownership of the Soil among the Gauls in the time of Caesar does 
 not belong to the State, but probably to the family. Caesar, comparing the 
 customs of the Gauls with those of the Alemanni, points out the existence of 
 collective ownership in Germany; he could not have failed to tell us of its 
 existence in Gaul at the same time; his silence has probative force against 
 those who, like D'Arbois de Jubainville, have maintained the contrary. This 
 learned man, in his "Rccherches sur les Origines de la Propriety fonciere et 
 des Noms de Lieux habit6s en France," 1890, remarks that the "fundus" or 
 Roman domain was designated by the family name of its first owner with 
 the termination "anus" in Italy and in the south of Gaul, and "acus" in the 
 remainder of Gaul; for example, "fundus Sabiniacus," the domain of Sabinus, 
 from which are derived the modern names of Savignac, Savigny, and S6- 
 vign6. This is the way in which most of the names of places in France origi- 
 nated. He concludes from this that private ownership in Gaul dates from the 
 Roman conquest; at this time lands were baptized in the Roman fashion by 
 giving them the name of their owner. This argument is not conclusive, for 
 the Gallic language has perished and with it the names of the "fundi," if there 
 
 31
 
 § 34] INTRODUCTION TO PRIVATE LAW [IntrO. 
 
 tion is made between "arch" lands, which are left to the collec- 
 tive enjoyment of the tribe, and "melk" lands, which are under 
 the ownership of individuals. Among the Yolofs on the coast 
 of Gorea the head man of the village, with the assistance of a 
 council of the elders, makes an annual redivision of the lands 
 to be cultivated. The best known forms of this system of owner- 
 ship are the Germanic march, the English township, the Rus- 
 sian "mir," the village communities of India, and the Javanese 
 "dessa." ^ Each one of them has its separate history and phases 
 which will not allow of its being reduced to a common type, that 
 of agrarian communism. 1st. Sometimes the tribe jointly culti- 
 vates the land, or, at least, each family occupies and clears the 
 quantity of land that it needs until it is used up; this is only pos- 
 sible when a population is very sparse (Archangel, Cossacks of 
 the Don, certain villages in Hungary in the eighteenth century). 
 2d. Sometimes periodic allotments take place, a thing which be- 
 comes necessary when population increases in order to prevent a 
 few from taking possession of everything and leaving nothing for 
 the rest. 3d. And, finally, sometimes the partition is absolute 
 with regard to arable lands, and only waste lands, forests and 
 pasturage are left in joint possession. 
 
 § 35. The Ownership of Land among the Alemanni is de- 
 scribed by Csesar, "De Bello Gall.," VI, 22: "[The Alemanni] 
 
 were any; besides, private ownership may exist without the land bearing the 
 name of its original owner: Lecrivain, "Ann. de la Fac. des Lettres de Bor- 
 deaux," 1889, no. 2. Cf. "N. R. H.," 1886, 478; 1887, 241. 
 
 1 However obscure may be the history of the origin of Ownership in Rome, 
 one can say that Rome knew family joint ownership ("dominium," from 
 "domus, heredes sui," D., 28, 2, 11) and the collective ownership of the people, 
 or, rather, of the "gens"; wealth consisted at first only in slaves ("familia") 
 and in flocks ("pecunia"); the forms of mancipation, the primitive method 
 of alienation and of the reclaiming, cannot very well be applied excepting to 
 movables, which leads us to suppose that land was inalienable; each head of a 
 family had as liis own ("heredium") only two "arpents" of land (J^ "hec- 
 tare"), "a little enclosure analogous to that of the Russian peasant, which 
 could not support him and his, and besides which there must have been not 
 only public woods and pastures, but common arable lands." Lands taken 
 by conquest which were the property of the State ("ager publicus") consisted 
 of: 1st. Those granted as a gift or for a consideration to citizens and subject to 
 an official limitation ("agri limitati"). 2d. Those left to be occupied by indi- 
 viduals, and therefore not officially limited. At the beginning of the Empire 
 this second category of lands became the absolute property of its occupants; 
 this made impossible the agrarian laws by which the people took back these 
 lands from their occupants in order to grant them to others, which, strictly 
 speaking, they had a right to do, but which brought about the ruin of a great 
 number of people and disturbed the State. From that time on "the co- 
 relation between limitation and private ownership ceased to exist." The family 
 lands were thus changed into private ownership; the "ager publicus" had 
 the same fate. 
 
 32
 
 Topic 2] ORIGIN OF OW-NERSHIP [§ 35 
 
 have little taste for agricultural labor; they live more on milk 
 and meat than on wheat. None of them possesses any settled 
 amount of land of his own; and none of them has any enclosed 
 fields; but each year the chiefs and the magistrates distribute 
 the land to the families and to the male relatives. . . . The fol- 
 lowing year they are compelled to change places." ^ This very 
 clear text should serve to interpret ^ the much discussed passage 
 from the "Germania" of Tacitus, 26, which deals with the same 
 subject: "The land," says Tacitus, "is occupied ' en bloc' by the 
 community;^ its extent is determined by the numbei* of culti- 
 vators; it is repartitioned among them according to their social 
 rank; each year they pass from one piece of arable ground to 
 another; ^ the repartition is very easy because the fields are very 
 vast, and there are neither orchards nor pastures, — nothing but 
 harvests." ^ This certainly must be a system of collective owner- 
 ship not by the family but by the village. The only thing that 
 escapes from it is the house with a little plot of land surrounding 
 
 1 Cf. IV, I: among the Suevi there was neither private ownership nor 
 limited fields; no one was allowed to stay longer than a year in the same spot. 
 
 2 Tacitus, "Germ.," 28: "summus auctorum divus Julius." 
 
 ^ WTiat are these "universi," these communities? A group of "gentes" and 
 of "cognationes," corresponding perhaps to the military divisions, the hundred 
 and the "millena." 
 
 * Because the land which one occupied at first has become used up. 
 
 ^ "Agri pro numero cultorum ab universis invicem (variants: in vices, per 
 vices, vicis) occupantur quos mox inter se secundum dignationem partiuntur; 
 facilitatem partiendi camporum spatia prsestant. Arva per annos mutant 
 et superest ager; nee enim cum amplitudine soli labore contendunt, ut pomaria 
 conserant, et prata separent, et hortos rigent; sola terrse seges imperatur." 
 Cf. Horace, "Odes," III, 18, 24. Meitzen, III, 586, looks upon "invicem" aa 
 a meaningless repetition of "universis" and strikes it out. According to 
 Fustel de Coulanges, Tacitus was only speaking of a system of rotation of 
 crops. Here is this learned man's translation : " The arable lands are cultivated 
 as well as they can be considering the small number of hands there are to 
 cultivate them; they are only made valuable in sections and alternately ('oc- 
 cupantur in vices'); this is done for greater convenience by all the cultivators 
 together ('ab universis'); each one, moreover, has in it his share, which is 
 proportional to his right ('secundum dignationem'). From time to time 
 periodically they change the scene of their labors ('arva per annos mutant'). 
 And then they go to another part, that their flocks have made fertile. Thus 
 there are always more lands than they are cultivating." — Cf. "Germ.," 25, 
 16 ("suam quisque domum spatio circumdat"), 20, 32. There is a good deal 
 of discussion among German authors on the subject of the method of tem- 
 porary partition of the land. Cf. "Ann6e sociol.," I, 375. The early form of 
 agriculture could be reduced to burning off the underbrush and the trees and 
 sowing upon the soil thus fertilized by the ashes ("6cobuage"). Exhaustion 
 soon takes place, and it is necessary to go to another piece of land. The tri- 
 ennial rotation of crops, practised already under Charlemagne, is a step in 
 advance; the perpetual pasture is distinguished from the field which is culti- 
 vated, which is nearer the center; the latter is divided into three parts; two are 
 sown alternately, — one with winter grain and the other with summer grain; 
 the third is left fallow. 
 
 33
 
 § 35] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 it. The existence of this agrarian community accounts in the 
 most natural way for that of the march in the ^Middle Ages.^ 
 
 § 36. Frankish Period. — There is some discussion on the 
 point as to whether there were village communities during the 
 Frankish period.^ This was not the ordinary system applied to 
 land, — at least in France. In view of the Roman form of owner- 
 sliip, which was coming to an end, and the feudal form, which was 
 just beginning, the collective ownership of the Germans only ap- 
 peared sporadically, especially in the North. The reasons put 
 forward tft prove its existence are the following: 1st. The Salic 
 Law, Tit. 45, "De Migrantibus " : "If a man establishes himself in 
 a village, it is sufficient to have him expelled that one of the in- 
 habitants of this village asks for it, unless he shall have lived 
 there twelve months." The prior settler would not be authorized 
 to bring about an expulsion of tliis kind if there were not a very 
 close solidarity among the inhabitants of a village. It is diffi- 
 cult to believe that this solidarity does not imply a certain amount 
 of agrarian land owned in common. The Capitulary of 819, c. 7, 
 which modifies the Salic Law, would lead one to suppose that 
 assent by the inhabitants of the village cannot shelter an occu- 
 pant from the owner's right of reclaiming.^ 2d. The Edict of 
 Chilperic, 561, 584, c. 3, abolishes the inlieritance of the "vicini" 
 or inliabitants of the village. 3d. According to the "Cap. Ex- 
 travag." of the Salic Law, c. 9, there is among the inhabitants of 
 villages a solidarity in criminal matters which seems to be less 
 than that which exists among the members of a family; they are 
 responsible for a murder of the inhabitant of one village by that 
 of another when the guilty man is not kno^ai.^ 4th. There is 
 sometimes a question, in deeds and in the laws, of a justice carried 
 
 ' The fact that the gifts of the Germanic chiefs to their followers did not 
 consist in land, and that the Alemanni did not make use of the will, does not 
 necessarily imply the collective ownership of the tribe, but may be accounted 
 for by means of family joint ownership. 
 
 ^ Thevenin, "Les Communia," 1886; Fustel de Coulanges, "L'Alleu et le 
 Domaine rural," 1890; Glasson, "Les Communaux et le Domaine rural," 
 1890 (and authors cited); Blumenstock, "Entstehung d. Deutschen Immo- 
 bihareigenthums," 1894; Dareste, "J. des Sav.," 1890; "N. R. H.," 1890, 
 p. 821; Foiirnier, "R. des Quest, hist.," 1886; Lamprecht, "Le M. Age," 1889. 
 
 ^ The Capitulary of 819, which provided against the occupation of an- 
 other's domain, "villa alterius," assumes a change in the system of owTiership. 
 "Villa" ordinarily means domain, but also by extension it can mean village, 
 group of houses occupied by those who cultivate the domain, "ipsi qui in villa 
 consistunt, vicini"; the employment of this last word ("vicini" from "vicus") 
 is particularly significant: Fustel de Coulanges, "R. gen. de Droit," 1886, and 
 "Nouv. Recherches," 1892; Saleilles, "Rev. bourguign.," 1895. 
 
 * Pardessus, "L. Sal.," p. 332. 
 
 34
 
 Topic 2] ORIGIN OF OWNERSHIP [§ 37 
 
 out by the "vicini" or "pagenses," just as later on there is a ques- 
 tion with regard to justice carried out by the march or by the 
 "colonge."! 
 
 §37. The Germanic March ^ ("Dorfgenossenschaft," "Mark- 
 genossenschaft"),^ which is found in the North of France after 
 the invasions of the barbarians, and which lasted in Germany 
 throughout the entire INIiddle Ages, does not differ essentially 
 from the agrarian communism described by Tacitus. It con- 
 stituted an organization which was at the same time economical 
 and political. 
 
 (I) Looked upon in the first aspect, the community, a- legal 
 person, is the owner of the march. The march consists of three 
 parts: 1st. The village, — that is to say, the dwelling-houses, with 
 the yards and gardens belonging to them. 2d. The arable land 
 ("Feldflur"), which is divided into parcels and at this time sub- 
 ject, like the house with its yard and garden, to the system of 
 private ownership. 3d. The rights of commons ("almeinde," "all- 
 mend"), which are left to the joint use of the inhabitants of the 
 village. Each one of these categories of possessions forms a por- 
 tion of the march, although it may seem that the first two classes, 
 which are subject to private ownership, should for this reason be 
 excluded. The " commarchani " need both equally: how is one to 
 build his house without the wood which is furnished by the forests 
 belonging to the community? how feed the cattle that work in 
 the fields without the common pasture? Once the harvest has 
 been gathered, the arable land is left, like the "allmend," to the 
 enjoyment of all; it is necessary, in order that all may have 
 the same rights, to regulate cultivation and fix the number and the 
 rotation of crops and the period of the harvest. The right of the 
 people collectively is still very extensive, even over the share of 
 the individual.'^ A day will come when the "allmend" will be an 
 
 1 Thivenin, "Textes," p. 58 (Act of 871); "L. Bav.," 17, 2; "Burg.," 49, 
 3; "Form. Senon.," .38. 
 
 - "Marca," literally mark, means limit, and by extension land situated 
 within the limits of a village, within the confines of a country. The common 
 lands of the villages, being near the limits of the territory of the latter, and 
 outside of the cultivated fields, were called Marches: "N.R. H.," 1892 ("Lea 
 marches s^parantes d'Anjou"). 
 
 ^ The "Markgenossenschaft," or association of the march, is not absolutely 
 identical with the "Dorfgenossenschaft," or village association; it may in- 
 clude several villages; for example, a metropolis village and colony v-illagea 
 (" Filial dorfer"). The "colonges" ("colonica") of Alsace constitute com- 
 munities analogous to the marches. 
 
 * Michelet, "Orig.," p. 229. — Loysel, "Inst. Cout.," 257: "Le bois, 
 acquiert le plain " ("Bourgogne,"XIII, 1); the "socome" forest (that is to say, 
 
 35
 
 § 37] INTRODUCTION TO PRIVATE L-\W [Intro. 
 
 accessory of private ownership of the house and the field ; but this 
 will be at the period of the decline of the march; the economical 
 condition of which it is the expression will have changed. There 
 is some discussion as to the rights of the "commarchani," mem- 
 bers of the community, and the rights of the community itself. 
 The controversy is based upon the fact that some of the docu- 
 ments affecting the march correspond to its decline and some to 
 its zenith, so that it is impossible always to make the necessary 
 distinctions. In proportion as the march disappears the rights of 
 its members become detached and strengthened. But, if one 
 places oneself at about the twelfth century in the very midst of 
 feudalism and disregards local variations, the community, a legal 
 person, is found to be the only owner, to the exclusion of the 
 "commarchani." It alone has the right to dispose of all or a part 
 of the lands; it alone regulates the method in which they shall be 
 enjoyed; it alone can authorize the changing of the "allmend" 
 into land to be cultivated by clearing it ("rodung"). The inhab- 
 itants of the village can only keep their shares by virtue of the 
 statutes; their title is but the will of the march. Theoretically, 
 the march would have a right to make a new repartition of all the 
 arable land; it does not make use of this right as in the time of 
 Tacitus, but the right still exists to all intents and purposes. The 
 enjoyment of the lands owned in common is similar to that which 
 exists in our day with relation to certain portions of the public 
 domain (roads, rivers). It belongs to the inhabitants neither as 
 joint owners with joint possession nor as persons having a right 
 to servitudes, and this is shown by the fact that it depends upon 
 the community to modify the exercise of it, and even to do away 
 with it altogether, by alienating the "allmend"; the community 
 could neither do away with a right of joint ownership nor a servi- 
 tude. If there is an action between two marches with regard to 
 a field that is cultivated by a member of one of them, this mem- 
 ber is not a party to the action, as would be the case were it a 
 question of private property; it is the two marches that plead 
 against each other. In case of the march being alienated, or if it 
 is encumbered with rents (for example, in 1172 the village of 
 
 where it is forbidden to take wood or pasture domestic animals) acquires for 
 its owner the portions of the neighboring heritages over which it extends, — 
 the extensions which have remained thirty years uncultivated. — In the same 
 way in Germany any doubt is interpreted in favor of the "allmend"; the 
 uncultivated land easily accrues to the march; Chaisemartin, "Proverbesdu 
 Dr. Germ.," p. 113 et seq. — Loysel, 248: all extensions are looked upon aa 
 common pastures on waste lands. 
 
 36
 
 Topic 2] ORIGIN OF OWNERSHIP [§ 38 
 
 Bernheim was placed under the control of the Empire by the 
 " villani"), the members of the march do not sign together, as they 
 would do if they were owners with joint possession. Everything 
 is done according to a decision arrived at by the community. This 
 decision is binding upon all its members; one of them could not 
 attack the deed under the plea that he did not approve of it. 
 This would be quite different in case of joint possession. In case 
 the "allmend" is alienated the enjoyment of the member of the 
 community in it will cease. He cannot plead this right against 
 a third party who acquires it; the most he would have would be a 
 right to attack the conveyance had it been irregular. The debts 
 of the march are, it is true, charged to the members of the com- 
 munity; but this is a consequence of the system of financial 
 organization of that time, which was very rudimentary, — a 
 consequence which corresponds with the Customs, such as those 
 which made the citizens of a town responsible for each other's 
 debts to strangers. 
 
 § 38. The Same. — (II). The march with its assemblies and 
 its representatives, forms a natural political division, and perhaps 
 it is at first confused with the hundred. At any rate, during the 
 feudal period, it is like a little State. It has its own administra- 
 tion, police, and justice; it provides for everything, and in this 
 respect is connected with the public law. "The march was sov- 
 ereign, even though it should pay a rent to a lord. Its members 
 assembled together and deliberated upon its common interests; 
 even though an administrative council had been appointed for 
 its current business, the general assembly kept the right to the 
 most important decisions; the admission of new members, sale, or 
 partition of forests, ratification of judgments rendered in difficult 
 cases, appointment and surveillance of the officers of the police 
 and the law. The smallest details are regulated by tradition: the 
 time and place of the meeting, the preparatory ceremonies, the 
 condemnation to a fine of those who are absent, the form 
 that the discussions take, the method of voting. The session 
 is public, but only the members of the march can take part 
 in it; the proceedings take place orally. Each march has its 
 penal code." In the same way the Alsatian "colonges" have 
 a tribunal appointed by all the members of the "colonge" 
 (even though they may be serfs), or by twelve of them 
 (Aldermen, "Schoeffen," "Heimbiirger"), presided over by the 
 " Schultheiss " ("Scultetus") or a seigniorial provost, charged, in 
 
 37
 
 § 38] INTRODUCTION TO PRIVATE LAW [ Intro. 
 
 addition to his function as a judge, with collecting the rent due 
 to the lord. 
 
 § 39. The Marches disappear towards the fifteenth or six- 
 teenth century; their rights of justice pass to the seigniorial or 
 royal judges; individual ownership comes to be entirely substi- 
 tuted for community ownership of arable land; the cultivated 
 field becomes the principal thing and the "allmend" an accessory. 
 However, the agrarian system of the march has been preserved as 
 a result of the nature of the land in some parts of Switzerland and 
 Holland.! 
 
 § 40. Anglo-American Townships.^ — Throughout England there 
 seems to have existed in primitive times the township or com- 
 mune with its common pasture and its arable lands subject 
 to periodical repartition according to the "run-ring system" or 
 system of successive partition of the land, of the passing from one 
 lot to another in a continuous circle. The property owned in 
 common was ruled over by the "mot," or assembly of the in- 
 habitants, during the Anglo-Saxon period. This agrarian and 
 political system was imported into America by the English colo- 
 nists; even to-day the commune in the United States is called a 
 township. It disappeared in Great Britain long since, excepting in 
 a few portions of the lowlands of Scotland and the Hebrides, where 
 one finds "crofters," small farmers who have received portions 
 of land ("crofts") and who pay a quit-rent to the landlord. They 
 meet together once a year in order to decide what portion of the 
 land shall be placed under cultivation and to make a partition of 
 the same among themselves; the shares are measured by the con- 
 stable by means of the official rod, and then lots are drawn by 
 the shepherd; sometimes private ownership begins to come into 
 existence; the crofter has his own special piece of land to develop 
 besides a portion of the arable land of the township. 
 
 § 41. The "Mir" (people), or commune^ in greater Russia, is the 
 
 1 Heusler, "Inst. d. Deutsch. Private.," I, 294. 
 
 2 Laveleye, op. cit., p. 258; Seebohm, "The English Village Community," 
 1890; Seebohm and Joshua Williams, "The Rights of Commons," 1892; 
 Sumner Maine, "VUlagQ Communities," 1880; Pollock and Maitland, "Hist, 
 of Engl. Law., " I, 5.50; Maitland, "Township and Borough," 1898; " Domesday 
 Book and Beyond," 1897, p. 341; Digbij and Harrison, "Introduction to the 
 History of the Law of Real Property," 1897. — Town is equivalent to "villa": 
 township means the community of inhabitants ("villata"). 
 
 ' Laveleye, op. dt., p. 10; Haxthausen, "Etudes sur I'Etat int^rieur de la 
 Russie," 1842-3; A. Leroy-Beaulieu, "L'Empire des Tsars," I, 1. viii; "Revue 
 des Deux Mondes," March 1, 1879; Kovalewsky, op. cit., and "N. R. H.," 
 1891, p. 480. 
 
 38
 
 Topic 2] ORIGIN OF OWNERSHIP [§ 42 
 
 owner of the soil; and because of this right it has to pay the taxes 
 to the State and the rent to the lord. It is at one and the same 
 time an agrarian and a pohtical organization, just like the march; 
 its self-government is as absolute as in the American township. 
 The heads of the families, having met together in an assembly 
 presided over by the "starosta," discuss the affairs of the commu- 
 nity. Two-thirds of their votes are necessary in order to expel a 
 member. In certain communes cultivation is carried on by 
 all in common and the harvest is divided in proportion to 
 the number of workers. In other communes the lands are peri- 
 odically divided up, sometimes the individual and sometimes 
 each household receiving a share. The commune sometimes 
 keeps a certain amount of land in reserve; were it not for this, 
 each person's share would decrease in proportion as the popula- 
 tion increased. Formerly the partition took place every year or 
 every three years ; now it only takes place every nine years 
 and on the occasion of each official census. The dwelling-house 
 ("izba") and the garden surrounding it are the private property 
 of the family; the head of the family cannot alienate it without 
 the consent of the inhabitants of the village, and the latter 
 have the right of pre-emption. 
 
 It was formerly thought that this form of ownership dated back 
 to the very oldest times. Recent research has shown that it had 
 not yet come into existence in the sixteenth century; at that time 
 family joint ownership was the only form of ownership known. 
 But when the family communities came to be dissolved their 
 lands were partitioned, and each one of their members could 
 alienate his entire share or a portion of it to strangers, who then 
 took the place of relatives. Thenceforth the persons composing 
 the community were no longer the same and the shares ceased to 
 be equal. At the same time groups of farmers became detached 
 from the family in order to make the waste lands of some value; 
 the colony became reunited to the central settlement, which was 
 another cause of inequality. When it became no longer possible 
 to occupy new lands and the population increased, an equal parti- 
 tion among all the members of the community was demanded. 
 From thence arose the system of periodical repartitions, which 
 is not so very ancient as has been thought, but is relatively 
 modern. 
 
 § 42. The Village Community in India was not at first recog- 
 nized by the English; taking as their basis the theory of the ^la- 
 
 39
 
 § 42] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 hometans that the soil belongs to the sovereign, and that there is 
 no such thing as private ownership of land, excepting by reason 
 of his tolerance, they transported into Lower Bengal the English 
 form of feudal ownership and looked upon the tax collectors as 
 the great landowners; when it perceived the error that had been 
 committed the government applied directly to the cultivators in 
 order to obtain the tax, which resulted in the creation of a class 
 of peasant landowners. The true organization of ownership was 
 only understood by the English administrators after the conquest 
 of the Punjab. It was then that the village community was dis- 
 covered, with its arable lands divided into separate lots and culti- 
 vated according to traditional rules; with its pastures, the use of 
 which is jointly possessed; and with its group of houses, each one 
 of which is under the authority of the head of a family. In the 
 central provinces (and in Afghanistan) lands under cultivation 
 are still subject to periodical repartition ; elsewhere they have ceased 
 to be so, and each cultivator keeps his share individually (which 
 allows his creditors to obtain possession of it should he not pay 
 them, whereas they would not have dared to do this when this 
 share was not distinct from the domain of the village). The sub- 
 jection of the inhabitants of the village to the customary rules 
 with regard to the cultivation of arable lands and the use of the 
 common lands contrasts with their independence within their 
 own house; in the latter we have a circle wherein the community 
 loses every right; to the Hindu could be applied the English 
 maxim: "The Englishman's house is his castle," . . . were there 
 no English in India; for they indeed have failed to concede the 
 absolute right of the master of the house. However, they have 
 not succeeded in doing away with the mystery with which family 
 life is surrounded, and which is concealed even in the most humble 
 interiors. The slightest attempt on the part of the legislator to 
 interfere with the domain reserved to the "paterfamilias" causes 
 a very great scandal; for example, there is a complaint that the 
 criminal law of the English deals with women and children in the 
 same manner as with men. The group is all sufficient to itself; it 
 has its religious organs (a Brahman and a dancing-girl), political 
 (a council of the elders or a head, who is elected or inherits his 
 position, and who administers justice and upholds the custom and 
 a police) and economical (various artisans, traders, and a scribe, — 
 all having their hereditary professions), which allow it to dispense 
 with all aid from outside. Strangers are not admitted within the 
 
 40
 
 Topic 2] ORIGIN OF OWNERSHIP [§ 44 
 
 village unless they purchase a share of one of the inhabitants and 
 obtain the consent of the latter.^ 
 
 § 43. The " Dessa" or Commune of Java is the owner of the land 
 that is cultivated by its inhabitants. Its chief, who is elected for 
 a year, repartitions among the various families the lands upon 
 which rice is grov/n; he has a larger share, both he himself and the 
 elders of the village who form his council. The form of cultiva- 
 tion which is practised has rendered necessary a development 
 by all in common; that is to say, a general system of irrigation 
 is required for the cultivation of rice. But this method of culti- 
 vation did not call for collective ownership; it could perfectly well 
 have been combined with individual ownership or family owner- 
 ship, for it is difficult to see why the inliabitants of the village 
 must change their share every year.^ 
 
 § 44. The Abandomnent of Collective Ownership. — Agrarian 
 communities are not suitable either for concentrated cultivation 
 or for varied cultivation. The cultivator does not become de- 
 pendent upon the land, for he knows that it is going to be taken 
 away from him at the end of a short time; for difficult work which 
 does not give any immediate profit the stimulant of ownership or 
 long enjoyment is necessary. The members of the commune, 
 bound down by tradition, cannot indulge in various kinds of cul- 
 tivation; the regulations kill any spirit of initiative; no one at- 
 tempts any innovation because he cannot count on the benefit 
 resulting from it. Everywhere that the individual has freedom to 
 act as he will — in towns first of all, and afterwards in the coun- 
 try — a minority enriched by trade is formed, which monopo- 
 lizes the land and is opposed to the periodical partition. The 
 community, and the equality which is the result of it, only con- 
 tinue to exist in the case of people among whom the spirit of 
 enterprise cannot be given a free rein. For the others, commerce, 
 industry, the raising of cattle and the development of movable 
 property give rise to helpful inequalities. It is the citizen of the 
 town, the representative of economic progress, that has been the 
 
 1 Baden-Powell, "Land Revenue in India," 1894, and "Land Systems of 
 British India," 1892, considers these Hindu communities as of later forma- 
 tion and of a relatively recent date. Cf. Lavcleye, 43, 294; Tupper, "Pun- 
 jab's Customary Law," 1881; Kohler, "Z. f. vergl. Rechtsw.," 1887, 161; 
 Sumner Maine, "Et. sur I'Hist. du Dr.," p. 137; Jolly, "Recht. u. Sitte," 
 1896 ("Gr. d. Indo-arisch. Philol."), "R. crit. de Litt.," 1887, p. 318. 
 
 ^ The repartition of the wat(!r necessary for the proper cultivation of tiie 
 Plain of Valencia in Spain was made under the Moors by a collective admin- 
 istration without there being any common ownership. 
 
 41
 
 § 44] INTRODUCTION TO PRIVATE IA.W [ Intro. 
 
 ruin of collective ownership. The Russian peasant, jealous of 
 the citizen's wealth, which he believes has only come from fraud 
 and usury, calls him "the destroyer of *mir.'" ^ 
 
 The history of the colonists of the Island of Nantucket, in 1671, 
 furnishes us a curious example of the transition from collective 
 ownership to individual ownership. A group of dissenters, fleeing 
 from the persecutions of the Puritans of Massachusetts, estab- 
 lished itself in the island, as might have been done by one of the 
 tribes which Tacitus speaks of. Each colonist received a share of 
 the land for his house and his enclosure; the rest of the island was 
 left undivided. The sandy soil being incapable of furnishing two 
 harvests in succession, each year the cultivation was changed to 
 another part of the island that had become enriched in its soil 
 through the keeping of cattle, in such a way as to return at the 
 end of seven years to the lands which had first been cultivated. 
 The colonists only received a share of arable lands for a year. 
 Little by little, the soil became more fertile; wealth in movables 
 was the result of various causes, — fishing, maritime commerce. 
 Inequality of fortune made its appearance, and with it private 
 ownership, which was substituted for collective ownership.^ 
 
 The abandonment of collective ownership has everywhere coin- 
 cided with general progress. The modern phalansteries have not 
 succeeded in restoring it to honor, and the recent experiments 
 made in the Antipodes, in Southern Australia (Adelaide) with the 
 object of returning to this archaic system, are not at all encourag- 
 ing.^ Will another evolution in agriculture bring us back to it 
 by substituting cultivation on a large scale with the aid of ma- 
 chinery for cultivation on a small- scale, just as industry on a 
 large scale is being substituted for industry on a small scale? Let 
 the economists reply. But, whatever their reply may be, we 
 
 ' Kovalewsky attributes the downfall of agrarian communities to political 
 causes, but these causes themselves are dependent upon economic changes 
 (for example, the part played by the middle classes). It is hard to deny 
 without being paradoxical that the system of private ownership stimulates 
 individual activity; with the old form of agriculture, which, so to speak, 
 assumed that neither machines nor capital existed, the owner got more out 
 of his field than the member of the community got out of the common field. 
 
 2 Belot, "Nantucket" ("Ann. de la Fac. des Lois de Lyon," 1884); "Ac. 
 Sciences Morales," 1885. 
 
 3 "Economiste Fran^ais," Dec. 28, 1895, p. 839 (Law of Dec. 23, 1893). 
 M. de Laveleye attributes all sorts of \'irtues to collective ownership. It teaches 
 us political life, gives us the spirit of preservation, does not allow of extreme 
 poverty, and keeps the population in the country. He contrasts the English 
 workman in his workhouse with the free Swiss commoner, with his "allmend." 
 — We might as well ask for a return to the Golden Age. — Cf. Dupuy, "Le 
 Communisme Chretien," 1889. 
 
 42
 
 Topic 2] ORIGIN OF OWNERSHIP [§ 46 
 
 must none the less believe it to be certain that in passing 
 from this primitive stage the system of agriculture has been 
 improved. 
 
 B. REMAINS OF COLLECTIVE OWNERSHIP 
 
 § 45. (I) The Manorial System. The great domains of the 
 Prankish period ("villa," "fiscus") were divided into farms, 
 "manses" (from "manere").^ The owner reserved a portion for 
 himself, the "dominicum, mansus indominicatus," with the "casa" 
 or "sala dominica," which recalls the Roman "prsetorium." ^ The 
 other "manses" were granted to cultivators (colonists, "lites" 
 or slaves), and they were called tributaries, because the holders 
 of them had to pay quit-rents to the master and performed 
 various duty services (labors, "ragse," "curvadse"; carting, 
 " carroperse " ; manual labor, "manuoperae") upon the land which 
 the latter reserved to himself. Outside of these manses (house, 
 garden, arable land) the uncultivated lands, such as pastures, 
 woods, and waste lands, were left for the use of all the cultivators 
 of the great domain. Is this the agrarian community of primitive 
 times, but subject to the lords and operating for their benefit 
 (Kovalewsky) or a creation of feudalism (Seebohm), or some- 
 thing derived from the Roman form of organization of ownership 
 on a large scale (Fustel de Coulanges) ? 
 
 § 46. (II) The Rights of Pre-emption and Repurchase often 
 existed for the benefit of the inliabitants of the village; if one 
 of them wishes to alienate his land, the others have preference 
 over grantees who are strangers, or, assuming a sale to have taken 
 place, they can have themselves substituted for these strangers. 
 The old law increases the number of these repurchases: there 
 is one for the benefit of the fellow heirs, of joint owners with 
 joint possession (the community repurchase and the repurchase 
 of convenience), of neighbors who wish to get back a share which 
 was formerly taken out of the inheritance (the repurchase of 
 "escleche," that is to say, eclipse, dismembering). In France this 
 abuse is less than elsewhere; repurchases of this nature are an 
 exception; in Germany and elsewhere they abound and render 
 transactions in immovables almost impossible, for a man is hardly 
 
 ' "Hobse" ("Hof," court) "curtis," "curtilis" (court, enclosure, and by 
 extension the manor, with and without the domain),, "virgatse" in England, 
 hyde. "Mansus," "manoir," "mas," "meix." 
 
 2 Salic land in the Alsatian "colonges," German "Fronhof," chief manor 
 in England. 
 
 43
 
 § 46] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 likely to buy when he has the prospect of having his bargain 
 taken away from him by another, however small his profit may 
 have been.^ 
 
 § 47. The Same. — The formalities and publicity with which 
 various legislations surround the alienation of land have also 
 been looked upon as being derived from collective ownership. 
 Thus in Sweden the alienation takes place before the "Thing" or 
 popular assembly; the hundred er proclaims the sale and the in- 
 vestiture for the benefit of the grantee, excepting that the rela- 
 tives have a right to petition for a repurchase within six weeks.^ 
 
 §48. (Ill) The "Flurzwang" or rule of compulsory rotation 
 of crops. With individual ownership each one cultivates his 
 land as he pleases; under a community system certain methods 
 of cultivation, certain rotations of crops are obligatory; regula- 
 tions settle the period for agricultural labors (hay-making, harvest, 
 vintage). The rights of permanent and rich pasture,^ of commons, 
 and of pasture on waste land,"^ which belonged to the members of 
 the community and allowed them to drive their cattle upon one 
 
 ^ "Nachbarlosung," "Marklosung" in Germany; "chefaa" among the 
 Arabs. The Code of Montenegro binds the owner who wishes to sell his 
 land, 1st, to the members of the phratria ("brastvo") according to the order 
 of their relationship; 2d, to the members of the tribe ("pleme") in the 
 following order: adjacent owners, inhabitants of the same village, members 
 of the tribe. — Cj. "Cod. Just.," " de contr. emt.," 4, 38, 14 (in 391) ;" N. R. H.," 
 1896, 648; "Cod. Just.," 11, 55 ("metrocomia;"); Terrat, "Retraits en Dr. Fr.," 
 1872. 
 
 2 Cf. "Genesis," xxiii (purchase of a piece of land by Abraham). 
 
 ^ The right of permanent and rich pasturage is exercised over unoccupied 
 meadow lands, pastures and woods in the acorn season ; it only exists among 
 the community inhabitants of the parish, whereas pasture on waste lands, 
 wliich affects lands not enclosed witliin walls or hedges and stripped of their 
 harvests, occurs within the parish or else outside of it between one parish and 
 another. It is in this last case especially that it is rather qualified as rights 
 of commons: Ragueau and Lauriere, "Glossaire du Dr. Fr.," see "Paturage"; 
 Ferriere, "Diet, de Droit," see "Paturage" (and authors there cited); Loysel, 
 "Inst. Cout.," no. 241 et seq.; Denisart. see "Paturage"; Guyot, "Repert.," 
 see "Paturage" and " Vaine-Pature " ('Ord." of March 30, 1738); Glasson, 
 "N. R. H.," 1891, p. 475; Bluntschli, "D. Privatrecht," § 88, 2; Chaisemartin, 
 op. cit., p. 173; Heusler, op. cit., II, 53. 
 
 * The provisions of the French Customs on the subject of rights of com- 
 mons and of pasture on waste lands varied greatly: some showed themselves 
 favorable and were thus connected with the old law, others yielded to more 
 modern tendencies in admitting the right of enclosure and limiting pasture 
 on waste lands to lands that were absolutely uncultivated and requiring some 
 title, or "possession, or only seeing in it a mere toleration: "Montargis," 
 4, 1; "Lorraine," 14, 23; "Sens," 146; "Auxerre," 260; "Melun," 302; 
 "Chalons," 267; "Bourgogne," 13, 4; "Bar," 205. As a general thing, 
 some title was necessary in order to have the right of commons. Nor did 
 the Customs agree upon the number of animals that could be sent to the 
 pasture; sometimes there was no limit, sometimes the limit corresponded 
 with the extent of the lands that a man possessed that were subject to waste 
 land pasture. 
 
 44
 
 Topic 2] ORIGIN OF OWNERSHIP [§ 50 
 
 another's lands,^ could only be exercised under these conditions. 
 In order to escape from these rights land was placed under a 
 prohibition or enclosed as a warren; but the old French law 
 only authorizes owners to place a portion of their lands under the 
 prohibition, one-fifth, for example, according to the "Coutume 
 du Boulonnais," Art. 131. The Law of September 28, 1791, re- 
 leases all real property from this servitude, which is injurious to 
 agriculture, by allowing all lands to be enclosed.^ 
 
 §49. (IV) The Rights of Commons ("Gemeindegiiter" in 
 Germany, "Allmends" in Switzerland). — Following the bar- 
 barian invasions there is often some question in deeds registered 
 in France of "communia, silvse et pascua," property left to the 
 common enjoyment of the inhabitants of the village.^ A domain 
 is only granted with the rights of commons which are a necessary 
 part of it. Sometimes the inhabitants are not bound to pay any 
 quit-rents for wood ("lignaritia") and for pasture ("pastio"); 
 in this case the rights of commons are obviously a trace of col- 
 lective ownership, which has been restricted to certain kinds of 
 property most like those which were first subjected to it. Some- 
 times, on the contrary, a quit-rent is due to the great landowner; 
 the rights of commons are a portion of the "dominicum"; they are 
 contrasted with the "foresta," the use of which he has reserved 
 for himself. 
 
 § 50. "Allmends," or Swiss rights of commons, are to a great 
 extent the remains of the old agrarian system. In those towns 
 
 ' Laurihre justifies the right of pasture on waste lands by means of two 
 motives in which the modern spirit malces its appearance: 1st. Without this 
 right the cattle of those who have no land would perish, which would be a 
 pernicious thing for the State. 2d. As soon as the products are removed the 
 land, owing to a sort of "jus gentium," becomes common to all men, rich and 
 poor; the right of pasture on waste lands cannot be granted, cannot be alien- 
 ated, and cannot be lost by prescription, in the same way as the right of 
 gathering acorns and of using the water of public rivers: Loysel, "Inst. 
 Cout.," no. 242. 
 
 2 Following the Edicts of July, 1768 (Franche-Comt4), March, 1769 (Cham- 
 pagne), May, 1771 (Hainaut and Flanders), the Law of Sept. 28 to Oct. 
 6, 1791, 1, 4, allows every landowner to enclose his inheritance. Cf. Civil 
 Code, Art. 647. This law only upholds pasture on waste land if it is based 
 upon a title or upon immemorial possession, and the right of commons 
 only if it is based upon a title or upon a possession authorized by laws and 
 customs. The Law of July 9, 1889, abolished rights of commons (exercised 
 without giving indemnity, except when they have been conferred for a con- 
 sideration), and pasture on waste lands (except when its continuance was 
 asked for within a year). Cf. the Enclosure Acts of 1801, 1845, and 1876 (39 
 and 40 Vict., c. 56). 
 
 * These "communia" aro not possessions jointly held (for example, as the 
 result of an inheritance), were it not for which fact the "aprisio" would not 
 be tolerated. 
 
 45
 
 § 50] INTRODUCTION TO PRR'ATE IA.W [Intro. 
 
 where some of these still exist, the citizens, to the exclusion of the 
 "Beisassen," or mere inhabitants, have a right to them in their 
 quality of descendants of families who have had the enjoyment 
 of them from time immemorial. They have three things : the for- 
 ests, the meadow-land or mountain sides, and the fields (" Wald," 
 "Weide," "Feld"), that is to say, wood for burning and wood for 
 building, the right to pasture their flocks upon the common pas- 
 ture, and, finally, a certain quantity of arable land (a half "hec- 
 tare" at Stanz). Sometimes these rights are no longer enjoyed; 
 the common property is leased out and its products are distrib- 
 uted among the interested parties. In the partition of these 
 products this principle is followed: to each one according to his 
 needs, which is practical and just so long as the members of the 
 community are equally poor; but as soon as there are rich ones 
 they gain an advantage. In Uri the man who possesses big chalets 
 receives wood for building and burning in large quantities; the 
 commoner who lives with somebody else only has two saplings. 
 The man who has no cattle cannot use the mountain side. 
 
 §51. Feudalism and Rights of Commons. — The lords could 
 hardly fail to dispute with the inhabitants of the villages the 
 ownership of their rights of commons. The German peasant 
 complains: "The lords seize by force fields, rocks, waters, and 
 forests; they would gladly take from us the air, — the air, which 
 is common property; they would take the sun from us, — even 
 the wind and the rain." In France the Ordinances of the six- 
 teenth and the seventeenth centuries show us the lords using 
 violence and inventing false titles in order to overcome the re- 
 sistance of the communities. They pretend that the communities 
 owe them debts in order to compel them to sell their property; 
 sometimes the debts really exist. The alienations often took 
 place at prices that were a mockery. The Ordinances prohibited 
 them or required the authority of the king. At the same time the 
 regulations affecting the rights of user which the communities 
 formerly made freely, had to be ratified by the tribunals.^ The 
 
 1 The claims of the lords, according to our old authors, did not go further 
 back than the reign of Francis I, a period when the nobihty acquired habits 
 of luxury. "Ord." of April, 1567; of Blois, 284; 1629, 206; Declaration of 
 June 22, 1659; Edict of April, 1667 {Isamhert, XVIII, 187); Picot, "Hist, 
 des Etats Gen.," Ill, 329; V, 79. Rights of commons could not be dis- 
 trained upon for the debts of the inhabitants: "Arr. de la Cour des Aides," 
 April 23, 1651("J. des Audiences," I, vii, 1); Denisart, see "Communaute 
 d'Habitants" (Edict of April, 1683). Adjudications with regard to leasing 
 were made before the steward (1689; Isambert, XX, 77); Houard, "Diet, 
 de Dr. Norm.," see "Commune." 
 
 46
 
 Topic 2] ORIGIN OF OWNERSHIP [§ 52 
 
 intervention of the authority of the king did not prevent doc- 
 trinal discussions and lawsuits between lords and communities, — 
 lawsuits and discussions which affected not only the rights . of 
 commons, properly so called, but rights over waste and unoccu- 
 pied lands. 
 
 § 52, Theory of the Feudists. — The feudists regarded the 
 rights of commons as a creation of the lords. At the time of the 
 establishment of feudalism the forests, marshes, and uncultivated 
 lands could not belong to the inhabitants because the latter were 
 for the most part in a state of serfdom; they were the property 
 of the lords-justices, who must have granted the enjoyment of 
 them to the inhabitants so as to enable them to feed their cattle 
 and cultivate their holdings. There was no need to give them the 
 ownership, and it was not done as a general thing. Thus the lords 
 had the right of division; that to say, they could modify and make 
 new regulations with regard to a right of user which had been 
 granted; these regulations, which they made at a very early time, 
 did not result in changing the inhabitants into owners. There 
 was no special reason why these regulations should be opposed to 
 the lords practising the right of restriction; that is to say, taking 
 back for themselves two-thirds of the commons and, generally, only 
 leaving one- third to the inhabitants; but this third the inhabitants 
 held as owners. This was only done in the eighteenth century. 
 By this means the lord escapes from joint possession, for the 
 grant which he has made has not deprived him of the right of user; 
 he exercises this right jointly with the inhabitants; as no one is 
 bound to remain in a state of joint possession, he may demand 
 partition, and then in his quality of owner he receives a larger 
 share than the commoners; the latter gain in strength what they 
 lose in extent; they were only users, but now they are owners. As 
 to property of which he had abandoned the ownership and not 
 the user to the inhabitants, a distinction was made: if this prop- 
 erty were acquired for a consideration or on condition of the pay- 
 ment of a quit-rent, the lord could have no claim over it; had it 
 been granted gratuitously, the lord was authorized to practise 
 the "triage"; that is to say, to take one-third as owner, unless the 
 two-thirds which remained were insufficient for the needs of the 
 inhabitants. The grant was considered as being gratuitous when- 
 ever the inhabitants were not held bound to pay any rent and 
 quit-rent. The Ordinances of August, 1G69, 25, 4, affecting 
 waters and forests, established this right of "triage," and for the 
 
 47
 
 § 52] INTRODUCTION TO PRIVATE L.\W [Intro. 
 
 preservation of forests instituted the fourth in reservation in all 
 rights of commons.^ 
 
 § 53. Theory of the Romanists. — The Romanists, who were 
 the supporters of royalty in its fight against the lords, maintained 
 that the rights of commons existed previous to feudalism. The 
 Roman laws made mention of them. They were presumed to be- 
 long to the king, and the lords were only supposed to have received 
 their fiefs upon condition of preserving for the inhabitants the user 
 of the rights of commons which appertained to the fiefs. They 
 brought out the odious part played by the lords in repudiating 
 grants that might have been believed to be absolute, all the more 
 so as the fact that they were gratuitous had not been established, 
 but was merely presumed; the lord had often been indemnified or 
 else there had been a first restriction and the inhabitants had lost 
 the documents which established these facts; advantage was taken 
 of this to strip them. If one looked upon the rights of user as 
 servitudes "jura in re aliena," the owner of the servient tenement 
 had no right to free his piece of land by dispossessing the holder 
 of the servitude. 
 
 § 54. The Revolutionary Law put an end to the controversy by 
 two radical provisions: the overthrow of the seigniorial rights and 
 the abolition of the rights of commons. — The lords were forbid- 
 den to appropriate waste and unoccupied lands; the Old Regime 
 saw in this right an indemnity for the maintenance of foundlings 
 and the rendering of justice; now that these charges had becomes 
 incumbent upon the State, the rights no longer had any basis. 
 "Triage" was abolished in 1790. In 1792, communes showing 
 themselves to be entitled by long possession were authorized to 
 reclaim rights and property in spite of the adverse possession of 
 their previous lord, unless the latter could prove that he had 
 acquired this property by showing an authenticated deed. At the 
 same time unoccupied lands were turned over to the communes; 
 the lords could, however, establish that they had a right over 
 them by means of title-deeds or by possession that had lasted ' 
 forty years.^ 
 
 1 Over the other two thirds the lord kept the rights of justice; "triage" 
 took place in court. The king and his assigns (mortgagors and younger 
 branches of his house to whom he had made grants) could not demand this 
 right (Edict of 1667). 
 
 2 Declarations of April 13-20, 1791 (I, 7); March 1.5-28, 1790 (II, 30); 
 Aug. 28 to Sept. 14, 1792. The Declaration of April 13-20, 1791, I, 7: "The 
 right ... of appropriating waste and abandoned or barren and devastated 
 lands, uncultivated or unoccupied possessions, desert lands, common passage- 
 
 48
 
 Topic 2] ORIGIN OF OWTSTERSHIP [§ 55 
 
 § 55. Partition of Rights of Commons. — The Revolution did 
 not deem it sufficient to sanction the theory of the Romanists; it 
 must needs do away with the rights of commons themselves by 
 changing them into private ownership by means of a partition 
 among the inhabitants. Legally, this provision was unjustifi- 
 able, rights of commons being the property of the commune, not 
 of its inhabitants; it was not jointly possessed property belonging 
 to the latter as individuals and, consequently, subject to partition; 
 it was the property of the legal person. But this operation, which 
 could be legally contested, presented economical advantages; 
 there was seen in it a means of giving some value to uncultivated 
 lands; this was enough to make people believe that they were 
 authorized to dispossess the commune in the interest of its in- 
 habitants; the future generation, the only one which can com- 
 plain, will find in the greater value put upon land an indemnity 
 for what it has lost. Furthermore, the Old Regime had preceded 
 the Revolution in this direction; from the eighteenth century 
 partitions were numerous; they took place by households, and 
 they were sometimes partitions of the right of enjoyment with- 
 out any quit-rent to be paid to the commune and sometimes par- 
 titions of ownership with the obligation to pay a quit-rent to the 
 commune.^ 
 
 The Law of August 14, 1792, being inspired by these economical 
 ideas, and especially by political ideas, decreed that the partition 
 of rights of commons (excepting in forests) was compulsory; it 
 proposed to decrease the number of possessions in mortmain and 
 to increase the number of owners who should be supporters of the 
 new ideas. 
 
 The Law of June 10, 1793, made partitioning subject to a vote; 
 one-third of the inhabitants of both sexes of the commune could 
 
 ways and waste lands for public pasture shall no longer exist for the benefit 
 of the former lords." Our old authors distinguish in a rather vague way 
 between rights of commons, which, properly speaking, were lands that were 
 neither appropriated nor subject to the enjoyment in common, waste and 
 unoccupied lands, and uncultivated lands (from the Greek, "ip-qixos"). 
 They were ordinarily conferred as possessions without an owner upon the 
 lord justice (Loysel, "Inst. Gout.," 277), unless the communities had a deed 
 of grant, or even an immemorial possession; but there was a good deal of 
 difficulty over this last point. Cf. Isambert, Table, see "Terres vaines"; 
 Glasson, op. cit., p. 472. In the existing law lands without an owner belong 
 to the State; rights of commons have an owner, this being the Gommune. 
 
 ' Partitions authorized: Edict of June, 1762; Order of the Gouncil, 1771, 
 1773, 1777 (Auch and Pau); Edict of Jan., 1774 (Burgundy) : Order of the 
 Gouncil, Apr., 1774 (Alsace); "L. pat.," March 27, 1777 (Flanders); "L. 
 pat.," Nov. 13, 1779, and Order of the Gouncil, Feb. 25, 1779 (Artois). 
 
 49
 
 § 55] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 claim it. In this case it did not take place by households but 
 "per capita." The application of these provisions did away with 
 the protests that had been made in various parts of France. This 
 law was called an agrarian law. • Pastures being a necessary part 
 of the domain where the raising of cattle is an important indus- 
 try, the owners were being ruined, they were being despoiled; it 
 would have been almost the same thing to take away their do- 
 mains from them. Pastures were being taken away from those 
 who had cattle, to be given to those who had none; for example, 
 to servants, or even to the proletariat, which was always formed 
 by this minority of the third of the inhabitants that was necessary 
 before a partition could take place. Another iniquity : landowners 
 domiciled outside of the commune found themselves excluded 
 from the partition. — In the face of these protests a halt was 
 called; the ruin of communal ownership was not carried out; after 
 the 9th Ventose, year XII, partitions were no longer permitted. 
 There still remained about four million "hectares" of community 
 property.^ 
 
 C. FAMILY JOINT OWNERSHIP 
 
 § 56. Family Joint Ownership (India, Greater Russia, Slavs 
 of the South, Ossetes, Kabyles, etc., and formerly Greece and 
 Rome).^ The oldest man administers the common patrimony, 
 distributes the work, sells the harvests, signs contracts, and 
 represents the family outside, at law, or in its relations with the 
 treasurer. He is only exempted in case of incapacity known to 
 all (illness, old age). He has no right to alienate the lands of 
 the family without the consent of its adult members, because the 
 family is the true owner of this land. For the same reason the 
 head of the family cannot dispose of his property by will. At his 
 death no succession, properly speaking in the modern sense of 
 the word, takes place; a new administrator takes the place of the 
 
 1 Law of 21 Prair., year IV (June 9, 1796); Law of 2 Prair., year V; 
 Lav,' of 9 Vent., year Xlt; "Code Forestier," Art. 92; Law of July 18, 1837, 
 and Opinion of the State Council, March 16, 1838. The Financial Law of 
 April 28, 1816, ordered the giving back to the Commune of rights of commons 
 not yet sold. 
 
 2 Kovalewsky, "Le Regime ^conomique de la Russie," 1898, p. 290 
 ("N. R. H.," 1890, 464). — "Le Jugement de Libussa" (Slav poem); Sumner 
 Maine, "Et. sur I'Hist. du Droit," p. 473. — Among the Jews once in fifty 
 years (Year of Jubilee) all alienations are revoked and each one takes back 
 his own property; that is to say, the property comes back to the family, for 
 it is rarely that the original seller is found to be alive. C/. "Ruth," iv. 
 
 50
 
 Topic 2] ORIGIN OF OWNERSHIP [§57 
 
 one who has gone; and it is ordinarily his oldest son or his brother. 
 The domain is not partitioned; it is indivisible just as it is inalien- 
 able. When partition is allowed at the request of brothers or sons 
 it is because the community is being disintegrated. The profits 
 arising from some outside industry even belong on principle to the 
 family; thus in India the family has a share in the profits which 
 are obtained from the trade of dancing-girls, because the education 
 of these girls has taken place at its expense. However, it is in this 
 direction that individual ownership is seen to make its appear- 
 ance; a portion of these profits remains the property of the man 
 who has obtained them; in Montenegro booty obtained in war 
 belongs to the soldier (cf. the "peculium castrense" in Rome). 
 Woman, who is not strong enough to defend the family inheritance 
 with arms, as is often necessary, is never the head of the family; 
 she does not inherit the land. W^hen she marries she receives a 
 marriage portion, but this is very small and consists of a few 
 movable objects. The disability under which a woman is placed 
 with respect to possessions in land often survives the overthrow of 
 family communities, and only becomes less, little by little, in the 
 restricted group that succeeds these communities. 
 
 D. REMAINS OF FAMILY JOINT OWNERSHIP 
 
 § 57. (I) Rules of Successions. — 1st. Distinction between 
 heirs and successors to property. There are no heirs excepting 
 the relatives, — that is to say, the family; "Deus solus heredes 
 facere potest." The will can only appoint successors to property, 
 their position being inferior to that of heirs. — 2d. Disinheriting is 
 not possible; this would be to deprive the heir of a right which 
 belongs to him. — 3d. Hereditary seisin. At the death of the 
 deceased the heir is seised of the property left by him; that is to 
 say, he is invested at one and the same time with the ownership 
 and the possession without being obliged to take physical pos- 
 session of it. — 4th. Women are excluded from the succession 
 for two reasons: because physically they are scarcely fit to be 
 heads of families, and also because through their marriage the 
 property might pass from one family to another.^ 
 
 ^ The Athenian or Hebraic custom of making girls heirs in default of 
 males only makes an exception to this rule in order better to applj- it; the 
 girl thus made an heir only receives the inheritance that she may transfer 
 it to the relative whose duty it is to marry her. Cf. "Ruth," iv. 
 
 51
 
 § 58] ENxRODUCTION TO PRIVATE LAW [Intro. 
 
 § 58. (II) The Classification of Immovable Property into Per- 
 sonal Belongings and Acquests. The rights of the family affect 
 only personal belongings, and by these are understood posses- 
 sions in land included in the succession of the relatives (in the 
 direct or collateral line). There is a desire to keep these posses- 
 sions in the family. The individual having had no part in the 
 acquisition of these possessions by the family patrimony, it is 
 perfectly natural that he should not have any right to dispose of 
 them, as he would have of possessions which had been acquired 
 through his efforts, his labor or his economy; it is only with regard 
 to the latter that individual ownership comes into existence first 
 of all. The system of personal belongings will be explained later 
 on; it is well, however, to give an outline of it at this time. 
 
 1st. " Paterna paternis, matema maternis." Personal belong- 
 ings coming from the paternal line are to go to the paternal rela- 
 tives, those from the maternal line to the maternal relatives, in 
 such a way that in every succession a split has to take place and 
 two shares of these possessions have to be made according to their 
 origin. — 2d. The will, which was unknown in the old law, is in 
 the end introduced into practice; but the testator is not free to 
 dispose of all his personal belongings; there is a customary reser- 
 vation of four-fifths for the benefit of the lineage; almost all of a 
 man's own fortune is thus found to be incapable of being devised 
 by will. As to acquests, the freedom of devising, which was abso- 
 lute at first, in time came to be restricted through the admission of 
 a legal share for the benefit of the nearest relatives; but it is a 
 motive of humanity that justifies this, and not the old family 
 joint ownership. — 3d. Gifts "inter vivos" were only allowed at 
 first with the consent of the heirs presumptive; even when this 
 rule was departed from, it was sought to prevent the donor from 
 stripping his heirs by compelling him to strip himself during his 
 own lifetime (to give and to withhold is invalid) and by requiring 
 certain formalities, such as the drawing up of a notarial deed, in 
 order to make gifts effective. — 4th. Alienation for a considera- 
 tion was only tolerated in case of necessity (sworn poverty) and 
 with the consent of the relatives. The vendor had to offer the 
 property to his relatives {pre-emptio7i) , who had the right to buy 
 it in preference to everybody else; unless this offer were made, the 
 sale was invalid as against them. The sale came to be declared 
 valid, but the relatives were allowed the right of exercising the 
 repurchase by a person of the same lineage; that is to say, to buy 
 
 52
 
 Topic 2] ORIGIN OF OWNERSHIP [§ GO 
 
 back for themselves the property which had been sold upon con- 
 dition of indemnifying the original purchaser; if they remained 
 silent for a year and a day the sale could not be contested. 
 
 § 59. Family Institutions in Our Period. — Objectionable at- 
 tempts are being made to restore family joint ownership, which 
 has been eliminated from modern law. — 1st. Le Play's stock 
 family would seem to be an intermediate type between the unstable 
 modern family and the old family community. The freedom to 
 bequeath by will that is granted to the head of the family should, 
 according to the partisans of this reform, serve only as a realiza- 
 tion of that type to whose creation our modern laws are opposed; 
 the compulsory partition which these laws require disorganizes 
 the family, takes the authority from its head, and splits up the in- 
 heritance.- — 2d. The " anerbe " or privileged heir of the German 
 law, who keeps the paternal house and domain by paying a rent 
 to his fellow heirs, is, in a succession upon intestacy, in about the 
 same situation as was the eldest son in our old law, and as the 
 testamentary heir would be under Le Play's system. — 3d. The 
 American homestead or portion of the domain which cannot be 
 disposed of, and which cannot be distrained upon, recalls the 
 ancient condition of the dwelling house and the enclosure that 
 was connected with it.^ 
 
 § 60. (Ill) Rules of Feudal Ownership. — Feudalism is not 
 only a political system, it is also an agrarian system. It was 
 superimposed upon private ownership and collective ownership. 
 The rural commune, wherever it existed, was made subservient 
 to this system. The free possessors of the soil became serfs; the 
 lord took for himself a portion of the land. At the same time in- 
 dividual ownership disappeared or became an exception; it gave 
 place to tenure. Each piece of land had two masters: 1st. The 
 lord, who had the eminent domain, the dominion, and who could 
 demand from the tenant services and quit-rent. 2d. The vassal or 
 copyholder, the tenant, who had the beneficial ownership, — that 
 is to say, the use, the enjoyment, and even, to an extent which 
 varied according to different periods, the disposal of it. His right 
 is hereditary, but the heir has to pay a transfer tax to the lord; 
 his right may be sold, but the lord collects a toll as the price of 
 
 ^ On the family of the Melongas in the Lavedan cf. "Ouvriers Europ(5en," 
 I, 55; Le Play, " La R6forme socialc," I, 320, ed. 1881 . Texas in 1839 was the 
 first State to organize the homestead. Cj. Federal Act of 18G2; "Stat. 
 Vidal," "Ac. leg. Toulouse," 1887, p. 63, and the recent works of Bureau, 
 Corniquet and Vacher. 
 
 53
 
 § 60] INTRODUCTION TO PRIVATE LAW [Inteo. 
 
 giving his consent, unless he should prefer to take the bargain for 
 himself by buying off the purchaser {feudal repurchase). The his- 
 tory of feudal ownership is that of the progressive enfranchise- 
 ment of the soil; the tenant progresses little by little towards free 
 ownership. In France the Revolution, by abolishing all feudal 
 dues, made the peasant the only master of his own land. 
 
 § 61. (IV) The Process of Evolution towards Individual Owner- 
 ship only took place with difficulty, as we have seen, through 
 a series of reactions against the commune, against the family, and 
 against the lord. The principal cause of this change, which is of 
 an economic nature, had to accommodate itself to circumstances, 
 to agriculture, and to political and social conditions. Individual 
 ownership is the best means of placing a value upon land, — let 
 us add, in a society like ours. Occupation has only created this 
 value as a great exception, for occupation is ordinarily collective 
 (booty of war, the establishing of a colony) ; even when it is indi- 
 vidual it assumes the consent of the community and only has a 
 temporary effect; the cleared land is only acquired by the one 
 who has brought it to life, according to the language of the Koran, 
 until it is used up; then he retires and the new occupant is au- 
 thorized to take possession of it. The progress made by agricul- 
 ture tends towards absolute appropriation, just as it seems to 
 exist in the charters of the Frankish period, where one becomes 
 owner by taking possession ("aprisio," "porprisio," "bifang"), 
 by clearing the land ("Neubruch"), and especially by the cus- 
 tomary mode of clearing, — uprooting the stumps ("exartum"). 
 That which one has acquired by one's labor ("quod sudore ac- 
 quisivi") is acquired on the common land; this mode of appropri- 
 ation, which is supposed to be a very early one, is, moreover, 
 rather rarely met with; feudalism only tolerates it with the con- 
 sent of the lord, just as in the previous period it was only tolerated 
 with the consent of the communities. Thus individual ownership 
 is from the historical point of view derived from collective owner- 
 ship, and the rights of the family no doubt contributed a great deal 
 to strengthen those of the individual. 
 
 54
 
 Topic 3] 
 
 ORIGIN OF THE STATE 
 
 [§62 
 
 Topic 3. Origin of the State 
 
 I. General Remarks 
 
 § 62. The Society and the State. 
 
 § 63. Organic Theory of the State. 
 
 § 64. Locahzation of Functions. 
 
 § 65. Changes in Structure. 
 
 § 66. Interdependence of the Parts. 
 
 § 67. Organs and Apparatus. 
 
 § 68. PoUtical Forms. 
 
 § 69. Personal Government. 
 
 § 70. Social Distinctions. Classes and 
 Castes. 
 
 § 71. How are Societies Formed, De- 
 veloped, and Reproduced, and 
 how do they Die? 
 
 § 72. The Factors of Social Evolution, 
 
 § 73. Social Laws. 
 
 II. Elementary and Composite 
 
 Societies 
 
 § 74. Primitive Societies. 
 
 § 75. The Clan or the "Gens.", 
 
 § 76. The Maternal "Gens" among 
 the Iroquois. 
 
 § 77. The Celtic Clan. 
 
 § 78. The Roman "Gens." 
 
 § 79. The "Chentele." 
 
 I SO. The Germanic "Sippe." 
 
 §81. The Germanic Following. 
 
 § 82. The Tribe. 
 
 § 83. The Gallic Towns and the Ger- 
 manic Towns. PoUtical Divi- 
 sions. 
 
 § 84. Classes of Population. 
 
 § 85. The Political Function. 
 
 § 86. The Political Organs. 
 
 § 87. The Popular Assembly. 
 
 § 88. Senate. 
 
 § 89. Kings or Chiefs. 
 
 § 90. Composite Societies. 
 
 §91. The Ancient Town and its 
 Revolutions. 
 
 I. GENERAL REMARKS 
 
 § 62. The Society and the State. — In saying " society " we 
 mean a group of men and the collective action of this group in a 
 common interest. This co-operation may be temporary or lasting, 
 voluntary or compulsory, imposed by a higher authority or spon- 
 taneous, or it may take place because of urgent necessity. In 
 every case collaboration cannot exist without a certain amount of 
 organization, however rudimentary it may be supposed to be; in 
 order that people may act in concert it is indispensable that there 
 should be an understanding and discipline, and that each one should 
 adhere to his task and should be able to count upon the others 
 carrying out theirs. Almost everywhere a coercive apparatus or 
 a government has become established in order to make sure of a 
 co-operative organization, for the advantages which it offers are 
 so great that men have not thought that they were buying them 
 too dearly by paying for them with their independence. 
 
 It is this coercive apparatus, this organ that carries out collec- 
 tive action, which is called the State or Government; but the 
 function which this organ fulfills is also designated by the name 
 of the State; in its secondary meaning the State is the society 
 looked upon in its political function. This function cannot be 
 
 55
 
 § 62] INTRODUCTION TO PRIVATE LAW [ Intro. 
 
 precisely defined, for it has varied and still varies according to 
 the society and according to the period. The jurist may attempt 
 to give us this definition at a certain time in order to build up a 
 logical system of public law. The historian could not do so, be- 
 cause institutions are not seen by him in their fixed state, but in 
 process of changing. The political function has its "processus" of 
 evolution just as has the family or ownership. There are societies 
 where collective action only takes place intermittently and can 
 be reduced to almost nothing, — a struggle against the outside 
 enemy and an internal organization (which is very crude) for pur- 
 poses of attack and defense. The State in primitive societies is 
 often entirely disconnected with justice and law; it is no more a 
 reasoning being than were the primitive gods, brutal forces of 
 nature; like the latter, it becomes one. jNIoreover, the action of 
 the State is, on the other hand, very extensive; it regulates private 
 life, directs industry, and presides over religion; it is at one and 
 the same time a church and an industrial or agricultural under- 
 taking. The political function of society has a marked tendency 
 to develop; but at the same time the division of labor introduces 
 into it departments which are distinct and almost independent 
 of one another: the political apparatus, the religious apparatus, 
 and the industrial apparatus become separated. The sovereignty 
 or power of the political organ over the social body, the relations 
 between the individual and the State, the forms of government 
 and revolutions, — all these are questions which complicate the 
 public law of societies that are fairly advanced. 
 
 § 63. Organic Theory of the State. — There are not lacking 
 S3»stems by means of which the genesis of the State can be ac- 
 counted for. The theory of divine right makes human authority 
 to flow from divine authority; this is a theological postulate. The 
 theory of the social contract is an ideal conception derived from 
 the systems of natural law and opposed to historic truth: men 
 only group themselves together and submit to be led because of 
 some external necessity; there is no free covenant at the basis of 
 society, but an external compulsion and a reaction which is a con- 
 sequence of it; it is in order to offer resistance to outside forces 
 that men associate themselves together.^ The organic theory of 
 
 ^ Fustel de Coulanges: "Political institutions are not always the work of 
 the will of one man. Even the will of an entire people is not sufficient to 
 create them. The human conditions which give birth to them are not of 
 those which the caprice of one generation can alter. People are not gov- 
 erned because it pleases them to be governed, but because all of their inter- 
 
 56
 
 Topic 3] ORIGIN OF THE STATE [§65 
 
 the State agrees better with the facts. Human societies, which 
 are aggregates of individuals and of families, resemble living or- 
 ganisms, which are aggregates of cells. No doubt sociology is not 
 biology, but they are similar, and there are analogies between 
 social factors and biological phenomena. Why not point out 
 and make use of the connecting links that one observes in order 
 better to portray how societies become organized? ^ In human 
 societies, just as in the living body, organization takes place by 
 means of a division of labor in the direction of the localization of 
 functions, of the formation of organs and apparatus better and 
 better adapted to the functions which they fulfill, and of a greater 
 and greater interdependence of the parts. 
 
 § 64. Localization of Functions. — In inferior organisms (pro- 
 tozoa) each part is at the same time stomach, respiratory appa- 
 ratus, and locomotive apparatus. Under the influence of its 
 surroundings these functions become localized; the physiological 
 division of work takes place; one part becomes the stomach and 
 nothing more; another, the respiratory apparatus; and a third, 
 the locomotive apparatus. Thus in primitive societies each indi- 
 vidual hunts, fishes, makes war, builds his house and cooks his 
 bread, whereas in more advanced society the population is divided 
 into classes, or even into castes, — priests, warriors, and agricultur- 
 ists; a division of social labor takes place. The man who is in the 
 best situation or the most fit for it specializes in his function. 
 
 § 65. Changes in Structure. — Once the need has created the 
 organ, the latter adapts itself better and better to its function; 
 in order to do this it changes its form. The various parts of the 
 living body, which all began by being simple cells, end by differ- 
 ing from one another to such an extent as to make it impossible 
 for them to replace one another in their respective functions; for 
 example, the osseus tissue differs from the mucous, the nerves 
 from the muscles. Changes in structure are less apparent in the 
 case of the man, although there is some difference between a 
 market porter and a member of the Institute of France. But 
 they exist, nevertheless, and they make changes of profession 
 
 ests and their profound convictions demand that they should be. ..." — 
 Let us add that there is nothing arbitrary about these convi(!tions; they are 
 a product, a result; institutions do not depend upon intentions, but upon 
 circumstances. 
 
 ' Upon condition that the establishment of a simple analogy shall not be 
 taken for a demonstration. The social factors should be studied separately 
 by themselves, and the laws which govern them directly established. — I 
 shall not stop at the metaphysical objection that the individual is an end in 
 himself, whereas the cell is not. 
 
 57
 
 § 65] ESTTRODUCTION TO PER' ATE LAW [Intro, 
 
 difficult or even impossible, as we see in the case of unemployed 
 workmen following the invention of a machine. 
 
 § 66. Interdependence of the Parts. — From the moment 
 when the parts of a living organism differ among themselves and 
 have each one its special function they can no longer live isolated 
 from one another : cut a sponge in half, and each half will continue 
 to live; a higher animal submitted to this treatment would die on 
 the spot, and if you want another example, the old fable of the 
 Belly and the Members is there to furnish it. The interdepend- 
 ence between individuals in our civilized societies is scarcely less 
 than this. A strike of miners or bakers deprives us of fuel or 
 bread; this becomes an affair of the State. 
 
 § 67. Organs and Apparatus. — Once created, the organ evolves 
 itself owing to the action of its environment and becomes an ap- 
 paratus or an assembly of organs tending towards some one ob- 
 ject. Thus the stomach becomes changed into a digestive tube; 
 that which in the lower species is a mere sac becomes complicated 
 in the higher animals and develops into a mouth to seize the food, 
 a stomach to digest it, and an intestine to extract therefrom the 
 nutritious juices. Society herself has her organs and her appara- 
 tus: 1st. Productive apparatus or nourishing apparatus; this is 
 agriculture and industry; they are localized just like the functions 
 in the living being, — for example, the salt industry and fisheries 
 on the seacoast, the raising of cattle upon the plains, etc. — 2d. 
 Circulatory apparatus; commerce transports from one place to 
 another agricultural and industrial products, giving rise to more 
 or less active currents, to a circulation which is slow or rapid, 
 rather like the circulation of the blood in warm-blooded or cold- 
 blooded animals. — 3d. Directive apparatus. The political system 
 co-ordinates the action of social forces in the same manner as the 
 nervous system does in the organism. 
 
 § 68. Political Forms. — The political organs in a small society 
 are three in number: the general assembly of all its members who 
 decide questions of common interest (moving from one place to 
 another, peace or war); a group that directs, which is composed 
 of the oldest and the strongest; the assembly bases its decisions 
 on the counsel of the latter; and a leader, who is more influential 
 than the others, from whom the final resolution will be due, and who 
 will carry it out. According as one or the other of these three 
 forces prevail the government will be a democracy, an aristocracy, 
 or a monarchy. Modern States have composite governments, 
 
 58
 
 Topic 3] ORIGIN OF THE STATE [§ 69 
 
 which cannot, properly speaking, be placed in any one of these 
 three categories. But, whatever the system adopted may be, the 
 political apparatus should only be the instrument by means of 
 which the instinctive feelings of the people collectively should 
 act; this feeling is what might be called public opinion, were not 
 this expression ordinarily limited to the present, whereas we are 
 here concerned with the interests of the future as well as with 
 those of the past, with the wishes of existing generations and of 
 those of the past. The personal government itself draws its 
 strength from the harmony which exists between its action and 
 the national conscience. 
 
 § 69. Personal Government. — The idea of obeying a man 
 seems ridiculous to people who have no chiefs, and there are soci- 
 eties of this nature (the Nicobar Islands, Todas, Papuans, Fue- 
 gians). There are others who only have chiefs in time of war 
 (Caribbees, Bedouins, Chinooks, the Patagonians against the 
 Spaniards and the Redskins against the English); thus Gaul ap- 
 pointed a dictator in the person of Vercingetorix, in order to op- 
 pose the Romans; and, finally, there are peoples, and these are 
 the most numerous, who have chiefs in peace as well as in time of 
 war; these permanent chiefs are even often hereditary. — The 
 first man to be a king was a lucky soldier, Voltaire has said. In 
 fact, it was personal qualities that gave their political power to 
 the first chiefs: physical strength and courage (Bedouins and 
 Boschimans; old age causes the loss of this power, as is proved by 
 the example of Peleus and that of Laertes, who were dethroned 
 by their sons; Nestor was an exception, but this was phenomenal); 
 age and the experience which goes with it (Caribbees and Dyaks 
 in Borneo); intelligence (the Snake Indians and the Ostiaks); 
 religious power (the king is a priest or a sorcerer in Loango and 
 among the Amazulus; his special function is to overthrow the 
 enemy by means of exorcisms and witchcraft). The temporary 
 head becomes permanent, even although this may only be due to 
 continual wars and the necessity of being prepared for any un- 
 expected attack. Through a new advance, dynasties come to be 
 established; the office of chief constitutes a sort of family prop- 
 erty ; it is transmitted from father to son, from brother to brother, 
 according to the various systems that are applied to the patri- 
 mony; heredity in the family calls for heredity in the State, to 
 say nothing of the fact that this system avoids crises because the 
 successor is appointed beforehand. Religion has given a consid- 
 
 59
 
 § 69] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 erable balance to the monarchic power. It is not a rare thing for 
 kings to be high priests, vicars of God, gods upon the earth; they 
 dehver oracles, command the elements; their subjects worship 
 them (Egypt, Peru, Roman Empire). 
 
 § 70. Social Distinctions. Classes and Castes. — In inferior 
 societies all are equal; no distinctions of class are recognized 
 (Pueblos in North America, Bodos in India, Alfurus in New 
 Guinea). Slavery, the result of war without or debts within, 
 carries with it everywhere an important differentiation. The 
 other political and social distinctions (patrician and plebeian, 
 etc.) also have their origin in the same causes; the division of 
 labor keeps them up and makes them more pronounced; some- 
 times even the food of the various classes is not the same, and this 
 contributes to separate them (in the Fiji Islands human flesh was 
 reserved for the chiefs; in the Hawaiian Islands the chiefs alone 
 could eat meat, and so they were more vigorous than their 
 subjects). Often the vanquished practice servile trades, hard 
 professions like that of agriculture; whereas the conquerors are 
 soldiers. Privileges and distinctions become hereditary under the 
 influence of religion or as the consequence of a political system that 
 makes use of them as a convenient administrative scheme. Classes 
 become changed into castes (ancient Egypt, Japan, Bambaras, 
 etc.). In India caste forms a professional and religious syndicate 
 which gives its members the right to marry one another and eat 
 together; neither Buddhism nor Jainism, with their equalizing 
 dogmas, has succeeded in suppressing caste.^ Our modern soci- 
 
 1 Senart, "Les Castes dans I'lnde" ("Revue des Deux Mondes," 1894;) 
 "Gr. Encyclop.," see "Castes" (bibliog.). — India: Brahmans, Kchatryas, 
 Vaisyas, Soudras: priests, warriors, laborers and traders, servants. {Cf. Per- 
 sia: magi, nobles, laborers, artisans.) 
 
 Caste may be recognized from a great number of external signs, — from 
 the fashion and coloring of clothing, from the form of the jewelry, from special 
 rites, from implements, flags, flowers, etc. Caste is thus a sort of freema- 
 sonry. It protects its members; upon an order issuing from it we have seen 
 the merchants of an entire canton close their stalls, the laborers suspend their 
 work, the artisans abandon their workshops, for a slight insult to one of their 
 number. From the moment when it begins to defend its members the caste 
 is compelled to make them submit to a certain amount of discipline. It is an 
 internal police power and thus renders itself services which we are accustomed 
 to expect from the State. Expulsion from the caste is a severe penalty, for 
 the individual outside of his caste is a pariah; his presence is a contamina- 
 tion. The Hindu who comes to Europe is "ipso facto" excluded from his 
 caste, but he may obtain reinstatement upon the payment of a fine following 
 a sentence rendered by the tribunal of the caste. The Brahman religion has 
 contributed towards the transformation of classes into castes; but the chief 
 reason of this change was the lack of a strong political organization, caste 
 taking the place of the State in its protection of the individual. 
 
 60
 
 Topic 3] ORIGIN OF THE STATE [§ 71 
 
 eties have taken the very opposite course to the Old World; they 
 have proclaimed religious, civil, and political equality; only in- 
 equality of fortune is left. 
 
 § 71. How are Societies Formed, Developed, and Reproduced, 
 and how do they Die? — "In union there is strength," says the 
 proverb. However commonplace this may be, we must not seek 
 any other cause for the formation of human societies (and animal 
 societies). It is not certain that man was originally a sociable 
 animal, as Aristotle has maintained, but it is certain that he has 
 become such. The formation of groups has not taken place 
 through any social contract; this chimerical pact has never existed. 
 The grouping has been made under the force of necessity; it has 
 been spontaneous and involuntary; it has been the instinctive 
 reaction against external forces. Defense has been necessary 
 against the enemy, wild beasts and other men; and it has been 
 necessary to obtain food by hunting and fishing in common, 
 which is far more productive than when carried on by the in- 
 dividual. Was the primitive group the horde, the amorphous 
 tribe, which had organized itself as the result of some war within 
 the family, clan, tribe, or town? Or, on the other hand, did they 
 begin with the family to end, after passing through a series of 
 groups, with the clan and the town? These are problems whose 
 solution is connected with the obscure question of the origin of 
 the family. One thing is certain, however, — that among the 
 people of the Aryan race this last method is frequent; families 
 unite to form clans, clans to form tribes or towns, and the latter 
 to form the large States. 
 
 Once they have been formed, societies increase by means of 
 alliances or conquests. (A) The Alliance includes various de- 
 grees: 1st. The Personal union: two States have one and the same 
 chief, while at the same time with regard to others each keeps 
 its full independence; for example, England and Hanover from 
 1714 to 1838. 2d. Actual union: two States form one with respect 
 to other States and remain distinct within themselves ; for example, 
 Austria-Hungary. 3d. Confederation of States that are inde- 
 pendent, each one keeping its diplomatic representation, but with 
 an organ, — the diet, — which can take certain measures in the 
 common interest; for example, the Germanic Confederation from 
 1815 to 186G. 4th. Federal States forming externally but one 
 State and having internally a central power which only leaves 
 the local authorities a portion of the sovereign power; for ex- 
 
 61
 
 § 71] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 ample, Switzerland, the United States. — (B) Conquest sometimes 
 results in the complete absorption of the conquered State by the 
 conquering State. Sometimes its effects are less radical; the con- 
 quered lose a part of their independence and descend to the rank 
 of semi-sovereign, protected, or vassal States. 
 
 The increase of a society is an advantage. By suppressing little 
 States inevitable hostilities are avoided (thus incessant warfare 
 desolated Gaul before the Roman conquest); forces that are em- 
 ployed in destroying one another turn towards social co-opera- 
 tion ; the division of labor can be pushed further in a large country 
 than in a town or a province. 
 
 A nation does not die. Exterminations are rare; but it may 
 happen that one people is subjugated by another. Sometimes one 
 nation, as a result of an unfortunate war, loses a portion of its 
 territory and of its population; it is dismembered. 
 
 Dismemberment may also take place, like a fission among the 
 animal species, spontaneously; but it is rarely met with under this 
 form. Societies are reproduced especially by a swarming-time (the 
 sacred springtime among the Italiotes); they found colonies, 
 copies of the metropolis with which they remain connected (Aus- 
 tralia) or from which they separate to live independently (The 
 United States). 
 
 § 72. The Factors of Social Evolution are: 1st. The physical 
 environment (habitat, climate, economic conditions; for example, 
 the geographical situation of England has counted for a great deal 
 in its history) and the social environment (influence of neighboring 
 societies, competition, imitation). A too rigorous climate (Es- 
 quimaux), the barrenness of the soil (deserts), and the difficulty 
 of communication (Alps, Caucasus), are obstacles to the forma- 
 tion of large States. 2d. The past, which forms the race and which 
 is at first never more than the result of the influence of former 
 environments. From thence come habits of discipline and a 
 certain homogeneity, relationship, language, and worship common 
 to the members of a group. The principle of nationalities, which 
 recalls that of the fixedness of species in natural history, is too 
 exclusively connected with this action of the past. It has been 
 able to create a common language, religion, and race, or, at least, 
 a common existence and hope. It does not follow that this com- 
 munity must necessarily exist or last forever. The future may 
 undo that which the past has accomplished. 
 
 § 73. Social Laws. — Certain of the political laws apply to 
 
 62
 
 Topic 3] ORIGIN OF THE STATE [§ 74 
 
 societies. We have established this with regard to the division of 
 labor. Natural selection ehminates inferior societies; they dis- 
 appear before those that are better armed, more wealthy, more 
 prosperous, and of a higher morality. The law of the connection 
 of characteristics which allowed a Cuvier to reconstruct a species 
 that had disappeared out of a few fossil remains is to be observed 
 in society; if military institutions prevail therein one will find as 
 logical consequences absolute power and the subordination of the 
 individual to the State, and political theories in conformity there- 
 with; free institutions will be met with in industrial and commercial 
 societies. The law of organic balance, or the law of Geoffroy 
 Saint-Hilaire, by virtue of which the exaggerated development 
 of one organ tends to diminish the other organs (for example, the 
 kangaroo, whose fore quarters are so very much reduced in size in 
 proportion to his hind quarters), controls social development. 
 The Romans were more able politicians, better soldiers, and better 
 jurisconsults than the Greeks; and the Greeks surpassed the 
 Romans in fine arts and letters. 
 
 II. ELEMENTARY AND COMPOSITE SOCIETIES 
 
 § 74. Primitive Societies. — There are still a few of them in 
 existence in our day. The Vedas in Ceylon, the Todas in India, 
 the Papuans, the natives of Lower California, the Boschimans, 
 the Fuegians, and the Esquimaux form a few groups without 
 cohesion, of ten, twenty, or fifty persons; a chance brings them 
 together and accident scatters them. These anarchists, without 
 knowing it, have realized to the fullest extent the ideal of the 
 school : independence of the individual, liberty, and equality — in 
 poverty. What good is this independence that they cannot use 
 because they are enslaved by the brutal forces of nature? In our 
 societies what is lost in liberty is gained in power, wealth and 
 contentment, — that is to say, in true liberty. The meanest serf 
 of old France would not have exchanged his condition for that of 
 the free Indian of the Sierra Nevadas, who only lives on roots and 
 insects, or for that of the Bedouin of Sinai, who for three thousand 
 years has wandered aimlessly. A tyrant would have rendered 
 them inappreciable services; I do not mean a good tyrant who is 
 pictured in the image of God, and whose one great fault is that it 
 is impossible for him to exist; but I do mean the worst of despots. 
 Baker, when leaving the tribes who had no government, barbari- 
 
 63
 
 § 74] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 ans, who were scarcely clothed, was struck with the prosperity of 
 the Unyoro, a country in which a monster reigned who for a mere 
 nothing would put his subjects to death with the most frightful 
 tortures. Tyranny, indeed, is a great step in advance! And, sad 
 to relate, war also is a step in advance: thus tribes that have no 
 leader are peaceful. War allows of an exercise of natural selec- 
 tion and the elimination of the weak. We owe our strong and 
 vigorous races and our best organized societies to the necessities 
 of the struggle for existence. This providential part played by 
 war in the origin of societies has in it nothing mystical. 
 
 §75. The Clan or the "Gens." — Family communities are 
 almost political societies; their organization is far more advanced 
 than among the unsettled hordes with which we have just been 
 dealing. The community of several families forms an association 
 of the same type as the latter; just as the clan (Celts), the "Genos" 
 (Greeks) or the "gens," the " seven " (Ireland), the "Sippe" (Ale- 
 manni). Does this institution result from the natural development 
 and the dismemberment of the family, or must we see in it an arti- 
 ficial creation,^ families of diverse origin grouping themselves to- 
 gether and in the end, after several generations have passed, be- 
 lieving themselves to be the issue of a common ancestor? Both 
 systems have their supporters, and perhaps in both of them there 
 is a certain amount of truth. It has been possible for families of 
 relatives to be united with families of strangers, or even for fami- 
 lies of strangers to be united with one another, in such a way as 
 to form a group that is as coherent as that of the family com- 
 munity; in order to do this the outline of the family community 
 has been borrowed. — At any rate, the "gens" is on a large scale 
 that which the family is on a small scale. Its members are united 
 by a fictitious relationship or by a relationship which cannot be 
 proved if it is a true one, and which is only expressed in the em- 
 ployment of a common name and the worship of a legendary 
 ancestor. 
 
 § 76. The Maternal " Gens" among the Iroquois. — The tribe of 
 the Senecas has eight "gentes" bearing the names of animals: 
 wolf, bear, tortoise, beaver, deer, woodcock, heron, and falcon. 
 The animal which gives its name to the "gens" is an ancestor-god, 
 a totem; all the members of the "gens" are regarded as having a 
 common origin; they are all relatives, bearing the same "gens" 
 
 ' In Daghestan the "gentes" bear the names of locaUties or of heroes and 
 never that of an ancestor. The Kheosures (Caucasus) do not know any 
 political institution excepting the "gens." 
 
 64
 
 Topic 3] ORIGIN OF THE STATE [§ 78 
 
 name, and have a common burying-ground; there is a prohibition 
 against marrying within one's own "gens"; and, as relationship 
 through a common mother is the only one taken into considera- 
 tion, each "gens" is recruited exclusively from amongst the de- 
 scendants of the women. The Council of the "gens," which is 
 composed of all the adults, men and women, exercises the sover- 
 eign power and decides serious questions, such as the taking in 
 of a new member or the carrying out of a vendetta; it elects and 
 deposes the military commander and the sachem or chief in times 
 of peace; the latter has only a power which is entirely paternal, 
 without any means of coercion; he is at once the chief of the 
 "gens" and the representative of the latter in the council of 
 the tribe and in the federal council of the Iroquois. The son of the 
 former sachem is never elected to fill his father's place, for he 
 belongs to another "gens" because of the maternal right. 
 
 § 77. The Celtic Clan,^ such as it is represented to be in the 
 Gallic Codes, is, on the contrary, a clan based on agnatic relation- 
 ship; the woman, in spite of her marriage, remains a member of 
 her father's clan (save in a few exceptional cases). At the head 
 of the clan which is composed of the supposed descendants of a 
 common ancestor, there is a chief whose office is not hereditary. 
 He is assisted by a council of seven elders, by a representative 
 of the clan who is charged with the administrative affairs and dip- 
 lomatic negotiations, and, finally, by an avenger who punishes 
 delinquents and is in command of the men in time of war. The 
 mutual responsibility of the members of the clan is most minutely 
 regulated; in case of a homicide the sum of money that is due by 
 way of composition to the family and the clan of the victim is 
 paid, one-third by the murderer and his household and two-thirds 
 by his maternal clan and his paternal clan, the latter being held 
 bound to pay twice as much as the former; the relatives and the 
 clan of the victim have a right to receive the composition in the 
 same proportion, but a preference is made to the extent of one- 
 third for the benefit of the chief who has carried out the recovery. 
 
 § 78. The Roman " Gens" ^ implies: 1st. A common name; its 
 members bear the same "nomen gentilicium" (ending in "ius"; 
 
 ^ Seebohm, "The Tribal System in Wales," 1895; Dareste, "J. des Sav.," 
 1898; Kovalewsky, "R. de Sociol.," 1894, 199; R. de Kerallain, "R. g6n. de 
 Dr.," 1890, p. 571. 
 
 2 Cuq., "Instit. des Remains," 1891; Giraud, "R. de L6g. " 1846 ("De la 
 Gentilit6"); L^crivain, "Diet, des Antiq.," see "Gens" (andbibl.). — Cicero, 
 "Top.," 6 (according to Mucius). 
 
 65
 
 § 78] INTRODUCTION TO PRIVATE LAW [ Intro. 
 
 for example, Tullius) and are distinguished from one another by 
 the "prsenomen" (Marcus) and the "cognomen" or soubriquet 
 (Cicero). 2d. Common worship and a common tomb. 3d. Agricul- 
 ture in common; the "gens" is the owner of the "ager gentilice"; 
 the rights of succession, of guardianship and custody which ex- 
 isted among the "gentiles" at a comparatively recent period are 
 remains of this joint ownership. 4th. Solidarity among " gentiles," 
 whether it be for avenging offenses of which one of them has been 
 a victim, or whether it be for paying the expenses incumbent upon 
 one of them (ransom, fine, disbursements occasioned by the ex- 
 excise of the public duties) ; or whether it be to aid one another 
 at law, to serve one another as surety or to be witnesses for one 
 another. The "gens" undoubtedly had a chief {''ap'x^cav " in the 
 Greek " 7eVo9 "),^ the natural representative of the "gens" in the 
 Senate, who was charged with the worship, with the administra- 
 tion of the property, and with the administration of justice in 
 the "gens"; he was assisted in serious cases by a council of 
 "patres," which pronounced decrees or regulations and punished 
 with the "nota gentilicia," and probably with expulsion, its un- 
 worthy members. The "gens" included the lawful descendants 
 in the male line from the common ancestor (actual or presumed) 
 of the "gens," the adopted children or the women "in manu" of 
 a "gentilis," without mentioning clients who were only an ac- 
 cessory part of it. One left the "gens" by being adopted, mar- 
 ried or emancipated, or the "transitio ad plebem." The "gens" 
 disappeared little by little, being eclipsed by the State, like 
 a confederation whose elements would fuse together in order 
 to form a single State. The general causes of the progress of 
 the State resulted inevitably in the overthrow of the "gens." 
 The population became divided into classes and the land into 
 districts, both of which were quite foreign to the division into 
 "gentes." 
 
 § 79. The "Clientele."— The client ("cluens," who obeys) is a 
 freedman, a member of a conquered people, or a man who has con- 
 nected himself with some patron ("jus applicationis"). He bears 
 the same "gens" name as his patron, takes part in the same wor- 
 ship, and owes him "obsequim, operse, bona," — respect, services, 
 property; that is to say: 1st, assistance in case of ransom, fines in- 
 curred, and the customary expenses and disbursements; 2d, his 
 
 1 In Daghestan there is an elected chief whose authority is especially a 
 moral one (" primus inter pares"). 
 
 66
 
 Topic 3] ORIGIN OF THE STATE [§80 
 
 succession if he dies without descendants. In return his patron, 
 under penalty of being devoted to the infernal gods ("sacer esto"), 
 gives him protection before the courts and outside of them, treats 
 him with justice in the family circle, and gives him help if need be 
 (from this, perhaps, is derived the granting of property to be held 
 at will, Festus, "Ep.," 247). The tie which binds the client to his 
 patron is hereditary; the client cannot renounce his patron; the 
 latter is himself undoubtedly not authorized to get rid of a client 
 unless for some serious cause. The client has no rights in the State 
 excepting through his patron. The decline of the "gentes" was 
 the signal for the decline of the "clientele." The clients freed from 
 patronage constituted the common people; they acquired the 
 right of pleading in court and also political rights. Towards the 
 end of the Republic the clientele is no longer an institution; it re- 
 sembles the political clientele of our days. 
 
 § 80. The Germanic "Sippe" ^ extends as far as the relation- 
 ship ("Freundesblut wallt und wenn es auch nur ein Tropfen ist"). 
 Although the Germanic law recognizes both relatives in the male 
 line and relatives in the female line ("Gesippen," "Freunde," 
 "Gatlinge," "Magen"), only the former, or relatives by the lance 
 and by the sword, ."Speermagen," "Schwertmagen," form part 
 of the "Sippe"; the relatives by the distaff and the spindle, "Spill- 
 magen," "Kunkelmagen," are not included in it. Strangers can 
 enter the "Sippe" by becoming connected with the families that 
 compose it; for example, by way of enfranchisement or of legiti- 
 mization; on the other hand, one leaves the "Sippe" as a conse- 
 quence of a placing outside of the law, or of a decision on the part 
 of the "Sippe," or by voluntarily withdrawing with the custom- 
 ary formalities. The "Sippe" constitutes at one and the same 
 time a political group, an agrarian community ^ and a military 
 division. It protects its members before the law, exercises over 
 them a police power, which is a very natural thing from the time 
 when it becomes responsible for their acts, has guardianship over 
 persons under a disability, women and minors, takes vengeance 
 for the murder of one of its members, or receives the " Wergeld" or 
 composition due from the murderer; and, on the other hand, it 
 contributes to the payment of the "Wergeld" in case of a murder 
 committed by one of its own members. 
 
 * Brunner, § 13. 
 
 2 "L. Alam.," 87; Meichelbeck, "Hist. Fris.," I, 49 (in. 750): "fines genea- 
 losiarum"; Rozihre, "Form.," 318. Tiie word "fara" has the same meaning 
 and is found in the names of places, — La F^re in Picardy, etc. 
 
 67
 
 § 81] INTRODUCTION TO PRIVATE LAW [iNTRO. 
 
 § 81. The Germaxuc Following ("comitatus") ^ places the man 
 at the service of a chief or of a nobleman, of a free man who 
 is more powerful than he is, but without reducing him to the con- 
 dition of a slave. This is an extra-legal institution, if one can use 
 that term, which supplements the State in the protection of the 
 weak. It differs from the Roman "clientele," and no doubt from 
 the Gallic "clientele" ("ambacti"), about which little is known, 
 but which meets the same wants. Tacitus describes it in about 
 the following terms: "The follower is admitted into the family 
 community of the chief; he lives under his roof and eats and 
 drinks at his table; he swears to protect and defend him (as the 
 vassal would swear fealty to his lord) ; in time of peace the follow- 
 ers form a personal escort; they are engaged in domestic employ- 
 ments; in war time they fight at his side; if he dies it is a shameful 
 thing for them to survive him without having avenged him; they 
 will give themselves up as prisoners in order to share his fate, and 
 if need be will serve as hostages for him. If he is the conqueror 
 the followers receive a portion of the booty, a staff, a warhorse, 
 and other presents. The chief supports them, arms and equips, 
 avenges and protects them. The bond between the chief and the 
 follower is not indissoluble; if the latter wishes to withdraw, for 
 example, to return to the house of his father, he may do so. It is 
 a great honor for a chief to have a numerous following. All free 
 men may have 'comites,' but all do not have them; for this as- 
 sumes that a man has wealth, military glory, and an illustrious 
 name. It is not a rare thing for nobles with their followers to make 
 war on their own account." 
 
 § 82. The Tribe, which is an aggregate of clans or "gentes," has 
 
 ^ Tacitus, "Germ.," 13. Cf. the poem of Beowulf, Icelandic Sagas. Ccesar, 
 VI, 23, speaks of the heads of bands who can be likened to the "principes" 
 with their "comitatus"; but the former only secure the attachment of volun- 
 teers for the duration of an expedition. The "comitatus" is not an exclu- 
 sively military institution; the Germanic names that are given after the 
 invasion to the "comites" clearly show this; they are servitors, "degen," 
 companions, "gasindi," relatives, "gatlinge," "freunde"; cf., however, the 
 " antrustions " of the Prankish king. The followers are not absolutely vas- 
 sals, whatever Montesquieu may say in his "Esprit des Lois," 30, 3-3; but 
 they are precursors of them. They form a part of the household (in the posi- 
 tion of free servitors), whereas the vassals are outside of the house. Cf.Brun- 
 ner, I, 137. The "following" and the "chentele" pave the way for the division 
 of society into classes by the transformation of free men into servitors. There 
 is a good deal of discussion, — wrongly, as it seems to me, — as to whether 
 the right to have a "comitatus" was a privilege of the king, of the "dux," or 
 of the "principes"; Esmein, p. 41 et seq. The "comitatus" was of too small 
 a number of men for one to be able to see in it the origin of the expeditions 
 which ruined the Roman Empire: Kohler, "Germania," 1868, 143. 
 
 68
 
 Topic 3] ORIGIN OF THE STATE [§ 83 
 
 no organization other than that of the communities which com- 
 pose it; it only differs in its greater size, which is an advantage, 
 and in the powerful political character which it assumes, whereas 
 the clan and the "gens" are sometimes so much like the family as 
 to be confused with it. Among the members of the tribe there is 
 no question of relationship, even artificial; at the most, they are 
 united by a common worship. The Iroquois "gentes" form 
 phratria, and the latter, tribes; the tribe of the Senecas only num- 
 bered two thousand souls; the territory which it occupied was 
 surrounded by a neutral zone; it had its own form of worship and 
 its own council composed of sachems and chiefs of "gentes." 
 The five tribes of Iroquois themselves (about twenty thousand 
 souls) confederated together, forming an eternal league (as all 
 leagues do!) directed by a council where the voting was done by 
 tribes and where decisions had to be arrived at unanimously. In 
 89G the seven Hungarian tribes united under the leadership of 
 Arpad. 
 
 § 83. The Gallic Towns ^ and the Germanic Towns. Political 
 Divisions. — Neither Gaul nor Germania was a State. Nor were 
 they merely geographical terms. The inhabitants of these regions, 
 while they were autonomous, had among them enough common 
 characteristics to be called by the same name. Csesar maintains, 
 it is true, that the Belgians, the Aquitani, and the Celts (or Galli) 
 have neither the same language nor the same institutions nor the 
 same laws; but he exaggerates, for when he comes to describe 
 Celtic institutions he does not find any differences to point out. 
 Religious unity had been realized by the Druids, and several facts 
 show us that progress was being made towards political unity. 
 The Gallic towns placed themselves under one another's patron- 
 age. At the time of Caesar's arrival the entire country was grouped 
 around the Iledui and the Sequani, who were disputing for the 
 leadership and supremacy. In Germania this tendency is not be- 
 trayed to the same extent; however, there are independent States, 
 such as the Ubii, who pay tribute to the Suevi, and federations 
 like that of the Franks and the Alamans at the time of the bar- 
 barian invasions. 
 
 » Bulliotand Roidot, "La Cit6 Gauloise," 1879; Lefort, "R. g^n. de Droit," 
 1880 et seq. — D'Arbois de Juhainville, "R. hist.," 1886, 3, does not seem to 
 me to have established the existence of a great Gallic Empire extending from 
 Thrace to the Atlantic Ocean about the fifth century b. c. We cannot apply 
 to the Gauls that which we know concerning the Galates of Asia: Slrabo, XII, 
 5; Robion, "Hist, des Gaulois d'Orient," p. 153. 
 
 69
 
 § 83] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 The territory of each town was divided into cantons ("pagi"), 
 and each canton included a certain number of villages or small 
 towns ("vici"). It is presumed that the "pagus" (or "Gau") 
 was the territorial district occupied by the "millena" or group 
 which furnished one thousand inhabitants; it seems that this was so 
 in the case of the Suevi. As to the " hundred," the recognition of 
 whose existence has been attempted in the "Germania" of Taci- 
 tus, without having any direct proof of it, this would be a sub- 
 division of the "pagus" if one were bound to see in it a territorial 
 division, and then one would be tempted to liken it to the " vicus. " 
 But the silence of the texts will not allow us to see anything in it 
 but a military division, the contingent of a certain number of 
 lineages or "Sippen." In proportion as the organization of the 
 "gentilice" becomes weakened, this personal grouping (to which 
 can be likened those that were formed around the "godis" of 
 Iceland) has a tendency to be transformed into a territorial divi- 
 sion; the family is no longer at the base of the social scheme; it 
 is residence in a given place, just as it was in Rome and in Greece. 
 But at the time of Tacitus the change had probably not taken 
 place. We merely read that in Germany, 1st, the judges had a 
 hundred assessors; 2d, that each "pagus" furnished foot soldiers 
 at first to the number of one hundred and later to an indetermin- 
 ate number; but they kept the name of "centeni," the hundred, as 
 an honored title (thus they used formerly to say, "the hundred- 
 guards"). These numerical divisions of a military origin are not 
 peculiar to Germania.^ 
 
 § 84. Classes of Population. — Gaul and Germania were cov- 
 ered with forests and swamps; the rather sparse population gave 
 itself up especially to the raising of cattle, to hunting and fishing; 
 agriculture was very little advanced. Tacitus tells us that the 
 women and the old men had to do all the hard work in Germania; 
 
 1 The town of the Helvetii had 4 "pagi," 12 "oppida," and 400 "vici"; the 
 "oppida" and "vici" were set fire to: Coesar, I, 5, 12 (the "pagus" of the 
 Tigurines made war by itself); IV, 1 (the Suevi had 100 "pagi"), 3 (strip of 
 uncultivated land upon the frontier of the Suevi); Mela, III, 3; Tacitus, VI, 
 12, 16. As to the historical geography of Gaul: Lognon, "Atlas hist.," 1888; 
 Desjardins, "Gcogr. de la Gaule," 1878; Deloche, "Mdm. des Savants etrang.," 
 2d series, IV, I, 365. — Among the Anglo-Sa.xons the division is carried out 
 even to the " ten." The Salic Law speaks of the "Centenarius." Cf. infra on 
 the personal or territorial character of the Prankish Hundred: "L. Wisig.," II, 
 1, 26: "millenarius," "quinquentenarius," etc. — Rome had its tribes, its cen- 
 turies, and many peoples analogous numerical divisions. " Alamans," 36, 1. — 
 W. Sickel, "Der Deutsche Freistaat," 1879; "Mitth. d. oest. Instituts.," 
 Ergdnz, I, 7; Waitz, "Verfass.," I, 201; Stubbs, "Constit. Hist, of England," 
 I; "Johns Hopkins University Studies in History," 3d series, 143, 342. 
 
 70
 
 Topic 3] ORIGIN OF THE STATE [§ 84 
 
 the men's only occupation was warfare; in time of peace they re- 
 mained idle ("ipsi hebent"). In Gaul, in the time of Caesar, the 
 population was divided into several classes: 1st. The Druids, a 
 powerful clergy with privileges, exemption from military service 
 and taxation, and with annual assemblies in the country of Char- 
 tres with a certain hierarchy among its members ("si.quis , . . 
 excellit dignitate"), with a supreme head elected by the sacerdotal 
 body.^ Germania had not yet specialized the religious function; 
 it was there exercised, no doubt, by the political chiefs. It is only 
 in the time of Tacitus that we find priests to whom the Scandi- 
 navian "godis" (but not the Icelandic ones, for the latter have 
 also political attributes) may be likened. — 2d. The Knights, 
 " Equites " ; they constituted the military class, the nobility, and 
 alone took part in the political assemblies and gained their in- 
 fluence through the number of their slaves, of their debtors and 
 of their clients.^ Among the Alemanni the nobility, the old 
 families, do not form a distinct class with legal privileges; their 
 clientele and their wealth give them a better position, in fact, 
 than mere free men. The result of this is that their family can 
 demand for them a greater "Wergeld," and that it is among 
 them that ordinarily the chiefs and the kings will be chosen.^ — 
 3d. The "Plebs,""^ having no political rights and scarcely above 
 slaves, are grouped around the knights and constitute their clien- 
 tele. In Germania there was not, properly speaking, any "plebs." 
 Society was still composed of only two classes, free men and 
 slaves, which is an indication of a less advanced social state. — 
 
 ^ Ccesar, VI, 13. In Ireland, mere men of letters, "file," "brithem" or juris- 
 consults, are distinguished from the priests. Diodorus of Sicily, V, 31, also 
 separates the Druids, the Bards, and the "Vates" in Gaul: Ritterling, "Hist. 
 Tasch.," 1888, 195. 
 
 2 Ibid., I, 31; VI, 13. 
 
 3 Ccesar, VI, 23; Tacitus, "Germ.," 7, 8, 13, 25; "Ann.," 11, 16; Jordanes, 
 "De Reb. Get.," 5; Greg. Tours, 2, 9. — In the tenth century it is shown 
 that there were among the Saxons, as formerly, three classes of persons: 
 nobles, "edlingi," free born, "frilingi," "servi" or "luzzi"; "M. G. H., S. S.," 
 II, 361; "Prisons," I, 5, 11, 15; "Bavarois," II, 20; "Angles," I, 10. (Dif- 
 ferences in the price of the "Wergeld"). "The Edda" of Soemund, III, 173, 
 gives a divine origin to the three classes of men: the "Thrael," "servus"; 
 the "Karl," "vir"; the "Jarl" or noble, warrior. — Detailed bibl. in Brunner, 
 "D. Rcchtsg.," § 14. Whence is this nobility derived? Perhaps from a pro- 
 longed holding of the public power which assumes noteworthy actions. 
 
 * Caesar, VI, 13 {Viollet, p. 13). — Were the "ambacti" or clients of the 
 chiefs free men? Casar, VI, 15; Festus, see "Ambactus"; "N. R. H.," 1890, 
 709. The "devoti" or "soldurii" are chosen soldiers, who are so devoted to 
 the chief whom they follow and who supports them that they wall not survive 
 him. — In Ireland we find free clients and vassals who are serfs. The "clien- 
 tele" is connected with the grant of a farm and livestock made by the patron. 
 
 71
 
 § 84] INTRODUCTION TO PRIVATE L.^\V [ Intro. 
 
 4th. The Slaves. Among the Alemanni they are rather hke free 
 men; there is scarcely any distinction made between them and a 
 freedman; the master has over them a right of hfe and death, but 
 it is a very rare thing for him to make any use of it. He gives 
 them lands to cultivate and a separate house; he treats them 
 rather as cultivators, contenting himself with demanding from 
 them a portion of their profits.^ 
 
 § 85. The Political Function was still very little developed. 
 It was entirely an external one, the same as in a league, and con- 
 sisted especially in the organization for attack and defense against 
 the enemy. Within, clans and families kept their independence; 
 collective action, when it took place, was the result, at least in 
 Germania, of a deliberation on the part of the assembly of the 
 free men. The State has no jurisdiction over the maintaining of 
 order within itself. It is for each man to avenge his own wrongs. 
 The only procedure known is private warfare, the vendetta, 
 w^hich is carried on from generation to generation until the families 
 are exterminated, or until, tired of struggling, the two parties 
 come to terms, just as to-day among States arbitration or medi- 
 ation puts an end to differences. The Druids in Gaul and the 
 Brehons in Ireland play the part of arbitrators. Both of them 
 enjoy a sort of magic power; it is this which causes them to be 
 chosen and which accounts for the fact that their judgments were 
 respected; Caesar maintains that they had the power to excom- 
 municate those who disobeyed them. Already, however, along- 
 side of these priests there appeared in Gaul a secular system of 
 justice which was administered by the magistrates of the town. 
 In Germania "principes" who were elected dispensed justice in 
 the cantons and villages; they also were magistrates, and the 
 people aided them in their duties.^ This intervention of the 
 people, which was perfectly natural at a time when the political 
 
 1 Tacitus, "Germ.," 24, 25, 20. 
 
 2 Ccesar, VI, 23; Tacitus, 12. One can bring a capital accusation before 
 the national assembly; to each one of the chiefs ("principes") who render 
 justice "perpagos et vicos" are joined, in order to serve them as advisers 
 and to lend their "auctoritas" to their decisions (that is to say, to guarantee 
 them, to validate them) one hundred assessors taken from among the people 
 (" Centeni singuHs ex plebe comites consilium simul et auctoritas adsunt "). In- 
 terpret the word "centeni" as you will, whether it concern heads of families or 
 of the political division called the " hundred," of the assembly of the " hundred," 
 or of some persons, it is none the less true that the popular element plays its 
 part in the rendering of justice. Upon the part played by these "centeni" 
 "comites," of. infra the Frankish "rachimbourgs": Brunner, I, 143; Vander- 
 kindere, 100; Beaiidouin, "N. R. H." To the contrary: Fustel de Coulanges, 
 "Rech.," 361. 
 
 72
 
 Topic 3] ORIGIN OF THE STATE [§ 87 
 
 power was feeble, is one of the most striking characteristics of 
 Germanic justice. The magistrates' assessors do not limit them- 
 selves to giving him counsel, as in the Roman tribunals; they 
 determine upon the judgment which the magistrate puts into 
 execution. 
 
 If one judges it by traditions and the later law, the putting 
 outside of the law seems to have been the most serious penalty 
 that could be pronounced by the Germanic tribunals, or, rather 
 the first of them, the popular assembly (later on, the king).^ 
 This is a sort of secularized excommunication, more lay than 
 religious, and carrying with it death, confiscation of property, and 
 the burning of the man's house. The individual put outside of 
 the law, "exlex," outlaw, may be killed with impunity by the 
 first comer; whoever shelters him is punished, even his relatives, 
 and often his wife; he is an enemy of the community; he has only 
 one resource left, — that is to flee, to take to the jungle, as the 
 Corsicans say, and he is hunted there like a wild animal ("war- 
 gus," meaning wolf), to exile himself and to go and live abroad. 
 
 § 86. The Political Organs of each town are: 1st, the popular 
 assembly; 2d, the senate or council of the chiefs; 3d, the kings 
 or magistrates. 
 
 § 87. The Popular Assembly - in Germania is composed of all 
 
 * Cf. as to Gaul, Ccesar, V, 56 ("hostem judicat ... in concilio")- — 
 "L. Sal.," 56; Edict of Chilperic, 10: "homo qui per silvas vadit." — 
 "Z. S. S.," XI, 62. 
 
 2 Montesquieu, "Esprit des Lois," XI, 6: "If one will read the admirable 
 work of Tacitus upon the customs of the Alemanni, one will see that it is from 
 them that the Enghsh have derived the idea of their pohtical government. 
 This splendid system was found in the forests." Guizot, "Civihs. en France," 
 I, 7: "The Alemanni have given us the spirit of liberty." Comparative juris- 
 prudence has justified these theories. At a certain stage of their civilization 
 other peoples have had the same political institutions as the Alemanni. 
 
 F. de Rocca, "Les Ass. pohtiques dans la Russie ancienne" ("R. hist.," 1895, 
 LIX, 241). Ancient Russia had its classes ("boiars"), and among them 
 courtiers, "kniajie," in the service of the prince, merchants, villagers and 
 slaves. The nobles did not enjoy any hereditary privileges. Every free man 
 had a right to take part in the "Vetchc" or Popular Assembly and to speak 
 therein (but because of the paternal power the son could not take part in it 
 during the lifetime of his father). The "V6tch6" deliberates upon all ques- 
 tions; unanimity is required in its decisions; this is obtained by means of a 
 friendly agreement or by force, the majority forcing their will upon the 
 minority; at Novgorod the dissenters are drowned in the Volga. The meet- 
 ings are not periodical; the convocation emanates from the sovereign or a 
 group of citizens; nobody is compelled to take part in it. The "Vetclie" has 
 a seal and officers who (mforcc; its decisions. This political organ is found to 
 be powerless to maintain order within and to protect indc^pendence without. 
 It was necessary to call upon the princes, with whom the "V^tch^" nego- 
 tiated, rather like the Italian towns with their " podcstas." The " V6tch('' " ap- 
 points and removes the sovereign; it decides upon war and peace; the sovereign 
 commands the troops, administers justice, takes part in the "V6tche" and 
 
 73
 
 § 87] INTRODUCTION TO PRIVATE LAW [Intro. 
 
 the free men who are capable of bearing arms.^ They come to it 
 grouped, no doubt, in famihes and clans ("propinquitas Sippe"), 
 as though it were a matter of a miUtary expedition. They seat 
 themselves fully armed ^ in the open air. The priests command 
 silence and compel it if necessary. The king or the chiefs speak, 
 seeking rather to persuade than to issue orders. The crowd gives 
 evidence of its disapproval by murmurs, of its approval by the 
 clash of arms.^ They have ordinary sessions at the time of the 
 new moon and the full moon, and extraordinary sessions when 
 circumstances call for them. The assembly '^ decides the most 
 important affairs of the town, chooses the chiefs who administer 
 justice in the "pagi" and the "vici," hears, to the exclusion of the 
 latter, accusations in capital cases, — such as high treason, cow- 
 ardice, vices against nature, — inflicts penalties, death or putting 
 outside of the law; it is in its presence that the political emanci- 
 pation of young men takes place; when they are able to fight a 
 chief or a relative goes through the ceremony of arming them with 
 the shield and the staff. ^ 
 
 sees that all its decisions are carried out. The invasion of the Tartars ruined 
 the "Vetche" and gave the Muscovite princes sufficient power to unify 
 Russia. 
 
 1 The Norwegians who emigrated and established themselves in Iceland 
 and took with them their old customs had a popular assembly or "Althing." 
 It sat in a vast plain upon an isolated block of lava, called the " Mountain of 
 the Law " ; here there were an altar, a lake from which they took water to wash 
 away the blood of victims, and a rock from which the condemned were 
 hurled. The sacrifices were followed by solemn banquets. During the hold- 
 ing of the diet private warfare was suspended; the priests proclaimed a holy 
 truce. — Brunner, I, 130, thinks that in the Germania of the time of Tacitus 
 the assembly was opened with religious ceremonies. 
 
 ^ The army is the people under arms: Coesar, V, 56. Miltary service is 
 for the free man a right just as much as a duty. Also, the giving of arms is 
 a method of freeing slaves among the Lombards: Paul Diacre, "Hist. Lan- 
 gob.," I, 13, and the taking up of arms is for the young man the formaUty 
 by which he enters upon political life. 
 
 ^ General custom among the Alemanni (laws, election of kings). Vdpnatak 
 in Norway: Greg. Tours, "H. Fr.," II, 40; "Rotharis," 386. 
 
 ^ Perhaps unanimously. In the primitive Customs they are scarcely ever 
 satisfied with a majority (the Russian "Vetche," the Montenegran assemblies, 
 the Ossetes and the Abyssinians) : Viollet, I, 286; "Cap. Saxon," c. 26, 27. 
 
 ^ These assemblies are once more found after the invasion among the 
 peoples of Germanic race under the following names: "Thing" (Scandinavi- 
 ans), "Ding," "Geddinge" (Germans) "Mallus" (Franks), "Gemot" (Anglo- 
 Saxons), "Werf" (Saxons, Frisians). The " Landsgemeinde " of the Httle 
 Swiss cantons such as IM and Appenzell is nothing more than the old popular 
 assembly, which has found a favorable environment and has perpetuated it- 
 self there even to our day. Cf. the Kabyle "Djemaa": Masquerny, "Form, 
 des Cites chez les Pop. sedent. de I'Algerie," 1886; Zimmerman, "Volksver- 
 samml. d. alt. Deutschen" in Brandes, "B. (ib. d. Germ. Gesellsch.," II, 
 1863. — The Italian towms and the French Communes of the Middle Ages 
 have also had their popular assemblies; in these cases it was a beginning over 
 again. 
 
 74
 
 Topic 3] ORIGIN OF THE STATE [§ 88 
 
 Thus this assembly is at one and the same time the army, the 
 tribunal and the political body that exercises the direct govern- 
 ment, only leaving to the kings or chiefs matters of secondary 
 importance. 
 
 Among the Gauls popular assemblies are not in the foreground 
 as they are in Germania. However, they meet in each town and 
 are composed of all the armed men.^ Csesar also speaks of a na- 
 tional diet ^ which he himself summoned each year, and in which 
 only the "principes civitatum" took part; but he is not certain 
 that this "conciHum totius Galliee" existed [previously to his 
 time; it is an institution which came into existence, perhaps, 
 owing to the necessity of resisting the Romans; they call to- 
 gether national diets as one would appoint a dictator; Gaul was 
 compelled to effect its unity, just as Greece had to do in order to 
 resist the Persians,^ 
 
 § 88. Senate. — It becomes impossible to hold general assem- 
 blies, if for no other reason than that of the extension of territory 
 and the increase of population; they are only held, where they are 
 still in use, at rare intervals and for questions of vital importance. 
 The ordinary affairs of state are in the hands of a less numerous 
 assembly, — an assembly of noblemen or elders, of a senate. 
 The assembly of the "principes" in the Germania of Tacitus is 
 of this character ("de minoribus rebus principes consultant, de 
 majoribus omnes"). The Gallic senates, which were composed, 
 no doubt, of the best of the knights, seem to have played a 
 more important part and to have almost annihilated the popular 
 assembly. Among the Nervii it is composed of six hundred 
 members; among the Edui two relatives cannot sit together 
 in it, which would lead one to suppose that it only includes chiefs 
 of families or of clans, just as in States that consist of an aggrega- 
 tion of "gentes" or of clans; under these conditions the senate 
 resembles the diet of the modern confederation. In a country 
 where the nobility exists, as in. Hungary, it is the lords who form 
 the political assembly ; until the beginning of the sixteenth century 
 they used to meet together on the race course of Ilakos near 
 Pesth. The same thing occurred in Poland. 
 
 « Cmar, V, 6 ("Concilium .Eduorum"), 56; VI, 20, 23; Cougny, II, 499. 
 
 2 Cirmr, I, 30; IV, 6; V, 27, 54, 56; VI, 3, 44; VII, 1, 2, 63, 75; II, 4 
 ("Concilium Bolgarum"). — Cf. D'Arbois de Jubainville, " lies Assemblies poli- 
 tiques de I'lrlande," 1880; these should be likened to the annual assemblies 
 of the Druids in the country of Chartres; Post, "Bausteine," II, 81. 
 
 ' Another symptom: Orgetorix contemplates getting possession of the 
 "imperium totius Gallia;": Ccesar, I, 2. 
 
 75
 
 § 89] INTRODUCTION TO PRIVATE L.\W [Intro. 
 
 § 89. Kings or Chiefs.^ — The authority of the chiefs corre- 
 sponds to the development of the pohtical function and is conse- 
 quently very slight, "lieges habent quorum tamen vis pendet in 
 populi sententia," is said of the old Swedes. It is the same thing 
 with respect to the kings of Germania,^ whose greatest power lay 
 in their "clienteles." Half hereditary and half elective, the rule is 
 to choose them from certain families because of their nobility, 
 whereas military chiefs, in countries where there are no kings to 
 command the army, and also, no doubt, where the kings are too 
 old, are named because of their courage ("reges ex nobilitate, 
 duces ex virtute summunt"). They have no right to punish, as 
 the military chiefs of the time of Csesar had; this right is reserved 
 to the priests, who are supposed to carry out the will of the gods. 
 They are to be distinguished from the people, somewhat as the 
 chiefs of savage tribes, by the arrangement of their hair in such a 
 way as to give them a more martial air and to frighten the enemy 
 (Suevi, Franks). It is customary to offer them presents; a portion 
 of the composition due in the case of a murder is paid them, 
 whereas it is the town that receives it where there are no kings. 
 The "principes," or local chiefs, have still this power (cf. "reguli," 
 "ealdormen" among the Anglo-Saxons; "duces," Lombards). 
 They are ordinarily chosen among the nobles; but there is this 
 difference between them and kings, — that birth prevails in the 
 case of kings, w^hereas with chiefs it is election; it is not certain 
 whether they are appointed for life. 
 
 Gaul has kings,^ and especially magistrates; the "vergobret," 
 who is a supreme magistrate among the Edui,* is appointed for 
 a year by the priests and the other magistrates; he has the right 
 of life and death and he cannot leave the territory of the town, 
 
 ' Braumann, "Principes der Gallier u. Germ.," 1883; Sybel, "Entstehung 
 d. Deut. Koenigthums," 1881; Dahn, "Koenige der Germanen," 1861-85; 
 Voss, "Republilc u. Koenigthum in alt. Germ., 188.5; Waitz, "Forsch.," II, 
 387; Brunner, § 17 (bibl.); Ccesar, I, 31; II, 5, 28; III, 16, 17; IV, 11; V, 54; 
 VII, 32, 33; VIII, 21; Hoffmeister,^ "Das Koenigt. i. altg. Staats.," 1886. 
 
 2 The king or "princeps civitatis" (Tacitus, lO) is called "thiudans," from 
 "thiuda," meaning people (cf. "L. Sal.," 46: "ante theoda," meaning "ante 
 dominum"); "chunning," "konungr" ("koenig") from "chunni," "kunne," 
 meaning race, nation; "leod" (Anglo-Saxons), word which also means people: 
 "M. G. H., S. S.," VII, 377; Waitz, I, 322 (deposition); Grimm, "R. A.," 231; 
 Caesar, VI, 23. 
 
 3 Val. Maxime, 9, 6, 3; Ca;sar, I, 3; II, 4; IV, 21; V, 25, 26, 54; VII, 4. 
 
 * Ccesar, I, 4, 16; VII, 32, .33 (" intermissis magistratibus," that is to say, 
 with the intervention of the other magistrates of the town and of the chief 
 alderman in his official capacity) ; others translate in the absence of the magis- 
 trates; Strabo, 4, 4, 3. The "Lexovii" also have a chief alderman. Cf. Robert, 
 "R. archdol.,*' 1886. 
 
 76
 
 Topic 3] ORIGIN OF THE STATE [§ 90 
 
 which compels him in case of war to appoint a miUtary chief to 
 rule with him. The authority of this magistrate seems to be 
 greater than that of the Germanic chiefs; however, they complain 
 that mere individuals have more influence than they in the State. 
 The military aristocracy with its clientele, and the priesthood of 
 Druids, counterbalance their power. 
 
 § 90. Composite Societies. — The political apparatus becomes 
 more complicated within these. The central organ includes 
 various elements: thus in a monarchy we will find near the king a 
 Council composed of officers or ministers chosen from the king's 
 relatives or servitors, — for example, the eunuchs under the 
 Lower Empire,^ — and bureaus besides these ministers. In pro- 
 portion as the attributes of the State become extended the au- 
 thority of the ministers increases; the king, who is physically 
 incapable of doing everything, only keeps the general direction of 
 public affairs; and often even the real power passes to a prime 
 minister, or a grand vizier; the king reigns but does not govern. 
 At the head of the territorial divisions there are established local 
 organs which are a reproduction of the central organ on a small 
 scale, and which model themselves after it and are subordinated 
 to one another in a hierarchic manner.^ The central organ is 
 charged with co-ordinating the action of the local organs, and also 
 of the special apparatus which comes to be formed little by little 
 alongside of it and at its expense : judiciary, military, and financial 
 apparatus, — all with the same hierarchy and the same centrali- 
 zation. The separation of powers is a consequence of the division 
 of labor, and even more pronounced separation takes place in 
 modern societies: the industrial apparatus and the religious ap- 
 paratus are distinct and to a very great extent independent of 
 the political apparatus. Not that there are no protests raised 
 
 1 Mistresses of the king (Louis XV), lovers of the queen (Catherine II), 
 favorites of either one or the other have important pohtical effects in mon- 
 archies. Nepotism is in modern systems a survival of the past. 
 
 2 The local organs are sometimes created directly by the central organ 
 (colonies, etc.). At other times this central organ is contented with subordi- 
 nating to itself powers which already exist, with transforming local chiefs into 
 mere functionaries. In confederated States these chiefs give up only a small 
 portion of their attributes. The English have allowed little potentates, ra- 
 jahs, who have a great nominal authority, to continue in India. WTiatever 
 their origin may be, the local organs have a tendency to resemble the central 
 organ. In the Persian monarchy the satraps usurped the right of life and 
 death. In Greece Sparta propagated aristocratic institutions and Athens 
 democratic institutions. The free towns adopted in the Roman Empire the 
 constitution of republican Rome, which apparently had still remained in 
 force, 
 
 77
 
 § 90] INTRODUCTION TO PRIVATE L.iW [Intro. 
 
 against this tendency. The sociaUstic theory of the organization 
 of labor makes of the State a great manufacturer, and even the 
 only possible manufacturer. In religious matters the ultramon- 
 tanes, even Auguste Comte, want a State religion. Some of 
 them restore to the State the religious function which it had for 
 so long a time during antiquity, and almost everywhere until our 
 own day; others give it the economic function of which it has de- 
 prived itself for so long a time. Even when we set aside these 
 radical theories, there remain open questions as to the relation- 
 ship of the Church and the State, and as to the intervention of the 
 State in matters of industry and commerce. 
 
 The patriotism of old times required a man's entire devotion; 
 we must picture to ourselves the States of olden times as towns 
 in a state of siege and reflect that some trivial act in time of peace 
 becomes a crime when facing the enemy. In our own day there 
 is, as it were, a tendency to return to militarism; the State takes 
 possession of the telegraphs and the railways; it enacts laws 
 against drunkenness; there is a desire to make people happy 
 whether they like it or not, and virtuous by decree. But liberal 
 institutions, — such as free exchange, freedom of conscience, and 
 freedom of the press, — urge the State to take everything. The 
 modern State has gained in strength almost as much as the in- 
 dividual has in independence, — a thing which has solved a prob- 
 lem as difficult in appearance as the squaring of the circle. If the 
 system of State control is to be the system of the future, rather 
 than anarchy, it is a mistake to believe that the State must be 
 everything and the individual nothing. The body draws its 
 strength from the vitality of its cells; these must have an inde- 
 pendent life of their own; it is the same in society; the more 
 vigorous the individual, the more powerful the society; it is not 
 the atrophy of the individual that should be sought; it is his com- 
 plete development. 
 
 §91. The Ancient Town and its Revolutions. — The little 
 Greek towns, even Rome itself, were originally organized according 
 to the type of the Gallic or Germanic city, having popular as- 
 semblies, senates, kings, or magistrates. But in time their consti- 
 tution became more complicated and was transformed. The 
 history of their public institutions shows a great uniformity; the 
 old writers, Polybius among others, had noticed it and had given 
 the curve of their revolutions. For the most part they passed 
 through the following phases: 1st. Patriarchal royalty, as at 
 
 78
 
 Topic 3] ORIGIN OF THE STATE [§91 
 
 Rome. 2d. Aristocracy of race, patriarchate being substituted for 
 royalty, which had become tyrannical. 3d. Aristocracy of fortune, 
 taking the place of the old nobility (the constitution of Solon at 
 Athens and of Servius TuUius at Rome, political rights dependent 
 upon wealth). 4th. Democracy, based upon equality between 
 the " plebs ' ' and the patriarchate. The military and financial charges 
 weigh upon the "plebs" as well as upon the patriarchate, upon the 
 poor as well as upon the rich. Those who pay a part of these 
 charges wish to have a part in these rights. Artificial divisions 
 that are purely territorial take the place of the old ethnical or 
 family divisions (tribes and "demes" at Athens); the assemblies 
 of the citizens voting by tribes having the last word as to all affairs 
 of importance; the magistrates are temporary and may have their 
 authority revoked by the people, and they are responsible to them; 
 they are chosen by means of drawing lots, election still having 
 something aristocratic about it {cf. the Athenian jury of the Heli- 
 astes drawn by lots and the Roman judges taken, even to the 
 Gracchi, from among the senatorial class). 5th. Tyranny. The 
 social question has always been the danger in the old democracies. 
 After the attainment of the equality of political rights, equality 
 of fortune has been demanded. In the pursuit of this object, which 
 is as chimerical as equality of strength or intelligence, rich and 
 poor, fat and thin, struggle without respite. If the poor and the 
 thin are the strongest, they profit by it to obtain from the State 
 distribution of the wheat and the food, the cancelling of debts, 
 and the dividing up of the soil. The troubles arising from these 
 measures cost the town its freedom and its political rights, A 
 tyrant, a Csesar, ordinarily chief of the democratic party, is found 
 ready to re-establish order and repress the anti-social tendencies. 
 This is submitted to as an evil in order to avoid a still greater 
 evil: anarchy. 
 
 79
 
 § 92] . HISTORY OF PRIVATE LAW 
 
 HISTORY OF PRIVATE LAW 
 
 § 92. General Evolution. — Private law was but slowly de- 
 tached from public law, with which formerly it came near to 
 being confused. That which to-day is demanded of the State, 
 the maintenance of order, the security of the individual, was 
 formerly the concern of the family. With Feudalism public 
 power passes into the hands of the feudal lords as a tribute to 
 their proprietary right, that is to say, of private power; that 
 which the sovereign has succeeded in preserving for himself is 
 a portion of his domain. The monarchy was compelled to make 
 a sustained effort in order to re-establish the sovereign power 
 and distinguish it from private power. At the same time, and 
 thanks to this evolution, a movement towards civil equality took 
 place; private condition depended a great deal upon political 
 condition; little by little class distinctions became more scarce; 
 the Revolution abolished them and left in existence only eco- 
 nomic inequalities, a simple expression in the majority of cases 
 of physical or intellectual inequalities. 
 
 It is also due to the changes in political and religious order, 
 under the action of economic causes, that the emancipation of the 
 individual from the family ties and the individualization of owner- 
 ship took place. From a state of perpetual war and violence, carry- 
 ing with it the subjection of the individual, something like a state 
 of siege, progress was made towards a system of internal peace 
 and order, and consequently towards a system of liberty. The 
 result of this revolution makes itself felt in every branch of private 
 law. 
 
 Outside of these logical results, which occupy so large a place 
 in our ancient legal history, one can say that private law is 
 extended and becomes complicated, is enlarged and refined. Re- 
 lations which for a long time remain strangers to law, as certain 
 forms of contracts and possession, are regulated. Neighboring in- 
 stitutions are differentiated: thus from that common stock, the 
 domestic power, are detached the power of the husband, the 
 power of the father, the power of the guardian; credits and guar- 
 antees are organized in divers forms; transfers "inter vivos," 
 
 80
 
 GENERAL EVOLUTION [§ 92 
 
 gifts "causa mortis," pacts based on future inheritances, deeds of 
 last will, are contrasted with one another. Roman legislation 
 now harmonized with the spirit of modern law, the canon law 
 and Christian ideas, the conception of equity and national right, 
 are mingled with old Germanic bases in customs, laws, jurispru- 
 dence and doctrine, in order to complete the extensive structure 
 of our old private law. 
 
 81
 
 §93] 
 
 THE FAMILY 
 
 [Chap. I 
 
 Topic 
 
 1. 
 
 Topic 
 
 2. 
 
 Topic 
 
 3. 
 
 Topic 
 
 4. 
 
 Topic 
 
 5. 
 
 Topic 
 
 6. 
 
 Topic 
 
 7. 
 
 Topic 
 
 8. 
 
 Topic 
 
 9. 
 
 Topic 
 
 10. 
 
 Topic 11. 
 
 Topic 
 
 12. 
 
 Topic 
 
 13. 
 
 Topic 14. 
 
 CHAPTER ONE 
 
 THE FAMILY 
 
 Marriage. Legislation and Jurisdiction. 
 
 Betrothals. 
 
 Celebration of Marriage. 
 
 Impediments to marriage. 
 
 Effects of Marriage. 
 
 Dissolution of Marriage. 
 
 Second Marriages. 
 
 Unions Other than Marriage. 
 
 Power of the Husband. 
 
 The Paternal Power. 
 
 Concerning Illegitimate Children. 
 
 Adoption. 
 
 Condition of Women. 
 
 Guardianship and Custody. 
 
 § 93. General Ideas. 
 
 I 94. Relationship. 
 
 § 95. The House, or "mesnie." 
 
 § 93. General Ideas. — Following the invasions, the barbarian 
 family appears under two aspects : (A) under that of Relationship 
 or Lineage, a vast circle embracing all the relatives, constituting 
 an association whose members, united by close mutual assistance, 
 must defend one another and assist one another under all condi- 
 tions; (B) under that of the House, "domus," "mesnie," a less 
 extended group, only taking in the nearer relatives, those who 
 dwell together. Relationship is a confederation of "mesnies." 
 
 § 94. Relationship extends as far as the ties of blood are to be 
 recognized. In the purely patriarchal system it ought only to 
 take in the relations designated as males or agnates, not the rela- 
 tions designated as women or cognates. But from the time of 
 Tacitus remnants of the matriarchate give to those who are mere 
 cognates a place alongside of the agnates; it is the same thing in 
 
 82
 
 Chap. I] THE FAiilLY [§ 94 
 
 the Salic Law.^ As a general rule, however, one can truthfully 
 say that agnatic relationship alone is taken into consideration.^ 
 The relations by the sword, by the spear ("Schwertmagen," 
 "Speermagen"), are contrasted with the relations by the distaff, 
 by the spindle ("Spillmagen," "Kunkelmagen").^ There are 
 here, as it were, two distinct circles, of which the second comes to 
 resemble the first more and more. The proximity of relationship 
 is not calculated by the number of generations, as in Roman law, 
 but in a more rough and ready way by comparing the family to 
 the human body, and placing the relatives in each limb. We shall 
 come across this system further on in relation to marriage and 
 inheritance.^ 
 
 The effects of relationship were: 1st. Solidarity in the vengeance 
 for wrongs committed against one of its members, and in the re- 
 sponsibility for those which they committed against third per- 
 sons.^ 2d. The obligation of assistance in justice (oath takers). 
 3d. Right of inheritance ^ and of repurchase, 4th. The right 
 and the obligation of the guardianship of minors and women. The 
 rights and duties of relatives became weakened throughout the 
 whole of the Old Regime, so much so that in our day they are 
 reduced to almost nothing, and one has some difficulty in justifying 
 them, relatives having become almost strangers to one another. 
 Formerly, on the contrary, men of the same lineage, always ready 
 to risk their life and their fortune for one another, with good 
 reason looked upon their rights as the reward and compensation 
 accruing from the heavy duties of assistance which weighed them 
 down. It is the State which, in guaranteeing public order, has 
 rendered useless these associations of mutual protection and has 
 indirectly overthrown these leagues of relatives whose existence 
 was sometimes a menace to itself. Nor have economic changes 
 failed to assist in bringing about this result. It has resulted very 
 slowly and in an imperceptible manner. The relatives did not 
 have formally to break the tacit agreement which united them. 
 
 * Tacitus, "Germ.," 20; infra, "Inheritances"; Brunner,!, 81; Ficker, op. cit. 
 
 2 Lcfebvre, "Hist, du Dr. Matrim. Fr.," II, 315. 
 
 3 Rosin, "Schwertm. i. Rechtsbuch.," 1877; Stutz, " Verwandschaft. d. 
 Sachsensp.," p. 7; Heusler, § 130. 
 
 * Infra, cf. Viollet, 392; Morgan, "Syst. of Sanguinity," 1871. 
 6 Brunner, "Sippe u. Wergeld" ("Z. S. S., G. A.," 16). 
 
 « The obHgation to furnish nourishment, which in our day is confined to 
 the very near relatives, must formerly have extended to the entire circle 
 of relatives: Ciccaglione, "Enciclop. Giur. Ital.," see "Alimenti"; Salvioli, 
 p. 332; Pothier, VII, 25; Merlin, see "Aliments"; Henrys, IV, 681; "Z. f. 
 Privat. u. Off. R.," 1893, 20, 481. 
 
 83
 
 § 94] THE FAMILY [Chap. I 
 
 Formerly the abandonment of the family was permitted and 
 regulated by usage; ^ possibly, the relatives even had the power 
 to deprive of his rights the one among them whom they considered 
 as unworthy, or whose conduct might involve their responsibility 
 to too great an extent. 
 
 § 95. The House, or "mesnie," ^ the family in a narrow sense, is 
 organized according to the patriarchal type, almost like an army, 
 as required by the social condition which was so troubled in olden 
 times, the lack of all security, the result of violent customs and 
 of the weakness or the negligence of public powers. Such at 
 least is the conception which seems to us to be most exact; al- 
 though it has against it an opinion which is still very widespread, 
 contrasting "the Germanic family, which rests before everything 
 else on the idea of protection, with the Roman family, which rests 
 upon the principle of authority," and a more recent thesis ac- 
 cording to which these two families are rather to be discriminated 
 because the first of them might contain vestiges of the primitive 
 matriarchate.^ As we look at it, the head of the Germanic family 
 
 1 "Sal.," 60; cf. "L. Henrici I," c. 88. In Hainaut the relatives of the 
 homicide forswear him, that is to say, they make a declaration to the effect 
 that they renounce every relation with him, so as to escape the consequences 
 of private warfare: Cattier, "Evol. du Dr. Penal Germ.," 1894, p. 135. 
 
 2 Cf. Law of the Valleys of the Pyrenees. The house or the hearth (" Lar ") 
 goes to the eldest son or daughter (heir or heiress) to the exclusion of the 
 other relatives. It is not a rare thing for each family to have its own system 
 of succession. The house in which it has its seat is indivisible, inalienable, 
 and inviolable. The children (for example, those who are in poor health) all 
 have a right to live there, as well as the uncles and aunts who are not married. 
 The younger sons pass into another family when they marry heiresses; in 
 the same way the younger daughters do this when they marry heirs. If 
 they married one another (younger sons or younger daughters) they formed 
 a new family, a sort of colony of the parent house; the latter was like a center 
 which drew to itself sometimes the possessions of each one of these colonies 
 to the exclusion of the others: "Bayonne," ed. Balasque, II, 622; " F. de Na- 
 varre," 2 and 4, 8; " Fors de Beam," passim (Nogues); "Gout, de Bareges," 
 1760 and 1789; Lagrhe, "La Navarre," II, 211; "Le Dr. dans les Pyrenees," 
 1867; Cordier, "R. h. Dr.," 1859, 257; 1868, 332; "Boletin de la Inst, libre de 
 Ensefianza;" 1886, pp.54, 73 (Wentworth-Wehster); Ricaume, "These," 1897; 
 Maurel, 1900; Butel, "La Vallee d'Ossau," 1894; Flach, "Grig, de I'anc. Fr.," 
 II, 455. 
 
 3 It may be that after the invasions the family preserved some traces of 
 the matriarchate, but they are anomalies arising from characteristics which 
 may be left to one side in an outline like this. In our opinion the patriarchal 
 type already dominated in the time of Tacitus. To look upon the Germanic 
 family as founded upon an idea of protection is to commit an anachronism 
 and to carry into the past a conception which is relatively modern and due to 
 the influence of Christianity and the changes in social and political status. 
 As these changes took place little by little, and they are only proved by doc- 
 uments which are not very precise and are very incomplete, one has no diffi- 
 culty in understanding the divergency of views held by historians of law: 
 Glasson, III, 1; Meynial, "Le Mar. apres les Inv.," 1898; Heusler, § 130; 
 Simonnet, "Le Mundium dans le Dr. de Famille Germ.," 1898; Among the 
 
 84
 
 Chap. I] THE F.UIILY [§ 95 
 
 differs but little from the Roman "paterfamilias"; he enjoys an 
 almost unlimited power over persons and possessions. Whoever 
 is a member of the household must submit to him : ^ his wife, his 
 sons and his daughters, their wives or their husbands, still more 
 so their children, his brothers and sisters living with him, his 
 mother, and lastly the servants.^ Over all of them extended the 
 domestic power or " mundium," ^ the patriarchal right which 
 was the same for all, but which, however, was exercised in a differ- 
 ent way according to the person; ^ the lawful wife was more re- 
 spected if there were any chance of her relatives taking her part; 
 the children, presumptive heirs, were treated better than the 
 servitors; in the same way, the brothers were equal in strength to 
 the head and had the right of going away; the house servants, 
 in continuous contact with the master, were in their turn sepa- 
 rated from the cultivators working at a distance on far-away lands. 
 The germs of differentiation which already existed in very old 
 times began to be developed. The pride of power of the head of 
 the family diminished in proportion to the growth of public power. 
 The State becomes the guardian of defenseless persons, — the 
 clergy, widows, orphans, poor persons and strangers. He who 
 has no longer a family finds a protector in the king; it is the same 
 with the man who is forsaken by his family. From this supply- 
 ing function the State passes to a more active role: it controls 
 and oversees the exercise of the domestic power and checks the 
 abuses of the same.^ As there is no form of tyranny which can be 
 
 old authors see: Koenigswarier, Laboulaye, and P. Gide. In order to appre- 
 ciate the degree of uncertainty to which one is reduced on these important 
 questions, see Lefebvre, "Hist, du Dr. Matrim. Fr.," whose ideas, which are 
 hard to sum up, are very far removed from many of those that are commonly 
 received. According to this learned man, out of a confused, anarchistic and 
 disorganized situation Christianity drew a legislation which was well organ- 
 ized on the subject of the family. It is owing to the Christian guidance that 
 all the matrimonial law of the barbarian period and the Middle Ages is to be 
 accounted for; the Germanic origins amount to little compared with this. It 
 seems to us that M. Lefebvre gives an exaggerated importance to one of the 
 factors of our old law, — a factor, moreover, the effect of which no one con- 
 tests. To judge from the Customs of feudal society, which were often so far 
 from being Christian, it is very hard to believe that this legislation was en- 
 tirely inspired by religion. 
 
 * " C. de Bareges," 1670, Art. 16: the younger son was called "esclau," which 
 means slave. 
 
 ^ One can add to these free men such as " recommand^s " and "vassi." 
 Thevenin, "Tcxtes," nos. 26, 51, and 144. 
 
 ' For the Frankish words see: 1)' Arhois de Jubainville, "Etudes s. la Langue 
 des Francs a I'Epoque Merov.," 1900; Calmettes, "Bch.," 1900. 
 
 * Aristotle, "Polit.," I, 5; /iof/w," R(^pub.," I, 2. 
 
 ^ During the Revolutionary period, owing to a curious phenomenon of 
 regression, family lawsuits are taken out of the jurisdiction of the connnon law. 
 
 85
 
 § 95] THE FMIILY [Chap. I 
 
 compared to that which is exercised by the head of the family 
 over his own, a tyranny exercised at every moment and under the 
 most futile pretexts, so, as soon as the State assures order, the 
 emancipation of the individual takes place of its own accord. 
 Free domesticity takes the place of servile domesticity. Having 
 arrived at manhood, the children are freed from the paternal power; 
 they are only subjected to it during their minority, when it is for 
 their interest, and never as in the past because of the greater in- 
 terest of the family. Woman becomes the equal of man, if she is 
 not married, and when she is, her incapacity still exists, but it has 
 no longer its "raison d'etre" in the constitution of the "domus," 
 it pertains to the marriage, to the necessity of the presence of a 
 head in the house; also, the power of the husband is singularly 
 decreased. This group of persons, which found itself, so to speak, 
 outside of the State, because the State paid no attention to them, 
 and which only belonged to the family, thus ends by belonging also 
 to the State, in the same way and in as direct a manner, as the 
 head of the family himself. Thenceforth, the unity of inheritance 
 which the primitive "domus," assumed, ceases to exist on prin- 
 ciple: the wife, the children, "a fortiori" the other members of 
 the family, have or can have possessions of their own distinct from 
 those which are in the hands of the head of the family. States of 
 transition are met with, such as joint ownership among members, 
 where, because of the joint possession of goods, the house seems 
 to exist as it did under a single head. But these institutions are 
 set aside in the same way, the conception of the maintenance of 
 the family inheritance, of the conservation of property in the 
 family, lasted as long as did the old law (theory of personal 
 belongings.) ^ 
 
 1 Verdelet, "Du Bien de Famille en Allemagne," 1900. 
 
 86
 
 Topic l] MARRIAGE. LEGISLATION AND JURISDICTION 
 
 §90 
 
 Topic 1. Marriage. Legislation and Jurisdiction 
 
 96. IMarriage after the Invasions. 
 
 97. The Church and the ReUgious 
 
 Marriage. 
 
 98. Civil Marriage. 
 
 § 99. Legislation and Jurisprudence 
 
 of the Monarchic Period. 
 § 100. The Revolutionary Law. 
 
 § 96. Marriage after the Invasions. — Marriage in old French 
 law passed through three phases, corresponding pretty nearly to 
 the Barbarian period, the Feudal period, and the Monarchic 
 period. The Germanic Customs and the Roman law are mingled 
 during the barbarian period into a rather confused stream/ to 
 which were joined the limitations devised by the Church. From 
 the time of the Roman period the canon law was in process of 
 formation, the emperors had drawn their inspiration from it in 
 their constitutions, and the Capitularies often borrowed from it. 
 The civil legislation receives the imprint of Christian ideas more 
 and more. In theory, however, as under the Roman Empire, 
 legislation as regards marriage and the decision of questions deal- 
 ing with matrimony still belong to the State.^ The Church has 
 not yet any legislative power over marriage; it leaves it to the 
 decision of the civil law and superimposes upon it its own 
 rules, limiting itself to punishing by means of penances the 
 faithful who do not respect them.^ Marriage, upon the condi- 
 tion and the effects of which the civil judges are still pronoun- 
 cing their views, is always a private act, a pact between two 
 families, wherein the avoidance of misalliances is especially 
 sought for, where the wishes of the parties are not always 
 taken into consideration and the rupture of which is possible 
 by means of divorce. 
 
 1 Meynial, "Le Mar. ap. les Invasions," ("N. R. H.," 1898); Lefebvre, op. 
 cit., also correctly lays great stress on the law of the Lower Empire; "Wis.," 
 Ill and IV. 
 
 2 "Capit.," " Compiftgne," " Verberie " : the Papal legate says: " hoc ecclesia 
 non recipit," "Edit Pistes," 30, 31 (marriages of slaves). Upon secular juris- 
 diction, see: "Bai.," 7, 1. "Alam.," 39; Council of Tours, 567, c. 1.5; liuzicre, 
 "Form.," 113. Neither the "False Decretals," nor Reginon (906) attributes 
 exclusive jurisdiction to the Church. 
 
 * The secular power intervened when the Church was powerless. "Edit 
 de Childeb.," 596, c. 2; "Cap.," 802, c. 33, 35; 826, c. 13; 829, c. 3. "F. 
 Capit.," 5, 9. The Church is the au.\iliary of the civil power. One must not 
 conclude from these texts that its disciplinary action had the effect of de- 
 priving the State of its rights. Anseg., I, 104; "Edit Pistes," 864. 
 
 87
 
 § 97] THE FAillLY [Chap. I 
 
 § 97. The Church and the Religious Marriage. — In the tenth 
 century ^ the Church profits by the anarchy resulting from Feu- 
 daHsm to reserve for its tribunals the exclusive cognizance of 
 questions relating to marriage.^ Its legislation ^ is rounded out 
 by borrowing from the Roman law, from the Germanic Customs, 
 and even from the Jewish law.^ Not content with designating the 
 birth of children and a life in common, with the effect of lending 
 one another mutual assistance, as the object of marriage, it caused 
 its matrimonial law to rest primarily on two fundamental ideas : ^ 
 (a) marriage is a remedy for incontinence; ® (6) it is a sacrament, 
 a religious deed, which symbolizes the union of Christ with the 
 ChurchJ From this conception, which in one sense is very ideal- 
 
 ^ Date disputed; in the writings of Hincmar the exclusive right of the 
 Church is not recognized. "Cone, de Tribur.," 895, 39, Dig. X, 4, 1, 1; 
 Sohm, "Z. f. Kirchenr.," 1870, p. 193; Dove, "De Jurisd. EccL," 1855; Fried- 
 berg, "De Fin. Int. Eccl. et Civit.," 1861. 
 
 2 The East: "Nomocanones" (the combination of ci\al laws and canons 
 of the Church); the emperor, a sovereign judge, grants dispensations; the 
 tribunals who give judgment upon matrimonial actions are composed half of 
 laity and half of clergy. "Bulle d'or" of Alexis Commene, 1086, giving up 
 matrimonial actions to the bishops. Cf. as to Russia, Esmein, I, 27; Mitrovits, 
 "Die Kormtschayakniga," 1898 ("N. R. H.," 1899, 760). 
 
 3 Gratian, 2d part, C, 27-33, q. 3; C, 33, q. 4, 2, C„ 36; Dig. X., 4 ("de 
 sponsalibus et matrimoniis"); Trans, and notes in " Jostice," X; Council of 
 Trent, Sess. 24; Zdekauer, "La Confessione di Legge nei Patti Dotah di Fi- 
 renze" ("R. Ital. p. le Scienze Giurid.," Ill, 1887, p. 237), publishes the 
 chapter on marriage of Rainier de Perouse, "De Contractibus Juchciis et 
 Voluntatibus Ultimis"; Wunderlich, "Tancredi Summa de Matr.," 1841; 
 Freisen, XIII; Maitland, " Vacarii Summ. d. Matr." (" L. Q. R.," XIII, 133). 
 "Ass. de J.," "C. d. B.," 107; "Siete Part.," IV; P. Durand, "Specul.," 4, 4. 
 
 * Rabbinoviez, "L^gisl. Civile du Talmud," 1880; "L. de Compiegne de 
 Veille," "HiEbrorumde connubiis," 1673; " L. de Modene," "Cer6m. et Cou- 
 tumes . . . parmi les Juifs," tr. Simonville, 1710; Ewald, "Alterh. d. Volk. 
 Israel," 1866; Dareste, "Etudes," p. 18; Duschak, "Mos. Talmud. Eherecht," 
 1864; Pavly, "Code du Jud.," 1896. 
 
 s Friedberg, "R. d. Eheschl.," 142, 546; Freisen, 29; Esmein, I, 63; 
 II, 122, 151; P. Lombard, "Sent.," Pars. IV, Dist. 25 (Vol. VII of "Op. S. 
 ThomtB," 1612; St. Bonaventure, "Sent.," IV, 27 (Op., 1681); "Summa 
 Hostiensis," 1568, p. 284; Panorm., "in Decretal.," ed. 1547, Vol. VII; Felin. 
 Sandeus., "in Decretal.," ed. 1529, Vol. Ill, "deSpons."; Sanchez, van Espen, 
 etc.; Tephany, "Expos, du dr. Canon.," 1891; Schuitzer, "Kathol. Eherecht," 
 1898; Hinschius, etc. 
 
 8 Paul, " 1 Cor.," vii, 2, 9 (cf. " 1 Tim.," v, 14). Cf. "Eph.," v. According 
 to the Christian idea, the sexual union has something impure in it, and con- 
 tinence is a state which is superior to marriage. — Cf. disfavor towards celibacy 
 in the old legislations; in the Middle Ages, privileges of married persons, of 
 those who have a large number of children: Salvioli, no. 180. Under the 
 monarchv, privileges to persons married under 25 years, fathers having 10 to 
 12 children (1666; Isamb., 18, 90; 1667, id., 190). Trent, sess., 24, c. 10. 
 Contra, Protestants, " Genesis," ii, 18. 
 
 " Paul, "Eph.," V, 32: "Sacramentum hoc magnum est." Can the 
 Greek " nva-T'fjpiov" be understood as appl>'ing to a Sacrament in the technical 
 sense? hammer, "Sacr. d. Ehe.," 1858; Hahn, "Lehre v. d. Sacram.," 1864; 
 Freisen, 29; Viollet, p. 395, n. Ij cites de Smedt, "Principes de Critique 
 Histor.," p. Ill, as to St. Augustme, "De Bono Conjug.," 18, 21 {cf. here-
 
 Topic l] MARRIAGE. LEGISLATION AND JURISDICTION [§ 9S 
 
 istic and in another very commonplace, the Church drew its 
 governing ideas on the subject of the celebration of marriage, the 
 conditions or impediments brought to bear upon its formation 
 and its effects and its dissolution. It gave Europe a uniform 
 law of marriage, and it is also only just to add that "it made the 
 conjugal union moral, and protected the weakness of Vv'omen" 
 without weakening the authority of the husband, took care of 
 the children, and imposed the law upon the spouses if they hap- 
 pened to forget it in order to give preference to their personal 
 convenience or their caprices. It is the Church, moreover, which 
 founded the modern family. But its legislation is not perfect; 
 we must make reservations, especially on the subject of its repul- 
 sive casuistry, on that excessive number of impediments which it 
 devised, on the extremities to which it went as far as divorce is 
 concerned. Its jurisdiction,^ which originally only related to the 
 existence of the sacrament, of the bond ("foedus matrimonii"), 
 extended to the accessories:^ adultery, legitimacy of children, 
 judicial separation (and separate maintenance), marriage con- 
 tracts (marriage portion, dower). 
 
 § 98. Civil Marriage. — The Reformation weakened the au- 
 thority of the Church in matters of marriage; it ceased to see 
 therein a sacrament,^ and, while preserving the canon legislation 
 in its entirety, it modified many of its provisions by way of inter- 
 pretation or even by amendments. In certain Catholic coun- 
 tries,'^ particularly in France, the rights of the Church sustained a 
 severe blow caused by the decline of its authority under the prog- 
 ress of monarchic absolutism.^ Both legislation and jurisdiction 
 
 inafter, Divorce), and a few important passages from Tertullian upon the 
 primitive Christian conception of marriage: "Ad Uxor.," 2, 9; "De Pudic," 
 4; "De Monog.," 11. — As to the meaning of "sacramentum," c/. "Acad. 
 Inscr.," Mar. 1, 1901. 
 
 1 Lesurre, " Jurid. de I'Eglise s. le c. de Ma,r.," 1823. 
 
 2 Concurrence of the secular tribunals: legitimacy (with respect to a feudal 
 inheritance); marriage agreements: Beaurnanoir, 18, 1; 13, 3, 9, 10. Cf. 
 Conference of Vincennes; P. Pithou, "Roisin," p. 373; St. Thomas, book 
 infra cit., p. 1010; Siciliano, "Giurisd. Eccles.," 1896. 
 
 ' Luther, "Von Ehesachen," 1530; "Tischreden, pass."; Calvin, "Inst.," 
 4, 19; Slrampff, "Luther iid. die Ehe.," 1857 ; Friedberg, "R. d. Eheschl.," 
 153; Scheurl, "Abhandl.," 437. Moreover civil marriage made its appear- 
 ance only momentarily in England, under Cromwell; in Holland it has been 
 optional since 1580. 
 
 '' The Church preserves its rights in Italy and Spain, but not in Austria 
 and P>ance: Huszar, "De Potest. Eccles. circa Matr.," 1900. 
 
 * Launoy, "Regia in Matrim. Potestas," 1674; Gerbais, "Pouv. de 1 Eglise 
 et des Princes s. les Emp6ch. du Mar.," 1690; Boileau, "Emp6ch. du Mar.," 
 1691; Mantrot, "Veritable Nature du Mar.," 1788; Le Ridant, "Deux Quest, 
 sur le Mar.," 1753; Dujour, "Dr. des Souv. s. les Emp^ch. Dir.," 1787; "Rel. 
 
 89
 
 § 98] THE F.\iIILY [Chap. I 
 
 were almost entirely taken away from it, or, at least, it was re- 
 duced to that disciplinarian effect over the faithful which belonged 
 to it in the Roman period, which still belongs to it to-day, and 
 which is scarcely of a nature to arouse the distrust of the State. 
 The point of departure of this remarkable evolution was in a 
 theological, legal theory of which Saint Thomas Aquinas was per- 
 haps the first to give the formula.^ According to that writer, 
 marriage could be regarded at one and the same time: 1st. As a 
 contract of natural law (a borrowing from the Roman writings, 
 which understood by this the law which is given to man and to 
 animals). 2d. The civil contract, that is to say, one governed 
 by the Roman law as it was organized, so long as the Church did 
 not have the monopoly concerning questions relating to marriage. 
 3d. A sacrament, of which the contract was the element and 
 which could not exist without the latter. The civil marriage 
 and the religious marriage are separated in this analysis, whereas 
 in former times they were not distinguished. These speculations, 
 which had no very great bearing so long as they remained shut 
 up within the Schools, were propagated during the sixteenth cen- 
 tury by virtue of the favor shown them by the Renaissance and 
 the Reformation; they w^ere presented before the Council of 
 Trent by more than twenty prelates and theologians, and, a 
 more serious thing, the jurists took possession of them in order to 
 make of them a weapon against the Church.^ From this they 
 came to the conclusion that marriage ought to be subjected to 
 the Church in so far as it was a sacrament, to the State in so far 
 as it was a civil contract. To each one of these powers its own 
 sphere; a good solution — if we could tell w^here one ceases and 
 the other begins. Theologians and jurists fiercely contested with 
 one another for a large portion of the ground, and the battle, 
 very keen in the time of Pothier, has lasted until the present 
 time.^ But, rightly or wrongly, the kings did not hesitate, from 
 
 de la Contest. 61 dans rUniv. de Louvain," 1785; Lorry, "Rech. s. le Mar.," 
 1760; Va7itroys, "Th.," p. 3. 
 
 1 " Somme c. les Gentils," I, 4, c. 78. Cf. "Summa theol.," Ill add. 41. 
 
 2 Parliamentarians and Galileans, second haK of the XVIth cent. See es- 
 pecially Launoy, op cit., in "Opera," 1731, I, 2; Le Ridant, etc.; Maultrot, 
 "Ex des Principes du Pastoral de Paris s. le Contrat de M." (1788); Boyer, 
 "Examen du Pouv. Legisl. de I'Eglise s. le Mariage," 1817. The Itahans, 
 such as Bellarmin, do not admit that the civil contract was distinct from the 
 sacrament: Tabaraud, "Principes sur la Dist. entre le Contrat et le Sacr.," 
 1825. Pius IX in the "Syllabic," 65, s, condemns opinions which are contrary 
 to this doctrine. 
 
 3 Encycl. of Leo XIII, Feb. 8, 1880. Cf. Trent, s. 24, c. 3-12. 
 
 90
 
 Topic l] MARRIAGE. LEGISL-\TION AND JURISDICTION [§ 99 
 
 the sixteenth century on, to enact laws on the subject of mar- 
 riage, creating impediments.^ 
 
 § 99. Legislation and Jurisprudence of the Monarchic Period. 
 — In a general way, the State borrowed its law from the 
 Church; ^ it adopted it and made it its own, not by virtue of a 
 general law, but in the way of court decisions, and it was under- 
 stood that the invasions of the canon law should not be applied 
 by the French tribunals unless they were promulgated as laws of 
 the State. Thus, the decrees of the Council of Trent relative to 
 marriage were not received in a lump, but the most important 
 provisions were promulgated and sanctioned by the Royal Ordi- 
 nances.^ Without having its jurisdiction disputed, any more than 
 its power of legislating was denied it, the Church came to lose 
 its jurisdiction over the majority of questions relating to matri- 
 mony. Litigations over which the State had never lost all right 
 reverted back to the tribunals of the State: system of posses- 
 sions between spouses, separate maintenance, legitimacy of chil- 
 dren, adultery.'* As to marriage, the lay judges seized hold of 
 the difficulties which it gave rise to every time the sacrament 
 was not made use of. Judicial separation, says Pothier, does not 
 affect the tie of marriage, because this tie still goes on existing; 
 the re-establishment of the conjugal domicile by the wife is a 
 question of the police power and springs from the force of the 
 State; impuberty is a question of fact; rape, concealment, bigamy, 
 are offenses punished by the Decrees. They thus come to an- 
 nulling not the sacrament, but the contract, without which the 
 sacrament could not exist. As to the little which remained to the 
 ecclesiastical judges, questions of "fcedere matrimonii," the ap- 
 peal against abuse of power permitted of the submission of the 
 judgments of the ecclesiastical judges and the acts of ecclesiastical 
 authority to the Parliaments.^ The Courts of the Church thus 
 
 1 For example, prohibition of marriage between whites and persons of 
 color (1778; Isamb., XXV, 596). Soldiers cannot marry without the king's 
 permission (1788; Isamb., XXXVIIl, 596); Isa7nb., XXI, 319, 121. Pro- 
 hibition of marriages abroad. lb. 19, 370, 510. Cf. D., March 8, 1793. 
 
 2 Le Ridant, "Code Matrim." (texts), ed. 1770 (bibl.); Du Perrat/, "Tr. du 
 Contr. deMar.," 1741; ed. Serieux, 1761; Pothier, 1768; Horry, 1750; Astruc, 
 1758; Indices: Ferriere, Guyot, etc., see "Manage," etc., Launay, "Instit.," 
 etc. Basdevant. "Th6se," 1900. Glasson, "Acad. sc. mor.," 1900, 32. 
 
 ' Maultrot, Examen des D6cr. du Cone, de Trente et de la Jurisp. Fr. 
 en Mat. deMar., "1788. 
 
 * Viollet, p. 399, n.2, cites Chenu, "Rtatuta Judicior. Ecclesiastic." (Gal- 
 lician Council of 1606), 1621. Benidemps-Iieaupre, "Cout. de I'Anjou," I, 52. 
 
 ' Pothier, no. 350. Doc. of 1712, cited by Davergier, "Et. de Leg," p. 37. 
 The ParUaments having cognizance of cases of nullity can demand that the 
 
 91
 
 § 99] THE F.UIILY [Chap. I 
 
 found themselves abandoned, and in the rather infrequent cases 
 when they were appealed to their decisions were subordinate to 
 the good will of the judges of the king. In 1789 their com- 
 petence was purely theoretical. 
 
 § 100. The Revolutionary Law/ had but little to do except to 
 round out the Monarchic legislation, starting with the new prin- 
 ciple of the liberty of the conscience. As both logic and tolerance 
 required, civil marriage was organized by the State independ- 
 ently of the religious sect to which the husband and wife 
 belonged, and, if one may say so, parallel to the religious mar- 
 riage. Leaving the Church, or, rather, the churches, free to im- 
 pose upon their faithful the conditions or the forms which might 
 please them,^ the State limited itself to not recognizing marriages 
 which did not conform to the rules which it had established.^ 
 
 parish priest give the parties the nuptial benediction: Houard, "Diet de dr. 
 Norm.," I, 337. 
 
 1 Perreau, "E16m. de Legisl. Naturelle," year IX; Viollet, p. 398, n. 1, 
 cites a small Code relating to marriage which was the work of the Constitu- 
 tional Church ("Collection des Pieces impr. p. Ordre du Concile National," 
 1797) and which departs from the Civil legislation. Nougarede, "Leg. s. le 
 Mar.," year X; "Hist, des Lois s. le Mar.," 1803. 
 
 2 Could the reUgious ceremony precede the ci\dl marriage? The "Art. 
 Org.," 18, Germ., year X, 3, 54, forbade it. 
 
 3 Bassibey, ov. cit. 1899 (Procedure); Peries, "Le Canoniste," 1892. 
 
 92
 
 Topic 2] 
 
 BETROTHALS 
 
 [§101 
 
 Topic 2. Betrothals 
 
 § 101. Barbarian Period. 
 § 102. The Same. Betrothal 
 sential. 
 
 Es- 
 
 § 103. Consent replaces Betrothal. 
 
 The Canon Law. 
 §§ 104, 105. Betrothal Restored. 
 
 §101. Barbarian Period. — The Betrothals (or promises of 
 marriage) which were in constant use, it seems, in the ancient 
 Roman Law,^ acquired a special importance under the Lower 
 Empire^ w^th the very widespread practice of the gift "ante 
 nuptias." They were accompanied by the giving of earnest-money, 
 of a ring,^ and sealed with a kiss ^ ("osculo inter veniente").^ If 
 they were broken before the "osculum," the gifts of the engaged 
 woman had to be restored in their entirety; after the "osculum" 
 she kept half of them. Thus they already amounted to half the 
 marriage.^ 
 
 In the Germanic Law marriage is split up into two acts: 1st, 
 the betrothals; 2d, the nuptials or marriage properly so called.^ 
 The betrothals ^ consisted, among the early Germans, as among 
 many primitive people, in the purchase ^ of the w^oman ^^ from her 
 
 1 And in the Jewish law: Freisen, 206, p. 1009; Mayer, "Rechte d. 
 Israeht.," 1866; Frankel, "IVIos. Talmud. Eher." 1860. 
 
 2 Meynial, op. cit. (effects since the "Lex JuUa"); Laroque, "Don entre 
 Fiances.," 1898; Lefebvre, op. cit. 
 
 3 Deloche, "Le Port des Anneaux" ("Mem. Ac. Inscr.," 35); Kornmann, 
 "De Annulo Triphci," 1756. CJ. Jewish Customs. Bruns, "Pontes," p. 390 
 (5th ed.); Hoffman, "Wien. Akad.," 1870, 825; Chaisemartin, "Prov.," 
 p. 288. 
 
 * Christian usage: Tertullian,"De'Ve\. Yirg.," c. 2 ("deosculosponsahtio"). 
 Cf. Rivier, "Dr. de Famille Remain," p. 135. 
 
 6 Tarnas.na, "Osculum Interveniens " (" R. Stor. Ital.," 1885, II, 259). 
 "L'oscle," in the documents of the Middle Ages means the gift itself: Girart 
 de Roussillon, pp. 8, 17, 35, ed. Meyer. See Du Cange. See post, "Increase 
 of Marriage Portion." Viollet, 421; mentioned in the eighteenth century at 
 Limoges. " Touraine," 13; Lattes, "Dir. Consuetud. Lomb.," 229. 
 
 6 Constantine, "Cod. Thdod.," 3, 5, 5; "Cod. Just.," 5, 3, 16; Esmein, 
 "M61anges," p. 416; "Wis.," 3, 1, 5; " Fuero Viejo de Castille," 5, 1, 4. 
 
 ^ Cf. Roman sale and delivery which follows it. 
 
 8 Koenigsivarter, "Et. hist. s. le D6vel. de la Soc," 1850, p. 19; TMvenin, 
 "N. R. H.," 1880, i^l; Schupfer, "Arch. Giur." 1868; Friedberg, § 1.53, n. 12; 
 Beauchet, "Form, et Dissol. du Mar. d. le Dr. Islandais," " N. R. H.," 1883; 
 Marignan, op. cit.; Grimm, "R. A.," 421, Schmid, "Ges. de Angels.," Table. 
 8ee"Ehe." 
 
 ' Criticism of this idea by Lefebvre, II, 354; Meynial, pp. 78, 90. Cf. 
 "Acad. 16g. Toulouse," 1900 ("Le mariage par Achat"); Viollet, "Burg.," 42, 
 2, Esmein, " N. R. H.," 1899, 613; Chaisemartin, "Prov.," p. 285. 
 
 1° Or of the "mundium" over the wife, according to a formula which does 
 
 93
 
 § 101] THE FAjMILY [Chap. I 
 
 father (or from her "mundoaldus").^ The price was fixed by the 
 parties,^ that is to say, by the relatives of the betrothed woman 
 and by her betrothed, assisted or not assisted by the members of 
 the family. In time a Customary or legal rate came to be estab- 
 lished,^ as in the case of "Wergeld." The pa^^l^ent of the price 
 was an indispensable condition of the betrothal; in conformity 
 with the ancient theory of obligation, it was a contract "in re." ^ 
 The engaged man negotiated with the relatives of the woman 
 without the latter necessarily being consulted.^ 
 
 From this primitive legislation progress was made, little by lit- 
 tle,^ to a law by means of which the betrothals did not disappear, 
 but were consummated in another way. The purchase price be- 
 came divided into two parts: a small sum paid for symbolic pur- 
 poses to the relatives of the woman ("sou et denier" among the 
 Franks),^ and a stipulated marriage portion to the woman herself.^ 
 The consent of the relatives, always necessary, was no longer 
 sufficient; ^ that of the woman was also required.^" The roles be- 
 not fundamentally differ from ours, but which brings out the difference be- 
 tween betrothals and the purchase of a slave: "Alam.," 54, 2, "Liut.," 127 
 ("mundium facere ex ea"). 
 
 1 Marriage by means of abduction is still possible as an exception in cer- 
 tain barbarian laws: "Sal.," 13, 10; "Alam.," 52, 51; "Burg.," 11; 
 "Add.," 1, 14; "Saxon.," 6; "Roth.," 190; "Liut.," 119; "Bar.," 8, 
 16; "Wis.," 3, 1, 2; Dargun, "Mutter.," 1883, 21, 111. See post, "Mar- 
 riage without Betrothals." " Z. V. R.," V, 334; XII, 129. 
 
 2 "Burg.," 34, 52; "Wis.," 3, 4, 2; "Roth.," 213; Val. de Lievre, " Laune- 
 gild," 1877, pp. 18, 130, 212, 277. 
 
 3 "Sax.," VI (3003.). 
 
 * " Wis.," 3, 4, 2 (Anc), " Roth.," 215; "Burg.," 52, 3. 
 
 ^ It is the same in the old Roman law: " Vit. Salaberg.," 6; Blade, "Contea 
 Pop. de la Gascogne," III, 23. Henry IV marries his daughter, the Princess 
 Triste-Mine, without consulting her; afterwards he breaks the marriage in 
 the same way as he had formed it. "Liut.," 12, 19. Infra, "Marriage 
 without Betrothals." 
 
 * The evolution has taken place more or less rapidly according to the people; 
 it has not always been very regular. From tliis there arise difficulties, the 
 details of which we cannot enter into. Cf. "Contract of Marriage." 
 
 ' Marriage of Clovis: FredSgaire, 18; Junghaus, "Hist, de Childerich et 
 Clodovech," p. 140 {Monod trans.); Greg. Tours, 9, 16; Rozihre, "Form.," 
 230 s: "Roth.," 178; "Liut.," VI, 119. — This fictitious price is sometimes 
 callea "arrha." Examples of betrothal contracts: Thevenin, "Textes," nos 
 4, 48 and 135; Ficker, "Forschungen," IV, 458, 505; Prampero, "Matrim. 
 e. Patti Dotali. Doc. Friul. de Sec. XIII," 1887. Persistence of these forms in 
 Swedish law: Lehr, "Grande Encycl.," see "Mariage"; Dareste; Beauchet. 
 
 * See "Contract of Marriage,'' Council of Aries, 524; Yves de Chartres, 
 "Part.," 8, e. 144; Labbe, "Cone," VIII, 633; Martene, "Thesaur.," I, 142 6; 
 Viollet, 356. 
 
 9 "Form. Tur.," 14; Lindenbr., 7; Rozihre, 231. Cf. Dig., 2, 7, 11. 
 
 10 "Roth.," 182, 195; "Liut.," 120; "Wis.," 3, 3, 1 and 3, 1, 2 (prohibition 
 
 forbidding relatives to marry a woman off against her wishes) ; Marculfe, 2, 
 
 16. 29; Greg. Tours, "de Vit. Patr.," 16, 20. "^Life of St. Bertha," D. Bouquet, 
 
 III, 622; "Praecept. Chlot.," 7: that no one shall wed a woman against 
 
 94
 
 Topic 2] BETROTHALS [§102 
 
 came reversed. The woman engaged herself/ the relatives being 
 limited to giving her the authority to do so. At the same time, 
 the contract, which was already " in esse," became express} Under 
 the Roman influence was introduced the custom of stating in 
 writing the delivery of the marriage portion by the husband to 
 the woman, and consequently the betrothals themselves, of which 
 this was a clause ("libellus dotis"). The "carta" could thus be 
 the only formal element of the contract, but the drawing up of a 
 writing never became a necessary condition of the formation of 
 the latter.^ 
 
 Already in certain barbarian laws one sees the woman thus 
 stepping into the foreground when it is a question of contracting 
 a marriage. Outside of economic considerations, which will be 
 pointed out later on, it is to the Roman customs and Christian 
 ideas ^ that this transformation should be attributed. 
 
 § 102. The Same. Betrothal Essential. — Whatever their form, 
 betrothals are indispensable.^ Such is their importance that it 
 
 her will by invoking the "auctoritasregia." "L. Rom. Wis."; "Cod. Th6od.," 
 3, 10, 1: Lining, 12, 581. 
 
 1 In the novel, "Perceforest," a young girl answers to the man who is 
 asldng for her consent: "Sir, what is the pleasure of my friends pleases me." 
 Dumeril, "Etudes d'Archeol." p. 40. "T. A. C, Norm.," 3. In Navarre the 
 girl may refuse two of the suitors who are offered to her by her father, but she 
 is compelled to accept the third one; Yanguas, "Dice, de las Antigued, de 
 Navarra," see "Matrimonis." "Le Fuero Real," 4, 10, 8, forbids the father 
 to marry off his daughter against her wishes: J. d'Ibelin, 171. 
 
 2 Cf. "N. R. H.," 1880,459; Val de Lihvre, "Launegild," 18, 130, 239. 
 Schupf., I, 116. Giving of a rmg in the guise of earnest-money: "Liut.," 
 5, 30;Girart de Roussillon, p. 17. Giving of the " Festuca " : Edict. Chilp., c. 7. 
 Real or simulated oath, "manuahs porrectio" ("Sikirheit") ; Ass. Jdrus., " C. d. 
 B.,"162; "Reg. Grim, du Chatelet," I, 151. Cf. "Contracts." — On the ring 
 and the earnest-money see : Sohm, "Eheschl.," 103, 162; Friedberg, 26; Stobbe, 
 " Z. R. G.," XIII, 228; Hofmann, " Wien. Akad.," 1870, 834; Grimm, 111, 432; 
 "Fragm. Juris Sicuh," ed. Merkel, 1856, p. 20. — Burgundy, exchange of food, 
 etc. — Giving of the money in the Catholic Uturgy (Rituals of the Middle 
 Ages: the fianc6 puts 13 deniers in a plate). Goncourt, "Hist, de Marie- 
 Antoinette," p. 22: in 1770 Louis XVI, who was at that time dauphin, 
 presented 13 pieces of gold to Marie Antoinette with his ring. The same 
 custom is found in Barrois, Dijon, and Bordeaux, according to Viollet, 419, 3. 
 Cf. "Etabl. de S*. Louis," I, 247: the number 13 is not arbitrary; in the old 
 Prankish system of coinage 13 " deniers were equal to one sou and one denier; 
 then the marriage took place by the sou and the denier." "Gr. Encycl.," 
 see "Anneau"; Brandileone, "Z. f. Kirch.," 1900, 311. 
 
 3 "Rib.," 37, 2; "Wis.," 3, 1, 9. Cf. "_Conc. Aries," 524. In the absence 
 of the setting of a marriage portion, marriage degenerated into concubinage: 
 Bruns, "Canon. Apost. et Cone," 1839, does not give this canon, which is 
 found in R^ginon, Yves, etc. Gratirm, D., 30, q. 5, c. 6 (ed. Richter). 
 
 * The church proclaims the principle that after a certain age, 15, 16, 
 17 years, one cannot be "desponsata against one's will: Wasserschleben, 
 "Bussordn."; "Cap. Thcod.," c. 18; " Poenit. Theod.," II, 12, 36; "Cone. 
 CompiSgne," 757, c VI. 
 
 * "Marriage without previous betrothals": Kohler, "Ehe mit u. Ohne 
 
 95
 
 § 102] THE F-\MILY [Chap. I 
 
 could even be maintained that the marriage related back to the 
 betrothals. It is certain that they carried with them several of 
 the effects of marriage. The duty of fidelity is the same between 
 persons who are engaged as between spouses.^ Of two consecu- 
 tive marriages contracted by the same person, the only one which 
 is valid is the one which is preceded by betrothals.^ But we have 
 here results which are rather penal than civil, and from which we 
 must not conclude, consequently, that marriage can be reduced 
 to a question of betrothals.^ This would be to run counter to 
 the most well-established facts. The "traditio puellse" or the 
 "nuptise" are clearly to be distinguished from the betrothals and 
 are added to them in order to make them complete;^ it seems that 
 
 Mimdium" ("Z. V. R.," 6, 321); Dargun, "Mutterrecht," pp. 23-43. Infra, 
 "Abduction." "Consent of the Relatives." — (A) The father who kept his 
 "mundium over the woman who had been taken away was authorized to 
 take her back from her husband, although she had gone with the latter will- 
 ingly, and thus break the first marriage: Heusler, II, 277. But the_ mar- 
 riage existed, nevertheless, and produced certain of its effects (repression of 
 the adultery of the wUe, "Liut.," 139). The husband does not acquire the 
 "mundium;" the wife loses the right to inherit from her parents and cannot 
 have the benefit of the rights of widows: "Liut.," 5, 114, 119; "Wis.," 3, 
 2, 8; "Thur.," 47; "Roth.," 188-218; "Liut.," 126. If the abductor pays 
 a composition to the relatives, Zeumer, "Form.," 277, the marriage is 
 validated retroactively: "Burg.," 12, 3; 34, 2; 525 (pecuniary penalties) 
 Greg. Tours^ 9, 33. (B) In the law of the second formation nulhty of the mar- 
 riage and illegitimacy of the children: Greg. Tours, 9. 33; "Alam.," 54 
 "Bai.," 8, 16; "Sal.," 71, 1; "Wis.," 3, 1, 2; "Capitul.,^' 3, 413; Schroeder, 
 "Gesch. d. Ehel. g.," I, 8. To this inferior type of union, which is a trace of 
 the marriage by abduction, we can liken marriage "sine manu" at Rome: 
 Illegitimate Children; Glasson, III, 19. 
 
 1 Cf. Dig., 48, 5, 13, 3; "Cod. Just.," 9, 9, 7 (from which it follows that 
 it is only incumbent upon the engaged woman); "Rothar.," 179 (death of 
 the adulterous engaged woman); cf. 189, 211 et seq.; "Wis.," 3, 4, 2 (Ant.): 
 giving up of the fiancee and her accomplice to the "sponsus," who is allowed 
 to chastise her. — It does not follow from the fact that penalties are pro- 
 nounced against the unfaitliful fiancee as against the married woman that 
 betrothals produced all the effects of marriage; thus the "pretium" is only 
 finally acquired by marriage itself: "Rothar.," 216. 
 
 2 Pardessus, p. 667; "Alam.," 51, 52; "Bai.," 7, 16. These texts merely 
 establish the existence of severe penalties against abductors and declare the 
 nullity of a marriage which follows upon abduction. 
 
 ^ Controversy between Sohm, who has brought out to the point of exag- 
 geration the importance of betrothals, and Friedberg. To the authors cited 
 above add: Kohler, "Z. V. R.," 3, 354. — /?)/ra, "Children of Engaged 
 Persons"; Chaisemartin, p. 289. 
 
 * Marriage of Clovis, "Fredeg.," 18 and 20: "sponsalio" by the "legati" 
 of Clovis, offering the "sou" and the "denier" to Gondebaud; "traditio 
 puellae " from these "legati " at the sittings of the court of Chalons. " Tradere 
 per baculum," TMvenin, no. 135; "L. Rom. Cur.," 3, 1, 3; "Sal.," 46: mar- 
 riage of widows at the "mallus." Was this a practice which was obligatory 
 in the case of ordinary marriage? There is notliing to prove this. Mar- 
 riage of St. Bertha (D. Bouquet, III, 622): public deUvery, but not to the 
 "mallus"; Marculfe, 2, 15, 16; "Sal.," 14, 6: "puella quae druchte ducitur," 
 that is to say, "per nuptiatores " {cf. " trustis ") . Germanic Customs : " Braut- 
 
 96
 
 Topic 2] BETROTHALS [§ 103 
 
 they consisted in a sort of "deductio in domum mariti," a survival 
 of the primitive abduction. Neither the necessity of the Hfe in 
 common, at least, immediately, nor the exercise of the "mundium," 
 resulted from the betrothals; also it was easier to break them than 
 to dissolve the marriage. But, as a general thing, the engaged 
 man had the right to compel her relatives to give up the engaged 
 woman to him. It was a positive obligation for them, just as 
 he was bound to marry the woman who had been promised him.^ 
 § 103. Consent replaces Betrothal. The Canon Law. — The 
 Church, borrowing from the Roman law the well-known formula, 
 Nuptias non concubitus sed consensus facit," which harmonizes 
 with its realistic and mystical conception of marriage, held it as con- 
 summated by the mere exchange of consent between the husband 
 and wife. Thenceforth the betrothals ceased to be the necessary 
 preliminary to marriage, and were even confused with the latter.^ 
 When they did take place, a distinction was made according as 
 the spouses had manifested their intention to take one another as 
 husband and wife immediately or only in the future.^ (a) In the 
 first case, the betrothals spoken by words "in prsesenti" ("Spon- 
 salia per verba de praesenti") were equivalent to marriage, although 
 
 fahrt," "Brautlauf," Grimm, p. 733; Dargun, "Mutterrecht," pp. 111-138. 
 Schrors, "Hincmar," see " Reims," 1884, p. 212. Brandileone maintsdns ("Code 
 Dipl. Lagob.," n. 74; "L. Rom. Chur.," 3, 1, 3; "Form. s. Roth.," 182, 195) 
 that in Italy marriage took place before a public officer ("sculdasius," "judex," 
 notary). Custom of Gaete (sixteenth century): exchange of consent "interro- 
 gante judice," and the following day " interrpgante sacerdote": Salvioli, 174. 
 
 1 An unjustified rupture carries with it the payment of a composition, the 
 loss of the earnest-money, the restitution of the "pretium nuptiale" and the 
 payment of a penalty previously provided for. See " Repudiation or Divorce" ; 
 "Burg.," 34; "Sal.," 70; "Bai.," 7, 15; "Alam.," 53; "Roth.," 179-192; 
 "Liut.," 5, 30; Thevenin, "Textes," no. 135; Greg. Tours, 4, 47; 9, 32; 10, 
 16; Sjorgren, "Conventionalstrafe," 1899. — Restitution of the "meta" to 
 the betrothed man if the betrothed woman dies before the marriage, "Roth. "; 
 and of the double "meta" if the relatives of the betrothed woman are to blame 
 in any way. In case of the abduction of the betrothed woman the abductor 
 jn\h<t pay a composition to the betrothed man and another composition to her 
 parents: ".Ethelb," 31. 
 
 2 A rather common usage of having the betrothals blessed by the priest. 
 Esmein, I, 102, shows why the Church preserved the old practice: betrothals 
 were a general usage, which was in harmony wath the organization of the 
 family: Hericourt, "Lois Eccl.," "G," 5; Durand dc Maillane, "Inst.," IV, 
 1273; "Rec. des Actes du Clerge," V, 646. Sometimes an abuse in the case 
 of solemn betrothals, the people seeing in them a true marriage. Statutes of 
 Aleth, 4, 19. 
 
 ^ Rolandus is still unaware of this distinction. "Summa Coloniensis," 
 in Scheurl, "Eheschl.," 166 (GalHcan Church); Dig. X,44, 3; "Comp.," 1,4, 
 5. Yves de Chartres holds that betrothals accompanied by the oath were the 
 equivalent of marriage and were no more capable of being dissolved than was 
 the latter (rf. Fulhert, "Ep.," 41) : Foiirnier,'\\i. G. H.," 1898, p. 97. Accord- 
 ing to Gratian, the marriage is simply "iuitiatum" by virtue of the "spon- 
 
 97
 
 § 103] THE F.UIILY [Chap. I 
 
 they might not be surrounded with any pubhcity or accompanied 
 by any rehgious ceremony, (h) The betrothals spoken by words 
 "de futuro" (" Sponsalia per verba de future ") or simply promises 
 of marriage, obliged the engaged parties to proceed with the mar- 
 riage and were transformed into a marriage by the mutual giv- 
 ing of consent or by the "copula carnalis," which is but a form 
 of it.i 
 
 § 104. Betrothal Restored. — The Council of Trent repudiated 
 marriage formed simply by consent, and consequently with be- 
 trothals formed by words "de prsesenti." It left in existence the 
 promises of marriage with the effect of meaning for the engaged 
 parties a reciprocal obligation to marry one another.^ They 
 ordinarily constituted the first clause of the marriage contract of 
 the spouses.^ Before and after the Council of Trent the betrothals 
 preserved the character of a contract of mutual agreement; ^ the 
 Ordinance of 1639 ordered, it is true, that they should be expressed 
 in writing, but this Ordinance only related to the proof of the act.^ 
 In order that the betrothals should exist, the reciprocal consent 
 of the future spouses was required on principle; but the rules as 
 regards capacity greatly reduced the force of this principle. Who- 
 soever was capable of marrying, or could decently hope to do so, 
 
 salia"; it is only "ratum" by virtue of the "copula": C, 34, c. 27, q. 2. 
 At the end of the twelftli century the Roman Church adopted the distinc- 
 tion of P. Lombard, "Sent.," 4, 27, 1, between betrothals "in presenti" and 
 "de futuro"; Dig. X, 4, 1, 31; 4, 4, 3; 4, 2, 14. Marriage is "initiatum," 
 by means of the betrothals; "ratum," by means of the consent; and "con- 
 summatum," by means of the "copula." 
 
 1 Theory of the "matrimonia prsesumpta" (completely abolished by Leo 
 XIII, Dec. 15, 1892): Dig. X, 4, 1, 30. 
 
 2 The importance which was given to the solemnity of marriage ought to 
 have caused a disappearance of betrothals. The "copula carnalis," at least, 
 no longer changed them into marriage: Durand de Maillane, see "Diet.," 
 and authors cited. 
 
 5 Out of date motives given by our old authors: (a) they served to prevent 
 people from rushing too headlong into marriage; but the delay which sepa- 
 rates them from the latter can be very short; (b) impediments may arise 
 during this delay; but it would be rather the publication that would give 
 rise to them; (c) the reason given by St. Augustine is strictly modern: "Con- 
 fess.," 8, 3. C, 27, q. 2, c. 28. 
 
 * Custom of accompanying the exchange of consent with the gi\ang of 
 some object, — for example, a piece of money, a fruit or a flower. Ex. in 
 "Invent des Archiv. du Dep. de I'Aube," Scries G, 1896, p. 429: a man and 
 a woman become engaged to a tune played on a flute! P. 309: a woman who 
 receives a pin as a pledge of marriage has her doubts upon the validity of be- 
 trothals contracted in this manner. 
 
 ^ It was customary to set out at one and the same time in the same deed 
 (contract of marriage) the consent of the two betrothed parties and the pe- 
 cuniary agreements which were made with a view to the proposed marriage: 
 Cayron, "Le Practicien Fr.," 1665, p. 343. Other examples in Viollet, 
 p. 423. 
 
 98
 
 Topic 2] BETROTHALS [§105 
 
 was capable of becoming engaged ("habilis ad matrimonium, 
 habilis ad sponsalia"). Those who had not yet attained puberty 
 could validly become engaged after the age of seven years, the age 
 of discretion, on condition that they had the authority of their 
 relatives or guardians.^ The relatives themselves betrothed their 
 children who were of tender age or absent, one may guess with 
 what motives.^ The tie formed by the betrothals was not a very 
 firm one. Its rupture took place: (a) "mutuo dissensu"; (b) by 
 the changes which took place in one of the spouses (disgrace, 
 heresy, leprosy, becoming notoriously rich or poor), a serious in- 
 sult (boasting of the engaged man, absence), an impediment to 
 the marriage taking place after consummation of the betrothals 
 (intercourse between an engaged person and a relative of the 
 other) vows or entering into holy orders, expiration of a certain 
 agreed time, marriage of one of the parties, refusal of a child who 
 has arrived at the age of puberty to ratify the promise made in 
 his name by his relatives.^ 
 
 § 105. The Same. — Valid betrothals carried with them an 
 impediment to the marriage of each of the engaged parties with 
 the near relatives of the other. The obligation to marry, which 
 became incumbent upon the engaged parties as a result of this, was 
 enforced by means of ecclesiastical censure. An action could be 
 brought before the ecclesiastical judge against the recalcitrant 
 betrothed, and he was adjudged to be "in sponsum" or "spon- 
 sam." ^ These severe measures tallied very well with the old 
 laws, according to which the betrothals were scarcely to be dis- 
 tinguished from the marriage itself. They were rejected at the 
 beginning of the seventeenth century by the jurisprudence of the 
 
 1 Mazure, "Fors de B(5arn," p. 177; Gratian, C, 31, q. 2 and 3. Varia- 
 tions of the canon law, wliich finally no longer demands this authorization: 
 Esmein, I, 159. 
 
 2 Esmein, I, 161. Gratian, C, 21, q. 2, c. 2; C, 30, q. 2, c. 1; "in VI," 4, 2, 1. 
 These betrothals, excepting in very early times, were only binding upon 
 children if they were expressly or tacitly ratified after they had attained the 
 age of puberty: Beautemps-Beaupre, "Cout. do I'Anjou," II, 263. But, 
 although the law was such, as a matter of fact betrothals formed in this way 
 were often forced upon the children, whose consent had been anticipated. It 
 was all too often the same with marriage as it was with regard to entering into 
 religious orders. Customs, which were .stronger than the laws, allowed only 
 a very limited freedom to the spouses. Cf. Goncourt, "La Femme au 
 VHP s.," p. 22 (account of the marriage of Mme. d'Houdetot) ; Iscim- 
 bert, VII, 59 (1403); B.de Xivrey, "Lettres de Henri IV," 4, 659; Welschinger, 
 "Divorce de Napoldon," p. 159. Infra, "Puberty"; "Arch. f. Kirch.," 1895, 
 369. 
 
 ^ Enumeration in the verses attributed to Eustache du Bellay. 
 
 ^ Dig. X, 4, 1, 10, 17: censures, excommunication, imprisonment. 
 
 99
 
 § 105] THE FA^^IILY [Chap. I 
 
 Parliaments;^ the ecclesiastical judge had only power to declare 
 that the betrothals were dissolved and to inflict a light penance 
 upon the guilty betrothed. But the other betrothed had the 
 right of addressing the secular judge in order to obtain dam- 
 ages."^ The penal clause, which might have been abused in 
 order to force people into marriage, was always forbidden.^ This 
 was not so in the case of the earnest-money, which was often given 
 by one betrothed to the other; this was too small a sum ordina- 
 rily to have any restraining effect upon marriage; it was tolerated 
 by making the betrothed who was in the wrong lose it. — The 
 usage of betrothals has lost all importance since the Revolution; 
 the Civil Code does not even make any mention of them. 
 
 1 Loysel, 103; "Arrets Dep.," 1606; Le Ridant, "Code Matr."; P. de 
 Combes, "Proced. en I'ofEc. de Paris"; Fevret, "Abus," 5, 1, 20; Pothier, 51. 
 
 2 In this there was seen, not an obhgation "ex deUcto," but an obhgation 
 to carry out, which resolved itself into damages: this was sometimes an in- 
 direct means of compulsion, and one which was almost as efficacious as the 
 punishments of the Church. Cf. in English law, "Breach of Promise." On 
 the estimation of damages, see the authors cited in the preceding note. " Law 
 Quart. Rev.," 1894, X, 135. 
 
 3 "Cod. Just.,""DeSpons.,"3; Dig. X, 4, 1, 29; "Et. deSt. Louis," I, 124. 
 In Burgundy the penal clause is admitted (1350) : Beaum., 34, 62; P. de Font., 
 15, 32; Launay, "Inst.," 2, 4; Hostiensis, p. 341. 
 
 100
 
 Topic 3] 
 
 CELEBRATION OF MARRL\GE 
 
 [§10G 
 
 Topic 3. Celebration of Marriage 
 
 .106. Canon Law Previous to the 
 
 Council of Trent 
 107. Council of Trent. 
 
 § lOS. Civil Legislation. 
 
 § 109. Marriage of Protestants. 
 
 § 110. Revolutionary Law. 
 
 § 106. Canon Law Previous to the Council of Trent. — While 
 considering marriage as a sacrament, the Church had not im- 
 posed upon the faithful any particular form for its celebration.^ 
 It referred for its carrying out to the civil law, and especially to 
 the Roman laws.^ It is thus that it had interpreted the Roman 
 maxim, "Nuptias non concubitus sed consensus facit," in this 
 sense, that marriage was formed simply by the exchanging of 
 consent between the spouses.^ The act thus found itself simpli- 
 fied and, if one may say so, reduced to its most simple expression. 
 This doctrine did not prevail without some difficulty; not only did 
 it run contrary to the Germanic system of the betrothals, but it 
 struck at a maxim which perhaps issued from the Germanic cus- 
 toms concerning the "traditio puellse," perhaps from the popular 
 conception of marriage, the maxim : " Matrimonium desponsatione 
 initiatur, commixtione perficitur." ^ Marriage is only perfected 
 by its consummation,^ so much so that in later law ^ a marriage 
 
 1 Marriage with the intervention of the "Perorator" (Italy, late Middle 
 Ages), who established the consent of the parties and the drawing up of the 
 deed, and declared that the spouses were united. How are we to account for 
 the part played by this personage? Civil marriage? Friedberg, "Eheschl.," 
 5; Sohm, "Trauung,"2; Thaner, "Z. f. Kirch.," 1881, p. 209; Brandileone, 
 op. cit.; Ruffini, "Per la Storia d. Dir. Matr.," p. 26. See: Marriage estab- 
 lished by notarial deed; Friedberg, "D. zei. f. Kirch.," IV, 354; Friedberg, 
 "Handb. d. Kirch.," § 153; Patetta, "Studi Senesi," 1896, p. 3. 
 
 2 Saint P. Daniien, Yves de Chartres, often cite the Roman texts : P. Four- 
 nier, "Yves de Chartres" (" R. G. H.," 1898, p. 89); "Z. f. Kirch.," 1889, 269. 
 
 ' Joseph and the Virgin. In this sense the Fathers of the Church, — Igna- 
 tius, Chrysostom, Ambrose, Augustine, — cited in Gratian, C. 27, q. 1, c. 1 
 et seq. 
 
 * Cf. "Genesis," ii, 24; coarse usages: Agde, 39. 
 
 6 Freisen, p. 92, 206 (contra, 2d cd.); Heusler, "Inst.," II, 282; Ficker, 
 "Mittheil. Inst. f. Oesterr. Gesch.," 188, 2, 70; Hormann, op. dt.', Sehling, 
 p. 174; Scherer, "Arch. f. Kath. Kirch.," 1891, p. 353; Fournier, "Yves," 
 p. 91. — As we see, there are as to the formation of marriage at least three 
 distinct tendencies; from this there arise in science three contrasting theories: 
 1st, theory of the betrothals; 2d, theory of the "copula;" 3d, theory of the 
 "consensus"; Freiseri, "Arch. f. Kath. Kirch.," 67, 369. 
 
 * Acquirement of the marriage portion, Benumanoir, 13, 25 ("Compaignie 
 carnele"); Loysel, 140. Cf. "Bretagne," 4.50 (putting the foot into bed; 
 German "Beilager"); Bourges, "Mar.," 1 (prohibition of gifts between spouses 
 
 101 
 
 LIBRARY 
 
 UNIVERSiTY (7 C •liFORNiA
 
 § 106] THE F.\MILY [Chap. I 
 
 can only be entirely dissolved when it has been consummated. 
 Then only, they say, does it represent the union of Christ and the 
 Church.^ So long as there has not been any consummation it can 
 be broken by the entry into religious orders of one of the spouses,^ 
 and the pope has authority to dissolve it.^ Anomalies for the 
 jurists, survivals for the historian.^ The later canon law, as it 
 was fixed by a celebrated edict of Nicholas I for the Bulgarians 
 in 866,^ depended exclusively upon the consent of the spouses.^ 
 The Germanic Customs lost all legal importance, although in many 
 localities in Germany the consummation of marriage was sym- 
 bolized during the Middle Ages by the ceremony of the "Beilager" 
 or going to bed of the spouses in the presence of witnesses.^ The 
 theory of consent had never sufficient strength to relegate to 
 the background the nuptial benediction ^ by the priest, although 
 this pious custom dated back to the time of the apostles.^ It was 
 
 only after consummation); "L. Sax.," 8 (birth of a son); Swedish law: 
 "Ascencio thori," banquet; Grimm, 435. 
 
 1 If the marriage has not been consummated the wife who survives is not 
 a widow. 
 
 2 Gratian, c. 27, q. 2. For example, St. Macaire and St. Alexis. Various 
 explanations: cf. "Commentaries" of Bernard de Parme, Hostiensis, Panor- 
 mitanus. Entering into the reUgious profession does not break the "matri- 
 monium ratum et consummatum." 
 
 ^ By reason of the fullness of his legislative power. A very commodious 
 expedient, and one which is frequently made use of to conceal divorce. 
 
 4 Cf. Dig. X, 4, 13, 2 ("affinitas superveniens"); Dig. X, 4, 8, 3 ("lepra 
 superveniens"); 4, 19, 1 and 7; 4, 20, 1; 4, 1, 19. 
 
 ^ "Secundum leges," Labbe, VIII, 518, Art. 3 (usages of the Roman 
 Church); Gratian, "C," 27, q. 2, 1 and 2; Councils of Chalons, 813; Tribur, 
 893; cf. Trosh, 909 ("dotatam et a parentibus traditam per benedictionem 
 sacerdotum accipiat"; no annulment) ; "Pseudo Isid.," ed. Hinschius, p. 87; 
 "Faux Capit.," 7, 463, 179; Glasson, "Et. s. le Consent, des Epoux au 
 Manage." 
 
 8 Examples in Chronicles, Poems, Gautier, "Chevalerie," p. 354. But 
 cf. contra "Betrothals," "Consent of the Relatives"; Jostice, pp. 181, 188. 
 
 ^ Cf. "Marriage by Abduction": Weinhold, "Deut. Frauen," I, 399; Ha- 
 nauer; "Sachsensp. Landr.," I, 45, 1; Stryk, "Usus Mod. Pandect," 23, 2, 
 21. If the husband dies before the official retiring together, the wife does 
 not attain the pecuniary advantages which result for her from the marriage 
 (dower, rights of inlieritance). — The very widespread custom in France 
 of taking a bowl of milk, soup, a roast, hot wine, etc., to the newly married 
 couple when they were in the marriage bed, undoubtedly had no other origin: 
 " F. de B^arn," 267; Pineau, " Folk-Lore du Poitou," p. 488 ; Sebillot, " Contes 
 Popul. de la Haute-Bretagne," p. 136. This last exponent of the folk-lore 
 estabUshes that there are locahties in which the newly married couple cohabit 
 only upon the second day. Cf. as to this: Fournel, "Adultere," p. 52; "Ord." 
 1336, 1338; "Arr." 1439 (prohibition forbidding the Bishop of Amiens to 
 demand anything from newly married people for having slept together the 
 first three nights of the marriage). 
 
 8 Salvioli, "Arch. Giur.," 1894, p. 173; Brandileone, "Ac. Sc. Nap.," 27 
 269; "Riv. p. sc. Giur.," 18, 1. Cf. Ruffini, op. cit.; Patetta, "Studi Sen.," 
 1896, 3. 
 
 ^ The idea of drawing down celestial favors upon the act which is being 
 
 102
 
 Topic 3] CELEBRATION OF MARRIAGE [§106 
 
 not classified among the essential conditions of marriage.^ The 
 Church limited itself to recommending it, and to the infliction 
 of penances upon those who did not subject themselves to it.^ 
 Thenceforth there were, in fact, two sorts of marriages: the one 
 official to a certain extent, solemn, public,^ "in facie Ecclesise," ^ 
 the other a private act, secret, a marriage by simple consent," or 
 what was the same tiling, the "sponsalia per verba de praesenti." 
 
 carried out: Duchesne, "Orig. du Culte Chret.," c. 14; Terlullian, "Ad 
 Uxor.," 2, 9. Rescript of Nicholas I to the Bulgarians, 866: "sponsalia," 
 "subarratio," "hbellus dotis," mass and benediction of the spouses while 
 the veil ("palhum," "paile") is extended over them, crowning them as 
 they come out of church. This is the first text which describes in detail the 
 Christian rites appertaining to marriage, and it is remarkable to see that they 
 so closely resemble the pagan rites. 
 
 1 Gratian, "C," 35, q. 6, c. 2; Tertullian, "De Pudic," 4. Even in the 
 thirteenth century, second marriages are not blessed. Council of Lateran, 
 1215, c. 51; Paris, 1429; Narbonne, 1551, etc. BoutilUer sees in them only 
 an "honorable thing," II, 8; Viollet, p. 425. 
 
 2 Cf. "Appointment of Marriage Portion." Council of Aries, 524; Gratian, 
 C, 30, q. 5, c. 6; "Faux Capit.," 7, 463. Germanic Marriage Portion. 
 At Rome the " instrumentum dotale" served to distinguish marriage from 
 concubinage and as a proof of the " nuptiae " : " Cod. Just.," 5, 4, 22 s. Li\nng 
 together, also, was a presumption of marriage between persons of equal 
 station in life, and later on between persons who were free: "Nov." 74, 4, 
 and 117, 4; "Wis.," 3, 1, 9. — Marculfe, 2, 15; "App.," 37; "Sirm.," 14, etc; 
 "L. Rib.," 37. See iy^fra "Concubinage." 
 
 ' The Capitularies prescribed it ("Cap.," 755, c. 15) so as to prevent 
 incestuous and irregular marriages ("Cap.," 802, c. 35; 804, etc.; "F. Capit.," 
 6, 408; 7, 169, 463), but not under penalty of nullity (cf. however Pothier, IV, 
 3, 2); the penalties which were decreed fell into disuse. Leo, the philosopher, 
 in 815, "Nov.," 89, pronounced their nullity. Cf. as to Sicily, "Ass. Nor- 
 mande" of 1140; "Const. Sic," 3, 20. 
 
 * A thing which very clearly shows the auxiliary character of the inter- 
 vention of the priest is that the nuptial benediction was not given in the in- 
 terior of the church before the altar, but "ad valvas, ad fores ecclesiae," at 
 the door of the church. At least, such was the general custom during rather 
 a long period. The priest asked the spouses if they consented to take each 
 other as husband and wdfe, and, upon their replying in the affirmative, gave 
 them his blessing: Dareste, "Etudes," p. 288 (Scandinavian law). 
 
 6 Erasmus, "De Matr.," 67: the marriage may be concluded "nutu," 
 "litteris," "signo" (giving of a half of a piece of money), "facto," "silentio" 
 (the relatives come to an agreement before the future spouses, who remain 
 silent). Marriage through an agent was thenceforth looked upon as being 
 lawful. Cf. Michelet, "Orig. du Dr. Fr.," pp. 27, 32; Hanaver, "Mem. Acad. 
 Stanislas," 1893, 260: the agent lies down with the engaged woman com- 
 pletely armed, with his right arm and his right foot bare, and a naked sword 
 between them (official "Beilager"). Marriage by an agent of Frederick III 
 and Eleanor of Portugal, and of Max-imilian and Ann of Brittany. Other 
 examples in 1477, 1501 and 1737 (at Luneville): "Close du Decret X," 3, 34, 
 14 (cf. 23, 2, 5); "in VI, de procur. in f. Acta S. Sedis," 16, 10; Labou- 
 laye, "Cond. d. f.," p. 133; Lagrbze, "Navarre," II, 183 (in 1336, 1384). 
 After the Council of Trent the celebration of a marriage through an agent 
 has no meaning, for it does not do away with the necessity of another cele- 
 bration taking place between the parties themselves: Welschinger, "Le Div. 
 de Napoleon," p. 158. At the same time, the doctors disagreed upon this 
 subject: Pothier, no. 367; Dur. de Maillane, "Diet, de Dr. Canon," see 
 "Procuration." 
 
 103
 
 § 106] THE FAJVIILY [Chap. I 
 
 It is scarcely necessary to point out the serious inconveniences 
 which resulted from the concealment of marriage : ^ bigamy 
 was frequent, the condition of the parties uncertain; one could 
 always contest it, as the status had not been proven.^ In the 
 
 1 This was remedied to a certain extent by Banns or Publication of 
 Marriage: Viollet, p. 372; Richter, §§ 267, 281; Pothier, no. 64; Durand de 
 MailL, see "Diet.," Merlin, Ferribre, "R. h. Dr.," 13, 563. Precedents: 
 Tertullian, "De Pudic," 4; Ignat., "DeMonog.," 11; "AdUx.,"2, "InFine"; 
 "Ep. ad Polyc." The forbidding of incestuous or irregular marriages must 
 have contributed towards the maintenance of the custom of having the pro- 
 posed marriages of the faithful known beforehand. Penalty of a royal bann 
 pronounced by the Capitularies: 802, 35; "F. Capit.," 2, 130; 327, 408; 
 
 3, 179, 389, 463; Gratian, C, 30, q. 5, c. 1. From this arose publications. 
 In the twelfth century it became a custom of the Gallican Church: Dig. X, 4, 
 1, 27. "Banna" or " denunciationes " published by the priest. Viollet, p. 430: 
 at the beginning of the twelfth century at Theronanne, where they were 
 published in 1150; Eudes de Sully organized them in Paris in 1198. The 
 Council of Lateran, 1215, made them general: Dig. X, 4, 3, 3. Sanction: a 
 sin for the spouses or the priest and no reputed marriage. The Council of 
 Trent, s. 24, c. 1, renews these prescriptions with the object of avoiding hidden 
 and incestuous marriages (3 publications during 3 successive hohdays). 
 Dispensation if there is any risk of the marriage being maliciously prevented : 
 "Ord. Blois," 1579, 40. Analogous provisions: publication at the time of the 
 sermon in the parish church of each one of the parties and their fathers and 
 mothers. The interval between the holidays varies in the different dioceses 
 (Orleans: 1 day). The Ordinance of Blois only allowed the bishop to dis- 
 pense with two publications, and then only for an urgent and lawful need 
 (opposition offered through malice, pregnancy of the engaged woman); but 
 they often went so far as to dispense with the three pubhcations, and that 
 without cause. As to the remunerations demanded by the clergy, cf. 
 Fevret, "Abus," 5, 2, 32. — The principal effect of banns was to facilitate ob- 
 jections. Before they were published the parish priest had to make sure 
 of the consent of the parties, and, if need be. have brought to him the consent 
 of the fathers and mothers or guardians and custodians. An Order of June 15, 
 1691, provided for the keeping of a register to contain these objections and 
 renunciations. Cf. Civil Code, 67. — Lack of publication: the priest is 
 subjected to canonic penalties and a fine; the marriage is not void ac- 
 cording to the canon law (dispensations); French jurisprudence itself at first 
 held that they were void, but made this apply only after the seventeenth 
 century to the marriages of minors that were concluded without the consent 
 of their relatives: De Verdelin, "Analyse des . . . Memoires du Clerge," 
 1821, I, 419; Louet, M, 6; Denisart, see "Ban." 
 
 * The canon law had made the proof of marriage easy; just as it had its 
 formation: witnesses, authenticated or private writings, possession of status, 
 registers. French legislation showed itself to be more severe. — Witnesses: 
 two are sufficient for the proof to be absolute (even relatives). It was sufficient 
 if they had seen the giving of the ring and had taken part in the customary 
 celebration. The Ordinance of Blois, in providing for the keeping of reg- 
 isters, wished to set aside the proof by means of witnesses ; and the Ordi- 
 nances of 1629, 40, and 1639 logically came to the conclusion that, as a general 
 thing, marriage could not be proved excepting by means of the registers 
 (this being contrary to the canon law: Pnnorm. on Dig. X, 2, 18, 13). A 
 private '^\Titing was also found to be set aside, as a general rule. The notarial 
 deed, which was formerly in use (cf. Italy upon this point) (Order of Feb. 
 
 4, 1576), was forbidden by the Ordinance of Blois, 1579, 44. The contract of 
 marriage did not prove the marriage: Dig. X, 2, 33, 11. Difficulties as 
 to possession of status, its elements ("nomen," "tractatus," "fama") and 
 their respective forms: "Decis. Capell. Tolos.," q. 173. — The declaration 
 ia not here a proof (c/., however, as to "copula" following "sponsalia de 
 
 104
 
 Topic 3] CELEBRATION OF MARRIAGE [§ 107 
 
 same way, nothing was easier than to break the conjugal tie. 
 Very often this depended upon the spouses themselves, or upon 
 one of them. The evils of this practice to-day close our eyes 
 to its beneficial side, and to that which caused it to remain in ex- 
 istence four centuries. It alone could assure the full independence 
 of the individual (especially of the woman) in the most serious 
 act of life, and at a moment when everything seemed to conspire 
 to take it away: the sovereign disposing of the hand of his 
 daughters to his subjects, the lord imposing on his vassal until 
 the age of sixty the service of marriage and forcibly marrying 
 his serfs, and finally and especially the family, which, having 
 little regard for individual likes and suitableness, only too often 
 made of the conjugal union a bargain in its own interests. The 
 only means of removing the individual from these influences has 
 been the recognizing of marriage contracted without formalities 
 and without publicity. It is this wliich accounts for the fact that 
 in coimtries of exaggerated individualism, as among the Anglo- 
 Saxons, it has been possible to uphold marriages "solo consensu" 
 for so long a time. The marriages in Scotland near the English 
 frontier, before the blacksmith of Gretna Green, only ceased in 
 1848.^ In our day, and from the time when freedom of marriages 
 was assured, solemnities and publicity have merely afforded addi- 
 tional advantages. 
 
 § 107. Council of Trent.^ — (Session 24, 1563.) ^ The abuses 
 resulting from secret marriages were such, however, that the 
 Church at last decided, not without some hesitation,^ to break 
 with its secular discipline.^ The Council declared that the spouses 
 
 future")- — Clandestine marriages proved by witnesses, etc., could not pre- 
 vail against a later marriage which was public. — As to exceptional proof by 
 means of witnesses, etc., cf. Polhier, ed. Bug., vol. X, p. 79, C. civ., 46. Post, 
 "Certificates of Civil Status." 
 
 1 The English evaded their law, which demanded the presence of a priest 
 (17.53) by being married at Gretna Green: the blacksmith served as a witness 
 and the register which he kept facilitated proof of the deed. Viollct, p. 428, 
 n. 1 : the parish priest of Lay-Saint-Remy in Lorraine is the counterpart of 
 the blacksmith of Gretna Green. 
 
 2 "Hist, du Concile," by Sarpi and Pallavicini; SchuUe, 64; Friedberg, 107; 
 Sohm, 187; Salis, "Pubhc. d. Trident. R.," 1888; Druffel, "Mon. Trid., "1884. 
 
 ' Pius IV reserved to himself alone the right to interpret decrees, and very 
 soon this right passed to the Congregation of Cardinals of the Council wliich 
 was created in 1564. The jurisprudence of this body was an authority upon 
 the subject of marriage. Choice of its resolutions in SchuUe and Richter, 1853 
 (ed. of the Council), "Jur. Literat.," 1896, 7, 16. 
 
 * Controversy, according to Paolo Harpi, between the Dean of the Sor- 
 bonne, Maillard, who was hostile to the reform, and the Jesuit, Salmcron. 
 Opposition of 56 prelates when the vote was cast. 
 
 5 It was said formerly: "to drink, to eat, and to sleep together, — this 
 
 105
 
 § 107] THE FAMILY [Chap. I 
 
 were incapable ^ of marrying one another excepting in the pres- 
 ence of the priest of their parish ^ ("proprius sacerdos") ^ and of 
 two or three witnesses; every marriage celebrated in another way 
 was branded as a nulhty. Thus marriage became a solemn and 
 public contract; ^ nevertheless, it was always the contracting 
 parties, and not the priests, who were looked upon as the min- 
 isters of the sacrament. After having asked the parties if they 
 consent to take one another as husband and wife, it is true that 
 the priest should say: "Ego vos in matrimonium conjungo"; but 
 this is not a compulsory form ; '^ it is only the presence of the priest 
 which is required under penalty of nullity. Such is the doctrine 
 of the canonists, and as a consequence the priest finds himself 
 playing no other part in the marriage than that of a witness quali- 
 fied as " spectabilis." In reality, from the moment when his 
 presence becomes indispensable, when no one can take his place, 
 he is rather a party to the act than a spectator; it is said: " the 
 spouses marry one another before the priest " ; the expression con- 
 is marriage, it seems to me." After Trent it was necessary to add, " but the 
 Church must have sanctioned it." 
 
 1 They did not dare directly to annul a marriage wliich was not con- 
 tracted in the presence of the priest, because it was a tradition that his pres- 
 ence was only required "ad honestatem." This object was attained by the 
 creation of a new disabihty. Previous forms of nullity, such as violence and 
 lack of consent, could still less affect clandestine marriages, because their 
 validation took effect retroactively. It was proposed that they should annul 
 the civil contract, the legal part of the sacrament; but the general opinion 
 was that the contract could not be distinguished from the sacrament itself. 
 
 2 Domicile of habitation (and not of origin) or residence of one year: Dig. 
 X, 5, 38, 12. 
 
 ^ Or of another priest, but with the permission of the parish priest or the 
 ordinary: George, "De Parocho Putativo," 1859. 
 
 ^ Marriage by means of an agent between persons who were absent (special 
 order, verbal or written) continued to be permitted (Henry IV and Marie 
 de Medici, Isambert, XV, 245). Sanchez, 2, 12, 2, admits the existence of 
 marriage by letter (ordinarily before the parish priest by the person who has 
 received it). Conditional marriage, even, was not forbidden, in spite of its 
 disadvantages: Dig. X, 4, 5. It was lawful on condition that one spouse 
 should give money to the other, or that third parties should give their con- 
 sent to the marriage; it was unlawful if the conditions were not written, 
 unless they were contrary to the very essence of the marriage, in which case 
 they themselves annulled it. But presumed marriages ("copula" following 
 "sponsalia per verba de futuro") disappeared (lack of celebration, difficulty 
 of proof). The secret marriage was not vaHd as a promise of marriage, 
 although no particular form was xequired for the latter. As to conditional 
 marriage, see lanke, "De Cond. Matrim. Oppositis," 1851; Manenti, "D. 
 in Apponibilita d. Condizioni ai Negozi Giurid.," 1889; Riedler, "Bedingte 
 Eheschl.," 1892; Hussareck, see Heinlein, "Die Bed. Eheschl.," 1892; Ruffini, 
 "Per la Storia d. Dir. Matrim.," p. 10; Dig. X, 4, 5 and 5-7; "in VI," 4, 1, 1; 
 Gratian, C, 32, "in Pr."; C, 27, q. 2, "palea," 8. In the end there was 
 seen in them nothing but "sponsalia de futuro." 
 
 ^ Cf. old rituals, where we find for example: "Matrimonium per vos 
 contractum, ego tamquam minister Dei, confirmo, ratifico et benedico." 
 
 106
 
 Topic S] CELEBRATION OF MARRIAGE [§109 
 
 forms especially to the old law. It is also said: "the priest marries 
 them," and speech thus marks the change which has taken place 
 in the part played by the priest.^ 
 
 § 108. Civil Legislation. — If the decrees of the Council of 
 Trent ^ were not received in France because they affected the 
 rights of the secular power, royalty was forced to appropriate them 
 to itself and to decree them in the form of laws of the State.^ 
 This was the object of Arts. 40 and 44 of the Ordinance of Blois, 
 1579, and of some later proclamations which rounded them out, 
 particularly the Declaration of November 26, 1639,^ of the same 
 obligation of celebrating the marriage, under penalty of nullity, 
 before the priest of the parish of the two spouses or of one of them,^ 
 in the presence of witnesses (four instead of five). The Declara- 
 tion of 1639 even gives the parish priest the active part. It is not 
 enough, in order that the marriage should exist, that the parties 
 should present themselves before him at the church and declare 
 that they take one another for husband and wife; the priest must 
 declare them united.^ He is not only a "spectabilis," witness, he 
 is the civil and religious officer of the State. 
 
 § 109. Marriage of Protestants.^ — The part played by the 
 
 ^ The theologians disagreed, as they always did, without perceiving that 
 their contrary theories were correct, — one with respect to the past, and the 
 other with respect to the future: Durand de Maillane, "Diet.," see "Mariage." 
 
 2 Distinguish canons relative to dogma from decrees relative to discipline. 
 Boyer, "Diss. s. la Recept. du Cone, de T." in "Examen du P. L^gisl. de 
 I'Egl. s. le Mar.," 1817; Le Ridant, "Deux Quest, s. le Mar.," p. 344; Bibl. 
 on the Council in "Jurist. Literaturbericht," 1896, VII, 16. 
 
 ' Cf. forbidding of secret marriages in Lombardy, 1783; Tuscany, 1786; 
 Naples, 1718, 1767. — Lagreze, "Navarre," 2, 169 (co-existence of religious 
 marriage and marriage according to the forum in the giving of earnest-money 
 and surety). 
 
 * D'Aguesseau, "CEuvres," 1762, V, 161; III, 215; Merlin, "R^jp.," see 
 "Mariage." 
 
 6 "Ord. Blois," 1579, 40, 44; 1629, 39; Nov. 26, 1639; Edict of March and 
 Decree of June, 1697; Decree of May 14, 1724; Nov. 22, 1730; Decree of 
 Apr. 9, 1736. 
 
 ^ This was, however, contested. On the day following the Declaration of 
 1639, marriages were celebrated at La Gaulmine, — that is to say, before a 
 notary; and the deed was made known to the parish priest. The parliament 
 forbade notaries to establish these marriages, Sept. 5, 1560, and annulled them 
 August 12, 1692. The Edict of 1697 pronounced the most severe penalties 
 against irregular marriages {cf. "D6cl. poster"; Isambert, XX, 292). As to 
 Gaulmin, dean of the masters of applications, cf. Desforges, "Thfise," pp. 149- 
 151. Marriages before notaries were formerly quite frequent; prohibited by 
 the Ordinance of Blois, they were still preserved in plays, because it was not 
 allowed to portray ecclesiastics on the stage: Glasson, 7, 155; "Mdm, du 
 Clergo," V, 780. 
 
 ' A. Martin, "Anc. L(5g. G6nevoise s. le Mar.," 1891. Let us remember 
 that for Protestants marriage is not a sacrament; it is the spouses who be- 
 come united themselves, and it is not the priest who joins them together; 
 Sohm, 197; "Trau." 110 {cf. Art. in 1879), 
 
 107
 
 § 109] THE FAJVIILY [Chap. I 
 
 priest in marriage was double, civil and religious at the same 
 time. The reformers could not have recourse to him without re- 
 nouncing their faith. Until the time of the revocation of the 
 Edict of Nantes they were married before their ministers, invested 
 in the eyes of the State with the same powers that the priests had 
 with respect to the Catholics.^ The Edict of Revocation (October 
 22, 1685) punished the ministers; this was the same thing as in- 
 directly compelling the Protestants to be married before Catholic 
 priests.^ The courts gave to the Edict its whole power upon 
 this point,^ following the Declaration of December 13, 1698, 
 starting with the fiction that there were no longer any Protestants 
 in the kingdom, but only the newly converted.^ There was thence- 
 forth no way of marrying open to them other than to abandon 
 their religion, having their union blessed by CathoHc priests." 
 Towards the end of the eighteenth century jurisprudence be- 
 came milder and thus found itself prepared for the Edict of 1787, 
 long since demanded by liberal minds. And by the terms of this 
 Protestants could marry, according to their choice, either before the 
 first officer of justice of the locality or before their minister, acting 
 no longer as a minister of the faith, but as an officer of the civil gov- 
 ernment. From the time of the Old Regime, the diversity of religion 
 had had as its result the secularizing of the marriage of Protestants. 
 
 1 Art. 40 of the Ordinance of Blois did not apply to Protestants; but Art. 44 
 was absolute. Edict of Jan. 17, 1561, 9; August, 1570; May, 1576; Septem- 
 ber, 1577. The Edict of Nantes, April, 1598, Art. 23, compelled them to re- 
 spect the impediments estabUshed by the Church and placed matrimonial 
 actions in which they were parties under the jurisdiction of the civil judges. 
 Protestants were impliedly authorized to marry before their own ministers: 
 Synod of 1559; Brodeau, on Louet, II, 122. Their ministers kept registers 
 in the same way as parish priests did; and, in fad, they were recognized as 
 having the same authority as the latter. Various statutes organized this 
 keeping of registers, and, consequently, admitted of the celebration of mar- 
 riages by Protestant ministers. The Order of the Council, of Sept. 15, 1685, 
 half secularized the marriage of Protestants. The minister took part in the 
 union and blessed it before the chief official of justice of the locaUty after 
 pubUcation had taken place at the nearest court of the king: "Arr. Cons.," 
 Sept. 22, 1664; Decl., April 2, 1665; Feb. 1, 1669. (Lorry) "M. des Prot- 
 estants," 1756. 
 
 2 Marriages in the desert blessed by pastors who were hidden there. Unions 
 blessed by old men, by the heads of families. Marriages abroad in the frontier 
 provinces: Pothier, no. 363; Decl. June 16, and Aug. 6, 1685. Abrogated by 
 Law of Sept. 20, 1792. — Evangelical church: Blumstengel, "Trauung," 1879. 
 
 3 "Arr. Pari.," Aug. 14, 1709. Presidial of Nimes in 1739. Toleration in 
 fact which ceases after 1743 (death of Fleury). 
 
 ^ Decl. March 8, 1715; Pothier, no. 275; Portalis, "Consult, s. la Valid, 
 du Mar. des Protestants," 1770. 
 
 ^ Who made them give proofs in order to assure themselves of the sin- 
 cerity of their belief. From thence comes the custom of the Certificate of 
 Confession, which is to-day required of Catholics themselves. 
 
 108
 
 Topic 3] CELEBRATION OF MARRIAGE [§ IIG 
 
 §110. Revolutionary Law.^' — The Revolution in proclaiming 
 freedom of belief was led to a complete secularization of mar- 
 riage. The theories of the jurists, and even of the theologians, 
 according to which the contract was the material side of the sac- 
 rament, contributed thereto at least as much as the teachings of 
 the philosophers. The Constitution of 1791, 2, 7,- laid down the 
 principle that the law only considered marriage as a civil con- 
 tract ; ^ the Church was free to set up the sacrament in establish- 
 ing the forms and conditions which might please it, the faithful 
 were at liberty to respect its doctrines,^ but the State had no 
 power to bind itself to impose them upon all citizens without 
 affecting their liberty of conscience.^ The Decree of September 
 20, 1792, organized the certificates of civil status and marriage; 
 
 ^ Agier, "Du I\Iar. dans ses Rapp. avec la Religion et les Lois Nouvelles," 
 year IX; Daniel, "Le Mar. Chretien," 1870; Sagnac, "Leg. Civ. d. Revol.," 
 1898; Rosmini-Serhati, "Sul. Matr. Christ, e le Legge Civ.," 1862; Fleiner, 
 "Obligat. Civileke," 1890. 
 
 ^ In conformity with the report of Durand de Maillane in the name of the 
 Ecclesiastical Committee. It had been caused by the refusal of the parish 
 priest of Saint-Sulpice to publish the banns of Talma. 
 
 3 Friedberg, "Gesch. d.Civilehe," 1877; Glasson, "Le Mar. CivU," 1880; 
 Esmein, I, 46. Modern civil marriage is distinguished by the presence of a 
 public officer who represents the State. Cf. Marriage before the Venetian 
 " Peroratores " (Thaner, "Z. f. Kirch.," 1881, p. 209) or before a notarj'- 
 (Dig. X, 4, 4, ,3) : Friedberg, " Handb.," § 155, n. 1. Civil marriage was admitted 
 for the first time in Holland in 1580 through motives of tolerance; in 1656 
 it was admitted in the entire Netherlands; in 1053 in England (but the Res- 
 toration did away with it). Cf. Friedberg, Ruffini translation, § 155, n. 6 
 (bibl.); Del Giudice, "Studi," 1889, 209; Gabba, "Matr. Civ. e Rel.," 1876; 
 Padelletti, "Scrit. d. Dir. Publ.," 1881; Brunialti, "Stato e Chesa i. Italia," 
 1892; "Arch, giur.," 61, 142; Sohm, 284. 
 
 * The Catholic Church maintains that Christ has given it the legislative 
 and judicial power with respect to marriage because of the fact that he raised 
 this act to the rank of a sacrament; according to the Catholic Church, in 
 locahties where the rulings of the Council of Trent are applicable, the spouses 
 who are only civilly married live in a state of concubinage. The Catholic 
 doctrine is summed up in five propositions, laid down in 1808 by Pius VII for 
 the Bishop of Warsaw: 1st. There is no marriage excepting one which has been 
 contracted according to the forms which the Church has established. 2d. 
 Marriage once having been contracted according to these forms, there is no 
 power on earth which can break its lie. 3d. In case of a doubtful marriage 
 the Church alone has authority to judge of its validity or invalidity. 4th. A 
 marriage which is not opposed to any canonic impediment is good, valid, and 
 consequently indissoluble, whatever impediment may be oi:)poscd to it by 
 the secular power without the consent of the Church. 5th. On the other hand, 
 every marriage contracted in spite of a canonic impediment must be held as 
 null, although some government might make a pretense of abrogating such 
 impediment. CJ. Encycl. " Arcanum " of Leo XIII; Viollet, "Gr. Encycl.," 
 see "Mariage"; Sincholle, "Mar. Civil," 1876. 
 
 5 Viollet, p. 429, points out that, while waiting for the new method of 
 establishing marriage to be organized, certain Catholics, who did not wish 
 to have their union blessed by the Constitutional clergy, conceived of the 
 idea of being married before a notary (before the Law of 1792) : La Rdveillcrc- 
 Lepeaux, "Refl. s. le Culte," year VI. 
 
 109
 
 § 110] THE FAMILY [Chap. I 
 
 the latter must thenceforth be excuted before a municipal official 
 in order to be recognized by the State.^ Freed from its religious 
 character, marriage is none the less a solemn contract; the mere 
 consent of the parties is not sufficient to form it; the interest of 
 society which is brought into play in this contract is far too great 
 for it to be lowered to the level of private and secret acts.^ By 
 means of the publicity and the solemnities with which it is sur- 
 rounded the liberty of the parties is protected, their consent is 
 assured, the status of children and the rights of relatives are estab- 
 lished on a firm basis, to everybody an easy and lasting proof of 
 the most important act in civil life is supplied beforehand. But if, 
 as far as the forms of the celebration of marriage are concerned. 
 Revolutionary law only introduced an innovation in transferring 
 to the lay officials the functions of the clergy, the new conception 
 results: 1st, in permitting the marriage of priests; 2d, in intro- 
 ducing divorce into civil legislation; 3d, in a modification of the 
 theory of impediments. Impediments of a religious order dis- 
 appear. The consent of the relatives is no longer necessary after 
 the age of twenty-one years.^ 
 
 ^ The mayor and his deputies, according to the Law of the 28th Pluv., 
 year VIII. C/. Decree of Sept. 25, 1792, and Const, of the 5th Fruct., year 
 III., Art. 7. Provisions against the clergy in order to avoid the resumption 
 of their functions, D. 1792, 6, 2, 5; 7th Vend., year IV, 20 et seq., Law of the 
 18th Germ., year X, or Arts, drawn up by the Concordat, Art. 54 (reUgious 
 marriage after the civil marriage). In 1816, prop. Lacheze-Murel {Mavidal, 
 "Arch. Pari.," 16, 1), cf. Edict of 1787. 
 
 2 Facihties granted for marriages. D., 1792, 4, 2, 3: only one pubhcation 
 a week before the celebration; Law of 25th Vendem., year II (one day free); 
 Law of the 7th Therm., year VII, re-enacted the Decree of 1792. — There 
 were no longer any trifling objections, and it was necessary to determine 
 witWn a very short time those which were due to the father or the mother or 
 those which depended on some cause of annulment. — Locality of the celebra- 
 tion (house of both parties). Law of the 30th Germ., year II.; Law of the 
 18th Flor., year X. Celebration of the "Decadi," Decree of the 13th Fruct., 
 year VI; 26th Prair., year VII; Law of the 15th Flor., year X. "R. Cath. 
 Inst.," 1880. 
 
 3 In Russia marriage is still a religious act. — In Hungary before the Law 
 of 1894 there existed as many as nine different matrimonial systems, and 
 as many different beUefs; a Catholic spouse only had to change his religion 
 in order to acquire the right of obtaining a divorce. In order to escape from 
 this state of anarchy, the intervention of the State and the creation of a civil 
 law were necessary, the latter being a sort of neutral ground where all beliefs 
 met. "Gr. Encycl." See "Mariage" (Art. by Le/ir.), "Spain: Double legisla- 
 tion, civil and reUgious." 
 
 no
 
 Topic 4] CONCERNING IMPEDIMENTS TO MARRIAGE 
 
 [§111 
 
 Topic 4. Concerning Impediments to Marriage 
 
 111. The Basic Conditions. 
 
 112. Classification of Impediments. 
 
 113. Invalidating Impediments. — (I) 
 
 Lack or Defects of Consent. 
 
 114. The Same. — (II) The Consent 
 
 of the Relatives to the Mar- 
 riage. 
 
 11.5. The Same. — (III) Incapacity. 
 
 116. The Same. — (IV) Impediments 
 resulting from Relationship. 
 
 §117. 
 
 §118. 
 
 §119. 
 §120. 
 §121. 
 §122. 
 
 The Same. — (V) Incompatibi- 
 lity of Marriage with Certain 
 other Conditions. 
 
 The Same. — Prohibitive Im- 
 pediments. 
 
 Preventing a Marriage. 
 
 Dispensations. 
 
 Nullity of Marriage. 
 
 Rehabilitation and Repudiated 
 Marriage. 
 
 § 111. The Basic Conditions required for the validity of mar- 
 riage consisted first of all in the Germanic law, in the consent of 
 the relatives^ and of the spouses, and in the equality of condition, 
 or, at least, in the freedom of these latter.- Hostility was shown 
 to unions between persons belonging to different classes of soci- 
 ety; in every other respect the law was not very strict. The Chris- 
 tian Church was inspired by totally different ideas; it took no ac- 
 count of social condition, because in its eyes the faithful are equal 
 before God; in return, it attached the highest importance to the 
 religious condition of the spouses, if one may speak of it thus, and 
 to the morality of the marriage. In these two respects it in- 
 creased impediments far too much, contrary to its habitual tend- 
 ency, which is to facilitate access to the sacraments. Outside 
 of reasons of a religious ^ or moral ■* nature which caused it to ar- 
 rive at this decision, it found in this systematic enlargement of 
 obstacles to marriage a means of making up for lack of divorce.^ 
 Upon a point on which the canon law showed itself to be lax, that 
 
 1 "Wis.," 3, 1, 1 (Anf.); 3, 2, 8; "Roth.," 19.5, "Liut.," 120; Grimm, 436. 
 
 * "Wis.," id. (marriages between Goths and Romans permitted); Meynial, 
 p. 31; c/. post, "MisaUiance"; Koehne, " Geschlechtsvcrb. d. Unfreien i. Fr. 
 R.," 1888 ("Untcrs.," by Gierke); Glasson, 3, 28. At Naples, prohibition 
 of marriage with a "persona turpis"; "Cod. Just.," 5, 5, 7; contra, canon law 
 (meritorious act). Sometimes it was forbidden for the citizens of a town to 
 marry foreigners. 
 
 8 Difference in belief, monastic vows, etc. 
 
 ^ Infra, see each one of the impediments by itself. 
 
 6 Cf. infra, "Dissolution of Marriage for Political Reasons." It has been 
 pretended, we think wrongly, that the Church had increased the number 
 of impediments because it had an interest in so doing, as by this means it 
 could have the power to grant dispensations and require payment of the 
 customary remunerations for their granting, liut it is quite possible that 
 this concern of a fiscal nature was not entirely foreign to the maintaining of 
 impediments which had been originally created with quite another object. 
 
 Ill
 
 §111] THE FAMILY [Chap. I 
 
 is, regard to the consent of the relatives, royal legislation revived, 
 in accord with custom, the principles of the Germanic and Roman 
 laws; the consent of the family was strictly demanded. As re- 
 gards the canon law, marriage was a sacrament; as regards 
 monarchic law, the union of two families; as regards Revo- 
 lutionary law, it was a contract between two individuals, and it 
 was likened as much as possible to ordinary contracts by the sup- 
 pression of impediments of a religious nature or of those which 
 were drawn from the old organization of the family.^ 
 
 § 112, Classification of Impediments. — The classifying of im- 
 pediments into two classes, invalidating and prohibitive, is the 
 work of the Courts of the Church. Called in to give their opinion 
 upon the validity of marriages, they often recoiled from annul- 
 ment: there was in this an early check to the increase of impedi- 
 ments. 
 
 § 113. Invalidating Impediments.^ — (I) Lack or Defects of 
 Consent.^ Consent is defective, for example, in cases of drunken- 
 ness or madness,^ or, again, when one of the spouses has pretended 
 to give consent.^ Even since Trent, no essential formula is 
 required. Defects in consent are: mistake,^ violence, abduction. 
 In order to constitute an impediment to marriage the mistake ^ 
 must have a bearing upon the person or the condition; if it has a 
 bearing upon qualities or upon wealth, it is of no effect.^ The 
 
 1 Law of Sept. 20, 1792. Cj. Plans for the Civil Code in Fenet, I, 18, 108, 
 159, 330. 
 
 2 The list of these has become fixed, after the thirteenth century, at least. 
 2 Launay, "Inst.," 2, 5; Scaduto, "Consenso n. Nozze," 1885; Freisen, 
 
 229, 257, 276; Esmein, I, 302. 
 
 4 Gratian, C, 15, q. 1, c. 7; C, 32, q. 7, c. 26; Dig. X, 4, 1, 24; Pothier, 
 no. 92. Validity of a marriage contracted during a lucid interval {Gratian, 
 C, 7, q. 1, c. 14; Bardet, 2, 467), of the marriage of deaf mutes (Dig. X, 4, 
 
 1, 23; "Arr.," Jan. 16, 1658), according to Hostiensis. 
 
 ^ The nullity of the marriage under the pretext that one of the spouses 
 had pretended to give his consent, but had not in reality consented, was pro- 
 posed under the system of marriage "solo consensu" (Dig. X, 4, 1, 26); 
 after the Council of Trent it would have been necessary to set it aside. This 
 nullity, however, was so thoroughly maintained that Napoleon I was able to 
 invoke it before the Ecclesiastical Judge of Paris as a basis for his request for 
 annulment of Ms marriage with Josephine. Cf. "Acta S. Sedis," 1885, 28, 14, 
 Henry IV and Marguerite of Valois. 
 
 6 Stahl, "De Matr. ob Err. Resc," 1841; Halfes, "De Imp. Err.," 1861; 
 Daller, "Irrth. als Ehehind.," 1862; Leonhard, "Irrthum," 1882; Gerigk, 
 "Irrthum u. Betrug als Ehehind.," 1897; Gaugusch, "Irrth. als Ehek.," 
 1897; Andreae, 1893. 
 
 ^ And not fraud. It was otherwise in the Evangelical Church. 
 
 8 Qualities: incurable madness, disgraceful penalty, pregnancy of the 
 fiancee due to a third party, prostitution, also station in life, etc.: Dig. X, 
 
 2, 24, 25, etc.; Bardet, 2, 45; Pothier, no. 313 (order validating marriage with 
 a man condemned to the galleys after publication of banns). The quality 
 
 112
 
 Topic 4] CONCERNING EVIPEDEMENTS TO MARRIAGE [§ 113 
 
 "error personse" consists in a mistake in the physical identity of 
 one of the spouses ^ or in a mistake as regards quahties so essential 
 that they amount to the same thing as though the spouse were a 
 person other than the one supposed to have been married; these 
 quahties are those which constituted the civil status of persons ^ 
 (for example, if a man should falsely say he was the son of such 
 and such a prince). 
 
 The "error conditionis" only exists when one marries a slave ^ 
 believed to be free. Violence is only an impediment when it is 
 "adversus bonos mores" and can act "in constantem virum.^ 
 Abduction by violence ^ is also an impediment,^ although the 
 
 can be put "in conditione" according to the canon law ("copula purificatur 
 pendente conditione")- — In the old "For de Navarre," 4, 2, if the betrothed 
 woman was not a virgin the marriage was broken (proofs analogous to those 
 in use among the Arabs). Kormnann, "De Virginitate," 1765; St. Jerome, 
 I, c. "Jovin"; Bedier, "Tristan et Iseult; Thaner, "Abalard u. das Canon. 
 Recht." 1900, "Legre v. Error Qualit. Akad. Wien" (" B. Ch.," 1902, 377). 
 
 ^ Classical example: marriage of Jacob and Leah, when he thought he 
 was marrying Rachel. 
 
 2 "Error qualitatis redundans in personam." Hue, " Le Code Civil Ital.," I, 
 p. 51, cf. " C. Civ.," Art. ISO; error as to the person; Hericourt, "Loix Eccles.," 
 G 76; Cabassut, "Theoria et Praxis," p. 351; Esmein, I, 314. — A young 
 man represents himself to be the son of the king of France; the young girl 
 believes that she is marrying the son of the king of France (who actually 
 exists and who would be capable of ratifying the marriage) and does not con- 
 sent to marry the person who is present; it would be otherwise if he repre- 
 sented himself as being a king's son, in general: Stahl, "De Matrimonio ob 
 Errorem Resc," 1841; Thaner, "Wien. Ak.," 1889; Sehling, "D. Z. f. K." 
 I, 51. 
 
 3 And not a serf. Gratian, C, 29, q. 1, c. 4 and 6; Dig. X, 4, 9; "Fuero 
 Real," 4, 11. 
 
 ■* Dig. X, 4, 1, 28; Scaduto, 432. Reverential fear is not sufficient. San- 
 chez, "De Matr.," 4, 12. — Marriage validated "ex nunc" by consent or 
 "copula" and after the violence has ceased; tacit consent by cohabitation 
 for a year and a half: Dig. X, 4, 7, 2; 4, IS, 4. Cj., however, " Arr.," April 
 24, 1651 {Soefve, I, 3, 74). After the Council of Trent another celebration 
 was necessary: Olivcrio, "De Null. Matr. ex Defectu Consens.," 1609; 
 Giordano, "Matr. Contr. Vi," 1S42; Ploch, "De Matr., Vi ac Metu Contr.," 
 1853; cJ. P. de Fontaines, 15, 60. Mere reverential fear is not an impedi- 
 ment. Council of Trent, s. 24, 9. Marriage contracted under the com- 
 pulsion of violence ceases to be voidable for this reason when it is freely 
 consummated or life in common goes on without any compulsion during a 
 year and a half. Dig. X, 4, 1, 21. As to rape, cJ. "Schwabensp.," c. 33, 87, 
 196; "T. A. C. Norm.," 50; Bout., 2, 8. 
 
 6 Colberg, "Entfuhr.," 1869; Scaduto, § 12, 23, 178; Freisen, 567; DuPlessis 
 deGr. "Autor. Fat. " 227 392. 
 
 ^ Esmein, I, 391; Tl,' 250; Dargun, "Mutterrecht u. Raubehe," 18S3. 
 Horrible penalties under the Lower Empire, so frequent wtxa abduction: "Cod. 
 Thcod.,"9, 24; "Cod. Just.," 9, 13; "Nov.," 143, 150; "Wis.," 3,3. Death of 
 the ravisher: "Conciles"; Chalcedoine, 451, c. 27; "Paris," 557, 0; Gratian, Q., 
 36, q. 2; "Meaux," 845, 64; "Capit.," 817, 23; 819, 9; 6, 60 and 7, 395. Con- 
 trary tendency (favoring marriage, Jewish law, which validates after the 
 thing has taken place, provided the consent of the parents be given. Seneca 
 and Quintillian say that the girl who has been ravished has the right to com- 
 pel the ravisher to marry her, or else to demand his death). Gratian, C. 
 
 113
 
 § 113] THE r.\JVIILY [Chap. I 
 
 first violence may have ceased; so long as the woman carried 
 away is still in the hands of the abductor/ she is considered as 
 being incapable of giving a free consent. Abduction with seduc- 
 tion ^ was likened by French jurisprudence to abduction by vio- 
 lence; in its desire to prevent marriages contracted by minors 
 without the consent of their relatives it went so far as to establish 
 the presumption that this sort of abduction took place in every 
 marriage of this kind. 
 
 § 114. The Same. — (II) The Consent of the Relatives to the 
 Marriage ^ was required by Roman legislation '^ as well as by the 
 
 36, q. 2: marriage allowed if the father is not opposed to it; Dig. X, 5, 
 17, 7: validity of the marriage provided the consent of the woman has been 
 free, — even if she is found to be under the power of her ravisher. Dig. X, 
 5, 17, 6; Innocent III, before 1210; Yves de Chartres, "Ep.," 19. — Trent, 
 e. 24, c. 4: marriage is not possible as long as the girl who has been ravished 
 is in the power of the ravisher; if she is no longer in his power she mav give 
 her consent to the marriage (penalties against the ravisher: excommunication, 
 infamy). "Ord." 1579, 41; 1629, 169; 1639, 5; "Arr " 1681; Horry, "Mar. 
 Chretien," p. 159; Muyart deVouglans, "Lois Crim., ' 3, 4; Guyot, Ferrihre, 
 — "Alais," 16; "Montp.," 85; "Nav.,'^ 4, 3; Lahourt, 19, 10. — "Ass. de J.," 
 "C. d. B.," 134; "L. d. Droiz," 226; "G.C. Norm.," 33, 11; Boutaric, I, 39, etc. 
 
 1 Rape: death, castration, an arbitrary penalty in the old law; sometimes 
 the perpetrator of the rape himself obtained a husband for the outraged 
 woman of similar condition to the one she would have been able to have, had 
 there been no rape, which amounts to the same thing as giving her a marriage 
 portion: "For de Navarre," 24, 6; Lagreze, "Dr. d. Pyrenees," p. 311; "C. 
 de Barcelone," 108; "L. d. Droiz," 659, etc. 
 
 2 "Ord." 1579, Art. 40; 1629, 39, 169; 1639; Nov. 22, 1730; "Encycl. 
 Method.," "Jurisprud.," VII, 198; Durand de Maillane, see "Diet, de Dr. 
 Canon"; Fournel, "Tr. de la Seduction," 1781; Duguit, "N. R. H.," 1886, 
 586. — Cf. Rozihre, "Form.," no. 241. — On the canon law Van Espen, 2, 13, 
 10; 3, 4. 
 
 ^ Gibert, "De Doctr. Canon, c. Requis. Parentum Cons.," 1709; Wiirffel, 
 "De Parent. Cons.," 1740; Valsecchi, "De Spons. ad Inst. par. a Filio f. 
 Contr.," 1710; Muscettula, "De Spons. et Matr. q. a Filio f.," 1762, 1772; 
 Heyer, "De Cons. Par.," 1863; Scaduto, "II Consenso n. Nozze," 1885; Van- 
 troijs, "Thdse," 1889; Stohhe, "D. Privatr.," § 254; Freisen, 227, 308; Es7nein, 
 I, 211; Duguit, "N. R. H.," 1886, 587; Viollet, 402. 
 
 ^ As a consequence of the power of the father, first of all ; under the Lower 
 Empire, if there were no father, then the mother or the near relatives inter- 
 vened ("Cod. Just.," 5, 4, 18 and 20) so that the consent of the family seems 
 to have been required with the object of protecting the child: "Cod. Th^od.," 
 3, 7, 1; Meynial, p. 18 et seq. Disagreement: the prince or the judge settles 
 the dispute. Cf. powers of the Frankish kings: "Chlotar. Praec," 7 and 18 
 ("viduae" and "sanctimoniales," as in Roman law). — A misapprehension 
 of the meaning of the celebrated passage from Paul: "Sent.," 2 (19), 20, 2, 
 "Int." (c/._ Sirmond, "Form.," 16; Roziere, 241 et seq.), made people see in the 
 lack of this consent only a prohibitive impediment; Paul said, "Those who 
 are 'in potestati patris' cannot marry without the consent of the 'pater,' but 
 public interest demands that the 'pater' should not be able to break the mar- 
 riage to which he has given his consent, whereas, in the olden times, he had 
 a right to do this." This text was understood to mean this, that marriage 
 contracted in spite of the "pater" could not be dissolved ("sed contracta non 
 solvuntur"): Meynial, 19, n. 4. "Petrus," I, 31, 49, absolutely demands the 
 consent of the father. Vantroys, p. 77. 
 
 114
 
 Topic 4] CONCERNING niPEDIMENTS TO MARRIAGE [§114 
 
 Germanic Customs.^ One is surprised to find that the canon law 
 departed upon this question from the two legislations from which 
 it had especially borrowed. It was not without some hesitation 
 that it arrived at this point.^ Gratian still teaches that the be- 
 trothal and the marriage of children are not valid without the 
 consent of the father.^ But his contemporary, Peter Lombard, 
 is of a contrary opinion: the consent of the spouses, according to 
 him, alone constitutes the marriage.^ The distinction between 
 the " desponsatio " in which the relatives figured, and the celebra- 
 tion of the marriage, where the spouses alone had anything to say, 
 favored the victory of this explanation. As the betrothals came 
 to be necessary no longer, so did the consent of the relatives pass 
 to the rank of impediments which were merely prohibitive.^ The 
 Church was compelled to enforce the rule that as to spiritual 
 matters the child was from puberty withdrawn from the 
 paternal power; ^ he was permitted to enter into religious 
 orders, which constituted a sort of spiritual marriage, in spite 
 of his father. At the Council of Trent the question was dis- 
 cussed at the request of the representatives of France. The 
 Council adhered to the classical doctrine of the Church, but in 
 forbidding secret marriages it indirectly prevented many unions 
 which were only hidden because they were contrary to the views 
 of the relatives.^ 
 This was an insufficient reform, considering the old usages and 
 
 ^ Betrothals. Consent of the "mundoaldus" (father, guardian). Cf. 
 Frankish law, intervention of the mother: "Cap.," I, § 6, "ad L. Sal. extrav.," 
 A, 1; Hincmar, "De Div. Loth.," 5 {Migne, "Patr. Lat.," 25, 717); Picker, 
 "Mitth. Oest. Gesch. f.," II, 455, 1888; "Majestas Carohna," c. 85 (Bo- 
 hemia, fourteenth century; Jirecek, "Cod. Jur. Bohem.," 2, 2, 168); Dareste, 
 "Etudes,'- passim] Fertile, § 108 n. 57; Latles, p. 231 et seq. 
 
 2 Tertullian, "Ad Uxor.," 2, 9 (consent of the father); C, 30, q. 5, c. 7; 
 Canon, "Ahter"; Gratian, C, 30, q. 5, c. 1; Canon, "Nostrates" or rescript 
 of Nicholas I to the Bulgarians; C, 30, q. 5, c. 3. 
 
 3 C, 31 and 32; 35, q. 6, c. 2; cf. "Capit.," 7, 463; P. Lombard, "Sent.," IV, 
 D. 28, b; Dig. X, 5, 6; "Trent," s. 24, 1; {Migne, "Patr. Lat.," 192, 915). 
 The Eastern Church requires the consent of the father for the marriage of a 
 child "aUeni juris," and even sometimes that of the mother or the relatives 
 for the marriage of the daughter "sui juris." 
 
 ^ "Sent.," IV, D., 28, b. {Migne, "Patr. Lat.," 192, 915); Dig. X, 4, 5, 6; 
 "Trent," s. 24, 1 (after the age of 14 and 12). Freedom of the contracting 
 parties, conception of the sacrament. 
 
 ^ Similar evolution in that which concerns the consent of the master to 
 the marriage of slaves: Dig. X, 4, 9, 1; Council of Trent, 24, 1; Freisen, 283; 
 Scaduto, 338. 
 
 6 Cf. "Power of the father." 
 
 ' The Council limited itself to the condemnation of these marriages, but 
 did not dare annul them for fear of driving people to debauchery and out of 
 respect for the freedom of the soul. Cf. English law, Glasson, "Inst. Angl.," 
 VI, 172. 
 
 115
 
 § 114] THE FAMILY [Chap. I 
 
 customs.^ The monarchic law went much further than this.^ 
 The Ordinances of the sixteenth century,^ and first of all the Edict 
 of Henry II of February, 1556/ compelled sons to obtain the con- 
 sent of their parents ^ up to the age of thirty, daughters up to the 
 age of twenty-five years; ^ having attained this age, it was enough 
 if they asked for their opinion and their advice/ The penalty for 
 an infringement of these rules was very severe: (a) power of the 
 parents to disinherit ^ the child who had married in spite of them, 
 and to revoke gifts made to him (Edict of 1556); forfeiture of all 
 right ^ to the inheritance and the advantages resulting from the 
 
 1 Beaumanoir, 15, 31; 21, 12; "Et. de St. Louis," I, 67 (marriage by the 
 father or the mother who survived, without the counsel of relatives). Irifra. 
 
 2 The State, they said, can regulate the conditions of the civil contract, 
 which is the material part of the sacrament, and can create invalidating im- 
 pediments. As to Protestant theories, cf. Strampff, "Luther," 304, 325; 
 Bohmert, "Jus. Eccles. Prot.," 1738. 
 
 3 Edict of Feb., 1556; "Ord. Blois," 1579, 40; Edict. 1606; "Ord.," 1629, 
 39; "Ord.," 1639; "Arr.," 1651, 1659 — Mellier, "Edit d'Enri II," 1558; 
 Coras, "Paraphrase S. I'Edit," 1579; Pulvceus, "De Nupt. s. Parentum Cons.," 
 1578; Pasquier, "Rec. Chronol. Cone, les Mar. Clandestins," 1660; Le Merre, 
 "Justif. des Usages s. les Manages des Enf. de Famille," 1687; Le Conte, on 
 The Edict of 1556 in "Neron and Girard," I, 351. Le Prestre has written two 
 treatises on Clandestine Marriages. Horry, "Obs. s. les Edits," 1692; Muyart 
 de Vouglans, "Loix Crim.," 3, 4; "Fors de Navarre," 24, 3 (nullity of mar- 
 riage, disinheritance); Labourt, 12, 14; Isamb., XI, 569 ("Bret.," 1510). 
 
 ■* Enacted upon the occasion of the marriage of Montmorency de Piennes. 
 De la Ferriere, "Correspondant," Aug. 10, 1885; "N. R. H.," 1886, 605; cf. 
 Preamble of the Edict; Isambert, XI, 569 (marriage of minors in Brittany); 
 "Letters of Pasquier," III, 1. 
 
 ^ Of the father and the mother; but in case of disagreement the wishes of 
 the father are alone to be taken into consideration. If the father is dead, the 
 mother who has not remarried should give her consent: Boutaric, "Inst.," 
 1, 10. 
 
 8 Fevret, "Abus.," 5, 2, 13; Hericourt, 3, 5, 2, 75, who does not draw any 
 distinction between girls and boys, and only annuls marriage in the case of 
 both of them if it has been contracted before the age of 25 years; Julien, 
 "Elem. de Jur.," p. 19 et seq. 
 
 ' Advice of the mother who remarries. Procedure: Order of August 27, 
 1692; request addressed to the royal judge in order to give the father and 
 mother a respectful summons to give their consent to the marriage with such 
 and such a person. Upon obtaining permission from the judge, the child goes 
 with two notaries, or with one notary and two witnesses, to ask for the con- 
 sent; the notary draws up the deed. — The Declaration of 1639 requires the 
 consent of the parents to the publication of the banns. The Ordinance of 
 Blois had prescribed this publication, especially in order to avoid marriages 
 which were carried out against the wishes of the parents: Gibert, "Consult, 
 s. le Mar.," 1727; Launoy, op. ciL, p. 1032. 
 
 8 Penalty of disinheritance at Rome m a case of this sort: "Cod. Th^od.," 
 IX, 24, 1; "Nov. Just.," 115, 3; "Wis.," 3, 2, 8 and 4, 7; "Burg.," 12, 5; 
 Papien, 9, 2; "Liut.," 5, 19"; "Thur.," 47; F. de Daroca, 1142; P.de Font., 
 23, 36;PouU.ainduParc," "Princ," I, 116; Pothier, "Succ," 1, 4, 1: a daughter 
 would not have been disinherited for having allowed herself to be seduced 
 once or twice (sic) but only if she had become a prostitute. Cf. "Disinheri- 
 tance," "Power of the Father." 
 
 3 Jurisprudence does not strictly adhere to this rule: Boutaric, "Inst.," 1, 
 10,3. 
 
 116
 
 Topic 4] CONCERNING IMPEDIMENTS TO MARRIAGE [§114 
 
 contract of marriage, from a will, from Customs (Declaration of 
 November 26, 1639); (b) arbitrary penalties against children and 
 their accomplices; these latter were punished as abettors of the 
 abduction, according to the Ordinance of Blois, 1579, Art. 40; (c) 
 nullity of the marriage of the minor, pronounced not by the 
 ordinances,^ but by jurisprudence,^ because he was presumed to be 
 tainted with abduction.^ When the consent of the parents had 
 not been sought (a respectful asking) ^ by the son who was more 
 than thirty years of age, or the daughter who was more than 
 twenty-five, disinheritance was possible, but the marriage was not 
 annulled.^ In default of father or mother,^ the minor who was 
 under the care of a guardian had to have the consent of his guar- 
 dian, who gave it after having obtained the opinion of the family.^ 
 The nullity of marriage contracted without this consent was not 
 so easily pronounced as when the consent of the parents had 
 been lacking.^ 
 
 1 Cf. however "Ord.," 1629, Art. 39; Louet, "M.," 6; Vantroys, "These," 
 p. 264: details as to the establishment of this jurisprudence and as to its 
 variations. 
 
 2 The son who was over twenty-five and under thirty who married with- 
 out obtaining the consent of his parents, was disinherited; but his marriage 
 was not annulled: Order of July 2, 1660. After twenty-five the boy who had 
 neither father nor mother did not have to obtain anybody's advice: Ordinance 
 of Aug. 11, 1716. 
 
 ^ See "Abduction with Seduction." According to Boutaric, "Inst.," 1, 
 10, 3, disinheritance and annulment of the marriage did not concur; it was 
 necessary to choose between them: D'Aguesseau, 1772, IV, 674; Vantroys, 
 p. 291. 
 
 ■• Denisart, see "Somm. respect." 
 
 s Decl. 1639; Edict March, 1697; cf. "Arr.," Aug. 6, 1661; Aug. 27, 1692. 
 
 ^ Death, absence (not knowing where a person is), civil death: Decl., 
 Aug. 6, 1686; May 24, 1724, 16. The judge can only with great difficulty 
 supplement the consent of the relatives who are present and, for example, 
 favor the wishes of the mother and of the relatives rather than those of the 
 father. Natural children must have the consent of their guardians as long 
 as they are minors; they are not under the power of the father and have 
 neither to obtain nor request the consent of their fathers and mothers : Pothier, 
 "Manage," 1, 1, 2, 3. 
 
 ^ Beaumanoir, 15, 31: the relatives obtain a security from the custodian 
 or the guardian that he will not marry off the minor without their advice; 
 if he refuses to do this the guardianship is taken away from him: cf. 21, 12 
 {id. father or survivor, mother); "Ord. Blois," 43. Summons before the 
 judge. Decl. of Aug. 6, 1686 (parents who have emigrated because of 
 religion; consent of the guardian and the six nearest relatives and relatives 
 by marriage, or, if these are lacking, friends and neighbors): Boutaric, "Inst.," 
 110; "Bret.," 496 (mother, guardian and near relatives with the authority 
 of the law). "Placitds de Norm.," 32 (the mother who is a guardian should 
 have authority). 
 
 8 According to jurisprudence, the father and mother are the only ones who 
 have a right to attack the marriage. Thenceforth their consent, given after 
 the marriage has taken place, will validate it: this is the same thing as a re- 
 nunciation of the action for annulment: Boutaric, "Inst.," 1, 10. 
 
 117
 
 § 114] THE F.\iIILY [Chap. I 
 
 The Revolutionary Laws fixed puberty at fifteen and thirteen 
 years of age, and did not impose the obhgation of being provided 
 with the consent of the father (lacking his consent, that of the 
 mother; lacking hers, that of a council of five relatives or 
 neighbors under the supervision of the Mayor) until the end 
 of the twenty-first year.^ The only penalty for those who 
 did not conform to these provisions was the annulment of the 
 marriage.^ 
 
 a. To the consent of the parents one can liken the consent of 
 the king to the marriage of princes of the blood,^ the intervention 
 of the Prankish kings in the marriage of their subjects,^ and finally 
 that of the feudal lords to the marriage of their vassals ^ or their 
 
 1 The same in English law: Glasson, "Inst. Anglet.," VI, 172. 
 
 ^ Law of Sept. 20, 1792. Decree of Sept. 7, 1793: the family council is 
 composed of near relatives who arc not heirs presumptive; if it is opposed to 
 the marriage at the end of a month the minor need take no notice of it, un- 
 less the opposition is based upon notorious badness of the morals of the future 
 spouse or upon failure to become re-established after a judgment carrying 
 with it infamy. Sirey, "Lois Civiles Intermed.," I, 380. Reaction in the 
 direction of the old law in the Civil Code : puberty at the age of eighteen and 
 fifteen, consent of the parents up to the age of twenty-five and twenty-one, 
 acts of respect. 
 
 ^ Originally, especially because the king is the head of the house (cf. with 
 respect to this the law relating to the princely families in Germany); after- 
 wards through political motives and because the marriage of an heir to the 
 throne is not a matter of indifference to the State: Isambert, XI, 447, 453; 
 XVI, 413; Lebret, 1, 8; Durand de MailL, "Die," 4, 36. The Order of Sep- 
 tember, 1634, annuls the marriage of Gaston of Orleans with Marguerite de 
 Lorraine because it had been contracted without the consent of the king. The 
 doctors of the Sorbonne, however, hesitated because there was no law on the 
 point. This marriage was re-established in 1647: "Memoires de Math. 
 Mole," II, 214. Re-enactment of this law by Napoleon: Senate Decrees of 
 May 18, 1804, 12 and 7, and of Nov. 10, 1852, 6._ 
 
 ^ See as to this, "Violence." Roman origin? Lampride, "Alex. Sev.," 
 42; "Cod. Theod." 3, 10, 1; "L. Rom. Cur.," 1, 3; Meynial, p. 27. Ger- 
 manic origin? Post, "Bausteine," II. 123. In 614, the "Prseceptio" of 
 Clotaire II, 7 and 18, abolishes this law, or, rather, seeks to put an end to the 
 abuses which it gave rise to. "Cone. Orl.," IV, 541, 22 {Bruns, 2, 205); 
 "Wis.," 3, 3, 11; 3, 5, 1; Brunner,U, 56; Viollet, 411; Loening, "D.Kirch.," 
 2, 605; "Acad. sc. Toulouse," 1895 (guardianship of Women, 16); cf. Du 
 Plessis de Grciiedan, "Autor. Pat.," p. 248; Grimm, 437. After this the king 
 married the daughters of the lords by force; examples in the old epics, like 
 "Raoul de Cambrai," and in real life (Louis XI and Louis XII): Viollet, 
 p. 411 ct seq., who cites Tagcreau, "Practicien Fr." 1647, p. 624; same right 
 for emperor (e. g. in 1232 for Frankfort, Boehmer, "Cod. Dipl. Francof.," I, 
 55), for the king of England, etc., Fertile, § 108, n. 59 ct. seq. 
 
 6 "T. A. C, Norm.," 11, 4; "Gr. C," 33; "Norm.," 231; J. d'Ibelin, 227 
 et seq.; 171 et seq.; "Et. de St. Louis," edit. Viollet, 3, 357. — Let us recall the 
 celebrated passage from the "Assizes of Jerusalem," where J. d'Ibelin shows 
 us the Ordinary presenting three barons to his lady vassal for her to choose 
 from, c. 227. Granville, 7, 12. Cf. Glasson "Hist, du Dr. de I'Angleterre," 
 II, 207; Pollock and Maitland, I, 299. The seigniorial right disappeared 
 rather soon in France, at least, generally speaking, and the lady vassal was 
 left with the power to marry herself as she wished: "Olim." IV, 56, 8; " Char- 
 roux," 1247, 11; "Montp.*," 84; "Bretagne," 678. 
 
 118
 
 Topic 4] CONCERNING IMPEDBIENTS TO MARRIAGE [§115 
 
 serfs.^ The Council of Trent and the Ordinance of Blois, 1579, 
 Art. 281, were obliged to forbid these abuses on the part of the 
 lords; ^ but until the Revolution something of the old law which 
 had been abolished remained in the Customs. 
 
 § 115. The Same. — (III) Incapacity. 1st. Imyuherty? Girls, 
 until the age of twelve years, and boys until the age of fifteen, 
 are presumed not to have arrived at the age of puberty; ^ 
 the marriage, however, would be valid in case of puberty in 
 fact previous to this age ("malitia supplet setatem").^ Cohab- 
 itation after attaining puberty removes this impediment.^ 
 2d. Impotence J The idea that marriage was a remedy for incon- 
 tinence and the old practice of divorce ^ led the Church to make 
 an impediment of impotence ^ (in conformity with the Galilean 
 
 1 A number of Customs of the South of the twelfth and thirteenth centuries 
 allow the inhabitants of those countries freedom with regard to marriage: 
 Bacquet, "Aubaine," 1, 4; "Code Matrim.," 1, 217; Thudichum, "Ueb. 
 Unanlass. Beschrank d. Verehelich," 1866; "Ord." XI, Table, see "Mariage." 
 As to the right of the lord, see "Raepsaet," id., 1878. 
 
 2 Bull of Pius IX, "ApostoHcse Sedis," 1869. Viollet, p. 414, Ukens the 
 compulsory marriages in Canada in the seventeenth century to these facts: 
 shiploads of disorderly women were sent out from the metropolis, and within 
 fifteen days of the time they disembarked every bachelor had to take a wife 
 from among them. Cf. Manon Lescaut — let us also liken to this the mar- 
 riage of soldiers in our day. 
 
 ^ Hormann, "Despons. Impuber.," 1891; Dig. X, and "in VI," 4, 2. 
 
 * Twelve and fourteen years completed: Dig. X, 4, 2, 10; cf. Roman law 
 (Ulp. 11, 28); Beaumanoir, 15, 29 (10 yrs.). Cf. Puberty at an advanced age 
 among the Alemanni (Tacitus 20), Lagreze, "Navarre," II, 178. Caesar, 
 "B. G.," 6, 21; "Roth.," 155; "Liut.," 129. 
 
 6 Dig. X, 4, 2, 3, 8; Montesquieu, "Esprit des Lois," 23, 7. Viollet, p." 415, 
 seems to us to attach too much importance to the Sabine tradition: B. de Mer- 
 ville, "Majorites," p. 516 (1729); "Code Matrim.," 2, 540. — Possible dispen- 
 sations (Louis XI). Dig X, 4, 2, 2. In the olden times people were often mar- 
 ried before the legal age: cf. "Jostice," p. 186; "L. de Droiz," no. 910; Gautier, 
 "Chevalerie," p. 351. As to the betrothals or marriages of those who had not 
 attained puberty that were made for them by their parents, cf. Fertile, § 108, n. 53 ; 
 Etienne, " Droit de Djebr. et Mar. des Impub. chez les Musulmans," 1898. 
 
 6 Dig. X, 4, 2, 10: Boutaric, "Inst.," 1, 10; Pothier, no. 95. 
 
 ^ A. Hotman, "Tr. de la Dissol. du Mar. par ITmp.," 1581; Tagereau, 
 "Disc. s. ITmp.," 1611; Rouillnrd, "Capitulaire," 1600; Grimaldi, "Dis- 
 sert.," 1765; Boucher dArgis, "Null, du Mar. p. e. dTmpuissance," 1756 
 (wdth the treatise by Bouhier, 1735); Pasquier, "Inst, de Just.," p. 63; Maul- 
 trot, "Ex. des Princ. s. une Quest. Matr.," (1788); Richter, § 274 (bibl.); 
 Friedberg, § 145; Freisen, 323; Esmein, I, 232; II, 273; Camus, nos. 1488 s.; 
 Horry, "Mar. Chretien," 1700, p. 237; "Obs.," p. SO. Cf. Michelet, "Orig.," 
 p. .53; Sehling, op. cit. no. 8; see "Encicl. Giur. Ital." 
 
 * Roman Law: D., 23, 3, 39, 1 (distinction between castration and the 
 "spado"); Leo the Philosopher annuls the marriages of eunuchs: "Const.," 
 98; D., 24, 1, 61; divorce "bona gratia propter sterilitatem, scnectutem, 
 valetudinem"; "Cod. Just.," 5, 17, 10 (impotence just cause for divorce); 
 time of proof of two years, and according to the "Nov.," 22, 6, three years. 
 Sehling, "Wirh. d. Geschlechtsgemeinschaft auf d. Ehe.," 1885; Loening, 
 "Deut. Kirchcnr.," II, 617. 
 
 8 (A) Just cause for divorce according to Hincmar (avoiding a murder); 
 
 119
 
 § 115] THE FAMILY [Chap. I 
 
 theories) ; again, it was necessary for this that the latter be previous 
 to the marriage ^ and incurable. Neither age in the case of the hus- 
 band nor sterility in the case of the woman affected the validity of 
 the marriage.^ It was an easy matter to demand the annulment of 
 the marriage because of impotence; ^ it was far less easy to know 
 when impotence existed. The practice wavered between two dan- 
 gers : very uncertain proofs to be deemed sufficient, as the confession 
 of the spouses,^ ordeals,^ the oath,® cohabitation for three years,^ 
 and then arbitrarily to dissolve the marriage at the pleasure of the 
 parties; or to demand a positive proof and then not to be deterred 
 by any scandal. It is thus that a physical examination by experts ^ 
 was arrived at, and that in the middle of the sixteenth century the 
 jurisprudence of the Parliament of Paris imposed the ridiculous 
 and shameful proof of the "Congress."^ An order of the 18th of 
 
 Gratian, C, 33, q. 1; "Council of Compiegne," 757 (the papal legate 
 Georges, accepts this doctrine); "Verberie," 758 or 768 (proof of the cross); 
 "Faux. Capit.," 6, 55 and 91. If there were no consummation of the mar- 
 riage indissolubility did not exist. — (B) The theory of marriage by mutual 
 consent caused tliis point of view to be abandoned, and impotence became an 
 impediment. Cf. "Divorce." — • (C) The Roman Church admitted that the 
 spouses ought to live like brother and sister: "Compil.," la, 4, 16, 2; Dig. X, 
 4, 15, 2. 
 
 ^ Was a mistake on the part of one spouse necessary? Controversy: 
 Esmein, I, 240; Dig. X, 4, 15, 4. 
 
 2 According to the theory finally accepted, three kinds of impotence are 
 recognized in the case of a man: (a) natural or accidental impotence; (6) 
 frigidity (Sixtus V, "Motu Proprio" of 1587; Richter, "Cone. Trid.," 556; 
 his wife may remarry; but for him there is a prohibitive impediment); (c) 
 hidden impotence because of some sorcery (the " malificiatus " husband can 
 remarry, for the impotence is relative); Hincmar, "De Div. Loth.," 15 {Migne, 
 "Patr. Lat.," 125, 716); "Dec. Capell. Tolos.," 381. It was only at the end 
 of the fourteenth century that they began to be concerned with the very rare 
 cases of impotence in women, which were ordinarily relative; Dig. X, 4, 15, 4, 
 6; Durand, "Spec," P. IV, p. 444. 
 
 3 From this arose abuses and divorces in disguise; "Decis. Cap. Tol.," 
 loc. cit. 
 
 * At least, if he is in favor of upholding the marriage; cf. Beaumanoir, 
 18, 15. 
 
 6 "Cone. Verberie"; cf. c. 1, C, 33, q. 1; Dig. X, 4, 15, 1. At the end of 
 the twelfth century the Church condemns them : Dig. X, 5, 35. 
 
 8 Oath "cum septima manu"; c. 2, C, 33, q. 1; Dig. X, 5, 15, 5; Esmein, 
 II, p. 285, n. 4 (still in force). 
 
 ^ Supra, laws of Justinian: "Petrus," I, 37; Dec. d'Yves, 8, 79, 80; cf. 
 Burchard, "Dec," 9, 44 (Dig. X, 4, 15, 1); Bernard de Pavie, "Summa," 
 p. 177. The time of proof is useless if the impotence can be established by 
 means of a direct examination; recourse is had to this examination in cases 
 of sorcery. 
 
 * Examination to establish the virginity of the woman: Dig. X, 2, 19, 4 
 (1187), 4, 15, 6; fear of mistake (c 4, C, 27, q. 1). To reciprocate, the judges 
 ordered that the man should be examined at the time the examination was 
 customary for the wife: cf. Viollet, 432, 2. Regulations of the Ecclesiastical 
 Judge of Cerisy, 54a. 
 
 * About 1550. Anne Robert, "Rer. Judicat.," 4, 18; A. Hotman, "Dissol. 
 
 120
 
 Topic 4] CONCERNING IMPEDniENTS TO ilARRIAGE [§ IIG 
 
 February, 1677, abolished this indecent procedure.^ Thenceforth 
 the tribunals, without any certain rule, prescribed sometimes an 
 examination, sometimes three years' cohabitation.^ To-day, in case 
 this fault is present, the canonists do not admit of any nullity, be- 
 cause it is impossible to prove that the impotence is incurable and 
 previous to the marriage. In other cases, if it is established that 
 the marriage has not been consummated, the assemblage of the 
 council asks the pope to make use of his power in order to dissolve 
 the marriage; thus are avoided scandalous and unreliable investi- 
 gations, and each one of the spouses is authorized to marry again. 
 § 116. The Same. — (IV) Impediments resulting from Relation- 
 ship.^ 1st. Natural relationship. Starting with the very general 
 text of "Leviticus" viii, 6, and exaggerating the horrors of incest, 
 a sentiment very strongly marked in Rome, the Church has come 
 to consecrate, or pretty nearly so, the old system of exogamy, or 
 prohibition of marriage within relationship.* The influence of 
 Christian ideas was already felt in Roman legislation under the 
 Lower Empire, by the forbidding of marriage between uncle and 
 niece,^ between first cousins,® between brother-in-law and sister- 
 in-law.^ The severe tendency which these innovations display 
 
 du Mar. par I'Impuissance," 1610 (2d ed.). The innovation was introduced 
 by the ecclesiastical judges; from the fourteenth century a few canonists, such 
 as Jean d' Andre, proposed a proof in the presence of matrons; although this 
 opinion did not prevail {Sanchez, "De Mat.," 7, 109, 1.5; "res. turpe.s.sima" 
 proving little, no text prescribes it) it was introduced into practice by agree- 
 ment of the parties (tliis was the suggestion of an impertinent person, says 
 Hotman, who furnished the first example of it). An order of the Parliament 
 of Jan. 20, 1587, decreed this: Cabassut, "Theoria et Praxis Juris Canon.," 1, 
 3, c, 25, no. 6; P. de Croos, " France Jud.," 1878-1879, 392. 
 
 1 '"J. du Palais," II, 780. Sharp criticism as early as the sixteenth century: 
 cf. Fcvret, "Abus," 2, 106; Voltaire, see "Diet. Phil." The Marquis of Lan- 
 geais, declared to be impotent, marries nevertheless and has seven children: 
 Cabassut, op. cit., 1, 3, c, 25, no. 4; F. de Lamoignon, "Plaid, s. le Congres," 
 1680; Isamh., 19, 174. 
 
 2 "Recueil des Pieces au Proces de Gesvres, etc.," 1714; Pothier, 96; Es- 
 mein, II, 284; "Hermaphrodites," "Acta S. Sedis," 21, 501. 
 
 ' Richter, § 275 (bibl.); Friedherg, § 146; Loening, "G. d. d. Kirchenr.," II, 
 542; Freisen, 371; Esmein, I, 335; II, 259; Pothier, no. 121; Launay, 2, 6; 
 Luckock, "Hist, of Marr.," 1894; Hulh, "The Marr.," 1893. 
 
 ^ CJ. "Numbers," xxxvi, 7: All Israel shall take a wife in their tribe and 
 from among their relatives, "ut herechtas permancat in familiis." As to the 
 old Roman law, see Cuq, "Inst.," p. 211; Chaisemartin, "Prov.," p. 298; 
 "Heirath ins Blut — Thut selten gut." 
 
 B In 342: "Cod. Thcod.," 3, 12, 1 {cf. "Marriage of Claude"). 
 
 « "Cod. Th6od.." 3, 12, 3 (396); 3, 10, 1 (409). Abrogation in Justinian 
 law, "Cod. Just.,'' 5, 4, 19 (405); "Levit.," xviii, 6-18; xx, 11-21; "Deu- 
 ter.," xx-^di, 20-23; "Can. Apo.st.," 19; St. Ambroise, "Ep.," 60 (although 
 permitted by Moses, these marriages are forbidden "quadara voce natura;"); 
 August., "De Civ. Dei," 15, 16. 
 
 ' During the classical period a relationship in the collateral line was not 
 
 121
 
 § 116] THE FAMILY [Chap. I 
 
 gained strength little by little ^ and finally became exaggerated in 
 the canon law to such a point that marriage was forbidden between 
 relatives (anathema against whosoever marries any one " de pro- 
 pria cognatione") (eighth century).^ The rule is thus understood: 
 in the direct line the prohibition extends to infinity (as in the 
 past) ; in the collateral line, also to infinity, in theory, and in fact 
 to the seventh degree, after which the Roman law gives no more 
 effect to the "cognatio."^ This is not all. Each people calcu- 
 lating relationship in its own way, and the Germans having a 
 particular method of computation, the impediment was found to 
 be extended out of all proportion among them; their seventh de- 
 gree was the equivalent of the fourteenth degree according to the 
 Roman laws."* The Church adopted this method of calculation 
 and extended it to all the faithful. Outside of the reasons given 
 in the books and of the old repugnance for incest,^ the canonists 
 
 an obstacle to marriage: "Cod. TMod.," 3, 12, 2 (355) et seq.; "Cod. Just.," 
 5, 5, 5 et seq.: "Mark," vi, 18; "Cone. Elvire," 306, c. 61; "Neocesaree," 314, 
 c. 2; Rome, 384-398, nephew and uncle's widow; "Epas," 517, id. Id., "dr. 
 juif." 1st "Cone. Orleans," 18; "Burg.," 36; "Acta Sanct.," Oct. 5th, III, 59. 
 
 1 Avitus of Vienna and the Council of Epao, 517, c. 30: prohibition for the 
 future of marriage between cousins who were issue of persons of the whole 
 blood. Excommunication: "Orleans," 538, 10. — Resistance: Greg. Tours, 4, 
 26 and 9; 5, 2-14; "Dec. Childeb.," 596, c. 2. (death for anybody who shall 
 marry his stepmother; separation in the case of marriages between brothers- 
 in-law and sisters-in-law, excommunication and, if necessary, expulsion from 
 the court, conferring of their possessions upon their relatives). Fredeg., 54; " L. 
 Sal.," 13, 2; cf. "Inst.," c. 3; "Cod. Theod.," 3, 12; "Alam.," 39, 1: relations 
 by marriage, first cousins; separation by the secular judge and confiscation of 
 possessions: "Bai.," 7, 1; "Rib.," 69, 2; Sickel, "Acta Karol.," no. 209. 
 
 2 "Cap.," 743, 3 {Boret, I, 28); and in the Index, see "Incestus"; "Cone. 
 Tours," 567, 21. 
 
 3 The prsetor calls to the "bonorum possessio" children born of cousins 
 who are the issue of persons of the whole blood: Dig., 38, 10, 10; 38, 8, 1, 
 3; Paid, "Sent.," 4, 10, 8; 4, 11, 7 (Int.). — C/., however, "Nov.," 118, 3.— 
 2d, "Cone. Tolede," 531, 5; "Wis.," 4, 1: 6th degree only. Such is the rule of 
 the Eastern Church; cf. "Wis.," 3, 5; 12, 2, 6 and 3, 8; Isid., "Etymol.," 9, 6; 
 "Cone. Rome," 721, 9; Agde, 506, 61; Vermer., 758-68, 1 (4th degree) ; Gre^. //, 
 726 (beyond the 4th degree); Greg. Ill, 732 (7th degree); Jaffe, nos. 1667, 
 1750; Leo III, 800 {Jaffe, nos. 1724, 1912); Roman laws, virtue of the number 
 seven. — "Compiegne," 757 (4th and 3d degree); "Mayence," 813, c. 54 
 (4th degree); "Worms," 868, c. 78; "F. Capit.," 6, 130,229 (7th degree): 
 "Douzy," 874; cf. "L. Sal.," 44; "Rib.," 56, 3; "Bai.," 14, 9, 4; "Roth.," 153; 
 Loening, II, 255; Stobbe,Y, 282; Bluhme, "Abhandl. f. Homeyer," 1871, p. 11. 
 
 * Cf. heresy of the incestuous. "Ecole de Ravenne," I; Gratian, C, 35, 
 q. 5, c. 2; Migne, "Patr. Lat.," 145, 19. From the time of Gratian this method 
 of calculation was generally admitted. Beaumanoir, 19 (same results as the 
 canon law). 
 
 6 Penalties for incest: "Cod. Theod.," 3, 12 and "Int. Wis.," 3, 5; "Rib.," 
 69, 2; "Burg.," 36; "Alam.," 39, etc.; Loening, I, 560; II, 547; Van Espen, 
 III, 4, 48; Ferriere, see "Diet.," and "Inceste Spirituel"; Boutaric, 1, 10, 
 12; see Guijot, and authors cited. The civil legislation punished "incest" or 
 union between relatives within the prohibited degree in a more or less serious 
 manner, according to the degree of relationship (see "Encicl. Ital."). 
 
 122
 
 Topic 4] CONCERNING IMPEDIMENTS TO MARRIAGE [§ HG 
 
 have justified these very extensive prohibitions: (a) by physio- 
 logical reasons; from these unions, they say, "procreari solent 
 cseci, claudi, gibbi et lippi";^ (6) for moral reasons; if marriage 
 were possible between relatives, it is to be feared that there would 
 be no reservation or restraint in the life of the family; (c) for 
 reasons of benefit to society; marriage, says St. Augustine, should 
 be a school of love, "seminarium charitatis " ; it is only between 
 strangers that it fulfills this higher object, relatives being already 
 attached to one another by ties of blood.^ 
 
 The method of computing relationship employed by the Roman 
 law was abandoned as far as marriage was concerned for ordi- 
 nary reckoning, according to which the number of degrees or gen- 
 erations between the relatives and the common ancestor were sought 
 for, only taking into account the farthest removed of them when 
 they were of a different degree.^ Thus, two first cousins separated 
 from each other by four generations are relatives in the fourth 
 degree according to the Roman computation. But, as they are 
 only separated from the common ancestor by' two generations ac- 
 cording to the canonic computation, they are relatives in the 
 second degree; uncle and nephew are in the third degree Roman 
 and in the second degree canonic ("tot gradibus collaterales dis- 
 tant inter se quot uterque (remotior) distat a stipite communi").^ 
 This clumsy procedure is related to the Germanic customs.^ The 
 barbarians represented generations by the limbs of the upper 
 part of the body, rather like children who count on their fingers.^ 
 The head represents the spouses; the elbow, the children; the 
 
 1 "FauxCapit.," 7, 179. 
 
 ^ A reason of vital importance in the Middle Ages. A marriage may cause 
 the cessation of secular enmities between two families and give to one party 
 useful allies against another. 
 
 ' "Form, ad Roth.," 153. Gregory I to Augustine, towards the end of 
 the sixth century or the beginning of the seventh century (authenticity 
 doubtful) (Jaffe, no. 1414). End of the seventh century; "Pcenit." of Theo- 
 dorus, c. 13; Gregory II to Boniface, 726 (prohibition to the 4th degree); 
 Greg. Ill, 732 (7th degree); Zachariaj, 747 (marriage is forbidden as far as 
 relationship can be traced); "Compiegne," 747, 757 (one of the spouses is of 
 the fourth degree, the other of the third); "Wis.," 4. 
 
 * "Actaj Sa;. Sedis," 14, 220 (18S4). 
 
 ^ Contra, Freisen, 436; according to this author, this method of calculation 
 was created by the Church: cf. "Satilisensp.," 3; Thevenin, "Textes," no. 40; 
 Laspeyres,- "Diss. Canonicaj Computationis," 1824; Siegel, "Die German. 
 Verwandtschaftsberechmung," 185.3; Delbriick, "Die Indogerm. Verwandt- 
 schaft-snamen," 1889; Stutz, " Verwandschaf tsbild d. Sachsensp.," 1890; 
 Amira, "Recht," p. 156. Cf. infra "Inheritance"; Guynt, "Degres dc Pa- 
 rents," in the "Tr. de la Repr6s.," 1779; Brunner, " Anglonorman, Erbfolge- 
 system," p. 15. 
 
 6 "Rib.," 56, 3; "Roth.," 153. 
 
 123
 
 § 116] THE F.UIILY [Chap. I 
 
 shoulders, the grandchildren; the neck, the great-grandchildren; 
 the wrists and the joints of the fingers, subsequent degrees; the 
 nearest after these are on the nail.^ From the seventh degree, 
 going back to the common ancestor and redescending to the seventh 
 degree, one gets a total of fourteen degrees. Relationship stops at 
 this point and, consequently, the impediments. But this point 
 is so remote that the relationship is often forgotten, or ignored; 
 the spouses do not seek to discover it unless they are tired of the 
 marriage, and then if only the judges are accommodating, it is not 
 a rare thing to find them making this discovery. After ten or 
 twenty years of life together they separate, and public opinion is 
 not to be deceived; it calls divorce that which the subtlety of the 
 jurists only classifies as nullity.^ The Church felt that it had 
 gone too far; it began by remedying the evil in the granting of 
 frequent dispensations, and then the Council of Lateran, 1215, 
 limited the impediment to the fourth degree (in the collateral 
 line) for the peculiar, outlandish reason that there are four humors 
 in the body.^ This was still going too far, and the practice of 
 dispensations persisted as it had done in the past. 
 
 2d. Civil relationship ^ between relatives by adoption had the 
 same effect as natural relationship,^ or, rather, would have had if 
 the adoption had been practised. 
 
 3d. Spiritual relationship (the relationship of godfather and 
 godmother) ® was the result of baptism; the godfather and the 
 godmother being the same as the spiritual father and mother 
 of the children baptized; marriage between them was forbidden 
 (Justinian).^ The impediment was extended; in the eighth cen- 
 
 ^ "Sachsensp. Landr.," I, 3, 3; c/. Gratian, C, 35, q. 5, c. 1 and 2; Dig. 
 X, 4, 14, 7; Wasserschleben, "Bussord.," p. 45; Migne, "Patr. Lat.," 140, 
 781 {Burchard, 7, 10). As to difficulties, cf. Heusler, 593, 600; Stutz, op. cit. 
 
 2 Isambert, I, 184 (Phillipe-Auguste) ; III, 309 (Charles IV); XI, 313 
 (Louis XII and Jeanne de France). Cf. Gautier, " CMvalerie," 353; "Fors de 
 B^arn," 267. 
 
 3 Dig. X, 4, 14, 8; Galien, "De Elem.," 1, 5; 2, 2; Beaum., 18, 7. As to 
 the Protestant law, cf. Friedberg, § 146, II. 
 
 * Freisen, 507; Esmein, I, 362; II, 261. 
 
 ^ To a lesser extent, however (the person adopting or his wife, person 
 adopted or his wife), cf. C, 30, q. 3, c. 15. 
 
 « Laurin, "Arch. F. Kath. Kirch.," XV, 226. 
 
 7 "Cod. Just.," "De Nupt.," 26; "Cone," "in TruUo," c. 53; "Rome," 
 721, c. 4; "Compiogne," 753 (cohabitation should cease if one of the spouses 
 held a son of the other at the baptismal font); "Mayence," 813, c. 55; "Ca- 
 pit.," 5, 167; 6, 4; 7, 179; C, 30, q. 1, c. 2 and 3 (modifies the preceding 
 rule). In the thirteenth century marriage is forbidden between the person 
 baptizing and the person baptized and their relatives; between these persons 
 and the godparents; between godparents themselves; between the children 
 of the godparents and the godchild (annulment of the marriage of Charles 
 
 124
 
 Topic 4] CONCERNING ZMPEDEMENTS TO MARRIAGE [§116 
 
 tury a godfather and godmother could neither marry each other 
 nor marry the father or mother of the godchildren. Then, owing 
 to a reaction analogous to that which is to be observed in the 
 case of natural relationship, the effects of spiritual relationship 
 were limited. According to the French practice of the monarchic 
 period, the godfather is allowed to marry the godmother.^ 
 
 4th. Relationship by Marriage^ ("affinitas") ^ was estabhshed: 
 (a) by the consummation of the marriage, between each spouse 
 and the relatives of the other, "^ as they had become but one 
 flesh, the relationship of one was communicated to the other, ^ 
 and as a consequence the prohibition was the same as far as 
 it affected the relationship; after the Council of Lateran, 1215, it 
 was hmited to the fourth degree in the collateral line; (6) as a 
 consequence of an illicit intercourse ("delictum publicum et noto- 
 rium"); ^ it was restricted to the first and second degrees by the 
 Council of Trent (Sec. 24, Chap. 4).^ 
 
 5th. An impediment called one of Public Propriety ^ resulted : 
 
 (a) from betrothals ^ between each engaged party and the rela- 
 
 the Handsome and Blanche of Burgogne); between the surviving spouses of 
 godparents, the person baptized and their relatives. The Council of Trent 
 s. 24, c. 2, limited this impediment as is pointed out in the text: Viollet, 435; 
 Friedherg, § 148 (Evangelical Church). 
 
 1 Boularic, "Inst.," 1, 10, 60. 
 
 2 "Thes.," Oehlrichs, III, 2; Freisen, 439; Esmein, I, 374; II, 262; Fried- 
 berg, § 147. 
 
 3 Jewish law: "Leviticus," xviii, 6; Stubbe, "Ehe in Alt. Testam.," 60. 
 Cf. as to this: the levirate in Roman law, D., 23, 2, 14, 4; 38, 10, 4, 5; "Cod. 
 Just.," 5, 4, 17. — Christian influence: in 355 prohibition of marriage be- 
 tween brothers-in-law and sisters-in-law; "Cod. Theod.," 3, 12, 2; 5, 5, 5; 
 "Ann. Ec. Sc. Pol.," 1900, 316. 
 
 * A conception which is found in St. Augustine (§ 430) and which pre- 
 vailed in the eighth century: C, 35, q. 32, c. 15. Cf. "Cone, de Neoc6- 
 sar^e," 314 c. 2, prohibition of marriage with the brother of the deceased 
 husband (c/. "Mark," vi, 18); Eliberr. , 305, c.Ql: wdth the sister of the deceased 
 wife; "Rome," 402, 11: with the wife of the uncle. "Dec. Childeb.," 596; C, 
 35, q. 2, c. 7; Dig. X, 4, 14, 8; cf. Loysel, 134: "Morte mafille, mortmongendre." 
 
 ^ The canon law ended by drawing a distinction between, 1st, the marriage 
 "prirni generis" between each spouse and the relatives of the other; 2d, the 
 marriage "secundi generis" between each spouse and the "affines prirni gene- 
 ris" of the other; 3d, the marriage "tertii generis" between each spouse and 
 the "affines secundi generis" of the other. The impediments resulting from 
 this species of aflSnity were done away with in 1215: C, 35, q. 10; q. 2, c. 12; 
 Pothier, no. 161; Durand de Maill., "Diet.," see "Affinite." — EvangeUcal 
 Church, Friedberg, § 147, II. 
 
 8 Earliest traces in a pseudo-Gregorian letter: Ainschus, "Pseudo-Isid," 
 749; Dig. X, 4, 13, 9; " Affinitas Superveniens " ; Dig. X, 4, 13,6; Hormann, 
 " Qua^i-Affinitat," 1897. 
 
 ' EvangeUcal Church: Friedberg, § 147, II. 
 
 8 Cf. Pothier, no. 224 (marriage of a man with the stepmother of his de- 
 ceased wife). 
 
 » Dig., 23, 2, 12; 14, 4; Gratian, C, 27, q. 2, c. 15; C, 17, q. 2, c. 31; "VI.," 
 4, 1; "Trente," s. 24, c. 3; "Acta S. Sed.,'*^ 12, 147. 
 
 125
 
 § 116] THE F.-^MILY [Chap. I 
 
 tives of the other, for this would be a marriage "in spe" and 
 would produce a "quasi relationship by marriage"; the Coun- 
 cil of Trent limited this to the first degree and made it 
 subordinate to the validity of the betrothals ; (6) of a marriage 
 not consummated.^ 
 
 The Law of September 20, 1792, simply forbade marriage : (a) to 
 infinity between relatives or relations by marriage in the direct 
 line; (b) between brother and sister in the collateral line. Every 
 other impediment resulting from relationship was done away 
 with. 
 
 § 117. The Same. — (V) Incompatibility of Marriage with Cer- 
 tain other Conditions. 1st. Existence of a previous marriage ^ 
 ("ligamen").^ Bigamy is forbidden,^ and still more so is polyg- 
 amy.^ 2d. The entering into higher religious orders (above and 
 including an under-deaconship) is a sort of marriage.^ 3d. It is 
 the same with regard to monastic vows.^ 4th. Diversity of religion 
 
 1 "Cod. Just.," "De Inc. Nupt.," 5, 5, 8; Dig. X, "de Spons.," 4.' 
 
 2 Scaduto, 420; Freisen, 364, 626; Esmein, I, 267; II., 240; Cornu, "These," 
 1887. 
 
 3 Polygamy in the Bible: "Deuter.," xxi, 15 et seq.; "Paralip.," 2, 24, 
 3. Cf. "concubinage." — The idea of the sacrament and the influence of the 
 Roman law have caused bigamy to disappear: "Cone, de Trente," sess. 24, 
 c. 2. Cf. "Anabaptists," "Mormons." 
 
 * Proof of the death of the absent spouse: Dig. X, 4, 1, 19; "Acta S. 
 Sedis," 436. See "Certificates of the Civil Status," "Marriage Capable of 
 Annulment," "Second Marriages." 
 
 6 '-Tr. de Polygamia," 1610 (extract from Th. de Beze); Weise, "Ex. Bi- 
 gamia per Dispens.," 1824; Koestlin, "Luther," 2, 481; Daphnceus Arcuarius, 
 "De Polvg.," 1679; Aletheus, "Polyg. Trumph.," 1682; Rady, "Reform, in 
 B. Z. Doppelehe d. Landgr. Philipp.," 1890; Luther, "M6m.," 2, 60; "Mer- 
 cure de Fr.," 1757, 95; Grimm, 440. 
 
 ^ As to ecclesiastical celibacy, see Gratian, D., 27, c. 8; Freisen, 759, 
 763 (impediments "ordinis votii" established by way of interpretation, and 
 not by law). ParUament annulled the marriages of priests (Order of Aug. 22, 
 1640j: cf. Marnier, "Etabl. de Norm.," p. 139. Rejected by the Protestants, 
 ecclesiastical celibacy is attacked by the philosophers of the eighteenth cen- 
 tury: Montesquieu, "Espr. des Lois," 23, 21; 25,4; Diderot, "OEuvres," ed. 
 .Gamier, vol. 14, p. 54; "Inconv. du Celibat. des Pretres," 1781. The Abb6 of 
 St. Pierre considered it a fatal thing to the State and the Church, as it de- 
 prived one of well brought up children and, as a consequence, of honest peo- 
 ple, and the other of good Christians. The Memorials of the States General 
 complained of the scandals which resulted from this celibacy (cases of adul- 
 tery and seduction). After 1789 many pamphlets demanded its abolition: 
 Mauirot, "Discipl. de I'EgUse s. le Mar. des Pretres," 1790. In 1791 the 
 Legislative Assembly refused to deprive married priests of their salary. From 
 that time on many priests were married. The Convention made various pro- 
 visions in their favor: Duvergier. V, 107; VI, 37, 97, 214, 351; Cerati, "Du 
 Celibat et du Mar. des Prfitres,'* 1829; Plocque, "Condition ,Iur. du Pritre," 
 1887; Theiner, "Einfuhr. d. Ehelosigk.," 1898; Horoy, "Mar. du Pretre," 
 1890; infra. "Concubinage"; "Capitul.," "table," see "Sacerdotes"; "Wis.," 
 3, 4, IS; Dig. X, 4, 6; 3, 1, 2, 3. As to the English clergy see Glasson, "Inst. 
 Anglet.," 5, 90; Launn, "Coelib. d. G.," 1880. 
 
 ^ The Roman and Frankish laws pronounced penalties against anybody 
 
 126
 
 Topic 4] CONCERNING IMPEDIMENTS TO MARRIAGE [§ 117 
 
 ("dispar cultus") ^ creates an impediment which recalls the old 
 impediment resulting from a difference in social condition.^ The 
 Roman laws forbid marriages between Christians and Jews.^ 
 After the fourth century the councils forbid Christians to marry 
 with infidels, as the Old Testament had forbidden the Jews to do; ^ 
 but the nullity of such marriages was not decreed until the middle 
 of the twelfth century.^ The reason given was that marriage, 
 being a sacrament, assumed that those who contracted it had 
 been baptized.^ The Eastern Church even annulled marriages 
 with heretics; ^ in the West heresy was looked upon as simply a 
 prohibitive impediment.^ The question was of no importance 
 excepting as regards the Reformation, and when the Council of 
 Trent had required the presence of the parish priest in order to 
 make the marriage valid, the Church was obliged to regulate 
 mixed marriages and to give its opinion upon marriages con- 
 
 who married a virgin or a widow who had made a vow of chastity: "Wis.," 
 3, 5, 2; "Liut.," 30, 95; Greg. Tours, 9, 39. The Edict of Clotaire, 614, 18, 
 annuls these marriages. The marriage of monks was forbidden, under penalty 
 of annulment, only at a rather late period: "Cone. Tours," 567; "Trosli.," 
 909, 8; "Latran," 1123, c. 21; Dig. X, 27, q. 1, c. 22; "Trente," sess. 24, c. 
 9; Pothier, no. 112: simple vows do not annul the marriage; it is only solemn 
 vows that have this effect, and on this point it is less the vows themselves 
 than the religious professions to which these effects are attached: C, 1, 
 " in VI," 3, 15. French jurisprudence does not admit of any tacit profession. 
 "The coat does not make the monk." 
 
 1 Wiesehnhn, "De Imped. Disp. Cultus," 1865; Freisen, 635; Esmein, I, 
 216; II, 267; Friedberg, § 150 (bibl.). 
 
 2 And which makes the "consortium omnis vitse" difficult. The Church 
 sees therein a special danger to the faith. • 
 
 ' "Cod. Theod.," "De Jud.," 6 (Death); C, 28, q. 1, c. 17 and 10; 
 Beaum., loc. cit.; "Cod. Just.," 1, 9, 6. The EvangeHcal Church condemns 
 them with Melanchthon, contrary to Luther: Strampff, 283; Sarcerius, "V. 
 Ehestande," 1556 (82, 5); "Orleans," II, 19 (Bruns, 187). etc. 
 
 * Disfavor: Paul, 2. "Cor.," vi, 14; 1. "Cor.," vii, 12; St. Augustine, 
 "De Fide," 19; Tertull., 2 "Ad Ux.," 2-8. St. Augustine tolerates them 
 (Monica converts Patricia): Amhros, "De Abraham," I, 9; "Cone. Arvern.," 
 535; Loening, II, 565. 
 
 * P. Lombard, 4, D., 39, a; Gratian, C, 38, q. 1. c. 14; Bernard de Pavie 
 ("imped, dispar cultus"); Benott XIV, "BuUe Singul. Nobis" custom. 
 
 * The marriage of infidels (with one another) not being a sacrament, is not 
 absolutely indissoluble; divorce is possible ("casus apostoH, privelegium 
 Pauhnum"; Paul, "1 Cor.," vii, 12, who only gave advice in referring to 
 the civil law of his period); C, 28, q. 1, c. 4; Dig. X, 4, 19, 7; 3, 22, 6; 
 3, 33, 1 ; a spouse, upon being converted, can repudiate the other spouse when 
 the latter does not wish to continue to live in common or renders it insup- 
 portable because of religion ("contumelia Creatoris," a sort of adultery), 
 Benott XIV, Feb. 9, 1949 (India); Esmein, II, 270; Desessarts, "Dissert.," 
 1763, 1765; Guyot, see "Mar." (converted Jew). 
 
 ^ But not with schismatics: "Cone," "In Trullo," 692, c. 72. In this sense 
 Bernard de Pavie, "Summa de Matr.," p. 291; Tancred, id., vol. 24. 
 
 8 Durand, "Spec," 4, 3, 2. Baptism is sufficient, even if it is performed 
 by a heretic, for one to be a Christian: St. Thomas, "Comm. in IV 1. Sent.," 
 d. 39, q. 1, Art. 1; Agde, in 506, c. 67. 
 
 127
 
 § 117] THE FAJVIILY [Chap. I 
 
 tracted by heretics among themselves.^ In 1680 an Edict of 
 Louis XIV decreed the nulhty of marriage between Cathohcs and 
 Protestants; it was in the same spirit as that of the canon law 
 since the Reformation; the Catholic Church only allowed such 
 marriages by means of a dispensation of the Pope, and upon con- 
 dition that the heretic forswore his beliefs before the celebration 
 of the marriage in the presence of the Catholic priest.^ Only in 
 cases where it did not have sufficient power did the Church re- 
 sign itself not to demand the forswearing and to the taking of 
 precautions with the object of avoiding the conversion of the 
 spouse who was a Catholic^ ("impedimentum mixtse religionis"). 
 It is this "modus vivendi" which is still the foundation of ecclesi- 
 astical discipline. 5th. Impediinents to marriage between the 
 spouse guilty of adultery ^ and his accomplice ^ (if they have 
 promised to marry each other). 6th. Between one of the spouses 
 and the murderer of the other. 
 
 § 118. The Same. — (VI) Prohibitive Impediments. 1st. Be- 
 
 • BenoU XIV, "Declaration," Nov. 14, 1741: validity of the marriages 
 of heretics in the Netherlands. Extension to the majority of the Protestant 
 countries; wherever the Council of Trent was not made public the old law 
 subsisted (England); it was the same thing wherever it was practically im- 
 possible to conform to it: Friedberg, § 150, no. 25. 
 
 2 Benoit XIV, "Encycl. p. la. Pologne," 1748; Richter, "Cone. Trid.," 5.59. 
 
 ' (A) Dispensation granted by the bishop without any abjuration: {Be- 
 noU XIV, 1750; Jacobson, "Ueb. Gem. Ehen," 1838); the forms of the Coun- 
 cil of Trent are not necessary {BenoU XIV, 1741); they simply demand a 
 promise that all the children shall be brought up in the Catholic reUgion 
 {Pius VI, 1782), or they are even contented with a division (Silesia). At the 
 end of the eighteenth century this impediment is abolished in effect in certain 
 dioceses (Mayence, etc.). — (B) More severe tendencies in the nineteenth 
 century. A written declaration under oath by which the heretic pledges 
 himself in the presence of two witnesses to allow his spouse freely to prac- 
 tice her religion; the Catholic promises to do everything in Ms power to con- 
 vert his spouse. Both spouses pledge themselves to bring up the children in 
 the CathoUc ReUgion. (Nevertheless, they decided that the boys should be 
 brought up in the reUgion of the father and the girls in the reUgion of the 
 mother.) The spouses also promised not to present themselves before heretic 
 ministers in order to have their union blessed. The CathoUc parish priest 
 must not bless the spouses; he takes part as a witness outside of the church 
 when the exchange of consent is given ("assistentia passiva"). The Holy 
 See can dispense with 'these conditions: "Acta. S. Sed.," 16, 207. — Measures 
 of retaliation in Germany: Friedberg, "Ev. Verfassungsr.," 279, 282. 
 
 * Schultz, "De Adult. Matr. Imped.," 1857; Freisen, 615; Esmein, I, 384, 
 398. 
 
 ^ Originally a perpetual penance and a prohibition of any future marriage: 
 Frank, "Bussdisciplin.," 670; Loening, II, 567; Reginon, 2, 235. Following 
 this temporary penance: C, 31, q. 1, c. 5; "Capit. Compend.," 757, c. 11; 
 "Cone. Tribur," 895, 40. Estimation of the bishop. The impediment does 
 not become an invaUdating one excepting in Gratian and Dig. X, 4, 7, 6; 4, 
 7, 1; "Summa Rolandi," p. 155; "Ord. de Geneve," 1541 {Richter, Kirchen- 
 ordn.," I, 349). CJ. Strampff, "Luther," p. 279; Bohmert, op. cit. 
 
 128
 
 Topic 4] CONCERNING IMPEDIMENTS TO MARRIAGE [§119 
 
 trothals; there is an impediment between one of the betrothed 
 and every person other than the other betrothed. 2d. An Ordi- 
 nary vow. 3d. Public penance. 4th. Heinous crime: murder of 
 a spouse, of a husband by his wife or vice versa, marriage with a 
 nun. 5th. "Tempus feriarum": from Ash Wednesday to Easter 
 Week; ^ during the three weeks which precede the Feast of Saint 
 John the Baptist ; from Advent to Epiphany. 6th. " Interdictum 
 Ecclesise" or prohibition by the ecclesiastical judge of contract- 
 ing marriage until the proliibition shall be removed, because it is 
 to be feared that there is an impediment.^ 7th. Heresy. 
 
 § 119. Preventing a Marriage.^ — (I) Evangelical Denunciation.'^ 
 In order to assure respect for these numerous impediments, the 
 Church created denunciations. When publishing the banns of the 
 marriage the priest declares that it is the duty of every one of 
 the faithful to make known any impediments which may exist. 
 The parish priest who is notified of the existence of some impedi- 
 ment should put off the celebration of the contemplated union 
 until such time as the ecclesiastical judge shall have permitted it 
 to take place; the latter sends forth an interdict of the marriage 
 as soon as he has received this notice. (II) Injunction (fourteenth, 
 fifteenth centuries).^ This method, a result of practice, differs 
 from the preceding ^ in that the person offering opposition is a 
 party to the proceedings with regard to the possibility of the mar- 
 riage (costs). The right of claiming injunction belonged, perhaps, 
 first of all, to the betrothed who claimed performance of a prior 
 
 * Council of Laodicea, 368. "Trente," s. 24, c. 10. Certain dioceses have 
 special customs, — for example, it is forbidden to celebrate marriages at 
 night. 
 
 2 Excommunication did not allow of the receiving of any sacrament; as a 
 consequence, people who were excommunicated could not receive the nuptial 
 benediction before being absolved. Now, actors were regarded as disgraced 
 and excommunicated (Council of Aries, 314, c. 5). It was for this reason 
 that the parish priest of Saint-Sulpice refused to marry Talma. The letter 
 addressed by the latter to the Constituent Assembly and read at the meeting 
 of July 12, 1790, was the starting point of reforms with regard to marriage. 
 In the same category of ideas let us recall those verses of Boileau attesting 
 that they were refused religious burial: 
 
 "Avant qu'un peu de terre obtenu par pri^re 
 Pour jamais sous la tombe eut enfermc Moh6re." 
 
 Guyot, see "Com^dien." 
 
 * Pothier, no. 82. See Durand de Maillane, Esmein, I, 421. 
 
 * "Matthew," xviii, 15; Durand, "Sp(?c.," 3, 1, 14. Verbal declaration with- 
 out any forms: Fournier, "Officialit<5s, 256. 
 
 * Register of the Ecclesiastical Judge of Cerisy, "Oppositio" or "impe- 
 tito" (506, 58, etc.). 
 
 * "Confer, de Paris," I, 269; see Guyot, Ferrihe, Descombes, "Recueil," 2. 
 
 129
 
 § 119] THE FAMILY [Chap. I 
 
 promise of marriage; finally, it was granted to whoever was in- 
 terested in preventing the marriage from taking place, and those 
 who called themselves engaged or married were considered as 
 such, as were parents with respect to the marriage of their chil- 
 dren, guardians or trustees with respect to that of their minor 
 wards. Injunction was by means of a writing, signed by the 
 person offering opposition, and of which the parish priest was 
 notified by the bailiff. However little foundation it seemed to 
 have, although it might be without object, it prevented the parish 
 priest from proceeding with the celebration of the marriage until 
 withdrawal granted by the party or by the judge.^ It was exceed- 
 ingly inconvenient, because unjustified difficulties and delays pre- 
 vented a great number of marriages from taking place.^ It was 
 not enough to punish vexatious oppositions with penances, as did 
 the canon law, with damages, as did the parliaments. Following 
 the regulating Order of April 28, 1778, the Law of September 20, 
 1792, IV, 3, was obliged to remedy the evil by limiting to a very 
 small number of persons the right of claiming injunction (father, 
 mother, etc.) and in compelling the judges to decide upon the ques- 
 tion with little delay. 
 
 § 120. Dispensations.^ — From these all too numerous and un- 
 justifiable impediments the Church found itself obliged to grant 
 dispensations; so that certain of them, although qualified as in- 
 validating impediments, could be removed; it was in their case 
 a forerunner of abolition. 
 
 In olden times there were no dispensations, properly speaking; 
 the Church only exercising a disciplinary power over marriage, 
 it was for the ecclesiastical judge to uphold or to dissolve mar- 
 riages according to circumstances. But, whilst the canon law con- 
 stituted true legislation as far as matrimony was concerned, the 
 " dispensatio " seemed like a prerogative belonging exclusively to 
 
 1 Order of June 15, 1691: register of opposition and withdrawals to be 
 kept by the parish priests. Penalties against the parish priest who celebrated 
 a marriage in the face of opposition : Suspension for three years pronounced by 
 the ecclesiastical judge, condemnation to pay damages by the secular judge. 
 
 2 Isamb., XXIV, 388. Opposition based upon a civil interest or a verbal 
 promise of marriage could not be received (1777). Complaints of the clergy, 
 1760. 
 
 3 Richfer, § 280 (bibl.); Friedberg, § 151; Kreslinger, "Dispens.," 1710; De 
 Juslis, "De Disp. Matr.," 1739; Giovine, id., 1863; Du Perray, "Tr. des Disp. 
 deM.," 1719; Collet, "Tr. des Disp.," 1777. Taxes in Horry, "Mar. Chretien 
 in F.," (1700); Durand de Maillane, see "Diet, de Dr. Canon," Pothier, no. 
 252; Maultrot, "Examen des Princ. s. les D.," (1789); Caillaud, "Man. des 
 Dispenses," 1873; Frcisen, 891; Esmein, II, 315; Pompen, "Tract, de Disp.," 
 1896; Brandhuber, "Disp.," 1888. 
 
 130
 
 Topic 4] CONCERNING IMPEDIMENTS TO MARRIAGE [§120 
 
 the legislator. In the twelfth century, at least, the general power 
 of granting dispensations was reserved to the pope,^ and very 
 exact rules determined conditions under which they were applica- 
 ble. Whilst the State disputed the right of the Church to legis- 
 late on the question of marriage, it did not fail to claim for 
 itself the right of " dispensatio " for the impediments which it had 
 itself created.^ 
 
 It is admitted that the impediments of natural or divine law do 
 not allow of any dispensations;^ only the impediments of human 
 law could be removed "* by the Church ^ (or by the State). For ex- 
 ample: dispensations for marriages between uncles and nieces, 
 first cousins, brothers-in-law and sisters-in-law,^ spiritual relations, 
 etc. The Council of Trent decreed that they should only be 
 granted on rare occasions for just cause, and that nothing should 
 be demanded in return for them (Sec. 24, 5). Neither on the first 
 nor on the second of these points were its limitations observed.^ 
 As to just causes, they were multiplied to excess ("angustia loci," 
 insufficiency of the marriage portion, widowhood w4th children, 
 the age of twenty-five years for girls, the presence of secret here- 
 tics, a means of terminating an important lawsuit, the preserva- 
 tion of the property of an illustrious family).^ The procedure 
 consists in addressing a petition to the pope; it is presented at 
 
 ' The bishops have it only as an exception. — Marriage of King Robert 
 with his cousin Bertha; Pope Sylvestre II. excommunicated the parties and 
 the bishops who had granted the dispensations: Stiegler, "Arch. f. K. K.," 
 1897; "R. G. H.," 1898, 57. 
 
 ^ Cf. Rescript of the Prince at Rome (marriage between first cousins): 
 "Cod. Th^od./' "si nupt.," 1. Ex.: "Edit." 1680. 
 
 3 Insanity, impuberty, impotence, "ligamen," religious profession; rela- 
 tionship in the direct line between brothers; affinity to the first degree; adul- 
 tery accompanied by murder; abduction; "dispar cultus." 
 
 ■» Variation. From the time of the Council of Trent dispensations for 
 marriages between first cousins. Uncle and niece: Philip II took as his 
 fourth wife Anne of Austria, who was his brother's daughter. 
 
 ^ The dispensation is given sometimes "in contrahendis matrim.," and 
 sometimes "in contractis"; in the latter case it can compel a remarriage 
 (rehabilitation) or else it validates the marriage retroactively ("Dispensatio in 
 radice matrimonii"; reserved to the pope). Writ of the Penitentiary's Court; 
 it is granted first of all in order to legitimize the children, and later in the 
 interest of the spouses themselves, — for example, "sanatio in radice" of 
 civil marriages contracted in France during the Revolution. 
 
 8 Rare in the Middle Ages, granted to princes for reasons of State (for 
 example, for the pacifying of the Empire, Otto IV marries the daughter of 
 his competitor, PhiUp, although she was his near relative); extended later 
 on to mere citizens. 
 
 ^ Dispensations "in forma pauperum," if the parties are unable to pay the 
 customary tax. 
 
 * Dispensations sometimes without a cause: the good use made of the 
 sums given to obtain them, they say, is one cause for their being granted. 
 
 131
 
 § 120] THE FAMILY [Chap. I 
 
 the Dataria, which issues the dispensations in the form of a com- 
 mission; the official appointed verifies the facts to which their 
 granting is subordinate and pronounces the dispensation.^ INIod- 
 ern law has shown itself very. stingy in this matter;^ this was 
 bound to be so from the moment when only the most necessary 
 impediments were upheld. 
 
 § 121. Ntillity of Marriage.^ — In the case of the violation of an 
 impediment, an action of an especially disciplinary or penal char- 
 acter, " accusatio," was open, first of all, to everybody ("cuivis ex 
 populo") ^ against the spouses who had not conformed to the 
 laws of the Church. The ecclesiastical judges dissolved the mar- 
 riage every time that the impediment was sufficiently serious 
 (invalidating), and let it subsist, excepting for the infliction of pen- 
 ances on the spouses, when it w^as of no importance. It was too 
 easy to abuse these accusations for the right of making them not to 
 be restrained in many cases.^ Thus, when to insist upon carrying 
 out the marriage would not cause the spouses to sin, it is to 
 them alone that the action w^as given (impotence, impuberty, de- 
 fect or even absence of consent); it depended upon them whether 
 the marriage should be "allowed to subsist.^ On the other hand, 
 the principle persisted,^ but only the relatives were allowed to 
 take action ("personee proximae et necessariae"); ^ it is only 
 when the latter are lacking that the action is granted to the 
 "vicini bonae famse," and, if there are no neighbors, then to 
 strangers.^ In case of "diffamatio" or public rumor, the judge 
 may of his own accord pronounce the nullity, provided that the 
 right of pleading should not be reserved to the spouses alone. ^° 
 
 ^ Sentence of the ecclesiastical judge after an investigation and communi- 
 cation with the datary. 
 
 2 C/. "Evangelical Church." Friedberg, § 152, II. 
 
 3 Pothier, no. 442; Richter, 205; Walter, 316; Freidberg, § 152 (bibl.); 
 Fischer, " Ungultigkeit d. Ehe," (" Jahrb. f.Dogm.," 1889,253); "Siete Part.," 
 IV, 9; Esmein, 1, 403; II, 290; Stobbe,2i9; Strykius, "Be Matr. Null.," 1739. 
 
 * Cf. Roman procedure dealing with accusations: Beaurepaire, "Null, de 
 M. en 1553," 1883. 
 
 fi One can be at the same time accuser and witness, contrary to principle, 
 an exception which can be understood as applying to relatives on questions 
 of relationship, and which was extended to every action for annulment. 
 
 ^ The canon law does not admit of any relative nullity under pretext that 
 marriage cannot be a lame contract. Thus the action can be brought by 
 either spouse. French jurisprudence is contrary to this: Pothier, no. 444. 
 
 7 Lancelot, "Inst.," 2, 15. 
 
 8 "Cod. Th^od.,'* 9, 7, 2; "Cod. Just.," 9, 9, 30 (adultery). Restriction 
 again in certain cases: Dig. X, 4, 18, 5 and 6. As to collaterals: Pothier, no. 
 448. 
 
 9 Durand, "Spec," 4, 4. 
 
 " Dig. X, 4, 18, 2 and 6; 4, 11, 7. 
 
 132
 
 Topic 4] CONCERNING IMPEDBIENTS TO MARRIAGE [§121 
 
 In the fourteenth century the prosecutor of the ecclesiastical 
 judges carried on the examination and brought the action of anul- 
 ment. In this way absolute nullities came to be distinguished 
 from relative nullities; although invalidating impediments had 
 the same effects, they were not found to be placed under the same 
 category. The jurisprudence of the parliaments contrasted ab- 
 solute defects, of a public nature,^ which every interested party ^ 
 and the public minister himself ^ had the right to plead, with rela- 
 tive defects,^ which did not have any effect upon public order, and 
 which only gave the right of action to certain interested parties,^ 
 such as the spouses, or, rather, one of them, their fathers and 
 mothers, if the marriage was contracted without their consent, 
 and to their guardians in analogous cases. 
 
 The actions for the annulment of marriage had, moreover, 
 their own special rules. The canon law declared that the right 
 to these actions could not be lost by expiration of time.^ Before 
 the Courts of the Church their procedure was simple and sum- 
 mary.^ The testimony of relatives was admissible, but admis- 
 sions and acquiescence were not allowed for fear of a fraudulent 
 understanding.^ 
 
 The ecclesiastical judges were competent when the annulment 
 of the marriage was the direct object of the prosecution; ^ if dam- 
 
 1 Invalidating impediments and defects of essential form: lack of publicity 
 and jurisdiction of the priest and absence of watnessos. 
 
 2 Interest which exists at the time or which afterwards comes into ex- 
 istence. 
 
 ' Public scandal: the procurator of the king or the fiscal procurator act, 
 and, if they do not act, then the datary. Declaration of June 15, 1697. 
 
 '' They covered themselves by means of a ratification: Jul., "Elem. de 
 Jur.," p. 22. 
 
 5 For example, the spouse who has undergone the violence is the only one 
 allowed to attack the marriage. In the same way, it is only the spouse of 
 the impotent party who can make complaint, and this defect is done away 
 with by long cohaiaitation. — Collaterals were able (but only with difficulty) 
 to attack a marriage affected by an absolute d(>f(!ct after the death of the 
 spouse when they had an interest in its annulment (for example, to put out- 
 side of the inheritance children born of the marriage). 
 
 « Innocent III in promulgating the decisions of the Council of Lateran, 
 121.5, as to relationship, declares that the action cannot be lost by prescrip- 
 tion in such a case as this. The "Close" generalizes. Judgment in matri- 
 monial actions has never the force of "res adjudicata" (endangering of 
 souls), Pothier, no. 461; Diiperray, "Dispenses," 1769, p. 320; Guyol, "Rep.," 
 see "Impuissance." Prohibition of comi)ounding and compromising in the 
 matrimonial actions. Each party on appeal may suggest new reasons. 
 
 ^ The oath of calumny is not demanded (si)iritual causes). 
 
 8 Dig. X, 4, 1.3, 5; 4, 18, 3; 2, 27, 10; Gralinn, C, 3.5, q. 6, c. 3; Beaiim., 
 18, 16; "Defensor Matrimonii" created in 1741 by the Constituent Assembly; 
 "Dei Mifeerationo" of BenoU XIV. 
 
 9 Edict of Dec, 1606, 12; 1695, 34; Bardet, II, 5, 22. 
 
 133
 
 § 121] THE FAJVIILY [Chap. I 
 
 ages were sought by reason of the annulment, it was necessary to 
 apply to the civil judge; ^ also, the civil judge alone was the one 
 to determine whether the marriage had been celebrated or not 
 (possessory action) ; finally, as soon as the ordinances or the liber- 
 ties of the Galilean Church had been violated, recourse was had to 
 the parliaments by means of an appeal as for error.^ 
 
 Certain marriages, without being annulled, were deprived of 
 their civil effects (for example, the children could not inherit); 
 secret marriages,^ marriages "in extremis; " ^ and those of persons 
 civilly dead.^ 
 
 § 122. Rehabilitation and Repudiated Marriage. — Marriages 
 which had been annulled were looked upon as having had no ex- 
 istence. The ecclesiastical judges for a long time commanded the 
 spouses to re-establish their union, so long as there was no possi- 
 bility of obtaining dispensations or of the impediment having 
 disappeared; by this was understood a new celebration of the mar- 
 riage, which this time was regular.^ But the parliaments put an 
 end to this abusive practice; ^ the spouses could re-establish their 
 marriage, but they were no longer compelled to do so. When re- 
 pudiation was not possible, the spouses who had acted in good 
 faith were first of all likened to spouses who had acted in bad faith ; 
 their marriage was of no more effect; thus, the children were looked 
 upon as illegitimate,^ a crying injustice from the moment when 
 all too numerous and scarcely known impediments degenerated into 
 a snare for the best intentioned. At an early period (from the 
 time of Peter Lombard), the Church found itself compelled to 
 admit ^ that, although annulled, the marriage would have the ef- 
 
 ' Collaterals who only have a right to damages. 
 
 2 Only way open to the father, mother, or guardian who has not given 
 consent to the marriage. 
 
 3 Decl., Nov. 26, 1639, Arts. 5, 6 (cf. Civ. Cod., 25). The Declaration 
 seems to confuse secret marriages and hidden marriages. But the canon law 
 distinguishes between them. The former are regular, but are not necessarily 
 public. J'hey are entered in a register under seal which is distinct from the 
 regular register: (Benoit XIV, 1741); Mazzei, "De Matrim. Conscientiae," 
 1766; Hertz, id., 1702. 
 
 « Boutaric, "Inst.," 1, 10, 13; Poullain du Pare, "Principes," I, 121. 
 
 s Boutaric, "Inst.," 1, 10, 10 and 13. 
 
 « Hertz, "De Matr. Instaurato," 1702. Cf. supra, "Dispensation." 
 
 7 "Arr.," March 11, 1710; cf. Decl., June 15, 1697. 
 
 * Oriental Church: "Petrus," I, 39 (they succeed if they have been in 
 possession of the status for 30 years). Gratian does not recognize reputed 
 marriages; D., 35, q. 7. 
 
 9 No law was enacted, but practice admitted this restraint on the indefinite 
 increase of causes of annulment, and it seems that one must give credit for it 
 to the Gallican Church: P. Lombard, "Sent.," 1, 4; D., 41, c. Dig. X, 4, 17,2; 
 4, 3, 3; 4, 7, 8-14. Cf. Rescript of Marcus AureUus, D., 23, 2, 57, 1; "Cod. 
 
 134
 
 Topic 4] CONCERNING IMPEDIMENTS TO MARRIAGE [§ 122 
 
 feet of a valid marriage dissolved by death, provided that the 
 spouses, or at least one of them, had acted in good faith, and that 
 there had been a celebration "in facie Ecclesiae";^ from 1215 the 
 banns were also required to have been published. These effects 
 were at first merely due to the interests of the children (illegiti- 
 macy) ; ^ later,^ to those of the spouses who had acted in good 
 faith (upholding of dower, etc.). 
 
 Just.," .5, 5, 4; Hertz, "De Matr. Put.," 1690; "Sachsensp.," 3, 27; Braclon, 
 fo. 63; Glanville, 7, 12. 
 
 1 Cf. Viollet, p. 439; Stohhe, 249. 
 
 2 No legitimation for children born before the marriage : Pothier, 437. 
 
 3 Parnormit., Dig. X, IV, 20, 2. 
 
 135
 
 § 123] THE FAMILY [Chap. I 
 
 Topic 5. Effects of Marriage 
 
 § 123. The Legal Consequences. I §§ 125, 126. The Same: Penalties. 
 
 § 124. Adultery. | 
 
 § 123. The Legal Consequences of marriage could be summed 
 up formerly in the acquisition of the husband's power over the 
 wife, which bears at the same time on the person and on the 
 possessions of the wife, and in the acquisition of the paternal 
 power. But this simple formula did not agree very well with more 
 modern law. The power of the husband becomes less. Whereas 
 in the primitive law the husband had scarcely anything but rights 
 and the woman scarcely anything but duties, it now becomes a 
 question of the rights and the duties of each one of the spouses. 
 Thus, the canon law being based on a saying of St. Paul, bestows 
 upon the wife as well as the husband the right to demand con- 
 jugal duties.^ The system of possessions between spouses be- 
 comes complicated and may become a subject of study distinct 
 from that of the power of the husband. The power of the father 
 in its turn passes through the same evolution. 
 
 § 124. Adultery.^ — The violation of the duty of fidelity, es- 
 pecially on the part of the woman, has always had serious conse- 
 quences. First of all, the punishment of the adulterous wife was 
 left to the husband himself. Tacitus tells us that he drove her 
 through the village armed with a whip; undoubtedly he means 
 to say that he expelled her from his house and from the village it- 
 self, which was to condemn her to certain death, for she found 
 herself deprived of all legal protection.^ It seems as though one 
 could lay it down as a general rule that in barbarian legislation 
 the husband has the right to kill his wife and her accomplice if he 
 takes them in the act.* Outside of cases of flagrant offense, the 
 
 1 Paul, "1 Cor.," vii, 3-5; excepting if the woman be enceinte ("Capit.," 
 829, 21; Boret, 2, 46), upon davs of fasting, etc. Details in Sanchez, I, IX, 
 "F. de Nav.," 4, 1, 3; Hericourt, "G.," VI, 27. 
 
 2 Fournel, "Tr. de I'Adult^re," 2d cd., 1783; Rosenthal, "Rechtsfolg. d. 
 Ehebruchs," 1880; Bennecke, id., 1884; "Dig. Ital.," V. — On adultery at 
 Rome, cf. Esmein, "Melanges"; Meynial, p. 46; Mommsen, "R. Strafrecht," 
 1900; Starcke, p. 55. 
 
 » Tacitus, "Germ.," 19. Cf. "L. Burg.," 34. CJ. other terrible punish- 
 ments in Du Cange (Anglo-Saxons, Poles). Thonissen, "L. Sal.," p. 300. 
 
 * Cf. in Rome, Paul, II, 26 ("jus occidenti" for the "pater," penalty of 
 murder against the husband); "Cod. Theod.," 9, 15, 1; Paul, 2, 27, 1 ("L. 
 
 136
 
 Topic 5] EFFECTS OF MARRIAGE [§125 
 
 tribunals inflicted upon her the penalty of death.^ The IVIosaic 
 legislation, based upon the same ideas, ordered the stoning of the 
 woman taken in adultery. We know the words of Christ upon 
 this subject: "Let him who is without sin cast the first stone." ^ 
 Reacting in the name of humanity against the old and obsolete 
 customs,^ the Church was satisfied with inflicting penances on the 
 guilty woman; at the same time, it severely condemned the adul- 
 tery of the husband, which was formerly unpunished.^ While 
 the woman may be excommunicated, the Penitentials show us 
 the husband undergoing a penance of five years, or even a per- 
 petual penance; ^ his guilt has another result; it takes away 
 from him the right to avail himself of that of his wife: "adulter 
 adulteram dimittere non valet." 
 
 § 125. The Same: Penalties. — If the Church passed judgment 
 upon adultery,^ had its tribunals exclusive jurisdiction over it dur- 
 ing the Feudal Period? Cugneres seems to admit it at the time 
 of the Conference of Vincennes by the very fact that he protests 
 against the abuses committed by the ecclesiastical judges in the 
 prosecution of adultery. But the Customs give jurisdiction to 
 the seigniorial or municipal justices, and the tribunals of the king 
 in the end were substituted for all other jurisdiction. The usages 
 and customs of the Middle Ages had upheld the not very Christian 
 punishment of running the gauntlet; tragic as it was formerly, it 
 turned into the obscene and burlesque,^ so much so that the pen- 
 Rom. Wis."); right of the husband to kill the wife taken in flagrant offense in 
 his house: "Wis.," 3, 4, 3; "Bai.," 7, 1; "Burg.," 68; "Roth.," 212, 213; 
 "Liut.," 130; "Ass. de J6rus.," "C. d. B.," 288; Gri?nm, "R. A.," 450, 742; 
 Brunner, II, 662; Zeithopf, "De Jure Occid. Prehens in Adult.," 1667. 
 
 1 "Rib.," 77. Proof by ordeals, the duel. — Cf. proof of the bitter waters 
 among the Hebrews. 
 
 2 "John," viii, 7. Cf. "L. de Constantin"; "sacrilegos nuptiarum gladio 
 puniri oportet" (.30, "Cod. Just.," "ad. 1. Jul. de ad."); "Cod. Thdod.," 9, 7, 
 2; Me?/mai, p. 52; "L. Rom. Wis."; "Cod. Th6od.," 9, 6. 
 
 ' Outside of the power of the husband, of his quasi-ownership of the wife, 
 which accounts for the harsh punishments, the latter are equally owing to 
 religious ideas, such as ancestor worship, which legitimate children alone are 
 capable of rendering; let us add that adultery with a stranger often implies a 
 betrayal of the family; with a member of the family it is the ruination of all 
 discipline. 
 
 '' Gratian, C, 32, q. 6. (St. Augustine: the husband, who is the master 
 of the wife, shoidd set her a good example; he is bound to pardon her, even 
 for adultery, if she shows herself penitent). Cf. Paul, "Sent.," 2(), 8. 
 
 * Van Espen, "Jus. Eccles.," 3, 4; Register of the Ecclesiastical Judge of 
 Cerisy, passim. 
 
 * Cf. synodal circuits of the ninth century. 
 
 ^ Du Canqe, see "Adulterium" and "Trotari"; Michelet, "Orig.," p. 388. 
 Flogging had disapjieared for the most part {Aigues-Mortes, etc.). Mart el, 
 1219, " trahetur per genitalia nudus " (the accomplice) "ab adult(Ta nuda." 
 Joinville, "Vie de Saint Louis," 99; Larroquc-Timbaud, 1270, 59, and a great 
 
 137
 
 § 125] THE FAMILY [Chap. I 
 
 alty was more scandalous than the offense itself. The fine which 
 had sometimes been added to it at last held good. The accom- 
 plice was arbitrarily punished (banishment, castration, fine). 
 The carrying out of these penalties was very rare, owing to the 
 rules of the Customs on the subject of proof; thus, at Agen the 
 guilty persons must be taken in flagrant offense by the bailiff and 
 two consuls.^ The day when the punishment of adultery became 
 one of the attributes of the State ^ more severity was shown.^ 
 The monarchic decisions substituted for the canonic penances, 
 and the punishments drawn from local custom, a penalty bor- 
 rowed from the "Novella," 134, 10, of Justinian, and from the 
 Authentic "Sed Hodie," which was a commentary upon it: the 
 woman convicted of adultery was shut up in a convent and lost 
 the privileges of a married woman ("woman proven guilty")."* 
 
 number of the other Customs of the South; there are none of them, so to 
 speak, which do not provide for and punish adultery and rape: "Castelsagrat," 
 26; "Fossat," 49; "Montoussin," 6; "Agen," 19; "Toulouse," 156a; "Albi," 
 11; "Montpellier," 21; "Barcelone," 94, 110, 112; "Acad. Legisl. Toulouse," 
 IV, 196; Le Palenc and Dognon, "Lezat," p. 94, etc. — Note the progressive 
 degradation of the punishments : running the gauntlet without being bound ; 
 authorization to keep on the shirt and the breeches; optional buying off for a 
 fine; fine, which was sometimes not very heavy. The penalty of running the 
 gauntlet is inflicted in other cases, — for example, the thief runs through 
 the town with the stolen object tied to his neck: Montegut de Bourjac, 20; 
 Praderes, 5. — Another disgracing punishment: the woman's dress was cut off 
 above the knees: Zypacus, "Jus. Belg.," "ad. 1.," Jul. 7. — Glasson, VI, 671; 
 "F. de Nav.," 4, 3; "F. Real.," 4, 7; Gui Pape, q. 206. Disgracing punish- 
 ments are frequent in the Middle Ages. Grimm, p. 711, gives a long list of 
 them; carrying a dog or a saddle or dragging a cart; carrying a stone (by wo- 
 men); straddling a donkey, etc. At Spire one saw "in foro lapidem politum, 
 catena ferrea alligatum, quern adulterium perpetrantes per civitatem ferre 
 cogebantur." 
 
 1 Under such conditions that it required a great deal of good will on their 
 part to undergo the legal punishment: "Agen," 19; "Tonneins," 124. No 
 penalty if they succeeded in escaping: Lagreze, "Dr. dans les Pyrenees," 
 p. 316. 
 
 2 In the fifteenth century a Lord of Craon obtained permission from 
 Louis XI to keep liis wife shut up and walled in: Viollet, p. 505. Details aa 
 to tliis penalty in Du Cange, see "Adult." ("Aragon.") 
 
 ^ Zypacus, loc. cit., complains because this crime is punished "nimis molli- 
 ter." Damhoudre does the same in his "Prat. Crim.," 91, 17. The old prac- 
 tice here corresponds with literature in which adultery is only something to 
 be laughed at (tales and fabliaux), ^gidius, "DeAppd.," 6, cites an old 
 order "de uxoratis scortatoribus," which takes jurisdiction of the crime of 
 adultery away from the ecclesiastical judges: Fournel, p. 53 (bibl.). 
 
 ^ "Glose" on "LeCouvent," 7, 5; C.,32,q.l. She wore her secular clothing 
 for two years (or for such other time as it pleased the courts to specify) ; the 
 husband was free to visit her and even to take her back; if he did not do this 
 before the expiration of the time which had been fixed, she was shaved, veiled, 
 and she put on the religious costume of the house; however, the husband 
 could always reclaim her, for she did not become a nun ("the coat does not 
 make the monk"); it also resulted from this that she did not become civilly 
 dead, she stiU remained able to bind herself, to make a gift, to make a will, 
 
 138
 
 Topic 5] EFFECTS OF IVL\RRIAGE [§ 126 
 
 For the judicial procedure there was sometimes substituted the 
 dehvery of an order of arbitrary arrest/ with the object of avoid- 
 ing scandalous trials, which might disgrace the family; trials which 
 would be the more frequent as proof became more accessible, and 
 at the same time more uncertain (official reports, writings, wit- 
 nesses). In the latest stage of the law the husband alone is 
 authorized to accuse his wife of adultery (excepting in cases of 
 connivance and scandal),^ but in theory he has lost the right of 
 putting her to death if he surprises her in a flagrant offense, a right 
 in which we must see a very persistent trace of the "jus vitse 
 necisque" of primitive times.^ As a matter of fact, if he does 
 make use of it, it is not difficult for him to obtain a pardon.^ 
 
 § 126. The Same. — Civil legislation never treated adultery 
 of the husband as it did that of the wife.^ The guilty husband is 
 not subject to any penalty, is not liable to have the judicial sep- 
 aration pronounced against him because of this fact, and, finally, 
 
 etc. The adulterous wife was deprived of her dower, of her marriage portion 
 and of her share in the community, which were conferred upon her husband, 
 absolutely; she recovered all these rights when her husband took her back. 
 As far as the accomplice was concerned, the punishment varied according to 
 circumstances (public penance, banishment, galleys) ; he might be condemned 
 to pay civil damages to the husband: Fournel, pp. 122, 362; Guyot, see "Rep." 
 This was the work of jurisprudence: Order of 1522, etc.j Bcerius, "Decis.," 
 279; Papon, I, 22, vol. 9. Death in case of aggravating circumstances (adul- 
 tery with a man servant): "L. des Droiz," 435. In England the wife only 
 lost her survivor's portion if there were children of the marriage: Glasson, 
 Lehr, op. cit.; Pollock arid Maitland, II, 392 (recent rule). Contra, German 
 law: Stobhe, § 249, I, 2. 
 
 1 Merlin, see "Adultere"; Joly, "Proces des Mirabeau," p. 104. 
 
 2 Fournel, p. 66 " (prosecution of both guilty parties necessary). Prescrip- 
 tion of five years. The heirs of the husband could carry on the accusation 
 that had been begun by him, but only with the object of obtaining confisca- 
 tion of the marriage portion and of the property taken back by the wife. 
 
 ^ "Schwabenspiegel," 2, 22 (confiscation of the person and possessions of 
 the husband who takes the law into his own hands) c/. Laboidaye, p. 339. 
 "Fuero Real": both guilty parties are turned over to the husband, who takes 
 vengeance on them as he pleases: " For. de Tudele " : he could kill both of them, 
 but he did not have the right to spare one of them; "Siete Part."; " Authcntica 
 Sed Hodie"; Lagrcze, "Navarre," II, 371; "For. de Nav.," 4, 3, 5 et seq. 
 
 * Cf. "Nov.," 117, 15: three warnings addres.sed by the hu.sband to the 
 man whom he suspects of making an attempt upon the honor of his wife, and 
 a right to kill him if after that he takes him unawares even in conversation 
 with her. Italy, sixteenth century, Nevisanus, "8ylva Nuptialis," p. 59; 
 "Bergerac," 89; Beaumanoir, c. 30; Fournel, p. 462 (complaints in actions based 
 upon solicitation). If one wishes to have some idea of what the legislation 
 which we have just been describing was really like, one should recall the 
 speech of the husband of the eighteenth century who took his wife unawares: 
 "What an indiscretion! Madame, suppose it had been anybody but me!" 
 Goncourt, "La Femme au XVIII® s.," p. 234. 
 
 ^ Excepting in case of scandal and cruelty (for example, the husband keepa 
 a mistress in his house: Order of 1543): Fournel, p. 19; "Cod. Tlu'-od.," 3, 
 16, 1; "Cod. Just.," 5, 17, 8; Juvenal, "Sat.," 2; Montesquieu, "Espr. des 
 Lois," 26, 8. 
 
 139
 
 § 126] THE FAMILY [Chap. I 
 
 does not lose the right to demand this measure against his wife in 
 case she shall have committed the same fault; under such circum- 
 stances he is simply deprived of the attainment of the marriage 
 portion and the privileges of a married man. Unjustifiable from 
 the religious point of view, this inequality between the spouses 
 was in conformity with tradition and had a bearing on social in- 
 terests, because the adultery of the wife, thus differing from that 
 of the husband, always carries with it the risk of stripping the 
 family by causing their possessions to pass to strangers, and, by 
 reason of the doubt which it throws upon paternity, it compro- 
 mises the situation of the legitimate children themselves. 
 
 140
 
 Topic 6] 
 
 DISSOLUTION OF MARRIAGE 
 
 [§128 
 
 Topic 6. Dissolution of Marriage 
 
 § 127. The Death of one of the 
 
 Spouses. 
 § 128. Divorce. The Lower Empire. 
 § 129. The Germanic Law. 
 § 130. Canon Law. 
 § 131. Judicial Separation. 
 
 § 132. The Jurisprudence of the Par- 
 liaments. 
 
 § 133. Reaction against Indissolubil- 
 ity. The Reformation. 
 
 § 134. The Philosophers of the Eight- 
 eenth Century. 
 
 § 135. Revolutionary Laws. 
 
 § 127. The Death of one of the Spouses is the only cause of 
 the dissolution of marriage, at least in the conception which pre- 
 vailed with regard to it. Absence, however prolonged it may 
 be, does not sever the religious bond; the same as regards civil 
 death ; ^ the pecuniary effects of marriage may indeed cease, but 
 the sacrament survives. The spouse whose status remains the 
 same has not the powder to take advantage of this situation in 
 order to contract a fresh union. 
 
 § 128. Divorce. The Lower Empire. — The indissolubility of 
 marriage seems to have been unknown in primitive law. Rome 
 made use of divorce under two forms: 1st, by mutual consent; ^ 
 2d, by repudiation on the part of one of the spouses, sometimes 
 for just causes or causes determined by law, and sometimes for 
 incompatibility of disposition. Forms were no more requisite in 
 the case of divorce than they were in that of marriage. The " Lex 
 Julia, de adulteriis" merely provided that a notification of the 
 repudiation should be given before seven witnesses^ (ordinarily 
 by the consent of the "libellus repudii"). As to the guilty spouse, 
 it was sufficient to punish him by means of pecuniary penalties, 
 less with the object of avoiding divorce than to make up for the 
 unjust injury inflicted upon the other spouse. With the Christian 
 emperors the law changed.^ Constantine in 331 inflicts the most 
 
 1 As to absence, c/. Fournel, "Tr. de I'Adult.," 140; "Jostice," p. 182; 
 Order of Aug. 4, 1670 (Jean Maillart absent 40 years); cf. "Enoch Arden" 
 bv Tennyson. Formalities for remarriage, Order of Feb. 9, 1740; Cornu, 
 "Th^se," 1887. 
 
 2 "Cod. Th^od.," 3, 16, 1; "Cod. Just.," 5, 17, 8; "Nov.," 134, 11; 140; 
 "L. Rom.," "Wis.," "Int.," "Cod. Th6od.," 3, 16, 1; Papien, 21, 1 ("Nov. 
 Th6od.," 12); "F. Sirm.," 19; "Andec," 56; Lindenbrog, 84; Meynial, p. 69. 
 
 3 Drach, "Du Divorce dans la Synagogue," 1840; Selden, "Uxor Ebraica," 
 1695; "Deuter.," xxiv, 1. If the wife does not find favor before her husband 
 because he finds there is something disgraceful about her, he shall write her 
 a letter of divorce. 
 
 ' Ulp., "Reg.," 6, 10. 
 
 141
 
 § 128] THE F.\]VIILY [Chap. I 
 
 severe punishments upon the spouse who repudiates the other 
 without just cause and hmits these to three: if the husband is a 
 homicide, a poisoner, or despoiler of graves; if the woman is an 
 aduheress, a poisoner, or a procuress.^ One can say that here we 
 have the first Christian law against divorce. It is again to be 
 found in the Breviary of Alaric and the Paphian. 
 
 § 129. The Germanic Law^ started from a more archaic condi- 
 tion, where the husband alone had the power to repudiate his wife, 
 perhaps first of all without any cause, but evidently at a very early 
 period with the danger of exposing himself to the vengeance of her 
 relatives, if he sent her away without the customary motives^ 
 (adultery, etc.).^ Divorce by mutual consent took its place in 
 the Barbarian law, which felt the Roman influence,^ and one also 
 finds therein, alongside of the repudiation for just cause ^ on the 
 part of the husband, as an exception, it is true, a corresponding 
 repudiation of the husband by the wife; furthermore it seems 
 that the inequality had not disappeared, for if the wife leaves her 
 husband without cause ^ she is subject to corporal punishment,^ 
 
 1 "Cod. Th6od.," 3, 16, 1. The guilty spouse loses gifts made because of 
 the marriage; and the other spouse can remarry. The spouse who repudiatei 
 the other without cause loses these same gifts; should it be the wife, her 
 punishment is deportation; should it be the husband, he is not allowed to 
 remarry, or, if he should do so, the wife has a right to take possession of the 
 marriage portion of the second wife: "L. Rom. Wis.," 3, 16, 1, 2; Papien, 21; 
 " Petrus," 3, 7. This law is slightly modified by c. 2, ib. (421) ; subsequent legis- 
 lation (which does not seem to have been applied in Gaul?) reverted to less 
 severe rules: "Cod. Just.," 5, 17, 8. 
 
 2 Heusler, "Inst.," § 133; Schroeder, § 35 (p. 303); Loening, "Kirchenr.," 
 II, 612 et seq.; Grimm, "R. A.," 454; Michelet, "Orig.," p. 57; Darestc, 
 "Etudes," passim. 
 
 3 "Wis.," 3, 6; Greg. T., 3, 27; 5, 3; "Freddg.," 5, 30; ^helb., 79 et seq. 
 
 * Two systems sometimes practised simultaneously: (a) composition paid 
 to the relatives of the wife; "Bai.," 7, 14; "Pactus Alam.," 3, 2; Grimoald, 
 6; "Burg.," 34 (to the wife). — (6) taking back of her personal possessions 
 by the wife and right to demand her marriage portion (Germanic) or even 
 pecuniary penalties for the benefit of the wife: Ibid, and "Wis.," 3, 6, 1. All 
 the more so are gifts made by the wife to the husband cancelled. As to tho 
 legal share of the sur\ivor, cf. infra. ■ — Same pecuniary consequences when the 
 wife leaves her husband for just cause, and the opposite consequences when 
 the husband legally repudiates her. 
 
 ^ "Burg.," 21, 34; "Alam.," 3, 2 (equal partition of the "lectaria"; the 
 wife has what the law gives her); Roziere, 111-114; Thevenin, nos. 8, 23, 41; 
 Marculfe, 2, 30; "Andec," 56; "Sachsensp.," I, 25, 4 (vow of chastitv). 
 
 6 Adulterv: "Burh.," 34; "Bai.," 8, 14, 15; "Alam.," 3, 3; 53, 1; "Roth.," 
 262; "Liut.," 120, 190; "Wis.," 3, 6, 1. Cf. Greg. T., 5, 33; 4, 26; 8, 27; 10, 
 8. Attempt upon the life of the husband: "Roth.," 202; "Burg.," 34, 3 
 (profanation of the grave, the preparing of poison). 
 
 ' "Wis.," 3, 5, 5; 6, 2: the husband has morals which are against nature 
 (cf. Noodkerk, "De Matrim.," 1733), or wishes to prostitute his wife: "Roth.," 
 195 et seq.; or treats her as a sorceress, or makes an attempt upon her life, 
 etc.: Grimoald, 6 and 8: bigamy. 
 
 8 "In luto necetur"; "Burg.," 34, 1; Grimm, 691; Schroeder, p. 330. The 
 
 142
 
 Topic 6] DISSOLUTION OF MARRIAGE [§ 130 
 
 whereas the husband under similar circumstances is merely ex- 
 posed to pecuniary penalties.^ If it was the custom to estabUsh 
 divorce by a writing,^ it does not appear that this was an indis- 
 pensable form, nor that there were any particular formalities 
 other than the latter. 
 
 § 130. Canon Law.^ — At the time of the appearance of Christ 
 nothing foreshadowed the disappearance of an institution so 
 widespread in all the ancient world (Jews, Greeks, Romans). 
 But it was opposed to the spirit of Christianity and the triumph of 
 the new religion must carry with it its suppression. The Gospel ^ 
 and the Epistles of the Apostles ^ condemned it; they proclaimed 
 the new principle of the indissolubility of marriage; the spouses 
 should always be ready to pardon an injury which they have 
 received at one another's hands; charity obliges them never to 
 separate from one another without the hope of returning.^ One 
 of the principal texts upon this question, the passage from St. 
 Matthew, v, 31, 32, lent itself, however, to discussion, in setting 
 aside repudiation caused by the adultery of the wife. The 
 prevailing opinion among the Fathers of the Church ^ is that 
 even in this case divorce is prohibited; the husband should take 
 back his wife who repents of her fault; he has the right and it is 
 his duty to separate himself from the wife who persists, but he 
 has no right to remarry.^ With St. Augustine ^ it triumphed, 
 
 abduction of the married woman seems to have dissolved the marriage in the 
 very old law: see "Betrothals"; "Alam.," 51, 52; "^Ethelbirt," 31. 
 
 1 "Burg.," 34, 4: he leaves his house and his possessions to his wife and 
 his children. C/. "Cod. Theod.," 3, 16, 1; "Int.," § 2 of the "L. Burg." gives 
 the previously exi.sting law; "Wis.," 3, 6, 1; "Bai.," 8, 15. 
 
 2 "Form. Andec," 56, etc. Competence of the civil tribunals. 
 
 3 Gratian, C, 32, q. 7 et seq.; Dig. X, 4 19; Richter, § 286 (bibl.). 
 
 * "Mark," x, 11, 12; "Luke," xvi, 18 (absolute indissolubiUty) ; "Matth.," v, 
 31. Cf. Selden, "Uxor Ebraica s. de Nupt. et Div.," 1695. 
 
 8 Paul, "Rom.," vii, 13; "1 Cor.," vii, 10-11, 39; "Ephes.," v, 21. 
 « "Le Pasteur d'Hermas," "Mand.," IV, 1 {Gratian, C, 34, q. 1, c. 7). 
 
 7 Perrone, "De Matrim. Christ.," 18.58, III, p. 243. 
 
 8 Gratian, C, 32, q. 7; TertuUian, "adv. Marcion . . .," 4, 34 (cf. Poihier, 
 "Mariage," no. 489): right of the husband to repudiate his adulterous \\-ife. 
 Origen, "In Math.," 4, 22; Chrysost., "De Lubello Repudii." — St. Epiphany, 
 "Adv. Haer.," 39 (59), 4; Asterius, "In Math.," 19, 3; St. Augustine, "De 
 Adult. Conj.," 2, 2 (idea of the death of the adulterous spouse, cf. Mosaic 
 law, death of the wife). The Eastern Church has kept divorce (as a necessary 
 evil) but only for a determined cause (adultery of the wafe, attempt by one 
 of the spouses upon the life of the other, impotence of the husband, absence, 
 the husband having a concubine, etc.): "Nov.," 117; Zhisman, 729; Vering, 
 "Kirchenr.," p. 329; Jovanovic, "Bull. Soc. L6g. Comp.," 1885; "Acad. Leg. 
 Toul.," 1892. 
 
 8 "Tr. de Adulterinis Conjugiis" (St. Matthew allows the husband to send 
 away his wife who is an adulteress, but not to remarry, which would have been 
 a violation of the Christian principle of equality between the spouses): "De 
 
 143
 
 § 130] THE FAMILY [Chap. I 
 
 for the celebrated doctor had the ingenuity to connect it with the 
 idea that marriage was a sacrament, an image of the union of 
 Christ and the Church, and no less indissoluble than the latter: ^ 
 it became almost a dogma. 
 
 Before the ninth century ecclesiastical discipline is, -however, 
 not very firm (Decrees of Councils ^ and Penitentials) .^ Divorce 
 is practiced in the Prankish State without the Church offering any 
 opposition. In the ecclesiastical Capitularies, at the end of the 
 eighth century, exceptions are still brought to bear upon the in- 
 dissolubility.^ The principle laid down as absolute by the Ca- 
 pitularies of 789 and 829 ^ was not yet fully enough accepted ^ to 
 provide against the serious difficulties which the divorce of Lothaire 
 and Teutberge ^ encountered in 857; it required all the energies of 
 the pope, Nicholas I, to make it respected. Moreover, the prac- 
 tice of divorce was so firmly rooted in the Customs that it has left 
 traces in the final doctrine of the Church, as it was formulated 
 by Gratian and the Decretals.^ 
 
 Nuptiis," I, 10-21. However, "De Fide et Op.," 19, he admits that the hus- 
 band wlio contracts a new union only commits a pardonable sin. But the 
 "Tr. de Adult., C." is more recent. 
 
 1 Cf. Gratian, C, 27, q. 2, c. 19 etseq.; C, 32, q. 7; 34, q. 1. 
 
 2 Elvire, 305 (c. 9: no penalty against the man who remarries) ; "Aries," 314, 
 c. 24; "Angers," 453; "Vannes," 465, etc.; Loening, 11,609. A more severe 
 tendency in the letters of the poises: {Greg. II to Boniface, 726; Jaffe, " Monum. 
 Mogunt.," p. 89; Innocent I to Exupcre of Toulouse, 405; Labbe, 2, 1254) and in 
 the Council of the eighteenth century ("Frioul," 796; "Paris," 829; "Nantes," 
 "Tribur," 895). 
 
 3 Some of them tolerate divorce by mutual consent: "Theod.," 2, 12, 7; 
 "Can. Greg.," 65; others, repudiation with just cause (adultery of the wife, im- 
 potence of the husband, captivity of one of the spouses, etc.): Hinschius, "Z. 
 f. Kirch.," 20, 66; Wasserschleben, "Bussordn.," 214, 401. _ 
 
 ^ Exceptions: adultery of the wife, or even lack of virginity; leprosy or 
 impotence of the husband; entering a monastery by one of the spouses; slav- 
 ery; complicity in an attempt upon the life of the husband; the wife does not 
 follow the husband when he leaves the province: " Soissons," 744; " Compiegne," 
 757; Verberie, 758 or 768; Viollet, 445; "Ass. Jerus.," "C. des B.," 172 (175): 
 leprosy, or "li put trop fierement le nez" or "pisse aucune nuit au lit." The 
 invalid should enter religion, the other spouse remarries: " F. de Morlaas," 357; 
 cf. "Deuter.," xxiv, 1. These decisions, which are found in Gratian, have given 
 rise to annulment of marriage for impotence and mistake as to condition. 
 
 6 "Cap.," 789, 43; 829, 3 and c. 21; Boret, I, 56; II, 18, 46; "Capit.," I, 
 42; VI, 87, 235 (whether the husband remain^ single or whether he forgives in 
 case of adultery of his wife) . — Sanction : (a) religious, — excommunication, 
 public penance; (b) civil: the count puts the offender in irons and in prison 
 until the matter shall be carried before the emperor. 
 
 ^ Sdralek, "Hincmar," 126j Scherer, 34, 50; Freisen, 801. 
 
 ^ Guizot, "Hist, de la CiviHs. en France," 27; /. Isambert, I, 150 (Louis VII 
 and Alienor); Lot, "Les Dern. Carol.," p. 366 (Adelaide, wife of Louis V 
 "le Faineant" and William of Aries); Quinquet de Monjour, "L'Indissolubilit6 
 du ]\Lariage," These, 1901; Dumas, id., 1902. 
 
 8 Gratian, C, 32, q. 7; Dig. X, "de Divort"; P. Lombard, "Sent.," 4, 35. 
 Cf. marriage contracted, but not consummated: "Trent," s. 24, c. 7, does 
 
 144
 
 Topic 6] DISSOLUTION OF MARRIAGE [§ 132 
 
 § 131. Judicial Separation.^ — The word " divortium " did not 
 disappear from the language of the law and served to designate: 
 1st. The separation of the spouses in the case of anulment of the 
 marriage.^ 2d. Judicial separation or separation of domicile,^ 
 pronounced by the ecclesiastical judge ^ in certain settled cases : 
 adultery of the wife, serious ill-treatment on the part of the 
 husband, and, finally, apostasy or heresy of one of the spouses 
 (spiritual fornication). The adultery of the husband excused 
 that of the wife, and it carried with it separation, if the wife, 
 without blame on her part, demanded it. Cohabitation and 
 the conjugal duty ceased to be obligatory, but reconciliation 
 was possible.^ 
 
 § 132. The Jurisprudence of the Parliaments during the mo- 
 narchic period regulated the separation of domicile.'^ The causes 
 were left, as a general thing, to the opinion of the judge (for ex- 
 ample, bad treatment, refusal of the necessaries of life).^ At the 
 same time, the adultery of the wife always had the effect of carry- 
 ing with it separation, if it were asked for by the husband; it 
 was not the same thing in the case of that of the husband.^ 
 "Much should a wise woman suffer and endure," says Beau- 
 manoir, "before she puts herself away from the society of her 
 husband." 
 
 From the moment when the separation takes place only for 
 certain causes the intervention of the judge is necessary, and it 
 was the secular judge who here, as in many other cases, took the 
 
 not anathematize those who profess that marriage is not indissoluble (Greeks). 
 C/. annulment of marriage. 
 
 1 Cosci, "De Separ. Thori," 1856; Bard, "These," 1874. 
 
 2 "Sachsensp.," Ill, 74; Pollock and Maitland, II, 391; Lattes, p. 237; 
 "Siete Part.," IV, 10; "F. de Morlaas," 357. 
 
 ^ "Quoad torum et mensam," but not "quoad fadus et vinculum": Hos- 
 tiensis, IV, "De Div."; Sanchez, I, X; Van Espea, 2, 15. 
 
 * Viollet, 446, 4, cites an Order of the year 1378 ("Arch. Nat.," XPa, 27, 
 fo. Uro) deaUng with a separation by mutual consent; this is an anomaly: 
 Luchaire, "Louis le Gros," no. 430; Beaum., 57; "Siete Part.," VI, 12. 
 
 5 The husband may even compel the wife who commits adultery to once 
 more take up their life together: Hericourt, "Loix Eccl(5s.," G. VI; Lancelot, 
 "Inst.," 2, 13; Sanchez, I, X. 
 
 « Louet, s. 643; Ferrihre, see Guyot (and bibl.); Pothier. "Tr. du Contrat de 
 Manage," 6, 3. England: the Courts of the Church only lost jurisdiction of 
 testimonial and testamentary actions in 1857. 
 
 ' But not the illness or dementia of one spouse. 
 
 8 Beaumanoir, 57, 4, only considers the fact of the husband's maintaining 
 a concubine in the conjugal home to the knowledge of his neighbors as a 
 cau.se for separation: "Jostice," p. 196; "L. des Droiz," 773; Gautier, "Che- 
 valerie," p. 360. Cf. in this sense the English law (which, however, admits of 
 compensation for torts committed by one spouse upon the other): Glassofi, 
 "Inst. Anglet.," VI, 180. 
 
 145
 
 § 132] THE FAMILY [ChaP. 1 
 
 place of the ecclesiastical judge. The sworn statement of a spouse 
 was not looked upon as a sufficient proof; except for this, volun- 
 tary separations would have been too easy a matter. Separation 
 does not dissolve the tie of marriage; it frees the spouse from the 
 duty of cohabitation/ but not from the duty of fidelity; the hus- 
 band even retains a part of the husband's power. Separate 
 maintenance is a compulsory consequence of judicial separation.^ 
 § 133. Reaction against Indissolubility. The Reformation. — 
 The indissolubility of marriage is the result of religious ideas: 
 Christian charity, texts of Scripture, conception of the sacrament. 
 Once it had passed to the stage of an official doctrine, the theo- 
 logians bethought themselves to justify it by reasons drawn from 
 natural law.^ A most idle assumption, if one considers the ancient 
 law, but one which is inspired by a very high ideal, by the thought 
 that a single union is compatible with the dignity of life ("unum 
 corpus, una vita"). There is no doubt that divorce is an evil for 
 the spouses themselves, and still more so for their children; but 
 the question is whether there are not circumstances under which 
 it is a lesser evil than cohabitation in a hypocritical manner, or 
 discord and contempt on both sides, or the judicial separation ac- 
 companied by a life of irregularities. The Catholic Church itself, 
 in spite of its intolerance, has had to make concessions, because, 
 according to its doctrine, the indissolubility is not perfect unless 
 the marriage is consummated,"* and because the annulment of 
 the marriage sometimes degenerates into a divorce in disguise.^ 
 The Reformed Church, as a consequence of its adherence to the 
 Bible in preference to the New Testament, and by force of prac- 
 tical necessity, reacted against the excess which had come about. 
 
 ' Children born after separation: Beaumanoir, 18, 6. 
 
 2 "Olim," III, 152 (1304). As to capacity of the wife who has been sepa- 
 rated, cf. infra, "System of Possessions as between Spouses," "Power of the 
 Husband." 
 
 3 "Trente," sess. 24, c. 7; "Catech. Rom.," "De Matrim.," 1, 11; Syllabus 
 "Err. de Matr.," 8, 67; Encycl. "Arcan. Div." of Leo XIII, Feb. 10, 1880. 
 Also motives of positive divine law: "Gen.," ii, 23 ("erunt duo in carne una"); 
 Dig. X, 1, 36, 11, 4, 19, 8; "in VI,*' 3, 15, 1; but if it had been based on this 
 idea they would have recognized the fact that marriage among the infidels 
 was indissoluble; also, how account for divorce among the Hebrews? St. 
 Thomas, "Summ. Th.," 2 a, 2 ae, q. 154, 2c. 
 
 ■• Sehling, p. 98, Dig. X, 4, 13, 2. Cases which were rather numerous at 
 first, but which were actually restricted: vow of chastity by one spouse 
 ("Cone. Trente," 24, 6; cf. "Cod. Just./' 1, 3, 52, 3), dispensation of the 
 Pope {Richter and Schulte, "Cone. Trid.,'* 251; "ActaS. Sedis," 17, 353; 18, 
 196; 22,262; 23, 476); marriage of infidels (Dig. X, 4, 19, 7; 3, 22, 6; 3. 33, 1). 
 
 ^ Especially for the benefit of those in power; cf. Napoleon's divorce: 
 "B. Ch.," 1896, 197 (Louis XII). 
 
 146
 
 Topic 6] DISSOLUTION OF MARRIAGE [§134 
 
 It admitted of divorce/ at least in cases of adultery,^ in conformity 
 with the passage from St. INIatthew, and when one of the spouses 
 deserted the other ^ or was guilty of cruelty to the other.^ A very 
 widespread opinion even came to be maintained that divorce was 
 lawful every time the union between the spouses was broken be- 
 cause their affections had ceased, for it was no longer an image 
 of the union of Christ and the Church. The legislation of Protes- 
 tant countries conformed more or less absolutely to these theories.^ 
 § 134. The Philosophers of the Eighteenth Century ^ attacked 
 
 1 Fnedberg, § 160 (bibl.); Richter, "Z. Gesch. d. Ehescheid. in Ev. K.," 
 1858; Grubner, "Ueb. Desertio," 1882; Mossdorf, 1740. 
 
 2 Th. de Beze, "De Repudiis," 1566-1610; "Tr. du Divorce par I'Adultere," 
 1586; Luther, "Memoires," trans, by Michelet, II, 60 and passim; "V. Ehel 
 Leben," 1522; cf. Strampff, op. cit., 364; Richter, "Kirchenordn.," 1, 29. Milton 
 sent away his wfe soon after his marriage in 1643 because "he had discovered 
 that she was stupid," and, in order to justify himself, he wrote a book upon 
 the subject of divorce, which the Presbyterians wanted to burn. He then 
 defended his conduct by two new treatises, " Tetrachordon " and "Colaste- 
 rion," 1645. Cf. Divorces of Henry VIII. Furthermore, a statute of this 
 sovereign still proclaimed indissolubiHty. Divorce did not enter into English 
 Iegi.slation until later on, without there being any general law to establish it; 
 in 1666 Parliament granted to Lord Ross, who was judicially separated from 
 his wife, permission to marry again; henceforth it required an act of ParUa- 
 ment, — that is to say, a special law to obtain a divorce. The expenses of 
 this procedure were so great that divorce was a privilege of the aristocracy. 
 The Law of 1857 placed it within the reach of everybody by the institution 
 of the Divorce Court, which took the place of the ecclesiastical tribunals and 
 Parliament at one and the same time: Glasson, "Inst. Angl.," V, 90; VI, 177; 
 Lehr, "Dr. Angl.," 58; Albrecht," " Verbrechen u. Strafen als Ehescheidungs- 
 grund," 1903 (in the " Kirchenrechtl. Abhandl." by Stutz); De Maulde, "Pro- 
 ces politiques sous Louis XII," 1885 (unpublished). 
 
 ^ "Cor.," vii, 15. Luther; fraudulent abandonment outside of any religious 
 motive (Strampff, 354, 381, 386, 399). He also admits of divorce for serious 
 causes: Bossuet, "Hist, des Variations." 
 
 * Melanchthon, "De Conjug.," 1551; cf. Schneidewin, "Tract. Connub.," 
 p. 468. 
 
 5 Struve, "De Jure Divort.," 1724. 
 
 ^ Before them in the sixteenth century: Montaigne, "Essais," 2, 15; Char- 
 ron, "Sagesse," 1, 6; Bodin, "Rcpubl.," 1, 3; in the seventeenth century 
 Grotius, Puffendorff, Locke, and Milton in his vigorous pamphlets, and Que- 
 vedo, in his satirical writings. In the eighteenth century the partisans of 
 divorce increased in number: Montesquieu, "L. Pers.," 116; "Esp. des Lois," 
 23, 2; Voltaire, "Diet. Philos.," see "Mariage, Droit Canonique"; "M6m. 
 d'un Magistrat dcrit vers 1764"; Tomsaint, "Les Moeurs," 1748; Lavie, 
 ■"Des Corps PoHtiques," 1764, c. 8; d'Holbach, Helvetius, etc. Diderot in his 
 "Supplement au Voyage de Bougainville," 1773, goes further than this and 
 extols a sort of marriage for a term, about which the Marechal de Saxe had 
 also thought ("Reflexions sur la Propagation de I'Esp^ce Humaine, Reveries," 
 1754); cf. the consequences of "Reve de d'Alembert." Helvetius, "De 
 I'Homme," sec. 8: suppre-ssion of marriage and education of children by the 
 State, at least for the benefit of the best, the most industrious, and the most 
 intelligent of them. Cf. pamphlets, which seem to be like preparatory work 
 for the Revolutionary laws, and the best known of which is "Cri d'un Hon- 
 nete Homme," 1768; the author, Philibert, who was Praetor at Landau, de- 
 mands divorce by showing that it is not contrary to the Catholic religion, 
 that it is favorable to good morals and useful to the State. Reproduced in 
 
 147
 
 § 134] THE F.UIILY [Chap. I 
 
 indissolubility in the name of individual liberty and natural law.^ 
 According to them marriage is only a contract, which can be dis- 
 solved like any other (reciprocal agreement); it is a good policy 
 to favor divorce, because ill-assorted unions, when people persist 
 in continuing them, remain sterile.^ The relaxing ^ of morals and 
 the examples of the Protestant countries ^ contributed more than 
 any argument to the propagation of these doctrines.^ 
 
 § 135. Revolutionary Laws.^ — The Revolution,^ in seculariz- 
 ing marriage and declaring that it constituted merely a civil con- 
 tract,^ independent of the sacrament wliich was applicable to 
 various religious beliefs, some admitting and others rejecting 
 divorce, could not fail to break with the Catholic principle of in- 
 dissolubility.^ One must also admit that it was influenced in this 
 by the philosophical notions of the eighteenth century.^° 
 
 Cerfvol, "L(5gisl. du Divorce," 1769. See to the same effect: "M^m. s. la 
 Population," 176S (reproduced in "Entretiens sur le Div.," hy de V . . ., 
 1770); "Cri d'une HonnSte Femme," 1770; "Int^ret des Femmes au R^ta- 
 bliss. du Divorce," 1777 ("Le Sc. des Maisons");' "Contrat Conjugal," 1781. 
 Cf. "Code de THumanit^," 1778 (see "Divorce"); D. Calmet, "Sainte Bible," 
 III, 62, 1779. 
 
 1 Montaigne, 2, 15; Montesquieu, "Lett. Pers.," 16; Voltaire, "Diet. Phi- 
 los.," see "Manage," "Divorce." 
 
 2 Ibid., Voltaire, "Diet. Philos.," see "Adult&re." 
 
 3 Italy: "patiti," "cavaleiri serventi": Salvioli, no. 180. La\'ie asks him- 
 self if divorce corrupts morals, or if it is corrupt morals that are responsible 
 for an increase in divorce Goncourt, "La Femme au XVIIP s."; "Hist, de 
 la Society Fr. pend. la Revolution, pend. le Directoire." 
 
 * To which de Bonald repUes with Mme. Necker that Protestant countriea 
 do not have divorce; to attribute the good morals of these countries to the abil- 
 ity to get divorces is the same thing as giving the credit for the good health 
 of the inhabitants of a country to a doctor who has never been called in. 
 
 ^ However, there are only two "Cahiers" which demanded divorce in 1798. 
 ("Th(5atins" at Paris, Fleury-Merogis). 
 
 « M. d'Anteville, "Rev. de la R6vol.," II, 206, 473 (1883): Sagnac, 282; 
 Damns, "These." 1897; Mallet, 1900; cf. Naquet, op. cit.; "^Religion Pro- 
 priety, Famille,'^ 1869. 
 
 7 Matigny, "Tr. de la Loi du Divorce," 1789; Hennet, "Du Divorce," 
 1789-1792 (also: "Petition k I'Ass. Nationale par Montaigne, Charron, etc.," 
 1791, extracts from authors favorable to divorce, with bibliography); Linguet, 
 "L^gitim. du Div.," 1789; "Obs.," by Comte d'Antraigues, 1789; by 
 Bouchotte, 1790. In almost all these writings the lawfulness of divorce is 
 discussed and maintained from the religious point of view. See, as being 
 contra to this: Chapt de Rastignac, "Accord de la R^v^l. et de la Raison 
 contre le Divorce," 1790; Barruel, "Lettres s. le Divorce," 1790; Mme. Necker, 
 "Reflexions s. le Divorce," 1794; D. Hume, 18th Essay. 
 
 8 The Decree of Sept. 20, 1792, maintains that "a number of spouses have 
 not waited for the enjoyment of the advantages given by the constitutional 
 pro\'ision according to which marriage is only a civil contract, until the law 
 should have regulated the method and the effect of divorce." 
 
 ' Faidcon^ "Precis Hist, de I'Etabliss. du Divorce," 1800. 
 " In arguing, as was done, upon the inalienability of the liberty of the in- 
 dividual and the natural inconstancy of man, they should have admitted of 
 marriage for a term, polygamy, etc. Cf. Diderot, the marriage of Saxe, the 
 Landgrave of Hesse (in the time of Luther, "Memoires," II, 60). 
 
 148
 
 Topic 6] DISSOLUTION OF MARRIAGE [§ 135 
 
 Following various propositions or speeches which produced no 
 effect, and after a lengthy discussion/ the principle of divorce 
 was sanctioned by the Legislative Assembly.^ It was by implica- 
 tion contained in the Constitution of 1791, which declared that 
 marriage was but a civil contract. The Decree of September 20, 
 1792, carried out the new constitution. Divorce was allowed in 
 three cases: for specified causes, by mutual consent, and for incom- 
 patibility of disposition.^ In these two latter cases the procedure 
 became complicated; it allowed of delays and attempts at recon- 
 ciliation, so as to permit of the spouses reconsidering their deter- 
 mination. The Decree of the 4th Floreal, year II (April 22, 1794), 
 
 * And not to a certain extent by surprise. It was a mistake to qualify the 
 Decree of 1792 as an act of the Legislative Assembly "in extremis," meaning 
 to say by this that it had not been very carefully thought over. 
 
 2 Upon the motion of Aubert-Dubayet (Aug. 30, 1792) c/. the fraternal 
 exhortation of citizen Chaumette, President of the Commune, to married 
 people, among whom there were two couples who had been separated whom 
 the divorce law reunited ("Moniteur," 1792, no. 297). 
 
 ^ (A) The "just causes of divorce" can be reduced to two: (a) impossi- 
 biUty of cohabiting, — that is to say, of fulfilling the object of marriage; 
 dementia; abandonment for 6 years; absence without any news for 5 years; 
 emigration (merely attested by an act that is general!}^ known!) (Decree of 
 April, 8, 1792); (6) a serious infringement of these conjugal duties by one of 
 the spouses; generally known irregularity of morals, serious cruelty or in- 
 sults, abandonment. In cases of this sort the thing to do was to inflict a 
 penalty upon the guilty spouse or to give the innocent spouse who was the 
 victim of the accident his freedom; no delay for proof was required; an ar- 
 bitral tribunal verified the facts, decided to which of the spouses the care of 
 the children should be intrusted, and sent the parties before the officer of 
 civil status who was charged with pronouncing the divorce. (B) The "mu- 
 tual consent" which had formed the marriage dissolved it, just like any other 
 contract, to which it was mistakenly likened; it was also a means of the 
 spouses avoiding scandalous contests when there were reasons for divorce; 
 however, the officer of the civil status did not register the divorce until after 
 an attempt at reconciliation had been made before an assembly of the family 
 (six relatives or friends) and a delay of from two to four months, according 
 as there were or were not children. (C) Divorce was also possible upon 
 the request of only one of the spouses by reason of "incompatibility of dis- 
 position"; the spouse who was not willing to disclose the motives that made 
 him seek a separation could have recourse to this, so as to protect the honor 
 of the family; and, as there is not, in fact, any means of preventing the spouse 
 who is tired of the marriage from leaving the other, this situation which ex- 
 isted in fact was made lawful by permitting the other spouse to found a 
 new family. But, as it was to be feared that separation might take place 
 on shght pretexts, proofs were increased in number, as were delays; after 
 three attempts at reconciliation, at intervals of 1, 2, and 3 montlis, before 
 the family assembly, the officer of the civil status pronounced the divorce 
 within a week. — Judicial separation was abolished because all the disad- 
 vantages and none of the advantages of divorce were found in it. 
 
 The English law admits of judicial separation and divorce at one and the 
 same time; the only legal cause of divorce is adultery, — simple adultery in 
 the case of the woman, with aggravating circumstances in the case of the 
 husband (abduction, inc(!st, cruelty towards the wife, etc.). The judicial 
 separation was more easily obtained, but it could not take place through 
 mutual consent (at least, not lawfully) : Glasson, Lehr, op. cit. 
 
 149
 
 § 135] THE FAMILY [Chap. I 
 
 (lid away with every security against heedless rupture; divorce was 
 permitted simply upon the production of some public proof that the 
 spouses had lived separate from one another for six months at least, 
 or that one of them had forsaken the other for the same period of 
 time (for example, the husband is doing military service).^ 
 
 Spouses who had been divorced could remarry with any person, 
 even with the accomplice of the adultery ,2 even with each other. 
 A delay of widowhood lasting a year was imposed upon them as 
 a general rule, so as to avoid uncertainty in the case of the woman, 
 and for both of the spouses so as to prevent immediate marriage 
 for a second time from being the determining cause of their sep- 
 aration (rather a brief period!). Their possessions were divided, 
 as in the case of one predeceasing the other, excepting forfeitures 
 declared against the guilty spouse in certain cases of divorce for 
 specified reasons, and excepting the loss of the advantages given by 
 the contract of marriage by one of them to the other. The arbitrat- 
 ing members of the family had always the power to allow to the 
 destitute spouse a life annuity out of the possessions of the other. 
 Each one of them contributed according to the means possessed to 
 the expense of keeping and educating the children. The daughters 
 of all ages, and the boys who were less than seven years old, were 
 confided to the mother; the boys more than seven years old, to the 
 father; at the same time the spouses were free to decide this ques- 
 tion in some other manner. In the case of divorce for specified 
 reasons it was for the assembly of the family to decide the question.^ 
 
 The manner in which these laws were applied is not of such a 
 nature as to recommend the institution of divorce. One might 
 say that the French people of that period attempted to show the ex- 
 cellence of the Catholic indissolubility by the very absurdity of their 
 own practice. In towns, where the evil was almost exclusively felt, 
 marriage was dissolved for a whim, as easily as though it were a 
 mere matter of the hiring of service; in Paris, if we are to believe 
 the preliminary work on the Civil Code, there took place in the year 
 IX one thousand divorces for three thousand marriages.^ By 
 
 1 Cf. Decree of the 23 Vend., year II (Oct. 14, 1793); 8 Niv., year II (Dec. 
 28, 1793); 4 Flor., year II (Apr. 22, 1794); 24 Vend., year III (Oct. 15, 1794). 
 
 ^ Thus in English law: Glasson, VI, 181. A man is looked upon as not 
 having anj' honor when, after having seduced a married woman, he does not 
 repair the injury by marrying her. The canon law was contrary to this. 
 They feared that the possibility of marriage might be an encouragement to 
 adultery. It is perhaps just the contrary that ought to be feared: Starcke, p. 65. 
 
 3 Cf. Lehr, "Dr. Angl.," p. 65. 
 
 * Treilhnrd, in Fenet, IX, 562. Speech of Carrion-Nisas in the Legisla- 
 ture: in the year IX the number of marriages in Paris was 4000; that of 
 
 150
 
 Topic 6] DISSOLUTION OF MARRIAGE [§ 135 
 
 1795 protestations were heard in the Convention. This assembly 
 was compelled to suspend the carrying out of the Decrees of the 2(1 
 Nivose and the 4th Floreal, year II ("disastrous laws, which let 
 loose a torrent of immorality "). Under the Directory the abolition 
 of divorce for incompatibility of disposition was demanded and dis- 
 cussed on several occasions; but the only result of this was a Decree 
 of the first complementary day of the year V, by the terms of which 
 the legal delays in such cases were prolonged for another six months. 
 
 Although discredited, divorce still kept for itself many parti- 
 sans; ^ it found a place in the Civil Code in spite of the criticisms 
 of the Catholics, such as de Bonald ; ^ but the new legislation took 
 a step in advance, in the direction of reaction, by doing away with 
 divorce for incompatibility of disposition, and by re-establishing 
 the judicial separation which had not been in existence since 1792 
 (divorce of Catholics). 
 
 Rarely met with under the Empire,^ divorce disappeared from 
 our laws in 1816/ only to reappear once again in 1884.^ 
 
 divorces, 700; in the year X the number of marriages was only 3000, and 
 the number of divorces 900. — From Jan. 1, 1793, to June 17, 1795, there 
 were 5984 divorces in Paris; in 1897 there were almost 3000 divorces in 
 Paris and from 9000 to 10,000 in the whole of France. 
 
 1 Its maintenance was asked for by ahnost every court of appeal. 
 
 2 In his book upon "Divorce," 1801, de Bonald reasons more like a poli- 
 tician than a logician. He maintains that divorce is injurious to the children 
 and the spouses themselves, especially the wife; that marriage is not an or- 
 dinary contract; and, finally, that if there are intolerable situations where 
 divorce seems to be indispensable, these are unfortunate exceptions which the 
 legislator cannot very well take into account. Divorce, successive polygamy, 
 is just as bad in the eyes of Bonald as simultaneous polygamy. — Nothing 
 could be more untrue; the law or Customs can prevent the abuse of divorce: 
 c/. Legrand, "Le Mar. et les Moeurs en France," 1880. Starcke, p. 99, shows 
 the opposed views on this subject between the Latin race and the Germanic 
 race. Divorce would be a benefit in Germany, an evil in France. 
 
 ' The divorce of Napoleon and Josephine by the Senate Decree of Dec. 16, 
 1809, — rather an amusing thing, the Statute of March 30, 1806, Art. 7, for- 
 bade divorce for the members of the Imperial family. See F. Masson, "Jose- 
 phine Divorc6e," 1901, in the bibliography of Viollet, 449, 1; Welschinger, 
 "Le Div. de Napoleon," 1889; Dolhagnray, "R. d. So. Ecclesiast.," 1889, 
 IX, 534 et seq.; Sehling, "Z. f. Kirchenr.," 1885, 1; Duhr, "Z. f. Kath. Theol.," 
 1888. Two motives were invoked before the Council of the Ecclesiastical 
 Judges of Paris in order to annul the religious marriage which had been se- 
 cretly celebrated before the coronation by Cardinal Fesch: 1st, lack of pub- 
 licity, absence of the proper parish priest and witnesses demanded by the 
 Church; 2d, lack of consent. Napoleon only having given a pretended consent 
 in order to please Josephine, — mere pretexts, which nobody took seriouslj^ 
 (c/. details in Welschinger). The pope alone would have been competent, 
 but Napoleon kept him prisoner at Savone. 
 
 •• Without public opinion, which had acclaimed it with enthusiasm in 
 1792, being affected in any way: Chrestien de Pohj, "Divorce," 1815. 
 
 ^ Note from the Holy See, "Arch. f. Kath. Kirch.," 54, 166, and Encycl. 
 "Arcanum Divina;," Feb. 10, 1880. 
 
 151
 
 § 136] THE F.\3IILY [Chap. I 
 
 Topic 7. Second Marriages 
 
 136. Barbarian Law. 
 
 137. The "Reipus." 
 
 138. The "Achasius." 
 
 §139. Canon Law. 
 
 § 140. Protection of the Children of 
 the First Marriage. 
 
 § 136. Barbarian Law. — The repugnance felt for second mar- 
 riages, but merely for the second marriages of widows, is fre- 
 quently found in the old legislations wherever the family adopted 
 the patriarchical type,^ as it did in Germania.^ The widow did 
 not leave the house of her husband; she passed under the power 
 of the new head of the family (her son; the brother of her hus- 
 band); her condition differed little from that of an unmarried 
 woman.^ But it was not rare to see her alone or with young 
 children without any protector. Sometimes her own family took 
 her back,^ sometimes she remained alone, then becoming a true 
 head of the family, at least in fact.^ 
 
 § 137. The "Reipus." ^ — This exceptional situation will perhaps 
 enable us to understand the puzzling provision of the Salic Law 
 on the marriage of widows. It contained and sanctioned a regu- 
 lation introduced in practice, but still contested: the parties pre- 
 sent themselves before the "mallus"; there the new spouse gives 
 three sous and one denier, as the purchase price (symbolic), to the 
 maternal relatives of the widow,'^ and, if there are not any, then 
 
 1 Animist beliefs: Indian widow: Grimm, 451; Procope, "De B. G.," 2, 14 
 ("Herules"); Michelet, •'Orig.," 54. Cf. Jewish levirate: Flach, "Le\'irat," 190. 
 In many localities charivari (" concerrade " at Naples). Fourteenth century: 
 Faber, "Inst, de Jug.," § "Injiu-ia"; Freminville, see "Diet, de Police," (pun- 
 ished by the Ordinances and Orders); Salvioli, 336; Fertile, III, 365, n. 23. 
 
 2 Tacitus "Germ. " 19. 
 
 3 "L. Sax.," 7, 3.' Cf'. "Rothar.," 182; "Capit.," ed. Bor., I, 13, c. 25 et 
 seq.', Amira, "Erbenfolge," 32. As to Prankish law, cf. post, "Guardianship." 
 
 * "Sax.," 7, 3; "Roth.," 182. The widow who cannot or will not remarry 
 remains under the "mundium" of the relatives of the husband, but if they 
 maltreat her she can return to her own people, and, if there are none of her 
 own people, place herself under the "mundium" of the king. 
 
 * Kovalewsky, p. 174; Dareste, "Etudes," p. 90. 
 
 « "L. Sal.," 44. Cf. Lombard Formula?: Thevenin, "Textes," no. 47; 
 "Burg.," 24, 60; "Wis.," 3, 2, 1; "Sax.," 42; "Roth.," 182; Lahoulaye, "Cond. 
 des Femmes," 160; Pardessus, "L. Sal.," 687; Schroeder, "Gesch. d. Ehel. 
 Gut.," I, 56; "D. R. G.," 299; Sohm, "Eheschl.," 63; "R. u. Ger.," 67, 370; 
 Amira, "Erbenf.," 30; Dargun, "Mutterrecht," 141; Lamprecht, "D. Wirth- 
 schafts 1.," I, 32; Peters, "De Reipus," 1830; Weinhold, "Z. f. Deut. R.," 
 1849, 539; Dareste, "Etudes," 409; Hnhicht, 16; Glasson, III, 29; Brissaud, 
 "Rech. s. la Tutelle des Femmes," p. 18; Ficker, "Erbenf.," Ill, 525. 
 
 ^ And not the husband of the deceased. The question is one which haa 
 
 152
 
 Topic 7] SECOND ]VL\RRIAGES [§ 138 
 
 to the relatives of her first husband, provided that they are not the 
 heirs of the latter} This pecuHar institution of the "reipus"^ 
 seems to be less a trace of the primitive matriarchate ^ than an 
 imitation of ordinary marriage, arranged in such a manner as 
 to leave the widow independent. A fictitious "mundoaldus" to 
 proceed with the betrothals and receive the symbolic purchase 
 price was selected for her; at the same time care was taken to 
 choose him from among those who could not exercise an actual 
 "mundium" over her; the real "mundoaldus" might not be willing 
 to agree to the marriage of the widow for fear of losing the advan- 
 tages to be gained from her marriage portion.^ The Capitulary of 
 819, Chap. 8, made widows subject to the common law by com- 
 pelling them to provide themselves with the consent of their rela- 
 tives (natural family).^ 
 
 § 138. The " Achasius." — In the capitularies which were added 
 to the Salic Law, the regulations for the marriage of widows, 
 which were already sufficiently difficult, became still more com- 
 plicated. It was not enough that the new husband should pay 
 the "reipus"; the widow must furthermore negotiate with the 
 relatives of her first husband "ut pacem.habeat'' and give up to 
 
 been very much discussed: Geffcken, p. 171. In the other direction they argue 
 about the words "superiores nominati," § 9, and the mention of the husband, 
 § 8, would be accounted for by the contrast with the "frater" of § 7. 
 
 1 In the absence of these formahties a composition of 63 "sous" is due to 
 the creditors of the "reipus," but the marriage is not annulled. 
 
 2 Etymology: "Reif," "Ring," "Anneau," and by extension "argent" 
 (money). AceorcUng to Meyer, "Badisch. Hochzeitsbrauch," 1896, "Reipus" 
 equals "Seilgeld." "Z. S. S.," 1898; G. A., 195. Cf. as to this word and as 
 to "Achasius," Kern, in Hessels, § 270; see Geffcken. 
 
 ' Dargim, "Mutterrecht," pp. 141-151. According to this opinion why pay 
 the "reipus" to the relatives of the husband? 
 
 * Sohn, "Eheschl.," 63, sees in the "reipus" a penalty against second 
 marriages. Cf. Heusler, II, 208, 307; Ficker, " Erbenf olge," I, 512; III, 531. 
 But why pay this fine, if it is one, to the relatives enumerated by the law? 
 Habicht, "Verlob.," 19. One can scarcely see in this, with Amira and Lam- 
 j)recht, a composition for the loss of the "Gerade," for the "Gerade" came 
 from other relatives. — A remarkable analogy with the Theodosian Code, 3, 7, 
 1 ("shown us by Brunner) : the consent of the relatives who would inherit from 
 widows was not required for their entering into second marriages. But there 
 is no question of any payment analogous to the "reipus," nor of the classi- 
 fying of the relatives like that found in the; Salic Law. The celebrated Lom- 
 bard formula of the eleventh century {Cg,nci(mi, "L. Barb.," II, 476) assumes 
 contrarily to the Salic Law, a "reparius" (of the name of Seneca) having a 
 "mundium" over the widow (Sempronia, widow of Thersitus, and daughter of 
 Cicero); this is a conceit of an erudite notary: Laboulaye, p. 162. Cf. Hatch., 
 182; Thevenin, no. 48. 
 
 * Edict of Chilperic, c. 2, seems to do away witli the "reipus," which would 
 account for the fact that the formula? do not mention it (any more tiian they 
 do the "achasius"), but they would render useless the Capitulary of 819; it 
 is true that it does not make any innovation. 
 
 153
 
 § 138] THE F.i.MILY. [Chap. I 
 
 them, as an "achasius," ^ about a tenth of the marriage portion 
 which had been set aside for her by him, and, furthermore, if she 
 has no children, a bed with bedding, the bedding of a quahty corre- 
 sponding to this bed, an upholstered stool, and chairs which she 
 took with her from the house of her father; in default of these, 
 she loses two-thirds of her marriage portion and pays sixty-three 
 sous to the treasury.^ The marriage of a widower for the second 
 time gave rise to a regulation of the same sort : he keeps the 
 marriage portion until the children come of age; if he has no chil- 
 dren he gives up two-thirds to the nearest relatives of the wife in 
 return for a portion of the furniture; assuming that they refuse 
 to give up the furniture to him, they are only allowed one-third of 
 the marriage portion.^ Concerning the interests of the children 
 by the first wife, the law forbids the spouse who has married a 
 second time, either widower or widow, to alienate the (Germanic) 
 marriage portion of the wife to their prejudice."^ The Edict of 
 Chilperic, Chap. 4, simply divides the marriage portion in half 
 between the widow or the widower and the relatives of the de- 
 ceased husband or of the predeceased wife, when there are no 
 children.^ 
 
 §139. Canon Law. — On the question of second marriages 
 the Christian Church is found to be rather in accord with the 
 spirit of the Germanic law than with the Roman legislation of 
 the Empire, which drove citizens to marriage.® Without going 
 so far as to condemn them, it looked upon them with disfavor.^ 
 Marriage "cum unica et virgine" alone symbolizes in its eyes the 
 union of Christ with the Church, and, furthermore, it was a state 
 inferior to that of celibacy. Second marriages were tolerated as 
 a sort of second offense, and were punished by means of certain 
 
 1 Pardessus, "L. Sal.," Geffcken, id., p. 239 (bibl.). 
 
 2 It takes away from the enjoyment of the marriage portion: "inde irsB." 
 ^ Except there be an agreement to the contrary made previous to it by 
 
 "adfatimus." 
 
 * Cf. infra, "Dower" (rights of the children), "Forfeiture." 
 
 ^ "Sal.," 72; "Alam.," 55; "Bai.," 15, 8; cf. "Roth.," 182; "M. G. H.," 
 "L. L.," IV, 333; Thevenin, no. 48; "Wis.," 4, 2, 14; Pajrien, 19; "Burg.," 
 24, 62, 69, 42; "Alam.," 55. 
 
 ^ Reaction already under the Lower Empire, owing to the influence of 
 Christian ideas, but especially with the object of guaranteeing the pecuniary 
 interests of children: Meynial, p. 63; Boissonade, "Hist, des Droits de I'Epoux 
 Surv.," 1874. 
 
 ' Paul, "1 Cor.," vii; "Nic6e", 325, c. 8; Goffredus, "Summa," p. 194 
 (cites St. Jerome); Hostiensis, "Summa," IV, sec. n. The Eastern Church 
 forbade fourth marriages, and even third marriages between persons who were 
 more than forty years old and who had children by their first marriages : Zacha- 
 rioe, "Jus Grseco-Rom.," Ill, 227; Zhisman, pp. 308, 449; Perrone, III, 98. 
 
 154
 
 Topic 7] SECOND MARRIAGES [§ 139 
 
 penalties: (a) penances; ^ (6) incapacity to receive sacred orders; - 
 (c) no nuptial benediction.^ But if the canon law discouraged 
 them from marrying, the Feudal law, which was more in harmony 
 with their natural inclinations, made it a duty for widows to re- 
 marry in their own interest, in order that they should not be de- 
 spoiled of their possessions, and in the interests of the Feudal 
 lord, so that the service of the fief should remain assured.'' Per- 
 haps it is as a consequence of this conflict between the Feudal 
 customs and the Christian spirit that the Church, in a manner 
 contrary to the Roman law, did not compel the widow to await 
 the expiration of the year of mourning under penalty of disgrace 
 before she should marry a second time." The Parliament of 
 Paris was of opinion that the Decretals had not only abolished the 
 disgrace, but the other penalties attached to second marriages,^ 
 whereas, in countries of written law they did not cease to be ap- 
 plied: ^ 1st. The woman who remarries (or misappropriates) within 
 the year of mourning loses all the privileges of the married woman 
 and all the gifts given her by her husband.^ 2d. If there are no 
 children by the first marriage, the woman cannot give her second 
 husband, by way of marriage portion, or bequeath to him by will, 
 more than one-third of her possessions. 3d. The wife is incapable 
 of inheriting ''ab intestat." from her collateral relatives beyond 
 the third degree, and of receiving any gifts "causa mortis" from 
 strangers.^ These were the penalties for marriage within the year 
 of mourning; ^° the widow w^ho marries a second time after the 
 year of mourning, is simply deprived of the ownership of the por- 
 tion of the survivor which came to her from her first husband 
 
 1 C, 31, q. 1. c. 8 {Gratian). — Cf. "Orient," "N6oc(5sar^e," c. 3; "Lao- 
 ■dic6e," c. 1; "Nov.," 90 of I.eo. — Van Espen, 2, 15; Sanchez, 7, 81-91. 
 
 2 As for the man who remarries, and the man who marries a widow or a 
 young girl who is not a virgin, they are qualified as bigamists: Gratian, D. 
 33, c. 2 (a. 490); 34, 9; Dig. X, 1, 21, 2; "VI," 3, 2, 1. 
 
 ' "Faux Capit.," 2, 130, 408; Dig. X, 4, 26, 1, 3. 
 
 * It is the same thing with widows of artisans and peasants: Stobbe, § 24S. 
 B Dig. 3, 2, 10 and 11; "Petrus," 1, 38; "Pcenitent. Theod.," 12, 9. — In 
 
 the nineteenth century the Roman rule had fallen into disuse: Anscgise, IV 
 17; "Cap.," V, 106, 233, 222; Dig. X, 4, 221, 4; Italy: "Const. Leg. Pi.s.," 23, 
 "Const. Amalf.," 10. — As to proof of the death of the spouse, see Dig X, 
 4, 1, 19; 4, 21, 2; C, 34, q. 1, c. 2; Beaumanoir, 57, 11; "Jost.," 220. 
 6 Laur. on Loysel, 175; bibl. in Garonis, "De Pcenis 2 Nub." 
 ^ Motives of public honesty, fiction of the marriage continued during the 
 year of mourning: "Ass. de J6rus.," "C-. d. B.," 166. 
 
 * "Cod. Theod.," 3, 8, 1. Loss of the poor person's share and of the right 
 of inheritance: "F. de Nav.," 4, 3, 6. 
 
 9 Gifts "inter vivos"? "Glose," s. 1, 1; "Cod. Just.," "De Sec. Nupt."; 
 Cujas, "S. Nov.," 22, c. 22. 
 10 Cf. Law of Sept. 20, 1792, 3, 2. 
 
 155
 
 § 139] THE FAMILY [Chap. I 
 
 (or of gifts and legacies made on condition of not marrying 
 again). 
 
 § 140. Protection of the Children of the First Marriage.^ — To 
 these penalties were added in countries of written law, provisions 
 drawn in the interests of the children by the first marriage, from 
 the laws "Feminse quae," " Generaliter " and "Hac edictali." ^ 
 The Edict of July, 1560, made them apply to the whole kingdom, 
 because, as is said in the preamble, widows who have children, 
 not acknowledging that they are sought after rather for their 
 possessions than for their persons, give their new husband enor- 
 mous gifts."" These scandalous gifts were formerly more difficult 
 to make in countries where Customary law was in force; it is for 
 this reason, undoubtedly, that jurisprudence had not felt the need 
 of re-enacting the Roman laws. First clause of the Edict.^ Widows 
 are forbidden to give their personal possessions ^ to their new 
 husband ® beyond the amount of the share of a child whose share 
 is smallest,^ under penalty of having them restored.^ Second clause 
 of the Edict. Nullity of the grant, if possessions acquired from 
 the predeceased spouse are given by widows or widowers to the ad- 
 vantage of their new spouse;^ these possessions should be reserved 
 
 ' Guyot, Ferrihre, see "Noces" (bibl.); Boucher d'Argis, "Tr. des gains 
 Nuptiaux," 1738; Dujnn, "Peines des Secondes Noces," 1743; Astruc, id. 
 1750; Cambolas, id. (cited by Astruc, p. 7); Champagne, "Tr. des Secondes 
 Noces," 1720; Launoy, "Inst.," 2, 7; Lebrun, "Succ," 2, 6; Ricard, 3, 9; 
 Pothier, VI and VIII; D'Aguesseau, ed. 1772, IV, 25; Boissonade, "Dr. du 
 Conj. Surv." (bibl.); "These," 1887; Stobbe, § 248; Bntz, "Cod. Belg.," 552; 
 Bourjon, 11, 191. 
 
 2 "Cod. Just.," 5, 9, 3, 5, 6; cf. "Cod. Theod.," 2, 21, 1, 2 (358); 3, 8, 2 
 (832); "Nov." 7 (469). 
 
 ' The Edict was enacted on the occasion of the marriage of Catherine 
 d'Aligre. 
 
 4 "L. Hac Edictiali" ("Cod. Just.," "De Sec. Nupt.," 6), in 469; Civil 
 Code, 1098. — The Orders appHed this rule to widowers, who were not men- 
 tioned in the Edict because it had been enacted with reference to the mar- 
 riage of a widow. 
 
 ^ Even by contract of marriage (clauses of conversion of real property into 
 personal property, etc.): Denisart, see "Noces"; Order of Jan. 29, 1658; 
 Civil Code, 1496. 
 
 ^ Either directly or by means of persons interposed (such are presumed 
 to be the descendants or ascendants of the new spouse) : Denisart, see "Noces," 
 no. 20. The old law does not distinguish between gifts made by persons 
 interposed and indirect gifts; a reduction of them took place in both cases: 
 cf. Civil Code, 1099. 
 
 ' Louet, "N," 3, 22 (Order of 1651). Several marriages; all the new 
 husbands together only have a right to the share of one child: Pothier, 
 no. 566. 
 
 8 The reduction affects third parties and is for the benefit of the children 
 of the second marriage. In countries of Customs they follow the "Lex Quo- 
 niam,"_"Cod. Just.," "De Sec." no. 9, rather than the "Nov.," 22, c. 27, 
 which is applied in countries of written law. 
 
 9 "Lex Feminae Quae," "Cod. Just.," "De Sec. Nupt.," 3 (in 382) and 
 
 156
 
 Topic 7] SECOND MARRIAGES [§ 140 
 
 for the children of the first marriage.^ Tliese provisions were per- 
 fected by Art. 279 of the Custom of Paris,^ which decided that 
 acquisitions of property made jointly with the first husband could 
 not be given by widows to their next husbands; and by Art. 182 
 of the Ordinance of Blois, enacting penalties against widows who 
 should remarry with persons who were unworthy of them, such 
 as their men servants.^ Of this legislation only the first clause of 
 the Edict of 1560 remains.^ 
 
 Another effect of second marriages was to restrict the rights of 
 parents over the persons of their children; this will be dealt with 
 later on in connection with paternal power and guardianship. 
 
 "Generaliter," ibid., 5 (in 444). Cf. "Nov.," 2, 1, and "Nov.," 22, 25. Cf. 
 rights of children with regard to dower; "F. de Beam," Art. 270; Pothier, 
 nos. 605 et seq. ; Sanchez, 7, 89. 
 
 1 Substitution in trust for the benefit of all the children of the first mar- 
 riage without any distinction and without any favoring of any one of them. 
 
 2 "Orleans," 203. Extended to include the husband (March 4, 1697, 
 Order of the Parliament of Paris). The children of the second marriage took 
 a share in this jointly acquired property with those of the first marriage. 
 
 ^ Cancelhng of the direct or indirect advantages given by widows to their 
 new husbands; prohibition of these advantages from the time of the contract 
 of marriage: "Bretagne, N. C," 54; Cambolas, "Decis.," 2, 38 ("Arr. Tou- 
 louse," 1597). 
 
 < Civil Code, 1098. Law of the 17th Niv., year II, Arts. 13 and 61, im- 
 pliedly repealed the Edict of 1560. Cf. Chabot, "Quest. Transit.," see " Noces." 
 
 157
 
 § 141] THE FAMILY [Chap. I 
 
 Topic 8. Union Other than Marriage 
 
 § 141. In General. I § 143. Morganatic Marriages. 
 
 § 142. Concubinage. | 
 
 § 141. In General. — Our law only knows one kind of marriage, 
 the same for everybody. In the old legislations, alongside of mar- 
 riage properly so called, it is not a rare thing for unions of a lower 
 order to exist. Thus it is that we are able to distinguish in the 
 Barbarian law: marriage between free-born people of an equal sta- 
 tion in life, with or without "mundium," concubinage, and union 
 with slaves.^ Between slaves the Roman " contubernium " gave 
 way to a true marriage,^ subject for a long time, however, to the 
 intervention of the master.^ The union of free persons with slaves 
 was treated in a different manner, according to circumstances. 
 (a) The intercourse of a free man with the slave of another was 
 punished (attempt upon property), excepting if the master gave 
 his consent."^ The free man lost his liberty: "servus trahit ad se 
 francum." ^ (b) The intercourse of a free woman with the slave 
 of another was also punishable; ^ loss of property was the usual 
 consequence, as is shown by the formulae of the "Epistolse con- 
 culcatorise" ^ by means of which the master gives up the right of 
 
 1 Kohne, " Geschlechtsverbindungen der Unfreien im Frank. R.," 1888 
 ("Unters." by Gierke); V. Sicherer, " Personenstand u. Ehschliess.," 1879 
 "Sachsensp.," 51. 
 
 2 Excepting effects which were incompatible with the status of slavery 
 "Bai.," 8, 12; Roziere, 399; Pardessus, "Dipl.," I, 198. Commonly used 
 expressions: "matrimonia," "conjugia," "uxor." "Orleans," IV, 541, c. 24 
 "Capit.," ed. Bor., I, 36, c. 15; Kohne, p. 9. 
 
 ^ Required for a long time by the Church ("Orleans," IV, 541, c. 24) 
 under penalty of annulment of the marriage. The Church is compelled to 
 prevent the master from separating his slaves after they have been validly 
 married: "Chalons," 813, c. 30: formal prohibition; "Edit Pist.," c. 31; 
 c/. "Cap. Heristal," 779, c. 19. 
 
 4 "Sal.," 13 and 25 (notes hy Geffcken); Kohne, p. 25; "Rib.," 58, 12, 13. 
 Annulment of marriage as 'in the preceding case for lack of the master's con- 
 sent: "Edit Pist.," 31. Mistake as to station, see: "Impediments"; "Cap.," 
 I, 38 and 40, c. 7 and 6. Case where one of the spouses becomes a slave. 
 C/. "Divorce," "Cap." 803, c. 8 (I, 114): the husband who sells his liberty 
 by giving himself as a pledge does not by this means affect the liberty of 
 his wife or children. 
 
 5 "Rib.," 58, 14, 15; "Cap." 819, c. 3. But not at Saint-Germain dea 
 Pres: Gu&rard, "Polypt.," I, 392, 969. Of. Kohne, p. 32. 
 
 6 "Sal.," 13, 7; "Cod. Th6od.," 4, 11, 1 ("Ad sc. Claudianum"). 
 
 ' Rozilire, "Form.," 101 et seq.; "Rib.," 58, 16; Geffcken, "L. Sal.," 
 135. 
 
 158
 
 Topic 8] UNION OTHER TH.\N MARRIAGE [§ 142 
 
 treating the woman and her children as slaves, (c) The free 
 woman who marries her own slave is severely punished.^ (d) The 
 man who contracts a permanent union with his own slave thereby 
 contracts a sort of inferior marriage, which differs very little from 
 concubinage.- 
 
 § 142. Concubinage,^ practised at Rome and in the majority 
 of the old legislations, was not unknown in Germanic law.^ Prop- 
 erly speaking, it consisted in the union of the free man with a 
 woman who was also free, but of lower condition, especially '\\dth 
 a f reed-woman. It was to be distinguished from marriage, in that 
 it could be more easily dissolved,^ and in that the concubine did 
 not acquire the rank of her husband. In Rome the concubine 
 was ordinarily recognized by the absence of "libellus dotis"; ^ in 
 the same way, in Barbarian law, the "pretium nuptiale" or Ger- 
 manic marriage portion is lacking in the case of concubinage, 
 which is entered into without any of the solemnities which are 
 customary in the case of marriage; ^ neither the wife nor the chil- 
 dren have the same rank as the father.^ It was allowable in olden 
 times, even for married men,^ but this Constantine forbade in 
 
 1 "Sal.," 13, 7 et seq. Loss of freedom, "Cap." 5: confiscation of all her 
 property; she shall be "aspellis" ("wargus"), outside of the law. The slave 
 shall perish upon the wheel; "Cap." 819, c. 3. — "Rib.," 58, 18 {Kohne, p. 15) : 
 a sword and a distaff are offered to the woman; if she takes the sword she 
 must kill the slave, if she chooses the distaff she must share his fate. This 
 alternative is only possible when asked for by the relatives. 
 
 2 "Roth.," 222; "Liut.," 106; Fr. de Gaudenzi, 8 (Zeumer, "Leges 
 Wisigoth.," p. 317); Kohne, p. 25; Amira, p. 161, contrasts the "Friede" 
 with the "Kebse" kept in the house, and both of these with the lawful wife. 
 
 ^ Du Cange, see "Concubina"; Guyot, see "Concubinage"; Lutkens, 
 "Polygamie u. Konkubinat.," 1723; Thorlacius, "Boreal, vet. Matrim.," 
 1784; Stobbe, § 212; Fertile, § 114. As to the "Massipia" of the Bearnese 
 law cf. Lagrhze, "Dr. dans les Pyr^n^es," p. 375. 
 
 * Fr. de Gaudenzi, 8; "Roth.," 154 et seq.; "Grim.," 5; "Liut.," 106; 
 Roziere, 130. 
 
 5 Brunner, "Z. S. S.," 1896, "G. A.," 12. A union which is pubUc and last- 
 ing, but the maintaining of it depends upon the husband ("Kebsehe," allu- 
 sion to the fact that the wife was a serf or only semi-free); Kovalewsky, 
 "Cout. Contemp.," 155. 
 
 6 Girard, "Manuel," 151; Esmein, I, 108; "Cod. Just.," 5, 26, 1; Paul, 
 2, 20, 1; "Cod. Just.,^' 7, 15, 3; "Nov. Just.," 18 and 89. 
 
 ' In 869 Charles the Bald caused Richilde, sister of Count Boson, to be 
 brought to him and "in concubinam accepit"; in 870, " concubinam suam 
 Richildem desponatam atque dotatam in conjugem accepit"; "M. G. H., 
 S. S.," I, 486. William Long-Sword marries his wife "more danico," that 
 is, to say, without solemnities, "usu": Dareste, "Etudes," pp. 309, 326. 
 "8 Letter of Leo I to Rusticus, 458: Gratian, C, 32, q. 2, cap. 12. 
 
 * Contrary argument of the ecclesiastical prohibitions. Scandinavians: 
 Amira, "Recht," pp. 162, 165; "Saga de Nial. Oppositions e.stablished by 
 Ficker between the law of the Western Alemanni and that of the Eastern 
 Alemanni, the latter being the only ones who admitted concubinage. Op- 
 posed to tliis view: Brunner, op. cit., 31; cf. Salvioli, § 183; Schroeder, 302. 
 
 159
 
 § 142] THE F.UIILY [Chap. I 
 
 Rome.^ Christianity condemned both the concubinage of mar- 
 ried people ^ and that of unmarried people,^ a frail liaison, where 
 the man and the woman were too far apart, owing to their condi- 
 tion, to be a realization of the image of the mystical marriage of 
 Christ and the Church; and it rejected every union between the 
 sexes outside of marriage itself.^ But concubinage had become 
 so firmly rooted in the Customs that it persisted in many localities, 
 and was even tolerated by the civil law. This accounts for the 
 fact that it is found organized in the "Siete Partidas" under the 
 name of "barragania." ^ Against priests who practised concu- 
 binage the Church had need of the efforts of its greatest pontiffs.^ 
 In the sixteenth century legal concubinage had almost everywhere 
 disappeared; there remained nothing but concubinage as a simple 
 union in fact, against which the Council of Trent let loose its aus- 
 terity,'^ commanding the bishop to give three admonitions to the 
 man and the woman who live together without being married, 
 after which they shall be excommunicated by the ordinary.^ 
 Secular jurisdiction, which is more indulgent, does not inflict any 
 
 1 "Capitul.," I, 202, c. 5; 376, c. 37; II, 45, c. 35; 189, c. 12; 190, c. 15.— 
 As to the Roman law of the barbarian period, cj. "Cod. Theod.," 4, 6, 4 and 
 6; "L. Wisig.," ed. Zeumer, p. 318, c. 3; "Cod. Just.," 5, 27, 2 (3^ ounce to 
 the concubine); Papien, 37, 4 (one ounce and 3^ ounce); "Int. Nov. Theod.," 
 c. 1. The constitution to which reference is made has not come down to us: 
 "L. Wis. Rec," 3, 5, 5; "Z. S. S.," 1886; "G. A.," 30. 
 
 2 "Capit.,"790, c. 5 (1,202). 
 
 2 Not without some hesitation. The celibate who has only one concubine 
 is not excluded from the communion, according to the First Council of To- 
 ledo: Bruns, I, 206; Gratian, D., 34, c. 4; Tribur, 895, c. 36 [Mansi, 18, 
 151): that he who is not married shall content himself with a single concu- 
 bine: "Mayence," 851, c. 15. 
 
 ■* "Const. Apost.," 8, 32; Gratian, D., 34, c. 5; Augustine, "Serm.," 289, 
 4; Gratian, C, 32, q. 2, c. 11-12 (letter of Pope St. Leo in 458 to Rus- 
 ticus of Narbonne). — Moreover, from the day when the theory of marriage 
 by mutual consent triumphed the majority of unions with concubines be- 
 came true marriages: Michelet, "Origines," p. 41; P. Fournier, "B. Ch.," 
 1900, p. 89 et seq. The register of the ecclesiastical judge of Cerisy, how- 
 ever, shows us many relations of concubinage which were transformed into 
 marriages. 
 
 ^ IV, 14 (duty of fidelity, paternal filiation legally established, only one 
 concubine, no impediment to the marriage of people living in a state of con- 
 cubinage). Cf. "massipia" or concubines taken before a notary in Navarre: 
 Cujas, "Cod./' 5, 26; Giraud, I, 233, 113; Lagreze, "Hist, du Dr. de Nav.," 
 II, 188. Itahan Statutes of the thirteenth and fourteenth centuries: Salvioli, 
 § 183; Murioz, "Fueros," p. 536, etc. 
 
 8 Dig. X, "de fil. Presbyt."; Guyot, see "C^libat." In the literary docu- 
 ments of the twelfth and thirteenth centuries the priest is shown as living 
 with a "priestess," e.g., Fable of Constant Duhamel: Luchaire, "Acad. Sc. 
 Mort.," 1901, 581. 
 
 7 Esmein, II, 310. 
 
 8 Register of the ecclesiastical judge of Cerisy, passim; Benedicti, "Index," 
 see "Concubina"; Hiricourt, "E.," 24, 25; Van Espen, I, 497; II, 65. 
 
 160
 
 Topic S] UNION OTHER THAN MARRIAGE [§ 143 
 
 penalty upon them; this sin does no wrong to anybody, says 
 Ferriere. It was deemed sufficient to annul gifts between people 
 living in concubinage/ without which they would have had an 
 advantage over married people.^ 
 
 § 143. Morganatic Marriages.^ — The idea that marriage with 
 all its effects is possible only between persons of the same posi- 
 tion persisted in the Customs after it had disappeared from 
 legislation. Combined with motives of a political nature, such 
 as the indivisibility of fiefs or of States,"* and with the pro- 
 hibition of concubinage by the Church, it gave rise to the mor- 
 ganatic marriage, that is to say, to a union which in its essential 
 characteristics does not differ from ordinary marriage (monog- 
 amy, indissolubility, legitimate filiation, etc.), but wherein neither 
 the women nor the children hold the same social rank as the 
 husband.'^ 
 
 In Germany,^ from the thirteenth century, it is permitted only 
 among the upper nobility, and to-day in the families of princes 
 only. The wife is only the equal of her husband if she is "eben- 
 biirtig," that is, of equal birth. With any other woman a 
 marriage, however regular it may be, is a misalliance, a "dis- 
 paragium," a morganatic ^ or left-handed marriage.^ The wife 
 does not take her place in the family of the husband and has over 
 his possessions only the rights specified in the contract of mar- 
 riage;^ thus, she has no dower rights. No more than their mother 
 do the children attain to the rank of their father and inherit the 
 
 1 "Tour.," 246; "Anjou," 342, etc. "Ord." of 1629, 132; Fem^re , see bibl. 
 
 2 However, they kept up gifts for sustenance in a case where the concu- 
 bine was worthy of having some interest taken in her. 
 
 3 Stobbe, § 213, 214 (bibl.); Putter, "Missheiraten," 1796; Zoepfl, id., 1853; 
 Gohrum, "Lehre d. Ebcnburtigkeit," 1846; Heffter, "Sonderrechte," 1871; 
 Schulze, "Preuss. Staatsr.," I, 185; Niebelschiitz, "De Matrim. ad. Morgana- 
 ticam," 1851; D'Haucour, "R. Crit. de Leg.," 24, 579; Cidmann, "Stud. Ub. 
 de Morg. Ehe.," 1880; Berenger (Fernand), "De Matrim. ad. Morganat." 
 Cf. Prussian "Landrecht," II, 1, 835; II, 2, 555 (contrary to practice); Schulte, 
 §§ 142, 174. 
 
 * A prince who is a widower takes a morganatic wife, so as to keep the 
 throne for the children of the first marriage and avoid a vexatious rivalry. 
 Cf. the position of the prince consort in countries where the crown belongs to 
 the queen. 
 
 ^ "L. Feud.," 2, 29 (Milan: "accipere ad morganaticam"; elsewhere they 
 say: "lege Sahca"). Cf. 2, 26, 16. 
 
 * "Sachsensp," I, 16, 2: no "Ebcnburtigkeit" between those who are 
 free and those who'arc not free (the children then take the lower rank) ; "Schwa- 
 benspiegel," 60 6; between "Semperfrcie" and "Mittelfreie," "a fortiori" 
 between nobles and commoners: Schroeder, § 42, 7; Hcusler, § 37. 
 
 ^ By reason of the " Morgengabe " stipulated for at the time of the marriage. 
 ® The husband took the right hand of the lawful wife. Cf. Martene, op. cit. 
 " "L. Feud.," 2, 29. 
 
 161
 
 § 143] THE FAMILY [Chap. I 
 
 possessions of the family; they are only recognized as having a 
 right to be supported.^ The effects of the misalliance can be 
 done away with if all the male descendants who are capable of 
 inheriting ^ give their consent. In the same way, if the family dies 
 out, the children born of the morganatic marriage carry it on. 
 
 ^ For each family one must consult the laws or "Hausgesetze" which 
 govern it, as well for cases of " Ebenbiirtigkeit " as for the effects which can 
 be connected with a misalliance. 
 
 2 Can an imperial privilege take away the succession from the agnates and 
 confer it upon the children? Capitularies of 1658, 1742, 1792. 
 
 162
 
 Topic Q] 
 
 POWER OF THE HUSBAND 
 
 [§ 144 
 
 Topic 9. Power of the Husband 
 
 §§ 144, 145. Foundations of the Power 
 
 of the Husband. 
 § 146. Right of Correction. 
 § 147. The Husband's Authority. 
 § 148. The Incapacity of the Wife is 
 
 General. 
 § 149. How is the Authorization 
 
 Given? 
 
 § 150. Supplementary Authorization 
 
 Given by Law. 
 § 151. Effects of Authorization. 
 § 152. Lack of Authorization. — Beau- 
 
 manoir's Svstem. 
 § 153. Rights of Third Parties. 
 
 § 144. Foundations of the Power of the Husband.^ — In the 
 early Customary law the Germanic "mundium" is continued 
 under the name of power or authority of the husband, including at 
 the same time both the person and the possessions of the wife ; ^ 
 
 ' Terminology. Barbarian period: "mundium," "mundeburdium," "po- 
 testas," etc. Period of Customs: "mainbournie," "mainplevie" (Liege), 
 "coverture" (England), "bail," "garde," "avouerie," etc. Post, "Guar- 
 diansliip of Women," "System of Possessions between Spouses," "Power of 
 the Father." Loysel, 176. — On the unity of the domestic power or "mun- 
 dium," on its character of power and not of protection: Heusler, § 23. 
 
 2 Against this opinion, which is commonly admitted, cf. Lefebvre, op. cit., 
 p. 397, according to whom the "mundium" existed only among the Lom- 
 bards, the Saxons and the Scandinavians. The origin of the husband's power 
 in Customary law would be found especially in the Christian ideas, for which 
 the way had been prepared by the Germanic Customs; among the Franks 
 the wife would have been free at Iniv, subject in fact, for the most part. — 
 This system, which we do not pretend to discuss thoroughly in a mere note, 
 at least calls for a few observations. 1st. If the husband's power is a juridical 
 production of the Christian spirit, is it not extraordinary that the Church, 
 which has given us so much legislation on the subject of marriage, did not 
 find a place in its law for an institution of so much importance? Perhaps one 
 will say that the Christian teacliing and penances were sufficient; but, as 
 far as that goes, what was the use of legislation on the subject of marriage? 
 2d. It is almost a miracle to see this power being established over the bar- 
 barian woman, while the Roman woman escapes it. At the same time, both 
 of them were submitted to the influence of Christianity. According to the 
 logic of things, it is in the case of the former of these women that the reform 
 should have had its inception. If this was not so, then we can say "spiritus 
 fiat ubi vult." 3d. It is quite possible that the "mundium" did not operate 
 among the Franks with the same harshness as among the Lombards; at a 
 very early period it was weakened and modified. But, if one denies its ex- 
 istence, the appearance of the husband's power during the feudal period is 
 an enigma which cannot be solved. It is not arbitrary to argue from the 
 Lombard law, for, aside from the general relationship of the barbarian laws, 
 the Lombard Customs of the Middle Ages resemble the French Customs. 
 The same power of the husband would have been created here by the Chris- 
 tian spirit and there by the Germanic law. 4th. It is difficult to draw from 
 Christian teaching the right to beat a wife; also, they derived it from the 
 responsibility of the husband because of the offenses of his wife. But this 
 responsibility surely existed during the Prankish period. Therefore, the right 
 of correction also existed, and this essential attribute of the "mundium" 
 carries with it almost all the others. 5th. Negative arguments: (a) The silence 
 
 163
 
 § 144] THE FAiMILY [ChaP. I 
 
 according to the formula in the " Schwabenspiegel," 72, "der Mann 
 ist des Weibes Vogt und ]\Ieister." Assuming the quasi-mihtary 
 organization of the family, the necessity for command by an in- 
 dividual, the woman was found to be subordinate to the husband ; 
 her physical weakness during a period of violence relegated her 
 to this inferior role.^ As soon as social conditions became less dis- 
 turbed, it was not long before the civil emancipation of unmarried 
 women, young girls, or widows was introduced. This change had 
 its reciprocal effect on the condition of the married woman her- 
 self, in spite of the force of tradition and the constant presence 
 at her side of one stronger than she; it was difficult to ascribe 
 radical incapacity, the day following her marriage, to the woman 
 who the day before was in possession of her full capacity. She had 
 the enjoyment of rights, but she was not allowed the exercise of 
 them.^ One can say that when she married she condemned her- 
 self to a perpetual minority. Although reduced, the power of the 
 
 of the Frankish laws leads one to suppose that the law of the family was not 
 codified in them. I admit that the formulae and statutes might have been 
 more expUcit, but how many omissions do we not find? (6) It is time wasted 
 to seek in the Frankish statutes for a procedure dealing with the annulment 
 of a contract entered into by the wife, if this contract, as we know, could not 
 be pleaded against the husband. 6th. Positive reasons._ The experience of 
 Berthegonde, who fled from her husband to take refuge in churches or mon- 
 asteries, bears witness to the authority of the bishops and brings into play 
 the right of sanctuary; against this right the domestic power wrecks itself as 
 well as the social power {Gregory of Tours, IX, 33). The case of Fredegonde 
 giving her daughter a marriage portion of gold, money, and clothing, is not of 
 much consequence; in the first place, at a very early time the "ornamenta 
 muUebria" were left to women as their own special property; and then, again, 
 the husband's "mundium" must have been very slight over a queen, whom 
 it cost so Uttle to have her husband assassinated {Gregory of Tours, VI, 45). 
 Cf. "Acad. Leg. Toulouse," 1900 (" Le Mariage par Achat") and "Acad. 
 Sciences Toulouse," 1895 ("Tutelle des Femmes"). Let us add that, if the 
 Frankish Customs dealing with the family were not of the same consistency 
 as codified laws, — a consistency which cannot be expected from even the 
 codes of that period, — they none the less constituted juridical rules. The 
 confusion and the obscurity which existed with regard to them are, however, ' 
 not an absolute obstacle to one's perceiving a predominating tendency, as it 
 were, and logical connections; a rough outUne of this law of the family may 
 thus be accurate, while at the same time it too often preserves a systematic 
 character. 
 
 1 With very rare exceptions women are not capable of bearing arms, and 
 civil capacity is measured by physical force: post, " Guardiansliip of Women." 
 Heusler, § 25, objects that the weakness of woman has always remained the 
 same, whereas her capacity has increased. Undoubtedly, a woman is not 
 physically incapable hke a child of tender age; but her weakness has prevented 
 her becoming head of the family. Cf. with regard to the Scandinavian woman, 
 whose situation in the family has been presented under too favorable an as- 
 pect, Gide, p. 219; Dareste, pp. 289, 307; "L6g.," "Sues Goth.," IV, 9 (the hus- 
 band strikes his wife so \'iolently that she dies from the effects of it). 
 
 2 Cf. post, "Participation in the Exercise of the Power of the Husband," 
 "System of Possessions between Spouses." Mertian de Muller, "Cond. de la 
 M6re," 1878. 
 
 164
 
 Topic 9] POWER OF THE HUSBAND [§ 144 
 
 husband thus persisted, differing in this from the guardianship 
 of minors, in the interests of peace in the household, so that it 
 might assure the unity of direction of the conjugal companion- 
 ship.^ By way of compensation the woman received certain se- 
 curities and privileges.^ Owing to a contradiction which is more 
 apparent thari real, in this authority of the husband there was 
 seen a safeguard for the woman herself, who was considered as 
 being weak and inexperienced by nature {cf. Roman law: "im- 
 becillitas sexus," the Velleianum Decree of the Senate).^ This 
 was a contradiction, as the interest of the husband, who was the 
 representative of the family, might be in opposition to that of the 
 wife; but a contradiction which has not given much offense, be- 
 cause the wife would be protected, if not against her husband, at 
 least against third persons. At the same time, the power of the 
 husband was deprived of its despotic character; the State .pene- 
 trated into the circle of family affairs, which until that time had 
 been closed to it, controlled its administration, and constituted 
 itself, in default of the husband, the guardian of the wife.'* If one 
 considers this customary theory in its later developments it seems 
 to us like a composite system wherein various conceptions come 
 to light: giving of the Germanic "mundium," unity of direction 
 in the management of the moral and material inheritance created 
 by the marriage, physical incapacity and inexperience of the 
 woman.^ This theory found a support in the Christian ideas: the 
 axiom "Vir caput est mulieris" seemed like the religious formula 
 of the civil law; ^ the theologians maintained that the woman who 
 
 ' If one can compare the husband to a guardian, one should not forget 
 that he does not have to furnish any surety or render any account, and that 
 he cannot be removed. Formula in Grimm, "Weisth.," II, 836. 
 
 2 Aristotle, "Poht.," 3, 2, 10 (c/. Auguste Comte, "Catechisme Positi- 
 viste"): "Man is concerned with acquiring, woman with preserving." This 
 remark of Aristotle's is not so true in our day. But for a long time the wife 
 was restricted to the household management and the husband was responsible 
 for external relations. 
 
 3 As to the bad opinion which jurists and theologians have of women, see 
 post, ' Guardianship of Women. "Le Songe du Verger," 1, 147, makes 
 a regular prosecutor's speech against them. D Argentre, on "Bret.," 410, 
 classes them, as we would say, among the impulsive people (outbursts of emo- 
 tion, lack of caution, ungovernable pride): Bedier, "Fabliaux," p. 318. In 
 the time of Chassaneus, "Catal. Glor. Mundi," 2, 12, when a married woman 
 passed near a man, custom demanded that she should conceal half of her 
 face. 
 
 * Proudhon, "Tr. des Personnes," I, p. 468. 
 
 5 Pothier, no. 1: The need which the wife has for the authorization of the 
 husband is not based upon the weakness of her reason. 
 
 8 Paul, "Ephes.," v, 21. According to the theologians, woman was originally 
 the equal of man, but Eve's fault caused her to descend to the rank of an 
 
 105
 
 § 144] THE FAMILY [Chap. I 
 
 disobeyed her husband committed a mortal sin. However, that 
 which shows us very clearly that we must not attach too much im- 
 portance to these religious ideas, is that they have been powerless 
 to compel the acceptance of the principle of the incapacity of the 
 married woman in the countries of written law:^ "by custom, 
 the wife is under the power of her husband ; it is otherwise in writ- 
 ten law." ^ The measures of the Revolutionary law,^ inspired by 
 the idea that the power of the husband is "a creation of despotic 
 governments," ^ and the modern woman's rights doctrine,^ had 
 precedents in the jurisprudence of the parliaments of the written 
 law; to which one may liken the English Statute of the 18th of 
 August, 1882, giving her freedom to the married woman.^ But 
 the framers of the Civil Code extended to the whole of France 
 the power of the husband which was in force in countries of Cus- 
 tomary law. Instead of the contrast between the two French 
 systems as once existing, what we now have is an antithesis be- 
 tween the condition of the French woman and that of the 
 Anglo-Saxon woman; an antithesis which custom has under- 
 inferior; she became the accomplice of the serpent; she is unworthy to receive 
 the Eucharist with bare hands and to touch the "palla altaris" ("Cone. 
 d'Auxerre," 36), etc. The clergy is not recruited from among women. Cf. 
 St. Thomas, "Summ. Theol.," la, q. 92; Esmein, "Mariage," I, 60; Malo, 
 "R. d. Frau. in Christ. K.," 1896; Pontas, ''Diet, des Cas de Consc.," 1741, 
 see "Femme Mari(5e." The common opinion is that the domestic power, 
 whether of the husband or of the father, became milder under the influence 
 of Christianity: Gengler, "Einfluss. d. Christ, auf das Altgerm. Rechtsleben." 
 Contra: Lefebvre, op. cit. 
 
 ^ Julian, I, 3; Serves, I, 8; Boutaric, id. Let us observe that certain Cus- 
 toms of the South admit the power of the husband, just as the Italian stat- 
 utes do. At Genoa marriages according to the local Custom are distinguished 
 from marriages according to the Roman law: "Bordeaux," 64, 80, 82, 112 
 ("Etabl.," 34); "F. de Beam," 261. 
 
 2 Desmares, 35; "Petrus," I, 32; Meynial, "N. R. H.," 1901, 268. 
 
 3 "Premier Projet de Cod. Civ.," I, 3, 11 etseq. (1793) (equality of the 
 spouses in that which concerns the administration of their possessions; con- 
 sent of both spouses to the alienation of the possessions of the husband or of 
 the wife); Condorcet, "Progres de I'Esprit Humain," "CEuvres," X, p. 121. 
 Mirabeau and Robespierre fought against the emancipation of woman (woman 
 should reign in the interior of her house; everywhere else she is out of place). 
 
 * Montesquieu, "Espr. des Lois," 19, 14 (harmony between the political 
 system and the constitution of the family). 
 
 ^ Systems of Saint-Simon and of Fournier: Michelet, "La Femme," Stuart 
 Mill, "Subjection of Women," 18.59 (French trans., 1869); Bridel, "Le 
 Droit des Femmes," 1893; Secretan, "Le Dr. de la F.," 1888; FouilM, 
 "R. D. M.," Sept. 15, 1895; P. Lacombe, "Le Mariage Libre," 1895; Varigny, 
 "La Femme aux Etats-Unis," 1893; bibl. in the "Rev. Encyclop. Larousse," 
 Nov. 28, 1896; Desmaret, "La Femme Future," 1900; cf. Laurent in his "Cours 
 de Code Civil" and in liis projected revision of this code. 
 
 8 Lehr, op. cit.; Glasson, "Rap. s. les Prix du Budget," 1898, and a recent 
 enactment (1901) for Norway, according to which a woman may or may not 
 promise obedience to her husband when she is married. — Why not also re- 
 lease her from the duty of fideUty? 
 
 166
 
 Topic 9] POWER OF THE HUSBAND [§ 146 
 
 taken to correct by giving to the former the liberty which the 
 law refused her, and by preventing the latter from abusing her 
 legal rights.^ 
 
 §' 145. The Same. — The Germanic "mundium" (from "munt," 
 meaning hand) ^ recalls, feature by feature, by its name and by 
 its effects, the Roman "manus,"^ or, if one prefers it, the power 
 of the husband among the Gauls in the time of Caesar.'* It implies 
 as a first condition the change of family. In passing from her 
 natural family into that of her husband the woman ceases to be 
 subject to the paternal power; ^ she takes the name of her hus- 
 band,^ lives according to his station,^ acquires his nationality, 
 and still more so his domicile.^ Formerly she also lost all right of 
 inheriting from her relatives. But it does not seem that the tie 
 of solidarity which united her to the latter was ever entirely 
 broken; they helped her in time of need and protected her.^ In 
 the last stage of the law, it has for a long time been admitted that 
 the woman, at the same time as she enters the family of her hus- 
 band, does not cease to belong to her natural family. 
 
 § 146. Right of Correction.^'' — The disciplinary power of the 
 head of the family over the entire house naturally included the 
 wife.^^ In primitive times it was undoubtedly limited only by 
 
 ^ Starcke, op. cit. 
 
 2 Heusler, § 22 et seq.; Simonnet, "These," 1898. As to the Lombard law 
 cf. Schupfer, "Arch. Giur.," I, 139; Bluhme, "Z. R. G.," XI; Gaudenzi, "Arch. 
 Stor. p. 1. Prov. Napoletane," 1888, XIII, 1. 
 
 * Many of the old authors cause the husband's power to be derived from 
 the Roman "manus," — for example, Loyseau, "Offices," 5, 2, 26; with this 
 meaning Van Wetter, "Le Dr. Romain et le Droit Celtique." But the 
 "manus" had disappeared at the time of the estabUshing of the barbarians. 
 
 * "Acad. Leg. Toulouse," 1900 ("Le Mariage par Achat"); cf. Meynial, 
 p. 92, who explains Tacitus, c. 20, etc., by means of the Eddas and the Nie- 
 belungen (Brunhild has possessions, disposes of her treasures when she dies, 
 can leave her husband at her will; Gudrun is protected by her brothers; 
 Dargun, "Mutterrecht," passim, traces of the matriarchate), and who believes 
 that the subjection of the woman is a later fact resulting from the savage life 
 which followed the Invasions (p. 102). See also Lefebvre, op. cit. and loc. cit. 
 
 * Cf., however, countries of written law: "Gr. C. Norm.," 31, 14 (marriage 
 is equivalent to majority); post, "Power of the Father." 
 
 * Before there were any patronymic names the married woman was desig- 
 nated by her baptismal name followed by the qualification "uxor N.". . ., the 
 wife of so and so. 
 
 ^ The plebeian woman who married a nobleman became a noble, and vice 
 versa. At the same time, the serf who married a nobleman did not become 
 a noblewoman, excepting when the lord married his own serf. 
 
 * She should follow the husband wherever he goes to reside (excepting if 
 he goes abroad, says Pothier). 
 
 * Meynial, p. 83; po.^t, "Correction." 
 
 1" Dubrulle, "Dr. du Mari sur la Pers. de la Femme," 1879. 
 " " Priv. de Bareges" (a. 1404), Art. 7: every master of the house can punish 
 his wife and his family without anybody being able to prevent him. — But it 
 
 167
 
 § 146] THE FAMILY [Chap. I 
 
 the fear which the husband had of the relatives of the wife.^ Al- 
 though Tacitus does not say so, there is reason to beUeve that the 
 Germanic husband, who did not hesitate to gamble with his own 
 person, gave as a stake his wife and his children before pledging 
 his property. At any rate, the old traditions agree in authorizing 
 him to sell them in case of necessity.^ The formula interpreting 
 the Edict of Rotharis declares that the husband cannot kill his 
 wife "ad libitum," but only if there is a valid motive ("rationa- 
 biliter");^ this is to recognize the "jus vitse necisque," and leads 
 us to believe that in the past this right was almost absolute. The 
 Edict calls upon the relatives of the woman and the State to pun- 
 ish illegal murder. Of this ancient state of things the law which 
 had so long been in force in many countries, of killing the wife 
 caught in flagrant adultery, still remained. There also remained 
 the right to beat her for lesser faults, to give her the whip, to 
 strike her with rods and the stick.'* In the twelfth and thir- 
 teenth centuries the Customs show that "it is allowable for the 
 man to beat his wife, as long as he does not kill her or mutilate 
 her." ^ To this formula of Beaumanoir one may liken that of 
 
 is probable that this right could not be exercised over the heiress who was 
 mistress of the house, and who had married the younger son of some other 
 family; the latter was, in fact, reduced to about the same role as that of the 
 first servitor. D'Arbois de Jubainville also shows us that in Ireland the con- 
 dition of the wife varied according to her wealth; if she were rich she lorded 
 it over her husband; if she were poor she became his servant. 
 
 1 Tacitus, "Germ.," 19; cf. Grimoald, 6; "Liut.," 120, 130; Greg. T., 10, 
 22; Kraut, I, 40; Rosin, "Formvorsclirift." 1880. 
 
 2 Tacitus, "Ann.," 4, 72 ("Frisians"); "Bai.," 1, 80; "Alam.," 51, 1; 
 "Acad. Legisl. Toulouse," 1900 ("Mar. par Achat"); Grimm,."R. A.," 450; 
 "Roth.," 203; "Cap.," 803, c. 8 (I, 114); Richtofen, "Z. Lex Saxon," p. 293; 
 "T. A. C. Bret.," 314 (no imprisonment for her husband). 
 
 3 "Roth.," 200 et seq., and "Form."; cf. "Wis.," 3, 4, 1 et seq. 
 
 * Wife "sub virga" (English expi-ession) : Michelet, "Orig.," p. 48; 
 "Liut.," 121; "Cap.," 829, c. 3; Burchard, "Dec," 1, 93. The Custom of 
 Ardenburg, in Zeeland (twelfth century), according to wliich the wife is "a 
 chattel of the husband," formulates this right with a savage humor: Art. 9, 
 "The husband may beat and wound his wife, may gash and slash her from 
 top to toe, may warm his feet in the blood of his wife, and sew up the wounds, 
 without offending his lord, provided she does not die from the effects" (cited 
 by Van Wetter, p. 35). "Hamburg," 1270, 3, 8; "Riga," 6, 4, 3; Viollet, 
 p. 504; R. Foelix, 8, 672: in 1841 an English peasant led his wife to the market 
 and sold her to the highest bidder (in 1884, also, according to Viollet). 
 
 ^ Beaumanoir, 57, 6: "Quand elle meffet," he says, and he gives four ex- 
 amples: she is about to "fere folic de son cors," she lies to her baron, she 
 curses, she does not wish to obey his reasonable commands: "Gr. Cout. 
 Norm.," 85, 100 (to put out the eyes, to break the arms, to be in the habit of 
 giving blows, often and without reason, "enormi percussione," this is not a 
 mere correction): "F. de Beam," 266; Bergerac," 1322, Art. 82. Analogous 
 formulae in the Italian statutes of the fourteenth and fifteenth centuries : Fertile, 
 III, 308. Cf. the Russian "domostroi" or Economist (sixteenth century); 
 story of Griselidis. This law is hardly the expression of customs such as are 
 
 168
 
 Topic 9] POWER OF THE HUSBAND [§146 
 
 d'Argentre in the sixteenth century : ^ " marito licet castigare 
 uxorum sicut puerum infra setatum." ^ 
 
 The Church allowed the woman to ask for a separation of domi- 
 cile in cases of ill-treatment on the part of her husband ("si tanta 
 sit viri ssevitia ut mulieri trepidanti non possit sufficiens securitas 
 provideri," says Innocent III).^ It even gave her a true independ- 
 ence in matters of religion. The submission of the wife to the 
 husband was limited by her duties towards God.^ With this ex- 
 ception, the wafe owed obedience to the husband, who was the sole 
 judge of her relations and her acts." We have already seen what 
 means the monarchic law gave the husband to suppress dissen- 
 sions on the part of the wife.^ 
 
 shown us in literary documents like the "Dit de Bigorne et de Chicheface" 
 and the fabliaux where the husbands are tlie playthings of their wives. To 
 the Enghsh formula: "Cui ipsa in vita sua contradicere non potuit," c/. "Sire 
 Hain" and "Dame Anieuse"; see, however, Pasquier, "Inst.," p. 65. 
 
 Against this abandonment of the old law the popular instinct reacted by 
 means of burlesque ceremonies, a species of disgracing punishments, some of 
 which have been preserved even to our day, and which have as their object 
 the ridiculing of husbands who are too weak. If he allows himself to be beaten 
 by his wife, the husband shall straddle a donkey with his face turned towards 
 the tail in the midst of the laughter and jests of the whole village: Du Cange, see 
 " Asinus ";Mic/ieZe;, p. 48;" Rev. des Pyrenees," 1900; " La Couvade, en France." 
 
 1 "Sur Bretagne," 410; Chassaneus, on "Bourg," c. "Droits des Gens 
 Maries": "^quiparantur pater et filius, maritus et uxor"; Loyseau, "Offices," 
 5, 2, 26. A very widespread custom, according to which the women eat stand- 
 ing up or sitting near the hearth and waiting on the men seated at table: 
 Viollet, p. .503; "R. des Pyr.," 1900, ib.; Lehuerou, "Carohng.," p. 39. 
 
 ^ To punish his wife is a right and a duty of the husband, for he is respon- 
 sible for her offenses, not that he will have to undergo the corporal punishment 
 that she deserves, but because he must pay the fine and the damages: Beau- 
 manoir, 56, 6; "Cout. de Norm.," 544; Rollo, according to Wace, circa 1236, 
 punishes a husband for the off ense of his ■nife : Lc/e6yre, " Cout. Fr. du Mar. ," p. 20. 
 
 3 Dig. X, "de Rest. Spol.," 13; Jaffe, "Reg.," 2845 (Nicholas I); Me- 
 sangere, "Diet, des Proverbes " : "A battrefaut I'amour." Brunner, "Schoef- 
 fenb.," 511: the husband should act with respect to his wife "potius bonis 
 affatibus et virga? disciplina quam turpibus alloquiis, flagellis et violentis cas- 
 tigationibus." At Breslau in 1451 a husband promises to strike his wife only 
 with rods, as is proper, and as a wise man should do and in an altogether 
 honorable manner: Slobbe, § 215. Cf. servants, children: Dareste, 326; Fer- 
 tile, III, 309; "Ass. de Jcr."; "C. de B.," 181. 
 
 * Glanville, 6, 3; "Morlaas," 335: the wife cannot release her husband from 
 excommunication (they are but one flesh, but the offense is personal) : " T. A. C, 
 Bret.," 222 (hierarchy of duties). 
 
 * Bonaparte to the Council of State (according to Thibaudeau, "M6m. sur 
 le Consulat," p. 426): "Nature has made of our wives our slaves. The hus- 
 band has a right to say to his wife: ' Madame, you shall not go out! Madame, 
 you shall not go to the theatre! Madame, you shall not see such and such a 
 person!' — which is as much as to say, 'Madame, you belong to me, body 
 and soul!' " This brutal formula is recommended to the attention of the 
 framer of the future ('ode dealing with women, the drawing up of which so 
 many right-minded people await with impatience. 
 
 ^ Regular way and extraordinary way or order of arbitrary arrest {Funck- 
 Brentam, "R. D. M.," 1892, 113, 839). 
 
 169
 
 § 147] THE FAMILY [Chap. I 
 
 § 147. The Husband's Authority. — In the primitive law the 
 personality of the wife is absorbed by that of the husband; ^ she 
 has no possessions of her own ^ and cannot accomplish any juridi- 
 cal act; ^ it is for the husband alone to act.^ This state of law 
 seems to have been abandoned among the Franks, but one finds 
 traces of it among other barbarian peoples, for example, among 
 the Anglo-Saxons.^ When her personality begins to free itself, 
 when she has possessions of her own, the husband is none the less, 
 as far as these possessions themselves are concerned, always in 
 charge of the external affairs of the family; or else, he acts him- 
 self by reason of his "mundium," of his quality of head;" but 
 from an owner he has descended to the rank of a manager or a 
 
 1 In the English law the husband and wife are one. Post, "System of 
 Possessions between Spouses." The power of the husband is called "cover- 
 ture" ("feme covert de baron," "femina viro cooperta," as contrasted 
 with the "feme sole"). Cf. Roman wife "in manu marit": Du Cange, see 
 "Cooperire." 
 
 2 Without going so far as this, people ordinarily recognize the fact that 
 the husband's "mundium" results in giving him the administration and the 
 use of the possessions of his wife, the right of disposing of her movables, and 
 the right to represent her at law; finally, that the wife must be incapable of 
 acting without authorization. The principle of the unity of inheritance 
 seems to us to have had more radical consequences; we must take it as being 
 the starting point of evolution: post, "System of Possessions between Spouses." 
 — "Burg.," 100; "Wis.," 4, 2, 15 (the citation of Scripture is a justification 
 given as an afterthought for a rule of the pagan period). The law of the Bur- 
 gundians, 100, is drawn, according to Heusler, from the Germanic foundation; 
 it would be, on the contrary, inspired by Christianity, according to Lefebvre, 
 op. cit., p. 442; we do not find a single trace of this last tendency. At the 
 time when the wife came to have considerable possessions it must have been 
 asked if the husband's power affected them to the same degree as it did when 
 she brought with her to her husband nothing or almost nothing; the laws 
 clung to the old rule and extended this power to the Roman wives. 
 
 3 "Roth.," 205; "Rib.," 74 (likening the wife to a slave) : "F. de Ldon," 
 1020, Art. 42; Mufioz, p. 71, 496; Liege {Van Wetter, op. cit., 28): the husband 
 is absolute lord and master of all the present and future possessions of his wife; 
 he has the right to dispose of them, even by will (until the seventeenth cen- 
 tury): "Const, de Messine," 27; "Aoste," 1253, 5, 12 {Contra, Venice: inde- 
 pendence) ; Loysel, 122, 178, 290. 
 
 * "Summa Norm.," 100, 2; 14, 5; "Cout. d'Ardenbourg," loc. cit.. -the wife 
 is the husband's chattel. 
 
 ^ Post, "System of Possessions between Spouses." Cf. "Cart.," "de Re- 
 don," "de Cluny," etc. 
 
 fi He claims the compcsitions due for offenses of which his wife is a victim, 
 or, conversely, is responsible for the offenses which she has committed. For- 
 mula? upon the Lombard laws: "Roth.," 26, 28, 139, 258; "Liut.," 92, s. 
 The compositions which he is paid belong absolutely to him, because it was 
 for him to take vengeance for the offense: "Roth.," 195 ei se^.; "Liut.," 12,31; 
 Heusler, § 27. He pays the "launegild" for gifts made to her: "Roth.," 184. 
 He defends her if she is called upon to take part in a judicial duel: "Ass. de 
 Jer.," "J. d'Ibelin," 75; "Gr. Cout. Norm.," 77; English common law. Cf., 
 however, "Wis.," 2, 3, 6 (writ of the wife). Let us not forget that we also see 
 the wife giving her consent to the alienation of the possessions of the husband 
 and authorizing it: " Jostice," p. 169, 225; Boutillier, I, 99. 
 
 170
 
 Topic Q] POWER OF THE HUSBAND [§ 148 
 
 usufructuary; ^ or else, instead of acting for her, he acts with her, 
 he authorizes her to accompKsh an act;^ in one way or another 
 the interests of the family are preserved. We have already seen 
 that the authorization of the husband, having become the safe- 
 guard of the woman, constituted in case of Customary law the 
 equivalent of the Velleianum Decree of the Senate which was in 
 force in countries of written law,^ and that the authority given 
 by law limited the rights of the husband and made absolute the 
 protection of the woman. ^ 
 
 § 148. The Incapacity of the Wife is General; ^ it exists ^ with 
 relation to every act of civil life, and it is not possible to alter it 
 by the contract of marriage.^ At the same time, from the time of 
 the thirteenth century, the wife who is a tradeswoman, that is to 
 say, who carries on a separate business, with her husband's knowl- 
 edge, has capacity as far as her own business is concerned.^ (I) In 
 order to appear in court, the woman must ^ be attended by her 
 
 ' It is even said that he represents his wife; this is a conception that is 
 relatively recent; originally, he only represented the family, he acted in his 
 capacity as head of the family. 
 
 2 "Lib. Pap. Roth.," 233 et seq., 204, 170; "Liut.," 58. 
 
 5 Post, "Guardianship of Women." 
 
 * It is ordinarily taught that the power of the husband was the same under 
 every matrimonial system. This is the theory of the jurists, but not of the 
 historians: each reign shows us, on the contrary, a different phase in the his- 
 tory of the husband's power. 
 
 * Although the texts proceed by means of enumeration: Desmares, 289; 
 "Paris, N. C," 223; "Ori.," 194; "Gr. Gout. Norm.," 77; Beaumanoir, 43, 
 22-26, 44, 19; 34, 56; "Fribourg i. U.," 1219, 20; "Schwabenspiegel," 72; 
 Alost, 17, 6;Loysel, 122; Ferriere, s. 223; "Paris" (customs and bibl.); "T.A.C. 
 Bret.," 205; J. d'Ibelin, 105; cj. Civ. Code, 217. 
 
 « Dating: 1st. From the betrothals, " Artois," 87, etc.; explanation of Mail- 
 lard, cf. Civ. Code, 1404. In reality this is due to the nature of the betrothals 
 in the old law. Dumoulin no longer understands this: "hoc ineptum quum 
 possit majus, scihcet discedere a sponsalibus." 2d. From the celebration of the 
 marriage (common law): "Nivern," 29, 1, etc. 3d. "Bourg.," 4, 1: from the 
 consummation. 
 
 7 See, however, "Separate maintenance formed by contract" (of recent 
 date); "Sondergut" in German law, Separate estate in English law. 
 
 8 Practical necessity. In allowing her to carry on trade the husband 
 authorizes her in advance to do all the things that are required for this trade: 
 "Et. de St. Louis," I, 153; II, 147; "Jostice," p. 131; "Stat. d'Erfurth," 
 1305; cf. "Fribourg i. U.," 1219, 20; "Roye," 1183, 17; "St.-Quentin," 
 1195, 20 ("Ord.," XI, 229, 272); Beaumanoir, 43, 28; 44, 19; Desmares, 76; 
 she can be summoned without her husband. Cf. 289, "Ass. de J(5r.," "C. d. 
 B.," 131; "Poitou," 3, 126; "Anjou," 510; "Ori., A. C," 200, etc.; Pothier, 
 no. 62. She cannot appear in court without authorization, even in matters 
 relating to her merchandise: "Argou.," 3, 19; Merlin, 7, etc.; Loysel, 57. Cf. 
 system of the "peculium" in Roman law: Slobbe, § 220, 18; "T. A. C, Bret.," 
 205; "Paris," 224. 
 
 9 "Et. de St. Louis," 1, 153. J. Faure believes that she can act with- 
 out authorization in the courts of the Church (s. I, 1, "Cod. Just.," "de 
 bon mat.," no. 3); Dumoulin, Lauribre {Viollet, "Et. de St. Louis." loc. 
 
 171
 
 § 148] THE FAMILY [Chap. I 
 
 husband ; ^ undoubtedly, in the beginning she appeared with her 
 husband,^ and finally, the latter merely played the part of an as- 
 sistant, of a qualifier, a part which implied his pi^sence in court 
 as it had done in the past; he figured at the trial in the quality of 
 husband jointly with the wife, and the judgment could be exe- 
 cuted against him ; there is an exception as far as criminal actions 
 are concerned, when the wife is prosecuted for something done 
 by her.^ (II) Extrajudicial Acts. Acts "inter vivos" (sale, gift, 
 mortgage) are forbidden the wife who has not the authority of 
 her husband,* with the exception of acts done for the needs of the 
 household.^ As far as wills are concerned, the old law was divided. 
 Certain Customs,^ which undoubtedly were representative of the 
 primitive law, hold the woman as being incapable of making a 
 will without the authorization of her husband. Though domestic 
 discipline was scarcely involved, as the will has no effect until 
 after the dissolution of the marriage, the husband formerly had 
 
 cit.). Answer would here be understood to apply to both the complaint and the 
 defense, according to Lauriere: "Jostice," p. 131; Beaumanoir, 63, 1; the 
 wife cannot appeal without the permission of her baron, but she can be ap- 
 pealed against: "Ohm," III, 124, 14. 
 
 1 A previous authorization is not sufficient: Aubert, "Hist, du Pari.," I, 
 209; "Le Pari.," I, 237; "Const, du Chatelet," 39. 
 
 2 "Ass. de Jerus.," "C. d. B.," 90, 122, 153 (ed. Beugnot); "Paris," 224. 
 
 3 "Et. de St. Louis," loc. cit.; "Jostice," 131. Contra, "Gr. C. Norm.," 74, 
 100 (proof of the hot iron, " juisium " formerly). She can act alone if she is 
 insulted (c/. ^Zius at Rome) : "Norm.," 543; "Lorris," 199; "Montarg.," 2, 7, 
 or for recovery of possession if her husband is absent: c/. Pothier, 65; Britz, 
 "Dr. Belg.," p. 550. 
 
 * "Jostice," 131; Beaumanoir, 43, 22; 34, 56;_70, 7. Post, "Insane 
 Husband," etc. The wife can validly bind herself in order to get her hus- 
 band out of prison: "Norm.," 541; "Ord. s. Marine," 1681, 3, 6, 12, in order 
 to appoint a marriage portion for her daughter. Pothier demands for this 
 the authorization of the judge. According to Louet, "M.," 147, the lack of 
 authorization only annuls contracts which are to the prejudice of the wife; 
 thus she could receive a gift from a third party or a mutual gift. Contra, 
 "Ord.," 1731, Art. 9 {cf. Civ. Cod., 934); P. de La Janes, "Princ," II, 18; 
 "Arr.," Aug. 27, 1564, and April 12, 1595. Commands, testamentary exe- 
 cution: "The moral interest of the family may be affected." Beaumanoir, 
 41, 26 (cannot be an arbitrator). 
 
 • ^ Pothier, 49: an implied command of the husband. From whence it 
 would follow that the wife is not bound. The consequence would be just 
 the opposite if one assumed that the wife had received an implied authori- 
 zation, or that she were capable of binding her husband in the interest of 
 the household without having been authorized: Chaisemartin, p. 324; Britz, 
 p. 551; Lamoignon, "Arr. Comm.," 69; Merlin, 7, 7. 
 
 8 English common law: Glanville, 7, 5; Bracton, I, 60; Pollock and Mait- 
 land, II, 426; "Hainaut," 29, 5; "Norm.," 417; "Bret.," 519; "Beaune," 
 "Pers.," 530. 
 
 '' Tournay, Louvain: authorization if there were children (Britz, p. 551). 
 At Li^ge, it is the husband who makes the will: cf. "Bourg.," 4, 1; "Niv.," 
 23, 1; Merlin, "R6p.," see "Testament F. de B6arn," 261. Post, "Gifts 
 or Legacies between Spouses." 
 
 172
 
 Topic O] POWER OF THE HUSBAND [§ 149 
 
 rights over the possessions of the wife which were hard to reconcile 
 with the making of a will by the latter (acquisition of the marriage 
 portion, for example).^ As these rights in time disappeared, or 
 became very much weakened, the common law of the Customs of 
 the twelfth century allowed the woman to make a will by herself; 
 the interest of the family is necessarily sacrificed to the desire 
 to make the will a deed of the woman herself, and not of her 
 husband.^ 
 
 § 149. How is the Authorization Given? — As far as the old law 
 is concerned, it would undoubtedly be more accurate to speak of 
 the intervention rather than the authorization of the husband. 
 The act of the wife had either to be performed or warranted by the 
 husband himself, as it was not valid in itself. In time the husband 
 no longer has any need to indorse the act and to make it his own; 
 the wife is capable, but the husband should cease to set up the in- 
 terest of the household against that of third parties. Intervention 
 on the part of the husband degenerates into a simple "consensus," 
 in establishing that the act is not injurious to him. The progress 
 of the law has not, however, been so simple as these notions might 
 lead one to suppose. — (A) The authorization always had to be 
 Special;^ a general authorization would be nothing less than an 
 abdication of the husband's power, the complete upsetting of the 
 old system.'* — (B) Judicial Acts. The husband figures at the 
 trial in this capacity: he is a party to the proceedings in con- 
 formity with the old rule. — (C) Extrajudicial Acts. Originally, 
 no particular form was prescribed; the co-operation of the husband 
 in the act undoubtedly was sufficient,^ and it was the same as to 
 
 1 Cf. English law, according to which the wife's will is revoked of absolute 
 right by her marriage. 
 
 2 Loysel, 123; "Poitou," 275; "Auxerre," 238; "Reims," 12; Pothier, 
 no. 43. In countries of written law the wife may make a will without being 
 authorized to do so by her father, evidently because marriage has emanci- 
 
 Eated her. The jurisprudence of countries of Customs was perhaps inspired 
 y this practice: Automne, "Confer.," II, p. 293 ("ad tit. qui testam."). 
 ' Lebrun, 2, 1, 4, 8; D'Aguesseau, op. cit. and loc. cit.; Valin, on "La Roch.," 
 23 ; Lamoignon, 66, allows a special or general obtaining of authority previous 
 to the contract. 
 
 * Moreover, several of the Customs have gone as far as this — ("Artois," 
 "Flandre," "La Roch."). The "Coutume de Berry," 1, 21, only allows 
 a general authorization to be given by means of the marriage contract. One 
 can say that the common Customary law tolerates rather than permits a gen- 
 eral authorization under the form of a separate maintenance stipulated for 
 by contract (with limited effects). Cf. post, "Sondergut," "Separate Estate." 
 It is the same with an authorization to carry on business: Duplessis, "Com- 
 mun.," 1, 5; Lebrun, 2, 1, 6; Bourjon, I, 588; Merlin, 6, 2, 2. 
 
 * Various expressions in the old authors, "cong6," "octroi," "consente- 
 ment," etc. 
 
 173
 
 § 149] THE FAMILY [Chap, I 
 
 his express or implied permission.^ In the eighteenth century, 
 perhaps under the influence of the Roman writings on guardian- 
 ship, an express authorization, with terms which are decisive or 
 nearly so, "authorize," "enable,"^ is required: an unjustifiable 
 strictness at first glance, but one which is due, undoubtedly, to a 
 desire to avoid the difficulties of proof on the subject of the true 
 part played by the husband. 
 
 § 150. Supplementary Authorization Given by Law. — (I) 
 Absence '^ or Illness of the Husbajid^ The wife, changed into a 
 provisional head of the family, became capable of acting in his 
 stead and place, according to Beaumanoir.^ But this solution 
 was abandoned, for fear she might enter into rash undertakings 
 and compromise the fortunes of the children. She was obliged to 
 furnish herself with a legal authorization. This latter came into 
 existence very naturally as an incident of trials; ^ by allowing 
 the woman to plead, and there were cases where it was difficult 
 not to do so, the courts placed her in the same situation as though 
 she had been aided by her husband. In the case of extrajudicial 
 acts, also, it was easy for the courts to acquire supervision; the 
 wife asserts that her husband is absent or prevented from ap- 
 pearing; if she does not prove it in court, frauds would be too easy 
 a matter; thus she is compelled to do so, and, having once taken 
 cognizance of the matter, the courts pass upon the act itself, super- 
 vise the deeds of the wife, and become her guardians. It is thus 
 that the general rule was arrived at that the authorization given 
 by law supplements that of the husband.^ — (II) The minority 
 of the husband might have been looked upon as an obstacle to the 
 exercise of the husband's power in the same way as illness; the 
 wife who was of age would then have acted for her husband until 
 he should have attained his majority. But this was not so at all. 
 
 1 "Flandre," "Bourgogne," etc. 
 
 2 Pothier, op. cit. Details and discussion in Merlin, "Autor.," 6, 1; Louet, 
 "A.," 31 (influence of Bartolus upon the law "Cum lex," D., "de Fidej.")- 
 
 3 "Gr. Cout.," II, 32 (p. 323); "Ass. de J6r.," "C. des B.," 131; Beau- 
 manoir, 44, 19; 43, 28, "Summa de leg. Norm.," 100, 97 (as an exception, 
 when her husband is absent she can make use of the writ of novel disseisin). 
 
 * Dementia: Beaumanoir, 4^3,28. C/. civil death. Merlin, 7; v/ife can act 
 without being authorized, for the marriage is dissolved. Contra, Civil Code, 
 221. 
 
 ^' Beaumanoir, 43, 28; 44, 19; "T. A. C, Bret.," 83. 
 
 6 The"Gr.Cout.,"II, 32, contemplates this very case: Buche, "N. R. H.," 
 1884, 645. 
 
 ■ 7 Cf. as to the old procedure, Buche, "N. R. H.," 1884, 645. Royal letters 
 in the sixteenth century, because the authorization of law seems like a favor. 
 Afterwards these letters are not necessary. 
 
 174
 
 Topic 9] POWER OF THE HUSBAND [§ 150 
 
 There is a wavering between the two solutions: either to declare 
 that the husband who was a minor was capable of authorizing his 
 wife who had arrived at her majority, for the unity of purpose was 
 thus protected;^ or else to require the authorization given by law, 
 under the pretext that the husband could not give a suitable au- 
 thorization, and that the wife had to be protected.^ — (HI) Re- 
 fusal of the husband to authorize his wife? According to the 
 ancient principles, whatever interest she might have had, she was 
 not permitted to act nor to petition any court against a pro- 
 vision which might be prejudicial to her (Beaumanoir).^ In the 
 sixteenth century the law changed; Loysel, 124,^ declares that the 
 law gives the wife power to appear in lawsuits; in the eighteenth 
 century it gives her authority to make contracts and to alienate 
 property.^ 
 
 The wife who had legal separate property ^ escaped the power of 
 her husband and was treated as a widow, according to an ancient 
 doctrine upheld by Dumoulin in the sixteenth century; ^ not only 
 did she administer her inheritance alone, but she had the right 
 to execute all acts of disposal. This opinion did not prevail; it 
 was contrary to the idea of the " imbecillitas sexus," and to the 
 consideration that the separate estate gives way to common in- 
 terest, that it can cease, because the marriage is not dissolved. 
 The woman with separate property was only held as emancipated 
 in that which concerned the administration of her possessions; 
 she was left free to dispose by herself of her movables and the in- 
 come of her immovables, but every act of disposal bearing on im- 
 
 1 Auzanei, Tronqon, Ferriere (on 223, "Paris"); Loysel, 125; "Plaid de 
 Corbin," 118 (Order of 1608). This opinion prevailed: Pothier, no. 29. 
 
 2 Dumoulin, Chopin, ib.; Tiraqueau, "De Leg. Conn.," 8, 41; c/. Civil 
 Code, 224; Beaumanoir, 15, 30; "T. A. C, Bret.," 81. 
 
 3 D'Agnessea7i, ed. 1772, II, 54. 
 * Beaumanoir, 65, 17. 
 
 5 At least, such is its meaning according to Davot. 
 
 " Contracts between Spouses. Pothier, 42: the husband can authorize his 
 wife to contract with him (mutual gift). Le Brun and Ricard are of a dif- 
 ferent opinion: "nemo jjotest 6sse auctor in rem suam," the lack of au- 
 thorization cannot be pleaded against the husband because it is only set up 
 in his own interest. As to conflicts of interest between husband and wife, 
 c/. Stobbe, IV, 51; "Sachsensp.," I, 44 (special guardian if the husband dis- 
 poses of her marriage portion). Cf. "The Guardianship of Women." As to 
 the English law, c/. Lchr, p. 76: the wife who has been authorized can dis- 
 pose of her immovables on condition of recognizing the act at law, which is a 
 means of securing her freedom. Same procedure when the wife acts alone, 
 her husband being absent or prevented. 
 
 ^ As to the date of separate maintenance, cf. post, "Contract of Marriage." 
 The "Schwabcnsp.," I, 73, admits of it; cf. 148. 
 
 "Sur Bourb.," 170,232; "OrL, A.C.," 171; "Lorris," 198; "Montargis," 
 8,9. 
 
 175
 
 § 150] THE F-^illLY [Chap. I 
 
 movables was forbidden her without the authorization of her 
 husband (or of the law),^ The giving of a separate estate by con- 
 tract was only accepted under the influence of the Roman law, 
 and does not seem to have been practised very much. Still less 
 could the woman reserve by the contract of marriage separate 
 propert\', savings, or paraphernalia, with respect to which she 
 would have full capacity.- 
 
 § 151. Effects of Authorization. — According to the old con- 
 ception, the husband who gives his authority obligates himself 
 thereby, contrary to the Roman custom: "qui autor est non se 
 obligat." The more recent law tends to relieve him of his respon- 
 sibility, although the community of interests produced by the 
 marriage does not always permit of this.^ Still less does the au- 
 thorization of the law bind the husband. The woman who has 
 been authorized becomes as fully capable as the widow or the un- 
 married woman who has attained her majority; she can execute 
 acts which compromise her to the greatest extent, for example, 
 she can become surety for her husband or a third party, or give 
 up her dower rights.^ 
 
 §152. Lack of Authorization. — Beaumanoir's System. — The 
 act done without authorization can be objected to as against 
 neither the husband nor the wife during the marriage, but it can 
 be objected to as against the wife once the marriage is dissolved. 
 The authorization is thus not required in the interests of the wife; 
 it has no other object excepting to assure a unity of direction of 
 the household, a thing which is no longer of any concern when the 
 marriage has ceased to exist.^ — Sixteenth century. The concep- 
 tion of the protection of the wife has gained ground. It is 
 admitted that she can invoke the nullity of the act after the disso- 
 lution of the marriage.^ This nullity cannot be counteracted by 
 
 1 Order of 1623; L'Hommeau, III, 138; Louet, "F," 30; "Paris," 224, 234; 
 Pothier, no. 62 (she can appear in court for the administration of her pos- 
 sessions); Argou, II, 202; Loijsel, 126. 
 
 2 It is otherwise with the German law of the thirteenth century: "Son- 
 dergut." English law: "Separate Estate" with a "Trustee" (Court of 
 Equity). Post, "Contract of Marriage." Son of the family and"peculium" 
 at Rome. 
 
 ^ Post, "Conjugal Community." "Le tablier de la femme oblige le mari." 
 Pothier, no. 76. 
 
 * Cj. -post, the Velleianum Decree of the Senate. As to renunciation of 
 dower, c/. Beaumanoir, 13, 5; "Jost.," p. 169; post, "System of Possessions 
 between Spouses." 
 
 * Beaumanoir, 43, 22-27; 34, 56; 70, 7; "Bayonne," 9, 39. The question 
 waa an open one during the sixteenth century: Charondas, on "Paris," 223, 
 
 « "Paris, A. C," 105 (silent), "N. C," 223: nullity with respect to the wife 
 
 176
 
 Topic 9] POWER OF THE husband [§ 153 
 
 a later ratification, any more by the husband during the marriage 
 than by the wife who has become a widow.^ 
 
 § 153. Rights of Third Parties. — Those who deal with the 
 woman who has not been authorized have no right to avail them- 
 selves of the nullity of the act, in the opinion of Beaumanoir, for 
 it is not meant in their interest. According to the new theory, 
 this point is not settled. If the majority of the old authors con- 
 tinue to refuse to allow the action of annulment to third parties 
 by reason of the lack of interest,^ Pothier and Merlin concede it 
 to them.^ Relative nullity and absolute nullity each have their 
 partisans.^ 
 
 as well as the husband; and she cannot be prosecuted, nor can her heirs, 
 after the death of the husband: c/. Civil Code, 225 {their heirs). Motives: 
 D'Argentre, on "Bret.," 424: fear lest the husband succeed in stripping his 
 wife by compelling her to bind herself fraudulently, — that is to say, with- 
 out his being under the responsibility wliich results from authorization (at 
 least, under the system of community); Charondas, on "Paris," 223 (1, 29, 
 D., "de Reg. Jur."; absolute nullity); Meynial, "N. R. H.," 1901, 270, 1. 
 
 ' Pothier, 5, 74 (authorization given afterwards validated the act "ex 
 nunc"): Orders of 1557, 1598, 1626. Charondas, on "Paris," 237; Ferriere, on 
 id., 225; Le Prestre, II, 16; Lamoignon, "Arr. Commun.," 66 (Controversy). 
 
 2 D'Argentre, on "Bret.," 424; Lebrun, Ferriere, Bourjon, etc. Argou, III, 
 19, to end: the third party cannot have the contract broken, provided the 
 husband and wife offer to give him security and to make up for this lack of 
 formality by an authorization made afterwards with the consent of the wife. 
 
 ^ Pothier, op. cit., no. 5, 74; Merlin, "Rep.," see "Autoris. Marit." In 
 this sense one might have said that general interest would not admit of the 
 fate of the act being left entirely to one of the parties alone; but Pothier, 
 contrasting the wife with the minor, starts with the idea that the wife is ab- 
 solutely incapable, which was entirely correct formerly, and an idea to which 
 the doctrine of "imbecillitas sexus" gives a new lease of life: Lamoignon, 65. 
 
 * The nullity of the acts of the wife which are not authorized could be 
 alleged without any letters of rescission (thus differing from acts of a minor) 
 and, consequently, at any time within 30 years, for the limitation of the 
 action of rescission was the only one limited to 10 years by the Ordinance of 
 1510. 
 
 177
 
 § 154] 
 
 THE FAMILY 
 
 [Chap. I 
 
 Topic 10. The Paternal Power 
 
 § 154. Sources of the Paternal Power. 
 
 § 155. Origin. 
 
 § 156. "Mundium"and"PatriaPotes- 
 
 tas." 
 
 §157. The Same. — (I) The limited 
 duration of the "mundium" 
 in contrast to the perpetuity 
 of the "patria potestas." 
 
 § 158. The Same. — (II) The concep- 
 tion of family joint ownership. 
 
 § 159. Transformation of the " Mun- 
 dium." 
 
 § 160. Customary " Mainboumie." 
 
 §161. Rights over the Person. Cor- 
 rection. 
 
 § 162. The Duties of Parents. 
 
 § 163. Rights over Possessions. 
 
 § 164. Capacity of the Child under 
 Authority. 
 
 §165. Right of the Mother. 
 
 § 166. Emancipation. 
 
 § 167. Emancipating Majority. 
 
 § 168. Revolutionary Law. 
 
 § 154. Sources of the Paternal Power. — In the old Germanic 
 law the rights over the children were not exactly derived from 
 the fact of paternity; they rather related to the possession of the 
 "mundium" over the mother. The husband whose wife "in 
 mundio" has been taken away from him, and has had a child 
 during the period she was away, preserves his power over the 
 mother and the child, although it is quite certain that he is not 
 the father of the latter, and, conversely, in the case of marriage 
 without "mundium," he has no authority over the children, who, 
 however, are surely his own.^ — The later law, starting with the 
 canonic theories of marriage, connects the paternal power, on 
 principle, with legitimate filiation, and, as an exception, with two 
 facts which will be discussed later on, legitimacy and adoption. 
 By legitimate children ^ are understood those who are conceived 
 and born in a genuine marriage; ^ or else those who have simply 
 been conceived during the marriage and are born after it is dis- 
 solved; or even those who are born during the marriage but con- 
 ceived before it.^ 
 
 The jurisdiction over cases of the annulment of marriage and. 
 
 1 "Alam.," 51; "Liut.," 126. — Stohbe, § 47, n. 23 and § 251; Maiirer, 
 "Munch. Akad.," 1883, 68; Wilda, "Z. D. R.," IV, 288. 
 
 2 Beaumanoir, c. 18 (legal heirs and bastards); "Schwabensp.," II, 63; 
 "SietePart.," IV, 13. Deghewiet, p. 52 (Belgium); AimaUe, "R.h. Dr.," VIII, 
 559; Hosiiensis, p. 313. 
 
 ^ Or following a reputed marriage: Beaumanoir, 18, 7; Desmares, 11. 
 
 * As tothis last point, however, there are difficulties: Ferribre, see "Nais- 
 sance. Filiation, Ldgitime, Question d'Etat," etc.; Guyot, id.; Bourjon, I, 
 p. 19; Beaum., 18, 2 (he is a bastard, but he becomes a legal heir by vir- 
 tue of the marriage. CJ. post, repugnance for legitimizing: "Sachsensp.," 
 I, 36. 
 
 178
 
 Topic lO] THE PATERNAL POWER [§ 155 
 
 as a consequence, of filiation, belongs to the Church.^ ^Ye have 
 seen wdth regard to marriage what becomes of this jurisdiction. 
 It is the jurisprudence of the Courts of the Church which, taking 
 its inspiration from the Roman legislation, fixed the law in these 
 matters.^ Longest and shortest period ^ of pregnancy, the pre- 
 sumption '^ "pater is est quern nupti^e demonstrant," disavowal 
 by the father,^ contesting of legitimacy by the relatives,® in all 
 these the general lines of modern law are almost fixed from the 
 thirteenth century/ From the sixteenth the proof of filiation 
 is simple enough; it results from the production of the certificate 
 of baptism of the child, to which is attached the marriage cer- 
 tificate of its parents; proof by witnesses is only admitted if the 
 loss of the registers is first of all established; on the contrary, 
 the possession of the status of a legitimate child makes up for 
 the lack of the certificate. 
 
 § 155. Origin. — The barbarian "mundium,"^ in its application 
 
 1 Dig. X, 17, "qui filii sint legitimi." And on this subject cj. Hostiensis, 
 Panormitanus, etc.; Freisen, p. 858. 
 
 2 The canon law, following the Roman law in too ser^dle a manner, made 
 the mistake of not strictly limiting cases of disowning. 
 
 ^ Beaumanoir, 18, 2: 39 weeks and 1 day at the most, 7 months at least; 
 " Jostice," p. 55; "Schwabensp.," 41. At least 41 weeks for a boy and 40 for a 
 girl: Chaisemartin, 66, 67; "Briinn. Stadr.," 349; Domat, "Lois Civ.," 2, 2, 1 
 (estimation of the judge). As to the longest duration there was considerable 
 doubt in the old jurisprudence: gestation of 13, 15 and even 23 months. Cf. 
 in "Lucina sine Concubitu" (s. d.) the pretended Order of Grenoble in 1637 
 deciding that a child had been conceived in the absence of the husband through 
 the strength of the mother's imagination. — Finally, they were ordinarily 
 quite satisfied with the following rules: (a) the child born 10 months after 
 the death of the husband is not legitimate; (6) the child born at the be- 
 ginning of the 7th month is legitimate; (c) the child born before the 7th 
 month is also presumed to be legitimate, but proof to the contrary is ad- 
 mitted, whereas it would not be admitted in the other cases; Ferriere, Gmjot, 
 sup. cit. 
 
 " Bernhoft, "Z. V. R.," IV, 227; Sicherer, " Personenstand u. Eheschl.," 
 1879. 
 
 * The jurisconsults took advantage of the fact that the canon law, follow- 
 ing the example of the Roman law, did not strictly limit cases of disowning 
 to try to do away with the presumption "pater is est" (declaration of the 
 mother that the child is born of an adulterous union, previous barrenness of 
 the wife, the child who is lame or bhnd is regarded as being born of sin): 
 Coste, "These," 1884; "Cod. Max. Bav.," 1, 4, 9. Beaumanoir only admits oi 
 disowning in three cases: 18, 14, absence of the husband; 15, impotence; 6, 
 judicial separation; "Jostice," p. 58. The same strict tendency is found in 
 the jurisprudence of our parliaments. Cf., however, as to the moral im- 
 possibility of cohabitation: Order of the Parliament of Paris, 1745, 1758; 
 Civil Code, 325; Merlin, "R6p.," "Add. Jostice," p. 210; Glasson, III, 185; 
 Pollock, II, 316. 
 
 ^ Beaumanoir, 18, 1 ; Gregory of Tours, 8, 9. 
 
 ^ Cf. Ferriere, Guyot, etc. (bibl.). Post, "Certificates of Ci\al Status"; 
 Bourjon, I, p. 19. 
 
 * "Mundium," a Latinized form of the Germanic word "Munt," meaning 
 
 179
 
 § 155] THE FAMILY [Chap. I 
 
 to children, or, as it can be called, the paternal power of the Ger- 
 manic law, did not differ essentially from the Roman "patria 
 potestas." ^ It belonged to the same persons and carried with it 
 the same consequences. Thus, the father alone exercised it, to 
 the exclusion of the mother; ^ he alone was (to make use of an ex- 
 pression from the Lombardian laws) "selbmund," under his own 
 "mundium" {cf. the Roman contrast between the "sui juris" and 
 the "alieni juris ").^ It implied the "jus vitse necisque." ^ The 
 
 "manus," "potestas." Other forms: "mundeburdium," "mundeburdis," {cf. 
 "Vormundschaft," guardianship). They also use the word "potestas." 
 ("Wis.," etc.); "Alam.," 51, 3; 54, 2; "Rib.," 35, 58; "Capit.," ed. Bor., see 
 Table; Du Cange, see "Mundiburdus." As to the meaning of mouth, "os," 
 "verbum," which has often been given to "Mund," cf. Viollet, p. 493. By 
 "mundium" is understood the power not only over the people making up 
 the household, but also over those in his care: Heusler, § 22 et seq. The one to 
 whom the "mundium" belongs is called the "mundoaldus," particularly in 
 the Lombard laws: see Du Cange (guardian, husband, etc.). In the thirteenth 
 century they say: "mainbournie," "mainburnia," "vouerie," "gouverne- 
 ment," "garde," etc., and he who exercises this domestic power is called the 
 "mainbour," "mambour," "mainburnissiere," "avoue," "regent," "gou- 
 verneur," etc. See Ragueau; Loysel, 176. In the German "Mirrors": 
 "Pflege," "Vormundschaft." 
 
 1 Heusler, I, 105, 431; Brunner, I, 71; Zoepfl., "D. Rechtsg.," II, 31; Amira, 
 § 58; Richthofen, "Untersuch. iib. Fries. Rechtsg.," I, 407. 
 
 2 The expression parents, which is found in certain texts, must not make 
 one tliink that both possess this power. Cf., however, Viollet, p. 507. The 
 mother does not exercise the paternal power; when she becomes a widow she 
 passes under the authority of her son. Post, " Guardiansliip of Women": 
 "Roth.," 204; "Sax.," 42; Rozibre, no. 103; "Capit. Kiersy," 877, c. 6. 
 The Anglo-Saxon laws only confer upon the mother the custody of the children 
 and appoint a guardian for the property to act with her: "Hloth.," 6. The 
 laws of the "Wis.," 3, 1, 7; 3, 2; 4, 3, 3, 13 et seq.; and of the "Burg.," 52, 
 58, 85, 62, 74, confide the guardianship of the children to the widow upon 
 her request and under conditions which betray the Roman origin of these 
 pro\'isions; she even has a certain right of enjoyment. Cf. post, "Portion of 
 the Survivor." Even according to these laws, it is very doubtful whether 
 the rights of the mother are the same as those of the father. A second mar- 
 riage causes her to lose her guardiansliip: cf. Walter, "Corp. Jur. Germ.," I, 
 p. 665; "Wis.," 4, 2, 13; "Bai.," 15, 7; "Reg. Farf.," 167. As to the rights 
 of the mother who is a widow, cf. Heusler, II, 433, 450 (" Beisitz der Wittwe"). 
 
 3 "Roth.," 204 {post, "Guardianship of Women"). The head of the 
 family alone has the "potestas de se ipso disponendi"; he disposes of his 
 life and of his hberty {Tacitus, "Germ.," 24), reduces himself to slavery to 
 pay his debts, condemns liimself to death in advance in case he shall not ful- 
 fill liis obligations, promises a pound of his flesh in return for a sum of money, 
 as in "The Merchant of Venice." He who is not "Selbmund" has no right 
 to do any of these things. To have an absolute power of disposal over one- 
 self is the first condition requisite for the exercise of domestic authority over 
 others. And tliis authority has analogous effects; the "Selbmund" deals 
 with others as he does with himself: post, "Hostage," etc.; Kohler, "Shake- 
 speare vor dem Forum d. Jurispr.," 1884. 
 
 ^ WTien he says that voluntary sterility and abortion ("numerum Ubero- 
 rum finire") as well as infanticide ("quemquam ex agnatis necare") are un- 
 known to the Alemanni, Tacitus, 19, does not mean to deny the existence of 
 this right; he limits himself to showing that these scourges of old and rich 
 societies have not reached them; the coarseness of their customs kept them 
 
 180
 
 Topic lO] THE PATERNAL POWER [§ 155 
 
 old traditions show him pronouncing himself upon the fate of his 
 newborn children. By taking them up in his arms he shows his 
 willingness to allow them to live; otherwise, it is customary to 
 expose them. Neither the relatives nor the State trouble them- 
 selves over this kind of infanticide.^ If we are to believe Tacitus, 
 30, the education of the young Germans was of the coarsest: 
 "Dirty and naked, the child grew haphazard, pell-mell in with 
 the animals and the slaves." If he had to be chastised, the dis- 
 ciplinary authority of the father seems to have had no limits; ^ he 
 gives his wife and his children as hostages; ^ he sells them as slaves.^ 
 
 from the two former; as to the third, they escaped it without difficulty, the 
 rigor of the cUmate and the lack of care killing so many children that their 
 great concern was to save those that remained to them. 
 
 1 As to the exposure of cliildren, (a) "Legislation of the Lower Empire," 
 cf. Du Plessis, p. 157 and authors cited; (6) Frankish Period : Grimm, 455, 
 488; Michelet, "Orig.," p. 2; Maurer, "Miinch. Akad.," 1880, 5; Platz, 
 "Gesch. d. Aussetzung," 1876; Friedberg, "Bussbiicher," 39; Du Plessis, 
 pp. 201, 342. The jiagan religion forbade exposure if the child had touched 
 the sacred water or taken nourishment. The same rule during the Christian 
 period for the cliild who had been baptized: Du Cange, see "Sal." Outside of 
 poverty, which was the most frequent cause for exposure of children, various 
 prejudices drove parents to pursue this course. Children who were deformed 
 were looked upon as not belonging to the human race {cf. "Siete Part.," IV, 
 23, 5); of twins they thought that one was born in adultery, cf. the Celts; 
 exposure of cliildren on the banks of the Rhine when their legitimacy was 
 doubted: D. Bouquet, I, 754. Foundhngs: "Burg.," 100; Pardessus, "L. 
 Sal.," p. 449: the "nutritor" can treat them like slaves or free men, and in 
 the latter case he is looked upon as their father: post, "Adoption." "Cone. 
 Vaison," 9, 10; "Aries," 452, c. 51; Dig. X, 5, 11; "Cod. Just.," 8,'.52, 3. 
 The custom of exposing children at the doors of churches was introduced at 
 an early period: "Form. Andec," 48; "Turon.," 11; "Siete Part.," 20. It 
 was a natural transition from this to the leaving of them in charitable insti- 
 tutions (turning-box, etc.), which is the law of the seventeenth and eighteenth 
 centuries: the parents place in the swaddling clothes a note giving the name 
 of the child, so that they can find it again. As to foundlings, cf. Lallemand, 
 op. cit., see Freminville. With P. Viollet, p. 501, we think that our legislation 
 in doing away with these turning-boxes, in showing itself more severe than 
 the old practice, drives people to abortion and infanticide; and it is all the 
 more efficacious as these two crimes have, so to speak, ceased to be punished : 
 Du Plessis, p. 342. 
 
 2 "Roth.," 189, 200, 201, 222; "Liut.," 120; "Wis.," 4, 5, 1; 3, 2, 3; 3, 4, 
 5; "Burg.," 35; "Sal.," "Cap. Extrav.," 5; "L. Rom. Cur.," 3, 3, 18, 10. 
 This law is summed up in the formula of the "Lib. Papicnsis," with regard 
 to the wife. Is the participation of near relatives, or sort of family council, 
 necessary? Cf. Tacitus, "Germ.," 19; Chaisemartin, 59: the father judges 
 the child. Roman law: Girard, p. 11. As to crimes against relatives, cf. Du 
 Plessis, p. 212. In the old law of the Vestrogoths the murder of one relative 
 by another was not punished, a striking proof of the independence of the 
 family as far as the State was concerned. 
 
 3 Post, "Hostage," "Bord.," 43. 
 
 * Sales of newborn children under the Lower Empire ("Cod. Just.," 4, 43, 
 1); Constantine allows them only immediately after the children are born 
 ("sanguinolenti"), "Cod. Thdod.," 5, 8, 1 ("L. Rom. Wis."), but it was 
 always possible to buy them back. Valentinian III facilitated the buying 
 back by deciding that it would be sufficient to pay back the purchase price 
 
 181
 
 § 155] THE FAMILY [Chap. I 
 
 "A fortiori," has he the right to marry his daughters without their 
 consent/ and to pledge his sons to the monastic hfe,^ to force upon 
 them a profession. He transmits to them his domicile, his nation- 
 ality, his station in life,^ and his religious belief. He is responsible 
 for their offenses,^ and, conversely, he takes vengeance on those 
 who injure them; ^ he alone can sue and be sued. The children are 
 incapable of binding themselves by contract,^ incapable of appear- 
 and one-fifth more: "Nov.," XI ("L. Rom. Wis."); "Ed. Pistes," 34. During 
 the Prankish period, frequency of these sales of children: Roziere, "Form.," 
 43 et seq.; Thevenin, nos. 12, 156, 157, etc.; Greg. Tours, 7, 45; "Fris.," XI, 
 1; "Bai.," 7, 4. Motives: poverty, famine, debts. One sells oneself either 
 alone or with one's wife and children. Cf. "Condition of Persons," "Frank- 
 ish Period," "Restrictions." "Ed. Theodoric," 94, 95 {Paul, "Sent.," 5, 1, 1; 
 "Cod. Thcod.," 3, 3, 1; "Int. Wis.," 5, 4, 12 ("Ant. Interd."). The Peniten- 
 tials oblige the Christian who sells his child to buy it back and fix an age after 
 which the father can no longer sell it: Wasscrschleben, "Poen., Th.," II, 12, 
 etc.; Lallemand, p. 94; "Capit." (I, 114, 293), 803, c. 8; 819, c. 6 ("Buying 
 back"); "Petrus," I, 14 (cf. "Cod. Just.," 4, 43, 2). As to sales as serfs: 
 "Boideaux, A. C," 43; Du Cange, see "Oblati, Schwab. Emp.," 357; Act of 
 1440 ("Acad. L6g. Toulouse," VI, 169): Bazas, 1489, 171 ("Arch. Hist. 
 Gironde," XV, 83); "Toulouse," 155a; Schwabenspiegel," 357; Muratori, 
 "Script.," V, 556 (in 1058); "R. h. Dr.," 1859, 129; Grotius, II, 5, 5 (the nat- 
 ural law allows parents to sell their children); "Siete Part.," IV, 17, 8; the 
 father besieged in a castle may eat liis son rather than surrender without 
 being ordered to do so by his lord. 
 
 1 Du Plessis, p. 227; "Capit. Remedii," 5; "Burg.," 100; "Wis.," 3, 3, 11; 
 3, 1, 4 and 3, 4; "Liut.," 120; Kovalewsky, p. 193. 
 
 2 "Cone. Tolede," 633, c. 49; cj, id., 665, c. 6 (up to the age of 10 years); 
 "Worms," 868, c. 22, 23. But from this period on there are decisions to the 
 contrary: Thomassin, "Discipl. de I'Eglise," I, 1765; St. Leo to Rusticus, 
 "Ev. de Narbonne" (in 458); "Nov. Major.," 8; Gratian, C, 20, q. 1, 
 0. 1; "Pseudo Isidor.," p. 352; Du Plessis, p. 225. And, finally (twelfth, thir- 
 teenth centuries) the Church ended by demanding a ratification by the child 
 when he was of an age to understand the meaning of an entry into religious 
 orders: "Capit.," 817, c. 36 (I, 346); Dig. X, III, 31, 14; "Sachsensp.," I, 
 25,2; "Liut.," 30. 
 
 ^ Cf., however, "Condition of Persons." 
 
 * "Sal.," 24, 5; Geffcken, "h. t. Roth.," 263; "Alb.," II, 55; and Lombard 
 Forms cited by //eusZer. Proliibitionatlaw: "Sachsensp.," II, 18, 2; "T. A. C, 
 Bret.," 204. Was a giving up of the child causing an injury to the person in- 
 jured possible? Girar-d, "_N. R. H.," 1888, 47; Leseur, i6., 18. The father who 
 did not have the wherewithal to pay the composition which was due because 
 of an offense committed by his son had undoubtedly the power to deliver up 
 the latter as a slave in payment. But the texts do not mention a giving 
 up of the child causing an injury to the person injured, properly so called, 
 resulting in the allowing of the exercise of the right of vengeance and a re- 
 lease of the father, although the pecuniary value of the son might be very 
 much less than the amount of the composition: "Roth.," 142; "Sal.," 40; 
 "Sax.," 18, 50; "Schwabenspiegel," II, 3; Kraut, I, 346 (traces in the Middle 
 Ages). 
 
 * Offenses against a son are a violation of the paternal "mundium." There- 
 fore, the father alone benefits by the composition, and the child, although he 
 be a victim of the offense, has no right to even a fraction of it. Cf., however: 
 "Wis.," 3, 3, 11; 8, 5, 3; "Bai.," 4, 28; 5, 9; 8, 10 and 9, 4; "Sal.," 39, 24, 
 5, 40; "Sax.," 20; "Roth.," 26, 201, 129; "Liut.," 146; "Cod. Lauresch.," 
 n. 95 (in 1023); Roz., 467 et seq.; Heusler, I, 124. 
 
 6 "Rib.," 74; "Burg.," 87; "L. Pap.," 22, 170; cf. "L. Pap.," "Roth.," 
 
 182
 
 Topic lO] THE PATERNAL POWER [§ 157 
 
 ing in court; it is with the father alone that third parties have to 
 deal. 
 
 The inheritance of the family absorbs the acquisitions which 
 they make, so much so that they possess nothing of their own.^ 
 It is thus true to say that, body and possessions, the children are 
 in the hand of the father; the logic of the patriarchal family re- 
 quires this to be so. Their personality is absorbed in the abstract 
 being of which the father is the only legal representative. 
 
 § 156. " Mundium " and " Patria Potestas." — An opinion for- 
 merly widespread contrasted the Germanic "mundium" with the 
 "patria potestas," as being two institutions of a contrary nature; 
 the "mundium" would be looked upon as a tutelary power es- 
 tablished simply in the interest of the child, whereas the "patria 
 potestas" seemed to be created for the advantage of the father.^ 
 One can only invoke in support of this thesis, outside of the texts 
 which at an early period modified the old law under the inflwence 
 of Roman and Christian customs,^ two facts:. 
 
 § 157. The Same. — (I) The limited duration of the " mun- 
 dium" in contrast to the yerpetuity of the "patria potestas."^ But 
 nothing proves, as is maintained, that the "mundium" ceases as 
 a matter of law on the coming of age of the son : ^ on the con- 
 
 139 ("Women"); Greg. Tours, VIII ("Son in Flight"); "Cap.," 819 (I, 293); 
 829, c. 4. 
 
 1 In tlie Lombard laws the son is likened to the slave in this respect: the 
 father is not held to be bound by the contracts of either one of them: "Roth.," 
 170, 200, 204 et seq.; 233 et seq.; 262; "Liut.," 78, 87 (c/. "Lib. Pap. Exposi- 
 tio"); "Wis.," 4, 2, 13 ("Ant."); 4, 5, 5; "L. Rom. Cur.," 24, 8; "Cap. Extr. 
 Sal.," 8; "Rib.," 74. 
 
 2 Pnrdessus, "L. Sal.," p. 451; Glasson, op. cit. 
 
 2 We know that the Roman "patria potestas" had become modified dur- 
 ing the pagan period and under the Lower Empire; the movement in tliis 
 direction was carried on, although there was no thought of limiting its dura- 
 tion: Cornil, "N. R. H.," 1897. 
 
 '' Controversy: Heusler, II, 437; Kraut, II, 591; Pardessus, p. 455; Fertile, 
 p. 376; Freund, "Was in der Were Verstirbt," 1880. 
 
 ^ Tacitus, "Germ.," 13. — Taking up Arms in the Public Assembly does 
 not carry with it civil emancipation. The young man, who is thereby recog- 
 nized as being fit to bear arms, becomes "pars civitatis" (political rights) 
 without ceasing to be "pars domus": "Sachsensp.," I, 2, 1. The youth 
 who has attained majority presents himself before the court. Cf. Roman 
 law. Po.Ht, " Adoption by Means of Arms." Cassiod., " Var.," II, 38 (" Gothis 
 setatem legitimam virtus facit"); "Roth.," 204; "Capit." (I, 285), c. 21; 
 "Wis.," 4, 2, 13. Pardessus, "L. Sal.," p. 4.54, sees in the Cutting of the Hair 
 an act of emancipation, a ceremony bearing witness to "the passing from 
 childhood to majority." The gifts which were made on this occasion to 
 children consisted in objects intended for their personal use, which were of 
 little value: "Sal." (Hessels), 100, 24, 69; Geffcken, "L. Sal.," pp. 134, 235, 
 253 (bibl.); Potkanski, "Haarschur," 1896; Z>u Cangre, see "Capill us," "Lom- 
 bard Laws" daughters "in ca})illo" who were unmarried). The right to "tun- 
 dcre" the "puer crinitus" only belongs, according to the SaUc Law, to the 
 
 183
 
 § 157] THE F.AJVIILY [Chap. I 
 
 trary, that which we know with regard to the constitution of 
 the family and the later law leads us to believe that it lasts as 
 long as the latter continues to live with his father. If emanci- 
 pation does not take place as a consequence of age/ it can 
 take place as the consequence of the establishment of a separate 
 home; and this comes about in three instances: 1st, the father 
 drives the son away from the house ;^ 2d, the son goes away 
 with his father's consent;^ 3d, finally, without being formally 
 emancipated, without having the authority to do so, the son 
 leaves the paternal home, in the rather rare cases where he can 
 find some advantage in so doing.^ The absence of exact texts 
 scarcely admits of a positive statement, but such is the social 
 condition of ancient Germany that these three suppositions must 
 have been looked upon as being legal. There is no need to look 
 anj^'here else for the origin of the Customary rule: "paternal 
 power does not exist." 
 
 "parentes" (that is to say, to the father, or, if there is no father, to the near- 
 est agnate) and no doubt to any person to whom the "parentes" might delegate 
 it (case of adoption). The first cutting of the hair was thenceforth a private 
 ceremony, previous to and preparatory for the public taking up of arms. 
 Tlie wearing of long hair being the distinctive indication of those who were 
 freeborn, the hair should not be cut close to the head like that of a slave, 
 but trimmed in a certain fasliion: Du Plessis, p. 107. 
 
 1 Controversy: Kraut, II, 590, etc. Having attained majority, the child 
 is sufficiently strong to dispense with a protector; if the "mundium" per- 
 sists it is because it relates especially to the formation of the family. Cf., 
 however, Gide, p. 199. Giving up b}^ the father as a consequence of old age 
 among the Scandina^vians: Ozanam, "Etudes German.," I, 120. The Herules 
 cast their sick and their old men into the flames. In Sweden fathers who 
 Uved too long avoided the impatience of their sons by throwing themselves 
 from the rocks: Grimm, I, 669-675, 4th ed. 
 
 2 Cf. "Adulterous Wife": expulsion "coram propinquis": "For de 
 Morlaas," 345; Masuer, 40, 5 (refusal of maintenance). 
 
 ^ Analogies drawn from the Slav family: Demelic, "Dr. Cout. des Slaves," 
 p. 56. 
 
 * The Roman "pater" is furnished with the means of bringing back by 
 force his son who runs away. But that which was possible in a well-ordered 
 society like that of Rome was scarcely possible among the Germanic tribes. 
 Cf. "Abdicatio parentetse," "L. Sal.," 63; Glasson, III, 56; Geffcken, on this 
 text; "L. Henri," I, 88. See, however, Demelic, pp. 48, 133; Dareste, "Etudes," 
 138, 242; Maine, "Cout. Prim.," 165. To break ofT every tie with one's 
 relatives was an extreme measure, to which one could only make up one's 
 mind with difficulty. All the more was this so because the son who had 
 attained majority and who had left his father without being authorized to do 
 so, undoubtedly lost all right to those partitions "inter vivos" to whicli allu- 
 sion is made in the "L. Burg.," 51; "Bai.," 1; post, "Inheritance." — The ser- 
 vice after apprenticeship, carrying with it a change of "mundium," was bound 
 to emancipate a man from the paternal power: "L. Rom. Cur.," 22, 6; 23, 
 7; 24, 8; Schupfer, "Stud. s. 1. Udin.," 50; Beguelin, "Les Fondements du 
 R6g. Feodal dans la L. Rom. Cur.," 1893, p. 53; Zanetti, "La. L. Romana 
 Retica Coirese," 1900; Heusler, II, 435; Du Plessis, p. 100 et seq. Cf. on 
 abduction, "Roth.," 186. 
 
 184
 
 Topic lO] THE PATERNAL POWER [§ 159 
 
 §158. The Same. — (II) The conception oj family joint owner- 
 ship, almost extinguished in Rome before the absolute power of 
 the "pater," persists, on the other hand, in the barbarian so- 
 ciety; witness the intervention of the children in alienations 
 made by the father,^ and the partitions of the inheritance of 
 the family carried out during his lifetime.- These restrictions 
 upon the paternal power, however remarkable they may be, did 
 not change its essential character, especially if one admit that it 
 depends upon the father as to whether he shall emancipate his 
 children by force, and thus deprive them of all these rights.^ 
 
 § 159. Transformation of the "Mundium." — The gradual dis- 
 integration of the patriarchical family caused the "mundium" 
 to lose some of its harshness. Christianity, with its conceptions 
 of charity and the spiritual independence of the members of the 
 family, having this object in view, became the ally of the indi- 
 vidualistic tendency; ^ it maintained alongside of the duties of the 
 children towards their parents the reciprocal duties of the parents 
 towards their children ; ° it likened the mother to the father, it 
 made no distinction between the sons and the daughters.^ After 
 having contributed to the softening of theRoman" patriapotestas,"^ 
 according to the custom set by the pagan emperors, it had to at- 
 tack the barbarian "mundium" in order to restrain its effects.^ 
 
 1 Numerous examples in the Cartularies, "Cap. Kiersy," 5 (II, 357); 
 "Liut.," 149. If given by a minor, this consent is worth notliing, or, rather, 
 can be annulled: Heusler, II, 445. 
 
 2 "Burg.," 24, 51, 75, 78; "Bai.," 1; "Roth.," 168; "Expos, ad Liut.," 
 113; "Sax.," 62; "Wis.," 4, 2, 13; Schroeder, p. 320; Grwwi, p. 486; post, 
 "Inheritances." Italian Statutes cited by Fertile, III, 380; Brunneck, 
 p. 51; "St. de Corse," 1571, I, 46; "Schwabensp.," 61. Many of these texts 
 seemed to refer to the case in wliich the mother is dead or her possessions 
 have been mingled with those of the father: see already in tlie "L. Sal.," 
 "Capit. Extrav.," 8. With respect to these possessions the law of Upland 
 makes the nearest relative of the predeceased wife a joint owner with the 
 husband: Rive, I, 59. 
 
 ^ Cf. in Rome, "patria potestas" and "querela inoff. test." Obligation of 
 giving the daughter a marriage portion: Papien, 37, 1; "Wis.," 3, 1, 9. — As 
 to disinheritance during the barbarian period: see "Wis.," 4, 5, 1; "Alam.," 
 1, and n. 2. 
 
 * To the saying of St. Thomas: "Sent.," 2, 33, 1, 1: "Non est parentis 
 sed ipsius Dei" ("quantum ad animam") let us liken the Revolutionary 
 doctrine: "The child belongs to the State rather than to his parents. " Bourjon, 
 I, 5, 1, 1, already expressly says so. 
 
 5 St. Paul, "Coloss.," iii, 10, 21; "Ephes.," vi, 1, 3, 4; "1 Tim.," v, 4, 8 
 St. Augustine, "Serm.," 356, no. 5; "Jostice," p. 210. 
 
 « St. Paul, "Galat.," iii, 26. _ 
 • ^ The death penalty for infanticide, abortion and exposure of children 
 Lactant, "Inst. Div.," VI, 20; "Cod. Theod.," XI, 27, 1, etc. Details, as 
 well as those on the sale of children, in Du Plessis, op. cit. 
 
 ^ Exaggerations, for example, with respect to the children of the Jews 
 
 185
 
 § 160] THE FAMILY [Chap. I 
 
 § 160. Customary "Mainbournie" ^ (guardianship) is nothing 
 more than the old "mundium" reduced, httle by httle, so as to 
 allow of no rights excepting those necessary to the protection of the 
 child; it is a power of protection, according to a current expres- 
 sion, entirely in the interest of the children,^ a true guardianship, 
 ending when they come of age, that is to say, at the time when 
 they no longer have any need of protection exercised, if need be, 
 by the mother when the father is dead, absent, or incapacitated, 
 allowing the child to have separate possessions distinct from hose 
 of the parents. There are the same number of characteristics 
 which distinguish it from the Roman "patria potestas" of the 
 countries of written law. This latter lasts during the life of the 
 father; if the grandfather is alive, it is he who has authority over 
 his grandsons, as well as over his sons; it never belongs to the 
 mother; the father has the profits of possessions which the son 
 may happen to receive; finally, although he has capacity to bind 
 himself, the son can neither make a will nor borrow money (]\Iace- 
 donian Decree of the Senate). The contrast between the two 
 legislations which governed France is that on this point they say: 
 in countries of Custom, the power of the father has no existence; ^ 
 the children are vowed to or under the guardianship of their par- 
 ents."* One must take care, however, not to exaggerate this con- 
 trast. The Roman "patria potestas" often comes to an end by 
 means of a formal emancipation; jurisprudence also introduced 
 
 "Conc.deTolede,"IV,59; "Meaux,"845,c. 75; Dig.X,28, 1,11; TheMortara 
 Case under Pius IX. 
 
 1 "Jost.," p. 57, 158; Beaumanoir, c. 15; "Et. de Saint Louis," I, 73; 
 IV, 270 (ed. Viollet); "Navarre," 24 ("De Pay et Firk"); "Siete Part.," 
 IV, 17; Lamoignon, "Arretes," p. 5; Degheiviet, p. 59; "Gr. Encyclop.," 
 see "Mainbour." Cf. various writings, such as the "Castoiement d'un 
 Pere k son Fils" (in imitation of a Latin poem of the twelfth century). The 
 child always acquires the station of the father ("Jostice," p. 56), his nation- 
 ality, his domicile, even his name, so long as there existed patronymic names : 
 Lallier, "Propr. des Noms et des Titres," 1890. 
 
 2 Coquille, "Inst.," p. 106: the paternal power is imaginary, for the parents 
 have scarcely any more rights over the person and the possessions of their 
 cliild than guardians have with respect to their wards; Du Vair (cited by 
 Ferriere, see "Puiss. Pat."): this absolute sway (which fathers had over 
 their cliildren at Rome) is changed on their behalf into a kindly affection, 
 and this slavery on the part of the children into an honorable relation; 
 Boutaric, "Inst.," 9, 2, compares the father to a guardian. According to 
 Blackstone, the power of the father over his children is derived from his 
 duties towards them. Heusler, II, 449, remarks that the power of the father 
 has, however, kept more of its old characteristics than guardianship has. 
 
 ^ Loysel, 55. This gibe is the translation of the Commentary on thS 
 "Inst, de Pat. Pot."; Fertile, § 115. 
 
 ^ Loysel, 177; Desmares, 248; Boerius, q. 167; 13, 14; Gtii Pape, 410; 
 Brodeau, "M.," 18; D'Argentre, on "Bret.," 498; Henrys, "Qu.," 127. 
 
 186
 
 Topic lO] THE PATERNAL POWER [§161 
 
 tacit emancipation, for example, when it resulted from marriage; ^ 
 the possessions of the son who is not emancipated which apper- 
 tain to the camp are his exclusive property; in relation to these 
 possessions he has a right to make a will, and, as far as his other 
 possessions are concerned, he can give them "causa mortis." 
 Thus the condition of the son of good family in the South is like 
 that of the elder son in countries of Customs, and, on the other 
 hand, we shall see that the latter is far from always having enjoyed 
 the independence which one is in the habit of crediting him with.^ 
 §161. Rights over the Person.^ Correction. — The paternal 
 power gives the father the right to have the custody of the child,^ 
 to bring him up,^ and, secondly, to choose his religion,^ to designate 
 his teachers, and, finally, to correct him,^ without which the pre- 
 ceding rights would have very little effect. The father's authority 
 to discipline is still very extended in the feudal period.^ He could 
 thrash the child, ^ provided he does not seriously wound him: an 
 important restriction which permits the son to call upon the law 
 
 1 "Navarre," 24, 8: the heirs and heiresses who are married in the house 
 become joint owners with their relatives both of the house and the acquired 
 and inherited possessions. 
 
 2 Children of 25 who have attained majority and have been sent into the 
 country upon the request of their fathers, as late as 1673, ought not to think 
 the paternal power an empty form. 
 
 ^ Traces of the old law. For example, in Normandy {Marnier, "Etabl.," 
 26), the death penalty is not inflicted upon the father who kills his child: 
 " Bergerac," 82; cf. Bout., I, 18; II, 40; "Et. de Saint Louis," I, 39; Viollet, ib., 
 I, 249; Vitry, 100, 148; "Bord.," 43 (pledging); Mesle, op. cit. passim. As to 
 testamentary guardianship, cf. post. 
 
 * After the age of 16 years one can bind oneself without authorization in 
 the king's army : "Beaune," 543; /sa7n6er<, see Table, "Arm^e Recrutement." 
 
 * Post. Custom for vassals to send their sons to the court of the lord: 
 Gautier, "Chevalerie." "Atalikat" in the Caucasus: Kovalewsky, p. 190. 
 
 ^ As to religious education, Schulte, "Eherecht," 320, 535. Against 
 Protestants, legislation which overthrows the paternal power: Deck, June 
 17, 1G81 (they are allowed to renounce after the age of 7 years). Edict of 
 Revocation of 1685, Art. 8. The Edict of January, 1686, orders that chil- 
 dren from 5 to 16 years old shall be taken away from their parents when the 
 latter are heretics (e. g., children of the Duke of La Force). Deck, Dec. 
 13, 1698; May 13, 1724. In 1686 parents who had emigrated lost the right 
 to consent to the marriage of their children who had remained in France: 
 Niron, II, 964. The Edict of 1787 cancelled these provisions: Du Plessis, 
 p. 375. England: provisions against the CathoUcs: Blackstone, op. cit., II, 
 p. 172; Lehr, p. 115. 
 
 '' Right to receive respect: the testimony of the son is not admitted against 
 the father (Dig., 22, 5, 4, 9; "Petrus," IV, 40; "L. d. Droiz," 224; " Ord.," 
 1667, 22, 2, and reciprocally) ; the son cannot act against the father without 
 the authorization of the law: Dig., 2, 4, 4; "Petrus," III, 63; "Jostice," 2, 
 4, 3; "Siete Part.," IV, 17, 11: cf. Houard, "Dictionn.," see "Enfants." 
 
 8 "Kl. Kaiserrecht," II, 7. 
 
 ^ Corporal punishment was for a long time made use of in schools and 
 families. Henry IV had often had the whip, and he recommended that it 
 be given to his son (Louis XIII). Harshness in education, coldness in its 
 
 187
 
 § IGl] THE FAMILY [Chap. I 
 
 in the case of ill-treatment on the part of his father.^ He, the 
 father, could keep the child shut up in a room, or cause him to be 
 incarcerated in a convent or a public prison, after private seques- 
 tration had gone out of use.^ Prison was a step in advance over 
 the latter, and the despotism of the head of the family then found 
 itself limited by the necessity of appealing to public authority.^ 
 The jurisprudence of the monarchic period regulated the exercise 
 of the paternal power in cases of this sort: ■* the father was able 
 upon his own authority to cause his child of less than twenty-five 
 to be shut up in a house of correction; but, if the father had re- 
 married, an order of the judge, given ordinarily upon notice by 
 the parents, was required. As to the mother, she could never 
 obtain the incarceration of her son without the authorization of 
 law, "the weakness of woman's judgment, and the characteristic 
 of being carried away which is common enough in the case of this 
 sex," says Pothier, "prevents one from being able to rely upon 
 
 relations, — that was the old family. Cf. Bodin, "Republ.," I, 4; Montaigne, 
 I, 25: "Away with violence and force; there is nothing in my opinion which 
 so degrades and stupefies a well-born nature." The advice would be good if 
 there were none but well-born natures. As a consequence of having followed 
 it, our time has made of many cliildren hateful httle tyrants. 
 
 1 "Montpelher," 64; cf. "Jostice," 2, 15, 2 (p. 59). In the sixteenth cen- 
 tury a recourse to the law is the rule if there is any cruelty: Pasquier, "Inst.," 
 p. 64; Chaisemartin, 60. 
 
 2 "Liege" (cited by Couilland, "These," p. 181): the parents can beat 
 and correct their children without being hable to pay any fine at law, except- 
 ing in case they wound them. They can shut them up in a room for a short 
 time, but they cannot have them imprisoned, especially outside of the country, 
 without a decree from the ecclesiastical judge of Liege or the ordinary judge 
 of the locaUty, which they should obtain and show to the jailor within three 
 days of the imprisonment: "Schwabenspiegel," I, 190 (right of the master to 
 beat the child which is entrusted to him); II, 26; Stobbe, § 252. — "Mont- 
 pellier," 64; "Agen," 22. Corporal correction in English law, but not im- 
 prisonment. It is otherwise in Italy: Fertile, III, 378; "Ivree": banishment; 
 "Frioul": expulsion from the house. Under such conditions as these rever- 
 ential fear is not an idle term. 
 
 ^ Limited to a very slight extent at first, the State accepting the penalties 
 decreed by the father of the family with its eyes shut. We must wait until 
 1673 to be sure of an energetic exercise of public powers: Merlin, see "Cor- 
 rection"; Brillon, see "Debauche." 
 
 * In Paris, in 1673, men 30 years old, priests, were thus held in custody by 
 way of paternal correction. A regulating order (March 9, 1673) was neces- 
 sary in order to restrict the exercise of this right to the age of 25 years. And 
 even after tliis the father could still resort to the obtaining of an order of 
 arbitrary arrest against his son who was of age (e. g., Mirabeau was incar- 
 cerated in the Chateau d'lf in 1774: Joly, "Proces des Mirabeau," 1863, 
 p. 61 et seq.). Thus Orders of Arbitrary Arrest had an entirely different 
 effect from that which one is accustomed to look upon them as having; they 
 become a means whereby parents could protect the honor of the family; they 
 were granted for family reasons, and not for reasons of State alone. Cf. 
 "Ord." of April 20, 1684; July 15, 1763 (deportation to D^sirade, where they 
 became colonists); Viollet, p. 506, n. 2. 
 
 188
 
 Topic lO] THE PATERNAL POWER [§ 162 
 
 the mother as one can upon the father." ^ To sum up, the parents' 
 right of correction ended by not being exercised excepting with 
 the co-operation of the courts.^ This intervention of pubhc au- 
 thority in a domain where formerly it did not penetrate, unless 
 by way of exception, has become frequent and normal: the family 
 autonomy no longer exists; the father of the family must account 
 to the State in the exercise of his power. 
 
 § 1C2. The Duties of Parents. — The obligation of parents to 
 bring up, to support, to protect their children, and even to start 
 them in life, remained for a long time in rather an indefinite con- 
 dition and without authority.^ Before the enactment of the laws 
 bearing upon the reforms which decreed compulsory instruction, 
 education was given without any rule, at the pleasure of the par- 
 ents.* To protect the children, that is to say, to be their legal 
 representative, to assist them, to administer their possessions, was 
 rather a right than a duty. The same thing applied to support: 
 it is not without difficulty that the courts have acquired a power 
 of regulation in these matters.^ As far as the start in life of the 
 children is concerned, we shall see later on, when dealing with 
 
 ' The guardian cannot have the ward detained excepting upon the order 
 of a judge and notice to the relatives: Pothier, "Personnes," I, 4, 3, 2, 1; 
 MesU, I, 260. 
 
 2 Forfeiture of the paternal power: Beaumanoir, 21, 12 et seq.; Masuer, 
 5, 1; Loysel, I, 4, 22; Declar. March 8, 1704; Stobbe, § 252, n. 2; cf. Law 
 of July 24, 1889. On the English law, cf. Lehr, p. 117. 
 
 ^ The authority was with great difficulty established, and only in an im- 
 perfect manner. 
 
 * Natural law: Blackstone, loc. cit. — The question of the education of 
 the children is arbitrarily decided by the judge: Cormis, "Consult.," II, 1130; 
 Soefve, "Quest.," 2, 3, 30. The Declaration of May 24, 1724, provides for 
 the establishment of schools in every parish and compels parents to send 
 their children to them until they attain the age of 14 years; this was designed 
 especially with a religious object; the important tiling was to instruct the 
 children, especially the children of Protestants, in the mysteries of the Catho- 
 lic religion: cf. Edict of 1695. But these laws were badly applied: Chamjnon, 
 "La France d'ap. les Cahiers de 1789," p. 205. The Decree of the 29th 
 Frim., year II, also made primary instruction compulsory: cf. Law of March 
 28, 1882. Danton: "After bread education is the first need of the people." 
 The projected Civil Code, 1, 5, 2, compelled parents to have their children 
 taught a trade {cf. Rousseau in "Emile"). 
 
 ^ English legislation greatly limits the right of being supported. This 
 right exists only so long as the child, because of his health or his age, is not in 
 such a condition as to be able to provide for his own needs; in such a case as 
 this he is only allowed to ask for an allowance of 325 francs per annum at the 
 most. The compulsion exercised over the parents only is seen under the 
 form of a distraint by the church wardens and inspectors of the parish; in 
 other words, they do not admit of a family being able to free itself of the 
 care of its poor at the expense of the parish : Lehr, p. 1 14. The jurisprudence of 
 other countries is broader: Brilnneck, p. 50 (Sicily); "Siete Part.," IV, 19; 
 Chaisemartin, 63: "a father can better nourish ten children than ten children 
 a father." 
 
 189
 
 § 162] THE FAMILY [Chap. I 
 
 emancipation, the rules of the very old law. During the monarchic 
 period the majority of the Customs adhered to the principle: "no 
 marriage portion for him who does not wish it," ^ whereas, in 
 countries of written law and in Normandy, the parents are held 
 under a strict obligation to give their daughters a marriage por- 
 tion.^ The start in life by means of a marriage or entering into 
 religious orders was at first imposed by the parents upon the 
 children who were under their power; in time, under the influence 
 of the Church, these acts became free; but the State, represent- 
 ing the old Customs, was opposed to reform ^ (nullity, dis- 
 inheritance, advantages to the profit of one of the children).'* 
 
 § 163. Rights over Possessions. — For a long time the persist- 
 ence of family joint ownership was opposed to the son who lived 
 with his father having possessions of his own; again, in the thir- 
 teenth century, what he acquires he acquires for the benefit of his 
 father, even although he may be of age.^ The latter, however, 
 has only the administration and the enjoyment of the personal 
 belongings gathered by the child through inheritance from his 
 mother or his maternal relatives (lease or custody, continuation 
 of joint ownership).^ With the disorganization of the family 
 
 1 Roman origin: Masuer,XlY, 12; "Auv.," 12, 30; "Bord.,"43; "Metz.," 
 1, 113. Prohibition of disinheriting a daughter who has only been guilty 
 of misconduct after having attained the age of 25 years: "Normandie"; 
 "Navarre," 24, 6; Marnier, p. 181; -post, "Proper Marriage." — As to ex- 
 cessive marriage portions, cj. Edict of Roussillon, 1563, 17. 
 
 2 Montesquieu does not admit that there is any obligation upon parents 
 to set their children up in business; in their bringing up they have fulfilled 
 all their duties: Chaisemartin, 61. 
 
 3 "Jostice," 19, 49, 2 (p. 323); infancy: c/. p. 104, Dig., 3, 2, 1; "Na- 
 varre," 24, 7. Stohhe, § 253; Briinneck, p. 49 (Sicily). 
 
 ^ Vows: Pothier, "Personnes," 130. Ayrault writes a treatise on this 
 occasion dealing with the paternal power addressed "To Rene Ayrault, His 
 Son, So-called Jesuit," who had entered this order contrary to his father's 
 wishes. — As to the conflict between the canon law and civil legislation, c/. 
 "L'Eglise," I. Dig. X, 3, 31, 8; "Trente," 25, 18; Thomassin, I, 1760. 
 "Ord.," 1560, 19; 1579,28; March, 1768; Jan. 17, 1779; Denisar^, see" Voeux." 
 Ferriere refuses to see in this a consequence of the paternal power (see " Diet."). 
 We must notice that in order to take vows or enter the army the child is freed 
 from the paternal power at an earlier age. 
 
 ^ Beaumanoir, 12, 45; 21, 20, makes no mention of it; "Bord., A. C," 78; 
 "Et. de Saint Louis," 1, 140; "Pari, aux Bourg.," 1293 (Simonnet, "R. h. Dr.,'' 
 XIV, 529); "T. A. C, Bret.," 209; Desm., 236, 248; "Gr. Gout.," 2, 40 (p. 
 370): legacy or gift not based on a consideration; cf. pp. 109, 263; Boutillier, 
 I, 103; Vitry, 100; "Auv.," "Bourb.," "Berry," "Reims," "Hainaut," cf. 
 Dum6es, "Dr. Frangais en Flandre," 1753, 7. — Cf. "Jostice," VII, 6, 7; XII, 
 3, 1 (Roman formula of customary rules); "L. d. Droiz," 805, 756, 532, etc. 
 Action for insults belonging to the son: "Toulouse." "De Minor.," 2; "Bour- 
 bon," 169; "Lille," XIII, 3. As to the other offenses, the father has for a 
 long time had a right to damages: Kraut, I, 329, 362. The "Sachsenspiegel," 
 I, 10, shows the father giving a sort of "pecuHum" to his son: Heusler, II, 442. 
 
 8 "Sal. Gap. Extravag.," 8: "res uxoris" or marriage portion: until the sons 
 
 190
 
 Topic lO] THE PATERNAL POWER [§ 163 
 
 joint ownership, the possessions acquired by the child, in what- 
 ever manner it might be (gifts, legacies, personal gains, etc.)/ 
 were recognized as belonging to him alone; even though under 
 the paternal power, he had his own distinct inheritance.^ The 
 father and mother had the administration of it ^ because of their 
 right of custody, but the enjoyment only belonged to the noble 
 and the citizen guardian, and even then not without restric- 
 tions.'* This enjoyment thus had something exceptional about it: 
 the Customary law did not give the legal profits to the father.^ 
 On the other hand, the paternal power in countries of written law 
 was of some value to the father (but not to the mother); to say 
 nothing of the ownership of possessions acquired by the son "ex 
 re patris," ^ as well as the usufruct of the other possessions,^ 
 
 who are "parvuli" shall have attained the "setas perfecta," it is the father's 
 place to ''judicare" (not to sell or give). This leads us to suppose that com- 
 ing of age emancipates the child. He acts in his own name and does not 
 represent his father: "Bord.," 78. Pollock and Maitland, II, 437: the father 
 is "tenant by the law of England"; but in actions relating to these lands his 
 son must be made a party. There are even cases in which the custody be- 
 longs to the lord: Bracton, f. 138, 43, 253; Heusler, II, 443; and the usufruct 
 to the father: "Sachsensp.," I, 11; post, "Guardianship." 
 
 1 Excepting what he acquires "ex re patris," everything he earns through 
 his labors while in the house of his father: "Metz," I, 4, 12; G. Coquille, 
 "Quest.," 65; Desmares, 36, 248. Gifts to the son are regarded as being 
 made to the father and mother, unless there is a special clause setting them 
 aside for the son. 
 
 2 "F. de Beam," 277; "de Morlaas," 179; BoicL, I, 75; "L. d. Droiz," 142, 
 556, 756; "T. A. C., Bret.," 209; "Gr. Gout, de Fr.," II, 30; "Poitou," 321; 
 "Bourb.," 174; "Hainaut," 32, 9. The Romanists draw a distinction between 
 Italy and Germany: the "peculium" acquired regularly (of which the father 
 has the administration and the enjoyment) and the one acquired irregularly 
 (of which he only has the administration), the "peculium" acquired by the 
 inheritance in the direct line, the "castrans peculium" and the "quasi castrans 
 pecuhum" (including among the "milites," clericals; "milites Dei," advo- 
 cates and doctors; "milites inermes"; "militiae litterataj ") : Fitting, op. cit., 
 p. 476; Stobbe, § 254; "Siete Part.," IV, 17, 5 et seq. 
 
 3 "T. A. C., Bret.," 77, 204. We can then say that the son is represented 
 by his father: "Jostice," 59; "L. d. Droiz," 224, 589. 
 
 * Post, "Guardianship," "Lease." However, Imbert, "Enchirid.," p. 162, 
 considers this usufruct as being frequent: Chassaneus, 870; "Berry," I, 22 
 (ceases at the age of 18). 
 
 ^ This fact is correlated to the setting up of a majority which emancipates 
 and is to be accounted for in the same way: cf. Glasson, VII, 181. The 
 usufruct exists in certain of the Customs as an exception: "L. d. Droiz," 142; 
 "Bord.," 83, etc. Cf. "Bourges, A. C.," I, 5, etc. As to the usufruct of 
 property jointly acquired by the community: post, "System of Possessions 
 between Spouses." Final English law: the father only has a right to the 
 product of the work of the children who live with him and whom he supports; 
 he is an administrator who is held responsible for their other possessions: 
 post, "Guardianship"; Ferrihre, see "Administrateur"; Pothier, no. 82; 
 Duranlon, "R.h.Dr.," IV, 147; Stobbe, § 255, 2. 
 
 * "Navarre," 24, 1. It is the same, moreover, in the customary law. 
 
 ^ Details as to this usufruct in Serres, "Inst.," 2, 4, 9; Henrys, op. and 
 loc. cit, etc. It affects the possessions of children who are not emancipated. 
 
 191
 
 § 163] THE F.UIILY [Chap. I 
 
 excepting profits realized in the employment of warfare, the 
 magistracy or the bar, and the Church ("peculium castrans" or 
 "quasi castrans ") ; with regard to these, the son was looked upon 
 as having the same rights as his father.^ 
 
 § 164. Capacity of the Child under Authority. — The absolute 
 incapacity of former times, the consequence of the unity of per- 
 son and inheritance, had difficulty in disappearing; it is still to be 
 found in certain sources of law in the thirteenth century.^ As a 
 general thing, however, it no longer exists. There has had to be a 
 departure from the old principles, first of all in certain practical 
 cases which are analogous to those concerns of the household in 
 relation to which it was found necessary to recognize the capacity 
 of the married woman. The German texts show the child validly 
 paying for his share of the food, gambling, "quantum secum in 
 parata pecunia habuerit," that which "sub suo cingulo contine- 
 tur," pledging his clothing, even to his shirt, obligating himself to 
 the extent of small sums. According to the Assizes of Jerusalem, 
 the father and mother of the scholar are held liable to pay "that 
 which he has borrowed for his enjoyment, or to pay his master." ' 
 More than this, it is even admitted that in the household forum 
 all the obligations of the son of good family are valid.^ This 
 limited capacity must have increased by reason of the rights of 
 ownership which the son of good family was recognized as having, 
 and by the spreading of the doctrine of emancipation. At the end 
 of the thirteenth century the idea that the child under authority 
 enjoys full civil capacity from the time he comes of age has been 
 pretty nearly attained.^ But his condition scarcely changes be- 
 
 does not belong to the mother, and does not cease as a consequence of a second 
 marriage (c/. "Cod. Theod.," 8, 18, 3; and "Cod. _Just.,"_ 6, 60, 4;_ "Wis.," 
 4, 2, 13). The father may allow the children to enjoy their possessions, but 
 this renunciation cannot be pleaded against creditors: Stobbe, § 255, 3; 
 Salvioli, § 200. Has the legal enjoyment referred to in the Civil Code, 384, 
 its origin in this institution of countries of written law or in the customary 
 rules? Cf. post, "Custody." 
 
 1 Fitting, "Pecuhum Castrense," 1871. 
 
 2_"Berner Handf.," 1218, 49. The father is not responsible for the debts 
 of his son; the son himself is not held liable to pay them out of the possessions 
 which he inherits after the death of his parents. The father has the right to 
 reclaim anything which the son has disposed of for the benefit of third parties: 
 Stobbe, § 256; "T. A. C, Bret.," 84, 175; "De Usib. Andeg.," 14: the son 
 borrows without the permission of his parents; the latter are not held after 
 his death if he has no property: Beaumanoir, 15, 31. Cf. "L. Pap. Roth.," 
 170; "Liut.," 58 (acts of the son which cannot be pleaded against the father). 
 
 3 "Ass. de J^rus.," "C. des B.," 218; "Siete Part.," IV, 17, 12. 
 
 * Beaumanoir, 12, 35; cf. post, "Promissory Oath." 
 
 5 Beaumanoir, ibid.: the son who has attained majority can cause the 
 cancelling of any act which is injurious to him, but only, it seems, by pre- 
 
 192
 
 Topic lO] THE PATERNAL POWER [ §164 
 
 cause of this, so long as he has no personal possessions or those 
 that he has are sub'ject to the enjoyment of his father; the au- 
 thorization of the latter alone gives practical value to his en- 
 joyment; for, at the same time as he gives his authority, the 
 father binds himself, contrary to the Roman rules.^ When he is 
 a minor he has a right to the privilege of restitution, even if he 
 has been authorized; he is almost in the same situation as that of 
 the minor under guardianship.^ Although generally accepted,^ 
 the capacity of the son who has come of age did not cease to be 
 discussed as far as the right of making a will was concerned ; ^ 
 upon this point the conflict between the old and the new law had 
 not been settled, perhaps because of the disfavor with which the 
 will was looked upon.^ In countries of written law the son of 
 good family cannot make a will (excepting of his possessions which 
 appertain to the camp), but he is free to dispose by gift, "mortis 
 causa," with the consent of his father. We have already seen 
 that he was capable of binding himself, of becoming surety, for 
 example, but not of borrowing money, owing to the application 
 of the Macedonian Decree of the Senate.^ The responsibility of 
 
 tending that it is because of reverential fear: "Jostice," pp. 80, 98 (the son 
 brings an action against his father; there is no more community of persons). 
 On Roman influence in Germany: Stobbe, loc. cit. 
 
 1 "Bord.," 79, 80, 115: presence of the father; the written authorization 
 is not sufficient. Heusler, II, 448. Cf. on responsibility of the father, " Ber- 
 gerac," 130; "Limoges,'] 82; "Bourb.," 168; "Berry," I, 10, 11. In the 
 Register of the ecclesiastical judge of Cerisy we find numerous examples of a 
 fine computed "cum auctoritate patris," no. 7, Basset, 2, 4, 10, 4. 
 
 2 Post, "GuarcUanship." Cf. Enghsh law: Pollock and Maiiland, II, 443. 
 
 3 Thus the son who has attained majority may appear in court: cj. Pollock 
 and Maitland, II, 438. On the "Demurrer of the Parol," cf. post, "Guar- 
 dianship." — "T. A. C, Bret." 67. The son who has attained majority, but 
 who is under the power of his father, can only be appointed a custodian with 
 the authorization of his father: cf. "Jostice," 59; "L. d. Droiz," 224, 589. 
 
 ^ Great confusion in the Customs. Frequently the will is only valid with 
 the consent of the father: "T. A. C., Bret.," 220; "St.-Omer," 27; "Bour- 
 gogne," etc. In Flanders the son cannot make a will: "Gand," 21; "Cour- 
 tray," 13, 13. He can make a will of property acquired by his own industry: 
 "Hainaut," 32, 1; "Berry," 18; "Lorraine," IV, 5. Capacity without re- 
 striction: "Poitou," 276; "Angoumois," 119; "Labourt," 11. The age at 
 which one can make a will varies with^the Customs (20, 18, 16 years, etc.). 
 In Normandy, 414, the amount which can be disposed of varies according to 
 age: Civil Code, 904; Guyot, see "Testament." 
 
 ^ A will authorized by the father is valid if there is added to it the clause 
 that it shall be vahd at least as a gift "mortis causa" (Bordeaux contra) if 
 it is for a pious cause that it is made; and, finally, even without this consent, 
 when he divides his possessions among his children: Serrcs, 11, 12. 
 
 ^ The Macedonian Decree of the Senate is applied throughout the South 
 (since when? " L. Rom. Wis.," Paul, 2, 10) : Bretonnier, see " Fils de Famille" ; 
 Argou, 3, 31; Beautemps-BeauprS, "C. d'Anjou," II, n. 576; "Limoges," 82; 
 "Siete Part.," 5, 4. On the contrary, in countries of Customs the decree of 
 the senate is not received: Ferrihre, "Beaune," p. 541; Papon, 12, 4; Merlin, 
 
 193
 
 § 164] THE FAMILY [Chap. I 
 
 the father caused by the offenses of the son is still found in the 
 thirteenth century, because it is correlative to the right of correc- 
 tion, and because the son has no personal possessions; ^ but in 
 consequence of this it is no longer justified. In spite of the con- 
 troversy and the di^inctions which are shown by the tenacity of 
 the old rules, the principle prevails, in countries of written law as 
 well as in countries of Customs, that "for another's offense one 
 is not held liable" (save as to civil liability) .^ 
 
 § 165. Right of the Mother.^ — If we are to believe Beau- 
 manoir, 21, 20, the paternal power belonged in common to the 
 father and to the mother: "father and mother have their children 
 in their custody or under their guardianship." ^ During the life- 
 time of the father did the mother then have some part in the ex- 
 ercise of this right? Surely very little, because she was herself 
 found to be under the power of the husband. The education of 
 the children was incumbent upon her,^ but under the supervision 
 of the husband.^ The Edict of 1556 shows that her consent was 
 
 see "Mac^donien"; Bouhier, 16, 2. German law: Stobbe, 256, II, 3. Italy: 
 many statutes only allow him to bind himself with the consent of his father: 
 Fertile, III, 379. As to the renunciation of the Macedonian Decree of the 
 Senate, cj. Meynial, "N. R. H.," 1901, 262 (bibl); the "Glose" (Dig., 14, 6, 
 11; "L, Feud.," 2, 54, 3), annuls the renunciation, even made under oath 
 (Dumoulin, on "Cod." 4, 28), for the Decree of the Senate was enacted out 
 of hatred for creditors, and not in favor of the sons of families; certain of the 
 canonists are of a contrary opinion {Imola, etc.). Cj. Bartole, 56 "Pr.," 
 "de Fidej.," no. 10. 
 
 1 Beaumanoir, 21, 20; "Amiens," 42 (1205); "Pari, aux Bourg.," p. 106; 
 Saint-Dizier, 16; " Jostice," p. 98; Grimm, see "Weist.," 503, etc.; "Schwaben- 
 spiegel," II, 183; "Bret., T. A. C," 175; "A. C," 615 {D' Argentre, s. 611; 
 Beautemps-Beaupre, "Liger," 513; "Eu.," 169. Thus the father had to pay 
 the fine to the treasurer, and ci\dl damages to the party injured; he was only 
 exempt from the corporal punishment: "Gr. Gout, de Fr.," p. 385; Fertile, 
 III, 378; Kraut, I, 335. "Agen," 22; Laroque-Timbaud, 14, etc. 
 
 2 Boutillier, II, 29; Dig. X, 5, 23, 2 (Alexander III, 1159-1181); the 
 father is not responsible: "Berry," I, 12; "Bourbon," 169; "Gand," 21, 
 9, etc. Jurisprudence incUnes towards this solution where the Customs are 
 silent: "Beaune," p. 544. This is also the solution resorted to in countries 
 of written law, — the practice of giving up the thing causing the injury to the 
 person injured having disappeared. Swiss Customs: "Stat, de Rome," II, 
 80; Fothier, "ObUg." 454; Brillon, see "Pere"; Boucheul, ibid. 
 
 3 Mertian de Milller, op. cit. (p. 1080); Du Flessis, p. 168; Viollet, p. 508. 
 As to the custody or guardianship of the mother see Catellan, 4, 8. 
 
 * This is an expression wliich is more correct in fact than in law. It is 
 to be accounted for by the participation of the mother in the education of 
 children, by her role of assistant or of substitute for her husband: Bo^daric, I, 
 100; "Chalons," 2; "Vitry," 70, 100, etc.; Mulhaus, "Stat." (1692), IV, 31, 1; 
 Loysel, 177; Fothier, "Fers.," I, Q, 2; Fleury, 1,225; cf. Salis, 152; Du Flessis, 
 550; Schulte, § 172 (authorization by the mother); Heusler, II, 433; "Stat. 
 de Rome," 1580, II, 78. 
 
 ^ Right of correcting the child of tender age: Dig., 43, 30, 3, 5; "Wis.," 4, 
 5, 1; cf. English law, Lehr, p. 118: the paternal power is reserved to the father. 
 
 ^ If he wishes to give them an immoral education, the mother has a right 
 
 194
 
 Topic lO] THE PATERNAL POWER [§ 166 
 
 required for the marriage of the children; but in case of disagree- 
 ment between her and the father the wishes of the father prevailed. 
 At the death of the father/ or if he is absent or ill,^ the Customary 
 law gives the mother the custody, which is very much like guar- 
 dianship, with fewer rights than remain to the father when he sur- 
 vives; for the latter conserves, on principle, all the attributes of 
 the paternal power. If there is a judicial separation, the courts 
 decide to which of the two spouses the authority ought to belong.^ 
 In countries of written law the mother legally occupies a little 
 less important position, because of the principle that the "patria 
 potestas" could not be attributed to her; thus it is that she does 
 not have the legal profits of acquired possessions. But custom 
 gives her a little of that which the law refuses her,^ and, according 
 to the law itself, the minor child passes under the legal guardian- 
 ship of its mother (or of its grandmother) at the death of its 
 father. Thus, contrary to the old law, the mother becomes in all 
 matters the assistant of the father in his role of head of the family. 
 § 166. Emancipation.^ — In countries of written law, emancipa- 
 tion from the paternal power can only result, on principle, from 
 an expressed emancipation: a declaration before the judge or a 
 notarial deed (at least within the jurisdiction of the Parliament of 
 Toulouse).^ Alongside of this Roman institution there took place 
 
 to go into court in order to prevent it. — In case of a judicial separation: 
 "Ass. de Jerus.," "C. des B.," 177; Boutaric, II, 8; Bernard, p. 293, cites 
 the celebrated action of Catherine Arnaud against Isaac Le Alaistre, her 
 husband, who had embraced Protestantism and demanded his children from 
 her. 
 
 1 Beaumanoir, 21, 9. This custody ceases by means of a judicial decree 
 made at the request of the parents: Cases, Procedure, ibid., 21, 17; "Et. de 
 St. Louis," ed. Viollet, I, 154; III, 137. Death of the mother: Montargis, 
 7,3. 
 
 - Pothier,"FeTS.,"n.l34:; Stobbe, ^252. 
 
 ' Denisart, see "Education." 
 
 ■» De Ribbe, op. cit., II, 135; cf. "Petrus," I, 3. 
 
 * "Encicl. Giur. Ital.," see Lattes, p. 179; "Acad. Leg. Toulouse," I, 52; 
 "R. h. Dr.," 14, 529; Stobbe, "Beitr.," 1865; Neron, see Table; Isambert, id.) 
 Guyot, id. 
 
 ^ Guilbert, "La Famille Limous.," p. 23. At Limoges, June 12, 1792. 
 Pierre Chapoulaud, parish priest of Bazoches, in Gatinais, is emancipated 
 at the age of 47 years in the presence of a judge. He kneels down and, clasp- 
 ing his hands together, prays his father to emancipate him. The latter 
 declares that he gives his consent and raises him up: Viollet, op. cit.; De 
 Ribbe, "Les Families ct la Soc," I, 245; Fertile, III, 384: The father who 
 abuses his power in order to administer the property badly can be forced to 
 emancipate his son; emancipation is only allowed at a certain age, — 20 
 years at Milan, 18 at Novare, etc.; a custom of assigning the property to the 
 emancipated son, Milan, 1216, 17; publicity given to emancipation, "Siete 
 Part.," IV, 18. Incest causes the loss of the paternal power. A father who 
 emancipates his son keeps one-half of the usufruct of the acquired property; 
 Du Cange, see " Emancipatio " ; Ragueau, id. 
 
 195
 
 § 166] THE FAMILY [Chap. I 
 
 in many localities an implied emancijjation which resulted from 
 marriage,^ from living apart for ten years, from being elevated to 
 the highest dignities of the gown or the sword, or to a bishopric, 
 and from the civil death of the father.^ The expressed emanci- 
 pation differed from the other in that it was voluntary on the part 
 of the child, as well as on the part of the father; the son could not 
 be emancipated in spite of himself,^ and, on the other hand, he 
 had no means by which to compel his father to emancipate him 
 (with some exceptions).'* From the Roman laws the Customary 
 laws borrowed in the fourteenth century emancipation expressed 
 before public authority, such as Boutillier ^ has, for example, de- 
 scribed, and emancipation by letters from the sovereign. 
 
 But in the old days the only kind of emancipation which was 
 known was the depriving of their board, the " f oris f amiliatio " of 
 children who were of age; ® it took place without any participa- 
 
 ^ Provinces of written law within the jurisdiction of the Parliament of 
 Paris: Argo2i, I, 25; Henrys, II, 715. 
 
 2 "Montpellier," 53; "Navarre," 24, 8 ("Coseigneurie"); Boutaric, 
 "Inst.," 1, 12, 6; Dunod, "Prescr.," 185; Henrys, "CEuvres," II, 722; III, 
 452; Bouhier, I, 361; Julien, "Elem.," I, 8. In Provence, "habilitation," 
 giving only the right of administration: "Toulouse," 3, 4 (marriage with 
 gift or marriage portion). — Up to the age of 25 years the child who has been 
 emancipated is aided by a curator in the alienation of his immovables. — 
 Italy: emancipation results from entering into religious orders, from enter- 
 ing the priesthood or the military profession, going into business, or being 
 invested with a fief or a public office: Fertile, III, 382; "Siete Part.," IV, 
 18. As to holding office c/. "Nov.," 81; "Cod. Just.," 12, 3, 5; 8, 46, 1. 
 
 3 Henrys, t. II, q. 127, n. 36; "Siete Part.," IV, 18, 17. C/. Roman law, 
 in which emancipation depends only upon the will of the father. 
 
 ^ "Nov.," 89, c. 11; Boer., "Dec." Power of the courts to make an esti- 
 mate: Julien, "Stat, de Provence," I, p. 202. Forfeiture by the father who 
 incurs penalties: "Siete Part.," IV, 18, 18 (cruelty of the father to his sons, 
 prostitution of the daughters, etc.); 18, 19 (revocation of the emancipation 
 because of ingratitude): Hostiensis, p. 320. 
 
 ^ I, 100. Cf. Beawnanoir, 21, 21: intervention of the law or of the rela- 
 tives, when the surviving spouse acquires influence over his children, so as to 
 prevent him from stripping them. Custom of joining a gift to the emanci- 
 pation: Simonnet, "R. h. Dr.," 533; Salis., p. 181. The law makes sure that 
 there is no fraud: Beaumanoir, 21, 20. It was all the more necessary be- 
 cause the consent of the child was not required beforehand; certain Customs 
 allowed of his being emancipated in his absence: "Orl.," 185; "Reims," 6; 
 "Sedan," 5, etc; "T. A. C, Bret.," 79, 204. — A judicial emancipation was 
 attained through the Customs, which was not affected by Roman influence. 
 Made before the judge, notary, or municipal authorities (aldermen at Lille, 
 "Roisin," concerning investiture; mayor at Provins, "B. Ch.," 1856, p. 193), 
 it was sometimes looked upon as the act of the parties, sometimes as the act 
 of the judge; sometimes the judge limited himself to registering it and giv- 
 ing it authenticity, sometimes he played a more active part, — he emanci- 
 pated the child. Salis, p. 187 (Statutes of the Chatelet, 1326-1396). In 
 Burgundy, in the fourteenth century, the "Summa" of Rolandinus was re- 
 produced: Bouhier, I, 491; "Beaune," 551. 
 
 ^ Ragueau, see "Pain, Emancipez"; Loysel, 56; Du Cange, see "Foris 
 Familiare"; Viollet, "Et. de Saint Louis," I, 130; Heusler, II, 438; Salis, op. 
 
 196
 
 Topic lO] THE PATERNAL POWER [§ 166 
 
 tion on the part of the judge/ and only by reason of a child's 
 
 having a separate estabhshment, a distinct home, to the father's 
 
 knowledge: "fire and place cause emancipation." ^ A simple 
 
 change of residence was not enough to effect emancipation; the 
 
 student who goes away from his home in order to follow the course 
 
 of study of a university does not escape from the paternal power.^ 
 
 The assignment to the "foris familiatus" of a portion of the 
 
 family fortune is not indispensable, although it is frequent, and it 
 
 constitutes a sort of compensation for the loss of the enjoyment of 
 
 the possessions of the parents;"* in fact, the young man whose 
 
 parents send him to work outside of the paternal house, and who 
 
 owes his independence to his work, is emancipated in the same 
 
 manner as the one who receives a portion of the possessions of 
 
 his father.^ The "foris familiatio" could be imposed upon the 
 
 child by way of a penalty, or because his parents were too poor, or 
 
 because they wished to escape from responsibility for his offenses f 
 
 but it could also happen that the child went away against the will 
 
 of his father; he "deprived himself of board." ^ 
 
 cit. German law; "Absonderung," emancipation, "per separatam oeco- 
 nomiam, emancipatio saxonica" (sixteenth century, as opposed to Roman 
 emancipation). 
 
 1 Excepting in a few localities: Ferriere, see "Pari, aux Bourg.," p. 164. 
 Giving of a piece of bread and disinheritance: Simonnet, loc. cit. 
 
 2 P>equent disagreements between children who are living with the father 
 and mother and children who are emancipated by the father and mother, or 
 by one parent if the other is dead: "Amiens," 42, etc. They still say "enfant 
 en celle" (meaning a child living with its father and mother, under their power, 
 and having community of property with them): see Ragueati, Loysel, 101. A 
 few Customs require that the separate establishment shall have been in 
 existence a year and a day; sometimes jurisprudence requires ten years : " Cod. 
 Just.," 8, 47, 1; Du Plessis, op. cit. 
 
 3 "Ass. de Jerus.," "C. d. B.," 215, 218; "Pari, aux B.," p. 164; Vann, 
 "Arch. L^g. de Reims," I, 1, 39. The very early law could not have ad- 
 mitted of the emancipated child living with his father, as yfas done later on. 
 
 * Beaum., 21, 20 (partition without fraud). Certain texts give the child 
 who goes away with the consent of his father a right to a settlement : Estaires, 
 75 ("Mem. Soc. sc. Lille," 1855). Without such a settlement living inde- 
 pendently would not have been possible: Viollet, 221; "Et. de Saint Louis," 
 1,119; 11,26; Beaum., U, 13; 14,29; 21,4,20; "Jost.," p. 236; "Picardie," 
 I, 9, 3; Saint-Dizier, 236; "B. Ch.," 1874, p. 412. The son or the daughter 
 who goes away against the wishes of the parents is disinherited, "ipso facto": 
 "Wis.," 3, 2, 8; "Narbonne," 1232 (D. Vaissette, III, 208); "Amiens," IX, 
 2 (Marnier); .52 (^4. Thierry). Post, "Partition," "Refunding." 
 
 6 Beaum., 21, 20; cf., however, Clanville, 7, 3; "Saint-Sever," 8, 1, 8; 
 "Reims," 7; "Sedan," 6; Loysel, 1, 1, 39; " Bergerac," 130; "Chartres," 103; if 
 the mother dies the children are emancipated "ipso facto" because they 
 are considered as having sufficient means to live on. Heusler, II, 438. Accord- 
 ing to this learned man, emancipation is due less to a separate establishment 
 than to the receiving of a portion of the father's possessions : cf. Grimm, " Weist," 
 III, 104, 14; the lord inherits from the emancipated child, and not his father. 
 
 * Beaum., loc. cit. 
 
 ^ Controversy; Labourt, IX, 18; Soule, 24, 22; "Bardges," 16; "Bret., 
 
 197
 
 § 1G7] THE FAMILY [Cuaf. I 
 
 The separate start in life results, in the case of daughters, from 
 marriage; they are also emancipated by this means from the pa- 
 ternal power, which emancipation is all the more necessary when 
 they change their family.^ As for the sons, marriage does not 
 always imply the establishing of a separate home; emancipation 
 therefore is not a necessary consequence. In the end, however, 
 the rule becomes established that: "every marriage emancipates," 
 whether it be that of a son or a daughter.^ The knighting of the 
 son had the same effect as his marriage.^ 
 
 § 167. Emancipating Majority. — In the last stage of legisla- 
 tion, emancipation results, of absolute right, simply from major- 
 ity; which is not difficult to understand, for the latter ordinarily 
 coincides with the separate start in life and it causes the 
 guardianship to cease.^ This is what the old "Coutumier de 
 Champagne" already admits: "three things take from a man the 
 pot of his father, age, marriage, fire and place." But in the six- 
 tenth century the new rule had not yet become general, as is seen 
 
 T. A. C," 204; "Schwabenspiegel," I, 183, 159 (the son can demand to be 
 emancipated after he is 20 years old); contra, Du Plessis, p. 483; cf. Bout., 1, 
 100; Viollet, "Et. de Saint Louis," I, 130, 170; III, 300; Pasqider, "Inst.," 
 p. 378; "Schwabenspeigel," 1,191; "Sachsensp.," I, 11, 13; Briinneck, p. 63 
 (Sicily), "Bret., T. A. C.," 204; the father cannot emancipate his son contrary 
 to the wishes of the latter; the son who has attained majority can demand 
 that he be emancipated: "Bourg.," 6,3; "Angoum.," 120; "Saintonge," 2; 
 "Reims," 7; "Limoges," 50; the son cannot leave his father without being 
 authorized to do so (cf. Roman " patria pot."); Salis, op. cit. 
 
 1 Loysel, 122; Chaisemartin, 69; Masuer, 14, 17. (Contra, Capit., 819); 
 D'Argentre, on "Bret.," 472; "Nivern.," 23, 1; cf. however J. Faure, "Inst, de 
 Sc. Tert.," 3; the power of the husband does not exclude the paternal power: 
 "Montpellier," 54; "L. d. Droiz," 643, 526; "Anjou," 1411, Art. 350; 1463, 
 Art. 400; Lapeyrere, on "Bord.": necessity of an emancipation at law in order 
 to be able to make a will; "Bord., A. C," 62: in 1539, opinion that the married 
 daughter can make q, will unfavorable to her father. 
 
 2 "Jostice," 10, 23, 3: " Does marriage extinguish a guardianship? Neither 
 of a man nor a woman, in the North." Dumoulin does not admit it: on 
 " Bourb.," 166 (cf. on " Blois," 1). Children who are married are emancipated 
 "quando datur eis habitatio seorsim, secus si et quandiu retinentur in domo 
 paterna": La Salle de Lille, 1567, 13, 1; Chimay, 6, 1; Beautemps-Beaupre, 
 "F.," 1197 ("Anjou"); "Angoum.," 120; "Poitou," 317, 318; "T.A.C., 
 Bret.," 81, 204; Boutanc, I, 100; Chaisemartin, 69; cf. "Jost.," 1, 10, 8 (Dig., 
 7, 7, 36); "Gr. Cout. de Fr.," II, 29; Desmares, 236; Varin, op. cit., 487, 3; 
 Mantier, "Amiens," p. 138; Brunneck,p.Q2; "Montp.,"58; "F, de Cuenca," 
 14, 10 ("Wis.," 4, 2, 13; "Form., Wis.," 34). 
 
 3 "Et. de Saint Louis," I, 21 (right to a third of the father's land). "Ord. 
 de Jean," II, 5 (Brittany); "L. d. Droiz," 422. 
 
 * England: from the thirteenth century age emancipates: Bracton, "¥.," 
 6. It is just the opposite in France: Beaumanoir, 21, 20; cf. 12, 35; "Ord.," 
 II, 63; III, 24. Acts of emancipation in 1396 (Salis, p. 170); "De. Us. 
 Andegav," 14; "Reims," 6, 7; Bout., I, 100; Simonnet, "R. h. Dr.," p. 189. 
 Case in which the son has personal belongings of his own; when he comes of 
 age he naturally has the administration of them. 
 
 198
 
 Topic lO] THE PATERNAL POWER [§ 1G8 
 
 from a passage from Loysel, 177.^ The man emancipated by 
 reason of age becomes invested with full capacity; he becomes 
 head of the house; ^ in other cases his capacity is limited, at least 
 in the sixteenth century, as to the alienation of immovables. 
 
 § 168. Revolutionary Law,^ drawing its inspiration from the 
 philosophical conceptions of the eighteenth century,^ made more 
 progress in the direction which the old jurisprudence had taken; it 
 restrained the paternal power, a sort of domestic royalty, an image 
 as it seemed of monarchic despotism, and was not far from re- 
 garding the father simply as a delegate of the State.^ Unifying 
 legislation, the Law of August 28, 1792, abolished the " patria po- 
 testas" over those who had come of age, which was still in force 
 in the countries of written law.^ The consent of the parents to the 
 marriage of their children was not required excepting until the age 
 of twenty-one years.^ Disinheritance disappeared,^ and the por- 
 tion which could be disposed of having been reduced to very 
 little, the father of the family found himself deprived of all means 
 of controlling his children by disposing of his possessions. Finally, 
 the right of correction was made subordinate in its most serious 
 attribute to the approval of a family tribunal ^ composed of six 
 
 ^ Customs which always require a separate establishment or express eman- 
 cipation or a request for it at law: "Bret.," 528; "Poitou," 312; "Bourg.," 
 6, 5, 7; "Hainaut," 110; "Lille," 4, 2, etc. In Flanders becoming a priest 
 emancipates: Deghewiet, p. 65; Kraut, II, 590. Italy: emancipation at the age 
 of 18 or 20, provided it is made public: Salvioli, p. 360; Briinneck, p. 62. 
 
 2 " Bergerac," 82: he preserves the right of correction over his emancipated 
 children. Contra, general Customary law according to which only the obli- 
 gation to furnish nourishment remains: Ferriere, see "Em."; Loysel, 59. 
 Custom often allowed the father to keep authority over the domestic hearth: 
 cf. Chateaubriand, "Mem. d'Outre-Tombe." 
 
 ' Sagnac, "La Lcgisl. Civile de la Revol. Fr.," p. 367; Du Plessis, p. 571. 
 Cf. N ougarede, "Essai s. la Puiss. Pat."; Chr. de Poly., "Puiss. Pat.," 1820; 
 Chardon, "Traitc des Trois Puissances." 
 
 * As to the customs of the eighteenth century, cf. Taine, " Anc. R6g.," 174. 
 It is a general opinion among the philosophers that children are bound to the 
 father only so long as they need his support. When this is no longer the case 
 it is not for their parents to give them orders: cf. "Encyclopedic," "Rous- 
 seau," "Locke," "Kant," etc. 
 
 * In 1793 Robespierre suggested taking children away from their parents 
 when they were 7 or 8 years old, in order to bring them all up together and 
 thus prepare champions of the new ideas: "Doc." 29 Frim., year II (first-class 
 schools, free of charge, attendance at which was compulsory). 
 
 ^ Lamoignon had already asked for this: "Arr.," I, 7. 
 
 ^ A family council, consisting of two relatives who were heirs, two others 
 who were not heirs, and the public officer, should be consulted by the child 
 who has lost his parents: Dec, Sept. 7, 1793. 
 
 * Declaration of 9 Fruct., year II (23 q.); Duvergier, VII, 318. 
 
 ^ A singular ana(;hronism: family solidarity no longer existed, so to speak. 
 Many modern legislative enactments which are more practical have jirovided 
 powers superior to those of the parents that are charged with aiding the latter 
 
 199
 
 § 168] THE FAMILY [Chap. I 
 
 or eight relatives (and if these were lacking, of friends).^ The 
 Law of August 16-24, 1790, which established it, and which Mira- 
 beau applied, limited to one year the duration of imprisonment 
 pronounced by these tribunals against minors at the request of 
 their fathers; again, the president of the district tribunal had the 
 power to refuse to ratify this penalty after having heard the com- 
 missioner of the king. The exercise of the paternal power was 
 confided, as it was already in Customary law, no longer to the 
 father alone,^ but to the father and the mother, that is to say, to the 
 father first of all, and, in default, then to the mother, but not to 
 both at the same time, which is impractical.^ 
 
 Finally, the individualistic tendencies triumphed with the Revo- 
 lutionary law. The paternal power, as well as the authority of 
 the husband, meets with serious checks; the domestic magistracy 
 of the father of the family is no longer exercised within the narrow 
 domain to which it is confined, excepting under the supervision of 
 public authority. The State, as we have said, endeavors to con- 
 stitute itself the general father of the family. It would be more 
 correct to say that it had already attained about half of this power, 
 and that it succeeded in attaining all of it. Perhaps the last stage 
 of an evolution which had been pending for long centuries was 
 arrived at too suddenly. From the year VIII, "the restoration 
 to the paternal authority of the lawful dominion which it should 
 never have lost," is contemplated.'* The Civil Code realized this 
 project so well that in the existing law, and especially in the 
 Customs, which are the longest to retain the imprint of the past, 
 the rights of the father, even over the children who have attained 
 their majority, have not entirely disappeared (for example, mat- 
 rimonial coming of age).^ It is otherwise with the Anglo-Saxons, 
 
 in carrjdng out the most important acts : thus the paternal power becomes 
 still more like guardianship. 
 
 1 Dec, Aug. 16-24, 1790, 10-15. Duvergier, I, 372. This tribunal or 
 family council already existed in the old law, c/., for example, Declaration 
 of Feb., 1743, Art. 12. See also Merlin, "R6p.," "Arbitrage" (Statutes of 
 Provence of 1469 and 1491); Ordinance of Aug., 1560; of Moulins, 83, Jan., 
 1629, 152; Guichard, "Tribunal de Famille." 
 
 2 The Decree of Sept. 20, 1792, only mentions the father with regard to 
 the giving of consent to marriage. 
 
 3 C/., however. Civil Code: "Adoption." 
 
 * The Jacqueminot Project, Fenet, I, 331. C/. Discussion of the Civil 
 Code. 
 
 ^ Le Play's School demands the restoration of the paternal power, and 
 thinks that the best means of rebuilding the old family is for our laws to 
 sanction freedom to make a will. But would freedom to make a will change 
 our customs? In order to be sure that it would produce the same effect in 
 France as it has in England we should have to begin by acquiring the Anglo- 
 
 200
 
 Topic lO] THE PATERNAL POWER [§ 168 
 
 where the independence of children with respect to the family 
 is far more energetically maintained.^ 
 
 Saxon temperament. To the advantages claimed for it in Provence, ac- 
 cording to De Ribbe, II, 359, has been opposed a passage from La Bruyere, 
 "Caract.," XIV; De Curzon, "Le Gouvern. Familial" ("Ann. d'Econ. Soc," 
 1877; Nourrisson, "Et. s. la Puiss. Pat." 1898; Planteau du Maroussem, op. 
 cit; Taudiere, "Tr. de la Puiss. Pat.," 1898). 
 
 1 Starcke, "La Famille," ch. IV; Boistel, "Le Dr. dans la Famille," 1864. 
 However, let us observe that if the father has but few rights over the person , 
 he has many over property (freedom to bequeath by will in England). The 
 law compared in: "Bull, de la Soc. de Leg. Comp.," 1889. Summed up in 
 Taudiere, "in f." Pascaud, "R. Gen.," 1891, 1892. 
 
 201
 
 §1G9] 
 
 THE FMIILY 
 
 [Ch.^. I 
 
 Topic 11. Concerning Illegitimate Children 
 
 § 169. Germanic Law. 
 
 § 170. Christian Ideas. 
 
 § 171. The Law of the Monarchic 
 
 Period. 
 § 172. The Condition of Bastards. 
 
 § 173. Proof of Natural Filiation. 
 § 174. Revolutionary Law. 
 § 175. Legitimation. 
 §176. Legitimation by Rescript from 
 the Prince. 
 
 § 169. Germanic Law. — The disgrace which so long was at- 
 tached to birth out of marriage does not seem to go back so far as 
 the Germanic law; ^ this legislation was hardly concerned at all 
 with the purity of morals; irregularity in the question of birth was 
 not of very much importance,^ unless there was joined to it an- 
 other element, the baseness of the station of the mother.^ Whether 
 born out of marriage or not, the cliildren are connected with the 
 father, provided that he accepts them.^ Ordinarily, the station 
 of illegitimate children varied with that of the mother. Those 
 who were born of a noble mother were treated better than those 
 who were the issue of an intercourse with a woman of lower 
 station. This sort of union was frequent, the laws ordinarily lim- 
 iting themselves to the punishment of the misalliances of noble- 
 
 1 Kochne, "Geschlechtsverb. d. Unfr.," 1888, p. 11 and 35; Brunner, op. 
 cit.; Du Plessis de Grenedan, "These," p. 188, 290. 
 
 2 The contrary opinion still numbers a few partisans: Amiable, p. 372; 
 Pardessus, 698; Glasson, III, 33. The disfavor which certain barbarian 
 documents show with regard to illegitimate children does not have its origin 
 in the Germanic customs, in which one notices little concern as to whether 
 bastards are separated from the domestic hearth and the lawful family is 
 elevated by lowering the natural one. 
 
 ^ Polygamy: Grimm, p. 440; Weinhold,"!). Frauen," II, 13; Glasson, III, 
 6; Merovingians: Greg. Tours, 4, 3; 4, 26; 3, 22 et seq.; Fredeg., IV. 60; 
 "Lib. Hist. Franc," c. 28. Polygamy did not exclude concubinage. Harald 
 Harfagr had ten wives and twenty concubines at the same time: Koenigs- 
 warter, p. 67. The old Icelandic law held that children born of exiles, mendi- 
 cants, etc., were incapable of inheriting. In Denmark cohabitation for three 
 years gave the concubine the position of a lawful spouse (Dareste, "Etudes," 
 p. 309); in a case of this sort the children should be legitimate. Oriental 
 usages: the children of the concubines belong to the lawful spouse (photo- 
 graphs of the Empress of China holding in her arms children that other women 
 have borne to her husband. Jacob and the maid servants of Leah and Rachel, 
 Abraham and Hagar). — The Irish custom of Gavelkind (same rights as 
 legitimate children). 
 
 •* Greg. Tours, 7, 27. Gondovald calls himself the natural son of Clo- 
 taire. The latter protests: "Hunc ego non generavi." Brunner, _ "D. R. G.," 
 I, 76. Cf. Michelet, "Orig.," p. 12. (Gallic custom of recognition by a kiss 
 from the head of the family after the death of the father: Dareste, "Etudes," 
 p. 310: the father acknowledges his natural cliild before the "Ting." — As 
 to the practices of "Niyoga"and of the "Levirate," see " Levirate," § 18; 
 Dareste, I, p. 109. 
 
 202
 
 Topic 11 ] CONCERNING ILLEGITIMATE CHILDREN [§ 169 
 
 women.* (I) Children born of a free woman. Their situation is the 
 equivalent of that of the child born of a legal wife, or, at least, it 
 approached it.^ They belong to the family of their father when 
 he has accepted them, are under his "mundium," and have the 
 rights of inheritance, the extent of which varies according to the 
 laws.^ Thus, the natural sons of the Merovingians inherited from 
 them ^ in competition with their legitimate children.^ It was 
 the rule in the old Frankish law, as it was in the old Scandinavian 
 law.^ In Lombardy the hereditary right of "filii naturales" was 
 
 ^ See "Concubinage." Thus from a marriage which was regular from the 
 point of view of the Church there might be born bastards. 
 
 2 Lombard law "naturahs ignobihter natus" as contrasted with "nobilis," 
 "fullborn": "Roth.," 61, 154 (Ficker, "Erbenfolge," II, 237); right of in- 
 heritance of "fihi naturales" inferior to that of lawful children (one- third at 
 the most), 362, 158-160, 161; "Liut.," 13. These "filii" are born of the 
 union of the master with his "aldia" or freed-woman, "wirdibora": "Roth.," 
 222; "Liut.," 106; cf. "Roth.," 156: lesser right of the child born of a free 
 man and the slave of some one else purchased and set free. — Anglo-Saxon 
 law argues contrary to this: "Ina," 27; "Alfred," 8. Old Norweigan law: chil- 
 dren born of a marriage, of a free concubine (likened to the former), of a hidden 
 union with a free woman (the same if they were kept by the father), or of a 
 connection with a female slave (they are only free by virtue of an enfranchise- 
 ment, and under these circumstances their station is inferior to that of the 
 preceding). Cf. Sweden, Dareste, "Etudes," p. 292. 
 
 ^ "Roth.," 154 et seq.; "App. Marculf.," 47 (calling to succession); Papien, 
 37 (one-eighth for the concubine and the children); "Cod. Theod.," 4, 6, 7; 
 "App. Marc," 52 (power to give all his possessions to bastards if he has no 
 legitimate cliildren); "Epit. Julian.," "Nov.," 82, 12; "Cone. Tribur.," 49; 
 P. de Font., p. 490. 
 
 * Brunner, op. cit. Thierry, son of one of Clovis's concubines, etc., Greg. 
 Tours, 5, 20; 4,25; "Vita Balthild.," 2; "Vit. Columban.," "Ann. Bened.," 
 
 II, 17. Under the Carolingians the illegitimate children of the kings seem 
 to have lost the right to succeed to the throne: "Div. Imp.," 806, 817, 831. 
 Cf., however, Charles Martel, Arnulf, Bernard (son of Pepin). William the 
 Bastard: "Ann. Fuld.," 885, 889; D. Bouquet, VIII, 45, etc.; Stryckius, 
 "De Filiis Natur. Regum," 1700. In Norway illegitimate children born of 
 a free mother succeed to the throne in the same way as legitimate sons until 
 1260, after which the latter are preferred; in 1273 bastards succeed after, 
 nephews. — Goths, Vandals, Normans (William the Conqueror, or the 
 Bastard). 
 
 ^ Calling to the succession daughters born of a slave: "App. Marc," 
 47, sons born of a marriage with a free woman, but without "libellus dotis," 
 from which it follows that the children are "naturales secundum lege," ib. 
 52; "Nov. Major.," VI, 9, in 458; "Berlin. Akad.," 1894, 553; from the 
 " Nov. of Theodosius," II, 443 (22, c 1 and 2 in the " L. Rom. Wisig."), a means 
 of giving rights of inheritance to illegitimate children was devised through a 
 will presented at the "curia," cf. offering to the "curia;" Viollet, 396; Th6- 
 venin, 35; Brunner, p. 24. 
 
 ' The Germanic tradition is continued in the later French practice ac- 
 cording to which the bastard is still connected with the family of his father, 
 • — transmission of name, arms, sometimes of a title of nobility: "Artois," 
 1509, 1544, 144, 201; "Cout. du Bourg.de Bruges," ed. Gilliodts van Severen, 
 
 III, 271; "Comt6 de Berg," c. 12; Fertile, 3, 341, 13; Houard, "Diet, de la 
 Cout. de Norm.," I, 160; Loysel, 62; the bastard who is acknowledged, that 
 is to say, recognized by his father, is noble; an Ordinance of Henry IV, March, 
 1600, 26, would demand letters of nobility. Thus usage for a long time re- 
 
 203
 
 § 169] THE FAMILY [Chap. I 
 
 at most to one-third of the inheritance.^ Of this old law, for 
 a long time, privileges for the bastards of princes and nobles 
 remained.^ (II) Children horn from a mother who was not noble? 
 They were looked upon as dependent servants, as was their 
 mother.'* Enfranchisement left them in a lower station. Neither 
 did they inherit from their father, because slaves cannot inherit, 
 nor from their mother, because the latter could not have any 
 heirs (whether she were a slave or a freed-woman, at least, ac- 
 cording to the Frankish law). Their own inheritance did not go 
 to their relatives (children or others), but to their "dominus" or to 
 their patron; and when this patron was the king, as when it was a 
 question of a "denarialis," it was the Treasurer who collected it. 
 This was not very far from the rules of the later law: 1st, bas- 
 tards do not inherit; 2d, the king or the lord inherits from bastards. 
 § 170. With the Christian ideas,^ there appeared a new con- 
 ception of illegitimacy. In the contemplation of the Church every 
 child born out of marriage ^ was illegitimate; ^ every union other 
 
 sisted the rule which connects nobility with legitimacy: Lagrhze, "Hist, du Dr. 
 d. dans les Pyrenees," 157; "Navarre," "fr." II, 195; "K. V. J.," IV, 3s., 59. 
 
 1 Cf. "Bai.," 14, 8, 2; "Sachsensp.," I, 51, 1; Ficker, II, 237. 
 
 2 French practice: bastards of the king are princes, nobles or lords, or 
 gentlemen. Illegitimate sons of Louis XIV, p. 142, II, Stryckius, "De Lib. 
 Natur. Regum," 1700; DeBelleval, "Les Batards de la Maison de France," 1901. 
 
 3 Kohne, op. cit.; Meynial, p. 38; Du Plessis, p. 293 (bibl.). 
 
 4 "Cod. Theod.," 14, 7, 1; "Wis.," "Cod. Theod.," 14, 1; Papien, 37, 
 5; "Cod. Theod.," 4, 6, 7; "L. Rib.," 58, 10; cf. rule: "servus trapit adse 
 francum" ("Epistolse conculcatorise"); "Cart. Senon.," 42; Papien, 37, 3. 
 The child of a free man and the slave of some one else belongs to the master 
 of the latter. This is the same in the Lombard law. — But the child born of 
 a permanent union ("Form. Sen.," 42) between the master and his own slave 
 was free as a general thing: "Cod. Dipl. Langob.," no. 6; "Roth.," 156; 
 "Liut.," 66; "Alam.," 18, 3; "Fris.," 6; "Bai.," 15, 9: the child of the 
 "ancilla" only has what his brothers give him "per misericordiam " out of 
 
 .the inheritance of his father (Paul, "Galat.," iv, 30); Greg. Tours, 5, 20. 
 
 ^ Their influence is already very strongly marked in the laws of the Lower 
 Empire, which limit the rights of inheritance of illegitimate children: "Cod. 
 Th6od.," IV, 6. During the classical period the illegitimate child, who had 
 no connection with his father, had with respect to his mother the same rights 
 as a legitimate child: Girard, p. 180. With Constantine forfeitures and in- 
 capacities suddenly made their appearance. 
 
 8 Terminology: In Rome: "liberi naturales," "spurii," "vulgo concepti." — 
 The most widespread term in Western Europe is "bastard" or, "filsde bast" 
 that is to say, a child begotten upon a pack-saddle, as they say in English, 
 "bankart," begotten upon a bench; in Germany, "Winkelkind" or "Hor- 
 nung," child of a corner; various terms calling up the idea of irregular birth, 
 of conception outside of the nuptial bed. "Wildflugel," wild bird (without 
 family), "Avoltres," children born of an adulteress. "Sacrileges," sons 
 of priests. "Manceres" ("Siete Part."), sons of a prostitute, "Bort," 
 "campi" ("Bord., A. C."); cf. G. Sand, "Frangois le Champi"; Grimm, 
 I, 655; "Hijo de Ganancia,^' "F. de Nav.," 4, 4; "Siete Part.," IV, 15, 1; 
 Du Cange, see "Bastardus." 
 
 ' In the thirteenth century exclusive jurisdiction of the ecclesiastical 
 
 204
 
 Topic ll] CONCERNING ILLEGITIMATE CHILDREN [§ 170 
 
 than marriage was a sin.^ It punished this iUicit intercourse upon 
 the person of the parents, and even upon that of the children, for 
 these latter came into the world with an original stain ("macula 
 bastardise "). It was especially severe as regarded children born 
 of an adulteress, born of an incestuous connection, or the sons of 
 priests ("ex damnato coitu").^ The dishonor, or even the infamy, 
 and its serious consequences, such as the incapacity to inherit,''' 
 affected them because of the single fact of the irregularity of their 
 birth.^ Every natural child, on principle, was thenceforth out of 
 the family, and, consequently, almost outside of the law. The 
 prince was supposed to protect them during the Franldsh period, 
 and the Feudal lord who succeeded him, who had charge of pro- 
 viding for the needs of abandoned children, often treated the 
 latter as his serfs, the more so as the mother herself was often of 
 servile condition.^ Where they did not go so far as this, these 
 children did not escape the law of mortmain,^ and they were not 
 allowed to inherit from their mother, excepting under some Cus- 
 toms in which the rule "no one is a bastard on his mother's side" 
 was followed.^ They were likened to aliens, who were also with- 
 
 courts: "Summa Norm.," c. 25; cf. Beaum.., 18, 3; 45, 16; C, 35, q. 7, 
 c. 1; C, 32, q. 4, c. 15. The register of the ecclesiastical judge of Cerisy 
 bears witness to the great number of bastards. It is the same in Navarre: 
 (Lagreze); Boutaric, I, 95; "Jost.," p. 56, 245. 
 
 1 Saint Thomas, "Summa Theol.," 3; "Supp.," q. 68. Traces of these 
 ideas especially in "Siete Part.," IV, 13 and 15. 
 
 2 "L. d. Droiz," no. 770; as contrasted with children born "ex soluto et 
 soluta," that is to say, of persons between whom marriage was possible (simple 
 natural children). "Nefarii," children of clericals. Atite, "Impediments to 
 Marriage." — Benecke, "Strafrechtl.," Lehre v. Ehebruch," 1884; "Siete 
 Part.," VII, 17 etseq.; Lusignoli, "Figli Adult, e Incest.," 1890; D'Aguesseau, 
 IV, 398 (ed. 1772). 
 
 3 "Sal.," 14, 16; "App. Marculf.," 52, 54; "Capit.," 7, 473; cf. Paul, 
 "Galat.," iv, 30; Gratian, "D.," 34; Freisen, § 74. 
 
 ^ "Bord., A. C," 177; out of hatred of the sin of fornication: "Jost.," 
 p. 30, 34. 
 
 * Their situation is similar to that of serfs and of aliens, without its being 
 possible to compare them absolutely and in every place. — "Cone. Tolede," 
 655, c. 10. Bastards of priests are the serfs of the Church of their fathers: 
 "Bourg., A. C," 19; "Bourb.," 194; "Bout.," I, 95. Rights of collecting 
 tribute, of reclaiming and of fees for the marriage of a vassal: Bacquet, "Dr. 
 d'Aubaine," I, 4; "Laon," 7; "Reims," 338; Louet, 2, 1, 1; Ragueau, 
 see " Bastard " ; Loysel,'i2; Mortmain: "Et. de Saint Louis," I, 101; "Olim," 
 
 I, 668, 846, 913; "Bord., A. C," 77; "Bourg., A. C," 198, 199,58 (Giraud, 
 
 II, 302); Vitry, "Etudes," I, p. 297; Brussel, p. 955; Stobbe, "D. Privatr.," 
 § 47, 3. (In certain localities, the same burdens as serfs.) 
 
 ^ According to Beaumanoir, the bastard does not have the station of his 
 father nor that of his mother: cf. 45, 76, 35; Desmares, 240. In the same 
 way in England, the bastard is a free man: Littleton, 188 ("filius nullius"); 
 Pollock and Maitland, II, 394 (William the Bastard?). 
 
 ^ "Sachsensp.,"_ I, 51; Bnut.^ I, 95; Chaisemartin, 66. In localities where 
 this maxim is received the illegitimate child forms a part of the family of his 
 
 205
 
 § 170] THE FAMILY [Chap. I 
 
 out lineage, who had no connection in the country.^ Among other 
 incapacities which affected them, and which sometimes persisted 
 for a long time, figured those of receiving ecclesiastical benefices,^ 
 of exercising public functions,^ of being judges, sometimes even 
 of being witnesses ^ or of acquiring fiefs.^ In the time of Beau- 
 manoiP' their admission into the hospitals is even doubtful,^ and 
 an echo, as it were, of this repulsion is found in the singular rules 
 of some German States, according to which, in the eighteenth 
 century, their bodies had to serve for purposes of anatomical dis- 
 section.'^ The Church only favored bastards in two ways: 1st, in 
 formulating the rule that every natural child ^ has a right to main- 
 tenance at the hands of his father and mother; 2d, in facihtating 
 
 mother; he is a stranger to his father (Franconia, Colmar, Cologne, etc.). 
 Netherlands and Belgium, see Koenigswarter, p. 43 (and bibl.). There was 
 some conflict, however, as to whether he inherited from his maternal relatives 
 as well as from his mother. In southern Holland a child born of an adul- 
 teress or of an incestuous union inherits from his mother: cf. De Mauroy, 
 "La Noblesse Maternelle," 1882; Riston, id., 1878; Picker, III, 437. 
 
 1 There is often a question as to " explectatio albenorum et bastardorum" : 
 "Olim"; Table, see "Bastardi." 
 
 2 Dig. X, "de fil., presbyt. c. ut. fil." ("Poitiers," 1078); "Trente," 
 sess., 25, c. 15; " Mem. du Clerge," 12, 697. Sometimes they are not admitted 
 to the doctor's degree: "Siete Part.," IV^ 15, 3. 
 
 3 "Jost.," 34, 36 (annulment of election); Pithou, "Lib. d'Eglise Gall.," 
 2L D'Aguesseau maintains that the point is in dispute (the Ordinances are 
 silent). In Rome the "spurii" themselves were capable of assuming public 
 functions. In Germany the Diet of the Empire must have enacted that no 
 inquiry should be made into the legaUty or illegaUty of a person's birth be- 
 fore he was admitted to a profession or trade: "Landr." (Prussian), II, 2, 
 662; "Cod. Autrich.," 1, 3, 161. 
 
 ^ Beaumanoir, 39, 22, 40, 37, 63, 2 (not admitted to the duel at law against 
 persons of a different station): " Jostice," pp. 30, 34, 74, 81, 177; Stobbe, § 47, 
 3; "Vetus Auctor de Benef.," 1, 4. In Germany, localities where the bastard 
 is "rechtlos": Heusler, I, 193; Koenigswarter, p. 48; "F. de Nav.," 4, 4, 11; 
 "Jost.," 177. 
 
 B "L. Feud.," 2, 26, 10; "Milan," 1216, 29; 1541, II, 62; Struve, "Jurispr. 
 Heroica," IV, 530; "Et. de Saint Louis," I, 89; Loysel, 60; "Bourg., A. C," 
 20, etc.; "Sachsensp. Landr.," Ill, 54, 3; Fertile, 3, 388, 10 (Candia). — 
 Lauriire says (Loysel, 60) that they were forbidden to acquire lands, fiefs, 
 copyholds or allodial holdings (one might argue the contrary from an enact- 
 ment of 1329, which gives this authority to two bastards). The "Summa 
 Norm.," 35, 6, recognizes them as having a right to acquire excepting through 
 inheritance. 
 
 ® 46, 4; he compares them to aliens. 
 
 ^ "Hesse," "Brunswick," Stobbe, § 47, 3. Formerly, in certain localities 
 they went so far as to refuse them religious burial. 
 
 8 Even one born of an adulterous or of an incestuous union: Dig. X, 4, 17, 
 10; 4, 7, 5; c/., however, "Jostice," p. 212, § 11, "in. f."; "Montpellier," 
 1205, 13; up to three years. Cf. canon law wdth regard to lawful filiation: 
 "Alais," 20: "L. d. Droiz.," 851; Boutaric, "Inst.," 1, 10, 12; D'Aguesseau, 
 34th "plaid"; Loysel, 1, 1, 41. Some Customs say that a bastard from the 
 time he is born is understood to be out of the care of his parents; but it is ad- 
 judged that whoever has a child must support it: Lehr, p. 122; D'Olive., 
 "Quest.," II, p. 160 (ed. 1638); Pantani, "De Alim.," 2, 9. 
 
 206
 
 Topic 11 ] CONCERNING ILLEGITIMATE CHILDREN [§172 
 
 their legitimation. In an indirect manner it came to their assist- 
 ance by obliging the seducer to marry the girl seduced or to give 
 her a marriage portion (action "due vel dota").^ 
 
 § 171. The Law of the Monarchic Period raised the condition 
 of bastards as it had improved that of serfs and aliens. The 
 majority of the old disabilities disappeared. The seigniorial 
 right of bastardy became transformed into a domanial right; ^ 
 in this way its abolition was facilitated. It, however, maintained 
 the principle that bastards had no family : " nee genus nee gentem 
 habent";^ an untrammeled mind like jNIontesquieu then justified 
 the inferiority of bastards by reason of the interest of society with 
 respect to marriage. The recognized right of natural children to 
 maintenance allowed them to seek out their father as well as 
 their mother. 
 
 § 172. The Condition of Bastards is summed up finally in a 
 few remnants of their old incapacities, and in the idea that they 
 have no family, not even a maternal family,^ and that as a conse- 
 quence they are not submitted to the paternal power, ^ but simply 
 to a guardianship, and that they do not inherit the title of nobility 
 of their father.® 1st. The inheritance of the bastard belongs to 
 
 1 "Exodus," xxii, 16; "Deuter.," xxii, 28; Dig. X, 16, 1; Britz, p. 557; 
 German common law. Idem. Custom of the South, for example, Lezat., 
 Art. 32; "Montcuq," 11. 
 
 ^ At least from the fourteenth century. — The bastards declare them- 
 selves to be king's men: cf. "Et. de Saint Louis," 2, 31; "Ohm," I, 495, 15; 
 "Olim," II, 456; "Ordinacio" of 1301, as to persons in mortmain, aliens 
 and bastards. The people of the king and the lord both claim them : Ragueau, 
 see "Bord., A. C," 77; "Gr. Gout.," 1, 3, p. 103; Isambert, I, 574; IV, 520; 
 VII, 156. Excepting the lords justices have a right to claim them, according 
 to general opinion, if the bastards are born within their territory, live there 
 and are trespassers upon it: Loysel, 65; Bout., I, 95, 103. — England: Royal 
 rights at every period. 
 
 _ ^ A principle contrary to the rules which continue to exist among the 
 high nobility of Germany : transmitting of the father's name, paternal power. 
 Apanage: Brunner, p. 10. 
 
 ^ He takes the name of whichever one of his parents with regard to whom 
 his filiation has been established, — of his father if he has been recognized by 
 both of them: Denisart, see "Quest. d'Etat." 
 
 * He is out of the care of his parents; he has no need of the consent of his 
 parents in order to marry: Loysel, 1, 1, 41; "Roisin," p. 83. At the age of 
 fifteen he can alienate his possessions, whereas the legitimate children were not 
 able to do this: (Laur.) "Bret., T. A. C.," 266, 267; "A. C.," 452; "N. G.," 
 478; "Jostice," p. 81: the bastard cannot call upon his mother to appear in 
 court. The custody of illegitimate children was entrusted b.y the courts 
 sometimes to their father, sometimes to their mother, and sometimes to third 
 persons: post, "Guardianship." 
 
 ® See feudal period. In fact, bastards of mere gentlemen are commoners, 
 those of the higher lords are nobles, but of an inferior degree: Guy Coquille, 
 on "Niv.," 17, 26; "Ord.," 1629, 197. The jjar placed upon their coat-of- 
 arms was not at first a mark of bastardy, but simply a means of distinguishing 
 the younger children from the head of the house. 
 
 207
 
 § 172] THE r.\MILY [Chap. I 
 
 the king/ and in exceptional cases to the lord ^ (right of bastard}^, 
 of the lord over the possessions of bastards, etc.), if he has no 
 heirs of his body.' 2d. The bastard cannot make a will (excepting 
 of five "sols" "pro remedio animse"); ^ a very logical rule under 
 the Old Regime, difficult to justify in the monarchic period. 
 From the thirteenth century it is limited; in the sixteenth, Du- 
 moulin establishes the fact that it has been almost everywhere 
 abandoned.^ 3d. Bastards do not inherit ("ab intestat.").^ 4th. 
 They cannot receive by gift or by will.^ At the same time, as they 
 have a right to maintenance,^ their parents are allowed to give them 
 
 1 "Et. de Saint Louis," I, 101; Desm., 239-242; "Bourg., A. C," 198; 
 "Bord., A. C," 77; Bacquet, I, 174; Pothier, IX, p. 46 (ed. Bug.). Obligation 
 for ttie king or the lords to take care of foundlings, but an obligation which 
 they endeavored to evade: "Arr. Pari." Paris, 1547, 1552; Edict of June, 
 1670; Regl. of July 21, 1670 (foundlings); Law of the 27th Frim., year V 
 (asylums). 
 
 2 By what right did the king or the lord take the inheritance of the bastard? 
 Because of the " mundium " which they formerly exercised over him, and which 
 took the place of protection for him by his family. Beaumanoir, 45, 35, 
 sees in this property without an owner. Glanville, 7, 16; Bout., I, 95 (p. 540) : 
 the lord does not pay the debts of the bastard. Beaumanoir, loc. cit., only 
 mentions the movables: "Bret., T. A. C," 270; "Et. de Saint Louis," I, 102, 
 103 (IV, 78); II, 31; Boutaric, "Inst.," 1, 10, 12. In the Netherlands the 
 right of bastardy ("havescot") was done away with at a very early time: 
 Koenigswarter, p. 46 (in. 1289, 1296, etc.). 
 
 ' Contra, "Schwabenspiegel," c. 47. Saint-Pol, 2, 27. 
 
 4 Loysel, 60; Bout., p. 543; "Laon, A. C," 6; "Bret.," 480 (children born 
 of an adulteress); "Bourb.," 184; "Clermont," 153; "Et. de Saint Louis," 
 I, 97: "The bastard can give to charity out of his movables": Desm., 24; 
 Glanville, 7, 16 (id.). 
 
 ^ Which was logical as soon as the bastard was no longer a serf: Loysel, 60; 
 Dumoulin on" Lille," 29; "Orl.," 301, 311; "Bourges," 7; "Bret.," 451; cf. 
 "Bord., A. C," 77; Beaumanoir, 45, 35; Desmares, 24; "Arr.," 1279, 1327; 
 Bynkershoeck, "Quaest. Jur. Prov.," 3, 11^ Koenigswarter, p. 47 (Brabant, 
 from 1247). — Various restrictions upon this power: movaoles only or a lim- 
 ited amount, "Anjou," 345; "Maine," 355; "Poitou," 399; "Hainaut," 
 85, etc.; born "ex soluto et soluta": "Bret.," 479, 480. 
 
 8 From their relatives, but they would inherit from their legitimate children : 
 "Sal.," 14, 16 (incestuous children); "T. A. C, Norm.," 75; "Summa," 24; 
 "Schwabenspiegel," 47; Beaum., 18, 19^ Desmares, 239; Bout., I, 95; Loysel, 
 1, 1, 45. — Customs which' give the illegitimate child the right to inherit from 
 his mother: "Nul n'est bastard de par sa mere." Flanders, Netherlands. 
 Saint-Omer, Tournay, etc. : Bout., 1, 95 ; Bouthors, " Cout. du Baill. d' Amiens," 
 p. 505; Van der Marck, "Inst. Jur. Civ. Reip. Omland.," 1761, c. II, § 149 
 ("Li^ge," "Louvain," etc., contra); Michelet, "Orig.," p. 67; Huber, IV, p. 532; 
 Naples: Carol, de Rosa, "Ad Cons. Neap.," 1677. — "Ass. de J6rus.," "C. 
 de B.," c. 60 (right to inherit from the father if the lawful relatives give their 
 consent). — Countries of written law (excepting Grenoble): no inheriting 
 from the mother: Bretonnier, on Henrys, 6, 3, 1; Salvaing, 56, 66. — The 
 German common law had adopted the system of the "Novelise" of Justinian. 
 Cf., however, Schulte, p. 517; Loysel, 440. From the fact that bastards do 
 not inherit it follows that they are not allowed to exercise the right of re- 
 purchasing by a person of the same lineage. 
 
 7 "Paris," 310; "Orl.," 310; "Norm.," 275; "Bret.," 450, etc. 
 
 8 Beaum., 18, 20: if there are no legitimate children the same disposable 
 quantity is given to the bastard as to a stranger; if there are any legitimate 
 
 208
 
 Topic ll] CONCERNING ILLEGITIMATE CHILDREN [§1^3 
 
 gratuities with some special object.^ These diverse rules are com- 
 mon to the countries of written law and countries of Customs.^ 
 
 § 173. Proof of Natural Filiation.^ — Natural filiation is es- 
 tablished: (a) by the voluntary recognition or admission of the 
 parents/ sometimes expressed,^ sometimes implied (in the case 
 of possession of status only) ; ^ (b) by establishing in court the 
 maternity or the paternity. The investigation of the paternity, 
 which is difficult to conceive of in the case of the very old law/ 
 was permitted in the interest of the child, of the girl mothers who 
 took care of it, and in Brittany ^ in the interest of the parish held 
 bound to provide for its needs,^ when the parents were not known: 
 
 children he only has a right to maintenance :" Alais, " 20 ;" Bret .," 475 ;" Schwab- 
 enspiegel"; "Ass. de J(5rus.," "C. de B.," 178: the father cannot give any- 
 thing to the bastard without the consent of the legitimate children or of his 
 own father and mother; if none of these are living he can give him every- 
 thing: "Summa Norm.," 35, 2 and 3; they do not have any legal share: 
 Bacquet, I, 159. 
 
 1 Sic, Dumoulin, on 13 "Lille" (special legacies, which are not excessive); 
 Loysel, 61: legacies of maintenance only, which still continued in the case of 
 children, born of an adulteress and those of an incestuous union. Juris- 
 prudence was still not very precise in the seventeenth century: Merlin, see 
 "Bastard," 4, 6; "Anjou," "Maine"; gifts "inter vivos" only; Poitou, 
 Brittany: in usufruct. As a general thing bastards are able to receive gifts 
 from third parties (contra, "Melun"): Bacquet, I, 150; Huber, IV, 538; 
 Bugnyon, "Lois Abrog.," I, 51. 
 
 2 Bacquet, I, 149. 
 
 3 Fournel, op. ciL; Allard, "Pr. de la Fil. hors M.," 1858; Heau, "Pa- 
 ternity et Fil.," 1868; Baret, "Preuve de la Fil. Nat.," 1872; Millet, "La 
 Seduction," 1876; Berge, "R. g6n. de Dr.," 1878, 417; Giraud, "R. Crit. 
 de L.," 1884, 590; Amiable, "Pr. de la Pat. hors M.," 1885; Rivet, "Rech. 
 de la Pat.," 1890; "R. Cath. des Inst.," I, 568; II, 69; XXII, 296; "Arch. 
 Giur.," 24, 162; 25, 385; "R^forme Soc," 1897, vol. 33 {Gigot); Giacobone, 
 "Dir. d. Donna Sedotta," 1891; Viollet, p. 478 (bibl.); Esmein, "Mariage," 
 II, 38. 
 
 * To a recognizing of illegitimate children let us liken declarations of preg- 
 nancy and confinement imposed upon girl-mothers by the Edict of February, 
 1566; it is necessary that there be witnesses to the confinement; thus the 
 proof of maternity resulted therefrom. 
 
 ^ Either at law or by an extrajudicial act (under private or authenticated 
 seal, certificate of baptism). A verbal admission would probably have suf- 
 ficed. As to admission by the mother, of. Beaum., 18, 3; "Olim," III, 1494 
 ("C. d'Alais"); "T. A. C, Norm.," 75. 
 
 ' Child born "ex concubina doma relenta": Bacquet, 1, 1, 2; Guyot, see 
 "Aliments." 
 
 ^ Ordeals, duel: "Roth.," 164; Grimm, p. 463. Ex. of De Gondovald, in 
 Koenigswarter, p. 63: "F. de Navarre," 4, 4, 1. But cf. as to this, "Rights 
 of the Father." — "Vaterschaftsklage" in Switzerland, at the end of the 
 fifteenth century: Huber, TV, 535. 
 
 ^ Poidlain du Pare, VIII, 166. 
 
 ^ English law: the parishes which have not many resources and upon 
 which the care of the poor was imposed under Elizabeth found themselves 
 compelled to have recourse to relatives: "R. h. Dr.," 12, 527; Koenigswarter, 
 p. 49; Lehrj p. 123; Glasson, V, 476. In France the monasteries and alms- 
 houses receive chilaren who are forsaken; thus the burden of the parishes is 
 not so heavy. 
 
 209
 
 § 173] THE FAJMILY [Cn.\P. I 
 
 " whoever has a child ought to support it." ^ How was this 
 responsibiHty of the father enforced?^ — (A) Simply on her own 
 statement, a woman or girl who was enceinte obtained from the 
 author of her pregnancy a provision for maintenance of the child and 
 the expenses of confinement for herself: "creditur virgine parturi- 
 enti, asserenti se prsegnantem esse ex aliquo." ^ The custom of 
 these declarations is perhaps derived from the proof by means of 
 the oath.^ The Ordinance of Februrary, 1556, with the object of 
 preventing concealment on the part of the father, provided for 
 declarations of pregnancy and confinement by the mother, but 
 without attaching to them any obligations for the father.^ — (B) 
 This allowance of the confinement expenses had an entirely 
 provisional character; no prejudice upon the question of the pa- 
 ternity resulted therefrom; ® the latter was the object of a dis- 
 tinct action, wherein the mother sought to establish relations ^ 
 (frequenting) between herself and the man whom she held respon- 
 sible for her pregnancy (cohabitation,^ indications of familiarity, 
 writings), and the latter, as his defense, showed her misconduct 
 ("exceptio plurium constupratorum").^ If the suit were won by 
 
 1 The erroneous ideas which were in vogue for a long time upon this point, 
 and which one can find set forth, for example, in Demolombe, have been re- 
 futed by Baret, op. cit. 
 
 - Loysel, 59; Dig. X, "deSpons.," 1. 
 
 3 Favre, "Cod.," 4, 14, 18. Favre requires an oath and does not apply the 
 rule to the woman who leads an evil life; nor does he admit of the declaration 
 as agaiiLst a married man. Fournel does not recognize these restrictions. 
 (But does not Favre look upon this maxim as, in the last analysis, determin- 
 ing the question of paternity?) This mere declaration was adhered to be- 
 cause the expenses of the confinement were thus not affected by delay. 
 
 * At Neufchatel, "Geniessverhor," or declaration made by the woman 
 during the pains of childbirth at a time when she is liable, as she believes, to 
 appear before God, and during which she risks her salvation in not speaking 
 the truth (cf. judgment of God). Example cited by D. La Tour, p. 59. 
 
 ^ The Ordinance was not obeyed very well, it would seem, although a few 
 judges made use of it as a pretext to have an examination made of girls who 
 were suspected of being enceinte: Decl. Feb. 25, 1788; Isamb., 13, 471; 
 20, 527; 27, 472. Recent Orders which make mention of them: "Cass.,'' 
 Dec. 1, 1869; "D.," 70, 1, 97; Planiol, "Dr. Civil," I, 717. Strictly speak- 
 ing, the father might not have been named ("Arr. de Rennes," March 28, 
 1637); but as a matter of fact, it seems that he always was: Duval, "Cahiers 
 de la Marche," 116; Bonnabelle, " ]Mogn6ville," p. 15 {cit. by Viollet, p. 469); 
 Fournel, see Table, "Forme de la Declar." 
 
 « Fournel, p. 104; Papon, "Rec. d'Arrets," 18, 1; 22, 13; "Arr^tde 1572." 
 Very old jurisprudence, says Fournel. 
 
 ^ Criticism of the contrary opinion in Baret, p. 39. — Switzerland, Eng- 
 land: proof of the paternity by means of the oath of the mother, Huber, IV, 
 536. 
 
 8 Bacquet. "Dr. de Batardise," I, 1, 2. 
 
 * Particular systems on the subject of proof, cf. Baret, p. 21: (a) the dec- 
 laration of the woman is a proof of paternity; (b) it is a semi-proof; (c) she 
 gives proof, but only as to a choice between several men who are convicted of 
 
 210
 
 Topic 11 ] CONCERNING ILLEGITIMATE CHILDREN [§ l'^4 
 
 the woman or the child, the latter had the right to demand the 
 maintenance which the law gave him from the father; ^ the girl 
 who was seduced was herself awarded damages on the theory 
 that marriage was reputed to have been promised her.^ 
 
 § 174. Revolutionary Law.^ — The practice which we have just 
 described is reputed to have given rise to the most scandalous 
 litigations and the most arbitrary judgments. In the preparatory 
 work for the Civil Code, Bigot-Preameneu sums up the criticisms 
 to which it had been subjected : ^ in this sage man's phrase " the 
 man whose hair had grown gray in the exercise of all the virtues 
 was not safe from the attacks of a brazen woman." ^ The Revo- 
 lution put an end to this extortion by only admitting as proof 
 of natural paternity voluntary recognition (or the possession of 
 status); all judicial investigation was forbidden (Law of the 
 11th Brumaire, year 11).^ But by way of a sort of set-off it 
 
 having been with her; (d) conviction of all the men who went with the woman 
 at the time of the conception: Poullain du Pare. "Principes du Dr. Fr. "; 
 VIII, 110, 166; " Anc," Denisart, see "Grossesse ; Huber, IV, 536. Add to 
 this, opinion according to wliich a decision is arrived at based upon physical 
 resemblance. For a long time the maid-servant who had become enceinte 
 in the house of her master was reputed to be pregnant owing to Mm; but the 
 jurisprudence of the eighteenth century abandons this presumption: Fournel, 
 p. 131; Guyot, see "Fornication." 
 
 ^ Coquille, "Quest.," 29; Denisart, see "Batard," 30 et seq.: maintenance 
 and education, a simple marriage portion, apprenticeship in some trade: 
 Chardon, "Tr. des Trois Puissances," no. 12; "Arr.," June 18, 1607, com- 
 pelling a rich burgher to have a higher-class trade taught to his illegitimate 
 sons. 
 
 2 Fournel, p. 5. — Otherwise, the common opinion, which sees in seduction 
 a tort. — Historically, this last opinion is more correct, for the action based 
 upon a declaration of paternity that can be brought by the father or the 
 guardian of the girl seems like a transformation of the right of the parents 
 against the abductor of their daughter (Frankish period). But Fournel 
 gives expression to the modern point of view {cj. existing jurisprudence, 
 which gives damages to girls who are seduced). As to existing theories 
 (tort, parentage), cJ. Dupre La Tour, p. 47. 
 
 3 Robiquet, "La R6vol. Fr.," July 14, 1891; Sagnac, pp. 317, 357. 
 
 * Celebrated speech of Servan in 1770 (at Grenoble). Let us notice, how- 
 ever, that neither Fournel nor the writers of the eighteenth century make 
 any allusion to these abuses. There are more illegitimate children, but 
 fewer abortions and cases of infanticide in countries where to-day an in- 
 vestigation of paternity is admitted. 
 
 * Feiiet, X, 154, 71; cf. L. Faucher's estimate as regards England: Glassoji, 
 VI, 291 (Laws of 1835, 1872, 1875). 
 
 8 Arts. 1, 8, 10, 11, 12, 13. See in Baret, op. cit., p. 55 et seq., an analysis of 
 this confused legislation and of the jurisprudence upon this point. — (A) In 
 order to obtain maintenance the illegitimate child can prove his filiation by 
 all the means which were formerly made use of, exceptijig an investigation of 
 paternity. The possession of status is admitted only if the parents are dead. 
 — (B) Same rule for the claim of rights of inheritance if the inheritance opened 
 after the 14th of July, 1789, and before the 12th Brumaire, year II; if it 
 opened after this date, then recourse is had to the Civil Code. The retroac- 
 tiveness of the Law of Brumaire, year II, was abolished by the Decree of the 
 
 211
 
 § 174] THE FAMILY [Chap. I 
 
 ameliorated the condition of natural children by giving them 
 the same rights of inheritance as legitimate children had.^ This 
 was to go in an exactly opposite direction to that of the Old Re- 
 gime, under which natural children could easily find their fathers, 
 'but gained little thereby, because they had no rights of inherit- 
 ance. The Revolution gave them these rights,^ only it imposed 
 upon their attainment conditions which are so difficult of fulfil- 
 ment that very few of them succeeded in benefiting by the re- 
 form. The forfeitures which formerly affected natural children 
 were no longer considered as a punishment inflicted on the chil- 
 dren because of their parents' fault. In the eighteenth century 
 they were justified by reasons of social interest; thus, the Advo- 
 cate-General Segnier said in 1779: "It was recognized that the 
 strongest brake on illicit unions was to punish the children who 
 were the fruit of them." These were utilitarian considerations, 
 which the legislator of the time of the Revolution did not take 
 into account, because he clung by preference to the theories of 
 natural right and to the humanitarian ideas so much in vogue at 
 that time; legitimacy of birth seemed to confer privileges as little 
 justified as those of the nobility; he wanted to abolish them, 
 and to give the natural child of whom religious and aristocratic 
 prejudices had made a sort of pariah of the family the same rights 
 as his brothers; as he was not guilty of any wrong, it seemed in- 
 iquitous to punish him. On the other hand, motives of policy pre- 
 vailed at the time of the drawing up of the Civil Code; natural 
 children were sacrificed with a view to the fostering of marriage: 
 the investigation of paternity was prohibited, as it had been under 
 the Revolution (Art. 340) ; ^ at the same time, the rights of nat- 
 ural children were almost as limited as they were in the old juris- 
 
 3d Vend., year IV, afterwards by the Law of the 15th Therm., year IV. 
 Cf. Decree of the 26th Vend., year IV. There was no distinction made between 
 ordinary illegitimate children and those born of an adulteress or of an in- 
 cestuous union. 
 
 1 D., June 4, 1793; Nov. 2d, 1793 (or 12 Brum., year II); Sirey, "Cod. 
 Civ. Interm. " ; Table, see "Enfant." Not only with regard to the possessions 
 of their father and mother, but also with regard to those of collaterals. As 
 to children born of an adulteress or an incestuous union, they were also recog- 
 nized as having a right of inheritance, but a lesser one; they had one-third 
 of the share of a legitimate child: Civil Code, 757. — Analogous rules in the 
 legislation of Joseph II: Koenigswarter, p. 62. 
 
 2 Cambacerbs: "Individuals cannot be victims of the faults of their father. 
 Disinheritance is the penalty for great crimes; has the child who is bom 
 committed any? And if marriage is a valuable institution, its sway can- 
 not be extended to include the destruction of man and of the rights of 
 citizens." 
 
 3 It was the same in the Projected Code of the Convention, I, 4, 12. 
 
 212
 
 Topic ll] CONCERNING ILLEGITIMATE CHILDREN [§ 175 
 
 prudence. This rather inhuman combination, wherein only the 
 harshness of the intervening law was given a place, is not the last 
 word in legislation. For more than thirty years sharp criticisms 
 have been directed against it,^ and the system of the Civil Code is 
 far from having pervaded the majority of foreign legislations; 
 these latter have remained ordinarily at the former rule, which 
 permitted the investigation of the paternity.^ 
 
 § 175. Legitimation, which was long unknown to the Roman 
 law, owed its origin to Christian ideas; from the day when con- 
 cubinage was looked upon as a wrong, means of amending it 
 in the interests of the children ^ were devised. Constantine and 
 his successors created of it a privilege which was only applicable 
 to "liberi naturales" (issue of concubinage). These provisions 
 passed into the canon law, which extended the Roman institution 
 to all legitimate children, with the exception of those whose 
 parents could not have married at the time of the conception * 
 (born of an incestuous ^ or adulterous ® union). Although it ad- 
 mitted two sorts of legitimation, these virtually were only one, 
 that is, legitimation by means of subsequent marriage; this was 
 still accomplished in the thirteenth century in conformity with a 
 rite of adoption, or one analogous to those of adoption, by the 
 placing of the children under the "pallium" with which the spouses 
 are covered at the time of the celebration of marriage according 
 to the Gallican liturgy.^ For a long time ignored in France, as in 
 
 1 Acollas, "L'Enfant ne hors Mar.," 1865; "Le Dr. de I'Enfant," 1885; 
 Jacquier, "These," 1873; Lacointa, "Acad. L6g. Toul.," 23, 316; Thuillie, 
 "La Femme," 1885. 
 
 2 Dupre la Tour, "Th^se," 1900; De la Grasserie, "Rech. de la Pater. 
 Natur.," 1895. In the existing law it is possible to distinguish between two 
 principal systems, — the system of paternity and the system of maternity, — 
 not counting mixed systems and the variations of the two former : Starcke, 
 "La Famille," p. 249. 
 
 * Girard, "Manuel," p. 180. — As to legitimization by will, c/. post, "Brachy- 
 logus," "Appointment of an Heir;" "Nov.," 74, 117. The "Siete Part.," 
 IV, 15, admit of several other methods of legitimization: an offering at the 
 court of the king, a will, a charter and marriage. 
 
 * Cf. Freisen, § 74 and authors cited. 
 
 ' Unless the impediments due to relationship could be raised with the 
 assistance of dispensations. See also Freisen, ibid. 
 
 ' Beaurnanoir, 18, 5. 
 
 ^ Cf. the Roman "Flammeum" (from which are derived "nubere," "nup- 
 tia;"). Reply of Nicholas I to the Bulgarians: Ahhe Duchesne, "Orig. du 
 Culte," p. 413; Beaurnanoir, 18, 22; Du Cange, see "Pallium"; "Aoste," I, 
 20, 31. Loysel, .58, again mentions it. From which the name "mantellati" 
 given to these children: Pollock and M., II, 395" Schroeder, 694. — "Amoil- 
 ler6," "Aleaut^," meaning legitimized ("Jostice, p. 36, 209, 212); Schwarz, 
 "De Antiquo Ritu Liberos Legitim. per Pallium," 1747; Michelct, "Orig.," 
 p. 10; Grimm, p. 403 (symbols of the shoe, the cloak, etc.). — CJ. as to Bar- 
 
 213
 
 § 175] THE FAMILY [Chap. I 
 
 many other countries, perhaps because the Theodosian Code 
 made no mention of it/ perhaps because it was opposed to the 
 spirit of Barbarian law as to unions of a lower order, legitimation 
 gradually came into general use, thanks to the jurisprudence of 
 the ecclesiastical tribunals; the Renaissance of Roman law was 
 not a stranger to it; a Decretal of Alexander III, 1172-80, "tanta 
 vis est matrimonii," ^ made it Christian common law. According 
 to the canon legislation, which was not applied without resist- 
 ance,^ legitimation ought to produce the very fullest effects; ^ it 
 
 barian law: among the Lombards, declaration made to the "Thinx" with 
 the consent of the legitimate children: "Roth.," 155; "Ass. de Jerus.," 
 "C. de B.," 178; Loysel, 63. 
 
 1 Loysel, 58, and Laitriere's note ; "L. Rom. Wis.," 4, 6. Cf. "Roth.," 155. 
 — The "Conist. de Constantin," "Cod. Just.," 5, 27, 5, is contemplated in 
 Julian, "Epit.," 32, 3; "Petrus," I, 41; "Brachyl.," 1, 9, 14 (legitimization 
 by marriage, by rescript of the prince, by the fact that one has been appointed 
 "ut legitimus heres " : Julian, 82, 10; and, finally, by the fact that cohabita- 
 tion with the mother lasted until her death: Julian, 82, 12). Yves de Chartres, 
 "Dec," 31, 32 {Fournier, "R.Q.H.," 1898, p. 46. The "Schwabenspiegel," 
 147, 378, admits of it contrary to the general practice in Germany, where it 
 only prevailed after the sixteenth century; Koenigsioarter, p. 42. — England: 
 an adoption, deed of the king, and, finally, to the exclusion of every other 
 means, act of Parhament: Braclon, I, 4: no legitimization by subsequent mar- 
 riage: Gla7iville,7,4:5; " Fleta," 39, 4; Statute of Merton, 1253, c. 9; Marnier, 
 "Etabl. de Norm.," p. 174; Pollock and Maitland, II, 395; Blackstone, I, 16. 
 Subsequent marriage does not produce tins effect with regard to children 
 born previously, excepting in the case of the eldest bastard and the younger 
 child of a married woman (the illegitimate child who is the eldest possesses all 
 his life the paternal inheritance without his younger brother having any 
 claim upon it, the "fihus mulieratus" or one born of a married woman; after 
 his death the latter has no authority to act). 
 
 2 Dig X, 17, "Qui Filii sint Leg.," 6 ("episcopo Exoniensi"). Cf. ibid., 1; 
 "Jostice," p. 209; "L. d. Droiz," I, no. 22. Gratian does not seem to have 
 foreseen the question. 
 
 3 Cf. Loysel, 63; Du Plessis, p. 530; "L. Feud.," II, 26, 10: exclusion from 
 inheriting fiefs. "Lib. Consuet. Imp. Rom.," c. 105. At Ferrara they inlierit 
 only with the consent of the agnates. At Rome they take but one fourth 
 of that which they would have taken had they been legitimate: "Stat.," 1, 
 84. — In England the barons opposed the clericals who wished to introduce 
 legitimization by subsequent marriage: "Nolumus leges Angliae mutari," 
 they say (Statute of Merton, 1253, 9; Bracton, "Note Book," I, 104); the 
 true reason of their opposition was owing to the injury which they would 
 sustain from the decrease of the number of bastards; in fact, "the more 
 bastards, the more escheats." Grosseteste affirmed that the old English 
 custom was in accord with the canon law; Pollock and Maitland, II, 395; 
 Glasson, III, 185. 
 
 ^ However, we must not go so far, as some have wished to do, as to give 
 marriage a retroactive effect that goes back to the day of the conception (or 
 even to the day of the birth) ; the fiction of a sort of secret marriage which is 
 supposed to have taken place at that time is a contradiction of the solution 
 set forth by Beaumanoir, 18, 24, with respect to the right of primogeniture; 
 the children born of a marriage previous to the one which legitimizes the 
 illegitimate child have the right of primogeniture: Bout., I, 95; Le Brun, 
 "Success," I, 500; Argou, I, 80; D'Agibesseau, 7, 438; Boutaric, "Inst.," 
 I, 10, 13. 
 
 214
 
 Topic ll] CONCERNING ILLEGITEMATE CHILDREN [§ 176 
 
 ensued as of right by virtue of marriage, and even in spite of the 
 parents and in spite of the children/ provided that the fihation 
 was certain.^ 
 
 § 176. Legitimation by Rescript from the Prince (letters from 
 the king) ^ had less effect than the preceding (legitimation "ad 
 honorem," but not "ad successionem") ^ and was scarcely ap- 
 plied excepting in cases where marriage was not possible.^ Legiti- 
 
 ^ Dig. X, 4, 17, 6. But no previous recognition was admitted, as is the 
 case in the Civil Code, 331. According to the Declaration of 1639, 6, and the 
 Edict of 1697, 8, marriage "in extremis" did not legitimize. 
 
 2 "Brautkinder" (children of betrothed persons) in Switzerland : they 
 are ordinarily legitimized by subsequent marriage; if marriage is not possible, 
 for example, as a consequence of the death of one of the betrothed, they are 
 treated as being legitimate: Huber, IV, 538. 
 
 ^ The pope, the emperor, the king and the lords competed with one 
 another for the right to legitimize by letters. PhiUp Augustus had the pope 
 (Innocent III, 1201) legitimize the illegitimate children which he had had 
 by Agnes de Merami {D. Bouquet, 19, 406). Louis XIV himself legitimized 
 his own children: "Gr. Cout.," 1, 3 (p. 95); "Jostice," p. 36; "Ord.," XV, 
 p. 28; Isanibert, Table, see "Legitimation"; Bacquet, I, 190; Viollet, p. 475, 
 cites Chaillot, "Priv. du Clerge," 1866, p. 32 (sons of priests). After the 
 end of the thirteenth century letters of legitimization had to be registered 
 with Parliament and at the Court of Counts, wliich allowed the king to cancel 
 the effect of every legitimization which took place outside of the domains of 
 the lords. The Ordinances of 1372, 1498 and 1687 sanctioned this exclusive 
 right of the king (Isambert, see 372); Loysel, 62. As a very great excep- 
 tion, the right of legitimizing was granted to the Due de Berry in his capacity 
 of Lieutenant of the King, 1380. The canonists maintained that the pope 
 legitimized "ad spiritualia" and, as a consequence, "ad temporalia": Hos- 
 tiensis, p. 319; Decretal "Per Venerabilem" (Dig. X, 4, 17, 13); D. Bouquet, 
 19, 406; Pithou, "Lib. de I'Eglise Gall.," 21: the pope cannot legitimize so 
 as to make one capable of inheriting, but he can do so in order to enable one 
 to take a benefice. As to previous jurisprudence (ParUament verifying the 
 bulls of the legates with reservations on the subject of the right of legituuiz- 
 ing, fifteenth and sixteenth centuries) cf. Viollet, p. 476; Isambert, X, 388; 
 Beaumanoir, 18, 22; Ficker, II, § 256. — The emperors settled in their re- 
 scripts the rights of persons legitimized: Schilter, "Jus Feud. Alleman.," c. 
 40, § 4. After the time of Charles VI, legitimization by the Counts Palatine 
 takes place. Also we find legitimization by rescript of the doctors by virtue 
 of an imperial delegation of authority. — Flemish law: Britz, etc., "Siete 
 Part.," IV, 15, 4. 
 
 * Loysel, 63 (bibl.); "Schwabenspiegel," 377; Pasquier, "Inst.," p. 89; 
 Ragueau, see "Lettres." Sons born of an incestuous or adulterous union 
 legitimized by letters of the prince became capable of receiving permanent 
 gifts from their fathers and mothers (and not merely gifts by way of mainte- 
 nance) . The right of inheritance belonged even to persons who had been legiti- 
 mized in this way, in case there were an express clause and the consent of the 
 near relatives were given (which was something that was not customary, 
 say Pothier and Boutaric, "In.st.," 1, 10, 13). They might receive univer- 
 sal legacies. The name and the title of the father were transmitted to 
 them: "Schwabenspiegel," 47. They had public rights and a right to 
 hold office. — Adoption of illegitimate children admitted in theory, but not 
 applied. — Legitimization before notary at Bologna and Naples: Pertile, 
 
 * The Ordinances of Henry IV compelled the bastards of nobles to furnish 
 themselves with letters of nobility in order to retain the names and titles of 
 their fathers (March, 1600, Art. 26): Isambert, Table, see "Noblesse." These 
 
 215
 
 § 176] THE FAMILY [Chap. I 
 
 mation by means of subsequent marriage was maintained by 
 means of custom under the Revolution; ^ it was otherwise as 
 regards legitimation by rescript of the prince, which the change 
 in constitution impliedly abolished, and which the Civil Code has 
 not re-enacted.^ 
 
 letters had to be based upon some very great regard for their merits or those 
 of their father. 
 
 1 Merlin, "Rep.," 17, 15 (Act of the 11th Flor., year II). 
 
 2 Contra, Itahan Civil Code, 198. 
 
 216
 
 Topic 12] ADOPTION [§ 177 
 
 Topic 12. Adoption 
 
 §§ 177-179. Adoption. I § 181. Affiliation, or Foster-Brother- 
 
 § 180. Fraternization. | hood. 
 
 § 177. Adoption is an archaic institution serving the purpose 
 of gathering recruits for the family; he who has no children cre- 
 ates for himself an artificial posterity by adopting the children of 
 another; ancestor worship makes it a religious duty for him; he 
 may be driven to it by the interests of his own family, or by his 
 own personal interests. The Germanic law recognizes this prac- 
 tice, as did the majority of the primitive legislations. It was car- 
 ried out in various ways: The person adopting armed the person 
 adopted,^ cut his hair and his beard, or was satisfied with touch- 
 ing them,^ as a father would have done to his son at the time of 
 his coming of age; the person adopting made the person adopted 
 sit down on his seat, took him upon his knees,^ sometimes clothed 
 him with his own garments, with the object of giving a rough imi- 
 tation of birth.^ Under the influence of the Roman practice, 
 adoption also took place "per cartam";^ the formulae assumed 
 that the person adopting had no posterity (" peccatis meis facien- 
 tibus orbatus sum a filiis"); he asks the adopted person to clothe 
 him, to look after his affairs; ^ in return he promises him all his 
 inheritance. 
 
 1 Ostrogoths, Cassiod., "Var.," 4, 2 (Theodoric adopts the king of the 
 Herules "per arma"); 8, 1 and 9; P. Diac, I, 23, 24. Lombards: adoption 
 by "Gairethinx": Pappenheim, "Launegild," p. 65; Franks: Gontran and 
 Childebert: Greg. Tours, 5, 17; 7, 33; Aimoin, 3, 68. 
 
 2 Lombards: P. Diac, 6, 53; 4, 30 (the patrician Gregory and the son of 
 the Due de Frioul): Aimoin, 1, 20. 
 
 3 Scandinavians: Gulath., 58; Grimm, p. 155. The adopted and the 
 adopter put on the same shoe. 
 
 * Grimm, p. 463; Michelet, "Orig.," p. 10. Juno pretends to be pregnant 
 from Hercules; same custom among the barbarians, says Diodorus of 
 Sicily. At the time of the First Crusade the Prince of Edesse and his wife 
 in order to adopt Baudoin passed him under their shirts. Aragon, id. Pidal, 
 "Infantes de Lara," 1896, p. 30, no. 3. Adoption and legitimation under 
 the cloak are frequent. As to the effects of these barbarian adoptions, cf. 
 Pertile, III, 394. 
 
 * Roziere, "Form.," 115 et seq.; Marculfe, 2, 13; Lindenbrog, 58, 59; 
 Du Cange, see "Adoptio." 
 
 ^ Our old authors maintain that he who adopted amortized himself, that 
 is to say, he gave his property on condition of being supported until his death : 
 Ragueau, see "Admortir," "Reims," 237; R. Schmidt, "Affatomie," p. 32, 
 seems to us to have clearly established that the appointment of an heir did 
 
 217
 
 § 178] THE FAMILY [Chap. I 
 
 § 178. The Same. — Having at an early period fallen into dis- 
 use/ which came about owing to the evolution of the family/ 
 adoption only appeared to our old jurisconsults as a Roman 
 institution which had been rejected by the Customary law/ It 
 was not even in use in countries of written law.^ Sometimes, 
 however, but in a very exceptional manner, adoption took place 
 by means of letters of the prince; ^ in this case it did not confer 
 the paternal power, did not even make a lawful heir of the person 
 adopted, but only an heir by reason of a universal gift or universal 
 legacy/ This sort of adoption is similar to the appointment of a 
 person charged with bearing the name and the arms of the donor 
 or the testator/ 
 
 § 179. The Same. — Under the Revolution adoption entered 
 into the law without any necessity of its doing so, by being called 
 up from classical antiquity. The Legislative Assembly decreed 
 that its committee on legislation should include it in its general 
 scheme of civil laws. The Convention set the example for the 
 
 not carry with it adoption. To the contrary, see Glasson and the majority 
 of the authors. 
 
 1 "Arbre des Batailles," c. CX., "Lille," 16, 4: Adoption does not take 
 place. CJ. spiritual paternity (godfather and godmother): effects according 
 to the canon law; Du Cange, see "Adoptari," "Filiolus," "Patrinus." — 
 "Atalikat" in the Caucasus: Kovalewsky, "Cout. Contemp.," p. 190. Cf. 
 feudal customs (the young gentleman becomes a page or an equerry in the 
 household of liis father's lord): L. Gautier, "Chevalerie." 
 
 2 Or, rather, the disintegration of the family. And, as the families of 
 the princes escaped this law, adoption was preserved in them or else reap- 
 peared in them all the more easily: e. g. in 939, 1277, and 1282. From the 
 Frankish period on the formula show us the hostility felt by the family 
 against adopted children; the latter, in fact, are enemies who deprive them of 
 the family possessions. 
 
 ^ Bucherellus, "Inst.," 1, 11 (and authors cited); Dumoulin, on "Paris," 
 2, 2, 10; Chopin, on "Anjou," 3, 3, 2; Launay, "Inst.," 2, 14; Boutaric, 
 "Inst.," 1, 11; Serres, 1, 11; Merlin, see Ferricre. Adoption of orphans by 
 the directors of the hospitals of Lyons: "L. Pat.," Nov., 1672; Henrys, 6, 5, 
 35. The "nutritor" of the barbarian period who takes a foundling can treat 
 him like his own son; he then becomes a sort of adoptive father: cf. "Siete 
 Part.," IV, 20. 
 
 * Rare in Italy: Fertile, III, 396; Salvioli, § 205. Where it does take 
 place ("apud judices curiae," before notaries), it has only incomplete re- 
 sults; thus the adopted son does not succeed to fiefs and personal belongings. 
 It is even a question as to whether he acquires the title of his adopted father. 
 Spain: the "Siete Part.," IV, 16, include a title on the "Porfijamiento," "F. 
 Real," IV, 22. 
 
 * J. Faher, "Inst.," "De Adopt." (Rights of the pope and the emperor). 
 
 ^ The adopted son therefore cannot exercise the right of repurchasing by 
 a person of the same lineage. 
 
 7 "D., ad Sc. Treb.," 63, 18; "de don.," 19; "de condit.," 108; Ferriere, 
 see "Institution." Necessity of letters patent from the king, if the person 
 appointed gives up his name to take that of the donor. He owes in every 
 case the transfer tax, which is not paid in the case of an inheritance in the 
 direct line: Lebrun, "Succ," 8, 3; Bouvot, I, 111. 
 
 218
 
 Topic 12] ADOPTION [§ 181 
 
 details; the 27th of January, 1793, it adopted in the name of the 
 Fatherland the daughter of iMichel Lepelletier. If this was merely 
 a manifestation of policy, without any civil effects, it surely 
 showed at least the state of mind. Private adoption was thence- 
 forth practised without having been legally regulated ; the require- 
 ments were limited to the drawing up of an authenticated deed. 
 By this means alone, without any exact conditions, the person 
 adopted acquired the rights of a legitimate son. Adoption was 
 irrevocable, excepting for the right of the minor to renounce it.^ 
 
 § 180. Fraternization.^ — During the barbarian period and in 
 the early stages of Feudalism, the usage of sealing friendship by 
 the aid of oaths and solemnities (like the mingling of blood), which 
 transformed it into a fictitious brotherhood, carrying with it 
 strict duties of mutual protection, and even a true joint ownership 
 of possessions, is widespread. Thence arose the brotherhood of 
 arms, of knighthood, which, differing from the preceding, did not 
 create any tie of artificial relationship.^ 
 
 § 181. Affiliation,^ or Foster-Brotherhood^ ("unio" or "parifi- 
 catio prolium").^ In the case of a second marriage the stipula- 
 tion is made in the marriage contract that the children of the first 
 marriage and those of the second marriage shall have the right to 
 inherit from the two spouses, and to their share in the joint prop- 
 erty. This practice had the advantage of keeping the family in- 
 heritance "in statu quo"; it dispensed with partition, which might 
 cause a great injury to the "parens binubus" wdthout profiting 
 the children. In this there was seen a sort of adoption "^ created 
 
 1 Decree of the 16th Frim., year III; 25th Germ., year XI, cf. Sagnac, p. 315 
 (projected Civil Code). In the Civil Code, Art. 343 et seq., we find adop- 
 tion and official guardianship. 
 
 2 Du Cange, "Fr^res d'Armes," 1668; Kohler, "Z. R. W.," 1884 ("Kunstl. 
 Verwandtschaft"); Inama-Sternegg, "Deutsche Wirthschaftsg.," I. 261; Ta- 
 massia, "L'Affratellamento," 1886; Gauticr, "Chevalerie," pnssitn; Finch., 
 "Orig. de I'Anc. France," II, 471 (1893); Post, "Grundriss d. Ethnol. Jurisp.," 
 I, 93; Salvioli, § 205; "Consortes et ColUberti," p. 9; Melusine, III, 402; 
 IV, 118, 2,59; V, 36, 194, 284; VII, 4, 1.34, 1.56. 
 
 ^ Communities among brothers (Italy) do not seem to have any connec- 
 tion with the fraternization of barbarian times: Lattes, p. 267, 
 
 * Du Cange, see liagueau. 
 
 ^ Du Cange, see " Afifrayramentum " (associations of all property); Saint- 
 onge, 1; iSaint-Amand in Flanders, 26. 
 
 " "Einkindschaft" of the Germans; Watstein, "De Unione ProHum," 
 1709; Gerher, id., 1844; flin^eZynann, "Einkindschaft," 1825; Mittelstein, id., 
 1886; Mayer, id., 1900; Schroeder, p. 739; Ficker, "Erbenf.," Ill, 150; Heusler, 
 § 164. — Examples in Loersch and Schroeder, 2d ed., nos. 178, 223, 225, 229. 
 Thirteenth century: Act of 1275 (Austria), 1296, etc. 
 
 ' The one who becomes an associate has no rights over the person or the 
 possession of the one who makes him an associate: Lebrun, "Succ," 3, 3. 
 
 219
 
 § 181] THE FAMILY [Chap. I 
 
 with the view to equaUty between the children; but foster-brother- 
 hood does not change the civil condition of the children, and in 
 establishing it so little account was taken of equality that the 
 most ancient documents of this sort contain clauses dealing with 
 the reference legacy. 
 
 220
 
 Topic 13] CONDITION OF WOMEN [§ 182 
 
 Topic 13. Condition of Women 
 
 § 182. In the Old Germanic Law. 
 I 183. In Public Law. 
 § 184. Changes in the Station of 
 Women. 
 
 § 185. German and ItaUan Law. 
 § 186. In France. 
 
 §§ 187, 188. Velleianum Decree of the 
 Senate. 
 
 § 182. In the Old Germanic Law ^ the constitution of the 
 family resulted in placing the woman under a perpetual guardian- 
 ship : " Nulli mulieri liceat in suae potestatis arbitrio, id est selb- 
 mundia vivere, nisi semper sub potestate viri aut potestate curtis 
 regiae debeat permanere." This remarkable formula of the Edict 
 of Rothar., 205, expresses the primitive condition of the Germanic 
 woman. ^ As a daughter she found herself under the authority of 
 her father, or, if she had no father, under that of his nearest male 
 descendant; ^ as a married woman, under the authority of her 
 husband ; ^ as a widow, under the power of her own children or 
 the relatives of her husband,^ when she did not leave the family 
 
 1 An opinion contrary to the one which we set forth in the text gives the 
 Germanic woman a true independence, at least during primitive times, either 
 because it was necessary to see in this a survival of the matriarchate or because 
 the roughness of customs made of her almost a man. Cf. post, "Power of 
 the Husband," "Inheritance." This view is like the one, formerly very 
 widespread, which made the Germanic woman the model of all the virtues, 
 the prototype of the Christian woman. On this question cf. "Acad. L6g. 
 Toulouse," 1900 ("Le Mariage par Achat"); Meynial, Lefebvre, op. cit.; 
 Tacitus, "Germ.," 8: "inesse feminis aliquid sanctum"; allusion to the 
 magical power attributed to Velleda, etc. 
 
 2 Cf. "L. Saxon.," 43 et seq., which organizes the guardianship of widows 
 and of daughters for the benefit of relatives ("proximus paterni generis"), 
 without making any allusion to the guardianship of the State; the latter is, 
 in fact, of later date: "Thuring.," 47; "Fris.," 9, 11; "Alam.," 54; "Bai.," 
 8, 8; "Burg.," 12, 36; "Wis.," 3, 3, and 3, 4, 2; id. in Scandinavian law; 
 Dareste, "Etudes," p. 287 et seq. Heusler, I, 118, and II, 484, interprets the 
 Lombard Edict in this sense, that the woman has the power of claiming the 
 royal "mundium"; she is not compelled to do so, she has no official guardian, 
 but she cannot alienate or give her movables or her immovables without the 
 assistance of a guardian. Even admitting this explanation, which does not 
 agree very well with the texts, we can eventually recognize the fact that it is 
 almost impossible for the woman to dispense with a guardian: "Roth.," 388. 
 
 3 For example, of her brothers: "Wis.," 1, 8, 9; "Roth.," 160, etc. 
 
 * Unless the husband shall have conferred the "mundium" upon others, 
 examples of which are found in the Italian deeds of the eleventh century. 
 Certain statutes confer this power upon the husband. We even find a case 
 of giving the "mundium" to the bearer (of the deed of grant) in 1036: Fertile, 
 III, 235; "Roth.," 205, 182. Cf. "puolla in verbo regis," "Rib.," 35, 3. 
 Marriages "jussione regia," p. 1037; D. Bouquet, III, 306; Viollet, 262; 
 Glasson, III, 19. 
 
 * Even minors: "Liut.," 101; "Antich. Ital.," IV, 785 (in 916); Simonnet, 
 p. 133. 
 
 221
 
 § 182] THE F.UIILY [Chap. I 
 
 of the latter, and under that of her own relatives if, in an excep- 
 tional case, she went back to her own family.^ If she had no rela- 
 tives she was under the "mundiuin" of the king, in the same way 
 as an orphan.^ The woman, in fact, because of her physical weak- 
 ness,^ could not be the head of the family; she found herself to be 
 dependent upon the one in whose house she lived; upon the rela- 
 tive who wore the sword, and who w^ould draw it, if necessary, 
 to defend her ("mulier faidam levare non potest"); upon the one 
 who alone could appear in the judicial assembly,* and whom the 
 
 ' In the Lombard law the breaking of family ties is not complete (perhaps 
 by an extension of the marriage without "mundium"). If a woman alienates 
 her possessions (immovables) with her husband, says the "Liut.," 22 (in 721), 
 two or three near relatives (agnates) are summoned and the woman should 
 declare in their presence and in the presence of the judge that she freely con- 
 sents to the sale, and if this is not done the latter will be void. Rosin, " Form- 
 vorschr. f. d. Verausserung. d. Frauen," 1880 ("Unters." by Gierke) thinks 
 that the "L." 29, "Liut.," is a variation and an extension of the "L." 22 (any 
 woman) in the "Ben^vent." Cf. "Lib. Pap. Pipp.," 34; Wido, 8 (right of 
 a wife even to make a gift with her husband): Laites, p. 180. — Analogous 
 rules elsewhere: Viollet, p. 290 {Dunois, XI, on "Belgique XIIP siecle"); 
 Loersch and Schr., "Urk.," 1, 125; "Cout. de Metz," II, 18. 
 
 2 The royal "mundium" is here especially a general protection, with re- 
 gard to the special effects that are connected with the domestic power. The 
 Church recommends that kings shall defend the widow and the orphan ("Exo- 
 dus," xxii, 22; "Deuter.," xxvii, 19); the State fulfills this duty. In the 
 formula appointing a count it is said: " Ut viduis et pupillis maximus defensor 
 appereas" (Marcidfe, I, 8). "Capit. Bavarois," 788, c. 2: "Ut ecclesia, viduae, 
 orphani vel minus potentes pacem rectam habeant;" a penalty of 60 "sol" in 
 case the peace is broken. The Judge Ordinaries are recommended to examine 
 actions brought by the widow and orphan before others. Finally, it is decided 
 that the widow shall be judged if she so wishes by the king or the Church in 
 preference to the Judge Ordinaries: Beaumanoir, 10, 12; cf. 11, 9. This is 
 the practical side of the maxim: "To the king belongs the custody of widows 
 and wards" (fifteenth century); "Summa Norm.," 77; "Olim," 1, 169; "Jos- 
 tice," p. 218; "Et. de Saint Louis," I, 137; P. de Fontaines, 360; "L. d. 
 Droiz," no. 921. The conception of a special protection due by the State 
 to widows and orphans is found once more in our existing laws: Law of Aug. 
 16-24, 1790, 8, 3; "Code Proc. Civ.," 83; Civil Code, 2194; Viollet, p. 290; 
 "Ord.," 1315, 24, prohibition to make war upon a minor or a widow who has 
 children. 
 
 2 Tacitus, 13. Heusler is wrong in objecting, § 25, that to-day the woman 
 is as weak, weaker even, than she was formerly, and that at the same time 
 she is under more disability; the social surroundings are no longer the same; 
 this is what has admitted of the emancipation of woman in spite of her weak- 
 ness. I do not think, either, that one can say with Meynial, "Le Mar. Ap. les 
 Inv.," p. 77, that "she is worth a man in war." One would not say this 
 with regard to the squaws of the redskins, in spite of the roughness of their 
 life; and it was not said with respect to the Germanic women. The Amazons 
 have always been an exception. Cf. the mj'thological heroines of the Sagas 
 or of the Germanic epic poems. "Bai.," 4, 29 (the woman fights "per auda- 
 ciam cordis sui"); "Roth., "278; "Liut.," 141. 
 
 ^ In these military assemblies there is no place for women. Cf., however, 
 the Synod of Nantes, c. 19 (participation of women in the sittings of the 
 Frankish courts); Laboulaye, p. 443; Greg. Tours, 7, 8; "Etabl. de Rouen," 
 1, 155. — Post, as to the Frankish period. — Cf. "Roth.," 203; "Sachsensp.," 
 1,43. 
 
 222
 
 Topic 13] CONDITION OF WOMEN [§ 183 
 
 Germans later called " kriegerischer Vormund." ^ From this 
 there resulted: 1st. In private law, the incapacity of the woman to 
 have an inheritance of her own,^ and, when she was permitted to 
 have it, the capacity to enjoy it and to administer it, and espe- 
 cially to dispose of immovables. ^ 2d. In public law, the absence 
 of all political rights; the woman only being "pars domus," does 
 not count in the eyes of the State. 
 
 § 183. In Public Law * the incapacity of the woman has re- 
 mained through all the old law, and even until our own time. 
 We do not even take the trouble to justify it. Thus, it is ad- 
 mitted that she is not eligible to public office; ^ she cannot be 
 barrister or solicitor, says Boutillier, for the same reason as Cal- 
 purnia,^ but this reason is only invoked because of pedantry; the 
 
 1 To him alone belongs the power of claiming the "wergeld" from the 
 murderer of the woman. As to the price of the " wergeld " of women cf. Brun- 
 ner, II, 614; "Wis.," 8, 4, 16; the half of a man. Id., Arabs, Alamans ("Pac- 
 tus," II, 39 et seq.; "Lex," 46 et seq., 88), Bavarians (IV, 29), it is double 
 that of men "dum femina cum armis se defendere nequiverit": "Roth.," 
 378, etc., among the Franks, and treble "wergeld" is admitted for the woman 
 who is capable of bearing children: "Sal.," 24, 6; "Rib.," 12 et seq.; "Angl.," 
 48; "Sax.," 15; double if she is a virgin. From this there cannot be drawn any 
 conclusions on the subject of the station of woman in general; the variations 
 of the price of the "wergeld" are connected with the relative value of women, 
 with the necessity for a higher degree of protection which they are under: 
 Grimm, 403; Du Plessis de Gr., "Th^se," 87; Viollet, p. 289; Laboulaye, 
 p. 171; "Sachsensp.," 3, 45, 2 (half a man), 
 
 2 As to the right of inheritance of women, cf. Opet, "Erbrechtl. Stell. d. 
 Weiber," 1888 ("Unters.," by Gierke); Ficker, "Erbenfolge," etc. Post, 
 "Inheritance." 
 
 3 As to the powers of the "mundoaldus," cf. "Power of the Father," 
 "Power of the Husband"; Fertile, III, 236; Simonnet, p. 46. — Correction: 
 "Roth.," 221; "Liut.," 5; "Wis.," 3, 4, 4. — Marriage: "Roth.," 196 (c. 
 "Wis.," 3, 3, 1); "Thur.," 47; "Liut.," 119; "Wis.," 3, 2, 8 (disinheriting). 
 Responsibility and right to the composition: "Roth.," 201 s., 186; "Liut.," 
 125; "Fris.," 9, 8 et seq.; "Sax.," 40 (both these laws give the young girl a 
 portion of the composition); A7nira, "Nordgerm., O. R.," I, 402. — Ahena- 
 tions: "Roth.," 204, to appear in court. Formula) upon the Lombardian 
 laws. ("Wis.," 2, 3, -6, allows him to appear); Papien, 11, 2. 
 
 ^ Laboulaye, p. 442; Ostrogorski, "La Femme au Point de Vue du Droit 
 Public," 1892; Giraud, "Les Cond. des F. au Point de Vue de I'Exercice des 
 Dr. Pubhcs," 1891. 
 
 ^ Dig. X, I, 48, 4. Cf. the English axiom (already untrue in the time of 
 Bracton): "The woman cannot be put outside of the law, because she is 
 never within the law"; Amira, "Nordgerm., O. R.," I, 143 (no " Friedlosigk" 
 for minors and women). 
 
 8 I, 10; II, 2; "Jost.," p. 103; Beaumanoir, 5, 17; Gide, p. 399, ridicules 
 this reason in an agreeable manner; it is not so ridiculous as he makes out; 
 our old jurisconsults would lead one to suppose that women like the one 
 spoken of in the Digest, 3, 1, 5, and who in reaUty was called Carfania, were 
 not rare in their time. It may very well be that, while allowing the woman 
 to plead for herself {Beaumanoir, 2, 17), our old law found some danger in 
 allowing her to plead for another: "Wis.," 2, 3, 6; "Schwabenspiegel," 2, 24; 
 cf. "Summa Norm.," 70. Women can neither prosecute nor defend a crim- 
 inal action; if no one defended them, they cleared themselves by means of 
 
 223
 
 § 183] THE FAMILY [Chap. I 
 
 true motive is in the tradition which separates women from the 
 tribunals and from " officia viriHa." The " Tres Ancienne Coutume 
 de Bretagne," Art. 68, declares that no woman shall be a guard- 
 ian, a trustee (with the exception of the maternal guardian), or 
 a judge, or shall undertake negotiations in court (excepting for a 
 husband, her children, her father and mother). She cannot be a 
 witness to notarial deeds, especially to wills,^ which can be ex- 
 plained strictly by the idea that witnessing in a case of this sort 
 has the appearance of a public function, but which is rather owing 
 to the fact that the veracity of women is doubted; in fact, it is 
 not ^dthout great difficulty that they have been admitted to 
 testify in criminal matters. With time, the inferiority of the 
 woman in relation to the man became less. In allowing her to 
 have the capacity of inlieriting fiefs, and even kingdoms, it was 
 bound to follow that she should be granted the political capacity 
 inherent in their possession.^ It is thus that the lady who has a 
 fief sits in the Feudal Court; ^ in the Pyrenees the woman who is 
 head of the house takes part in the assemblies of neighbors, and 
 sometimes presides over them; ^ elsewhere the daughters and 
 widows who have a separate establishment take part in the village 
 assemblies for the community of States in the same way as men.^ 
 Again, in the sixteenth century, they can be chosen as arbi- 
 
 the ordeal: J. d'Ibelin, 82, 105; "T. A. C, Norm.," 50, 4. In the duel at 
 law women had a champion to represent them: Beaumanoir, 63, 7; c/., how- 
 ever, "Schwabenspiegel," c. 229; "Roth.," 203; "Sachsensp.," I, 43; Paris, 
 de Piiteo, "Duell.," 1540; Thomas, "De Ordin. Duelh"; "Ass. de Jerus.," 
 " C. de B.," II, 30; she can plead on behalf of her father if he be ill : " T. A. C, 
 Bret.," 68. 
 
 1 Beaumanoir, 39, 40, 49; "Summa Norm.," 85, 6; Faber, "Inst.," 44 b. 
 ("vaga et instabilis "). 
 
 ^ Thus the possession of a fief conferred rather extensive privileges upon 
 women. Struck, no doubt, by the contradiction existing between the feudal 
 system and the general rule of incapacity, Bodin, "Republ.," 6, 5, explains 
 this last rule by saying that women are not lacking in prudence, but that 
 their domestic role forbids their indulging in masculine deeds. — Certain 
 Customs assured the women favorable treatment: Glasson, 7, 125. The 
 "Coutume de Reims" was called the "Coutume des Femmes" because of the 
 advantages which it conferred upon them: Varin, "Arch. Leg. de Reims," I, 
 606. 
 
 * P. de Fontaines, 18, 74; Beaumanoir, 14, 27; "Artois," 54, 74; "Jostice," 
 p. 273; Duchesne, "Script, r. Fr.," 4, 731, 471: "sedeas ad cognitionem 
 causarum," says Louis VII to Ermengarde, Vicountess of Narbonne: D. 
 Vaissette, n. 146, 275, 278, 518; Brussel, I, 262; "Cart, de Beaulieu," 195, 
 273; Dig. X, 1, 48, 4. Where women do not inherit fiefs they have no juris- 
 diction: Loysel, 608. In return for this the lady of the fief has to render 
 military services (by means of a representative: "Schwabenspiegel," II, 61; 
 "Et. de Saint Louis," I, 60), the service of marriage: Laboulaye, p. 257. 
 
 * Lagrbze, "Dr. dans les Pyrenees," p. 66; " Actes" Mss. 
 
 * Taxes (tallage), cf. "Summa Norm.," 14, 8; Law of June 10, 1793; Viollet, 
 p. 293, n. 4. 
 
 224
 
 Topic 13] COiSTDITION OF WOMEN [§ 184 
 
 trators; ' it is true that a century later they can no more be 
 arbitrators than they can be judges. 
 
 § 184. Changes in the Station of Women. — The influence of 
 the Roman Law and the Christian ideas, the disorganization of 
 the family group, the interference of the State within the circle 
 of private interest, brought about the gradual emancipation, here 
 slow, there more rapid, of unmarried women. It is thus that 
 among the Franks we have been justified in asking if as early as 
 the barbarian period the guardianship of women had not dis- 
 appeared.^ The daughter who had come of age and lived "^dth 
 her parents had not the right to marry without their consent,^ 
 until the triumph of the canonic doctrine of marriage "solo con- 
 sensu." ^ As to the widow, we have seen what difficulties her 
 marriage gave rise to; the most that the primitive practice as- 
 sumes is the decline of guardianship; and, consequently, the au- 
 thority of the relatives over the widow seems to gain strength. 
 The alienation of possessions and judicial acts call for the inter- 
 vention of guardians; ^ as far as the Frankish law is concerned, 
 the documents are far from being clear; sometimes the woman 
 acts alone, sometimes she is assisted by an "advocatus," or, if it 
 is a matter concerning a widow, by her children.^ If one compares 
 
 ^ Loysel, 53; Beaumanoir, 51, 26; "Artois," 54; "Et. de Saint Louis," I, 
 62. 
 
 2 Ficker, " Verwandtschaf t zw. Goth. u. Norweg. R.," 1887; Erbenfolge, 
 'passim; Opet, " Geschlechtsvorm. i. d. Frank. Volksr.," 1890; "Frag. d. 
 Frank. Geschl.," 1898; ("Mitth. Oest. Geschichtsf."); Hiibner, "K. V. J.," 
 1893, 38; Brissaud, "Acad. Sc. Toulouse," 1895; Lefebvre, p. 327. 
 
 3 Cf. "Thuring.," 10, 3. 
 
 * "Reipus," marriage for a symbolical price. Cf. "Roth.," 222, and "Rib.," 
 58, 18. No allusion in the texts to the age after which the consent of the 
 relatives was no longer required. — Vows: "Cap." 1819, c. 21 (I, 285); 
 Opet, "Frag.," 20. 
 
 ^ Thevenin, no. 113, cf. no. 119; "Roth.," 205. The Scandinavian law 
 merely forbids women to appear in court: "Const. Sic," 2, 38. 
 
 6 Pardessus, "Dipl.," 394; TMvenin, p. 192; " F. Andcc," 16, 12, 26; 
 "Sen.," 51; "Sen. Rec," 5; Hilhner, "Gerichtsurk.," nos. 52,56, 58, 165, etc. 
 Numerous deeds in church and monastic records: Cf. Opet, ibid., p. 30 et seq. 
 The "advocatus" who is interposed in the deeds of women has nothing in 
 common with a guardian (according to Opet), for he is to be found in deeds 
 drawn by men; he is rather a "fidejussor," a "Saleburgio" ("Salmann"). 
 Cf. especially the Cartulary of Savigny, where gifts take place ordinarily 
 "per manum" of a third party. As to the presence of women in court: 
 "Form. s. Roth.," 183, 204; discussion in Opet, p. 62; "Rib.," 81; "Capit.," 
 819, c. 3. In default of "testes" (Brunner translates this "fellow oath taker") 
 or "si legem nescicrint," the count shall come to their support by gixing them 
 a representative charged with defending their interests. These measures in 
 the interest of widows and orphans do not perhaps show in the case of one 
 more than in the other that on principle they are not under guardianship: 
 "Capit.," I, 93, 209, etc.; " Ord.," 1319 (XII, 450); cf. "Exodus," xxii, 21; 
 "Deuter.," xxvii, 19; "Cone, de Mucon," 2, c. 12 {Bruns, II, 253); com- 
 
 225
 
 § 184] THE FAIVIILY [Chap. I 
 
 these texts to the Lombard documents, where the "mundium" is 
 concisely set forth, he will admit at least that the guardianship 
 of women was in full decline among the Franks.^ As we look at it, 
 it would be going too far to say that it had completely disap- 
 peared, and much more so that it had never existed.^ 
 
 § 185. German and Italian Law.^ — In Germany and in Italy 
 the enfranchisement of the woman was with difficulty realized; 
 the guardianship of the sex was maintained; it seems to have been 
 feared that, deprived of the protection of her family, and too in- 
 experienced to administer her affairs at a time when these became 
 complicated, she might compromise her interests if she were not 
 provided with a guardian,^ and especially in litigation and ju- 
 dicial proceedings (alienation of movables).^ If she had no 
 father, if the guardianship were first of all permanent and legal, 
 and accorded to the nearest male descendant, it is already 
 given by appointment in the " Sachsenspiegel," and the guardian 
 named by the magistrate ^ only assists the woman for some spe- 
 
 petency of the ecclesiastical judges. — Obligation for the woman to pay 
 compositions and a right for her to demand them : "Rib.," 83, 1; "F. Andec," 
 29; "Capit.," I, 281, c. 4. The power of disposing of their possessions seems 
 to be beyond dispute in the case of nuns: Pardessus, "Dipl.," passim. The 
 desire of facihtating gifts for the benefit of the Church must have been 
 responsible for recognizing the capacity of women in general. 
 
 1 Q. "Wis.," 3, 4, 2. 
 
 2 It is hard to see why this should never have existed among the Franlcs 
 as it did amongst the other Alemanni. The family and marriage are organ- 
 ized in the same way; the condition of women is dependent upon it. The 
 customs bear witness to the inferior position of women. Heroic songs: Ve- 
 tault, "Charlemagne" 509; Gautier, "Chevalerie," passim. At law unmar- 
 ried girls who lived with their relatives did not escape from their domestic 
 authority: "Bord.," 63. Guardianship of the girl who has attained her ma- 
 jority, and who has lost her father, until the time when she marries: " T. A. C, 
 Bret.," 80. We doubt whether they could found a separate establishment. 
 As to widows, the protection of the Church and the king bear witness to their 
 independence in fact, at least, and their emancipation from their relatives; 
 post, "Second Marriages." Their condition was thus like that of the Roman 
 women: Carolus de Tocco, on "Lomb.," 2, 7, 2. As to the Lombardian law 
 and the "L. 29 Liut.," Rosin, p. 57; Beaumanoir, 43, 27: "As soon as her 
 baron is dead the wife comes back to her full capacity." "Wis.," 3, 4, 2, 7; 
 "Burg.," 52, 3; ".^thelr.," 5, 21; Cnut, 2, 73; Procop., "B. g.," 1, 2; 
 Meynial, "Mar.," p. 86. "Mother as Guardian," "Dower," "Right of 
 Inheritance," post. 
 
 3 Gide, pp. 280, 302; Stohhe, IV, 427; Huher, IV, 291; Pertile, § 102; "Dr. 
 Scandinave," Girle, pp. 224, 232; c/. Dareste, Amira. 
 
 * "Dr. de Lubeck," Art. 21; "Soest.," 27; cf. Kornmann, "De Virginitate," 
 p. 74. 
 
 ^ "Beistand," who takes part: "Schwabenspiegel," II, 24: "No woman can 
 be guardian of herself nor appear for herself in court," I, 50: "A woman 
 pleads through her advocate." "T. A. C, Bret.," 68. 
 
 ^ The Statute of Florence, 1415, 6, places among the attributes of the 
 magistrates that of appointing guardians for women: "Const. Modene," 
 1771. 
 
 226
 
 Topic 13] COXDITION OF WOMEN [§ 187 
 
 cific act, after which his functions no longer exist.^ The designa- 
 tion of a guardian is in the end even made by the woman herself, 
 subject to ratification by the judge.^ As in the Roman law, the 
 guardian only exists for the sake of formality. But, such is the 
 force of tradition, that the obsolete institution of the guardian- 
 ship of women was only done away with in 1870, at Hamburg, 
 and in 1881 at Bale-Campagne.' 
 
 § 186. In France, during the feudal period, the guardianship 
 of women no longer exists.^ The unmarried woman is capable of 
 appearing in court, of contracting, of making a will, in the same 
 manner as a man: "A girl is as good as a man." ^ This does not 
 mean to say that she can freely dispose of her possessions; the 
 rights of the family are opposed to it, at least in that which con- 
 cerns personal belongings; but these rights exist equally in rela- 
 tion to men. If there is an inequality to the detriment of the 
 women, it is only as far as inheriting is concerned. The old cus- 
 tom, "in multis deterior est conditio feminarum quam mascu- 
 lorum" (Digest, 1, 5, 9), ceases in almost every respect to be true 
 as concerns private law. 
 
 1 I, 47, 2; II, 63, 1; cf. I, 41; Longe, "Cout. de Brabant," III, 205 (cited 
 by Viollet); Chaisemartin, 71. 
 
 2 Imagina de Linange chooses the guardian who assisted her in her con- 
 tract of marriage in 1452: Albrecht, "Rappolst. Urkundcub.,",IV, 464; Pertile, 
 III, 236 (Act of 1190). 
 
 _3 In Vienna (Austria), in 1340, unmarried women are freed from guardian- 
 ship at the age of fifty: Viollet, p. 290; Gide, p. 234; among the Scandina- 
 vians they come of age at twenty-five, "venia sexus." 
 
 * Beaumanoir, II, 27; "Jost.," p. 273; "T. A. C, Norm.," 80, 5; "Auv.," 
 14, 2; cf., however. Charter of Amieas, 1190, 23 ("Ord.," XI, 264). Opd, p. 94, 
 denies that there is in this a remnant of the guardianship of women. See 
 texts cited by Opet, p. 55, 87, 18. Laws and Statutes of Vaud, 1, 4, 1: "Mar- 
 ried women and unmarried women are subject to a continual minority." 
 Salis, "Z. S. S., G. A.," 1886, 141. England: equality of the two se.xes: 
 Pollock and Maitland, I, 465. 
 
 ^ Like gentlemen and clericals, the woman has the privilege of being able 
 to defend herself by means of an attorney: Beaumanoir, IV, 31. Cf. as to 
 this intervention of the "advocatus": Beaumanoir, II, 31; X, 13; XII, 6. 
 Cf., on the other hand, "Femmc Mari6e," ed. Salmon, see Table, "Jost.," 
 p. 273 (she can give a guarantee); "Gr. C. de Fr.," pp. 323, 350, 379, 389; 
 ^'Bourg.," 3, 18; "Auv.," 1510, 13, 1; " F. do Morlaas," 177, etc.; "Summa 
 Norm.," 41 (delay for the widow). The "Gr. C. de Fr.," p. 216, establishes 
 the fact that through custom in the lay court no woman, married or otherwise, 
 shall be imprisoned in a civil case: "Nov.," 134, 9; Boutaric, 2, 6; Gui Pape, 
 "Qu.," 256; Masuer, 20, 1; hnbert, "Enchir.," see "Femme" and the note. 
 The privilege by virtue of which women, whether married or not, could not 
 be compelled by physical means in a civil case, was sanctioned by the Ordi- 
 nance of 1667, 34, 8; it ceased to apply when a tradeswoman who served the 
 pubUc had signed a bill of exchange (excepting in the jurisdiction of the 
 Parliament of Toulouse). Ferriere, see "Femme, Contrainte par Corps"; 
 Merlin, ibid. Cf. "Code Comm.," 113 (the bill of exchange is the equivalent 
 of a simple pronaise). 
 
 227
 
 § 187] THE FAMILY [Chap. I 
 
 § 187. Velleianum Decree of the Senate.^ — It became neces- 
 sary, however, for an important exception to the principle of the 
 equahty of the sexes in civil matters to be introduced. An effort 
 was made to limit the capacity of the woman by applying to her 
 the provisions of the Velleianum Decree of the Senate; the woman, 
 whether married or not, cannot obligate herself for another, it 
 was said, following the Roman laws, because of her weakness and 
 her inexperience in business.^ Neglected for a long time, and 
 almost forgotten in the South itself,^ the prohibition of interced- 
 ing reappeared as a consequence of the renaissance of Roman 
 law,^ and was propagated in the countries of Customary law,^ 
 especially in the fourteenth century, when Boutillier considers 
 the law of the Consul Velleius as being in full force.^ But, if it 
 triumphed in the South at the same time as did the inalienability 
 of the marriage portion elsewhere, it clashed, on the one hand, 
 with the emancipation of the unmarried woman, which had already 
 been realized, and on the other, w^th the peculiar situation which 
 the woman has by reason of the system of joint ownership; in 
 obligating herself on behalf of her husband, the head of the joint 
 ownership, one does not know if she violates the Roman law, 
 which held as being especially dangerous the intercession in the 
 interest of the husband, or whether she respects that law from 
 the moment when the interests of the two spouses, separated 
 under the marriage portion system, are here, on the contrary, 
 
 1 Ferriere,Guyot," Diet, de dr. Norm.," see "Caution." Froland, "M^m. 
 8. Tappl. du senatusconsulte Veil.," 1772, Gide, p. 392. Meynial, " N. R. H.," 
 Sept.-Oct., 1901. 
 
 2 It was not discovered at a certain given time that woman was weak and 
 inexperienced; neither did people \deld to the superstition of the Roman 
 law; but the organization of the family having changed, and women hav- 
 ing acquired an independent position, it was naturally feared that they would 
 be the first to suffer because of their well-known weakness. 
 
 3 "L. Rom. Wis.," Paul, 2, 11, 1; "Petrus," 4, 53. The " Brachylogus," 
 3, 10, considers the Justinian law. In "Preuves," by D. Vaissette, deeds in 
 which women are participants do not allude to the Velleianum; but, as a 
 general thing, these women bind themselves on their own account. Cf. 
 Gide, 2d ed., 386, 2; Glasson, 7, 127, 1; "MontpeUier" (1204), 38: the dis- 
 ability of the wife is done away with if she has the authority of her husband: 
 "Toulouse," 74 (valid giving of surety). Masuer, 29, 91; the woman can 
 renounce the benefit of the Velleianum, excepting if she binds herself for her 
 husband. Post, "Auth.," "Si qua MuUer"; "Artois," 33, 7. 
 
 ■» D. Vaissette, III, 344, etc.; D. Plancher, "Bourgogne," "Preuves," no. 
 162 (in 1302); Masuer, 29, 12; Gui Pape, 227; Papon, "Notaires," I, 654. 
 
 * Beaumanoir, 43, 14, 22, 26, 28 (validity of the giving of surety by the 
 widow); "01im,"II,211(inl282); "Gr. Gout, de Fr.," p. 223; "Gout. Not.," 
 
 'e II, 29. Cf. l", 97, p. 551. Already the "L. de Jostice," p. 273, forbids 
 women to intercede: Viollet, "Et. de Saint Louis," III, 192; cf. Planiol, 
 "T. A. G., Bret." 
 
 228
 
 Topic 13] CONDITION OF WOMEN [§ 187 
 
 mingled together.^ Although the legal theory may, on principle, 
 accept the Velleianum, it does not succeed in causing it to be 
 practised; renunciations made because of this decree,^ which are 
 frequent in the South,^ become very numerous in the North, and 
 become almost the general practice; ^ but there is no agreement 
 as to their efficaciousness, and especially as to the consequences 
 of their omission. In order to put an end to these difficulties, 
 the Edict of August, 1606, finally repealed the Decree,^ and a 
 little later the "Lex Julia," which is naturally connected with the 
 Velleianum, was repealed in its turn by an Edict of 1664.^ The 
 
 1 Boutaric, I, 97, p. 551 (the woman does not benefit by the Decree of 
 the Senate, unless she gives up the community) : "Bretagne, T. A. C," 68, 320 
 (she can bind herself on behalf of her father, her mother, her husband or her 
 children): Dumoulin, "De Usur.," 162. The Velleianum is not applied if 
 the funds have turned out to benefit the community, a tiling which is pre- 
 sumed: Meynial, p. 273, n. 5. 
 
 2 AndoftheAuthentics, "SiquaMulier" ("Cod. Just.," 4, 29, 22; "Nov.," 
 134, 8), which pronounced the nullity of intercession on behalf of the husband, 
 whereas there are cases in which intercession on behalf of third parties is 
 valid (confirmation at the end of two years, renunciation by the mother who 
 is a guardian, of the advantages of the Decree of the Senate) : Girard, p. 779; 
 Meynial, "N. R. H.," 1900, 108, and 1901, 241, and especially Art. 3, Sept., 
 1900; Gide, 162, 405; "Et. de Saint Louis," III, p. 215. 
 
 * They date back to the Roman practice: Dig., 16, 1, 32, 4; "Cod. Just.," 
 5, 35, 2 ("Auth."); "Montpelher," 1204, Art. 38; Mazure, "F. de Beam," 
 p. 297; "Decis. Capellse ToL," q. 37, 29; Lattes, p. 183 (Italy); "Siete 
 Part.," Table, see "Mulier Fidejubens." 
 
 * " Cartul. de Flines," 35, 40, etc. (thirteenth century) ; Meynial, 275 ; Planiol, 
 "T. A. C, Bret.," 501, 473, 301. The "Close" admits the validity of re- 
 nunciations. Contra : J. de Ravanis, P. de Belleperche, cited by Cinus on 
 the "L. ult. C. ad. Sc. Veil."; J. Faure, "Inst.," 4, 7. But the practice after 
 the thirteenth century rejects their opinion. The canon law pronounced 
 itself in favor of this upon condition that the renunciation should be accom- 
 panied by an oath (Dig. X, 28, 8, twelfth century) ; G. Durand no longer even 
 demands an oath (2, 2, 9, 10). As to the necessity of the "certioratio," 
 cf. Meynial. Cf. Italian practice; the renunciation is allowed as a general 
 thing, but not when the woman binds herself on behalf of her husband. The 
 Bame in Spain: Gide, pp. 302, 326; Meynial, "In. F." 
 
 * And the Authentic, "Si qua Mulier." Following the publication of 
 the " Observ. de la Renonc. au Vel.," by Lechassier (reprinted in his " QEuvres," 
 1649): a snare for those who contract with women when through malice 
 or ignorance the notaries leave out the clause of renunciation. The Edict of 
 Henry IV, drawn up by Sillery, who was probably assisted by Pasquier, for- 
 bade notaries to insert any renunciation of the Velleianum and of the other 
 privileges of women in any contracts drawn by them and ordered that these 
 contracts should have the same effect as though these renunciations had been 
 specified therein: "N6ron," II, 722. The Parliaments of the South, those 
 of Rouen and Rennes, refused to register this Edict (Id. Perjrignan, Cohnar). 
 The Ordinances of 1683 and 1704 upheld it in Brittany and Burgundy: Des- 
 jardins, "Com. Ic Sdnatusconsulte Vel. Disparut" ("R. crit.," 30, 148); 
 Gide, 413; Meynial, "N. R. H.," 1901, Sept.-Oct. As to the evolution of the 
 German law, cf. Gide, p. 274 (bibl.); Dernburg, "Pand.," II, 228; Meynial, 
 loc. cit. 
 
 ^ Formerly there was very often a confusing of the Velleianum with the 
 "Lex Julia," and by the "Lex Julia" is to be understood the inalienability of 
 the marriage portion, even when made with the consent of the woman, — that 
 
 229
 
 § 187] THE FAMILY [Chap. I 
 
 provisions of these two laws were of no effect, however, in the 
 countries of written law ^ and in Normandy; ^ the Velleianum 
 was always in full force in them; it only disappeared with the 
 publication of Art. 1125 of the Civil Code (Feb. 17, 1804) .^ 
 
 § 188. The Same. — It would have been strange if the ques- 
 tion of the capacity of women had not been raised under the 
 Revolution.'^ Condorcet brought it up as early as 1787, in a writ- 
 ing where he maintained that " there is between the two sexes no 
 difference which is not the result of education." This paradox 
 found a vehement adversary in Mirabeau.^ Taking their stand on 
 a more practical ground, the Memorials of 1789 were concerned 
 with the abolition of the pri\dleges of men as far as inheritance 
 was concerned; the exclusion of the daughters seemed contrary 
 to natural law; the Revolutionary laws did away with it. The 
 woman was also permitted to be a witness in the civil acts of life,^ 
 but she was not given the right of being a guardian, nor that of 
 
 is to say, the "Lex Julia" as amended by Justinian. The Edict of April, 1664, 
 repealed the "Lex Julia" in the Lyonnais, Maconnais, Beaujolais and Forez, 
 district of written law under the Parliament of Paris; it held in the inter- 
 ests of commerce that obligations entered into by women should be validly 
 binding upon the land included in the marriage portion as well as upon the 
 paraphernalia: Gide, p. 412. 
 
 1 The "Coutume de Toulouse," "De Debitis," 2, rejected the Velleianum 
 as well as the inalienability of the marriage portion; but in the sixteenth 
 century it was no longer observed: Catellan, "Arr.," IV. 49; Casaveteri, fo. 
 27; Serres, "Inst.," p. 487 et seq.; Julien, "Elem. de Jur.," p. 370; BriUon, 
 "Diet.," see "Femme," "Velleien"; Henrys, IV, 8. As to cases in which the 
 Velleianum does not apply in the South, and as to renunciations of the advan- 
 tages conferred by the Decree of the Senate (which were valid on condition 
 of "certioratio"), cf.Ferriere, see "Velleien," "Renonciation," and authors 
 cited: Imbert, "Enchirid.," see "Femme"; Meynial, "N. R. H.," 1901, Sept.- 
 Oct. 
 
 2 As to the application of the Velleianum in Normandy, c/. Froland, "Me- 
 moire," 1722; Colin, "N. R. H.," 1892, p. 436. The Norman books of Cus- 
 toms, and even the "Coutume de Normandie," are silent upon the subject of 
 the Velleianum, — an obvious proof that this Roman law was only intro- 
 duced into Normandy through the combined action of doctrine and juris- 
 prudence; the disability caused by the Velleianum was a logical outcome 
 of the Norman law: Gide, 397. Also a renunciation of the Decree of the 
 Senate is prohibited in Norman law. An obligation contracted by a woman 
 in violation of the Velleianum is null and void of absolute right. In the 
 South letters of rescission are required: Froland, p. 154; Imbert, "Enchirid.," 
 see "F'emme." 
 
 ' Robert, "Capacity des Femmes av. et Dep. la L., 17 Niv., an. II," 1813. 
 
 * Sagnac, 251, 368. 
 
 ^ A writing abolished after his death by Cabanis. Sylvain Mareschal, 
 author of " Diet, des AthcSes," 1880, and of the " Code d'une Soci^t^ d'Hommes 
 sans Dieu," 1797, in 1801, wrote a " Projet de Loi Portant Defense d'Apprendre 
 k Lire aux Femmes." 
 
 6 Law of Sept. 20, 1792, 3, 1; Viollet, "N. R. H.," 1890, 715. The Law of 
 the 7th Dec, 1897, allowed women to be witnesses to certificates of birth, 
 death and marriage, and to notarial deeds. 
 
 230
 
 Topic 13] CONDITION OF WOMEN [§ 188 
 
 taking part in the council of the family.^ Still more, political 
 rights were refused her.^ One is well aware how this last point 
 has raised difficulties in modern legislations.^ On the other hand, 
 the civil equality between the woman (unmarried) and the man 
 is acquired in an absolute manner."* 
 
 1 Idem, according to the Civil Code. 
 
 2 Law of June 10, 1793: vote of women as to the partition of rights of 
 commons. 
 
 3 "Gr. Encycl.," see "Femme"; Bridel, "Melanges Fdministes," 1897; 
 Ostrogorski, "Dr. des Femmes," 1894; Lamy, "La Femme de Demain," 
 1901. 
 
 ^ There is no longer any thought of appointing guardians for them; they 
 are left to provide them for themselves. C/. the " procuratores " of the Roman 
 women: Cicero, "Pro Csecina," V, 14. 
 
 231
 
 §189] 
 
 THE FAMILY 
 
 [Chap. I 
 
 Topic 14. Guardianship and Custody 
 
 § 189. Guardianship of Minors during 
 the Barbarian Period. 
 
 § 190. Suspension of Actions by or 
 against the Minor. 
 
 § 191. Intervention of the State. 
 
 § 192. Feudal Law. 
 
 § 193. Seigniorial Protection. 
 
 § 194. The Lease of Fiefs. 
 
 § 195. Rights of the Guardian. 
 
 § 196. Obhgations. 
 
 § 197. Nobleman's Custody. 
 
 § 198. Plebeian Custody. 
 
 § 199. Citizen's Custody. 
 
 § 200. Modern Guardianship. 
 
 §201. In France every Guardianship 
 is Appointive. 
 
 § 202. Powers of the Guardian. 
 
 § 203. Guarantees in the Interest of 
 the Minor. 
 
 § 204. The Revolutionary Law. 
 
 § 205. The Question of the Capacity 
 of the Minor. 
 
 § 206. The Barbarian Majority. 
 
 §§ 207, 208. Under the Feudal System. 
 
 §§ 209, 210. Emancipation of Minora 
 under Guardianship. 
 
 §§ 211-214. Persons who have at- 
 tained Majority and are 
 under a Disabihty. 
 
 § 189. Guardianship of Minors during the Barbarian Period. 
 — Germanic guardianship ^ is nothing more than the " mun- 
 dimn," or domestic power,^ in its appHcation to the minor whose 
 father is dead.^ One must be careful not to see therein, as has 
 been done only too often, an institution established in the 
 interest of the minor with the object of saving him from the 
 consequences of his weakness and inexperience.^ This is a 
 power and a right which is entirely for the benefit of the family, 
 and, as a consequence, entirely for the profit of the head of the 
 
 1 See especially Heusler, §§ 23-27, and §§ 165-171. 
 
 2 If a collective guardianship exercised by the "Sippe" existed, especially 
 among the Anglo-Saxons (c/. Schroeder and authors cited) it was not long 
 before tliis guardianship passed to the family, the "Sippe" keeping at the 
 most a special right of supervision: cf. Heusler, § 130, II, p. 485 (authors 
 cited: Brunner, "Z. S. S., G. A.," Ill, 49; Amira, "Erbenfolge," 84, 149, 208; 
 Gierke, "Genossenschaftsr.," I, 22, 44; "Erbrecht u. Vicinenrecht," "Z. R. G.," 
 XII, 487). Also: Picker, "Erbenfolge," passim; Amira, "Recht," § 53 
 et seq. 
 
 ^ The death of the mother does not alter the paternal power in the least. 
 Cf., however, "Wis.," 4, 2, 13 (second marriage of the father, possibility of a 
 guardianship). — There are even found after this in Germany cases of guar- 
 dians acting for minors who are under the paternal power (in 1279, 1488); 
 partition; alienation of the cliild's possessions. 
 
 ^ If the Roman stamp is observable in the laws of the Visigoths, 4, 3, 
 and of the Burgundians, 85 (cf. Papien, 36), the Lombard law seems to be an 
 accurate expression of the old Germanic law; from reading the laws of " Liut.," 
 58, 74, 75, 99, 117, 149, where the question of minors is dealt with, one would 
 say that guardianship had no existence. They find a protection, not in 
 guardianship, but in the principle that the minor shall not be allowed to 
 cause injury to himself through his own acts; his rights lie dormant until 
 his majority. When some act is absolutely necessary application has to be 
 made to his relatives: "Liut.," 75. 
 
 232
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 189 
 
 latter.^ Thenceforth, the only guardianship which is recognized is 
 the proprietary guardianship by agnates,^ that is to say, guardianship 
 conferred by custom upon the nearest male relative, for example, 
 the elder brother.^ It is for the latter the means of protecting his 
 rights, especially with regard to the possessions of the minor; and 
 this power consists in exercising these rights almost as if the 
 minor had no existence.^ The agnate sees therein an advantage, 
 and not a duty; he takes possession, if he wishes, without any 
 other formality, of the person and possessions of the minor; but 
 he is free to renounce the guardianship in the same way as an 
 heir has the power to give up the inheritance which accrues to 
 him; ^ if he does not exercise it, he does not incur any responsibil- 
 ity.^ Over the person of the minor he has, on principle, the same 
 
 1 Maternal Guardianship was borrowed from the Roman law by the law 
 of the Visigoths, 4, 3, 3; 3, 1, 7, and by the law of the Burgundes, 59, 85) so 
 long as the mother does not marry again, "nulla ei parentilla praeponatur"), 
 c/. " Bai.," 8, 7. In the pure Germanic law the mother who is under guardian- 
 ship could not have the "mundium" over her children. There is no trace 
 of maternal guardianship in the "Sachsenspiegel": Heusler, II, 452. The 
 "Beisitz" of the widow and of her children does not imply a guardianship 
 exercised by her; the widow who lives with her children has their custody, 
 brings them up, administers the common patrimony, and acts with the 
 authorization of her own guardian ; but the children have no guardian : " Sach- 
 sensp.," 3, 76, 1; cf. 1, 23, 3 and 1, 11; Stobbe, IV, 435. Among the Scandi- 
 navians and the Anglo-Saxons "Hloth.," 6, "Ina," 38, the widow has only a 
 right of custody, without any of the effects of the "mundium." — Afterwards 
 this power in fact becomes changed into a guardianship at law, when guar- 
 dianship becomes an institution for the protection of the minor. In Germany 
 she is then given fellow guardians, she is compelled to promise not to remarry 
 and not to invoke the Velleianum Decree of the Senate: Stobbe, IV, 434 et seq. 
 
 2 These relatives are guardians by birth; the old Germanic law does not 
 recognize any appointed guardian; the will is unknown in this law, and, as a 
 consequence, there cannot be any testamentary guardian; as to the guardian 
 who is appointed, he does not exist either, because it is not the place of the 
 State to designate the head of the family; the transmission of the "mundium" 
 takes place by virtue of the Custom: r/. Brunner, § 63. 
 
 ' "Proximus paterna? generationis," says the "L. Sax.," 44; "Burg.," 59, 
 85, 2; "Wis.," 4, 3, 3; "Sachsensp.," I, 23, 1 and 45, 1; "Cap. Worm," 829, 
 c. 4. The order in which the relatives are summoned is the same for guardian- 
 ship as for inheritance. Disabilities are the same as with respect to inheri- 
 tance: women, foreigners, monks, or clericals, people of feeble mind (?). — 
 If there are no relatives on the father's side, then at a rather early period 
 the relatives on the maternal side are called upon: "Form. Salom.," 14; 
 "Schwabensp.," 59; "Augsburg," 98, 1; Kraut, I, 170. 
 
 * Heusler, II, 453. 
 
 * In which case it devolves upon the next degree. But at an early period, 
 if there were no closely related agnate, the guardianship by appointment was 
 resorted to: "L. Pap. Pipp.," 5; "Wis.," 4, 3, 3; "Sachsensp.," I, 42, 2. Sub- 
 sequently devolution was rejected out of hatred for usufructuary guardian- 
 ship. — lias the agnate a right to grant the "mundium" to a third party? 
 Outside of the quite special case in whicli he marries his ward (cf. example in 
 Viollet) this seems to us to be very doubtful. Cf., however, Kraut, I, 215; 
 Stobbe, IV, 434. 
 
 8 As there was danger of his negligence compromising the rights of the 
 
 233
 
 § 189] THE FAJMILY [Chap. I 
 
 rights as the father; the same word, "mundium," is used to desig- 
 nate the paternal authority and the authority of the guardian, 
 from which it follows that they have the same consequences ^ 
 (correction,^ consent to marriage, etc.). The possessions of the 
 minor are mingled with those of the guardian. It is a sort of pre- 
 inheritance by which the latter profits. If it is an exaggeration to 
 say, especially with regard to more recent law, that the guardian 
 becomes the owner of the possessions of the minor, because he 
 must restore them, at the same time this formula give^ a fairly 
 accurate idea of what his rights are.^ He has the administration 
 and the enjoyment of these possessions; ^ all the income of the 
 minor, and, as a consequence, every acquisition made with this 
 income, belongs to him; it is sufficient if he restores the property 
 which belongs to the ward at the time of the latter's majority 
 ("Possessions of a minor neither increase nor decrease"); ^ he has 
 a right to alienate movables; ^ if he cannot dispose of the immov- 
 ables in such a way that the deed can be opposed to the minor,'^ 
 it is less with the object of protecting the latter than as a 
 consequence of the rights of the family; he is scarcely more 
 
 family, one can readily understand that the agnates were able to bring about 
 his discharge, or, rather, to discharge him themselves. But there is no men- 
 tion of this in the documents. The "Sachsonspiegel," I, 41, takes for granted 
 the discharge of the faithless guardian ("Balmunt") only as far as the guar- 
 dianship of women is concerned. Cf. Roman law, Girard, p. 215. — The 
 intervention of the relatives according to the barbarian laws only takes place 
 if the minor should marry (and in such a case as this he would ordinarily be 
 released from guardianship) or when it becomes necessary for him to alienate 
 his immovables: "Sax.," 43; "Roth.," 160, 182, 195-7, 207; Grimm, 6; 
 "Liut.," 75, 120; Schoepflin, "Alsat. Diplom.," 676 (in 858). 
 
 1 "Div. Imper.," 817, c. 16 ("Cap.," ed. Bor., I, 273). Education: Stobbe, 
 IV, 448. 
 
 2 This right was restricted at an early period in the case of the guardian 
 who was punished by losing his guardianship if he inflicted any bad treat- 
 ment upon his ward: "Burg.," 66; "Roth.," 195, 197; "Liut.," 12, 31, 120; 
 "Wis.," 4, 5, 1; "Schwabenspiegel," I, 190. 
 
 3 Cf. Roman guardianship: Girardin, "N. R. H.," 1889, 2. 
 
 ^ "Tutela Usufructuaria," "Sachsensp.," I, 11, 23. He does not have to 
 furnish any surety, nor docs he have to render any accounts during the 
 guardianship: "Burg.," 85, 2, 3; "Wis.," 4, 3, 3; "Liut.," 149; Stobbe, IV, 
 449, 8; Huber, IV, 512; post, "Lease of Fiefs." The "L. Wis.," 4, 3, 3, allows 
 the guardian only one-tenth of the income. 
 
 5 Chaisemartin, "Prov.," p. 326. 
 
 6 The minor could not claim them against third parties {post, "System of 
 Movable Property"); it is even doubtful whether the personal responsibility 
 of the guardian could be involved in this manner. Cf., however, to the 
 contrary, "Burg.," 85. 
 
 ^ Excepting in cases of necessary alienation: in order to support the ward 
 in times of want, in order to pay the hereditary debts at a time when immov- 
 ables could be seized for debts: "Liut.," 149 (authorization by the Judge); 
 "T.A.C., Norm.," 7, 4, 78; Brunner, Table, see "Mundel." 
 
 234
 
 Topic 14] GUARDIANSHIP .\ND CUSTODY [§ 190 
 
 free to dispose of his own movables. He has the power to col- 
 lect claims included in the hereditary estates of the minor; on 
 the other hand, he is held liable for the corresponding debts. 
 The contracts of the minor do not bind him/ but he is respon- 
 sible for the torts of the former, because of his "mundium," 
 even out of his own personal possessions.^ Finally, the guardian 
 does not represent the minor; he can only act in his own 
 name on behalf of the minor.^ The functions of the guardian 
 do not change when, having attained his majority, the ward con- 
 tinues to live with him and does not claim his inheritance; '^ it 
 may happen that the ward becomes capable from this time, as in 
 the case of a child under a disability; but the guardian does not 
 cease to have the use of the ward's fortune, and he is not held 
 liable for the obligations which the latter may contract, unless he 
 has taken a part in their formation. 
 
 § 190. Suspension of Actions by or dgainst the Minor. ^ — 
 Under these conditions the capacity of the minor is nil ; he has not 
 the right to sue and cannot be sued. The rights which he can have 
 do not come into existence until his majority, and, consequently, 
 every proceeding in which he is an interested party must lie dor- 
 mant until that time. His guardian does not have to represent 
 him; ^ he acts in his own name and on his own account. More- 
 over, representation in court is forbidden on principle; to have 
 attempted it by way of an exception in this case would have been 
 to run the risk of compromising the interests of the minor. These 
 motives, together with the insufficiency of the organization of 
 guardianship, assured the old rule a long duration. But as early 
 as the second dynasty of kings it became necessary to improve it by 
 
 1 "Burg.," 87, 1, 2. 
 
 - On principle, compositions due by reason of torts of which the minor 
 has been a victim belong to him: "Cap.," 819, 5; "Sachsensp.," II, 65, 1. 
 Cf. Stobbe, IV, 453. 
 
 ^ From which it follows that the minor, having come of age, is not respon- 
 sible for debts contracted by the guardian. If the guardian has received a 
 composition which was due the minor, the latter, having come of age, is not 
 held bound to keep the peace made by the guardian; he is allowed to carry 
 out vengeance, which places the guardian under the necessity of giving back 
 the composition: Brunner, "Z. S. S., G. A.," Ill, 74, 1; Homeyer, "Sachsensp.," 
 Ill, 2, 481. 
 
 * Fribourg ("Stadtrodel"), § 34; "Sachsensp.," I, 42: after the age of 
 twelve years the child can dispense with a guardian, but he may also keep liis 
 guardian until he attains the age of twenty-one. 
 
 ^ Schroeder, p. 314; Pollock and Maitland, II, 440: "the parol demur" 
 ("loquela remanebit"); Bracton, fo. 274, 421; MesU, I, 179. 
 
 ^ Contra: "Burg.," 85; "Wis.," 4, 3, 3: Roman influence. Cf., however, 
 Scandinavian law: Aniira, "Rech," 157; Wolf, "Z. V. R.," 1886, 3, 63. 
 
 235
 
 § 190] THE FAMILY [Chap. I 
 
 new touches, to so great an extent did it injure third parties.^ 
 The Capitulary of 819 allowed the compulsory appearance in 
 court of a child less than twelve years old who had taken the prop- 
 erty of another, and his condemnation to pay the composition 
 ("excepto fredo"). The Capitulary of Worms, 829, assumed that 
 those who took the property of another transferred it to minors 
 so as to prevent the owner from making use of his claim, because 
 no one could plead against a minor; it decided that the father or 
 the guardian should be the legal representative of the minor in 
 every litigation, excepting when the "hereditas parentum" was 
 involved; in this there remained in existence the primitive system 
 of suspension of process. Only in the thirteenth century does it 
 begin to be given up; actions for possession are allowed in view 
 of their provisional x^haracter.^ At last, in 1330, an ordinance 
 abolished the old law; thenceforth, minors could be made parties 
 "in causa proprietaria'vel reali"; they had appointed for them a 
 guardian or custodian "in litem," with the assistance of whom 
 they could be sued without postponing the settlement of the case; 
 for it had been noticed that the privilege w^hich they had enjoyed 
 had reacted against them; they ran the risk of losing their rights, 
 because the proofs had perished and in a general way the ren- 
 dering of justice was found to be impeded by this delay .^ 
 This special guardian finally came to be confused with the ordi- 
 
 1 "L. Rib.," 81. On the texts, cf. Kraut, I, 133; II, 114; Rive, I, 200; 
 Waitz, "V. G.," IIP, 281; Amira, "K. V. J.," 1875, 430; Brunner, "Z. V. R.," 
 1,333; "Liut.,"78; "Qusest. et Mon.," 27; "T. A. C, Norm.," 6: the minor 
 cannot "probare seu defendere sua manu." Cf. 7, 3; 74; Beaumanoir, III, 
 18; XVII, 7; "Anjou," 95; Marnier, "Et. de Norm.," p. 8; Chantereau- 
 Lefevre, "Tr. des Fiefs," p. 48 et seq.; Viollet, "Et. de Saint Louis," III, 206; 
 "Ord. de Jean II," 36; cf. Planiol, "T. A. C, Bret.," p. 469. 
 
 2 "T. A. C, Norm.," 74, 78; P. de Fontaines, 14, 2 etseq.; Beaumanoir, XVI, 
 1; "Et. de Saint Louis," I, 78; "Ohm," II, 240; "Styl. Pari.," 17, 2; "Gr. 
 C. de Fr.," II, "Des Mineurs"; Boutaric, I, 93; Loysel, 187; Ragueau, see 
 "Loi Outree"; "Summa Norm.," 42. Cf. Principle according to which 
 ordinary prescriptions do not run against minors: "Forsde Beam," p. 193 
 (40 years). Neither prescription nor usucaption run against a minor: Bou- 
 taric I 92 p. 521. 
 
 3 "Ord.'," II, 63] Isambert, IV, 385; Loysel, 187; Beaumanoir, XVI, 3; 
 "Const, du Chatelet," 2. — The Ordinance of 1330 mentions a particular fact 
 which had drawn the attention of the "gentes parlamenti" to the disadvan- 
 tages which resulted from the excessive prolongation of lawsuits (loss of titles, 
 death of witnesses). Formerly this rule had fewer disadvantages because 
 minority ended at the age of 12, As to the precedents for the Ordinance of 
 1330, cf. "Jost.," p. 131. As to the application of the Ordinance of 1330, cf. 
 "Gr. C. de Fr.," II, 32, p. 378: there is found one action in the year 17, 
 that is to say, 1317; but cf. pp. 370, 387, "T. A. C, Bret.," 76. The Addenda 
 of Aufreri to the "Stil. Pari.," 17, established this change: Boutaric, I, 93, 
 p. 527 (ed. 1603), however, still reports the old rule. — In England, the "De- 
 murrer of the Parol" was only abolished in 1830. 
 
 236
 
 Topic 14 J GUARDIANSHIP AND CUSTODY [§19^ 
 
 nary guardian whose role consisted formerly in representing the 
 minor.^ 
 
 § 191. Intervention of the State. — Such a state of things as- 
 sures guardians for rich minors; poor ones will often lack them. 
 It would not be a rare thing to see minors forsaken by their rela- 
 tives; it might also happen that there were no male descendants. 
 One resource was left to these poor creatures; it was to place 
 themselves under the " mundium " of the king.^ With the second 
 dynasty of kings one sees the king establish himself as the defender 
 of the widow and the orphan; perhaps one might even be justified 
 in saying that, on principle, the royal "mundium" extends over 
 them as over strangers, without their having to ask for it, so much 
 so that he gives them guardians chosen by himself or by his judges, 
 and chosen, naturally enough, from among the maternal relatives.^ 
 But this is an exceptional case; the organization of the protection 
 of the minor is still rudimentary; the State limits itself to punish- 
 ing those who abuse this weakness of his. It does not exercise 
 any control over lawful guardians.^ 
 
 § 192. Feudal Law.^ — The proprietary guardianship of barba- 
 
 1 Heusler, II, 502, shows how German practice remedied the disadvantages 
 of the rule which held the rights of minors in suspension; in case of alienation 
 of the lands of a minor or lands belonging to his relatives, for which his con- 
 sent was required, security was given to the grantee in view of the supposition 
 that the minor might plead his rights (ex. 1259, 1293, 1302, "amici recog- 
 noverunt esse proficua"). From the beginning of the fourteenth century 
 the guardian acted in the name of the child; at Magdeburg he can dispose 
 of his acquests; for personal belongings he has to have the consent of his 
 relatives. In the same way the guardian is allowed to contract debts in the 
 name of the minor; formerly there was no need for him to do this because he 
 had to support the minor out of his own personal belongings: when he lost 
 a right to the issues he had to have some resources. Such rights as these 
 conferred upon a guardian led to the establishment of a system of controlling 
 tutelary administration (reinvestment of immovables which were alienated, 
 annual accounts). 
 
 2 "Cap. Langob.," 782, 5; 802, 5; 801-813; 810, 20; 801, 813, c. 2, etc. 
 (I, 192; 93; 157; 171). These texts merely lay down a principle without 
 elaborating it: "Sachsensp.," I, 4; "Magdeb. R.," 60; cf. "Rib.," 81; "Roth.," 
 204; "Liut.j" 19, 74, 75, 149; "T. A. C, Norm.," 3. _ Already the laws of the 
 Lower Empire contained protective provisions for widows and orphans. 
 
 ' Heusler, II, 483, denies the existence of the high guardianship ("Ober- 
 vormundschaft") of the king, which was rather generally admitted: cf. Kraut, 
 I, 64, etc. 
 
 ■* The action of the State was not felt for a long time. Thus in Switzer- 
 land the complaint of the minor against the guardian became possible only 
 in the thirteenth century, and then, again, only in towns; a supervision of 
 the guardian by the public authorities only dates from the sixteenth century: 
 Huber, IV, 515. In Germany there are town statutes relating to guardian- 
 ship and the control exercised by the Council of the Town, etc.: Breslau, 
 1339; "Ord.," 1548, 1577; Colleges of Wards, Nuremberg, 1399, etc. 
 
 ^ Cf. especially D'Arbois de Jubainvillc, op. and loc. cit. There is scarcely 
 any subject with regard to which the interference of opposed lines of thought 
 
 237
 
 § 192] THE FAMILY [Chap. I 
 
 rian times had not disappeared at the time of the feudal period; 
 it was applied to fiefs under the name of lease; at the same time, 
 guardianship by appointment, which was scarcely known, became 
 organized, thanks to the king and the Lords-Justices, who con- 
 tinued the work of the Frankish princes and developed it more 
 and more with the assistance of Roman precedents.^ This double 
 system became complicated by the addition of seigniorial protect- 
 Hon, that is to say, by the taking back of the fief by the lord who 
 had granted it, because the minor could not render him feudal 
 services.^ This was a conflict between the interest of the lord, 
 that of the family, and that of the minor, which was often settled 
 in a very simple manner by plurality of guardians hij^s; ^ the minor 
 had as many guardians as he had kinds of property, which was 
 possible because the first concern was not the protection of the 
 minor. As progress was made towards this idea, it became neces- 
 sary to urge the opposite principle of unity of guardianship. The 
 lord was the first to lose his rights, because the history of the fief 
 can be summed up, as we have seen, in the continuous disposses- 
 sion of the lord by the vassal ; the prerogatives of the family stood 
 their ground longer; but during the monarchic period an almost 
 complete revolution had taken place in favor of the minor, realiz- 
 ing Beaumanoir's formula, 13, 12: "By common law, the lord (we 
 would say the State) is bound to protect the rights of all those who 
 are under age." ■* 
 
 § 193. Seigniorial Protection ^ was less a guardianship than a 
 
 and inaccuracy of terminology in documents have created more difficulties 
 for tlie legal historian. 
 
 1 Beaumanoir, XVI, 2: "In the common law everybody under age is in 
 the custody of the lord within whose jurisdiction he may be." From whence 
 it follows that the lord should appoint a guardian for anybody who has not a 
 legal guardian, and, if he should not find any, he should himself serve as guar- 
 dian: P. de Fontaines, 14, 6, 18. This finally became the only form of custody 
 through assuming the form of Roman guardianship. Cf. Pollock and Mait- 
 land, II, 443. 
 
 2 Normandy, Brittany. Elsewhere seigniorial custody is subsidiary to 
 the lease and is not clearly distinguished from conferred custody or guardian- 
 ship instituted by the lord justice. 
 
 3 Stobbe, IV, 441. 
 
 4 "Cap.," 802, 5; 805, 24; 806, 3; P. de Fontaines, 14, 18; "Jost.," p. 68; 
 "L. d. Droiz," 921. 
 
 * Du Cange, see "Custodia," "Gustos"; Ragueau, see "Garde Noble 
 Royale"; Beaumanoir, 16 (banns and custodies). Norman books of Cus- 
 toms ("Summa," 31, "Gr. C.," 33), and English authors; Blackstone, Pollock 
 and Maitland., I, 299. De Fort, "Garde Noble Royale en Norm.," 1691; 
 D'Arbois de Jubainville, p. 420; "Bret., T. A. C," 230; "N. C.," 78 ("assise" of 
 buying back, 1276); D'Argentre on this art.; Planiol, p. 470. — The "Libri 
 Feudales" do not mention seigniorial custody. — As to "Anevelle" and 
 the survivals of it in German law, cf. Stobbe, § 119, IV, texts and bibl.; " Auctor 
 
 238
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 193 
 
 taking back of the fief by the lord, a taking back which was at 
 first absolute, and then temporary (c/. feudal confiscation and 
 seizure), because the minor vassal was incapable of rendering the 
 feudal services (for want of men). It was connected with the per- 
 sonal custody of the minor and the "custodia orphani" (Nor- 
 mandy): the wards had to be brought up "in bonis domibus"; 
 they would be devoted to the lord with whom their youth had 
 been passed, and the latter would treat them as his own sons.^ In 
 the sixteenth century these feudal ideas were forgotten; the lord 
 had only the custody of his vassal as an exception (" Normandie," 
 217). This custody, outside of rights over the person of the 
 minor,^ assured him,^ perhaps for many years, the revenues of the 
 fief; ^ and in this way it was not without danger for the minor and 
 the family; they had always to take care lest this use should be the 
 forerunner of an absolute despoliation, at which unscrupulous 
 lords would not hesitate if the occasion were presented them, al- 
 though it might be illegal.^ For the lord himself the custody was 
 
 Vetus," I, 67; "Schwabenspiegel," II, 47, 101. — There has been a desire, 
 which seems to us erroneous, to connect the seigniorial custody or lease 
 with the avowery of the churches. Still less is it derived from the royal 
 "mundium" which would have passed to the lords, for this "mundium" is 
 exercised only if there are no relatives, whereas the seigniorial custody ex- 
 cludes the rights of relatives. 
 
 ^ "T. A. C., Norm.," 11: justification, under the form of a dialogue of the 
 preference given to the lord over the mother and collaterals: "N. C," 213; 
 Glanville, 7, 9. Case in which the vassal has several lords; the custody of 
 the person belongs to the liege lord, that of each fief to the lord granting it : 
 in Normandy the duke, when he has the custody "ratione ducatus," talves 
 all the fiefs and escheats of the minor: "Summa," 31, 6. Privileged Custody 
 of the King: Pollock and Maitland, I, 302; Bracton,io. 87; "Charter of 1215," 
 c. 37, 43. 
 
 2 Marriage of daughters (consent of relatives): "Summa," 31; "A. C, 
 Picardie," ed. Marnier, p. 6, 58; "Ord.," 1246, 2; "Const. Sic," 3, 23, 1; 
 Ph. de Navarre, 86; Laboulaye, "Cond. d. Femmes," p. 256; Pollock and 
 Maitland, I, 300 (marriage of sons); Bracton, fo 89: "vendere maritagium." 
 
 * Loysel, 4, 3, 24. The lucrative character comes out strongly in the 
 power of transmitting the custody to testamentary executors {Littleton, § 123), 
 of conferring it upon some one {Glanville, 7, 10), and of selling it at auction 
 ("Ord." of 1309, I, 460). 
 
 * He also acquires the movables. C/. acquisition of movables in case of 
 the custody of churches, prerogative (see "jus spoHi"). He should neither 
 decrease the value of nor sell the immovables: Glanville, 7, 9; Britton, 66; 
 "Gr. C, Norm.," 33. — C/. as to German law: Stohhc, II, 432 ("Anevelle" 
 or "proventus bonorum" conferred upon the lord who may either keep it 
 himself or confer it upon a third party) : IV, 450 ("Anerbe" and "Bauergut"). 
 — The "T. A. C, Norm.," 11, 3, however, says: "exitus terre ponent in pro- 
 vectum parvulorum." Cf. "Anjou," " Maine": delay of minority (enjoyment 
 of two-thirds by the lord). 
 
 ^ Richard de Normandie maltreated by Louis d'Outre-Mer: "Hist. Franc," 
 IX, 52; Maricne, "Ampl.Coll.,"I,621; Brussel,l,3l3; "Close" on "T. A. C, 
 Norm.," 11; "Summa," 31, 16. 
 
 239
 
 § 193] THE FAMILY [Chap. I 
 
 not always without its inconveniences, because it carried with it 
 obUgations;^ the loss of the right of relief^ and the seizure of 
 several fiefs could be a source of embarrassment for the lord. It 
 was for this reason, and because of the general reasons given above, 
 that seigniorial protection disappeared, excepting in Normandy ; ^ 
 the lord had to authorize the minor vassal.* It was finally abol- 
 ished the 6th of :March, 1790 (Decree of March 15 to 28, 1790, 
 I, 12).^ 
 
 § 194. The Lease of Fiefs ^ almost everywhere did away with 
 seigniorial protection.^ The proprietary guardianship of former 
 
 1 (A) To support and bring up the children. At least, if they have no other 
 possessions: "Norm.," 218, 219; Beaumanoir, 15, 19; cf. 21, 14; "Gr. 
 Gout.," 2, 29. The lord justice who has the custody of minors who have no 
 fortune is not held bound to support them. — (B) To pay debts. Upon taking 
 the movables they should have paid all the debts. In Normandy and in 
 England the lord only paid debts wliich came due during his custodianship 
 and up to the amount of his emolument: Glanville, 7, 9; "Norm.," 215. In 
 other countries where the custody was subsidiary and scarcely ever existed 
 excepting in the case of a poor inheritance, the lord escaped the payment of 
 debts by not taking the movables: Beaumanoir, 15, 13. For their part the 
 creditors could neither have the issues sold nor take possession of the fief. 
 
 2 "Summa," 31, 12. Thus the changing of the lease into a buying back in 
 Brittany is to be accounted for: Mesle, II, 77. 
 
 3 In Normandy the king puts up for sale the lease or guardianship among 
 the relatives of the minor. After the sixteenth century he makes a gift 
 
 ■ of the lease to the guardian or to the near relatives for a nominal price. 
 
 ^ "A. G.," 28; Boutaric, II, 29. 
 
 ^ England: abolished under Gharles II. 
 
 6 See: "Fiefs," "Feudal Rights"; see Ragueau, Du Cange; see "Bajulus," 
 "Ballum," "Usat.," "Barchin.," 103: "tutores vel bujuU respondeant, si 
 voluerint, pro pupillis." Under the Lower Empire "bajulare" means to 
 carry a child, in speaking of a nurse. From this is derived the meaning of "to 
 keep" or "to govern" : Viollet, p. 536, cites Tardif, " Mon. Hist.," p. 34: " boves 
 quos, bajolat." As to the use of this word in Italy: Fertile, III, 466 (eighth 
 century). " Bail" is applied rather to possessions, "garde" to the person; but 
 the meaning of these two words is not very well fixed. One will notice that 
 "bail" and "garde" mean the function and the person who exercises it at 
 one and the same time; but the person is also called the "baillistre," the 
 "gardien." Loysel, 176: "bail, garde, mainbour, gouverneur, legitime, 
 administrateur et regentant sont quasi tout un"; 178, "Le mari est bail de 
 sa femme." Numerous texts, cf. especially: J. d'Ibelin. 170 et seq., 243; 
 Ph. de Navarre, 22; Beaumanoir, c. 15 et seq., 21; " Jostice," pp. 58, 221; "Et. 
 de Saint Louis," ed. Viollet, II, 219 and 398 (see Table); P. de Fontaines, 
 c. 14, "Artois," 29 et seq.; "Gr. G. de Fr.," II, 41, 42 (p. 373 et seq.); "L. d. 
 Droiz," see Table; Boutaric, I, 93; "Vermand," no. 320; Loysel, I, 4. — 
 This feudal institution exists in Germany and Italy. — Beugnot in his ed. of 
 Beaumanoir, I, 244 (texts); Britton, 66; J. d'Ibelin, 170 (Beugnot's note); 
 Chassaneus, on "Burg.," p. 852; Mesle, II, 74; Cauwes, "Gr. Encycl.," see 
 "Bail," "R. h. Dr.," XIV, 538. 
 
 "> At what date? At a very early period, no doubt. During the thirteenth 
 century custodianship is already the exception: "Bret., A. G.," 78. Ghanging 
 of the lease into buying back (1276); whatever age the heirs may be, the lord 
 will demand a buying back and will not seize the fief: Bemimanoir, 15, 13, 19. 
 If there is no guardian ("baillistre"), the lord holds the fief for lack of a man 
 to represent it until the coming of age of the vassal: Pothier, "Introd. au 
 
 240
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 194 
 
 times, whose obsolete character had persisted for pecuhar reasons, 
 due to the nature of the fief,^ was known by this new name; the 
 feudal service demanding that the guardian should risk his life, he 
 was allowed, as a compensation for the dangers which he ran, the 
 old advantages, which it was far more difficult to justify in the 
 case of lands held in villeinage. 
 
 To Whom did the Lease belong? — The lease was conferred 
 by the Custom because "protection and custody are custom- 
 ary," ^ whereas, guardianships were granted. It belonged to 
 the nearest relative on the side from whence the fief came, that is 
 to say, to the heir presumptive to the fief, provided that he was 
 able to officiate,^ It was ordinarily a collateral, and not an as- 
 cendant, for "feuda non ascendunt"; ^ at the same time the lease 
 was also granted in exceptional cases to the father or the mother.^ 
 
 T. des Fiefs, C. d'Orleans," X, 315; Lauriere, on Loysel: the lord began by 
 entrusting the fief to the one of the relatives who seemed to him to be the 
 most likely to render the feudal services: cf. "Assise Geffroi," Art. 3. 
 
 1 Tendency for the lease to be changed into a guardianship in the interests 
 of the minor: '' Artois," 29, 8: the lease is granted at law, securitj^ and pledges 
 are assured the minor, etc. (according to the written laws): "L. d. Droiz," 
 420, 768; "Const. Sic," III, 30: the person having the lease is obliged to 
 rGnQPr Rn 3;Ccoiirit 
 
 ^Loysel, 185. ' Cf. "L d. Droiz," no. 420; Boutaric, I, 93, p. 526: he 
 who has a right to the lease claims it at law; p. 528. He gives it up in the 
 court of the lord; in both cases the procedure is by the "rain et baston," as 
 in the case of a conveyance. 
 
 ' That is to say, he has attained his majority (cf. "Lorris," 48, 63; "L. d. 
 Droiz," no. 876; "Paris," 270); Beaumanoir, 15, 2; J. d'Ibelin, c. 177, 172, 
 compels the woman who has a lease to marry. — "Gr. Cout.," 2, 41, 29; 
 "Artois," 157. The second marriage carries with it the loss of the lease by 
 the mother, but not by the father, according to several Customs: "Tour.," 
 339; "Blois," 2, 9, etc. Finally, Loysel, 197, says, speaking generally, that 
 lease or custody is lost when the keeper remarries: "Ord.," 1246 ("Maine"). 
 
 ■' "Jost.," p. 221; Beaumanoir, 15, 2, 14 (sister); 16, 14 (brothers); 
 Desmares, 256; "Gr. C. de Fr.," 2, 27, 28, 29 (grandparents), 41; "Cout. 
 Not.," 25; "Et. de Saint Louis," I, 17; "Anjou," 89; "Maine," 202 Bou- 
 taric, I, 93; Ragueau, see "Bail." Same order as in matters of inheritance, 
 primogeniture, preference of males: D'Arbois, III, 139; Loysel, 188; "A. C, 
 Vermandois," no. 285; "A. C, Artois," 19, 5; Beaumanoir, 15, 7, 10. See 
 the "Confer, de Coutumes" ("Berroyer," " Guenois"). 
 
 * J. d'lhelin, 170: The father and mother who have the lease of their 
 child also have the custody of him, "because tenure of the fief cannot descend 
 to him." Beaumanoir, 15, 9, gives the custody of the fief to the surviving 
 si)ouse: cf. 21, 9; but this custody cea.ses when one of the children, having 
 attained majority, asks for partition and takes ui)on himself the lease of the 
 younger children: among commoners there is equality and no custody; this 
 IS the case where the law, at the request of the relatives, removes the custody 
 from the survivor in the inter(;st of minors. In case of second marriage, 
 buying back by the .stepfather, according to Beaumanoir, 21, 15; Loysel, 197, 
 "Lease or custody is lost through misuse or when the keeper remarries": 
 "Paris, N. C," 268; "Artois," 157. Sometimes there is a distinction between 
 the widower and the widow: "Tour.," 339; "Melun," 285; "Bourg.. A. C," 
 106: eldest son to the exclusion of the father or mother. 
 
 241
 
 § 194] THE FAMILY [Chap. I 
 
 When the minor had paternal and maternal fiefs at the same time 
 he had two guardians.^ As the guardian in his quality of heir pre- 
 sumptive had an interest in getting rid of the minor, in order to 
 take possession of his property himself, the custody of the person 
 of the minor and his education were confided to a relative who had 
 no claim upon his inheritance (ascendant, maternal relative) : " he 
 should not have the custody of the fleece who has that of the 
 parchment." ^ For the relative who obtains it, the lease is like 
 an anticipated inheritance; ^ his interest being especially brought 
 into play, he is free to give it up: "he who does not wish to does 
 not accept lease or custody." ^ 
 
 § 195. Rights of the Guardian. — During the time the lease 
 lasted the guardian had the rights of an owner. ^ He took the title 
 belonging to the fief, received the homage of the vassals, could de- 
 mand of them the feudal services, exercised the rights of use ap- 
 pertaining to the fief (for example, confiscation with the power of 
 conferring a favor in its restitution) ; ^ he was reputed to be the 
 vassal with respect to the over-lord, and reputed to be the lord with 
 respect to the vassals of the minor. ^ He collected for his ow^i bene- 
 fit all the issues and income from the fief.^ All the movables were 
 
 ^ Beaumanoir, 15, 5. 
 
 2 This modification in the Customs of the system of the "mundium" 
 seems to be very old. It is expressed in the formula, "The custody goes to 
 the ascendants, the lease to collaterals": Ragueau, see "Garde," "Gardien"; 
 Ph. de Navarre, 20, 22; J. d'Ibelin, c. 168, 169 (fear lest greed should tempt 
 the guardian to defraud his ward): Beaumanoir, 6, 8; 15, 10; 21, 4; "Et. de 
 Saint Louis," I, 117; "A. C, Artois," 29, 4; "L. d. Droiz," no. 466; Loysel, 
 176 (cites de Fortescue). The dividing up of guardianship is found in the old 
 public law, less, perhaps, with a view of preventing usurpation on the part of 
 a regent than because it is difficult for the latter to be occupied at one and the 
 same time with the education of the king who is a minor and with the govern- 
 ment of the kingdom; cf. the will of Louis XIV confiding the regency to the 
 Duke of Orleans and the custody of the king to the Duke of Maine; Viollet, 
 p. 540, 4; "Const.," Sept. 3-14, 1791, 2, 1; Law on Regency of Aug. 30-31, 
 1842. 
 
 3 With this difference, that the lease cannot be divided up: Beaumanoir, 
 15, 21; "Jostice," p. 221; "Ass. de Jerus.," "Clef, des Ass.," 259. Cf., 
 however, "Blois," 4. 
 
 « Loysgl, 179; Beaumanoir, 15, 3, 4; "Olim" II, 240 (in 1284). But it is 
 no more possible for the guardian to deprive his family by ^"ill or sale than it 
 would be for liira to take away from it a personal belonging: Loysel, 196, 
 "Lease or custody cannot be transferred to another." Beautemps-Beaiipre, 
 IV, 169. Cf., however, "Norm.," 215. The advantages, issues and revenues 
 could obviously be granted. 
 
 * Only over fiefs, and not over manors which might belong to a minor; 
 he was not even allowed the use of the latter: Beaumanoir, 1.5. 6. 
 
 6 Marthne, "Ampl. Coll.," 1, 1239; Ragueau, see "Bail"; Boutillier, I, 
 93; II, 15; Brussel, I, 29; Loysel, 191 (buying back). 
 
 ^ However, "the guardian neither of property nor of person can receive 
 tenures or lease them : Loysel, 195, 647, 648; Beaumanoir, 45, 39; "Paris," 43. 
 
 8 "Jostice," pp. 58,221; "Gr. Cout.," II, 28 (which here contrasts the 
 
 242
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 19G 
 
 acquired by him as absolute owner.^ On the other hand, he did not 
 have the right to dispose of the immovables, and in a general way 
 he was not permitted to do any act which might later on prevent 
 the minor from taking back his fief and enjoying the benefits of 
 it.^ Bad administration on the part of the guardian^ laid him 
 open from the thirteenth century to having surety demanded 
 from him,'* or even to losing the lease: ^ "lease or custody may be 
 lost by abuse," ^ it was said in the sixteenth century, contrary to 
 the old law. 
 
 § 196. Obligations. — In return for the advantages which he 
 obtained from the fief the guardian was held bound under heavy 
 obligations: 1st. To render fealty and homage,^ to pay ransom ^ 
 and render all the feudal services at his own expense.^ 2d. To pro- 
 vide for all the expenses of the child. ^^ 3d. Finally, to pay the debts 
 of the deceased,^^ whether or not they were greater than the per- 
 
 guardian of countries of written law with the Customary lease). "Et. de Saint 
 Louis," I, 17; Beaumanoir, 15, 27 (letting without fraud); "Vermand., 
 A. C," 280; "Lorris," 37. — Acquiring by the minor: cf. Beaumanoir, 14, 30; 
 "Sachsensp.," I, 23, 2. 
 
 1 Beaumanoir, 15, 10; P. de Fontaines, 15, 40; "Gr. Cout.," II, 27; II, 
 41; I 29; "Cout. Not.," 25; Boutillier, I, 93; Brussel, I, 218. This right 
 over movables was taken away from him Uttle by little: D'Arbois de Jubain- 
 ville, 1851, p. 162. 
 
 2 P. de Fontaines, 14, 9; Beaumanoir, 15, 8, 28. The binding (mortgage) 
 of the fief is valid only during the time of the lease: lb., 15, 15; 28, 6. Dis- 
 traint upon the fief because of a tort of the guardian was effective only 
 during the lease: lb., 14, 17. — The forfeiture of the guardian did not carry 
 with it confiscation to the detriment of the minor: lb., 15, 9. — The guardian 
 has no right to make a new tenure or to unmake one already existing, because 
 the vassal who wrongfully withdraws from his tenure forfeits his fief: lb., 45, 
 39; Loysel, 1, 4, 20. 
 
 * Obhgation to keep the land "in bono statu": "Et. de Saint Louis," I, 17; 
 "Jostice," p. 58; "Gr. Cout.," II, 29; Beaumanoir, 15, 11 and 12. 
 
 * Beaumanoir, 15, 12. Cf. "Amiens," 131, which gives the ward only a 
 right to an indemnity. 
 
 6 "Et. de Saint Louis," I, 27; "Marche," 75 ;_ "Melun," 292. 
 
 ^ Loysel, 197: or when the custodian remarries: and it is terminated by 
 the coming of age or death of the minor. 
 
 7 "Ass. deJ(5r.," "Geoff, le Tort," 18; Beaumanoir, U, 17; 15,3; Boutaric, 
 I, 93; "Gr. Cout,," II, 29; "Jostice," p. 254; La Thaumassihre, "Cout. de 
 Berry," p. 344. 
 
 8 Beaumanoir, 15, 3, 8 (security for the payment); "Gr. Cout.," II, 32; 
 n, 29. Cf. D'Arbois, IS51,U\; "Ord.," 1246. But the buying back cannot 
 take place in the direct line: Beaumanoir, 15, 10; "Jost.," p. 243; "Gr. 
 Cout.," II, 27, p. 291; Desmares, 194, 206; Loijsel 191 et scq., 195, 199. If the 
 mother enters into a second marriage the stepfather may buy back. The 
 guardian does not enter into the transaction and does not pay for the buying 
 back. 
 
 ' Marnier "A. C. de Picardie " p. 7. 
 
 10 Ph. de Navarre, 20; J. d'Ibelin, 170; "Et. de Saint Louis," I, 121; Beauma- 
 noir, 15, 6; 21, 12; "Anjou," 89 (fixed amount). Generally estimation by 
 the judge. Cf. "Wis.," 4, 3, 3. 
 
 " The liabiUties go with the movable assets. Cf. "Inheritance," "Olim," 
 
 243
 
 § 196] THE F-UIILY [Chap. I 
 
 sonal assets received; legacies, which were originally exclusively 
 in personal property, were charged, as were debts of personal 
 property, to the heir of the personalty, and, as a consequence, to 
 the guardian: ^ "he who takes a lease, gives it up free from debt." ^ 
 
 The lease ceases on principle at the majority of the vassal:^ 
 but it depends upon him whether he will prolong it indefinitely 
 by not asking for the restitution of his possessions, and provided 
 that the guardian does not compel him to take them back.^ 
 
 § 197. Nobleman's Custody. — In time, the feudal obligations 
 having disappeared in the same way as military service, the lease 
 held by collaterals had no longer any reason for existing. It was 
 done away with in many Customs, for example, in the Custom 
 of Paris,^ and the only corresponding institution which one finds 
 during the monarchic period is the nobleman's custody, ordinarily 
 conferred on the ascendants alone, or even only on the father and 
 mother. The nobleman's custody was only the old lease preserved 
 for the benefit of this class of relatives,® who had always enjoyed 
 the custody of the person, deprived of many of its effects,'^ and 
 which had become a privilege of nobility.^ Acceptance, which was 
 
 II, 95, 240; Beaumanoir, 15, 3, 4, 10, 16; "Jostice," p. 221; "Artois," 29; 
 " Jost.," pp. 5S, 221; "A. C, Verm.," 280; "Ord.," 1246; "Gr. Cout.," II, 41; 
 Desmares, 185; "Gout. Not.," 25, 28, 100; Boutaric, I, 93. — The creditor 
 could proceed against the minor who had come of age only if the guardian 
 were insolvent or absent, or if he himself were absent, or, again, if the debt 
 came due after the expiration of the lease: Beaumanoir, 15, 16 to 26. 
 
 ^ Beaumanoir, 15, 10; "A. G. de Picardie," p. 7. Cf. Boutaric, 1, 93. 
 
 2 Loysel, 186; Beaumanoir, 36, 14, 16; 15 (I, 244, ed. B); "Gr. Gout.," 
 II, 41. 
 
 ^ Other methods: Loysel, 197. 
 
 ^ Beaumanoir, 15, 14: implied prolongation (without fraud to the rights 
 of the lord). 
 
 5 Ferriere on "Paris," vol. 12; Guyot, see "Garde"; Renusson, "Tr. de la 
 Garde " 1743; Mesle, II, 74. Cf. Stobbe, § 119, IV. 
 
 s Abandonment of the rule, "Fiefs do not ascend " : post, "Disabilities"; 
 Loysel, 184, "Forfeiture"; "Paris," 286. Elimination by contract of mar- 
 riage: Pothier, no. 45, etc. 
 
 _' Thus, at least in Paris, he does not render fealty and homage, for the 
 minor is given some toleration; he does not pay for the buying back: "A. G.," 
 32; "N. G.," 46. Exemption from registration fees, laws of Sept. 20 , and 
 Oct. 9, 1791. Whereas the guardian of the property is a true vassal, the 
 nobleman guardian is merely a usufructuary who is obliged to use the prop- 
 erty as a good father of the family, no longer gaining the movables and losing 
 his rights because of misuse. 
 
 8 Contra, Beaumarioir, 15, 23: lease of commoners who had a fief. Con- 
 versely, custody of the copyhold which belongs to a minor who is a noble: lb., 
 21, 10. It is the kind of property which must be taken into consideration, and 
 not the rank of the person. — Cf. "Gr. Gout.," II, 41; Pothier, no. 31: the 
 Customs confer nobleman's custody only upon nobles and over nobles. Thus 
 at this time the lease no longer depends upon the kind of property, but upon 
 the rank of persons. It is no longer regulated according to the special capacity 
 required for the service of the tief. Thenceforward nobleman's custody 
 
 244
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 197 
 
 still optional, for those who had the right to it, was made in court.^ 
 The characteristic which chiefly made nobleman's custody similar to 
 the lease was that it involved a right of enjoyment, but it was less 
 extensive; it only affected the inheritance of the predeceased 
 father or mother; ^ the possessions given or bequeathed to the 
 minor, those which had accrued to him by way of inheritance 
 from ascendants or collaterals, were not subject to this usufruct; 
 they were administered by a guardian who did not have the profits, 
 and who was, perhaps, moreover, the nobleman custodian himself. 
 As to the increase in movables, the Court of Paris did not grant it 
 to the custodian, and, as a consequence, it compelled him to make 
 an inventory,^ without going so far as to demand surety.^ His 
 obligations consisted in providing for the support of the minor, 
 in administering the property, and in discharging the debts; ■'' 
 this last, which it is rather hard to justify in the case where the 
 custodian had no more personal property, was looked upon as 
 the compensation for the advantage of having the increase of the 
 income, A tendency to restrict the obligation of the guardian, as 
 far as this matter is concerned, is noticeable in the jurisprudence, 
 and several of the Customs did not look upon it as being held 
 "ultra vires"; in Paris and Orleans the nobleman's guardianship 
 was looked upon as a sort of contract, under which the custodian 
 ran the risk of losing or winning: he was compelled to liquidate 
 all the charges, even over and above the amount of his emolu- 
 ment. Differing in this way from the guardian, the custodian did 
 not represent the minor; he acted "proprio nomine," because of 
 
 affects all the property of the minor: " Paris." 267. Cf. Boutaric, I, 93, pp. 526, 
 528. See " IndivisibiHty of the Lease. — The expression, "Nobleman's 
 custody" had at first nothing technical about it. 
 
 1 "Paris," 269, and Commentaries. Contra, "Orlc^ans," 23; acquiring 
 of absolute right excepting for renunciation. — Renunciation is looked upon 
 by our old jurisconsults as being disadvantageous. 
 
 ^ "Tours," "Loudun," Pothier, Renusson, etc. General usage, cf. "Nov.," 
 118, 2. Contra, " Anjou," " Maine," Peronne, Dumouliii, Bacquet, De Lauriere, 
 "Paris, A. C," 99 and 100, "N. C," 267, 270, 46. 
 
 ' "Movables do not come under guardianship": for example, the "Cout. de 
 Berry," which, however, gives the movables to the custodian. Sanction: 
 Dumoulin, on "Bourb.," 147; "Paris," 240. Proof by means of general 
 reputation. 
 
 * Contra: Beaumanoir, 15, 31; 21, 18; "A. C, Picardie," p. 6; Bou- 
 taric, I, 93; Order of 1309 ("Ohm"), Acceptance at law implies a general 
 mortgage. 
 
 ^ Pothier, no. 86; Civil Code, 385, 3 and 4, Thus, differing from what 
 took place in the case of a lease, the minor was not released as far as his cred- 
 itors were concerned; the latter could pursue him, but the custodian had 
 to indemnify him: "Paris," 267; Renwsson, c. 7; Fr. Duranton, "R. h. Dr.,'* 
 1858, 47. 
 
 245
 
 § 197] THE FAMILY [Chap. I 
 
 his own right; furthermore, he could not plead ownership of the 
 property, because he only had the enjoyment.^ 
 
 § 198. Plebeian Custody, which we call plebeian,^ in order to 
 distinguish it from nobleman's custody and citizen's custody, was 
 applied to property which did not belong to noblemen : ^ "in vil- 
 leinage, common or plebeian land is not leased." ^ And the prin- 
 cipal difference between the lease and the custody was that the 
 latter did not carry with it the use of the property; as the copy- 
 holder had only to pay a quit-rent in money, and not to risk his 
 life, as did the vassal, there was no reason to grant him so great 
 an advantage. At an early period, no doubt, plebeian custody 
 had lost the usufructuary character of the old guardianship.^ 
 When the lease became changed into nobleman's custody, plebeian 
 custody was conferred less by reason of the nature of the property 
 than of the grade of the persons; it had to do with plebeians over 
 plebeians. The nearest relative of the minor ^ took the custody 
 of his person ^ and administered his goods; ^ he did not have the 
 use of them,^ had no right to movables nor credits, must set aside 
 the issues and income, did not pay the debts, and was held to ac- 
 count for the property and had to give surety .^° Plebeian custody 
 
 1 Pothier, no. 73; " Paris, N. C," 270. A guardian or a custodian is named 
 for the lawsuits of the minor. Costs: the guardian advances them accord- 
 ing to the custom of the Chatelet. Civil Code, 613. 
 
 2 Cf. Beaumanoir, c. 15, 16, 21; "A. C, Verm.," 289; Glasson, VII, 198; 
 "Garde Simple"; Pollock and Maitland, I, 302: " Guardiansliip in Socage"; 
 Glanville, 7, 9; Bracton, fo. 86. 
 
 ' Belonging to noblemen or persons who were not noblemen: Beaumanoir , 
 15, 4; Naples adage: "baillius in feudis, tutor in burgensaticis." 
 
 4 Loysel, 189; Beaumanoir, 15,7, 23; "Et. de Saint Louis," II, 18; "Or. 
 Cout.," II, "De Garde." — If the survivor of the spouses and the minor lived 
 together: Beaumanoir, 15, 10 (continuation of the community), wliich ia 
 only possible among commoners, there can be no question of custody: Ibid., 
 21, 9, 10, 23; 15, 7. — Mesle, II, 115. — In German law cf. " Interimswirth- 
 schaft" of the "Bauerngiiter," Stobbe, § 135. 
 
 ^ Cf. the "sponderagium" of the Custom of Toulouse (from "spondere"). 
 The "spondarius" or testamentary guardian does not make any inventory, 
 does not furnish any surety, is believed upon his own oath on the subject of 
 the administration of the guardianship, can sell the property of the minor 
 after having advertised the fact three times. Reforms of the "Arrestum 
 Sane," written at the end of the manuscript of the "Coutume de Toulouse," 
 ed. Tardif., Pollock and Maitland, 303: the Provisions of Merton compel the 
 guardian to render an account. 
 
 8 Whether paternal or maternal, whether the property comes from the 
 father or the mother: Beaumanoir, 15, 32 (case of exclusion); 16, 16, 17. Cf. 
 21, 18. 
 
 ^ Torts of the minor: Beaumanoir, 21, 20, 21. 
 ^ Beaumanoir, 15, 12, 7, 10. 
 
 9 Id., 14, 30; 21, 14; 15, 6. 
 
 1" Id., 15, 5, 7, 12: to the relatives, or to the lord justice if the relatives do 
 not demand it; cf. 21, 18; Boutaric, I, 93. 
 
 246
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 200 
 
 was similar, however, to the lease in that, like the latter, it was not 
 compulsory; ^ Pothier maintains, however, that the Customs vary, 
 and that there was a tendency to compel the acceptance of the 
 custody. In every other respect this institution was scarcely more 
 than a proprietary guardianship under a Customary name. It 
 terminated, as did nobleman's custody, by reason of majority or 
 marriage,^ abuse of its enjoyment,^ or the second marriage of the 
 surviving spouse.^ 
 
 § 199. Citizen's Custody,^ a remarkable survival of usufruc- 
 tuary guardianship, the origin of which our old authors mistakenly 
 attributed to Avritings of Charles V in 1371,^ was a sort of noble- 
 man's custody without feudal obligations, for the benefit of the 
 citizens of the town and suburbs of Paris alone.^ It only be- 
 longed, at least in the sixteenth century, to the survi\dng father 
 or mother,^ and never to the grandparents.^ It conferred the en- 
 joyment of the possessions of the minor, but not the ownership 
 of movables, and it ceased at the majority of the minor, which 
 majority was not the same as in the case of noblemen. 
 
 § 200. Modern Guardianship.^" — Excepting for a few traces of 
 the old family laws and feudal legislation, we have arrived at the 
 
 1 Id., 15, 7, 9 (comparison), 29. 
 
 2 Desmares, 249; "Gr. Gout.," II, 12; Beaumanoir, 15, 29. Cf. "Coming 
 of Age," "Emancipation." 
 
 ' According to Beaumanoir, 15, 12, the lord demands only guarantees. 
 
 « See "Modification of the old law": "Paris, A. G," 99, 100; "A. G., 
 Verm.," 289. "A fortiori" misconduct of the widow. 
 
 6 Ferriere on vol. XII of the "Gout, de Paris," and authors cited; Guyot, 
 see "Garde Noble"; MesU, II, 94, 107; Cauwes, "Gr. Encycl.," see "Bail." 
 
 « Ferriere, see "Garde"; Aug. 9th. Others, July 3d: "Ord.," V, 418. 
 Cf. Isambert, VI, 688 (letters of Gharles VI, of the 5th Aug., 1390); Glasson, 
 VII, 201, mentions two Ordinances of Gharles VI, of 1399 and 1409. Cf. 
 Chopin, on "Paris," I, 2; "Paris," 265. 
 
 ^ "Gout. Not.," 157: plebeian custody within the jurisdiction of the 
 Provost and the jurisdiction of the Viscount of Paris: "Paris, A. C.," 101; 
 "N. G.," 266. Viollet, p. 5,36, 3, cites a "Style du Ghatelet" (French Ms.), 
 1076, fo. 22: "ascendants have in Paris, but only in the suburbs, the custody 
 of plebeians; they take the profits themselves, do not pay the debts and do 
 not keep up the inheritance." Cf. "Gr. Gout.," II, 41, also a few Gustoms, 
 for example, "Galais." 
 
 8 "Gr. Gout.," II, 41 (p. 373 et seq.); "Paris, N. G.," 269; surety in every 
 case. 
 
 9 Cf. Roman usufruct of acquired property and Givil Gode, 386. 
 
 1" See the authors of Institutes, Pothier, Bourjon, etc., and special treatises 
 such as those of Ferribre and Mesle: Masuer, see "L. d. Droiz," 61. Order 
 ' of Lamoignon, title of Guardianship, Edict of December, 1732. Regula- 
 tions as to guardianship in Brittany {Mesle, II, 259). As to Normandy, cf. 
 Order of Regulation of the Parliament of Rouen, 1673: Cauvet, "Obs. s. le 
 R6gl. des Tutelles," 1777; Cauvet, "R. de L6g.," 32, 100. Flanders: Deghe- 
 wiet, p. 67. Lombardy: Lattes, "Dir. Gonsuet.," 275. Sicily: Brunneck, 
 "Sicil. Stadtr.," 69. 
 
 247
 
 § 200] THE FAMILY [Chap. I 
 
 Roman conception of guardianship; ^ it is a public duty regulated 
 in the interest of the minor.^ This is a remarkable evolution; and 
 for its realization nothing less sufficed than the disintegration of 
 the old family, the weakening of the rights of the parents, the 
 expansion of the prerogatives of the State, and the introduction 
 into procedure and the civil law of the new principle of repre- 
 sentation.^ The changes which it results in bear: 1st, on the 
 appointment of the guardian; 2d, on the control of his adminis- 
 tration; 3d, on the capacity of the minor. All these matters 
 converge towards a more complete and enlightened protection of 
 the minor. 
 
 § 201. In France every Guardianship is Appointive.^ — Where 
 there is no lease or custody, or, even, concurrently with lease or 
 custody, it is necessary to name a guardian for the minor. 
 
 ^ Which does not mean to say that the Roman laws have purely and simply 
 been put back in force. Astruc brings out very clearly the differences which 
 exist between these laws and the old practice. But a great deal has been 
 JDorrowed from the Roman law. On the other hand, in Germany, in spite of 
 its being copied after the Roman institution, guardianship is especially a 
 Customary institution: Heusler, II, 508. Stobbe, IV, 451, 12, establishes the 
 fact that usufructuary guardiansliip had disappeared before the Roman law 
 was received: "Schwabenspiegel," II, 52. As to how it came about that a 
 distinction was no longer made between guardianship and custody, cf. Stobbe, 
 § 264. Post, "Custody": "guardian and custodian are one." 
 
 2 One can say that in the fourteenth century the idea of protecting the 
 minor was the all-important thing; from that time on it entered more and 
 more into legislation and practice. — A salary paid to the guardian: Stobbe, 
 IV, 452 (Act of 1443). — The "Const. Sic," III, 30, compels the guardian to 
 render an account. In Sardinia usufructuary guardianship did not disappear 
 until 1827: Fertile, III, 405. 
 
 ^ It was especially in the towns that it came into existence first of all; the 
 communities such as those referred to in "M. G. H., S. S.," XX, 792, which 
 were composed of fifty persons, are no longer found excepting in the country. 
 
 * Loysel, 181, 183; Astruc, p. 26: even in countries of written law. 
 Guardianship which is by appointment, that is to say, conferred by public 
 authority, has been granted sometimes by the judge, sometimes by the town 
 councils; in France the conferring of guardianship is reserved, during the 
 monarchic period, to judges alone. The three kinds of Roman guardianship, 
 proprietarv, testamentary, and conferred, coexisted as an exception among 
 certain of'the Customs: "Bourb.," "Auv.," "Niv.," etc.; "Orl," 28, 178. 
 Cf. "Flandre," "Hainaut," "Boule," Britz. So that Lamoigne is com- 
 pelled to write in his "Arr. Tut.," 2: "Let us do away with testamentary, 
 proprietary, customary and natural guardianships." Similarly in foreign 
 countries the Roman distinction is often met with: Stobbe, IV, 436. In 
 Germany, however, the Ordinances of 1548 and 1572 forbade the investiture 
 of a guardian by means of a decree. — England: guardianship of the father 
 and the mother and the ascendants; these are the natural guardians; the 
 father does not have the legal enjoyment of the property of his children; he 
 is the proprietary administrator of it and is held to account. The "Siete 
 Part." distinguish, as do the Roman laws, between three sorts of guardianship. 
 It is the same in Italy: Fertile, III, 4i0: guardianship by contract, — for 
 example, by contract of marriage: Kraut, I, 263. — "Schwabenspiegel," I, 58; 
 II, 116; "R. h. Dr.," 165; Chassan., on "Bourg.," ed. 1552, p. 853. 
 
 248
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 201 
 
 Guardians by birth are no longer found; the appointment is made 
 in an assembly of relatives summoned before the judge at the 
 request of the most nearly related of them; the guardian is chosen, 
 on principle, among the relatives summoned; but, as it is neces- 
 sary that he be a fit person (intellectually and morally), capable 
 and satisfactory (possessions), the assembly has large discretionary 
 powers and can bring its choice to bear on a distant relative; ^ if 
 there are no relatives, a neighbor or a friend is designated. The 
 judge gives the guardian named by the relatives his authority by 
 means of a decree.^ Testamentary guardianship has disappeared, 
 as well as proprietary guardianship, in the countries of written 
 law, as well as in the countries of Customs; this is not because 
 no attention is paid to the appointment made by the father, and 
 even the mother, in their wills; but confirmation by the judge is 
 always necessary in the preceding forms, and it is from this that 
 the guardian derives his powers.''' On principle, guardianship 
 could not be given to women; there is no exception, unless in 
 the case of the mother and grandmother, who, in countries of 
 
 * Masuer, 5, 17, still shows us the preference which was formerly given 
 to the paternal relatives. As to maternal relatives, cf. "Schwabensp.," 59; 
 Kraut, I, 170. — Near relatives who do not ask for the appointment of a 
 guardian are deprived of the inheritance. 
 
 2 As to this procedure, cf. for more details Astruc, p. 45, and authors cited: 
 Pothier, etc.; Masuer, loc. cit.; Imbert, "Enchir.," see "Tutela"; Rebuffe, 
 "De Sent. Prov.," 2, 2, 6. — Responsibility of the relatives who make the 
 appointment in the South, in Normandy: "Dissens Domin.," p. 65. — Italy: 
 as to the choice of relatives for guardians cf. Fertile, III, 408. 
 
 3 Pothier, on "Orl.," 183; "Pers.," no. 145; Prevot de la Janes, 1, 16. 
 There are some Customs, however, in which it has been introduced. 
 "Bourges" in the twelfth century: "Ord.," I, 22; " Bourb.," 177; "Auv.," 
 11, 1; "Niv.," 30, 1; D'Arbois de Jubainville, "R. de Leg.," I, 295 (unpublished 
 document). Assise of Count Geffroi, 3 (feudal origin?); "L. d. Droiz," 420, 
 896; Masuer, 5, 3, 4; Beautemps-Beaupre, "Liger," 785. Opposition by 
 proprietary guardians (Act of 1349, Burg.). In Italy and in Germany we 
 find testamentary guardians at a very early period. At Milan, in 1152: cf. 
 "Consuetud.," 8 (in 1216): "tut. testamentarii, legitimi, dativi." "Fri- 
 bourg," 34; "Schwabensp.," 65, 22. Act of 1273 (cited by Heusler, II, 499) 
 according to which agnates renounced their right of guardiansliip at the same 
 time as the father named a guardian: Stobbe, IV, 436; Kraut, I, 202. Testa- 
 mentary executors are often at the same time guardians: "MontpeUier," 
 1205, 7 ("gladiatores"); cf. "Toulouse," 5, 8, 49, 160 ("si)ondarius," surety, 
 testamentary guardian). — Testamentary guardianship is also met with in 
 England (where the father may give up his natural rights to the guardianship), 
 anfl in Spain. In countries of written law the authors seem to disagree {Argou, 
 Boutaric, Serves, etc.); we must abide by Astruc's formula, which explains 
 their divergences of opinion, p. 26: "Unlimited confidence is shown in the 
 appointment of guardians which fathers have made in their wills; but, as it 
 is necessary that testamentary guardians should have their appointments 
 confirmed by the judge and should take an oath before him, it is sufficient if 
 we look upon them as having their guardianship conferred upon them." Id., 
 "Reims," 329; "Auxerre," 258, etc.; Edict of 1732 (Brittany). Cf. "Alais," 
 19; "R. h. Dr.,"15, 161. 
 
 249
 
 § 201] THE FAMILY [Chap. I 
 
 written law, and in several Customs, are looked upon as lawful 
 guardians.^ Excepting in cases where there is a proprietary ex- 
 cuse, guardianship cannot be refused.^ 
 
 § 202. Powers of the Guardian. — (A) Over the person of the 
 minor. As the guardian takes the place of a father to the minor, 
 his powers are, upon principle, the same as those of the father, but 
 with restrictions (correction, consent to marriage).^ — (B) Over 
 possessions. The guardian represents the minor under all condi- 
 tions ("factum tutoris, factum pupilli") ^ in everything which 
 
 1 The Guardianship of the Mother and of the grandmother date back to 
 the Lower Empire: "Cod. Just.," 5, 35, 2; 30, 4. C/. "Auth.," "Matri et 
 Avise," "Nov.," 118, 5, and "Sacramentum," "Nov.," 94, 2; "L. Rom. 
 Wis.," "Cod. Theod.," 17; "Nov. Theod.," II, 5; Papien, 36, 4; "Petrus," 
 I, 3. They are to be found already in the laws of the Burgundians and the 
 Visigoths: "Salis," "Z. S. S.," 18S4, p. 150; "Siete Part.," 6, 16, 4. Italy: 
 Fertile, III, 409. This form of guardianship is perfectly consistent under 
 a legislation wherein guardianship is entirely in favor of the minor, — all 
 the more so because the mother and the grandmother have his interests at 
 heart. In countries of written law they are legal guardians, but guardianship 
 is not imposed upon them; if they wish to undertake it they are not held 
 bound, as in Rome, to give up any idea of a second marriage ("Auth.," "Sac- 
 ramentum.") and the advantage given by the Velleianum Decree of the 
 Senate: Bugnyon, I, 94. If they do remarry, it depends upon the relatives 
 and the judge as to whether the guardianship shall be conferred upon them; 
 but when they do so without providing the minor with a guardian, they lose 
 the guardiansliip of him and his inheritance at one and the same time. Mis- 
 conduct on the part of the widow also causes her to lose the guardianship. 
 In countries of Customs, the same rules are generally applied, but the guardian- 
 ship of the mother and that of the grandmother are by appointment: cf. " Arr. 
 de Lam.," "Tut.," 20; Beaumanoir, 21, 8, 21, 24, shows us the mother who 
 survives, at the head of the community which continues to exist after the 
 death of the father; in a case of this sort there is no occasion for guardianship: 
 cf. 16, 7; Heusler, § 50; Viollet, pp. 641-673. It may also happen that she 
 already has the lease or the custody of the child under age. In the final 
 stages of the law the Custom of Paris still confers nobleman's custody and 
 citizen's custody upon the mother. "R. h. Dr.," 15, 163: Statutes of the fif- 
 teenth century in which the relatives give the guardianship to the brother, 
 to a stranger in the presence of the mother who has not remarried. — English 
 law : the mother becomes guardian of absolute right if there is no testamentary 
 guardian: Schroeder, p. 733. — Bastards: Mesle, I, 192; II, 288, 295; Ferriere, 
 "Tut.," p. 24. 
 
 2 Beaumanoir, 16, 3; Boutaric, "Inst.," I, 25; Astruc, p. 119, etc.; "Siete 
 Part.," 6, 17; "Mantoue," thirteenth century, II, 57: "nullus compellatur 
 tutelam et curam alicujus accipere"; "Aoste," II, 2, 30, excludes from the 
 inheritance of the ward a person who refuses the guardianship without any 
 reason. —Disabilities: "L. d. Droiz," 916; "T. A. C, Bret.," 67; "Const. 
 Leg. Pis.," 21; "Schwabenspiegel," I, 58; Schroeder, p. 733; Stohhe, IV, 442. 
 
 ' As to the education of wards, cf. Astruc, p. 86. — Stohhe, § 268; "Bail k 
 Nourriture" (Burgundy, Champagne, Lorraine): a third party takes it upon 
 himself to support the ward in return for a certain sum of money; the guardian 
 must obtain the opinion of the relatives before making such a contract as 
 this ; the abuses to which it gave rise compelled the Parliaments to intervene : 
 Ferriere, see "Encycl. Method." 
 
 * As to representation at law cf. Stohhe, § 268, II. England: the minor 
 can begin an action in the name of his guardian or in the name of his " prochein 
 amy" (any one). 
 
 250
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 203 
 
 concerns administration, "domini loco habetur." ^ But his power 
 does not extend to voluntary alienations of immovables.^ He 
 would be responsible for his maladministration, responsible if he 
 took an important step without notifying the relatives (actions),^ 
 if he disposed of the immovables without the required conditions 
 (necessity established by law after giving notice to the relatives, 
 and sale by judicial proceedings).^ 
 
 § 203. Guarantees in the Interest of the Minor. ^ — Some are 
 moral, like the taking of an oath; " otl^iers, material, such as the 
 making out of an inventory,^ the rendering ^ of accounts, the im- 
 
 1 Dig., 26, 7, 27; Pothier, "Pers.," 162 et seq. He does not give his 
 "auctoritas " to the ward, as he does in Rome, but if the ward acts with the 
 assistance of a guardian it is just as though the guardian had acted alone. 
 He pleads in the name of the ward: Beaumanoir, III, 18; XII, 45; XVII, 6, 
 and on this subject "Const, du Chat.," 2; Loysel, 187; Isambert, IV, 385; I, 
 186; cf. "Siete Part.," 6, 16, 17. 
 
 2 "T. A. C, Norm.," 7, 4; "Artois,"27, 15. 
 
 ' Custom of having a judge tax the ward's expenses. Employment of the 
 ward's funds upon consulting the relatives and an order from the judge (leases 
 at interest in Orleans until 1726) under penalty of involving the responsi- 
 bility of the guardian (Pothier, "Pers.," no. 176), for example, 100 "pLstoles" 
 or more. Stobbe, IV, 461, cites the "Briinn. Schoeffenb.," 144: "Non est 
 necessitas curatoribus minorum pecunias foenerare" (fear of losing the capi- 
 tal), "sed caute reponere et servare." "Munich," 421: deposit in the hands 
 of the town council, who pay interest at the rate of ten per cent. Leases of 
 six and ten years, according as the property is in the city or in the country: 
 Mesle, I, 151; "T. A. C, Bret.," 75. Loans: Ferriere, "Tut.," p. 237; 
 "R. h. Dr.," 15, 184. 
 
 * Desmares, 12; P. de Fontaines, 165 (transaction); cf. p. 83; "Gr. C. de 
 Fr.," p. 370; "T. A. C, Bret.," 71; "Toulouse" 5, 100; Lamoignon, I, 85; 
 Mesle, 191; Ferriere, "Tut.," 228, 355; Guyot, Ferriere, "Diet.," see "Aliena- 
 tion"; "Ord.," 1667, 33, 13; Britz, p. 567, "Siete Part.," 6, 16, 18. On the 
 German law, cf. Stobbe, IV, 462 (case of necessary alienation, "echte Noth"): 
 the Ordinances of 1548 and 1577 required a decree for an aUenation to be 
 legal: Fertile, III, 402. 
 
 * Abuses in the South, where guardians allowed the property of minors 
 to become dilapidated. The Ordinances of the Reforms in Languedoc, 
 known under the name of "Arrestum Sane," and inscribed at the end of the 
 "Coutumes de Toulouse," must have remedied this by providing for oaths, 
 sureties and inventories: Casavet., fo. 70; Tardif, "Droit Priv6 au XIIP s.," 
 p. 42 "Jostice," p. 69, 79 (supervision of the bailiffs over guardians and cus- 
 todians). Cf. Beaumanoir, XV, 12 (lease and custody). 
 
 8 Surety by oath: Masuer, 5, 17, 31; "Siete Part.," 6, 19, 9. 
 
 ^ Mesle, I, 107. A practice which went out of existence before this time. 
 Appraisal in Scandinavian law: Stobbe, IV, 456. — "Ass. de Jerus.," "C. 
 des B.," .53; "L. d. Droiz," 921 (dispensations). 
 
 8 In thi,s we find a revival of Roman practices. Sale of perishable mov- 
 ables: "Ord. d'Orleans," 102; "Arr. de Lam.," 69; "Ord.," 1667, title, "Ac- 
 counts"; "Toulouse," 49, 40, 42; Stobbe, IV, 460. Nullity of grants for the 
 benefit of the guardian, and of agreements with him: MesU, I, 290; Ferribre 
 on "Paris," 170; Henrys, I, 1; "Paris," Art. 276. Ten years' prescription 
 with respect to agreements as to the rendering of accounts. Stobbe, IV, 457: 
 in Germany annua! accounts are rendered to the family or to the public 
 authorities. Britz, p. 567: every year, every two years. In France under 
 the Roman influence the rendering of accounts takes place only when the 
 guardiansliip comes to an end: Ferriere, see "Compte"; "Acte de Notor. du 
 
 251
 
 § 203] THE FAMILY [Chap. I 
 
 plied mortgage on the possessions of the guardian; ^ towards the 
 sixteenth century this mortgage took the place of the pledge and 
 surety.^ In countries of Custom the ward is always given a sub- 
 rogated guardian; this is the custodian of countries of written law 
 become permanent; ^ he is named once for all, instead of appoint- 
 ing a new one each time it becomes necessary; he intervenes in 
 case there is a conflict of interests between the minor and the 
 guardian; ^ he is charged wdth watching over the drawing up of 
 the inventory; he calls together the reunion of the assemblies of 
 relatives in order to discharge the guardian who embezzles.^ The 
 action of the relatives ^ in this case, as in that of the naming of a 
 guardian, is collective; it is also collective when the guardian 
 takes their opinion on an important step, for example, with re- 
 
 21 Mars, 1699." Cf. as to Normandy, "R. de Leg.," 32, 102: the family council 
 may compel the guardian to render an account every three years and to join 
 with liim two relatives and three jurisconsults whose opinion he must take; 
 responsibility of the relatives making the appointment just as in the South: 
 Ferriere, "Tut.," p. 322. 
 
 ^ Same in Flanders: Britz, p. 569; Ferriere, "Tut.," p. 404. 
 
 2 As to the giving of surety, cf. Stobbe, IV, 4.57. Boutaric, 1, 24, estab- 
 lishes the fact that the custom of giving surety was lost: "Jostice," p. 88; 
 "L. d. Droiz," 1008; "T. A. C, Bret.," 69 (will pledge himself and what is 
 his); Masuer, 5, 2, 1; "Toulouse," 5; "R. h. Dr.," 15, 170 (surety given by the 
 mother). Rebuffe, "De Seiit. Exec," I, 16, 37; on the law "De Great.," 
 "Cod. Just.," "de epaud.": in the case of relatives surety sworn to is deemed 
 sufBcient. — " Const. Leg." of Pisa, 21 : delay of two years before the guardian 
 is relieved of all responsibiUty towards the ward. 
 
 ^ Lamoignon calls him custodian or subrogated guardian. Serres, "Inst.," 
 I, 13, 5, almost confuses them. This guardian is subrogated to the ordinary 
 guardian, — that is to say, he takes his place: "Stil. Pari.," 7, 147 ("tutor 
 ad actiones subrogatus " ) ; Bouhier, I, 475: "Toulouse," 6. As his respon- 
 sibility is limited and he takes absolutely no part in the administration of the 
 property, he does not have to render any account, he is not held secondarily 
 liable for the administration of the guardian : Loiiet, "T.," 13; "Arr. deLam.," 
 "Tut.," 12; Britz, p. 566. — Roman rule: "habenti tutorem non datur ahus," 
 is contra: "Siete Part.," 6, 16, 13. Acting guardian for property situated in 
 the colonies, Declaration of Dec. 15, 1721, and Feb. 1, 1743. Splitting up of 
 guardianship for persons of quality: honorary guardian and acting guardian. 
 It is the same in Germany, where the guardian who has charge of the person 
 of the ward is often a proprietary guardian, whereas the one who adminis- 
 ters the property is an appointed guardian. 
 
 * If there is no subrogated guardian a guardian "ad hoc " is named : " T. A. C., 
 Bret.," 79. 
 
 6 "T. A. G., Bret.," 178; Fertile, III, 411; "Siete Part.," 6, 18. 
 
 ^ On the action of the family in Germany, cf. Stobbe, IV, 444; in Italy: 
 Fertile, III, 403. — During the whole of the Middle Ages the intervention 
 of the relatives is frequent and takes place in a great number of cases: "God. 
 Th^od.," 9, 13, 1; "Tac," 19; "Roth.," 189, etc.; "Arrestum Sane," Viollet, 
 p. 46,5; Langlois, "These," 1884; Mesle, Table, see "Avis des Parents." — 
 On principle, the women do not take part in these assemblies: Mesle, I, 86. — 
 Fothier, "Pers.," 151, 172 (the alienation of an inheritance in order to avoid 
 a distraint). Argou, I, 48; Foullain du Fare, I, 233. Beaumanoir, loc. cit., 
 already declares that the guardian should give security to the judge or to the 
 friends of the minor: "L. d. Droiz.," 807. 
 
 252
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 204 
 
 gard to the investment of the funds of the ward.^ But the term 
 family council is not made use of,^ and the manner of organiza- 
 tion of these assembhes of relatives is not very well settled.^ 
 
 § 204. The Revolutionary Law, in its attempt to render the 
 family democratic, organized assemblies of relatives which were 
 really like domestic tribunals.^ Disputes between members of the 
 family (spouses, children, near relatives) were submitted in the 
 first instance to four relatives or friends chosen by the parties; 
 thus they thought to assure domestic tranquillity without ex- 
 pense. An assembly of relatives, or friends and neighbors, at 
 least six in number, pronounced, at the request of the relatives or 
 the guardian, upon the subject of the placing of minor children in 
 a house of correction. Finally, another assembly (whose compo- 
 sition varied) was called to deliberate upon the marriage of minors.^ 
 These rather unfortunate innovations, because of the lack of co- 
 hesion between relatives, did not all last, but they led to the sys- 
 tem of the Civil Code, wherein the family council occupies an 
 important place corresponding to that which is given in Germanic 
 countries to the judicial or administrative authority (tribunal of 
 guardianship, college of wards), and which appears to be more in 
 conformity with the actual condition of Customs.® Guardianship 
 
 1 Edict of Guardianships, 1732, Art. 17 (Brittany) : MesU, II, p. 259. 
 
 2 These assembhes of relatives should be distinguished from the Council 
 of Guardianship; by the latter is meant a lawyer named by the Sentence of 
 Prohibition or the deed which appoints a guardian, who has been chosen 
 by the parents, with the object of advising the guardian; they can even 
 appoint several of these men. In countries of written law the father, who can 
 by will appoint a guardian for his minor son, also has the right to name one 
 or more counselors: Denisart, loc. cit. For illustrious persons, see Ferriere. 
 
 ^ "Arr. de Lamoignon," "Tut.," 3 et seq.; Viollet, "Et. de Saint Louis," I, 
 p. 145 and III, 33. During the thirteenth century in Touraine and Anjou 
 the paternal relatives alone take part in them; during the sixteenth century 
 the king introduces the maternal relatives into them. — Customs, cf. Marivaux, 
 "Vie de Marianne." 
 
 * Decree of Aug. 16-24, 1790, vol. X; cf. vol. Ill, 11. 
 
 6 Also: Giraud, "Essai s. I'Hist. du Dr. Fr.," II, 259 (Salon) .— C/. Decree 
 of Sept. 20, 1791, 4, 1; five relatives: Decree of Sept. 7, 1793: two relatives 
 who are heirs, or two who are not heirs, and the public officer: Law of June 
 15, 1794. 
 
 8 Nor does the family council exist in England, where the Lord Chancellor 
 has general supervision over guardianships: Blackstone, I, 9, 1, a rule which 
 is connected with the old seigniorial custody: Glasson, VI, 232. The Chancel- 
 lor can dismiss any guardian (even the father) in case of embezzlement, and he 
 names guardians (or, if he does not do this, then salaried administrators) for 
 all minors who are not provided with them; but formerly this was only done 
 when the minor began an action; by this very means he became the irard of 
 the court. In order to avoid involving his responsibility, the guardian acts 
 under the direction of the Court of Chancery and renders an annual account. 
 Lchr, "La Tut. des Mineura et Ics Conseils de Famille," 1896. 
 
 253
 
 § 204] THE FAMILY [Chap. I 
 
 ceases absolutely to be a family institution, in order to rise to 
 the rank of a function of the State.^ 
 
 § 205. The Question of the Capacity of the Minor ^ did not 
 come up under the obsolete systems of usufructuary guardianship 
 by virtue of which the minor, stripped of his possessions, descended 
 almost to the rank of the "alieni juris." The old axiom, "He who 
 is under age has neither voice nor reply in court," corresponds 
 to this state of law; by this is meant that the minor cannot 
 appear in court; ^ the guardian alone shall there play a part, if 
 there is occasion to do so, in his own name, and not as represent- 
 ing the minor. This rule must be generalized and extended to 
 extrajudicial acts, such as contracts and alienations. But the 
 torts of the minor involve the responsibility of the guardian. 
 As far as torts were concerned, however, it was admitted at an 
 early period that the minor could be sued himself, perhaps be- 
 cause the guardian was authorized to give up the guardianship 
 and to free himself thereby from all responsibility.'* 
 
 1 Stobhe, § 266 (details). " Obervormundschaf t " or high guardianship of 
 the sovereign, commissions of superintendence and salaried guardians : Calame, 
 "Cout. de Neufchatel," p. 362. All tutelary power emanates from the 
 Council of State by order or in the name of which the courts of justice confer 
 it upon the person who is required to exercise it. — Viollet, p. 544: at Lille 
 and Dunkirk, "gard'orphenes" or municipal commissions, watching over 
 the interests of minors and subject to inspection by the board of aldermen: 
 "Roisin," 135; Britz, p. 566. In Germany and Switzerland the protection of 
 minors also belongs to the corporations ("Ziinfte"); perhaps even the town 
 at first played a subsidiary part with respect to the corporations, in the same 
 way as the State generally does with respect to the family: Stobbe, IV, 445. 
 
 2 Ferriere, on 239, "Paris"; "Diet.," see "Mineurs"; Guyot, ib.; Argou, 
 I, 7; Mesle, II, 27, and bibl., II, 42, etc.; Pou. du Pare, "Principes," I, 13, etc.; 
 Flach, op. cit. Cf. "Obligations," "Rescission," etc. — "Salis," "Z. S.S.," 
 1SS4; "G. A.," 166. 
 
 ^ Loysel, 51. Cf. 53, "Women have a voice and reply in court," and notes. 
 Still less can the minor be a judge and carry 9ut public functions. But his 
 is not the meaning of the maxim. Voice signifies demand; reply, defense. 
 He cannot be an attorney; Papien, II, 2; Chassaneus, p. 850. On testa- 
 mentary execution see post, "Dec. Cap. Tolos.," 154. In criminal matters 
 the minor, even though emancipated, cannot act; but he can be prosecuted; 
 cf. Lauriere on Loysel and the authors cited. — He cannot be a witness ip 
 court: Beaumanoir, 39, 34, 139; "Arch. Leg. de Reims," I, 36: the guardian 
 can annul the testimony of the one who is under his guardianship; if he does 
 not do so, this testimony becomes valid after the age of eighteen years. 
 
 ■• "Jostice," p. 118. Cf. 131. Beaumanoir, 16, 10: the judge takes into 
 consideration the seriousness of the offense and the mental capacity of the 
 minor: "Sachsensp.," II, 65, 1; Boutaric, I, 92; "Olim," II, 767; "Ass. de 
 J^rus.," "C. de B.," II, p. 205; Ferriere, see "Mineur" (and authors cited): 
 the minor is held as having come of age "in delictis," provided that he is of 
 sufficient age to know what he is doing: it is the judge's prerogative to modify 
 the punishment. Domat, I, 4, 6, 2, 10: same obligation to pay damages as 
 in the case of one who has come of age; Pothier, "Oblig.," 120 (prodigals); 
 Chassaneus, p. 810: the minor who is twenty-five cannot be imprisoned for a 
 pecuniary debt. 
 
 254
 
 Topic U] GUARDIANSHIP AND CUSTODY [§ 205 
 
 While guardianship was being organized with a view to the 
 protection of the minor, the incapacity of the latter changed its 
 character; it was no longer based merely on his interest, and, con- 
 sequently, it ceased to be as absolute; it had to be resolved into 
 a collection of provisions intended to protect this interest. A 
 distinction was made as to the acts which he could validly 
 do and, without bringing into this the subtlety of the Roman 
 jurisconsults, in the beginning these same ideas of theirs were 
 relied upon: the guardian or the minor (they are no longer dis- 
 tinguished in Customary law) may ameliorate his condition ; ^ 
 he cannot make it worse; the "in integrum restitutio" was bor- 
 rowed from them. Thus, Beaumanoir leaves to the judges the 
 duty of seeing whether the "dealings were carried out without 
 fraud and without malice for the profit of the one under age," or, 
 on the contrary, to his injury; ^ elsewhere he completes this rule 
 in the following terms: "(those under age) cannot do any other 
 binding act without the authority of him who has the lease or 
 custody; if they did it with this authority and they were dis- 
 honored or injured, they could repudiate it when they came of 
 age." Wliereas, formerly, the guardian's failure to join made the 
 act " per se " void,^ everything thenceforth was resolved into a 
 question of injury; whether assisted or not, had the minor suf- 
 fered any injury? This was the only question on which the 
 examination by the judge had any bearing: "minor restituitur 
 non tanquam minor sed tanquam Isesus." ^ The same rule applied 
 
 ^ Ordinance of 1731, Art. 7: acceptance of gifts made by ascendants or 
 guardians. 
 
 2 Beaumanoir, 16, 4 et seq.; "Jostice," pp. Ill, 117 (an injury produced by 
 some chance happening did not authorize re-establishing), p. 118; Boutaric, 
 I, 92. As a consequence, jurisconsults showed a great deal of severity against 
 those who had dealings with minors. Argou, I, 7: the cause of the injury is 
 scarcely ever gone into, which results in placing minors under a sort of pro- 
 hibition; no one wants to make a contract with them; Serrcs, II, 8, 2: case 
 in which the injury is presumed. As to the minor who says that he has come 
 of age: P. de Fontaines, 14, 26; Beaumanoir, 16, 13; Boutaric, I, 92, pp. 518, 
 523; Louet, "M.," 7, 4; "Arr. de Rdgl.," 1624; Argou, I, 7; Serres, 1, 23, 2. 
 
 3 "Bern. Handfest.," c. 50. 
 
 * As a consequence of the adoption of the Roman rules, the jurisprudence 
 in countries of written law pretty nearly agrees with that of the countries of 
 Customs. Already there was a question of restitution in the "L. Wis.," 4, 
 3, 3; "Burg.," 87: Mauricius, "De Restit. in Integr. Jost.," pp. 110, 118. 
 Cf. Beaumanoir, 63, 4; "Artois," 27; "T. A. C, Bret.," 73; Loysel, 813. — The 
 advantage of restitution is not lost by a mere declaration of majority (P. de 
 Fontaines, 14, 19), unless it be accompanied by an oath: Boutaric, I, 92. Ac- 
 cording to Charondas, the oath is of little importance; there must be some 
 fraudulent action on the part of the minor. Frauds checked by the Regu- 
 lating Orders of March 6, 1629, and March 26, 1624. Louet, "M.," 7. A 
 loan made to a minor ia annulled in every case, even if the minor has acted 
 
 255
 
 § 205] THE FAMILY [Chap. I 
 
 to acts carried out by the guardian alone.^ It was left to the 
 minor on coming of age to rescind or affirm either class of act; 
 the fate of these lame acts ("negotia claudicantia") was in his 
 hands. The action of rescission which he had should be made 
 use of, according to Beaumanoir, within a year and a day of the 
 coming of age.^ The Ordinance of August, 1539, lengthened this 
 delay; the annulling of the act can be asked for until the age 
 of thirty-five years is completed.^ The action of rescission was 
 not the only one given to the minor to cancel acts prejudicial 
 to his interests; the defense of nullity was open to him as far as 
 certain of them were concerned, — those for which formalities 
 were prescribed by the law, for example, the alienation of im- 
 movables, which was subject to the necessity of judicial author- 
 ization (decree); for these acts there was no need to establish 
 the damage ; the absence of the required formalities alone allowed 
 the tribunals to pronounce their nullity.^ The civil petition per- 
 mitted him to reopen judgments as a last resort, if he had not 
 been helped or defended in a valid way.^ The benefit of resti- 
 tution, as well as that of the civil petition, was refused the 
 minor who was in business and reputed to be of age, as far as his 
 business was concerned.^ Finally, the minor enjoyed another 
 privilege; prescription did not run against him, at least,^ if it was 
 a matter of a long prescription; on the other hand, "every cus- 
 tomary prescription for a year or less runs against those who are 
 absent and minors, without hope of restitution." ^ 
 
 fraudulently: Bourjon, I, 6, 5; Denisart, see "Mineurs"; Maynard, "Quest.," 
 3, 52, 10. 
 
 1 Boiitaric, I, 92, p. 520. 
 
 2 Beaumanoir, 16,4; Boutaric, I, 92, pp. 518 and 522; "Jostice," p. 1118. 
 Confirmation, "Jostice," p. 117. During the minority the guardian has a 
 right to demand a second payment from the debtors of the minor who have 
 made the mistake of paying their debts to the latter: Beaumanoir, 15, 33. — 
 Also: "T. A. C, Norm.," 78, 5; "T. A. C, Bret.," 71: four years. "Siete 
 Part.," 6, 19, 8. 
 
 3 The Ordinance of June, 1510, 46, contemplates in a general manner 
 rescissions because of fraud, fear, violence, injury amounting to more than half 
 of a fair value. The Ordinance of August, 1539, 134: after the age of thirty- 
 five years completed, no more anulment of the contracts of minors, either by 
 a plaintiff or a defendant, by letters of rescission or by cancelhng (alienations of 
 immovables without a decree), Loysel, 715. 
 
 ^ Serres, "Inst.," II, 8, 2. — Even though regular, the sale could still be 
 rescinded by reason of injury. Cf. Boutaric, I, 92, p. 519; Mesle, II, 46. 
 5 Boutaric, I, 92: restitution of a thing conferred by judgment. 
 
 • Ordinance of 1673, I, 6; Ferrihre, see "Mineur." Similar presumption 
 in the case of minors who have a benefice or hold some office. 
 
 7 Loysel, 718, 721; "L. d. Droiz," 720. 
 
 * Year for the repurchase by a person of the same lineage, prescription of 
 five years in the case of arrears of constituted rents. To be quite logical 
 
 256
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 205 
 
 These measures of protection had in them nothing excessive 
 when it was a matter of children of tender age; but, as majority 
 was postponed to twenty-five years, they were not so well justi- 
 fied in the case of those who were approaching this age. Practice 
 attempted to accommodate the law to the necessities of life by 
 validating renunciations of the benefit of minority, and especially 
 to the "restitutio in integrimi" (twelfth and thirteenth cen- 
 turies).^ Unknown to Rome, condemned by the Commentary 
 ("in hoc ipso [minor] esset deceptus"),^ they w^ere introduced 
 under cover of an oath; now a Constitution of Alexander Severus 
 seems in this case to be in derogation of the general rule, accord- 
 ing to which an act which is null would be validated by an oath.^ 
 Bulgarus and INIartinus discussed the effect of this law. Martinus 
 gave renunciation under oath an absolute effect; according to 
 Bulgarus, the oath did indeed deprive the minor of the "restitu- 
 tio," but it did not prevent him from reclaiming the immovables 
 of which the alienation, made "sine decreto," was null and void 
 because of a defect in form.^ Frederick Barbarossa confirmed the 
 opinion of the former by having inserted in the Code, following 
 the Constitution of Severus, the Authentic, "Sacramenta pube- 
 rum" (Diet of Roncaglia), which validates renunciations under 
 oath when made by those who have attained the age of puberty.^ 
 In the Commentary the tendency to extend the Authentic is 
 already shown, a tendency which is exaggerated by Bartolus, and, 
 following him, by the Italians and the Canonists : thus they apply 
 it to the person who has not attained pubertj^, "pubertati proxi- 
 mus." Cinus and the French School hold the Authentic to be 
 "odiosa," because it injures those who are under a disability; they 
 do not apply it to those who have not attained the age of puberty, 
 nor to minors provided with a guardian; they limit it to sale, the 
 
 it would seem that the decision should have been to the contrary, because 
 short prescriptions will almost invariably expire during the minority, whereas 
 this will not be so in the case of long prescriptions; against the former the 
 minor has no protection; he runs a chance of not being affected by the latter. 
 This difference is to be accounted for by the Roman origin of the former and 
 the customary origin of the latter. Also, no doubt, the disfavor for such 
 rights as that of the repurchase by a person of the same lineage was combined 
 with this other notive. As to the countries of written law, cf. Argou, I, 7; 
 Mesle, I, 276. 
 
 1 Meynial, "N. R. H.," 1901, 246. 
 
 2 On the Law, "Si Judex": Dig., 4, 4, 41. 
 
 3 "Cod. Just.," 2, 28, 1; cf. 1, 14, 14; Esmein, "N. R. H.," 1888, 32. 
 * "Dissens," "Dominorum," pp. 52, 98, etc. (ed. Haenel). 
 
 " "Cod. Just.," 2, 28, 1; "L. Feud.," 53; Meynial, "N. R. H.," 1901; P.de 
 Fontaines, 14, 19; Beaumanoir, 16, 8; Boutaric, I, 92, p. 526. 
 
 257
 
 § 205] THE FAMILY [Chap. I 
 
 only act which it had in view, not admitting that the oath vali- 
 dates sales "sine decreto," rejecting general renunciations, and, 
 finally, wanting the minor to have been " certioratus " (notified at 
 the time of the renunciation of the existence of the privileges in 
 his favor) .^ This restrictive interpretation paved the way for the 
 practice of the sixteenth century, which completely sets aside the 
 Authentic and refuses all efficaciousness to the promissory oath, 
 starting with the usage which had been introduced of asking the 
 king for a dispensation from the oath.^ 
 
 § 206. The Barbarian Majority ^ did not carry with it emanci- 
 pation from the paternal power. Purely political as it seems, 
 among the Germans it was arbitrarily fixed by the relatives; when 
 they were of opinion that their children were capable of bearing 
 arms, they either bestowed them upon their children or else had 
 them given to their children by other members of the assembly of 
 free men.^ For these arbitrary decisions, the only ones known, 
 undoubtedly, in the time of Tacitus, the Barbarian law substi- 
 tutes a fixed age whose precocity astonishes us: ^ twelve years 
 among the Salians, fourteen among the Ripuarians.^ What was a 
 child of twelve capable of doing, or even one of ten, as among 
 the Anglo-Saxons? Here we have, as we think, rather a religious 
 than a civil majority. At this age reason awakens and with it the 
 
 1 Meynial, p. 256; Doneau, 21, 13; "Ant. Fab.," "DeErr. Pragm.," 69; 
 "Decis. Cap. Tolos.," 49. 
 
 2 Esmein, loc. cit.; Boutaric, p. 526, ed. 1603, note by Charondas; Bugnyon, 
 "Lois Abrog.," I, 120 (he cites P. Jacobi, Imbert, etc.): he who can rescind 
 a contract can perfectly well dispense with the oath which is joined to this 
 contract. The king dispenses with this oath subject to absolution by the 
 ecclesiastical authorities, and even sometimes without this reservation. In 
 Belgium and Italy the Authentic fell into disuse. In Germany it remained 
 in force, and in Spain as well: Meynial, p. 259. 
 
 3 B. de Merville, "Tr. des Majorit^s," 1729; Mesle, "Minorites," 1785; 
 Amiable, "R. h. Dr.," 1861, 217; Stobbe, § 264; Glasson, VII, 112; Lattes, 
 "Dir. Consuet.," p. 175. 
 
 * Physical indications of puberty have here furnished a connecting link. 
 Or else physical strength: Cassiodore. Tacitus, "Germ.," 20: "sera 
 juvenum Venus." Post, "Ethnol. Jur.," II, 30. Details as to the divisions 
 of age in Grimm, 410; Chaisemartin, 67: at the age of 7 years one is a child, 
 "Schwabenspiegel," 2, 47; at the age of 18 years one can be a witness, "T. A. C., 
 Bret.," 79; at the age of 14 years one's oath is valid. 
 
 * "Sal.," 24: twelve years completed (Geffcken, p. 134, bibl.); Id. Alam., 
 Frisians, Saxons, Lombards ("Roth.," 155), Norwegians, Icelanders. — Dif- 
 ferent Ages: "Rib.," 81 (14 yrs. completed); "Burg.," 87; "Wis.," 2, 4, 10; 
 5, 9; 4, 3, 1; 13, 4; 10, 1, 17 (10, 12, 15, 20 yrs.); Hloth., 6; Ina, 7, 2 (10 yrs., 
 then 12); GVimm,413; Kraut, I, 112; Stobbe, I, 40; Dareste, "Etudes," pp. 273, 
 310, 326, 349. C/. as to the coming of age of the king: Pardessus, I, p. 452; 
 "Diplom.," I, 200; Viollet, "Dr. Publ.," I, 227. 
 
 « Terminology: "a^tas legitima" (legal age), "pueri infra setatem," etc. 
 During the feudal period minors are called "sous ag^s" (under age). Ger- 
 many: "zu zeinen Jahren" or "Tagen kommen": "Fribourg en B.," 22. 
 
 258
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 207 
 
 aptitude to perform the acts of religious life.^ If a few civil effects 
 can have been connected with it, this is because the life which 
 was then led was very simple and transactions seldom occurred ; 
 the cohesion of the family and the protection in fact which re- 
 sulted for the adults also contributed to make this premature 
 emancipation tolerable.^ Already, moreover, at this period it is 
 felt that such premature emancipation has its inconveniences: 
 Liutprand postpones majority until eighteen years, and the law 
 of the Visigoths until twenty.^ 
 
 § 207. Under the Feudal System majority varies according to 
 the status of people; the nobleman comes of age when he is twenty 
 (completed) or twenty-one (begun) ; ** the plebeian, at fifteen 
 (begun),'' for before twenty years the former is not fit for military 
 service, whereas the latter can "measure stuffs, reckon amounts 
 of money, and busy himself in the affairs of his father." Noble- 
 women attained their majority at the age of fifteen,^ plebeian 
 women at the age of twelve. Such are, at least, the general rules, 
 for variations of these were not lacking,^ and there were even 
 several majorities for certain acts, taking the veil, marriage, and 
 making a will.^ Thus the Feudal law had retarded majority in 
 
 1 Oath of fealty at the age of twelve: "Cap.," 792, 4; 808, 2; Blackstone, 
 1,9. 
 
 2 After the age of 12 or 14 years the child was still under the paternal power, 
 but became responsible for his own torts ("Sal.," 24, 5, and note in Hessels, 
 Geffcken; "Cap.," 819, 5, I, 293); if his father were a widower and remarried, 
 he administered the dower of his mother and had the use of it: "Sal. Cap. 
 Extra v.," 8; Schroeder, 315. 
 
 * Id., "Bulle d'Or," VII, 4, and many German statutes. In the case of 
 commoners in Germany we often find that they came of age at 14 or 16: 
 Heusler II 490. 
 
 4 P. Vie Fontaines, 15, 35; "Jostice," pp. 58, 116, 221; "T. A. C, Norm.," 
 6; "Summa," 31, 1, 8, 14; " Fleta," 1, 9, 4; Beaumanoir, 15, 30 ("Beauvaisis": 
 15yrs.; id., in Palestine; J. d'Ibelin, 272, etc.; France, 20yrs.); 63, 4; "Et. 
 de Saint Louis," I, 73; "Ord." of May, 1246; Desmnres, 249: nobles 21 years 
 of age with regard to nobleman's property, and 14 years of age with regard 
 to villein property. Loysel, 52 (a commoner came of age at 21 years with 
 regard to nobleman's property). Cf. 813; Britlon, 66; Mesle, I, 210. 
 
 * Beaumanoir, 15, 22, combats an opinion according to which cliildren in 
 authority were always of age. Here we sec that the Roman age of puberty 
 has been adopted. For the very frequent cases in which the age was not 
 known the "Sachsensp.," I, 42 and the "Schwabensp.," I, 28, maintain that 
 one should depend upon indications of puberty. Glanville, 7, 9. Beaumanoir 
 and our old books of Customs fall back upon the testimony of godfather and 
 godmother and parish priests. CJ. Fapien, 26, 8. 
 
 ^ Completed: "Ord." 1246. The lease (guardianship) of the daughters 
 of nobles at first lasted until the time of their marriage. 
 
 ^ As to the minor who was possessed of property in various places he 
 would attain his majority at the age fixed by the Custom of his principal 
 " herbergement." 
 
 * Blackstone, 1, 9: the seven ages of woman. 
 
 259
 
 § 207] THE FAMILY [Chap. I 
 
 the case of noblemen; but in the plebeian class the independ- 
 ence of the adult was premature. It is true that he was often 
 protected against himself by the possibility of remaining under 
 the care of a guardian, and always by the rules for conservation 
 of his immovable inheritance. But there came a time when, these 
 rules having been overthrown and the number of transactions hav- 
 ing increased, it was realized that the age of legal capacity should 
 await a state of complete maturity of mind.^ 
 
 § 208. The Same. — By the end of the thirteenth century it 
 was necessary in practice to add to the customary majority the 
 full majority, or Roman majority, of twenty-five years (com- 
 pleted);^ in the sixteenth century and until 1789, twenty-five 
 years is the legal age at which minority ceases in the whole of 
 France ^ (excepting in Normandy, where it is twenty-one years 
 begun). ^ One exaggeration had now been avoided merely to fall 
 into another; majority had become too tardy. The Law of Sep- 
 tember 20, 1792, IV, 2, arrived at a just conclusion by deciding 
 upon the age of twenty-one years completed.^ 
 
 § 209. Emancipation of Minors under Guardianship.^ — Hard 
 to reconcile with the usufructuary guardianship and the prema- 
 ture majority of the old law,^ this institution made its appearance 
 
 1 Similar movement in Germany: Stobbe, § 46. 
 
 2 P. de Fontaines, 15, 35, contrasts the coming of age at 15 with that of the 
 Roman law. Cf. 14, 11; Beaumanoir, 15, 22, 33; 16, 8, 11; " Jostice," 3, 5, 7; 
 3, 9, 1; Boutaric, I, 92. — Custodians for minors 25 years old, according to 
 the "Const, du Chat.," 74, 84 (noteed. Mortet); Buche, "N. R. H.," 1884, 664; 
 Flach, p. 66; "T. A. C, Bret.," 79: up to the age of 25 no minor can enter into 
 a contract without consulting with his pastor: Cf. 84; "Bourges," 158; 
 "Toulouse," 7: the father can by will cause his son to be under a disability 
 until the age of 25, or else the consuls appoint a custodian for him: cf. Art. 69. 
 — "T. A. C., Bret.," 80: from the time she is 12 years old until she Is married 
 a woman should be under the protection of a custodian: ed. Planiol, p. 511, 
 366; Masuer, 5, 34. 
 
 3 "Paris, A. C," 97; "N. C," 272; Dumoulin, on "Paris," 32, 1, q. 2; on 
 "Montreuil," 14; on "Amiens," 46; on "Boullenois," 119, 126; Ferriere, on 
 "Paris," 32, 268; "Diet.," see "Majorite"; "Arr. du Gr. Cons.," 1717; 
 Flach, p. 76. — Sometimes minority at the age of 25 merely in the case of 
 alienating immovables: Lor/seL — B. de Merville distinguishes between: 
 Customary majority (in the case of custody, alienation of immovables, gift 
 and will) and majorities determined by the Ordinances (marriage, benefices 
 and office). 
 
 < "Placit.," 1066, 38; Id.: "Bretagne," "Auvergne," "Pol.," "Berry," 
 "Amiens," 46. — Blackstone, I, 9; Pollock and Maitland, II, 436. 
 
 6 Id., CivU Code, 388; England. 
 
 6 Graeter, "De Conces. Venise, Aet.," 1695; Graefe, "DeEmanc. Saxon.," 
 1715; Brandeler, "De Emanc. et Ven. Aet.," 1635; Ferribre, Guyot, etc. See 
 "Emancipation," "Curateur," etc. — Pothier, "Pers.," no. 186. Cf. "Eman- 
 cipation from the Paternal Power," ante; Beaumanoir, 16, 12; P. de Fon- 
 taines, 14, 27. 
 
 ' Cf., however, Beaumanoir, 21 (to take a child from the lease), 21: the 
 
 2G0
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 210 
 
 when majority came to be settled at twenty-five years; by bor- 
 rowing this late age from the Roman law, it was found neces- 
 sary to borrow also the corrective measure which the "Venia 
 setatis"^ had placed there. Often, in fact, the interest of the 
 minor demanded that he be given the management of his posses- 
 sions; with this object in view, emancipation was as good as an 
 anticipated majority.^ It could be implied or expressed; in the 
 former case it resulted from marriage; ^ in the latter, from being 
 granted by writings of the king, called "writings relating to the 
 advantage of age";^ they were only granted, on principle, to 
 minors who had attained full puberty, that is to say, the age of 
 eighteen years. ^ Able to draw their income and administer their 
 possessions, minors who were emancipated were still very far 
 from being in every respect like a person who had attained his 
 majority; they had to be aided by a guardian in order to go into 
 court or to alienate their immovables; moreover, in this last case 
 they had to get the opinion of their relatives.^ If there were oc- 
 casion to do so by reason of their niisconduct, they could be put 
 back under guardianship. 
 
 § 210. The Same. — The countries of written law knew neither 
 
 surviving spouse puts the children out of his custody by allowing them to 
 have the property of the deceased spouse and causing the law or the rela- 
 tives of the children to intervene; 15, 31: the father and mother free the 
 children from their lease through the law, so as to escape responsibility for 
 their torts, and also in order that there shall be no community ownership 
 among them when the latter have any personal belongings: Viollet, p. 545. 
 
 1 "Cod. Just.," 2, 44, 2, 3 (18 and 20yrs.); "Nov.," 28 of Leo (no longer 
 any condition dependent upon age). 
 
 2 Glasson, "Inst. Anglet.," VI, 233: the English law does not recognize 
 any expressed emancipation; but it admits the fact that marriage frees a 
 child from guardianship; at the age of 12 or 14, according to sex, a child may 
 choose his own guardian and dispose of his movables by will. — German law: 
 anticipated declaration of majority. 
 
 ^ It caused the paternal power to cease and, "a fortiori," the guardianship. 
 This was not so in countries of written law and in some of the Customs. 
 Beaumanoir, 15, 29: "marriage emancipates from custody, but not from 
 lease." As to the minor carrying on a trade: "Ord.," 1673, 6. — Ferriere, 
 on "Paris, 239." 
 
 * Mesle, I, 203; II, 168 (letters of 1506, 1507); Boutaric, p. 126. Germany: 
 Schroeder, p. 733. — "T. A. C, Bret.," 79, emancipation by the judge; the 
 frieiids and the law maintain that the minor at the age of 17 is provided with 
 understanding. 
 
 ^ But, as there was no legal age, they might be granted earlier, a thing 
 which did not offer many disadvantages, because they were only ratified upon 
 knowledge of the cause and on the advice of the relatives: " Gr. Cout. de Fr.," 
 p. 374. 
 
 * Argou, I, 9; Pothier, "ProcM. Civ.," 5, 6, 11 (no restitution in case of 
 these acts): Argon, loc. cit.: the wife who is a minor needs a guardian for 
 transactions affecting immovables and the help of hor husband is not suf- 
 ficient in a case of tliis sort. As to alienations of immovables, see Ferriere. 
 
 261
 
 § 210] THE FAMILY [Chap. I 
 
 emancipation by writing nor emancipation by marriage; the minor 
 was set free from the guardianship by the mere fact of attaining 
 the age of puberty, fourteen years for boys, twelve years for girls; 
 after this age they could have been subjected to a permanent cus- 
 tody, but this was not done; it was thought sufficient to demand 
 that they should have the assistance of a guardian in order to ap- 
 pear in court,^ and the judge ended by giving them as guardian 
 the attorney who was engaged for them in the lawsuit; for other 
 acts the assistance of the guardian was only a protection, the lack 
 of which did not carry with it the nullity of the act; also, it was 
 for the minor himself to choose this guardian at his own pleasure.^ 
 § 211. Persons who have attained Majority and are under a 
 Disability. — Formerly, merely because a man was affected with 
 a serious physical infirmity (blind, deaf, dumb, dwarf) or with 
 mental illnesses (weakness of mind, dementia), he found himself 
 deprived of the rights which ordinarily belonged to those who had 
 attained their majority;^ the deformed, the infirm, and those 
 lacking in intelligence, were 'in the same situation as children or 
 women, submitted to the "mundium" of the nearest male rela- 
 tive.^ Age itself was a cause of forfeiture; the head of the family 
 who had become old should abdicate in order to make room for 
 the young man and place himself under his guardianship.^ It was 
 the same thing with regard to the man who lost his reason. Against 
 prodigals the family was protected by the old system of property, 
 which was very unfavorable to alienations. 
 
 » Papien, 36, 3, 5; "Capitular. Add.," 3a, 50 (Walter, II, 805); "Petrus" 
 I, 2, 5, 46, 64; "Aries," 116-118; Viollet, p. 584; Limoges, thirteenth centurj'; 
 Marseilles, fourteenth century. In Burgundy, cf. "R. h. Dr.," 13, 549. 
 
 2 Serves, "Inst.," I, 23; Boutaric, Julian, ib., "Ord." 1667, "t. des Req. 
 Civ.," 35. 
 
 ^ Cf. post, "Disability of Inheriting." — As to lepers, see post (sanitary 
 provisions of a public nature). — Stobbe, § 41, II. 
 
 ^ Cf. as to these rules of the old form of guardianship: Stobbe, IV, 513, 12. 
 This legal guardianship became changed into a conferred guardianship, and 
 the new rules relating to the guardianship of minors were applied thereto. 
 
 ^ The " Sachsenspiegel " contrasts the child under age who is less than 21 
 years old with the person who is over age, — that is to say, who is more than 
 60: both of them are under guardianship (I, 42). Elsewhere, I, 52, it declares 
 that in order to be capable of alienating one's "eigen Gut," one must be able 
 to mount a horse, carrying sword and shield, from a rock or a slight elevation, 
 providing only that his horse and his stirrup be held: "Schwabenspiegel," 168; 
 "Leg. Burchardi," 11; Walter, "Corp. J. Germ.," Ill, 777; "L. Rom. Cur."; 
 Paul, II, 18, 7; Griinm, "R. A.," p. 486; Stobbe, § 41; Huber, IV, 528 (in 1137: 
 persons who themselves ask that they be prohibited). Jobbe-Duval, "These," 
 p. 86 ("Dr. Compar6"). — The practice of giving up possessions often made 
 it urmecessary to prohibit old men. — Post, "Add. R. h. Dr.," 15, 190, 203: the 
 mayor of Dijon names a curator for an old man who is infirm. Cf. Boutaric, 
 I, 90, "Concerning Those over Age and the Enfeebled." 
 
 262
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§ 212 
 
 § 212. The Same. — From this system, where the interest of 
 the family precedes everything, and is characterized, one might 
 say, by the iwoyrietary guardianship of agnates, the law passed, as 
 had been done in the case of minors, to a system of protection 
 organized especially in the interest of the incapacitated; the fam- 
 ily always preserved a certain part therein, but that of the State 
 was still more important. — All those who were not found to be 
 absolutely unfit to administer their affairs had a full capacity (for 
 example, deaf and dumb people).^ — As to the demented^ and 
 feeble-minded, the acts which they accomplished were looked upon 
 as void; but, as dementia and feebleness of intellect are susceptible 
 of a varying degree, and as great difficulties might arise be- 
 tween the relatives and those whom they pretended to be mad 
 or imbecile, the tribunals placed them under guardianship or cus- 
 tody,^ so as not to have to pronounce themselves upon the result 
 of each one of their acts after it had been accomplished.^ This 
 system of prevention seems to have been substituted for the sys- 
 tem of repression from the end of the thirteenth century.^ It was 
 extended without difficulty to prodigals, who are, after all, only a 
 class of the feeble-minded.'' Justice should have proceeded offi- 
 cially,^ but this would have been to break abruptly with the former 
 
 1 "Ariprand and Alb.," p. 166; "Jostice," p. 105; "Schwabenspiegel," 2, 
 57; Ferriere, "Tut.," pp. 59, 95; Ferriere, see "Diet." 
 
 2 During the thirteenth century natural madness (imbecility) was con- 
 trasted with frenzied madness (insanity with lucid intervals): "Jostice," I, 8; 
 Beaumanoir, 34. CJ. in English law, idiots and lunatics: Pollock and Mait- 
 land, I, 464; Glasson, VI, 148. 
 
 ^ Our old law places the insane under a disability just as it does prodigals: 
 "T. A. C, Bret.," 83. Cf. Roman law, Girard, p. 220 et seq. 
 
 * Madness makes the act void, and not the judge's decree; but the pro- 
 hibition is a presumption of madness; the conditions under which proof of 
 lucid intervals may be given are regulated in order to shorten lawsuits. Cf. 
 post. 
 
 * "Jostice," p. 131; cf. p. 59; Beaumanoir, 56, 9; 12, 45; 34, 56; "Ass.de 
 J^rus.," "C. des B.," 81; "L. d. Droiz," 779. 
 
 ^ "Olim," III, 849 (in 1313): disability placed upon a clerical who is a 
 prodigal by the ecclesiastical judge; thirteenth century at Limoges the councils 
 name custodians for prodigals: Guibert, "La Famille Limous.," p. 34. Viollet, 
 p. 550, cites an Act of 1303 in which the king commands the bailiff of Amiens 
 to appoint a custodian after having conferred with the relatives for an "ydiota 
 prodigus": "Olim," II, 661, in 1317 ("curator ydiotao"); III, 168, in 1.306 
 (" curator patris "). Burgundy: "R.h.Dr.," 15, 190. — During the latter part 
 of the Old Regime orders of arbitrary arrest are also issued against protligals: 
 "R. p. M.," 1892, 113, 832. — Germany, fourteenth and fifteenth centuries: 
 imprisonment, a banishment of prodigals or placing them under guardian- 
 ship: Stobbe, § 275. — England {Lehr, p. 40): the feeble-minded and prodigals 
 are not protected by the law; they are only allowed to place their property in 
 the hands of trustees. 
 
 7 System of Caring for the Insane. For a long while the violently insane 
 were treated like demoniacs by means of exorcism or like criminals by shutting 
 
 263
 
 § 212] THE FAMILY [Chap. I 
 
 family system; it was not put in motion excepting upon the de- 
 mand of a relative (fourteenth century)/ after the examination, 
 notice to the family, and in the case of one who was demented, 
 after interrogatories on the part of the judge. The same forms 
 were requisite for the withdrawal of the prohibition. There was 
 already a question as to the publishing of judgments of prohibi- 
 tion in the well-known Customs of Chatelet; ^ which was finally 
 organized by the Regulating Orders of the Parliament of Paris, of 
 the 18th of March, 1614, and the 23d of December, 1621. ^ 
 
 § 213. The Same. — As a result of the proceedings, the person 
 prohibited was deprived of the administration of his possessions,^ 
 which passed to his guardian or custodian;*'' he was not able to 
 dispose of them "inter vivos" or "causa mortis," nor to bind 
 himself.® But, if this was the normal result of the probihition, 
 
 them up in dungeons. Before the time of Pinel, who in 1792 regarded them 
 as patients, they received more humane treatment in certain places: special 
 asylums at Geneva, 1468; at Marseilles and Avignon in the sixteenth century, 
 in Paris and Charenton and Bicetre (Order of the Parliament of Paris, Sept. 7, 
 1660; "Instr.," 1785). Intermediate law: Law of March 16-24, 1790, Art. 9; 
 August 4-29, 1790; August 16-24, 1790; 11, 3: July 19, 1791: I, 15; Sept. 23, 
 1792; the 24th Vendem., year II, 3, 7; Dalloz, "Rep.," see "Alienes." It 
 was not until the law of June 30, 1838, that the burial of the insane was pro- 
 vided for, and then only in a very inadequate manner. England: verdict of 
 a jury after an inquest "de lunatico inquirendo." 
 
 1 "Ad Requisicionem Amicorum," "Olim," III, 421; Louet, § 16; Serres, 
 I, 23, 3 and 4; Stobbe, § 275: but public authority also intervened, for the 
 simple reason that it had jurisdiction of acts of prodigality (pubhc interest 
 in avoiding their becoming a public charge upon the city): Dumoulin, on 
 "Bret.," 495; "Norm.," 151: creditors; "L. Pat.," Dec. 25, 1769: con- 
 clusions of the Ministry of Public Affairs. — "Ord. de Blois," 1579, 182: 
 widows who remarry with persons beneath their station are placed under a 
 disability of absolute right. 
 
 2 "Ohm," III, 421 (in 1309) : notice is given by the town crier in neighboring 
 localities that no one must contract with the person under the disability. 
 The "Ord." of 1629 provides for the posting up of the decree at the clerk's 
 office: Stobbe, IV, 526: public notice in church. 
 
 ^ Argou, 1,9: notification first of all of the notary's clerks; later on each 
 notary is notified individually and it is written up on a notice board in each 
 office. Responsibility of notaries if they do not notify those who have 
 transactions with the person under the disability. 
 
 * In England the king has the custody of the insane and the use of their 
 property. From the time of Edward II he declares himself to be the pro- 
 tector of the insane: Pollock and Maitland, I, 464. Cf. as to this "Seigniorial 
 Protection." 
 
 6 "Ohm," III, 849, 421 (in 1309): " administracio bonorum totaliter in- 
 terdicta." He becomes a minor again. His guardian or custodian would 
 ordinarily be his nearest relative: "Paris," 183. Disadvantages: Pasquier, 
 "Lett.," 18; Mesle, II, 291: Order of Apr. 17, 1734. Retroactive effect 
 of the Decree: Bourjon, 1, 6, 4, 2. 
 
 " Nullity of the acts which he does by himself, at least if he is injured, and 
 the injury shall be readily presumed. Acceptance of gifts made by prodigals 
 themselves, by the ascendants or the custodians of the demented: Pothier, I, 
 361; VIII, 371 (ed. Bug.); Pothier, "Oblig.," no. 51: the contract made by a 
 
 264
 
 Topic 14] GUARDIANSHIP AND CUSTODY [§214 
 
 the tribunals were free to impose other restrictions.^ Thus, prodi- 
 gals were not necessarily deprived of the administration of their 
 possessions; - it might be sufficient to provide for them, as in the 
 case of the feeble-minded,^ a judicial council,'* without which they 
 could not validly accomplish the acts enumerated in the judg- 
 ment which named it, especially as regards alienating or mort- 
 gaging their immovables. Outside of the administration of the 
 inheritance, which escaped the prohibition, there were certain 
 acts, like marriage, which concerned the person of the one under 
 the disability, and as to the outcome of which the judgment said 
 nothing; they were left under the application of the old rule, which 
 annulled acts done under a state of dementia or absolute imbe- 
 cility; it was for the judges to say, in fact, if these were the acts 
 of a conscious or clear will (lucid intervals).^ 
 
 § 214. The Same." — Those who had attained majority and were 
 under a disability ^ were provided with a custodian, whose duties 
 varied according to the nature of their disability. Sometimes he 
 administered the possessions of the one under the disability and 
 
 madman, before his being placed under a disability, is void if his madness is 
 established as having existed at the very time of the deed (contra in the case 
 of the prodigal) ; " Pers.," no. 201 : placing a minor under a disabihty is useless, 
 if he has not been emancipated. — Dementia is proved by means of witnesses 
 in the case of acts "inter vivos," and even according to many in the case of 
 wills; but, as the notary mentions the fact that the testator is of sound mind, 
 this point is in dispute. Bourjon, I, 6, 4, 1 : the jurisprudence of the Chatelet 
 adds to the difficulties of the proof of acts previous to the disability, or if the 
 demented person Is dead, or if it is wished to prove that the act was carried 
 out during a lucid interval after the disability was decreed. Letters of re- 
 scission are not necessary in the case of acts done by a person under this 
 disability. 
 
 1 Thus the capacity of the feeble-minded and prodigals varies according 
 to the inclination of the judges, and this without third parties always being 
 informed of it; under these conditions the appointment of a judicial council 
 might very easily be a snare for the public: Bourjon, loc. cit. 
 
 - Disability of prodigals only disappeared from our law at the time of the 
 drawing up of the Civil Code, Art. 513. "Const.," 5, Fruct., year III, Art. 13 : 
 they preserve their political rights. 
 
 ^ The jurisprudence of the Chatelet only appointed a judicial council upon 
 the request of a feeble-minded person, — a very impractical solution, because 
 "where can you find a madman who is wise enough to have himself placed 
 under a disability?" Feriet, "Trav. Pr6p.," II, 9G. 
 
 ■* Argou, I, 9; Denisart, see "Conseil"; Brillon, "Diet, des Arrets," see 
 "Prodiguc." Application to litigious people. 
 
 ^ The marriage of a demented person during a lucid interval is valid; but 
 Parliament, upon an appeal as against an abuse of power, can order that the 
 marriage shall be rehabilitated, — that is to say, celebrated over again, and 
 can cause the contract of marriage to be drawn up according to the Custom of 
 the locality and the desires of the relatives : " Jostice," p. 24 (nullity) ; Bourjon, 
 loc cit 
 
 6 Siobbe, § 277 ("Pflegschaft"). 
 
 7 "Const, du Ch.at.," 74-84; "T. A. C, Bret.," 79; ed. Planiol, p. 366 (re- 
 form of 1405, choice of custodian). 
 
 265
 
 § 214] THE FAMILY [Chap. I 
 
 represented him in the same way as a guardian, and this is what 
 happened in the case of maniacs or imbeciles; sometimes he is 
 Hmited to helping the one under the disability in court/ and to 
 giving his consent to alienations of immovable possessions or some 
 other important steps; this is done in the case of minors who are 
 emancipated and prodigals who are not radically under a disability. 
 
 As we see, the duties of the custodian are not identical with 
 those of the guardian, and his responsibility, moreover, is not the 
 same. But custody does not differ from guardianship in its 
 nature; like the latter, it is a public charge in the interest of those 
 under a disability; like the latter, also, it is conferred. It is for 
 this reason that we say guardian and custodian are but one.^ 
 
 The old law had many other custodians (for a posthumous 
 child, for possessions without an owner,. which have been given up 
 or abandoned, for the absent, for the accused who is deaf and 
 dumb or who refuses to answer, for the body or the memory of a 
 deceased person, for possessions which have been confiscated): 
 these represented persons who could not or would not act for 
 themselves.^ 
 
 1 From whence the name custodian of actions. Cf. guardian "ad hoc" or 
 custodian given a minor who is not emancipated and who has actions to bring 
 against his guardian: Beaumanoir, III, 18; Boutaric, "Inst.," 1, 23, 5; 
 Ferriere, 4, 5, 284; "L. d. Droiz.," 899, 900; "R. h. Dr.," 15, 175. 
 
 2 Loysel, 180. After the thirteenth century the terms "guardian" and "cus- 
 todian" are used interchangeably; the same personage is called a guardian and 
 a custodian; "cura puerorum " is understood to apply to guardianship: " Olim," 
 III, 128, 157, 1110 (in 1304 et seq.); Dumoulin, "Usur.," 39, 300; Coquille, 
 "Quest.," 178; "Arrest," "Sane," etc.; "Petrus," I, 2 et seq., however, 
 still makes the Roman distinctions. The gibe cited in the text gives one to 
 understand that in countries of Customs the guardian remains in power until 
 the coming of age of his ward and, consequently, plays the part of the Roman 
 custodian ("curator"). In the Customs where guardianship ceases at the 
 age of 20 (for example, "Montargis," 7, 7) they abolish custody after that 
 age also: Viollet, p. 519. Same rule in Germany: "hodie jura tutelse et 
 cura; confusa esse," — Heusler, II, 508. — The Civil Code calls the custodian 
 of the insane man his guardian, Art. 505. 
 
 3 See "Repertoire et Diet.," Argou, I, 9. 
 
 266
 
 Topic l] 
 
 DIVISIONS OF PROPERTY 
 
 [§215 
 
 CHAPTER TWO 
 
 OWNERSHIP AND REAL RIGHTS 
 
 Topic 1. Divisions of Property. 
 
 Topic 2. System of Ownership of Movables. 
 
 Topic 3. Ownership of Land. 
 
 Topic 4. Possession. 
 
 Topic 5. Acquis.tion of the Ownership of Immovables. 
 
 Topic 6. Acquisition of the Ow^nership of Immovables — 
 
 Delivery. 
 Topic 7. Rights in Land and Encumbrances upon Landed 
 
 Property. 
 
 Topic 1. Divisions of Property 
 
 § 215. General Remarks. 
 
 § 216. (I) Movables and Immovables. 
 
 § 217. Basis of this Division and its 
 Extension. 
 
 § 218. Movables and Chattels. 
 
 § 219. Inheritances or Immovables. 
 
 § 220. (II) Personal Belongings and 
 Acquests. 
 
 §§ 221, 222. Alienation "inter vivos." 
 
 § 223. Inheritance of Personal Be- 
 longings. 
 
 §§ 224, 225. Jointly held Personal Be- 
 longings. 
 
 §226. 
 §227. 
 
 § 228. 
 §229! 
 §230. 
 § 231. 
 § 232. 
 §233. 
 §234. 
 §235. 
 § 236. 
 
 Proofs. 
 
 (Ill) Things which do not 
 
 Come Within Trade. Royal 
 
 Prerogatives. 
 Prerogative over the Ground. 
 Expropriation. 
 Confiscation. 
 Property of the Enemy. 
 Prerogative of Mines. 
 Treasure. 
 Estrays, Waifs. 
 The Prerogative of Forests. 
 Prerogative over Waters. 
 
 § 215. General Remarks. — From the Prankish period to the 
 Revolution the system of the ownership of land is characterized 
 by the multiplicity of rights which bear heavily, at one and the 
 same time, upon each piece of real property: 1st. Rights of the 
 village or the neighbors, remains of agrarian joint ownership, or 
 the collective ownership of the village: from which are derived 
 rights of commons, rights of pasturage and servitudes of vicinage. 
 2(1. Rights of the family, remains of the family joint ownership: 
 from which are derived the splitting up of possessions into per- 
 sonal belongings and acquests. 3d. Rights of joint owners, joint 
 
 267
 
 § 215] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 possession, and joint ownership being created, so to speak, spon- 
 taneously. 4th. Rights of the lord, from which arises the distinction 
 between fiefs, manors, servile and allodial tenures. 5th. Rights of 
 the king or the State, rights of the Church and persons in mortmain 
 who are connected with the Church or the State : from which arises 
 the distinction between the public domain (domain of the crown), 
 the ecclesiastical inheritance,^ and possessions of simple individuals.^ 
 § 216. (I) Movables and Immovables. — One category of pos- 
 sessions, movables, by their very nature escape from these com- 
 plicated rights. These objects, which are perishable and subject 
 to continual moving about, only lend themselves to more simple 
 relations than those which came into existence as regards immov- 
 ables. Also, for a long time the law remained, as far as movable 
 property was concerned, in that obsolete phase of its develop- 
 ment which could be reduced to the suppression of offenses: he 
 who has a movable does not thereby have the advantage of claim- 
 ing, or of a contractual action; he is limited to an action "ex de- 
 licto" against the thief or unfaithful depositary, or the borrower 
 who refuses to make restitution to him. We shall see further on 
 how legislation upon this point was altered. Over movables the 
 individual has a right of disposal which is more efficacious than 
 that which he has over land: food, arms, clothing, are a part of 
 himself, so to speak: "mobilia ossibus inhserent." ^ The facility 
 with which movables may be carried about, the restrictions brought 
 to bear on the rights of the owner of land, have maintained through- 
 out the Old Regime important differences between the system of 
 movable property and that of landed property : ^ movables have no 
 duration and are not capable of being mortgaged; movables can 
 be freely disposed of, whereas, the alienation of immovables is sub- 
 
 ^ As to the possessions of the Church (mortmain) cf. Salvioli, § 216 (bibl.); 
 Fertile, § 146. — Degheiviet, p. 83, contrasts sacred or ecclesiastical tilings 
 with profane or secular tilings: Astruc, p. 208; "Petrus," I, 60, 65. 
 
 ^ Cf. Institutes such as those of De Launay, Fleury, Boutaric, etc. 
 
 ' L'Homrneau, p. 3.56. — English law: (I) Real property: perpetual rights 
 bearing upon immovables. (II) Personal property (goods and chattels) : 1st, 
 chattels real, for example, lease for a term of a piece of land; 2d, chattels 
 personal, domestic animals, household goods, jewels, arms, etc.; there are 
 also included chases in action, that is to say, incorporeal things, such as 
 claims, copyrights, commissions in the army, etc. Personal property does 
 not come witJiin the feudal system. Real property is not absolute; it is 
 limited in theory by the ultimate ownership of the State. 
 
 ^ Differences which have been exaggerated by maintaining that as to mov- 
 ables a mere detainer of them took the place of real rights {Franken, "Franz. 
 Pfandr.," pp. 267, 292). See a criticism of these ideas in Heusler, § 79. Cf. 
 post, "Ownership of Movables." — As to coinage, cf. bibl. in Schroeder, pp. 184, 
 510, and Amira, p. 175. 
 
 268
 
 Topic l] DIVISIONS OF PROPERTY [§217 
 
 ject to every kind of restriction; debts are payable out of movables, 
 but not out of immovables, for this would be an indirect means of 
 alienating the latter. Movables can be confiscated, but not im- 
 movables, for the same reason; the rights of the husband or the 
 guardian are much more extensive over movables than over im- 
 movables; the inlieritance of movables is founded upon the pre- 
 sumed will of the deceased, whereas the inheritance of immovables 
 is planned, taking into account the rights of the various interested 
 parties; the alienation of immovables is complicated by formalities, 
 whereas movables are freely transmitted from hand to hand ; mov- 
 ables are controlled by the custom of the domicile of the owner, 
 immovables according to the place where they are located. The 
 majority of these rules were unknowni to Roman legislation, where 
 the distinction between movables and immovables only affected 
 matters of secondary importance (system of marriage portion, 
 special prohibition, period of prescription, theft). 
 
 § 217. Basis of this Division and its Extension. — This divi- 
 sion of possessions corresponds to the economic state of the early 
 Middle Ages. It went even further back, if we admit that ancient 
 Germania passed through a system of jointly owned property; 
 the land would have belonged to the community, the movables 
 to the individual. Following the invasions, this division is not 
 formulated in theory; but in the documents of this period the 
 land and its accessories are often contrasted with other posses- 
 sions. The ownership of land has its own special rules in matters 
 of inheritance, in the relations between spouses, with regard to 
 that which concerns alienations and credit; the division is already 
 founded along these important lines. Following this, this division 
 dominates the whole of the Feudal and Customary law; industry 
 and business have pretty nearly disappeared; the precious metals 
 are scarce; -the land is found to be the only source of wealth: ^ 
 "res mobilis, res vilis." ^ As soon as immovable possessions be- 
 
 ' Pollock and Maitland rightly point out that the formula "vilis mobilium 
 possessio" has been mistakenly exaggerated. This formula is true relatively. 
 The Abbot of one of the big monasteries would have been very much as- 
 tonished had he been told that the thousands of head of cattle feeding upon 
 his lands had no value. But, if one had wealth consisting of movables, it 
 was assumed that one had lands. — As to the characteristic of movables that 
 they may be restored in kind, which has allowed of their being used as money 
 ("pecus," "pecunia") cj. ihid. axid Champeaux, "Tlibsa," Y). 57 et seq. (criti- 
 cism by Stutz, "Z. S. S.," 1899). 
 
 2 "Gl. Dominia Rerum" on "Pr. Inst.," 2, 6: " quia mobilium rerum vilis 
 est po.ssessio"; "Gl. Neglecta," on I, 47, D, 41, 2: "possessio rei mobiliis 
 est vilis et abjecta, eo quod facile perditur etiam ab ignoranti." 
 
 269
 
 § 217] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 came the most valuable of all, there was established a system 
 which was designed to preserve them in families, and it is with 
 the possession of the soil that political authority was connected.^ 
 Far from becoming weakened, this division was accentuated; it 
 even took in incorporeal things which are not susceptible of being 
 moved about and, as a consequence, are neither movable nor im- 
 movable, excepting in countries of written law, where the influence 
 of the Roman law was sufficiently strong to make of them a cate- 
 gory by themselves.^ In the eighteenth century the economists, 
 who this time, through mere chance, agreed with the jurists, 
 changed the old prejudice into a learned theory. In our day this 
 "summa divisio rerum" has succeeded in being upheld, although 
 the majority of the reasons v/hich led to its establishment have 
 ceased to exist. It has hardly any other reason for existing than 
 the necessity of facilitating trade in movables. 
 
 § 218. Movables and Chattels. — Movables are things which 
 can move or be moved, which may be easily displaced and car- 
 ried about, the "fahrende Habe" of the German law as contrasted 
 with immovables or things not movable.^ In the north of France, 
 instead of movables and immovables, in the common language, 
 they say "chatel" or "cateux" ("catalla," Eng. chattels) and "heri- 
 tages" (Eng. inheritances) or even, as in Normandy, " fiefs." ^ 
 The division is theoretically formulated in the thirteenth century. 
 For Beaumanoir, immovables are things which are everlasting 
 and which produce annual income; perpetuity and the produc- 
 tion of issues characterize immovables even more than the im- 
 portant fact of immobility; it is these two qualities which make up 
 their value, whereas movables are perishable and do not bring in 
 anything. For this reason there were immovable possessions which 
 were very much like movables; certain of the Customs, for ex- 
 
 ^ Among the ancient Scandinavians the possession of a piece of immovable 
 property was the essential condition of one's having a right to property in the 
 popular assemblies: "R. h. Dr.," 1865, 394; "Auct. Vetus de Benef.," I, 
 37 (testimony); "Sachsensp.," 1, 5, 1; 34, 1; Fertile, § 141. 
 
 2 Gui Pape, q. 291; Julien; "El^m. de Jurispr.," p. 148, etc., Aatruc, 
 
 {). 323: constituted rents are movables in Languedoc, cf. Deghewiet, p. 162: 
 ooked upon as immovables. "Siete Part.," 5, 5, 4; 3, 2, 1 (valuable mov- 
 ables hkened to immovables): "Confer, des Cout., de Guenois," p. 363. 
 
 ^ P. de Fontaines, 33, 12; Beaumanoir, 23 (movable and inheritance); "Gr. 
 Cout.," 2, 12, 18; Boutaric, I, 74; Lamoignon, " Arr.," p. 54; Bracton, I, 1, c. 1, 
 "De Rer. Div." — German law: "haba, pecunia, Liegendes" and "fahrendes 
 Gut, Liegenschaft Fahrniss"; Grimm. "R. A.," II (4th ed.). — On the word 
 "averium," "averia," see Du Cange. 
 
 * "Summa, Norm.," 87, 2; "Assise au Comte Geffroy," Art. 5. — Black- 
 stone, II, p. 246 ("Inheritances"). 
 
 270
 
 Topic l] DIVISIONS OF PROPERTY [§ 219 
 
 ample, that of Artois, qualified them as chattels and treated them 
 as movables (inheritance, etc.). Such were trees which did not 
 bear fruit, and buildings appertaining to cultivation which could 
 be moved about, like barns and cattle-sheds. They did not pre- 
 cisely constitute a third category of possessions; they were in a 
 certain degree immovables out of their sphere, for the reason that 
 they did not come up to the accepted idea of the value of the 
 immovable inheritance.^ 
 
 §219. Inheritances or Immovables are : ^ 1st. The land and 
 everything which is an integral part of the soil, buildings,^ crops 
 growing on branches or roots ^ (the " immovables by nature" of the 
 Civil Code). 2d. The movables which adhere to the immovables 
 in the quality of accessories or appendages of the latter,^ but only, 
 
 ^ Chattels ("catalla," "capitalia," "cheptel"): (o) primitive meaning, 
 head of cattle, herd; for example, right to the best cattle ("Besthaupt") in 
 the inheritance of a person in mortmain (Civil Code of 1800, "cheptel"); (b) 
 as in the old times the majority of movable possessions consisted in herds of 
 cattle, in the end all income and movables came, in a general way, to be called 
 by the name "catalla"; cf. English law: goods and chattels; Glanville, in 
 Houard, I, 442; P. de Fontaines, 33, 12: movables and chattels; (c) special 
 acceptation, possessions which are immovable in their nature but treated like 
 movables in matters of inheritance: "Artois," 106; "Lille," 49; "Hainaut," 
 101, etc. Boutaric, I, 74 (no wise men draw any distinction between movables 
 and chattels). However, a legacy of the movables does not include the 
 chattels: see Ragueau {Brunei), "Observ.," 1757, p. 847; "Roisin," p. 72. 
 
 2 "L. Feud.," 2, 1, 1; "Jostice," p. 268. 
 
 ' For a long time in Germany and Belgium the house is classed among the 
 movables, because it is made of wood and capable of being transported: 
 Chaisemartin, p. 103; Huber, IV, 683. Market for houses at Moscow in 
 the eighteenth century. — "Moulins," Beaumanoir, 23, 37; Boutaric, I, 74; 
 "Paris," 90; Pothier, 235. As to the Swiss "Urhab," a collection of objects 
 required for household use in the old days, cf. Huber, IV, 682, 6. 
 
 * Various systems with respect to crops: 1st. Movables when they are sep- 
 arated from the soil: "Gr. Cout.," 2, 12; "Paris," 92, etc. 2d. Movables 
 by anticipation from the time they become ripe: "Reims," 19; "Artois," 
 141; Loysel, 214; Pothier, "Choses," no. 240. Cf. L. 22 Frim., year VII: 
 execution on standing crops. 3d. The wheat is a movable as soon as it has 
 been sown, the grapes as soon as they have been formed: Beaumanoir, 23, 5; 
 27, 13. Cf. as to this "Acquiring of Crops," Huber, IV, 684: "Saat sei fahrende 
 Habe." Sale of the standing crops, rights of mortgage creditors. — In leases 
 of possession at will (Lower Brittany), edifices and superfices (buildings and 
 crops) are the property of the tenant and treated as immovables in his patri- 
 mony (inheritance, community, etc.); they are treated as movables with 
 respect to the lessor. Law of June 7th-August 6th, 1791, Art. 9. 
 
 ^ As to the theory of Accessories or dependencies, "Zubehorde," "Per- 
 tinenz," cf. Stobbe, § 65; Heusler, § 72; Hubert, 149; Kohler, "Jahrb." of 
 Ihering, 1888, 22. — Roman origins : Dig., 19, 1, 13-18; 33, 7 (accessories in- 
 cluded in a sale, a legacy). During the Prankish period there is often a 
 question in deeds as to tne accessories of estates (for example, "mancipia," 
 colonists, etc.). The wine-press, the urns to hold the wine, are looked upon 
 as accessories of the house: Heusler, I, 359. — It was reasons of an economic 
 nature that were opposed to separating the accessories from the main property. 
 It was thought that this result was obtained by making them like immovables. 
 " Accessorium sequitur naturam rei principalis." — Is the act of the proprietor 
 
 271
 
 § 219] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 on principle, if there is a physical connection (fastened by iron 
 or nails, affixed in plaster, "Paris," 90); ^ it is only as an exception 
 that the common law of the Customs looks upon an encumbrance 
 for the benefit of the land as carrying with it the quality of im- 
 movability (existing category of "immovables by name").- 3d. 
 Rights over the land which are like the ownership because of their 
 duration (servitudes, quit-rent, and rents) and rights which, ac- 
 cording to the feudal conception, were connected with the land 
 itself (right of administering justice, toll, socome).^ These incor- 
 poreal immovables, as they are already called by the "Grand 
 Coutumier de France," are rather rights than the objects of rights; ^ 
 in classing them among immovables our old law followed the ex- 
 ample of the Romans, who made of ownership a corporeal thing, 
 because they did not separate it from its object. It is true that 
 many of these incorporeal immovables had as their object mov- 
 
 necessary for this? Neither the "Gr. Cout. de Fr." nor Boutaric demand it; 
 contra: Lamoignon in his "Arretes"; Pothier, "Choses," no. 244; "Com- 
 munaute," 47, 63. 
 
 1 "Gr. Cout. de Fr.," 2, 11; Boutaric, 1, 74; Loysel, 217; L'Hommeau, 
 p. 366. Cf. German expression: " erdfest und nagolfest." — Criticism by Pothier 
 "Communaute," no. 47 et seq.: there are things which, without being at- 
 tached firmly, are looked upon as forming a portion of the house, and others 
 which, although fastened firmly, are not considered as a portion of the house. 
 As to looking-glasses, ibid., no. 55. Pothier does not distinguish between im- 
 movables according to the purposes for which they are to be used and im- 
 movables according to their nature: " Communaute," nos. 54, 58. Cf. 
 Civil Code, 524, 525. 
 
 2 Straw and manure are looked upon as being incorporated in the farm, 
 artillery in the castle, ornaments in the chapel, looking-glasses, pictures, 
 statues, in the house; building materials are looked upon as being separate 
 and intended for reconstruction {cf. Civil Code, 532; Loysel, 218). Pigeons in 
 pigeon-houses, rabbits in rabbit warrens, and fish in ponds are regarded as 
 immovables: "Gr. Cout.,"2, 18; "Paris," 91; " Orleans," 74; "Jostice,"p. 268 
 (serf-heritage); Gui Pape, q. 91. Fish in a basin (reservoir), pigeons in an 
 aviary, and rabbits in a rabbit-hutch are considered as movables: Loysel, 215; 
 Merlin, see " Animaux." Bees and beehives are movables according to Pothier 
 and immovables according to Chopin, Lamoignon and Merlin. Because of ex- 
 cessive timidity the immovability of things has not been made to result from 
 the mere fact of what they are intended for: objects serving for cultiva- 
 tion, domestic animals, agricultural utensils, seeds, printing-presses, etc., are 
 looked upon as movables: Pothier, "Cout. d'Orleans," "Fiefs," no. 2.35 (which 
 points out the disadvantages of this doctrine). Lamoignon in his "Arretes," 
 wants to make them immovables. The Ordinance of 1747 follows this doc- 
 trine in a special case in the matter of substitutions (cf. Art. 1064 of the Civil 
 Code) and the Declaration of March, 1685, with regard to the negroes in the 
 colonies: Masuer, 11, IS; 30, 25 (serfs). Cf. the old Swiss law: everything 
 wliich is necessary for the development of the land, straw and manure, domestic 
 animals, "mancipia" (body servants), rights of use on "allmends," houses, 
 granaries and barns: Huher, IV, 688. 
 
 3 P. de Fontaines, 33, 12; Masuer, 30, 24; Blackstone, II, p. 250 (Fr. trans.): 
 "incorporeal hereditaments." 
 
 * Controversy on this point. Cf. Heusler, loc. cit.; Pollock and Maitland, 
 II, 123. 
 
 272
 
 Topic l] DIVISIOXS OF PROPERTY [§ 220 
 
 ables, for example, the collecting of a sum of money (toll, etc.); 
 but they were almost always annexed to an inheritance; by reason 
 of their value or their duration they were similar to immovables; 
 it is not surprising that they were classified as belonging under 
 the system of the ownership of land.^ Thence sprung the rela- 
 tively modern conception of immovables according to the use to 
 which they are applied, formulated in the rule: "Actio quae tendit 
 ad quid mobile mobilis; ad quid immobile, immobilis. "^ 4th. 
 Finally, for these same reasons, rights like established rents and 
 salable offices which had movables as their object, but which 
 were immovables or feudal in their origin, were comprised within 
 the class of immovables.^ 
 
 § 220. (II) Personal Belongings and Acquests. — Of immov- 
 ables, some come to us from our relatives by way of intestate in- 
 heritance; these are Personal Belongings or hereditary possessions; * 
 others come to us in other ways, for example, we buy them; these 
 are Acquests.^ This distinction, which was unknown at Rome, 
 appeared in the forms and deeds of the Frankish period ("alodis 
 parentum" as contrasted with "comparatum" " conquisitum"); ^ 
 it is made during the feudal period in every country of Customary 
 law,^ and even in countries of written law in many places.^ It is 
 
 ^ Heuslcr, I, 337, example of disposal, sale, gift, etc., affecting an office and 
 right to administer justice, a right of fishing, a right of way, etc., — " L. Feud.," 
 2, 1, 1. — Deghewiet, p. 163, places seigniorial rights, offices, rights of hunting, 
 together with servitudes, among incorporeal things. 
 
 2 It may be asked whether this at first affected real rights as well as claims : 
 Loysel, 210, 211: "noms, raisons et actions"; Pothier, "Comm.," no. 69. CJ. 
 trans, of the Civil Code, 526: "actions which tend to reclaim"; "Cout. 
 d'Aoste," .5, 16: actions requisite in dealing with immovables. — Geneva, Edicts 
 of 1713, 24: "names, debts and actions are neither movables nor immovables." 
 C/. countries of written law. — In English law chattels real, although classified 
 as personal property, are like real property. They are rights affecting immova- 
 bles, — for example, the lease of a domain, but for a limited time: Littleton, 281. 
 
 3 Lotjsel, 219,444 (rings, jewels, etc.); Fline, "N.H.," 9, 35; "Cout. d'Aiglc," 
 1772, 2, 4, 3 (land on which stands a shop); Viollet, p. 620. — Clementines, 
 "Be V. S.," 5, 11, 1; Kraut, "Grundr.," p. 144 (Statute of Frankfort).— 
 "Offices," I; Bourjon, I, p. 360. 
 
 4 Gri7nm, "R. A.," p. 49:3. 
 
 5 Du Cange, see "Proprium Wisig.," 4, 5, 1: "propriae res" as contrasted 
 with those which are conferred by the sovereign. "Terra aviatica": "Rib.," 
 56, 4; "Sal.," 72. As to the "terra salica," -post, " Inheritance." Ragueau, see 
 "Propre," "Naissant," "Papoage"; P.de Fontaines, 15, 12: principal heritage. 
 — Cf. German "Eigen," from whence " Eigenschaft " and "Eigenthum," 
 property (fourteenth century). "Stammgut," possession belonging to the 
 lineage ("uodil," "odal"). "Erbe," "Erbeigen," as contrasted with "Kau- 
 feigcn": "Tv. de Manu," 9, 209. 
 
 * Marculfe, 2, 7 et seq.; TMvenin, "Textes," Table. 
 
 ' P. de Fontaines, 15, 12; 33, 12; Beaumanoir, 14, 31; 44; "Gr. Cout. de 
 Fr.," 2, 12; Loysel, 222 et seq.; Latnoignon, "Arr.," p. 66. 
 
 * "Bordeaux, A. C," 59, 85; "Agen," 34; "Tonneins," 81, etc. Personal 
 
 273
 
 § 220] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 to be connected with the formation of the family; ^ the latter was 
 a true legal person, with an inalienable inheritance ^ (or pretty 
 nearly so),^ almost like the domain of the State; its existing head 
 was less the owner than the manager. The family was dis- 
 integrated little by Iktle, but a latent right of joint ownership 
 remained for its profit, which arose at certain times and under 
 certain circumstances; instead of affecting all the immovables 
 without any distinction,^ this right was isolated and affected only 
 inheritances properly so called, possessions which had been ac- 
 quired by inheritance.^ The other possessions, resulting from 
 the personal labor and industry, and the economy, of the indi- 
 vidual, belonged to him more absolutely; he was left free to 
 dispose of them.^ 
 
 § 221. Alienation "inter vivos" of personal belongings was only 
 valid in olden times ^ when it was done with the consent of the 
 family,^ that is to say, according to the Customs, with that of the 
 
 belongings are called "bien papoaux avitius," "terre de lignage," etc. — How- 
 ever, in a general way, owing to the influence of Roman law, the system of 
 personal belongings was never in vogue in countries of written law. 
 
 1 Everything has been said that can be said as to the difficulty which the 
 system of personal belongings caused in transactions in immovables; but, if 
 it is to be fairly judged, one should take into account the advantages of every 
 kind which the old-time constitution of the family offered. — Toullot, "These," 
 1886 ("Copr.de Famille"). 
 
 2 Cf. Jobbe-Duval, p. 66 et seq. ("Dr. Compart"); "Fribourg," 1120, § 28; 
 "Fueros de Najera," "Miranda." Inalienability among the Slavs of the 
 South in localities where family communities existed; in the towns where these 
 communities have disappeared the repurchase by a person of the same lineage 
 is made use of. 
 
 ^ Cf. as to this, "The family possessions which cannot be distrained upon." 
 "Homestead," "R6f. Sociale," Feb. 1, 1894. 
 
 ^ Originally, every immovable belonged to the family, even the acquest. 
 
 * Acquests soon became changed into personal belongings, because the 
 father's acquests are the child's personal belongings. 
 
 « "T. A. C, Norm.," 13, 2. 
 
 ^ From the Frankish period on, however, we find documents recognizing 
 the owner as being free to alienate (influence of the Roman law and of the 
 Church): "Burg.," 1; "Bai.," 1, 1; "Alam.," 1; "Thuring.," 13; Sumner 
 Maine, "Anc. Droit," p. 264. Cf. "Dipl.," II. 280 (charter of Count Engle- 
 bert, 709); De Rozikre, 272; "Cart, de Redon,'^ nos. 226 et seq. 
 
 8 "Roth.," 168 et seq.; "Burg.," 1, 1; 24, 5; "Bai.," 1, 1; "Sax.," 62 et seq.; 
 Lacomblet, "Urk. d. Niederrh.," 127 (in 996). Examples of intervention on 
 the part of the relatives abound. The frequent intervention of the wife or of 
 the husband was to be accounted for because of their reciprocal rights (dower, 
 etc.). Cf., however, Jobb6-Duval, op. cit.; "Dipl.," I, 24 (sixth century); 
 "M6m. Antiq. Quest," 1847, XIV, 75, 18; "Jostice," p. 169. — One of the most 
 curious examples of family solidarity in either civil or criminal matters (and, 
 consequently, one which isnot affected by any matterof inheritance) i.s met with 
 in the right of "finport" of the "T. A. C, Bret," p. 142, 192, etc., ed. Planiol: 
 the plaintiff at law was held bound to jom as parties all those of his relatives 
 who could have taken any part in the action; if this was not done, the defend- 
 ant did not have to reply : Giraud, "R.deL^g.," 1843, p. 599 ("LoisGalloises"). 
 This right was not abolished until 1539 on the occasion of the first official 
 
 274
 
 Topic l] DIVISIONS OF PROPERTY [§ 221 
 
 heir presumptive alone or with that of the near relatives.^ As an 
 exception, this sort of ahenation was authorized without the in- 
 tervention of the relatives in cases of extreme poverty {poverty 
 sworn to)} To the needs of the body those of the soul were likened, 
 and disposals "pro remedio animse" were' equally held as being 
 lawful.^ As often happens, the exception in its development over- 
 came the rule; however, the latter was very far from disappearing 
 entirely.'* Practice for a long time ^ retained the custom of the in- 
 tervention of relatives in acts of alienation, and the threatening 
 clauses by means of which it was sought to prevent their opposing 
 these deeds. On principle, however, any alienation was permitted 
 on the condition of previously offering the personal belonging to 
 the relatives; ^ they were given the preference over purchasers 
 
 drawing up of the Custom of Brittany: Chenon, "L'Ancien Dr. dans le Mor- 
 bihan," 1894, p. 19 (bibl.). 
 
 1 Beseler, "Erbvertr.," 1, 48, and Lewis, "Succession d. Erben.," p. 7, teach 
 that the right of the relatives did not exist before the eleventh century except- 
 ing in Saxony ("Sax.," 62, 64; "Sachsenspiegel," 1, 34, 52). But wherever 
 there are family communities it exists for the benefit of the members of these 
 communities ("Ganerben," "coheredes"); the employment of the partition 
 "inter \'ivos" restricted the number of the latter; only descendants were able 
 to live in a community and had to give their consent to do so ; collaterals who 
 were excluded from the community by the effects of the partition could not 
 raise any claim. When partitions fell into disuse the right of more distant 
 relatives once more made its appearance. In Saxony, where communities did 
 not exist, the reservation gave the heir the same power: Heusler, § 89. It was 
 not a rare thing for the consent of all the relatives to be obtained "ad majorem 
 cautelam." — If this consent was not obtained, the relatives who should have 
 given it had the right to take back the property from the person acquiring it 
 within a year and a day: "Sachsensp.," I, 52, 1. Controversy as to the nature 
 of this action, which must be looked upon as a real action. 
 
 2 Ragueau, see "Jostice," 169, 256; "Fors de Morlaas," 31, 71 and 80; cf. 
 "For." of 1552, "R. de Contr.," Art. 6; Cordier, "R. h. Dr.," 1868, p. 551; "Fri- 
 bourg" in 1120, §28; "Artois,"24; "A. C, Lorris," c. 16; "Azun," in 1306, 87 
 (Lagreze, "Hist, du Dr. dans les Pyrenees," p. 450); La Taumassiere, "C. de 
 Bourges," XIV, p. 439. By making an heir presumptive participate in the 
 sale, difficulties as to knowing whether there had or had not been any neces- 
 sity of making analienation were avoided: Dumoulin, on "A. C, Artois," 50; 
 Brodeau, on "A. C, Boulenois," Art. 124. Various Charters. — In case an alien- 
 ation were made because of poverty sworn to it was natural to give the prefer- 
 Giicp to rPiOit 1 vos 
 
 5 "Liut.," 19, 73; "L. Alam.," 2, 1; cf. "L. Feud.," 2, 3, 1 and 9, 1.— 
 "Capit.," 818, c. 6 (I, 282); "Cap.," 803, 6; 817, 7. 
 
 * Survivals in the fifteenth century: "Gr. Cout.," p. 280; Ragueau, "Gloss.," 
 see "Pauvrct6 Jur(5e." — Sixteenth century: "Artois," 76 (necessity sworn to 
 or consent of relatives or reinvestment) : "Boulenois, A. C," 73; "N. C," 124; 
 Ponthieu, 19. — CJ. Langle, 29 (prohibition of making a will contrary to the 
 wish of near relatives). — Soule, 17, 1, 2; 26, 4; Labourt, 5, 1, 2; 11, 4; 
 "Navarre, Rubr.," 20, 3. Repurchase of domestic animals: Labourt, 6, 1, 2; 
 cf. Cordier, "R. h. Dr.," XIV, 597. — "Bareges," in 1670, 4, 5. 
 
 ^ Acts of eleventh century: Fertile, III, 419. 
 
 8 "Jeremiah," xxxii, 7; "Stad. Fam. s. Petri Worm.," Art. 2, 6; "L.Sax.," 
 64. "Offer to the next of kin," that is to say, to the nearest relative ("T. A. 
 C, Bret."). Cf. post, "Repurchase." 
 
 275
 
 §221] OWXERSHIP AND REAL RIGHTS [Chap. II 
 
 who were strangers; but if they refused to avail themselves of this 
 right of pre-emption, an alienation made to strangers could be op- 
 posed to them. In the end every alienation was made valid, even 
 if it had not been preceded by an ofPer to the relatives; but the 
 latter had the power to substitute themselves for the purchaser 
 and to take the bargain upon themselves ^ {repurchase by person 
 of same lineage) within a period of a year and a day.^ 
 
 § 222. The Same. — Alienation by means of a will was still 
 more liable than alienation "inter vivos" to deplete the family. 
 For a long time there was no reason to apprehend this danger, 
 because the will was unknown or very rare; the day when this act 
 came into practice the course of restraining the rights of the tes- 
 tator was pursued; the Custom fixed upon one-fifth of his per- 
 sonal belongings as the rather small portion which he was free to 
 dispose of by will (reservation of four-fifths). One may be sur- 
 prised that gifts were not treated like wills. Our old authors 
 justified the distinction by saying that as gifts were the outcome 
 of natural law, and wills of civil law, the law had not been able to 
 limit the freedom of giving as it has limited the freedom of be- 
 queathing by will. But these considerations are of too modern a 
 character to account for the old distinction. The legislator of 
 former times would have had no scruples of this sort. That which 
 prevented him from establishing a reservation as far as gifts were 
 concerned was that the rule "to give and to keep is invalid" con- 
 stituted for the donor a powerful brake, without reckoning the 
 instinctive repugnance, fortified by custom, against stripping 
 oneself before dying.^ 
 
 § 223. Inheritance of Personal Belongings. — When the in- 
 heritance of a person took effect, his patrimony was divided into 
 two parts: on the one hand, movables and acquests which de- 
 volved upon the nearest relatives, because this was probably the 
 wish of the deceased; on the other hand, the personal belongings, 
 which the family took without its being necessary to take into 
 
 1 An inheritance acquired by way of a repurchase belongs to the person of 
 the same lineage who buys back the property; were this not so, the object 
 of this institution would not be properly attained. — Offices, immovables of 
 recent date and of a special nature, were not subject to the repurchase, 
 nor were constituted rents. The reservation, on the other hand, was appUed 
 to them. , «. • 
 
 2 Ileusler, 90, looks upon the repurchase as being as old as the olTermg of 
 the property to the relatives. Cf.post, "Repurchase." Contra, Jobbe-Duval, 
 p. 87 (Swedish law). . 
 
 3 "He who gives his property before he dies is preparing himself to suffer 
 greatly soon." 
 
 276
 
 Topic l] DIVISIONS OF PROPERTY [§ 225 
 
 account the presumed will of the dead man.^ The rule: Personal 
 belongings do not ascend, first of all excluded ascendants from 
 inheriting personal belongings because this sort of inlieritance 
 seemed unnatural; following this, it was extended in this sense, 
 that personal belongings coming from the paternal line should 
 not go to the maternal relatives, and vice versa: "paterna paternis, 
 materna maternis." " Thenceforth the mass of personal belongings 
 must be divided (system of the Gap) between the two lines from 
 which it came.^ The assigning of personal belongings to each 
 line varies according to the Customs; some, Customs relating to the 
 stock, only summoned the descendants of the first one to acquire 
 these belongings in the direct line;^ others. Customs of side and 
 line, gave them to one of his relatives, either in the direct or col- 
 lateral line; the third class, Customs of side alone, gave all the 
 maternal possessions to the nearest maternal relative, without 
 seeking the origin of the property and without seeking to know 
 wdio was the first one to acquire it; it was the same thing with 
 property coming from the paternal side, which was given to the 
 nearest relative on the father's side. 
 
 § 224. Jointly held Personal Belongings. — Care must be 
 taken not to confuse inherited personal belongings, the only ones 
 which are in question here, with jointly held personal belongings. 
 The latter are undoubtedly, first of all, the personal belongings 
 which are inherited from each spouse; but they also include ac- 
 quests which were possessed by them before the marriage. These 
 acquests, which are personal belongings jointly owned, are con- 
 trasted with jointly acquired property, or possessions acquired 
 during the marriage, and, as a consequence, by both of the spouses. 
 In the same way, personal belongings by agreement, established by 
 the contract of marriage, are only personal belongings so far as 
 they relate to the spouses between themselves; they are not sub- 
 ject to the system of the inheritance of personal belongings.^ 
 
 § 225. The Same. — Inherited personal belongings are real or 
 fictitious: 1st. Real personal belongings. — (a) Immovables ac- 
 
 1 It is often found that an order presumed to be based upon affections is 
 not followed, because of the greater interest of the family. 
 
 2 The Enjrlish law adhered to the old rule of the exclusion of ascendants 
 by collaterals until 1833. 
 
 ^ Local variation, for example, succession by agnates: ArgoTi, 2, 24. 
 
 * Same rule in the English law: one must show that one is the nearest rela- 
 tive of the purchaser, — that is to say, of the first person acquiring the prop- 
 erty, and not of the person who was last in possession. 
 
 6 Pothier, "Tr. des Propres," nos. 1, 23 (ed. Bucjnet, VIII, p. 572). 
 
 277
 
 § 225] OTVT^ERSHIP AND REAL RIGHTS [Chap. II 
 
 quired by intestate inheritance. A distinction is drawn between 
 past personal belongings and present personal belongings, the for- 
 mer being derived from the ancestors, the latter collected by the 
 son from the inheritance of the father: ^ " the acquest of the father 
 is the personal belonging of the child." ^ — (b) Immovables ac- 
 quired by way of gift or legacy from a person of whom one is the 
 heir presumptive:^ this is only an advancement of heirship; con- 
 sequently, it is perfectly natural for possessions acquired in this 
 way to be treated by way of anticipation before the opening of an 
 inheritance to which one may be called, as inherited personal be- 
 longings; at the same time, the Customs of Paris and of Orleans 
 draw a distinction: if the gift takes place in the direct line the 
 possession is a personal belonging; if it takes place in the collateral 
 line, it is an acquest in conformity with the rule: "the acquest is 
 not as good as the gift." ^ — 2d. Fictitious personal belongings or 
 those received by representation. These are acquests which by 
 way of actual subrogation ° take the place of personal belongings. 
 Thus, the inheritance acquired in exchange for a personal belong- 
 ing is a personal belonging like the latter; '^ the immovable acquired 
 as a reinvestment, that is to say, with the price of the sale of 
 a personal belonging, is also subrogated to the latter, — at least, 
 for the benefit of minors;^ as to those who have attained majority 
 the matter is in dispute.^ 
 
 § 226. Proofs. — The tendency to restrict the rights of the 
 family, of which we have already seen the effects with regard to 
 the system of personal belongings, is also felt as far as proofs are 
 concerned. The old law seems to have considered all immovables 
 
 1 "F deBearn," "R. de Contr.," 5: a family possession if it has been owned 
 by three persons of the same lineage. 
 
 2 Beaiimanoir, 14, 31; Loysel, 223. 
 
 ' These possessions have come into the family "jure sanguinis"; the fact 
 of the donee being a relative was the motive of the gift: — certain Mss. of 
 the "Gr. Cout.," 2, 34 (p. 350, n. 2): gift or even purchase; "Anjou," 513; 
 "Maine," 507; "Nivernais," 26, 14; "Bourbonnais," 283; Loysel, 221, 224: 
 the property is a personal belonging. — "Paris," 246 (acquest); 133 (personal 
 belonging with regard to repurchase) ; Desmares, 145, 298, 397. 
 
 * Loysel, 655, 656. 
 
 6 Flach, "R. h. Dr.," XIV and XV. 
 
 « Loysel, 225; Beaumanoir, 44, 6; "Gr. Cout.," 2, 12, p. 243; Lamoignon, 
 "Arr. des Propres," 23; Boutaric,!, 74; "Paris," 143; "Orleans," 385: in case 
 there is a settlement, the property is an acquest to the amount of the " tournes " 
 but the heir who has the personal belongings may keep them. — Cf. post, 
 "Repurchase." 
 
 ^ No subrogation of absolute right, as a general thing: " Paris," 94. 
 
 8 Loyseau, "Offices," 2, 7, 54 (one has no right to disturb the legal classi- 
 fication of possessions). — Tiraqueau and Renusson admit the subrogation by 
 agreement. 
 
 278
 
 Topic l] DIVISIONS OF PROPERTY [§ 227 
 
 as personal belongings until the contrary was proved. Loysel, on 
 the contrary/ lays down an opposite rule: "all possessions are 
 looked upon as acquests.- 
 
 § 227. (Ill) Things which do not Come Within Trade. Royal 
 Prerogatives.^ — The royal or seigniorial domain and rights we 
 have previously discussed; ^ it is a subject to which we shall not 
 return/'' but it is indispensable to say a few words here upon the 
 theory of royal prerogatives in their relation to private law.^ In 
 1158, at the Diet of Roncaglia, an official enumeration of them 
 had already been given, which was a simple codification of previ- 
 ous custom: "Regalia sunt hec: Arimannie,^ vie publice, flumina 
 navigabilia et ex quibus fiunt navigabilia, portus, ripatica, vecti- 
 
 1 "Placites de Normandie" {Lauriere, on Loysel); "A. C, Paris," 1, 5. 
 
 2 222; Pothier, nos. 72, 107. 
 
 * The "regalia " are dealt with in the communities of the "libri Feudorum" 
 and generally in all the authors who deal with the domain and the seigniorial 
 rights. The notes by Gregorio Lopez on the "Siete Part." refer one to the 
 writings of the Post-Glossatators, see Table, "Regalia." Treatises by: 
 Peregrinus, De Luca,Carpzow, etc. More recent works by Hullmann, "Re- 
 galien," 1806; Strauch,id., 1865. General treatises: Heusler, § 73; Schroeder, 
 "Z. S. S., G. A.," II, 62; "Handb.," see Table; Stobbe, §64; Hiiber, § 120; 
 Brunner, "D. R. G.," § 68; Thudichum, § 75 et seq.; Aniira, § 61; Siegel, § 86; 
 Pertile, § 147; Salvioli, § 219. — On the "res religiose," church furniture, etc., 
 cf. Hiiber, IV, 690; Duval, "Instit. du Dr. Fr.," I, 2, c. 1; Deghewiet, p. 83; 
 Faber, "Inst, de Rer. Div."; Pasquier, ibid.; E. Mayer, "Deut. u. Franz. 
 Verfassungsg.," 1899. 
 
 * See "Domain of the Crown" [Brissaud's "Public Law." — Transl.] 
 
 ^ The Law of Nov. 22 and Dec. 16, 1790, gave the ownership of them to the 
 nation. From the Revolutionary laws there resulted the distinction between 
 the public or inalienable domain and the private or alienable domain. See 
 especially Law of 15th and 16th Flor., year X. 
 
 ^ By prerogatives we here understand a group of rights bearing upon 
 things left to the use of the public or upon things which are treated like them; 
 the Feudal law sees in them the property of the king. CJ. "jura, majestatis," 
 at Rome. Heusler, § 74, characterizes them by two traits : they are rights of 
 pubhc power ("Regierungsrechte") and of use ("nutzbare"), inheritable, 
 alienable, etc. He outlines their history in approximately the following 
 manner. From the time of the Carolingians the prerogative of j)ublic ways 
 and rivers is maintained in the imperial statutes; from this there sprang up 
 or were developed the innumerable tolls of feudal times; the right of fishing 
 only belongs to the king where the river is bordered by the royal domain; 
 one can still say with the "Sachsensp.," 2, 28, 4: "Strome sind gemein zu 
 fischen darin." The prerogative of mines makes its appearance at a suf- 
 ficiently early period {cf. Act of 1122) to raise the question whether the 
 ownership of the soil ever carried with it that of the mine. The prerogative 
 of hunting was introduced with difficulty, "Sachsensp.," 2, 61. Under the 
 Ottos the peasants lost the right to carry arms; they also lost the freedom of 
 hunting. Once access to the forests was prohibited for purposes of hunting, 
 it also became necessary to prohibit it for the carrying away of wood; and 
 thus the idea that forests, which were formerly left to the use of all, were the 
 property of the king, was arrived at: Grimm, "R. A.," 248. All these pre- 
 rogatives consisted in rights over things which because of their very nature 
 arc not included within i\\c, property of the treasury. 
 
 ' Du Cange, see "Herimanni." 
 
 279
 
 § 227] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 galia que vulgo dicimtur tholonea, monete, mulctarum penarum- 
 que compendia, bona vacantia et . . . bona condemnatorum 
 . . . argentariae . . . piscationum redditus et salinarum . . . di- 
 midium thesauri inventi in loco Cesaris, non data opera, vel in 
 loco religioso." ^ 
 
 The point of departure of this theory is in the conferring upon 
 agrarian communities, or the owners of large domains, of unculti- 
 vated lands and possessions which are ill suited to individual 
 ownership: public ways, waters and forests, shores, mines, quar- 
 ries and treasures. The Feudal law", which did not distinguish very 
 clearly between sovereignty and ownership, saw therein an owner- 
 ship belonging to the sovereign, the king, or the lord; it did not 
 limit itself to giving him a police powder over this category of 
 things. Care, however, was not always taken not to fall into an 
 exaggeration which, in order to correspond with the logic of the 
 feudal system, and perhaps of the old law, it was difficult to under- 
 stand in the light of modern principles. That the earth, and even 
 the sea, belonged to the king,^ is a rather widespread conception 
 among the old jurists; private ownership puts a restraint most 
 often upon the right of the State, but on the slightest provoca- 
 tion the latter reappears; for example, it applies to lands aban- 
 doned by their owner; the cases where it is thus understood as 
 though by accident are set aside. Its ordinary domain takes in the 
 category of possessions which we have just enumerated, and upon 
 which private ownership has not placed its stamp. To strict 
 logicians, the king or the State appeared as the only proprietor of 
 the land, private ownership as a limited and rather precarious 
 concession, the prerogatives as an attribute of the right of owner- 
 ship of the State over the possessions abandoned to the use of 
 everybody.^ Against these theories the Roman doctrines, which 
 
 1 "L. Feud.," 2, 56. — See Du Cange; G. Blondel, "Et. s. les Dr. R6galiens 
 et la Const, de Roncaglia, M^l. Paul Fabre," 1902, 236. 
 
 2 Let U.S recall the controversy between Grotius and Selden on the subject 
 of freedom of the seas; from the fourteenth century on, Angelus of Perusia 
 upholds Grotius' thesis. During the thirteenth century, Venice proclaimed 
 her rights over the Adriatic (each year on Ascension Day the Doge marries 
 the sea): Fertile, III, 169; Pasquier, "Inst.," p. 170. 
 
 ^ Schroeder, "Handbuch," p. 206; "Die Franken," "Z. S. S.," loc.cit., 
 admits the existence of the prerogative of the soil ("Bodenregal," "Obereigen- 
 thum") from the Prankish period, and causes the other prerogative rights to 
 spring therefrom logically. Cf. "L. Sal.," 14, 4. The origin and the history 
 of the latter thus become very simple. But this theory does not seem to be 
 very well established. Among the more recent authors it is not accepted, — 
 for example, neither by Heuslcr nor by Brunner. The system of prerogatives, 
 with the extension which it is given by Schroeder, does not seem to us to date 
 
 280
 
 Topic l] DIVISIONS OF PROPERTY [§ 228 
 
 were more individualistic and more favorable to private owner- 
 ship, did not cease to fight; public law, in breaking away from the 
 feudal ideas, divided sovereignty from ownership; of the royal 
 prerogatives there remained scarcely anything but the police 
 power. 
 
 § 228. Prerogative over the Ground.^ — Possessions without 
 an ov^ner, uncultivated lands and estrays, belonged to the chief 
 justice (Loysel, no. 277). By possessions without an owner are 
 understood lands that have no master, that is to say, lands which 
 have not yet been appropriated, or those which have been for- 
 saken by their owner.^ Inheritances by tvay of escheat are treated 
 like possessions without an owner; ^ but this is not so with regard 
 to common lands,^ and still less with regard to possessions whose 
 master has a disputable right to them; these are not possessions 
 which are not in occupation, and the lord justice is not authorized 
 to reclaim them; as soon as they are occupied by a tenant, how- 
 ever irregular may be his claim, the property cannot be said to be 
 without an owner. The Law of August 13, 1791, substituted the 
 king for the lord justice, drawing its inspiration in this matter 
 from the precedents of the monarchic period (c/. Civil Code, 539, 
 713). 5 
 
 back further than feudalism. Cf. "Freeholds," " Right Universally Reserved 
 to the Sovereign in Feudal Lands." UHommeau, p. 92. 
 
 ' If lands without an owner are regarded as "res nullius," then individuals 
 may occupy them without the necessity of any formality. On the other hand, 
 if we admit that they belong to the royal communities or to the sovereign, 
 their occupation is only valid when it shall have taken place with the consent 
 (expressed or implied) of the latter. The documents are not very explicit: 
 seeThevenin, "Textes," Table. "Praecept. pro Hispanis" in 812 ("Cap.," I, 
 169). As to the"aprisio," "captura," " neubruch," c/. 5ese/er, "DerNeubruch 
 nach den Alt. Deutsch R.," 1868 (in the "Sybote Bethm. Holweg. Obi."); 
 Waitz, "V. G.," IV, 136; Amira, p. 170; Meitzen, "Siedelung. u. Agrarwesend. 
 Germanen," 1895; Blumenstock, I, 260; Heusler, § 91. See also "Freeholds," 
 ("Right Universally Reserved to the Sovereign in Feudal Lands"); Brunner, 
 I, 205; II, 75; Mayer, § 10. 
 
 2 Heusler, I, 65, cites an Act of 1018: "Silvam in cultam et ob hoc nostre 
 proprietati deputatem." Schupfer, "Allodio," 37. It is not a rare thing to 
 find in the various legislations rules which recall the "adjectivo" or the "cpi- 
 bole" of the Lower Empire: at the end of a certain time lands wliich arc aban- 
 doned by their owner return to the State, which then grants them to others. 
 The legislation of the emperors of Germany and that of the popes contain 
 provisions of this nature. They are above all measures of a fiscal nature like 
 the laws of the Lower Empire: Perlile, IV, 274. Sixtus IV, 1476, authorizes 
 the first comer to cultivate the lands of estates left uncultivated, and, also, 
 this could be done against the will of the owner. Prerogative of pasture in 
 Italy {ib., IV, 417). — L'Hommeau, p. 223; Astrm, p. 273; Pasquier, "Inst.," 
 p. 189. 
 
 ' See Ferrihre, L'Hommeau, p. 222 ("Abandoned Possessions"). 
 
 * Fertile, III, 336. 
 ^ ^ CJ. Law of the 3d Frim., year VII: if an individual abandons hia land 
 
 281
 
 § 229J OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 § 229. Expropriation.^ — The conception of the superior right 
 of the State over the ground easily justified expropriation.^ The 
 latter was only too often made use of without the excuse of neces- 
 sity; guarantees in favor of the owner scarcely made their ap- 
 pearance until towards the seventeenth century, on the occasion 
 of extensive public works. And, moreover, there is no precise 
 legislation upon this point. Abuses were always possible. It is 
 in order to condemn them that the "Declaration of the Rights of 
 Man" proclaimed in Art. 17 that private ownership was inviolable 
 and sacred ; it only authorized expropriation for a reason of public 
 necessity (the Civil Code, Art. 545, says: public advantage) and 
 upon condition of an indemnity. 
 
 § 230. Confiscation.^ — Penal confiscation gives public author- 
 ity an easy means of taking possession of the property of individ- 
 uals. It was only abolished by the Charter of 1814. 
 
 § 231. Property of the Enemy.^ — The old law did not recog- 
 nize the enemy's property. The taking of booty was one means 
 of acquiring property for the benefit of the conquering State, or 
 even for the profit of the individual who took it ("occupatio bel- 
 lica"). As a general rule, this acquisition takes place for the 
 benefit of the State; ^ however, the practice of ransom, which was 
 still widespread in the sixteenth century, the sacking of towns, 
 which was still authorized in the eighteenth century, bear witness 
 to the existence of an individual right.^ In our day the private 
 property of the enemy is as much respected as national property, 
 
 because it does not produce enough to pay his taxes, the abandonment ac- 
 crues to the advantage of the Commune, and not of the State. Cf. H. de 
 Pansey, "Des Biens Communaux." In the enumeration of waste lands of 
 the Law of 1791 we find " garrigues " (uncultivated lands), " flegards " (common 
 passage-way), and "wareschaix" (waste lands for public pasture): P. Errera, 
 "Les Warechaix," 1894 ("Soc. Archeol. Bruxelles"); "Les Masuirs," 1891. 
 
 1 Post, "Servitudes": Tamassia, "Arch. Giur.," 1885; Salvioli, § 224 
 (bibl.); PertiU, § 143; Schupfer, "Allodio," § 29; Meyer, "Expropr.," 1868; 
 Gierke, "Althusius," p. 268. 
 
 2 Italy: Cassioli, " Var.," V, 20. The statutes of the Italian towns provide 
 for cases of expropriation: construction of walls, towers, etc. (1156 at Genoa, 
 etc.). Fixing of the indemnity by arbitrators. Cases of expropriation in the 
 interest of individuals are met with, cf. Pertile, III, 360 et seq. 
 
 » Loysel, 839 et seq.; "T. A. C, Norm.," c. 88; "Summa Norm.," 20, 22; 
 "T. A. C, Bret.," ed. Planiol, see Table; "Lorris," IV; Britz, p. 656; "Siete 
 Part.," see Table; GwPape, p. 341; Astruc, \i.2%0; Pasquier," Inst.," p. 183. 
 — R. Caillemer, "Etudes sur la Confisc. et I'Admin. des Successions," 1901; 
 E. Mayer, § 17. 
 
 * Benedix, "De Prseda inde ab Antiquitate," 1874; Mas-Latrie, "Dr. 
 de Marque au Moyen Age," 1875; Pertile, III, 166; Pasquier, "Inst.," 
 p. 176. 
 
 5 The vase of Soissons: Brunner, II, 76. 
 
 6 Pothier, "Prop.," no. 88 et seq.; Gui Pape, "Dec," 113; cf. 32 (reprisals). 
 
 282
 
 Topic l] DIVISIONS OF PROPERTY [§ 232 
 
 because war is considered as a struggle between States, and not 
 between individuals. 
 
 § 232. Prerogative of Mines.^ — The current axiom that prop- 
 erty in the ground carries with it property in what is above it and 
 what is under it (Cinus of Pistoia: "cujus est solum, ejus est ad 
 coelum usque ad inferos"), conflicts with the feudal conceptions 
 which make mines, and even treasures, the property of the king 
 or the lords. Already, under the Lower Empire, the State col- 
 lected a duty on the products of mines ; and it was the same in the 
 Prankish Empire;^ the Constitution of Frederick I, 1158, classes 
 " argentariae " among the "regalia." The king or the lords took 
 for themselves the exclusive right ^ of developing mines, or, at 
 least, granted the right to develop them; this latter, however, did 
 not become a fiscal monopoly. The revival of Roman law weak- 
 ened this doctrine. If it still finds partisans the latter rather de- 
 fend it as being based upon considerations of public advantage. 
 It is these same considerations, combined with the idea of regard 
 for the rights of the owner of the ground, which lead to the follow- 
 ing system, which is a compromise: the owner of the ground has 
 the right to develop the mine upon condition of having an author- 
 ization from the State, and under the obligation of paying the 
 (Roman) tithe of what it produces; if he does not avail himself of 
 this right, the State may grant it to a third party in the same way, 
 and on condition of an indemnity being paid by the latter to the 
 owner of the ground. This is approximately the solution which 
 was arrived at by the Law of April 21, 1810. The Revolutionary 
 law seemed entirely to abandon this system by deciding that 
 mines should be at the disposal of the nation (Law of July 12-19, 
 1791); but with remarkable inconsistency it allows the proprietor 
 of the ground to develop the mines to a depth of one hundred feet; 
 below that he shall have a preference over everybody else. The 
 Civil Code, leaning still more in this last direction, recognizes, on 
 principle, the right of the owner of the ground. 
 
 1 Greuter, "De Regali Metallorum Jure," 1867; Virnich, "De Juris Regal, 
 Metal. Orig.," 1871; Bdhlnu, "De Regal. Nov. et Salin. j.," 1855; Arndt. 
 "Zur Gesch. d. Bergregals," 1879; Abigneute, "II Sottosuelo," 188G; "La 
 Propr. d. Sottosuolo," 1888 (" C. R." in "Z. S. S., G. A.," 1891); Stobbc, § 141 
 (bibl.); Fertile, IV, 424; Salvioli, § 221; Viollet/''Et. de St. Louis," see 
 Table. 
 
 2 "Ordinatio Imperii" of 817, c. 12. — Thus the idea of the prerogative 
 of mines is previous to the eleventh century. CJ., however, Brunncr, II, 76. 
 It was often only applied to gold or silver, the only noble or precious metals; 
 "Sachsensp.," 35. 
 
 ^ Numerous examples of concessions; cf. Stobbe, op. cit. and loc. cit. 
 
 283
 
 § 233] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 § 233. Treasure is, like a mine, one of those hidden sources of 
 wealth, the true owner of which is the lord or the king: ^ "nobody 
 has wealth in gold unless it be the king, and wealth in silver be- 
 longs to the barons and to those who administer high justice upon 
 their lands" (" Etablissements de Saint Louis," I, 94). In the face 
 of these feudal rules, the Roman tradition of partition between 
 the discoverer and the owner of the ground is maintained, wdth 
 variations; one quarter belonged to the discoverer, the rest to 
 the king, according to a Capitulary; Loysel adopts a different 
 proportion (no. 280): "As to the other treasures (not consisting 
 of gold) hidden in olden times, one-third should belong to the 
 chief justice, one-third to the lord of the land, and one-third to 
 him who has found them." 
 
 § 234. Estrays, Waifs,- movable property lost by its owner, 
 could not easily be acquired by the discoverer during the bar- 
 barian period; the Germanic law compelled a man who found 
 something which had been lost, under penalty of being treated as 
 a thief, to tell this fact to the judge or to proclaim it in a loud 
 voice before the public Assembly; it was only if the owner did not 
 put in an appearance that the discoverer could keep it for him- 
 self.^ The Feudal and Customary law substituted the right of the 
 lord for that of the individual.^ Royalty took away from the 
 lords justices the right of taking estrays on the coasts and in 
 
 1 Cassiod., "Var.," IV, 34; "Capit.," I, 215; cj. "L. Rom. Wis.," 10, 10; 
 "L. Feud.," 2, 56; "Const. Sic," 3, 31; "Ass. de Jerus.," "C. d. B.," 283; 
 "SummaNorm.," 17; "T. A. C, Bret.," 153; Loysel, 279, 281 (bibl.) — C/. 
 Landsberg, op. ciL, § 20; Fertile,^ U8; Schupfer, "Allodio," 39; Britz,p.Q5S; 
 Astruc, p. 266; Pasquier, "Inst.," p. 240. 
 
 2 Etymology: "animaux effrayes" (animals which have been scared), 
 "E.xpavidus," "Res erraticje": "Ass. de Jerus.," "C. d. B.," 230, 259; 
 "Summa Norm.," c. 18; "T. A. C, Bret.," 149; Beaulemps-Beaupre, "C. 
 d'Anjou," III, 178; "Lorris," IV; Britz, p. 654; Astruc, p. 252; E. Mayer, 
 § 10. . 
 
 ' "Wis.," 8, 4, 14; 5, 6; "Rib.," 75; "Fris. Add.," 8; "Roth.," 343 
 (declaration); "Const. Sic," III, 30; "Stat, de Corse," II, 24. ItaUan 
 Statutes: Fertile, III, 209; "Sachsensp.," 2, 26, 1; "Schwabensp.," 347; 
 Landsberg, op. cit., § 20; Schupfer, no. 39. 
 
 * As to maritime estrays, the owner cannot reclaim them (until the fifteenth 
 century in France). Rights of wreckage, "lagan," wreck, "Strandrecht," 
 etc.: Fonsagrives, "R. Marit.," 1884; "K. V. J.," IV, 3, s., p. 78; Fertile, § 98, 
 138; Sah'ioli, § 166; Waitz, "V. G.," IV, 135; Briinneck, "Recht auf Zueig- 
 nung V. d. See," etc, 1874; Fardessus, "Coll. des Lois Marit.," I, 315. Cf. 
 L. Delisle, "Rec de Jug. de I'Echiquier," no. 450; Boutaric, " Actes du Pari.," 
 I, 343; Bigelow, "Placita Anglo-Norm.," p. 143; "T. A. C, Norm.," 67; 
 "Summa," c 16; Rymer, "Foedera," I, 12; Balasque and Dul., "Et. Hist. s. 
 Bayonne," I, 327. — As to e.strays on land: Beaumanoir, 58, 4 and 69, 24 
 (the thing is not an estray so long as it is pursued): L. Delisle, "Rec de Jug, 
 de TEchiq.," no. 541; "Reg. Crim. de la Just, de St. Martin-des-Champs," 
 pp. 128, 143; Fasquier, "Inst.," pp. 171, 261; Ragueau, see "Guesver." 
 
 284
 
 Topic l] DrV'ISIOXS OF PROPERTY [§ 235 
 
 large bodies of water (Ordinances of 1669 and 1681). Estrays on 
 land continued to belong to the lord, at least in a case where the 
 owner did not reclaim them after a certain delay; ^ the Revolution 
 abolished this seigniorial right with the other feudal rights, without 
 regulating the disposal of estrays on land (Law of April 13-30, 1791). 
 § 235. The Prerogative of Forests.^ — Besides the rights over 
 woods,^ this prerogative affects game.'* Game and fish belong to 
 no one in the Roman conception; the first comer can take them 
 for himself,^ According to the feudal ideas, on the contrary, 
 game and fish are appurtenances of the waters and forests, con- 
 sequently, the property of the lord or the king, to whom the latter 
 belong.® The lord has a right, says the old German proverb, over 
 
 1 Publication, see details in Ferriere, see "Epaves" (bibl.); Delamare, 
 "Tr. de Police." 
 
 2 Rendella, "Tract, de Pascuis, Defensis, Forestis et Aquis," 1618-1734; 
 Berenger, "Antic. Storia Forest, in Italia," 1659. 
 
 3 Post, "Real Rights." — "Roth.," 240, 319; "Liut.," 82, 116; Waitz, 
 "Deutsche Hufe," p. 36. — The law of the Ripuarians seems not to make 
 any distinction (?) between the "silva communis" and the "silva regis" (vol. 
 76). — The king places a "silva in bannum et ex ea sicut Franci dicunt, 
 forestam (facit)": Waitz, "V. G.," IV, 109. Forests, preserves, warrens, 
 "bedat" (Ital., "bandite," "vizze"); "Capitul.," Table, see "Foresta"; see 
 Du Cange; Thevenin, no. 159; Brunner, II, 75. Dietz derives "foresta" from 
 "foris," "foras." See details in Fertile, IV, 404. 
 
 * As to the right of hunting, cj. Medicis, " De Venatione Pise," in the "Tract, 
 ill. let.," 17, 391; De Launay, 1681; Gamare, 1681; Marchand, 1769; "IM.," 
 1775; Dufrenoy, "These," 1896; Boidin, "Dr. de Chasse," 1887; Faidez, 
 "Hist, du Dr. de Chasse," 1877; Steiglitz, "De Jure Venat.," 1828; "Encicl. 
 Giur. Ital.,"see"Caccia"; Fertile, § 138; Salvioli, § 220; "K. V. J.," IV, 3 s., 
 p. 69; Lux, "Erwerb. d. Eigenth. an Jagdb. Thier.," 1896; W. Sickel, "Z. 
 Gesch. d. Bannes," 1886; Schiipfer, "Allodio," 38; Briinneck, "De Dominio 
 Ferarum," 1863; post, "Grundr," p. 706. — "Beaune," p. 81; Britz, 
 p. 650; Gui Fape, q. 218 (bibl.); Astruc, p. 224 (hunting in Languedoc). As 
 to offenses relating to forests cf. Saleilles, "N. R. H.," 16, 90; "Sacliscnsp.," 
 61; E. Mayer, § 13 and 14, § 10. 
 
 B Cf. "Roth.," 309 et seq.; "Sachsensp.," 2, 62, 1; "Petrus," III, 44; 
 Pasquier, "Inst.," p. 193; J. Faber, "Inst.," fo. 31, 1582. 
 
 " Already in the barbarian laws hunting and fishing are sometimes looked 
 upon as attributes of the right of ownership, in the same way as the gathering 
 of the issues: "Sal.," 33, 98; "Rib.," 42, 1; 73; "Bai.," 22, 11; "Alam.," 102, 
 12; "Roth.," 309, 320; "Capit.," 802, 39; 813, 18; 817, 7; 826, 3, 6; "Schwabcn- 
 Bpiegel," 236. Frequent granting of the "piscatio" or of the "venatio." — 
 Freedom to hunt and fish, which is in accord with the old Customs of the sys- 
 tem of collective ownership, is already attacked as a consequence of this; it 
 is found to be in conflict with ownership on a large scale and the attributes 
 which that carries with it. Thus we arrive at the feudal period, — the date 
 varies according to locality, — during which fishing and hunting are included 
 within the prerogatives; this is the very opposite of the old custom. The enu- 
 meration of the "regalia" in Roncaglia only includes fishing; but hunting was 
 likened to it. Consequently, the freedom to hunt or to fish was often granted 
 by the lord, but ordinarily he reserved for himself a portion of the game or the 
 fish taken; the big fish — for example, the sturgeon — belonged to him; he 
 had a right to a haunch of venison: "T. A. C, Norm.," c. 68. — Italy: details 
 in Fertile, IV, 411. 
 
 285
 
 § 235] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 the sound of the bell, the bird in the air, the fish in the waters.^ 
 From these rights there resulted as a residue the right of the 
 nobles to hunt and the Customs or laws on the policing of hunting 
 and fishing.^ 
 
 § 236. Prerogative over Waters (and public ways).^ — The 
 law of the Prankish, period contrasts "flumina publica" with 
 "aquae aquarumque decursus," pretty nearly in the same way as 
 it distinguishes " vise pubhcae" from "vise convicinales " (the for- 
 mer are roads "ubi rex vel dux egreditur," "Heerstrasse," road of 
 the king; the latter, paths which serve the neighbors for their 
 daily intercourse and their work).^ Roads and rivers given up to 
 the use of everybody are outside of commerce, thus differing from 
 those which are left to private use. Must one go further and 
 maintain that they belong to the king or the lords? ^ The ordi- 
 nary doctrine is thus formulated by Loysel, 232 :. " The highroads 
 and navigable rivers belong to the king; the little rivers and roads 
 belong to the lords of the land, and the brooks to individual 
 tenants." ^ From thence there arises for the king and the lords 
 the right to islands which may be formed in the midst of rivers 
 
 1 "Jostice," p. 268. As to swarms of bees, "Wis.," 8, 6, 1; "Roth.," 319; 
 "Bai.," 22, 8; "Petrus," III, 45. See also the Romanists, — for example, J. 
 Faber, in his "Int.," Pasquier, "Inst.," p. 199; "Et. de St. Louis," I, 172; 
 see Ferriere, Guyot, Fournel, "Voisinage," ibid. The "Schwabenspiegel," 301, 
 allows of their being pursued for three days; the "Sachs. Weichb.," 118, 
 authorizes the first comer to take possession of them immediately. 
 
 2 As to the latest stages of legislation, cf. Pothier, "Propri6t6," etc.; Ferrihre, 
 see "Chasse," etc. (bibl.). The Ordinance of 1681 regulates deep-sea fishing 
 and the gathering of the products of the sea. 
 
 3 Wodon, "Dr. des Eaux," 1874; "Dig. Ital.," see "Acque"; Sclopis, 
 "Acad. Sc. Mor.," IV, 289; La Mantia, "Demanio s. Spiaggie" (Sicilian law), 
 1889; Fertile, IV, 395; Salvioli, ^222; Geffcken, "Wasserrecht," "Z.S.S.,G. A.," 
 1900, 173; Stobbe, § 64, I, p. 535; § 144; Astruc, "Tutelle," p. 191 (waters, 
 fishing); E. Mayer, § 9. 
 
 < "Bai.," 10, 19; "Alam.," 83; "Roth.," 151; "Wis.," 8, 24 et seq. Numer- 
 ous Acts where there is some question as to lands with "exitus et reditus," 
 etc. — Waitz, "V.G.," IV, 114 ("nostra est regalisa qua"); "Const, de Fr^d^ric 
 I," 1158 ("L. Feud.," 2, 56); Beaumanoir, c. 25; Pasquier, "Inst.," p. 164. 
 
 5 During the feudal period the king and the lords justices are contending 
 with one another for the nagivable rivers ; during the monarchic period the con- 
 flict was settled in favor of the king. Ordinance of 1669, 27, 41. But the con- 
 flict still continued with regard to unna\'igable rivers between the lord justice, 
 the lord of the land, or even mere copyholders themselves. Cf. Boutaric, I, 73; 
 "Et. de St. Louis," 1, 131; "Lorris," VI; Loysel, loc. cit. (and bibl.); "Beaune," 
 pp. 87, 88. 
 
 « "Wis.," 8, 4, 29; "L. Feud.," 2, 56: "flumina navigabilia." Dimensions: 
 Loysel, 232 et seq. (bibl.) ; Grimm, 552; Ferrihre, see " Chemin. For de Navarre," 
 6, 4, 5; "Sachsensp.," II, 28; Pothier, "Propr.," no. 264. Championniere in 
 1846 devoted a very learned book, "De la Propr. des Eaux Courantes," to 
 maintain the theory that the small rivers belong to the riparian owners; and 
 his doctrine, which is opposed to that of the Court of Cassation, was sanctioned 
 by the Law of April 8, 1898. — Pasquier, "Inst.," pp. 166. 
 
 286
 
 Topic l] DIVISIONS OF PROPERTY [§ 23G 
 
 and seas/ to alluvium and the bed of the river, and the power of 
 establishing fisheries, tolls, mills ^ and harbors. To this feudal 
 conception is opposed the system which makes the running waters 
 a thing owned in common, over which the king only exercised 
 police power in the general interest; there would result from this 
 for the profit of individuals, freedom of fishing, of navigation, and 
 the right of occupying islands, etc, 
 
 1 Landsberg, op. cit., §21; Pertz, "Dipl.," II, 461. Cf. "Sachsensp.," II, 
 56, 3; Stobbe, II, 162; Loysel, 239 (bibl.); Chaisemartin, p. 172; Loysel, 236. 
 As to alluvium, cf. Chardon, 1830; see "Dig. Ital." old, authors: Bartole, 
 " Tiberiade " ; Carmagnola, 1793, etc.; Pasquier, "Inst.," 188. 
 
 2 From the Frankish period on, granting of the right of erecting mills: 
 Perlile, IV, 400 (dipl. of 1159); "L. Feud.," 2, 56; "T. A.C., Norm.," c. 60; 
 "T. A. C, Bret.," 249; "Et. de St. Louis," I, 111; Beautemps-Beaupre, "Cout. 
 de I'Anjou," I, 134; Pasquier, "Inst.," pp. 270, 169. 
 
 287
 
 § 237] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 Topic 2. System of Ownership of Movables 
 
 §237. "Mobilia Non Habent Se- 
 quelam." 
 
 § 238. The Barbarian Period. 
 
 § 239. (I) Voluntary Dispossession. 
 
 §§ 240-242. (II) Loss or Theft. 
 
 § 243. Feudal Period. — (I) Volun- 
 tary ReUnquishment of Pos- 
 
 § 244. The Same. — (II) Loss or Theft- 
 
 § 245. Market Overt. 
 
 § 246. Reform in the Roman Direc- 
 tion during the Fourteenth 
 and Fifteenth Centuries. 
 
 § 247. Judicial Law of the Eight- 
 eenth Century. 
 
 § 237. "Mobilia Non Habent Sequelam." — If our old law 
 always recognized ownership of movables/ it did not protect it, 
 according to current opinion, by way of action; contrary to the 
 Roman rules, it started from the principle: movables cannot be 
 followed. Whence comes this peculiarity? What is the origin of 
 the sneer contained in Article 2279 of the Civil Code: "As far 
 as movables are concerned, possession equals title"? A delicate 
 problem, the solution of which is still widely discussed. 
 
 The point of departure of our old legislation is in the system of 
 the protection of rights by actions "ex delicto" and the exclusion 
 of all other means. The owner of the movable object had in 
 primitive times only the ordinary resources for recovering it: 
 private vengeance at first, and then the action "ex delicto," which 
 takes the place of the latter. Sometimes the movable was stolen, 
 or else it was lost, and the finder kept it for himself without taking 
 the precautions demanded by custom, which caused him to be 
 treated like a thief. Sometimes a person who had received the 
 object, at the same time pledging himself to restore it, refused to 
 keep his promise. In both these cases the owner was stripped, 
 or, which is the same thing, deprived of his ownership; the one 
 who plundered him, the man who committed the wrong, was sub- 
 ject to an action "ex delicto," but he alone was liable; the third 
 
 1 As to the acquiring of issues, c/. post, "Ownership of Land." Custom of 
 placing a mark ("Hausmarke," family mark) upon movable objects for the 
 purpose of recognizing them, in the same waj' as one's effects are numbered in 
 a regiment. Prohibition of "intertiare" in the case of objects which have not 
 some "probabile signum" in the "L. Rib.," 79, 2; cf. 33; "Sal.," 9, 2; 27, 19; 
 33, 2 (punching holes in the ears of cattle); "Burg.," 33, 1; "Roth.," 348, etc. 
 Cf. Geffcken, "L. Sal.," p. 185 (texts and bibl.); Schroeder, p. 14; Homeycr, 
 "Hausu. Hofmarke," 1870. — Rights of marking or of reprisal during the 
 Middle Ages: "Bergerac," 104; "Toulouse," 4,9; "Statuts de Marseille," 
 1253, 3, 5 and 4, 26. Letters of marque: Du Cange, see "Marcha"; Ragueau, 
 see "Marque"; Ferribre, etc., ibid. 
 
 288
 
 Topic 2] SYSTEM OF OWNERSHIP OF MOVABLES [§ 239 
 
 party who acquired the object, into whose hands it had passed 
 (purchaser, donee, etc.), escaped therefrom, whether he acted in 
 good or bad faith: ^ from which it follows that the owner could 
 not always recover his property. Civil actions, in time, were 
 added to or substituted for actions "ex delicto." It was only 
 with great difficulty that they were freed from the penal element 
 which they contained: a proof of the obscurity and inadequacy of 
 the early authorities. 
 
 § 238. The Barbarian Period. — Though the documents may 
 be very obscure, an examination of them leaves the impression 
 that one is not very far from a primitive state of things; against 
 the man who "malo ordine possidet," the owner of a movable is 
 only given penal actions, or actions given under analogous con- 
 ditions and subject to the same restrictions. Detailed contro- 
 versies concerning which there is some doubt do not seem to be of 
 such a nature as to shake this general result. Let us draw a dis- 
 tinction, so that we may clearly understand the economy of the 
 Barbarian law, between the case where the owner of the movable 
 has voluntarily dispossessed himself of it and that where the 
 movable has been taken away from him against his will, — that 
 is to say, has been lost or stolen. 
 
 § 239. (I) Voluntary Dispossession. — An object was lent, 
 bailed, or given as a pledge, etc. The owner had an action for 
 its restitution ^ against the borrower, the depositary, the pledge- 
 creditor. He would either obtain the thing itself, or its value 
 if the thing had perished or the "accipiens" had disposed of it. 
 In this latter case, if the "accipiens" were insolvent, the owner 
 would gain nothing by suing him. He would need an action 
 against the third party who withheld the property. He was not 
 given the action "in rem," either because the Barbarian law did 
 not recognize the reclaiming of movables, or else, which seems more 
 correct, because reclaiming existed, but it was subordinated to 
 the same conditions as were actions "ex delicto";^ only a few 
 
 1 Unless he can be accused of actual complicity, which admits of his being 
 treated simihxrly to the deHnquent himself, which would be a very rare thing. 
 
 2 Action "de re prajstita," according to the "L. Sal.," 51. Post, "Con- 
 tracts." This action had first of all a penal character, just as the "actio de- 
 positi" in Rome: according to the Salic Law it would seem rather to be a civil 
 action "ex contractu." The formula, "quia res meas noluisti reddere," docs 
 not imply that the plaintiff is bound to prove his ownership; it is sufficient 
 if he show a loan. CJ. Geffcken, "L. Sal.," p. 203, and authors cited. 
 
 ^ Ileuslcr considers as real every action including the formula, "Malo 
 ordine possides"; and it is an action of this kind that is mentioned liere. It 
 may be quaUfied as a reclaiming, but it is a very different kind of reclaiming 
 
 289
 
 § 239] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 laws which had been affected by the Roman influence granted 
 the action " in rem " against third parties.^ How are we to explain 
 this pecuHarity of the Barbarian law? ^ It seems as though a 
 stronger means of protecting the ownership of movable property 
 ought to have been introduced into this legislation.^ Two prin- 
 cipal explanations have been offered. 
 
 1st. The action against the bailee, who is responsible even 
 for accidental loss or injury, suffices for the owner of the 
 
 from the Roman "vindicatio." One can also say with Jobbe-Duval that there 
 is no reclaiming; the practical result from the point of view that we take is 
 the same, cf. Fertile, IV, 255; Hermaym, p. 69. 
 
 1 It is well understood that he does not have besides this the personal action 
 "ex contractu" or "ex delicto," for there is no question of any contract or 
 tort between him and the owner. The existence of the reclaiming of movables 
 admitted by the legal historians from the beginning of the nineteenth century, 
 cf., for example, Eichhorn, 261, was again recently upheld by Hermann, 
 p. 69, who criticises the majority of the accepted ideas and sees in the contrary 
 theory an opinion derived from the doctrine of Albrecht upon the "Gewere." 
 Principal arguments : (A) Nowhere do the barbarian texts formulate the rule 
 of the exclusion of the reclaiming. (B) On the contrary, there are laws which 
 formally concede it to the owner: "Euric," 289; "Wis.," 5, 48; "Bai.," 16, 4; 
 "Alam.," 90; "Rib.," 72, 1; "Burg.," 83, 1; "L. Pap. Roth.," 232, 5; "Ina," 
 35, 1. — Having accepted this starting point, we must now explain the de- 
 velopment of the rule: "Movables cannot be followed," which figures in 
 later texts, and the fact that it is found in the very legislation where the Ger- 
 manic element occupies a preponderating place. Hermann offers us ingenious 
 conjectures. One can also see that the maxim did not have the power which 
 was attributed to it; it would only contemplate certain restrictions upon re- 
 claiming, — for example, the lack of the right of distraint in matters relating 
 to mortgages or the practical impossibility of recognizing movables that have 
 no particular mark or sign about them. Jurisprudence, drawing its inspiration 
 from these precedents, and wishing to give a more complete satisfaction to 
 the growing interests of commerce, must have suppressed this reclaiming by the 
 owner and thus arrived at Art. 2279 of the Civil Code. 
 
 2 On the other hand, the reclaiming of movables appears in many of the 
 old legislations, for example, "L. de Manu," 8, 201: Kabyle Customs accord- 
 ing to Hanoteau and Letourneux, "La Kabylie" II, 223. 
 
 ' The partisans of this system reply to the arguments of the preceding view 
 by saying that the te.xts which it depends upon have been subjected to the 
 Roman influence, and that if a refusal to allow a reclaiming is not expressly 
 formulated in the documents of the barbarian period, this is to be accounted 
 for by reason of the general motives given in the text {cf. silence of the Eng- 
 lish texts of the feudal period). — As supporting their thesis they give the fol- 
 lowing special reasons: (o) The old procedure did not include many sorts of 
 action; had it admitted of the reclaiming of movables, the text would have 
 systematized it in its application against third parties; their silence upon this 
 point is decisive; cf. action of theft, (h) The exclusion of this reclaiming in 
 the system of the barbarian laws, where the civil and criminal action are con- 
 fused, and where there is only room for complaints ("clamores"), is readily 
 understood, (c) The Customary maxim, "Movables have no consequences," 
 is not set forth in the later sources of the law as being an innovation, and the 
 economic condition of the twelfth century would not be sufficient to account 
 for an innovation such as the exclusion of this reclaiming, (d) Finally, they cite 
 the laws of Hoel le Bon, "Code Ven6dotien," n. 32 {cf. Hermann, p. 84). — 
 These reasons, although in our opinion well founded, leave the controversy 
 still open. 
 
 290
 
 Topic 2] SYSTEM OF OWNERSHIP OF MOVABLES [§ 239 
 
 movable: "where you have placed your confidence you must seek 
 it," says an old German gibe; ^ he has only himself to blame for 
 having misplaced it; he could not be unaware of the fact that 
 he was laying himself open to many risks; ^ and third parties 
 who dealt with the possessor, who saw him with the object in 
 undisturbed possession, perhaps for a long time, and whom not 
 one notorious fact, like loss or theft, had put on their guard, 
 could not be bound to make inquiry as to his title. 2d. Accord- 
 ing to another opinion, the reason for the absence of the action is 
 accounted for by the characteristics of the old procedure; the old 
 Custom provides for formal procedure based upon solemn acts, 
 such as the giving of the "festuca," or upon material facts, such 
 as the delivery of an object; outside of offenses and acts of this 
 kind, no procedure is thought of; now, here, the offense cannot be 
 blamed on the third party who withholds the object; between 
 him and the owner there has been neither a material act nor a 
 solemnity upon which it would be possible to base an action. In 
 our opinion, the reason relating to procedure and the practical 
 reason gave each other mutual support.'"' 
 
 ^ Chaisemartin, "Proverbes du Dr. Germ.," p. 195; Glanville, 10, 13, 2; 
 Hermann, p. 129. 
 
 2 The "accipiens" may destroy the object, cause it to disappear, and refuse 
 to do anything in case it is stolen or lost. It is to the advantage of the owner 
 to allow the " accipiens " to bring the uncertain action of theft against the thief. 
 
 ^ Other explanations, cf. Jobbe-Duval, p. 85. — 1st. "Mobilium vilis pos- 
 sessio": Renaud, "R. de Leg.," 1845, 371. — 2d. Importance of pos.session in 
 the Germanic law; the owner who does not have possession is absolutely de- 
 prived of the thing (excepting it be stolen). Cf. Albrecht, "Gewere," p. 91. 
 It ought to be the same with regard to immovables. — 3d. The owner of the 
 movable has acted foolishly, whereas the person who acquii'ed the movable 
 in good faith is in no way to blame: Waller, "D. Rechtsg.," n. 705. — This is 
 all very well in our time, but the old law reasons in rather a different manner; 
 it says to the owner: " Where you have placed your confidence. . . ." It does 
 not punish the careless owner who has not securely tied up his horse by for- 
 bidding him to reclaim it from a person who purchases it in good faith. When 
 the object which has been lent has been stolen from the borrower and, conse- 
 quently, the owner is in no way to blame, he has no action against the thief. — 
 4th. The borrower has a right to alienate the object received in the same way 
 as the fiduciary acquirer at Rome: Gerber, "D. Privatr.," § 102. This theory 
 is confused with the one set forth in the text in the first place. — 5th. There is 
 a presumption of ownership in the third party who acquires the movable 
 when the movable has neither been stolen nor lost: Bar, "Bewcisurth.," 150. 
 No doubt, but why should the true owner not be allowed to overthrow this 
 presumption? — 6th. Executory character of the Germanic i)rocedure {cf. 
 "pignoria capio" in Roman law); the proceeding is more in the nature of a 
 distraint than of a contest over conflicting interests (" Betreibungsverfahren " 
 in the Swiss Cantons). Now, there is no executory right as against the third 
 party who acquires, and thenceforth no distraint is possible (Ilcuslcr, op. ctl.). 
 — Johbe-Duval, p. 89, objects that in the sixteenth century reclaiming was 
 admitted in France, and that, nevertheless, very often the proceeding began 
 by a distraint. It is none the less true that there is a close connection between 
 
 291
 
 § 240] OWNERSHIP .\ND REAL RIGHTS [Chap. II 
 
 § 240. (II) Loss or Theft.^ — Let us first of all observe that 
 the finder is treated like the thief when he does not fulfill the cus- 
 tomary formalities intended to notify third parties of the fact of 
 the discovery; so that what we shall say with respect to theft is 
 applicable to loss.^ According to the Frankish law, the victim of 
 a theft starts a search for the object which has been taken away 
 from him; ^ he summons his neighbors and calls upon them to 
 help him, places himself at the head of a group of them ("trus- 
 tis") ^ and follows the trail of the animal or of the object, which has 
 been stolen (" vestigivunminare ").'° If the tracks lead to a house, 
 the man who has been robbed carries out a search of the house 
 ("scrutinium") under conditions which recall the "perquisitio 
 lance licioque" of the Roman law.^ Once the object has been 
 found as a consequence of this proceeding, which constitutes a 
 remarkable case of "Selbsthiilfe," the "vestigium minans" shows 
 that this object bears his mark, follows this mark, and declares 
 that the thing belongs to him. Only if the search has taken place 
 at once and without any interruption, and the object has been 
 found within a short period (three nights), shall the ofEense be re- 
 garded as flagrant; ^ the man robbed shall be authorized to take 
 
 this opinion and the one which is set forth in the text: if the old procedure 
 starts out with a distraint, this is rather due to the reasons set forth in the text. 
 
 ^ See "Obhgations," "Offenses." See, especially, Brunner, "D. Rechts- 
 gesch.," II, § 139; "Antiq. Glos.sar.," see "Diebstahl." 
 
 2 "Rib.," 75, 80, "Roth.," 343; "Wis.," 8, 4,14; 5,6; "Bai.," 2, 12; "Alam.," 
 84; "L. Guill. le Conq.," I, 6 (Schmid, p. 324); "Magd. Fr.," 1, 13, 1.— Hermann, 
 p. 158 ("per tres marcas"); Chaisemartin, p. 492: to hide something which 
 one has found is the same thing as to steal. — Cf. "Estrays," ' 'Petrus," 3, 4. 
 
 * Assuming that the thief is not known; otherwise, it would only be neces- 
 sary to begin the action of theft against him. 
 
 ' "Sal.," 66; Hessels, "Gragas," ed. Schlegel, 2, 193; Cf. "Dec. Chlot.," 
 § 16: official search by the chief of the hundred at the head of a "trustis," 
 probably in a case where it was necessary to go outside of the hundred; re- 
 sponsibility for the theft upon the hundred where the traces led if the object 
 was not found. Cf., "Burg.," 19, 2 ("vegius," "veins" = "index vise"); 
 "M.G. H., LL.,"3, 467; "Wis.," 7, 4, 2; "Liut.," 81. 
 
 5 "Sal.," 37; "Rib.," 47; "Burg.," 16; "Roth.," 208. Cf. Gains, III. 193; 
 Virgil, "^En.," VIII, 209; Hermann, p. 32; Brunner, II, 496; London, p. 363. 
 The trail may be followed in Greece among the Scandinavians, etc.: Grimm, 
 "R. A.," 639; Dareste, "Etudes," p. 299; Post, "Ethnol. Jurisp.," II, 418. 
 
 ^ In the old times the "vestigium minans" was authorized to enter the 
 house by force, but he was held liable to pay a fine if the object was not found 
 therein: "Alam.," 5, 3; "Bai.," 11, 2; "D. Tassil.," 4, 13; "Gout, de Jutland," 
 2, 97; "Gout, du roi Ghristophe," 13, 2. According to another system, violence 
 was forbidden, but whoever offered opposition to the search was treated like 
 a thief: "Rib.," 47; "Burg.," 16, 103; Brunner, II, 497. Cf. action "furti 
 prohibiti." During the feudal period, wager before search. — Penalties 
 against whoever hides the stolen object in another man's house ("firinbero"): 
 "Sal," 16, 1; 17, 1; 34, 4; "Rib.," 45; Gains, III, 187 ("a. furti oblati"). 
 
 ^ The difference between flagrant theft and ordinary theft is readily ex- 
 
 292
 
 Topic 2] SYSTEM OF OWNERSHIP OF MOVABLES [§ 241 
 
 back the object from the hands of the one who withholds it/ and 
 this shall close the proceedings. 
 
 § 241. The Same. — If the object is only found after the ex- 
 piration of the legal period. of three nights, the theft is no longer 
 flagrant and the proceeding is not so simple. To the extrajudicial 
 phase there is added ^ a judicial phase. The seizure of the object, 
 the "Anefang" of the " Sachsenspiegel," ^ which closes the extra- 
 judicial phase, becomes the point of departure. These forms re- 
 call those of the "legis actio per sacramentum" (sham combat), 
 with this difference, that they take place outside of the tribunal. 
 The petitioner takes hold of the object with his left hand, and, 
 holding a weapon in his right, swears that he is placing his hand 
 upon a thing which is his (that is to say, on a thing which has 
 been taken away from him) ; ^ his adversary, in the same posi- 
 tion, swears on his side that the thing belongs to him, or that he 
 vouches a warrantor, "quod ad cam manum trahat qui ei ipsam 
 rem dedit." ^ It is only in this way that the man detaining the 
 
 plained by the idea of vengeance: the anger of the victim is more intense when 
 he takes the guilty man in the very act (cf. Roman law: "furtum manifestum" 
 and "nee manifestum")- The same observation applies to the extrajudicial 
 character of the procedure: Jobbe-Duval, p. 76; "Saclisensp.," II, 35. — "Li- 
 gratio" of the tliief taken in the act: "Rib.," 41, 73, 77; "Sal.," 32; "Burg.," 32. 
 More severe penalties: "Withr.," 2.5; "Atheist.," 4, 3, 6. — Is the man who 
 withholds property treated like a thief for this reason alone? Controversy: 
 Yes, according to Jobbe-Duval. To the contrary, see Brunner; — Glaber, 3, 6; 
 "Cout. de Jutland," 2, 106 (he is not allowed to defend himself); "Rib.," 41, 
 2; "Pactus Childeb.," c. 10. 
 
 ^ "Sal.," 37: "Res suas per tercia manu agramire debet." Various in- 
 terpretations: He takes back his thing, but in order to do this he should swear 
 with three fellow oath-takers that it belongs to him, — cf. "Et. de St. Louis," 
 II, 26; "_N. R. H.," 1878, 220 (Jobbe-Duval, Heusler); he must promise to- 
 gether with a surety that he will take upon himself the action for the third 
 party who has acquired (Brunner). " Adramire" means ordinarily to promise 
 by "fides facta": "Rib.," 33, 4; Roziere, no. 479; Thevenin, "N.R.B..," IS80, 
 91; 1879,333; "Bord.," 147; see DuCange,Geffcken, p. 154 (hihl); Schroeder, 
 p. 373 (texts); Hermann, p. 113. 
 
 2 Cf. London, p. 92. The connection between the "vestigii minatio" and 
 the "Anefang" is disputed. 
 
 ' "Anfangen" equals to distrain: Hermann, p. 86. — Other applications 
 of this procedure: Behrend, "Anefang u. P^rhcngewere," 1885. — For Sohm 
 the "Anefang" is a formal act. Criticism of this idea in London, p. 34. — It 
 takes place in court in the thirteenth century (ib., p. 52) in Germany. 
 
 * The depositary, etc., could not swear "quod in propriam rem" ("Rib.," 
 33, 1) if this was an affirmation of the right of ownership: Stobbe, II, 616; 
 "Aist.," 5; Forel, "Chartes Communalcs du Pays de Vaud," 1872, p. 98, § 15. 
 
 ^ Necessity for immediate reply under penalty of seeing the plaintiff take 
 possession of the thing. Argument to the contrary: "Sal.," 37; "Roth.," 
 232; "Burg.," 83, 1. — It is possible that the withholder may reply, "quod 
 fordronem suum ncsciat" ("Rib.," 33, 4; "Sal.," 47, 2; "Bai.," 9, 7; "Lib. 
 Pa]). Roth.," 232) and swear it before the tribunal; he is not punished as a 
 tliief, but is limited to restoring the thing: Ina, 25; London, p. 316; Beau- 
 manoir, 34, 3. 
 
 293
 
 § 241] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 object can clear himself of the accusation of impHed theft, — by 
 means of this formaUty ("exuere se de latrocinio," says the Salic 
 Law). In the first case the action is decided pursuant to the 
 usual rules; in the second, it becomes compHcated by reason 
 of the recourse to warranty. It is always necessary that the par- 
 ties ^ should appear in court with the object in htigation.^ The 
 defendant can plead that he came into possession by some law- 
 ful title; ^ by this means he overthrows the accusation. As- 
 suming a case where the thing has been transferred to him, he 
 finds himself under the necessity of naming his transferor, and 
 of promising that the latter will appear in court ("intertiatio").^ 
 The recourse to warranty is thus followed from one warrantor 
 to another until the first warrantor is found. ^ In the mean- 
 while the thing stays temporarily in the hands of the man 
 who actually withholds it; it has been thought that the thing 
 was confided to the sequestrator, which seems to us more reason- 
 able, and which was done later on; but during the Prankish period 
 the very heavy responsibility which weighed upon the holder 
 appeared sufficient to assure the bringing into court of the object 
 in litigation.^ Before the tribunal this object passed from the 
 hands of the holder into those of the warrantor, and the latter 
 took the defense upon himself; the holder disappeared from 
 
 ' Engagement entered into by them: "Lib., Pap., Roth.," 231; "Burg.," 
 83. Delays varying according as the warrantor is more or less distant: 
 "Sal.,"47: 40or80days: "Rib.,"33; "^thelr.," 2, 8; //toi/i., 7, 16; "Roth.," 
 231. — Results of default: being put "extra sermonem regis," distraint 
 upon the goods of the defaulter. Cf. Beaumanoir, 34, 3. 
 
 ^ As to the object in court, cj. "Alam.," 87 (clod of earth under seal): 
 "Bai.," 12, 3 and 16, 17; Houard, "Cout. Anglo-Norm.," Ill, 645. Death 
 of a stolen slave: who is buried at the crossroads, his feet tied with a twisted 
 branch "retorta," which comes up out of the ground and which should 
 "de manu in manu ambulare" until the thief is found: "Rib.," 72. 
 — A slave who has run away : unless he is represented within the legal 
 delay the guilt of the accused is looked upon as proved; but the Capitu- 
 lary of 803, 13, allows him to justify himself by oath. — Cf. "Alam.," 87; 
 "Bai.," 12, 3 and 16, 17; "Roth.," 313. — On the " quadruvium " cf. Hermann, 
 p. 139. 
 
 3 For example, if it is a case of an animal born in his stable: "Sal.," 99; 
 Hessels; "Bai.," 16, 11; "L. Pap. Roth.," 232; "L. de Guill. le Conq.," 1, 21; 
 "iEthelst.," 2, 9; "Schwabensp.," II, 93; "Cap. Childeb.," c. 1. Cf. Hermann, 
 p. 53; London, pp. 162, 342. 
 
 * "Sal.," 47; ib., 74. — "Cap.." ed. Bar., II, 440; Du Cange, see "Inter- 
 tiare"; Hermann, p. 99 and VII; bibl. in Geffcken, "L. Sal." "Orleans, A. C," 
 379, 380; "N. C," 444, 454; "Amiens," thirteenth century, 76; "Jostice," 
 p. 309; Jobbe-Duval, p. 42. 
 
 ^ "Rib.," 72, 1; "Bai.," 16, 11. No hmit to these successive recourses, 
 at least in the beginning: Brunner, "D. R. G.," II, 502; Law of Otto I, in 
 967. 
 
 « Cf. "Rib.," 74. 
 
 294
 
 Topic 2] SYSTEIVI OF OWNERSHIP OF MOVABLES [§ 242' 
 
 the proceedings.^ If the warrantor refused to accept the object, 
 this gave rise to an action between himself and the holder, 
 which was settled by means of the duel; the holder, convicted 
 of having had recourse to warranty without reason, was punished 
 like a thief .^ 
 
 § 242. The Same. — The action the procedure of which we 
 have just outlined, the only one which springs out of theft, is a 
 penal action, whether it be brought against the thief himself 
 ("actio furti," properly so called) or against a third party who 
 withholds the object (a reclaiming of the movable).^ The 
 only one authorized to bring this action is the man robbed, 
 whether he be owner or not; the lender, the pledgor, etc., have 
 the action, for it is sufficient that the thing which they have 
 lawfully in their possession should be taken away from them to 
 allow them to take vengeance for the injury received, or to per- 
 mit of their bringing action, which is a milder form of vengeance; ^ 
 in such a case, the action of theft is not maintainable by the 
 owner of the property.^ The man who has been robbed is not 
 able to sue the thief and the third party who withholds the ob- 
 ject, at one and the same time. If he fail in his action, he will 
 suffer the penalty of theft. ^ Retaliation is the compensation for the 
 risk which the defendant runs in the dangerous procedure which 
 is directed against him. In places where the law became milder 
 the penalties were less.^ The defendant who is found guilty 
 
 1 Post: "Doctrine of Warranty," "Sale." See Hermann, p. 64; "Lib. 
 Pap. Roth.," 231. 
 
 2 "Rib.," 33, 3; "Cap.," 803, "ad. 1. Rib.," 7; Loersch and Schr., no. 93; 
 "Ass. de Jerus.," "C. des B.," 256; Loysel, 699. 
 
 ^ Very diverse opinions as to the nature of the " Anef angsklage " ; cf. 
 analysis in London,^ op. cit., introduction. — The penal character of the action 
 results from its being given to a person who is not the owner, from the fact 
 that if the plaintiff fails in his action he incurs the penalty, and also from the 
 fact that the person who has been robbed cannot proceed against the thief and 
 against the third party who withholds the object at the same time. — The 
 commentaries upon the Lombard laws bear witness that this action was given 
 up in order to proceed according to the Roman law. 
 
 * A short delay (perhaps a year and a day), because he who allows the 
 customary time to go by is looked upon as ha\ang given up all idea of ven- 
 geance himself: " L. de Guill. le Conq.," 1, 3 and 6; 1, 21; Hermann, VI, 105, 
 109; "Dec. Childeb.," 3 (10 years). 
 
 ^ ^\Tlich proves that the action is not accorded to the depositary, etc., 
 simply because he is better informed and in a better position to act than the 
 owner is; but this is not always true. Fertile, IV, 257, maintains, it is true, 
 that the owner would have the action, for example, if the depositary were in- 
 solvent. — "Rib.," 72; "Cap.," 803, c. 12; "Liut.," 131; "Wis.," 5, 5, 3; 
 "Bai.," 15; "Schwabensp.," 230; Schreuer, " Verbrechenskonkurr.," p. 60; 
 Schroder, p. 348. 
 
 « "Bai.," 9, 18; "Roth.," 242; ".Ethelbr.," 2, 9. 
 
 ^ "Burg.," 19, 2; 83, 2; "Rib.," 47, 3; "Sal." (Hesscis); "Dec. Childeb.," 
 
 295
 
 § 242] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 pays his adversary the composition for theft, restores to him the 
 object stolen, or if this be no longer in existence, its value and, 
 furthermore, gives him a sum of money to indemnify him for the 
 time he has delayed in making the restitution/ These three 
 items are designated in the law of the Ripuarians by the words: 
 "texaga," "capitale" and "dilatura."^ 
 
 § 243. Feudal Period (tenth to fourteenth century). — (I) Vol- 
 untary Relinquishment of Possession. — The Customary law seems 
 to be divided between two opposite tendencies, — one, which is 
 Roman, allowing the owner to reclaim; ^ the other, which is Ger- 
 manic, refusing to allow him to do so. In these same Books of 
 Customs, solutions which contradict one another are met with. 
 Moreover, it is probable that the old law still predominates; one 
 can see that, as a general thing, the owner is reduced to a personal 
 action against the depositary, the pledgee, etc., to whom he has 
 entrusted his movable; ^ so much the worse for him if he has mis- 
 
 c. 3; "Sachsensp.," I, 53; II, 35; "Schwabensp.," 317. As to the Hindu 
 and Scandinavian law, cf. Jobbe-Duval, p. 69. 
 
 1 "Rib.," 17; 33. "Sal.," 2, 1 etseq. — Is the fine of the "Anefang" of the 
 Customs of the Middle Ages already added to those penalties of the bar- 
 barian period? Cf. "Alam.," 2, 88, 90; "Dec. Tassil.," 4, 13; "Wis.," 5, 4, 
 8. — As an exception, there is a right for the wlthholder to obtain the price or 
 a portion of the price: "Bai.," 9, 7; "Wis.," 7, 2, 8; Hlothar, 16; "Burg.," 
 107, 8. 
 
 2 Cf. "L. Ft. Cham.," 25, 27; Jobbe-Duval, p. 68. — As to the "dilatura" 
 or "wirdira" controversy, cf. Tamassia, "Arch. Giur.," 1897, p. 345; Vander- 
 kindere, "Acad. Belg.," 41; Grimm, "R. A.," 655; Brunner, II, 624; bibl. in 
 Geffcken, "L. Sal.," p. 109; Hermann, p. 28. 
 
 ' Case of the reclaiming of a thing entrusted to another, with or without 
 indemnifying the third party who has acquired it: " Jost.," 8, 5, 2; 19, 23, 3; 
 "Ass. de Jerus.," "C. des B.," 91, 99; "Amiens, 2 Cout.," 99 et seq.; Roye, 
 37; "Roisin," no. Ill; "Bourges, T. A. C," 54; Varin, "Arch. L6g.de Reims," 
 I, 38; "F. de Beam," p. 53, 170; Jobbe-Duval, p. 176; Fertile, IV, 256. Cf. 
 as to the German law: Stobbe, II, 621; Beaumanoir (31, 16; 54, 3; 32, 15; 
 6, 3) allows the owner the right of reclaiming (Roman influence), excepting as 
 against the person who has acquired the thing in good faith and who "bought 
 it in the open market to the knowledge of all good people." If it is a question 
 of a movable which has been stolen, the person buying it under these same 
 conditions shall have a right to be paid back the purchase price (25, 22). Cf. 
 34, 47; Boutaric, I, 43. Beaumanoir, 32, 15, also admits of the complaint of 
 novel disseisin for the benefit of the man who, having had a movable for less 
 than a j^ear and a day, loses possession of it. Cf. Bourcart, "These," p. 191. 
 See also theory of seisin: Beaumanoir, 37, 3 (good faith); Glanville, 12, 12. — 
 "Petrus," 2, 15; 3, 9. 
 
 * (A) Texts which Formulate the Customary Kule, according to which re- 
 claiming is not admitted: P. de Fontaines, 12, 3; "T. A. C, Bourges" {B. de 
 Richeb., Ill, 880), Art. 55. Neither the Roman reclaiming nor the mortgage 
 action can take place in the lay court: A. Favre, "Cod. Fabr.," VI, 27, 11; 
 Terrien, on "Norm.," p. 258; Voet, "Ad Pand.," 6, 1, 12; Boerius, "Consuet. 
 Bituric," fo. 35. Cf. Bessian de Pressac, on "Auvergne," 17, 1: the usucap- 
 tion of movables is abolished; acquirers are protected by the general Custom 
 of the kingdom: Movables cannot be followed. — Although these last authors 
 are of recent date, they give the rule as being an old one: Denyssen, "Diss. 
 
 296
 
 Topic 2] SYSTEM OF OWNERSHIP OF MOVABLES [§ 244 
 
 placed his confidence, or if the "accipiens" abuses this confidence 
 in order to transmit the property to a third person; ^ against the 
 latter the owner has no remedy, even if his own debtor is insol- 
 vent; the energetic measures to which he can have recourse (phys- 
 ical compulsion, private seizure) cause this insolvency to be a 
 rather rare occurrence.^ 
 
 § 244. The Same. — (II) Loss or Theft. — (a) Loss. The feudal 
 laws modified the old rules in this respect. Movable objects which 
 were lost belonged to the lord, excepting for the duty he had of 
 restoring them to their owner if the latter claimed them within the 
 year and a day; such a reclaiming could have no penal character 
 if the lost property was in the hands of the lord; nor did it have 
 any more of a penal character when, the right of the lord having 
 been obliterated, it was made against a third party (the Latin 
 East, Normandy).^ Between this personal action, which may be 
 
 Inaug.," 1796, Raynaud, "These," 1873, p. 113, think that this maxim is 
 only a short form of the rule of the sixteenth century, "Movables cannot 
 be followed by a mortgage." Des/nares, 165; "Cout. Notoires du Chat.," 
 23; "Cout. d'Anjou de 1411," no. 288. To which we must reply by the 
 preceding and following texts, which are general and do not merely con- 
 template mortgages. — (B) Texts which Apply the Rule: "Jostice," 19, 53, 3 
 (pledging some one else's property, whereas, if one pledges a thing stolen and 
 it be known, the pledge is worthless): "Ass. de Jerus.," "C. des I3ourg.," 40, 
 84 (distraint upon the thing lent to the debtor by a third party); "Roisin," 
 p. 90, n. Ill (reclaiming allowed as an exception). The Customs of the South 
 allow the purchaser of a thing which has been stolen a right to compensation 
 if the purchase has taken place in a market; "a fortiori," should this be so 
 in the case of a thing which has not been stolen, yet at the same time this case 
 is not provided for, because the true owner has no right to take the thing back: 
 "Toulouse," 95, etc.; "N. R.H.," 1880,342 ("estault" atMetz). Thelackof 
 usucaption as applying to movables in the Customary law is thus to be ac- 
 counted for quite naturally: "Orleans," 260, 271; however, it is not certain that 
 the possession of a year and a day did not in the old times take place (" Compil. 
 d. us. Andegav.," 35) ; when it ceased to be general the old Customary principle 
 was opposed to the admission of the Roman usucaption of three years. — Cf. 
 as to German law: "Sachsensp.," II, 60, 1 (refusal to give any action against 
 third parties who withhold property in the case of a lending, etc.). Current 
 maxims : " Hand muss hand wahren " towards 1400 (the hand should guarantee 
 the hand, allusion to the recourse to warranty in the case where one finds the 
 stolen object in the hands of some one other than the thief; cf. as to the double 
 meaning of "wahren," to warrant, to keep, Ileusler, II, 213). Schroeder, 
 p. 373; Chaisemartin, nos. 55 and 56. — English law: in the thirteenth century 
 the owner has only a contractual action of detinue (upon a bailment) against 
 a lender, etc. (Brncton, fo. 102 b), and the latter is the only one allowed to bring 
 the action "furti." 
 
 ' Little matters the good or bad faith of the acquirer. 
 
 2 Prost, "Ord. des Maiours," p. 228; "Bayonne," 53, 1; 104, 1 et seq. 
 
 ^ The action for a thing "adir6e" (lost) is a personal action which is purely 
 ci\'il, and by means of which one asks for the restitution of the object which 
 has been lost from the third party who holds it (and not a reclaiming, as is 
 thought by Thevenin, "Mobilienvindic. nach. d. Altfr. Rechtsq. d. ]\I.-A.," 
 p. 3, and Franken, "Franz. Pfandr.," p. 298). It is based upon the fact of 
 the loss rather than upon the right of ownership. It ought to belong to the 
 
 297
 
 § 244] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 called action for a lost thing, and the reclaiming of movables, there 
 is only a slight shade of difference.^ 
 
 (6) In cases of theft (and this word was always understood 
 in its narrow sense without including fraud and abuse of con- 
 fidence), the man robbed, whether the owner or not,^ had two 
 actions at his disposal;^ we will call one of them the action of 
 theft, the other a demand for a stolen thing, although these names 
 are not found in the texts.'* These are both criminal actions. The 
 
 pledgor, to the borrower, etc.; but the texts assume that it is brought by the 
 owner. As to the procedure of this action, cf. Jobbe-Duval, p. 159. It is 
 only mentioned in the "Ass. de Jerus.," "C. des Bourg.," 226 (220); J. 
 d'Ibelin, 80, 131; Jacq. d'lbelin, 54; "Ass. d'Antioche," "C. des Bourg.," 
 9; "Gr. Gout. deNorm.," 87; " Fleta," I, 36; Britton, 118; "Reg. Grim, 
 de la Just, de Saint-Martin-des-Ghamps," p. 11; cf. "Summa Norm.," 
 16, 3. 
 
 1 Cf. in English law, the action of "detinue sur trover" {Pollock and M ait- 
 land, II, 174), and in German law, the "Schlichte Klage" {Laband, "Vermog. 
 Klag.," p. 90), which is the opposite of the "Anefangsklage," which isonly given 
 in cases of theft: Behrend, "Obs. de Actione Simplici (Schlichte Klage) Juris 
 Germ.," 1861. 
 
 2 The borrower, the pledgee, etc., are responsible for unforeseen circum- 
 stances and, consequently, for theft ; thenceforth the actions arising out of theft 
 belong to them (to the exclusion of the owner) : P. de Fontaines, 20, 10; "A. G., 
 Bourg.," 18; "Ass.de Jerus.," " G. des Bourg.," 56 (58); J. d'Ibelin, 119; 
 Fleta, I, 37.) — Reaction against this rule: Beaumanoir, 31, 15 and 16; "Jos- 
 tice," 19, 35, 1; "Bordeaux," 161. — The action should be begun within a 
 year and a day of the theft or the loss: "Jostice," 19, 29, 1 and 161; "Gr. 
 Gout, de Norm.," 17 and 19; "Ass. de Jerus.," "G. des Bourg.," 253 (252). 
 
 — In the tliirteenth century there was no such thing as a, prosecution by the 
 government; the man who was robbed and his relatives had to bring the ac- 
 cusation; the criminal action was private, and not public: "Jostice," 19, 45, 
 2. — Contra: certain Gustoms of the South : "Bayonne," 103, 16; "Lourdes," 
 19; cf, Beaumanoir, 6, 12. 
 
 ' Was the preliminary examination still entrusted to the man who had 
 been robbed (investigation and search of the house)? Cf. Jobbe-Duval, p. 102. 
 
 — As to flagrant offense, ibid., p. 105; simply because there is a prosecution: 
 Bracton, 3, 27,1; "T. A. G., Bret.," 101; "Gr. Gout. deNorm.," 81 (cf. "Bay- 
 onne," 67; "Ass. de Jerus.," " G. des Bourg.," 238); he who is taken in the act 
 cannot exonerate himself; "Ass. de Jerus.," "C. des Bourg.," 241; "Gr. 
 Gout, de Norm.," 18; Beaumanoir, 31, 4, 16. 
 
 ^ English Law, Glanville, 10, 17; Bracton, io. 151; "Fleta," 55. The English 
 common law gave self-help a prominent place in carrying out the customary 
 proceedings for the recovery of stolen movables, but in the thirteenth century 
 it was decided that the man who took justice into his own hands should by 
 way of penalty lose the object which he took back (Britton, I, 115); thence- 
 forth the old procedure was abandoned. The man robbed had two actions: 
 (a) the appeal of larceny, a true "actio furti"; (6) the action of trespass "de 
 bonis asportatis." The appeal of larceny caused the one who started it to 
 run great risks, and finally it did not even assure him the restoration of the 
 stolen objects. After the time of Henry III, the writ of trespass was the only 
 practical means whereby the victim of a theft could recover the value of his 
 goods; but, as it assumed that the thief had acted "vi et armis" against the 
 king's peace, the third party who had acquired the property from the thief 
 escaped it; this was a deplorable result, not only in itself, but because the 
 jurisconsults drew from it the idea that the thief or the trespasser had become 
 the owner of the object which he had seized. 
 
 298
 
 Topic 2] SYSTEM OF OWNERSHIP OF MOVABLES [§ 244 
 
 first is more formal and more dangerous than the second/ so 
 much so that recourse is scarcely ever had to it unless the thing 
 cannot be found. This action does not differ very much from the 
 old Prankish procedure against the thief. The other action, which 
 is of later creation, applies to the case where one prosecutes, 
 not the thief, but a third party who has acquired the prop- 
 erty. This second action does not contain any formal accusation 
 of theft; the accuser who fails is not liable to be punished like a 
 thief, as happens when he brings the action of theft (retaliation) ; 
 the defendant who is found guilty will ordinarily be compelled only 
 to restore the thing stolen ; he will almost always escape the penal- 
 ties of theft or will incur only a lesser punishment. The demand 
 for a stolen thing ^ is like a more modern and less barbarous 
 form of the action of theft, — in transition to the stage when 
 
 ' The procedure in the action of theft is very archaic, as one can judge from 
 this outline, which I borrow from Jobbe-Duval, p. 107: 1st. Formal accusation 
 ("Ass. de J^rus.," "C. des Bourg.," 246 (252), 244 (249), 88 (90); /. d'Ibelin, 
 62, 250; " Jostice," 19, 4, 2; "Et. deSt. Louis," 2 17, 19; "Gr. Cout.de Norm.," 
 71) and offer of proof (Beaumanoir , 61, 4; /. d'Ibelin, 63), surety ("L. de 
 Beaumont," 24), the placing of 4 "deniers" upon the thing ("Et. deSt. Louis," 
 2, 16, cf. Jobbe-Duval, pp. 108, 118). — 2d. Immediate denial on the part of the 
 defendant with offer of proof, in default of which the penalty for theft is in- 
 curred; no day of counsel : P. de Fontaines, 13, 2; "Forde Beam," p. 64 {contra: 
 "Et. de St. Louis," 2, 20; "A. C, Bourg.," 14). — 3d. Judgment of proof: 
 "Ass. de Jerus.," "C. des B.," ; imprisonment of both parties: "Et. de St. 
 Louis," 104 ("Livre des Droiz," 257: "Us. de Guynes," 333). — 4th. Proof by 
 ordeals: "L. de Beaumont," 28; by the duel: "Jostice," 19, 1, 2; "Gr. Gout, de 
 Norm.," 71; "For de Morlaas," 81, 282; by witnesses: "Et. de St. Louis," 2, 12; 
 "A. C., Bourg.," 24. — Beaumanoir, 34, 45, does not admit of a man's de- 
 fending himself by bringing in his warrantor; contra: "Ass. de Jer.," "C. des 
 B.," 246 (252). — 5th, Pecuniary penalties ("Riom," 24; "Ass. d'Antioche," 
 "G. des B.," 7, 60, tariff of compositions), but generally corporeal penalties 
 ("Et. de St. Louis," 1, 29, loss of an ear, a foot, death; "Reg. Grim, de Saint- 
 Martin-des-Ghamps," p. 220); with confiscation of movables ("Abbeville" 2; 
 "Ass. de Jerus.," "G. des B.," 227 (232); "Glim," I, p. 240 (328). — 6th. Re- 
 taliation against the complainant who is defeated: "Et. de St. Louis," 1, 82; 
 Beaumanoir, 6, 16; L. Delisle, "Jug. de I'Echiq.," 28, 206; "Ass. d'Antioche, 
 Hte. G.," 11; "Us. de Guynes," 334. Cf. Jacobi, 94, 10. 
 
 2 It is difficult to determine the exact nature of the demand for a stolen thing 
 (a name created by Jobbe-Duval, whose terminology we follow). We see in 
 this a criminal action, such as an action of theft was, without attemj)ting to 
 conceal the fact that its penal character is perceptibly lessened. The tliird 
 party in possession against whom this action is brought is "i)laced under the 
 necessity of accounting for the obtaining of pos.session" of the thing; if he is 
 not successful in having the action shifted upon his warrantor he runs the risk 
 of being punished as a thief, or, at least, of incurring some minor penalty 
 ("Et. de St. Louis," 1, 91; "A. G. Bourg.,*' 76). As to the procedure in this 
 action and the characteristics which reveal its penal character, cf. Jobbe- 
 Duval, p. 112-159. Formula of the demand: "This thing has oecn stolen 
 from me" ("Et. de St. Louis," 2, 17; "Asa. de J6rus.," "G. des B.," 88 (90); 
 "T. A. G., Bourgos," 53; "Bordeaux," 18; "Bergerac," 105) ; certain texts add, 
 "It is mine" (P. de Fontaines, 12, 1; "A. G., Bourg.," 14); but this variation is 
 not essential, as the action maybe brought by a lender ("A. G., Bourg.," 18; 
 P. de Fontaines, 20, 10). 
 
 299
 
 § 244] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 (after the office of public prosecutor had arisen) the civil and the 
 criminal actions were separated and thieves were exposed to both 
 an official prosecution and a civil action. 
 
 § 245. Market Overt. — As a general rule, the owner who re- 
 covered a stolen or lost object was not compelled to indemnify 
 the person who had possessed it, even although the latter did so 
 in good faith (for questions of intent, of good or bad faith, are 
 immaterial in the old law). But in the interest of the lords and 
 communities for whom fairs and markets were a source of revenue, 
 some of the Customs, many of which are Southern, once allowed a 
 man who had bought a movable in a fair or market the right of 
 demanding the restitution of the price paid. Often less had been 
 paid for the object than it was really worth, for the very reason 
 that it was something belonging to somebody else, and the owner 
 had the advantage of being able to retake it on condition of re- 
 storing the price, that is to say, of indemnifying the man who had 
 acquired it.^ This equitable practice (the existence of which is 
 attested from the eleventh century in Germany as between mer- 
 chants) did not succeed in passing into the common law of Cus- 
 toms in the form of a general rule, but it shows the direction in 
 which future legislation was to be engaged; these are considera- 
 tions of an economical order which were to give the latter its 
 final shape. This practice, moreover, did not disappear; some 
 jurisconsults of the eighteenth century even extended it by 
 likening a purchase made from a merchant selling the same sort 
 of goods to the purchase made at a fair. It was perpetuated by 
 the Laws of October 6, 1791, 2, 11, and by Art. 2280 of the Civil 
 Code. 
 
 § 246. Reform in the Roman Direction during the Fourteenth 
 and Fifteenth Centuries. — The reclaiming of movables was 
 little by little introduced into practice under the influence of the 
 Roman law; ^ it was allowed to the owner whose property had 
 
 ^ Privilege of the Jews in Germany: Schroeder, p. 698; Fertile, p. 258; 
 Beaumanoir, 25, 22 etseq.; "Et. de St. Louis," 2, 17; "Bourg.," 14, 12; "Bor- 
 deaux," 18; "Perpignan,"25; "Toulouse," "deemt.,"3; "Avignon," "Stat.," 
 108. Numerous charters in Germany and Switzerland: cf. Stobbe, II, 618. — - 
 Pubhc buying (even outside of a fair or market): "Montpellier" (1204), 21; 
 "Cahors," 22; "Luzech," 82; "Quatre-Vallees," 32. — In this sense "Arret 
 Pari. Paris," 1636. — In the eighteenth century cf. Pothier, "Cheptels," 1, 
 4, 3, 40; Denisart, see "Vol., 17"; Soulatges, on "Toulouse," p. 245; Dunod, 
 p. 232. 
 
 ^ Boutaric, I, 43, p. 319; "Gr. Cout>," II, 16; III, 53; 4. Favre, "Codex 
 Fabr." (1640), 6, 27, 11 (order of the Senate of Savoy, 1593); Fithou on 
 "Troyes," Art. 72, p. 157 (1609); Charondas, "Pand.," 4, 31, p. 565. Cf. Deg- 
 
 300
 
 Topic 2] SYSTEM OF OWNERSHIP OF MOVABLES [§ 246 
 
 been stolen or lost/ as well as to the man who had voluntarily- 
 relinquished it; one no longer finds in the sixteenth century the 
 maxim: "Movables cannot be followed." However, there still 
 remain important vestiges of it, either because of inconsistencies 
 or for practical reasons: 1st. In the South as well as the North 
 it is said: "Movables cannot be followed by way of mortgage." ^ 
 This was a necessity with the system of general mortgages then 
 in force, if they wished to allow a debtor to dispose of his mov- 
 ables; this rule means: (a) sometimes that there can be no 
 mortgage upon movables ("Paris," "Orleans");^ (6) sometimes 
 that a mortgage on movables is valid,^ but carries with it no 
 right of reclaiming.^ 2d. The Roman usucaj)tion of three years 
 being useless under a system which excluded all reclaiming, our 
 practitioners held it as being abolished, and applied to movables 
 the thirty years' prescription which was in use for immovables; 
 
 heiviet, p. 389. Reclaiming, a purely civil action, did not carry with it any 
 fine against the complainant in case he were defeated. It was based upon 
 ownership and was given without there being any question as to how posses- 
 sion had been lost, in case of ahenation by a depositary, etc., or whether the 
 thing had been lost or stolen and acquired by a third party in good faith. Cf. 
 Boutaric, I, 27, p. 158 and I, 35, p. 244. The procedure began by a distraint 
 of the object in litigation, — a thing which was indispensable because of the 
 rude customs of former times ("Entiercement" at Orleans, Pothier, ed. Bug., I, 
 684) ; at the request of the complainant and without the authority of the court, 
 the object was sequestrated by a sergeant; the court could after this confide 
 it to the defendant (^"ith or without surety). "Adveu" and " Contre-Adveu " 
 ("advooare," to reclaim) in the Customs of Anjou, Poitou, La Rochelle, with 
 "Applegement" (giving of surety) by both parties, as is done in matters re- 
 lating to immovables: Bucherellus, on "Les Instit. de Just.," p. 604; Loysel, 
 754 (note); Ragueau, see "Gloss." 
 
 1 The thief (or the acquirer in bad faith) was subject to a criminal action 
 (a public action from the day when the public prosecutor could act officially; 
 the ordinary individual no longer brings accusation, but is limited to a denun- 
 ciation which allows him to escape retaliation) and to a personal action ("ex 
 delicto ") for restitution. Against the acquirer in good faith one had the action 
 of reclaiming. — Abuse of confidence was likened to theft and punished in the 
 same manner (cf. Roman "furtum"). 
 
 2 "Cout. Notoires," Art. 23 (by mortgage). Pos/, "Origins of the Mortgage." 
 Movables could not be distrained upon when in the hands of third parties by 
 the creditors of the owner: Boutaric, I, 25; Masuer, 30, 13; Viollet, p. 740; 
 Valette, "R. Foelix," II, 365. 
 
 3 "Paris," 170; "Orl6ans," 477; Loysel, 487; Civil Code, 2119. 
 
 * Anjou, Maine, Normandy. — As to the South cf. Augeard, "Arrets," I, 
 900; Jidien, "E16m.," p. 352. 
 
 * (A) Whether the acquirer were in good or bad faith, for that mattered 
 little in the old law. However, certain Customs only protect the acquirer in 
 good faith (following the Roman law: Faulicnne) ; Des.mnres, 165; " Cout. Not.," 
 23; "Melun," 313; "Champagne," 65; "Sens," 131; L'Hommeau, "Maximes," 
 III, 14. — (B) Whether the mortgage be general or special, although there 
 may have been some,, difficulty in the case of the latter (cf. Civil Code, 2102, 
 lessor). Terrien, on "Norm. " 8, 1, p. 258; Boerius, on "Bourges," "H3^p.," 
 § 2; Bessian de Pressac, on Auvergne," 24, 52, p. 215; Rebuffe, on Masuer, 
 30, 13. — Chassaneus, on "Bourg.," 5, 3, 4. 
 
 301
 
 § 246] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 the reclaiming of movables was thus possible during thirty years/ 
 at least, in cases of voluntary dispossession. As to movables which 
 were stolen or lost, our old authors were very much divided as 
 to the case in which they had passed to the possessor in good 
 faith. Some of them looked upon the stolen or lost property 
 as being incapable of having a prescription run against it; the 
 others here admitted either the thirty years' prescription or 
 the three years' usucaption} 3d. Possessory actions, which were 
 inconsistent with the old system of the ownership of mov- 
 ables, did not succeed in being introduced into practice, even 
 after the reform, for they were not so useful as they were in 
 the case of immovables.^ 
 
 § 247. Judicial La^ of the Eighteenth Century. — INIovables, 
 says Dumoulin, can, "una hora transire per centum manus"; if 
 the owner is permitted to reclaim them during thirty years, the 
 fear of being sued would drive away purchasers; and the owner, if 
 he wishes to make use of his right, runs the risk of becoming in- 
 volved in fruitless litigation because of the difficulty which ex- 
 ists of establishing the identity of the movables reclaimed. The 
 Neo-Roman doctrine of the reclaiming of movables during thirty 
 years was all the more defective because at the time when it was 
 established commerce was making progress and transactions in 
 movables were on the increase. Practice had to restrict the rights 
 of the owner, who was almost always guilty of imprudence,^ in 
 order to give an advantage to the purchaser in good faith, who 
 
 1 Imbert, " Enchir., " see " Usuc," p. 305; " Inst., for.," I, 35, 7; Fontanon, on 
 Masuer, XXII, "de Prescr."; "Berry," 12, 10; Buchereau, p. 155. — Dissenting 
 Customs: (a) no more reclaiming after the seisin of ayear and a day: "Compil. 
 de us. Andeg.," no. 35; "L. d. Droiz," no. 51. Cf. Boutaric, I, 27. (b) Usu- 
 captionof 3 years: "Gr. Cout.," 28; Chassaneus, on "Bourg.," 13, 8; Chnrondas, 
 "Band.," 2, 22, p. 270; "Anjou," 419; "Maine," 434 (legal title and good 
 faith); "Melun," 169; "Sedan," 324; "Clermont en Arg.," 14, 8; "Amiens," 
 163 (good faith only ). (c) Usucaption of from five to ten years: "Bretagne, 
 A. C," 274; "N. C," 284. 
 
 2 Augeard, I, 3. — Auroun des Pommiers, on "Bourb.," 3, 33. — Pothier, 
 "Prescr.," no. 204; Denisart, see "Vol," no. 19, cf. Civil Code, 2279, 2280. 
 
 3 "Gr. Cout.," 2, 19, 21; Masuer, 11, 66; "Bourges," 56. — However, Bou- 
 taric, I, 31, p. 189, admits the complaint. Cf. post, "Possession"; Beaumanoir, 
 32, 15; "Gr. Cout.," p. 250; Loysel, 754, 755, 756 (and citations); Bucherellus 
 on the "Inst, of Justinian," p. 604: "utrubi intordictum" admission "gallice 
 nuncupamus" follows the description of the procedure of the admission; but the 
 question of owTiership and that of possession are passed upon at the same time; 
 the latter is found to be as though absorbed in the action for real property: 
 Ragueau, see "Gloss.," and "applegement." — Let us notice that possessory 
 actions were possible in the case of every kind of movables: "Paris," 97; 
 "Orl6ans," 489; "Ord." 1667, 18, 2. 
 
 ^ Order of the Parliament of 1636: reclaiming, but charged with the indem- 
 nifying of the purchaser in good faith: Jobbe-Duval, p. 228. 
 
 302
 
 Topic 2] SYSTEM OF OWNERSHIP OF MOVABLES [§ 247 
 
 was in no way in fault.^ 1st. Some, like Ferriere, accord to 
 the latter the advantages of the prescription of thirty years, 
 by showing themselves not very exacting in the matter of the 
 proof of la^A-ful title (witness, simple affirmation) .^ 2d. Others, 
 with Pothier, in his Commentary on the Customs of Orleans,^ 
 declare that the possessor of the movable is presumed to be the 
 owner until the contrary is proved; he needs neither prescription, 
 his ownership being looked upon as established, nor tifle, posses- 
 sion standing him in lieu of title, for it is not customary to consum- 
 mate the purchase of movables by writing. 3d. From this point 
 to the establishment of a presumption of ownership "juris et de 
 jure" for the benefit of the possessors of movables there was but 
 a step, and this step was taken towards the second third of the 
 eighteenth century by the practice of the Chatelet of Paris, which 
 is summed up by Bourjon in his celebrated formula: "As far as 
 movables are concerned, possession equals title." ^ This was a 
 
 1 However, a reclaiming which could be made during thirty years still 
 continued to exist in countries of written law {Serves, "Inst.," " Usucaption " ; 
 Boutaric, "Inst.," p. 182; Julien, "Elem.," 2, 5, 4; "Comm. s. les Statuts de 
 Provence," II, p. 4i5). According to Merlin, Guyot, see "Prescr.," 2, 5 (1785) ; 
 Flaxist, on 522 "Normandie" (1781); Mall, de la Mothe, ;' Quest.," p. 291 
 (1787), this would have been the common law of France applicable in localities 
 where the Customs were silent. 
 
 2 "Maine," 434. Above 100 "livres" the proof of lawful title had to be 
 in writing; this would have been the same thing as doing away with usucaption. 
 Pothier authorized proof by means of witnesses; Ferriere, "Diet.," see "Imm.," 
 is contented with a mere affirmation on the part of the possessor. To the same 
 effect, R. de La Combe, "Arrets," p. 255; Boucheul, s. 372; "Poitou": Chabrol, 
 B. 17, 1; "Auvergne," etc. 
 
 3 "Cout. d'Orleans," title "Prel.," s.'2; "Propriety," no. 282 (elsewhere 
 Pothier requires the usucaption of three years, but still allowing the proof of 
 title by means of witnesses: "Prescr.," IX, 386, ed. Bug., or by means of a 
 mere allegation, "Don entre Mari et Femme," no. 67). Cf. Denisart, see 
 "Meubles," no. 32; Dupineau, s. 42\;Anjou, "Encycl. Meth.," see "Meubles"; 
 Cottereau, "Dr. Gen. de la France et Dr. Partic. de la Touraine," no. 7279; 
 Jobbe-Duval, p. 230. — Consequences: (a) no revocation of gifts given by hand; 
 no reclaiming on the part of the seller against the buyer (but if the price has not 
 been paid, the seller for cash may reclaim, for in this case delivery does not 
 transfer ownership: cf. Art. 176, "Paris, N. C," and 177; Pasquier, "Inst.," 
 p. 256, and the commentaries on the Customs; privilege of the seller of movable 
 effects); (b) the purchaser in good faith is not protected from reclaiming when 
 he has received a movable which was deposited or pledged, etc., from the un- 
 faithful depositary, etc. By proving the breach of confidence the depositary, 
 etc., overthrows the presumption of ownership in the possessor. 
 
 * Current formula, of which Bourjon is consequently not the originator: 
 Bourjon, "Dr. Commun de la France" (1747), 3, 21, 1 and 2; 6, 8, 3, 1, 3 and 
 18; 6, 8, 3, 4, 26. Good faith upon the part of the purchaser is demanded by 
 Bourjon and by Valin, on "La Rochelle," Art. 60. Were it not for Art. 2279 
 of the Civil Code, one might doubt if this jurisprudence had continued after 
 this. — Consequences: (a) the purchaser in good faith who is put in actual 
 possession following a breach of confidence is not open to reclaiming on the 
 part of the owner; the latter finds himself limited to a personal action against 
 
 303
 
 § 247] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 radical and simple solution, which Art. 2279 of the Civil Code has 
 perpetuated, and which gave the needs of business full satisfac- 
 tion: the purchaser in goodfaith^ of a movable became the absolute 
 owner from the moment when he took possession (excepting if the 
 movable were lost or stolen). 
 
 Thus was brought to a close, by means of a reaction the reason 
 of which we must not seek elsewhere than in the needs of business, 
 the evolution of our old law as far as movable property is con- 
 cerned. It broke with the Roman tradition, after having almost 
 completely accepted it, and to a certain extent returned to the 
 past, but in a very different spirit from that which had inspired 
 primitive legislation: witness the difference, which was unknown 
 formerly, between the possessor in good faith and the possessor in 
 bad faith. 
 
 the person to whom he mistakenly entrusted his movable; (6) movables can- 
 not be followed by a mortgage; (c) between two purchasers of the same 
 movable the one who first received deUvery in good faith is preferred: Civil 
 Code, 2279, 2102, 1813, 1141, 2119. 
 ^ Cf. Deghewiet, p. 149, etc. 
 
 304
 
 Topic 3] 
 
 OWXERSHIP OF LAXD 
 
 [§248 
 
 Topic 3. Ownership of Land 
 
 § 248. Real and Personal Rights. 
 § 249. Real and Personal Actions. 
 § 250. "Jus ad Rem." 
 § 251. Ownership of Land. 
 § 252. Restrictions on the Right of 
 OwTiership. 
 
 §§ 253, 254. Freedom to Enclose. 
 
 § 255. Limited OwTiership. 
 
 § 256. Joint Ownership with Joint 
 
 Possession. 
 § 257. The Community. 
 § 258. Incorporeal Property. 
 
 § 248. Real and Personal Rights. — It has been asked if the 
 distinction between real and personal rights ^ did not remain un- 
 known to the Germanic law. It is true that this distinction 
 scarcely appears if one goes back to the primitive period where 
 every attack upon the rights of another was settled by private 
 vengeance or an action "ex delicto." - But when this phase had 
 been passed through, the classical contrast between real and per- 
 sonal rights was disclosed in the Germanic law itself. It did not 
 entirely coincide with the Roman classification, for the class of 
 real rights encroached upon that of personal rights; ^ at the same 
 time, it is permissible to bring the two legal systems on this point 
 together, and they tended more and more to resemble each other; 
 
 ^ The expression Real Rights as contrasted with the term Personal Rights, 
 rights of claim or obligation, is derived from the Roman terminology relative 
 to procedure; actions of which the "intentio" of the formula did not designate 
 the defendant were called actions "in rem"; those in which this designation 
 occurred were called actions "in personam." This peculiarity, as often hap- 
 pens, was fundamental; that is why it could serve as a basis for the separation 
 of private rights into two classes: real rights and personal rights. Already 
 the jurisconsults made use of the expression "personalis actio" (for example, 
 Dig., 50, 16, 178, 2); in the Middle Ages, as the antithesis of this, the term 
 "realis actio" was used; from applying to actions these expressions came to 
 be applied to the rights themselves. The expression "realis actio" is found in 
 Tancred, "Ord. Jud.," 2, 13, and not in Pillius. Neither the "Petrus" nor the 
 " Brachylogus " uses it. "Jura realia, personalia": "Glose," "Utendi," on 
 § 2, " Inst, de Act.," 4, 6. As to the conception of the "jus in re," cf. details in 
 Landsberg, "Gl. d. Accursius," p. 81 et seq. 
 
 ^ The complainant complains of an "invasio" or "usurpatio" of the land 
 which has taken place, " injuste," " malo ordine " (" Landraub" among the people 
 of the North): Brunner, II, 684, 512; "Summa Norm.," "C. de Querelis." 
 
 ^ The Roman jurisconsults had adhered to the simple idea of the "domi- 
 nium" completed by a. small number of servitudes, and restricted as an excep- 
 tion by the usufruct. In the Middle Ages, on the other hand, ownership is 
 divided, real rights become multiplied; one can be an owner as lord, as vassal, 
 as copyholder; one can be owner during one's life or by right of inheritance; 
 one can be owner in the quality of a jiledge creditor, or by right of guardian- 
 ship. Ownership under these various forms is similar to the usufruct and the 
 real rights. — Dclbruclc has even maintained, " Uebern. fremd. Schuld.," that 
 rights of claim were considered as things and constituted objects of ownership. 
 See the refutation of this opinion in Heusler, § 75. 
 
 305
 
 § 248] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 in France, especially, the Roman doctrine easily passed into the 
 books and into practice. 
 
 § 249. Real ^ and Personal Actions.^ — The distinction of rights 
 is manifested in procedure by the contrast between real actions 
 and personal actions, and this latter is already manifested in the 
 Barbarian laws, especially in the Lombard laws, in spite of the 
 penal character which the actions which were admissible at this 
 period had still preserved in many respects. Some use the typical 
 formula: "malo ordine possides";^ in others the taking of an 
 oath is demanded, "dare debes," being based upon a contract or 
 an offense, "vadia dedisti de solvendo mihi decem solidos," "occi- 
 disti servum meum," etc. In the first case the defendant must 
 establish his right over the thing which he detains ("terra propria 
 mea est per successionem patris mei"); in the second case it is 
 sufficient for him to deny the debt and to swear that it has no 
 existence.* It is difficult not to see in these two classes of actions 
 
 ' CJ. especially as to the Frankish period; Brunner, § 119 (bibl.); Hiihner, 
 "Immobiliarprocess," 1895 ("Unters." by Gierke), Laband, Planck, Heusler, 
 op. cit.; Pertile, IV, p. 259. 
 
 2 Our old authors, from the thirteenth century on, admit of a third class of 
 actions, mixed actions, on the subject of which their ideas are often in confusion : 
 "Gr. Cout.," p. 546 (both a personal action and an action on the mortgage 
 for the payment of a rent). 
 
 ^ Procedure on the reclaiming of Immovables during the barbarian period. 
 See details in Hiibner, op. cit., and Brunner, § 119. — The actions arising: 
 1st, by "mannitio" or "bannitio"; 2d, or by an undertaking to appear in 
 court ("adramire") {cf. "vadimonium" at Rome); 3d, or by the "Anefang," 
 a formal seizure of the thing, just as in the case of movables: " Dec. Child.," 3. 
 If necessary, "visio terras," in order to settle upon the object of the litiga- 
 tion {cf. Anglo-Norman Custom); Brunner, "Entst. d. Schwurg.," p. 173. — 
 The defendant may oppose his adversary: 1st, by relying on some kind of an 
 original acquirement, such as the "aprisio"; 2d, by referring to his grantor; 
 the recourse to the warrantor and the part played by the latter are to be ac- 
 counted for by the penal character which this action at first had; 3d, by sajang 
 that the land came to him from his relatives by way of an inheritance; in which 
 case proof by witnesses on the part of the plaintiff is excluded: "Sal. Extrav.," 
 c. 7 and 8; "Rib.," 67, 5. — The defendant who is found guilty should restore 
 the land and pay a composition ("legis beneficium"); if the latter is not paid, 
 for example, for reasons of an equitable nature, the restitution takes place 
 "sana manu." — Cf. the curious procedure described in the Law of the Ala- 
 mans, 12, 8, apropos of a lawsuit between two families. Cf. " L. Bai.," 16 and 11. 
 
 * (A) Action "malo ordine possides." This formula, which betrays the 
 delictual character that the action originally had, is interpreted in "Expos.," 
 § 2 e< seq.; " Liut.," 90. The school of Pavia introduced alongside of it a more 
 modern Roman form: instead of "Petre, te appellat Martinus, quod malo 
 ordine possides terram," they say: "P. te appellat M. quod terram, quam 
 tenes, sua propria est" ("s. Roth.," 227). — Cf. the canonists, such as, Tancred, 
 etc.; Heusler, § 78; Hiibner, p. 48; "Roth." ("Lib. Pap."), 216, 222, 227, 
 228, 231, 234; Rozihre, "Form.," no. 427 ("Cart, sen.," 27), 480, 481; "Liut.," 
 18, 77. Is this action given against the depositary or the borrower of a mova- 
 ble? Cf. post, "System of Movable Property": "Liut.," 130, 86; Rozicre, 
 463 (restitution of the price, the object having disappeared). — (B) Action 
 
 306
 
 Topic 3] OWNERSHIP OF LAXD [§ 250 
 
 the precedent for the "Klagen auf Gut" and "um Schuld" of the 
 German Customs of the thirteenth century.^ In France the dis- 
 tinction was reclothed at a very early period with Roman forms 
 and lost all its originality.- The real action, the " causa proprie- 
 tatis" or suit for real yroyerty, has its own particular procedure; ^ 
 it can be begun at any time; ownership is not lost by non-use, thus 
 differing from real rights.^ It assumes that the owner gives proof 
 of his right; for this he will ordinarily invoke prescription; if he 
 does not do this he will produce a title, and the latter, at least, if 
 it is previous to the possession, will permit him to prevail over the 
 possessor, for although he does not establish an absolute proof, this 
 is a very strong presumption in his favor. ^ 
 
 § 250. "Jus ad Rem." ^ — There was, moreover, an attempt in 
 the doctrine, which was almost without any result, to get away 
 from these ideas by admitting the third species of rights, the 
 
 "dare debes." — "Roth.," 362, 382; "Liut.," 8, etc. — Controversy as to the 
 action by the buyer against the seller for delivery of the object sold: Roziere, 
 nos. 477, 472. Heusler, § 78, points out that the school of Pavia Romanizes 
 these distinctions: cf. "Form. s. Roth.," 227. See also the canonists, for 
 example, Tancred, etc. 
 
 ^ "Richtsteig Landrechts" (ed. Homeyer, 1857), c. 5, adds to it the "Klage 
 um Anevang"; "Sachsensp.," I, 70; II, 3 and III, 79. Various theories as 
 to the exact nature of these actions: Delbriich, "Dingl., Klag," 1857; Planck, 
 "Gerichtsverfahren," 1878; Laband, "Vermog. Klagen," 1869 (every action 
 by which one claims something other than money is a "Klage auf Gut"): 
 Planck, "Deutsch. Gerichtsverfahr.," 1879, I, 339 ("Klage um Schuld": 
 every action which has for its object a prestation on the part of the defendant, 
 for example, the action for delivery of the thing sold, which Laband looks 
 upon as a "Klage auf Gut"). Heusler, § 78, likens the "Klage auf Gut" to 
 the real action and the "Klage um Schuld" to the personal action. 
 
 2 Cf. especially Beaumanoir, c. 6 ("Des Demandes"), 32: "personal claims 
 . . . concern the person (contracts, torts); real claims when one claims an 
 inheritance; mixed claims . . . begin by being personal and then become 
 real (action for delivery of the thing sold)." In the first case the tribunal of 
 the domicile of the defendant has jurisdiction; in the second and third cases 
 the lord from whom the inheritance is held has jurisdiction. Day of taking 
 counsel and day of view in the case of claims for inheritances : P. de Fontaines, 
 13; "Jostice," p. 97; "Gr. Gout, de Fr.," pp. 202, 351, 404, 459, 515; "Stil. 
 Parlam.," passim, "Const, du Chat.," 20,21; Boutaric, I, 27. The "Summa 
 Norm.," c. 66, "de querelis" still takes the early point of view. Cf. Tardif, 
 p. clvi; cf. Bracton, III, 3; "Flcta," I, 2, 4, 5, 9; "Brachylogus," 4, 19; "na- 
 scitur omnis actio ex obligatione vel rei detcntione." 
 
 3 Pillius, I, 12; Tancred, II, 13; G. Durand, "Specul.," II, 1 and 4, 2; 
 "Stilus Pari.," c. 17; "Gr. Cout. de Fr.," pp. 350, 493, 532; Boutaric, I, 22; 
 Masuer, 10; Tardif, "Proc6d. au XIIP siecle," p. 36; Ferrihre, see "Action 
 Rdelle"; Pothier, IX, 199, ed. Bug. 
 
 * Peleus, "Quest. Illustres," 8; Pothier, no. 276. — Cf. as to the Com- 
 mentators: Landsberg, § 9, 19. — As to the early law, cf. post, "Tenure of a 
 Year and a Day." 
 
 * Pothier, 323. As to the literature previous to this.c/. Landsberg, op. cit.; 
 E. Levy, "Thtee," 1896. 
 
 ^ Briinneck, "Ueb. d. Urspr. d. sog." "Jus ad Rem," 1869; Heusler, 
 § 77; Landsberg, p. 88. 
 
 307
 
 § 250] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 "jus ad rem," being halfway between the "jus in re" and the 
 "jus in personam." No traces of these are found in the Com- 
 mentary of Accuraus, but Jacques de Revigny (1296) gives a "jus 
 ad rem" to the vassal who has been given the investiture of a fief 
 by symbolical methods, and who has not been put into physical 
 possession of it.^ It is easy to recognize here the influence of 
 Roman ideas; they tended to make of the investiture simply a 
 binding act, and not an act of the transfer of a real right; it is the 
 Roman idea which alone could have had this efTect. Against the 
 lord the "jus ad rem" gave the right to demand being put into 
 possession; against third parties it had only a limited efficacious- 
 ness. In the French Customs of the fourteenth and fifteenth 
 centuries by "jus ad rem" is understood the usufruct, which is 
 contrasted with the "jus in re" or ownership; ^ in the eighteenth 
 century it is claims which are designated in this way.^ 
 
 § 251. Ownership of Land.^ — It is not for us here to go over 
 the history of the ownership of land and the various phases through 
 which it passed under the old system : ^ agrarian joint ownership, 
 family o\\Tiership, feudal ownership, before coming to the modern 
 form of individual ownership.® Let us simply recall the fact that, 
 
 1 Cited by Balde. According to the "L. Feud.," investiture resulted in 
 the acquiring of a real right, cf. II, 26, 15; 7, 1; 81; Baraterius, "L. Feud.," 
 App. 4, n. 3, considers investiture as a contract and only causes a real right 
 to be acquired by virtue of delivery. — Cf. in the common law the man chosen 
 for some service cannot exercise it until after he has been confirmed and 
 sanctioned: "in VI," 3, 7, 8. — With regard to the commentary "Agitur," on 
 the "1. 1 pr., D.," 19, 1, cf. Landsberg, p. 90. 
 
 2 "Gr. Cout. de Fr.," p. 195; Boutaric, I, 1. 
 
 3 Pothier, "Introd. aux Cout.," no. 108. 
 
 * Terminology: "proprietas," "dominium." "Dominium" and "domi- 
 nus" apply as well to the power of the lord as to ownership: "Gr.. Cout. de 
 Fr.,"p.232: " seigneur foncier." "Seiiorio" in the "SietePart." Theowner 
 of a movable is called "seigneur de la chose" by Britton I, 60. Thirteenth 
 century, Germany : "Eigenschaft," "Eigenthum" (1230); previously " eigen " 
 or "erbe" to designate the land as contrasted with the fief, "Lehn," Heusler, 
 § 86. Cf. as to the primitive conception of Germanic ownership: Champeaux, 
 "Gr. Encycl.," see "Propriete"; R. Caillemer, "Ex6cut. Testam.," pp. 275, 338. 
 
 ^ As to the contrast between the absolute character of the Roman "do- 
 minium" and the relative character of ownership in the Middle Ages nowhere 
 is this relativeness so strongly marked as in England, ^vdth its curious theory 
 of estates ("status"), rights or interests which one may have over a piece of 
 land which are more or less extensive and of longer or shorter duration, among 
 which figure alongside of the right of the freeholder that of the mere tenant 
 whose lease ceases "ad nutum." Estates already existed in the time of 
 Bradon; Littleton speaks of tenures in fee simple, in fee tail, for life, for a 
 term of years, at will, by copyhold, and by the rod. The emploj^ment of 
 clauses limiting the rights of the grantee (Statute "De Donis Conditionali- 
 bus," 1285) contributed no little to this splitting up of ownership. A clas- 
 sification of rights over the land came into existence which was connected 
 with status or the estate of persons: Pollock and Maitland, II, 10 and 76. 
 
 ^ As to the idea of ownership in the writings of the Glossators, cf. 
 
 308
 
 Topic 3] OWNERSHIP OF LAND [§ 252 
 
 if the Revolution has changed the tenant into the sole proprietor 
 of the ground, it only sanctioned an evolution begun a long time 
 since and already almost accomplished.^ Collective ownership 
 survived of its own accord in the town lands, the partition of 
 which the Convention ordered; from the early Middle Ages the 
 larger portion of the land in France belonged to individuals and 
 to families, and not to communities. The rights of the family 
 had been on the decrease. Finally, the domain ownership of the 
 lord tended more and more to become nothing but a servitude; 
 the tenant invested with the beneficial ownership was consid- 
 ered as the real owner.^ It is thus that Pothier looked upon it 
 in his Treatise on the Law of Ownership of Property, no. 3: 
 "that kind of ownership (immediate ownership) is not the own- 
 ership of property which is to be the subject of the present 
 treatise, and is the beneficial ownership; the man who has this 
 ownership is called the proprietor, the one who has the immediate 
 ownership is simply called the lord; it is the beneficial lord who is 
 really the owner of the inheritance." ^ 
 
 § 252. Restrictions on the Right of Ownership. — In spite of 
 the changes which had taken place, the owner was far from having 
 the free enjoyment of his land in 17S9. He cultivated it and 
 gathered the produce of it,^ but there still existed hampering 
 
 Landsberg, p. 92; Piccinelli, "Stud. int. all. Defin. Dominium est Jus Utendi," 
 etc., 1886. 
 
 1 "L'CEuvre Sociale de le R^vol.," 190. — Chenon, R. Beudant, Sagnac, 
 op. cit.; H. See, "Les Classes Rurales," 1901. 
 
 2 The Romans granted a "vindicatio utilis," for example, to the holder 
 of a long-term lease; the Glossators made a "dominium utile" correspond 
 with this action and contrasted it with the "dominium directum," which 
 belonged to the man who had the immediate action: Landsberg, p. 92 et seq. 
 (bibl., p. 97); Stobbe, § 80; Kraut, "Grundr.," 5th ed., § 74; Heuslcr, § 87; 
 Fertile, § 137; Vangerow, I, 302. The Gloss, on "L." 3, Dig., 41, 3, puts 
 the expression " dominium utile " in the mouth of Bulgarus, " Gout, de Milan " 
 (1216), 24, 30. 
 
 ^ Cf. already Bracton, fo. 46b, fo. 58: "Capitalis dominus" and "verus 
 dominus." Chaisemartin, p. 151. — If one wishes to get an idea of the evo- 
 lution which took place one has only to compare these citations with the "L. 
 Feud.," 2, 23: "proprietas penes dantem, usufructus ad accipientcm"; 1, 8, 
 2: "proprietas" and "possessio." — To which of these two did the issues 
 belong? "Gl." on "L." 1, c, 10, 15. Alluvium, islands, "L. Feud.," 1, 4, 
 6; "Aoste," 2, 11, 128. 
 
 ^ Acquirement of the Issues. The maxim, "he who sows reaps" was 
 already to be found in the old law. Thcsrefore the man who docs not own a 
 piece of land, but who has cultivated it, has a right to the issues which it 
 produces. With the exception of certain special applications ("Sachsonsp.," 
 2, 58, 2; 3, 76, 3) of this principle let us call to mind the acquirement of the 
 issues b}-^ the possessor in good faith: cj. Bcnumanoir, 20; 32, 30, "Heclaim- 
 ing" gcne^all}^ The issues were considered as being acquired by the mere 
 fact that work had been done: Ileusler, II, p. 195; Heiinbach, "L. d. Frucht," 
 
 309
 
 § 252] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 seigniorial rights, or, in their stead, pohce rules which were ves- 
 tiges of joint ownership rights, without taking into account the 
 rights of the family.^ The Rural Code of 1791 ^ made an innova- 
 tion by saying that each owner was free to gather his harvest by 
 any means and at any time he pleased; it thereby did away with 
 the fixing of the day of mowing or harvesting or gathering the 
 vintage, which allowed the lord to collect without difficulty rights 
 such as that to a portion of the produce, but which right gave 
 rise to abuses because the gathering of the harvest might be post- 
 poned in an arbitrary manner to the great detriment of the farmer. 
 
 § 253. Freedom to Enclose one's land, which was frequently 
 impeded by the rights of commons and common of pasture, was 
 proclaimed in 1791; the owner who made use of this power lost 
 his right to common of pasture in proportion to the amount of 
 land which he enclosed.^ With the other feudal rights was abol- 
 ished the seigniorial right of hunting, which even allowed the 
 lord to go upon enclosed lands.^ 
 
 § 254. The Same. — Enclosure assumes, ordinarily, a marking 
 of boundaries,*^ which is carried out either by a resort to the courts 
 or by friendly agreement.® Each neighbor can compel the other 
 to contribute; the marking of boundaries is done at the expense 
 of all ; ^ the boundary marks are ^ sometimes trees, such as quince 
 
 1843; Rossi, "Dir. d. Poss. s. Frutti," 1883. In this is found the protection 
 of the EngUsh holder at mil. As to the distinction made by the commentators 
 between the "usufructus formalis" and "causaUs," cf. Landsberg, p. 94. 
 Rights of the owner of a piece of land to the fruit which has fallen upon this 
 land from a tree belonging to his neighbor (Kraut, "Grundr.," 5th ed., § 77), 
 with branches overhanging his land: Chaisemartin, p. 166; A.-B. Schmidt, 
 "Recht d. Ueberhangs u. Uberfalls" ("Unters." by Gierke); Fournel, " Voisin- 
 age," see " Arbres" (4th ed.); Masuer, X, 6 (keeping by the possessor in good 
 faith before the "Ord. de Moulins," 2). 
 
 1 Fertile, § 141 and § 145; Stobbe, § 83 et seq. 
 
 2 Dec, Sept. 28 and Oct. 6, 1791. Many of these provisions were found 
 to be in opposition to the Civil Code, and a draft of a Rural Code was pre- 
 pared in 1808 and laid aside in 1814; it has not yet been entirely finished. 
 
 ' The right of common, already abolished in some provinces under the 
 Old Regime, was only done away with by the Law of July 9, 1889: Viollet, 
 p. 560. As to the connection between these rights and the system of culti- 
 vation by rotation of crops, cf. Haussen, "Z. f. ges. Staatsw.," 1865-68, 1876 
 ("Z. Gesch. d. Feldsyst. in D."); Heusler, § 88. 
 
 * Prohibition of making enclosures within the territory of the "plaisirs" 
 or lands reserved for the king's hunting. 
 
 5 "L. Alam.," 87; "Bai " 12, 8; Loysel, 255, 290; Fournel, "Voisinage," 
 see "Bornes," "Clotures ; Ragueau, see "Bornes," " Cerquemanage " ; 
 Ferriere, see "Action en Bomage." 
 
 6 Beaumanoir, 30, 27, 28; "Et. de St. Louis," I, 138; Boutaric, p. 211, 
 268, 366, 775. 
 
 ' Pothier, IV, 328, sees therein a quasi contract like joint possession. 
 8 Dm Cange, see "Cruces," " Terminales " ; "Liber Termin." (fourteenth 
 century); de Ribbe, "Soc. Proven?., " p. 185. 
 
 310
 
 Topic 3] OWNERSHIP OF L.^^D [§ 256 
 
 trees, sometimes, and more often, unhewn stones near which there 
 are placed fragments of a tile {guarantors or witnesses attest that 
 the stone is not placed there by chance), or else broken glass 
 and other indestructible objects.^ 
 
 § 255. Limited Ownership. — Limitations based on agreement 
 which affected the rights of the owner had in them nothing con- 
 trary to the spirit of a legislation which carried with it so many 
 restrictions. Also, it is not a rare thing to find in conveyances, 
 sales, gifts, or wills, clauses which only give a conditional or part 
 ownership to the grantee: the land cannot be alienated by him; it 
 is stipulated that it shall return to the former owner or his heirs 
 under certain conditions, or the grant may be cancelled by the 
 effect of an accidental circumstance or the will of the parties. 
 The establishment of appanages may be cited as an example; the 
 possessions of the prince who has had the appanage granted to 
 him return to the crown if he dies without heirs of his body. The 
 English law, with its theory of the "forma doni,"^ its Statute "De 
 Donis Conditionalibus " in 1285, increased the number of these 
 restrictions (reversion, remainder, etc.).^ Thus it had departed 
 from the normal type of Roman ownership, unlimited "domin- 
 ium." In France, jurisprudence, on the other hand, seems to have 
 tended to approach this type by decreasing the number of these 
 restrictive clauses,* for reasons of public expediency.^ 
 
 § 256. Joint Ownership with Joint Possession ^ is frequently 
 met w^ith in the old law; ^ the most common case is that of party 
 
 1 As to "agrimensores," cf. Giraud, "Hist, du Dr. Fr.," I, 256; Tissot, 
 "These," 1879; Girard, "Dr. Rom.," p. 625; Brugi, "Agrimens," 1897; 
 Glasson, "Gr. Encycl.," see "Bornage"; Denisart, see "Arpenteurs." 
 
 2 Bracton, f. 17b. Cf. the sneer, "agreements overcome the law," Beau- 
 manoir, 34, 2; P. de Fontaines, 15, 6; Loysel, 3, 1, 1. But as to "donationes 
 post obitum" during the Frankish period cf. Hiibner," Vnters." by Gierke, 
 vol. 26. 
 
 ^ "Reverti," "redire," "remanere": expressions which are found in old 
 deeds. For example, the will of Raymond de Toulouse in 960 {D. Vaissette, 
 V, 241), etc. See Pollock and Maitland, II, p. 14 et scq.; Blackstone, II, 10. 
 
 * Masuer, XI, 57, lays down the principle that ownership may be trans- 
 ferred after a term or upon condition (contrary to the Roman law). Sub- 
 stitution, revocation of gifts. 
 
 * The English jurisconsult Coke complains of the disadvantages which 
 conditional ownership presents. 
 
 8 Example of joint ownership without joint possession in the lease for pos- 
 session at will, the lessee or tenant being owner of edifices and superfices 
 (buildings and growing crops, works of improvement such as ditches and 
 banks, etc.), excepting that the lessor has a right to pay him back their value 
 when dismissing him, and excepting that the tenant has a right to give up the 
 lease ("exponse," that is to say, giving ui) of possession), cf. the Law of Feb. 8, 
 1897. — Houses: joint ownership by floors: Huber, IV, 695. 
 
 7 Planiol, "Traitc de Dr. Civ.," I, 439, cites the Law of Aug. 28, 1792, 
 
 311
 
 § 256] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 ownership of walls and fences.^ The Roman law knew nothing 
 of the party wall; it was customary to isolate houses from one 
 another; they constituted islands, as is still said in the South. In 
 countries of Customary law, on the contrary, the opposite custom 
 became established, at least, from the early part of the feudal 
 period, and the social and economic conditions brought about a 
 consideration of the party wall as collective property.^ 
 
 § 257. The Community^ was frequent in the Middle Ages. Does 
 it correspond to joint possession ("communio") as understood 
 by the Romans, or must it be classified among Associations? 
 {cf. Roman " universitas," " Genossenschaf t " of the German 
 law). The latter will be discussed when we come to deal with 
 legal persons. As we look at it, this joint possession consti- 
 tutes a sort of transition between these two legal types. 
 The "Genossenschaft," modeled, as it seems, after the family, is, 
 like the latter, a legal person; it loses its cohesion and lessens 
 by degrees under the form of the community or " Gemeinschaft 
 zu gesammter Hand"; finally, in the last phase, it is reduced to 
 the " communio," or joint possession, in order to allow more scope 
 to the independence of its members; joint possession itself only 
 appears as a provisional state, from which society as well as the in- 
 dividual has every interest in emerging.^ 
 
 The bond which unites the members of a community is closer 
 than that which exists between the ordinary joint owners. Also, 
 
 Art. 10, which changes into joint ownership the right of pasturage of the in- 
 habitants of the different departments in Brittany; useless and unoccupied 
 lands have become jointly possessed by all those who were then in possession 
 of the right of common. 
 
 1 "Mitoyen," "moitoien," same source as "moitie"; cf. "metairie," 
 "metayer," Godefroy, see "Diet.," Loysel, 283 et seq.; Huber, IV, 697. As to 
 the relations of neighbors in general, cf. ibid., p. 728 et seq.; Chaisemartin, 
 p. 163; Loysel, loc. cit.; Fournel, "Tr. du Voisinage," 4th ed., 1834; Beau- 
 manoir, 24, 22. 
 
 2 "Paris," 195, 214; Pothier, "Comm.," nos. 199-229. 
 
 3 "Gesamteigenthum," "condominium in solidum," as contrasted with 
 "Miteigenthum," joint possession. First mention of it in Justus Veraciiis, 
 "Libellus Consuet. Bamberg.," 1681 (cited by Kraut, "Grundr.," p. 101). 
 Controversy as to this form of ownership: Duncker, "Gesammt.," 1843; 
 Stobbe,^Sl; "Z. R. G.," IV, 218; Heusler, § 50; Gierke, "Deutsches Privatr.," 
 § 80; Huber, 698; Fertile, § 137. Cf. in English law joint tenancy, tenancy 
 in common, Blackstone, II, 12; Pollock and Maitland, II, p. 20. — The expres- 
 sion "communis manus" is to be accounted for by the necessity under which 
 the members of the community found themselves of co-operating in acts 
 which affected the thing owned in common; for example, in order to render 
 homage to the lord for a fief held from him, they all put their hands together 
 into that of the lord. — As to cases of community, cf. Heusler, § 52; Wip- 
 ■permann, "Kl. Schr. Ueb. Ganerbschaften," 1873. 
 
 * Chaisemartin, p. 566; Brillon, see "Commune"; FrSminville, "Com- 
 munaut6 d'Habitants," I, 3 (consorts); See, "Classes Rur.," p. 490. 
 
 312
 
 Topic S] OWNERSHIP OF LAND [§ 257 
 
 no member of the community can dispose of his share in the 
 community without the other members being wilhng. All the 
 more should they all co-operate in acts of disposal bearing on 
 the joint possession. The administration is confided by force of 
 circumstances to one of them, to the one whom custom desig- 
 nates, for example, the elder brother, in communities whose mem- 
 bers are brothers. Each one of the members of the community 
 participates according to his needs, and according to the number 
 of the members of his family, in the products of the common land ; 
 Hfe in a community carries with it this consequence, which still 
 exists, even when this life has been abandoned: in case one of the 
 members of a community dies without children, the others get 
 his share by way of increase. If the community is dissolved, the 
 partition which breaks up the community takes place according 
 to the usage of the local custom.^ 
 
 ' Curious local variations. At Salies-de-Bearn, rights of the members 
 of the "Vesiau" to the salt spring; regulations (1525, 1.536), in order to do 
 away with abuses of power (widows and orphans and the feeble were de- 
 prived of their share of the salt water); final regulations in 1587 (still in 
 force): the enjoyment of the participants is fixed by tliis regulation; the 
 fountain is an inalienable possession and the participants are compelled to live 
 in joint possession; how could they divide it, indeed? It is never possible 
 to know exactly who are the participants; those who cease to reside at Saliea 
 lose the exercise of their rights, but they keep the right to enjoy them; at 
 whatever time they may return they may exercise this right again. If one 
 of them dies without an heir his right reverts back to the community. There 
 is not equality between descendants: the right regarding the salt water 
 forms a special kind of inheritance which has its own rules; preference for 
 the eldest or head of the house (the heads of the house were the first to have 
 their share of the salt water); lessees and younger sons ("sterles") come 
 after them; preference for males, for the younger daughter only has a semi- 
 right as well as the widow; privilege of married sons over those who are not 
 married (from this there arise fictitious marriages, young people, 18 years 
 old, marry nonogenarians, to whom they promise, for example, 20 francs as a 
 marriage portion and a rent of 2 sous' worth of tobacco a day) ; condition 
 of residence (he who has not a fire lighted at Salies and does not keep his 
 family there has no right to the salt water). It was thought that in this 
 there was an ownership by the commune of Salies, but this is not so at all; 
 the inhabitants of Salies have not all a right to the fountain; the corporation 
 of those having this right is distinguished from the commune (" Arr. du Cons." 
 of the king of Dec. 12, 1739); the latter represents the multitude of near 
 neighbors and strangers who have come to join themselves to the former, 
 but who have not succeeded in acquiring a part in this jointly owned prop- 
 erty: Lombard, "La Coutume de Salics-de-Hearn," "These," 1900. — Cf. 
 the Swiss "Allmends" and the distinctions between citizens and inhabitants. 
 — In the Valley of Vicdessos (Ariege) the ownership of the iron mines of 
 Ran(;i6 belonged to all the inhabitants of the valley, or, at least, they had the 
 right to extract a certain quantity of mineral every day, "Recueil des Titres, 
 etc.. Concern, les Mines de Rancid," by R. Barbe, Toulouse, 1865. In the 
 North of France under the name of "portions mcnageres " and "communalcs," 
 the heads of families are given shares in the use of the marshes; at the death 
 of one of them his share returns to th(> conununity, which confers it upon tlio 
 oldest head of the family who has not had a share given him. ("L. Pat." of 
 
 313
 
 § 258] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 § 258. Incorporeal Property. — Titles of nobility and patro- 
 nymic names are connected with the formation of the family and 
 of the feudal system.^ — Literary, artistic and industrial property 
 is brought under the form of a monopoly resulting from a royal 
 grant: it is the discovery of printing, that is to say, the ability to 
 reproduce a manuscript, which raised the question of the rights 
 of an author; the publisher received a privilege from the king {let- 
 ters from the Chancery reproduced at the head or the end of the old 
 editions) authorizing him, to the exclusion of all others, to have the 
 book printed during a certain time. The Constituent Assembly 
 made a right of that which up to that time had been only a privi- 
 lege; the Law of the 3d of January, 1791, gave dramatic authors 
 the exclusive right of reproducing their works during their life, 
 and to their heirs this same right during five years after their 
 death; the Law of July 19, 1793, extended this right of the heirs 
 to ten years and generalized the provisions of the preceding law 
 (literary works, musical compositions, pictures, drawings).^ 
 
 1777); Passez, "Les Portions M^nageres et Communales en France et k 
 I'Etranger," 1882. As to Spain, cf. Wentworlh Webster, article cited in "La 
 Couvade," "R. des Pyrenees," 1900. 
 
 1 "R. h. Dr.," IX, 381; Stobbe, § 157-163. 
 
 2 D., Feb. 5, 1810 (right of the widow); Law of July 14, 1866; Delalande, 
 "Et. s. la Propr. Litt. et Art.," 1880. 
 
 314
 
 Topic 4] 
 
 POSSESSION 
 
 [§259 
 
 Topic 4 Possession 
 
 § 259. General Remarks. 
 
 § 260. Canon Law. 
 
 §§ 261, 262. Origin of the " Remedium 
 Spolii." 
 
 § 263. Franldsh Period. 
 
 § 264. Feudal Period. 
 
 § 265. The Seisin. 
 
 § 266. The Seisin is Acquired. 
 
 § 267. Seisin under Law. 
 
 § 268. Yearly Possession. 
 
 § 269. Possessory Actions. Anglo- 
 Norman Law. 
 
 §270. Assize of "Mort D'Ancestor" 
 and Writs of Entry. 
 
 §271. The raising of the Hue and Crv 
 ("Haro"). 
 
 § 272. Possessory Actions in the 
 French Customary Law. 
 
 § 273. Beaumanoir. 
 
 I 274. Fourteenth and Fifteenth Cen- 
 turies. 
 
 § 275. The Complaint in Cases of 
 Seisin and Trespass. 
 
 §§ 276, 277. The Procedure of the 
 Complaint. 
 
 § 278. Action of Simple Seisin. 
 
 § 279. The Declaration of Recent 
 Work. 
 
 § 259. General Remarks.^ — The terms which serve to dis- 
 tinguish possession in the old French and German law are "ves- 
 titura," "saisine," "gewere."^ They originally signified putting 
 
 1 There are most contradictory theories on this matter, a fact which is to 
 be accounted for by the lack of precision in the texts and the mingling of 
 Roman, Germanic, etc., elements. For some the idea of ownership is un- 
 known to the old Germanic law, where possession must have been everything; 
 for others it is just the reverse. For lack of space we must give up the idea 
 of setting forth a critical exposition of the principal ideas that have come to 
 light. Two especially have been very popular, — that of Albrecht (revived 
 by Klimrath) and the more recent one whose principal supporters are Laband 
 and Heusler: Fertile, § 134 ad finem (sketch). Cf. writings of Huber and 
 Champeaux. — Albrecht defines the "Gewere" as the right to a real action, a 
 right which on principle belongs to the man in possession. Without posses- 
 sion, no real action. The "Gewere" depends at one and the same time upon 
 possession and upon ownership, and then becomes the common note of the law 
 on this matter. Gerber ("Deutsch. Privatr.," § 72) and Schulte adhere more 
 or less closely to this notion, which prevailed for a long time in science, and 
 which in our opinion caused a great deal of confusion therein. — Laband and 
 Heusler are, on the other hand, partisans of the more correct idea that the 
 German "Gewere" and French seisin are nothing else but possession, although 
 there are important differences between them and Roman possession. As far 
 as we are concerned, it seems to us that these differences, which are of second- 
 ary importance, have often been exaggerated; to look upon it as a whole, 
 the evolution of the possessory action in our old law seems to us like a rebe- 
 ginning of the history of possession at Rome. — Cf. the synonymj^ of the 
 words "possession" and "saisine," for example, "T. A. C, Norm.," 74; 83, 7, 
 etc. — Current expression: "etre en possession et saisine." 
 
 2 "Vestitura," "investitura," "vestire." CJ. "manus vestitia" (glove 
 and its symbolic use) : "Bai.," 17, 2; "Capitul.," see Table; "Cap.," 873, c. 8: 
 things belonging to the Church, to the Treasurer, "in vestitura eeclesia;," 
 "fisci." Vesting and divesting, pout, "Transfer of Ownershij)." During the 
 feudal period investiture only means transfer of the fief to the vassal. — 
 "Saisina," "sacire," "sasjan (Goth.). CJ. "setzen," "Besitz," possession: 
 Diez, see "Sagire"; Brunner, "Rom. u. G. Hrk.," p. 242; Warnkoen., II, 295; 
 La Ferriere, VI, 386. Italian sources, Pcrtile, IV, 171. "Saisimentum," 
 "saisie." Beaumanoir uses seisin in the sense of distraint. Post, "Disseisin 
 
 315
 
 § 259] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 into possession, physical delivery (and later symbolical delivery, 
 investiture).^ They have been extended to mean the situation of 
 the man who has received a thing, the fact of having a thing at 
 one's disposal, a possession in general,^ The owner, the possessor 
 on his own account, but without the right of ownership (like the 
 vendee "a non domino"), the simple withholder " alieno nomine " 
 (like a tenant, or a depositary), these are persons whose rights 
 are very diverse, and who can all have the thing at their disposal. 
 These persons always have some advantages of position; one is 
 that they are not liable to be deprived without a judgment, or, at 
 least, due form of law.^ But sometimes they enjoy other advan- 
 tages: (a) a better position in a suit regarding the ownership,^ pre- 
 sumption of ownership; ^ (b) special actions or possessory actions, 
 as compared with the action for real property ; ^ (c) a progression 
 towards the acquisition of the ownership. How does it happen 
 that such effects are attributed to seisin, that is to say, to a mere 
 fact? What is the basis of the protection afforded by possession, 
 according to the expression of Ihering? This question has been 
 answered by various theories, each of which contains a part of the 
 truth. 1st. To disturb the possessor is an attack on public order, 
 an offense which public authority was compelled to restrain as 
 soon as it was strong enough to prevent individuals from taking 
 
 Seisin." The copyholder is given seisin and pays for it a toll to the lord, 
 also called "saisine": Beaumanoir, 27, 6; see Ragueau. — "Gewere," from 
 "vairan" (Goth.), to guarantee ("warantus"), or from "varjan," "vestire," 
 "prohibere." — The terms "possidere," "possessio," "tenere" did not cease 
 to be made use of. They ended by prevailing in Italy and Spain, where they 
 say "tenute," "tenencia": "Siete Part.," 3, 2, 30, in opposition to "sefiorio 
 dominium." Example in Fertile, loc. cit. — "Possessio" in the sense of land 
 in the Capitularies: 807, c. 2; "L. Longob. Car. M.," 27. Formulae: "quicquid 
 tenere et possidere videor"; J. d'Ibelin, c. 152: seisin or tenure. 
 
 1 This is the normal meaning: Du Cange, see Sesire; Dronke, "Tradit. 
 Fuldenses," I, 91, 92; of. "Cap.," 819, 6; Sickel, "Reg. Karol.," no. 335; 
 Magna Charta, 1215, c. 9. 
 
 * Beaumanoir, II, p. 423, ed. Beugnot; Thevenin, "Textes," no. 125 (cf. 
 Index): "vestiti legaliter" ("quieto ordine," without being disturbed); 
 "L. Feud.," 2, 2. 
 
 3 "Liut.," 148; "Bai.," 16, 1; "Burg.," 19, 2; "Rib.," 59, 8; "Cap.," 
 819, 9; "Cap. Pip.," 789, 14 (fine); Wido, 5 (loss of the right); Ber- 
 taldo, "Splendor Consuet. Venet.," 88. Cf. Commentary on "Roth.," 
 348. 
 
 * J. d'Ibelin, c. 64 ("Ass. de J^rus.," I, p. 106). As to the joys of posses- 
 sion ("beati possidentes") and the enumerations of the old authors, cf. 
 Savigny, op. cit. 
 
 5 ""Bai.," 16, 1; "Burg.," 19, 2; "Liut.," 148; "L. Feud.," 1, 4, 1; "Stat. 
 Milan," 1396, 10; Voghera (twelfth century), 91; /. d'Ibelin, c. 67. 
 
 ® In Italy the distinction between the possessory action and the action for 
 real property appeared at a very early time: "Form. Roth.," 228; " Ariprand 
 and Albert," II, 52. Customs of the twelfth and thirteenth centuries. 
 
 316
 
 Tone 4] POSSESSION [§ 2G0 
 
 justice into their own hands.^ 2d. Possession is an advanced stage 
 of ownership; if it were not protected, it would be difficult to main- 
 tain ownership. The first of these theories seems to correspond with 
 the origin of the protection of possession; the second one assumes 
 it to have arrived at a more advanced stage of its development. 
 At least, this rough outline is suggested by the study of the history 
 of possessory actions in the old French law. Created with the 
 object of repression, they were not long in taking on a new char- 
 acter, and in becoming transformed into real actions, substitutes 
 for the petitory actions. It is at this time especially that the 
 possessory action had a vital importance, not only in private 
 law, but even in public law : ^ " possession is worth a great deal in 
 France," says Loysel, "at least, as long as there is a right of owner- 
 ship mingled with it" (740). 
 
 § 260. Canon Law.^ — As far as possession is concerned, the 
 canon legislation departed from the Roman law on two principal 
 points: in that which concerns quasi-possession, and in that 
 which concerns prevention of spoliation. In the hands of the 
 canonists quasi-possession, which was allowed with fear at Rome 
 for a few rights, is extended almost indefinitely; every spiritual 
 and temporal right relative to persons or property is susceptible 
 of possession; ^ by this means the jurisdiction of the classical 
 tribunals is increased and the absolute moral authority of the 
 Church is declared. From the time of the Lower Empire special 
 measures have to be taken for the repression of violence; the 
 owner who by force takes possession of his property which is 
 withheld by a third party, and thus takes justice into his 
 own hands, is compelled to restore it; he loses his right of owner- 
 ship by way of penalty.^ Some of the celebrated interpreters of 
 
 ' Beaumanoir takes up the subject of novel disseisin after having dealt 
 with misdemeanors and larcenies, after which he passes on to cheating (c. 32). 
 Blackstone also places dispossession arr.ong torts. Loysel, 753. Davot tells us 
 that in his time (1677-1743) the fine was not made use of; they were satisfied 
 with condemning a man to pay damages. 
 
 2 For example, competence of the Courts of the Church. 
 
 ^ Manuals of the canon law. On the doctrines of the Romanists, cf. Du- 
 qxtesne, "These," 1898, p. 40; Bruns, "R. d. Bes.," p. 103 et seq. Notes on the 
 "Siete Part.," Table, see "Possessio" (bibl.). 
 
 * Cf. post, "Plurality of Seisins." Offices, ecclesiastical dignities, tithes, 
 etc.: "Or. Cout.," p. 237 (justice); 255 (incorporeal things); 495 (franchises) 
 et seq. — Possession of status: "Possessio, Conjugis ex Causa Matrimonii," 
 Dig. X, 13, 8 and 10; Bruns, "Besitz," p. 240; Duncker, "Quasi-Bcsitz," "Zfd. 
 R.," 2, 2, 28; Rufini, "Actio Spolii," p. 253, 408. — Vain protestations of 
 the Romanists; "Close" on "L.," 9, Dig., 5, 3. CJ. Civil Code, 1240. 
 
 s Law of Valentinian III; "Cod. Th^;od.," 9, 10, 3; 4, 20, 3; "Cod. Just.," 
 "de vi," 8, 4, 7; "L. Rom. Wisig.," p. 131, ed. Haenel; Ruffuii, "Actio Spolii," 
 
 317
 
 § 2G0] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 the Roman law have even thought that there must have been 
 created an action "momentarice possessionis " ^ in order better to 
 assure the protection of possession. The disorders for which a 
 remedy had to be found from the time of the Lower Empire only 
 increased in the ^Middle Ages, and the Church sought to fight 
 against them by the "remedium spolii," a prototype of the pos- 
 sessory action designed by the secular law {recovery of possession). 
 § 261. Origin of the "Remedium Spolii." — The effects of this 
 institution could be summed up in the maxim "spoliatus ante 
 omnia restituendus." ^ Originally it appeared as a simple incident 
 to criminal procedure, a plea in bar: the bishop who was de- 
 prived of his see, and who found himself under the weight of a 
 criminal accusation, could escape from any judgment before being 
 reinstated; it was the duty of the judge to carry out the reinstate- 
 ment even officially.^ Thus the " exceptio spolii " was found to be 
 created; at least, it was based upon this and rapidly generalized 
 and applied to the laity as well as the clergy, to civil proceedings 
 as well as criminal procedings.^ From a simple form of procedure 
 relating to ecclesiastical discipline it passed to the rank of a rem- 
 edy at common law. The practice of the tribunals of the Church 
 took a step in advance ^ at a very early period ; the man who had 
 
 p. 33 to 53 (and on the Byzantine law, p. 75-112). That this rule was not for- 
 gotten may be inferred from the mention of it contained in the Epitomes of 
 the "Breviary" of Alaric, in the "Brachylogus," 2, 11, in the "Petrus," 3, 
 
 II. — The Barbarian law was limited to imposing a fine upon the "invasor," 
 which does not seem to have been sufficient : " Liut.," 148; " Bai.," 16; "Burg.," 
 19; "Cap.," 819, 9; 789, 14; Gloss, on "Roth.," 348. Cf. "Const. Sic," I, 
 29 (Frederick II). Curious question in the "Liber Consuetud.," of Milan, I, 6. 
 
 1 Ruffini, p. 53. 
 
 2 "False Decretals," "Epist. Eusebii," 2^, § 12 (Hinschms, p. 237). Cf. 
 Hinschius, pp. 165, 214, 694, 731. — Reproduced by Gratian, c. 1 to 4, C, 
 
 III, qu. 1. — Sources: (a) "Epit. Aegid., Paul," I, 7 (restitution in "integrum" 
 for fraud or mistake) ; " Concile de Lampsaque, ' ' 364 ; " de Rome, " 50 1 . — Later 
 texts: Dig. X, 2, 13; "in VI," 2, 5. — Commentators: Tancrede, "P.," 2, vol. 
 9; Hostiensis, 1, 2, r. "De Causa Possessionis et Proprietatis, de Restitutione 
 Spoliatorum"; G. Durand, "Specul.," 4, 2. — Lancelot, "Inst.," 3, 10; Pon- 
 tanus, "Tract. III. Jet.," XIV, 271; Maassen, "Jahrb. d. Gem. R.," 1859; 
 Rosshirt, "Gesch. d. R. in M. A.," 512; Goecke, "De Exc. Spolii," 1858; P. 
 Fournicr, "0fficialit6s," p. 164; Ruffini, "Actio Spolii," p. 141 to 252 (details 
 as to the ecclesiastical discipline previous to the ninth century. The "Pseudo- 
 Isidore," Gratian). See also Savigmj, § 48 et seq. 
 
 ' Ruffini was credited with bringing out this peculiaritJ^ Cf. "Concile de 
 Paris," of 615, c. 10, according to Bruns, "Canones," II, 257. 
 
 * Regulation by the Decretal "Frequens," 1245, Dig. X, 2, 5, 1: in criminal 
 matters the defense may be offered in opposition to everybody; in civil matters 
 only to the despoiler. 
 
 6 Ruffini shows that the legislation of the Church did not entirely agree 
 with the practice. Gratian did not admit of the extension which was given by 
 practice to the c. " Redintegranda " (for example, its application to the laity 
 and to all sorts of possessions). The popes were inclined rather to follow hi3 
 
 318
 
 Topic 4] POSSESSION [§ 2G2 
 
 been dispossessed was authorized to claim restitution by means 
 of an action ("condictio ex canone redintegranda ") ; ^ the existence 
 of the action was justified by the same motives as was that of 
 the plea; the official intervention of the tribunals led to its ad- 
 mission and the Roman procedure of possessory prohibitions did 
 not seem to differ therefrom to an appreciable extent.^ 
 
 § 262. The Same. — The "remedium" which was finally estab- 
 lished consisted of two methods: the action and the plea "spolii." 
 Both, as their essential effect, lead to the re-establishment of 
 the "statu quo ante";^ this is the object which is striven for 
 and the only means which seems natural for the prevention of 
 disseisin, for pecuniary penalties which were decreed by the bar- 
 barian laws did not suffice; as long as the despoiler kept the prop- 
 erty which he had taken he was satisfied and had no regret at 
 having infringed the laws; by dispossessing him in his turn, every 
 pretext for violence was removed. Thenceforth the requisite 
 conditions for the exercise of the "remedium" were very exten- 
 sive: (a) the disseisin is not only understood to apply to dis- 
 possession by force, but to any other illegal dispossession; ^ (&) 
 
 example and to restrict the new institution which a more profound knowledge 
 of the Roman law caused them to look upon as being abusive. Sec, for exam- 
 ple, the Decretal "Sajpe Contingit." Nor could the Romanists favor it any 
 more. It is only brought up once in the writings of the commentators (" Quajs- 
 tiones" by Azon, XI, ed. Landsberg). Bartole and Balde only mention the 
 Roman prohibitions. We find it dealt with, on the other hand, in P. de Castro, 
 "Consil.," Ill, 29; Decius, etc. See especially Menochius, "De Recuper. 
 Poss. Remed.," XV (restrictive tendency); Pontanus, "Tract. Univ. Jur.," 
 XIV, f. 270 ("despolio," opposite tendency); P. de Ferariif:, "Aurea Prac- 
 tica," 1579; Gui Pape, "In Stat. Delph., si quis per Litteras." 
 
 ' "Glose," on the Decree, c. 3, C, III, q. 2. — They saw in the "actio 
 spolii" or "condictio ex can. Redintegranda" only the prohibition "de vi," 
 and it was all the more willingly admitted as they could obtain support from 
 the "Const, de Th^od. et Valent.," which pronounced the forfeiture of the 
 property against the "invasor," upon a rescript of Hadrian according to which 
 the question of violence should be decided before everything else: "Cod. 
 Theod.," 9, 7, 2; Guill. Durand, 4, 2, only establishes a verbal distinction be- 
 tween restitution to the despoiled and the prohibition "de vi." Cf. "Glose 
 ad Recup.," s. I, 1, D., "de vi,'; 43, 15. 
 
 2 Cf. the "irepipiav" of the Orientals: Ruffini, p. 332, and part 2, c. 1. 
 
 ^ Dig. X, 13, 11. A mere Judgment is not sufficient; the man disseised may 
 demand that he be put back m physical possession of the thing which has been 
 taken away from him. 
 
 ^ Case in which the prohibition "de vi" was refused, but with regard to which 
 Cujas thought ("Obs.," I, 1, c. 20 and I, 19, c. 16) that under the Lower Empire 
 a general prohibition called "momentarioe possessionis " had been provided: 
 "Cod. Th6od.," 4, 20, 6; 2, 1, 8; "Cod. Just.," 3, 16, 1; 3, 6, 3; 8, 4, 8. To the 
 same effect //lenn^, "FondementdelaProt. Poss.," p 112. ^o;ircar<," Thdse," 
 p. 138, critici.scs this doctrine. Ruffini, p. 53. — The prohibition "de vi" 
 differed from the "remedium" not only in that it assumed a dispossession by 
 force, but also in that it was not granted in the case of movables {cf. D., "de 
 vi," 43, 16, 14, a text which deceived the canonists), that it was only given 
 
 319
 
 § 262] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 the "remedium" belongs to every possessor, whether his posses- 
 sion be lawful or unlawful, yearly or not, even to the "prsedo," 
 even to the one who merely withholds; (c) it is granted for every 
 species of thing, corporeal or incorporeal, movable or immovable; 
 
 (d) no prescription can be pleaded against the man disseised; ^ 
 
 (e) nor can the right of ownership be pleaded against him, nor can 
 he be reproached with having himself committed a disseisin; (/) 
 the "remedium" is given not only against the perpetrator of the 
 disseisin, but even against his assigns and against the purchaser 
 in good faith." 
 
 These rules are undoubtedly justified by the condition of affairs 
 in the Middle Ages; but as soon as the public peace was better 
 assured they were quickly restrained, and even abandoned. Thus 
 the man disseised was not given restitution when he had been 
 guilty of a serious crime ;^ the plea of "spolii" was forbidden to 
 be interposed in civil matters when the disseisin was due to 
 some other than the man making the claim; as far as advantages 
 were concerned, the "possessio colorata" (by title) was demanded; 
 in criminal matters the plea had to be proved within fifteen 
 days under penalty of forfeiture; ^ secular legislation only per- 
 mitted it to be taken advantage of within a short period; ^ and, 
 finally, by virtue of a celebrated Decretal of Innocent III, the 
 Decretal "Ssepe contingit," 1215, the "spolii" action could no 
 longer be granted against third parties who had acted in good 
 faith.® It is true that practice did not accommodate itself to all 
 these changes, and that it clung by preference to the old rules.^ 
 But, while the doctrine underwent these modifications, the ec- 
 clesiastical judges were deprived of the cognizance of questions 
 
 against the one who carried out the despoiling, that it was not accorded to the 
 possessor properly so called, and, finally, that proceedings could only be begun 
 for obtaining it within a short delay. 
 
 ^ Or, at least, no prescription of less than thirty years. 
 
 ^ "Glose," on the Decree: "Quilibet possidens possit conveniri," "Const. 
 Sic," I, 26: "Sive sciens, sive ignorans per quascumque manus possessio am- 
 bulaverit." 
 
 * Guill. Durand points out twenty-three cases in which, as an exception, 
 the person despoiled does not obtain restitution {Durand de Maillane). Cf. 
 P. de Fontaines, 21, 50. 
 
 * "Sexte," 2, 5, 1. 
 
 ^ Novel disseisin: 40 days in Palestine; J. d'Ibelin, I, 34; a delay which 
 varied in England, Glanville, 13, 32; one year and one day in France and in 
 Sicily; two months in the latter country since the time of Alphonso I. 
 
 8 Dig. X, "de rest, spol.," 18. As to the interpretations of this text, 
 c/. Ruffini, p. 335; Ihering, "Besitzville," p. 459. — See "Siete Part.," 3, 2, 
 30. 
 
 ' Ruffini, loc. cit. 
 
 320
 
 Topic 4] POSSESSION [§ 263 
 
 relating to possession. Cognizance was taken by the tribunals of 
 the king,^ or even the municipal justices.^ 
 
 § 2G3. Frankish Period.^ — Did the old Germanic law recognize 
 the distinction between possession and ownership? If it sprung, 
 as it seems to have done, from a system of collective ownership 
 of the ground, the temporary right which was given the family 
 rather than the individual over the share which had been granted 
 him, resembled possession more than ownership; but, while 
 abandoning this primitive system, they passed to a true owner- 
 ship, beside which the fact of possession had no very great im- 
 portance in the law. So long as possessory actions were not known, 
 — and they do not appear in the Frankish law,* — the possessor 
 had no other advantage excepting that he played the part of de- 
 fendant in the contest over the ownership; he then prevailed over 
 his adversary, not exactly because of his possession, but because 
 of the special principles of the theory of proofs; it was sufficient 
 in order to enable him to win his suit that he should swear that he 
 justly detained.^ In order to ascertain who was the possessor, 
 recourse was undoubtedly had first of all to the simple fact of the 
 detention without disputing it.^ But it seems certain that proced- 
 ure became complicated upon this point; as in the old Roman law, 
 there took place, as an incident in litigation concerning owner- 
 ship, a preliminary discussion on the question of possession to 
 determine the status of the parties.^ The documents are not suf- 
 ficiently precise to admit of our knowing how the question was 
 settled as to detail.^ It seems that possession, in order to give a 
 man the status of defendant, could not be violent ^ or uncertain;^" 
 
 1 Bull of Martin V, 1428; Loysel, 752. 
 
 2 "Cout. de Toulouse," 1, 25: the complainant may overthrow the "exceptio 
 spoUi," which is pleaded against him by a mere denial, by sajang that he has 
 not despoiled the defendant. 
 
 ' See especially Heusler, "Gewere," pp. 1 to 106. 
 
 * Hiibnerj "Immobiliarprocess," p. 51. If one admits that the early law 
 only recognized actions "ex delicto," the distinction between the action for 
 real property and the action for possession could not be conceived of. It 
 only became possible to make this distinction when procedure lost its penal 
 
 Oil 1T**lPt 01* 
 
 6 "Inst. Just.," 4, 15, 4; "Bai.," 16; Rozihre, no. 487, 488; Huher, IV, 232, 
 n. 44; "L. Feud.," 4, 1. Cf. Champeaux, p. 334. 
 
 * The imputation "malo ordine possides" implies a possession based upon 
 a tort: "Form. Sen.," 7, etc. 
 
 ^ "Capit.," 819, c. 4; Muratori, "Ant. Ital.," I, 973; D. Vaissette, I, no. 5, a. 
 783; Pollock and Maitland, II, 47; cf. Champeaux, p. 339. 
 
 * The year's delay seems to have been required: "Cap. Langob.," 825, 
 c. 11; Pertz, I, 252. Cf., however, Glasson, op. cit. 
 
 » "Cap.," 820, 1. 
 " That is to say, "alieno nomine." 
 
 ' 321
 
 § 263] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 it could be held by various titles, for example, as owner, or simply 
 as usufructuary; ^ it resulted from occupation, from delivery, or 
 from inheritance.? The Barbarian law here presents, as it were, 
 the outline of the regulation admitted by later legislation. 
 
 § 264. Feudal Period.^ — From the tenth to the twelfth cen- 
 turies no important changes seem to have taken place. The 
 French seisin, the German "Gewere," give, as they did in the 
 past, to the man who is invested with them, the power of repel- 
 ling disseisors * by means of force, which is an advantage in the 
 suit for real property; ^ and they also give him the right to have 
 his possession recognized on the occasion of this action.^ This is 
 simply an incident, from which possessory actions have not yet 
 been evolved. The Customary German law remains in this stage 
 of evolution.^ This was not so with regard to the Anglo-Norman 
 
 * Numerous texts speak of "vestire in beneficio, sub censu." The tenant 
 at will is not an uncertain withholder in the modern sense of the word; thus 
 he has the seisin, which does not prevent the owner from also having a seisin 
 on liis part over the same piece of land by right of ownership ; all the more did 
 he have it when his lands were cultivated by slaves or farmers (although the 
 texts speak of slaves invested with a farm and the necessary implements for 
 cultivating it ; cj. "mansi vestiti," "absi"): -D. Bouquet, VIII, 621; D. Vaissette, 
 no. 127; "Cart, de Savigny," no. 434; "de St. Victor," I, 77, etc.; Haeberlin, 
 "Syst. Bearb. d. in Meichelbeck ent. Urk.," p. 189. 
 
 2 D. Vaissette, no. 16. Cf. Champeaux, p. 255. As to hereditary seisin, see 
 documents cited infra. 
 
 3 P. de Fontaines, p. 86, 230 et seg., 264 et seq.; " Artois," t. 19 et seq.; "Et. 
 de St. Louis," I, 69, 159; II, 7; " Jostice," pp. 110, 270, 316; Beaumanoir, c. 32; 
 "Cout. Norm.," post; "Stil. Pari.," 1, 18; "Gr. Cout.," II, 19, p. 2'Sl; Boutaric, 
 
 I, 31; Masuer, t. 10 and 11 (matters in suit relating to real property and in 
 possessory action); J. d'lbelin, c. 64, 151; Loysel, 740; Buche, op. cit. — Cf. 
 J. Faure, "Inst. s. les Interdits"; "Fors de B6arn," p. 165 (ed. Mature). — 
 Choice of texts in Hcnrion de Pansey, "Comp. des Juges de Paix," p. 104 (in 
 his "(Euvres Judiciaires"). — And Guilhiermoz, "Enquetes et Proces," pp. 232, 
 285, 419, 438, 455, 618. 
 
 * Beaumancrir, 32, 24, 27; "T. A. C, Norm.," 19, 77; Loysel, 741. The man 
 despoiled had not only a right to repel force by force, but also the right of 
 taking back his property within a year and a day, according to the German 
 books of Customs ("Sachsensp.," II, 44, 1; "Schwabensp.," 50, 209; Heusler, 
 
 II, 37; Bruns, 360), provided that it had not passed into the hands of a third 
 person. 
 
 6 "Gr. Cout. de Fr.," II, 19, p. 232; Statute of Milan, 1396, 10: "ex pos- 
 sessione prsesumatur quis abere dominium." 
 
 8 P. de Fontaines, 21, 9 et seq.; 22, 9; "Jostice," 19, 42, 2; Glanville, 1, 7.— 
 A sort of "missio in possessionem" of the complainant in the procedure when 
 there is a default. — In the procedure when there is a defense there is no dis- 
 tinction made between the action for real property and the action for possession 
 in France any more than in Germany; there is only one proceeding in which the 
 first thing is to ascertain who has the possession in order to give the possessor 
 the advantage of being allowed to prove it: D. Marthne, "Ampl. Coll.," II, 
 362 (in 1149); D. Calmet, IV, 471 (in 1071). On the German law: Heusler, 
 op. cit.; Schroeder^ 704, n. 44. 
 
 ^ The State did not have sufficient strength to create these institutions, 
 as had been done in France and Normandy. However, after the thirteenth 
 
 322
 
 Topic 4] POSSESSION [§ 264 
 
 and French law; the former towards the end of the twelfth cen- 
 tury, the latter during the course of the thirteenth, break away 
 from the old condition of affairs. The possessory action becomes 
 detached from the petitory action for title; ^ particular forms of 
 action are created, — possessory actions, which are more expe- 
 ditious and less dangerous than suits for the title; ^ they serve, 
 as did the Roman interdicts, to recover or to preserve posses- 
 sion.^ The action for the title remains for the man who has 
 neglected to make use of the possessory action; "* the pleas drawn 
 from the actions for title cannot be set up against the man who 
 brings suit for possession.^ The minor cannot act "de jure" or 
 *'de proprietate," but he is capable of bringing the possessory 
 action.^ The distinction is marked, even in matters of juris- 
 diction; the possessory action is reserved for the tribunals of the 
 duke in Normandy, for the tribunals of the king in France, 
 whereas the action for title can appertain to the seigniorial or 
 ecclesiastical tribunals.'^ 
 
 century we find here and there a suggestion of this sort of action. Recourse 
 to a jury of neighbors to discover who has the possession: "Vetus Auctor," 
 1,98. 
 
 1 P. de Fontaines, p. 232: "saisine," "fonz de querele," "principal querele"; 
 "T. A. C, Norm.," 75, 78, etc.; "Sum. Norm.," 2, 55, 2; Bracton, 1, 4, 3; 3, 4, 
 7, etc.; Beaumanoir, 6, 4; 32, 30; "Jostice," 12, 26, 3; "Gr. Gout, de Fr.," 
 pp. 350, 529, etc. 
 
 2 J. d'Ibelin, 64, mentions the action of novel disseisin, which corresponds 
 to the "actio spolii" of the canon law and the compulsory action, which is 
 purely penal. It does not seem that the complaint had yet found a place in 
 the law of the Assizes: Glasson, " N. R. H.," 1890, 606. Cf. " Et. de St. Louis," 
 II, 7; I, 69. 
 
 ^ Effects: a full restoration to seisin, and restitution of the issues. Cf. 
 especially Beaumanoir. — Let us observe that the possessor in good faith ob- 
 tains the issues for himself: P. de Fontaines, 21, 9; Beaumanoir, 32, 13; Loysel, 
 743. 
 
 * "Salva questione proprietatis": "T. A. C., Norm.," 75, 2 and 3; 77, 3; 
 81, 2; "Stat. Norm.," Warnk., II, 38; "Etabl.," p. 66; "Glim," I, pp. 4, 76, 
 288, 355, 452, 476, 515, 542; II, pp. 58, 67, 72, 112, 162, etc. P. de Fontaines, 
 
 E. 267 : loss of seisin for failure to prove one's case, but, conversely, when one 
 egins by the action for real property one is not allowed then to proceed with 
 the action for possession. Bracton, 5, 11; "Anc. Us. d'Artois," 20, 29 et seq.; 
 Desynares, 300; "Gr. Gout.," p. 267; Masuer, 10, 2: one cannot begin the action 
 for real property and the action for possession at the same time. Boutaric, 
 I, 31 (p. 198): the judgment in the case of the possessory action should be 
 carried out entirely before one passes to the action for real property: cf. "Siete 
 Part.," 3, 2, 28. 
 
 * "Arrest. Scac," Warnk., II, 76; "Etabl.," p. 123; "Olim," I, 452, no. 
 16; 494, no. 13, etc. The nearest heir against whom his adversary pleads his 
 quality of donee obtains the seisin "et de proprietate fiat jus coram domino 
 feodali." 
 
 8 "T.A.C., Norm.," 78, 1,3. 
 
 7 "T. A. G., Norm.," 22, 2; 53; P. de Fontaines, Z2, 17; "Olim," 1,4.52, 16; 
 667, 8; 11,56, 10; 408, 20, etc. Cf. I, 814, 2, 881, 38; II, 79, 5; 156, 7; "Stil. 
 Parl.,'^ 1, 18, 25. "Or. Gout.," p. 240, 253: charge only by the royal judge: 
 
 323
 
 § 265] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 § 265. The Seisin belongs to the man who enjoys the use of a 
 piece of property or exercises some right over it on his own ac- 
 count.^ Thus we find the characteristic double element of Roman 
 possession, the "corpus" and the "animus," the fact and the in- 
 tention. It is true that seisin, not corresponding to ownership 
 alone, as did possession in Rome, the "animus" and the "cor- 
 pus" must be understood in a broader manner; but it cannot be 
 said that they have changed their nature.^ The one who detains 
 for another has not the seisin, — at least, as a general rule; it still 
 remains with the owner, as it does when he has his land culti- 
 vated by workmen or servants.^ Moreover, distinctions here be- 
 come necessary; the same person can withhold at the same time 
 on his own account and for somebody else; he can have the seisin 
 as far as his own right is concerned and not as far as somebody 
 else's right is concerned. In such a case as this two seisins will 
 exist at the same time with regard to the same piece of property. 
 Sometimes, instead of two, there will be three or more. The fief 
 gives us an example of this series of simultaneous seisins : the lord 
 who has granted it, the vassal who has received it, and who in 
 his turn has the land cultivated by a copyholder, the copyholder 
 who leases it out to the tenant, have each one a seisin; for each 
 one of them the seisin is the exercise of his own particular rights.^ 
 
 Masuer, XI, 60, 75 (privilege for the action of simple seisin). "Lib. praet. 
 Remensis," p. 187; "Ord.," 1539, Art. 49; G. Pape, q. 1; Loysel, 752. 
 
 1 Cf. the German formula: "Gut im Nut und Gelde hat": "Sachsensp. 
 Lehnrecht," 14, 1; Pollock and Maitland, II, 32; Beaumanoir, 34, 13; "Gr. 
 Gout, de Fr.," 252; " L. d. Droiz," 630; Loysel, 749, 765. Numerous examples 
 in the "Ohm," seisin of the right of hunting: I, 425; II, 175; of a tithe: I, 743; 
 of a right to administer justice: I, 984, etc. 
 
 2 According to Heusler, the main difference between Roman possession 
 and the Germanic "Gewere" would consist in the fact that the former as- 
 sumed the "animus domini," whereas the second belonged to whoever had 
 the use of a piece of property or of a right ("animus possidendi"). This is 
 an extension of the idea of possession, an extension which is so natural that it 
 had already half taken place at Rome (quasi possession) and it became com- 
 plete in the Middle Ages in the common Roman law and in the canon law. Cf. 
 in the formulae ("Roz.," 142, 152, etc.): "possidere jure proprietario, sub usu 
 beneficio, usufructario ordine." 
 
 ^ He who disseises the serf disseises his lord, which does not prevent two 
 serfs from disputing with each other the seisin of their holdings. 
 
 * "Gr. Gout, de Fr.," p. 235: seisin of the usufructuary; p. 239: the vassal 
 can bring complaint against his lord; p. 248: seisin of the farm tenant who 
 had still four years left to hold the land and whom a new purchaser wished to 
 expel; p. 756: between lord and subject there can be no trespass. Beau- 
 manoir, 32, 8: "for many reasons may the lord take that which is held from 
 him." If the possessory action is refused him the subject may proceed in 
 another manner before the seigniorial court. Cf. Masuer, XI, 15, 22, 49. 
 Beaumanoir, 32, 13, gives the farm tenant the action of novel disseisin against 
 the lessor; thus he recognizes that the farm tenant has a true seisin for the 
 
 324
 
 Topic 4] POSSESSION [§ 266 
 
 § 266. The Seisin is Acquired, on principle, by the taking of 
 physical possession: occupation with regard to "res nuUius," de- 
 livery with regard to things which have already been appropri- 
 ated, taking into possession regularly carried out by some one 
 who merely exercises a right (for example, by virtue of a judg- 
 ment).^ Having sprung "a non domino," delivery, however, con- 
 fers seisin; ^ but upon one condition in the old law, that is, that 
 there has been an investiture or giving of seisin by the lord, — 
 in other words, that it has been regular. In time this requirement 
 disappeared, as we shall see, with regard to the transfer of owner- 
 ship.^ Taking into possession "vi aut clam" only gives rise to a 
 defective seisin, which is not efficacious or has limited conse- 
 
 purpose of protecting his right over the land, and it is to be noticed that here 
 he is dealing with a lease for a term and not a lease for life, — a case in which 
 the doubt could not have arisen. According to Bracton, the tenant for a 
 term has a special kind of action, whereas the assize of novel disseisin is re- 
 served for the lessor. Pollock and Maitland, II, 36. As to these simultane- 
 ous seisins and the difficulties to which their existence gives rise, Heusler, II, 
 25; Stobbe, I, 200. — The doctrine of the Romanists is confused: Azo, "Sum. 
 in Cod.," 7, 32; Accursius, "Gl. s. 1.," 3, 5, D., 41, 2; Bartol., "ad" I, 1, "D., 
 de acq. v. am. poss.," 8. Cf. the position of the tenant at will, the pledgor, 
 and the sequestrator at Rome. 
 
 1 "Gr. Gout, de Fr.," II, 19 (p. 231). 
 
 2 Beaumanoir, 51, 18. The seisin is justified by the regularity of the deed, 
 at least in appearance. The purchaser in good faith had, moreover, advantages 
 of prescription. As to the purchaser in bad faith his seisin might have been 
 considered as defective, but bad faith cannot be presumed; if there is no 
 aggravating circumstance, no offense or complicity in offense, he has the same 
 advantage as the purchaser in good faith. The texts of the thirteenth century 
 do not formally provide for this case, because good faith is assumed. 
 
 _ ^ One can say there is no seisin (that is to say, no possessory actions, etc.) 
 without a giving of seisin by the lord or by the law (or without possession for 
 a year, wliich was the equivalent of this giving of seisin: " L. d. Droiz," § 712; 
 later on possession for ten years: Loysel, 748). The taking of possession is 
 only regular on condition of the intervention of the lord or the judge; if 
 this is lacking the protection offered by the possessory action is denied {cf., 
 however, "Recovery of Possession"). But from the fact that there can be 
 no seisin without a lawful giving of seisin, it does not follow that seisin is 
 acquired through the mere fact of the conferring of seisin; this is an unsettled 
 question and one which cannot be answered by the similarity of the words, 
 "saisine," " ensaisincment " : As to this, "Jostice," 2, 1, 1; 12, 6, 26; "Gout. 
 Not.," 53, 72; Desmares, 62, 185, 189; Boxdaric, I, 43; Varin, "Arch. 16g. de 
 Reims," I, 675, 961 ; Beaumanoir, 30, 38; 6, 4; De Parieu, p. 76. — Moreover, in 
 this matter the distinction was drawn, at least in the fourteenth century, 
 between fiefs and copyholds ("censives"). The conferring of seisin by the 
 lord was given up in the case of copyholds: "He does not take seisin who 
 does not wish to. Loysel, 745, 746: "Taking possession in fact is equivalent 
 to seisin," that is to say, that taking possession in fact is worth just as much 
 as the old giving of seisin by the lord which was formerly in use; the owner- 
 ship is acquired in cither case. With regard to fiefs, on the contrary, the 
 necessity for conferring of seisin by the lord continued longer; in its absence, 
 says the "Gr. Gout.," p. 233, seisin is neither acquired in law nor in fact; 
 the purchaser is not the owner and cannot bring the action for possession 
 (even if there has been a feigned delivery). 
 
 325
 
 § 266] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 quences; ^ but this original defect is capable of disappearing; ^ as 
 soon as the possession ceases to be disturbed, as soon as it takes 
 place publicly to everybody's knowledge, the demands of the 
 texts which are constantly speaking of peaceful seisin are satis- 
 fied;^ the defect of uncertainty, on the contrary, does not disap- 
 pear with time; a change of title would be necessary.'' 
 
 § 267. Seisin under Law,^ which is independent of any phys- 
 ical taking into possession of an object, of any exercise of a right, 
 only exists in a very exceptional manner: (a) for the benefit of 
 the possessor unlawfully deprived, and who is considered as still 
 being legally seised ; ^ (6) for the benefit of the heir from the 
 time of the death of the "de cujus"; ^ (c) for the benefit of the 
 vendee, who has received the seigniorial or judicial investiture 
 in a symbolical manner (delivery by the rod) ; ^ (d) for the benefit 
 
 ^ Beaumanoir, 32, 23: the thief has the seisin and may demand to be 
 reseised "before anything else is done," although he may have to incur the 
 penalty of death. Cf. 31, 3: he is seised and possessed of the thing stolen: 
 P. de Fontaines, p. 264 (we make use of this right): seisin of theft (seisin 
 based upon a tort); Guilhiermoz, p. 286: possession based on distraint. 
 
 2 " Jostice," p. 271 : to hold a year and a day without dispute; Beaumanoir, 
 32, 2; to have the seisin for a year and a day in peace. 
 
 ^ The texts do not pronounce themselves categorically either upon the ab- 
 solute or relative character of defects of possession or upon the question of 
 knowing if they are cleared off by lapse of time. They seem to look upon 
 these defects as absolute, and as being of such a nature that they could be 
 offered in opposition by everybody, and not only by the person injured, etc. 
 In fact, the restriction "ab adversario" plays no part here. Cf., moreover, 
 hereafter the distinction between the complaint and the recovery of posses- 
 sion: Pothier, no. 17; Dunod, "Prescr.," p. 18 (ed. 1753). Guilhiermoz, 
 "Enquetes," p. 288, no. 56: 1st, one complains "de novitate," that is to say, 
 of a recent disturbance; the complainant will only be heard if he has been 
 disturbed within less than a year; if he allows his adversary to remain in pos- 
 session for a year and a day he will be defeated, although he may set up that 
 this possession was defective; 2d, one acts "simpliciter de possessione"; the 
 man succeeds who proves that he has possessed the property for the longest 
 time "nee vi, nee clam, nee precario." No. 59: "Alii dicunt quod qui cadit 
 a novitate . . . cadit etiam a possessione simplici " (an Order to the contrary 
 in 1340). Post, "Action of Simple Seisin." — See as to the existing law: 
 Gar sonnet, I, p. 588. 
 
 * Beaumanoir, 32, 13, 14. On the expression, "withholders at will," of. 
 "Cod. Just.," 7, 39, 2. — Garsonnet, I, p. 585, n. 18. 
 
 ^ The expression, "Seisin at law," is found in the "Gr. Cout.," as con- 
 trasted with seisin in fact or physical detention. Cf., " Possessio realis civilis" 
 of the old Romanists, and "Ideelle Gewere" of the modern Germans. 
 
 * This seisin can be opposed to everybody without distinction, in the same 
 way as ordinary seisin, and not only to certain persons (for example, to the 
 "dejiciens"). 
 
 ^ Before he shall have taken possession himself of the property of the in- 
 heritance: J. Faber, "Inst, de Interd." Cf. post, the formulae, "Le mort 
 eaisit le vif "; "Le roi est mort, vive le roi!" Gui Pape, q. 3.55. 
 
 * From this there results the transfer of the ownership, but also that of the 
 possession; investiture is after all only a delivery. Cf. Ferriere, see "Poss. 
 Feinte." 
 
 326
 
 Topic 4] POSSESSION [§ 267 
 
 of the man to whom the judgment gives the possession of a piece 
 of land before he has actually entered into possession of it.^ That 
 the possession should have belonged to the two former, that is 
 to say, to the heir - and the possessor who has been deprived, is 
 something which cannot be doubted; the books are as specific as 
 possible upon this point, and urgent motives of practical utility 
 justify this explanation. As to those who could only invoke a 
 feoffment or a judgment without physical taking into possession, 
 they had the right of acquiring the seisin and of taking possession; 
 but one asks oneself if they were allowed to make use of the posses- 
 sory actions before any taking into possession, and if they could 
 plead that they were seised. This would seem logical, because a 
 transfer of ownership for their benefit takes place, and the pre- 
 tended delivery of which this is the effect ought to transfer the 
 possession at the same time as it reduced the grantor to the con- 
 dition of a withholder "alieno nomine." Such is indeed the solu- 
 tion which seems to have prevailed,^ but our sources are far from 
 being as explicit with regard to these cases as they are with re- 
 gard to the preceding ones.'* 
 
 ^ This last case is the most doubtful one, and it is perhaps the one which 
 is contemplated by the "L. d. Droiz," § 280: Gui Pape, "In Stat. Delph.," 
 loc. cit. 
 
 2 The rule, "Le mort saisit le vif" (the dead gives seisin to the living) was 
 more efficacious with regard to copyholds than it was with regard to fiefs. 
 The seigniorial giving of seisin was entirely done away with as far as copy- 
 holds were concerned; on the other hand, the lord is seised of the fief before 
 the heir, but the latter has a right to demand the investiture upon condition 
 of swearing fealty and homage; he cannot take possession before investiture 
 under penalty of a fine: "Gr. Gout, de Fr.," p. 234. Cf. "Ass. de Jerus.," 
 I, 227, ed. B.; "Regiam. Maj.," 3, 28, 1. — In the English law seisin in law 
 as contrasted with seisin in deed, taking of possession in fact. Post, "Writs 
 of Entry." 
 
 3 Lauriere, on "Paris," 96: in order to bring the complaint one must have 
 the seisin, and in order to have the seisin one must have been in possession 
 for a year and a day, unless one has been given seisin by the lord from whom 
 the thing in dispute is held, for the seisin given by the lord is equivalent to 
 that acquired by the year and a day, cf. Guilhiermoz, "Enquetes," p. 233; 
 Gui Pape, q. 22 {Hostiensis, post), 101, 415. 
 
 * In support of this very much contested theory one can invoke the maxim, 
 "Le mort saisit le vif." By this means it is desired to place the heir in the 
 position where he would find himself if he had been invested or given the seisin 
 by the lord. As it is certain that the heir acquires the ownership and the pos- 
 session at one and the same time, it should be the same for any assignee who 
 had received the investiture from the lord. The more he joins the possession 
 of his grantor to his own, the more the seisin in law completes this advantage 
 without difficulty, owing to the idea of the agreement for possession in lieu of 
 delivery; the important part played by this in matters of transfer of ownership 
 we are well aware of: "N. R. H.," 1891, 176. — The question, nevertheless, 
 encounters many difficulties. Ileuslcr cites to the contrary a passage from 
 the "L. d. Droiz," § 280. He argues from various passages of the "Gr. 
 Gout.," p. 231: occupation, delivery in fact; p. 233, denies seisin through 
 
 327
 
 § 268] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 § 268. Yearly Possession.^ — Towards the end of the thirteenth 
 century there took place a remarkable modification in the pos- 
 sessory theory: a year's possession alone was taken into considera- 
 tion, or pretty nearly so; ^ under the name of seisin, or true seisin, 
 it was contrasted with mere possession or detention.^ Possession 
 led to seisin by a sort of prescription, to ownership by a longer 
 prescription. In both cases the "accessio possessionum " of the 
 Roman law was admitted; the assign was authorized to join to 
 his possession that of his assignor, so as to complete the period of 
 one year.^ Thus seisin appeared like a real right which could be 
 set up against everybody, a sort of inferior ownership. The result 
 
 possession "et non e contrario." Cf. Beaumanoir, 2, 8 and 17; 20, 2; 32, 24; 
 the first of these passages seems to him to support the opinion pointed out 
 in the text, and thus perhaps explains the "L. d. Droiz." According to 
 Heuder, the giving of seisin by the lord or the giving of seisin at law had 
 no effect excepting from the point of view of ownership: "Sachsensp.," 
 34, 3; "Anc. Us. d'Artois," 24, 5 to 12; "Cout. Not.," 124; "L. d. Droiz," 
 712. The Romanists commonly admitted that possession was not ac- 
 quired by investiture "in absentia rei": "Siete Part.," IV, 26, 4 (notes); 
 Hostiensis. 
 
 1 As to the delay of a year and a day, cf. post, "Complaint," "Prescrip- 
 tion," "Repurchase," etc. — According to Glasson, "N. R. H.," 1890, 594, the 
 seisin for a year and a day already existed with a certain general character 
 during the Frankish period; from there it must have been transmitted to the 
 feudal period and have been admitted in various countries from Italy even to 
 the Scandinavians. — In support of this opinion one can cite remarkable 
 cases of the application of the delay of a year: Tacitus, "Germ.," 26: "arva 
 per annos mutant"; "L. Sal.," 45 (47), "de migrantibus" (he who has estab- 
 lished himself in a village cannot be exjjelled therefrom upon the request of 
 one of the inhabitants at the end of a year's sojourn). "Cap.," 825, c. 11 (I, 
 331) : preference for the man who has had possession for a year and a day in 
 the case of two successive sales. — But the mention of the year's delay can 
 be reduced to about tliis. It is difficult to maintain thenceforth that it was 
 generally made use of. More likely a custom came to be established which 
 became fixed and generalized later on. Cf. "Charte de Lorris," ed. Prou, 
 note on Art. 27; Guilhiermoz, "Enquetes," p. 287. 
 
 2 In the "L. Feud.," there is a question sometimes of yearly possession and 
 sometimes of "longa possessio," and sometimes the possession "aliquo tem- 
 pore" (1, 26, 1; 2, 33, 5, 2, 33 pr.). The vassal who has been in possession 
 one year, "sciente domino et non contradicente," may swear that he has been 
 invested by the lord; possession for a year was thus equal to investiture by 
 the lord. Fertile, § 135, cites various ItaUan statutes where yearly possession 
 is mentioned: "Stat, of Modena," 1327, IV, 180. In 1163 at Trent, "in mallo 
 publico per laudum curiae," a possession of a year and a day is required. The 
 "Fueros de Catalayud," by Daroca, assumed a possession of half a year (1151, 
 1142); the "F. de Miranda" (1099) t. possession of a year and a day; he who 
 has been in physical possession during these periods can overthrow every action. 
 As to triennial possession in Italy, cf. Salvioli, p. 443. 
 
 ' To have the peaceful enjoyment of the seisin for a year and a day, an 
 expression which is already current in the time of Beaumanoir: "Jostice," 3, 
 5, 4 (true seisin). Post, "Complaint in Case of Seisin." "Gr. Cout. de Fr.," 
 232; Loysel, 749; Masuer, 11, 3: in matters dealing with income the most that 
 is required is a title. Cf. the German "rechte Gewere," which rather deals 
 with ownership. 
 
 * Guilhiermoz, "Enquetes," p. 286. 
 
 328
 
 Topic 4] POSSESSION [§ 269 
 
 of these changes was not long in making itself felt in the proce- 
 dure in actions for possession, which became complicated, and 
 developed.^ It is likely, as we shall see with regard to possessory 
 actions, that the importance given to a year's possession is less a 
 radical innovation than a regulating of the previous state of af- 
 fairs.- In order to know who has been in possession of a piece of 
 land, it is sought to discov-erwho has cultivated it, who has gath- 
 ered the harvest; and this assumes a cultivation of one year. It 
 is no doubt owing to this fact, that the tenure of a year and a 
 day, the German "rechte Gewere," was instituted. Now posses- 
 sion for a year is only a reduction of these older institutions. In 
 countries such as Italy, where the Roman law prevailed, it is a 
 question of possession for a year in the local statutes; but the 
 common law set it aside, until the day when it reappeared with 
 the French codes.^ 
 
 § 269. Possessory Actions. Anglo-Norman Law.^ — Although 
 the Romano-canonic law recognized the creation of possessory 
 actions, it is probable that they would have appeared spontane- 
 ously, even if the influence of this law had not made itself felt, 
 so much did they conform to the social conditions of the Middle 
 Ages. It is in Normandy that the land was found to be best pre- 
 pared to receive and to foster the germ of reform; the authority 
 of the duke worked energetically for the maintenance of the pub- 
 lic peace, perhaps because after the invasions and the wars disor- 
 der was greater than it had been before; ^ acts of violence were 
 
 * The suppression of offences and acts of violence being assured, a greater 
 degree of protection may be demanded for possession. 
 
 2 Guilhiermoz, "Enquetes," p. 287, no. 52 ad finem. 
 
 ^ The theory of Klimrath, according to which the seisin is closely related 
 to the real right and is bound up in it, is opposed to the most categorical 
 texts: Beaumanoir, 6, 4; 32, 30; "Jostice," 12, 26, 3; "Gr. Gout.," pp. 350, 
 529). According to Klimrath, seisin in fact would be the same thing as 
 occupancy (lender, farm tenant, etc.); seisin at law is rather the right to 
 take possession in fact; simple seisin is contrasted with true seisin, — that is 
 to say, with the seisin which has lasted a year and a day. Thenceforth there 
 would be four kinds of seisins: 1st. The simple seisin in fact. 2d. The simple 
 seisin at law, resulting from a judgment, from investiture at law, or from 
 inheritance. 3d. The true seisin in fact, or possession for a year and a day, 
 serving as a basis for the complaint. 4th. The true seisin in fact and at laiv, or 
 possession for a year and a day based upon a judgment, etc. The terminology 
 of the sources is not firmly established: "Gr. Gout.," pp.233, 234,367: "saisine 
 de fait, saisine de droit " ; "Jostice," 13,5, 4; 17,3,2: " vraie saisine " ; cf. 12, 
 6, 26; 4, 4, 1; "Gr. Gout.," p. 239: natural possession and civil possession; 
 "L. des Droiz," 86; Boidaric, fo. 90. 
 
 «. ^ Heusler, "Gewere," § 28; Brunner, "Entst. d. Schwurger," 327; Pollock 
 and Maitland, II, 29. 
 
 ^ "T. A. C., Norm.," 22, 31: " nuUus, guerram f aciat " ; Pollock and Maitland, 
 11,44. 
 
 329
 
 <5f 
 
 § 269] OWNERSHIP AND REAL RIGHTS [Chai-. II 
 
 repressed by every possible means; one of those by which the 
 poHce power of the dukes was most effectively exercised was the 
 estabhshment of possessory procedure.^ It had its point of con- 
 nection in a privilege which was reserved to the duke during the 
 feudal period, and to the king in the Frankish period, the prac- 
 tice of " recognitio " ; ^ instead of taking the chances of the duel, 
 as in ordinary procedure,^ the duke caused his rights to be ascer- 
 tained by means of the inquest; this prerogative was extended to 
 ordinary individuals; by means of a writ of the duke,^ each man 
 could have his possession established ("recognoscere") by a jury 
 of twelve honorable men of the neighborhood; the inquest is more 
 favorable to the weak and the poor man than would be the com- 
 bat with the formidable champions of the rich.^ 
 
 The most important of the possessory actions ^ is the "querela 
 novae dissaisinse " or complaint ensuing upon a recent disposses- 
 sion.^ The person deprived has the resource of taking back his 
 
 1 "Ne potens male agat super impotentem " : "T. A. C," 7, 1; 16, 4 and 5; 
 19. 1; 31, 35. The "T. A. C," 53, classed them among the "placita ensis ad 
 ducem pertinentibus," alongside of such offenses as " infractiones qui minorum," 
 and the "insultus pacis." The assize of novel disseisin probably dates from 
 the year 1166 (Henry II); it is at this time that it constituted a normal kind 
 of proceeding. As to precedents, cf. Bigeloiv, "Placita," 128. 
 
 ^ The Church orphans and other persons under the special protection of 
 the State were the first to enjoy this advantage. 
 
 ' "Fleta," 5, 7, 1. The procedure of the "recognitio" was also, it is true, 
 applied to ownersliip; but then the writs were granted in a different manner. 
 The denial by a single juror makes the duel inevitable: "T. A. C," 85; Pollock 
 and Maitland, II, 45. 
 
 * The Roman procedure of prohibitions is also begim by an order of the 
 praetor: "T. A. C," 25: "nulla fiet recognitio nisi per breve ducis." Cf. ib., 
 73. The writ is presented to the duke's bailiff "in patria conquerentis " ; by 
 means of this writ the duke notifies him to send to the "dejiciens" the order 
 to make restitution ("praeceptum de ressaisiendo"); if this order produces any 
 result the proi>erty is then sequestrated according to the "Summa," 93, 2 
 {cf. "T. A. C," 19, 3), which is the best means of assuring peace; a jury is apn 
 pointed; it proceeds with the "visio terrge" and renders its verdict at the next 
 assizes held before the ducal " justitiarius." C. 19, 3 of the "T. A. C," seems to 
 require unanimity on the part of the jurors, as it does in actions dealing with 
 ownership; c. 76 declares that a majority is sufficient (cf. c. 22, 1: nine); only 
 one excuse ("essoine") is allowed, whereas there are three in the proceeding 
 of the duel ("T. A. C," 42, 1 and 3; 73, 3 and 4; 77, 6; 82), so that the proceed- 
 ing is short. If the accused is in default a second time, the "recognitio" by 
 the jury takes place as though he were present; this may turn out to his advan- 
 tage, but he is "in misericordia ducis pro defectu." 
 
 6 "T. A. C," 17; BeauTtianoir, 32, 24. 
 
 ^ Other actions: "querela de antecessoris saisina" for the benefit of the heir 
 with whom the seisin of the property possessed by the deceased is being con- 
 tested; "querela de presentatione ecclesiae" for the benefit of the man with 
 whom the patronage of a church is being contested; perhaps "querela maritagii 
 impediti" (writ of encumbered marriage) for the recovery of the marriage 
 portion: "TAG.," 5; 79, 9. 
 ^ _ ' "T. A. C," 73. Cf. "Summa," 93; "T. A. C," 74, and "Summa," 98, 1. 
 
 330
 
 Topic 4] POSSESSION [§ 269 
 
 property by force on condition of acting at once; the English law 
 even allows him a delay of four days; but, as a general thing, if he 
 does not act immediately, the method of the " Selbsthiilf e " is 
 forbidden him; ^ he is reduced to the "querela." In order that 
 he may be able to exercise this right, the dispossession must bear 
 on a free tenement, and not on a villein tenement, or a tenement 
 held by a serf.^ It matters little whether the dispossession has 
 taken place with or without violence. The simple disturbance of 
 possession is likened to absolute disseisin or spoliation,^ which 
 accounts for the fact that the "querela" took the place of the 
 "retinendse" and " recuperandse possessionis causa" ^ interdicts. 
 The dispossession must be recent ("nouvelle"); if a year and a 
 day has passed since it has taken place, the action will be refused; 
 the spoliation is an offense, the victim of which should make com- 
 plaint within a short time, under penalty of being considered as 
 having pardoned it; moreover, order is re-established; the jury of 
 neighbors would have more difficulty than if it were consulted the 
 day after the offense took place.^ The question asked the jury 
 is to be a simple one; ^ they are asked if such and such a man 
 was in possession at the time of disseisin; now, this is a fact which 
 it is easy to establish; possession is known by cultivation, by en- 
 joyment.^ The " Tres Ancienne Coutume de Normandie " seems to 
 
 ^ Bradon, 4, 1, 5 and 27. — The action of trespass, which in English law 
 could apply to a case of disturbance, only made its appearance under Henry III : 
 Pollock and Maitland, II, 53. — The raising of the hue and cry which was used 
 in cases of mere disturbances in fact: "N. H. R.," 1882, 411. Cj. "T. A. C," 
 16, 3 and 5. Post, § 14. 
 
 2 "Magna Charta," 1215, c. 39; 1217, c. 35. 
 
 ' Distinctions in English law, disseisin, intrusion, abatement, etc. : Glasson, 
 IV, 261. Fictitious preservation of the seisin by means of a protest made 
 every year upon the land or within its immediate neighborhood: ibid., IV, 266. 
 Cf. Littleton, A^^^. 
 
 * Contesting of the right to collect a tithe; there is disturbance rather than 
 dispossession: "Arresta Scacar.," after Warnk., II, 76. Should the man in 
 possession of a piece of land who was simply disturbed have the "querela"? 
 The English sources are very liberal on this point: Bradon, 4, 1, 38, 4; "Fleta," 
 4, 1, 8 and 9; Britton, 42; "Myrror of Justice," II, 25 (ousting, disturbance, 
 ejectment). No doubt the ducal writ was only granted at first in cases of 
 dispossession, the attack upon public order being of a more serious nature; 
 afterwards its limit was extended to include even cases of disturbance, without 
 its being necessary to create a new form of procedure. 
 
 " "T. A. C," 21, 2; 73, 4; 74; 75, 2 and 3; 78, 5; Warnkoenig, II, 31; "Etabl.," 
 p. 54; "Summa, " 2, 29, 6, and 30, 1, 2; 2, 32, 2 and 34, 3 and 5. — Cf. as to 
 the English law from the last voyage of the king in Normandy and from the 
 "prima coronatio regis": Bradon, fo. 179; Pollock and Maitland, II, 50. 
 
 ^ Pollock and Maitland, II, 48. 
 
 ' "ExpHcare," "explicitare," to carry out to the very end, "explectare," 
 "espleitier," "espleit": "Et. de St. Louis," I, 92 (" exploit ables au baron"); 
 Godefroy, see "esploit" ("fruiz et espleiz"). Cf. Beaumanoir, 29. ("Rentes, 
 
 331
 
 § 269] OWNERSHIP AND REAL RIGHTS [CflAP. II 
 
 exact nothing more than this in order to allow a man to prevail in 
 the "querela" (excepting, no doubt, possession "animo domini").^ 
 It is the same thing, according to the "Summa," if the jury is not 
 agreed on the "modus" or the "qualitas saisinse";^ but, if the 
 inquest reveals by what title the possession is held ("qualitas sai- 
 sini"), in what manner the possession was acquired ("modus"), 
 the "Summa" demands that the utmost importance be attached 
 to these two points. It refused the possessory action: 1st, to the 
 man who holds for another; ^ 2d, to the man whose possession 
 is tainted with the defects of violence or surreptitiousness, that 
 is to say, which is acquired by force or from an unfaithful cus- 
 todian in the absence of the owner. The former has no personal 
 right and must give way to the man for whose benefit he detains. 
 The latter does not deserve to be protected : " omnis violenta vel 
 furtiva possessio detestanda." ^ Against him whom he has de- 
 
 loyers et esplois.") Cf. "exploiter" in speaking of the bailiflf. If the matter 
 is one concerning a piece of land, the jury takes into consideration who it was 
 that gathered the harvest in the month of August preceding the disseisin (in the 
 month of August of the year previous to that if the harvest is gathered every 
 two years). — With respect to other property they regard in the same way the 
 period when the income is collected: "Summa," 93, 7. — On the "querela de 
 antecessoris saisina," cj. "T. A. C," 21, 1 and 2; 74; "Summa," 98, 1; 2, 34, 1; 
 Waryik., II, 73. They find out whether the deceased was seised upon the day 
 of his death, — that is to say, if he gathered the harvest in the preceding 
 August. 
 
 1 Writ of novel disseisin (73, 1): "dissaisivit injuste et sine ordine judi- 
 ciario." "Injuste" means irregularly, without the intervention of the law. 
 Cf. Pollock and Maitland, II, 47, n. 4; 51. But it is possible that afterwards 
 the following reasoning was made use of: only he who is seised "juste" can 
 be disseised "injuste"; therefore, we must find out whether the seisin of the 
 man despoiled was "justa"; if it were not, then the "verus dominus" has a 
 right to take possession of the thing. This interpretation is contrary to the 
 "T. A. C," 22, 1: "nullusausus sit aliquem de aliqua re devestire sine ordine 
 judiciario." Cf. Canon law. — Guilhiermoz, "Enquetes," p. 286 ("indebite"). 
 
 2 "Summa," 95, 10; Delisle, no. 390, in 1226. 
 
 2 "T. A. C," 78, 3. "Possessio fiodalis" alone is protected, and the word 
 "feodum" in the old Norman documents applies both to the copyhold and the 
 fief. The "querela" belongs to the lord, to the vassal, to the copyholder, but 
 not to the farm tenant, to the officers, to withholders by virtue of a lease, a 
 loan, or even a pledge: "Summa," 95, 10 and 11; 98, 7; Glanville, 13, 28; 
 "Fleta," 4, 3, 1 and 4. Conversely, nobody can begin the "querela" against 
 a person who is in possession for another; the owner will have another means 
 of action against possessors at will, that of the "districtio" or distraint upon 
 a pledge. — English law: the "querela" is only accorded because of a frank 
 tenement and to a man who has possession "in dominico," and not as a farm 
 tenant or pledgee; but Bracton, 7, 1, 36, gives the farm tenant in place of the 
 "querela" a "breve ad recuperandam firmam" against the owner who puts 
 him out of possession before the termination of a lease, and against third 
 parties. The "vilanus" cannot bring the "querela": "Fleta," 4, 3, 1 and 4; 
 Britton, 43. 
 
 * "Summa," 95, 11; "Arr. Scacc," after Warnk., II, 50; "Etabl.," 91. 
 They do not go so far, however, as to require a title on the part of the possessor. 
 He can hold the land without force and without any concealment, — for ex- 
 
 332
 
 Topic 4] POSSESSION [§ 270 
 
 spoiled, the possessor by force or by surreptitiousness is not given 
 the "querela," on principle; the despoiled can thus take back his 
 property without running any risk.^ At the same time, it seems 
 that at the expiration of a year and a day the defects of violence 
 and surreptitiousness are wiped out; the "Summa" does not say 
 so, but the general rules which it gives with regard to the year 
 and a day allow of assuming this.^ Thus the "querela" ceases for 
 the despoiled and passes to the despoiler, who can even exercise 
 it against the "verus dominus." Even before the expiration of a 
 year and a day, the English law, at least, grants it to the pos- 
 sessor by force or surreptitiousness as against third parties; the 
 "statu quo," although due to violence, is maintained in the public 
 interest as against him who has no superior right.^ Thus seisin 
 appears in this conception as a relative right, which can be set 
 up against certain people and cannot be set up against others; 
 this same relative character is met with in English ownership 
 and in the theory of estates. 
 
 § 270. Assize of " Mort D'Ancestor " and Writs of Entry. — The 
 English law is complicated by a particular class of possessory ac- 
 tions, "writs of entry." * The assize of novel disseisin assumes 
 that the dispossessor and the dispossessed are both alive; as soon 
 as one of them dies it can no longer be brought. In order to 
 remedy this inconvenience, and not to oblige a recourse to be had 
 at once to the "brevia de recto," there were invented for the heirs 
 of the dispossessed the assize of " mort d'ancestor " (which also 
 belongs to Norman law, and which is little subsequent in date to 
 the assize of novel disseisin),^ and against the assigns of the dis- 
 
 ample, when he has received it from a third party to whom the "custoa terras" 
 had transferred it. Tenure at will is an absolute and ineffaceable defect; is 
 it the same with force and concealment? Are not these relative defects? 
 Cf. Bracton, 4, 1, 18 and 28. — In the "querela de antecessoris saisina" the 
 "recognitio" affects the title of the heir, his right to the inheritance: 
 "Summa," 99, 3; Delisle, "Jug. de I'Echiq.." nos. 189, 204, 724. 
 
 1 "Summa," 95, 12, 13 ("vi et violentia*')- — Cf. Bracton, fo. 2106; "Inst. 
 Just.," 4, 15, 6; Pollock and Maitland, II, 52. 
 
 2 Ed. TardiJ, Table, see "Annus." 
 
 3 Pollock and Maitland, II, 49; Bracton, 4, 1, 27; cf. 2, 5, 2; 2, 18, 2; 2, 25, 1; 
 see also: 4, 1, 1, and 3, 2, 13; Azon, "Sum. in Cod. de acq. poss.," 7 and 8. 
 
 ^ Pollock and Maitland, II, 62: as to the possessory character of these writs 
 (which is disputed); cf. Littleton, 385 et seq. — In time the assize of novel dis- 
 seisin fell into disuse and a variant of the writ of entry, the writ in the quibus, 
 took its place: Pollock and Maitland, II, 79: 2. 
 
 ^ The Assize of " Mort d' Ancestor" (Pollock and Maitland, I, 126) is accorded 
 to the nearest heir for the reclaiming of the seisin of the deceased at the 
 moment of his death against whoever may be opposed to his having it: 
 Glanville, 13, 3; Bracton, fo. 2536. The heir who has not taken possession of 
 the property of the deceased cannot be disseised, properly speaking; he cannot 
 
 333
 
 § 270] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 possessor, the writs of entry "sur disseisin" (1205). The writs of 
 entry rest upon the command to restore, by which the procedure 
 of the petitory action for title starts ("Praecipe quod reddat"). 
 The prehminary point to this action is that the defendant must not 
 have acquired excepting by such a method (a method which does 
 not constitute a regular title; for example, he holds the land of a 
 dispossessor). The number of writs of entry increased until the 
 time of Bracton, so as fully to assure the active and passive trans- 
 mission of the protection of possession, with this restriction, how- 
 ever, that the third transfer could not be exceeded; after this the 
 complainant was obliged to- have recourse to the "brevia de recto" 
 (writ of right). 
 
 § 271. The raising of the Hue and Cry ("Haro")^ offers a striking 
 example of the transformation of a form of criminal procedure 
 into a possessory action.^ This was originally merely an old 
 Germanic custom consisting in a call for assistance to the neigh- 
 bors raised by the victim of a wrong at the very time when this 
 latter was being committed.^ Whoever heard it must run to his 
 
 have the assize of novel disseisin ; for him has been created the assize of " mort 
 d'ancestor": Bracton, fo. 273. This action at first is only given to the nearest 
 relatives, — sons, brothers, nephews; such was the strictness of the law that 
 it was necessary to create special writs for more distant relatives ("de avo, de 
 consanguinitate")- It is only after 1259 that it carries with it a condemnation 
 to pay damages. The "abator" ("ablator") could not take possession of the 
 property in the inheritance before the funeral took place, and Bracton allows 
 the heir a delay of one year within which to take it away from him : Bracton, 
 fo. 160 6; Britton, I, 288; II, 2. Thus self-help was often sufficient for the heir. 
 The taking of possession was facilitated for him ("sola pedis posicio seisinam 
 contulit"), as well as the acquiring of a personal seisin. The assize is given 
 against every withholder of the inherited property, the "abator" of early 
 times or his assigns ; but it cannot be made use of between two claimants to the 
 inheritance: Glanville, 13, 11; Bracton, fo. 266; Britton, II, 115. CJ. Pollock 
 and Maitland, II, 58; Houard, " Anc. Lois des Frang.," I, 539. 
 
 ^ Bibl. in Glasson, " N. R. H.," 1882, 396. Let us only cite: Tanneguy-Sorin, 
 "De Cuiritatione Normannorum quam Haro appellant," 1567; see Ragueau, 
 Merlin, Houard, Gouillard, "Soc. Antiq. de Norm.," XXVIII, 1872; Tiphaigne, 
 "Et. s. la CI. de Haro" 1880; Del Vecchio, "Sul. Signif. d. grido: Hare. n. 
 fiere de Siampagna," 1899 ("Arch. Stol. Ital.," V, t. 24). 
 
 2 Etymology: "hara" equals here ("ici," old high German): see Diez. 
 Forms, "haro," "harou," "hare," "hareu." As to the imaginary etymology, 
 "ha," "rou," ("help! RoUo"), c/.GZasson, 517. There is no connection between 
 "haro" and "harahus" (a sacred object) of the law of the Ripuarians, "hrao- 
 pant" ("corpus," "vinculum") of the law of the Bavarians, and "hream" 
 (a cry, cf. "ruhm") of the Anglo-Saxon laws. Cf. the Latin "hue," from 
 whence "huccus" ("Form. Turon," 30), "hucher." The etymology of "huz," 
 "hue," is uncertain ("huz" equals "foras"? interjection?): Du Cange, see 
 "Huesium." — As to the other cries which are made use of, cf. Brunner, 
 "D.R.G.," II, 482. 
 
 ^ This cry may be uttered also under other circumstances. On the occasion 
 of the entry of Philip-Augustus into Normandy, the women cried "harou"; 
 the heralds did the same in order to quiet the tumult. The fairs in Champagne 
 were opened by the cry, "H^rel" 
 
 334
 
 Topic 4] POSSESSION [§ 271 
 
 help and assist him by force; ^ the malefactor taken in a flagrant 
 offense was judged or, rather lynched, by an improvised tribunal 
 composed of the neighbors. In time, customs became milder and 
 putting to death was only authorized as an exception. Thus the 
 Frankish laws show us this malefactor bound and carried at once 
 before the magistrate in order to be sentenced. He was only 
 killed in case he offered resistance.^ 
 
 In the same way in the Norman law, the procedure in a case of 
 flagrant offense is opened by raising the hue and cry.^ "He who 
 has raised the cry is placed ' ipso facto ' under the protection of the 
 duke of Normandy or the lord justice,^ and whoever took the lib- 
 erty of ill-treating him would be guilty of having infringed this 
 protection. As to the delinquent, the fact of the hue and cry 
 having been raised against him makes him a prisoner of the duke 
 by right." ^ If he flees, he can be hotly pursued and brought back 
 to the place where the hue and cry was raised. The hue and cry 
 was only allowed, according to the "Grand Coutumier de Nor- 
 mandie," for a criminal cause (fire, larceny, homicide, etc.); "he 
 w'ho cries 'haro' without apparent injury must pay a fine to the 
 prince for so doing." ^ This is the "haro de playe et de sang" 
 
 1 "L. Franc. Cham.," 37; "Convent. Silvac," 853, c. 5 ("Capit.," II, 272); 
 "Cnut," II, 29; Brunner, op. cit., 227. The same obligation in India and 
 among the Slavs. C/. "Summa Norm.," 54. Persons who respond to the cry 
 of "haro" must serve as witnesses if need be. 
 
 2 Other systems, to-day abandoned, as to the origin of the hue and cry. 
 To-day they are only interesting as being curious. One may find them in 
 Glasson, p. 429 (for example, the acclamation of Rollo, whom they hailed 
 with the words, "Ha Rou!"). Cf. Gouillard, op. cit., and "France Judic," VI 
 (creation of the capitularies), and especially Brunner, loc cit. — The "haro" 
 is not peculiar to the Norman law: Beaumanoir, 57, 12; 67, 22; 69, 16; 52, 16; 
 31, 5 and 14; "Jostice," 19, 44, 14; 47, 7; "T. A. C, Bret.," 144, etseq.; Isam- 
 bert, I, 650; "Ord.," I, 312. Examples in "Reg. Crim. de St. Martin-des- 
 Champs," p. 115, 141, 187, etc. As to the procedure in the case of a flagrant 
 offense, cf. Glasson, pp. 529; Esmein, "Hist, de la Proced. Crim.," 1880; 
 "Sachsenspiegel," 1, 51, 2; 3, 54, 4; "Schwabenspiegel," 298. — England, cj. 
 Blackstone, IV. 21. 
 
 3 In Jersey the complainant kneels down and says in the presence of two 
 witnesses, "Haro, haro, haro, a I'aide, mon prince; on mo fait tort" ("Help, 
 my lord; I am being injured "). The owner of a piece of land who wished to 
 cry "haro" against the Jersey Railway Company had great difficulty, because 
 of his "embonpoint," in kneeling down in order to fulfill the legal formalities. 
 
 * "Summa," 54; Glnsso7i, p. 407: .since the reuniting of Normandy and 
 France under Philip Augustus the high lords justices have the same jurisdiction 
 as the duke. 
 
 * The "haro" allowed one to bring clericals before the secular tribunals 
 (flagrant offense), which were the only ones authorized to inflict the punish- 
 ment of death or mutilation. 
 
 * Not only was the victim of the tort, but also his relatives, and even any- 
 body, authorized to cry "haro " : thus the raising of the hue and cry in this way 
 came to be a sort of popular action. 
 
 335
 
 § 271] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 (wounding). It became rather rare as soon as police protection 
 was better assured. "The right given to each individual to ap- 
 point himself a public officer to compel his neighbor to follow him 
 and to help him by force, which was very useful in a society in 
 process of formation, where the person and the possessions of in- 
 dividuals were each day in real danger, is no longer as necessary 
 as soon as there exists a strong enough power to make the public 
 peace respected, and it can become a source of abuse by placing the 
 property of the individual at the mercy of the first comer." The 
 officers charged with police duty " perhaps maintain that they alone 
 should have the right of proceeding with arrests in the case of a 
 crime; and, in fact, it seldom happens otherwise." 
 
 The practice of the hue and cry persisted, on the other hand, in 
 civil matters, where it had been introduced at a very early time.^ 
 When a man wishes "suddenly to disseise and dispossess an- 
 other, the latter cannot at that very minute have recourse to 
 justice; he has no officer at hand to put an end to the enterprise 
 which will perhaps cause him an irremediable injury; he cries 
 'haro,' and by this fact alone immediately puts an end to the un- 
 dertaking of his adversary." In fact, should the latter have good 
 right on his side, still for the simple reason that he did not obey 
 the "haro," he would be subjected to a fine and have to re-estab- 
 lish the "statu quo"; only after that could his pretensions be sub- 
 mitted to the tribunals. In the case where he submitted to the 
 summons resulting from the "haro," ^ the matter was carried 
 without delay ^ before the court; the two parties gave surety, or, 
 if they did not do this, had to stay in prison,* after which the prop- 
 
 * To put it better, civil and penal matters were not very well distinguished 
 formerly. It was an offense to disturb somebody in his possession as well as 
 to attack his person. — In the "N. C, Norm.," they had recourse as much as 
 possible to the services of a sergeant; it was he who cried "haro." They 
 could proceed with it within a very short delay, ordinarily 24 hours. Women, 
 minors and other persons under a disability could have recourse to it. 
 
 2 Obligation to cease from every undertaking and summons at law at the 
 same time. 
 
 ' Delay of a year in the sixteenth century within which to prosecute one's 
 adversary at law, and the proceedings could not be discontinued for more 
 than a year. 
 
 ^ Both parties had to stay in prison in the Middle Ages in criminal matters 
 when there was a formal accusation; thus they found themselves in the same 
 position, both liable, — one to a penalty for the offense if he were found guilty, 
 the other to a retaliation if the accusation had been unfounded. These old 
 forms of procedure lasted as long as there was not any public prosecutor (see in 
 Glasson, p. 424, quite recent examples, in England foreigners imprisoned for 
 hapng lodged a complaint against a thief, whereas the thief remained out on 
 bail; the absence of a public prosecutor perpetuated the old customs in this 
 country). As soon as people were satisfied with a mere denunciation the ac- 
 
 336
 
 Topic 4] POSSESSION [§ 272 
 
 erty was sequestrated.^ The final sentence condemns the loser to 
 pay damages, and to a discretionary penalty: which meant that 
 the procedure of "haro" was not without its dangers.^ But its ad- 
 vantages had made it popular; it assured to everybody prompt 
 and economical justice. Practice endeavored to extend it; the 
 "haro" could be raised every time that there was an immediate 
 necessity for protecting the person or the possessions against acts 
 of violence, simply because there was danger in delay .^ It was 
 even abused by an endeavor to make a means of extortion of it,^ 
 and the Parliament had to counteract this tendency. It is to be 
 noticed that the raising of the hue and cry only served to preserve 
 possession. He who had lost possession could only recover it by 
 the assistance of a writ of novel disseisin.^ The raising of the hue 
 and cry is still in use in the Anglo-Norman Islands.^ 
 
 § 272. Possessory Actions in the French Customary Law "^ are, 
 as in Normandy, created by pubhc authority^ ("Amtsrecht"), 
 which is inspired by the idea of remedying the same evils and 
 
 cusation was abandoned and the victim of the offense thus avoided being 
 imprisoned. — Bail or imprisonment are customs of the old procedure which 
 have lasted in relation to the raising of the hue and cry in order to prevent the 
 abuse of this proceeding by individuals: Esmein, "Hist, de la Proced. Crim.," 
 1880. 
 
 1 However, in matters of ecclesiastical benefices ("Cout. de Norm.," 54, 
 55), possession and enjoyment were put up for sale by the parties while the 
 proceeding lasted, because it would have been necessary to give the sequestra- 
 tor the canonic appointment by means of the authority of the Church, — a 
 thing which would often have been impossible, and would always have been 
 rather impractical. 
 
 2 According to the "Cout. de Norm.," 54, 55, the "haro" is apphcable to 
 movables as well as inheritances. 
 
 ' Cf. French procedure by means of a reference. 
 
 * Gkisson, op. cit., p. 417 (Order of Jan. 22, 1761). The "haro" was not 
 allowed against those who were collecting dues of the king ("Ord." 1680 on 
 Aids; Order of the Council of May 15, 1725); but it was possible outside of 
 these cases to raise it against public officers as well as against individuals, at 
 least in cases where they abused their powers. 
 
 * Glasson, op. cit., pp. 411, 419. Thus it became necessary in this last case 
 to begin by notifying his adversary; the extrajudicial proceeding of the 
 "haro" was more simple and more effective. 
 
 * Details in Glasson, p. 540 (bibl. on the law which applies to it). — This 
 learned man beUeves that in France the "haro" would be of some use in 
 civil matters because a reference does not prevent undertakings on the part 
 of others and it is not applied in matters deahng with possession; in criminal 
 matters pursuit and arrest brought about by public outcry still exist. 
 
 7 P. de Fontaines, c. 32; "Ohm," I, 230; p. 338; A. TardiJ, "La Proc6d. 
 aux XHP et XIV s.," p. 35; "Ac. L6g. Toulouse," I, 24, 69. 
 
 * The origin of the actions for the recovery of possession is neither in the 
 Roman law (De Parieu, p. 82, etc.), nor in the Norman law (the French law 
 is like it, but is not identical with it), nor in the Feudal law and the splitting 
 up of ownership (the lord keeping the ownership, the holder only having the 
 seisin; it is certain that vassals and copyholders can bring actions for real 
 property, and lords actions for possession, Beaumanoir. 32, 17). 
 
 337
 
 § 272] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 based upon the same police powers and the same power of "in- 
 quisitio" of the king.^ The procedure is not identical. In France 
 the law was developed in a more liberal manner, without being 
 subjected to such an excessive formalism, but the principal fun- 
 damental rules in the Norman legislation are found in the French 
 Customs during the thirteenth century. It is by means of an in- 
 quest that the proceedings are carried on : the bailiff to whom the 
 complaint is made goes to the locality with aldermen and other 
 " viri idonei," ascertains the fact of the disseisin, and, if there is oc- 
 casion to do so, causes the one who has suffered the injury to be 
 put back in possession.^ Disseisin, which is the preliminary con- 
 dition of the possessory action, is understood to apply to dispos- 
 session and disturbance;^ or, rather, dispossession is looked upon 
 simply as a disturbance, for, in considering himself as being dis- 
 turbed in his possession, the man who is disseised finds that he is 
 preserving the advantages which possession confers upon him. 
 It is an indispensable condition that action be taken within a 
 year of the disseisin, otherwise the latter would not be recent * 
 ("nouvelle"). After the establishment of the fact of the recent 
 disseisin, the object of the inquest was to determine whether the 
 complainant was in possession at the time of the "no vitas"; this 
 came to the same thing as inquiring whether he then was culti- 
 vating the land and had the enjoyment of it.^ It was not rigor- 
 ously demanded that the possession should have lasted a year and 
 a day; ^ but defects of uncertainty,^ or violence and clandestine- 
 
 ^ Also the actions for possession are at first included within the category 
 of cases under the jurisdiction of the crown. 
 
 2 "Olim," II, 212, 30. — Post, "Procedure." 
 
 3 "Olim," I, 930, 19; II, 232, 18 ("perturbatio seu dessaisina"); II, 58, 
 15 ("dessaisina" equals "impedimentum"); II, 61, 3 ("forcia" equals "des- 
 saisina"), etc. "Ass. de J^rus.," I, p. 585: disseisin and force (in the latter 
 case one is at the mercy of the lord). 
 
 * P. de Fontaines, 14, 4; "Ohm," I, 230, 2 (within a year of the death of 
 the deceased); II, 232, 18; Beaumanoir, 32, 9, 25. In the "Ass. de J^rus.," 
 instead of the delay of one year we find the old Frankish delay of 40 days. 
 
 6 "Olim," I, 709, 74; II, 279, 1. — C/. "Hereditary Seism": "Ohm," I, 
 23, 4; I, 98, 14; II, 864, 29. 
 
 « "Ohm," I, 231, in 1266: not one year; I, 398, in 1272: "fere per annum." 
 The "Ord." of Philip Augustus dealing with the Crusades, Art. XI, caused 
 Lauri^re to believe that the complaint based upon yearly possession had been 
 in existence from the beginning of the thirteenth century. It is probable that 
 this referred to the annual tenure, which we shall deal with later on; as a matter 
 of fact, the action contemplated by Art. XI is brought " coram dominis feodo- 
 rum et censivarum," and not before the king. 
 
 ' The lord is given the possessory action when the serfs are disturbed: 
 Faber, "Inst, de Int. Ret.," p. 6; Masuer, 11, 22. Beaumanoir refuses the 
 possessory action to the tenant against the lord, 32, 8, but concedes it to the 
 farm tenant against the lessor, 32, 13 (id., "Gr. Cout. de Fr,," p. 248), because 
 
 338
 
 Topic 4] POSSESSION [§ 273 
 
 ness, precluded the possessory action. However, upon this last 
 point a reservation must be made. An action which Beaumanoir 
 describes as of recent disseisin, which he could have called an action 
 "spolii," or for recovery of possession, was allowed even to the 
 man who only* had a defective seisin which was of short duration; 
 he should be "reseised," says this jurisconsult, "before anything 
 else is done," excepting to permit his adversary, if he has a year's 
 possession, to take back the thing from him by means of a com- 
 plaint.^ 
 
 § 273. Beaumanoir speaks repeatedly of a royal ordinance 
 which, as far as disseisin is concerned, would have established a 
 "new means of executing justice." It is hard to tell just what 
 royal decree he is here alluding to.^ Whichever one it may be, it 
 does not seem to have modified the theory of possession, for the 
 explanations of this jurisconsult agree with the decisions con- 
 tained in the Register of Parliament; at the same time, whereas 
 the Registers of Parliament are not very precise on this subject, 
 he clearly demands the possession of a year and a day; ^ further- 
 
 the mere lease does not imply any feudal relation. With regard to the rule 
 that the subject can bring no complaint against his lord, cf. Masuer, 11, 16, 
 68. The king never pleads "dispossessed": Loysel, 759, 878. 
 
 1 Beaumanoir, 32, 23 {cf. 15). The recovery of possession serves as a 
 preliminary to the complaint (example: A disseises B, who in his turn dis- 
 possesses A; A has himself reseised by B; and then B, who has possession for 
 a year, takes back the thing by means of the complaint); Bruns, p. 361. Cf. 
 Aluzet, p. 155; De Parieu, p. 115; Heusler, II, 65. — Cf. "Olim," I, 316, no. 3; 
 "Et. de St. Louis," I, 96. On the "exceptio spolii," cf. P. de Fontaines, pp. 271, 
 and 280, n. 3. 
 
 2 The Ordinance has been lost track of. It is neither the Ordinance which 
 abolishes the duel at law and substitutes therefor the inquest nor the regulat- 
 ing Order of Jan. 7, 1278, giving jurisdiction to the bailiffs rather than to 
 parliament because of the urgent nature of cases for the recovery of posses- 
 sion. {Viollet, "Et. de St. Louis," I, 340); "Ord.," II, 542; Langlois, "Phil- 
 ippe III," 231. According to the latter, the Ordinance which was lost was 
 concerned: (A) with novel disseisins: (a) procedure, delays of adjournment 
 (15 days for gentlemen, 1 day for commoners; no revocation, but a day for 
 view) ; (6) upholding the man who has the last peaceable seisin of a year and 
 a day; (c) a fine of 60 sous for the defeated party; (d) he who fails when re- 
 claiming the seisin should within a year and a day bring the action for real 
 property under penalty of losing all rights over the property (on this last 
 point, however, cf. Chnmpeaux, p. 426); (B) counter pledging {Beaumanoir, 32, 
 28; cf. "Olim," II, 178, nos. 23, 24), which it prohibited (the gentleman who 
 had something taken away from him did not limit himself to taking back this 
 thing from the man who had despoiled him; he took from the latter every- 
 thing that he could). 
 
 ' Beaumanoir, 32, 2, 3, 7 (peaceable possession for a vear and a day before 
 the "dejectio"). Is not the delay of a year and a day only the abstract 
 regulating of the concrete period of time adopted by the Norman law? Dis- 
 seisin ordinarily taking place in the month of August, — that is to say, at the 
 time of the harvest, — inquiry is made as to who gathered the harvest the 
 previous August; this is pretty nearly the same thing as demanding a year of 
 
 339
 
 § 273] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 more, it seems that he admits of three kinds of possessory actions 
 instead of one: "claims" ("clamor") or "complaints" of force, 
 novel disseisin, and recent disturbance; but these " claims " undergo 
 the same procedure, and are accorded under identical conditions; 
 between them there is no difference excepting one of form; the 
 innovation, if there is any, is an entirely superficial one.^ 
 
 § 274. Fourteenth and Fifteenth Centuries.^ — The posses- 
 sory actions are classified in the following way, as they gradually 
 approach the petitory action for title: 1st, recovery of possession; 
 2d, complaint in case of seisin and trespass ("casus novitatis"); 
 3d, an action of simple seisin.^ This last alone constitutes an in- 
 novation. In every other respect it was rather a regulation or 
 development of already existing rules. — Recovery of possession.* 
 The man in possession who is disturbed or despoiled is always 
 authorized to repel force by force; but he should act "in conti- 
 nenti"; once he has been definitely dispossessed, he is forbidden to 
 reinstate himself in possession by means of violence.^ The least 
 he is accorded, in imitation of the Romano-canon law, is an 
 action of restitution, the action for recovery of possession.^ As this 
 
 possession. "Accessio Possessionum," "Gr. Cout. de Fr.," pp. 231, 505, 748; 
 Loysel, 749; Arr. du Pari, of 1373 cited by H. de Pansey, "Comp6t. des Juges 
 de Paix," ch. 41. Cf. De Parieu, p. 116; Heusler, p. 407; "Cout. d'Anjou" 
 of 1411, Art. 292 (Beautemps-Beaupre, I, 566). 
 
 1 Tiie distinction is made in the regulating Order of 1278. Cf. "Et. de St. 
 Louis," I, 69. J. d'Ibelin, 64, contrasts force with disseisin: "Cout. de 
 Touraine et d'Anjou": if there be disseisin or force there is occasion for the 
 procedure of pledging or counter pledging: in case of a mere disturbance the 
 object in litigation is sequestrated in order to prevent acts of violence without 
 there being any need of giving a pledge: Ragueau, "Gloss.," see "Appl^ge- 
 ment." But the procedure of the " Appl^gement " disappeared at an early 
 time from the Customary common law. 
 
 2 A. Tardif, "La Procedure aux Xlir et XIV^ s.," p. 35; H. de Pansey. 
 "Comp^t. des Juges de Paix," c. 31 etseq., "Confer, des Coutumes de Gu^nois,'' 
 Table, see "Complainte," etc.; Rebujfe, "Tr. de Mat. Possess." 
 
 3 On the respective parts played by these actions, cf. Viollet, p. 584. 
 
 * Recovery of possession ("r^integrande"), that is to say, an action based 
 upon the Canon "Redintegranda"; a word which does not make its appear- 
 ance before the fourteenth century. See Godefroy. Under the name of 
 "actio spolii" it is admitted in Italy and in Germany, where there is a dispute 
 as to whether it belongs to the withholder ("Cod. Maxim. Bav.," II, 5, 11; 
 "Land. Pruss.," I, 7, 146), and whether it is given against a third-party pur- 
 chaser: "Et. de St. Louis," I, 65; II, 7; "T. A. C, Bret.," 259; Ragueau, see 
 "Gloss." 
 
 6 Beaumanoir, 32, 26; P. de Fontaines, p. 264. 
 
 8 "Charte de Roye,'^ 1183 ("Ord.," XI, 229); "Et. de St. Louis," II, 7. 
 Cf. P. de Fontaines; ^'Artois," 8, 1; "Ord.," 1256, 26; P. de Fontaines, 264. It 
 does not occupy a very important place in the Customs (perhaps because the 
 man despoiled prefers not to say that he is disseised): "Gr. Cout.," p. 2.39; 
 (reinstatement before anything else takes place): Beaumanoir, 32, 23. Cf. 
 Use of the safeguard: Masuer, U, 5; Gui Pape, q. 56, 418. 
 
 340
 
 Topic 4] POSSESSION [§ 274 
 
 action is intended to restrain acts of violence, it is allowed every 
 man who has possession, even to the thief (excepting that he will 
 afterwards be hanged).^ For the sole reason that one has been 
 disseised, one is given this right. No other condition is required.^ 
 But nothing prevents the man who is defeated in the action 
 for recovery of possession from getting back the thing by means of 
 the complaint; this happens often enough for one to be able to 
 look upon the action for recovery of possession as a procedure 
 preliininary to the complaint; it is to the latter what the com- 
 plaint is to the action for real property.^ The Romanists termed 
 it a prohibition " recuperandse possessionis clamor," whereas 
 the complaint would be the prohibition "retinendae possessionis 
 clamor";^ this is not absolutely accurate, because the complaint 
 serves at the same time for the recovery and for the retaining 
 of possession. In reality, it is less a possessory action than 
 a penal action directed against the despoiler,^ and having, as 
 
 1 Beaumanoir, loc. cit. The farm tenant can have it against the lessor 
 who expels him. But we do not think that one can say the same thing with 
 regard to the possessor "alieno nomine" as a general rule. The farm tenant 
 is in a special position, just as the pledgor; it is easy to understand that in a 
 period of violence a necessity to protect him by means of some action should 
 be made manifest: Masuer, XI, 49. On the other hand, the mere overseer, 
 the workman for wages, etc., who possesses something has no redress if it is 
 taken back from him. — With this exception, every withholder or possessor 
 has a right to the recovery of possession, whether he be in good or bad faith, 
 whether liis possession has lasted for a short or a long time; and he can even 
 oppose it to the true owner. Does it affect third-party purchasers or mere 
 despoilers? The canon law had made of it a real action. Ciijas (cited by 
 Ragiiemi) does not express himself on this point. The recovery of possession 
 applied to movables as well as immovables. The jurisconsults of the thirteenth 
 century interpreted the L. 14, D., "unde vi," as though it had spoken of 
 movables in general, and not merely of the tilings accessory to the piece of 
 land. 
 
 2 Must one have been disseised by force in order to have a right to the 
 recovery of possession? or is it sufficient if there has merely been a dispos- 
 session? And by this must we understand an absolute dispossession or a 
 mere disturbance? Cf. the interdict, "momentariie possessionis." Cujas 
 calls it recovery of possession: "Obs.," 19, 16. — Pasquier, "Inst.," 4, 8, dis- 
 tinguishes it, on the other hand, from the complaint in that it assumes force. 
 
 ^ Beaumanoir, loc. cit.; "Olim," I, 316, 3. In the action for the recovery 
 of possession a question which is a preliminary of the action for possession, 
 properly so called, is settled: it is determined who shall be the defendant in 
 the action for possession. Also this action has been compared with the 
 Italian "Summariissimum." Cf. "Gloss." by Ragueau; H. de Parisey, 
 "Comp6t.," ch. .50 and .52. 
 
 4 Bucherellus on the "Inst.," 4, 1.5; "Ord." of Charles VIII, 1498, Arts. 49 
 and ,58; of Francis I, 1.539, Art. 61 et seq.; Imbert, "Pratique," I, 17; "Inst, 
 for.," 17; Masuer, XI, 26; De Parieu, p. 133. 
 
 * The "Ord." of 1667, t. 18, in dealing at the same time with the complaint 
 and the action for recovery of possession, gave the impression that they were 
 not distinguished from each other. This is what Ferribre says, see "Rcint6- 
 grande": "the recovery of possession is not distinguished from the complaint; 
 
 341
 
 § 274] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 psnal actions ordinarily do, a short duration, — that of a year 
 and a day.^ 
 
 § 275. The Complaint in Cases of Seisin and Trespass ^ is sub- 
 stituted ^ for the "clamor dissaisinas" (or for the three "claims" 
 of disseisin, of force, and of disturbance, assuming that this dis- 
 tinction had a place in practice).'* It is given to the man who has 
 been in possession peacefully and publicly and in his own name 
 for a year and a day ^ before the disturbance or the dispossession; ^ 
 
 but it is included within the latter in the case where there has been despoiling 
 and not a mere disturbance . . . (the complainant) moves that he be restored 
 and reinstated ('reintegre') in his possession." He requires that the complain- 
 ant be in 'possession for a year, and in peaceable possession, etc. (H. de Pansey, 
 contra). The result of this doctrine taught by Ferriere was that in his time 
 there was no more thought of recovery of possession and it was not made use 
 of. Cf. Bourjon, II, p. 512; Merlin, "Rep.," see "Complainte." They said 
 that the recovery of possession — that is to say, reinstatement — could be 
 sued for civilly (complaint) or by an exceptional action (criminal); when one 
 had chosen the civil action it was no longer possible to proceed by means of the 
 criminal action, "Ord.," 1667, 18, 2. — Pothier, no. 84 (cf. 124), is as categorical 
 as Ferriere. Cf., however, Argou, I, p. 242; Pasquier, "Inst.," 48. — Cf. 
 Civil Code, 2060 (physical compulsion in case of recovery of possession). 
 Law of May 25, 1838, Art. 6. 
 
 1 From tliis there would also result the consequence that recovery of pos- 
 session is a personal action, whereas the complaint is a real action. The ques- 
 tion of knowing the nature of the recovery of possession is still unsettled, and 
 one asks if it is not subject to the same conditions as the complaint: Gar sonnet, 
 I, p. 592. 
 
 2 Our old authors distinguish between the complaint in matters of eccle- 
 siastical benefices, which had its own special rules, and the complaint in profane 
 matters: Guyot, see "Rep." 
 
 ' The "Gr. Cout.," p. 253, seems to attribute this simplification to Simon 
 de Bucy, President of the Parliament of Paris in 1358; he must have thought of 
 the case where there was trespass, — that is to say, omitted all mention of dis- 
 seisin, as we shall see later on. But the modification took place previous to 
 his time. (As we may infer from the "Stil. Pari.," which already deals with 
 the "casus novitatis.") Cf. Lauriere, "Ten. de 5 Ans," p. 82; "Cout. de 
 Paris," I, 257 (ed. 1777); "Paris," 96. 
 
 * "Touraine" (I, 23, "A.C."); "Poitou," 385; "Anjou," 168; "Maine," 
 188; "Bretagne," 27: the complaint is called procedure of pledging or counter- 
 pledging: Glasson, "N. R. H.," 1890, 167; Mortet, see "Gr. Encycl."; Ragueau, 
 see "Gloss." (the complainant gives surety or a pledge to reimburse his adver- 
 sary if the complaint has been erroneously brought. It is assumed that he 
 admits liimself to be disseised, or that it is an heir who has not yet taken pos- 
 session). This due course of law was applied to movables as well as immov- 
 ables. Unless there were a pledge-giving the thing was not sequestrated, which 
 was a different matter from the case of disseisin. In the common law this dif- 
 iGrGiiCG clisiir)i^!^G3(rG(l 
 
 6 "Stil. Pari," 18, 11 and 22; "Cout. Not.," 181; "Const, du Chat.," 53; 
 Loysel, 768; Aubert, p. 193. Joining of Possessions: Loysel, 745. The name of 
 seisin is reserved for the possession of a year and a day; from thence comes the 
 expression, "complaint in case of seisin": "Gr. Cout.," p. 232. Cf. "Arrest. 
 Querel. de Nov. Dissais.," 1496. 
 
 * Masuer, XI, 5, 26: the man who fears that he will be disturbed may ob- 
 tain from the judge protection, — that is to say, a prohibition for anybody to 
 disturb him or hinder him under a certain penalty (prohibition of simple ban). 
 Protection is accorded to the mere lessee or produce-sharing farmer (XI, 49). 
 
 342
 
 Topic 4] POSSESSION [§ 275 
 
 in this last case he is considered as not having ceased to be in 
 possession; also, he must be careful not to say that he is disseised; 
 this would be a contradiction in terms.^ The action can only be 
 brought within a year and a day after the disturbance.^ More- 
 over, the doctrine of the jurisconsults of the fourteenth and fif- 
 teenth centuries has mingled with it quite a good deal of Roman 
 law; for them the complaint is the "uti possidetis"^ prohibition 
 (so it is inapplicable to movables),^ it is a double action,^ it as- 
 sumes that possession has not been taken by force, clandestinely, 
 or by request; it is refused to the farm tenant because he has no 
 "jus in re," but a "jus ad rem." From these Roman formulae 
 practice deduced the following rules: the seisin is refused to the 
 possessor "alieno nomine" and the farm tenant himself;^ but 
 there is no need of a good title in order to have the seisin; ^ the 
 complaint is given not only against the despoiler, but against every 
 possessor, in good or bad faith; in other words, the action is 
 
 — Mere threats are not sufficient to allow of the complaint: "Gr. Gout.," 
 p. 238. 
 
 1 He who admits that he no longer has the seisin is taken at his word; he 
 finds himself reduced to the action for real property. On the other hand, in still 
 declaring himself to be in possession in spite of a "dejectio," he keeps the right 
 to bring the possessory action: P. de Fontaines, 21, 50; "Et. deSt. Louis," 2, 7 ; 
 "Anc. Us. d'Anjou," § 90, 107; "L. d. Droiz," 47, 74, 88, etc.; Beautnanoir, 44, 
 51; J. Faber, "Ad Inst.," "de Int.," § "Retin.," no. 13 ("teipsumexcluderes"); 
 "Stil. Pari.," 1, 18, 3; "Gr. Gout.," p. 247 (each party should declare himself 
 seised), 250; Loysel, 750. — P. de Fontaines points out the conflict which exists 
 between this rule and the current maxim, "One should not plead disseised," 
 
 — a common translation of the "exceptio spolii" of the canon law. It was 
 found in practice that it was an advantage to do away with the latter. Thus 
 is to be accounted for the fact that thenceforth there is no mention made of any 
 complaint of disseisin. Tardif, p. 38, thinks that the idea that possession is 
 kept "animo" was borrowed from the Roman law. 
 
 2 Desmares, 84. However, even after this delay the king may grant letters 
 of relief: "Gr. Gout.," p. 238. Forty days, according to the "Ass. de Jerus." 
 Cf. as to cases of absence and minority: "Summa Norm.," 2, 30, 34. 
 
 3 "Gr. Gout.," p. 232; "Et. de St. Louis," ed. Viollet, III, 369; cf. 1, 112, 
 338. — Prohibition "retinendse poss. c": this is an action based upon a mere 
 disturbance, whereas the recovery of possession assumed an absolute putting 
 out of possession. This opinion is as inaccurate as that of Pasquier, wliich is 
 that one has the complaint for dispossession without violence and the recovery 
 of possession for dispossession by force. To the contrary, cf. "Et. de St. 
 Louis," I, 69; Beaumanoir, c. 32; Beautemps-Beaupre, I, 274. 
 
 * "Gr. Gout.," p. 239; Masuer, XI, 15. Cf. Beaumanoir, 32, 15; 38, 2; 
 "Olim," I, 489; "Paris" 97. — Loysel, 754, 755, 756 (residuary inheritance 
 of movables, etc.); "Ord.," 1667, 18, 1. On the admission: Boutaric, I, 31; Im- 
 bert, "Prat.," I, 17. The complaint applies to incorporeal things: Masuer, 11, 
 18; Garsonnet, I, 372; Heusler, "Gew.," p. 278. 
 
 5 " Gr. Gout.," p. 247; " Stil. Pari.," 18, 3, 8. Each one says that he has been 
 disturbed. 
 
 6 "Gr. Gout.," pp. 231, 232, 248, 256; cf. p. 195; "StU. Pari.," 18, 23, 24; 
 Loysel, 749; Pasquier, "Inst.," p. 768. 
 
 ^ "Gr. Gout.," p. 232. 
 
 343
 
 § 275] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 real.^ This transformation of the "clamor dissaisinse " into a 
 real action, which is contrary to the Roman precedents, is 
 to be accounted for in that it rested upon a year's possession, 
 which was not defective ; 2 it is an ownership on a small 
 scale; it is reputed lawful in itself, says the "Grand Coutumier 
 de France." 
 
 § 276. The Procedure of the Complaint ^ for a long time was 
 opened by obtaining letters from the king (analogous to the 
 Norman writ) ; ^ it was summary (no periods of notice, view, ad- 
 vice, etc.),^ at least with respect to the action for petitory title, 
 but, little by little, it became unencumbered with incidents (Or- 
 
 1 "Gr. Cout.," p. 494; all real actions are based upon recent disturbance 
 of seisin or on previously existing impediments (allusion to the action of simple 
 seisin) or they are proprietary actions: Boutaric, II, 27; Pasquier, "Inst.," 
 p. 768. Cf., however, to the contrary, Pothier, "Int. a la Cout. d'Orleans," 
 no. 118 (personal actions springing out of a tort). 
 
 2 Cf., however, "Stil. Pari.," 18, 23: "reus dicat, non potes dicere te saisi- 
 tum quia me de possessione per violentiam dejecisti." It seems to result from 
 this that violence was a relative defect. Nor is it a perpetual defect, any 
 more than is clandestineness; peaceful and public possession for a year, what- 
 ever its origin may be, gives one a right to the complaint. 
 
 3 Formula: "Gr. Cout.," pp. 495, 505, 513; "L. d. Droiz," 739, 742; Boutaric, 
 I, 40 and 77; "Paris," I, 256, 268; Warnkoenig, II, 319; Varin, "Arch. leg. de 
 Reims," I, 794. — As to the procedure, cf. "Stil. Pari.," 18; "Ord.," 1347 
 (II, 266); Isamh&rt, IV, 689, 535; Auher, ('Hist, du Pari, de Paris, 1250-1515," 
 1894, II, p. 192. 
 
 ^ As to this procedure, cf. Schwalbach, p. 134. The procedure in the Parlia- 
 ment of Flanders in 1789 still kept many of the characteristics of the old law: 
 see Guyot. Royal letters delivered in Parliament and containing a command 
 for the bailiff to give the property back, or, if he were resisted, to forcibly 
 take possession of it. A sergeant was dispatched by the bailiff to summon the 
 parties to come to the locahty; "ad veutam," in order to view the property in 
 litigation (coming of the judge, coming to this place). Opposition by the de- 
 fendant. The property was then sequestrated: "Gr. Cout.," pp. 235, 240. 
 The first defect appearing causes one to lose the action of trespass. — This 
 procedure fell into disuse; instead of recovery by means of the complaint one 
 proceeded by the mere adjournment. "Gr. Cout. de Fr.," p. 235; there were 
 two methods, — complaint and mere adjournment (comparison) : Masuer, I, 
 34 {id., 1600); XI, 47. Cf. Lauriere, on Lotjsel, 739; ImbeH, "Inst, for.," I.— 
 It was no doubt the making use of the complaint that carried with it the pay- 
 ment of a fine: Loysel, 753 (and citations). 
 
 ^ In order to proceed more rapidly and not out of fear that the year and a 
 day granted one within which to act might have expired: "Stil. Pari.," 10, 3 
 and 4; 18, 18; "Gr. Cout.," p. 235; Boutaric, p. 195; "Stil. Pari.," 18, 20; 12, 
 19 and 30. The defendant "plaide a toutes fins," — that is to say, sets forth 
 all his defences at once: Manner, XI, 37. The "Style des Req. du Palais," 
 ch. 14, outlines this procedure : Only one gi\'ing of notice within a week after 
 the order for examination of the facts at issue, one week to hear witnesses and 
 pronounce a decree of provisional possession, one week to pass upon the facts, 
 etc. The rapidity of the progress of this procedure is entirely relative. Its 
 delays account for the importance of the decree of provisional possession. 
 On the other hand, it is not without some formalism ; if a man says that he is 
 disseised he gives up all right to the complaint; if he simply says that he is 
 hindered in his seisin, the defendant does not have to reply: "Gr. Cout.," 
 pp. 245, 247; "Stil. Pari.," 18, 3 and 17, 27; Desmares, 300. 
 
 344
 
 Topic 4] POSSESSION [§ 276 
 
 dinance of 1347: "lites maxime breves efficiuntur immortales"). 
 The property in litigation was first placed in the hand of the king 
 (" ad manum regis positum," in sequestration) so as to prevent the 
 parties getting hold of it, and to avoid the doing of acts by the 
 defendant which would be prejudicial to the demandant who 
 should win his cause.^ The judges, however, had the power of 
 confiding ("recredentia," provisional possession) the property to 
 one of the parties, provided surety were given.^ Little by little, a 
 fixed judicial law came to be established, exact rules covering 
 the case in which provisional possession ought to be granted or 
 refused; ^ thus it was adjudged to the party who invoked the com- 
 mon law and not a privilege, for the party who presented a written 
 title, etc.^ From the very beginning of the proceeding it was not a 
 rare thing for the demandant thus to recover by way of provisional 
 title the possession which he had lost. The possessory proceeding 
 became divided: ^ 1st. Into provisional possession, a preliminary 
 stage which was in reality short and summary,^ and which thereby 
 acquired a special importance and passed almost to the rank of an 
 
 ^ Already in the Norman law: "Gr. Gout, de Fr.," p. 240: "ne partes veniant 
 ad arma"; Lauriere, on Loysel, 768, 769; Masuer, XI, 17; Fontanon, on Masuer, 
 ed. 1660, p. 204, maintains that the use of sequestration at the beginning of 
 the procedure was done away with; it could no longer take place excepting with 
 full information. 
 
 ^ A request "ut manus regis amoveatur" is left to the decision of the judge 
 in the beginning: "Et. de St. Louis," II, 5 and 6; "Cout. Not.," 123; Desmares, 
 3; "Olim," I, 255, 11; Ragueau, "Gloss.," see "Recreance" (and cit.); "Stil. 
 Pari.," 18, 7-9 (the provisional possession is granted to the complainant if 
 the defendant does not give some good reason for his defense; if this is not so 
 the thing remains sequestrated); "Pari, au B.," p. 168. — Cf. "Gr. Cout. de 
 Fr.," p. 233. 
 
 ^ Following a hasty examination, — the hearing of a few witnesses and ex- 
 amination of the proofs {Boutaric, p. 195; Masuer, XI, 30; "Ord.," Apr., 
 1454, 70-75; 1493, 58), — the provisional possession was granted by order of 
 parliament, with an obligation to furnish surety to pay over the income (some- 
 times a dispensation). Loysel, 767, "If the person put in provisional possession 
 does not have his possession confirmed, he has to give up and restore the issues." 
 Masuer, XI, 32; "Ord.," 1667, 15, 14; Boutaric, p. 198; Papon, 8, 11. If the good 
 faith of the judges had been abused the provisional possession could be annulled. 
 
 * "Stil. Pari.," 18, 11; Boutaric, p. 193; "Gr. Cout.," pp. 250, 251; Desmnres, 
 32; Masuer, vol. 9. It is refused if it would cause an irreparable injury, if the king 
 is a i)arty {Loysel, 768), and if the jurisdiction is at issue: Loysel, 766; Schwal- 
 bach, p. 140. 
 
 ^ Without there being, however, two separate instances: "Ord.," 1539, 59; 
 Boutaric, p. 109 (ed. 1603). _ 
 
 * A sort of "Summariissimum" established as a reaction against the slow- 
 ness of procedure. Cf. recovery of possession where the complainant bases his 
 argument upon the despoiling, whereas in the provisional possession he pretends 
 to be in possession and bases his argument u{)on his j)robabIe possession. On 
 the question of knowing whether the provisional possession and sequestra- 
 tion are mere means of investigation or true possessory actions, see Law of 
 May 25, 1838, Art. 6, 1. 
 
 345
 
 § 276] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 action. 2d, Into fully confirmed possession/ or final judgment 
 which was not always arrived at.^ 
 
 § 277. The Same. — The period of a year and a day ^ often re- 
 curs in possessory matters; it is necessary to insist upon it. As 
 many as four applications of this are to be found: 1st. The year's 
 tenure of the municipal statutes of the twelfth century, carrying 
 with it, as it seems, the acquisition of the ownership. 2d. A year's 
 possession before the disturbance or the disseisin is a necessary 
 condition before the complaint can be made use of. 3d. Period of 
 a year and a day after the disturbance or disseisin, another neces- 
 sary condition of the complaint.^ 4th. The period of a year and a 
 day, dating from the judgment upon the complaint, during which 
 
 1 "Manutenuta," Loysel, 767. In the sixteenth century they say that there 
 are three headings in the complaint: 1st, the sequestration, which should be 
 asked for before the case is tried if there is any reason to fear that the opposing 
 party may take away the issues; 2d, the provisional possession, which is re- 
 quired during the proceedings; 3d, the full possessory action, or the fully con- 
 firmed possession: Imbert, "Inst, for.," c. 17. Possession for three years will 
 prevent sequestration or provisional possession. 
 
 ^ An alteration of this nature took place in the Italian practice : the "Glose" 
 (on "1." 37, D., "de jud.," 5, 1; arg. 1, 8 "pr., de dol. exc") admitted the 
 "exceptio dominii" in matters relating to possession; they were concerned with 
 the title by which the parties held possession; thenceforth the duration of the 
 possessory action was extended and it became necessary to distinguish between: 
 1st. The " Summariissimum," a proceeding resulting very quickly in a provi- 
 sional decision following a summary investigation of the matter; it is made use 
 of when there is a "periculum" or "timor armorum" with the object of pre- 
 venting violence; it was accorded to any person in possession, and it was 
 witliin the discretion of the judge to give even a mere withholder the advantage 
 of it (fifteenth century, Paulde Castro). The "Summariissimum" was propa- 
 gated in Germany and in Spain. The provisional possession was found in 
 France. It had the same origin; it issued from the measures to keep order 
 which were forcibly taken by the law at the beginning of the action for pos- 
 session: "Stat. Romse," 1580, I, 92; P. de Castro, '^Consilia," II, 3. —2d. The 
 " Summarium " ("possessorium"): this is the ordinary possessory procedure, 
 the prohibition "uti possidetis"; it is thus called because it has always been 
 understood that the possessory procedure ought to be summary. 3d. The 
 " Ordinarium " or "Plenarium" ("possessorium"), an intermediate proceeding 
 between the possessory action and the action for real property; it was derived 
 from c. 9,-Dig. X, "de prob.," 2, 19 (Innocent III, 1207), where along posses- 
 sion based upon a title is given precedence over a doubtful possession ; it corre- 
 sponds to the action of simple seisin of the French law. Details in Bruns, 
 "Besitz," 232, etc.; "Besitzklagen," 1874; "Jahrb. d. g. R.," IV, 1; Briegleb, 
 "Einl. in d. Theorie d. summ. Proc," 1859; Fertile, IV, 177; Salvioli, § 243; 
 Savigny, § 51, again finds the "Summariissimum" in Guil. Durand, "Spec," 4, 
 1, 9, 22. He shows us that in Germany at the end of the eighteenth century 
 this very summary procedure was very long drawn out; he was judge in an 
 action where the "summar" had lasted twelve years, and nobody could foresee 
 an end to their difficulties; according to this the "ordinarium might easily 
 last fifty years and the "petitorium" a century. 
 
 ^ The extra day, which was only demanded so as better to distinguish the 
 end of the delay, has disappeared from the existing law. Cf. "Summa Norm.," 
 ed. Tardif, Table, see "Annus," "Dies." 
 
 * "Gr. Cout.," pp.237, 238. According to the "Ass. de J^rus.," J. d'Ibelin, 
 c. 64, after more than forty days have expired one is not disseised over again. 
 
 346
 
 Topic 4] POSSESSION [§ 277 
 
 delay the petitory action for title must be brought, under penalty 
 of forfeiture.^ These last two delays are periods of procedure es- 
 tablished to insure order, so as not to allow individuals to be 
 affected for too long a time by a litigation concerning which the 
 interested party has no more thought, or which he is only delay- 
 ing in a spirit of chicanery. Perhaps they owe their origin to the 
 fact that in the Roman prohibition one had to act within a year 
 of the disturbance or of the "dejectio"; perhaps they are only an 
 application of the Customary period of a year and a day.^ The 
 year's possession required of the man who brings the complaint is 
 a surer, better established, and more respectable possession, owing 
 to the sole fact of its duration, than is possession for a few days.^ 
 It is no doubt due to the same needs to which the tenure of a year 
 and a day, with its consequence of prescription, answered; it must 
 be connected with the same old Customary ideas, because it is 
 simply an application of them."* 
 
 1 P. de Fontaines, pp. 232, 289. A rule which disappeared in the fifteenth 
 century. Cf. " Gr. Gout.," p. 256 (still applied). Cf. German " Rechte Gewere." 
 
 * Cf. Champeaux, p. 436. 
 
 3 D'Espinay, p. 119; De Parieu, p. 116 (cf. pp. 264, 265, 257, n. 8, vol. II). 
 There has been an endeavor to account for this by means of the rule that it 
 was necessary to bring the action for possession within a year and a day; so 
 long, therefore, as a man had not had possession for a year, he was liable to 
 have the complaint brought against him; as soon as he was no longer exposed 
 to this he acquired the right of bringing the possessory action himself. The 
 second and third rules laid down in the text are, therefore, in the last analysis, 
 but a single rule looked upon from either the positive or the negative point of 
 view. — According to this system it is hard to understand why a man who has 
 been in possession less than a year — six months, for example — has no action 
 against a possessor of one or two months. One will say that he runs the risk 
 of being sued himself by a third party who can plead possession for a year. 
 But what difference do his relations with third parties make? Perhaps, more- 
 over, there may not be any third party who can plead the pos.^ession for a 
 year. It never occurred to the Romans to say that, if the "dejectus" had not 
 acted "de vi" within the year, the "dejiciens" would, because of this fact 
 alone, have a right to the prohibition. The Assizes of Jerusalem, which allow 
 forty days within which to begin the possessory action, do not require that 
 possession shall have lasted during this time. 
 
 * The tenure of a year and a day existed before the possessory proceeding; 
 the former springs from popular custom, the latter is created by public au- 
 thority. They have existed side by side, but this does not explain why the 
 customary delay had no influence on the regulating of the possessory actions; 
 nor could one invoke as a decisive argument against this influence the fact 
 that the Assizes of Jerusalem do not require a possession of a year in the matter 
 of the complaint, while at the same time admitting of tenure for a year. " Ord." 
 of Philip Augustus applying to the Crusaders, Art. XI; De Parieu, p. 118. — 
 In the "Glim " the tenure of a year and a day with acquisition of the owner- 
 ship is qualified as "specialis consuetude terra," II, 339, 10; 74S, 22; III, 
 556, 52; A. Thierry, "Doc. In6d.," IV, 716. Charter of Saint- Valery sur 
 Somme, Art. 21 (in 1376). This tenure was done away with by means of the 
 system of the long Roman prescriptions. Heusler, "Gewere," p. 407 et seq., 
 sees in this period of a year and a day in possessory matters an abstract formula 
 corresponding to the one in the Norman law relating to the last harvest. 
 
 347
 
 § 278] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 § 278. Action of Simple Seisin (without there being any tres- 
 pass).^ By this was understood a possessory action accorded to 
 the man who had failed or should have failed in his complaint 
 because he had not the last year's possession, but who could avail 
 himself of a long possession previous to this.^ The possessor for 
 ten years ^ prevailed by means of this action over the one who had 
 possessed the property a year and a day upon condition of acting 
 within ten years from the time of the loss of possession/ and of 
 presenting a title in support of his seisin/ — not a very happy 
 creation, the origin of which is obscure,® and owing to which our 
 practitioners were not long in becoming confused;/'^ the action of 
 simple seisin disappeared in the sixteenth century.^ 
 
 1 "Gr. Cout.," p. 494 (as contrasted with proprietary actions). Masuer, 
 t. 10 and 11; H. de Pansey, "Compet. des Juges de Paix," ch. 46. Cf. Alauzet, 
 p. 106; Klimrath, p. 368. A personal action, the "condictio possessionis " of 
 the Roman law, has been erroneously seen in this. — As to the procedure, 
 Loysel, 763. — Cf. Gidlhiermoz, p. 288; "quando simpUciter agitur de posses- 
 sione" (as contrasted with the "novitas"). — Ducoudray, "Orig. du Parle- 
 ment," p. 831. 
 
 2 In this action, "les plus anciens exploits" (that is to say, the enjoyment 
 which has existed the longest) are the most efficacious: "Gr. Cout.," pp. 250, 
 252; Loysel, 765; Varin, I, 794, 802. 
 
 3 Loysel, 748, 764; "Gr. Cout.," pp. 232, 252. The delay of ten years was 
 taken without any special object from the delay of the Roman usucaption: 
 Beautnanoir, 8, 9; "Gr. Cout.," p. 199; "Paris," 98. 
 
 * "Gr. Cout.," p. 238; Varin, loc. cit. — The rule cited by P. de Fontaines, 
 22, 3; "Artois," 2, 29; Beaumanoir, 32, 6; 64, according to which one could 
 only bring the action for real property within a year and a day of the judgment 
 upon the complaint, was therefore abandoned: cf. "Gr. Cout.," pp. 237, 238. 
 
 * "Gr. Cout.," p. 232. From this point of view the action was very similar 
 to the action for real property and became practically useless. 
 
 ^ The "Gr. Cout.," p. 232, calls it "casus recuperandae possessionis," 
 which might lead one to suppose that it was invented in order to take the place 
 of the prohibition "recup. poss. c," in imitation (distant?) of the Roman law. 
 Lauriere (on Loysel, 765, 762) says that its creation was due to Simon de Bucy, 
 which is not said in the passage from the "Gr. Cout.," upon which he relies, 
 p. 253. From this it follows that there remained no other resource but the 
 action for real property to the man who was defeated on the complaint; when 
 the case of simple seisin was devised it was asked if it was not necessary to 
 refer to it in the formula of the complaint, in the same way as one reserved 
 the action of reclaiming. Practice did not believe this to be necessary, which 
 was contrary to the opinion of Simon de Bucy. — It may be that the action 
 of simple seisin had this origin in the custom of delivering letters of relief to 
 the man who was despoiled and who allowed the year and a day to pass without 
 taking any action. — Cf., however, Guilhiermoz, "Enquetes," p. 288, no. 57. 
 
 ^ Beaumanoir, 24, 4, allowed the complaint to the holder of a servitude. 
 In the fourteenth century this opinion seems to have been contested, under 
 the pretext that every possession of a servitude without a title is one at will. 
 Boutaric, I, 31 (p. 188), then applies the action of simple seisin to this case; 
 he also allows it in the case of burdens upon real property. Cf. "Rents," 
 "Paris," 198; J. Faber, "Inst, de Int.," § " Retin.," no. 22; Masuer, 11, 18, 21: 
 complaint to recover quit-rent, rents, servitudes. The "Ord." of 1667 also 
 allows the complaint in the matter of servitude^). 
 
 8 Excepting in the ParUament of Flanders, Guyot, see "Complainte." 
 
 348
 
 Topic 4] POSSESSION [§ 279 
 
 § 279. The Declaration of Recent Work/ which the old authors 
 looked upon as a possessory action and Hkened to the complaint, 
 appeared towards the fourteenth century in countries of Custom- 
 ary law. This was the "operis novi nuntiatio" of the Roman law, 
 preserved and disfigured, undoubtedly, by the Italian practice 
 and that of the South of France, and again disfigured by the 
 confused doctrine which was anxious to give it its Roman physi- 
 ognomy.^ It assumes that one neighbor carries out some work 
 on his land in violation of the rights of another neighbor (for 
 example, he builds his house so high that he blocks the view of a 
 neighboring house). He to whom the declaration is made should 
 defer the work until he has obtained a judgment which gives him 
 permission to go on with it; the judges will only accord him this 
 permission upon condition of his giving surety to have the work 
 demolished if it should be so ordered later on. When the com- 
 plaint is made, the defendant cannot be allowed to continue work 
 again even by giving surety. The little importance of this pro- 
 cedure explains why it is not mentioned in the Ordinances of 
 1667.3 
 
 1 "Gr. Gout, de Fr.," p. 249; Masuer, 11, 7; Boutaric, I, 31 (p. 197); 2- 
 32; "L. d. Droiz," no. 763; "Anc. Gout. d'Anjou," "F.," 1054 (ed. Beautemps- 
 Beaupre, II, 293); seeFerriere (bibl.); Glasson, VII, 312; cf. "N. R. H.," 1890, 
 627; "Precis de Proc6d. Civile," 1902. 
 
 ^ This is dealt with at a very early time in the Italian statutes: Lattes, 
 "Dir. Gonsuetud.," p. 302. Just as in the "Gr. Gout, de Fr.," p. 88, we see it 
 combined with a usage which existed at Rome, but without becoming confused 
 with the "nuntiatio," the prohibition of continuing work of some kind (and 
 not only a building operation) by the throwing of a stone on the premises and 
 in the presence of witnesses. 
 
 ' The Law of May 25, 1838, mentions it again. Cf. H. de Pansey, "Just, 
 de Paix," ch. 38; Garsonnet, p. 538 (controversy). 
 
 349
 
 280] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 Topic 5. Acquisition of the Ownership of Immovables. 
 Occupation and Prescription 
 
 § 280. The Principal Methods of | § 286. The Tenement of Five Years. 
 
 Acquisition "Inter Vivos. 
 § 281. Occupation. 
 § 282. Prescription. — Shori; and Long 
 
 Prescriptions. 
 § 283. The Year and a Day. 
 § 284. "Rechte Gewere." 
 § 285. The Tenure of a Year and a 
 
 Day. 
 
 § 287. Good Faith. 
 
 § 288. Immemorial Possession. 
 
 § 289. The Roman Prescriptions. Pre- 
 scriptions of Ton to Twenty 
 Years, and Prescriptions of 
 Thirty Years. 
 
 § 290. In the Sixteenth Century. 
 
 § 280. The Principal Methods of Acquisition "inter Vivos "^ are 
 occupation, usucaption (or acquisitive prescription), and delivery.^ 
 Further on we will discuss the methods of acquiring "mortis 
 causa," such as intestate succession, which relates rather to a col- 
 lection of possessions, and the legacy, which can be applied to 
 special objects. The loss of ownership only results from abandon- 
 ment or surrender, the effects of which vary according to the 
 nature of the possessions.^ 
 
 1 Our old authors enumerate them and classify them, drawing their in- 
 spiration for the most part from the Roman law: Bradon, I, 2. Cf. Blackstone, 
 I, 2, c. 13 et seq.: (A) Rights to real possessions: inheritance, succession to the 
 estate of a deceased alien, occupation, prescription, confiscation, alienation by 
 deed, by special custom, and by will; (B) Rights to personal possessions: occu- 
 pation, prerogative, confiscation, custom, inheritance, marriage, judgment, 
 gift, contract, bankruptcy, will and administration. 
 
 2 In its final stages the old doctrine was connected with the Roman ideas, 
 but it did not triumph without having some resistance offered it; the rights 
 claimed by the lords are opposed to it, — for example, with respect to alluvium, 
 Loysel still says, no. 236: "The river gives and takes away from the lord 
 justice " (bibl.); Huber, IV, 701; Grimm, "R. A.," 548. As to dispossession be- 
 cause of public utility, cf. also Huber, IV, 716. This is not dealt with in the 
 old texts because the rights of the people collectively are so extensive that no 
 regulation is required; the individual will always yield. — But must we not 
 observe that the conflict will arise between the family and the State, and that 
 the family is not so weak as the individual? In reality cases in which dispos- 
 session is necessary are very rare. — "Olim," I, 252, IV; Viollet, "Etabl. de 
 St. Louis," IV, 63; P. de Fontaines, p. 292, 483. 
 
 3 Surrender as applied to the fief or the copyhold results in causing these 
 possessions to revert to the lord who granted them. But the copyholder can 
 only escape from his future obligations by complying with certain formalities. 
 Loysel, 521, — "Every surrender must take place at law." The vassal cannot 
 by this means break the ties that bind him to the lord. With regard to aban- 
 donment (properly so called, that is to say) of freeholds, the old law had no 
 general regulation. At the same time, according to Ferriere, see "Bieas Va- 
 cants," it was customary for the lord justice only to make use of his right of 
 taking goods which had been abandoned after the lapse of several years. In 
 Guyot, see "Occupation," the legislation of Languedoc is cited as a model; 
 
 350
 
 Topic S] OWNERSHIP OF IMMOVABLES [§ 281 
 
 § 281. Occupation (or taking possession "animo domini" of a 
 *'res nullius").^ This method of acquiring holds a place in the 
 speculations of the philosophical jurisconsults ^ in proportion to 
 its lack of importance in the history of our old law. It is only 
 met with in the barbarian period, under the form of the "apri- 
 sio" ^ or "Neubruch." ^ With the consent, expressed or implied, 
 of the community to which he belongs, an individual starts to 
 cultivate a portion of the territory upon which the community 
 has established itself; ^ he clears it and appropriates it to himself; 
 no one opposes him because he injures no one, and in one way or 
 another it is felt that this conquest by an individual will turn to 
 the profit of all. Where there are no communities, or even, in 
 time, upon the territories of communities, we see the king au- 
 
 possessions were considered as abandoned when their holder ceased to culti- 
 vate them and ceased to pay the tallage for a period of three years; they were 
 then conferred upon the man who offered to cultivate them and to pay the tallage 
 and who improved the condition of the community. Cf. Law of the 3d Frim., 
 year VII, Art. 76; Despeisses, III, 13. — Etymology: "a-bandon"; as to the 
 meaning of "bandon," cf. Godefroy, see "Abandon"; P. de Fontaines, 15, 
 29; Beaumanoir, 43, 13; "Ord.," I, 293 (abandonment is the taking of a 
 pledge). 
 
 ^ See especially the writings dealing with the feudal or domanial rights: 
 Guyot, see "Occupation"; Pothier, "Propri6t^," c. 2. On the subject of occu- 
 pation in international law, cf. Bonfils Fauchille, "Manuel de Dr. International 
 Public," 1898; Jeze, "Occupation," 1896. Balboa took possession of the Pacific 
 Ocean in the name of the king of Spain by walking into it and striking the 
 waters with his sword; Cortez thrust his sword into a tree in order to take pos- 
 session of Mexico, etc.: Lameire, "Occup. Miht. en Italie sous Louis XIV," 
 1903. 
 
 2 Rousseau only echoes their old doctrines in the well-known passage from 
 the "Discours sur I'Origine et les Fond, de I'ln^galit^," p. 2. Cf. Pascal, 
 "Pens(5es " VI 50. 
 
 3 Thevenin, the "Communia" ("Melanges Renier"), 1886; "Textes," pp. 64, 
 69, 78, etc. (Table); Cauvet, "Etude Hist. s. I'Etabliss. des Espagnols dans la 
 Septimanie," 1877 (especially p. 109) ; Brunner, " D. R. G.," II, 256. As to the 
 method the barbarians had of establishing themselves cf. Meitzen, op. cit. (by 
 villages or by single houses) and an analysis of these ideas in Brandt, op. cit., 
 and in G. Blondel, "Entre Camarades," 1901. As to the Roman period, cf. 
 Mitteis, "Z. Gesch. der Erbpacht im Altherthum, Abh. Sachs. Ges. d. Wiss.," 
 20, 4 (in 1901), p. 28 (bibl.), deaUng with the inscriptions of Souk-el-Khmis, 
 and Henchir Mettich; Girard, "Textes," p. 163. 
 
 * Other terms: "captura," "comprehensio," "porprisio," "exartum" 
 ("essart," clearing ground, from "sarrire," "sarcler," to weed): "bifang" (a 
 translation of "aprisio"), "neubruch" or "rodung" (clearing). These various 
 expressions at the same time designate the method of acquiring and the land 
 acquired ("Rottland") : Grimm, p. 524; see Du Cange. Often, in order to make 
 a field of some value, men begin by burning off the underbrush and the trees 
 which cover it ("novaliaexusta"): Laveleye, "Economic rurale de la Belgique," 
 1875, p. 200; Roscher, "Trait<§ d'Econ. Polit. Rurale," French translation, 
 p. 82. 
 
 ^ "L. Burg.," t. 13, "de'exartis" (bibl. and note): clearing in "silva com- 
 muni," — that is to say, common to the Roman and his barbarian host: cf. 
 41; 54, 2; 67. The custom of clearing is here applied to private property: 
 Ragueau, see "Pourpris." 
 
 351
 
 § 281] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 thorizing the taking of possession.^ But the increase of popula- 
 tion and the progress of agriculture resulted in the abandonment 
 of this old practice.^ It became more rare from the beginning of 
 the feudal period.^ In countries where the theory of feudal owner- 
 ship was applied exclusively, for example, in England, there was 
 no longer any room for occupation, for, on principle, unoccupied 
 lands belonged to the lord, and those which the tenants aban- 
 doned returned to his domain because of his immediate holding."* 
 It is by drawing their inspiration from these ideas, or, rather, 
 from their practical result, that the framers of the Civil Code had 
 inscribed in their draft this rule, which was too absolute: "The 
 
 1 "Bai.," 16, 2. Cf. Schlyter, "Corpus Jur. Sueo-Goth./' Ill, 245. The 
 right of the first occupier is formally recognized in this text. He must have 
 cultivated a piece of land which was uncultivated and without an owner. 
 There is no question of his being authorized by an agrarian community, nor 
 by the State, nor of any formalities required for the taking of possession. Cf., 
 however, Beseler, p. 11, "Certain statutes mention the 'captitatio circura- 
 eundo,' the incision of trees, the fact of lighting a fire, of erecting a structure; 
 this is the popular custom." But not one of these formalities is* indispensable 
 in my opinion ; they may be useful in order to determine the limits of the land 
 acquired. Owing to the mere fact of having taken possession of a piece of 
 land, even when the "extirpatio" has not been completed, one has a right to 
 drive off third parties who would take possession of it for themselves. Every 
 free man used to have the right to exercise the taking of possession in the 
 "silva communis," and upon the uncultivated lands of the community; 
 what he could take and really occupy was such a trifle as compared with the 
 vast expanse which remained (Tacitus, 26: "et superest ager"), that there 
 was no need of limiting this right; the community tacitly permitted it to 
 be fully exercised. When population increased and these clearings began 
 to increase, it had to be restricted or even done away with; this is what 
 is done by the laws and regulations of the feudal period. However, we 
 meet with traces of the old principle until the eighteenth century (in 
 1712, in Holstein; cf. Beseler, p. 15). As a general rule, taking possession 
 was only allowed with the expressed consent of the lord or the community, 
 and it was a natural transition to the system of seigniorial grants (for example, 
 to guests). 
 
 ^ This is what happened especially in France. Lands without an owner 
 and unpopulated regions were occupied by immigrants whom the king au- 
 thorized to establish themselves there by virtue of his police powers. Thus in 
 the time of Charlemagne the Goths established themselves in Septimania, 
 Cauvet, op. cit. Diplomas from Charlemagne and his successors in : D. Vaissette, 
 "Preuves" and "Capitul.," ed. Boretius, I, 169 (in 812). Cf. Charter of 811 
 {Beseler, p. 19); Thevenin, "Textes," no. 93. The royal confirmation thus ap- 
 peared to be necessary for the man who had exercised the right of taking pos- 
 session. It also often happens that the "captura" takes place in a royal 
 domain, "regalis silva," and in this case it goes without saying that the author- 
 ization of the king is indispensable. Colonies in the German provinces: G. 
 Blondel, "Et. s. les Popul. rurales de I'Allemagne"; Imbert La Tour, "M61. P. 
 Fabre," 1901. 
 
 ^ The Church encourages clearings by showing less strictness in the col- 
 lecting of the tithe from the "novaha": Dig. X, 3, 30, 13; 5. 40, 21; see Du 
 Cange. But by "novale" is understood all cleared land, whether in conse- 
 quence of a taking of possession or not. 
 
 * Thus it is that the English law did not recognize occupation as a method 
 of acquiring land : Pollock and Maitland, II, 80. 
 
 352
 
 Topic 5] OWNERSHIP OF IMMOVABLES [§ 282 
 
 civil law does not recognize the right of occupation alone." They 
 reconsidered this idea; following the example of the old law, they 
 admitted occupation as far as movables were concerned (hunting, 
 fishing, estrays, treasure), sanctioning in this respect the victory 
 of the Roman theories over the Germanic and feudal conceptions.^ 
 "§ 282. Prescription. — Short and Long Prescriptions.^ — Ac- 
 quisitive prescription or usucaption does not seem to have been 
 known in the old Germanic law; the only one met with therein is 
 a sort of extinguishing prescription,^ which is applicable to the 
 most diverse rights, and which has its basis in some fact which 
 places the interested party under the necessity of pleading it.^ 
 From thence arose in the ancient Customary law a usucaption of 
 short duration, the tenure of a year and a day. This system con- 
 trasted with the Roman theory, according to which usucaption was 
 contrasted with prescription of actions, and which only admitted 
 the long prescriptions. From the barbarian period Roman insti- 
 tutions made their way in the legislation; ^ the Canon law gave 
 them a new force, and towards the thirteenth century they pre- 
 vailed.® Their success was less a consequence of the authority of 
 the Roman law than an effect of the gradual progress of law ; there 
 was in this one of those legislative reforms which took place be- 
 cause of practice, under cover of the superstitious respect for the 
 Roman law, but which may be justified by motives quite differ- 
 ent from those which are avowed. Even in Rome, long pre- 
 scriptions had in the end taken the place of the usucaption of 
 early times. Very short periods, like that of a year, are in accord 
 with the requirements of a barbarian society, where there is need 
 of prompt regulation, where a rough system of proofs is the only 
 one which they have; they also accord with the requirements of a 
 very highly civilized society, where the rights of each individual 
 
 1 Fenet, II, 124. 
 
 2 Caillemer, "Antiq. jurid. d'Athenes," "La Prescription," 1869; Beauchet, 
 "Hist, du Droit Prive de la Rdpubl. Ath^n.," Ill, 142; Girard, "Manuel de 
 Dr. Rom.," 3d ed., p. 296. 
 
 ' In the same way the English law does not recognize any acquiring pre- 
 scription, but only an extinguishing prescription: Pollock and Maitland, II 
 81. 
 
 * Heusler, § 91; Immerioahr, "Die Verschweigung," 1895. 
 
 * Law of the Franks, Visigoths and Burgundiana: "Liut.," 53; Pardessus, 
 "Dipl.," II, 185, no. 394; Brunner, II, 517. 
 
 « "Arr. Pari. Paris," Apr. 3, 1322; Buche, "N. R. H.," 1884, 335. — Com- 
 bination of the Germanic delay and the Roman delay: "App. Marculf.," 
 33; "Reims," 168: 11 years; Boutaric, I, 22; "Hainaut," 7, 5: 21 years; "Pon- 
 thieu," 31 years; "Sachsensp.," I, 29: 30 years plus "Jahr und Tag"; C/iam- 
 peaux, p, 433; Soule, r. 28: 41 years. 
 
 353
 
 § 282] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 are sufficiently well protected for usurpations to be little feared; 
 the old system, not being able to organize the ownership of land on 
 the perfected foundations of modern law, protected it at least by 
 means of the long duration of prescription. 
 
 § 283. The Year and a Day.^ — A year is a natural period which 
 was applied of its own accord to the acquisition or loss of rights.^ 
 Csesar and Tacitus state that a distribution of the land was made 
 annually among the ancient Germans: "anno post alio transire 
 cogunt," says one of them; "arva per annos mutant," says the 
 other.'^ In the barbarian laws this period is taken into considera- 
 tion under various circumstances; thus, according to the Salic 
 Law, t. 45, "de migrantibus," ^ the stranger in a village cannot be 
 expelled upon the demand of one of the inhabitants when he has 
 sojourned there for twelve months.^ The Capitulary of 803, 
 which was added to the Ripuarian law. Chap. 6, declares that if 
 the pleader who is in default does not put in an appearance tvithin 
 a year, the king shall decide as to the disposal of his possessions. 
 In the same way, according to the "Capitula legi addita" of 816, 
 Chap, 5, the "proprietas" of the defaulting criminal which is 
 placed under the royal ban becomes finally acquired by the treas- 
 urer, if the default is not cleared up within a year and a day.^ 
 With the coming of the feudal period applications and mentions 
 
 1 Val. Smith, "Orig. de la Poss. annale," 1854; Klimrath, II, 357; Alauzet, 
 p. 47; De Parieu, p. 56; Heusler, "Gewere," p. 345; Glasson, VII, 349; Viollet, 
 570; Champeaux, "These," p. 376; Fockema-AndresE, "Z. S. S., G. A.," 1893, 
 75; MaUland, "Law Quart. Rev.," V, 253. 
 
 2 "Perennis," by the year, "Verjahrung": Viollet, 572; Val. Smith, p. 33, 
 48; Heusler, I, 56. Cf. the three-year period corresponding to an archaic 
 system of triennial rotation of crops (Denmark, "Jydsk. Lov.," I, 47, 51). — • 
 Other explanations. — (I) Roman origin: "Cod. Theod.," 10, 1, 1; "L. Rom. 
 Wis.," 5, 6; Benech, "R. Grit.," 1854, 377. — (II) The year includes three 
 "placita legitima": "Cap.," 803, c. 6 (post); "Jostice," 19, 42, 2: in the 
 three assizes and forty days. Cf. Martene, "De Antiq. Rit.," 9, 5; Prost, 
 "N. R. H.," 1880; "Giving of PubHc Notice at Metz," post. 
 
 3 CcEsar, "De Bell. Gal.," VI, 22; Tacitus, "Germ.," 26. 
 * "Cap.," of 819, c. 9, which modifies this title. 
 
 5 This title, according to the general opinion, does not provide for the 
 acquiring of ownership. See as to the controversy to which its interpretation 
 gave rise: Geffcken, "L. Salica.," p. 178 (bibl.). Other cases in which the 
 delay of a year is applied in the barbarian laws: "Sal.," 46 (appointment of 
 an heir "affatomie"); 27, 19; "Roth.," 74, 112, 127, 221, 361; "Liut.," 24, 
 96, 100. Old-time evidences: Thevenin, "Textes," 114, etc.; Muratori, "Ant. 
 Ital.," I, 435; Brunetti, "Cod. Diplom. Tosc," I, 425; Yves de Chartres, "Ep.," 
 77 (Migne, "Patr. Lat.," t. CLXII); "Leges fam. S. Petri Worm.," § 1 and 
 6; D. Martene, "Ampl. Coll.," II, 56, 58; Laws of Hoel le Bon, Laferribre, 
 "Hist, du Dr. Fr.," II, 123; "Acad. Leg. de Toulouse," II, 250. 
 
 ^ "Capitul.," ed. Bor. "Index Rer.," see "Annus"; see especially, I, 
 118; 268; 283; 362; II, 63; 226; "Cap. L. Rib. Add.," 803, 6 (I, 118); "Cap.," 
 816, c. 5 (I, 268); "Cap." 825, c. 11 ("Lib. Pap. Loth.," 31). 
 
 354
 
 Topic S] OWNERSHIP OF IMMOVABLES [§ 284 
 
 of this period become more numerous; ^ it becomes the normal 
 period of prescription in the old Customary law; the expression, a 
 year and a day, is, as it were, the style in the Customs.^ 
 
 § 284. "Rechte Gewere." — In case of "missio in bannum," and, 
 owing to the very fact of this "missio," the interested party found 
 himself called upon to plead his rights to the property which 
 had been seized; and, if he did not do this, his rights were lost, 
 because there could be no going back upon a confiscation which 
 had become absolute.^ This procedure of the "missio in bannum," 
 
 1 Du Cange, see "Annus et Dies"; Ariprand and Albertus, p. 138; Heusler, I, 
 57, etc. Cf. "Possession," "Repurchase by a Person of the Same Lineage." 
 Citizenship or serfdom results from residing in a place for a year and a day 
 (Customs in which the very air makes one free or a slave). Cf. on this subject 
 "Nov.," 123, c. 17 {Justinian). In the eighteenth century the Elector Pala- 
 tine had a right over foreigners: Hildebrand, "De Jure Wildfangiatus," 1717; 
 Stobbe, I, § 68. The community was established by "living together in the 
 same household for a year and a day." A number of actions were lost by 
 the expiration of this period: Loysel, 713, 714; Dunod, p. 133; Champeaux, 
 "These," p. 400. Inheritance without an owner, "Fribourg," 24; Customs 
 of the South ("Albi," etc.); things lost, etc.: Immerwahr, p. 43. 
 
 2 The year and a day figures for the first time in the Capitulary of 816. 
 By assuming that the period begins on the 1st of January it will expire, not on 
 December 31, but on January 1 of the following year; the interested party 
 has this entire day within which to allege his rights, — for example, to exer- 
 cise the right of repurchase, and therefore all the more to avoid confiscation, 
 as in the Capitulary of 816 (where it seems a delay of grace). Then only 
 in the popular thought is the year completed; in the same way eight days are 
 counted as a week, fifteen days as two weeks. Our old authors saw a clever 
 intent in this error in calculation; they must have added a day to the year in 
 order to show that the "dies a quo" was not included within the period ("ut 
 omnes molestae quaistiones de anni tempore tollantur"). Who can help seeing 
 that this would have been postponing the difficulty instead of solving it? 
 Tiraq., "De Retr.," 1, 11, 17; Grimaudet, "Retr.," 8, 2; La uriere, on "Paris," 
 I, 264; "Poitou"; "Troyes," 144; Pasquier, "Rech.," IV, 32; Guyot, see 
 "Retr. Lign.," s. VI. From this explanation one may at least conclude that 
 there was no difference between the Customs which speak of a year and a day 
 and those which merely dealt with a year. — In Germany in the thirteenth 
 century by " Jahr und Tag" is understood a delay of one year (three "placita 
 logitima," three assizes), six weeks (the delay of the Salic Law for appearing 
 in court, Geffcken, p. 187) and three days (duration of one session). After the 
 year has expired the interested party still has the power of pleading his right 
 at the first judicial session, which will be held within six weeks at the latest; 
 if it takes place previously to this the delay is shortened; it may be reduced 
 
 to one day: "Capit.," 803, c. 6; Heusler, I, 57; Grimm, "R. A.," 223; Chaise- 
 martin, "Prov.," p. 185. Cf. Schroeder, p. 706 (Controversy, must we see an 
 innovation in this?). Cf. "Jostice," I, 6, 40, 50; III, 6, 2; XII, 6, 8; 7, 5; 22; 
 XIX, 37, 9, 12; P. de Fontaines, 21, 9; A. Thierry, "Doc. in^d.," IV, 662; 
 Fagniez, "Doc. p. Servir ^ I'Hist. dc I'lnd.," p. 317; Champeaux, p. 375; 
 Immerwahr, p. 22. On the three assizes, "Jostice," 19, 12, 2; P. de Fontaines, 
 21, 10, 12 and 91; 22, 9; Glanville, 1, 7; "Or. Cout. de Fr.," p. 263; Durand, 
 "Specul.," 3, 1, 6; 2, 15, 10. Cf. date of these statutes; one should indicate 
 the year and a day ("Wis.," 2, 5, 1). It has also been conjectured that this 
 was the merely verbal connecting link with the customary formula. 
 
 3 The interested party had to appear in court within the year and a day; 
 an extrajudicial protest or the forcible retaking of a piece of property would 
 have had no effect. This rule, which was perfectly natural in the cases pro- 
 
 855
 
 § 284] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 with its powerful effects, was extended to the case of voluntary 
 alienation which took place in court. The German sources of the 
 thirteenth century show us this in their description of the "Auf- 
 lassung" (or investiture) by law (in the "echte Ding," "placitum 
 legitimum").^ The judge summons those who take part in it, 
 three times to plead their claims over the piece of land which has 
 been alienated, under penalty of being foreclosed; all the free men 
 of the locality are present at this, with the exception of minors, 
 the sick, and those who are absent from the country. If no one 
 claims the property, the judge places his peace over it, — that is 
 to say, forbids everybody to disturb the man in possession ("sub 
 banno regio proprietati firmam pacem induximus"). Those who 
 do not take part in the judicial assembly, for some lawful reason, 
 preserve the right of making complaint during the year and a 
 day.2 Once the year has expired, the position of the acquirer 
 could not be attacked; he had the "rechte Gewere" ("legitima 
 possessio").^ The delay of a year was granted even to those who 
 were present at the judicial assembly, and an oath was demanded 
 of the acquirer in support of his possession.^ It is scarcely to be 
 doubted that the institution of the "rechte Gewere" was con- 
 nected with the "missio in bannum" of the ninth century; the 
 formalities with which the former is surrounded are too analogous 
 to the latter, and are conceived too much in the same spirit, for 
 this to be otherwise. INIoreover, one finds already in the Capit- 
 ulary of 825, Chap. 11, the alienation of immovables connected 
 with a procedure of calling upon all those who have any rights.^ 
 The German practice of the IMiddle Ages thus has precedents 
 from the time of the Frankish period. 
 
 § 285. The Tenure of a Year and a Day of the municipal char- 
 
 vided for by the Capitularies of 803 and 816, was afterwards kept in the case 
 of the "Auflassung." 
 
 1 Post, "Transfer of Ownership." 
 
 ^ "Leges Fam. S. Petri Worm.," about 1024, c. 6. Other texts in Im- 
 merwahr, p. 15. 
 
 ^ "Sachsensp. Landr.," II, 44, 1; III, 83, 2, 3. Municipal charters, — • 
 for example, "Berner Handfeste," 1218, c. 22; "Augsburg," 1156, c. 4; "Delft," 
 1246; in Mieris, "Charterb.," I, 231, etc. — In the twelfth and thirteenth 
 centuries the "rechte Gewere" exists almost everywhere in German}\ — The 
 notions respecting this institution were scarcely clearly defined until .after the 
 writings of R. Sokm; cf. "Z. S. S., G. A.," I, 33, 53; Heusler, "Gewere," 237; 
 "Inst.," II, 81; Stobbe, § 74; Schroeder, p. 706 (bibl.), Siegel, § 145; Bnmner, 
 "Forsch.," p. 736; Hiiber, IV, 712; Immenvahr, p. 27; "Z. S. S., G. A.," IV, 235. 
 
 * Breme, 1186, 3; "Liibisch. Recht," 78; Soest, 31, etc., "L. Feud." I, 26, 
 1 : possession for a year confirmed by an oath is equivalent to an investiture 
 of the fief received from the lord: Ibid., II, 24; 40; 52; 55; Fertile, IV, 221. 
 
 6 "Lib. Pap. Loth.," 31; -post, "Public Investiture," "Investiture." 
 
 356
 
 Topic S] OWNERSHIP OF IMMOVABLES [§ 2S5 
 
 ters of the North of France has the sameorig in as has the " rechte 
 Gewere" of the German law.^ This is the old forfeiture resulting 
 from the expiration of the year and a day, which has become 
 transformed into usucaption, and the primary condition of which 
 is the year's possession of the acquirer.^ The prehminary pro- 
 cedure of calhng upon those who have rights often fell into dis- 
 use; its absence was supplied by the publicity of the delivery, or 
 of the taking of possession.^ But the effects of the forfeiture have 
 lasted; there results therefrom an absolute plea in bar against 
 every adverse claim (by way of ownership, servitude, or obliga- 
 tion),'^ and, as a consequence, the rights of third parties, whatever 
 they may be, those of the relatives, and even those of a previous 
 acquirer, are cleared away.^ This institution lost its importance 
 
 1 "St.-Omer," 1128; "Laon," 1128, 15 and 20; "Lorris," 1155, 18 and 32; 
 "Noyon," 1181, 13; "Chaumont," 1182, 10; "Roye," 1183, 3 and 15, "Abbe- 
 ville," 1184, 23; "Pontoise," 1188, 11; "Amiens," 1190, 26; "St. Quentin," 
 1195, 24, etc. ("Ord.," vols. IV and XI, p. 199 et seq.); "Anc. Cout. d'Artois," 
 ed. Maillart, p. 357; "Ass. de Jems." J. d'Ibelin, "C. de B.," II, p. 36 (ed. B.). 
 Cf. Bigelow, "Placita," p. 282; Prou, "N. R. H.," 1884, 163; "Jostice," Table, 
 see "Prescription"; "Const, du Chatelet," § 53 (note); "Olim.," I, 748, 22 
 (in 1268): ten years or even a year and a day, according to the local custom: 
 Glasson, VII, 272; "Fuero Real," 2, 11 (year and a day in peace); Giraud, 
 
 II, 259; "Beauvais," 1182, 27. 
 
 2 WTiereas in the early law inaction on the part of the interested party is 
 sufficient to make him lose his right, he will undergo a forfeiture from the 
 mere fact of his " Verschweigung," whether his adversary have or have not 
 been in possession during the year and a day. For the "rechte Gewere," 
 possession is also required: Fertile, IV, 222. 
 
 3 " L. Sal.," 45; " Lorris," 1155, 18; Immeivahr, pp. 12 and 15. The "bannum 
 regis," which is the early basis of this procedure, often disappeared: " Noyon," 
 1181, 13; "Abbeville," 1184, 23; "Ass. de Jerus.," J. d'Ibelin, c. 38; "C. des 
 B.," II, 36 (ed. B.); Fertile, IV,_ 180 (" Asti'_'), etc. In these texts they seem 
 to assume as a necessary condition of prescription a public purchasing, which 
 is brought to the knowledge of everybody; sometimes they speak of those who 
 "juste ac legitime emerint"; but the mere fact that there is no insistence or 
 precision upon this point proves that this condition has lost a good deal 
 of its importance; publicity, or even regularity, of purchasing is equivalent to 
 a formal putting in possession of all the interested parties. Cj., post, "Public 
 Investiture by Proclamation." 
 
 * "Nulli tenetur respondere," say the Charters in speaking of the man who 
 has possession for a year. Thenceforth he does not have to bring his warrantor 
 into the action and it matters little whether he have acquired "a domino" or 
 "a non domino." Nor are good faith and lawful title necessary for him. Cf., 
 however, "Cap. Olon.," 825, c. 11 (I, .329); "Cap. Adelchis," 866, c. 5; Murat, 
 "Ant. Ital.," I, 435; Lahand, "Vermog. Kl.," p. 315. — Minors and people 
 who arc absent are not deprived of their rights; forfeiture only affects those 
 who know or who are in a position to know that a third party is in possession: 
 Schmid, "Ges. d. Angels."; "Gloss.," see " Verjiihrung"; "Roj^e," 1188, 3; 
 "Summa Norm.," 98, 5; L. Delisle, "Jug. de I'Echiquier," 151 (in 1215), etc.; 
 Immcrwnhr, p. 19 et f^eq.; Lnuriore, "Tc'm. de cinq. Ans.," p. 75; cf. "Glim.," 
 
 III, 556, 52. — Loysel, 721, on the other hand, looks at it from a new point of 
 view: "Every Customary prescription for a year or a less time runs against 
 persons who are absent and minors." 
 
 * "Cap.," 825, c. 11 : in case there are two successive deliveries, one can say, 
 
 357
 
 § 285] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 as the theory of possession became better estabhshed; it became 
 an exception in the Customs of the sixteenth century; at this time 
 the only effect of a year's possession was to accord a right to the 
 possessory action; it did not cause one to acquire the ownership.^ 
 
 § 286. The Tenement of Five Years ^ (Anjou, ]\Iaine, Tours, 
 Lodunois) ^ or possession for five years, served in the sixteenth 
 century to free immovables of rents, mortgages, or real charges, 
 which encumbered them ; the acquirer of the land by color of title 
 and in good faith was the only one authorized to avail himself of 
 this possession, and, again, only upon condition of his not being 
 the heir presumptive of the debtor.^ This was only a transforma- 
 tion of annual prescription, as a result of the text or the prepara- 
 tory work of the Customs, which provided that the too short 
 period of one year be prolonged to three years, and then to five.^ 
 There was a controversy as to whether this prescription ran 
 against minors, those who were absent, or the Church.^ It is to 
 be noticed that the arrears of a " constituted rent," for a sum of 
 money, were lost by prescription in five years.^ 
 
 § 287. Good Faith ^ was required by the Canon law ^ in every 
 prescription, and this not only at the time of the taking of pos- 
 session, but again during the entire duration of the latter. On 
 this point it was in accord with popular ideas ("one hundred 
 years of injustice do not make a year of law"), and it was in- 
 
 "Der jungere Bann. bricht den alterem." Post, "Delivery": "Leges et Stat, 
 fam. S. P. Worm." (about 1024), c. 6, sale; c. 1, appointment of dower. 
 
 * Cf. Beaumanoir, 8, 9. Frederick II abolished it: "Const. Sic," III, 37. 
 
 2 Laurihre, "Diss. s. le Tenem. de cinq. Ans.," 1698; Pothier, "Propr.," no. 
 21; D' Aguesseau, II, 189; see Ferriere. — Cf. Boutillier, I, 48 (4 years). 
 
 ' It left in existence rents on land (which could be lost by a prescription 
 of ten to twenty years or thirty years), the rights of the lord (which could 
 not be lost by prescription) and rents or charges with which the immova- 
 bles had been affected for more than thirty years (old debts are not so much 
 suspected of fraud as are new ones): Pothier, no. 219. 
 
 " The heir presumptive of the debtor can only make use of the prescription 
 of thirty years: "Maine," 438; "Anjou," 423; Pothier, 224. 
 
 ^ Laurihre, p. 83; " Maine," Report on Art. 482, " Mons," 27 (instead of one 
 year to be in possession henceforth three whole years). 
 
 8 Loysel, 721; Laurihre, p. 85; "Anjou," 447; "Maine," 459; "Journ. des 
 Aud.," I, 6, 13; Pothier, nos. 236 et seq. 
 
 "> "Confer, des Ord. de Gu6nois," IV, 7, 44; "Ord." of June 15, 1510, Art. 
 71; of .Jan., 1629, Art. 142; "D6c." of Aug. 20, 1792, 3, 1; Civil Code, 2277. — 
 Dunod, II, "Le Gouix," "These.," 1901. 
 
 _ * Mollcntheil, "Natur des gutcn Glaubens," 1820; Hildehrand, "De Bona 
 Fide," 1843; Kroutzrvnld, "De Canonica Praescriptione," 1873; Knitschky, 
 "De Praescr. jur. Canonica," 1873; Reich, "Kanon. Verjahrungslehre," 1880: 
 Benzacar, "Those," 1890; Rvffini, "La Buona Fede in Mat. di Prescrizione, 
 1892 (bibl., p. 6); "Encicl. Giiir. Ital.," see "Buona Fede"; Horn, "Bona fides," 
 1899. 
 
 » Dig. X, 2, 26 ("de prajscriptionibus"). 
 
 358
 
 Topic 5] OWNERSHIP OF IMMOVABLES [§ 287 
 
 spired from the old ]\Iosaic law (for example, the Jubilee).^ If 
 we are to see in this a consequence of the confusion of mor- 
 ality and law, which consequence is one of the characteristics of 
 canon law, this doctrine is also to a certain extent an expres- 
 sion of the reaction against prescription, an institution which 
 becomes less and less necessary in a well-ordered society.^ The 
 Decree of Gratian still clung to the Roman ideas.^ But the new 
 doctrine was not long in appearing in the writings of the canonists, 
 and at the end of the twelfth century two Decretals, one of Alex- 
 ander III, the other of Innocent III, sanctioned it; they may be 
 summed up in the rule: "Possessor malse fidei ullo tempore non 
 praescribit." '^ The canonic rule had a good deal of difficulty in 
 making its way into the secular forum; because of its absolute 
 character, it agreed better with the "jus" or the "lex poll" (that 
 is to say, "coeli") than with the "lex Fori"; and if it had the ad- 
 vantage of preventing some spoliations, it was only at the price 
 of the multiplying and prolonging of actions with relation to 
 ownership. From the time of Baldus the Italian practice, in spite 
 of the formal prescriptions of the "quoniam" Decretal, took no 
 account of this.^ In France it seemed at one time as though the 
 
 1 From this reform perhaps comes the rule according to which title should 
 be provided (excepting in cases of immemorial prescription); however, when 
 the man who gains by prescription has the "jus commune" to support him, 
 good faith will be sufficient for him: Johannes Teuionicus, on c. 7, C, XVI, 
 q. 3; Reich, p. 28 et seq.; Bernard de Parme, on c. 17; Dig. X, "de praescr." 
 Cf. "Sexte," c. 1, II, 13. 
 
 2 Churches were exempt from the prescriptions of tliirty years: Mohr, "C. 
 Dipl. Rh.," I, 97. 
 
 ^ Cf. Ruffini, p. 11 (old canonic texts containing the Roman doctrine, es- 
 pecially the Prague collection of canons, first half of the twelfth century, c. 
 271, 279; Hincmar, "Op.," 11, 737). Decree of Gratian, 2a, "Pars," "cause," 
 XVI, q. 3 and 4. A commentary which antedates the "Pars " VIII, maintains 
 that the "Partidas" VIII and IX were introduced into the Decree by one of 
 the four Doctors Jacobus. 
 
 * First mention of the new opinion: Ruffmi, p. 39 et seq. Cf. especially 
 "Sommes," by Rufin, p. 319; and Etienne de Tournai, p. 220; Gross, op. cit., 
 
 E. 252. — Was not this opinion based upon a passage from St. Augustine cited 
 y Gratian, "Causs.," 34, q. 1, c. 5, in which at the same time there was abso- 
 lutely no thought of any innovation? In reality the Custom, " Mala fides super- 
 . veniens non nocet," was a remainder of the old law at Rome according to which 
 ' usucaption occurred even if good faith were lacking; there came a time when 
 ^ good faith was required, but it was only required at the beginning of the pos- 
 session. The canon law thought to moralize prescrijition by demanding that 
 good faith should be prolonged during the entire time the possession lasted: 
 Decretal "Vigilanti" of Alexander III (Dig. X, 2, 26, 5. Cf. Ruffmi, p. 61, who 
 upheld the authenticity against Hildebrand). Reich connects it with the Ger- 
 manic law ("Rechtaverweigung") — Dig. X, "de praescr., cap. ult." (20). 
 This decretal of Innocent III is only the c. 41 of the 4th Council of Latran, 
 1215 {Hefeh, "Conciles," French translation, VIII, 141). 
 
 ^ Hostiensis (contrary to Bernard de Parme), Bartolet and Balde decide that 
 
 359
 
 § 287] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 Canon law were going to triumph.^ But a distinction was made 
 between the prescription of ten and twenty years, for which good 
 faith and color of title were indispensable, and that of thirty years, 
 for which no title, and consequently they said, no good faith, 
 were requisite.^ The only satisfaction given the canonists was 
 the rejecting of the Roman rule, "Mala fides superveniens non 
 nocet," with regard to the prescription of ten years .^ 
 
 § 2S8. Immemorial Possession,^ or the prescription of one hun- 
 dred years, ^ which is only an application of this rule, serves to 
 establish, for example, the existence of seigniorial rights, of pri- 
 vate or public rent, of local franchises, of Customary rights over 
 community lands or seigniorial lands. ^ Where there had never 
 been any title establishing their formation, or the titles were lost, 
 which was a very frequent thing in the Middle Ages, it was shown 
 that these rights had been exercised "a tempore cujus memoria 
 non extat," "cujus contrarii non existit memoria" for a hundred 
 years or more; old men attested that from all antiquity it had not 
 been otherwise.^ This proof dispensed with title and good faith, 
 or, rather, a conclusive presumption of the existence of the title 
 was seen therein.^ In the sixteenth century, and, without doubt, 
 
 the canonic rule should be applied by the secular courts, the moment the safety 
 of the soul is affected. But Balde maintains that "de facto non servatur." 
 Gerard de Sienne, "De Prsescriptione " (a work of which we have only the ex- 
 tracts in Jean, d' Andre, etc.). Cf. P. de Ferriere, "Practica," cited by Ruffini, 
 p. 116; J. Faber, "Inst.," "de Usuc," 2. — As to the Italian Customs, cf. 
 Lattes, "Diritto Consuetudin.," p. 121. — German law: Stobbe, I, p. 579. 
 
 1 "Gr. Gout, de Fr.," p. 198. Loysel, 730: "The possessor in bad faith 
 cannot have the benefit of prescription" (note and bibl.) — "Siete Part.," 3, 
 29, 12 (especially). — Struve, "Jurispr.," ed. 1733, p. 134: The canon law was 
 followed in lands of the Empire and in Saxony. 
 
 ^ Gui Pape, "Q.," 416, 199 {Ferriere on the q. 416 states that practice allows 
 one to have the benefit of the prescription of thirty years without lawful title 
 or good faith), "Qusest. Capellse Tolos.," 74 (is good faith required for pre- 
 scription in personal actions?); Pasquier, "Inst.," p. 299; Lamoignon, title on 
 prescription; Domat, "Loix Giv.," 6, 7; Pothier, no. 34. Dunod, 1, 7, enumer- 
 ates the five opinions which have arisen on the point of knowing whether the 
 canon law should be followed in preference to the civil law. 
 
 ' The theologians were even in doubt whether one could keep the thing 
 obtained by usucaption without committing a sin: Buchereau, "Inst.," p. 158. 
 — Cf. the question of knowing whether prescription can be oflficially supplied 
 by the judge: Britz, p. 964. 
 
 ^ Ferriere, see "Poss. imm."; Guyot, see "Frescr." ; Pasquier, "Inst.," p. 303; 
 "Digest. Ital.," "Abimmemor." (Schupfer) ; Stobbe, § 69 (bibl.); Britz, 1013. 
 
 ^ Loysel, 726 etseq.; Dunod, 2, 13, distinguishes them; Biermann, "Trad.," 25. 
 
 8 Guyot, lac. cit.; Pasquier, p. 303; Masuer, 22, 23. It was applied especially 
 to servitudes which had been interrupted. Contra, Lamoignon, p. 214. Cf. 
 Lalaure, "Servitudes," I, 3. 
 
 ' Delays in Dunod, 2, 14; Stobbe, loc. cit. Cf. Dig. X., 5, 40, 21, 26; "Sexte," 
 2 13. 
 ' « "Siete Part.," Ill, 29, 7 (note); Dunod, 2, 14, cites the "Glose." 
 
 360
 
 Topic 5] OWNERSHIP OF EVEVIOVABLES [§ 289 
 
 in later practice, "immemorial possession is equal to title." ^ 
 This Customary institution, to which it was an absolute mistake 
 to try to attribute a Roman origin,^ has played a large part in the 
 formation of feudal society; it is this institution which gave to 
 the latter its laws and its rights.^ The canonists and the regalists 
 attacked it by their theory of imprescriptible rights, which they 
 understood as applying not only to ordinary prescription, but to 
 immemorial prescription, in which, however, they did not see a 
 real prescription : ^ "he who has eaten of the king's goose gives 
 back a feather a hundred years later." ^ In 1850 the reformed 
 Custom of Paris limited the application of this institution to 
 private matters by deciding, for example, that no servitude could 
 be acquired by virtue of long enjoyment (Art. 186).^ It has dis- 
 appeared from the modern codes; there was no more room for it 
 under a system of strict regulation and general application of 
 written proof. 
 
 § 289. The Roman Prescriptions. Prescriptions of Ten to 
 Twenty Years and Prescriptions of Thirty Years. — The Roman 
 practice at the time of the invasions scarcely recognized any but 
 the acquisitive prescription of ten to twenty years and the extinc- 
 tive prescription of thirty years (without good title or good faith). ^ 
 These institutions are once more found in the Frankish period, 
 not only in the Roman laws and documents,^ but even in those 
 
 ^ Loysel, 727. "Non tarn est praescriptio quam titulus," says Dumoulin, 
 "Cons.," 26; cf. on "Paris," 12, 13, 14, "Cod. Fabr.," 7, 13, 7; Legrand, on 
 "Troyes," Art. 61, gl. 5; Pothier, no. 281. From whence it follows that it can 
 even be applied to rights which the laws declare cannot be lost by prescription. 
 
 2 Dig., 39, 3, 1 and 2; 43, 20, 3, § 4. 
 
 ' Brie, "Gewohnheitsrecht," 1899; Gmy, "M^thode d'lnterpr^t. et Sources 
 en Dr. Prive," 1899. 
 
 ^ Cf., for example, Gui Pape, q. 357, 416; (a) "jura superioritatis non prae- 
 scribuntur" (as the feudal system had only been a long prescription of the 
 sovereign rights); (b) controversy as to the "jura quae princeps possidit ut pri- 
 vatus," such as fiefs, etc.: Masuer, 23, 13; Chopin, "De Doman.," 3, 9, 3; 
 Bacquet, "CEuvres," ed. 1744, I, 613: against the king one cannot acquire by 
 prescription of however long a time, even of one hundred years: "Ord.," 1539, 
 etc.; Diinod, III, 5; Lefevre de la Planche, "Dom.," 12, 7. Those who have the 
 seigniorial rights, such as the lords' immediate rights and rents, cannot lose 
 them by prescription: Loysel, 735; "Cout. Not. du ChAt.," 125; "Paris," 123 
 et seq.; Masuer, 22, 7; Desmares, 309; "Gr. Cout.," p. 308; "Paris," 114 
 ("Rentes"); "Toulouse," 146. As to the tithes and enfeoffed tithes, which 
 cannot be lost by prescription, cf. Loysel, 728, 729; Pasquier, p. 306; Desmares, 
 115; Masuer, 22, 18. 
 
 * Loysel, 726; Chaisemartin, "Prov.," p. 194. 
 
 * Ferrihre, on this article; Lalaure, "Servitudes," p. 239. 
 
 ^ "Cod. Thdod.," 4, 13, 2; 4, 14, 1; "Nov. Valcnt.," Ill, t. 26 and 30, 34. 
 Cf. "Cod. Just.," 7, 39, 3; "Reforms of Justinian" in 528 and 531; "Cod. 
 Just.," 7, 39, 8 and 31, 1; Esmein, "Melanges," 215. 
 
 8 "L. Rom. Wis.," "Cod. Thdod.," 4, 12 (13); "Nov. Valent.," 8 and 9; 
 
 361
 
 § 289] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 which are of a Germanic character, for example, in certain for- 
 mulae and in laws where the Roman origin of these institutions 
 cannot be doubted.^ Custom realized a reform which Justinian 
 must have made at the same time in the East, by transforming 
 the extinctive prescription of thirty years into usucaption; for this 
 very reason it was given precedence over decennial or twenty 
 years' prescription, which required conditions that were rather 
 difficult to fulfill.^ In the books of Customs of the thirteenth 
 century these prescriptions of a Roman origin are almost the only 
 ones admitted under the name of long tenure. For the thirty 
 years' prescription no color of title is demanded, but there was 
 hesitation on the subject of good faith .^ 
 
 Paul, 5, 2 (prescription of 10 and 20 years); Papien, 31; 39, 44; "Edit. Theod.," 
 12; "Petrus," 3, 10; "Brachyl.," 2, 9, 10, 11; "R. Bourg de I'ens.," 1874, 43. 
 
 1 The laws of the Burgundians and the Visigoths only mention the prescrip- 
 tion of thirty years: "Burg.," 79 (in 515), ed. Salts, p. 103; cf. ibid., 17. As 
 to the interpretation of these texts, see Zeumer, "Gesch. d. Westgoth. Gesetz.," 
 p. 400 ("N. Arch. f. att. Deutsch. Gesch.," t. 23). They deal with a prescrip- 
 tion of fifteen or twelve years "sine testiis" (without protest) and not "sine 
 tertiis": "Wis.," 10, 2, and "Cod. Euric," 277 (50 years, "sortes gotice" and 
 "tertia Romanorum"); Dahn, "Westgot. Studien," p. 79. — "Dec. Childeb.," 
 596, c. 3: possession of ten years as between people who are present, of twenty 
 years between people who are absent, and with respect to orphans; in general, 
 "tricenaria lex." The "Praec." of Clotaire, II, c. 13, recognizes the thirty- 
 year prescription by which property can be acquired for the benefit of the 
 Church, of clericals and of the " provinciales " (Gallo-Romans, cf. Loening, 
 "D. Kirchen.," II, 284), provided it rests upon a lawful title ("Capit.," ed. 
 Boretius, I, 15 and 19). "Capit.," I, 107, c. 17; 293, c. 9, 206 and 219; II, 25 
 (mention of the prescription of forty years as opposed to the Church): 
 Schroeder, p. 378. See the statutes cited by TMvenin, "Textes," Table, see 
 "Prescription" (it is always the prescription of thirty years which is contem- 
 plated; they limit themselves to saying that the interested parties have been 
 ' ' legaliter vestiti ' ' during thirty years, and that they have possessed ' * quiete " ) . 
 — As to the Lombard law, cf. Schupfer, "Allodio," nos. 41 et seq. "Roth.," 
 227, 231, is concerned with the possession of five years, and Grimoald, 1 et seq., 
 introduces the prescription of thirty years: he who can prove that he has been 
 in possession for thirty years is released from the duel in any litigation as to the 
 ownership; it is sufficient if he give an oath. Cf. "Liut.," 115 (the possession 
 of thirt}^ years based upon a false grant is of no value) : "Ratchis," 2; "Aist.,"9, 
 14; "Liut.," 69 (forty years among relatives); 77 (sixty years with regard to 
 property of the king). According to Schupfer, possession of thirty years 
 would not make one acquire the ownership, but would merely give one a 
 means of defense against reclaiming upon the part of the owner. But Albertus 
 states that practice did not thus understand it: "cum prescriptione adquiritur 
 dominum" (p. 141, ed. Anschiitz). 
 
 2 See preceding note. "Petrus," III, 10: the possessor in bad faith "dominus 
 non erit, nisi per 30 annorum spatium"; Pertile, IV, 216. 
 
 * P. de Fontaines, 368; "Artois," ed. Tardif, p. 68; 30 years, according to 
 the general custom, which is contrary to certain local Customs that have up- 
 held the tenure of a year and a day, and to the written law according to which 
 a possession of from 10 to 20 years is required {cf. t. 26). Beaumanoir, 24, 
 3, 4: user for a year and a day gives the seisin; tenure of 10 years gives the 
 ownership and the seisin, provided that it is based upon a sufficient consider- 
 ation; user during thirty years has the same effect without its being necessary 
 to allege any consideration; cf. 8, 9; 16, 4; 20; "Jostice," 15; 16, 2: a long, 
 
 362
 
 Topic 5] OWNERSHIP OF IMAIOVABLES [§ 290 
 
 § 290. In the Sixteenth Century the Customary law becomes 
 fixed; ^ the Customs admit, as a general rule, two acquisitive pre- 
 scriptions, — that of ten and twenty years,^ with color of title ^ and 
 good faith (during the whole time of the possession),^ and that of 
 thirty years, with neither title nor good faith.^ Possession only 
 leads to prescription if it is peaceful/ public,^ was not gained by 
 
 peaceful tenure of 7 or 10 years and from the lord (this last condition is also 
 contemplated by Beaumanoir) : "Et. de St. Louis," ed. Viollet, I, p. Ill (and 
 texts cited); "Summa Norm.," 52, 7; 111, 13 (30 yrs.); "Gr. Gout.," 2, 8; 
 Desmares, 232; Boutaric, I, 47, 48; Masuer, XXII; "Gonst. du Ghatelet," 
 § 53 (note, ed. Mortet); "N. R. H.," VIII, 335; "Gout. d'Anjou," ed. Beau- 
 temps-BeauprS. 
 
 1 Outside of the writings of the Romanists, see^the "Confer, des Goutumes, 
 de Guenois," II, 6; Ferriere, on "Paris," Table, see "Prescription"; Loijsel, 
 711 et seq.; L'Hommeau, 244 et seq.; Domat, "Loix Giviles," 3, 7; Dunod, 
 op. cit.; Pothier, id.; see Ferribre, Guyot. — Serres, "Inst.," 2, 6 (p. 157, ed. 
 1771): in countries of written law one can no more acquire immovables than 
 movables excepting by a prescription of thirty years (as a consequence of a 
 false interpretation of the "Nov.," 119, c. 7, from whence was derived the 
 "Auth. Malae Fidei," "God. Just., de Prsescr. X, veil XX Ann."); Julien, 
 "Elcm. de Jurisp.," p. 181; on "Provence," Prescription. — Bibl. in Brillon, 
 "Diet, des Arr.," see "Prescr."; Britz, p. 962. — As to the prescription which 
 applies to movables, cf. Britz, p. 1028; Struve, "Jurisp.," p. 141. 
 
 2 Ten years in the case of people who are present and twenty years in the 
 case of people who are absent: J. Faber, "Inst, de Usuc," 8 et seq. Several 
 systems: 1st. Common Law. The parties are supposed to be present when they 
 are domiciled in the same diocese. "Et. de St. Louis," II, 161, in the same 
 bailiff's or seneschal's jurisdiction (countries of Gustoms), or within the juris- 
 diction of the same Parliament (countries of written law): Loysel, 717; "Paris," 
 116. — 2d. Exceptional Customs. It is the nearness of the immovable which 
 has been prescribed that settles the question of presence or absence. "Sedan," 
 313: they are present who live within ten leagues of the immovable. Same 
 system in the Civil Code, 2265. — 3d. Serres, p. 159 : absence from the kingdom 
 "reipublicEe causa" (Parliament of Toulouse). Cf. Boutaric, I, 20, 47. 
 
 3 Beaumanoir, 24, 4; "Gr. Gout.," 2, 8; Desmares, 232; "Paris," 113 et 
 seq. Generally a reputed title was deemed sufficient because a lawful title 
 was only required as an element of good faith: "Paris," 114; Dunod, p. 12; 
 Pothier, no. 97. Contra: Lemaitre, on "Paris," 6, 1, 1; D'Argentre, on "Bret.," 
 266, 1, 6; Civil Code, 2265. —As to defective title, cf. Dunod, p. A7. — Bu- 
 chereau, "Inst.," p. 161. 
 
 * In countries of written law, as in the Roman law, it is sufficient if the 
 good faith existed at the time of the purchase; thus: Civil Code, 2269. — In 
 the countries of Gustoms, on principle, it is necessary for the good faith to 
 last during the entire possession, thus following the canon law; but, as a matter of 
 fact, it would be necessary for bad faith which occurred during the time of posses- 
 sion to be well established in order to prevent usucaption. This practical point of 
 view seems to us to decide in favor of the opinion admitted by the Civil Code: 
 Lamoignon, p. 213. Cf. J. Faber, "Inst.," fo. 37; Struve, "Jurisp.," p. 239. 
 
 ^ "Orl.," 161; Pothier, no. 179; Dunod, p. 107. Prescription of twenty 
 years between persons who are present or persons who are absent with or with- 
 out title: Ponthieu, 116; " Boulonnais," 121. Other variations: Britz, p. 972. 
 
 ' Desmares, 232: without disturbance. That is to say, not civilly inter- 
 rupted: Pothier, no. .38; "N. R. H.," 1875, 534. As to disturbance in fact 
 and disturbance at law, cf. Argon, II, 10; see Ferriere, supra, "Possession"; 
 Civil Code, 2229, 2233. — Things stolen or the possession of which has been 
 obtained by violence are not free from prescription; a prescription of tliirty 
 years runs against them: Serres, 2, 6, 2. Cf. Landaberg, p. 207 ("Glossators). 
 
 ^ As to concealment, cf. "Possession"; " Melun," 170; "Orl.," 253. Pothier, 
 
 363
 
 § 290] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 another's consent/ and has lasted ^ without interruption during 
 the required time.^ One can join to one's own possession that of 
 one's grantor.'* Once acquired, prescription confers ownership,^ 
 and, as nothing is to prevent an owner from depriving himself of his 
 property, when he has gained it by prescription, he can renounce 
 the benefit of the prescription; on the other hand, an anticipated 
 renunciation cannot be lawful.® Differing from short prescrip- 
 tions, that of ten to twenty years or thirty years runs neither 
 against those who are absent ^ nor against minors.^ Nor can it be 
 
 28, Dunod, p. 31, admit that one must go back to the beginning of the posses- 
 sion in order to decide whether it is put)Iic or concealed. Guyot, see "Prescr.," 
 §17. 
 
 1 Mere withholders (usufructuaries, farm tenants, etc.) cannot alter the 
 means by which they hold possession. The status of tenure at will lasts 
 indefinitely "etiam per mille annos." As to the interference of the title, cf. 
 Argou, II, 10; Dunod, p. 36; Pothier, no. 35; Civil Code, 2236 et seq. — Acts 
 of mere toleration: Civil Code, 2232; "R. crit.," 1880, p. 450. — As to acts 
 entirely dependent upon one's power, cf. Pothier, I, 338 (ed. jB.) ; Dunod, p. 80 
 et seq.; L'Hotnmeau, 285; Guyot, see "Prescriptions," § VII; Britz, p. 967; 
 Struve, "Jurisp.," p. 140. 
 
 2 An interruption of the prescription (Desjardins, "N. R. H.," 1877, 293) 
 generally results from a demand at law or an adjournment (Order of Jan. 22, 
 1655). It was asked whether good faith ceased when this demand was ac- 
 cepted: "Ord.," 1539; 1667, 2, 1; D' Argentre, on "Bret.," 266. As an exception, 
 in certain provinces extrajudicial summonsing had the same effect: Salviat, 
 "Jurispr. de Bord.," p. 100; Dunod, I, 9. Distinct acts of assignment, pur- 
 chasing and distraint were even more like it in this respect: Pothier, "Oblig.," 
 697. As to acknowledgment, cf. Dunod, p. 58. — "Toulouse," 146; "L. d. 
 Droiz," nos. 420 et seq. 
 
 ^ "Probatis extremis praesumitur media," Britz, p. 966. 
 
 * Dunod, p. 19 (Civil Code, 2235). Argou, II, 10: he who wishes to gain 
 something by prescription may, if he chooses, make use of the possession of 
 his grantors and join it to his own; he may also make use of liis own possession 
 only and reject that of his grantors: L'Hommeau, 249 et seq. (the bad faith 
 of the predecessor injures the heir). As to the doctrine of the Glossators, 
 Landsberg, p. 191; Thevenin, no. 25. 
 
 6 "Gr. Cout.," 2, 8; Desmares, 106, 222; "Cout. Not.," 99, 130, 125, 152. — 
 In countries of written law, as in countries of Customs, the purchaser of an 
 immovable outlaws mortgages which encumber it by a possession of from ten 
 to twenty years: Serves, p. 157. L'Hommeau, 269: the mortgage action which 
 is joined to the personal action is outlawed in thirty years in countries of 
 Customs and forty years in countries of written law. Serves, ibid., main- 
 tains that this prescription of forty years against the mortgage action which is 
 given to the debtor has never been admitted in practice: Guyot, see "Prescr.," 
 § l\;Glasson, VII, 353. 
 
 « Dunod, p. 112 (bibl.); Master, XXII, 22. 
 
 ^ That is to say, those who have disappeared: Boutavic, I, 27; Guyot, see 
 "Prescr.," § 14 (absent persons), 15 (madmen), 16 (minors); Britz, p. 1001. 
 
 ^ According to our old jurisprudence, prescription is suspended as long as 
 it is impossible for the man against whom it is contracted to act and con- 
 sequently to interrupt it, for he is not at all to blame. This rule seems to 
 come from the Canon law (Gvatian, II, 16, 3, 13 et seq.), and is consistent with 
 the spirit of this law in matters of prescription, and is one which has been 
 attributed to the commentary on I, 1, § 2, "Cod. Just.," "de annali except." 
 But no agreement was reached as to its application: Masuer, p. 385, ed. 
 1600; Gui Pape, "Q.," 416; Dunod, p. 62; Pothier, no. 22; "Oblig.," no. 680; 
 
 364
 
 Topic 5] OWNERSHIP OF IMMOVABLES [§ 290 
 
 set up against privileged persons, such as the king, communities, 
 or the Church.^ The prescription of forty years ^ is usually the 
 period required against the Church ; against the Holy See or the 
 king, that of one hundred years.^ These derogations of the com- 
 mon law have ceased to exist; one can say as much, not of the 
 rules concerning things which are imprescriptible, — for example, 
 the rights of sovereignty (they have been maintained for the most 
 part),^ — but of customs and jurisprudence with regard to fiefs, 
 manors, and ecclesiastical benefices.^ The old feudists held out 
 logically for imprescriptibility in the relations between lord and 
 vassal or copyholder. Dumoulin still lays down the principle 
 that the "lord and the vassal cannot gain anything by prescrip- 
 tion against each other." In the eighteenth century there was 
 seen in this nothing but a prejudice, and for a long time the rule 
 had come to be almost annihilated by the limitations which were 
 unceasingly brought to bear upon it. According to Dumoulin, 
 
 Domat, "Loix Civ.," 3, 7, 5. The canonists decided that "prescriptio dormit 
 tempore hostilitatis cum jura in civitate non redduntur." Was it necessary 
 to apply this explanation to cases where obstacles of a less absolute character 
 impeded the exercise of prescription (minority, absence, lack of knowledge, 
 etc.)? Civil Code, 2251. The king was recognized as having the right of 
 freeing one from prescription for just cause: Masuer, XXII, 1. Divergences 
 among the commentators, details in: Landsberg, p. 201; Loyseau, "Dcguer- 
 piss.," 3, 2. Action on a declaration of mortgage devised in order to allow of 
 the interruption of the prescription running against the mortgage; the mort- 
 gage action could not be begun until after the seizure and sale of the property 
 of the mortgagor: see Ferriere. — Does prescription run against married 
 women? Post: Glasson, VII, 356. 
 
 1 Desmares, 232; "Gr. Cout.," p. 199: thirty years against the king, forty 
 against the Church, one hundred against the pope: Lauriere, on "Paris," 123. 
 Other persons privileged in the old law: the Crusaders: Loysel, 731 (bibl.); 
 Bridrey, "These," 1899. C/. Boutaric, I, 47. The Order of Malta: Bourjon, 
 I, 1093; Guyot, see "Malte."; Brillon, see "Prescr."; Britz, p. 992. 
 
 2 Divergences between the Theodosian {Gratian, 2, 16, 3; Dig. X, 2, 26), 
 and the Justinian law ("Nov.," 9: 100 yrs.; Dig. X, 2, 26, 13; "Nov.," 
 Ill, 131: 40 yrs.; Hincmar, "Op.," II, 737); and, finally, the Lombard law 
 ("Aist.," 9); "Capit.," V, 389; cf. "Auth.," "Quas Actiones," "Cod. Just.," 
 "de Sacros. Eccles.," taken from the "Nov.," 131, c. 6; Julien, "Epit.," 119, 
 6; "Aries," in Giraud, II, 1; J. Fnher, "Inst.," fo. 37, V; Loijsel, 722, 729, 
 736 (bibl.). The canonists and the glossators are at variance: Landsberg, 
 p. 198; Gui Pope, "Q.," 161; Ruffini, "Buona Fede," p. 36; Desjardins, 
 "Ali6nation et Prescription des Biens de I'Eglise dans le Droit du Bas-Empire 
 et dans le Droit des Capitulaires" ("R. h. Dr.," VI, 254); Dunod, "De I'Alien 
 et Prescr. des Biens de I'Eglise," following his treatise on "Prescr."; Ordi- 
 nances; Masuer, XXII, 21. 
 
 ' Loysel, 725 et seq.; Gratian, "Decret.," II, 16, 3, 17; Biermann, "Frad. 
 F.," 2.5. 
 
 ^ Theory of the Glossators: cf. Landsberg, p. 196. As to the real 
 property given by way of marriage portion: Masuer, 22, 4; J. Faber. "Inst.," 
 10. 38; Rouss. de Lacombe, "Rec. de Jur. Civ.," see "Prescr. in F. ; Guyot, 
 ^21; Bourjon, I, 1093. 
 
 » Guyot, see "Prescr.," § 36; Dunod, pp. 300 to 408. 
 
 365
 
 § 290] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 himself, possession for one hundred years did not give prescription. 
 As concerns the lord, the proliibition of gaining the fief by pre- 
 scription was reduced to the single case of feudal distraint; by 
 means of prescription it was possible to change the fief into a 
 manor. Of this there only remained the idea that the vassal was 
 merely a holder at will and could not by himself alter the status of 
 his possession. The nature of the quit-rent lease was opposed to 
 the copyholder gaining freedom from the rent by means of pre- 
 scription ; by ceasing to pay it, he could not thus change his lease 
 into an allodial tenure; moreover, certain Customs ("Auvergne," 
 "Bourbon") laid down that the rent was lost by the prescription 
 of thirty years, and that everywhere arrears, which were a portion 
 of the rent, could be lost by prescription.^ 
 
 In the existing French law prescription has the same "raison 
 d'etre" as it had in the Roman period; it strengthens ownership 
 because it makes its proof easy; ^ the required periods of time, 
 and its other rules, prevent its degenerating into a spoliation.^ 
 Whilst it has lost some of its usefulness, it is still a necessary part 
 of our system of real property. They have only succeeded in doing 
 away with it in the systems which are called systems of enrolment 
 (like the Torrens Act and Prussian Law of May 5, 1872), where 
 the question of ownership is reduced to knowing whether one's 
 name is or is not inscribed upon the public registers. 
 
 ^ Loysel, 735; Guyot, see "Prescr.," § 26 et seq. (bibl.)- 
 
 ^ It is not sufficient in practice to obtain this result: see in Aubry and Ran, 
 "Cours de Droit Civil," II, 219, the system organized by French jurispru- 
 dence with the object of still further simplifying the task of the o^vTier. As to 
 the existence of an action allowing the person in possession to recover a thing 
 against which usucaption had begun to run in his favor in our law, cf. Apple- 
 ton, "Hist, de la Propr. Pretor.," 1889; E. Levy, "Th^se," 1896. 
 
 ' Discussion among our old authors as to whether prescription sprang 
 from natural law {D'Argentre, on "Bret.," 14, 10; Puffendorf, "Dr. de la 
 Nature," 12, 9; Vattel, "Dr. des Gens," II, 11, Dunod, 1) or from the civil 
 law (Cujas, on I, 1, Dig., "de Us."; Grotius, "De J. Belh," 2, 4; Pothier, 
 no. 20). The supporters of this last opinion refused to give foreigners the 
 benefit of this prescription: Denisart, see "Etranger," 9. They also admitted 
 that a natural obligation survived prescription: Guyot, see "Prescr.," § 19. 
 
 366
 
 Topic 6] OWInTERSHIP OF BIMOVABLES — DELIVERY 
 
 [§292 
 
 Topic 6. Acquisition of the Ownership of Immovables 
 
 Delivery 
 
 § 291. The Transfer of Ownership by 
 
 Agreement. 
 § 292. Frankish Period. 
 § 293. Real Investiture. 
 §§ 294, 295. Symbolical Delivery. 
 § 296. Putting in Posse.ssion in Fact. 
 § 297. Juridical Effects of these Acts. 
 § 298. Delivery "Per Cartam." 
 § 299. Feudal Period. 
 §§ 300, 301. Fiefs and Copyholds. 
 § 302. Freehold Tenure. 
 § 303. Monarchic Period. 
 § 304. (I) Customs of Public Nams. 
 §§ 305, 308. The "Acts of Law." 
 § 307. The Effects. 
 § 308. The Public Nam Customs. 
 § 309. (II) Public Investiture by 
 
 Means of Proclamation. 
 § 310. (Ill) Investiture and Giving of 
 
 Public Notice at Metz. 
 § 311. (IV) German Law. 
 
 § 312. (V) The Common Law of the 
 French Customs. System of 
 Pretended Delii-ery. 
 
 § 313. The Same. — Origin. 
 
 § 314. Formation of the French Prac- 
 tice. 
 
 § 315. Conditions and Effects of Pre- 
 tended Delivery. 
 
 § 316. Estimate of the System of Pre- 
 tended Delivery. 
 
 §317. (VI) Enghsh Law. 
 
 § 318. (I) Freehold. (A) _ Feoffment 
 with Livery of Seisin. 
 
 § 319. The Same. — (B) Lease and Re- 
 
 § 320. The'same— (C) Fine. 
 
 § 321. The Same. — (D) The Common 
 
 Recovery. 
 § 322. (II) Copyholds. 
 § 323. (Ill) Formation of Uses. 
 
 § 291. The Transfer of Ownership by Agreement took place in 
 Rome by means of delivery: " traditionibus et usucapionibus 
 dominia rerum, non nudis paetis, transf eruntur " ("C. J.," 2, 3, 
 *'de paetis," 20). The Civil Code, on the other hand, demands 
 neither delivery nor any other material act; ownership is trans- 
 mitted by simple consent (Arts. 711, 938, 1138, 1583). The con- 
 tract, sale, gift, etc., by virtue of which this transmission takes 
 place, were, at the most, productive of obligations in the Roman 
 doctrine; our old authors qualified it as "titulus ad adquirendum"; 
 it has become a "modus adquirendi"; it gives at one and the same 
 time a credit, having for its object the property alienated, and the 
 ownership of this property; and, as this latter right generally ren- 
 ders the former one useless, it is the latter alone which is taken into 
 consideration. The modern theory is found to be the reverse of the 
 Roman doctrine; we must now investigate how it came to be formed. 
 
 § 292. Frankish Period. — The principle of the Germanic 
 legislation is none other than that of the Roman law: no transfer 
 of property "solo consensu," ^ necessity of a material surrender or 
 
 ' Mere consent is not sufficient, even to create obligations. Some of the 
 formulae of the common Roman law might lead one to believe the contrary, — 
 •for example, Rozibre, I, no. 160; Marculfe, II, 19; "Roth.," 183. 
 
 367
 
 § 292] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 delivery. It can be accounted for, as we shall see, with regard to 
 contracts, by reasons drawn from popular psychology, or relations 
 between families, — relations out of which, to a great extent, the 
 primitive law has sprung. In the eyes of a man of the people a 
 simple verbal declaration has not any very great importance; it 
 does not bind him, it is only recognized by the law in proportion 
 as it is explained, is confirmed, and becomes established in the 
 eyes of all, by some external manifestation; the will should in some 
 way become incarnate, take form in the shape of some formality, 
 in order to be recognized; the ceremonial of the oath, where the 
 formula is still accompanied by a gesture, is a persisting vestige 
 of the old usages; and in former times formalities were the more 
 necessary because the relations between two important groups, 
 such as were the ancient families, were being regulated.^ 
 
 § 293. Real Investiture. — Delivery was originally extremely 
 simple, without any element of artificiality; it consisted of two 
 acts: 1st. The apprehension or taking possession of the land by 
 the vendee; ^ he went upon it in person, installed himself there and 
 performed certain acts of ownership.^ 2d. The surrender; ^ the 
 grantor, after having taken the grantee upon the land, retired and 
 abandoned the land, declaring at the same time that he gave up 
 his rights over it; the whole thing took place publicly, — that is to 
 say, in the presence of witnesses.^ The spoken word and the ges- 
 
 1 As to the origin of the principle, cf. Zallinger, " Wesen, u. Urspr. d. Forma- 
 lismus," 1898; Heusler, I, 65. 
 
 2 "L. Rib.," 60, 1. C/. "Bai.," 15, 2; 17, 2; "Burg.," 60, 2. Mentioned 
 in the statutes. "Tradidit . . . factum est super ipsam terram"; "Cart. 
 de Redon," no. 22; Thevenin, "Textes," Table, see "Tradition Reele"; Act of 
 848, nos. 81, 82; Pollock and Maitland, II, 88. Cf. "L. Sal.," 46 (appointment 
 of an heir): "sessio triduana" {Geffcken, bibl.). Statutes of 835 and 846, 
 gift from Count Vivien to the Monastery of Cunauld, in the county of Angers, 
 and delivery by his "advocatus": "Raynald," in Juenin, "Hist. deTournus," 
 1733. As to the fixing of the boundaries of the land conveyed, cf. "Bai.," 17, 
 2 and tit. 11; "Alam.," 81; Grimm, "R. A.," 527, 542. See also "Liber Term." 
 (first half fourteenth century) cited by De Ribbe, "Soc. Proveng.," p. 185; 
 Glasson, "Gr. Encycl.," see "Bornage"; Schroeder, p. 59; Thevenin, no. 158, 
 etc. Current forms for a domain: "terris," "domibus," "sedificiis," "man- 
 cipiis vineis," "pratis," "pascuis, "campis," "cultis incultis," "aquis aqua- 
 rumque decursibus," etc., "rem exquisitam" (or "inexquisitam"). Cf. 
 Thevenin, no. 124; "Et. de St. Louis," I, 138; Boutaric, pp. 211, 268, 775; 
 "Jostice," p. 149 et seq. 
 
 ' It may be that at a very early period the taking of possession became 
 more simple and was reduced to the giving of a clod of earth to the grantee, 
 etc. When a rather extensive estate was involved this was almost a necessity. 
 
 * "Wcrpitio, exfestucatio, resignatio. Me exinde foras expoli et absasito 
 feci; sibi foras exitum, alienum vel spoliatum esse dixit." No essential for- 
 mula? are given. Cf. Grimm, "R. A.," p. 52 (formulae), 555; "L. Sal.," 58. 
 
 * "In presentia omnium," etc. (market, court), "coram testibus legitimis": 
 "Rib.," 59, 60 (the number of witnesses varies according to the value of the 
 
 368
 
 Topic 6] OWNERSHIP OF IMIMOVABLES DELIVERY [§ 294 
 
 ture thus became united in an indivisible proceeding, which was 
 called in Latin "traditio," or "vestitura"; in the Germanic lan- 
 guage "sala." ^ 
 
 § 294. Symbolical Delivery ^ was established at an early period 
 alongside of real investiture, and in the end even took its place.^ 
 The material acts of which the original form of delivery consisted 
 and which were carried out upon the land itself, became simplified ; 
 the grantee was limited to receiving from the grantor symbols ^ 
 varying according to peoples,'' and which may be classified into 
 two groups : (a) some representing the land itself, from which they 
 are detached; ^ the part is taken as representing the whole; such 
 are the clod of earth (delivery, "per wasonem," "per cespitem"), 
 the branch of a tree ("per ramum"), the knife which has served 
 to cut them,^ the stone of the house, or the door and the hinge, the 
 vessel full of water (in the case of a pond), the rope of the bell of 
 
 object; there must be twelve, seven or three; and the same number of children 
 are added to them, who are given blows and have their ears twisted). "Bai.," 
 16, 2 ("testes per aurem tracti"); "Burg.," 43, 1; 60; 99; "Roth.," 172 ("non 
 absconse, sed ante liberos homines"); "Wis.," 5, 4, 3; 2, 6; "Capit.," 803, 6, 
 etc.; "L. Rom. Cur.," 8, 5, 1; Chaisemartin, "Prov.," p. 210: "He who wishes 
 to buy the land must summon the people"; Grimm, "R. A.," 4th ed.. Index, 
 see "Zeuge"; Brunner, "Forsch," p. 88; " Gerichtszeugniss, " in "Festg. f. 
 Heffter Urk.," I, 230 (a subscription in deeds by witnesses); Schupfer, p. 142 
 et seq.; "Cart, de Redon," no. 46, etc. 
 
 1 "Sala" (Got. "saljan" equals "tradere," "vendere"). — Grimm, "R. A.," 
 554; "Capit.," I, 380. Often the name "sala" is reserved for the sale whose 
 delivery is only its carrying out; but such does not seem to be the language of 
 the texts. Moreover, we believe {post, "Contracts") that a sale which was 
 brought about entirely by mutual consent was not obligatory in the old Ger- 
 manic law; it did not become so until there was total or partial execution, so 
 that it was more often than not confused with investiture. Cf. Sohm, p. 103. 
 The lack of a "justa causa traditionis" would not have prevented the latter 
 from being valid {cf. doctrine of Julian at Rome). 
 
 2 Perard, "Rec. de Pieces p. I'Hist. de Bourgogne," p. 22 (in 840), 25 
 ("inter altare et corpus Benedicti tradidit"); p. 57 (in 882); cf. p. 33 (in 756); 
 "Cart, de Redon," no. 165 (in 832); "Form. Lindenbr.," 18, 55, 27, 58, 75, 
 82, etc.; Mabillon, "De Re Dipl.," p. 542 (in 870); Mollenhech, "De Trad. 
 Symbolica," 1708; Schaumberg, id., 1727. 
 
 ^ Towards the tenth century real investiture was not sufficient to transfer 
 ownership; cf. post, "Feudal Period." 
 
 * As to the symbolism in Germanic law, cf. post, "Contracts"; Grimm, 
 "R. A.," 110; Michelet, "Orig.," p. 114; Thcvenin, "Textes," p. 263; Dii Cange, 
 see "Investitura," etc.; Kraut, "Grundriss," nos. 15 to 27; Ilcusler^ I, 65; 
 Schroeder, p. 59; Zollinger, "Wesen u. Ursprung des Formalismus im Alt- 
 deutsch. Privatr.," 1898; Huher, IV, 702. 
 
 5 "Cartul. Langob.," "M. G. H., L. L.," IV, 595. 
 
 ' In the end, moreover, they took objects of some kind, "corporeum quod 
 libet," whether they were taken from the piece of land or not: Sohm, p. 94, 
 n. 3 (they give a stone out of the road). 
 
 ' "Cart, de la Ste.-Trinitd du Mont" of Rouen, p. 455. In many deeds one 
 reads: "Mittere terram super altare per cultellum." There are still in exist- 
 ence charters to which are attached knives, Pollock and Maiiland, II, 87, 
 89. 
 
 369
 
 § 294] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 a church, etc. ; ^ (b) others express the power which one has over 
 the thing which is ahenated: they are the hand, the glove ("manus 
 vestita"),^ the lance, the arrow,^ the "festuca," etc. This last 
 symbol, which was in use especially among the Franks, is made 
 use of alike for the transfer of ownership and for the formation of 
 contracts.* 
 
 ^ As to these various sjmibols, cf. Grimm, p. 110; Michelet, "Orig.," p. 116. 
 In the very old times the vanquished gave up his land to the conqueror by 
 presenting him with some grass, "herbam porrigere": Pliny, "Nat. Hist.," 22, 
 4; St. Augustine, cited by Fournel, " Adultere," p. 194. On the "herba pura" 
 of the fecials, cj. "Liv.," 1, 24. Cf. "L. Sal.," 58; "Chrenecruda" {Geffcken, 
 p. 217); "Melusine," V, 145, 1898, p. 33; Gaius, IV, 16, 17. "Alain.,'; 81 (84): 
 proceeding as to boundaries; they take a clod of the ground in litigation, they 
 plant in it branches cut from the trees that are found there; at the time of the 
 duel the pleaders touch the clod of earth thus prepared with their swords: 
 Michelet, p. 117 (persistence of customs of this nature in Flanders); the owner 
 of the land given or sold cut from it with a knife a clod of turf in the form of 
 a circle and the width of twenty fingers; he put in it a wisp of grass, if it were 
 a pasture; if it were a field, a little branch the \\'idth of four fingers, in order to 
 represent the land granted; and he placed the whole thing in the hand of the 
 grantee. These symbols could be brought into court; also they were kept 
 ■with great care in the churches: "Melusine," VI, 41 (formal entry into Paris 
 of Henri d'Anjou as the chosen king of Poland). As to the brotherhood of 
 the turf, cf. Michelet, pp. 195, 206. As to the "scolatio," or throwing of the 
 earth into the breast of the grantee, see: Du Cange, Dig. X, 1, 4, 2; "L. Sal.," 
 58 ("terra? pulverem"). Biermann, "Traditio Ficta," p. 131; "Z. S. S., G. A.," 
 1890, p. 255 (clod of earth thrown into the cloak of the purchaser in the pres- 
 ence of witnesses, after which the two parties took each other by the right hand 
 and seized each other's beards, while saying that the ownership of the grantee 
 shall be as firm as the beard is firmly affixed to the chin. Swords thrust into 
 the ground in 1680); 1892, 276 ("span" and "rasen" in 1819); "Cart, de St. 
 Pere" of Chartres, I, CXXIV; of Cluny, no. 10, etc.; "N. R. H.," 1885, 206. 
 
 2 "Per ostio et anaticula" or "et axadoria," door and hinge. Post, "Eng- 
 lish Law." 
 
 * As to the symbolism of the hand, cf. "Mundium." Investiture by simple 
 "Handschlag," in giving the hand: Perard, p. 1-52 (in 875). As to the "manus 
 vestita," cf. Heusler, I, 96; Amira, 138. The glove is not only a symbol made 
 use of for the formation of contracts, it is also a symbol of investiture: "per 
 wantonem." Instead of a glove they also make use of a guantlet(?). "W[an- 
 delanc]: per festucam atque andelangam, per wadium et andelangum": see 
 Du Cange; Grimm, "R. A.," 186. Unless one translate "andelang" by a hand 
 clasp (" Hand," hand; "langen," to clasp). In Saxony the declaration is made 
 "curvatis digitis": Schroeder, p. 59; Amira, "Dresden. Bilderhandschrift 
 des Sachsenspiegels," 1902 (one is struck with the care with which the move- 
 ments of the hands and the body are described; the artist has enlarged the 
 hands and lengthened the fingers in order that one may clearly see the gesture 
 prescribed by custom): "Annal.," of Einhard, ad. in 776; "Capit. de part. 
 Saxon," 27 (I, 70). 
 
 \Schupfer, p. 148; "Roth.," 167, 172, 375, 386; "IJut.," 54. Post, "In- 
 vestiture of Fiefs." Investiture "per baculum, fustem, calamum, lignum, veru, 
 \'irgam " : see Du Cange. The " festuca " serves especially for abandonment ; in 
 this case it is thro-^Ti: Rozibre, " Form.," 286 (" Sens," 19) ; Thevenin, no. 137. — 
 But, whatever may have been said, it is also made use of as a symbol of the 
 putting in possession (delivery "per baculum"); cf. "Form. Lindenbrog," 
 18; "Cartul. Langob.," 2; see Ragueau, "Fust.," "Rain." As to the nature and 
 the part played by the "festuca," controversy. Cf. post, "Contracts," 
 "Cart, de St.-Bertin," no. 29; "L. Rom. Cur.," 24, 2 (Paul, 2, 3, 1); D. Vais- 
 
 370
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELR'ERY [§ 295 
 
 These methods allowed the parties to carry out the deliver}'' 
 away from the land, — in court, for example, — and the trans- 
 fer of the immovable property was then reduced to a simple 
 declaration confirmed by the throwing of the "festuca" ("per 
 festucam se exitum dicere, se absacitum facere"),^ "exfestucatio," 
 "warpitio resignatio" {cf. the "Auflassung" of the German law of 
 the Middle Ages). 
 
 § 295. The Same. — The symbolical delivery originally appeared, 
 so it seems, under the form of delivery in court.^ Before the tribu- 
 nal of the Frankish king,^ in actions relating to claims to immov- 
 ables,^ the party who lost was held bound immediately to carry out 
 the restitution of the land to the party who won; the land was aban- 
 doned, "per festucam." The same procedure was made use of at 
 the end of the eighteenth century before the ordinary tribunals.^ 
 It could not have been long before symbolical delivery not per- 
 formed in court, was looked upon as regular.^ It does not seem that 
 delivery "in mallo" was made obligatory.'^ The Capitulary of 809, 
 
 sette, "Preuves," no. 64. The monk renounces the world "cum stipula." In 
 the "Roman de Renart" the king, taking the w-isp of straw, pardons Renart 
 for all his misdeeds. The "Proceres Francorum" declare while throwing the 
 "festuca" that they no longer recognize Charles the Simple as their "senior": 
 Pertz, "M. G. H., S. S.," IV, 124. The "festuca" is sometimes replaced in the 
 twelfth and thirteenth centuries by the thread of a garment or a hair of the 
 beard: Ibid., II, 374; "Ord. des Maiours," pp. 318, 322 ("N. R. H," 1878). 
 
 1 Cf. the preceding note. In title 58 of the "L. Sal.," "de Chrene cruda," 
 the insolvent throws earth upon his relatives. Then he goes away, — that is 
 to say, abandons the house and the enclosure by climbing over the hedge which 
 serves to close it in: Geffcken, " L. Sal.," p. 217. — There is no mention made of 
 the throwing of the "festuca": "App. Marculfi," 19; Thevenin, "Textes," 
 nos. 136, 141, 148, etc. As to delivery to a third party ("Salmarm"), who is 
 charged with giving the thing to some designated person, cf. Stobbe, "Z. R. G.," 
 VII, 405; Thevenin, no. 124. Post, "Testamentary Executors," "Appointment 
 of an Heir." 
 
 2 Example in Thevenin, "Textes,'' Table, see "Tradition" (no. 132, etc.). — 
 It is clear that symbolical delivery is not by itself a legal act any more than 
 investiture. 
 
 3 Pertas "Dipl.," I, M. 35 (in 658), 73 (in 709 fictitious action); A. 16, 18, 
 21, 22 (in 746-750). Cf. Hiibner, "Z. S. S., G. A.," 1891; Stiitz, ibid., 1896, 154. 
 
 * Schupfer, p. 110. 
 
 6 D. Vaissette, "Preuves," no. 5 (in 781); "Trad. Fuld.," in 819. 
 
 8 According to Sohyn, p. 91, the validity of extrajudicial, symbolical de- 
 livery was only recognized in the middle of the ninth century; the Capitulary 
 of 817, c. 6, still looked upon real investiture as a necessity, because it com- 
 pelled the man carrying out the delivery to give "fidejussores vestituraj." 
 But I have difficulty in considering this argument as decisive. The "fide- 
 jussore vestituraj" are only necessary if the delivery is carried on at a distance. 
 Already delivery "per cartam" was admitted with its full effect in the bar- 
 barian legislation. Cf. "Capit. Leg. Add.," 803, c. 6 (I, 113); 817 (I, 282, 
 379). Cf. I, 113. 151, 182 (Index, see "Traditio"). 
 
 ■^ The "L. Rib.," 59, 1, declares that delivery should be made "in mallo," 
 the price paid, and tlie thing received (clod of earth, sod?) if the purchaser 
 wishes to have a "testamentum venditionis." Cf. t. 60 (nothing, in t. 59, 
 
 371
 
 § 295] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 Chap. 26, is limited to the prohibition of secret dehveries ("de 
 traditionibus ut in abscondito non fiant propter contentiones 
 diversas"); they must take place "coram testibus legitimis." But 
 the publicity with which the "traditio legitima" was sought to be 
 surrounded was better realized than ever when the act took place 
 "in mallo"; in order to give voluntary alienation the same effects 
 as forced alienation, recourse to the expedient of fictitious actions 
 of claims was devised; ^ whether it were a question of real or ficti- 
 tious actions, the intervention of the tribunal had the advantage 
 of setting aside beforehand the claims of third parties, and of giving 
 the grantee a secure position.^ 
 
 § 296. Putting in Possession in Fact was thenceforth distin- 
 guished from delivery in law, as it had not been in primi- 
 tive times.^ The former became the necessary complement of 
 the latter. The terminology commonly adopted in our day re- 
 serves for delivery in law the name of "traditio," whereas, the 
 taking of possession is preferably termed "vestitura," and the 
 agreement which precedes delivery, and which is ordinarily a 
 sale, is sometimes called "sala." But the wording of the sources 
 is far from being as clearly defined as this; these words are often 
 used for one another.^ The entering into possession is described, 
 
 indicates that a piece of land is being dealt with; should one not understand it 
 as applying to a sale of a movable, contrary to the general opinion?). See 
 supra, Capitularies of 803 and 817. Billow, "Utrum ad Transfer dom. Resig- 
 natione solemni in Judicio facta Opus fuerit," 1870; Fertile, IV, 227. Cf. 
 "Edict. Th^od.," 53: if there is no magistrate, defendant "duumvir," the de- 
 livery must take place before at least three "curiales "; even then it is not valid 
 unless the entering into possession takes place to the knowledge of the neigh- 
 bors: Marculfe, I, 14; Thevenin, nos. 81, 82, 121, 124. Cf. Sohm, n. 41. 
 
 1 In England fictitious actions were resorted to for transfer of ownership 
 until 1833. 
 
 2 Post, "Auflassung" in Germanic law. 
 
 ^ Various systems to account for this splitting up of one act into two dis- 
 tinct acts, the delivery and the "vestitura." — 1st. Public delivery "in mallo" 
 in the presence of the popular assembly is connected with the collective form 
 of ownership. If this were so, it would have been rigorously demanded in the 
 most ancient documents, and just the contrary is what has been estabhshed. 
 — 2d. Advantages in fact resulting from public delivery (facility of proof, 
 protection for grantee). Secret purchase seems like a fraud. Those who take 
 part in the public assembly can set up their rights. According to this opinion 
 delivery "in mallo" must have been required, and this is not so. — 3d. A 
 borrowing from the Roman common law, imitation of the delivery "per car- 
 tam." It seems to us more correct to say that these two forms of delivery are 
 derived from the same tendency. — 4th. Symbolical delivery was applied in 
 cases of gift for the benefit of the Church: "Cart de Redon," no. 99 (in 866), 
 142, 143, etc. Example in the sixteenth century in Switzerland: Huber, IV, 
 702. — 5th. The cases of the giving up of possession at law are the oldest cases 
 of symbolical delivery that we know of. 
 
 '' Th4venin, "Textes," see Index, no. 82 et seq. ; see Du Cange; Grimm, "R. 
 A..," 555 ("Sale" and " Gewere "). Expressions such as " vendidi et tradidi." 
 
 372
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELFVERY [§ 297 
 
 sometimes with great lavishness of detail, in the documents of the 
 ^Middle Ages up to a recent period : the new owner is shown riding 
 over the land on horseback or in a cart "in signum realis et vere 
 apprehense possessionis," cutting branches of trees, tearing up 
 tufts of grass, causing the earth to be worked, entering the house, 
 making a fire therein, embracing a column, sitting down upon a 
 seat, etc. It was not a rare thing for analogous ceremonies to be 
 practised in the installation of functionaries, the crownings of 
 kings, the enthroning of popes and bishops.^ 
 
 § 297. Juridical Effects of these Acts. — The real investiture of 
 the primitive law conferred possession and ownership at one and 
 the same time.^ When the delivery and the investiture became 
 separated, each one of these acts had its own special effects. If 
 the descriptions which are found in documents (the "notitiae," 
 made of the transaction) are any indication of the importance 
 which the taking of possession in fact had, it is no less true that 
 the symbolical delivery constituted in law the essential portion of 
 the operation. It carried with it the transfer of ownership; the 
 grantee had the right to put himself in possession in spite of the 
 opposition of the grantor, or of third parties who might have re- 
 ceived the land from him (real action).^ Between two successive 
 assignees of the same assignor, the one who had first received 
 delivery was preferred, and not the one who had first taken 
 possession.^ 
 
 ' Grimm, p. 184; Michelet, loc. cit.; Schupfer, p. 159; Fertile, IV, 228; 
 "R. h. Dr.," 1869, 1.51; XII, p. 85 (taking possession of a village in Alsace in 
 1728); "Acad. leg. Toulouse," IV, 28. In the archives of the Haute-Garonne 
 are to be found documents establishing the conveyance of the building of the 
 Temple to the Order of Saint Jean in 1.326 by the cowl and the keys of the 
 doors; the giving of a garden by the spade and the ring of the door, etc. (com- 
 municated by M. Pasquier). To what extreme details they went one may 
 judge by tliis citation borrowed from Pollock and Maitlund, II, 89, 3: (the 
 grantor) ' ' reversus versus parietem cepit mingere. ' ' As to the ' ' sessio triduana ' ' 
 in Germany, cf. Grimm, p. 190; Kraut, p. 172; Thevenin, nos. 121, 146, etc.; 
 solemn " Circuitus," Beselcr, "Erbvertr.," I, 90. 
 
 ^ The previously existing contract, for example, the "sala" or sale, was only 
 effective if it was made a part of the investiture, cf. Sohm, p. 98. 
 
 ' Brunetti, "Cod. Dipl. Tosc," I, 103. — Was the payment of the price 
 necessary to the validity of the delivery? "Rib.," 59, 60; "Bai.," 15, 2; 
 Marculfe, II, 19; Schupfer, p. 141 (Lombard deeds) ; Pertile, IV, 225. The deeds 
 and formula; according to the Roman law constantly mention the payment of 
 the price; the Germanic doeda insist rather upon the symbols of the delivery, 
 and it seems that the transfer of the ownership had become an independent act 
 which was valid when removed from the consideration upon which it fl(i)onded. 
 
 * "Capit.," 817 (I, 282, 380), c. 6: delivery carried out outside of the county 
 where the land was situated; it is sufficient to give surety that one will per- 
 form the " vestitura"; the ownership is transferred independently of the actual 
 taking of possession: "Cap. Olon.," 825, c. 11 (I, 331); Ansegise, IX, 19; 
 
 373
 
 § 298] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 §298. Delivery "Per Cartam." ^ — It was customary among 
 the Romans to draw up a writing in order to establish the transfer 
 of property, and to give it to the grantee, to whom it served as a 
 title. The Germans had recourse to this proceeding because of 
 its practical advantages, but they gave it a new bearing and char- 
 acter: the giving of the "carta" became for them the symbol of 
 alienation; ^ they saw a delivery "per cartam" ^ where there was 
 only a "traditio cartse" for the Romans. The fusion of Roman 
 practice and German law took place so thoroughly that formulae 
 are met with according to which, upon the "carta" laid on the 
 ground, there was placed the clod of earth and the bough of the 
 tree; the whole thing was then taken up from the ground and 
 presented to the grantee.^ 
 
 § 299. Feudal Period. — The transformation of the system of 
 
 Thevenin, no. 105, etc.; D. Vaissefte, no. 88; FumagalU, "Cod. Dipl. Ambros.," 
 no. 57; Meichelbeck, "Hist. Eccl. Fris.," no. 611. See especially the example 
 cited by Schupfer, p. 154 et seq. (dipl. of 791: the grantor takes possession of 
 his own authority) . — Fertile, IV, 228, maintains that delivery does not transfer 
 ownership, but only creates an obligation to put the purchaser in possession; 
 the "fidejussores vestiturise" would be necessary, because the obligation 
 would not pass to the heirs. CJ. Capitulary, 7, 362, CJ. -post., "Gift is not 
 Equivalent to Seisin." 
 
 1 Example in Thevenin, "Textes"; in the formulae and in the Cartularies, 
 where the symbols are often lacking, — for example, Cart, of Savigny, of 
 Beaulieu, etc.). Cf. the rule, "Ecclesia vivit lege Romana": Biermann, 
 "Trad. Ficta," 1891, p. 18 et seq., 33. 
 
 2 Delivery "per cartam" is looked upon as the equivalent of delivery by 
 the Germanic methods. For example, "Form. Lindenbr."; "Cart, de Redon," 
 no. 142. Importance of the giving of the "carta" in the Anglo-Saxon law: 
 "Bocland." Sohrn, p. 101, n. 3, believes that the Frankish law did not with- 
 out difficulty admit the delivery "per cartam"; thus in the "Cart. Lombard," 
 he points out that the delivery takes place by the clod of earth, the glove, etc. ; 
 after which the "carta" is given to the notary "ad scribendum." To the 
 contrary, Brunner, op. cit. Cf. "K. V. J.," 7, 3, 388 (Tyrol). 
 
 ' The Frankish king transfers the ownership by the giving of a "Prae- 
 ceptum": Sohm, p. 101, no. 3, "in f." (bibl.), p. 116. Cf. post, Anglo-Saxon, 
 "bocland." 
 
 * The "levatio cartse" seems to have been especially in use among the 
 Franks: Brunner, "Urk.," 107; "Z. S. S., G. A.," 1883, 113. Examples in 
 Roziere, "Form.," nos. 159, 314 et seq.; Thevenin, "Textes," nos. 136, 137 
 (Index, see "Tradition," "Charte"); "Cart. Langob."; "M. G. H., L. L." 
 IV, 595; "M. G. H., Dipl.." no. 280; "Burg.," 41; "Alam.," 1, 19, 20; "Bai.," 
 15, 2 and 12; "L. Rom. Cur.," 24, 2; Brunner, "Urk.," pp. 130, 288; Prost, 
 "N. R. H.," 1880, 10; Fertile, IV, 226 et seq. In the thirteenth century deliv- 
 ery "per cartam" in Bavaria: Haeberlin, "System. Baarb. Meichelb.," 1824, 
 p. 204. One must distinguish between the giving of the parchment to the 
 notary in order that he may draw up the deed ("traditio ad scribendum") 
 from the giving of it to the purchaser ("traditio ad proprium"): "Cart. 
 Langob.," form 2; Forro, "Cod. Dipl. Lang.," 482. The notary confirms 
 the giving: "post traditam [" cartam " understood] complevi et dedi " ; Schupfer, 
 p. 149 et seq.; Stouff, "R. Bourg.," 1899. — C/. English law: livery in deed 
 and giving of the deed and a clod of earth, a bough, etc.: Brunner, "Urk.," 
 p. 539. 
 
 374
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELIVERY [§300 
 
 the ownership of land which characterizes Feudalism had its re- 
 sult upon the methods of ahenation. Between grantee and 
 grantor the lord was interposed, which resulted in making the 
 operation more complicated. Even originally, the fief and the 
 copyhold, grants which are made "intuitu personae," are inalien- 
 able, just as they cannot be transmitted by inheritance; the vas- 
 sal and the tenant could not alienate them; the most that was 
 allowed them was the power of abandoning the land which they 
 occupied, in which case it reverted to the lord; he kept it for him- 
 self or disposed of it for the benefit of whom he pleased by mak- 
 ing a new grant.^ Fiefs and copyholds became patrimonial, — 
 that is to say, they could be inherited and they were alienable. 
 But the feudal theory of the transfer of ownership for a long time 
 felt the result of this primitive conception : ^ this is the point of 
 departure and the foundation of it. 
 
 § 300. Fiefs and Copyholds.^ — Alienation is divided into two 
 acts: (a) Disseisin or divesting; the vassal or the copyholder gives 
 back the land to the lord from whom he holds it (lord of the land), 
 at the same time declaring that he disseises himself of it into the 
 hands of the lord; (b) Investiture for the fief, giving of seisin for 
 the copyhold; they still say "vest," "vesture," "werp," etc.; the 
 lord delivers the land to the grantee, at the same time declaring 
 that he seises him of it. Thus one can say that alienation takes 
 place by means of disseisin-seisin, vesting and divesting ^ If a fief 
 
 1 "L. Feud.," 2, 9, 44, 55; "Ass. de J^rus.," I, 64, 288, 297 (ed.S.); "Schwab- 
 enspiegel," p. 68 (ed. Matile). Influence of these ideas: (a) on the capacity 
 to acquire the fief (commoners, people in mortmain): Mourmant, "Those" 
 ("Precedents de I'Edit. de 1749," 1900). (6) on partial alienation (pro- 
 hibition of cutting down the fief) : cf. "T. A. C, Norm.," 89 etseq.; "Gr. Cout. 
 Norm.," 32, 115. England: measures relative to sub-inf eudation ; "Magna 
 Charta," 32; "Statute Quia Emptores," 1290, which had the effect of greatly- 
 extending the alienation of fiefs; Pollock, "Land Laws," p. 70. No one but 
 the king was any longer permitted to make alienations in Frankalmoigne; 
 it was desired, in fact, that the grantee of a portion of the fief become the 
 immediate vassal of the dominant lord. Post, English Law; Glasson, "Inst.," 
 IV, 253; Gui Pape, pp. 46, 102, 112; Bucherellus, "Inst.," p. 138. 
 
 2 Merlin, in Guyot, see "Devoirs de Loi," p. 526 (ed. 1778): he who sells the 
 feudal or servile inheritance does not transfer the ownership thereof to the 
 buyer; he merely renounces the right which he holds from the lord and de- 
 prives himself of it, handing it to the overseers of the latter, who then give it 
 to the purchaser, about as the titulary of a benefice hands in his resignation 
 to the collator, who then confers it upon the person whom the man resigning 
 has pointed out to him. Cf. also "Resigning from an Office." 
 
 3 Pitou, "These," 1899 ("Invest, f^odale en Dr. Germanique"). 
 
 ■• "L. Feud.," 2, 2; "Cout. d'Artois," ed. rardif, XXIII (p. 64): a personal 
 belonging can be sold in three cases: by agreement of the heir, because of 
 poverty, and to buy a more fitting inheritance. After the lord and the men 
 of his court have ascertained that the vendor has not encumbered the land 
 
 375
 
 § 300] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 is concerned, swearing of fealty and homage are joined to the in- 
 vestiture; this is the principal difference that is to be observed 
 between the alienation of the fief and that of the copyhold.^ In 
 both cases the land is supposed to revert to the grantor, which 
 permits him to exercise the right of repurchase by way of reten- 
 tion,^ and the more easily to demand the transfer tax.^ Disseisin 
 and seisin were ordinarily carried out by means of the giving of 
 the twig, or the stick, the piece of wood and some earth, the stick 
 from the border of the wood; these symbolical objects passed 
 from the hands of the grantor into those of the lord, and from the 
 latter they passed to the grantee,'* For the investiture of large 
 fiefs, either at the death of the vassal or in case of alienation, use 
 was made of the banner, the sceptre, the lance, or the sword.^ It 
 
 (by means of an assignment, post, "Mortgages") the latter buys back the 
 inheritance by the branch and the rod ("raim et baston") from the lord. 
 The court, upon the demand of the lord, pronounces judgment to the effect 
 that the lord give the seisin to the purchaser; and the lord then does so, after 
 having asked the seller if he has been paid and if he is sure of the integrity 
 of the purchaser, by saying to the purchaser, "I give you the seisin, except- 
 ing all my rights": "Gr. Gout, de Fr.," II, 23 (p. 264). Cf. c. 25, 26; Des)nares, 
 189; "Gout. Not.," 124, 135, 72, 53; Boutillier, I, 67, p. 397 (ed. IGO^) ; Loysel, 
 641. The "Grand Gout.," loc. cit., no doubt establishes the general . custom 
 by saying that one should obtain letters of seisin. Cf. Beaiunanoir, 20, 35; 
 6, 4; "Gonst. du Ghat.," §§ 82, 85, 86; "Schwabenspiegel," ed. Mat., p. 75; 
 "Ass. de Jerus.," "G. des Bourg.," II, 253, 271 et seq., ed. B. 
 
 1 According to the "L. Feud.," 2, 4, investiture should precede fealty and 
 homage: "Gr. Gout.," p. 271. 
 
 2 See: "Retrait Beam.," 51, 21; Desmares, 204; "Gr. Gout.," 2, 25. Cf. 
 "Paris," 20. 
 
 3 Beaumanoir, 27, 7; Desmares, 189 et seq., 201, 364; "Gr. Gout.," pp. 265, 
 273. For the fief, the lord's fifth; for copyholds, the lord's due and sales: 
 Loysel, 572 et seq., and treatises on the Feudal law, — for example, Boutaric. 
 The "Gr. Gout.," op. cit., distinguishes between sales and seisins, the due to 
 be paid because of the sale and the due to be paid because of the investiture. 
 Beaumanoir only speaks of sales (see especially c. 27 and c. 52); according 
 to him it is the vendor who pays them; but, as they come out of the inherit- 
 ance, the buyer is authorized to keep back a portion of the price in order to 
 pay them if it is necessary; the parties may furthermore agree that this pay- 
 ment shall be made by the buyer. And no doubt it is upon the buyer that the 
 obligation comes in the last analysis. The lord only proceeds to give seisin 
 after he has been paid: "Gr. Gout.," pp. 267, 276 ("Quint et Requint"); 
 "Paris," 24. — C/. "Toulouse," 135, 137, 142 et seq.; "Montpelher," 11, 41, 
 61, 66, 108, VIII; "Bordeaux," 128. 
 
 '* Du Cange, loc. cit.; Ragueaii, see "Rain," "Mettre la main au baston" 
 (the vassal can have the use of his fief until it is taken possession of by the 
 rod or until he is freed from his oath), "Adhcritance" (taking of seisin by 
 the purchaser), "Desh^ritance" (disinheriting); Brodeau, on 51, "Paris," 
 no. 7 (bibl.); Pasquier, "Rech. de la France," 8, 58: sometimes it is the seller 
 and sometimes it is the judge who gives the rod to the buyer {cf. post, "Free- 
 holds"): "Ass. de J(5rus.," I, p. 218 (ed. B.); II, p. 253 (at law); "Parloir 
 aux Bourg.," pp. 145, 162; supra, p. 317, 2. 
 
 * "L. Feud.," 2, 2. Cf. 2, 33, etc.; Ragueau, see "Rain"; Du Cange, loc. cit. 
 To the lance was also added the standard for the investiture of principalities. 
 The bishops and abbots were invested with their offices by the giving of the 
 
 376
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELR'ERY [§ 300 
 
 was not upon the land itself that these formalities took place, but 
 at the lord's court, before the lord or his officer.^ By this means 
 the exigencies of the old law were satisfied, as far as publicity was 
 concerned, and the usage of symbolical deliveries and deliveries in 
 law was upheld. It would have been hardly practical, and scarcely 
 in accord with the part played by the lord in this act, to compel 
 him to go upon the land.^ Under these conditions the investiture 
 of the fief, or the taking of the seisin of the copyhold, had to be 
 accompanied by a putting in possession in fact, in order to pro- 
 cure for the grantee all the advantages of possession ; ^ it was also 
 preceded by a preliminary agreement, a sort of "justa causa tra- 
 ditionis." ^ But of these three acts, the one which carried out 
 the transfer of ownership was the investiture or giving of seisin.^ 
 One may even ask oneself if this did not mean the acquiring of 
 the possession in law, — that is to say, of the right to bring the 
 possessory actions.^ It is beyond a doubt that the grantee who 
 was invested, or given the seisin, had the right to enter into 
 possession upon his own authority.^ The investiture was estab- 
 
 "virga pastoralis," of the crozier and the ring: "Sachsensp.," 3, 80, 1. As to 
 the "querelle des investitures" (assizes of investitures), cf. Schroeder, p. 399; 
 Esmein, "Bibl. Ec. Hautes Et.," I, {Yves de Chartres). 
 
 1 Supra, notes. To the contrary, "Bayonne," 91, 1: the lord of the manor 
 goes upon the land and withdraws the seller from it upon payment of a due 
 for going out and installs the buyer upon it upon payment of a due of entry. 
 
 2 "Paris," 63; Lo!/se/, 531 (portable rent). 
 
 3 Can the tenure of a year and a day take the place of the seigniorial in- 
 vestiture as against third parties? Desmares, 189. 
 
 ■• The man selling keeps the ownership until the lord has conferred seisin; 
 but the seller can be compelled to carry out the investing or the conferring of 
 the seisin: Boutaric, I, 67; Bemimanoir, c. 27, 7, 8 (if there has been a giving 
 of seisin the seller cannot take back his land excepting by virtue of a new sale) ; 
 Benumanoir, 35, 20 (deed of sale); 23 (letters of leasing); "Gr. Cout.," pp. 266, 
 267, 301; Biermann, "Trad. Ficta," p. 277 (bibl.). 
 
 5 Procedure in a case where the lord refuses to give the seisin: "Gr. Cout.," 
 pp. 268, 280, 285. 
 
 * Does not the seigniorial giving of seisin which makes the buyer the 
 owner also make him the possessor? Desmares, 62, 177; "Cout. Not.," 53; 
 "Gr. Cout.," 2, 19, p. 234; Ragueau, "Gloss.," see "Vest: investitura non 
 facit posscssorem " ; Loysel, 747. — The tendency of the Romanists i.s to re- 
 quire a material delivery. Practice resisted this: Biermann, "Traditio Ficta," 
 p. 61; Ciui Pape, "Q.," 415; the investiture does not give possession, but 
 the right of putting oneself in possession of one's own authority: cf. "Q.," 
 46 (where he distinguishes between copyholds and freeholds, post, "Clause of 
 Tenure at Will"). 
 
 ^ Beaumanoir, c. 34, 13: the purchaser who has been given the seisin by 
 the lord wishes to take possession of the inheritance; the farm tenant or the 
 mortgagor repulses him; their chiims will bo set aside by tho law. Tiie only 
 moans that the farm tenant and tlu; mortgagor have of obtaining a right whifh 
 th(!y can oppose to the purchaser consists in having the seisin conferred upon 
 themselves by the lord from whom the land is held. Cf. post, "Sale is pre- 
 ferred to lease." 
 
 377
 
 § 300] OWNERSHIP AND REAL RIGHTS [Chat. II 
 
 lished at an early period by a written deed; but in the eighteenth 
 century these deeds were no longer required, as we shall see; the 
 acts of fealty and homage took their place as regards fiefs, and 
 the performance of the seigniorial rights as regards copyholds. 
 INIoreover, one knows that tlie seigniorial rights of acknowl- 
 edgment and census were often established by means of the 
 Rolls} 
 
 §301. The Same. — The lord gave the investiture, "always 
 saving all rights." ^ The result of this reservation was that the 
 rights of third parties were not cleared away, as one would be 
 tempted to believe, as a consequence of the reversion of the land 
 to the lord. It is probable that this was not the primitive law; 
 the lord ought to take back the property free from all rights; at 
 least, those which his vassal or his copyholder had granted 
 could no more be set up in opposition to him than could an aliena- 
 tion of the whole property.^ The only doubtful case was that in 
 which ownership was contested; the grantor might be only an 
 apparent owner; had the "verus dominus" the right to reclaim 
 the property as his own after the investiture or giving of seisin to 
 a third party? The answer depended on the role one gave to the 
 lord and to the feudal court; if they were compelled to look into the 
 circumstances upon which the alienation was based, to pass upon 
 the rights of the grantor, then the confirmation of the deed, if it 
 was done with a knowledge of the facts, might have the result of 
 extinguishing the rights of third parties, even supposing that they 
 had not been present.* It seems as though this tendency were to 
 be found in the early Feudal law; ^ but it was the contrary tend- 
 ency which prevailed.^ The intervention of the lord and of his 
 court becomes almost a mere formality; they were contented with 
 estimating the apparent irregularity of the deed, leaving to the 
 tenure of a year and a day the effect of speedily wiping out 
 the claims of third parties, as well as those of the assignees of 
 
 1 See Ferriere, "Le Parfait Notaire," I, 15, c. 7 and 8. 
 
 2 " Artois," "Gr. Gout.," etc.; Beaumanoir, 20, 2; Varin, "Arch, de Reims," 
 I, 844. 
 
 » See "Alienation of the Fief." 
 
 * Precedents in Barbarian law. 
 
 * This is what may be deduced from the provisions of the "Ass. de Jerus.," 
 Jean d'lhelin, c. 185, 187 (I, pp. 64, 288, 297, etc.); from the "Gout. d'Artois," 
 XXIII, and from Beaumanoir, 51, 18. The feudal court assures itself of the 
 validity of the rights of the grantor. 
 
 6 "L. Feud.," 2, 8; "Gout. d'Artois," ed. Tardif, XXV; Beaumanoir, 51, 
 18. Simply because the man who has been put out of possession had the 
 seisin, the lord should invest the third party in whose interest the disseisin 
 has been made. 
 
 378
 
 Topic 6] OWNERSHIP OF EVLMOVABLES DELR'ERY [§ 302 
 
 the grantor, or those of his family.^ The investiture or giving of 
 seisin thus only took place with a reservation of the right of the 
 lord himself and the rights of others. 
 
 § 302. Freehold Tenure.^ — There could be no question, as far 
 as a freehold estate was concerned, of the investiture or giving 
 of seisin by the lord, because disseisin into the hands of the 
 lord would have been a denial of the right of the freeholder.^ 
 The law of the barbarian period thus persisted on principle, ex- 
 cepting for a tendency to assimilate the alienation of freeholds to 
 that of fiefs or copyholds. In the South, in countries of written 
 law, delivery takes place "per cartam," or, at least, a deed is 
 drawn up by the notary in order to establish the sale and the 
 delivery or "guirpitio." ^ Without doubt, there was not any tak- 
 ing of possession by the grantee ; the parties were content ' with 
 declaring before the public officer that they had sold and de- 
 livered ("vendidi et tradidi").^ The deed once drawn up and 
 delivered to the grantee,^ it is the delivery of the deed '' which is 
 sometimes accompanied by symbolical acts, like the delivery of 
 the notary's pen.^ The grantee, by virtue of this act, has the right 
 to put himself in possession by his own authority.^ But under 
 the influence of the Roman law, an actual delivery prevailed 
 
 1 See "Tenure of a Year and a Day." 
 
 2 "Dig.Ital.," see "Allodio." See investiture and tlie giving of public 
 notice at Metz. As to burgage and free urban tenure, cf. Genestal, "These," 
 1900; Desmares, "Et. sur la Propriety fonciere dans les Villes du Moyen Age," 
 1898. 
 
 3 "Gr. Gout.," 2, 33 (p. 325); Boutillier, I, 83 (p. 490, ed. 1603). 
 
 * Examples in the Gartularies ("Cart, de St.-Sernin," numerous deeds of 
 the twelfth century; we read there merely "gurpivit et vendidit" or similar 
 formulse; "facta carta" and the date; "hujus rei sunt testes N."). 
 
 6 "Gout, de Toulouse," Art. 93 (ed. TardiJ); Tardif, "Dr. Priv4 au XIIP 
 siecle," 1886. 
 
 8 These deeds of purchase have served as a basis for the drawing up of 
 the Gartularies. 
 
 ^ "G6de" or "c6dule" (from "scheda"), deed, writing: Serves, "Inst.," 
 II, 1, 44: feigned delivery, which takes place by the delivery of the keys as 
 well as that which takes place by the lease of the deed or of the pen of the 
 notary, which are mentioned in the I, 1, "God. Just.," "de don."; Soulatgcs, 
 "Gout, de Toulouse," 1770, p. 236; "Th6orie et Prat, des Notaires," Grenoble, 
 1629, p. 141. — This means the lease or handing over of the contract of sale, 
 and not the deeds of ownership of the seller; this is what the e.xpression "lease 
 of the deed" means. — As to the doctrine of the Glossators and the post- 
 Glossators on the subject of the "instrumentalis traditio," cj. Bierinann, 
 "Traditio Ficta," pp. 22, 47, 102, 273. See especially Azo, "Lect. ad. 1. 1, 
 C. de don. si vendidi et traditur instrumentum emptionis." Post, nos. 22 
 et sea. 
 
 * It is the pen with which they write. Sometimes a touching of the hands 
 of the seller and the purchaser. — The Romanists protest against these old 
 practices; thus Ilosliensis (cited by Gui Fape, "Q.," 22). 
 
 9 "Toulouse," 93. Post, nos. 22 et seq. 
 
 379
 
 § 302] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 over a symliolical delivery; practice had to find a means of pre- 
 serving for the deed its former effects (see below, agreement in lieu 
 of delivery, clause of tenure at will).^ — In countries of Customary 
 law, where the freehold is more rarely found, the law is rather 
 confused. The drawing up of a written matter and material de- 
 livery are sometimes required.^ At other times the parties go 
 before the lord ^ and proceed with the disseisin-seisin without the 
 lord himself taking any part; the stick passes directly from the 
 grantor to the grantee; or, at least, if the lord gives it,^ it is not 
 as a sign of his soverign power; he only takes part in the matter 
 in order to give it the required publicity, because of his judicial 
 authority, which extends over freeholds as it does over fiefs and 
 manors of his tenure. This is the system of the Customs of public 
 nams described below.^ 
 
 § 303. Monarchic Period. — The system of transfer just de- 
 scribed followed the vicissitudes of feudal ownership, and was 
 modified like the latter, or even almost entirely disappeared, — 
 so much so, that Customary France was divided into two parts 
 upon this question of the transfer of ownership. 1st. Countries 
 of public nams,^ an important group of provinces of the North 
 and East, to which the Netherlands were attached as a natural de- 
 pendency. 2d. The provinces which followed the common law, 
 — that is to say, the larger portion of the Customary country, 
 which was here subjected to a legislation almost identical with 
 
 * Biermann, "Traditio Ficta," p. 37 et seq. 
 
 ^ Boularic, I, 84: a declaration made before a notary and letters, or made 
 under his seal before witnesses, if he has a seal that is known, "Laon.," 133: 
 taking of actual possession: "Sedan," 217; "Vitry," 126; "Troyes," 144, 
 etc.; Chenon, "Alleux," 191. 
 
 ' "Hainaut," 106, 94, 30, 34 (giving of seisin before four o'wners of free- 
 holds and a fifth one who asks them to establish the regularity of the trans- 
 action ["les conjures"]): Merlin, "Rep.," see "Francq-Alloetier"; "Guisnes," 
 16; "Luxembourg," tit. V; Prost, "N. R. H.," 1880 (Metz); Vann, "Arch, de 
 Reims, Gout.," I, 711. 
 
 * "Reims," 139, 162 et seq. (the method of alienation which is used for the 
 copyhold is applied to the freehold). 
 
 5 There is every reason to believe that it is connected with the method 
 of alienation of the feudal period: Salvioli, "R. Ital. p. 1. sc. Giur.," 18, 2. 
 
 ' [The French word " Nantissement," so important as a classification, has 
 so many and various suggestions, that any common English word, conveying 
 fixed implications, would be radically misleading. "Nantir" is to pledge 
 or to assure; yet "nantissement" conveys the notion of a public registration. 
 Etymologically, the word is identical in origin with our now obsolete "nam" 
 (as in "withernam"); this is seen especially in the history of mortgages 
 (post, Topic VI). To avoid misunderstanding, the term "public nams" has 
 here been coined (see "nam," "nim," in the Century Dictionary). This keeps 
 the French root, and also the implication inherent in the French word. — 
 Trans.] 
 
 380
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELIVERY [§ 304 
 
 that of the countries of written law. To these two systems, 
 which were still in force at the time of the Revolution, we may 
 add by way of interesting variations the Breton Public Investiture, 
 Taking by Proclamation at ]\Ietz, the "Auflassung" of the Ger- 
 man law, and, finally, the English practice under its different 
 forms. In general, everywhere there is a tendency to get away 
 from the feudal forms, because they are troublesome, and be- 
 cause they no longer agree with the condition of the law. The 
 majority of the Customs went too far in obeying this need of 
 simplification and logic. Others, more faithful to tradition, re- 
 spected the old forms; they even finished by giving them, while 
 they touched them up a bit, a signification and a bearing which 
 they scarcely had when they originated; by diverting them from 
 their object, they were brought into conformity with new needs, 
 and there were discovered in them advantages of a nature to 
 make up for the fetters upon the freedom of contracting which 
 they carried with them. Between these two tendencies the Nine- 
 teenth Century has hesitated. 
 
 § 304. (I) Customs of Public Nams.^ — The practice of public 
 nams ^ (of duties or acts of law,^ seisin taken by a purchaser, etc.)^ 
 is only a changed form of the old feudal system, and was main- 
 tained in the North of France and in the Netherlands^ because 
 of practical advantages which were foreign to the original con- 
 
 * Ragueau, Guyot, see "Nantissement," "V^ture," "Devoirs de Loi," 
 "Adheritance," "Main Assise," "Mise de Fait," "Werp," "Gurpir," "Vest," 
 etc.; Britz, p. 903 (Belgian bibl.); Hericourt, "Vente des Imm. par Decret.," 
 1739, p. 264; Desmares, op. cit. 
 
 2 This word has two meanings: 1st, a judicial deed or group of the formali- 
 ties of acts of law; 2d, the effect of this deed, — that is to say, the acquisition 
 of an inheritance by right of ownership, usufruct, mortgage, etc. Cf. "nam," 
 "namps," "nants" pledge, a word which is connected v/ith the German 
 "nehmen," to take {Haliaus, "Gloss.," 1405); "Summa Norm.," VII, "de 
 liberatione, namnorum"; Schmid, "Ges. d. Angels.," "Gloss.," see "Nam," 
 "Gout, de Reims." In Varin, "Arch, de R.," I, 733, the creditor presents to 
 the lord (or to his court) binding letters of debt and asks him to secure 
 them out of the inheritances held from him as fiefs or copyholds, so that 
 he shall not invest any one with these inlieritances excepting subject to a 
 mortgage. 
 
 ' As to the word "loi," cf. Ragueau ("lois de ville jurde" means body of 
 aldermen; "villes de loi " means a body of aldermen, etc.). "GEuvres de loi" 
 (acts of law) thus means "ccuvres de justice" (acts of justice, or of the court). 
 Cf. "leges," or legal proofs of the "Summa Norm.," 10, 2 ("loi simple" means 
 proof of oath; "loi apparaissant " means proof by duel, etc.). 
 
 * They also say "werp," disseisin-seisin, conversion into money, etc. 
 
 s "Hainaut," 94; "Li^ge," 6; "Artois," 71; "Lille" ("La Salle"), 10; 
 "Vcrmandois, N.C.," 126 etseq.; "Cambrav," 5; "Amiens," 137; "Chauny," 
 2; "Reims," 142, 162; "Boulonnais," 115; "Ponthieu," 111; "Douai," ("des 
 don. et vend."); "Ribemont," 51; "P(5ronne," 259; "Laon," 126; "Valois," 
 13 et seq.; "Sedan," 258; "Senlis," 19; "Noyon," 34. 
 
 381
 
 § 304] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 ception. The solemnities of the investiture, or the giving of 
 seisin, which were destined to assure to the lord the payment of 
 his profits, served especially to give to the transfer, or to the 
 establishment of real rights, the authenticity and publicity which 
 are demanded by a well-organized system of land credit. At least 
 it is in this sense that the law progressed, tending more and more 
 to depart from its feudal connection.^ 
 
 § 305. The "Acts of Law " consisted in the vesting and divesting, 
 such as we have described them, but with this difference, that 
 they were not generally carried out before the lord,- but before 
 the seigniorial or royal judges. The tribunal to which one must 
 applj'^ varies. Sometimes a distinction is made between fiefs and 
 villein tenures, in conformity with the Feudal law; in the case of 
 fiefs it is the feudal court, composed of a bailiff and men who hold 
 fiefs; in the case of copyholds the aldermen's court, which is com- 
 posed of a provost, mayor and the copyholders. These two courts 
 are those of the lord of the tenure within which the property is 
 to be found; sometimes, due to a noticeable progress, it is the tri- 
 bunal or the lawyers of the locality where the land is situated.^ 
 Freeholds are subjected to these formalities as well as fiefs and 
 copyholds, — at least, in the Netherlands (for example, the pres- 
 ence of four freeholders, and a summonser who calls upon them, 
 that is to say, requires them to establish the regularity of the 
 transaction).^ The " acts of law " are thus judicial acts; the sym- 
 bolical formalities have lost their importance and have become 
 detached from it in certain Customs. There are localities where 
 everything is reduced to a simple recognizing of the contract at 
 law; ^ the same person could then play the part of grantor and 
 
 1 This is what was declared in the Placards of the princes of the House of 
 Austria for the Netherlands of Februarj^, 1528, and Dec. 6, 1586: to avoid 
 frauds and deceitful selling; cf. especially the "Edit Perpetuel" of 1611. This 
 motive accounts for the extending of the feudal custom to freeholds {cf. as to 
 this, "Hainaut," 106), publicity by means of registers. Ordinarily, it was 
 required that contracts transferring real rights should be authentic: "Ver- 
 mandois," 119; " Reims," 180'; Regulating Order of the Parliament of Flanders, 
 Oct. 4, 1765; Aug. 27, 1676; "Roisin," p. 444. 
 
 * Cf., however. Merlin, in Guyot, see "Devoirs de Loi" (the lord can 
 replace his bailiff or his provost, because this comes within his gracious 
 jurisdiction). 
 
 2 Details in Merlin, loc. cit.; Britz, p. 906; Raepsaet, "Orig.," no. 103; 
 Placard of Sept. 16, 1673. 
 
 ^ Placards of Feb. 10, 1538: Dec. 6, 1586. Holland: vassals also. "Hai- 
 naut," 69, 106; "Luxembourg," 5, 7 (under the azure of the sky), 
 "conjure" is in the Netherlands a formality essential to every public 
 nams. 
 
 5 "Amiens," 137; "P^ronne," 264; "Douai," 2, 2. 
 
 382
 
 Topic 6] OWNERSHIP OF niMOVABLES — DELIVERY [§ 306 
 
 grantee, could disseise himself in the name of the grantor and 
 seise himself in his own name, which would have been too repug- 
 nant in a place where the custom of the giving of the stick or 
 the fagot had persisted.^ Several Customs demanded that con- 
 tracts by virtue of which legal duties passed should be proved by 
 means of authenticated deeds. As in the case of vesting and di- 
 vesting, the extent and the limits of an inheritance which was 
 sold or mortgaged had to be specified therein.^ From this it re- 
 sulted that general mortgages were not possible in countries of 
 public nams, any more than were secret mortgages.^ The pub- 
 licity which constituted an essential element of the system of 
 public nams would have been temporary if it had been limited 
 to the formalities of vesting and divesting; it was made permanent 
 by demanding, in order to make legal duties valid, that they 
 should be registered in the clerk's office of the judges who had 
 received them; ^ for the register upon which, in the order of their 
 dates, the giving of pledges was inscribed, was accessible to the 
 public. 
 
 § 306. The Same. — This system was only applied to the alien- 
 ation of immovables "inter vivos"; alienations "mortis causa" 
 (by intestate succession and by will) did not give rise to it; it 
 was then said that the transfer took effect by operation of law. 
 This no doubt was due to two reasons, — first of all to the feudal 
 origin of public nams, and then again to the fact that in the case 
 of changes caused by death the transmission of property was sur- 
 rounded with a sufficient publicity because of the circumstances 
 under which it took place.^ Subject only to this distinction, one 
 can say that alienations of a part were not treated differently 
 from alienations of the whole; the "acts of law" were thus 
 
 1 "Verm. T. A. C," 91; "N. C," 126; "Lille," 80; "Artois," 2, 7. 
 
 2 "Reims," 176; Edict of Apr., 1676, etc. 
 
 ^ At least, generally; for in Vermandois, at Reims, etc., public nams 
 was only required in cases of mortgages formed by agreement. CJ. Merlin, 
 see "Nant.," § 2; "Cambrai," 5, 11. 
 
 * "Vermandois," 119 el seq.; "Reims," 177; "Amiens," 145; Placard of 
 Sept. 16, 1673. — Contra: "Artois" "Hainaut," Merliii, see "Devoirs de 
 Loi." — Giry, "Hist, de St.-Omer, p. 187: "greffe des werps" in the four- 
 teenth century. 
 
 ^ Partitions because of their declaratory character and contracts of mar- 
 riage because they include advancements of heirship were treated in the same 
 manner as wills. Let us observe outside of any divergencies upon these points 
 that there is a tendency to submit wills to a judicial ratification and to regis- 
 tration. Guyot, see "Rapport de Loi," " Nantissement " ; Dritz, p. 912. — 
 Alienations carried out by the sovereign and alienations of fictitious immova- 
 bles, such as a constituted rent or an office, are also converted into money 
 of absolute right because of other motives: Varin, loc. cit., supra. 
 
 3S3
 
 § 306] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 required in order to establish real rights/ and especially for the 
 establishment of a mortgage.^ 
 
 § 307. The Effects of public nams are remarkable. — (I) "In- 
 ter partes." The ownership is not transmitted nor the real right 
 established as long as the public nams has not taken place. This 
 does not mean that the contract — for example, the sale — is 
 not valid; it holds good, and there results therefrom a personal 
 action for the benefit of the buyer against the vendor.^ (II) " Erga 
 alios." All the more can the alienation not be challenged by third 
 parties on the ground of lack of investiture. Of two grantees, 
 the first who takes public nam prevails over the other; of two 
 mortgage creditors, the first who takes public nam is preferred 
 to the other (excepting if there has been fraud). Thus the effect 
 of the public nam is to get rid of the rights of third parties over 
 the immovable, if these rights have not themselves been vested 
 by means of the taking of seisin by the purchaser. But the 
 "verus dominus" by public nam, and the mortgage creditor by 
 public nam, preserve their rights, pursuant to the feudal rule 
 (ante, § 301) that the lord gives the seisin, always saving his 
 right and that of others. The effect of Breton public investiture 
 was different, as we shall see; for the basis of the formalities of 
 that system was a summons to the interested parties to set forth 
 their rights, under penalty of losing them. — The taking of pos- 
 session in fact '^ could not take the place of public nams; the 
 most that it allowed a grantee was to make use of the posses- 
 sory action; ^ but, undoubtedly, under the influence of the Roman 
 law, in the end it was admitted that prescription (ten years in 
 Vermandois) was as good as taking of seisin by the purchaser.^ 
 
 § 308. The Public Nam Customs differed too greatly from the 
 common law of monarchic France to remain immune from an 
 attempt to assail their special system with relation to the alien- 
 ation of immovables. The Edict of June, 1771, Art. 35, and the 
 Declaration of June 23, 1772, abolished the usage of seisin and 
 
 1 "Edit Perp.," July 12, 1611, Art. 24 (Netherlands): no real right over 
 immovables can be acquired unless by acts of law. 
 
 2 "Cambrdsis," 5, 1; "Cout. de La Salle de Lille," three motives for creat- 
 ing a mortgage. 
 
 3 Merlin, p. 125 (in Guyot, see "Nant.," ed. 1781, XLI). 
 
 * The taking of seisin by the purchaser gives him the ownership of the 
 property and the right to take possession of it of his own authority: "Li^ge," 
 6, 8. In Vermandois taking possession in fact is sufficient in the case of 
 freeholds. 
 
 5 "Vermandois," 129; "Chauny," 34; "Reims," 167. 
 
 6 "Sedan," 261: possession of ten years is equivalent to investiture. 
 
 384
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELIVERY [§ 309 
 
 public nam in so far as it applied to mortgages. But their pro- 
 visions were only applied in Picardy and in Vermandois within 
 the jurisdiction of the Parliament of Paris; the Parliament of 
 Flanders and the Sovereign Council of Artois refused to record 
 them. Public nam was only really done away with by the Law 
 of September 19-27, 1790, Art. 3, and if it was proscribed, it was 
 because of its feudal character. Moreover, the Revolutionary law 
 was less radical in reality than in appearance; if the idle formalities 
 of vesting and divesting disappeared from localities where routine 
 had preserved them, the registering w^hich accompanied them was 
 preserved under the name of transcription.^ Deeds of conveyanc- 
 ing and mortgage had to be copied upon a register at the clerk's 
 office of the court of the district in which the property was situ- 
 ated, under penalty of not being valid against third parties who 
 had contracted with the vendor and had conformed to the law: 
 such was, at least, the distinction made by the Law of the 11th 
 Brumaire of the year VII (2, 26). ^ Thus, public nam survived 
 under this simplified and more modern form of transcription, and 
 the Law of the 11th Brumaire, year VII, was able to make of it 
 the basis of our system of mortgages, for there were met with 
 therein the advantages which are especially sought for: facility of 
 proof, publicity, and specialty. If the Civil Code retrograded by 
 not demanding transcription for the validity of the alienation of 
 immovables, the Law of March 23, 1855, revived the provisions of 
 the Revolutionary law upon this point. 
 
 § 309. (II) Public Investiture by Means of Proclamation^ 
 
 * Transcription means copy. The ordinances dealing with registration 
 prescribe that all or part of the deed of gift should be transcribed on the 
 register. Cf. post, "Gifts." — As to transcription, cf. "R. h. Dr.," 1855, 97, 471; 
 Dramard, "Bibl. du Code Civil." Post, "System of Mortgages." 
 
 ^ Law of the 11th Brum., year VII, 2, 26: transcription in the office where 
 mortgages are kept. The Law of Sept. 20, 1790, made the alienation de- 
 pendent upon the fact of transcription without making any distinction be- 
 tween third parties and the parties themselves. It has been contended that 
 the Law of the 11th Brum., year VII, made this distinction as a consequence 
 of a mistake made by the reporter, Crassous (de l'H6rault), upon the legisla- 
 tion of the countries of public nams. It is rather a result of the change 
 brought about by the Revolution in the theory of public nams. The prin- 
 ciples of the Feudal law led people to say that the ownership was not transferred 
 even "inter partes" if there were no public nams; but in the modern law we 
 have ceased to be concerned with the rights of the lord and only take into 
 consideration those of third parties. 
 
 ' "T. A. C, Bret.," ed. Planiol, c. 39, 40, 44 (com. of the 14th cent.; cf. 
 as to the date, Brunner, "Z. S. S., G. A.," 1898, 110); "A. C." (1.539), 267; 
 "N. C." (1580), 269; "Comment." by D'Argentr6, Sauvageau, etc. — See 
 Guyot; Couchouren, "ThSse," 1888 (bibl.); Planiol, "N. R. H.," 1890, 463; 
 CMnon, "L'Ancien Droit dans le Morbihan," 1894. 
 
 385
 
 § 309] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 according to the Custom of Brittany.^ — This institution, the ex- 
 istence of which is not verified before the thirteenth century,^ is 
 connected with the tenure of a year and a day.^ It serves to pro- 
 tect the grantee, in the first place, when there has been a sale, and 
 aftenvards when there has been a gift, an exchange, or an aliena- 
 tion of part of a nobleman's inheritance when he has been put in 
 actual possession by an owner who has himself been in possession 
 during a year.'* Three "bannies" or proclamations take place 
 when Mass is over, on three consecutive Sundays, with the ob- 
 ject of letting the purchase become known to the public.^ In the 
 fourteenth century petitions are even addressed, in order to be 
 more sure, to the relatives of the vendor.^ The procedure is 
 concluded by the certification of the proclamation, made by the 
 tribunal within whose jurisdiction the inheritance which has been 
 sold is to be found; ^ and this tribunal is not content with giving 
 effect to the formalities which have been accomplished; it pro- 
 nounces a real adjudication of title for the benefit of the pur- 
 chaser.^ The Edict of August, 1626, demanded the registration 
 of the contract before any taking of possession, so as to avoid 
 alienations which were sudden and of such a nature as to escape 
 the knowledge of interested parties (thus, in the Civil Code, 
 
 1 Normandy had, as it were, an embryo of this institution. It is not dealt 
 with in the "Summa," c. 116, but the "Cout." of 1583, Art. 452 et seq., pro- 
 vides for a reading of the contract of sale after Mass is over on three consecu- 
 tive Sundays; and these publications are entered on the back of the contract. 
 They merely constitute the beginning of the delay of a year and a day within 
 which the repurchase by a person of the same lineage may be exercised; if 
 these readings have not taken place this repurchase may be exercised during 
 thirty years: Basnage, on "Norm.," p. 355; Houard, "Diet.," see "Clameur." 
 Cf. also Beaumanoir, 44, 25, 26. 
 
 2 Deeds of the eleventh and twelfth centuries, — no proclamations; but 
 publicity (witnesses, sureties, seals). In the thirteenth century the procla- 
 mations are looked upon as being an ancient custom: Planiol, p. 438. _The 
 oldest deeds in which they are mentioned relate to compulsory sales. 
 
 ' Or, rather, with the procedure of the "missio in bannum." Post, "Dis- 
 tinction between Persons who are Present and those who are Absent." The 
 necessity of a year's possession on the part of the grantor is only a discordant 
 element in the Breton system of public investiture, a borrowing from the 
 theories of the Romanists. Post, "Common Customary Law." Cf. pro- 
 cedure of the forced decree or adjudication upon a distraint of immovables. 
 
 * No public investiture for transactions, judgments other than those of 
 an adjudication, nor for a mortgage which is an accessory of claims. 
 
 ^ In the eighteenth century the proclamations are read and posted up. 
 
 ' Cf. "Repurchase by a Person of the Same Lineage" (offer). Afterwards 
 these petitions fell into disuse, which is to be accounted for by the weakening 
 of the rights of the family. 
 
 ^ "T. A. C," 40. A certificate given by the court upon the record of the 
 sergeant who has made the proclamations. Cf. Certification of the public 
 announcements in case of a compulsory decree. 
 
 8 Practice has a tendency in this direction: it admits of the appeal. 
 
 386
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELIVERY [§310 
 
 transcription precedes paying off). Before proceeding to the first 
 proclamation it was compulsory to wait for the expiration of six 
 months, dating from the time of registering.^ Public investiture 
 had for its effect the confirming of the purchase by making it 
 almost invulnerable.^ Interested parties who were present, that 
 is to say, who happened to be in Brittany, only had eight days 
 after the last proclamation to offer opposition ; this period having 
 expired, they were foreclosed; by reason of its shortness it was 
 found necessary to prolong it until the certification of the proc- 
 lamations. As to those who were absent^ they were only barred 
 by the tenure of a year and a day on the part of the purchaser.^ 
 The normal encumbrances on ownership, such as servitudes, feudal 
 rents, and ground rents, survived public investiture; but every 
 other right over the immovable disappeared as though by the effect 
 of a paying off :^ thus the power of repurchasing by the relatives or 
 the lord, the rights of mortgage creditors, those of the true owner, 
 and even those which guaranteed the payment of the price to the 
 vendor. Public investiture remained in force until the first of 
 Nivose, year IV (December 22, 1795); the Decree of the 9th Mes- 
 sidor of the year III, which repealed them, as well as public nams 
 and the "acts of law" (Art. 276), went into effect that same day. 
 § 310. (Ill) Investiture and Giving of Public Notice at Metz.^ 
 — In the old times at Metz, according to the old Customs, the trans- 
 fer of the ownership of real property took place by proclamation 
 in court, that is to say, in the presence of the court held by the 
 aldermen with the assistance of the mayor, who alone had the 
 right to pronounce the proclamation; ^ the grantor himself in- 
 vested the purchaser in the presence of the aldermen and the lead- 
 ing men. But at the beginning of the thirteenth century it was the 
 
 1 People complained that public investiture was degenerating into a de- 
 spoiling. 
 
 - In a system of property which was as complex as that oT the old law 
 the public investiture must have appeared as a real benefit: it avoided actions 
 and allowed the purchaser to dispense with an investigation of the rights of 
 his grantor. 
 
 ' A thing which allowed of fraud: people who were absent lent their 
 names to the relatives who were present and took back the land for the 
 latter. 
 
 * The purchaser becomes the owner, although the seller may not have 
 been. Neither the voluntary decree nor the public nams have such far-reaching 
 effects 
 
 6 P'rost, "N. R. H.," 1880, 1 and 301; 1878, " L'Ordonnance des Maiours," 
 189 and 283; "R. de L6gisl.," 1876 (Judgment at Metz in the thirteenth 
 century). 
 
 * As to the proclamations in court at the opening of the term of the latter, 
 Prost, "N. R. H.," 1878, 209. — See post, Judicial " Auflassung." 
 
 387
 
 § 310] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 mayor, assisted by the aldermen, who performed the investiture, 
 that is to say, who gave the purchaser the seisin; this act became 
 one of pubUc authority, perhaps as a consequence of the influ- 
 ence of the Feudal law. It was not long before they went further 
 in this direction and gave to public authority a more important 
 place; during the course of the thirteenth century * investiture 
 was supplanted by another procedure, the giving of public notice, 
 that is to say, the solemn proclamation of the taking possession 
 by the purchaser, which was made by a public officer under the 
 authority of the mayor. There took place as many as four of these 
 public notices; the first fixed in an authentic manner the begin- 
 ning of the possession of a year and a day, which should do away 
 with all adverse claims; the first three public notices were pro- 
 claimed within the year at the courts of Easter, Christmas, and 
 the middle of August; at the fourth, that is to say, at the begin- 
 ning of the following year, the proceeding was closed and the right 
 was acquired.^ Up to that time, at each giving of notice, inter- 
 ested parties had the right to offer opposition ("escondit"); they 
 were even asked to do so, as is shown by the formulae which were 
 made use of: the master alderman said, "I give public notice for 
 
 ■ in copyholds and freeholds," upon which the mayor got 
 
 up and cried out three times, "Does no one speak against these 
 public notices? no one speaks"; and, without doubt, if no one 
 raised any protest, the master alderman replied, "and it goes on." 
 These formalities accomplished, the public notice was cried through 
 the town. The giving of public notice was thus superior to simple 
 investiture; it was surrounded with greater publicity; it cleared 
 off the rights of third parties who had neglected to appear before 
 the aldermen to offer opposition. This accounts for the giving up 
 of investiture; this also accounts for the extension which was af- 
 forded to the method of public notice; it was made use of for every 
 change of ownerhsip^ "inter vivos" or "causa mortis," ^ by act 
 of law or by extrajudicial act.^ In time the municipal institution 
 
 * Before 1220 no giving of public notice; after 1263 no more investiture. 
 
 ' Inscribing of the giving of public notice upon rolls (which were kept 
 from 1220 until 1546). — "Amiens," 1209, 46 (three terms of court a year). 
 
 * Or establishing of a real right. Investiture "en aine et en fond," "inani 
 et tranfifundo" (c/. "aysina" meaning "superpositum," "suppellex") is the 
 granting of absolute ownership; on the contrary, investiture in "gagifire" 
 is carried out by way of a pledge. In the case of a fief the lord alone conferred 
 the investiture; it seems that the giving of public notice was possible without 
 his intervention. 
 
 * Inheritance upon intestacy, gift, dower, partition, etc. 
 
 ^ Judicial deeds (which were no doubt the beginnings of the procedure):
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELR'ERY [§311 
 
 became modified ; ^ the forms of the giving of public notice were 
 simpHfied; it fell into decline, and in the sixteenth century we 
 find it scarcely made use of, excepting on the occasion of loans 
 upon immovables,^ until in 1641 it disappeared, to make room 
 for the mortgage system of the Custom of Paris. If it is easy 
 to understand that the Customary common law replaced these 
 archaic usages, their origin is, without doubt, in the Frankish 
 practices of the"missio in bannum," and one is struck by their 
 analogy to certain institutions of countries of public nams, such 
 as the seizure and delivery in fact.^ 
 
 §311. (IV) German Law. — Three phases are to be distin- 
 guished therein : (o) the practice of the barbarian period, which we 
 have already described; (6) the system of the judicial " Auflassung" 
 of the thirteenth and fourteenth centuries; (c) the modern system 
 of land registers, which is derived therefrom, although it is inspired 
 by a practical object which is entirely different. The "Auflas- 
 sung" of the Middle Ages is especially designed to protect the in- 
 terests of the lord, of communities and of families; it is only as a 
 side issue and in addition to this that third parties and the parties 
 themselves get any advantage out of it. On the other hand, under 
 the system of land registers, the interest of third parties and of 
 the parties themselves is alone taken into consideration. It was 
 possible for evolution to take place in this direction as soon as the 
 judicial assemblies in which the free men only had the right to 
 take part, upon condition of being land owners, ceased to be held, 
 and in proportion as plebeian ownership gained strength at the 
 expense of the seigniorial ownership, individual ownership at the 
 expense of the rights of the family. The Roman law contributed 
 to these changes, but at the same time acted as a disturbing 
 force in the progress of jurisprudence. 
 
 The " Auflassung," or giving of seisin at law, is very closely con- 
 nected with the Frankish usages; we have already seen in them 
 
 delivery in court (following a judgment); "estault," or distraint upon the 
 movable property (entirety) of the debtor by the creditor who is upheld by 
 the law; "conduit," or being put in possession of an inheritance by the author- 
 ity of law after the "huchement" (proclamation) of the Thirteen (authority 
 of the poHce power); "exurement" and "relevement," taking of possession 
 by the creditor of the inheritances encumbered with rents and their taking 
 back by the debtor. 
 
 1 In 1552. After 1641 there were no more aldermen, mayors, or giving of 
 public notice. 
 
 2 Prost, "N. R. H.," 1880, p. 371. "Ord.," 1564: only one giving of public 
 notice. Delay of two years and one day. 
 
 * See Guyot ("Main Assise," etc.). Post, "Mortgages." 
 
 389
 
 § 311] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 that alienations of immovables often took place at law "in mallo," 
 in the Prankish practice. The " Sachsenspiegel " makes the inter- 
 vention of law an absolute condition of the transfer of prop- 
 erty (I, 52, 1: without the consent of the heirs and without the 
 "echte Ding," no one can dispose of his possessions and his men). 
 This is owing to the fact that the majority of possessions are fiefs 
 or copyholds, and that their alienation assumes a reversion to 
 the lord, — a reversion which takes place in the presence of the 
 feudal court or of the plebeian court (which is the old "mallus" 
 in survival). In towns the jurisdiction belonged to the municipal 
 authorities; now the latter must have some interest in an act 
 which, like the acquisition of land, confers important rights and 
 imposes obligations (such as that of contributing to the public 
 expenses); also, it is not rare to find the townsmen of a locality 
 forbidden to dispose of their lands for the benefit of anybody ex- 
 cepting one of their fellow townsmen.^ From this it resulted that 
 in the towns the "Auflassung" took place before the "Stadtrath" 
 or Council of the town. From the "Hofrecht" ^ and the "Stadt- 
 rath" the necessity of the act at law extended without difficulty 
 to the "Landrecht" and the "Landgerichte." ^ Moreover, out- 
 side of motives due to the feudal system and the town laws, the 
 interest of the parties and that of third parties justified this ex- 
 tension : facility of proof, publicity of the deed, guarantees against 
 third parties, — such were the advantages of the system of the 
 "Auflassung."'* 
 
 The formalities of the "Auflassung" are the following. The 
 parties, after having come to terms by means of a preliminary 
 agreement ("Geliibde," for example, sale) which corresponds to 
 the "justa causa traditionis" of the Roman law,^ proceeded at 
 law with the transfer of the ownership or the "Auflassung"; the 
 giving of material possession, or the " Einweisung," completes the 
 act. The "Auflassung" is nothing at bottom but the disseisin- 
 seisin of the French law; the word itself signifies, properly speak- 
 
 » Heusler, II, 85; Huber, IV, 706. Id., in France, cf. Giraud, II, 260. 
 
 * Examples in Huber, IV, 706. 
 
 » "Schwabensp.," I, 38, 40; Huber, IV, 706. 
 
 * The parties received a writing attesting the conveyance and furnished 
 with the seal of the judge ("Fertigung"); this was the chief advantage con- 
 templated first of all: Huber, IV, 703. The judicial deed did not become 
 obligatory in Romanic Switzerland, whereas it was obligatory in German 
 Switzerland. 
 
 * From this there arises an obligation which can be transmitted to the heirs : 
 "Sachsensp.," 1, 9, § 1 et seq.; Brunneck, "Geach. d. Grundeigenth. i. Preussen," 
 1895. 
 
 390
 
 Topic 6] OWXERSHIP OF IMMOVABLES — DELR'ERY, [§311 
 
 ing, disseisin or quitting; but it also serves to designate by an 
 extension of the whole operation, the disseisin and the giving of 
 seisin which follows it. The grantor declares that he abandons the 
 land for the benefit of the grantee; and to this declaration there are 
 joined or not, according to localities, the old formalities of the 
 giving of the glove, the stick, the clod of earth, or the making 
 of the symbolical gesture ("curvatis digitis")-^ Upon which, the 
 judge calls upon the participants three times to plead their rights, 
 and in default of any claims, declares that the right has been 
 transferred, that is to say, he ratifies the act and places his peace 
 upon the property, or, in other words, forbids anyone from dis- 
 turbing the grantee.^ A report of the proceeding is drawn up 
 in the same way as for a judgment or municipal debate, and 
 inscribed on the registers of the court or of the Council of the 
 town, or even on special registers, "libri resignationum," which are 
 the origin of the modern land registers ("Grundbiicher"). The 
 inscribing in these registers constituted a proof, just as the testi- 
 mony in court. In certain localities this inscription came to be the 
 most important formality and the "Auflassung" a secondary one 
 (Bohemia, thirteenth century).^ 
 
 The effects of the judicial feoffment in German law are more 
 radical than those of the French public nams. The ownership 
 w^hich was transmitted ^ was not such as the man making the grant 
 had, but such as the judge declared it to be, so that the situa- 
 tion of the grantee might be better than that of his grantor; ^ 
 in fact, he found himself protected from* any attack by virtue of 
 the legal formalities. The most that third parties had was the 
 resource of acting within a year and a day before the "rechte 
 Gewere" was required by him.^ The part played by the tribunal 
 
 1 In many localities giving of the ownership to the judge by the grantor and 
 a transfer of it by the judge to the grantee. Cf. Saxony, " investitura allodialis." 
 
 ^ Legal forms, c/. Lahand, "Verm. Kl.," p. 236, which does not mean to 
 say that there was a fictitious action. — Brunner, "Urk.," p. 286. 
 
 ' Sometimes conveyances and the formation of real rights are written one 
 after the other in the order of their date; sometimes a chapter is opened upon 
 each piece of land so as to include every act of what might be called its civil 
 status: searches then become easier and more certain. Letters were delivered 
 to the parties ("Gerichtsbrief," "Wehrebrief"), Stobbe, § 67. 
 
 * As to possession ("Gewere") there is a controversy: Stobbe, II, 191. 
 Often a procedure was organized for the "Einweisung": "Sachsensp.," Ill, 83 
 ("sossia triduana"). 
 
 ' His grantor could have been evicted by the "verus dominus"; the assign 
 is not exposed to this danger. But this consequence was not at first recognized 
 because in the beginning the judicial deed was not necessary. Huber, IV, 
 704. 
 
 * Prescription may make up for a lack of "Auflassung." 
 
 391
 
 § 311] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 makes this consequence a reasonable one; it took an active part in 
 the deed, summoned third parties to plead their rights, and, if they 
 did not raise any claims over the property, placed its peace upon 
 the latter. In certain localities it even went so far that control of 
 the court modified the contract itself, which served as a foundation 
 for the alienation (sale, gift, etc.).^ And, in order to give more 
 publicity to the transaction, when justice was no longer rendered 
 by popular assemblies, it was sought to bring it to the notice 
 of everybody by means of public placards. 
 
 Thus we see that the modern system of land registers,^ and the 
 principle of the "legal title" which gives the grantee so much 
 security, and which places landed credit upon such a firm basis, 
 have their origin in the "Auflassung" of the Middle Ages, very 
 much as registration sprang out of public nams in France. But the 
 influence of Roman law disturbed and complicated in a singular 
 manner the German practice from the sixteenth century.^ The 
 modern legislator has had to make it over and put some order into 
 this chaos, so as to educe from it the system of mortgages which 
 has been proposed in our days as a model for other countries.^ 
 
 § 312. (V) The Common Law of the French Customs.^ System 
 of Pretended Delivery. — The common law of the Customs of the 
 sixteenth century is formulated by Loysel, 746, in the following 
 
 ^ Huber, IV, 710: they even go so far as to make the legal "Fertigung" 
 obligatory for the formation of a contract, in the same way as elsewhere they 
 require the drawing up of a notarial deed. It is only in our century that the 
 contract and the transfer of property have been clearly separated. See also 
 the system practised at Bremen since the thirteenth century: Frommhold, 
 p. 150; Challamel, "Bull, de la Soc. de Legisl. Comp.," 1878, p. 482. 
 
 2 Bibl. on the history of the "Grundbiicher": Brunner, "Grimdz.," p. 176; 
 Huher, IV, 711; Flammer, "Dr. Civil de Geneve," p. 168; "Z. S. S., G. A.," 
 1893, 1; Aubert, "Z. Gesch. Deutch. Grundbiicher"; Rehme, "Gesch. d. Miin- 
 chen. Grundb.," 1903 (in the "Festg. f. Fitting," Halle). 
 
 ' Thus was revived the double ownership of the classic Roman law, by 
 contrasting the "dominum civile" or ownership inscribed upon the land regis- 
 ter, upon which a reclaiming could be based, and which could be lost only by 
 another registration, and the "dominum naturale," or possession based upon 
 title, protected by the action and a defense "rei venditae et traditse." Cf. 
 Prussian "Landrecht," I, 10, 1 et seq. In various locahties the old formahties 
 were abandoned, where they were looked upon as a hindrance (every citizen 
 has his own chancery, they say in Zurich, — that is to say, that he himseK 
 seals and authenticates his deeds): Biermann, "Traditio Ficta," 1891. Post, 
 "Common Law of the Customs." 
 
 * Besson, " Les Livres Fonciers et la Reforme Hypothecaire," 1891 ; " Proc6s- 
 verbaux de la Commission Extraparlem. du Cadastre," 1891 et seq. 
 
 * Texts in the "Confer, de Guenois," pp. 344 and 315; Ferriere, on "Paris," 
 82 (bibl.); Tiraqueau, "De Jure Constituti Possessorii," "Opera," 1597, IV; 
 Domat, "Loix Civ.," I, 2, 2; Pothier, "Propriete," IX, p. 101, ed. Bug.; Guyot, 
 see "Tradition," "Clause de Constitut.," etc.; see Ferriere, Denisart; Bourjon, 
 I, pp. 270, 470 (ed. 1770). Works on Arts. 711 and 1138 of the Civil Code, cf. 
 Dramard, "Bibl. du Code CivU"; "Encicl. Giur. Ital.," see "Const. Poss." 
 
 392
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELIVERY [§313 
 
 terms: "Disseisin and seisin made in the presence of notaries and 
 witnesses are as good as, and are the equivalent of, deHvery and 
 release of possession." ^ In contracts which transfer immovable 
 property there is inserted a clause setting forth that the formalities 
 of disseisin-seisin have taken place; the majority of the time this 
 is contrary to the truth; the notarial report is untrue; but none the 
 less are these formalities held to have been carried out. The de- 
 livery on paper has the same effect as actual delivery.^ 
 
 § 313. The Same. — Origin.^ — Alongside of actual delivery, we 
 already find in the Roman laws cases of the transfer of owner- 
 ship without an actual giving of the thing to the grantee: "inter- 
 dum etiam sine traditione nuda voluntas domini sufficit ad rem 
 transf erendam " ("Inst." of Just., 2, 1, 44). Let us cite, as examples 
 of these, the delivery of the keys of a warehouse containing goods 
 sold, the delivery of documents for a sale of slaves, the deliv- 
 ery "brevi manu" when the occupant (for example, a tenant) 
 acquires the land which he occupies, the agreement in lieu of 
 delivery when the possessor becomes a holder "pro alio," for 
 example, by reserving the usufruct of the property which he alien- 
 ates, or by becoming the tenant of the grantee.^ These proceed- 
 ings had, it seems, neither revolutionized the doctrines nor the 
 practice which always adhered on principle to material delivery. 
 But during the barbarian period delivery "per cartam" may be 
 connected with it. In cases where it was hard to carry out an 
 actual delivery of the land alienated, this delivery was dispensed 
 with at first by conveying with a fictitious reservation of the 
 usufruct (for a few days only); from the sixteenth century, in 
 Romagna, the "retentio usufructus" is considered as the equiva- 
 lent of the "solemnis et corporalis traditio." ^ A little later on, 
 in the eighth century, the fiction of the reserving of the usufruct 
 was abandoned for the giving of the deed which established the 
 intent to convey; it was customary to draw up deeds of tliis 
 
 1 "Lorris," XI, 7; "Orleans," 278; "Meaux," 3, 13; "Sens," 230. 
 
 2 Judicial sentence, Masuer, X, 9 (feigned delivery useless); Landsberg, 
 pp. 140, 142. 
 
 ' Brunner, "Rom. u. Germ. Urk.," I; Landsberg, "Glossedes Accursius," 
 1883; Biermann, "Traditio Ficta," 1891; cf. Savigny, "Possession," etc. 
 
 * Dig., 18, 174 ("clavcs apud horrca traditi"); 18, 6, 14, 1 ("trabes 
 signatas"), cf. 1, 2 ("dolium signatum"); 41, 1, 9, 5 (delivery "brevi manu"); 
 41, 1, 18 " pr." (agreement for possession, in lieu of delivery; 18, 1, 75; 19, 1, 21, 
 4, lease; 21, 3, tenure at will); "Cod. Just.," 8, 53, 28 (reservation of the usu- 
 fruct); "Cod. Just.," 8, 53, 1. 
 
 ^ Marini, "Papiri Diplom.," 1805, no. 86 (in 553); Spangenberg, "Juris. 
 Rom. Tabula; negot. sollemn.," 1822, no. 183, etc. On the "epistulae tradi- 
 tionis," cf. Biermann, p. 24. 
 
 393
 
 § 313] OWNERSHIP AND RE.\L EIGHTS [Chap. II 
 
 nature from the time of the Roman period; the deUvery was set 
 forth therein, but they were merely means of proof; in the eighth 
 century the giving of the writing had the effects of the " corporaUs 
 traditio." ^ Already, before this period, delivery "per cartam"^ 
 had been introduced into France, a fact established both by 
 formulae and by deeds, and which the Germanic ideas no doubt 
 favored as to symbolical delivery. The school of the Glossators 
 could not fail to respect the Roman principle of the necessity 
 of the actual delivery, but it understood the exceptional cases 
 which figured in the texts in a broader way. Thus the Gloss 
 holds that the giving of the deed ^ bearing the word "tradidit" 
 and analogous terms has the effect of transmitting possession, 
 and Azo declares that "traditione instrumentorum acquiritur 
 dominium vel possessio";^ so, too, it recognizes unrestrictedly 
 the delivery ^ by formal recital, and the practice of the time fol- 
 lowed it, as is evident from the notarial formulary of Rolandinus 
 Passagerius,^ which was so widespread. With true inconsistency, 
 or, rather, owing to a scrupulous regard for the text, the Gloss 
 does not recognize the "investitura abusiva," or symbolical de- 
 livery, as having the effect of transferring possession. The Post- 
 Glossators gave, as it were, a practical meaning to these doctrines, 
 
 1 We already read in a gift from Justinian to the Church of Ravenna: 
 "Corporaliter per epistolam tradi fecit"; "Z. S. S., G. A.," 142. Texts and 
 proofs in Bierrnann, p. 28; Brunner, "Urk.," p. 112. 
 
 * Brunner, p. 288. The "Interpr." of Paul, 1, 12, 6, does not yet attribute 
 to the conferring of a title the effect of transmitting a real right. But the "L. 
 Rom. Cur." is to the contrary: Zanetti, "La Legge Romana Ret. Coir.," 1901; 
 "Form. Turon.," 14, 15; various statutes (804 at Angers, etc.); Bierrnann, 
 p. 31; "Petrus," 2, 3, 13: the grantee only becomes owner if he is "corporaliter 
 inductus in possessionem"; but "pro traditione rei habetur, quocumque modo 
 res vendita remaneat apud venditorem nomine emtoris, sive nomine depositi, 
 sive commodati; sive conductionis jure; vel etiam si venditor usumfructum 
 retinuerit." According to this idea the "Petrus" settles the conflict between 
 two successive buyers or two donees; but in this last case it is only a question 
 of the "investitura corporalis." 
 
 ' Is the deUvery of the "instrumenta emtionaUa" understood to apply to 
 the title deeds of the vendor or to the deed of sale? Controversy. 
 
 * Commentary on the words "tradita sit" in law 2, "Cod. Just.," 7, 32: 
 "vel per haec verba tradidit vel per hoc confiteor me tuo nomine possidere, cum 
 constat me possidere." Cf. law 48, "D.," 4, 1. 
 
 ' It is probable that this name is due to Azo, "Summa," on "Cod. Just.," 
 7, 32; "illud quod meo nomine possideo constituo me possidere nomine aheno." 
 The word "constituto" seems to be borrowed from law 17, § 1, D., 41, 
 1. The Commentators see cases of agreement in lieu of delivery in the 
 reservation of the usufruct, the tenure at will, and the lease. The valid- 
 ity of the agreement in lieu of delivery is not dependent upon any special 
 form. 
 
 8 Formula of sale (cited by Bierrnann, p. 65). "Summa Totius Artis 
 Notariffi," ed. 1583; G. Durand, "Specul.," 1, IV, t. "emt.," nos. 30, 
 32. 
 
 394
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELIVERY [§ 313 
 
 without succeeding in establishing them on fairly secure theo- 
 retical foundations.^ For them, feigned delivery contrasted with 
 real delivery, and it has scarcely less importance. If they re- 
 fuse to recognize the transferring of property "solo consensu,"^ 
 if they do not take into account the frequent clause "vendidit et 
 tradidit," ^ it is in order to give the "formal recital" of delivery 
 the widest extent/ and in practice this comes to the same thing: 
 they tell us that there is, so to speak, no act of alienation in which 
 the clause of " formal recital " does not figure, and several of 
 them maintain that, if it has been forgotten to insert it, it should 
 be implied; ^ it is the "communis consuetudo Italise. " ^ As in the 
 case of real delivery, they demand that the grantor should be in 
 possession at the moment when it takes place, without which it 
 would be of no effect.^ In the case of two successive deliveries of 
 the same land, the first one pretended and the second one real, 
 they say that the first one prevails.^ At the same time, they did 
 not go so far as to give symbolical delivery the same effects as 
 had the "recital" in lieu of delivery. But the "usus modernus 
 Pandectarum," in Germany, did not hesitate to do so. For the 
 authors who have formulated it, the giving of possession is only one 
 form of the declaration of the will to alienate and acquire, which 
 
 1 One will find in Biermann a sketch of these theories, according to which the 
 feigned deUvery would consist of an "actus corporalis": "Siete Part.," Ill, 
 30. 
 
 * BaUe, "Com. in Usus Feud.," no. 28; "Consil.," 337, n. 12. 
 
 ' Jason and others state that this clause "semper dici solet in instrumen- 
 tis"; a minority see therein a tacit agreement in lieu of delivery: Biermann, 
 p. 80. 
 
 * Thus they not only allow of the agreement in lieu of delivery which is de- 
 pendent upon a " causa detentionis " (for example, a reservation of the usufruct) 
 but the abstract agreement in lieu of delivery, simply because the grantor de- 
 clares: "constituo me tuo nomine possidere." Biermann, p. 107. Cf. as to 
 this. Commentary on "tradita sit." 
 
 ' Biermann, p. 197. 
 
 8 Cf. Biermann, p. 308 (the agreement in lieu of delivery is very frequent : 
 "apud Gallos, Italos, Germanos," they say in the sixteenth century). — Cf. 
 the Italian practice: in Sicily, sales before the tribunals in the fourteenth cen- 
 tury; publications in the popular assemblies in the public squares. In Venice, 
 " judices ad contractus," public registers. In Floreace, register of transcriptions 
 with immovables in the fourteenth century. In Naples, a sort of cadastral 
 survey. — "Acta tirolensia," II, 1899. 
 
 ^ Biermann, p. 112. Some justify this solution by the notion that "nemo 
 dat quod non habet": "Cout. de Toulouse," 93. 
 
 » Guido de Suzaria, Jean d' Andre, cf. Qui Pape, "Q.," 112, 101, 126. The 
 contrary opinion has, however, some partisans, see the notes on Gui Pape. 
 The question is asked with respect to the interpretation of the law: " Quoties," 
 15; "Cod. Just.," "de Rei Vind.," 3, 32. The "Cout. de Toulouse," 93, 147, 
 148, also admits that the vendor keeps the ownership with respect to third 
 parties so long as the purchaser has not taken physical possession. Cf. on 
 this Casaveteri and Soulatges; Serves, "Inst.," 2, 1, 44. 
 
 395
 
 § 313] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 comes to the same thing as saying that the transfer of ownership 
 results only from agreement.^ 
 
 § 314. Formation of the French Practice. — The application of 
 these doctrines, in which there was betrayed a marked tendency 
 towards simplification, took place at a very early period in the 
 countries of written law, where allodial holdings were very numer- 
 ous; from the eleventh century deeds mentioned the "vendidit et 
 tradidit"; the delivery of the deed, the delivery of the notary's 
 pen,^ are obviously connected with the Frankish period. Ficti- 
 tious agreements of tenure at will, of lease, of a reservation of the 
 usufruct, are also in use as a consequence of this; the grantee is 
 authorized to take possession when it shall suit him and of his own 
 authority; until that time the grantor has possession in his own 
 name.^ These clauses became typical ones and were understood, 
 if need be, in deeds.* Moreover, in the case of fiefs the Customs 
 of the thirteenth and fourteenth centuries still clung to the old 
 system of disseisin-seisin.^ 
 
 In the North, the general custom from the fourteenth cen- 
 tury seems to have been to recite in deeds the imaginary act 
 of formal disseisin-seisin; this clause became typicial, as did the 
 clauses of tenure at will and reservation of the usufruct, which 
 were frequently joined to it,^ but, thus differing from what had 
 taken place in the South, it was not presumed when it was not 
 recited. "He who does not wish seisin, does not take it." Such is 
 already the rule of the " Grand Coutumier," "^ and an exception is 
 only made in the case of fiefs; investiture by the lord had for a long 
 time been looked upon as indispensable for this category of pos- 
 sessions,^ but in the end they were not treated any differently from 
 copyholds, and the only difference which has lasted between fiefs 
 and copyholds is the necessity in the case of the latter for the 
 
 * See in Biermann, p. 217, details on the German law since the time of 
 Carpzov. 
 
 * Soulatges on "Toulouse," p. 237. 
 
 » "Theorie et Pratique des Notaires," 1629, p. 130. Masuer, XI, 40: the 
 buyer or the donee can only take possession of his own authority if the deed 
 specifies that there has been delivery. — Cf. G. Durand, "Spec," IV, 3. 
 
 * Serres, "Inst.," 2, 1, 41. Cf. Domat, "Loix Civ.," 1, 2, 2, 5; Julien, 
 "E16m. de Jurisp.," p. 306; Astruc, "Tr. des Tutelles," 1758. 
 
 » "Toulouse," 129; "Agen.," 38; "Tonneins," 161, etc. 
 
 « "Paris," 175, and the "Conf. des Ord. de Guenois"; Pothier, IX, no. 67, 
 ed. Bug.; Masuer, XI, 37, 61 (tenure at will); "Meaux," 3, 13, etc. (retaining 
 of usufruct). 
 
 ' "Gr. Gout.," 2, 19, p. 233; "Gout. Not.," 72. 
 
 8 "Gr. Gout.," 2, 19, p. 233; from this passage it would seem to follow that 
 nothing can take the place of investiture by the lord, neither lease nor letters 
 
 396
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELIVERY [§ 315 
 
 swearing of fealty and homage; "true seisin of a fief cannot be ac- 
 quired without fealty or the consent of the lord"(Loysel, 747).^ 
 
 At the same time, let us notice that the giving of seisin by the 
 lord has not lost its entire usefulness.^ The year accorded for re- 
 purchase by a person of the same lineage begins to run from this 
 time, according to various Customs which have remained faithful 
 to the old traditions. Sometimes this formality was dispensed 
 with by admitting that "taking possession in fact equals seisin" 
 (that is to say, the giving of seisin by the lord). In some 
 localities, for example, at Senlis, in Valois, there is a special kind 
 of giving of seisin in the case of rents; their establishment is 
 written on the public register; rents given by means of seisin are 
 preferred to others. 
 
 § 315. Conditions and Effects of Pretended Delivery.^ — Pre- 
 tended delivery did not transmit ownership excepting under cer- 
 tain conditions; it assumes: (a) a notarial deed;^ this is at least 
 a necessity in fact; ^ (6) the clause of disseisin-seisin, or a clause 
 which is its equivalent; ® (c) a grantor in actual possession of the 
 land, in such a way that the grantee can put himself into posses- 
 sion.; in this way the fiction approached the reality; it is only ac- 
 cepted when it is not too much opposed to fact. If the grantor 
 
 of sale, nor the keeping back of the usufruct; but this is only true as appHed 
 to fiefs. 
 
 ^ Thus it was no longer necessary to receive the seisin from the lord. More- 
 over fealty and homage were themselves reduced to the drawing up of a written 
 deed. 
 
 2 An Order of the Council of August 7, 1703, regulated the conferring of the 
 seisin of property situated upon the land held from the king. Pothier still 
 speaks of the giving of seisin and the right of seisin to which it gave rise, 
 independently of the lord's due and sales. As to prices, cf. KSrallain, "Th.," 
 p. 142. — The formahties of the giving of seisin were only completely abro- 
 gated by virtue of the Law of Dec. 5-17, 1790. 
 
 3 Charondas, "R^p.," II, 62; Ricard, "Don.," I, 901; Argou, "Inst.," Ill, 23. 
 
 * Necessity for a notarial deed for every contract relating to immovables 
 according to the Statutes of Vaud., I, 6, 4; Huber, IV, 709; Loysel, 746. 
 
 ^ Pasquier, "Inst.," p. 256. The notarial deed assures to the vendor a 
 claim over the thing sold as security for the payment of the price. Sale by deed 
 under private seal or a verbal sale would not give him this; it would be diffi- 
 cult to prove, especially a verbal sale, since the Ordinance of Moulins. Fur- 
 thermore, the mortgage creditors under a public deed would be preferred to 
 grantees by deed under private seal. Soulatges on the "Cout. de Toulouse," 
 p. 238, assuming a conflict between two purchasers, — one by public deed, 
 the other by private deed, — gives the former precedence unless the latter 
 has been put in actual possession. — The public deed is absolutely necessary 
 in the case of a gift. 
 
 * Clause of the agreement in lieu of delivery by which the vendor who keeps 
 the property declares that he appoints himself possessor for and in the name 
 of the owner. Clause of tenure at will, by means of which he declares that he 
 only possesses at will, subject to the pleasure of the owner. Retaining of the 
 usufruct. 
 
 397
 
 § 315] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 who declares that he disseises himself is not in possession, the facts 
 contradict the recitals of the deed, and it is only these facts 
 which are taken into account.^ So that, if the owner of a piece of 
 land had made a real delivery of it to a first grantee, the latter 
 would be preferred to a later grantee who had obtained the pre- 
 tended delivery of the land.^ There was discussion as to the op- 
 posite case: did a pretended delivery prevail over a real delivery 
 which was later in date? Pothier believed so, but Ferriere, Guyot, 
 and Henrys maintain that the real delivery should have preference 
 over the other; according to these authors, because of the clauses 
 by which the seller reserves the usufruct and others, the own- 
 ership is not transferred as against third parties.^ The same 
 difficulties were presented in case there was a conflict between a 
 grantee and a creditor of the seller who had a mortgage or levied 
 a distraint upon the land sold. If the vendor,^ or, in a more 
 general way, the grantor, was the owner, the grantee became the 
 owner; but, on the other hand, he had no more rights than had his 
 grantor (differing in this from what took place in the other systems 
 of transfer, where the buyer could become the owner without the 
 vendor's having been so). Secret alienation could not virtually 
 create a new title for the grantee; he steps into the place of his 
 grantor; the most that he has is the advantage of the usucaption 
 of from ten to twenty years. 
 
 § 316. Estimate of the System of Pretended Delivery. — The 
 practice which we have just described constituted an absolute 
 rupture with the old law and its system of symbolical deliveries 
 surrounded by publicity and hampered by the rights of the lord 
 and those of the family. This practice corresponds to that phase 
 
 * As to the rule, "to give and to withhold is invalid," cf. post, "Gifts"; 
 Argou, "Inst.," I, 292: delivery is necessary that the gift may be valid; but 
 outside of the countries of public nams a pretended delivery carried out by 
 means of the retention of the usufruct and the clauses of the agreement in lieu 
 of delivery and the tenure at will are deemed sufficient : "Paris," 275; Louet, I, 
 V, s. 1; La Thaumassi^re, on "Berry," VII, 1; Denisart, see "Clause"; Masuer, 
 XI, 36. 
 
 * "A. C, Bourg.," 62, in Giraud, II, 279. 
 
 * Pothier, "Vente," no. 322; Guyot, Ferrihre, see "Tradition"; Soulatges, 
 op. cit., p. 238; Henrys, "CEuvres," IV, 5th ed., p. 528 (sale, no. 20). Cf. P. de 
 Fontaines, 17. 18; "Petrus," 2, 3, 13; Gluck, "Pandect.," XVII, 215. 
 
 * Let us observe that in the case of a sale it is required, in order that the 
 ownership may be transferred, that the price shall have been paid in conform- 
 ity with § 41, "Inst. Just.," "de t6v. div.": Pothier, no. 242. Rousseaud de La- 
 combe, see "Prdcaire": the purchaser declares that he holds by virtue of a 
 tenure at will until the entire payment of the price: the only result in favor of 
 the vendor is a security upon the land: D'Olive., "Quest. Not.," 4, 9; 2, 17; 
 Despeisses, 1, 6, 19; Landsberg, p. 114. 
 
 398
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELIVERY [§ 316 
 
 of the history of real property in which the rights of the lord and 
 the family were becoming weakened; as against persons of the 
 same lineage, the right of the individual stands out; as against the 
 lord, the inheritability of fiefs and copyholds. The formalities of 
 symbolical deliveries thenceforth fell into disuse, for they served 
 especially to enforce rights which had disappeared; there only re- 
 mained of them their mention in notarial deeds.^ Actual delivery 
 had already been thrust into the background by those usages; it 
 was left there excepting for the Romanists, who in memory of the 
 past gave it a Platonic worship : it was understood jn the South as 
 vesting and divesting was in the North. Thus, as far as the larger 
 part of France was concerned, a uniform system of feigned de- 
 livery was arrived at; and from this issued the simpler rule of the 
 Civil Code that ownership is transferred by consent alone.^ 
 
 The theorists of natural law had already formulated this rule; 
 it is found in Grotius, and his opinion, which is accepted by Puf- 
 fendorf, did not pass unobserved by the civil jurists, because 
 Pothier mentions it.^ It is true that the civilians avoid saying that 
 ownership is transferred by consent alone; this would be a direct 
 attack on the venerated texts and an open break with tradition; 
 they preferred to connect their explanations with the clauses which 
 were in use in notarial deeds. From the sixteenth century certain 
 Customs speak of clauses transferring ownership.^ A little later on, 
 Loysel, alongside of customs wherein the past still finds expression, 
 recognizes the new law: "One has no sooner sold a thing than he 
 has nothing left"; if there could be any doubts as to the meaning 
 and the bearing of this rule, his commentator, Lauriere, under- 
 took to dissipate them: "Thus," says he, "among us, as soon as 
 the sale is perfected, the dominion over the thing sold is trans- 
 ferred without delivery, contrary to the provision of Law 20, *de 
 Pactis.'" Domat implies the clause of "tenure at will" in sale 
 and arrives at the same result. Ricard complains that delivery 
 
 * Vain protestations of Dumoulin, on "Paris," I, 20, 5, 16: "neque vera 
 neque ficta traditio." 
 
 * Almost the only innovation of the Civil Code consisted in doing away with 
 the inserting in deeds of a clause which had become popular and in no longer 
 demanding the drawing up of a notarial deed: Hericourt, " Ventes par Decret," 
 186, 352; Endemann, op. cit., II, 83. 
 
 3 Grotius, "De J. Belli," 2, 8, 25; 2, 12, 15; Puffendorf, "Dr. de la Nature," 
 2, 9, 8; Pothier, "Propr.," no. 245. — Already the Commentary on I, 23, "Cod. 
 Just.," 1, 2, and on the "Inst.," 2, 1, 45, admits that the Church and the 
 "civitas" acquire ownership as a result of the agreement without any delivery: 
 Covarruvias, "Resol.," II, 19, 3, and others hold the same thing with respect 
 to the .sovereign : Landsberg, p. 140, 12. 
 
 * "Sens," 250. 
 
 399
 
 § 316] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 no longer serves to swell the number of the clauses in contracts. 
 The Romanists, and among others Pothier, are the only ones 
 to resist the general impulse; and, again, this is only as far as 
 form is concerned.^ 
 
 The system of our old jurisprudence has been variously esti- 
 mated. It seems that, having to choose between two systems, the 
 one secret and full of inconveniences, and the other consisting in 
 publicity and offering the greatest possible advantages, it rather 
 blindly pronounced itself in favor of the worse. But those who 
 look upon these things from this point of view mistakenly carry 
 into the past ideas which may be all right for our own times. The 
 most serious reproach charged to the system of feigned delivery is 
 that it leaves ownership uncertain: the third-party grantee and 
 the mortgage creditor are never sure that they are negotiating 
 with the owner of the property which one of them is buying and 
 upon which the other takes a mortgage, because a secret alienation 
 can at any moment cause the ownership to pass from one person to 
 another. But this inconvenience existed more in theory than in 
 practice. Generally, the grantee of the piece of land was a neigh- 
 bor; it was hard to take him unawares. And, when there was a 
 risk of this happening, the intervention of the notaries prevented 
 it nine times out of ten, for the notary, who had to be resorted to 
 for conveyances as well as for the creating of mortgages, was well 
 aware of the rights of the parties; he could only act knowingly, 
 under penalty of involving his own responsibility. Thus there 
 were in customs and usages palliatives which rendered the sys- 
 tem adopted by the French Customary law tolerable. Otherwise 
 it could not be explained why the Civil Code came back to it in an 
 exaggerated form when it was contemplating the system of public- 
 ity borrowed by the Revolution from the "public nam" Customs.^ 
 
 Nor must we forget that royal legislation had itself attempted 
 to react against the secret transfer of real rights. Thus, the Or- 
 dinance of Villers-Cotterets, 1539, Art. 132, prescribed, under 
 penalty of nullity, the entering or registering of gifts at the clerk's 
 office in the royal jurisdiction.^ (C/. Ord. 1566-1731.) 
 
 1 Damat, "Loix Civ.," 1, 2, 2, 5; Ricard, "Don.," no. 902; Ferriere, see 
 "Constitut."; Pothier, nos. 186, 245: Serres, "Inst.," p. 130. 
 
 2 This is not the best thing done oy the Civil Code; but it would be ridicu- 
 lous to think that its framers have, from mere caprice or from hatred of Revo- 
 lutionary institutions, resuscitated a system absolutely condemned by long 
 experience. — Cf. Flammer, "Dr. Civil de Geneve," p. 169. 
 
 ^ Ordinance of Villers-Cotterets, Aug., 1539, Art. 132; Ordinance of Moulins, 
 Arts. 57, 58; Ordinance of 1731, on gifts. 
 
 400
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELIVERY [§317 
 
 By this means it was suggested that they be made pubHc, so as 
 to avoid every kind of fraud and to protect third parties, whoever 
 they might be, who might be injured by them, even creditors by 
 simple contract, legatees, and heirs. When the Law of the 11th 
 Brumaire, year VII, established transcription, gifts of immov- 
 ables were found to be subject to the double formality of registry 
 and transcription. It is thus also that the Edict of J\Iay 3, 1553, 
 decided that neither ownership nor rights in land could be acquired 
 without registration of the sale and of the deed relating to it; but 
 this edict was not carried out. The Edict of December, 1703, 
 which was commonly called the "Edict of Lay Registrations,"^ 
 and the Edict of October, 1705, ordered the registration, not only 
 of gifts, but of every contract and deed which the public is inter- 
 ested in knowing about, and especially of deeds transferring owner- 
 ship. All these deeds could not be served, could not be produced in 
 court or made use of to draw up other deeds, and, as a general rule, 
 could not be established in public usage, excepting upon condition 
 of being registered; unless they were registered, they had abso- 
 lutely no effect "in law or otherwise."^ We shall see further 
 on that measures were also taken, but without success, for the 
 publishing of mortgages. 
 
 §317. (VI) English Law. — Leaving aside the Anglo-Saxon 
 period, about which little is known,^ it is easy to prove that in 
 
 1 Guyot, see "Controle," "Insinuation." As to control see Edicts of 1581, 
 1693, 1699; Isambert, see Table, Restricted publicity; cf. Edict of 1581, Art. 
 8, and Law of 22 Frim., year VII, Art. 58. Fiscal object of the edicts. 
 
 2 Guyot, "Insinuation"; Ferriere, "Sc. des Notaires, in F." 
 
 ' A remarkable characteristic of the Anglo-Saxon law is the distinction 
 between "Bocland" and "Folcland": Schmid, "Ges. d. Angels.," see "Gloss." 
 By "bocland" is understood a land granted "per cartam" (from whence its 
 name, "boc," "liber," "carta", and "land," or the Latin equivalents, "terra 
 codicillaria," "testamentaria"); thus it is that in the ninth and tenth centuries 
 the king, with the consent of his "witan," grants domains. to churches, to 
 monasteries, and sometimes to the laity, by conferring upon them very ex- 
 tensive rights, — the full ownership (from whence is derived the translation 
 " allodium " which we sometimes find). This would have been individual owner- 
 ship as opposed to collective ownership represented by the "folcland" (land 
 of the people, "ager publicus"). But this meaning of "folcland" (generally 
 received from the time of J. Allen, 1830) is rejected to-day; Vinogradoff ("Eng. 
 Hist. Rev.," Jan., 1893) restoring to honor an explanation by Spebnan ("Gloss. 
 Archaiol.," 1689) has shown that the "folcland" was the land possessed by 
 virtue of popular law, of the Custom, without a written title. All land, on 
 principle, comes within this category, "bocland" being only an exception, an 
 institution of foreign origin introduced in the int(!rest of the Church. The 
 " folcland " may belong to the king or to ordinary individuals, may be an object 
 of individual or collective ownership; but everything leads us to believe that 
 common lands were very numerous at this period. As to alienation, cf. Pollock, 
 "Land Laws," 199; Maitland, "Domesday Book," p. 226 et seq.; Brunner, 
 "Rechtsg. d. Rom. u. Germ. Urk.," 1880. 
 
 401
 
 § 317] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 England evolution took place towards simplification, as it did in 
 the common law of the French Customs/ towards the security of 
 the grantee as in countries of public nams. But the system of 
 landed property is so complex there that the question of the con- 
 veyance of immovables shows the effects of it; it was solved in 
 various ways, according to the nature of possessions and the char- 
 acter of the rights transferred. Perhaps it would be a good thing 
 to remember now that there is no allodial ownership in England. 
 All land is held mediately or immediately from the crown. Also, 
 Williams was able to say, " The first thing which a student in law 
 should do is to disabuse himself of the idea of an absolute owner- 
 ship; no one, according to our law, is the absolute owner of land; 
 he can only have over it an estate." And Lord Sherbrooke, sub- 
 stituting a modern formula for that of the Feudal law, affirms that 
 " the land is a kind of property in which the public has, by reason of 
 its very nature, in common with the owner, a kind of interest which 
 slumbers." ^ Without wishing to find out whether "the awaken- 
 ing of the one jointly interested" is not likely to give rise to crises 
 of a formidable seriousness in the future, let us note that in the 
 past this kind of ownership, combined with entails, with various 
 incumbrances, with rights of reversion (remainder, reversion) ^ has 
 offered a thousand difficulties to transactions with relation to 
 immovables. 
 
 § 318. (I) Freehold or frank tenement, which is a tenure simi- 
 lar to the French fief. — (A) Feoffment icith Livery of Seisin (in- 
 feudation with putting in possession, "feoff amentum," "traditio 
 saisinse"). In the strictness of the law, the granting (''dare et 
 concedere," give and grant) of an inheritable right, or a right for 
 life, a frank tenement requires as an absolute necessity the ac- 
 tual putting in possession of the grantee. It takes place in fact or 
 
 1 Pollock, "Land Laws," p. 73: they passed from a simple but annoying 
 publicity to the most absolute secrecy with regard to transactions in immova- 
 bles, without the legislator having done anything to bring this about, and even, 
 to tell the truth, contrary to his will. 
 
 2 "Ann. de Leg. Etr.," 1887, p. 43. 
 
 ' Statutes "DeDonis Conditionalibus," 1285; "Quia Emptores," 1290; of 
 Mortnaain (c/. the Mortmain Act of 1890, 1892). The first of these statutes 
 contributed especially towards complicating the system of the ownership of 
 land in allowing of the creation of, or rather, in the developing of, the fee 
 tail ("feodum talliatum," that is to say, limited). Its inconveniences were 
 infinite, says Coke; if all the estates had been in fee simple, purchasers would 
 have been sure of their purchases, farm tenants of their leases, and creditors 
 of their claims; the king and the lords would have had their escheats, for- 
 feitures and other seigniorial rights. The "forma doni" caused trouble and 
 confusion ever>-Tvhere by substituting for simple rules the entanglement of 
 individual caprices. 
 
 402
 
 Topic 6] OWNERSHIP OF EVIMOVABLES — DELrV'ERY [§319 
 
 at law.^ (a) In fact, when the parties are on the premises; the lord 
 who is making the grant places in the hands of the grantee the 
 hammer or the knocker of the door ("tradere per ostiam, per has- 
 pan vel annulum"), where a house is concerned; a rod or a glove 
 ("per fustem," "baculum," etc.), where a piece of land is con- 
 cerned.^ (6) In law, when the land is in sight; the lord shows the 
 immovable to the tenant and asks him to take possession of it 
 ("tradere per aspectum") and the latter takes advantage of this 
 invitation.^ In the thirteenth century, at least, it was customary 
 without being a legal necessity (excepting since 1845) to establish 
 the transaction by a sealed writing (deed equals "factum") and the 
 symbol and the writing are given at one and the same time.^ But 
 ownership is not transferred, says Bracton, either by homage, or 
 by the drawing up of a writing, or by a fictitious delivery; nothing 
 can take the place of actual delivery.^ It is difficult to account 
 for the strictness of this exigency at a time when symbolical de- 
 livery was so widespread on the continent, and wlien its effica- 
 ciousness was not at all doubtful. Here we have a phenomenon 
 of regression towards the materialism of the primitive law, the 
 cause of which must perhaps be sought in the Anglo-Saxon customs 
 or in a return to barbarism following the Norman Conquest. It 
 even found a support in the doctrines of the Glossators, in whose 
 opinion material delivery was necessary on principle. Whatever 
 the reason may be, these ceremonies often rendered impossible 
 the transfer of ownership (absence, illness, etc.). 
 
 § 319. The Same. — (B) Lease and Release (lease and relinquish- 
 ment, "laxare et relaxare").^ This is the "brevi manu" transfer 
 of the Roman law. At the same time that it adhered strictly to 
 the necessity of an actual handing over, the English practice ad- 
 mitted, from the thirteenth century, probably under the influence 
 
 ^ In deed and in law (Coke). 
 
 2 Bracton, f. 40; Britton, II, 9 ("C." 40, ed. Houard); Littleton, 70. There 
 would take place, be it understood, a previous disseisin from the lord, if it 
 were a matter of a fief which had already been established. 
 
 3 Bracton, f. 41. Cf. Azo, "Inst.," 2, 1, 40; "Summa in Cod.," p. 436; 
 Glanville, VII, 1. 
 
 * Littleton, 370. It is not rare for the deed to be drawn up in triple indenture; 
 one is given to a third party, — for example, to the lord paramount. 
 
 ^ Cf. Littleton, 66. For example, the heirs of the grantor would not be bound. 
 — The "traditio saisinae" was not required for the inferior tenures (for a 
 term or at will), that is to say, for those which were not free (for life or inhe- 
 ritable). The mere delivery of the deed of grant v/as sufficient to transfer in- 
 corporeal things (rights of patronage, of reversion, rents, etc.). Post, "Uses" 
 (deed of grant). 
 
 * Bracton, f. 41, 45; Littleton, 444 et seq. Another expression: "reddere et 
 quietum clamare." 
 
 403
 
 § 319] OTVNERSHIP AND REAL RIGHTS [Chap, II 
 
 of the Romanists, that there were cases in which " sine traditione 
 transit dominium." Thus, when a freeholder has leased his land 
 so as to put it into occupation by the tenant, he is free to grant 
 him his own rights by a second deed; "ipso facto," without 
 there being any need of the formalities of the livery of seisin, the 
 tenant becomes the owner. But this is a solution which can only 
 take place under exceptional circumstances. It is an accident in 
 the law of this period, for the release does not satisfy either the 
 materialistic tendencies of the common law or the exigencies of the 
 Feudal law; it still has the fault of being secret, the transfer (grant, 
 remit, release) only being made known by a sealed deed which was 
 given to the grantee. The release no more protected the grantee 
 from the claims of third parties than did the livery of seisin. The 
 publicity of conveyances and the security of grantees were only 
 obtained by the judicial methods with which we are about to deal.^ 
 § 320. The Same. — (C) Fine, or recognizance at law.^ Fol- 
 lowing a fictitious action between the grantor and the grantee,^ a 
 lawsuit in which the latter pretended that he had been dispos- 
 sessed by the former,^ the defendant petitioned for a settlement; the 
 
 1 Attornment (that is to say, acknowledgment, recognizance). If the 
 vassal or the copyholder can substitute a third party for himself by granting to 
 the latter his fiei or his copyhold, the lord is authorized on his part to grant his 
 seigniorial rights and thus to subrogate a third person in the exercise of his 
 rights. The man in possession of a manor ordinarily holds one part of it as 
 his domain, and another part he lets out for services and it is held by his vassals 
 or tenants. When he wishes to alienate this manor it is necessary that all his 
 vassals or tenants should give their expressed consent by saying to the new 
 grantor at the time the grant is carried out, " I attorn to you," etc., and giving 
 him a "pfenning"; their tacit consent, by carrying out for his benefit those 
 services which they owed. As we can see, attornment is the opposite of the 
 vassal's obligation of obtaining the consent of the lord when the former alien- 
 ates his fief; and both of these matters are to be accounted for by the personal 
 character of the feudal relations. Under Edward III the vassal was recog- 
 nized as having a right to alienate his fief without the authority of the lord, 
 upon condition of a fine paid to the king, and, owing to the reciprocity which 
 was no more than just, the consent of the tenants could be supplemented by a 
 writ from the king. Attornment also served for the transfer of rents for 
 which the consent of the tenant was at first necessary ; in the end it was deemed 
 sufficient if he were notified of the grant: Littleton, 551; Britton, 41; Glasson, 
 IV, 241. Same system in Brittany : /^agrt^eaw, see "Attoumances." Cf.Collinet, 
 "N. R. H.." 1895, 647. 
 
 2 "Finalis concordia quia imponit finem litibus"; Glanville, 8; Statutes "de 
 modo levandi fines" (date? character?), "de finis levatis" (Edward I), etc. 
 (in "Statutes of the Realm"); Littleton, 441; Coke, "Inst.," II, bll; Black stone, 
 II, 21, and Appendix no. IV; Pollock and Maitland, II, 94. It is said that a 
 "finis" is levied. On this expression, c/. Du Cange, see "Finis, Finem, levare"; 
 Brunner, "Vrk.," p. 28Q. 
 
 ' In order to begin the action one had to pay a due or fine to the king, 
 and one paid him another fine for his authority to compromise. 
 
 * Because the former did not carry out the agreement which had been entered 
 into between them. 
 
 404
 
 ■ Topic 6] OWNERSHIP OF IMM0VA:5LES — DELIVERY [§ 320 
 
 court gave the parties permission to come to an understanding, 
 and the deed of compromise by which the defendant acknowledged 
 the right of ownership of the grantee was pubhcly read before the 
 judges (or before commissioners) whose duty it was to ascertain 
 the capacity and the freedom of the parties,^ A deed of the whole 
 proceeding was drafted, and this, at least since 1195, in three in- 
 dented copies, one of which, called "pes finis," was preserved in 
 the royal treasury, and one of the others given to each of the 
 parties.^ This procedure had the same advantages which a judg- 
 ment in real litigation has: 1st, easy proof of the deed, the pres- 
 ervation of the "pes finis" in the treasury being a first-class 
 guarantee against loss or falsification of titles; 2d, assured execu- 
 tion; 3d, and especially, the cutting off of all claims which were not 
 brought forward at once, or, at the very latest, within a year and 
 a day : ^ " non in regno Anglise providetur vel est aliqua securitas 
 major vel solemnior per quam aliquis statum certiorem habere 
 possit quam . . . finem in curia domini regis levatum." Nor 
 by itself does it transfer the seisin, any more than a judgment 
 does; if the grantee wishes it to be equivalent for him, to the 
 feoffment with livery of seisin, he will have to put himself in pos- 
 session of the land in whatever way he can, good or bad. The 
 consequences of the fine, which were very far reaching, took place 
 all too soon ; the Statute of Edward III (fourteenth century) gave 
 third parties the right to assail it at any time; the remedy was 
 radical, but it had the fault of taking away from this institution its 
 
 1 Necessity of possession on the part of the grantor; without which any two 
 people might have been able to deprive the owner of a piece of land by bringing 
 a pretended action for this land. The same remark appUes to common re- 
 coveries. 
 
 * The "finis" was first of all proved by the court record, later by written 
 deeds. The drawing up of three copies, one of which was kept in the treasury, 
 dates from 1195; in the name given to this latter copy there is a pun on the 
 French "pes" (peace, transaction) and the Latin "pes" (foot), just as there 
 is one in "fine," which can be connected with the Latin "finis" and the French 
 " finer " (finance)[to pay a fine or due (fine means a pecuniary penalty, a transfer 
 tax). Examples of fines from 1182 to 1272, Pollock ayid Maitland, \, 18. 
 
 ' This is the most remarkable effect of the "finis " : an alienation thus carried 
 out, says the Statute "Modus Levandi Fines," not only binds the parties and 
 their heirs, but all the world. This is to be accounted for because of its very 
 origin. This method of acquiring assumed first of all a real process for reclaim- 
 ing begun before the local court; now, the frank-tenement holders were obliged 
 to take part in these trials; there was nothing wTong in declaring that they 
 were stripped of all rights so long as they did not protest agaimst the sentence 
 which was pronounced ; if they were present they did wrong not to take part 
 in the judicial assembly. — Among other consequences of this result let us 
 notice the extinction of trusts; the trustee who alienated property held in trust 
 by making use of the fine (or the common recovery) brought the trust to an 
 end. 
 
 405
 
 § 320] OWNERSHIP AOT) REAL RIGHTS [Chap. II 
 
 chief usefulness; few men were assured of their possessions. Also, 
 under Henry VII (end of the fifteenth century), Parhament, tak- 
 ing a middle course between these two solutions, permitted claims 
 to be made up to five years dating from the public reading of the 
 fine; the rights of minors, of married women, of the insane and of 
 those who were absent, were preserved. 
 
 § 321. The Same. — (D) The Common Recovery,^ which is of 
 more recent date than the levying of the fine, rests like the latter 
 on a fictitious action. According to the common law, the mon- 
 asteries and other establishments in mortmain could not receive 
 any lands without the authority of the king, under penalty of 
 having them confiscated. But this rule was evaded. The holder 
 sold his land to the monastery and at once took it back by an- 
 other transfer as coming from this monastery; as the latter had 
 not had the seisin, the confiscation was found to be avoided, and 
 in one way or another, for example, by way of expiration, the 
 monastery then took the property. The Great Charter of Henry 
 III, c. 36, forbade these frauds. But it only mentioned sales. 
 The religious houses, instead of buying lands, leased them for a 
 thousand years, and still escaped the confiscation, at the same 
 time attaining their object. The Statute "De Religiosis," under 
 Edward I, even forbade long-term leases. The monks did not 
 acknowledge themselves as beaten; they then brought a suit to 
 recover, on a fictitious claim against the owner, who allowed judg- 
 ment to go against him. By the second Statute of Westminster it 
 was decided that every action of recovery brought by a religious 
 community should be subject to an inquest carried out by a jury, 
 so as to annul it in case of fraud. Under Edward IV (end of the 
 fifteenth century) procedure became more complicated : " the pos- 
 sessor who was sued in an action of recovery would vouch, by 
 way of defence, a third party whom he pretended to be his 
 warrantor; the latter defaulted; the judge gave judgment for the 
 default of the warrantee against the warrantor; but at the same 
 time he gave judgment against the warrantee for the benefit of 
 the demandant. By means of this procedure, the heirs were more 
 surely shut out; they had no right to complain, because their 
 ancestor, at the same time as he lost the immovable, had a right 
 to its equivalent from his warrantor." There was some hesitation 
 
 * Procedure so called because one is considered as recovering one's property 
 and because it is commonly made use of. Abolition of fines and recoveries, 
 3 and 4, William IV, c. 74. 
 
 406
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELIVERY [§ 322 
 
 felt about absolutely stripping them, but there was no hesitation 
 about choosing as one's warrantor an insolvent, a man of straw, 
 and this role finally devolved upon the crier of the court of 
 justice, who was called in exercising this function the common 
 warrantor (common vouchee, "vocatus"). "From this period 
 on (1472?), conveyances in the form of recoveries became more 
 and more frequent, and they ended by being openly admitted" 
 for the benefit of ordinary individuals. Their great advantage 
 consisted in defeating entails and rights of reversion which 
 rendered ownership uncertain; and such was sometimes the 
 entanglement of incumbrances and rights of reversion that indi- 
 viduals, despairing of knowing the condition of their property, 
 found themselves reduced to the extremity of petitioning Parlia- 
 ment to give them a new title clearing off all previous rights.^ 
 
 § 322. (II) Copyholds (tenure by copy of court roll).^ This 
 sort of property began by being a servile tenure; also, the tenant 
 whom the lord could expel at his will (tenant at will) had no power 
 to convey his right. But, if the lord was always the official 
 owner of the copyhold, the situation of the copyholder did not 
 cease to gain strength; it has ended by differing very little at 
 bottom from that of the freeholders. It is thus that towards the 
 end of the fifteenth century they acquired the right of alienating 
 their tenure in spite of the lord.^ Then copyholds became like the 
 French copyholds ("censives"). Their complete emancipation 
 only dates from yesterday (1894). The forms of alienation of 
 copyholds always felt the influence of their origin. This act takes 
 place by means of surrender and admittance, which is about the 
 same thing as the vesting and divesting of the French law. (1) The 
 tenant reconveys (surrenders) the property of the lord, ordinarily 
 in his court, by giving him a stick, a glove, an ear of wheat, etc. 
 (2) The lord admits (admittance) the grantee in his stead and place 
 by the same proceeding. The deed is inscribed on the register of 
 the manor in which the land is situated, and a copy of this is de- 
 livered to the grantee, whose title it constitutes. This method of 
 alienation expressed the dependence of the copyhold with regard 
 to the manor too well for its abandonment, or even its simplifi- 
 cation, to be thought of. 
 
 1 Blackstone, II, 21 (French trans., Ill, 217). 
 
 2 Littleton, 78 et seq.; Blackstone, II, 22; Pollock and Maitland, I, 337; 
 Pollock, "Land Laws," p. 208. 
 
 * Cf. the clause of "free sale" claimed by the tenants in Ireland, and which 
 belongs to those of Ulster: P. Fournier, "La Quest. Agraire en Irlande," 1882. 
 
 407
 
 § 323] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 § 323. (Ill) Formation of Uses. — The complicated mechanism 
 which we have just been outhning was all the more difficult to put 
 in motion as in many cases the owner had his hands tied. This 
 system of impediments did not have the result which was expected 
 of it ; it only stimulated the ingenuity of practitioners and led them 
 to invent the boldest expedients in order to avoid their applica- 
 tion. If they pretended to respect it in theory, the practice of 
 uses resulted in often reducing it to the condition of a dead letter, 
 and in establishing alongside the ownership of the common law 
 (the " legal estate "), an enjoyment, or rather, a sort of equitable 
 ownership, with which many could be content and which escaped 
 all the rules of the strict law. Such, to a certain extent, at Rome, 
 was the Praetorian ownership, or the ownership of provincial 
 lands. 
 
 This institution was originally only a pious fraud,^ one of the 
 proceedings employed by the clergy to evade the nullity which 
 grants in mortmain were affected with. Instead of granting his 
 lands to a monastery, the owner transferred the ownership to a 
 third party for the use of a monastery; the enjoyment which re- 
 sulted to the profit of the latter was not recognized by the com- 
 mon law, but the "cestui que use" could have it protected by 
 the court of equity. Its situation has been compared to that of 
 the Roman "fidei-commissus." The person interposed was the 
 owner at law; in equity he must fulfill all the obligations which 
 had been imposed upon him. This expedient, which appeared 
 under Edward III, was forbidden under Richard II, but only as 
 far as it related to people in mortmain. Ordinary individuals 
 had had the time to accommodate it to their interests; and 
 they preserved it. 
 
 The use, being a creation of equity unknown to the Feudal law, 
 it was admitted that it could be constituted "solo consensu," 
 without the giving of seisin, in a secret manner, and could be 
 proved by any means. Neither confiscation nor expiration were 
 to be feared, because the use was not held from any lord. One 
 has no difficulty in seeing what an advantage this right presented 
 because of the facility of transactions, over the institutions of the 
 common law. In return, it was reproached, and Bacon was the 
 first to do it, with ousting many people from their rights, — the 
 woman from her dower, the husband from his right of courtesy, 
 the creditor from his right of distraining, the tenant from his es- 
 ^ Fear and fraud, says Coke, were the true inventors of the use. 
 
 408
 
 Topic 6] OWNERSHIP OF IMMOVABLES — DELIVERY [§ 323 
 
 tate. The creditors of the "cestui que use" had to be allowed to 
 attack his enjoyment. Alienations with the reservation of the use 
 were forbidden, because the grantor preserved the possession of 
 the property and too easily enjoyed an imaginary credit (from the 
 time of Edward III). Bacon complained that one could not 
 know who was the true owner of land, the person interposed 
 (trustee) or " cestui que use." And the fact is that neither one 
 nor the other could alienate separately, which was a source of em- 
 barrassment and frauds. Various statutes tended, by solving the 
 questions of detail, to recognize that "cestui que use" was the real 
 owner. The matter was finally regulated by the Statute of Uses of 
 Henry VIII, 1535; this act was inspired by a thought hostile to 
 uses and the facility of alienating which their establishment had 
 introduced into the body of English law; yet it only strengthened 
 the established practice. It converted the use into possession; 
 this was to create of it an ownership no longer in equity but at 
 law, and to give jurisdiction to the judges of the common law. 
 But, as they showed themselves not very favorable to uses, the 
 courts of equity profited thereby to take back a part of the ground 
 which they had lost; they intervened when there was any attempt 
 to restrain the effects of the use and compelled the fiduciary to 
 carry out everything wliich he was held bound to in conscience. 
 By the intervention of a trustee or fiduciary (from trust, confi- 
 dence, deposit) the ownership was transferred without formality. 
 The sale itself had for its effect to make the buyer the owner by 
 the fact alone that there was an agreement of the wills of the 
 parties, "bargain and sale"; for the vendor became the trustee of 
 the buyer and was in possession for the benefit of the buyer, in the 
 same way as in the formal recital of delivery of the Roman law. 
 So, to, the transfer "brevi manu," under the form of lease and 
 release, was applied in a normal manner as a regular proceeding, 
 so much was it in harmony with the institution of the use (this, 
 however, was not done without discussion until the year 1620). 
 Of all the obstacles placed in the way of alienation by the common 
 law, nothing remained, — no more in reality than in form. The 
 new system, which was infinitely more flexible than that which it 
 replaced, had, to counterbalance this fact, a very serious defect: the 
 changing of ownership was private, so that the true owner often 
 remained unknown and loans upon land as a security rested only 
 on false appearances. Such inconveniences were too serious not 
 to lead speedily to some thought of remedying them. Under 
 
 409
 
 § 323] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 Henry VIII it was sought to give some publicity to alienation, 
 especially the form of simple bargain and sale, by providing that 
 conveyances should be registered with a court of justice or the 
 Keeper of the Rolls, The laws of 1704 and 1735 even required 
 registry for all deeds "inter vivos" or "mortis causa" which 
 transferred ownership or created real rights; but they were only 
 applied in the counties of York and Middlesex. Nowhere else did 
 this publicity exist. In our own day, another step was taken along 
 the path of simplifying, and the Law of October 1, 1845, brought 
 to a close the long evolution, the various phases of which we 
 have described, by enacting that the execution and delivery of a 
 deed under a private seal should thenceforth operate as a trans- 
 fer of corporeal property just as efficaciously as actual delivery 
 of the land (like the deed of grant already in use for incorporeal 
 property). But at the same time there took place a reaction in 
 the direction of the publicity of the transfer of ownership; if they 
 did not dare break with the tradition of centuries, yet at last 
 there was instituted a system of registration (1863-1875). It 
 resembles the enrolling upon land books of the German law, with 
 this peculiarity, which conforms well to the English spirit, that 
 registering is optional and not compulsory.^ 
 
 1 Cf. "Ann. de L^gisl. Etr.," 1889, p. 212. On the Torrens Act of 1858, see 
 Ch. Gide, "Bull, de la Soc. de Legisl. Compar^e," 1885, XV, 388; Besson, 
 ' ' Li vres Fonciers, " 1891. 
 
 410
 
 Topic 7] 
 
 RIGHTS IN L-^ND 
 
 [§324 
 
 Topic 7. Rights in Land .\nd ENcmiBR.^jsrcES upon Landed 
 
 Property 
 
 324. Multiplicity of Rights in Land; 
 
 Their Relations to Feudal- 
 ism and Serfdom. 
 
 325. Leases for a Long and a Short 
 
 Term. 
 
 326. Free Urban Tenure. 
 
 327. Rents and Charges, or Burdens 
 
 on Real Property. 
 
 328. Rights of Profits. 
 
 § 329. Usufruct. 
 
 § 330. Right of the Beneficiary over 
 an Ecclesiastical Benefice. 
 
 §331. Real Servitudes. 
 
 § 332. The Same. — (I) Natural Servi- 
 tudes. 
 
 § 333. The Same. — (II) Servitudes 
 established by the act of man. 
 
 § 324. Multiplicity of Rights in Land; Their Relations to Feu- 
 dalism and Serfdom. — • The system of land ownership was for- 
 merly complicated by a great number of rights in land and burdens 
 upon landed property.^ Some of them were like a cutting down of 
 the beneficial ownership which belonged to the copyholder (leases 
 for a long and a short term); others were more analogous to the 
 domanial rights (rents) ; certain of them presented themselves as 
 a survival or an imitation of collective ownership (rights to use 
 the woods belonging to a community, or woods belonging to the 
 lord) ; some of them, those most nearly approaching the modern 
 usufruct, were related to the formation of the family (dower); 
 many of them were merely predial servitudes; finally, the pledge 
 and the mortgage served as a protection for credit.^ This con- 
 fusion of rights upon the same piece of land gave rise to difficulties 
 and litigation; it also had many inconveniences in economic order; 
 
 ^ Cf. the "Reallasten" of the German law, which differ very little from our 
 charges upon land, and the nature of which has been widely discussed. The 
 English law is a masterpiece of construction, with its learned hierarchy of 
 estates and its theory of uses. Thus, outside of hereditary estates, whether 
 in fee simple or substituted fee (fee tail) over free tenements (freeholds) we 
 find: (A) estates which are not inheritable: (a) "pur autre vie," during the 
 life of a third party who is called " cestuy que vie" (if the tenant died before 
 " cestuy que vie" the first comer could take possession of the property just as 
 though it had been without an owner, unless the grant had been made expressly 
 to the grantee and his heirs) ; (6) for life, either by virtue of the law (dower, 
 curtesy of England) or by agreement or will (settlement) ; (B) inferior estates: 
 (a) for a term (long-term leases, leases from year to year); (6) at will; (c) by 
 mere tolerance. Let us superimpose uses, and let us place alongside of thera 
 the copyholds, and we shall succeed in understanding that the English jurists 
 based everything upon the idea that no one can have an absolute right of 
 ownership over an immovable. As to the term of years, cf. Pollock and Mait- 
 land, II, 105. 
 
 2 Cf. "Summa Norm.," 93, 7: disseisin of lands, pastures, revenues ("red- 
 ditus"), "faisances" (charges paid by farm tenants) and services. 
 
 411
 
 § 324] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 for this small-change of ownership was far from possessing the vir- 
 tues of the latter. Modern legislation, taking this experience into 
 account, has reduced as far as possible the number of real rights, 
 following the example of the Roman law in this. It has changed 
 the nature of many of them in order to make them come within the 
 category of personal rights or credits; by this means it has freed 
 the owner from encumbrances, and it has made his freedom to act 
 more absolute, while at the same time it has given rather a wide 
 range to the individual's will and particular interests in the uphold- 
 ing of obligations. In our day ownership tends unceasingly to 
 come back to what is looked upon as its normal state, that is to 
 say, to the reuniting in the same hand of all its attributes, "usus," 
 "fructus," "abusus," with their very fullest effects. On the con- 
 trary, the normal condition of ownership in the old law was the 
 splitting up of this sheaf and the subdivision of the parcels which 
 had been drawn from it, without making any attempt to give 
 them the cohesion which seems so natural to us. To-day, no man 
 thinks himself an owner unless he can do everything he pleases 
 with the thing owned; in the olden times one was far more easily 
 satisfied; the master was only half a master. 
 
 The multiplicity of real rights made them prejudicial; their 
 character rendered them odious; feudalism and servitude had put 
 their stamp upon many of them, or, at least, they were scarcely 
 to be distinguished from feudal rights; they carried with them, as 
 did the latter, the servitude of the person or the property, the 
 superiority of a man or a piece of land; they were surrounded with 
 the same proscription. 
 
 § 325. Leases for a Long and aShortTerm.^ — Reasons of apoliti- 
 cal and economic nature made the old law the epoch of perpet- 
 ual or long-term leases,^ and in this method of cultivating the 
 soil the holder is in a position bordering on that of an owner. 
 The short-term lease itself, which was not often met with till 
 much later, produced sometimes, when it was introduced into prac- 
 tice, analogous results; the temporary tenant was treated in cer- 
 tain Customs like a perpetual tenant. Under the influence of the 
 Roman law, the ordinary lease ceased to confer a real right and 
 degenerated to the rank of a simple personal relation; by an op- 
 posite phenomenon, due to reasons already set forth, those who 
 
 1 "B. Ch.," VI, 2, 409; SalvioU, p. 422 (bibl.). 
 
 2 "Bailler" means to deliver, to give up to (still this wide meaning in cer- 
 tain Romanic dialects). "Amodiation" means a letting of immovables, farm 
 rent being paid "ad modium," in "muids," in produce. 
 
 412
 
 Topic 7] RIGHTS IN LAND [§ 325 
 
 held by means of inheritance saw their right, protected and 
 strengthened, raise itself little by little until it attained the rank 
 of true ownership. Thus a return was made to the Roman ideas. 
 
 The conflict between these ideas and the conception of the 
 Customs was expressed by means of two contradictory rules: 
 "Selling carries with it letting"^ and "Buying does not annul 
 letting." 2 This last rule meant that, if the land under lease 
 was sold, the right of the lessee could be opposed to the buyer, 
 because it was a real right; thus the lease was not annulled. Ac- 
 cording to the first rule, on the other hand, as the holder has only 
 a personal right against the lessor, the buyer, who has become 
 the owner of the land leased, has the power of expelling him; the 
 lease is annulled. This was the Roman solution, and that of the 
 court practice of countries of written law.^ Its great defect was 
 that it rendered the duration of leases uncertain. The practice 
 of the Customs eliminated it by special clauses in the contract 
 of sale; by virtue of these clauses the buyer undertook to up- 
 hold the lease; the Civil Code, in Art. 1743, merely enacted that 
 these clauses, which had become typical, should be implied. 
 
 Among the number of leases which are to be distinguished from 
 feudal tenures (lease of a fief, lease of a copyhold) ■* are to be ob- 
 served the long-term lease, the lease for cash, which is only a vari- 
 ation of the former,^ and the lease for possession at will, which is 
 peculiar to Brittany, and which is perhaps of servile origin. — 
 Long-Term Leases ^ only carried with them a transfer of the 
 beneficial ownership when they were perpetual; ^ where they were 
 
 ^ Loysel, 472; "Cod. Just.," loc, 9: "Emtorem necesse non est stare colono 
 (nisi ea lege emit)." German law: "Kauf bricht Miethe." Chaisemartin, 
 
 E. 274; Huber, IV, 859, 3 (Neufchatel, Switzerland): "death, marriage and sale 
 reak every leasing"; Loysel {contra this); "Ass. de J6rus.," ed. B., II, 291; 
 Pothier, "Louage," no. 296; "Gr. Gout.," p. 248. 
 
 2 Chaisemartin, p. 273: "Kauf hebt Miethe nicht auf." We do not know 
 any formula in French which corresponds to this adage; the one which we 
 give in the text is only a translation. 
 
 » Sevres, "Inst.," Ill, 25, 6. 
 
 * "Z. S. S., G. A.," V, 69; Huber, IV, 756 et seq. 
 
 B Viollet, p. 660, n. 2 ("Gout, de Poitou," 1417); Bruel, "Chartes de 
 Cluny," II, 328 (in 968); Marchegay, "Gart. du Bas-Poitou," p. 249; H. de 
 Pansey, "Comp(5t. de Juges de Paix," 1827, p. 375; Masson, "Expose de la 
 L6gislat. rurale," 1879, p. 25; Alaus, "Theses Ec. Ghartres," 1885, p. 8; 
 Grand, ibid., 1899; Lamprecht, p. 196. 
 
 8 Viollet, p. 660 (bibl.); Anselminus de Orto, "Emphyt.," ed. Jacobi, 1854. 
 Cf. Monograph in "Tract. Univ. Juris," treatises cited by Salvioli, p. 424; 
 Lattes, "Studi sop. enfiteusi," 1868; Stobbe, § 99; Giravd, II, 219, 256. 
 
 ^ In Italy the long-term lease seems rather to be perpetual, the "livello" 
 ("libcllus") or the tenure at will temporary. But there is nothing very clear 
 in the terminology. Cf. Fertile, § 142 (detailed study of the "livello"). The 
 
 413
 
 § 325] OWNERSHIP AND REAL RIGHTS [Cuap. II 
 
 made for many years, fifty, ninety-nine years, one or several lives, 
 they only conferred a real right, which was, however, very much 
 like the beneficial ownership, because it carried with it, as did the 
 latter, the power to change the ultimate disposition of the land, 
 and it gave rise to preferences, to the lord's due and sales, and to 
 confiscation.^ The Law of December 18, 1790, reduced the dura- 
 tion of the long-term lease to ninety-nine years maximum; and 
 the laws of the 9th IMessidor, year III, and the 11th Brumaire, 
 year VII, classified the right of the holder of a long-term lease with 
 that of the usufructuary among property capable of being mort- 
 gaged. It has been questioned whether, under the rule of the Civil 
 Code, the long-term lease was recognized by the law together with 
 its special results, more especially the creation of a real right, or 
 whether it was not confused with the ordinary lease. — The lease 
 for possession at will ^ had two peculiar characteristics. 1st. It 
 could be revoked at the will of the lessor, like leases at will, which 
 were so common in English law; the analogy with copyholds, the 
 holder of which can be freed at the w411 of the lord of the manor, 
 leads one to think that these were a transformation of servile 
 tenures. 2d. The holder, that is to say, the tenant, had a right, 
 however, to buildings and things on the surface of the ground; 
 he could not be expelled until he had been reimbursed for their 
 value. This real right " sui generis" represented for him an indem- 
 nity by reason of the improvements made on the land. 
 
 § 326. Free Urban Tenure, which was sometimes allodial and 
 sometimes free copyhold, with merely the burden of a very light 
 rent, can be likened to leases for a long term, of which it is a higher 
 form. Its origin is a problem with which there has been little 
 concern excepting lately, and which has not yet been entirely 
 elucidated.^ Originally there were seen in it (Arnold) a trans- 
 formation of the servile or domanial tenure (according to the 
 
 "livellario" has the ownership of the profits of the land, but has no right to 
 aUenate it. — Mitteis, "Z. Gesch. d. Erbpacht i. Alt.," 1901. 
 
 1 Cf. Argou, III, 28: there exist very few true long-term leases, unless 
 we include within them rents on land which cannot be bought back and 
 which contain a clause that the taker shall be held to make improvements; 
 but in such a case as this there is neither forfeiture, nor preference, nor lord's 
 due, nor sales. In the countries of written law the long-term lease is confused 
 with the copyhold (thus it has a feudal character). On this last point see: 
 Chinon, "D^membr. de la Propr.," p. 49; Roscher, "Econ. Pol. rurale," 
 p. 243. 
 
 2 Henry, "Et. du Dom. Cong.," 1894; Law of Nov. 23, 1896. 
 
 ' It is useless to bring out the connection which exists between the problem 
 which we are examining in the text and the more general question of town 
 franchises. 
 
 414
 
 Topic 7] RIGHTS IN LAND [§ 326 
 
 "Hofrecht"); in an early stage, the lord alone having the 
 ownership, the tenant could only cede it back to him; during a 
 second period the lord and the tenant were found to be on an 
 equal footing; the tenant sold, the lord gave the seisin to the 
 vendee; during a third period the tenant, who had become full 
 owner, no longer had to obtain the giving of seisin from the lord; 
 still better, the r^it, that mark of servitude, disappeared in its 
 turn, and the copyhold became a freehold. According to a rather 
 different explanation, it has been maintained that the holder of a 
 piece of land with the understanding that he is to build upon it 
 (and this supposition is the most common in towns), gaining the 
 ownership in the buildings by way of improvements, in the end 
 acquired the ownership of the soil itself.^ The documents over- 
 throw both of these opinions and make it clear that from the very 
 beginning there existed in towns two kinds of tenure, the do- 
 manial copyhold and the free tenure; the former had become similar 
 to the latter in the course of time (end of the thirteenth century, 
 fourteenth century). Thus, we have to account for the existence 
 of free tenure in olden times. An attempt has been made to do 
 this with the assistance of distinctions: 1st. Between ordinary 
 holdings and those of the Count, that is to say, of the old high 
 Carolingian functionary; it is only in these latter that free tenure 
 could have taken place; the merchants to whom it was granted 
 paid no rent to the Count, excepting the amount due by reason of 
 his right of justice and not because he was owner. 2d. Between the 
 lay holdings and the ecclesiastical holdings, in which case evolu- 
 tion would have taken place more slowly.^ But these are only 
 matters of fact, the influence of which has not decided the ques- 
 tion. Any lay or ecclesiastical lord, whether he were a count or 
 not, might have been led, by his own interests, be it understood, 
 to grant lands which w^ere unproductive, even without reserving 
 a rent (there are examples of this); the mere presence of new in- 
 habitants on his land ought to be a source of profit to him, and there 
 were to be found lords who were sagacious enough to understand 
 that in subjecting their lands to the severity of domanial cultiva- 
 tion, by making of their tenants serfs or quasi-serfs, they only 
 ended in driving these tenants away from their domains. Thus 
 there were seen upon the founding of boroughs in depopulated 
 localities grants to emigrants of a privileged area for the build- 
 
 1 This is the opinion held by Gobbers and Jager. 
 
 * See especially Desmares and the examples that he cites. 
 
 415
 
 § 326] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 ing of their houses ("bourgage," "bourgeoisie,"^ "Freizins,"^ 
 "Freigut," etc.). This favor was granted, not only to merchants 
 upon the occasion of the building of bazaars and markets, but 
 also to "hospites,"^ to free men or serfs who were fleeing from 
 their lord and little disposed to enter into the bonds of servitude. 
 The Frankish period already recognized tenures which were little 
 removed from these almost free lands, namely, 'the tenure at will, 
 especially under its forms of "precaria data" or "remuneratoria." ■* 
 In the South of France, at least, the persistence of Roman 
 ownership must have contributed to the giving to inhabitants 
 of towns these rights which were elsewhere only attained with 
 difficulty. 
 
 § 327. Rents and Charges, or Burdens on Real Property. — 
 Personal charges and servitudes ^ to which cultivators and serfs 
 were bound came in time to be distinguished from real burdens, 
 such as rent, revenues, tithes, tallage, and duty-service. From 
 personal burdens and servitudes, to which cultivators and serfs 
 were bound, in time there came to be distinguished real bur- 
 dens such as quit-rents, rents, tithes, tallage, and duty-service. 
 These burdens were no longer looked upon as a consequence of 
 the personal status of the tenants, because the latter had 
 become free; but they were made a debt owed by the land, 
 which had not been enfranchised with the tenants.® Who- 
 ever holds lands is subjected to the services with which those 
 lands are encumbered. But it depends upon him whether he shall 
 
 * As to Norman burgage, c/. Genestal, op. cit.; Delisle, "Rec. des Jug. de 
 I'Echiq.," no. 140; "T. A. C, Norm.," 5, 3; 8, 1 and 5; 11, 5; "Summa," 26, 2; 
 (cj. 24; 29, etc., " N. C," 1583, Arts. 138, 270, 331 et seq., 454). The quality of 
 the burgages varied: some were true freeholds; others, and these were the 
 more numerous, were only bound to a payment of rent to the lord; and, 
 finally, certain of them were held liable for the aids and duty services, and 
 were hardly to be distinguished from the ordinary villein tenures. The special 
 rules which apply to burgage in private law, and which are only a return to 
 the common law of the Customs of the remainder of France, consist especially 
 in restrictions over the repurchase by a person of the same lineage, in the 
 establishment of a community of acquests made in burgage, and, finally, in 
 equal partition among brothers and sisters. 
 
 ,2 Rietschel, op. cit. (town of Erfurt). 
 
 * As to guests cf. See, "Les Classes rurales," p. 63. 
 
 * Lamprecht and especially Rietschel, op. cit. 
 
 » Heusler, "Inst.," II, 220; Gross, "Recht an der Pfriinde," 1890 (cf. 
 "N. R. H.," 1890, 799); Pasquier, "Inst.," p. 287 (likens socome to servitudes); 
 Ceyssens, "Le Dr. de Banalite" ("Bull. Inst. Arch. Liege," 1896); Rioufol, 
 "Th6se,"U899; Schwind, " Reallastf rage " ("Jahrb. f. Dogm.," 33, 1); 
 Sie, "Les Classes rurales," 1901; Huber, IV, 771, et seq. (te.xts); Stobbe, 
 § 100. 
 
 « "Leg. Longob. Lud. P " 31 ("tributaria terra"); Huber, IV, 771; "Ser- 
 viciura quale debebat terra. 
 
 416
 
 Topic 7] RIGHTS IN L.\ND [§ 328 
 
 escape them, at least as to the future, by yielding them or by 
 abandoning them ; ^ there were various difficulties and solutions 
 on the subject of accrued arrears. In case the land was divided 
 up, each parcel was held liable for the entire charge, for the latter 
 was indivisible ; but one of those among whom the land had been 
 parceled, for example, the elder of the sons of the former owner, 
 habitually rendered the service for all ("portator"). Delay in 
 the payment of arrears resulted in the loss of the land, or its for- 
 feiture, sometimes immediately, sometimes at the expiration of a 
 certain time and after the payment of a fine.^ The beneficiary of 
 a charge on real property could alienate his right as though it had 
 been a matter of the ownership of the land, and by the same 
 means.^ These rights and charges tended to disappear, or, at 
 least, to be changed into merely personal rights.^ 
 § 328. Rights of Profits, which were especially applied to woods 
 and forests, belonged to the inhabitants of a village, a hamlet, or 
 a parish collectively. The condition ordinarily required to give 
 rise to this right consisted of having a separate home in the 
 locality; a stranger who became established there could not 
 claim it, as a general thing, excepting upon condition of obtaining 
 an express grant from the inhabitants, or of becoming a member, 
 for example, as a son-in-law, of one of the families which had been 
 domiciled there for a long time.^ The object of these rights varied 
 greatly. One can cite as the most common objects: "estovers," or 
 the right to take wood for fires; ^ "marrenage," or the right to take 
 wood for building purposes,'' which was not so common; "pan- 
 nage," or pasture, which was the right to pasture domestic ani- 
 mals; ^ " acorning," which was the right to turn pigs loose in the 
 
 1 Beaumanoir, 24, 7 et seq.; "Cout. Not.," 70, 96, 97, 171; Desmares, 183; 
 "Gr. Cout.," p. 317. Cf. De Luca, "De Cens.," 18. 
 '^ Bermmanoir, 24, 19 et seq.; "L. d. Droiz," no. 391. 
 3 "Scnlis," 275; "Valois," 189. 
 
 * Difficulties and controversy in the juridical analysis of these rights. De 
 Luca had already seen in them nothing but obligations, Covarruvias and 
 Carpzov mortgage debts, etc. The legal historian only sees in these theories 
 successive expressions of a varying economic and political condition. 
 
 ^ Beaumanoir, loc. cit. The "Coutumede Bcauvaisis," which was opposed 
 to freeholds, required that a rent should be paid to the lord for rights of user 
 in forests; the latter had to be established by a seigniorial chart confirmed by 
 the sovereign, when they resulted in "essil" (devastation). 
 
 ^ Beauvianoir, 24, 17. Cf. after the Frankish period the rights which were 
 called "lignaritia," "focagium," "silvaticum," etc. Du Cange, see "Talh et 
 Dath" (Bc'^arn). The rent due to the lord generally bears the same name as 
 the right of user. 
 
 ^ "Materiamon," stave-wood; see Du Cange. 
 
 * "OUm," Index. See "Pasnagium," "Usagia"; Du Cange, Ragueau, see 
 
 417
 
 § 328] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 oak groves during the acorn season.^ As long as woods and forests 
 covered a large part of the soil of France, the indulgence in these 
 rights could be tolerated; but in proportion as clearings reduced 
 the wooded tracts, and these clearings underwent a regular de- 
 velopment, these Customs of forestry had to be restrained.^ Fur- 
 thermore, it was unavoidable that they should all disappear, as is 
 the case at the present time. 
 
 § 329. Usufruct. — From the time of the Frankish period it is 
 not uncommon to meet with estates consisting in the enjoyment 
 of land for life, which, according to the Roman classification, can 
 scarcely be ranged anywhere but under the title of usufruct, al- 
 though they may be far from being subject to the same regulations. 
 The beneficiary, the tenant at will, have an enjoyment which is 
 for life or temporary. But what a difference there is between them 
 and the Roman usufructuary! They are already hoping for aa 
 estate which is capable of being inherited, that is to say, for full 
 ownership. The dower rights of the widow become very like the 
 usufruct. The "mundoaldus" is rather an owner than a usu- 
 fructuary of the possessions of his ward. This kind of enjoyment 
 of land seems a little like ownership for life. It makes one think 
 of the rights of the party who is charged with a trust-entail. 
 
 This idea has almost entirely disappeared from the Customary 
 law,^ being destined to give way to the Roman theory of usufruct, 
 which is a more clever one,^ but which is so well known that it 
 would be useless to deal with it here.^ Let us simply notice what 
 
 "Pexe," "Dent" and "Jasiiha" (to let his flocks sleep, "jacere," upon the 
 land, and let them rest there two nights: Bearn); Giraiid, II, 14. Cf. R. Cail- 
 lemer, "Execut. Test.," 274, 330, 378. 
 
 1 Du Cange, see "Esca"; Lamprecht, p. 119. 
 
 2 Loysel, 250: "No one can have a right of user in the lord's domain of an- 
 other without title, or without paying a rent for a sufficient time to acquire 
 it by prescription, or if he have immemorial possession." 
 
 3 P. de Fontaines, 21, 46; "Jostice," pp. 137, 144; "Gr. Gout.," p. 195 et 
 seq.; "Anjou" ed. Beautemps-Beaupre, Table, see "Usufruit"; Masuer, XIII; 
 Boutaric, I, 56; Pasqider, "Inst.," p. 273. 
 
 ^ Galvanus, "De Usuf.," 1630, 1676. 
 
 ^ Let us, however, give a few details : Givil Gode, 585 (expenses of labor) ; 
 Renusson, "Douaire," 14, 40 (recompense); Pothier, "Douaire," 201, 272; 
 "Introd. k la Gout. d'Orleans," VII, 43 (distinction). — Prices of farm leases: 
 Dig., 33, 2, 58, "pr."; Pothier, ibid., 203; Denisart,see "Fruits," IX, 3, 3 
 (acquired by the usufructuary taking into consideration the state of the har- 
 vest); Poullain-Duparc, "Principes," III, p. 290 (day by day, in Brittany; id., 
 Givil Gode). — Mines and quarries, Pothier, 196; Argou, II, 7; Givil Gode, 
 598. — The mere owner keeps up the house (the main walls, etc.), the usu- 
 fructuary the rest (partition walls, etc.). The latter has no right to be paid 
 for any improvements or additions which he may have made. — Usufruct for 
 the benefit of a moral person: Givil Gode, 619 (100 years); cf. Dig., 33, 2, 
 56; R. de Lacombe, see "Usuf.," 6, 7 (30 years); cf. Dig., 35, 2, 68. — For- 
 
 418
 
 Topic 7] RIGHTS IN LAND [§ 330 
 
 great legal importance the usufruct had. Later on we will deal 
 with the principal cases in which it is recognized; for example, 
 the case of dower. 
 
 § 330. Right of the Beneficiary over an Ecclesiastical Bene- 
 fice. — The holder of an ecclesiastical benefice has over the prop- 
 erty which is comprised therein a "jus in re" which allows him to 
 take the profits therefrom, so as to be able to fulfill the office 
 which is entrusted to him; this right is a sort of life estate or usu- 
 fruct, having peculiarities which relate to the nature of ecclesi- 
 astical possessions;^ in order to enforce this right, the beneficiary 
 may make use of the action for real property and the action for 
 possession.^ The acquisition of benefices passed through various 
 phases: the beneficiary was not always appointed by his eccle- 
 siastical superior; he was often chosen by a lay or ecclesiastical 
 patron, and, compared with being chosen by the latter, the inter- 
 vention of the ecclesiastical superior was of little importance, 
 because this could only be exercised to confirm a candidate who 
 was chosen by a patron. From the choice by the patron there 
 resulted first of all acquirement of the benefices ("beneficium 
 affectum"); neither the patron nor the ecclesiastical superior were 
 authorized to deprive the beneficiary of his right ("variare non 
 possunt"); he was in the same situation as an owner who had 
 not yet taken possession. In proportion as the part played by the 
 ecclesiastical authority increased, to the detriment of that played 
 by the patron, legal theory found difficulty in defining the right 
 of the beneficiary who had been appointed, but upon whom the 
 benefice had not yet been conferred by his superior; the benefi- 
 ciary did not have the actual exercise of his right, but at the 
 same time the benefice had been set apart for him in such a way 
 that it could not be conferred on anybody else. The canonists 
 declared that this beneficiary did not have any "jus in re" before 
 the bestowal; but, as he had something better than a personal 
 
 feiture for abuse of enjoyment makes its appearance in our old law especially 
 with regard to dower. 
 
 1 The beneficiary has been compared to a vassal, the holder of a long-terra 
 lease, the usufructuary, etc.; all these comparisons err in some direction. The 
 benefice is an endowment connected with an ecclesiastical function; from this 
 there result special characteristics. Cf. "Summa" by Huguccio (in 1187), 
 on Gratian, c, 13, C, 12, q. 1: clericals can only dispose of profits collected 
 "in usus domesticos et in causas pietatis"; they have no right to dispose of 
 them by will. This is not the same in the case of an ordinary usufructuary. 
 This point of discipline was modified towards the fifteenth century: Dig. X, 
 3, 22, 2, 4; VI, 3, 3, 1; "Cone. Trid.," a. 22, c. 3 et seq., 23, c. 1 (authority 
 of St. Thomas). 
 
 2 See as to the possession of benefices : Grossman, pp. 199, 263, etc. 
 
 419
 
 § 330] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 right, they recognized the fact that he had a "jus ad rem"; ^ this 
 was a forfeiture for him, pending the time when, as in our day, 
 wherever there remain vestiges of the ecclesiastical patronage, the 
 ecclesiastical authority should take upon itself the power of re- 
 fusing the canonical installment of the candidate who had been 
 designated to it or else only authorize, at any rate, an application 
 of an administrative nature.^ The canonical theory which we have 
 mentioned corresponds to a stage of transition in the history of re- 
 ligious functions. This stage furnished Jacques de Revigny with 
 the idea of giving a" jus ad rem" to the vassal who had received 
 symbolical investiture, but not physical delivery. The civil jurists, 
 in their turn, applied it in various ways, for example, to give a 
 "jus ad rem" to the purchaser who had not yet taken delivery of 
 the thing sold ; in the end this right degenerated into a mere claim. 
 § 331. Real Servitudes. — Rights established over an inherit- 
 ance or servient tenement for the benefit of another or dominant 
 tenement, — such is the Roman conception of predial servitudes, 
 they are so inherent in the land that they are often spoken of as 
 "attributes of the land"; also, they could no more impose the obli- 
 gation of performance upon the owner of the servient tenement 
 than they could be established simply for the personal convenience 
 of the incumbent. They seem like restrictions on the right of 
 ownership, and therefore like exceptions wliich ought to be limited. 
 Our old authors, going back to the Roman tradition, formulated 
 this conception in the following terms: "By the law of nature, 
 every inheritance is free and exempt from servitudes." ^ As is 
 ordinarily the case, when they refer to natural law, facts belie 
 their assertions. The Customary law admits the existence of so 
 large a number of legal servitudes which are based upon old usages 
 and an old organization of ownership, that it would be nearer the 
 
 * Innocent IV contrasts the "concessio episcopi" from which there results 
 for the beneficiary the "jus in re" and "dominium" or "quasi dominium" 
 with the "praesentatiopatroni," which only gives a "jus ad rem petendam, ad 
 
 Eetendum beneficium" sanctioned by a "personalis actio" (judicial way) or 
 y an "imploratio ad officium judicis" (administrative way); on Dig. X, 1, 
 2, 9; 1, 3, 19, 38; 1, 30, 6, etc. (about 1245). By this means alone does the 
 bestowal transmit the "jus in re" ("sine traditione rei vel presencia"); the 
 installation which follows gives the right of retaining. "Archidiaconus" 
 {Guido de Baysio), the teacher of Jean d' Andre, is perhaps the first canonist 
 who has made use of the expression "jus ad rem." As to the evolution of the 
 canonic theories and the effects of the "jus in re" and the "jus ad rem" cf. 
 Grossmann, p. 169 et seq. 
 
 ^ As to this changing of a private right into an administrative right, cf. 
 Grossman, p. 274. The beneficiaries of former times may be likened to public 
 functionaries (salable offices). 
 3 Lalure, I, 2. 
 
 420
 
 Topic 7] RIGHTS IN L-YND [§ 331 
 
 truth to say "Every inheritance is burdened with servitudes; the 
 freedom of a piece of land is an accident." According to this right, 
 nothing stands in the way of the creation of a predial servitude 
 for the benefit or the convenience of a person (e. g., right of pastur- 
 age belonging to a corporation of butchers); nor does anything 
 prevent its existing "in faciendo," that is to say, its compelling the 
 owner of the servient tenement to carry out certain acts (for ex- 
 ample, keep a way in good condition). The feudal rights here 
 furnish a legal type opposed to that of the Roman law; it is 
 sufficient in proof of this to recall certain real duty-services, or, 
 again, the right of the lords to demand that their tenants come 
 at night and thrash the ponds in order to prevent the frogs from 
 disturbing their slumbers (a right whose existence is disputed).^ 
 Serfdom, personal and real servitudes, rights over land, and feudal 
 rights, are not very readily distinguished in the minds of our old 
 jurisconsults. The memory of those old services abolished by the 
 Revolution still clung to the framers of the Civil Code to such 
 an extent that they thought themselves obliged to lessen the 
 bad impression produced by the word "servitude" by joining 
 thereto the term "real services," which was one of explanation, 
 and which was less compromising (Civil Code, 526). 
 
 As we have discussed feudal rights elsewhere, we will only deal 
 with predial servitudes in the Roman sense, that is to say, which 
 imply the subjection of one piece of land to another.^ Our old 
 authors borrowed almost everything on this point from the doc- 
 trines of the Roman jurists, which had predominated in the end.^ 
 Disputes with relation to these servitudes were decided after an 
 inspection of the locality by experts or juries charged with mak- 
 ing a report. They were named by orders of the judge in the 
 presence of the parties. The latter had the right to offer opposi- 
 tion, that is to say, to require a revision or a substitution in this 
 jury. Since the reformation of the Custom of Paris in 1580 (Art. 
 184) it is only the judge who can order a wider scope of informa- 
 tion to be obtained.'* 
 
 1 Michelet, "Orig.," p. 253; Gnmm, "R. A.," p. 356. 
 
 * As to relations of vicinage, cf. Grimm, "R. A.," p. 500. 
 
 ' Beaumanoir, 30, 27; 34, especially 22 et seq.; 24, 15, 31; "Jostice," p. 137 
 et seq., 146; "Gr. Cout.," pp. 196,355, 790; "Et.de St. Louis," ed. Viollet, I, 
 p. 325; "L. d. Droiz," I, 116; "Cout. d'Anjou," ed. Beautemps-Beaupre, IV, 
 11; Masuer, XXXIX; Boutanc, II, 17, 18; "Confer. desCoutumesdeGudnois," 
 II, 9; Loysel, 2, 3; L'Hommeau, III, 411 et. seq.; Lamoignon, "Arr., t. des 
 Serv. Prevot de la Jan^s," I, 358; Argou, II, 7, etc. 
 
 * As to these juries, cf. "Cout. Not. du Ch&t.," 75; "Gr. Cout.," 2, 39 
 (p. 361); "A. C, d'Anjou," ed. Beautemps-Beaupre, 1, 145; II, 160, etc.; "Paris, 
 
 421
 
 § 332] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 § 332. The Same. — Certain servitudes are natural and legal, 
 others established by the act of man. (I) Natural Servitudes. 
 The former are, as it were, an integral part of the system of land 
 ownership. I am not here speaking of those which are almost un- 
 avoidable, such as the obligation of the owner of a lower piece of 
 land to receive the water which naturally percolates from the higher 
 piece of land, but of those which are less necessary, rather legal than 
 natural, and which vary a great deal with local usage and the state 
 of agriculture. The barbarian laws, and especially the Visigothic 
 laws, thus give passers-by the right to settle themselves for two 
 days upon pastures by the roadside, to pasture their domestic 
 animals thereupon and to cut the branches of trees. Much later 
 on, Loysel still sets up the rights of the passer-by, which are very 
 much lessened in his time, in the gibe, " Everything which comes 
 to the hedge is plunder" (282).^ At the time when these primi- 
 tive Customs have disappeared there are to be distinguished : ^ 
 1st, servitudes of public utility (stepping-stones, towpath, etc.);' 
 2d, servitudes of private interests (ladder space,^ "invetison," ^ the 
 right of way over an enclosure,^ etc.) ; 3d, obligations imposed by 
 police regulations (Customary) , distance to be kept in planting trees,^ 
 
 A. C," 79; "N. C," 184; Lauriere, on 185 "Paris"; Guyot, see "Expert," "Rap- 
 port," "Visite," etc.; Ferriere, see "Experts"; Edicts of May, 1690: experts 
 appointed to hold office as such; "Ord." of Apr., 1667; Edict of Feb., 1554; 
 June, 1575; May, 1689, etc. Vol. IX of the "Cout. de Paris" has as its 
 rubric: "Concerning Servitudes and Reports of Juries." 
 
 1 "Deutr.," xxiii; "Wis.," 8, 4, 25 et seq.; 2, 3, etc.; "Roth.," 358; Dahn, 
 "Westg. Stud.," p. 96; Michelet, "Orig.," pp. Ill, 411; Gnmm, "R. A.," 107, 
 554. — The "Cout. de Nivern.," "Champarts," 1, allowed each one to labor 
 upon the land of another, provided that the owner did not forbid it. Cf. 
 Fournel, "Voisin," see "Terres Abandonees." 
 
 2 Various servitudes in the Customs, and sometimes the same servitudes 
 under different names. "Etual" or drainage in the "Tranches Montagnes." 
 For Flanders see Britz, p. 631. As to the lawful servitude of acqueduct (irri- 
 gation of lands) details in Fertile, § 144 (it existed in Italy in the eighth 
 century; numerous provisions in the Italian statutes); § 145 (other la^'ful 
 servitudes) . 
 
 ' Beaumanoir, 24, 14. As to public ways and their dimensions, ibid., 25, 1 
 et seq.; Loysel, 232, 333; "Expos, des Cout. sur la Largeur des Chemins," 1687; 
 Ragueau, Ferriere, Guyot, see "Chemins." — As to dikes, cf. J. GieYke, "Gesch. 
 d. Deutsch. Deichrechts," 1901; Ravel, "Us. de Bresse," p. 219; Collet, id., 
 p. 89. 
 
 * Right of placing a ladder upon the land of one's neighbor and of occupy- 
 ing the necessary space for turning the ladder when one had to repair or 
 con.struct a building. — Chaisemartin, "Prov.," p. 171, "Pflugrecht," space 
 Bufiicient for the turning of a cart, etc. 
 
 * An obligation to leave a space of five feet (South) between the neighbor- 
 ing house and that which one was building. Cf. "ambitus" at Rome. 
 
 « Beaumanoir, 43, 45; "Jostice," p. 142; Loysel, 2, 3, 16; Grimm, p. 553. 
 Cf. Dig., 2, 7, 12; Fertile, § 145. 
 
 7 Cf. Loysel, 256; "Cout. Not.," 107; "Paris," 187. 
 
 422
 
 Topic 7] RIGHTS IN LAND [§ 333 
 
 for the establishment of cesspools, etc./ flow of refuse water 
 and rain water; 4th, cases of compulsory joint ownership, such 
 as party ownership or ownership by agreement, like the owner- 
 ship of the separate stories of a house, and the relations which 
 spring therefrom between the joint owners; even obligations of 
 enclosing and keeping within boundaries ^ have a place among 
 servitudes. 
 
 In the North, where houses were contiguous and not separated 
 from one another or isolated ("insulse"), as was often the case in 
 the South, if one owner built up to the edge of his land, he could 
 not prevent his wall from becoming party property owned by him- 
 self and his neighbor if the latter should decide to build at the 
 same spot; ^ in order to acquire the party ownership, it was neces- 
 sary to pay the price of half of the wall and half of the land upon 
 which it was erected; thus there had been recognized a veritable 
 dispossession because of private utility. The system of the party 
 wall is a system of compulsory joint ownership whose details, as 
 well as those relative to servitudes of light,^ are to be found in a 
 number of the Customs, and especially in the Custom of Paris. 
 The Customs also admit the party ownership of hedges and 
 ditches. 
 
 § 333. The Same. — (II) Servitudes established by the act of man 
 are the result of judgments (on the occasion of a partition) ^ and 
 even, according to some opinions, of decrees,® of contracts,^ of wills, 
 
 1 "Gr. Gout.," p. 357; "Gout. Not.," nos. 173, 272. 
 
 ^ Gompulsory enclosure: Loysel, 2, 35; Michelet, "Orig.," 87, 102; Grimm, 
 "R. A.," 543; P. de Fontaines, 21, 66; "Jostice," p. 142; Beaumanoir, 30, 27; 
 43, 45; "Gout. d'Anjou," ed. Beaufemps-Beaupre, II, 184; "Et. de St. Louis, 
 I, 136; Boutaric, p. 211, etc.; De Ribbe, "Soc. Proveng.," 1898, p. 185; Loysel, 
 255: "boundaries are set by authority of law." 
 
 3 Beaumanoir, 24, 22; "Gr. Gout.," 2, 38 (p. 355); "Gout. Not.," 8, 77, 156, 
 173, 272; "Gonst. du Ghat.," § 49; "Paris," 192 et seq.; "Ass. de J6rus.,'* 
 "G. des B.," ch. 150; Loysel, 283: "In towns every wall is a party wall unless 
 the contrary is evident." "Anjou," ed. Beautemps-Beaupre, IV, 11; Britz, 
 p. 634; Fertile, § 144. 
 
 * Gresinger, "De Servit. Luminum," 1819; Britz, p. 644; Fertile, § 144." 
 
 ^ Cf. "adjudicatio" in Roman law. 
 
 ' A servitude comes into existence by means of a distraint upon land: the 
 owner of the servient tenement offers no opposition; the judgment creditor 
 has a right to exercise the servitude: La Thaumassiere, on "Berry," 2, 1; 
 CaOTMS,'on "Paris," 186. According to Lamoignon, " Arr., t. des Servit.," Art. 3, 
 he only has a right to gain it by the prescription of ten or twenty years: Fer- 
 riere, on "Paris," 1, 8. A great number of jurisconsults rejected both of these 
 opinions: Gouget, "Tr. des Gri6es," 2, 4, 130. 
 
 ^ As to the intervention of the lord and the Gustoms of public nams, cf. 
 "Paris," 215- "Orleans," 227; "Gr. Gout.," 2, 38; Desgodets, on 215 "Paris." 
 Lamoignon, Arr.," op. cit.: it is useless to specify visible servitudes. Cf. 
 Givil Code, 694. The compulsory decree cleared off all hidden servitudes, 
 but not visible ones: Edict of 1551, Art. 12; Gouget, "Grimes," p. 442, 
 
 423
 
 § 333] OWNERSHIP AKD REAL RIGHTS [Chap. II 
 
 of intention on the part of the father of the family, or of prescrip- 
 tion. — Intention on the part of the father of the family.^ The 
 court practice of countries of written law did not, any more than 
 did the Roman law,^ admit on principle this method of creating 
 servitudes.^ It was afraid of increasing them beyond measure; for 
 this mode of creating servitudes it was sufficient if the owner of 
 two pieces of land made use of one for the benefit of the other; 
 the day when, following a sale or a partition, the two pieces of 
 land had different owners, this state of affairs became transformed 
 into a servitude by law. The Customary law, however, recognized 
 them; doubtless from the very character of the ownership of 
 real property it had difficulty in freeing itself from its collec- 
 tive forms. In the old Custom of Paris, Art. 91, "conferring 
 and appointment by the father of the family are equal to a 
 deed." ^ Such is still the rule of many of the Customs; ° some of 
 them restrict it to the case of partition.^ But at the time of the 
 reformation of the Custom of Paris, Art. 216, it was specified 
 that appointment by the father of the family would not be equiva- 
 lent to a deed unless it should be proved in writing.^ This would 
 have meant doing away with this method of the establishment of 
 servitudes, if the texts had been strictly interpreted, as certain 
 people wished them to be. Tradition was sufficiently strong to 
 uphold this method ; they limited it to the forbidding of proof by 
 means of witnesses when one of the pieces of land had served for 
 the benefit of the other where both had a common owner; a written 
 proof was demanded (for example, the receipts of workmen who 
 had constructed a sewer). Even with this interpretation the Cus- 
 tomary law drew nearer the Roman law, and the appointment by the 
 father of the family lost some of the extent of its application.^ — 
 Prescription.^ The old law was very much split up upon the ques- 
 
 1 Lalaure, 3, 9 and 10; Guyot, see "Serv.," 17 and 18; Villequez, "R. h. Dr.," 
 V, 197; Machelard, "Examen critique des Distinctions admises en ce qui cone, 
 les Serv. Prediales," p. 122. 
 
 2 Machelard, op. cit.; Dig., 8, 3, 31; 8, 4, 7, 10; 33, 3, 1. 
 
 ' Serres, "Inst.," II, 3 (p. 145); contra: Julien, "Elem.," p. 154. 
 
 * "Cout. Not.," 80, 108, 174; "Gr. Gout.," p. 359. 
 
 6 "Etampes," 73; "Melun," 189; "Reims," 350, etc. 
 « "Touraine," 212; "Norm.," 609. 
 
 7 "Paris," 215, 216; Ferriere, on "Paris," 216; Pothier, on "Orleans," 228; 
 Poullain-Duparc, on "Bret.," Ill, 307; Pasquier, "Inst.," p. 268. 
 
 * Indeed, it seems that in the old law the intention of the father of the 
 family only applied to visible servitudes. And, moreover, there is not a very 
 clear distinction made between their being visible ana being continuous: 
 Lalaure, I, 1, and II, 2; Guyot, see "Serv.," nos. 7 and 8 (visible and hidden). 
 
 9 D'Argentre, on "Bret.," 271; Ferriere, on "Paris," 186; Pothier, "Prescr.," 
 
 424
 
 Topic 7] RIGHTS IN LAND [§ 333 
 
 tion of the acquiring of servitudes by means of prescription. It 
 seems that in early times this method was looked upon with favor 
 because servitudes were like the residue of a system of collective 
 ownership.^ Reaction in the direction of individual ownership led 
 to the principle of the Custom of Paris, Art. 186:^ "no servi- 
 tude can exist without a deed." ^ However, there still had to be a 
 struggle against immemorial possession, which resisted being pro- 
 scribed, and which in certain Customs succeeded in being main- 
 tained.^ The new rule had great practical advantages: it cut short 
 many suits based on the existence of servitudes. The Civil Code, 
 adopting an intermediate system, the elements of which were 
 furnished it by the court practice of the countries of written law,^ 
 admits of prescription, but only for servitudes which are contin- 
 uous and apparent.® The extinction of servitudes by non-user of 
 thirty days, which had been borrowed from the Roman law, was 
 generally accepted.'^ 
 
 no. 286; Guyot, see "Serv.," 22. Full details in Lalaure, I, II, III. As to toler- 
 ation, cf. the German proverb: "Friendship and good will do not create any- 
 right." Chaisemartin, p. 176; Beaumanoir, 24, 15. 
 
 1 "Douai," 9, 2; "Gr. Perche," 216: immemorial possession. Elsewhere 
 possession of ten or twenty years, of thirty or forty years, etc. "Artois," 72; 
 "Auvergne," 17, 1; "Chalons," 144, etc. See: "Conference de Guenois"; 
 D'Argentre, on 271 "Bret.," see "Sans Titre," no. 10; Dunod, p. 3, ch. 6; 
 Pothier, "Poss.," no. 90. *' 
 
 ^ It is already found to be formulated in the fourteenth century: "Cout. 
 Not.," 8; Desmares, 387; "Gr. Cout.," II, 38 (p. 353). Cf. Beaumanoir, 24, 
 15, 31; "L. d. Droiz," no. 711; "Anjou," ed. Beautemps-Beaupre, Table, see 
 "Servit."; Loysel, 293; "Ord." of 1495, 5 (Isambert, XI, 156). 
 
 ' Dumoulin, on 230 " Blois"; Coquille, on "Niv.," 10, 2; Ferriere, on "Paris," 
 186. Cf. Civil Code, 242. 
 
 * Ante, ^ 288; Loysel, 299. 
 
 ' Serves "Inst. " II 3. 
 
 « Dig., 8, 2, 28 '(Pa J./)." Cf. Machelnrd, op. cit. 
 
 ^ Domat, 1, 12, 6, 5; Pothier, on "Orl.," XIII. 
 
 425
 
 §334] 
 
 OWNERSHIP AND REAL RIGHTS 
 
 [Chap. II 
 
 Topic 8. Restrictions upon the Freedom of Alienating 
 Inter Vivos. — Repurchasing 
 
 §334. 
 
 §335. 
 §336. 
 
 §337. 
 
 §338. 
 
 §339. 
 §340. 
 § 341, 
 
 The Freedom of Grant "Inter 
 Vivos." 
 
 Repurchase. 
 
 Disadvantages of Repurchases 
 and Their Suppression. 
 
 The Repurchases of the Civil 
 Code and Actions of Subro- 
 gation. 
 
 The Repurchasing by a Person 
 of the Same Lineage. 
 
 The Consent of the Relatives. 
 
 Offer to the Next of Kin. 
 
 Repurchase. 
 
 § 342. Conditions of the Repurchase. 
 (I) Property Subject to the 
 Repurchase. 
 
 § 343. The Same. — (II) Acts which 
 give Rise to the Repurchase. 
 
 § 344. The Same. — (Ill) Who has the 
 Right to the Repurchase? 
 
 §345. The Same. — (IV) Against whom 
 was the Repurchase allowed? 
 
 § 346. The Same. — (V) The Repur- 
 chase of "half funds." 
 
 § 347. Procedure. 
 
 § 348. Effects of the Repurchase. 
 
 § 334. The Freedom of Grant " Inter Vivos " of immovable 
 possessions was subject in the old law to numerous restrictions: 
 some of them rested on the inadequateness of the rights of the 
 owner, like the theory of repurchasing; others, on the incapacity 
 of the vendee; thus, the prohibition of making a grant for the 
 benefit of people in mortmain » (which has been discussed else- 
 where),^ and especially for the benefit of the Church; "vendere 
 cuilibet poterit prseter ad Ecclesiam," this formula is often met 
 with in the Middle Ages. 
 
 § 335. Repurchase. — The rights of his lord, of his relatives, of 
 his neighbors or fellow owners, are superimposed upon those of 
 the owner of land over his possessions. Each one of these joint 
 owners is qualified to have a part in the alienation of the property; 
 his right is more or less strongly manifested according to the pe- 
 riod, and ordinarily according to a decreasing progression along 
 the lines of authorization, of pre-emption, and of repurchase. The 
 normal way, in fine, — that which prevailed in our old legislation 
 as constituting a compromise between the old system of owner- 
 ship and the modern system of individual ownership, — is repur- 
 chase, or the right to take back to oneself, to repurchase the land 
 sold by its owner to a third party, upon condition of indemnify- 
 ing the latter; one is substituted for him or is subrogated to him, 
 and takes the bargain upon oneself. This repurchasing scarcely 
 
 1 Cf. as to the English legislation, Pollock and Maitland, 1, 314. Details 
 and texts for Italy in Fertile, § 146. See also Pollock, "Land Laws," p. 91. 
 
 426
 
 Topic 8] FREEDOM OF ALIENATING — REPURCHASING [§ 335 
 
 makes its appearance in the legislation of the Lower Empire, ex- 
 cepting for the benefit of neighbors and fellow owners.^ Our 
 ancient law, on the contrary, contains a great number of repur- 
 chases:^ 1st, repurchasing by the neighbors or by the citizens for 
 their mutual benefit; ^ 2d, reijurchasing by a community, for con- 
 
 ^ Like the "adjectio" it is one of the measures taken for assuring a collec- 
 tion of taxes: "Cod. Just.," 4, 52, 3; "Epist." oi Symmaque, IX, 21; of Sidoine 
 Appolinaire, IV, 24; V, 3; "Cod. Theod.," 3, 1, 6 (in 391); {Valent., Theod. and 
 Arc); Godefroy, ed. Ritter, I, 286; "Cod. Just.," 4, 38, 14; cf. 11, 56, 1; 10, 19, 
 8, and "Cod. Theod.," 11, 24, 6, 1; "Nov. Just.," 120, 1. See especially the 
 "Nov." of Romain Lecapene, 922, in Zach., "Jus. Grseco-Rom.," Ill, 234; 
 cf. "Nov.," 114 of Leo (order: relatives, joint-owners, neighbors). As to the 
 Byzantine "protimesis," cf. Zacharice de Lingenthal, "Gesch. de Griech. Rom. 
 R.," 1877, § 50; Mortreuil, "Hist, du Dr. Byz.," 1844; Platon, "Le Socialisme 
 en Grece," 1895; " La Democratie et le Reg. fiscal a Rome et a Athenes," 1899; 
 Monnier, "N. R. H.," 1892, p. 654. The "Const. Sancimus," which is ordi- 
 narily attributed to Frederick II, and which is a private work according to 
 others {Briinneck), is scarcely more than a translation of the "Novella" of 
 Rumain Lecapene. It is ordinarily found in the old editions of the "Libri 
 Feudorum." Cf. Monnier, "N. R. H.," 1896, p. 651 (bibl.); A. del Vecchio, 
 "Legisl. di Federico II," p. 104. Sicilian Customs: see La Mantia, "Storia d. 
 Legisl. Sic," 1858, and especially "Consuet. e Leggi s. la Protimisi," 1895; 
 Giuffrida, "Genesi d. Consuetud. di Sicilia," 1901. At Rome, the "pactum 
 protimeseos" which was joined to a sale merely conferred a personal right; 
 but the Byzantine "protimesis" seems already to give a real right: Tamassia, 
 op. cit. (Italian Statutes); Lattes, p. 269. When an owner wished to sell his 
 land a neighbor was preferred to another grantee (who paid the same price) ; 
 this advantage was the just compensation for the charge of the "adjectio"; 
 the State could, in fact, arbitrarily confer the "agri steriles et deserti" upon 
 the neighboring owner, charging him with a tax. But, although the "proti- 
 mesis" is thus connected with the financial system of the Lower Empire, it 
 rnay have had its remote origin in the general ownership of the family or the 
 village. _ The State would thus have only sanctioned a popular institution in 
 its own interest. 
 
 2 Twenty-five according to Merlin, "R^p.," 5th ed. Let us mention the 
 repurchase of bequeathed silver plate (Declaration of 1689), of domestic ani- 
 mals {Ldbourt, VI, 1: for the benefit of the keeper of the animals when the 
 owner sells one or several head), of retaking (for the benefit of the man who 
 has the seisin, allowing him to take back his movables which have been given 
 to a third party by a judgment). These three repurchases are contrary to the 
 principle, "Movables are not affected by repurchase " ("Paris," 144), which 
 is explained by what has been previously said on the subject of the ownership 
 of movables; the repurchase of reconsoUdation (for the benefit of the mere 
 owner against a third party to whom the usufructuary has granted his right) ; 
 the repurchase of rents or of quit-rents (for the benefit of the holder when 
 the creditor grants his rent). Britz, p. 708, mentions a popular repurchase 
 given to everybody against people in mortmain: "Liige," 16, 28. Disposses- 
 sion for reasons of public utility is qualified as a repurchase of public utility: 
 so Guyot, in Alsace, a repurchase against the Jews (from 1747) to prevent 
 them from acquiring too great a number of houses (abolished Sept. 27- 
 Nov. 13, 1791). 
 
 ' They also say repurchase of habitation or premises. Cf. in German law 
 "Marklosung," a repurcha.se for the benefit of the inhabitants of the march; 
 "Genossenlosung," a repurchase for the benefit of the inhabitants of the 
 commune; "Fiirnossenrecht," "Nachbarlosung," for the benefit of the neigh- 
 bors: Heusler, II, 61; Chaisemartin, "Prov.," p. 213. Our old authors cling to 
 the laws of the Lower Empire: the 1, 6, "Cod. Th6od.," 3, 1 ("Dudum"), 
 figures in the "Brev. d'AIaric," "Petrus," I, 19. From this passage we can, 
 
 427
 
 § 335] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 venience or of a joint possession for the benefit of joint owners;^ 
 3(1, seigniorial repurchasing, for the benefit of the lord {feudal for 
 fiefs, copyhold for copyholds) ; ^ 4th, repurchasing by a person of 
 the same lineage, for the benefit of the relatives or descendants; * 
 5th, repurchasing by agreement, for the benefit of the vendor, who 
 reserves it for himself by a clause of the deed of sale."^ Repurchas- 
 
 dcduce that the repurchase by neighbors is rather connected with agrarian 
 communities of old Germania, just as the repurchase by a person of the same hne- 
 age is connected with the formation of the German family. The "vicini" can 
 oppose the setting up of a foreigner, according to the "L. Sal.," 45, "demiar."; 
 they inherit from one another if they have no sons, before the time of Chilperic. 
 CJ. Geffcken, "L. Sal.," Table, see "Villa," "Vicinus"; post, "Inheritances"; 
 Engleman, "De Retractu locali," 1776; Grimm, "R. A.," 531; bibl. in Stobbe, 
 § 89; Schroeder, 204, 324 et seq. The neighbor of the South ("vezi," meaning 
 a member of the " veziau" or the community; cf. Spain, " vecino") corresponds 
 to the citizen of the North: DuCange, see "Vicinus"; Cadier, "EtatsdeBearn," 
 p. 91. As to the "vicinatico" at Cannobio, cf. Lnttes, "Dir. Consuet.," 1899, 
 p. 153. Does the owner of a piece of land adjoining the one which is alienated 
 have the right of the repurchase, assuming that he is not a fellow citizen of 
 the man alienating it? It would seem not, the practice in this respect differing 
 from that under the Lower Empire in Germany. — The repurchase of citizen- 
 ship is sometimes applied to movable property and to provisions: "Bayonne," 
 V, 43 (ships); Labourt, VI, 8; "Bergerac," 106. — Rights of "treizain" (Nimes), 
 "abzue," emigration, florin of succession, etc., collected by the lords or the 
 towns when the possessions of a citizen or a pei-son domiciled therein passed to 
 an alien through inheritance or otherwise. Law of July 19, 1790. — "Bay- 
 onne," V, 51: repurchase of a house sold to be demoUshed. — Italy: cf. Ta- 
 massia, p. 256, 260, etc.; Dambeza, "These," 1886 (agrarian communities in 
 Algeria). 
 
 ^ Formerly, joint owners were relatives or fellow citizens, and the repur- 
 chase by a person of the same lineage or the repurchase by neighbors were the 
 only ones which should have been used. The repurchase of joint possession 
 ended by becoming separated from the preceding ones and by acquiring an 
 existence of its own in certain of the Customs, perhaps owing to the influence 
 of the Roman laws. Originally, it was considered as being for the purpose of 
 re-establishing the unity of the domain; later on it was regarded rather as a 
 means of facilitating the termination of joint possession. Cf. the Roman 
 laws cited in the preceding note: Loysel, 422 (bibl.). "Ass. de Jerus.," ed. 
 B., II, 260; "Bayonne," 5, 20; "Dax," 10, 17; "Berghes," 9, 9, etc.; "Lille," 
 7, 1 : " r. de frareusete " (cf. Ragueau) identical with the repurchase of joint pos- 
 session; repurchase of "escleche" (disappearance or dismemberment), right for 
 the coparcener to take back the divided share which has been separated from 
 the common fund and alienated to a third party. In German law: "Theillo- 
 sung," "Gespilderecht," "Getheilenzugrecht." 
 
 2 Or retained: Loysel, 423; see Ragueau. The lord retains and restores to 
 his tablets the fief which has been alienated. In countries of written law the 
 seigniorial repurchase is called "preference" (Guyot, see "R6p.") and presents 
 some pecuharities. — Ducal repurchase ("duches-paries"), see Guyot. — 
 Loysel, 432: the king has no right to the seigniorial repurchase; also it cannot 
 be made use of against him. Ferrihre, see "Retr. f^od.": the king can repur- 
 chase fiefs held immediately of the crown, but not those held under a mesne 
 lord; otherwise, he would end by having all the fiefs in the kingdom. — Cf. as 
 to the seigniorial repurchase, treatises on fiefs and on feudal rights, Loysel, 424. 
 
 ' "Retractus gontilicius, "consanguinitatis," "Erblosung," etc. 
 
 * Pothier, no. 532, distinctions: 1st. The redemption, a clause by means of 
 which the seller reserves to himself the power of buying back the thing sold 
 and the buyer binds himself to give it back to the seller. 2d. The repurchase by 
 agreement, by virtue of which the seller and his successors have the right every 
 
 428
 
 Topic S] FREEDOM OF ALIENATING — REPURCHASING [§ 336 
 
 ing by a person of the same lineage, which is the most practical 
 and the most widespread of these, will be examined below as a 
 type to which the others are similar in their essential character- 
 istics. In case of a conflict between the different kinds of repur- 
 chasing, in the later stages of the law, sometimes the repurchasing 
 of the neighbors and of the community was given preference over 
 the repurchasing by persons of the same lineage, and the repur- 
 chasing by persons of the same lineage was always given preference 
 over the seigniorial repurchasing.^ The repurchasing by agreement 
 took precedence over all the others. 
 
 § 336. Disadvantages of Repurchases and Their Suppression. 
 — With the decadence of feudalism and the disintegration of the 
 family and agrarian communities, these repurchases had lost their 
 reason for existing.^ There does not seem to have been any thought 
 of making use of them in the interests of an advantageous culti- 
 vation of the land by reconstructing domains which were too 
 much cut up for their development to be advantageously carried 
 on. Certain of them ceased to be made use of; those which re- 
 mained were made subject to conditions which became more and 
 more severe. Only an impediment to the circulation of property 
 came to be seen in them, beginning with the development of pub- 
 lic wealth. The vendee who was liable to be evicted without any 
 certainty of the morrow hesitated about concluding a bargain the 
 whole benefit of which, if there were any, would be for others. 
 Struck with these disadvantages, and desirous of strengthening 
 
 time the inheritance is sold, whether by the buyer or by his successors, to be 
 preferred over all buyers and to be allowed to take their bargain off their 
 hands. Cf. Tiraqueau, op. cit., and Merlin, see "Faculte de Rachat." 
 
 1 A curious trace, one might think, of the order in which the various forms 
 of ownership had succeeded one another; but the fact is neither sufficiently 
 old nor sufficiently general to allow of one's drawing this conclusion: "L. 
 Feud.," II, 9, 1; Loysel, 425; Beaumanoir, 51, 20; "Olim," I, 6G6; "Ass. de 
 Jerus.," loc. cit. (a relative preferred to a neighbor). Chaisemartin, "Prov.," 
 p. 213: a coparcener is preferred to a person of the same lineage. Heiisler, II, 
 63: relatives, fellow members of a community, "Hoflcute"; or else at a more 
 recent period: accusation and, in case of an action at the same time, drawing 
 of lots. — Cf. Tamassia, op. cit., p. 260, etc.; Code of Montenegro, Art. 49. 
 
 ^ Boutaric, I, 1 (p. 3): "hateful rights." Tiraqueau sets forth at length the 
 advantages and disadvantages of the repurchase. Domat is unfavorable to it. 
 Auzanet (preface to volume on the Repurchase, "Cout. de Paris") maintains 
 that it gives rise to an infinite number of frauds, of perjuries and actions, without 
 taking into account the fact that it is contrary to good faith and freedom of 
 trade. Montesquieu is one of the few defenders of that which he calls "a mys- 
 tery of the ancient law." Cf. also Pothier. In the repurchase by a {lerson of 
 the same lineage, the one most widely used, is seen one of the moans of pre- 
 serving the "splendor of the name." This would seem like one of those arti- 
 ficial proceedings made use of as a matter of policy to check the disintegration 
 of the old families. 
 
 429
 
 § 336] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 the ownership of the individual, the Revolution abolished these 
 repurchases,^ The seigniorial repurchase was the first to be af- 
 fected, and it disappeared with the feudal system,^ The others 
 were then suppressed (June. 13, 1790) because they were liable to 
 hinder the sale of the national possessions.^ A short while after 
 this, July 17, 1790, the Constituent Assembly completed its work 
 by abolishing the repurchase by a person of the same lineage.^ 
 A law of May 13, 1792, re-enacted in very general terms the 
 proscription of every sort of repurchase.^ 
 
 § 337. The Repurchases of the Civil Code and Actions of 
 Subrogation. — Repurchases, properly so called, were similar 
 to, without being confused with, certain cases of personal subro- 
 gation, such as the subrogation of the acknowledged debtor to the 
 assignee of a contested right.^ This was scarcely designated by 
 the name of the repurchase; because of this circumstance and their 
 Roman origin, they survived the proscription decreed by the Revo- 
 lution. This accounts for the presence in the Civil Code of a cer- 
 tain number of repurchases, the repurchase of a contested right,'' 
 
 * Rescission because of inquiry was done away with for the same reasons: 
 Fenet, "Trav. prep.," I, 67. 
 
 2 Law of March 15, 1790, art. 10 (February 24). 
 
 3 Sagnac, "L6gisl. Civ. de la Revol.," p. 202; Viollet, p. 560. 
 
 * A few Customs had already done away with it: "Artois" (1741), 14; 
 "Arras," 1; "Bapaume," 9; "Douai," 3, 4; "Cambrai," II, 13; "Moniteur" 
 of June 14 and July 18, 1790. 
 
 ^ " Code Civil interm.," Table, see "Retrait." Abolishing of the " suppres- 
 sion of the decree" practised in Languedoc against the judgment creditor fol- 
 lowing a forced sale of an immovable (August 25, 1792); see Ferriere, Guyot. 
 Cf. "Norm.," 471. Abolition of the repurchase by the eldest sons in Nor- 
 mandy and of Art. 332 of the " Cout. de Norm." (Sept. 2 and 30, 1793). The 
 repurchase by agreement is itself proliibited: Fenet, I, p. 25. 
 
 * Repurchases properly so called are the manifestation of a latent right of 
 ownership, whereas subrogation, which is here in question, deals rather with 
 claims. The former are connected with the system of the ownership of land; 
 subrogation is to be accounted for by entirely different reasons (the repres- 
 sion of speculation and the spirit of chicanery). In cases of the assignment of 
 claims in litigation the old debt subsisted (with its guarantees), but it was 
 reduced; if the man giving up the claim had been a repurchaser, the indem- 
 nity due from him to the person selling the claim (assignee) would be a new 
 debt without guarantees. 
 
 ^ Art. 1699 et seq. ; Merlin, see "Droits litigieux"; Alb. Desjardins, "R. 
 Prat.," 1868, 25, 138; 1870, 29, 451, and 30, 225 (bibl.). In this matter our 
 old law merely applied or extended the Roman laws which were already well 
 known: "Cod. Just.," 2, 13 ("ne Hciat potentior"), 2; 8, 36 ("de litigios.") 
 3 and 5; "Nov.," 72, 5 (guardians. Civil Code, 450); "Cod. Just.," 4, 35 
 ("Mandati"), 22 and 23 (celebrated Constitutions "Per Diversas," and "Ab 
 Anastasio"). No doubt, they had never entirely ceased to be in force; as to 
 the first of these propositions, it follows at least from the following texts: 
 "Edict. Theodor.," 43, 44; "L. Rom. Visig.," "Cod. Th6od.," 2, 14; Papien, 
 43; "Burg.," 22, 55; "L. Visig. Reccesv.," 2, 3, 8; cf. 5, 4, 20, and "Cod. 
 Eur.," 312; "Petrus," IV, 20. — (A) The Ordinances of 1356 and 1585. Pro- 
 hibition of assigning debts to persons who were more powerful, for fear that 
 
 430
 
 Topic 8] FREEDOM OF ALIENATING — REPURCIL\SING [§ 337 
 
 the repurchase of an inheritance,^ the repurchase of a joint posses- 
 
 they might dictate the sentence of the judge, or to privileged persons (for 
 example, scholars) in order that pleaders should not be deprived of their nat- 
 ural judges, and this under penalty of an annulment of the assignment, of a 
 forfeiture by the assignor, and of an arbitrary fine imposed upon the assignee 
 besides damages: Le Prestre, "Q. Not.," I, 93, 37. — (B) Ordinance of 1521, 
 23: Prohibition for judges to acquire any property with respect to which an 
 action was pending within their jurisdiction, and Ordinance of January, 1560, 
 54, forbidding advocates or solicitors from acquiring causes of action which 
 they are conducting. — :(C) Michaud, 94: for judges, advocates, etc., to acquire 
 any debt in litigation (this was not registered by some of the Parliaments). 
 Regulating Order of the Parhament of Paris, July 10, 1665, Art. 13. These 
 two prohibitions are confounded, Civil Code, 1597. Cf. "Pact de Quota 
 Litis," see Ferriere (bibl.). — (D) From the Laws "Per Diversas" and "Ab 
 Anastasio," which were enacted out of hatred of speculators who have claims 
 assigned to them with a fraudulent object, our old jurisprudence drew an in- 
 stitution which Pothier ("Vente," 588) is about the only one to call "a kind 
 of repurchase." The Parhaments of Toulouse and Grenoble applied these 
 laws to the assignment of claims in litigation and other claims. Cf. "retrait 
 debita" in Flanders. See Guyot. Elsewhere, Dumoulin's interpretation, 
 which restricted their bearing to claims in litigation, prevailed: "Usur.," 
 q. 62, no. 413; "Arr. de la Ch. del' Edit" May 9, 1605; Brillon, "Diet, des 
 Arrets," see "Litige"; Brodeau, on Louet, "Cession de Dr. litig."; Pothier, no. 
 691. The assignment of real rights in litigation was treated similarly to that 
 of claims. Order of 1578, 1615, no doubt owing to the influence of the ordi- 
 nances cited above (A and B); they did not distinguish between real rights 
 and claims ; moreover, when only the litigious character of the right was taken 
 into account, the likening of them was natural. This would lead to the idea 
 of subrogation: in Rome the claim which had been assigned was cut down to 
 the price of the assignment; now, a real right, an ownership, or the usufruct 
 of a piece of land, could not be cut down in this way; the saying that the 
 assignor should be subrogated to the assignee and, a curious thing, against him- 
 self, was invented: Charondas, "Pand.," II, 29. There was always a discus- 
 sion as to the conditions required to make the right one in litigation, — being 
 contested in a suit, merely a demand (Auth. "litigiosa"), or merel}^ an appre- 
 hension of litigation? Civil Code, 1700. The exceptions to the rule admitted 
 by Anastasius are to be found in Pothier, 594, and in the Civil Code, 1701. It 
 was necessary first of all for the man who had given up a claim to have letters 
 of subrogation in order to be substituted for the buyer on pajdng him the price 
 of the assignment (which was ordinarily less than the amount of the claim) : 
 Charondas, "Pand.," II, 29. They were no longer demanded in the eighteenth 
 century: R. de Lacombe, see "Transport." According to some authors at the 
 end of the eighteenth century, such as Boucher d'Argis, the litigious repur- 
 chase must have been no longer in use ; this is not at all likely because Pothier 
 speaks of it and it is found once more under the Revolution; perhaps what 
 they meant to say, as Imbert, see "Enchir.," was that the Roman laws are 
 abrogated in this sense, that the transfer of litigious rights alone (and not 
 the assignment of any sort of claim) is subject to the repurchase. The Court 
 of Appeal, 8 Frim., year XII, declares that this has nothing in common with 
 repurchases: Cf. Sirey, 1828-30, I, 20 and 59. 
 
 1 Art. 841. — Under the name of repurchase by a co-heir or a repurchase per- 
 taining to succession. Merlin provides for two cases: 1st. A co-heir acquires 
 some right relative to the succession; before the partition of the latter another 
 co-heir may demand that this acquisition be united to the mass of the in- 
 heritance: "Dig. fam. ere," 19; "de leg.," I, 89, 4. — 2d. A co-heir gives up 
 his rights of inheritance to a stranger to the succession: every co-heir can 
 substitute himself for the latter. Cf. "Droits Successifs." Art. 841 of the 
 Civil Code has sanctioned this right, which was already generally received 
 in our old jurisprudence. Cf. especially Alb. Desjardins, "R. Prat.," 1870, 
 497. It is only dealt with in a small number of Customs ("Alost," 20, 5; 
 
 431
 
 § 337] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 sion} The framers of the Code, moreover, avoided those expres- 
 sions which showed the effects of the old system, and repurchases 
 only had a place in their work incognito. It remained for the School 
 to revive this archaic nomenclature at a time when it no longer had 
 anything suspicious about it. In the matter of legislation the 
 
 "Bruges," 20, 3; "Namur," 69, 70; Britz, p. 700). But the Parliament of 
 Paris admitted of it by means of its Orders of 1521, 1578, 1595, and especially 
 1613 (upon the speech of the Advocate-General Servin: "Actions," I, III, no. 
 114, ed. 1639, p. 880). Our old authors connected it with the litigious re- 
 purchase, although rights of inheritance are not necessarily contested; or else 
 it is justified because of a desire to prevent strangers from thrusting them- 
 selves into the secrets of the family and increasing the difficulties of parti- 
 tion: Charondas, "Pand.," c. 29, Servin, loc. cit.; Lebrun, "Successions," 4.2, 
 3, 66. As we look upon it, the repurchase pertaining to succession was created 
 instinctively by practice as an extension of the repurchase by a person of the 
 same lineage and of the repurchase by joint possession; co-heirs who were not 
 of the same lineage benefited by it, and it was not applied to any special piece 
 of immovable property, but to a collection of rights. Although it is called a 
 repurchase by Denisart and Merlin, we see in it rather a subrogation, and 
 formerly letters from the chancery were required in order to obtain it, " Nouv." 
 Denisart, see "Cession de Dr. success." By this means it was found not to 
 be affected by the general prohibition against repurchases pronounced by the 
 Revolutionary laws. The Convention, it is true, annulled on the 19th Flor., 
 year II, a judgment of the Tribunal of Breteuil which authorized heirs to exer- 
 cise the repurchase pertaining to succession ; but this decision was not promul- 
 gated as law, and the Court of Appeal recognized the fact that this repurchase 
 was not abolished (25th Vend., year V; 11th Germ., year X; 8th Frim., year XII). 
 ^ Art. 1408: the husband acquires partly or wholly an immovable of which 
 his wife is jointly with him a part owner; when the community is dissolved 
 she has a choice between giving up the property to the community or with- 
 drawing it. When she chooses the latter course it is said that she exercises 
 the repurchase of joint possession; but this expression, which is used by Toul- 
 lier (wrongly or rightly?) was not made use of with respect to this case in our 
 old law; as to the hypothesis provided for by Art. 1408, our old authors are 
 not very explicit. — In countries of written law the " 1.," 78, 4, D., " de J. dot.," 
 23, 3, was applied, which attributed to the wife the undivided portion of the 
 land acquired by the husband by way of marriage portion (because this is an 
 exercise of the marriage portion). Roussilhe, "Dot," § 554 et seq., seems to 
 say that she has the power, but is not compelled to choose this course: "she 
 can compel the heirs of the husband to give up to her all of the land, . . . the 
 wife or her heirs having a right to withhold the aforesaid acquisitions" Cf. to 
 the contrary, Rouss. de Lacombe, "Rec. de Jurispr. Civile," see "Dot," p. 234. 
 In countries of Customs the Roman rule was too much in harmony with the 
 institution of the repurchase by a person of the same lineage, and of the re- 
 purchase of half-funds and the repurchase of community, not to be adapted 
 to the community system; it would have been created if it had been neces- 
 sary. But some decided that the wife could not refuse the acquisition, even 
 if it is made under disadvantageous conditions: Lebrun, " Communaute," I, 
 5, 2, 3, 12; Ferriere, on "Paris," 220 (III, 1, 13). Cochin, "GEuvres/' V, 231 
 (ed. 1765), who is cited for this proposition, assuming that the wife is the 
 only judgment creditor. Others authorized her to leave the property in the 
 hands of the community, "quia marito non licet onerare propria uxoris"; 
 Bourjon, "Dr. Commun.," Ill, 10, 2, 10, 2, 2 (I, 537, ed. 1770), when she re- 
 nounces; Valin, on "La Rochelle," I, p. 493, or when she accepts. Cf. Pothier, 
 " Comm.," no. 151. These latter authors no doubt set forth the solution which 
 was received in practice, and the framers of the Civil Code merely sanctioned 
 it, as is said by Tronchet: Fenet XIII, 495, 560, 607. The partisans of the 
 contrary opinion followed the letter of the Roman laws too slavishly. 
 
 432
 
 Topic 8] FREEDOM OF ALIENATING — REPURCHASING [§ 338 
 
 merit of these new kinds of repurchase has been very much dis- 
 cussed. However, they are of very Httle importance. They cannot 
 be compared with the repurchases of the old system. They would 
 not even furnish any connecting link with a system of the reconstitu- 
 tion of landed property such as exists in Germany in our time, and 
 such as existed in the past, for example, in Italy ("ingrossazioni").^ 
 § 338. The Repurchasing by a Person of the Same Lineage ^ is 
 related to the family joint ownership of the old Germanic law.^ 
 In a number of the old legislations, where the family is organized 
 upon the same foundations, there may be noticed a tendency to 
 make the house and the lands which are the seat of a group of rela- 
 tives inalienable; these possessions belong rather to the family 
 
 * Where it seems to be connected with the "adjeetivo" of the Lower Em- 
 pire. It is not only sought, as it was formerly, to compel owners of neigh- 
 boring lands to cultivate abandoned lands in the interests of the Treasurer, 
 because they were unproductive; but, in the interests of agriculture, "justa 
 prsedia" are formed out of little parcels, and it is sought to "drizare terras ac 
 fossata"; or even that attraction which the large domain exercises over ad- 
 joining parcels is legally sanctioned, and the large landowner is given a right 
 to increase his possessions. This system was devised in order to remedy the 
 evil often pointed out by the economists of the excessive parceling of lands, 
 but it already had as its adversaries the partisans of concentrated cultivation: 
 "laudato ingentia rura, exiguum colito." Statutes since the end of the twelfth 
 century. Customs of Northern and Central Italy. Terminology: "retratto 
 coattivo," "jus congrui": Tamassia, op. cit. (bibl.); Blondel, "Popul. rur. d. 
 TAUem.," p. 332; Roscher, p. 307. 
 
 2 Other names for the "retractus gentilitius": "proismet^," proximity; 
 "premesse," etc., — that is to say, a right of the nearest relative; "rescousse" 
 (taking back), buying back, retaining; "torn" ("F. de Beam"), that is to say, 
 return; "chalonge" ("calumnia"), reclaiming. Cf. Ragueau, Spanish law: 
 "tanteo" (that is to say, "tanto por tanto," the relative is preferred). Ger- 
 man law: "Naherrecht, "Erblosung," "Zugrecht." 
 
 ^ Other systems (to-day abandoned). — 1st. Hebraic origin, "Levit.," xxv, 
 "Ruth," xxvii; "Jeremiah," xxxii, 15; Dareste, "Etudes," p. 32; Salvador, 
 "Inst, de Moise/' 1,220; RabUnowicz, "L<5gisl. Civ. du Talmud," IV and V. 
 The Jubilee, winch recurred every fifty years, dissolved of absolute right all 
 sales of lands and caused them to return to their former owners, without its 
 being necessary to pay any indemnity to the man who had held them. — 2d. 
 Celtic origin, Pithou, on "Troyes," 114; La Fcrriere, "Hist, du Dr. Fr.," II, 
 100. — 3d. Ro7nan origin, "L.," 14 "Cod. Just.," "de contr. emt.," 4, 38; 
 ibid., 4, 66, 3. Cf. "L.," 14, D., "de reb. auct. jud."; Grimaudet, p. 3; Pas- 
 quier, "Inst.," loc. cit. — 4th, Feudal origin. The feudal grants were often 
 made to X and his heirs; in case of a sale to strangers the heir had a right to 
 bring back the fief into the family: Lauribre, on "Paris," II; Montesquieu, 
 "Esp. des Lois," 5, 9. Cf. Jobb6 Duval, p. 100. — But, "a priori," one is 
 bound to admit that the feudal system must have been hostile to the repur- 
 chase by a person of the same lineage, for it was created in the interest of the 
 lord and not in that of the relatives of the vassal. Having become inheritable, 
 fiefs were made subject to the repurchase by a person of the same lineage, 
 just as freeholds were. Moreover, we must notice that the repurchase by a 
 person of the same lineage exists among peoples where the feudal system 
 did not take root (Slavs, Kabyles), and that, conversely, it has met with re- 
 sistance in countries of written law in the very midst oi feudalism: Houard, 
 "Anc.LoisdesFr.,"!, 256. 
 
 433
 
 § 338] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 than to its head, and the latter could not freely dispose of them.^ 
 It is in this same spirit that the law of the barbarian period and 
 the Customary law place the power of alienating immovables, or, 
 at least, ijersonal belongings,^ under a number of restrictions. We 
 will deal elsewhere with freedom of alienating by will and freedom 
 of giving "inter vivos"; for the time being we will only deal with 
 alienations for a consideration. They seem to be less prejudicial 
 to the family, because in inheriting the alienor's estate the 
 family gets, if not the property itself, at least its value. But, 
 according to the old ideas, appropriation of the property for the 
 benefit of the family was opposed even to alienations of this kind; 
 it was destined to pass from one relative to another, and no one 
 could be allowed to disturb the legal sequence of inheritance. An 
 alienation ran the risk of disorganizing the family, of bringing in a 
 stranger, — that is to say, an enemy — into the very heart of its 
 domain, and (putting things in their best light) causing it a serious 
 injury; the price is soon dissipated, without taking into account 
 the fact that it may be fictitious and merely serve to disguise a 
 gift. Though less injurious than sale, even an exchange is sus- 
 
 1 The history of Naboth, a victim of his affection for the family property, 
 is very significant. He had a vine near the palace of King Ahab; the latter 
 said to him, "Give me thy vine, so that I may make of it a garden of herbs"; 
 and he offered to pay him in money, or else to give him a better one. "May 
 the Lord keep me from giving thee the heritage of my fathers," replies Na- 
 both: "1 Kings," xxi, 1; c/. "Genesis," xxiii. — As to the old legislation, cf. 
 Dareste, "Etudes," pp. 30, 60, 132, 139, 190, etc.; Post, "Grundr. d. Ethnolog. 
 Jurispr.," I, 201; Hanoteau and Letourneux, "Kabyl.," II, 401 ("chefaa"); 
 Hamilton, "The Hedaya," 1870, p. 548; Louchitzky, "Propriety commune en 
 Petite Russie," 1895; Jobbe-Duval, p. 66; Bogisic, "Code Civil du Montenegro," 
 etc.; Beauchet, p. 620. 
 
 ^ The provisions of certain of the barbarian laws might have led us to be- 
 lieve that freedom to dispose "inter vivos" was admitted on principle in the 
 old Germanic law. For example, "Burg.," 84; "Bai.," 15, 16, 17; "Wisig.," 
 V, 4. But these laws have felt the effect of the Roman legislation. As to the 
 law of the Thuringians, 54, "Libero homini liceat hereditatem suam cui 
 voluerit tradere," cf. Richtojen, " M. G. H., L. L.," V, 138. This text recalls the 
 "L. Sax.," 61, the "Cap.," 817, 6 (I, 121, cf. Ill), certain formulae, for ex- 
 ample, "F. Andec," 58. At one time the Roman ideas seem to set to one side 
 the Germanic law {cf. "L. Wisig.," Formulae, Statutes; cf. especially "Cart, 
 de Beaulieu," "de Sa\T[gny," "d'Ainey"); the Capitularies attempted to estab- 
 lish a freedom of disposing, especially, it would seem, in the interests of the 
 Church. But the tenacity of the resistance offered by the family rights can 
 be measured by the care with which the framers of statutes threatened the 
 heirs with the spiritual and temporal penalties of excommunication and dis- 
 inheritance, in case they did not respect the will of the man making the disposal. 
 In the majority of the Cartularies we soon see the heirs intervening and giving 
 their consent: "Formules," ed. Roziere, nos. 267 et seq.; "Cart, de Cluny, 
 no. 8 (several vendors); no. 434 (in 935: relatives), etc.; "St. Victor de Mar- 
 seille," nos. 47, 65, 116, etc.; "St.-Bertin," no. 11 (in 685); "St.-Pere de 
 Chartres," I, p. 132, 164 (CCXX); "Redon," etc. 
 
 434
 
 Topic S] FREEDOM OF ALIENATING — REPURCHASING [§ 339 
 
 plcious, because it is very rare for it to be carried out to the equal 
 advantage of both parties. These considerations explain how it is 
 that almost as much repugnance has been expressed for aliena- 
 tions for a consideration as for those which are merely gratuitous.^ 
 At first they were not authorized excepting with the consent of 
 the relatives, and the latter were free to refuse their consent even 
 although they had no reason to do so. The owner, who could not 
 possibly sell the land because of their opposition, was compelled 
 in case of need to impose upon them the alternative of either pro- 
 viding him wdth the cost of sustenance or allowing him to solicit 
 this kind office at the hands of a stranger. This was impera- 
 tive, to avoid condemning to death those whom age, illness, or 
 many other accidents prevented from providing for their needs by 
 means of their own work. It is true that a first blow was dealt 
 by this means to the rights of the relatives; the offer which was 
 made them, and the right of pre-emption which they enjoyed by 
 this means, were not equivalent to the power of giving their con- 
 sent to an alienation, because the exercise of this latter power did 
 not subject them to any outlay, whereas they could not practise 
 pre-emption if they had not the necessary sum wherewith to pay 
 the merchantable value of the property. From this restriction 
 developed others. In order to simplify matters, the prelimi- 
 nary of an offer to the relatives was done away with; it merely 
 bothered the parties, resulted in delays, and might be the cause 
 of losing an advantageous sale. It was thought that there would 
 not be any great disadvantage in leaving the owner free to alien- 
 ate his real property, on condition that he should acknowledge 
 the rights of his relatives to take back this property within a speci- 
 fied time. The heirs thus found themselves face to face with an 
 accomplished fact. They would scarcely resolve to assail it with- 
 out serious motives, — for example, because the sale has been 
 made at a very low figure. Consent, offer, repurchase, — such are 
 the successive stages through which the right of the relatives 
 passed as it became more and more restricted. 
 
 § 339. The Consent of the Relatives (or of the next heir) was 
 required originally for the validity of the alienation.^ Also, it is 
 
 ' The right of the family is manifested, even over possessions held by lease; 
 c/. in Hainaut the custom of had will: Deboiivry, "Th^se," 1899. As to burgage 
 in Picardy there was a combination of the repurchase by a person of the same 
 lineage and the repurchase by a fellow citizen (Buthors, "Sources du Dr. 
 rural," p. 385; "Cout. d'Amiens," II, 588); in Normandy, G^estal, "Th^se," 
 p. 80. Post, "Reserve," "Gifts 'inter vivos,'" etc. 
 
 2 Cf. Lewis, Fipper, Tamassia, Ficker, etc., op. cU.; Zimmerle, "Deutsch 
 
 435
 
 § 339] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 found mentioned in many deeds from the time of the eighth cen- 
 tury; ^ the sale takes place "paupertate cogente, prsesente et con- 
 cedente iixore, annuentibus etiam filio et filiabus, prsesentibus 
 etiam et assentientibus amicis." And, if only there were a large 
 number of relatives, the proceeding was not a difficult one to under- 
 take; this alone is sufficient to account for the fact that they were 
 content with the intervention of the next heir. The principle of the 
 necessity of the consent of the relatives, which was already laid 
 down in the law of the Saxons in an implicit manner,^ was long 
 afterwards formulated by the "Sachsenspiegel" in the following 
 terms: "without the consent of the heirs, and outside of the public 
 assembly, no one can alienate his inheritance nor his people." ^ 
 
 Stammgutssystem," 1857; Brunner, "Grundz. d. d. Rechtsg.," § 57 (bibl.); 
 Verdelot, "Le Bien de Famille en Allemagne," "These," 1899. 
 
 1 Act of 796 in Lacomblet, "Urk. d. Niedder.," I, no. 6; cf. no. 129 (in 996). 
 Deeds in which the grantor declares that he has no heirs, or in which he threat- 
 ens his heirs with spiritual or temporal punishment should they attack the 
 gifts made to the Church: "Capit.," 803, c. 6; 817, c. 6; "Cart, de St.-Bertin," 
 pp. 66, 69, 113; "deCluny," I, 32, etc.; "de Notre-Dame-de-Paris," I, 288. 
 Mirocus, "Op. Dipl.," I, 665: a donor declares that her heirs, — that is to say, 
 her sons and her son-in-law, her daughter, and their children, — approve of 
 the gift ("consentientibus et laudantibus"). Lamprecht, "Etat 6conomique 
 de la France pend. la premiere partie du M. A.," treatise 1889, p. 249; " Polypt. 
 d'Irminon," p. 340 (ed. G.): annulment of the gift of a villa to the Abbot of 
 Corbeil in 986, because of lack of consent on the part of the relatives. "Cart, 
 de Beaulieu," 35, 15. They even allow an intervention of children at the breast: 
 " Cart, de St.-Pere de Chartres," Intr., p. cxxii. In order to obtain this consent 
 it is not a rare thing for the purchaser to make gifts to the heirs in money or 
 in kind. 
 
 2 "Sax.," 61, 62; cf. notes by Richthofen, "M. G. G., L. L.," V, 79. _ The law 
 of the Saxons merely formulates a still older custom; it does not sanction a new 
 rule, as Beseler and Lewis have pretended. — The Anglo-Saxon laws forbade 
 the relative to alienate the inheritable lands "extra cognationam suam"; 
 "iElfr.," 41; "L. Henrici I," 70, 21; 88, 14; cf. "Cnut," II, 79. — Other 
 barbarian laws, cf. "Burg.," 1, 1; 24, 5; 84; 99; "Bai.," 1, 1; 15; 16 and 17; 
 "Rib.," 59; 60; "Roth.," 159 et seq.; 290, 173. Cf. "Fribourg en B.," 1120, 
 art. 6; "Sole," 17; "Labourt," 5. _ 
 
 ^ "Sachsensp.," I, 52, 1. There is no rational motive for limiting, as does 
 Fipper, the right of giving their consent to a certain class of heirs, — for ex- 
 ample, to the degree of consanguinity of the grandfather. Perhaps, according 
 to the very early law, all the male relatives who had attained majority had to 
 be consulted; but it was deemed sufficient, although it might have been only 
 for practical seasons, to bring in the nearest ones (a deed of the twelfth cen- 
 tury: the son during the lifetime of the father has no right, etc.). It is not a 
 rare thing, moreover, for distant relatives to give their consent "ad majorem 
 cautelam," without its being strictly necessary. In spite of the custom of 
 strongly favoring the minor and the posthumous child, it is not certain that 
 they had the right to attack a deed: Heusler, II, 57. The intervention of the 
 relatives is required for every alienation, gift, sale, exchange, etc. (at the same 
 time the law of "Scanie," III, 2, allows of exchange "invitis consanguineis"). 
 The heir whose consent has not been sought has a right to take the immovable, 
 as though the inheritance of the one disposing of it had opened ("velut jure 
 hereditario"): "Sachsensp.," I, 52, 1. To put it better, his right of ownership 
 springs into existence from the very fact of an irregular alienation. Thus he 
 does not have to pay any indemnity to the purchaser {Ficker, contra) ; this takes 
 
 436
 
 Topic S] FREEDOM OF ALIENATING REPURCHASING [§ 340 
 
 Though not sanctioned by all the barbarian laws, it was none 
 the less a part of the foundation of the old Germanic law; ^ it 
 was so firmly rooted in the Customs that neither the Roman 
 law nor the Capitularies which were put forth in the interests of 
 the Church ^ succeeded in making it disappear.^ In the case 
 of irregular alienation, the heir who was next under the owner 
 stepped into the place of the actual owner who had abandoned his 
 rights and took back the property from the hands of the vendee 
 without paying him any indemnity.* 
 
 § 340. Offer to the Next of Kin. — At an early period there 
 were many derogations of the primitive rule; alienation was au- 
 thorized in spite of the relatives in exceptional cases, — for ex- 
 ample, when the Church or the king was the grantee (law of the 
 Saxons), or, again, in case of necessity,^ for the purpose of obtain- 
 
 place of its own accord in cases of gifts; it is the same in the case of sales; it 
 is the natural sanction of the prescriptions which require the intervention of 
 the relatives (or offer to the nearest of them) . — The effects of this system were 
 sometimes deplorable; thus, at Nambourg, where it lasted until 1307, the 
 owners who had become incapable of cultivating their lands and could not 
 sell them for lack of the consent of their relatives, found themselves under 
 the necessity of allowing them to go to waste: Zimmerle, p. 234. 
 
 1 An argument based upon the comparative jurisprudence of the consti- 
 tution of the family, traces of the old idea even in the legislations which no 
 longer accept it (for example, "Burg.," loc. cil.: if a partition of the family 
 possessions takes place between the father and his children, each one of them 
 is free to dispose of his share; in case they live in joint possession the right of 
 so disposing does not exist). Cf. "L. Sal.," XLVI. 
 
 2 "Capit.," I, pp. 113, 151, 182, 379 (disposals " pro salute animiE vel pro- 
 pinquo vel cuilibet"; the heir cannot attack a transfer "legitime facta"); 
 "Cart, de St.-Pere de Chartres," I, 40 and 88;/' Capit.," V, 235. 
 
 ' Customs were stronger than the law; in the tenth century, at least, 
 the consent of the heirs is necessary in Saxony, even in the case of gifts to the 
 churches; the son of Witikind only makes a disposition upon obtaining the 
 consent of his own son: Flodoard, "Hist, de Reims," I, p. 280 (ed. Leg.): in 
 670; Beauchet, "N. R. H.," 1901, 14. — If one wishes to get some idea of the 
 annoyance resulting from this rule, let him consider that sometimes one meets 
 with as many as eight deeds of confirmation accompanying one single deed of 
 sale and coming from the relatives or the lord. 
 
 * Heusler, II, 59. More often the right of way is accounted for by the idea 
 of an anticipated opening of the succession; but these ideas are almost confused 
 in the old law. 
 
 ^ "Legrtima necessitas," "echte Noth," understood at first in a very strict 
 manner, and afterwards with less strictness (Henry IV sells the estate of Oisy in 
 order to pay his debts). — "Famine.," "Sax.," 62; "Roth.," 173; Ragueau, see 
 "Pauvret6 juree" (Charter of the Bass6e, eleventh century: "quod nullus nisi 
 paupertate vendere potuerit"); Desmares, 283; "Beam," 1552, contr. 6; 
 "Artois, N. C," XXIII: alienation is permitted in three ca.ses: consent of the 
 heir, poverty, reinvestment. Boulnric, 2, 7; "Schwabenspiegel," c. 375; Grimm, 
 p. 461; Demelic, "Dr. Cout. des Slav. Mcrid.," I, 34. Spanish "Fueros," for 
 example, "Najera," in 1076; "Amalfi," c. 11; "Ferrette" V, 23. — Sometimes 
 proof given by the oath of the grantor, sworn poverty: intervention of the law: 
 "F. de Beam," loc. cit.; Guyot, see "N6cessit6 jur6e." — C/. "Barege," 4, 5; 
 Ricaume, "Th6se," 1897. 
 
 437
 
 § 340] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 ing sustenance in time of destitution and avoiding slavery for 
 debt, or of ransoming oneself from captivity. Sworn poverty is 
 the most general cause of and excuse for alienation; in the thir- 
 teenth century the "Livre de Jostice," p. 169, still says, "^Nlan 
 can sell his inheritance for his need, but not for liis profit." In 
 such a case as this he should begin by offering the land to his 
 nearest heir, to the next of kin, or even to his relatives in general, 
 to the friends of the flesh. It is only upon their refusal to take 
 over the property for their own account that he is permitted to sell 
 it to strangers.^ Thus the relatives have a right to preference 
 over strangers (pre-emption, preference "in re non vendita").^ If 
 he omits to offer they are permitted to take back the property from 
 the stranger who has bought it, without paying him any indemnity 
 and without restoring to him the price of the sale.^ — There came a 
 time when the condition of necessity was no longer required; it 
 was implied,* and the offer to the next of kin took place even in 
 his absence. Better still, when the owner had neglected to make 
 the offer, the Customs no longer authorized the relatives to take 
 back the property excepting upon condition of indemnifying the 
 vendee (preference "in re vendita").^ 
 
 1 "L. Sax.," 62; "Roth.," 173; "Stat. fam. S. Pietri Worm.," in 1024, 2 
 and 6; Martene, "Ampliss. Coll.," I, 381 (about 1020, "Arras"); "Petrus," 
 I, 19; "L. Feud.," 2, 3; Jobbe-Duval, p. 83, 87, 90 (Denmark, Sweden, etc.); 
 Scotland: "Leges Burg.," 45; "Stat, de Gothland," 31, 1; "Cart, de St.- 
 Bertin," p. 158 (sales among relatives) ; Desmares, "Et. sur la Propr. Fonc. 
 dans les Villes du M. A.," 1898, p. 247. Cf. the notification of individuals in 
 Breton public investiture. Beaumatioir, 44, 27, 28, condemns a system intro- 
 duced by practice and which consisted in offering a property to the relatives, 
 so that they might declare themselves before the expiration of the year and a 
 day of the repurchase. This system, rejected in Beauvaisis, was very common 
 Ib Flanders, Artois and Picardy: Bouthors, "Cout. d'Amiens," 1853; "Roisin," 
 p. 64; Beauchet, p. 22. 
 
 2 Various proceedings for the fixing of a price to be paid by the relatives 
 when their right was presented under the form of the pre-emption, when there 
 has been no previous sale to a third party (appraisal by experts, legal price) : 
 Beauchet, "N. R. H.," 1901, 26. 
 
 ' Ficker has contested this; but this seems to us to result impliedly from the 
 provisions as to the intervention of the relatives and offer to the next of kin. 
 The Swedi.sh text cited by Amira, "Nordg. Obi.," I, 578, seems to us to be 
 very categorical according to our interpretation. He also shows that the idea 
 of punishing the person alienating who did not conform to the custom of first 
 making an offer to the relatives was not unknown to the legislator. The 
 Anglo-Saxon law forbids one to alienate to anybody except one's relatives; this 
 implies that alienation, although made with consent, if to strangers is void. 
 One might conceive, it is true, of making the property a part of the inheritance 
 of the seller; but, if we find a few examples of this solution, it was too little 
 practiced to be adopted in a general manner: "Cart, de St.-Pere de Chartres," 
 p. 126; "Ponthieu,'' 19; "Tailliar," "Rec. d'Actes," p. 341. 
 
 * "Charte d'Amiens," 1190, Art. 25. Cf. La Thnumassiere, "A. C, Berry," 
 p. 610 (in 1171); Marnier, "A. C, Picardie," p. 148. 
 
 * Transition to the system of the repurchase: "Cout. de Mons., Bourdot de 
 
 438
 
 Topic S] FREEDOM OF ALIENATING REPURCEL\SING [§ 341 
 
 § 341. Repurchase. — In a last stage the offer to the next of 
 kin has fallen into disuse. Alienation is absolutely free. The rela- 
 tives who have not been consulted preserve the repurchase or power 
 of taking back the land during a year and a day, on condition of 
 indemnifying the buyer therefor.^ Under this last form, which 
 is the most recent and by far the most widespread, in the Cus- 
 tomary legislations of the whole of Western Europe, the right of 
 the family survives, very much weakened, like a sort of counter- 
 part of the hereditary reservation.^ It serves, first of all, to re- 
 establish the domain of the house, to assure the transmission of 
 everything to the legal representatives of the family. The heredi- 
 tary interest, or, so to speak, the dynastic interest, is especially 
 brought into play. In time a political thought is mingled with 
 these very much weakened traditional foundations. The repur- 
 chase, "that mystery of the ancient law," as Montesquieu rather 
 pompously calls it, makes its appearance as one of the means used 
 by the State to retard the decadence of old families; it is a protec- 
 tion against the lack of skill of a mediocre head, or against the 
 evil fortune which leads him to sell the family patrimony for an 
 insignificant sum; if the price is fair, it is well worth while to 
 reserve for a relative the advantage of this proceeding. This con- 
 ception was not without its influence upon the persistence of the 
 repurchase throughout the whole of the ancient law. But it did 
 not prevent practice from overthrowing it at an early time, with 
 the assistance of various wiles. The " Grand Coutumier de France" 
 already shows this; Beaumanoir complains of the frauds and ruses 
 by means of which it is sought to hinder its application.^ Juris- 
 prudence was compelled to restrain this "hateful right," which 
 was contrary to Roman legislation,^ and progress was thus made 
 
 Rich.," II, 182: offer to the next of kin; if this is not done, repurchase within 
 a year and a day. Cf. "Bayonne," V; "Farrette" (Alsace), 1592, c. 23; 
 Beauchet, "N. R. H.," 1901, 29. 
 
 1 "Beauvais," 1182 ("Ord.," VII, 624), and other municipal charters in 
 the North of France, twelfth century; "T. A. C, Norm.," 90; "Olim," I, 444 
 (in 1257), etc. — Spain, "Fuero Real," 3, 10; "Siete Part.," 5, 5, 55 (and 
 notes). — Italy: Dig. X., 1,41,9 (Decree of Gregory IX) ; Latles, " Dir. Consuet. 
 Lomb.," p. 269; "Milan," 1216, VIII ("de re paterna luenda"); c/. Statutes of 
 1396 (adjoining property). See especially the Sicilian Customs in Briinneck, 
 "la Mantia," "Sic. Villanueva" ("Docum. p. s. Stor. d. Sicilia," 2). 
 
 '^ Ficker does not believe that these two institutions are parts of the same 
 system, pp. 182-196: "Ass. de J6rus.," "C. des B.," 30 (II, 35, ed. B.); "Gr. 
 Gout.," p. 338 (Champagne): "I pray j'ou, make me your heir to that which 
 you have bought from such and such a person, my cousin." 
 
 ' Beaumanoir, 44, 1 et seq.; "Gr. Cout.," p. 346; "Olim," I, 496. 
 
 * Henry III, by means of an Edict of November, 1581, in vain attempted 
 to make it the general law of the kingdom; hia edict waa not appUed: "Code 
 
 439
 
 § 341] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 towards Revolutionary law, which abolished it.^ Of course, the 
 precise lines of historical change were not always as set forth in 
 this systematic recital which we have just made; sometimes evo- 
 lution was very slow, sometimes very rapid, and degrees were 
 passed by certain Customs.^ But the general ideas which we have 
 just set forth seem to us alone to account for the principal charac- 
 teristics of the old law as far as it concerns the power of alienation 
 "inter vivos," ^ and, at the same time, the local variations of these 
 which are to be met with.^ 
 
 Henri," 6, 16; see Guyot. In countries of written law the repurchase only 
 exists as an exception by virtue of local Customs. It is, nevertheless, fairly 
 widespread: "Bord.," 85 et seq.: 128; "Agen," 38; "Bergerac," 39; "Acs.," 10; 
 "Saint-Sever," 5, etc.; Serves, "Inst.," 3, 24, 2; "Quercy" and "Rouergue"; 
 Despeisses, "OEuvres," I, 74; Henrys, 1,2, 19; II, 19 and 3, 4 (not practised in the 
 Lyonnais, Bcaujolais, and Forez); Cambolas, III, 35; Acquests. Cf. Statute of 
 Provence of 1472 (one month); "B.deR.,"II, 1212; "Mont-de-Marsan," 7;see 
 Montesquieu, "Esprit des Lois," 5, 8 and 9 (to perpetuate the greatness of fam- 
 ilies, this is the aim of the monarchic system): Lamoignon, "Arr., h. t.," 4. 
 
 ^ Was there a recrudescence of this institution in the sixteenth century 
 under the influence of the spirit of the nobility? This is ordinarily admitted 
 (c/. Edict of 1581), without, as it seems to us, being very well established. 
 
 2 Thus the repurchase is lacking in the EngUsh common law, which admits of 
 the freedom to dispose "inter vivos " as well as by will : Pollock and Mailland, I, 
 632; II, 252-328; Jobbe-Duval, p. 101. At Gand it was abolished as early as 
 1191: "Cambrai," II, 13; "Tournay," 25, 5; "Arras," 69; Desmares, op. cit., 
 p. 247. — In the law of the Burgundians, if the father partitions his possessions 
 with his sons, he is free to dispose of his share; the right of the relatives only 
 exists so long as they live in a state of joint possession; Pappenheim, "Laune- 
 gild," p. 60. But during the Middle Ages the right of repurchase was allowed 
 even for the benefit of distant relatives who no longer lived in a state of joint 
 ownership. Cf. post, "Inheritance"; Huber, "Hist. Grundl. ehel. Giit.," 1884, 
 p. 19. As to the Swedish law, cf. Jobbe-Duval, p. 87. Conflict between the 
 "L. Sax." and the law of the South of Germany: Verdelot, op. cit. 
 
 * The other explanations suggested in order to account for the restrictions 
 upon the right of alienation "inter vivos" can be reduced to the one wliich 
 we have given (for example, Gerber, " Meditationes ad Spec. Saxon.," p. 10, 
 insists upon the necessity of preserving for the family the political rights 
 which are connected with the possession of land). Or else they start with 
 the principle of the freedom of disposal: a reaction against this right must 
 have taken place at first in Customs, and later in the laws (an attachment for 
 hereditary possessions, an affection for relatives, a desire to leave them sus- 
 tenance, cf. at Rome, "querela inoff. test."); but not one of these ideas can 
 account for the repurchase with regard to a sale, — that is to say, an act 
 which can be advantageous to the family. One might also maintain that the 
 restrictions upon the freedom of disposing date from a period when the family 
 was disintegrating, and that they were established with the very object of 
 checking this movement; this opinion would be plausible if these restrictions 
 had been recent, and if the texts which mention them presented them in the 
 form of legislative innovations. Cf. Zimmerle, Fipper, op. cit. According to 
 Ficker, p. 292, the consent of the heirs would have nothing in common with 
 the repurchase; by taking part in the deed the heirs would have barred them- 
 selves from contesting its existence or its irregularity. But, if this had been 
 so, their intervention could not have been as important as it actually is. 
 
 * J. Ficker, "Untersuch. zur Erbenfolge der Ostgerman. Rechte," vol. V, 1st 
 part, p. 244, accounts for the repurchase by means of the principle of the abso- 
 lute liberty of disposing "inter vivos," which must have existed according to him 
 
 440
 
 Topic 8] FREEDOM OF ALIENATING REPURCHASING [§ 342 
 
 § 342. Conditions of the Repurchase. — (I) Property Subject 
 to the Repurchase. Inherited personal belongings alone are the 
 subject of repurchase in the final theory, for they constitute, as it 
 were, a deposit which each generation should hand over intact to the 
 generation which succeeds it.^ The rule is otherwise with regard 
 to acquests, the result of individual labor, the free disposition of 
 which was left to each one as soon as it was possible, so as 
 to encourage the spirit of enterprise and economy ; ^ neither 
 
 in the old Germanic law. One must have noticed that a piece of land can 
 have more value for neighbors, for adjoining owners, than for owners of land 
 at a distance, and that there is often an advantage in uniting adjoining par- 
 cels in the interest of good cultivation, and that the choice of a neighbor is 
 not a matter of indifference. These needs of an economic and social order 
 were satisfied by giving to a neighbor the power of repurchasing; the right of 
 the owner freely to dispose of his land was not affected by this, for it was 
 always easy for him to obtain the market value, and it mattered little to him 
 whether this price were paid by the repurchaser or by the grantee. The re- 
 purchase was given by preference to near relatives. As soon as it came to be 
 a matter of a favor it was perfectly natural that it should go to those people 
 whose mutual relations called upon them to render one another continual 
 services. Furthermore, the reconstitution of the family domain offers in a 
 quite special manner those advantages wliich are sought for by means of the 
 repurchase. Thus would be accounted for the predominance in the old law of 
 the repurchase by a person of the same lineage. It is understood in this sys- 
 tem that the repurchase does not apply to acquests, but only to personal be- 
 longings (hereditary property, "abolengo," "Aehnigut"), nor to deeds such as 
 gifts (this would have been to prohibit them); it is also understood that it 
 meant the restoration of the price of sale, whatever it may have been. The 
 theory of the repurchase by a person of the same lineage would thenceforth 
 be connected neither with the institution of the hereditary reservation nor 
 with the necessity of the participation of the parents in the alienation of the 
 family possessions. — Outside of the criticisms of details to which this in- 
 genious solution seems to us to lay itself open (for example, why forbid the 
 repurchase in case of an exchange? why do certain customs admit of the re- 
 purchase of acquests? how does it happen that the repurchases of joint pos- 
 sessions and of neighborhood are not so widespread as the repurchases by a 
 person of the same lineage, etc.?) we object to it because it accounts for a 
 very old fact by means of existing causes; and, though these causes stiU exist, 
 the fact has disappeared. The evolution of the theory of the repurchase be- 
 comes difficult to follow. It is not true that the owner of a piece of i)roperty 
 subject to the repurchase will always obtain the actual price of this property; 
 on the contrary, the risk of the repurchase will prevent him from finding 
 buyers or will only make it possible for him to obtain a lower price; the re- 
 purchase is a serious check on the owner's power of disposal. As to thinking 
 that the old Germanic law admitted the principle of the freedom of disposal 
 "inter vivos" of immovable property, this is an idea which it is hard to recon- 
 cile with the constitution of the family and the system of landed property; in 
 other legislations having the same foundations, liberty of disposing does not 
 seem to have been recognized; this is a right which dates from the period when 
 the family is disintegrating and when ownership is becoming individualized. 
 
 1 Sometimes, even, only the immovables which have been in the family 
 for three generations are subject to the repurchase; these are the family pos- 
 sessions "stricto sensu," ancestral, the "eredad de abolengo," true "Stamm- 
 giiter" or possessions of the stock. For example, "F. de Beam," 1552, "R. 
 de Contr.," 5; "Gout, de Bareges," 1768, 3, 4; Ficker, p. 260 et seq. (details); 
 "L. Rib.," 50, "hereditas aviatica." 
 
 ^ In the very old law personal belongings and acquests are subject to 
 
 441
 
 § 342] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 acquests^ nor movables^ "are subject to repurchase." Some 
 immovables, also, escaped therefrom because of their special 
 character: offices, constituted rents, tithes which are invested, 
 and usufruct.^ 
 
 § 343. The Same. — (II) Acts which give Rise to the Repurchase. 
 In order to make the repurchase possible there had to be 
 "transfer of ownership" and "purse untied." Grants for a con- 
 sideration were thus the only ones which could give rise to it. 
 If there was not a complete alienation, but, for example, merely 
 the establishment of a servitude, the property did not go out of 
 the family.^ If there is not a purse untied, that is to say, if the 
 alienation is gratuitous, the repurchase is not allowed; the in- 
 terests of the relatives are protected by other methods.^ To a 
 sale (voluntary or forced),^ or equivalent acts, such as giving in 
 payment a lease for a long term, an exchange,^ an investment in 
 
 the same system: Verdelot, "These," 1899. In the eleventh century a distinc- 
 tion is made categorically in deeds: "Cart, de St.-Pere de Chartres, p. 494: 
 "Quod pater propria pecunia emerat liceat ei, etiam nolentibus filiis, cuilibet 
 dare posse." The evolution of the distinction did not take place without 
 some difficulty and hesitation. In the time of Beaumayioir, 44, 2, they dis- 
 puted as to whether the acquests of the father became the personal belonging 
 of the child; Lauriere on "Paris," 133, still maintains that the personal be- 
 longing brought by a person of the lineage does not become an acquest : Beau- 
 manoir, 44, 1; "A. C, Picardie," p. 148, ed. Marnier; Beauchet, p. 609. 
 
 ^ Beaumanoir, 44, 2; Loysel, 429. To the contrary a few Customs, such as 
 "Norm.," 451 ("Gr. Cout. Norm.," 116); "Ohm," II, 843, 293; "Lille," 7, 
 9, which Dumoulin qualifies as odious and iniquitous (on "Maine," 376), but 
 which are found merely to have adhered to the point of view of the very old 
 law until a rather late period. In the South the idea of perpetuating the 
 greatness of families caused the repurchase to be extended to include acquests : 
 sometimes both lines participated and sometimes the paternal relatives were 
 preferred. 
 
 2 Exceptions: Loysel, 444, 219; "Ord. s. Marine," 10, 1; Labourt, 6, 1, 2. 
 
 ' As to rights over immovables, cf. "Olim," I, 897; 233, 19; "Gr. Cout.," 
 pp. 328, 347; "Cout. Not.," 89; Desmares, 284; "Actes du Pari.," nos. 1267, 
 1443; J. Faber, "Inst.," 2, 13,8; "ParLs, N. C," 129, 147; "Orleans," 191, 399; 
 Pothier, no. 39; Loysel, 434, 444. 
 
 * As to the leasing of lands, cf. Desmares, 197; "Orl<5ans, A. C," 304; 
 "Norm.," 465, 478; Giard, "These," p. 182. As to pledging, Beauchet, 
 "N. R. H.," 1901, 12. 
 
 * "Olim," II, 173 (in 1281); Beaumanoir, 12,38; Pothier, no. 104. Cf. 
 Heusler, II, 64; Beauchet, loc. cit. 
 
 ^ The old law required a sale and a transfer of ownership; only then could 
 the inheritance go out of the family. In the sixteenth century there are 
 many who maintain that the repurchase can take place simply because a bar- 
 gain has been made. See as to this, "The Beginning of the Delay of a Year 
 and a Day," " Transfer of Ownership " ; seeGuyot, s. 6. — Loysel,453; "T. A. C, 
 Bourg.," 73; Masuer, XXX; "L. d. Droiz," 577; "Orleans," 400; Bretonnier, 
 "Quest," see "Retrait Hngager." 
 
 ' The family does not suffer on account of this transaction, because if an 
 immovable is alienated a piece of property of the same nature and the same 
 value takes its place and is subrogated to it: "Et. de St. Louis," I, 53; "Actes 
 du Pari.," I, no. 645; Desmares, 145, 197, 298; "Gr. Cout.," pp. 341, 346; 
 
 442
 
 Topic 8]' FREEDOM OF ALIENATING — REPURCHASING [§ 344 
 
 a partnership/ were not likened; and this was a fresh proof of 
 the weakening of the family right. 
 
 § 344. The Same. — (III) WJio has the Right to the Repurchase? 
 It is not all the relatives of the vendor, but only those who are 
 of the same lineage from which the property comes,^ that have 
 this right; those of the paternal lineage, if paternal property is 
 concerned; those of the maternal lineage if a piece of maternal 
 property is concerned: "paterna paternis, materna maternis." In 
 giving a maternal relative the right of withdrawing a personal 
 belonging coming from the father's side, this property would no 
 longer be preserved in the family; it would pass to strangers.^ 
 The repurchase is in a certain sense only the exercise by way of 
 anticipation of the right of inheritance; also, the lineal relative 
 cannot avail himself of it excepting if he be capable of inheriting.'* 
 It is to so great an extent modeled after the right of inheritance 
 that, in order to determine who are the lineal relatives who have 
 the right to the repurchase, the Customs are divided into several 
 groups, just as when it is a question of the inheritance of personal 
 belongings; a distinction is made between Customs of the stock, of 
 the side and line, of the side aloneJ' Nevertheless, they are not 
 
 "L. d. Droiz," 124, 572; Loysel, 225, 445, 447. The repurchase is allowed in 
 cases of fraud or injury to the people of the lineage {Beaumanoir, 54, 1; Loy- 
 sel, loc. cit.), or if the exchange takes place with a settlement, excepting that 
 it is sometimes distinguished according to the importance of the settlement: 
 Beaumanoir, 44, 4; "Gr. Gout.," p. 337; "Paris," 145; Beauchet, "N. R. H.," 
 1901, 16. 
 
 1 Loysel, 446, 448; "T. A. G., Bret.," 221: no repurchase with deed of feoff- 
 ment: contra, "Hainaut" (gifts, partnership, etc.). 
 
 2 Loysel, 428; Galland, "Ft. Alleu," p. 21. 
 
 ^ The repurchase by a person of the same lineage cannot be assigned (ex- 
 cepting to a person of the lineage), whereas the lord can assign the feudal 
 repurchase: "Tours," 281; "Bourb.," 457; "Marche," 280; "Auvergne," 21, 20. 
 
 * Loysel, 439, 440; "Paris, N. G.," 148. Bastards, aliens and people civilly 
 dead have no right to the repurchase. But this is not so with regard to the 
 person who has been disinherited, the heir who renounces, or the ascendant 
 who can have opposed to him the rule, "Personal belongings do not ascend." 
 Disinheritance and renunciation must have been first of all presented under 
 the archaic forms of exclusion from the family, and then they meant a 
 loss of the right to the repurchase; they have been less efficacious under their 
 modern forms, all the more so as they were not irrevocable. With regard to 
 ascendants, c/. post, "Inheritances." The son can repurchase during the life- 
 time of the father the inheritance which has been sold by the latter: Loysel, 
 441. As to representation, c/. "Troyes," 145; "Norm.," 475. 
 
 s Cf. Guyot. — Customs of the stock: "Nivernais," 26, 13; "OrU'-ans," 363, 
 etc. Customs of the side and line (this is the common law, in the same way 
 that it is in matters of inheritance): "Paris," 129; Loysel, 439; "Olim," III, 
 276; "Gr. Gout.," p. 3i6. — Ctistoms of the side alone: "S6dan," 246. Cf. 
 "Reims," 191; "Lille," 7, 5. The relatives of the seller on the side from 
 which the inheritance comes (for example, on the paternal side) may exercise 
 the repurchase, although they do not belong to the line of the person who was 
 
 443
 
 § 344] OWNERSHIP AND REAL RIGHTS [Chap, II 
 
 absolutely uniform. Such and such a Custom is one "of the stock" 
 as far as inheritance is concerned, and not as far as repurchasing 
 is concerned, etc.^ There is another analogy: lineal relatives of 
 the degree furthest removed have a right to the repurchase as well 
 as to the inheritance; should they be of the twentieth degree, 
 says Dumoulin, they would not be excluded from the repurchase.^ 
 But resemblances become less striking in case of competition be- 
 tween several lineal relatives : (a) if they are of the same degree, the 
 most expeditious one prevails, unless they act together, and in 
 this case each one takes back his share of the property;^ (6) if 
 they are of different degrees, the rule of the old law is that the near- 
 est prevails; ^ in more recent law it is the most expeditious one.^ 
 This last explanation is an indication of the decadence of the in- 
 stitution; the interest of the family, the only thing taken into 
 consideration formerly, was to secure the property for the nearest 
 relative, because the latter represented the family as far as repur- 
 chase was concerned, just as he also represented it as far as in- 
 heritance was concerned; by allowing a distant relative to take 
 possession of it to the detriment of the nearer relative, it was dem- 
 onstrated that the reconstruction of the unity of the family domain 
 
 the first one to acquire the property (for example, they are not relatives of 
 the paternal grandfather who acquired the property, but they are connected 
 with the paternal grandmother). These Customs no longer logically form a 
 part of this system ; still more is this true with regard to the Customs of rela- 
 tionship alone ("Bourg.," 10, 4; 'Tranche Comte," 13, 1), according to which 
 the paternal relatives can withdraw the paternal personal belongings and vice 
 versa; this solution can only be included witliin the Customs which allow of 
 the repurchase of acquests. — As to the Customs of the main line, "Besangon," 
 for example, cf. Dunod, c. 4. 
 ^ Examples in Guyot, loc. cit. 
 
 2 Divergent Customs: the repurchase only belongs to lineal relatives to 
 the seventh degree, Beaumanoir, 44, 7 (according to the canon rules in matters 
 of the impediments to marriage); to the sixth or the ninth, according to the 
 Customs of Nivernais and Normandy. — If there are no relatives in a certain 
 line there will not be any devolution to the other line: Pothier, no. 138. 
 
 3 "Et. de St. Louis," I, 156; "T.A. C, Bourg.," 73; "Gr. Cout.," p. 339; 
 "Norm.," 476; Beaumanoir, 44, 25. — Indivisibility of the repurchase in the 
 interest of the purchaser: Loysel, 456; see Guyot, s. 5. 
 
 ^ Loysel, 430 (bibl.); "L. Feud.," 4, 14; " Et. de St. Louis," I, 161; "Olim," 
 III, 302, 44; Beaumanoir, 44, 10; "L. d. Droiz," 80, 125; "Norm.," 475; 
 "T.A. C, Bret., "46; "Troyes," 145, etc.; Jobbe-Duval, pp. 120, 150. Idem., 
 Customs of the Pyrenees and Customs of the North of France. 
 
 ^ Loysel, 431; "Paris, A. C," 178; "N. C," 141. It is its simplicity which 
 has been responsible for the success of this system ; but none the less an attempt 
 has been made to give it a juridical basis by sajnng that the right of preference is 
 accorded to the family "in globo"; the first one who comes forward and appro- 
 priates it for himself "jure quodam occupationis " (prevention). — Cf. as to 
 this, the other repurchases. In German law the rule is sometimes found that if 
 several inhabitants of one village wish to exercise the repurchase, the one to 
 whom the land is the nearest is preferred; the distance is measured with a 
 "perche" (measuring rod). 
 
 4M
 
 Topic 8] FREEDOM OF ALIENATING — REPURCHASING [§ 347 
 
 was less thought of than favoring the greatness of some branch of 
 the house in a poHtical interest. Thus was the repurchase turned 
 aside from its original object. 
 
 § 345. The Same. — (IV) Against whom was the Repurchase al- 
 loivedf From the period when it was intended to prevent the per- 
 sonal belonging from going out of the family, the repurchase 
 should be exercisable against anyone who is a stranger to the 
 family ^ (that is to say, to the lineage from whence the personal 
 belonging comes). It is directed against anyone who w^ould not 
 have the right to it himself.^ But, as we have observed, certain 
 Customs granted it also to the nearest relative against one more 
 distant, although the latter was not without his right to the re- 
 purchase ; ^ in the system which prevailed " a lineal relative has 
 not a right of withholding from a lineal relative," ^ which was a 
 more practical solution, but one less justified, from the point of 
 view of the very old law, by the idea that a piece of property does 
 not go out of the family when it is acquired by a lineal relative. 
 
 § 346. The Same. — (V) The Repurchase of " half funds " allows 
 the spouse of the lineage to withhold from the community the per- 
 sonal belonging of his lineage which has been bought during the 
 marriage, upon condition of paying the half fund, that is to say, 
 half of the price which it has cost; the year and a day allowed to 
 exercise this right only begin to run from the time of the dissolu- 
 tion of the community ; ^ thus it is a repurchase by a person of the 
 same lineage put off until the dissolution of the community. 
 
 § 347. Procedure.^ — (I) Period. One can only carry out a re- 
 purchase within the year and a day "^ dating from the time of the 
 seisin being given to the purchaser; ^ at the end of this time the 
 
 ^ The repurchase by a person of the same lineage is exercised even against 
 the lord from whom the property was received, and even against the king: 
 Loysel, 425, 432; "Stil. Pari.," 7, 80; Pothier, no. 194. — Against the Church: 
 Loysel, 433 et seq.; "Olim," I, 689, 28 (in 12G7). 
 
 '^ Loysel, 450: "Marriage preserves Lineage." 
 
 3 Beaumanoir, 44, 25; "T. A. C, Bret.," 46; "Touraine," 163, etc. 
 
 4 Loysel, 430; "Gr. Cout.," p. 328; "Marche," 271. 
 
 * Beaumanoir, 44, 48, 49; "Anc. Us. d'Anjou," ed. Marnier, § 28; "Paris," 
 155-1.57; Jobb6-Duval, p. 143. — As to the various kinds of half-funds, c/. 
 Guyot. The repurchase in a case of joint possession of the Civil Code, 148, 
 applies to acquests as well as to personal belongings. 
 
 8 CJ. details as to the Customs of the North in Giard, "Thfise," p. 257. 
 
 '' See supra, "Prescription"; Beaumanoir, 44, 9; "Jostice," p. 128 (proof); 
 Desmares, 207; "Gr. Cout.," p. 329; "Paris," 130. 
 
 8 Desmares, 207; "Cout. Not^" 145; Loysel, 462; "Paris," 129, 132.— 
 Fealty and homage in the case of fiefs, seisin in the case of copyholds, publica- 
 tion by means of a judgment and registration of the contract at the nearest 
 seat of the royal government in the case of freeholds. The beginning of the 
 period allowed for the exercise of the repurchase is thus found to be sufficiently 
 
 445
 
 § 347] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 property goes out of the family, for the vendee enjoys the benefit 
 of the Germanic prescription as against the family of the vendor, 
 as, according to the general rule, he can against every other per- 
 son.^ The duration of the seigniorial repurchase is even shorter; 
 it can only be exercised during the old Prankish term of forty days 
 (after the producing of the contract); for Byzantine "Protimesis," 
 one had only thirty days.^ According to the "Grand Coutumier," 
 it was sufficient if the summons had been served within the year 
 and a day; but Beaumanoir, who is more strict, demanded that 
 the period which was granted to the purchaser for presenting him- 
 self in court should be included within the year and a day, and the 
 Custom of Paris is to the same effect.^ The period of a year and 
 a day did not originally begin to run against people who were ab- 
 sent or against minors until the time of their return or their coming 
 of age; in the new law the disfavor with which repurchase is looked 
 upon causes this period to run against them.* (II) Action at Law. 
 The repurchase is a true action for recovery by the lineal rela- 
 tive; the selling of family property to a stranger brings into exist- 
 ence this right, which did not exist until that time excepting in 
 a latent condition. If this is so, it is hard to perceive why the 
 purchaser should not yield to the repurchase without dispute; 
 
 public to give notice to the people of the lineage and allow them to act. In 
 Normandy, 452 et seq., reading and publication of the sale; cf. Beaumanoir, 
 44, 28, and the Flemish Customs cited in Guyot, s. 6, § 2. With the passing 
 away of the feudal formalities variations of these were introduced into the 
 Customs: (a) The beginning of the delay is the real taking of possession by the 
 purchaser: "Dunois," 79; "Chdrtres," 67; "Marche," 263. Incomplete pub- 
 licity, but one which may suffice, strictly speaking, (b) It is the date of con- 
 tract of sale itself: "Sens," 32: "Auxerre," 154; "Orleans," 363. This is a 
 system which allows of the hidden transfer of ownership, but which may very 
 often deprive the lineal descendants of their right because they are not aware 
 of the alienation's having taken place. The Edict of 1704 remedied this evil 
 by deciding that the period could not begin to run before the registration of 
 the contract, as was the usage in certain Customs: " F. de B6arn," "R. de Con- 
 tractes," Arts. 8 and 18; "Poitou," 329; " La Rochelle," 33. — See "Freeholds." 
 
 — The prescription of thirty years if the delay of a year and a day had not run, 
 
 — for example, for lack of registration: Pothier, no. 484. 
 
 1 In the eighteenth century all recollection of the old tenure of a year and 
 a day has been lost and it is sought to account for this period (which is an ex- 
 ceptional one in the general system of prescription) by means of rational con- 
 siderations; it has been made very short in order to I'estrain the exercise of a 
 power which is abnormal. It is undoubtedly, in fact, for this very reason 
 that the dower of a year and a day has been kept up in this particular appli- 
 cation of it. 
 
 2 Loysel, 427, 463; "Paris," 40; "Auvergne," 23, 3: three months, etc.; 
 "Ass. de Jdrus.,'' "C. des B.," c. 33 (II, 260): seven days. Provence, Edict 
 1472 (30 days). Normandy, possessions held in burgage: "Summa," 125 
 (one day); "Cout." of 1583, 454 (40 days); Genestal, "Th^se," pp. 34, 80. 
 
 3 "Gr. Cout.," p. 329; Beaumanoir, 44, 31; "Paris," 130. 
 
 * Absent persons: "Et. de St. Louis," II, 303; "Jostice," 8, 9; Beaumanoir, 
 
 446
 
 Topic 8 J FREEDOM OF ALIENATING — REPURCHASING [§ 347 
 
 but the fear of frauds no doubt led jurisprudence to demand a 
 formal proceeding at law; the voluntary repurchase was looked 
 upon as a sale made by the purchaser to the lineal relative.^ The 
 tribunal which had jurisdiction in matters of repurchase was that 
 of the locality where the immovable was situated, because the 
 action was real. But in the last stages of the law there is seen in it 
 rather a mixed action, real against the third party in possession, 
 and personal against the purchaser upon whom the Custom im- 
 poses the obligation of making restitution; from whence comes the 
 application of the rule "Actor sequitur forum rei." ^ The tribunal 
 decrees the repurchase after having assured itself of the existence 
 of the required conditions.' (Ill) The strictness of the procedure 
 relating to repurchase was, to begin with, nothing more than a 
 consequence of formalism ; but practice thought that it was a good 
 thing to preserve that which Ferriere calls " superstitious formali- 
 ties," with the object of hindering the exercise of an institution 
 which was looked upon with disfavor. Thus it is that if the peti- 
 tioner fails in any one particular, not only does he lose his suit, 
 but he also loses the right to the repurchase.'' (IV.) Indemnity due 
 by the person repurchasing to the original vendee. The very same 
 day that the repurchase is decreed,-^ the repurchaser himself, under 
 penalty of forfeiture, pays the vendee the actual price paid out by 
 
 16, 5; "L. d. Droiz," 588. Crusaders: P. de Fontaines, c. 17; "Et. deSt. Louis," 
 I, 156. Minors: (a) P. de Fontaines, c. 14; Beaumanoir, 44, 48; "Actes du 
 Pari.," I, no. 2225, 756; L. Delisle, "Echiq. de Norm.," 122, 517. — (h) GHm- 
 audet, 9, 17: public interest. — Delay of the redemption: "Auvergne," 23, 13; 
 "Berry," 13, 9. Contra, "Ord.," 366; Loysel, 464; "Paris," 130. 
 
 1 Loysel, 443. Results: the property acquired was not a personal belonging 
 included in the inheritance of the lineal descendants; two transfer taxes had 
 to be paid. Contra, Beaumanoir, 44, 11, 22, 39, 40. 
 
 ^ Beaumanoir, 44, 17: jurisdiction of the lord from whom the inheritance is 
 derived (and not of the lord of the locality in which the purchaser is domiciled, 
 for "agreement depends upon the inheritance"); ih., 44, 38 (indivisibility); 
 "Olim," I, 897. — Tribunal of the locality in which the immovable is situated: 
 Desmares, 257; "Cout. Not.," 144; "Gr. Cout.," p. 335; Loysel, 435 et seq.; 
 "Ass. de J^rus.," II, 260, ed. B. — Pothier, no. 265; "Reims," 198. — This 
 recent solution was favorable to the purchaser, but less logically a consequence 
 of the repurchase. 
 
 ^ Giurd, "These," p. 279: registration of repurchases. 
 
 ^ Loysel, 437, 438; Desmares, 83; "Paris," 1.36, 140; Ferrikre, on "Paris," 
 141; Pothier, no. 273; Beaumanoir, 44, 22, 33, 35, p. 5, 41; "Olim," III, 1437, 
 71. — Even forfeiture if the adjournment is not drawn up in a formal manner, 
 if one does not tender in the proper terms a purse, funds, and a performance; 
 if the sergeant in giving notice has not an open purse in his hand, which at 
 first contains the sum offered and later on a single piece of money, and if the 
 tenders have not been renewed each day of the proceedings. 
 
 ^ Formerly one had until sunset; in the sixteenth century one has twenty- 
 four hours after the judgment: Loysel, 468, 471; Desmares, 82 et seq., 208; 
 "Gr. Cout.," p. 340. Other delays: three, seven, fifteen days. Various times 
 for the beginning of this delay. 
 
 447
 
 § 347] OWNERSHIP AND REAL RIGHTS [Chap. II 
 
 him,^ the true costs,^ and the necessary disbursements, so as to in- 
 demnify him as completely as possible, in so far as there has been 
 no fraud .^ For his part, the vendee relinquishes the land when 
 reimbursement has been carried out and restores therewith the 
 profits collected since the action of repurchasing was begun,^ to- 
 gether with an indemnity for deteriorations, if there is any occa- 
 sion for it ; he must not, in fact, forget that during the year and 
 a day he is not the "indefeasible lord." ^ 
 
 § 348. Effects of the Repurchase. — The repurchaser steps into 
 the place of the purchaser, and there is no cancelling of the sale, 
 for now the sale is null. Nor is there any resale to the repur- 
 chaser by assent of the original buyer, for they are held bound 
 to pay for only one right of transfer, and the rights created by 
 act of the original buyer (servitudes, mortgages) cannot be set up 
 against the repurchaser; at the most, the latter is held bound to 
 respect acts of administration because they are indispensable.® 
 The repurchaser is not the assignee of the original buyer; he 
 is looked upon as having negotiated with the vendor; also, the 
 original vendor owes him the warranty, and the repurchaser 
 can proceed against him upon payment of the price by means of 
 a direct action. The original buyer seemed thenceforth to disap- 
 pear entirely from the operation. But, not satisfied with taking 
 away from him the advantages of a transaction which had per- 
 haps been lucrative, jurisprudence made of him a sort of com- 
 pulsory surety for the man who had despoiled him; the original 
 vendor was always authorized to claim as against him the payment 
 of the price of the sale; this responsibility of the original buyer is 
 
 ' The price of the first sale, if there have been several successive sales: 
 Tiraquellus, 1, 12, 1, 15 (he cites Bartole and Balde); Labbe, "R. crit.," p. 154. 
 If the price was made too high with the object of preventing the repurchase, it 
 was the judge's duty to reduce it: Beaumanoir, 44, 36; "L. d. Droiz," II, 124, 
 571; "Paris," 136. — In the sixteenth century the person exercising the re- 
 purchase pays back to the buyer the lord's due and the tax on the sale; but 
 not in the fourteenth century. The near relatives were often released from 
 the pavment of these dues. 
 
 2 Desmares, 213; "Gr. Gout.," 333. Proof: "Et. de St. Louis," I, 159. 
 
 3 Desmares, 113, 213; "Gr. Gout.," 333; "Jostice," 8; "Et. de St. Louis," 
 I, 154; "Paris," 146; "Orleans," 373; Pothier, no. 331. By compelling the 
 restitution of needful expenses frauds were facilitated. 
 
 *• That is to say, since the adjournment and offer of payment: "Paris," 
 134; Beaumanoir, 44, 30, 41-44. The purchaser thus gets the benefit of the 
 issues of the land until the time when the offer of payment is made to him. 
 
 ^ Beaumanoir, 44, 30, 34, 41; Desmares, 214; Loysel, 470; "Gr. Gout.," 
 p. 334; "Paris," 146. 
 
 ^ Valid leases in case of good faith according to some (Balde, Tiraqueau, 
 Pothier), and which were always void with regard to the person exercising the 
 repurchase according to others (Brodeau, Duplessis). 
 
 448
 
 Topic 8] FREEDOM OF ALIENATING REPURCHASING [§ 348 
 
 especially important in the case of sales for a term, for example, a 
 sale in consideration of a rent for life; as the payment of the price 
 was greatly delayed, the repurchaser had much more chance of 
 becoming solvent,^ In sales for cash at a fixed price, the buyer 
 ran absolutely no risk, because he only gave up possession of the 
 land after having been indemnified. 
 
 The property which was taken back, having been acquired for 
 a consideration, should have formed a part of the acquests of the 
 repurchaser; but it was classed among his personal belongings, as 
 though it had come through an inheritance, so as better to assure 
 its preservation in the family.^ 
 
 1 Dumoulin, on "Paris," I, 20, 8, 7 and 8; Pothier, no. 300; cf. "Paris," 
 137; "Reims," 225, etc. The motive given in order to justify this solution, 
 of knowing that, just as every creditor, the vendor cannot be bound in 
 spite of himself to pay debtors, is already found in i^eawmanoir, 44, 37 ("The 
 vendor shall not change his pledge or his debts if he does not wish to"); this 
 jurisconsult allows the repurchaser to have the same time as is granted to the 
 purchaser, upon condition of giving surety, and Duvioulin is of the same opin- 
 ion. Tiraqueau, 1, 18, 32, decided, on the other hand, that the purchaser was 
 liberated as a consequence of the repurchase because he was looked upon as 
 not having been a party to the deed: cf. "Troyes," 161; "Bourbon," 470; 
 Labbe, "R. Crit.," 1855, p. 145. According to the old system of the ofTer to 
 the next of kin, the purchaser also disappeared completely; but it does not seem 
 that Tiraqueau and the partisans of his ideas drew their inspiration from this 
 system. 
 
 2 "Paris," 139; "Orleans," 382; Loysel 454. Cf. "Paris," 133 (Lauriere on 
 this article) and Beaumanoir, 44, 11. — By way of a recompense to be paid 
 by the heir of the personal belonging to the heir of the acquest, at least in the 
 more recent law. 
 
 449
 
 349] 
 
 OBLIGATIONS 
 
 [Chap. Ill 
 
 CHAPTER THREE 
 
 OBLIGATIONS 
 
 Topic 1. Gexeral Ideas. 
 Topic 2. Offenses. 
 
 Topic 3. Contracts. Filinkish Period. 
 Topic 4. Contracts. Feudal Period. 
 Topic 5. Nullity of Contracts. 
 Topic 6. Some Particul.ar Kinds of Contracts. 
 Topic 7. Means of Enforcement on the Person and Per- 
 sonal Surety. 
 Topic 8. Execution upon Possessions and Real Securities. 
 
 Topic 1. General Ideas 
 
 §349. Number and Importance of 
 Contractual Obligations in 
 Modem Law. 
 
 § 350. Characteristics of the Obliga- 
 tion in the Old Law. 
 § 351. The Obligation in Modern Law. 
 
 § 349. Number and Importance of Contractual Obligations in 
 Modern Law. — In early times obligations were not often met 
 with, and especially contractual obligations. Reasons of a politi- 
 cal and economic nature were opposed to their becoming very 
 numerous. (A) The majority of social relations were regulated in 
 advance, and invariably by the Custom; thus the services which 
 to-day free farmer tenants and agricultural laborers render to the 
 owner of land were formerly received by him from serfs, from 
 cultivators or from slaves. Public order being better assured, 
 the tendency to respect the rights of others having been empha- 
 sized, and knowledge of the law being more widespread or more 
 easy to acquire, it has been possible to-day to allow individuals a 
 latitude which they would not have used to their advantage in 
 the old times, even had it been granted them. This is one of the 
 advantages of the System of the State under which we live, as 
 compared with the family system of the past. Contracts have 
 produced beneficial alterations in the general rules of the law, 
 
 450
 
 Topic l] GENERAL IDEAS [§ 350 
 
 have accommodated them to every sort of circumstances, and have 
 removed them when needful in order to substitute better ones in 
 their place.^ (B) With the free play of individual will, contracts 
 became so numerous that they formed, if one may say so, the 
 course of our daily life. The economic conditions of other times, 
 when each household produced almost everything which was nec- 
 essary for it to have, did not contribute towards making con- 
 tracts very frequent. In our day division of labor and the more 
 active life constrain us to engage ourselves on every subject in the 
 meshes of a mass of obligations. The conception of the obligation 
 has felt the effects of this change; the law has had to become more 
 flexible and to lend itself to the satisfying of these new needs. 
 
 § 350. Characteristics of the Obligation in the Old Law. — 
 The very old law only recognizes obligations "ex delicto." ^ Even 
 the obligation which does not spring out of an offense presents the 
 same characteristics as a delictual obligation; thus, when it arises 
 from a contract, the debtor who does not carry out his engagement 
 is considered guilty; the failure to carry out the obligation is 
 looked upon as an offense.^ In a similar case, the sum of money 
 paid to the creditor constitutes a pecuniary penalty. Ordinarily, 
 it is a higher sum than mere damages would be. The contract, 
 assuming it to be the cause which gives rise to the obligation, could 
 not do without solemnities; it assumes that two heads of families 
 face one another; it recalls the treaties between States, in which, 
 even at this day, form is of so much importance. Moreover, the 
 ceremonies, the gesture which is added to the word, which em- 
 phasizes it and explains it to the eyes, corresponded to the mental 
 condition of other times; a right without formalities would have 
 been no better understood than a religion without worship.'' 
 These solemnities had the advantage of eliminating the questions 
 of intention; their meaning was fixed, known by everybody, and 
 beyond discussion. Also, the letter of an agreement could be 
 adhered to just as the brutal fact of a crime could be avenged 
 
 * Cf. Sumner Maine, "Ancient Law," French trans., 1874, on this passage 
 from the system of status to the system of agreements. 
 
 2 Or, if one prefers a formula which in the last analysis means the same 
 thing : the offense gives rise to acts of violence, which little by little have become 
 changed into due course of law: Wodon, "Forme et Garantie," p. 9, 173. 
 
 ' Loening, " Vertragsbruch u. s. Rechtsfolgen," 1876; W. Sickel, "Bestra- 
 fung d. Vertragsbruchs," 1876. "The IMischna" deals with marriage, and 
 then brings all the rest of the civil law under the heading of damages, cf. 
 Dareste, "Etudes," pp. 27, 79. • 
 
 * Heusler, I, 65; Zallinger, "Wesen u. Urspr. d. Formalismus," 1898; see 
 Cuzzi, "Le Obbligazioni n. Diritto Milan, antico," 1903. 
 
 451
 
 § 350] OBLIGATIONS [Chap. Ill 
 
 without looking into the question as to whether it had been com- 
 mitted by reason of some indiscretion or intentionally. The re- 
 sponsibility of the debtor was involved, for the sole reason that 
 the obligation had not been carried out; he was just as responsible 
 if this were due to accident as he was if it were due to his own 
 fault.^ A last feature of the obligation was its personal character; ^ 
 it consisted almost in an ownership by the creditor over the per- 
 son of his debtor. Execution upon the body itself, under its most 
 harsh forms, — for example, that of slavery for debt, — was a 
 natural consequence thereof; on the other hand, the possessions, or, 
 at least, the immovables of the debtor, escaped the creditor, be- 
 cause in the last analysis they belonged rather to his relatives or 
 his lord. Thus looked upon as a personal relation, the obligation 
 constituted the most frail of bonds; its value depended upon the 
 wealth and strength of the debtor; should he die, it died with him; 
 sometimes, even the death of the creditor wiped it out. In order 
 to give some consistency to a right which was so hazardous, it was 
 fortified by the surety and the pledge; if one had several debt- 
 ors one had a better chance of being paid, and the pledge was a 
 payment in advance. 
 
 §351. The Obligation in Modern Law. — Let us reverse the 
 terms, and we shall have the obligation of modern law. Whether 
 it result from a contract or an offense, its object is damages. The 
 contract from whence it is derived is formed without any solemni- 
 ties and always "solo consensu." The obligation, from being per- 
 sonal, as it was, has become inheritable.^ Execution has been 
 shifted from the person of the debtor to his possessions : " he who 
 obligates himself obligates what is his." The responsibility of a 
 
 1 Proverbs having this meaning: Chaisemartin, pp. 277, 284, 223, c/. p. 261; 
 "Wis.," 5, 64; "Sachsensp.," 3, 5, 4. 
 
 * Cf. Roman law, "sponsor," "fidepromissor," obligation "ex delicto," 
 actions "vindictam spirantes," no assignment of claims, and no man can make 
 stipulations or promises to be carried out after his death. — It seems hard to 
 reconcile the personal character of the obligation with family solidarity. These 
 two ideas ought to correspond to two different phases of the evolution of the 
 law. It became more and more distasteful to bring into play the solidarity of 
 the lineage, when the family lost its cohesion. The penalty then became per- 
 sonal and, as far as contracts were concerned, formalism also had a tendency 
 to restrict the obligation to the debtor alone. 
 
 ' It was customary for the relatives of the debtor to become sureties for 
 him. By this means the debt passed to the heirs, or, to put it better, they were 
 already held bound during the lifetime of the debtor. Also it must often have 
 happened that a man bound himself "for himself and his heirs." C/. English 
 law. The promise at law to pay »r to exonerate oneself (which cannot be 
 done without sureties) is inheritable: "Rib.," 61, 1 {cf. " litiscontestatio " at 
 Rome: Dig., 50, 17, 139). 
 
 452
 
 Topic l] GENERAL IDEAS [§ 351 
 
 debtor varies according as there has been fraud, fault, or accident, 
 and according to the interest which he has in the contract. The 
 impersonal character which the obligation has assumed causes it 
 to lend itself to combinations which were formerly unknown, — 
 for example, composition, assignment, subrogation, and represen- 
 tation. The principles of the old Germanic and Customary law 
 are thus found to have almost entirely given way to the Roman 
 theories. No other portion of legislation has been Romanized to 
 this extent. Is this a sufficient reason for believing that this evo- 
 lution has taken place merely under the influence of Roman law? 
 No, indeed! No more here than anywhere else has Roman law 
 been a direct cause of juridical changes. It has not been imitated 
 in the same way as a pupil copies his master, in a spirit of servile 
 respect. Its action, which has been great, has only been exercised 
 where the ground was prepared for it, where evolution took place 
 spontaneously and independently. The Roman influence was 
 not responsible for the evolution, which would have taken place 
 without it. But the evolution was peculiarly facilitated by Roman 
 influence, gaining therefrom a concisely defined object, precise 
 formulae, and a fixed plan; from an obscure growth, slow, uncertain, 
 and groping, it became a conscious work. The real cause of the 
 change which led the old law back to the Roman theories, as far 
 as obligations were concerned, was the substitution (which we have 
 just explained) of a contractual system for the system of strict 
 custom ; the one accords with a social state as simple as that of the 
 late Middle Ages; the other accords with societies which, like ours, 
 are more complex. And, in order that this should be realized, 
 what changes have been necessary! The disintegration of the 
 family, the independence and the ownership of the individual, the 
 employment of coinage, which has become more and more wide- 
 spread and facilitates the obtaining of services, — do away with 
 one of these new facts, and the law of obligations is turned topsy- 
 turvy.^ 
 
 1 In modern law the obligation has a tendency to consist of something of 
 value which circulates in the same way as coinage (consequences of trade). 
 
 453
 
 §352] 
 
 OBLIGATIONS 
 
 [Chap. Ill 
 
 Topic 2. Offenses 
 
 352. Public and Private Oflfenses. 
 
 353. Offenses committed by One 
 
 Family against Another. 
 
 354. Characteristics of the Offense. 
 
 355. Criminal Intent. 
 
 356. Responsibility for the Act of An- 
 
 other. Damage caused by 
 Animals or Inanimate Things. 
 
 § 357. Pecuniary Composition. 
 
 § 358. Family Solidarity. 
 
 § 359. Damages. 
 
 § 360. Putting Outside the Law, and 
 
 its Varieties. 
 § 361. Concerning Special Kinds of 
 
 Offenses. 
 
 § 352. Public and Private Offenses.^ — The primitive law knew 
 scarcely any public offenses, that is to say, offenses which directly 
 involved the State and called for a repression on its behalf.^ Un- 
 lawful acts were curbed by the disciplinary power of the head 
 of the family when they were committed within the family by 
 one of its members against another; ^ where they took place be-, 
 tween the members of two families, repression was exercised by 
 one family upon another by way of vengeance or private war- 
 fare."* Thus the old penal law consisted in a system of private 
 offenses and private penalties and was not distinguishable from 
 private law. But little by little public penalties were substituted 
 for private penalties; the State, stepping into the place of the fam- 
 ily, took upon itself the role of redressing wrongs which had not 
 belonged to it in olden times; ^ and, although we still speak to- 
 
 * Cf. especially the Roman law, where the distinction is so clearly drawn. 
 Blackstone, IV, also contrasts private torts with pubUc torts. Cf. Pollock, 
 "Torts," 1187. 
 
 2 Tacitus, "Germ.," 12: "proditores," "transfugse" (hanged) "ignavi," 
 "imbelles corpore infames" (drowned in mud). The coward is as injurious to 
 the community as the traitor, and bravery is not very often the dominating 
 characteristic of the "corpore infamis": Brunner, § 146. 
 
 ^ Kovalewsky, p. 311. 
 
 ^ Religious character of vengeance, publicity, ceremonies in case of a par- 
 don: Kovalewsky, p. 234 et seq. 
 
 ^ Maintaining of retaliation as a public penalty for a long time: Loysel, 
 821. — Influence of the Church on the changing of the penal law: Hue, "R. 
 de Leg.," 1858; Brunner, II, 548 and § 135 (bibl.). It goes into the question 
 of criminal intent (although the Germanic point of view lasted for a long 
 while in the "Penitentials," Wasserschleben, pp. 391, 550), favors a substitu- 
 tion of compo.sition for physical punishment ("Alf.," 49, 7: the Church has a 
 horror of blood; penances for anybody who executes a condemned criminal 
 and for anybody who kills in lawful warfare; cf. Viollet, "Et. de St. Louis," I, 
 249; Esmein, "Melanges," p. 369). It moderates the penalties by means of 
 the right of sanctuary {Brunner, loc. cit.; Loysel, 828), and introduces the 
 idea of correcting and reforming the guitly man alongside of the ideas of 
 vengeance and example as a deterrent. The Court of the King, which judges 
 in equity, was inspired by these ideas at a very early time. Cf. Pollock and 
 
 454
 
 Topic 2] OFFEXSES [§ 354 
 
 day of the public vengeance, it is none the less true that it does 
 not act as an avenger, but with the object of maintaining order 
 and repairing the damage which has been caused. 
 
 § 353. Offenses committed by One Family against Another.^ — 
 Their repression has passed through various stages: private ven- 
 geance, voluntary composition, legal composition, and, finally, 
 public penalties inflicted by the State. The starting point of the 
 system of repression for this class of offenses was private vengeance, 
 or the "faida"; the person who had suffered damage had the 
 right to inflict upon the one causing it another damage, just as in 
 our day there still take place reprisals between nations. In this, 
 in the beginning, there was less of a juridical institution than of a 
 natural reaction of the injured party against the one who had in- 
 jured him, of the one who suffers an injury against the one who 
 has caused it. It is only with the assistance of this primitive con- 
 ception that we can properly understand the peculiarities of the 
 system of compositions during the barbarian period or of the 
 Roman system of private offenses (for example, the distinction 
 between a flagrant offense and an offense which is not flagrant, 
 in case of theft, adultery, etc.). We have seen above how they 
 passed from the system of the "faida" to that of composition; we 
 are here only concerned with the setting forth of the essential 
 characteristics of the obligation "ex delicto." 
 
 § 354. Characteristics of the Offense.^ — There is scarcely any 
 need of saying that the old law is very far, in its conception of the 
 offense, from the refined psychology of our day. In the period 
 when this "law is based upon a mere reaction against the injury 
 suffered, something which is practically nothing but a reflex 
 action, it considers only the existence of the external deed ; ^ 
 "The act judges the man," ^ questions of intention are not gone 
 
 Maitland, II, 460: Fertile, V, 29, 598; "Burg.," 52, 5; "Capit. Worms," 829, 
 1 . — As to the influence of the Roman law, c/. Fertile, V, 39 ; Beaumanoir, 30, 
 1, 61, etc.; "Anc. Cout. d'Anjou," IV, 308; Boutaric, I, 29. 
 
 1 Frauensfddt, "Bhitrache," 1881; Wodon, "JvC Dr. de Vengeance dans le 
 C. de Namur," 1890; Cottier, p. 127 (private warfare, assurance, forswearing); 
 p. 53 (retahation); Dubois, "These," 1900 (a.ssurances). — On the Corsican 
 "vendetta," cf. Glasson, "Inst, de I'Anglct.," I, 305; Switzerland (sixteenth 
 century); Giinlher, I, 207; Guyot, "Un Example d'Urfehde," 1892; Glasson, 
 "Bull. Comite trav. hist.," 1892; Ducoudray, "Origines du Pari.," p. 325; 
 "Unters.," by Gierke, XXIX. 
 
 2 Terminology: "culpa," "scelus," etc., "malum factum" (misdeed), 
 "forefactum" (crime); "malus homo," "tortum" (tort), "gravamen" (in- 
 jury); later on "vilenie," "vilain cas": Loysel, 803. 
 
 ' "Roth.," 248, 324; 342, 348, 387; "Wis.," 6, 5, 2; "Burg.," 6, 2; "Bai.," 
 9, 10; "Thur.," 51. Of., however, "Alam.," 71. 
 * Loysel, 824. 
 
 455
 
 § 354] OBLIGATIONS [Chap. Ill 
 
 into.^ The vengeance of the barbarian is as blind as that of the 
 child ; it is exercised upon people who are as irresponsible as minors 
 and madmen, and even upon families and inanimate beings.^ 
 Homicide caused by carelessness gives rise to the same com- 
 position as murder and assassination ; ^ " Qui inscienter peccat 
 scienter emendat," says the old adage.^ Lawful defense is not 
 an absolute excuse; the " Sachsenspiegel " still imposes penal re- 
 sponsibility upon the man who kills in self-defense.^ On the con- 
 trary an attempt, and the ofTense which has miscarried, should not 
 be punished, however criminal may have been the intention of their 
 perpetrator.^ Though the fellow perpetrators and abettors (for 
 example, receivers of stolen goods) are responsible for having taken 
 a part in the act or having protected the malefactor, it is other- 
 wise with accomplices properly so called, that is to say, with those 
 
 1 Bibl. in Brunner, § 125, 138; Amira, "O. R.," I, 373, 706; "Recht," p. 192; 
 Holmes, "Common Law" (1881), I, p. 17; Wigmore, "Harv. Law Rev.," 
 VII, 315 et seq.; Kovalewsky, "Coutume Contemp.," p. 301; "Unters.," by 
 Gierke, IV, 61. 
 
 2 The various kinds of offenses give rise to various kinds of solutions, 
 which it is difficult to reduce to a logical system. Cf. post, "Fellow Perpe- 
 trators." As to recidivity, see Cattier, p. 50. — Sometimes several offenses 
 are distinguished from one another in one act; thus the man who kills a woman 
 who is enceinte commits a double murder; a man who kills his enemy after 
 having sworn to keep the peace has to pay the "Wergeld" for murder, loses 
 his right hand for perjury and undergoes the ban of the king for disobedience: 
 "Sal.," 24, 3; "Roth.," 75; "Alf.," 9; Sunesen (in Schlyter, "Corp. juris 
 Sueo. Got.," IX), 68; "Capit.," 805, 6 (I, 123). On other occasions only one 
 offense is seen in these acts, but the penalty has increased; this is what hap- 
 pens in the case of an offense carrying with it violation of domicile or of some 
 other place over which a special peace has been declared: "Liut.," 131, 42; 
 "Roth.," 143. Compositions are accumulated, sometimes up to a certain 
 price, sometimes without hmit: "Sal.," 17, 3, 6; "Rib.," 1, 68;'"Fris.," 22, 
 75; also, 3, 49, 58; "Roth.," 46, 61, 78, 103; Fertile, § 172. 
 
 3 "Thuring.,"51; "Capit.," 819, c. 15; "L. Henr.," I, 70, 12, 25; "Liut.," 
 136; cf. Du Boys, I, 250; Fertile, § 170. — Among the Hebrews places of 
 sanctuary are open to involuntary homicides: "Exodus," xx.xi, 13; "Numbers," 
 XXXV, 22; "Deuter.," xix, 3. 
 
 * Frank, "Casuelle Totung," 1800. In the same way: "A sin committed 
 in drunkenness is atoned for by fasting " : Chaisemartin, " Prov.," p. 489. And 
 by way of reaction: "The man who has no knowledge of what he is doing 
 does not sin"; Loysel, 791, note, "Larceny is not committed without an 
 intent to steal;" 793, "He intends to strike who kills;" 791, "The will is 
 taken for the deed" (in cases like the crime of high-treason). In the old law 
 one might have said the contrary, — "The deed is taken for the will " ; " T. A. C, 
 Norm.," p. 30: "He who kills his lord is hanged; he who causes his lord's 
 death by carelessness is merely punished with death." Brunner, "Forsch.," 
 p. 491, cites a Sicilian law of the twelfth century according to which anybody 
 who kills another by jumping down from a rock or by throwing the branch 
 of a tree is punished with death. Cf. Esmein, "Hist, de la Proc6d. Crim.," 
 p. 255 (charter of pardon); Pollock and Mnitland, II, 478. 
 
 * Beaumanoir, 30, 65; "L. d. Droiz," 500, 997; Ordinance of 1368; Isam- 
 bert, V, 320; Follock and Maitland, II, 480; Fertile, § 174. 
 
 « Brunner, § 127 (bibl.); Cattier, p. 40; Fertile, § 171. — Cf., however, 
 "Sal.," 17, 28. 
 
 456
 
 Topic 2] OFFENSES [§ 355 
 
 who, without taking an active part in the act, have given advice 
 to the agent or have lent him assistance (for example, by keeping 
 a lookout).^ This crude system was not merely in harmony with 
 the old conception of the offense,^ and with the stage of moral- 
 ity; ^ it had the advantage of simplicity and relieved the judges 
 from the necessity of investigations for which they had neither 
 the intelligence nor the impartiality required.'' 
 
 § 355. Criminal Intent.^ — During the barbarian period there 
 comes to light the tendency to take into account intention in the 
 estimating of an offense. Mere negligence is sometimes likened to 
 a positive fact: "He who can and does not prevent, offends," 
 Loysel will say later on. The offense committed through care- 
 lessness ^ makes liable to a lesser composition, sometimes even to 
 mere damages; it does not involve any breaking of the peace; it 
 does not authorize private vengeance. At the same time that the 
 principle that the external deed is the only one for which a man can 
 be punished is retained, exceptions are made to it. Certain offenses 
 are presumed not to have been intentional (death occasioned by 
 
 1 Brunner, §§ 128 and 129 (bibl.). "The receiver of stolen property is 
 the same as the thief": "Sachsensp.," II, 13, 6; Chaisemartin, p. 491. Cf. 
 the proverbs: "To steal and to hold the sack are the same thing "; "One may 
 be hanged through the company he keeps"; Fertile, § 172. 
 
 2 These ideas have led to a minute casuistry, for example, peculiar dis- 
 tinctions between different kinds of wounds. In the Customs of the Middle 
 Ages it was still customary to measure the length of cuts in order to deter- 
 mine the degree of responsibility of the guilty man. Thus in the South the 
 simple cut is contrasted with the "plaga leyau" or cut of greater law (giving 
 rise to the payment of a greater fine). The dimension of the latter is 1 "once" 
 in length or depth ("F. de Beam"); the "once" is the fifth part of an "empan 
 de canne"; a "canne" is equal to 1.856 m. The "Cout. de Soule" of 1520, 
 35, 15, reproduces the official standard of the Court of Lixarre, which is equal 
 to m in. The fine for the legal cut was, in this Custom, 66 "sols morlaas." 
 The " Fors de Bcarn" of 1554, " R. de homicidis," still give curious details which 
 would not have been out of place in a barbarian law; after having defined a 
 "plaga leyau" they add: "alep es dit membre podal: caxau (a molar) es 
 memo re " ; if several molars are torn out by one blow there is only one "alep " ; 
 one finger of the hand, or even one joint of the finger, is a member; but one 
 tooth is not a member. It is not difficult to see how these mathematical 
 valuations carry us far from our system of imputabifity: Montesquieu, "Esprit 
 des Lois," 14, 14; Desmaze, "Hist, de la M6decine L6gale," 1880; Lespy, 
 "Diet. Beam." 
 
 * At a period when one lived in the midst of perpetual snares, or when each 
 day one had to fear an ambush, one could not fail to suspect a criminal intent 
 behind something which might have the appearance of an accident. 
 
 * Beaumanoir, 31, 12; Boularic, II, 40; "L. d. Droiz," II, 463. 
 
 ^ Criminal intent is designated in the texts by the words, "Per malum 
 ingenium," "per invidiam," "irato animo," "deasto" ("Liut.," 146; "Roth.," 
 277; "L. Alam.," 9); on the other hand they say, "nolens," "casu," "negligen- 
 tia" ("Sal.," 24, 5; Reginon, II, 17, 29); "infortunium." Beaumanair, 69: 
 case of chance and mischance. 
 
 ^ A culpable omission, which was etjuivalcnt to a commission: "Rib.," 70, 
 3, 4; "Bai.," 14; "Burg.," 18, 2; "Alfr.," 36. — Loysci, 792. 
 
 457
 
 § 355] OBLIGATIONS [Chap. Ill 
 
 the falling of a tree, the deed of a minor) ; ^ in the case of other 
 ofiFenses, malice stands out as an essential element of the act (for 
 example, the incendiary sets fire or stirs it up,^ the murderer con- 
 ceals the body of his victim) ; ^ even in these cases, as it might hap- 
 pen that the presumption was false, the oath that he had not acted 
 with criminal intent was demanded from the perpetrator of the 
 deed.^ Thus progress was made little by little towards a state of 
 law where this intention is just as indispensable as the material 
 fact: " reum non facit nisi mens rea." ^ " Necessity knows no law," 
 says a proverb ® which is inspired by this idea, and which at the 
 same time contemplates la^^'ful defense and the offense committed 
 in case of necessity, — for example, by some one who was dying 
 of hunger and who took provender from the field of another. The 
 transition to the new law is sometimes marked with as much 
 "naivete" as humor: thus in the case where one man kills another 
 by falling out of a tree, the "Lex Henrici I," 90, 7, only authorizes 
 the relative who persists in claiming the "Wergeld" to do the 
 same thing to the involuntary murderer: "si placet, ascendat et 
 ilium similiter obtruat." '^ It came about that the attempt and 
 the offense which had miscarried were punished, because there 
 were seen in certain applications of them special offenses distinct 
 from that which there had been an attempt to carry out. This is 
 what was done at all times in the case of blows and wounds, 
 
 » Fertile, § 174 (bibl.). 
 
 ^ Osenhriiggen, "Brandstiflung," 1854; Brunner, § 141. 
 
 ' "Murdrum" ("clam factum") as contrasted with mere homicide, causes 
 "palam": "T. A. C, Norm.," p. 64; Glanville, 8; Pollock and Maiiland, II, 
 485. 
 
 * Edict of Chilperic 5 (c/. "Sal.," 35, 36): an abandonment of the thing 
 causing the injury to the injured person w-ith an oath on the part of its owmer 
 "quod pura sit consciencia." Cf. the Lombard oath "de asto"; Exp. on 
 "Roth.," 202; purifying oath: "Form. Turon.," 30. 
 
 6 "L. Henr.," 5, 28; 90, 11. Decree of Gratian, c. 3, C, 22, q. 2, taken 
 ivoTo. Saint Augustine, "Sermones," no. 180, c. 2 {Migne, "Patr. Lat.," 38, 974), 
 on the subject of perjury. Roman ideas as to fraud and fault. Bracion, f. 
 120 b, reproduces a passage from Bernard de Pavie. 
 
 8 Loysel, 870. "Nothwehr," "Nothstand" of the German law: Pollock 
 and Maitland, II, 477; Bracton, fo. 134, 104 6, 120 h, 126 h. According to 
 Bracton the man who has committed a homicide through carelessness, or 
 who has killed in lawful defense, must obtain pardon: id., Boutaric, II, 40. 
 Cf. Beaumanoir, 69, 17. 
 
 ' Cf. "Alam., Pactus," V, 11: "If a man is killed by the dog of another 
 man the owner of the dog should pay half of the composition. If the heir 
 demands the entire composition, his doors shall be closed in such a way that 
 he can only go in and come out by a single one. Then they shall hang the 
 dog 9 feet above the threshold and leave him there until he falls from decay; 
 and the heir shall not come out or go in by any door, under penalty of paying 
 back half of the composition." Qunther, I, 13 (Abyssinia); Esmein, "Hist, 
 de la Proc. Grim.," p. 255. 
 
 458
 
 Topic 2] OFFENSES [§ 355 
 
 when the perpetrator of the offense had had the intention of kilUng. 
 IMurder which had miscarried was treated as a threat to kill and 
 punished in the Salic Law by a composition of 62 sous ("seo- 
 landefa").^ There was also a special composition for the thief 
 who was caught in the house of another, because there had been a 
 violation of domicile on his part.^ Fellow perpetrators were equally- 
 exposed to private vengeance, and, consequently, jointly and 
 severally responsible.^ As to the accomplices who lent assistance, 
 they do not seem to have been punished at first, excepting in the 
 case where offenses committed by a band of malefactors were con- 
 cerned.'* The Salic Law, t. 42, provides for the case of murder 
 committed in this w^ay with the aggravating circumstance that 
 the victim was taken unawares in his house; to the murder is 
 added the violation of domicile, and this gives rise to a payment of 
 triple "Wergeld"; three members of the group are responsible as 
 principals; each one of them has to pay this triple "Wergeld"; 
 it deems that three blows were sufficient to cause death, and that 
 the full responsibility can only be laid upon three persons, even if 
 the body has more than three wounds ; but from three others there 
 is demanded a composition of 90 sous, and of still another three 
 a composition of 45 sous; they are accomplices, their responsibil- 
 ity is not so great. From this particular case the same rule was ex- 
 tended to other hypothetical cases. ^ "He wounds enough who 
 
 1 "Seolan-defa" means "animse oppressia": "Sal.," 28, 2: Hessels, see 
 Table. 
 
 ^ Osenbruggen, "Hausfrieden," 1857; Weinhold, "Deutsch. Fried, und 
 Freist.," 1864; Chaiscmartin, p. 527: " ma maison," "mon chateau;" Brunner, 
 §§ 130 and 140; Locning, "De Pace Domestica," 1865; Pollock, "The King's 
 Peace," Oxford Lectures (French trans.); "Introd. a I'Et. de la Science 
 Polit.," 1898; Fertile, V, 606, 155. 
 
 ^ But they only had to pay one composition in a case where there was 
 only one offense: "L. Henrici," I, 49, 7; "Sal.," 43; "Alam.," 44; "Fris.," 
 14; "Roth.," 12, 263; " Alfr.," 31. It is true that under this system of public 
 penalties each one of the fellow perpetrators is punished as though he alone 
 had been guilty. Private vengeance also takes place individually against 
 each one of those who have taken part in the offense. See, for example, in the 
 Saga of Njal the vengeance of Kari. On the other hand, the relatives who 
 claim a composition, — for example, the "Wergeld" in ca.se of a murder, — 
 could be bought off by a single payment, whether there had been one or 
 several murderers. But from the public law the responsibility for the whole 
 offense which bore upon each fellow perpcstrator passed into private law and 
 into the matter of compositions: "Rib.," 18 (read: "restituant," for the 
 "capitale" should not be restored several times): "L. Henrici," I, 59, 25; 49, 7. 
 
 * Cf. details in Brunner, § 128; "Contubcrnium" (Vigbce, "De Re Mil.," 2, 
 8); "Trustis": "Sal.," 13, 14, 105; "Rib.," 34, 64; "Alam.," 34; "Bai.," 2, 
 3; 4, 22; "Alfr.," 29; "Ina," 13; "Thuring.," 57; "Roth.," 19, 379. 
 
 <* "Sal.," 71; "Cap.," 873, 7; "Bai.," 4, 25; "Pact. Alam.," 3, 24; "Alf.." 
 19; "^thelb.," 17, 20; "Roth.," .307. — C/. Loysel, 794; "Jostice," p. 307; 
 Beaumayioir, 31, 7 et seq.; 30, 92; Boutaric, I, 29; II, 40. 
 
 459
 
 § 355] OBLIGATIONS [Chap. Ill 
 
 holds a foot," says Loysel, or, again, "A man gets hung because of 
 his companions." During the Prankish period, moreover, it is 
 only upon accomplices in acts of magic and practices of sorcery 
 that the same penalty is inflicted as upon the principal perpetrator, 
 so greatly were they feared. At first, accomplices, because of the 
 advice they gave, were only punished in certain special cases (for 
 example, in case of murder committed for the payment of a price). ^ 
 It is rather difficult to account for the fact that whereas the old 
 law leaves the accomplices unpunished, it punishes the abettors of 
 the crime with extreme harshness; the guilty man being subject to 
 the vengeance which springs up between him and the avenger, 
 lays himself open to being treated in the same manner as the latter 
 ("qui ilhm suspicit similis est illi"). "He is a thief who robs a 
 thief," ^ will be said later on. 
 
 § 356. Responsibility for the Act of Another. Damage caused 
 by Animals or Inanimate Things. — According to the old concep- 
 tion, responsibility for an offense can be attributed to all those 
 whom the perpetrator is dependent upon. Thus, the hundred and 
 the community are responsible for the deeds of their members; 
 the owner of a domain is responsible for those who live there, the 
 head of the family is responsible for his children, for his wife, and 
 for his slaves, and in a general manner for the people of his house- 
 hold; ^ the master is responsible for his animals, or even the inani- 
 mate things which belong to him.* But this is a responsibility 
 " sui generis," — like to that of the modern State because of the acts 
 which one of its members might undertake against another State. 
 
 1 "Fris.," 2; "^thelr.," 8, 23; "L. Henr.," I, 85, 3; "Sal.," 28, 41; 11, 
 31, 1 ("Her."); 57, 6 ("emend"). Cf. "Roth.," 202, 166; "Liut.,"63, 72. Of- 
 fenses of a slave committed at the command of his master or of a tliird party : 
 "Sal.," 10, 2; "Wis.," 7, 2, 6; "Bai.," 9, 6; "Sax.," 18, 50; "Roth.," 322. 
 
 2 He is likened to the principal perpetrator in a case where he is put out- 
 side of the law. Anglo-Saxon "Edmund II," 1, 2; "^thelr.," I, 4, 2; III, 
 13. The Frankish laws merely decreed a composition: "Sal.," 55, 56, 70, 
 106; "Rib.," 87; "Capit." (ed. B.), I, 148, 156, 70. However, they sometimes 
 also pronounce the same penalty: "Sal.," 32; "Dec. Child.," 7; "Capit.," 
 
 I, 171. Cases of theft: "Rib.," 73, 78; "Cham.," 30; "Roth.," 200, 266; 
 "Burg.," 71; "Bai.," 9, 15 et seq.; "Wis.," 7, 2, 7. Loysel, 806. 
 
 ^ The people of the household did not always have possessions of their 
 own; formerly everything which they acquired belonged to the family; also 
 they found it impossible to provide themselves an indemnity for the damages 
 which they caused. The responsibility of the head of the family had some 
 support in this practical consideration. It was not admitted that he could 
 justify himself by establishing the fact that there was no fault with which 
 he could be reproached. Cf. examples in Huber, IV, 495, 807; P. de la Janes, 
 
 II, 400. 
 
 * Cf. responsibility of the master who employs a workman when the latter 
 loses his life in the service of the former: "Roth.," 144 et seq., 152; "L. 
 Henrici," I, 90, 11; Wasserschl., "Biissordn.," p. 549. 
 
 460
 
 Topic 2] OFFENSES [§ 356 
 
 It suffices, in order to relieve oneself of this responsibility, to turn 
 over the guilty person to the victim of the offense or to his rela- 
 tives, for they will then be able to wreak the vengeance which 
 they demand upon him ; ^ thus in the case of a murder, during the 
 pagan period, the murderer was sacrificed to the manes of the 
 victim, and the same treatment would be inflicted upon the animal 
 who had killed a man, and upon the object — a sword, a spear, 
 or anything else — which had struck him. If anyone refuses to 
 make this surrender of the thing causing the injury, he places 
 himself in the same situation as the perpetrator" of the offense; one 
 puts an obstacle in the way of the exercising of vengeance, and 
 thereby exposes oneself to it; ^ the only means of avoiding this is 
 to pay the composition as though one had been the perpetrator of 
 the deed oneself,^ although one may have had absolutely no part 
 in it. The abandonment of the thing causing the injury to the 
 injured person '^ is thus the primary obligation of the master of a 
 slave who has committed an offense, of the owner of an animal or 
 an inanimate thing which may have caused damage. Assuming 
 that the owner did not do this, it was asked whether it was not 
 going too far to treat the master like the direct cause of the offense; 
 at the most, all one could see in this was an analogy to an offense 
 committed by reason of carelessness. Also, it was admitted that 
 he was not subject to a "faida," ^ and that he was always author- 
 ized to pay a pecuniary composition; sometimes the ordinary 
 composition was demanded from him, sometimes a portion of the 
 latter (one-half, two-thirds).® In the end, corporal punishment 
 (the whip, the scourge) came to be inflicted in the majority of 
 instances upon slaves because of their offenses. In the case of 
 animals or inanimate objects vengeance was practised in primi- 
 tive times, first of all, because he who took vengeance followed a 
 heedless impulse, and did not stop to question whether the one 
 whom he struck were responsible, any more than a child asks him- 
 
 1 "Bai.," 8, 9; "Roth.," 142; "Sax.," 18, 53; "Ina," 74; "Burg.," 20, 
 etc.; "Wis.," 6, 5, 10 c< sc^. Prohibition of unilateral abandonment: "Cap.," 
 803, c. 5 (I, 117); "Sal.," 35, 5; Edict of Chilperic, 5; Grimm, "R. A.," 604. 
 
 2 Fribourg, in "Uechtland," ed. Lehr, c. 36 (in 1249). Apropos of the 
 rule, "Noxa capa sequitur"; cf. "Rib.," 70, 1. 
 
 3 "Fris.," 1, 22; 9. 17; "Roth.," 249, 254, 371; Exp. on "Roth.," 256; 
 "Thur.," 59: "Omnc damnum quod servu.s feccrit dominus emendet." Limita- 
 tion of the master's responsibility: Grimm, 3; "Capit.," 803, 13 (I, 143). 
 
 ^ Girard, "N. R. 11.," 1887, 1888; "Man de Dr. R.," p. 671; Esmcin, ibid., 
 1900; Kovalewsky,p.'SOZ. 
 
 * "Roth.," 326; "Rib.," 46; "Sachsensp.," II, 40, 3. Consequently, no 
 "fredus": " Vieh verbricht kein Gewette " ; 'SSal.,'' 36. 
 
 6 "Roth.," 142, 249; "Liut.," 21; "Bai.," 8, 2; "Fris.," 1, 13. 
 
 461
 
 § 356] OBLIGATIONS [Chap. Ill 
 
 self when he breaks the branch which he has run against if it 
 deserves or does not deserve to be punished; rehgious ideas were 
 not long in becoming mingled with this instinctive procedure; the 
 animal which has killed is sacrificed, the object which has caused 
 death is appropriated to sacred uses. The public penalties against 
 animals, which lasted for a long time in our old law, have no other 
 origin; and the biblical recollections from which they are often 
 derived only contributed towards their being kept up. Beaumanoir, 
 while blaming it, makes mention of the custom of putting animals to 
 death (09, 6) : " If a sow kills a child, they (the lords justices) hang 
 it or drag it . . . but this should not be done, for dumb brutes 
 have no understanding of what is right and what is wrong, and for 
 this reason is justice thrown away." ^ This reasoning did not have 
 very much effect upon the judges of his time; in the fourteenth or 
 fifteenth century it was not a rare thing to see these criminals of a 
 particular kind burned or hung in effigy.^ In England they still 
 admitted in theory, in 1846, that every animal or every inanimate 
 thing which caused the death of a man should be devoted to pious 
 uses, so as to appease the anger of God (" deodand "). — But, as 
 a general rule, these old customs disappeared; the owner of an ani- 
 mal ^ or of an inanimate object ^ which caused damage (collapse 
 of a house, etc.), was held liable to make a pecuniary reparation, 
 without being able to escape from it by means of giving it up.^ 
 § 357. Pecuniary Composition originally was only the buying 
 
 1 Beaumanoir, 69, 6; "Et. de St. Louis," I, 125 (ed. V., p. 233); Boutaric, 
 I, 38; Tanon, "Reg. Crim. de St. Martin-des-Champs," p. 554; Michelet, 
 "Orig.," p. 354; Kovalewsky, p. 302. — "Deodand" ("dentur pro Deo"), 
 cf. Bracton, f. 122; "Fleta," p. 37; Pollock and Maitland, II, 471 (bibl.). 
 
 2 "Genesis," ix, 5; " Exodus," xxi, 28-32; "Lois de Platon," 12, 936; Demos- 
 thenes, "in Aristoc," 18; Ayrault, "Ordre judic," 1, IV; Sorel, "Proces c. 
 les Animaux en Picardie," 1877; Menabrea, "Jug. rendus c. les Animaux," 
 1846; Berriat-St.-Prix, "Rech. s. les Proces faits aux Animaux" (from 1120 
 to 1741); Du Boys, op. cit. V, 56; Glasson, VI, 650. Cf. especially: Amira, 
 op. cit. Cf. "Penetentiels," I; Addosio, "Bestie Delinquenti," 1892; D Arhois 
 de Juhainville, "R. Q. H.," V, 275 (Excommunication of Animals); Esmein, 
 "N. R. H.," 1900, 5 ("Abandon noxaP'). 
 
 ' Cf. the German proverb, "Kein Vieh verbiisst Gewette"; that is to say, 
 no fine is to be paid for damage caused by an animal; it is sufficient if the 
 owner give an indemnity to the victim. The word "Gewette" or "Wedde" 
 contemplates the pledge that the accused had to give the judge to provide for 
 the possibility of his being convicted: "Pactus Alam.," 3, 16 (dog suspended 
 over the door); Gui Pape, IX, 238 ("De poena bruta"). As to damages 
 caused to the crops by animals and the "pignoratio," cf. post, "Execution." 
 
 * "Sax.," 58 ("fossa," "laqueus"); "Thur.," 61; "Rib.," 70; "L. Henrici I," 
 87, 2; "Alfr.," 19. 
 
 " "A.C., d'Anjou," I, 163; "L. d. Droiz," nos. 119, 228; Gla.sson, VI, 653. 
 — Cf. Ferrihre, see "Dommage"; Argou, III, 39; Pothier, "Oblig." 121; 
 Civil Code, 1382 et seq.; Josserand, "Respons. des Choses inanimdes," 1891; 
 "R. crit.," XX, 182. 
 
 462
 
 Topic 2] OFFENSES [§ 358 
 
 off of vengeance, the ransom of the guilty man, the price of the 
 peace which the victim and his family allowed the perpetrator of 
 the offense and his relatives.^ Hence it must contain two ele- 
 ments: damages, and a penalty, for it would have been very 
 difficult for people to be content with a mere indemnity exactly 
 equal to the damage caused; in many cases, moreover, the reckon- 
 ing of the damage is not easy." When composition was put in the 
 form of a tariff' by custom and became obligatory, it did not 
 change in its nature. It sometimes happened, however, that the 
 "poena" and the damage-money were to be distinguished; thus, in 
 the Frankish law the thief is held liable for a composition which 
 is entirely penal, independent of the "capitale," that is to say, 
 of the restitution of the thing stolen or its value, and from the 
 "dilatura" or "wirdira," that is to say, the interest accrued by 
 delay. The "fredus," and the composition properly so called, only 
 correspond in a certain measure with the "poena" and the "res" 
 of the Roman law; the distinction had already been made in 
 Tacitus, "Germ.," 12: "pars multse regi vel civitati, pars ipsi qui 
 vindicatur vel propinquis ejus exsolvitur." ^ 
 
 § 358. Family Solidarity. — An offense brought into play family 
 solidarity; the relatives of the victim helped the latter to take 
 vengeance upon the guilty person, or acted by themselves, if 
 necessary; conversely, vengeance could be lawfully exercised, not 
 only against the guilty party, but against his relatives; the two 
 families were in a state of warfare. " Suscipere tam inimicitias seu 
 patris seu propinqui quam amicitias necesse est," says Tacitus, 12. 
 Hence it was logical to allow to the relatives of the victim a 
 portion of the composition, or, at least, of the "Wergeld" ("re- 
 cipit satisf actionem uni versa domus," ib.), and on their side the 
 relatives of the "faidit" were liable to pay a part of this sum.^ If 
 
 * Thus, if vengeance were carried out there was no occasion for the com- 
 position. Cf. the old proverbs: "By death one is acquitted ('wettet') by the 
 judge and one indemnifies ('busset') the complainant"; "For a crime one 
 can neither seize body nor goods"; Loysel, 81; Chaisemartin, p. 495. 
 
 ^ The damage caused was taken into account; for example, the finger 
 which releases the arrow, the single eye of a one-eyed man, the hand of the 
 harp player, all have a higher price. The social status of the victim of the 
 offense is another element which is taken into account. Often the composition 
 is so high that it is difficult for many people to pay it. "Roth.," 74 (higher 
 prices than formerly with the object of checking the "faida"). The indemnity 
 substituted for retaliation according to the Mosaic law includes several 
 headings: damage, pain, doctor's expenses, prevention of work, shame. 
 
 ' "Fredus" has given in French the word "frais," which is used in legal 
 language; for example, "frais et depens" (expenses and disbursements). Cf. 
 "bannus" (to the State). 
 
 * The law of the Thuringians shows that there was a connection between 
 
 463
 
 § 358] OBLIGATIONS [Chap. Ill 
 
 they found this responsibiUty too heavy, it was absolutely neces- 
 sary that they should break the bond of relationship. This took 
 place by means of symbolical ceremonies similar to those which 
 the Salic Law describes in Title 60, "De eo qui se de parentilla 
 tollere vult," ^ by breaking four rods of alder over the head before 
 the whole "mallus" and declaring at the same time that thence- 
 forth there would be nothing in common between them, neither 
 "hereditas" nor oath.^ On its side, the family had no doubt the 
 right to repudiate those of its members who compromised it too 
 much.^ With the disintegration of the primitive family and the 
 extension of the part played by the State, responsibility for of- 
 fenses became individual : ■* " All offenses are personal, and one 
 has no guarantor in criminal matters"; they also say, "The plea 
 of a dead man is dead " (Loysel, 797).^ Its legal effects gone, 
 
 the right to the "Wergeld" and the obligation to contribute to the payment 
 of this sort of composition. Cf. "Bai.," 8, 20; "Sax.," 2, 6; "Sal.," 62; "Rib.," 
 12. 67; "Roth.," 2. As to the celebrated title of the Salic Law, 58, "de chrene- 
 cruda," see Geffcken; abolition of the "chrenecruda" by the "Dec. Childeb.," 
 5. — See "Olim," II, 428, in 1278; Chaisemartin, p. 480; Cattier, p. 183. 
 
 1 "L. Henrici I," 88, 13. 
 
 2 This formality has been accounted for in various ways. Thus, according 
 to Thevenin, "N. R. H.," 1880, 88, by breaking three rods one destroyed one 
 after the other the triple community of oath, inheritance and interests estab- 
 lished by the relationship. But all the Mss. of the Salic Law excepting one 
 speak of four rods, and not of three, and the number four corresponds to the 
 four "anguh" of the "mallus" into which one should throw the remains of 
 the "fustis." To break four rods and throw each one to one side is to renounce 
 relationship in an absolute manner in every sense. Cf. especially Moller, 
 "Z. S. S., G. A.," 1900, 28. One will find in this article the principal cases in 
 which was applied this breaking of the rod. In a case of putting outside of 
 the law and condemnation to death this custom symbolizes the breaking of 
 ev^ery legal tie and of everj- legal community. It is the same thing in the case 
 of the degradation of an ecclesiastic. At the death of the king there is a break- 
 ing of the rod by certain officers of the household (to break the rod of the house, 
 to break the house, — that is to say, to dismiss the people). To break straw 
 with somebody means to disengage oneself from the feudal tie and even from 
 every contractual tie: Moliere, "Depit Amoureux," 4, 4. From this comes the 
 expression, "Rompre avec quelqu'un" (to break with some one), which means 
 to cease all relations with him. In feudal investiture they sometimes broke a 
 rod or a knife. Cf. Isidore, "Orig.," V, 24. 
 
 ^ "Fourjur" in Hainaut: Kovaleivsky, p. 311: "The head of the clan ban- 
 ishes anj^one who disturbs the peace of the clan " ; from this comes the formation 
 of a class of men without family ("Abreks"): Ragueau, see "Forjurer." 
 
 * "Dec. Childeb.," II, c. 5; "Roth.," 25; "Exodus," xx, 5: ". . . God, 
 visiting the iniquity of the father upon the sons unto the third and fourth 
 generation"; Greg. Tours, VII, 21; "Deuter.," xxiv, 16: " The fathers shall not 
 be put to death for the sons, nor the sons for the fathers." 
 
 ' Exception in the case of the more serious crimes, such as that of high 
 treason; the sentence was pronounced and executed even upon the corpse. 
 Cf. Ayrault, "Ordre Judic," book IV. In a more general way, depriving a man 
 of burial, annulling his will, and a few other penalties only took effect after 
 death. On the contrary, civil trials continued after the death of the parties, 
 at least since the Ordinance of 1359: Fertile, § 176; Bregeault, "N. R. H.," Ill, 
 619. 
 
 464
 
 Topic 2] OFFENSES [§ 359 
 
 the solidarity of the family was thus reduced to a moral stigma, 
 at the most.^ 
 
 § 359. Damages.^ — Little by little, the majority of offenses 
 gave rise to corporal or disgracing penalties which were inflicted 
 by the State. But, such was the force of old customs that the 
 buying oflf which was made use of in the case of private penalties 
 was applied even to public penalties; Loysel was able to say, 836: 
 *' He is not flogged who does not wish to be, for he who can pay in 
 money does not pay with his body." ^ On the other hand, prose- 
 cution, having a tendency towards public repression inflicted by 
 the State, was for a long while left to individual initiative.^ To 
 bring the accusation is a right and a duty for the nearest relative; '" 
 if there is no accusation, there is no judgment and no penalty, just 
 as though the State only took upon itself the task of helping the 
 individual and carrying out the vengeance which the latter was 
 not strong enough to realize, by himself or even with the assist- 
 ance of his relatives; this is the salient characteristic of the so- 
 called system of procedure by way of accusation. At the same 
 time, the victim of the offense had the right to demand the repar- 
 ation of the injury which he had received; instead of a fixed sum 
 like the composition, he received an indemnity in proportion to 
 the damage sustained; the claim "ex delicto" which he had for 
 this purpose was distinguished from the right of punishing which 
 was reserved to society in prohibiting acts of violence. Also, we 
 read in Loysel, 832 : " Messire Pierre de Fontaines ® writes that 
 penal actions cannot be brought ; merely the things must be 
 given back, with a fine to the lord. This is what is meant by: 
 'To every misdeed there befalls but a fine.'" 
 
 1 In Germany, until 1732, the trade corporations refused to admit the chil- 
 dren of those who had undergone any disgraceful sentence: Marnier, "Etabl. 
 de Norm.," p. 44. After the outrage committed by Damiens his relatives were 
 ordered to change their name. 
 
 2 Du Cange, see "mendum," "emenda"; Heusler, I, 62. 
 
 ^ Example in Brunner, II, 599, 616 ("manum perdat aut redimat"). Again, 
 in the time of St. Louis it is not a rare thing for procedure on the occasion of 
 an offense to terminate by a compromise between the parties; the transaction 
 is ratified by the officers of the king: "Vie de St. Louis par le Confesseur de 
 la Reine Marguerite," c. 18; Loysel, 360, 795. 
 
 * Chaisemartin, p. 508: the outcry is the beginning of the complaint. 
 
 * The "tair" among the Arabs, the "goel" among the Hebrews: Kovalew- 
 sky, p. 240. 
 
 ^ P. de Fontaines, 15, 52; cf. Beaumanoir, 30 et seq.; "Jostice," p. 275 et 
 seq.; Boutaric, I, 28, 29, 35; "Gr. Gout. Norm.," 67. Cj. England: Pollock 
 and Maitland, II, 457, 510 (trespass, meaning "transgressio," but it is a "trans- 
 gressio" which does not amount to a felony). The action of trespass originally 
 was based on a damage caused to the complainant in his body, his possessions 
 or his land, by force and arms and against the peace of the king. 
 
 405
 
 § 300] OBLIGATIONS [Chap. Ill 
 
 § 3G0. Putting Outside of the Law, and its Varieties. — Of- 
 fenses against the State were only punished in the old Germanic 
 law with one penalty, the putting outside of the law, which affected 
 both body and possessions at the same time.^ Everybody ought 
 to attack the guilty man, who was looked upon as a public enemy, 
 or as a wild beast; he only escaped death by wandering into the 
 woods or fleeing abroad.^ His house was burned, his land ravaged 
 or confiscated,^ according to the period, — ravaged, in the epoch 
 when the land was divided up every year, and confiscated at the 
 epoch when individual ownership came into existence. In the case 
 of a flagrant offense the putting outside of the law was incurred as 
 matter of law; if the malefactor was not taken in the act, it was 
 necessary for the public authority (the Frankish king during the 
 first two dynasties) to proclaim this fact.^ This fearful penalty be- 
 
 ^ Cf. in the German Middle Ages, the placing under the ban of the Empire. 
 
 2 If the penalty of death was not first of all a religious act it became so: 
 "L. Fris.," XII (penalty for sacrilege). Also they sometimes hmited themselves 
 to exposing the guilty man to death, by leaving to the gods the responsibility 
 of pronouncing themselves as to his fate; he was abandoned upon the sea in a 
 boat without oars and without rudder {Grimm, "R. A.," 701); they hanged 
 him, but in such a way that death did not take place immediately (c/. the ex- 
 pression, "hanged until death takes place "): "Sal.," 68; "Capit.," 808, 2 (I, 
 139). He whom the execution has failed to kill should be pardoned, because 
 the gods have not accepted the sacrifice, — " Nobody is hanged twice , Chaise- 
 martin, p. 204. On the other hand, who does not know the virtues of the rope 
 that has hanged a man, of the hand of glory? that is, the hand of a man who 
 has been hanged that has been salted and dried, — corruption of the word 
 into "mandragore": Cosquin, "Contes popul. de Lorr.," I, 184; G. de Nerval, 
 "La Main enchant^e"; "A. C, Bord.," 46. The body of a suicide or of a man 
 who died a natural death had absolutely no properties of this kind. The 
 refusal of an honorable burial is still connected with pagan ideas (post, "Exe- 
 cution"). The oldest executioner was the pagan priest. Absoluteh' no dis- 
 honor was connected with this office. Perhaps this must be accounted for by 
 the proverb, "That which the executioner can get belongs to him"; Chaise- 
 martin, p. 204. Moreover, death might be inflicted by the community (for 
 example, stoning; in Norway, after having shaved and tarred and feathered 
 the head of the guilty man, who fled under a hail of stones) or by a relative 
 ("Sal.," 70; Grimm, "R. A.," 674): Brunner, § 114; Claeys, "Le Bourreau de 
 Gand," 1891; Pagart d' Hermansart, " — deSt.-Omer," 1892; Lvdwig, "Arch. f. 
 Kath. Kirch.," 1893 ("Sacrilege"). 
 
 ' Burniiig and leveling, during the feudal period, are a survival of the old 
 penalty; they destroy the house of the guilty man by fire or by demolishing 
 it: "Olim," I, 538, etc.: Viollet, "Et. de St. Louis," II, 36; III, p. 291: the 
 Convention commanded the demolishing of the house of the Girondist Burzot, 
 and the Commune that of M. Thiers. These are remarkable instances of an 
 instinctive return to barbarism, and they would suffice, if there were not many 
 other proofs, to show us that we are less far removed from it than we are in 
 the habit oi thinking: Fertile, § 186; Cattier, p. 83; Beunecke, "Strafverf" 
 (Flanders, twelfth and thirteenth centuries), 1886. 
 
 * "Extra sermonem regis ponere." The placing outside of the law resulted 
 from a solemn and judicial act; the usual formalities consisted in the ex-tin- 
 guishing of a torch and the act of breaking to pieces a rod, etc. : Brunner, II, 
 466 (bibl.); Schroeder, p. 77. 
 
 466
 
 Topic 2] OFFENSES [§ 360 
 
 came milder and was split up, giving birth in the course of its dis- 
 integration to a series of important institutions. It became milder 
 among the Scandinavians, where the guilty man was granted time 
 in which to take flight; ^ among the Franks, where it degener- 
 ated into a temporary measure, the "foris bannitio," pronounced 
 against the absconder, who very often only absconded because he 
 had a guilty conscience, "He who flees judgment condemns him- 
 self." In various respects the condition of the man who is ban- 
 ished resembles that of the outlaw; in other respects it differs very 
 much from it; anybody can take him with the object of arraigning 
 him before the judge; it is forbidden to shelter him or to give him 
 nourishment;^ he is temporarily deprived of his possessions; but 
 nobody has a right to put him to death. From the end of the 
 ninth century " f orbannitio " is no longer applied, excepting in 
 cases of absconding after the commission of a crime. And even in 
 this case it finally ceases to have the same effect which it had 
 formerly; witness the maxim of Loysel, 871: "According to the 
 old law of France, the absconder lost his cause, were it good or 
 bad, civil or criminal. To-day one must justify one's demand." ' 
 From this placing outside of the law there were evolved, so as 
 to constitute special penalties, all the more easily as the Roman 
 law here furnished precedents: (A) death,^ exile under its various 
 
 » "Inducise libertatis": Gragas, I, p. 83: "Saga de Nial " ("Hist, de Gun- 
 nar "); Sunesen, 132; "Sal.," 55, 2; "Stadtr.," of Vienna in 1221, c. 1. 
 
 2 The "forisbannitio," pronounced by the count and not by the king, which 
 is the placing outside of the law, carried with it the "meziban ' and the "inter- 
 dictio cibi": "Cap." 809, c. 3; 801-13, c. 13 (1, 148, 172); Keirsey, 873, c. 1. 
 During the feudal period the "forbanni" is no longer allowed to plead and 
 reply in court; nor can he appear in court nor give testimony; his goods are 
 confiscated: P. de Fontaines, 13, 6-22; " Jo.stice," III, 6; XIX, 37; Beaumanoir, 
 34, 32; 30, 36; 61, 23; "Olim," I, 1016; "Et. de St. Louis," I, 28 (c/. ed. Viollct, 
 1,47); "T.A.C., Norm.," p. 98 (ed. T.); Marnier, "Etabl. de Norm.," pp. 123, 
 182, 195; see Ragueau. — Custom of banishing on the "hart"; that is to say, 
 they will hang anybody who is found breaking the ban: Beaumanoir, 61, 19; 
 "Art.," 44,2. C/. Tardif, "Proc6d.,"pp. 149, 156; "B.Ch.," 11,99 (Jamin).— 
 Outlawry in England also became a form of procedure against the defaulter. 
 Pollock and Maitland, II, 457; Pertile, § 185. 
 
 ' Chaisemartin, p. 522; cf. p. 513 (safe conduct). 
 
 * Brunner, §§ 131. 132 et seq. (detailed bibl.); D'Olivecrona, "La Peine de 
 Mort," 1868. Penalty of death: hanging ("bargus," "furca," "patibulum") 
 for men; drowning ("necare"), especially for women (thirteenth and fourteenth 
 centuries, burying for reasons of decency, Tardif, "Proc6d.," 155), stoning, 
 beheading, burning to death, the wheel, etc. Brunner, II, 601. The corjioral 
 punishments are horrible and quite varied: "detruncatio" or "semalio," 
 running the gauntlet {Tacitus, "Germ.," 19; "Liut.," 141; "Wis.," 6, 2, 3) 
 scourge or the lash, scalping (sometimes the head is shaved in such a way that 
 the guilty man resembles a slave, sometimes he is scalped or his hair is torn 
 out with the skin of his head), branding with a red-hot iron, etc.: Desniazes, 
 "Les Penalitds anciennes," 1861; "U. hist.," I, 84. Observe that penalties 
 
 467
 
 § 3G0] OBLIGATIONS [Chap. Ill 
 
 forms/ penal slavery, and imprisonment;^ (B) the confiscation of 
 property, "missio in bannum regis," which had a permanent effect 
 only if the year and a day passed without the removal of the ban; ^ 
 the tenure of a year and a day, the distraining on immovables, 
 and certain forms of obligation have no other origin. One may 
 liken the putting outside of the law to civil death, which will be 
 discussed later on.^ With the Roman ideas which prevail in penal 
 law, and especially with the absolute authority of the sovereign, 
 is connected the principle, which was still in force in the eighteenth 
 century, by virtue of which the judge, the delegate of the sover- 
 eign, can pronounce arbitrary penalties when the statutes are 
 silent.^ Moreover, Prankish legislation already tended in that 
 direction by virtue of a spontaneous evolution. The authority 
 of the Frankish king in penal matters has this arbitrary character; 
 to fail in the duty of loyalty towards him, to which one is bound, 
 lays one open: 1st, to the putting outside of the law in the most 
 serious cases; 2d, to banishment with confiscation of possessions, 
 if the deed is of less importance; 3d, or, at least, to a fine. In the 
 case of offenses involving the placing outside of the law, and those 
 which were punished by a capital penalty, there was seen a dis- 
 loyalty to the king; the thief is qualified as "infidehs." Thus it is 
 that in England the offense of felony became the basis of penal 
 law.^ The king in a case of disloyalty had the right to pardon the 
 guilty man or to pronounce arbitrary penalties against him; ^ the 
 
 vary according to the status of the persons (for example, slaves, etc.): Fertile, 
 §§ 192, 181. . 
 
 1 Exile is understood to apply to expulsion from the country, sendmg mto 
 the interior of the country, and sometimes even to imprisonment itself. There 
 is often added to it confiscation of goods: "Rib.," 69, 2; "Capit.," I, 18G, 282, 
 318. Part played by those judged to be banished at Metz, thirteenth century: 
 "N. R. H.," 1880, 371; Pertile, § 184. 
 
 2 "Capit.," 754-5, c. 1: " mittatur in carcere usque ad satisf actionem"; 
 Pertile, § 183; Glasson, VI, 698 (imprisonment is more a means of compulsion 
 than a penalty). 
 
 3 Loysel, 839: "He who confiscates the body confiscates the goods," 843. 
 As to the confiscation of fiefs, cf. "Ass. do Jerus.," I, 506 (bibl.) ; P. de Fontaines, 
 pp. 292 and 483; Marnier^ "Et. de Norm.," p. 77; Pertile, § 180. 
 
 ^ As to the " Rechtlosigkeit " of the feudal period, cf. Brunner, II, 597; 
 post, "Persons;" Pertile, §§ 185, 187. 
 
 5 Fertile, § 190 et seq.; Glasson, VI, 694. 
 
 « " Summa Norm.," 7.4; Bracton, fo. 138, 144 et seq.; Glanville, 1, 2; Pollock and 
 Maitland, II, 460 (bibl., p. 446, on the " Pleas of the Crown"). Cf. Glasson,Yl, 647. 
 
 ^ "Harmiscara" (French: "haschidre"), cf. Grimm, Du Cange, see Diez; 
 this word means penalty in general; but it has been understood to apply to 
 an arbitrary penalty inflicted by the Carolingians in the ninth century ("Cap. 
 Kiersey," 857, c. 9: "talem harmiscaram qualem nobis visum fuerit," cf. 
 Table, see ed. B.) and especially of a disgraceful penalty, like the carrying of 
 the saddle, which was added to the composition: "Capit.." 866, c. 9, II, 96. 
 Other disgraceful penalties of this kind : carrying of a wheel or of a dog. From 
 
 468
 
 Topic 2] OFFENSES [§ 361 
 
 latter found himself at the mercy of the king ("in misericordiam 
 regis ").^ 
 
 § 361. Concerning Special Kinds of Offenses. — We shall limit 
 ourselves to a mere enumeration of them, and only as far as the 
 barbarian period is concerned, that is to say, the period during 
 which penal law still plays a part in private law, at least up to a 
 certain point. — 1st. Offenses against persons include murder,^ 
 homicide, blows and wounds which can be divided into three 
 classes: (a) mutilation, "mahamium" or "mehain" ("membrum 
 sideratum," "mancum"); (6) "sanguinis effusio"; (c) "colpus," 
 "ictus," from which results a "tumor" or a "livor."^ — 2d.. Of- 
 fenses against property, consisting almost entirely of theft ("fur- 
 tum," "latrocinium"),^ which are distinguished because of their 
 clandestine character from plundering or pillage,^ and in the case 
 of which the "effractura " may be an aggravating circumstance.*^ 
 The old law contrasts flagrant theft with theft which is not fla- 
 grant,^ the latter being energetically checked because the resent- 
 ment of the man robbed has had time to be appeased.^ It also 
 
 whence comes the proverb, "I'affaire aura le chien": Chaisemartin, p. 501; 
 Cattier, p. 66 (carrying a stone); Michelet, p. 379 et seq.; Fertile, § 186. At 
 a very early time popular fancy is here given free sway. Witness the two pro- 
 visions of the "L. Burg.," 97: (he who steals a dog) "ut coram omni populo 
 posteriorem canis osculetur," or he must pay 5 sous to the person robbed 
 and 2 sous as a fine; 98: "He who steals a goshawk shall allow the goshawk 
 to eat 6 ounces of flesh from his chest or shall pay 5 sous to the man robbed 
 and 2 sous fine": Oierke, "Humor i. d. R.," p. 65; Grimm, "R. A.," 711. 
 
 1 Anglo-Norman law: "amerciamenta," fines to be paid to the king by the 
 man who is at his mercy. Pollock and Maitland, II, 511. CJ. "Pleas of the 
 Crown," ibid., II, 453 (bibl., p. 446). 
 
 2 Beaumanoir, 69, 22; Boutaric, II, 40; " Jostice," p. 288. — " Encis " (murder 
 of a woman who is enceinte), "Et. de St. Louis," I, 27; "Jostice," p. 279; 
 Boutaric, II, 40. — As to infanticide and its connection with the paternal 
 power, c/. Viollet, "Et. de St. Louis," I, 250; "Summa Norm.," 35. — The 
 Customs of the Southwest (thirteenth, fourteenth centuries) decide that the 
 homicide should be buried alive under the corpse of his victim: "Bord.," 21; 
 "Agen," 16; "Belves" (ed. Vigie), etc. 
 
 ' See Du Cange. 
 
 * Pollock and Maitland, II, 492; Pertile, V, § 203 (bibl.); Glasson, VI, 672; 
 Demarsy, "Du Vol," 1869 ("R. h. Dr.," 13 and 15); Molinier, "R. Acad. leg. 
 Toulouse," 1868, 69; Bouthors, "Cout. d'Amiens," p. 160; Woringen, "Beitr. 
 z. Gesch. d. d. Strafr." 1882. 
 
 6 "Rauba," "schachum," "charrena": Geffcken, "L. Sal.," p. 229. 
 
 * "Sal.," 11, etc.; "Screuna," "escregne," meaning subterranean chamber. 
 
 7 Beaumanoir, 30, 84, 90, 102; 39, 10; 61, 2; "Ass. de J6r.," "C. des B.," 
 203, 208, 251, etc. 
 
 * As to the interpretation of Title 37 of the Salic Law, "de vestigio minando," 
 cf. Zycha, "Z. S S., (i. A.," 1901, p. 155. This article, which was not i)ublishod 
 until the second chapter of this work had been printed, brings to bear on this 
 obscure text new ideas which are difficult to accept. They are that it is the 
 defendant (and not the "vestigium minans," " ille" for "illi") who should 
 "agramire per tercia manu," when the object has been found in three 
 nights; after three nights he may "agramire," but he is not compelled to, 
 
 469
 
 § 361] OBLIGATIONS [Chap. Ill 
 
 draws a distinction between larceny which is of little importance 
 and larceny which is of more than a certain sum, — five sous, for 
 example.^ The breaking into a house is distinguished from theft, 
 of which it is often an aggravating circumstance.^ Arson is a 
 particularly serious offense in the eyes of the barbarians.^ — 3d. 
 Offenses against morals, in the primitive conception, are offenses 
 against decency, — such as adultery, abduction, rape, certain cases 
 of fornication, — rather than special offenses.^ — 4th. It is other- 
 wise in the case of insults, like those which consist in calling a man 
 a hare or a fox, according to the Salic Law, or a woman a sorceress, 
 "striga," "masca," according to the law of the Lombards; these 
 are attacks upon honor which sometimes give rise to terrible venge- 
 ance.^ — 5th. Some offenses, such as sorcery and poisoning, which 
 are rather like magic, the carrying away of a dead body, perjury and 
 forgery, have a different aspect. — 6th. Finally, high treason is es- 
 pecially a crime against the State. — Many of the provisions of the 
 Customs of the feudal period recall the Frankish penal law.^ But it 
 should be noticed that certain of these offenses came within the 
 jurisdiction of the ecclesiastical tribunals, with a few others with 
 which the old law was not concerned:^ fornication, incest, adul- 
 tery, bigamy,^ crimes against nature, suicide,^ sorcery ,^° heresy," 
 and usury.^^ 
 
 assuming that the complainant Hmits himself to a mere requisition ("revocare 
 absque intertiato"). Within the three nights a lost object is sought for; 
 when the three nights are passed an offense arises. The "Spurfolge" or 
 following of the trail is not a necessary act of procedure (tit. 37, § 2; 47; 
 " Rib.," 33, 72). " Z. S. S., G. A.," 1901. p. 401. 
 
 1 Boutaric, II, 39. Cf. "Et. de St. Louis," I, 32 (recidivity). 
 
 2 Assultura, etc.: "Sal.," 14, etc.; Pollock and Maitland, II, 491. 
 
 3 Pollock and Maitland, II, 490; PertUe, V, 631. 
 
 4 Perlile V 513. 
 
 6 "Sal.,'' 30; "Roht.," 197, 198; Pollock and Maitland, II, 535; Pertile, V, 
 615; Glasson, VI, 668; Dareau, "Tr. des Injures," ed. 1785. 
 
 6 Glasson, III, 554; VI, 658. 
 
 ' Pollock and Maitland, II, 542; Pertile, V, 434. — See "Manuels de Dr. 
 Canon" (Lancelot, Hericourt, etc.). — Beaumanoir, c. 11, etc. — Kahn, "Le 
 D^lit et la Peine en Dr. Canon," 1898. 
 
 8 "Capit.," 793, c. 34 (concubine). 
 
 9 Glasson, VI, 693; "B. Ch.," 1, III, 539; Bouthars, "Cout. d'Amiens," 
 p. 102; Cattier, p. 96. 
 
 10 Post, II, 395; Brunner, II, 678; Pollock and Maitland, II, 5.50; Pertile, V, 434 
 (bibl.); Soldan, "Gesch. d. Hexenprocesse," 1843; Pollack, id. 1886; Miihlhrecht, 
 "Wegw.," I, 92; II, 91; Gansen, "Zauberwahn," 1900; "Quellen u. Unters. z. 
 Gesch. d. Hexenwahns," 1901; Reizler, "Gesch. d. Hexenproz." (Bavaria), 
 1894. Details in the well-known books of Bodin, De Lancre, Del Rio, Sprenger 
 ("Malleus Maleficarum"), Boguet, Remy de Nancy, etc. CJ. out of curiosity, 
 the "Demonology" of Walter Scott, the "Sorciere" of Michelet; "Procesde 
 Jeanne d' Arc," by Quicherat. — " Scopelisme," cf. Fournel, " Voisinage," II, 478. 
 
 11 Pollock and Maitland, II, 543; Pertile, V, 440; Glasson, VI, 683. 
 »2 See Glasson, VI, 689. 
 
 470
 
 Topic 3] 
 
 CONTRACTS. FRANKISH PERIOD 
 
 [§362 
 
 Topic 3. Contracts. Frankish Period 
 
 §362. 
 §363. 
 §364. 
 
 365. 
 
 Mere Consent does not bind. 
 
 Real Contracts. 
 
 Formal Contract. "Fides Fac- 
 ta," " Arramitio, " " Wadi- 
 atio." 
 
 Forms and Cases in which the 
 "Fides Facta" was applied. 
 
 § 366. The "Festuca." 
 § 367. The "Wadium." 
 § 368. Security. 
 
 § 369. Consequences of Formalism. 
 § 370. Formation of Contracts by 
 Means of Writings. 
 
 § 362, Mere Consent does not bind. — Several of the old formu- 
 lae formerly led one to believe that the Germans had revealed to 
 the modern world fidelity to a man's given word; ^ this is an error 
 of the same kind as that at one time so widespread according to 
 which political liberty was to be found in the forests and marshes 
 beyond the Rhine. No more in Germany than in ancient Rome 
 were obligations formed " solo consensu." ^ The well-known gibe, 
 "A man of honor has but his word," "Ein Mann, ein Wort," did 
 not at first have the meaning which is given it to-day.^ As far as 
 
 1 Tacitus, "Germ.," 24, with regard to gambhng debts and the slavery to 
 which the loser submitted of his own free will, says "ipsi fidem vocant": cf. 
 "Ann.," 13, 54. — But the cult of "Fides" in Rome did not prevent the Ro- 
 mans from demanding a stipulation in order to render the consent binding, 
 cf. Carpzov, "Defin. for.," 2, 19, 17, 8; Gliick, "Fand.," IV, 282; "Sachsensp.," 
 I, 7; "Schwabensp.," 11. Cf. Eichhorn and Zoepfl, who make distinctions. — 
 Laurent, "Frincipes du Dr. Civ.," I, 24, and XV, 428, makes himself the in- 
 terpreter of the prejudice which was formerly current by saying, "The Custom- 
 ary law ignores the superstition of the formulae; it has freed itself from the 
 Roman subtleties in order to reclothe itself with a character of equity which 
 is more in conformity with the Germanic spirit." As to formalism in the old 
 Germanic law, cf. Heiisler and Zellinger; as to procedure, Brunner, "Ent- 
 stehung d. Schwurgerichte," 1872; "Wort und Form im Altfranz. Prozess," 
 1868 ("Forsch.," p. 260), French trans., "Rev. crit.," 1871. 
 
 2 This rule has been generally accepted since the time of the writings of 
 Sohm, 1876. There are still, however, some divergencies from it. Cf., as to 
 these various divergencies: Siegel, "D. R. G.," 388; Loening and Thevenin, op. 
 cit. Fertile, IV, 466, maintains that consent alone was obligatory. The only 
 old text which he cites which carries with it any proof, "Ratchis," 1, is not 
 decisive. Heusler, I, 70. See also "Liut.," 15, 78. According to this learned 
 man the formalities that were made use of, the presence of the judges or of 
 witnesses, the drawing up of a writing, — in fact, everything could be accounted 
 for by practical reasons whose effect is still felt in the law of our own times; 
 the parties had recourse thereto with the single object of insuring proof of their 
 contract; if these formalities or conditions were lacking the contract ran the 
 risk, not of being annulled, but of not being proved: "Bai.," 15, 12: " chartae 
 aut testes ut postea non sit contentio." These reasons had their influence over 
 the past, we admit; but the part played by them is secondary in the very old 
 law; they are powerless to explain the essential characteristics of the system 
 of contracts. 
 
 ' Chaiscmartin, p. 252. — Heiider, II, 227: observe the remarkable num- 
 ber of precautions taken in the old deeds to prevent the violation of 
 
 471
 
 § 3G2] OBLIGATIONS [Chap. Ill 
 
 primitive times are concerned, the only formula which is applicable 
 is the following: "To promise and to keep that promise are two 
 different things." ^ And such is, even still, only too often the ethics 
 of the man of the people; a verbal engagement has little weight in 
 his eyes, he does not show any very great scruple as regards vio- 
 lating it when he knows that there are no means of holding him 
 to it; he only feels himself bound by the obligation of an oath, by 
 the giving of a pledge, or by the intervention of a notary. Let us 
 carry back this state of mind into the past and generalize it, and 
 then we shall be able to understand the old theory of contracts. 
 The majority of transactions took place in ready money. In those 
 cases, which were at first exceptional and then became more and 
 more numerous, in which contracts did not call for immediate 
 performance, the obligation had to be supported, in order to be 
 valid, by a material element or a formal element; in other words, 
 there were two sorts of contracts, — real contracts and formal 
 contracts.^ The former are only an image of the transaction for 
 cash, an imitation of the exchange. As to the others, they have 
 been likened to the Roman stipulation, but with the difference 
 that the latter, under this classical form, was reduced to the pro- 
 nouncing of the "verba," to the interrogation and the reply, 
 whereas they admitted of the gesture and the word at one and the 
 same time ("Hand und Mund"); the will of the parties is shown 
 to the eye and the ear, in conformity with the rough habits of that 
 time. The old Germanic law is thus formalistic in the theory of 
 contracts as well as in that of the transfer of ownership.^ It is also 
 formalistic in procedure, which is only the putting in motion of 
 real rights and obligations; until the thirteenth century we see 
 the application of the maxim, "Qui cadit a syllaba cadit a tota 
 causa"; more than this, a mistake in a single letter can produce 
 this effect; if we are to believe Bracton, who was here improving 
 upon the strictness of the old law of the Quirites, the simple fact 
 of incorrectly writing one's name in a writ, — for example, adding 
 
 one's given word; to what end, if one could have counted on the "deutsche 
 Mamies wort"? 
 
 1 Loysel, 660; Bugado, "Prov.," p. 16. This was also said of the Normans. 
 Cf. formulae and symbols used in children's games: "Melusine," 1, 29 et 
 seq. 
 
 * A distinction brought out first of all by R. Sohm, "Zf. Privatr.," 1874, 
 246; "Recht der Ehescht.," 1876, p. 24. Cf. Heusler, II, 228. To the contrary, 
 Loening and Thevenin, op. oil. Cf. views held by Kovalewsky, p. 110, on the 
 Russian " Pravda." 
 
 3 Amira, "Recht," p. 136; Schroeder, p. 59. Saxon customs: "curvatis 
 digitis." 
 
 472
 
 Topic 3] CONTRACTS. FR.\NKISH PERIOD [§ 362 
 
 an "h" (Bracthon), would carry with it the loss of the action.^ 
 They never went to this extreme as far as contracts were con- 
 cerned.^ But it is none the less interesting to observe therein the 
 action of this tendency, whose effects are noticeable in every 
 branch of the law, and whose strength increases and decreases ac- 
 cording to its surroundings and the hindrances offered to it. It 
 relates, as we have said, to the habits of mind and the importance 
 which juridical acts had in former times, because entire families, 
 and not individuals, found themselves bound thereby.^ 
 
 This explanation, which is due to R. Sohm (1876), has been cor- 
 rected and perfected in these last few years.^ It has been pointed 
 out that the category of real contracts was a rather later creation ; 
 the obligations arising from this category of acts were at first 
 nothing but obligations "ex delicto," because in the failure to re- 
 store the object which was lent or the object which was deposited 
 there was seen an offense. In the case of formal contracts, which 
 would be more ancient ones, there has been an attempt to account 
 for their formation by means of a system wherein conjecture plays 
 a rather important part, but which has the merit of connecting the 
 contractual obligation with the obligation "ex delicto" and of 
 giving some reason for the importance of the old practices of the 
 pledge and the giving of surety in the formation of contracts. The 
 idea that the old Germanic law only knew transactions in cash is 
 started with. As to a contract giving rise to an obligation in the 
 future, no trace is presented of it, and this is easily understood, 
 for the public powers were not invested with the necessary au- 
 thority to compel the carrying out of engagements entered into by 
 individuals. The first obligation "ex contractu" was that of pay- 
 
 1 Bracton, fo. 1886. This excess of formalism is especially to be observed 
 in the Anglo-Norman procedure. 
 
 2 According to Heusler, I, 69, formalism and symbolism were consciously 
 created by the priestly class with the object of giving the people a higher idea 
 of the law as well as of religion. At any rate, symbols and formalities harmon- 
 ized with the popular in.stinct and with the customs; nobody saw an annoyance 
 in them, as one is tempted to believe to-day. 
 
 ' Kovalewsky, pp. 96, 108, clearly brings out the influence of the family com- 
 munity over the law of contracts. In the last analysis the father, in his position 
 as head of the family, is the only one who has a right to make agreements. Cf. 
 p. 117 (law of Ireland: The obligation which is not ratified by the relatives is 
 not binding). 
 
 6 On this point see: Heiisler, I, 79, 85; II, 228, 250; Amira, "O. R.," I, 22; 
 II, 45; "Recht," 131; Puntschart, "Schuldvertrag," p. 73. — Cf. Brunner, 
 "D. R. G.," § 102; "Grundz." Inc. cit.; Siegd, " Versprechcn," 1873. — ylmra 
 and PunUchart (p. 114) contrast the debt with the responsibility: he who is 
 responsible for a debt is not always a debtor; he who is a debtor is not always 
 held responsible. 
 
 473
 
 § 362] OBLIGATIONS [Chap. Ill 
 
 ing the composition due by reason of an offense; the man who had 
 been judged guilty had not ahvays at his disposal, in the midst of 
 the "mallus," the necessary amount to pay the thing oflF entirely; 
 he had to go into his house, gather together his resources, and even 
 have recourse to his relatives. He was allowed to gain time upon 
 condition of furnishing his creditor with a pledge or a hostage 
 (which amounts to the same thing, for the hostage is only a living 
 pledge). It was really rather paying the creditor than entering 
 into an obligation.^ Thus, having in his possession a thing or a 
 person over which he had a true right of ownership, the creditor 
 ran scarcely any risk; if he were not paid when the payment fell 
 due, he was free to satisfy his vengeance upon the hostage that had 
 been placed in his hands. The debtor would have been dishon- 
 ored if he had not made every effort to set free the relative or the 
 friend who was held in the house of the creditor on his behalf. 
 Also, very often the pledge was of such a nature that it was made 
 a point of honor to redeem it (a ring, etc.). In this way the con- 
 ception of the binding contract was arrived at, and also that of the 
 contractual obligation, which differed from the primitive obli- 
 gation "ex delicto," which latter was carried out by means of 
 vengeance or composition. The real pledge becomes no longer 
 indispensable, and people are content with an apparent pledge on 
 the day when public power can be counted upon to bring about 
 the carrying out of the promise. The hostage degenerates into a 
 surety and becomes less necessary; the debtor serves as his own 
 surety; if he does not carry out the obligation he must give his 
 body to the creditor as a hostage, and his property as a pledge. 
 The judicial contract,^ the only one which was known at first, is 
 propagated and developed as a consequence of the arbitral char- 
 acter of the old jurisdictions; it depended upon the parties whether 
 they should submit their differences to the judges, accept their 
 sentences, and carry out the measures which they might prescribe. 
 Hence the part played by procedure was essential only in the 
 case of contracts of this nature. And on the same type, and with 
 the same force and the same effects, extrajudicial contracts entered 
 
 1 "Roth.," 346; "Burg.," 19, 5; 107, 7. As a general rule, one had to pro- 
 vide a surety, with a fictitious pledge, rather than a real pledge, for he who was 
 sufficiently wealthy to furnish a pledge equivalent to the object due would have 
 found it simpler to pay his debt. 
 
 2 Brunner, II, 340, 366: existence at a very early date of an extrajudicial 
 contract intended to begin the proceedings, "Streitgeding." Cf. "vadimo- 
 nium" at Rome: Wodon, p. 58; "Cap.," 818-19, 15 (I, 284); "Cartse Sen.," 
 10; "Form. Tur.," 6. 
 
 474
 
 Topic 3] CONTRACTS. FRANKISH PERIOD [§ 363 
 
 more and more into common usage. The formalism of the " wadi- 
 atio," the frequency of pledges and guaranties, are the persistent 
 survivals of this primitive system. The word "engagement" it- 
 self, in the sense of an obligation, has no other origin. 
 
 § 3G3. Real Contracts. — The typical one of these contracts is 
 lending; an object, "res," is furnished, "praestita," by one person 
 to another; the "accipiens" is held bound to restore the thing 
 which has been received, and one can say: "re contrahitur obli- 
 gatio." ^ But the fact of not restoring is an offense which gives 
 rise to the "faida," or to the payment of a composition. The 
 same idea is applied to the deposit, which the barbarian language 
 does not distinguish from the lending of something to be used or 
 the lending of something to be consumed; it is still applied to the 
 granting of lands by way of benefice or tenure at will ("com- 
 mendatio").^ The bringing together of facts which are as dif- 
 ferent as these is understood without difficulty, on the theory 
 which we are setting forth; in all these cases the offense is 
 the same; it consists in withholding the property of another.^ 
 As a very natural consequence of this idea, the "accipiens" will 
 only restore that which he has received;^ he will give back noth- 
 ing more. The loan for interest appears in such a system like 
 something abnormal; except, however, in one case, i. e. where 
 it relates to the domestic animal; the increase of a flock is a 
 natural kind of interest, whose restitution is imposed in the 
 same way as is that of the flock itself.^ As to date of maturity, 
 
 ' "Sal.," 52; "Rib.," 54; "Bai.," 1; "Wis.," 10, 1; 13, 14; "Roth.," 227; 
 "Liut.," 137. CJ. Kovalewsky, p. 129: loan in grain, in domestic animals. 
 
 2 Kovalewsky, p. 130 (Swedish law). Cf. Roman tenure at will. 
 
 ' "Qui negligit censum perdat agrum"; there is no question of compelling 
 the "accipiens" to pay the rent. He is accused of possessing "malo ordine," 
 Heusler, I, 395. He is treated rather like a thief. — Cf. the Roman expression, 
 "xs alienum." 
 
 ■• The natural composition in a case of this sort would consist in giving 
 back the thing which had been lent; being allowed to restore something else 
 would be a favor to the debtor. With the "ex delicto " obligation it was under- 
 stood that the borrower should be held responsible for accidents. Cf. the 
 Swedish maxim, "That which is borrowed cannot be destroyed, either by fire 
 or by water." But this severity was quickly departed from: cf. Kovalewsky, 
 p. 1.33, 141. Debtor's oath of innocence: Heusler, II, 262. The distinction be- 
 tween fault and accident was introduced first of all for special cases (the 
 natural death of an animal, robbery by an armed man, etc.); in the end the 
 theories of the Roman law on fraud, fault, and accident came to be borrowed: 
 "Roth.," 1.38, 1.52, 178 ("exceptio incvitavele causa"); "Wis.," 55, 1 et scq.; 
 "Bai.," 15; "Liut.," 131; "Sachsen.sp.," 3, 5, 3 et seq.; 4, 42, 18; "Schwab- 
 ensp.," 185, 212. 
 
 * Cf. the Roman law. The "L. Sal.," 52, docs not speak of interest. Kova- 
 lewsky, pp. 133, 130 el seq., points out that the sj'stem of interest came into exist- 
 ence as a consequence of the lending of animals. From thence arose the 
 
 475
 
 § 3G3] OBLIGATIONS [Chap. Ill 
 
 they gave little concern to that. It arrives when it pleases the 
 lender to reclaim his property.^ In a similar case the Salic Law, 
 under title of "De rem pristita," provides against the recalci- 
 trant debtor a procedure tending to inflict upon him pecuniary 
 penalties; his resistance is finally overcome either by means of 
 a private distraint or a judicial distraint upon his movables, as 
 in the case of "fides facta." ^ 
 
 Moreover, if the conception of the real contract did not appear 
 at all at first, it was substituted for that of the offense by the time 
 of the barbarian period. The example of the Roman laws, the 
 necessity of taking into account the will of the parties, economic 
 changes, — everything contributed towards this result; but this 
 law, which was of the second stage, had difficulty in freeing 
 itself from the primitive rules.^ 
 
 Sale took place most of the time for cash; it degenerated into 
 barter, and, consequently, there was no reason to ask if it were a 
 contract by consent or a real contract; an obligation in warranty 
 might result therefrom, but one which was rather of a delictual 
 nature.* When immediate performance is not possible on both 
 sides, and only one of the parties performs, certain texts say 
 that sale has only just begun.^ It seems that they went further 
 
 following calculations among the Ossetes : he who lends a cow has a right at the 
 end of the year to a cow and a calf; at the end of two years, to two cows and 
 one calf (for the first calf may have turned out to be a heifer) and so on. On 
 this basis the amount of interest increases very rapidly, the capital is doubled 
 in two years. Also the question of debts among old societies becomes an ex- 
 tremely serious one. Cf. the Celts: Ccesar, "De B. G.," VI, 15; Romans, 
 Greeks, etc. 
 
 1 The Ossetes have been known to keep an object which had been lent them 
 for 64 years: Kovalewsky, p. 139. There is no prescription in their law. Time 
 does not wipe out injuries. 
 
 2 "Sal.," 52: following three summonses (with "solem collocari") made 
 by the creditor at intervals of seven days, and each one carrying with it in 
 case it be disregarded a fine of 3 "sol.," the debtor who will neither restore the 
 thing nor " fidem facere reddendi " is condemned to pay 15 " sol." over and above 
 the amount of his debt. Cf. "Sal.," 45, 2 and 50, 2; 56, 1 (putting outside of 
 the law). On this text, cf. Geffcken, "L. Sal.," p. 202 (bibl.); Sohm, "Proced. 
 de la L. Sal.," French trans., p. 34; Wodon, p. 43. According to Geffcken, loc. 
 cit., the expression, "culpabilis judicetur," shows us that the law intervened; 
 after the sentence of condemnation had been pronounced there was obviously 
 no further use for the procedure of execution, that is to say, for distraint: 
 Heusler, II, 234 (discussion and bibl.); Keure de Saffeldre (in Warnkoenig, 
 "Flandr. Staats. u. Rechtsg.," Ill, p. 43). Cf. Immerwahr, "Kundigung," 1896. 
 
 3 Thevenm, see "Textes," "Pret," "Depot." Heusler, II, 247, maintains 
 that the "mutuum" is the only one which has become a real contract; the idea 
 of a tort has persisted in the case of the deposit, the pledge, and lending; and 
 sale has constituted a separate contract (earnest money). 
 
 4 "Sal.," 37, 47; Cf. at Rome the action "auctoritatis" : Girard, "N. R. H.," 
 1882-4. 
 
 6 Beyer, "Mittelrh., U. B.," no. 6 (in 636); " vendere ceperam." The sale is 
 
 476
 
 Topic 3] CONTRACTS. FRANKISH PERIOD [§ 364 
 
 and saw in unilateral performance, whether total or even partial/ 
 the source of an obligation; the vendor who had delivered the thing 
 sold could demand the price, and, conversely, it was necessary that 
 the buyer should have paid the price befote he could demand de- 
 livery of the object, A part performance, or even an accessory 
 performance, — for example, earnest money, — was likened to an 
 absolute taking.^ An analogous evolution took place in the case 
 of a contract which is scarcely related to sale, that is to say, 
 betrothal.^ Another analogy is to be found in the Lombard gift by 
 means of "Launegild," which is a pretended sale.^ Thus sale at one 
 time became a veritable real contract, before regaining the form, in 
 which it depended upon consent, of the classical Roman law.^ 
 
 § 364. Formal Contract.^ "Fides Facta," "Arramitio," "Wadia- 
 tio." — The Salic Law, in t. 50, is concerned with this under the 
 name of "fides facta"; it is the "fealty" or "sworn faith" of the 
 feudal period.^ Elsewhere it is qualified as "arramitio"^ and as 
 
 made for cash Schroeder, p. 294 (contra: Sohm, op. cit.). Id. in "Rib.," 59, 
 GO. We find in the formulae and deeds that the statement of the payment is 
 insisted upon: Thevenin, "Textes," Table; Roziere, "Form.," I (sales); Par- 
 dessus, "Dipl.," II, 393, 460, 805, etc. Exchange: Pardessus, ibid., II, 440; 
 Loersch and Schr., 2, no. 22. 
 
 1 "Wis.," 5, 4, 5 ("pars precii"); 5, 4, 3; "Bai.," 16, 2. Cf. "Burg.," 52, 
 3; 107, 8; "Roth.," 215. However, the payment of the whole price might be 
 necessary in order to obtain the delivery of the thing sold: Sohm, "Eheschl.," 
 p. 26, n. 9. Schroeder, p. 294, departs from this idea and denies that during 
 the barbarian period sale had become a real contract. 
 
 2 Discussion as to the nature of earnest money infra. Is it a reduction of 
 the contractual prestation, a payment on account, or a symbol giving the legal 
 force to consent? "Wis.," 5, 4, 4; "Bai.," 16, 10; Papieii, S5. Cf. Dig., 18, 1,35. 
 
 3 "Wis.," 3, 1, 3; Papien, 27; "Cod. Just.," 5, 1. 
 
 * Cf. post, "Gifts." Pappenheim, "Launegild und Garethinx," 1882 
 ("Unters.," by Gierke); Val de Lievre, "Z. S. S., G. A.," 1883, 15; Schroeder, 
 p. 295; Heusler, I, 84. 
 
 ^ Contra, Heusler, II, 247, according to whom sale had become an "arrhal" 
 contract, or one concluded by a special means, — namely, the giving of earnest 
 money ("arrhes"), which was distinct from both the "res and the "wadiatio." 
 Cf. Amira, "O. R.," II, 342. 
 
 ^ This expression has a double meaning: (a) a formal contract, that is to 
 say, one entered into by means of certain formalities; (b) a valid deed, without 
 any settled consideration and merely valid because of the fact that the formal- 
 ities had been carried out (for example, the stipulation at Rome) : Kovalewsky, 
 p. 110. Thevenin, "N. R. H.," 1880, 77 et seq., denies the existence of the formal 
 contract and believes that only real contracts existed in the old times. See 
 especially Esmein and Heusler, op. cit. The latter interprets the passage from 
 Tacitus, "Germ.," 24; cf. II, 234, 7. 
 
 ^ Cf. post, "Oath." See the German, "Triuwa," meaning "fides" ("treva," 
 "treuga ), "Treugelobniss" ("promissio fidei") or "Wctte," designating the 
 "fides facta," the old "wadiatio." In the "Sachsensp.," I, 7, "loven" 
 would mean to contract the "fides facta," and consequently this passage 
 would not make any allusion to the new principle of the formation of contracts 
 "solo consensu." Post, "Feudal Period"; Heusler, 1, 67. 
 
 8 "Adramire," "afframire," etc., which means to strengthen, to guarantee, 
 
 477
 
 § 3G4] OBLIGATIONS [Chap. Ill 
 
 " wadiatio."^ It is by this means that the old law progressed from 
 cash dealings in order often to substitute for them transactions on 
 credit and for a term. The "fides facta" consisted in a unilateral 
 promise whose performance was assured by means of a special pro- 
 cedure,^ which is thus described in Salic Law. Should the debtor 
 refuse to pay, he shall be liable to a fine of fifteen sous; if he persists 
 in his refusal, the creditor carries the matter before the "mallus" 
 and there calls upon the "thunginus" to pronounce the execu- 
 tory formula against him, "qui fidem fecit et debitum debet"; at 
 the same time he makes known the object which is due him. Thus 
 summoned, the "thunginus," without any examination, without 
 any discussion,^ pronounces the compulsion, — " nexthe canti- 
 
 to promise (for example, to furnish a proof or an oath). C/. the Gothic 
 "hramjan affigere"; Schroeder likens it to "stipulam affigere," to throw the 
 "festuca" into the clothing. TMvenin wrongly translates "adramire" by 
 drawing to oneself, invoking (a proof), "N. R. H.," 1879, 331: Wodon, p. 53; 
 Esmein, op. cit.; "Sal.," 50, 56, 57, 2; "Ed. Chilp.," 7; "Rib.,^' 30, 65, 58, 21; 
 67, 2; "Alam.," 36, 3; "Capit.," 809, 14; 818-819, 15; D. Vaissette, no. 5; " L. 
 Pap. Kar.," 28. The literary documents of the feudal Middle Ages and the 
 legal texts of the thirteenth century use the word "arramir" with the same 
 meanings: Godefroy, "Diet.," see Renart, 14515; Chevalier de la Charrette, 
 p. 731. Battle, "arramie," meaning duel pledged: "Ass. de J^rus.," ed. B., 
 Table, see "Duel," "Bataille;" Beaumanoir, 39, 19 and 74; P. de Fontaines, 
 22, 105, 25; "Et. de St. Louis," II, 26; "Ord. des Maiours," "N. R. H.," 1878, 
 pp. 220,214; Ragueau,see DuCange, "Z.S. 8.," 18S2; "G.A.,"228; Hermann, 
 " Mobiliarvindic," p. vi. 
 
 1 "Form. Merkel," 39; TMvenin, no. 114; Lindenhr., 19; Bignon, 27; 
 "Bai.," 2, 14, etc.; Wodon, p. 51. Cf., the German "Wette," which is a 
 pledge furnished by the debtor (stake); "pfant," a pledge distrained upon, 
 or taken by the creditor; Brunner, II, 445. The hostage appears as a pledge 
 in the following expression: "liber qui se loco wadii in altarius potestatem 
 commiserit": "Cap." 803, c. 8 (I, 114). 
 
 2 cy. as to the Formal Act, the theory of R. Sohm, "Proced. de la L. Sal.," 
 Fr. trans., 1873. According to the illustrious German scholar, this act would 
 be halfway between the acts of law and the judicial procedure; it might be 
 qualified as a "Selbsthlilfe," which had been made regular. In our tirne 
 public authority alone can administer the right of rendering justice; this 
 was not so in the old law, where the mere individual had a share of this right; 
 he was recognized as having a power of coercion by the use of the formal 
 act (a verbal declaration accompanied by certain formalities) ; disobedience 
 to the injunction contained therein meant the payment of a fine. Sohm 
 perhaps exaggerates the importance of the formal act, at least in the case 
 of the Salic Law, for, as Geffcken points out, in Titles 50, 52,_ where Sohm 
 only sees an extrajudicial procedure, the words "culpabihs judicetur" imply 
 the intervention of the "mallus," or a judicial sentence. Cf. the procedure 
 against the "homo migrans." Thus judicial procedure would not have been 
 restricted in the matter of offenses, as Sohm has seemed to think. Whatever 
 may be the fact on this point, there is no doubt that the "Selbsthlilfe" and 
 formalism for a long time played a very important part in procedure (for 
 example, adjournment, part taken by the parties', calling upon judges to 
 judge, etc.): Brunner, "Grundz.," § 9; A^. Tamassia, "Arch. Giur.," XI, 2 
 (1903), "Fidem facere." On the criticisms of Thevenin and Behrend, cf. 
 "Z. S. S.," 1882, "G. A.," 228. 
 
 ' There is no room here for a procedure based upon the hearing of both 
 
 478
 
 Topic 3] CONTRACTS. FRANKISH PERIOD [§ 364 
 
 chio/ ego illo in hoc quod lex Salega ait." This permits the cred- 
 itor to proceed with the execution; he forbids the debtor to pay 
 anything to anybody or to give any pledge of payment before he 
 shall have exonerated himself with regard to the creditor: "The 
 possessions of the debtor are under attachment in his hands and 
 cannot be moved until the day when he shall have paid." Fol- 
 lowing this, three times, from week to week ("per tres nondenas"), 
 he goes to the house of the debtor and summons him to perform 
 the obligation, waiting for this to take place until the setting of 
 the sun ("solem ei collocet"). Each summons which remains 
 without result means the payment of a fine, whose amount in- 
 creases the principal of the debt. By this indirect means of com- 
 pulsion the carrying out of the "fides facta" would be assured 
 in the majority of instances. If, however, the debtor defies an 
 accumulation of fines, the creditor has two means of putting an 
 end to his resistance: 1st, the first one consists in himself dis- 
 training upon the movables of the debtor; ^ 2d, the other, in 
 causing them to be distrained upon by the "grafio" of the locality 
 assisted by seven "rachimbourgs." ^ He can choose between 
 private distraint and judicial distraint; but undoubtedly this 
 was not so in the ancient Salic Law; private distraint was the only 
 way which was open to him; he proceeded with it at his own risk 
 
 parties because of the formalities of the "fides facta," according to the opinion 
 which is very widespread; or because there has aheady been a judgment, as 
 has already been pointed out. — The judgment condemns one man to pay 
 or to give a pledge:' Rozihre, "Form.," nos. 463, 467, 468. Heusler, II, 232 
 n. 5 (bibl. on this disputed point), also admits that from the barbarian period 
 on, the sentence had executory force. 
 
 1 "Nexti canthichus" in Ms. No. 1, ed. Hessels, is translated by "ad- 
 stringas" in the "L. Emendata": Brunner, "D. R. G.," II, 447. Etymology: 
 Kern, § 138. 
 
 2 " L. Sal. Capit. extravag.," 73, ed. Hessels ("de pignoribus") : he who carries 
 out the " pignoratio sine judice" before the "nexti canthichio" loses his claim; if 
 the " pignoratio " is not well founded he incurs a fine. On this text cf. Geffcken, 
 p. 24.'), bibl.). One must conclude from this that the creditor after the "nexti 
 canthichio" "may, if he acts 'bene,' proceed in person, 'sine judice,' with the 
 distraint upon goods of his debtor." C/., however, Schroeder, p. 289. 
 
 2 Controversy on the point of knowing whether the § 3 of Title 50, of the 
 Salic Law, is a continuation of § 2, or whether it provides for a distinct supposi- 
 tion; from the time of Siegel,^ "Gesch. d. deutsch. Gerichtsverf.," 1857, § 5, 
 this last opinion is the most widespread: Wodon, p. 23 el seq.; Geffcken, p. 196. 
 C/. post, "Execution." — The promissor who does not carry out his promise 
 on the day appointed is considered as "jectivus," and against him one can 
 carry out the distraint upon movables. The word "jectivus" (cf. "jectare") 
 is perhaps to be explained by the throwing of the "festuca"; the man had 
 promised "per festucam"; perhaps in the same way it is considered that he 
 failed to carry out his promise "per festucam": Brunner, p. 368; "Form. 
 Marc," I, 37; "Tur.," 33 and 6; "Cart. Senon.," 10, 26; "Form. Sen. 
 Rec," 1; Wodon, p. 38. 
 
 479
 
 § 364] OBLIGATIONS [Chap. Ill 
 
 and peril, for, should it be irregular, he lost his debt and was him- 
 self subject to a fine. It is very probable that distraining by the 
 "grafio" and the " rachimbourgs " was only introduced into the 
 Salic Law by means of an addition to the early text.^ 
 
 One asks oneself how it is that the "fides facta" allows of the 
 employment of a procedure as forceful as this. According to some, 
 this would be an intrinsic effect, a special virtue, of the formal act; 
 from the moment when the parties had conformed to the custom, 
 the creditor found himself, as it were, armed with an executory 
 claim; he was free to act against the debtor, who had, to a certain 
 extent, condemned himself beforehand; the more or less absolute 
 " Selbsthiilf e " revested as of right. According to others, the effi- 
 caciousness of the formal contract would depend upon whether 
 it were originally made to rest upon a " judicatum"; it is clear that 
 one could not again question a transaction which had been ad- 
 judged; it was natural to proceed at once with execution. In 
 time the formal contract would have become detached from its 
 judicial origin, to be applied even in the absence of any order of 
 a court. One would be constrained to accept this last opinion if 
 it is true that the first obligatory contract was the pact based upon 
 the composition for an offense fixed by law. 
 
 § 365. Forms and Cases in which the "Fides Facta" was applied. 
 — The Salic Law teaches us how the "fides facta" was carried out, 
 but it does not tell us how this contract was closed nor in which 
 cases it took place. The vague terms of Title 50 might lead one 
 to suppose that the judicial "fides facta" and the extrajudicial 
 "fides facta" are there being considered at one and the same 
 time; they can either one of them be understood from these forms.^ 
 Elsewhere the judicial "fides facta" is dealt with, and everything 
 leads one to believe that it was the first one made use of,^ ad- 
 mitting that it was the typical form. It consisted in the promise 
 to pay the composition incurred, that is to say, to carry out the 
 judgment. The procedure of execution described in Title 50 of 
 the Salic Law, "De fides facta," thus rested upon a "judicatum," 
 
 1 Wodon, p. 31 et seq. (various interpretations); Brunner, II, 447, 448, 454 
 (part plaved by the "grafio"). Cf. Heusler, II, 235. Roman "Nexum," 
 Girard, pr477; "Z. S. S.," 1901. 
 
 ^ Outline of the different views in Wodon, p. 40; Behrend, "Festg. Heffter," 
 p. 81. 
 
 3 Tacitus, "Germ.," 24, foresees, however, the gambling debt, — that is 
 to say, an extrajudicial agreement; the stake is only a pledge. — As to the 
 Swedish and Russian law, cf. Kovalewsky, p. 107; Amira, "O. R.," I, 278 
 (transfer of ownership). According to Kovalewsky, the Swedish "fastars" 
 did not represent the popular assembly, but the fanaily community. 
 
 480
 
 Topic 3] CONTRACTS. FRANKISH PERIOD [§ 365 
 
 and this is what explains why every resistance was forbidden the 
 debtor; he must pay up at once as soon as he has been judged 
 guilty; he had been granted a delay out of mercy; perhaps this 
 was the judicial delay of forty days; the day having come, there 
 was no more discussion; he was obliged to submit to the distraint. 
 The "fides facta" was also very frequently a promise to furnish 
 proof, to appear in court, or to cause some one else to appear 
 there.-' These judicial contracts abound in the old procedure; 
 they were the means by which one succeeded in getting execution 
 of the arbitral judgments of the judges of early times. The ex- 
 trajudicial "fides facta" no doubt followed closely these engage- 
 ments made in court (if we admit that it is not so old as they were) - 
 and, finally, the procedure laid down by the Salic Law was applied 
 in every case. The "fides facta" thus became a general, way of 
 binding oneself which was applicable to every agreement, just as 
 the Roman stipulation was, after it too had been, originally, what 
 one might call a contract of composition,^ 
 
 As to the form of the "fides facta," we learn by means of the 
 law of the Ripuarians that it was concluded "cum festuca";^ 
 other documents confirm this indication or show it to us being 
 
 1 CJ. "Sal.,"t. 56, 52, 57, 2; 58; "Edit. Chilp.," 7; "Rib.," 58, 5; "Sal.," 
 36, 1; PardessxiH, "Dipl.," no. 431, 434; "Form. Sen. Rec," 2. Other 
 examples in Wodon, p. 50. Frequency of these contracts during the feudal 
 period in the South: "firmare," that is to say, to bind oneself with surety, to 
 recognize the competence of the court ("posse curiae"), to pay the fine ("fir- 
 mare jus, directum"; "fermar per far ley"): Franken, p. 207; post, "Giving 
 Surety." 
 
 2 Fertile, IV, 467, maintains that the most important contracts were en- 
 tered into at law (from thence came the names "thinx " " geding," which were 
 given at one and the same time to agreements and to public assemblies): 
 "Roth.," 172, 178, 179 ("Fabula"), etc.; Gnmm, "R. A.," 600. Post, "Gifts." 
 For less important deeds they would have been contented with witnesses. 
 
 ' The Edict of " Ratchis," 5, contrasts with the "wadiatio," which is to be 
 carried out at once, the "stantia" ("convenientia"), which is "stabilis," but 
 the immediate execution of which one cannot demand; this latter assumes a 
 judicial discussion; the real contracts, such as sales and the penal clauses in 
 a "carta," may be looked upon as "stantia": Heusler, II, 239; Fertile, IV, 
 471. 
 
 ■• "Rib.," 30: "ejus prajsentiam cum fistuca fidcm faciat " (the master binds 
 himself to bring his slave before the court within 14 days); 71: "de quacum- 
 que causa fistuca intercesserit, lacina interdicatur sed cum sacramento se 
 edoniare studeat " ; one of the consequences of the employment of the " festuca " 
 is to prohibit every discussion based upon a hearing of both parties; the de- 
 fendant is held bound to justify himself by oath. Cf. Wodon, p. 47 (bibl.). — 
 In Title 66 they merely say "fid em facere" without adding "per festucam"; 
 these words should be understood. Loening accounts for the silence of the 
 texts by saying that neither the " festuca " nor the " wadium " were required 
 in extrajudicial deeds. But this distinction is not justified. Cf. Pardessus, 
 "Dipl.," nos. 418,431, 434; "Capit.," I, no. 26, c. 32; "Form. Merkel.", 27; 
 "Sen. Rec," 1, 2, 3 ("per fistucam adchramirc"); TMvenin, "Textes," no. 
 107; "sua festuca jactante ad placitum se afframivit." 
 
 481
 
 § 365] OBLIGATIONS [Chap. Ill 
 
 carried out "per wadium." ^ Here we have two methods which 
 were originally distinct, but which seemed to be equivalent to one 
 another and tended to become confused, which makes it difficult 
 to state their characteristics precisely. 
 
 §366. The "Festuca," which was mostly in use among the 
 Franks, is not the branch of a tree, but a rod, a boar-spear, a sym- 
 bol of the national arm of the Germans; the lance, whose haft was 
 furnished with a short and narrow piece of iron.^ The free man 
 presented himself before the tribunal, that is to say, the popular as- 
 sembly, with his arms, holding a lance in his hand, ready to wield 
 it in order to emphasize his claims. When customs became more 
 civilized, the "festuca" was substituted for it, a judicial weapon 
 without iron, which was analogous to the Roman "vindicta"; and 
 the " festuca " degenerated in its turn into a still more inoffensive 
 object, — a wisp of straw, "calamus stipula." The thromng of 
 the "festuca," whether it were upon the ground or into the bosom 
 
 1 "Form. Marculf.," II, 18; Und., 19; Bignon, 27; Merk., 39; "Bai.," 
 II, 14; "Cham.," 45; "Capit.," I, 50, c. 2; 144, c. 4; TMvenin, no. 167 and 
 Table, see "Wadium." — Fertile, IV, 472: deeds of the twelfth and thirteenth 
 centuries ("wadiam dederunt, baculum porrigentes"). 
 
 ^ Tacitus, "Germ.," 6; "Sal.," 46, 50. Cf. as to this, "Transfer of Owner- 
 ship"; Esmein, p. 36; Wodon, p. 84; see Thevcnin, "Textes," "Capit.," 6, 
 285; "M. G. H., S. S.," IV, 124; "L. L.," IV, 599 ("actores baculos vadi- 
 monii reis restituunt"), etc. See "to break the straw." — Cf. "gaira" 
 among the Lombards; post, "Gift;" Pappenheim, " Launegild und Garethinx," 
 1882. — On the "stipula," cf. Du Cange; "L. Rom. Cur.," 24, 2; Grimm, 
 "R. A.," 187: see "Halm," "Festuca"; Michelet, "Orig.," 127-181. —In the 
 transfer of copyholds they sometimes make use of the rod and sometimes of 
 the straw. — Even a thread of the garment or a hair of the beard is sufficient, 
 — objects always within reach of the parties; whereas in court one ran the 
 risk of not being able to find immediately the wisp of straw or the stick re- 
 quired for the procedure, and this evil chance would at least have the effect of 
 subjecting one to a fine: "Ord. des Maiours," "N. R. H.," 1878, 318. 322; 
 Lacomblet, "Nied. Urk.," 1, 142; "N. R. H.," 1888, 91; Homeyer, "Hausmar- 
 ken," 187; Brunner, II, 519, 354, 366, 369, 444, 435; "Urk.," p. 274; Schupfer, 
 "AUodio," 147. There is some question in certain te.xts (Thevenin, "Textes," 
 see "Festuca"), of a "festuca nodata," a knotted straw {Wodon, p. 137), or, 
 rather, "notata," a stick marked with a sign whereby it could be recognized, 
 or perhaps bearing magic characters, a formula of imprecation. Cf. the 
 magic wand: Michelsin, "Festuca Notata," 1856; Schrneder, p. 292; Heusler, 
 I, 76, who argues in this way from Tacitus, "Germ.," 10 ("surculi notis quibus- 
 dam discreti"), and from the fact that the "festuca" is often a little piece of 
 wood. According to him, these signs or "runes" also served to make the 
 stick individual, to allow of its being recognized, for it was the same "festuca" 
 which ought to serve for. the demanding of execution ("Sal.," 50), and which 
 was given to the surety with the same object, that is to say, with the object 
 of carrying out execution upon the principal debtor. Post, "Suretyship." 
 For "runes," which had become unintelligible, were substituted signs or 
 numbers, perhaps representing the amount of the debt. The wand was 
 broken into two parts, which were brought together, if we are to believe Isidore 
 de Seville, "Orig.," IV, 24, so as to recognize them; in this was seen the proto- 
 type of charter parties. These \news are almost too ingenious to be true, but 
 it is a pity. The king's sceptre, the usher's rod, the ambassador's staff. 
 
 482
 
 Topic 3] CONTRACTS. FRANKISH PERIOD [§ 366 
 
 ("in laisiim") of the one with whom one was negotiating, naturally 
 symbolizes the giving up of a right, — for example, the abandon- 
 ment of a piece of land, and, by extension, the transfer of owner- 
 ship; and, as the weapon represents the right which it serves to 
 urge, it is not astonishing that they should pass from the throwing 
 into the bosom of the grantee to delivering it from hand to hand.^ 
 The pronouncing of appropriate words — in very old times they 
 must have been essential^ — while holding the "fcstuca" in his 
 hand or throwing it, was also a solemn means of entering into an 
 engagement. But here the symbolism is obscure and confused. 
 It is not very difficult to understand how the throwing of the 
 "festuca" might signify the giving up of the right, for example, 
 the right of vengeance; but why should it mean an obligation to do 
 something? Did the man who did this wish to say that by this 
 means he gave himself up without defense to the other party? ^ 
 By handing him the "festuca," "* did he place himself under the 
 other man's power? Was the affirmation made while holding the 
 "festuca" in the hand a sort of pagan oath upon the weapons or 
 the survival of this oath? '^ Or, finally, must one only see in the 
 
 1 Wodon, p. 84; Grimm, "R. A.," 128; "Rib.," 33, 66. 
 
 2 Heusler, I, 71. 
 
 ^ Wodon, p. 121. When the parties put an end to their private warfare 
 they had to disarm, give up all right of vengeance; and to carry this out the 
 throwing of the "festuca" was the most natural of symbols. After this 
 they bound themselves to respect the sentence of the judge to whom they had 
 submitted their differences. These two simultaneous acts were practically 
 inseparable. From this must have come the obhgation "per festucam." 
 Cf. "Z. S. S.," 1882; "G. A.," 228. 
 
 * Th6venin maintains that the "festuca" was always held in the hand or 
 thrown, never handed over. But he seems to us to exaggerate the distinction 
 between the act of throwing the "festuca" into the breast of someone and 
 that of handing it to him directly, which took place, — at least, at a certain 
 period, — in matters of the transfer of ownership and in matters of obligations. 
 Cf. D. Vaissette, "Preuves," no. 109; Brunner, II, 356. An agent "ad litem" 
 is appointed by a declaration, with the "festuca" in one's hand, followed by 
 the throwing of it to the agent; or, again, one places a wand in his hand (a 
 deed of 1025). "Laisowerpire," which means to throw into the breast: cj. 
 Kern in Hessels. Among the Scandinavians the "gaira" or the rod ten- 
 dered by one party is touched by the other party with his weapon or with 
 his hands ("manufirmatio"). — Obviously, a throwing of the "festuca" could 
 be applied only to a case of the renunciation of a right: "Cap.," VI, 285; 
 Esmein, p. 36. The monk renounces the world by laying down the "stipula "; 
 Du Cange, see " Investit.," cites the tale of Garin, " By this stick I make you a 
 present [of the land]." TMvenin, no. 137; "Form. s. Roth.," 143; "IM. G. 11. , 
 S. S.," IV, 124: the "proceres," throwing the "festuca," declared that they 
 would no longer be subject to Charles the Simple. Grimm, "R. A.," 123. 
 
 ^ Such was perhaps the case in the "L. Sal.," 50, 3; the creditor holds the 
 "festuca" and pronounces a formula. Cf. Ccesar, "Do. B. G.," 4, 11; 1, 3; 
 Gregory of Tours, "H. Fr.," 5, 3, "Et. de Gl. Conf.," 68, does not distinguish 
 between the oath and the "fides." The vassal's oath of fidelity; during the 
 feudal period, fealty and homage: Heusler, I, 78; Puntschart, p. 487. 
 
 483
 
 § 366] OBLIGATIONS [Chap. Ill 
 
 "festuca" a pledge "sui generis"? It is made use of as a "wad- 
 ium" during the Prankish period; but it is doubtful if this were 
 its original function. 
 
 § 367. The "Wadium" (or the "wadia" among the Lombards)^ 
 consists in some object, such as a glove,^ which the debtor gives 
 to the creditor. It was made use of in the same way as the " fes- 
 tuca," less often, however, for the transfer of ownership.^ What 
 was the "wadium" originally? Very probably a real pledge; that 
 is to say, an object having a value corresponding to the debt which 
 it guaranteed; if a value greater than that of the amount due, 
 then the interest was the motive which led the debtor to pay in 
 order to withdraw it; a lesser value, but in this case the pledge 
 consisted in an object which had for its owner a value due to asso- 
 ciation, or one which was agreed upon, so that its final giving up 
 must either be very repugnant to him or else pass as not being 
 very honorable.'* The usage of adding a suretyship to the princi- 
 pal of the engagement allowed one to be content with some object 
 in place of a "wadium"; for example, a piece of wood, the "fes- 
 tuca" itself,^ or even to dispense with the "wadium," although 
 
 1 "Wadium," "guadium," etc. (Gothic, "vidan," meaning to bind: see 
 Du Cange, "Roth.," 360 et seq.; "Liut.," 15; "Bai.," 2, 15, 3; 10, 2, 3; 17, 
 2; "Alam.," 36, 2; "Fr. Cham.," 48; Rozihre, "Form.," 465, 511, etc.; "N.R. 
 H.," 1880, 69. The Customs of Milan hken the stipulation to the "guadise 
 datio." 
 
 2 Throwing down the glove, picking up the glove. The pledges of battle 
 in the judicial duel. A prolonged application to this act of the old procedure 
 of the archaic method of forming the obligation: Gaudenzi, "Dig. Ital.," see 
 "Campione d'Armi;" Loysel, 808-819 (bibl.); Patetta, "OrdaUe," 1890 
 (bibl.); Hildebrand, "De Purgatione Vulgari," 1847; Fertile, V, 507; Ducou- 
 dray, "Orig. du Pari.," p. 375; Pfeffer, "Z. f. Rom. Philol.," IX, 29 (formali- 
 ties of the judicial duel according to the heroic songs). 
 
 ^ It takes place "per wadios et andelangos," even among the Franks. 
 
 * Cf. Wodon, p. 99, 143. In his opinion the " wadiatio" is a partial payment, 
 a symbol of the future prestation. He points out the opposition set up by the 
 texts between the "wadium" and the "pignus," the pledge based on an agree- 
 ment and the distraint by one's own authority. "If the 'wadium,'" says he, 
 "had been a real pledge, it would have consisted in movables, and during a 
 period when money was scarce would have been an ordinary payment; now, 
 we assume that the debtor can make no immediate payment." This remark 
 is correct, but there is nothing to prevent our assuming that the "wadium" 
 consists of an object, such as a weapon, or a piece of clothing, of which one is 
 not going to deprive oneself, and which one reserves the right of taking back. 
 If the "wadiatio" had been a part payment, the "wadium" would always 
 have been a piece of money, — at least, at the time when the payment usually 
 took place in money. Furthermore, there are texts, such as the "Cap. add. 
 L. Rib.," c. 3, in which the "wadium" is treated as a real pledge. Cf. Kova- 
 lewsky, p. 110. 
 
 ^ D. Vaissette, III, no. 64 (in 971). Proofs: the defendant gives back the 
 thing which is claimed from him "per guadium suum," i. e., "per festucam de 
 vites" (by the oath) ; "Form, ad Roth.," 232, 362. In the form of the eleventh 
 century "Qualiter vidum salicha spondetur," the "festuca" and the "wadium" 
 
 484
 
 Topic 3] CONTRACTS. FIL^NKISH PERIOD [§ 368 
 
 the rather frequent use of the term " pledge and surety " proves 
 connection between the two kinds of security.^ 
 
 § 368. Security. — The necessity of a security in order to 
 render the agreement binding in the very old law " is not only at- 
 tested by the frequency of real pledges^ and suretyships; ^ it ap- 
 pears from the very procedure of the "wadiatio," that shows the 
 security and the principal engagement united to one another, as 
 the "wadium" given by the debtor to the creditor passes immedi- 
 ately ^ from the hands of the latter into those of the surety.^ The 
 "festuca" is made use of in the same manner. The Edict of Chil- 
 peric, c. 6, bears witness at the same time to the strict necessity 
 of the security and the possibility of avoiding the rule. The man 
 who is accused is held bound to promise that he will submit 
 to the proof of the boiling water; if he finds no one who will vouch 
 for him, — that is to say, who is willing to serve as a surety, — 
 then he must hold the "festuca" in his left hand and present it 
 wdth his right hand to the creditor, thus becoming his own surety ; '' 
 or, perhaps he presents his right hand to the creditor to give his 
 own person as a pledge ("semetipsum in wadio dare").^ This 
 
 are not distinguished: "actores baculos vadimonii reis restituunt": Canciani, 
 II, 476. 
 
 1 "Cout. de Looz," I, 39: the man who is convicted of a crime must either 
 take or give a pledge before the sun sets ; this pledge may consist in a " pfennig " ; 
 but he must also give surety ("Anc. Cout. de Belgique")- 
 
 2 "Bai.," 15, 11; Beaumanoir, 34, 58; Dareste, "Etudes," p. 13, 113. 
 
 ^ From this come the expressions: To pledge and to release ("engager" 
 and "degager"); they say a pledge when they mean an obligation. Cf. pledge 
 of services. Cf. pledges ("gages") of battle. "Wadiate pugnam," one reads 
 in the Lombard formulae. Anglo-Saxon law: "wed" and "borh" (pledge). 
 
 * "Fermansa," a pledge with surety, in the South of France during the 
 feudal period: Franken, "Pfandr.," p. 217; Dii Cange, see "Firmancia"; "Bai.," 
 15, 11; " Ratchis," 5 ("causa quae per wadiafirmatur"). A guarantee is an obli- 
 gation imposed upon the vassal during the feudal period. English formula: 
 "pone per vadium et salvos plegios"; Pollock and Maitland, II, lcS3. 
 
 * Excepting among the Lombards: three days: "Roth.," 360; "Liut.," 15. 
 6 "Sal. Extrav. B.," c. 6, ed. Hessels, p. 421; Gejjcken, p. 284; Brunner, I, 
 
 303; Esmein, p. 35; Wodon, p. 61. Association of the "wadium" and the sure- 
 ties ("fidejusseurs" in "Alam.," 36, 3; "Bai.," App., 4; "Roth.," 360, 366; 
 "Liut.," 36 et seq., 61, etc.; "Fr. Cham.," 16, 48; /''. Turon, 32; Thevenin, no. 
 96; Pardessus, "Dipl.," no. 424. In the Italian sources, suretyship ("fide- 
 jussion") is called "vadimonium" or "guadimonium." 
 
 ' Wodon, p. 141; Gcffcken, p. 271 (bibl.); Schroeder, p. 291. If they had 
 wished to reproduce the symbolism of the suretyship, the debtor should have 
 handed the "festuca" to the creditor with his left hand and have taken it 
 back with his right. If the debtor gives himself "loco wadii," what is the use 
 of holding the "festuca" in his left hand and then offering it with his right 
 hand? It was sufficient if he offered it with the same hand. 
 
 8 "Cap. leg. Rib. add.," c. 3. Cf. other te.xts cited by Wodon, p. 74. The 
 "Cap. de Pari. Saxon.," c. 27, declares that the goods of the man who cannot 
 furnish any surety shall be placed "in forbanno." We have here no doubt 
 milder provisions than the old precepts; formerly the man who could not fur- 
 
 485
 
 § 368] OBLIGATIONS [Chap. Ill 
 
 shows the transition from the secured obligation to the solely 
 personal obligation,^ Already the "fides facta" of the Salic Law 
 only places the creditor and the debtor face to face with each 
 other; there is no question in Title 50 of either pledge or surety; 
 had there been any, undoubtedly some allusion would have been 
 made to it. There must have been introduced into usage at an 
 early time provisions against the debtor himself, — provisions 
 which the death of the hostage or the loss of the pledge might 
 justify. 
 
 § 369. Consequences of Formalism. — Formalism has the ef- 
 fect of compelling the judge and the parties to adhere strictly to 
 words and acts, leaving to one side questions of intent. Or, to 
 speak more exactly, in a law which is formalistic the will has no 
 legal existence except to the extent to which it is expressed by 
 exact words; it is incarnated in its material expression;^ one is 
 bound only by that which one has said. But in return for this one 
 is bound by everything that one has said. Once the word has been 
 spoken, however imprudent, however "nice," it may be, it cannot 
 be recalled. This is the true meaning of the German adage, "Ein 
 Mann, ein Wort," and it is singular that what is only the expres- 
 sion of a rigid formalism should have been taken to be a proof of 
 liberty. Let us liken to this the French gibe, " As bulls are bound 
 by the horns, — thus people do foolish things through their words." ^ 
 He who through inadvertency has promised more than he wanted 
 to, who has made a mistake in his statements, is taken at his 
 word. He cannot go back on what he has said. Mistake, or even 
 fraud, good or bad faith, are things which make no difference. 
 The strict tenor of the act is the only thing which matters. This 
 
 nish any sureties and could not pay immediately fell into the power of the cred- 
 itor, even if he were solvent. — As to the " Selbstbiirgschaf t " or giving surety 
 for oneself, cf. "Cap.," 818, 6 (I, 282); Loersch andSchroeder, no. 180; Gavdenzi, 
 "Atti d. Romagna," 3 et seq., Ill, 25; post, "Suretyship." 
 
 1 Solidarity is a guarantee analogous to suretyship. It is presented quite 
 naturally in the case of a composition due from the fellow perpetrators of an 
 offense; each one of them owes the whole composition, so that if one dies or 
 becomes insolvent the creditor shall not be the loser thereby; but this is the 
 only advantage that he gets ; he only has a right to demand the amount of one 
 single composition ("una res vertitur"), for that is the price of peace. The 
 same result follows in the case where the fellow perpetrators of an offense had 
 bound themselves by contract to pay "una, pariter, in solidum." But this 
 situation was not very precisely provided for in the Barbarian law: "Roth.," 
 12, 138, 263; "Liut.," 107; Heusler, II, 259. 
 
 2 As to the mental attitude and the legal language of the Middle Ages, see 
 the German "Weistumer," the Spanish "fazanas," the proverbs: Ida de 
 Diihringsfeld, "Rue. de Proverbes," 1896; Heusler, I, 65; Giinther, "Recht u. 
 Sprache," 1898. 
 
 3 Loysel, 357. Cf. " Frib. en Br.,". 39. 
 
 486
 
 Topic 3] CONTRACTS. PRANKISH PERIOD [§ 370 
 
 was the result of the use of solemnities ^ or symbols ^ and of for- 
 mulae sanctioned by custom; and as the existence of the former 
 is beyond a doubt, so several indications justify the conjecture that 
 essential words were not unknown to the very old law;^ from the 
 time when the gesture was regulated it would have been a sur- 
 prising thing had speech been free. It goes without saying that 
 they were not very long in seeking release from the early strict- 
 ness. Questions of intent were taken into account as far as con- 
 tracts were concerned, just as they were in the case of offenses. If 
 the barbarian laws do not seem to have taken any account of mis- 
 take, fraud seems already to have been a cause of the nullity of 
 contracts.'* As a consequence, as we shall see, formalism was for- 
 saken for its rival, writing; ^ this began by being nothing more 
 than a luxury and became an annoyance from which it was neces- 
 sary to escape. From this time on, — that is to say, at least, from 
 the thirteenth century, — the Roman influence and that of the 
 canon law led up to the modern theories. 
 
 § 370. Formation of Contracts by Means of Writings. — It is 
 from the Roman practice that the employment of written docu- 
 ments comes, but during the barbarian period this custom did not 
 persist purely and simply; it underwent an alteration, which was 
 all the more natural as it had been prepared for a very long time. 
 At Rome, in the law of the classic period, a writing establishing a 
 contract was a simple means of proof. Thus, when a stipulation 
 had taken place, the promisor found himself bound by virtue of the 
 "solemnitas verborum," of the interrogation and the reply, and 
 not at all by reason of the "cautio" which recited it. But, if the- 
 ory was very firm upon this point, practice gav« more importance 
 to writing. From the time of Paul and Ulpian concessions were 
 
 * Frequently they had begun by being acts of a practical nature; time had 
 consigned them to the curiosities of ceremonial. For example, the act of meas- 
 uring the width of a road with a lance placed across the saddle of a horse is a 
 simple means of ascertaining that the way is free and is sufficient for the passing 
 of a horseman. "A fortiori" the presence of witnesses "ad solemnitatem." 
 
 ' Symbolism, for example, in the placing of persons in the care of some one 
 (the hand in the hand) in delivery, in renunciation by a widow of the property 
 of her husband, and in the placing under a person's power by cutting the hair 
 and the beard. In the thirteenth century this symbolism is in full decline: 
 Decleve, "Curiositos du Formalism dans les Actes et les Contracts" ("Mem. 
 Soc. Sciences Hainaut," 1891); Viollet, p. 602: the Jews of Metz, touching of 
 the garment for the formation of a contract; "Ruth," iv, 7. 
 
 ^ "L. Sal.," 50, 3: "adprehendat fistucam et dicat verbum." Formuht of 
 the Lombard Cartulary, oath. Paul, " Diac," I, 13: "Sanciunt [the Lombards] 
 libertatem per sagittam, immurmurantes patria verba." 
 
 * "Bai.," 15,9; "Roth.," 230. 
 
 ' Heusler, I, 75, n. 7 (investiture "per adscriptionem"). 
 
 487
 
 § 370] OBLIGATIONS [Chap. Ill 
 
 made to it, especially as far as the stipulation was concerned. 
 This fact was the more noteworthy because there was, so to 
 speak, no contract which was not terminated by the clause, 
 "rogavit promisit." The stipulation passed to the stage of a 
 simple statement in writing, i. e. a merely formal recital; if a 
 document declares that the debtor has made a promise, it is 
 implied that the creditor has made a stipulation.^ It is very prob- 
 able, even before the time of Justinian, that the deed drawn up 
 between parties who are present, and which mentions the stipu- 
 lation, could not be attacked under pretext that the "verba" had 
 not really been pronounced. ^ Thus the stipulation tended to be 
 absorbed by the "cautio" upon which it conferred its efficacious- 
 ness.^ The "cartse" of the Prankish period'* resembled Roman 
 deeds; ^ thus one invariably finds in them the final clause, "stipu- 
 latione subnixa." ^ Convinced that the Roman law demanded 
 that contracts should be reduced to writing,^ confusing registra- 
 tion at the "curia" with drawing up in writing,^ distinguishing 
 imperfectly the question of proof from that of the existence of the 
 contract,^ seeing in the "carta" the Roman stipulation, and at- 
 tributing to it the "firmitas inconvulsa" of the latter/° the framers 
 
 1 Paul, 5, 8, 2; Dig., 45, 1; 134, 2. 
 
 2 "Inst. Just.," 3, 19, 12. 
 
 ^ On the subject of this evolution c/., besides Brunner and Stouff, Girard, 
 "Manuel," p. 484; Steuffert, p. 23 (bibl. and discussion). 
 
 * The "notitia, breve" or " memoratorium " serves especially for the pur- 
 pose of finding the witnesses to the deed; for example, the purchaser of a piece 
 of land has a deed drawn up establishing the fact that such and such a man 
 sold it to him. In the "carta" it is the man making the deed who speaks (the 
 vendor promises "ego per hanc cartulam venditionis trado, per hoc vinculum 
 cautionis spondio prestitum redditurum," etc.). 
 
 6 Brunner, p. 131; Esmein, "N. R. H.," 1886, 1. 
 
 ^ Haenel, "L. Rom.," Wis. p. 368 et seq.: "stibulacio omnibus pactis sub- 
 jicienda," Roman "cautiones" in Girard, "Textes," p. 738 et seq. Deeds of 
 the Frankish period: Thevenin, "Textes," p. 261; Roziere, "Form.," n. 47, 
 51, 63; Stouff, p. 285. Observe the clause: "with the Law 'Arcadiana' or with 
 the stipulation of the Law 'Aquilia' which gives to all deeds their power." 
 "Cart, de Redon," p. 260; Roziere, nos. 324, 245; Brunner, pp. 246, 225 ("sub- 
 scriptioni subnexa," a confusion of the stipulation and of the signing); Stouff, 
 p. 273; Pardessus, "B. Ch.," 1840, 432; Zoepfl, "Att. d. deutsch. R.," II, 345; 
 "Z. S. S., G. A.," 1881, 115; 1883, 113; Del Vecchio, "S. Claus. cum Stip. 
 subn.," in the "Studi" offered to Schupfer. — Cf. after the revival of the 
 Roman law: "Ohm," III, 917, 78 (in 1314). Examples in England (Lom- 
 bards), Pollock and Maitland, II, 181. 
 
 ' Roziere, nos. 122, 220. Other examples in Stouff, p. 280. The Church 
 and even the Customs are often found to be connected with the Roman law. 
 Thus practice seeks to justify itself by taking refuge in the high authorities. 
 
 8 Stouff, p. 282; "Cart, de Cluny," 725, etc.; "B. Ch.," 1860, 440. 
 
 9 " Bai.," 15, 12; Sto^iff, p. 284. — Cf. Bracton, f. 100. 
 
 '" "L. Rom. Cur.," 24, 2: "causa sine scripto et sine fidejussore per stipu- 
 1am finire"; Marculfe, II, 10 et seq., "App. Marc," 50 et seq.; Karsten, p. 180. 
 
 488
 
 Topic 3] CONTRACTS. FRANKISH PERIOD [§ 370 
 
 of deeds in the barbarian period thought that it was by means of 
 the writing that the contract was formed.^ One can bind oneself 
 "per cartam"^ just as one can by means of the "festuca" or 
 the "wadium."^ — Further, through Germanic influence it is not 
 only the drawing up of the deed which is taken into consideration, 
 but its final delivery to the creditor. The "traditio cartae" es- 
 tablishes a formal act, all the more readil}' as the writing was far 
 from being looked upon by the barbarians as it might be in our 
 day.^ For the barbarian the writing is something suspicious; in 
 these characters, which are hieroglyphics to him, he is always 
 afraid of finding some trap. We say, "The paper allows every- 
 thing"; thus a German lawyer in opposition to whom a royal 
 diploma was offered in the twelfth century ridiculed those who 
 presented this deed to him by saying to them that the pen of the 
 scribe had the ability to write upon the parchment anything it 
 pleased. The ignorance and distrust which accompanied it must 
 have contributed not a little towards likening the "carta" to the 
 physical symbols which were in use for the transfer of ownership 
 and the formation of contracts. The Romans and the barbarians 
 here unite in a common practice.^ — Guarantees such as suretyship 
 and the pledge are replaced in the charters by penal clauses.^ 
 
 1 "Wis.," 5, 4, 3; "Bai.," 15, 13; Esmein, p. 16. Cf. "Rib.," 37; "L. 
 Rom. Cur.," 2, 29; "Ed. Theod.," 52. — Confusing of the contract and the 
 charter which is called "traditio donatio," etc. (thus differing from the "no- 
 titia traditionis," etc.), wliich is thus known, "By this charter I sell," etc. 
 Rozihre, 368, 372: "spondeo per hoc vinculum cautionis." The charter is often 
 placed in the same rank as the "festuca" or the "wadium," no doubt becau.se 
 it is just as efficacious; delivery is made by the branch or the charter, etc.: 
 Brunner, p. 110; Stouff, p. 278; Roziere, 244; "Cart, de Cluny," nos. 100, 
 822, etc. 
 
 ^ Must we not see contracts "per cartam" in those pacts with the devil 
 signed in the blood of the man who sold him his soul? 
 
 ^ Cf., however, Heusler, I, § 19, II, p. 238 (the "carta" would not always 
 take the place of the "wadium" and would not carry with it executory force). 
 
 ^ Cf. as to the Roman period, Huvelin, "Tablettes Magiques," 1900. 
 
 5 In various places; for example, in England and in the South of Italy, they 
 attached a piece of straw or a knife to the bottom of the deed. 
 
 8 Examples of these clauses in Thevenin, "Table," p. 260; Sjogren, "Con- 
 ventionalstrafe," 1896 (review in "Z. S. S.," 1896, "G. A.," 176; 1897, "R. A.," 
 300); Bluhme, "Bokriiftigungsformeln," Bekker's "Jahrb.," 1859; R. Loening, 
 "Ueber. Ursprung u. Bedeut. d. Strafklauseln," 1875 (reprinted in "Ver- 
 tragsbruch," p. 534); Heusler, II, 238, 241; Sfobbe, "Handb.," § 174; Fertile, 
 IV, 503. They became more scarce in the course of the eleventh century. 
 Beaumanoir, however, devotes his c. 42 to thom. In his time they must have 
 served the purpose of indemnifying the man who was successful for the costs 
 of the suit, for in the lay court the loser did not have to pay the costs (33, 1, 
 and 43, 40), as took place after the Ordinance of January, 1324, "Victus 
 victori" {cf. "Et. de St. Loui.s," I, 93; "Ohm," III, 2, 1068; "Ord.*' of Dec, 
 1254, 29; "Code Hermog.," 5, 3), and as was already customary in the Courts 
 of the Church : Loysel, 859. 
 
 489
 
 § 370] OBLIGATIONS [Chap. Ill 
 
 Already frequent at Rome, the latter assumed in the documents 
 of the Prankish period an entirely new importance.^ They rep- 
 resent the pecuniary composition due in the case of every offense. 
 For greater security, the treasurer is made an interested party, 
 "sociato fisco"; he receives a part of the "poena" and demands 
 the payment of the whole of it, rather as he compels the per- 
 petrator of the offense to pay the composition, a part of which 
 goes back to him. Finally, imprecations and maledictions, true 
 spiritual penal clauses, are added to the deed to corroborate the 
 other sureties.^ 
 
 ^ "L. Alam. " I 2. 
 . 2 rAerenm, Table, p. 261; Giry, p. 563. 
 
 490 .
 
 Topic 4] 
 
 CONTRACTS. FEUDAL PERIOD 
 
 [§372 
 
 Topic 4. Contracts. Feudal Period 
 
 § 371. Persistence of the Law of the 
 
 Frankish Period. 
 § 372. Contracts in Re. 
 § 373. Earnest Money. 
 § 374. Faith-Pledging. Blow \\ith the 
 
 Palm of the Hand. 
 
 § 375. The Promissory Oath. 
 
 § 376. The Rule "Solus Consensus 
 Obligat." 
 
 § 377. Contracts in English Law. 
 
 § 378. Obligations by Means of Writ- 
 ing and Written Proof. 
 
 § 371. Persistence of the Law of the Frankish Period. — The 
 
 law of the Frankish period still exists in its essential character- 
 istics during the first centuries of feudalism; but from the thir- 
 teenth century on it is altered and disappears in order to give way 
 to modern institutions. Various causes worked in this direction 
 and contributed towards this result: the influence of religious 
 ideas, the more energetic part played by the State, which allows 
 of more liberty in the mechanism of contracts, economic changes 
 which make of this liberty a need, and, in a general way, forces 
 which lead legislation towards the Roman law. 
 
 § 372. Contracts in Re. — The books of Customs of the thir- 
 teenth century still contain traces of the necessity of the perform- 
 ance of something for the formation of certain contracts.^ Thus, 
 according to the Custom of Montpellier of 1204, sale, that type of 
 the Roman contract of mutual consent, can only be formed "re," 
 or by means of the blow with the palm of the hand : " emtio non 
 valet sine palmata vel sine solutione pretii particulari vel universali 
 vel sine rei traditione" (Art. 100). The Assizes of Jerusalem, 
 Court of the Citizens, c. 27 et seq., lead one to understand 
 that the parties can free themselves of their obligation as long 
 as one of them has not performed; once performance has been 
 begun, for example, if the buyer has paid one sou of the price of 
 the sale, this is no longer possible.^ The "Livre de Jostice" sets 
 forth that in a case of non-performance in sale, letting, and lending, 
 the debtor frees himself by means of his oath; it is otherwise if he 
 has received the thing ("if the chattel was there"); the duel at 
 
 1 Glanville, 10, 14; Glasson, "Inst, de I'Anglet.," II, 307; Pollock and Mnit- 
 Innd, II, 191 et seq.; Beaummioir, 34, 18, 20; 36; 37; 38; "Jostice," p. 106; 
 Boufaric, I, 26, 59. Responsibility of the debtor, for example, of the innkeeper: 
 P. de Fontaines, p. 211; Beaumanoir, 43, 41; Hermann, "Mobiliarv.," p. 129. 
 
 2 Rule: "Quod non fecit venditio reconciliat tarditio": Esmein, p. 22; 
 Marnier, "A. C, Picardie," pp. 114, 122. 
 
 491
 
 § 372] OBLIGATIONS [Chap. Ill 
 
 law is imposed upon the parties.^ The uncertainty of our old 
 books of Customs in the case of two successive sales to two different 
 persons bears witness to the wavering of practice between two 
 conceptions, — the old one according to which the sale was a real 
 contract and the delivery settled the right of the purchaser, and 
 the new one which makes of sale a contract by mutual agreement, 
 and which is able to attach less importance to delivery.^ There 
 are none of them, until the time of the maxim, " To give and with- 
 hold is invalid," that do not bear witness to the tenacity with 
 which the old idea of the necessity of the "res" for the formation 
 of a contract maintained some of its positions.^ In the eighteenth 
 century Blackstone, speaking of sale, II, 30, is not very far from 
 the old theory. Moreover, most of the time, contracts "re" are 
 concluded by the giving of earnest or establislied by writing, that 
 is to say, they come within the class of acts with which we shall 
 be specially concerned later on (cf. infra, "Consideration"). 
 
 § 373. Earnest Money.^ — Earnest money, which was in use in 
 certain old legal systems, — especially in Greece ^ and at Rome,*^ 
 
 — consists in a sum of money, or in some object, such as a ring,^ 
 which one of the parties, the buyer or the seller, gives to the other 
 at the time of the formation of the contract. The using of earnest 
 money is almost entirely limited to sale,^ to letting, and to a few 
 similar contracts.® In the Roman law the giving of earnest 
 money was merely of secondary importance, for it was simply con- 
 sidered as a sign — and this was not the only one — of the ex- 
 
 1 "Jostice," 2, 16, 8 (p. 101); 14, 8 (p. 98); 16, 7; 8, 5, 5 (p. 171); 4, 4 (p. 125). 
 
 — See the explanation of these texts in Franken, p. 75. "Sormise" there 
 means, according to this learned man, a simple action, "scliHchte Klage," 
 without duel. A mere presumption, according to Esmein, p. 49; see Godefroy. 
 
 2 "He who wishes to buy must pay": Loysel, 408; "L. d. Droiz," 513, 565, 
 673; Desmares, 414. 
 
 3 Post, "Gifts." 
 
 * " Arra." The word is of Semitic origin. Leonhard in the " Realencyclop." 
 of Pauly, ed. Wissowa, see "Arra," 2, 1219; Post, "Grundr.," II, 619. 
 
 6 Caillemer, "R. de L6g.," 1871, p. 661; Beauchet, "Hist, du Dr. priv^ 
 Ath6n.," IV, 421. 
 
 fi Girard, "Manuel," p. 539. 
 
 ' Dig., 19, 1, 11, 6; 14, 5, 5, 15; "Liut.," 30. 
 
 ^ If earnest money is also given in the case of betrothals it is because the 
 contract began by being a sale. Cf. Roman Customs: "Cod. Just.," "de 
 spons.," 5, l;Papien, 27; "Wis.," 3, 1, 3; 6, 3; "Et. deSt. Louis," 1, 128 (earnest 
 money of marriage). The ring and the pieces of money used in the Christian 
 marriage service had no mystical meaning; they were simply means of forming 
 the contract: Greg. Tours, 4, 41; 10, 14; Sohm, "Eheschl.," p. 23. In the 
 sources of the Spanish law the earnest money of marriage is understood to 
 apply to the increase of the marriage portion which is determined upon at the 
 time of the betrothal: "F. Real," 3, 2. 
 
 9 "Const, du Chat.," 26; "L. d. Droiz," 510; Stobbe, "Hand.," § 174. 
 
 492
 
 Topic 4] CONTRACTS. FEUDAL PERIOD [§ 373 
 
 change of assent; if it were lacking, the contract was none the less 
 valid.^ The jurisconsults give to earnest money no other function. 
 But the provincial laws make a means of retraction out of it, so 
 much so that the Lower Empire contrasts the "arrha poeniten- 
 tialis" with the classic "arrha confirmatoria " ; the man who has 
 given earnest is authorized to retract upon condition of losing it; 
 the man who has received earnest, on condition that he restore 
 double its amount.^ In the Frankish period, when earnest money 
 was still being made use of, and in the early part of the feudal 
 period, it occupied a sort of intermediate place; it was a means of 
 rendering agreements compulsory which, by themselves, would 
 not have been so.^ In the beginning it must have been a means 
 of retraction, or, to put it better, a true pledge."* It must be some- 
 thing of considerable value (pecuniary or moral) which the buyer 
 has to give to the seller;^ the latter, who was liable because of 
 something done by the buyer to lose a good opportunity to make -a 
 sale, was found to be damaged in advance. Conversely, the seller 
 who did not keep his promise indemnified the buyer by restoring 
 him twice the amount of the earnest money. In the legal system 
 of the Frankish period and the feudal period earnest money con- 
 sisted of a small sum, a sum too small for one to see therein any 
 damages. It becomes a sort of "wadium," ^ serving to bind the 
 parties. Thus, in the case of marriage formed by means of a pay- 
 ment, the " pretium," which was at first very high, was reduced 
 to a very small sum, to a symbolical price. Then the giving of 
 earnest money degenerates into a mere formality.'^ If it had 
 
 » Gains, III, 137; cf. "L. Rom. Wis.," Gains, II, 9, 14; Papien, 35, 6. 
 " Petrus," II, 14, demands for the formation of a sale neither earnest money, nor 
 a blow with the palm of the hand, nor wine to seal the bargain; a mere meeting 
 of the minds is sufficient. 
 
 2 Esmein, "Melanges," p. 413; Girard, "Manuel," p. 539. 
 
 ' Esmein, p. 14 (explaining "L. Wis." and "Bav."). Cf. "nummi testes "in 
 Perard, "Pieces . . . Hist. Bourg.," p. 107. 
 
 < Cf. "erres," "errements" ("Code Proc. Civ.," 349; Beaumanoir, 30, 50, 
 etc.) ; Franken, p. 64. According to Laurihre, " Et. de St. Louis," 241, ed. Viollet, 
 the ways of proceeding became the pledges of the process; whence by an ex- 
 tension comes the meaning acts of procedure: "Const, du Chat.," 50; see 
 Ragueau, Ferriere. 
 
 5 "Tilgaef," the Scandinavian earnest money: Amira, "0. R.," I, 321, 330; 
 cf. Girard, loc. cit. 
 
 ^ But, as it consists more often than not in a sum of money, it is readily 
 understood that it was used only in matters of sale and letting, as at Rome; 
 it is a part of the price, a payment on account, which degenerates into a "wa- 
 dium." In the giving of surety and elsewhere earnest money is not met with. 
 
 ^ Controversy as to the juridical nature of earnest money. Some sec therein 
 a partial payment and make of the contract accompanied by earnest money a 
 real contract; others look upon earnest money rather as a sort of "wadium," 
 
 493
 
 § 373] OBLIGATIONS [Chap. Ill 
 
 been given, the parties are bound, without being able to re- 
 tract; should it not have taken place, they are not bound and 
 the contract has not been formed. Sometimes the earnest money- 
 is deducted from the price, and this is what always takes place if 
 it is at all high; sometimes it is dedicated to a pious use, such as 
 placing the act under the protection of the Divinity: this is 
 God's pence ; ^ or else it serves to buy wine, which the parties 
 drink together: this is the wine to seal the bargain.^ It is clear, 
 
 and the contract becomes formal. Heusler, II, 253, opposes both of these 
 points of view. According to him, the earnest money has no binding function: 
 it is a counter prestation in return for a renunciation; the vendor who receives 
 the earnest money gives up the right to alienate his property to other people 
 until the expiration of the period agreed upon; it has been sought to bind him 
 because he only wants money, and it matters little from whence this money 
 comes; the purchaser is only compelled to pay the price if there has been "wa- 
 diatio"; he is free, but he will not abuse his freedom, for if he buys it is because 
 he has an interest in doing so; he would not readily find an object of the same 
 value at the same price; it has not been necessary to take any precaution against 
 him. The incomprehensible passage of the "L. Wis.," 5, 4, 4, cf. "Cod. Euric," 
 297, furnishes arguments in support of this meaning. Heusler admits, more- 
 over, that the law soon became modified, and that the earnest money fulfills 
 the function of making a contract binding upon both parties; the "wadiatio" 
 of the price seems superfluous: "Bai.," 16, 10. — This system does not explain 
 whence comes the custom of a counter prestation in order to bind the vendor; 
 it is easier to see in the earnest money a proceeding serving as a transition 
 between the real contract and the formal contract; it does not seem to us to 
 be demonstrated that changes of will are more to be feared on the part of the 
 vendor than on the part of the purchaser. The "Cod. Euric," 297, speaks of 
 a "prsetium" which ought to be corrected, according to Heusler's opinion. 
 
 1 "Denarius Dei," "Spiritus sancte," "Gottspfennig," "caparra" (Ital.). 
 See Du Ca «!7e, Statutes of Aries, 1162-1282, 191 ("in honoreDei et candele b. 
 Trophimi"); "Salon," 1293 {Giraud, II, 254); "Avignon," "N. R. H.," 1877, 
 p. 593; "Alais," 101; "Montpellier," 100; "Marseille," 3, 6; Beaumanoir, 
 34, 60; Desmares, 178; Italian texts in Fertile, IV, 4:73; Heusler, II, 253; Franken, 
 "Pfandr.," p. 61, n. 2; Schroeder, p. 716. Nothing proves that God's pence 
 was at first given by the purchaser of Church property in order to recognize 
 the right of the Church over this property. In Paris, where it is still paid by 
 the lessee in case of the verbal lease of an apartment, it has indeed changed 
 its object; the "concierges" have turned it aside to their own profit: Dalloz, 
 "Rcpert.," see "Louage," no. 86. 
 
 2 "Mercipotus,""Weinkauf,""Litkauf." "Petrus,"II, 14: "bibariavini," 
 a usage "pluribus locis": Loysel, 415; see Ragueau, Grimm, pp. 191, 608; 
 Haltaus, p. 2057; Warnkoenig, II, 565; Walter, § 346; Stohhe, § 174; Kraut, 
 "Grundr.," § 124; Heusler, II, 255; Franken, p. 61; Brunner, II, 392; Maiirer, 
 "Vh. d. Gerichtl. Weinen," 1846; Fertile, IV, 473; Huber, IV, 850, 834 (Swiss 
 Customs of Morat), " Diesse" : two-thirds of the "Trinkgeld" ("pourboire") at 
 the expense of the purchaser, one-third at the expense of the seller. A pretext for 
 copious libations which should have been prohibited. The wine to seal the bar- 
 gain is often consumed by the witnesses and the parties together (" vinum testi- 
 moniale") ; this is a means, like the small presents that are given the witnesses, 
 to be sure that they will bear witness to the existence of the contract ; a means 
 the employment of which can be readily understood at a period when there 
 was no such thing as legal compulsion to make them give their testimony in 
 court. Cf. with various meanings the authors cited. "M6on," 4, 117 (drink- 
 ing the wine of the blow of the hand). Esmein, "N. R. H.," 1887 (wine of ap- 
 pointment, a Russian custom: the meal together is the formality which seals 
 
 494
 
 Topic 4] CONTRACTS. FEUDAL PERIOD [§ 374 
 
 moreover, that the day when contracts of sale and letting are 
 once more formed by consent, earnest money regains its twofold 
 part of a means of proof, of consent, if it is a small sum, and of 
 a forfeit ^ or penalty agreed upon if it is a larger sum of money .^ 
 
 § 374. Faith-Pledging. Blow with the Palm of the Hand 
 ("palmata," "percussio manus")- — The employment of the 
 "festuca" and the "wadium" is given up in the feudal period;^ 
 for these formalities are substituted the blow with the palm of the 
 hand,^ and the oath.^ The formal contract itself changes its 
 character; it loses self -executory force because the law is in the 
 habit of intervening more and more in its performance; there are 
 more fines against the man who does not heed the summonses of 
 his creditor, and they appear like an abuse and an excess of harsh- 
 ness; the pledge and the giving of surety are no longer an indis- 
 pensable accessory; one does not often become one's own surety 
 any more, one is limited to pledging one's faith. The pledging 
 thus entered into is adaptable to every kind of obligation.^ 
 
 The blow with the palm of the hand has not entirely disappeared 
 even at the present time ; it is still practised in our markets for the 
 sale of domestic animals; the two parties who have come to an 
 agreement strike palms, or, to be more exact, the buyer strikes ^ 
 with the right hand ^ the palm of the right hand of the seller.^ 
 
 a contract). Schroeder, p. 361: "Urkundsgeld," retribution of the witnesses, 
 a very widespread custom: Pos^," Grundr.," 11,621 (Yucatan); Osenbriiggen, 
 "Studien.," 383. 
 
 1 "Ass. de Jerus.," "C. des B.," c. 27 (Franken,p.QS; Esmein, p. 21); 163: 
 "repentailles"; "Montpellier," 101; "Alais,"41; "Bayonne" (thirteenth cen- 
 tury), 118, \;Beaumanoir, 34, 62; c/. 49; " Jostice," 10, 14, 1; "L. des Droiz," 
 121. 
 
 2 Denisart, Guyot, see "Arrhes" (bibl.); Pothier, "Vente," no. 490; Britz, 
 p. 879. 
 
 ^ Traces in Italy in the twelfth century; Fertile, IV, 472. 
 
 * "Handschlag," German; "handsale," English: Blackstone, II, 30. 
 
 * Oath and blow with the palm of the hand from the time of the Merovingian 
 period: Gregory of Tours, "Hist. PVanc," 5, 3; "De Gloria Confess.," 68. 
 
 * As to the character of this contract, cf. Heusler, II, 248; Stobbe, "Handb.," 
 Ill, 73. A formal deed? an abstract promise? See as to the Frankish period: 
 "Roth.," 366, and Com. on 367; "Ratchis," 5; "Liut.," 15; "Sal.," 50, 1. 
 Contests as to the amount of the debt and as to the "causa debendi." 
 
 ' "F^rir la paumee" (to strike with the palm of the hand): Grimm, 605; 
 Azon, "Summa in Cod.," 2, 3: "dicitur (pactum) a percussione palmarum" 
 (a usage which he attributes to the "veteres "). 
 
 8 It is also with the right hand that one takes an oath. As to the symbolism 
 of the hand: Grimm, 138; Du Cange, see "Dextrai"; Puntschart, p. 355; Kova- 
 lewsky, 114: "I give you my hand in the name of God"; Esmein, p. 98 (classical 
 antiquity). 
 
 ' In German law the pronouncing of a formula ("ich gelobe") is added to 
 this act: Puntschart, p. 362. Cf. Amira, "O. R.," II, 289. The essential words 
 have, it seems, completely disappeared from French law. Witnesses take part 
 
 495
 
 § 374] OBLIGATIONS [Chap. Ill 
 
 This usage is very ancient, because it is already spoken of in the 
 "Petrus," 2, 12, together with earnest money and the wine to seal 
 the bargain; certain Customs make of this a condition of the vahd- 
 ity of the sale, contrary to the Roman law, to which the "Petrus" 
 adheres. It does not appear, moreover, that the blow with the 
 palm of the hand was restricted to the case of sale; it may be ap- 
 plied to other contracts.^ The clasping of hands, " mutua manuum 
 complexio," ^ seems to be equivalent to the "percussio manus." ^ 
 How are we to account for this popular usage? To-day one 
 would see in it only a very simple means of manifesting to the 
 eyes of everybody, parties and third parties, the concluding of the 
 bargain; up to this point there had only been conferences; at this 
 moment the transaction is terminated; ^ thus the blow with the 
 palm of the hand would be almost the same thing as the bringing 
 down of the hammer by the auctioneer at public sales.^ But, if 
 such is indeed its significance to-day, it seems as though it ought 
 to be explained in some other manner with relation to the past. 
 This is a popular practice derived from more ancient customs, the 
 placing of the hand within the hand and the oath. In placing one's 
 hand within the hand of some one else, one places oneself under his 
 authority and in his dependence. Thus homage is done " per manus 
 porrectionem." ^ It is not astonishing that the debtor should 
 
 ordinarily in the act, but it is not an absolute necessity under any of these 
 legal systems. It is not the same in the Scandinavian law, where the presence 
 of witnesses and the publishing of contracts is indispensable : Amira, " O. R.," II, 
 320. Cf. Italy, Fertile, IV, 469; Salvioli, "Public, d. Vendita," 1895; Dareste, 
 "Etudes," p. 315: usage in Denmark of pubHshing contracts at the "ting." 
 
 1 " Montpellier," 100: "emtio non valet sine palmata"; "St. de Marseille," 
 3, 6; "Bayonne," 118, 1 (in Balasque and Dulaurens); "Charroux," 1170, 
 Art. 14, and 1247, Art. 40; "Cout. de Gorze," 7, 3, 4; Beaumanoir, 44, 38, 40; 
 "Const, du Chat.," 84; "L. des Metiers," p. 17; Du Cange, see "Palmata," 
 Ragxieau, see "Palmee." — " Jostice," 2, 16, 3 (5 "sols." a blow of the hand for 
 a waiver) ; 1, 2, 7. 
 
 2 Meon, "Fabl.," I, 179; Glasson, "Inst, de I'Anglet.," Ill, 234 (Wales); 
 "SagadeNial," 71: " dextris datis et acceptis " ; Grimm, 605 : mere contact with 
 the tips of the fingers, "stupfen," "doppen." Cf. Hatzfeld, "Diet." 
 
 ' A trivial and genteel civility has taken possession of this to extract from 
 it our commonplace handshake. Thus do our institutions end. 
 
 * Snnesen, 17, 1: (letting) "solo consensu celebratur, sed impune rescin- 
 ditur, donee percussione manus unius in manum alterius roboretur." The 
 "Livre de Jostice," 2, 16, 3 (p. 100), allows a man to free himself, even when 
 there has been a blow with the palm of the hand, upon condition that he swear 
 that he cannot carry out his promise and that he pay a fine. Cf. "Alais," 41, 
 in "Olim," III, p. 1474. 
 
 ^ In some texts "palmata" is sjmonymous with earnest money: Fertile, IV, 
 472; Esmein, p. 27, sees in it rather an imitation of the payment of the price 
 and a fictitious delivery. But the ceremony of the blow with the palm of the 
 hand scarcely accords with this interpretation: Glasson, VII, 590. 
 
 * Brunner, II, 270. The kiss of peace is here met with as in other contracts: 
 Fertile, IV, 472. 
 
 496
 
 Topic 4] CONTIL\CTS. FEUDAL PERIOD [§ 375 
 
 have put his hand into the hand of the creditor, as though to give 
 himself as a pledge.^ In this symboHcal act there has been seen a 
 sort of secularized oath, which was taken neither on the relics nor 
 on the Gospels, and by which one did not call down upon oneself 
 the Divine anger, but which one respected just as much as a true 
 oath.^ As it is forbidden to swear in vain, voluntary recourse is 
 had to this; one pledges one's faith just as one became one's own 
 surety formerly;^ this sort of act is undoubtedly what the 
 books of the Middle Ages designated by the name of faith- 
 pledging,^ sworn faith, ^ and which the Romanists called the 
 stipulation.^ 
 
 § 375. The Promissory Oath, which sprang from the old usages '' 
 
 1 The "Treugelobniss" of the German law is concluded by an oath or by 
 giving one's word of honor, and by carrying out the " Handschlag." In Saxony 
 one raises the hand "curvatis digitis": Heusler, II, 245; Puntschart, p. 306. 
 C'/. as to Scandinavian law, Amira, "O. R.," I, 290; II, 289; and as to Anglo- 
 Saxon law, Edward, 2, 6; "Cap.," 803, 3. 
 
 2 Beaumanoir, 34, 38, " jura " or " fianca." Then he asks himself if those who 
 have made an agreement by means of their fealty or by an oath and have not 
 carried out their promises can be held as perjurers: "Et. de St. Louis," I, 31, 
 67; "Ass. de Jerus.," "C. des B.," 162: "Jurerafier ou plevir une femme," 
 means to become engaged to her. 
 
 ' They say: to give one's word, to pledge one's faith ("fides plivita," 
 "Montp.," 69), to engage, to promise : " Chanson de Roland," 403; Beaumanoir, 
 34, 9; 34, 60; "Jostice," 178, 181; ';Const. du Chat.," 26; "L. des Metiers," 
 p. 77 (ed. Depp.), to engage one's faith. Supra, "Betrothals": Esmein, p. 72; 
 Franken, p. 64, n. 2 : to promise solemnly and in the same way as when one gives 
 earnest m^oney. Numerous deeds (cited by Puntschart) where one reads: 
 "fide interposita promittere, fidem dare ore et manu," etc.: "Loven" in the 
 "Sachsensp.," I, 7 ("Gelobniss," "Treugelobniss," c/. "Erbenlaub") has the 
 same meaning, i. e., to engage one's faith, to make oneself responsible: Stobbe, 
 § 174: "per fidem nostram christianam et honorem nostrum militarem" (in 
 1394). England: to engage one's Christianity: Du Cange, see "Christianitas." 
 
 ^ Beaumanoir, 38, 15; 11, 47, etc. (Salmon, "Gloss."): Boutaric, I, 30, 42; 
 Desmares, 154; Lacurne de Sainte-Palaye, see Godefroy, "Treves et Assure- 
 ments"; "Et. de St. Louis," I, 29, 31, 111; Bigelow, "Hist, of Proced.," 
 App. 13. 
 
 * Esmein, p. 65; Pollock and Maitland, II, 188; Puntschart, 486; Amira, 
 "Recht," 188. 
 
 ^ According to Puntschart, the German "Treugelobniss" is not the binding 
 contract itself; it is an act apart, intended to make the debtor responsible; it 
 may even happen that it serves merely to engage the responsibility of a surety 
 or of a "Treuhander" (p. 406, Vol. II) to the exclusion of the debtor (p. 438, 
 Vol. II). It seems to us that this theory is a little exaggerated. 
 
 ^ Treaties sealed by sacrifices and imprecations: Tacitus, "Germ.," 24 
 (fides). On this text cf. Puntschart, p. 487. Perhaps the "fides facta" of 
 the Salic Law was not given without an oath, or was only a sort of oath after 
 the manner of the Roman stipulation. Under the Lower Empire the oath had 
 made for itself a certain place in legislation ("Cod. Just.," 2, 42, 3; 2, 4, 41; 
 4, 30, 16; "Nov.," 74, 5); the "Auth. Sacramenta Pubcrum" of Frederick I 
 appears rather as the complement of the imperial legislation than as a radical 
 innovation: "Cod. Just.," 2, 28, 1. — Cf. Mussulman usages "Mille et Une 
 Nuits," transl. Mardrus, IX, 11, 85 (to recite the preliminary Fatiha of the 
 Koran in order to seal a pact). 
 
 497
 
 § 375] OBLIGATIONS [Chap. Ill 
 
 and corresponded to Customs/ was instituted by the canon law.^ 
 Two conditions are required, as a general thing, for the regularity 
 of the oath: 1st. The pronouncing of a formula by which one calls 
 God to witness one's undertaking and binds oneself to Him to 
 carry it out; the terms vary: one often says, "Per Deum juro et 
 sic me Deus adjuvet," or, again, one swears by the Gospels, the 
 saints or the cross, — that is to say, by a sacred thing.^ — 2d. 
 Certain gestures in connection with the verbal declaration. The 
 latter should be pronounced with the right hand resting on the 
 relics or on the Gospels ("juramentum corporaliter prsestitum") ^ 
 or, at least, with the right hand extended or raised.^ The effects 
 of the oath consisted in a principal obligation towards God, and in 
 a secondary obligation towards the creditor.^ One might de- 
 mand the carrying out of the latter before the Courts of the 
 Church.^ Just like the Roman stipulation, this was a unilateral 
 and formal contract, one which was valid without any consider- 
 ation,^ and which could be applied to every kind of object, to 
 create a new obligation {promissory oath) or confirm a pre-existing 
 obligation {confirmatory oath). If the promisor pledged himself to 
 God, the debt could not be lost by prescription,^ which was a pro- 
 tection for the creditor. But to make up for this, the engagement 
 was strictly personal because of its religious character; so that it 
 
 1 "One could not affirm anything in the Middle Ages without reinforcing 
 one's affirmation by an oath": G. Paris, "Extr. de la Chanson de Roland," 
 1887, p. 279; " M^lusine," III, 156, 566: oaths and profanity; for example, "ma 
 foi," "ma fi" (my faith), etc.; the oath of St. Louis, according to Joinville, 
 V, 766; "The faith which I owe you." — Cf., however. Pollock and Maitland, 
 II, 187 (prohibition of swearing in vain and its effects). 
 
 2 Decree of Gratian, 2d p., Cause 22. Dig. X, 2, 24; "Sexte," 2, 11. See 
 the commentaries on these texts and the commentaries like those of Innocent 
 IV, Hostiensis and Panormitanus. Respect for the oath, "Capitul.," 789, 63. 
 
 3 P. Lombard, "Sent.," Ill, 39; F. "Close" on c. 1, C, 22 q. 1; cj. c. 11 
 and 12. — The simple "fides promissa" is equivalent, according to the old 
 canonists, to the oath: Hostiensis, "De Jurej.," p. 185. In the sixteenth cen- 
 tury, Covarruvias, "Op.," p. 249, no longer admits it. — Esmein, "Contrats," 
 pp. 103, 99 ("fides corporaUs, manuahs"). 
 
 * From the Roman period on. 
 
 * "Cod. Just.," 2,28, 1 ("per Jovem lapidem?"). — In order to see how far 
 formalism goes, cf. "Roisin," p. 32 et seq. (one loses one's case if one does not 
 hold one's thumb pressed against the palm of one's hand or if one moves one's 
 hand). — Super cheries, cf. c. 10 and 11, C, 22, q. 5 ("Close"). Anecdote as 
 to the oath given by Harold to William the Conqueror. 
 
 8 Panorm., on Dig. X, 2, 24, 1; "Decis. Capellae Tolosanse," 182, 7: "Deus 
 recipit obligationem in favorem partis; remittente ergo parte et ipse Deus 
 remittit." 
 
 ' Gui Pape, "Q.," 190; Bartole, s. 1, 56, Dig., 46, 1. 
 
 8 Innocent IV, on c. 6, Dig. X, 3, 7, p. 370. Cf. "Vow." 
 
 9 "Decis. Capellae Tolos.," p. 183; Benedicti, see "Testam.," Ill, no. 
 41. 
 
 498
 
 Topic 4] CONTRACTS. FEUDAL PERIOD [§ 375 
 
 did not descend to one's heirs.^ It was sufficient if one had at- 
 tained the age of discretion for one to be able to pronounce a 
 vaUd oath: those minors of twenty-five years who had attained 
 puberty, according to the Authentic, "Sacramenta puberum," 
 were capable of binding themselves by an oath.^ Fraud annulled 
 the act, but not violence ("coactus voluit"); as far as mistake was 
 concerned, it was doubtful.^ Thus we see by this means that the 
 efficaciousness of the oath was not easily questioned. The canon- 
 ists brought to bear upon it an important restriction drawn from 
 its religious character; they laid it down as a principle that one 
 was not obliged to keep an oath if its carrying out placed in danger 
 the safety of the soul of the man who had taken it: "One is not 
 obliged to keep an oath made to the devil," says the popular 
 proverb.^ As soon as the safety of the soul is no longer involved 
 the oath still binds, even if it is made in violation of the civil law ^ 
 or the canon law; ^ for example, the oath of the woman who binds 
 herself for another, contrary to the Velleianum Decree of the Sen- 
 ate, the oath of the woman who has a marriage portion to abide by 
 the alienation of the real property forming a part of the marriage 
 portion, the oath to abide by a gift between spouses,^ etc.^ Thus 
 applied, the canonic theory had serious consequences,^ especially 
 as far as the confirmatory oath was concerned. The obligation to 
 which it was joined was sometimes valid, and then, as a conse- 
 quence of the oath, the promisor came under the jurisdiction of 
 
 * Panorm., on 14 Dig. X, "de jurej.," no. 3. C/., however, Seraphinus, 
 p. 305. — Validity of the oath by proxy: C, 33; Dig. 63; Dig. X, 2, 7, 6; C. 1, 
 § "Verum," VI, 3, 16; Covarruvias, "Op.," I, 2Q2 et seq. — Transmissibility 
 of isspts 
 
 2 Cf. ''Glose" on c. 10, Dig. X., 4, 1; Covarruvias, "Op.," I, p. 404 (one 
 who has not attained puberty "doU caper"). — Innocent, c. 3, Dig. X, "de 
 voto" (oath of the "filius" or of the "fiUa famiUas"). C. 15 and 19, C, 22, 
 q. 4. Cf. "Numbers," xxx, 3. — Fertile, IV. 496. 
 
 ' Panorm., on c. 28, Dig. X, "De Jurej.,*' no. 3. — Dig. X, 2, 24, 2, 8, 15 
 ("Glose"); Seraphinus, p. 475. — As to the three things accompanying the 
 oath, — "justitia, judicium et Veritas," — cf. Esmein, p. 266. — The con- 
 firmatory oath was only valid if it were free from all defects: Esmein, p. 331; 
 "Auth. Sacramenta Puberum"; Beaumanoir, 34, 38, 39. 
 
 ^ Gratian, c. 23, C, 22, q. 4; Dig. X, "De Jur.," 8, "Glose"; Chaisemartin, 
 p. 258; Beaumanoir, 38, 16; 34, 24. 
 
 ^ But not in violation of good morals and natural equity: Sexte, "De Reg. 
 J.," 59. Cf. Public Order in the existing law; "T. A. C., Norm.," 4 (alienation 
 of dower). 
 
 ^ For example, the oath to pay interest, for he who takes this oath does 
 not commit a sin in carrying it out: Dig. X, 2, 24. 
 
 ^ Panorm., on c. 28, Dig X, "De Jur." 
 
 8 Renunciation to future succession, forfeiture clause, etc. 
 
 * The Courts of the Church passed upon the validity of the oath; Gui 
 Pape, "Q.," 199. 
 
 499
 
 § 375] OBLIGATIONS [Chap. Ill 
 
 the Courts of the Church, the obhgation ceased to be subject 
 to prescription^ and to be the subject of a set-off;^ it had to 
 be carried out in kind, if it consisted in an act.^ Sometimes the 
 obhgation was void, and in this case a distinction was drawn,* 
 and there were suppositious cases where the oath vaHdated an 
 obhgation, and others in which the contract remained void al- 
 though the oath was vahd; but no agreement could be reached in 
 these supposed cases, in spite of an attempt at systematizing which 
 was made by Bartolus.^ In order to deal with the abuses resulting 
 from the employment of the oath, the canonists made use of three 
 means {cf. "Exc. doli, in integrum restitutio") at Rome: 1st. 
 Theory of implied conditions: the oath is only binding if matters 
 remain as the promisor had foreseen that they would (for example, 
 if he does not become insolvent, or a marriage portion is promised 
 on condition "si nuptise sequantur"), or, again, if the other con- 
 tracting party carries out his promise ("non servanti fidem non 
 est fides servanda").® — 2d. Intervention of the ecclesiastical judge 
 in order to compel the party who has received the oath to release 
 the party who had made it when there would be vexatious conse- 
 quences (for example, a promise of interest).^ — 3d. The ecclesi- 
 astical superior, the pope or a bishop, has the right to release 
 every person from his oath if there is a just cause for so doing. ^ 
 The canonic theory of the oath had succeeded in being accepted 
 by the secular courts; but it had the twofold defect of taking 
 away persons from under their jurisdiction for the benefit of the 
 ecclesiastical courts,® and of allowing of the evasion of the pro- 
 hibitions of the laws. There was some thought of forbidding 
 
 1 ^Decis. Cap. Tolos.," q. 221; contra, Gut Pape, "Q." 199. 
 
 2 It was perjury not to carry out an oath. The penalty for perjury under 
 the Carolingians was the loss of the hand. Afterwards it was disgrace in 
 law or in fact, and arbitrary punishments: eee Ferriere, (bibl.); "Ord." of 
 1269, 1273, etc. 
 
 3 Panorm., Dig. X, 2, 24, 16. 
 
 * Panorm., Dig. X, 2, 24. 28, no. 8; J. Faure, "Ad. Inst.," I, 8, no. 10. 
 
 ^ On " R. " 56, pr . , D . , " de fidej . " : the oath cannot strengthen contracts that 
 are contrary to good morals, to the public interest, or void by reason of a 
 defect in form; it can strengthen those that are prohibited in the interest of 
 individuals, especially the debtor, or, again, those that are furnished with an 
 action, such as the stipulation for another: Masuer, XI, 16. 
 
 ' Dig. X, 2, 24, 3. A preventive oath, which invalidated those that one 
 might take afterwards: Hostiensis, p. 187. Cf. Mental restrictions of the 
 
 C3.Slllsts 
 
 ' Dig. X, 2, 24, 1, 20: 5, 19, 13; "Jostice," p. 329. 
 
 8 Roman texts cited oy Hostiensis, fo. 185 (Dig., "ad municip. 1. impera- 
 tores"); Gui Pape, "Q." 140, 124. 
 
 9 Complaints made by the Diet of Worms, 1521; Schilter, "De Libert. 
 Eccles. Rom.," p. 902. 
 
 500
 
 Topic 4] CONTRACTS. FEUDAL PERIOD [§ 376 
 
 notaries to append the oath to contracts.^ The determination 
 which was arrived at was to give the king the right to release from 
 the oath ^ and " to declare null and void every oath which was con- 
 trary to a provision of the law, because this was contrary to good 
 usage." ' By this means the promissory oath lost almost its en- 
 tire usefulness.^ The canonic theory had at least contributed 
 towards causing a respect for one's given word to enter into 
 Customs and to destroy certain legal prohibitions which had 
 become useless. 
 
 § 376. The Rule "Solus Consensus Obligat." — The Roman law 
 was not so far removed from this rule as would seem, with its 
 contracts of mutual agreement, its lawful pacts (gift), and pre- 
 torian pacts, its stipulation reduced to nothing more than a 
 clause in written deeds. Moreover, Pre-Glossators and Glossa- 
 tors upheld the old principle. There is no civil obligation " solo 
 consensu." ^ It is with the canon law that the impetus in the op- 
 posite direction started.^ For the theologians, the man who does 
 
 1 Fournier, "Offic," p. 87; "Ord." of 1302, 86 (I, 344); "Songe du Verg.," 
 1, 2, c. 175; Benedicti, see "Duas habeus," no. 247; Glasson, VII, 593. Italian 
 Statutes of the thirteenth century: Fertile, loc. cit. In the sixteenth century 
 an oath is looked upon as an accessory part of the contract; consequently, 
 it is for the lay judge to take cognizance of it; the ecclesiastical judge only 
 passes upon perjury. The "Ord." of August, 1539, Art. 1; Beaumanoir, 34, 
 38, c/. 11, 32, makes no mention of the competence of the Courts of the Church. 
 
 2 Chassaneus, on " Bourg.," p. 653. The Chancery began, in the delivery of 
 letters of restoration annulling contracts, by reserving to the ecclesiastical 
 power the necessary dispensation (provided that the petitioner had been duly 
 granted a dispensation by his own prelate): Benedicti, no. 247; "Dec. Cap. 
 Tolos.," q. 148; Edict of Nantes, before 1598, 24; Brodeau, "Cout. de Paris," 
 I, 529, no. 13; Rehuffe, "De Lit. Dilat.," 1, 1, 69. — But this ecclesiastical 
 dispensation was granted without any examination ("Songe du Verg.," loc. 
 cit.; "Dec. Cap. Tol.," q. 62; Fevret, "Abus," 7, 2, 43), so much so that in 
 the end when a man took an oath he no longer made a reservation as to the 
 rights of the Church (end of the sixteenth centurv): Imbert, "Pratique," 1. 1, 
 c. 33; Ranchin, on Gui Rape, "Q.," 140. Cf. 194, 225. —C/. "Close," Dig., 37, 
 14, 6, 4; "L. Imperatores," D., "ad Municip.," "L. fin. de re munic." Thence- 
 forth the king could annul in advance oaths that were contrary to his laws: 
 Chassan., on "Bourg.," p. 664; Constantin, on "Ord.," 1539, p. 4. 
 
 3 Bnrlole, on 1. 56, "pr.," D., 46, 1; Panorm., Dig. X, 2, 24, 6. — "Close" 
 on c. 28, Dig. X, 2, 24; "L. des Droiz," no. 848; Imbert, "Enchir.," p. 108; 
 Doneau, "Comm. de Jure Civ.," 1. 24, c. 9. — Cf. Fertile, IV, 496. 
 
 * Covarruvias, "Op.," I, p. 255; Masuer, 20, 3; Louet, D, 12; M, 7, etc.; 
 Pothier, "Oblig.," 104; Martin, "Inst. Jur. Canon.," II, 91 (1788). 
 
 6 "Wis.," 5, 2,5et seq. Cf. "Interpr. wis." onPaul, 1, 1; "Glosede Turin," 
 357; "Petrus," 2, 12; 4, 26: " Brachylogus," 3, 1, 3; 2, 7; 9, 4; Azo, "ad 
 Cod.," 2, 3; Accursius, "D.,'' 2, 14, 7, 4 and 5. See in Karsten, p. 110 et seq., 
 the analysis of the opinions of Placentinus and Azo; the latter likens the 
 pact to the contract and admits the existence of six "pacta vestita" (classical 
 contracts, "cohajrentia contractus," unnamed contracts) and seven excep- 
 tions to the rule that the naked pact does not bind. Cf. Bracton, fo., 108; 
 Britton, 1, 29, 2. 
 
 * Other systems in Seuffert, p. 4. There is no need to connect it with the 
 
 501
 
 § 376] OBLIGATIONS [Chap. Ill 
 
 not keep his promise becomes guilty of a lie, — that is to say, a 
 sin; thus he incurs the ecclesiastical penalties; as a consequence, 
 one is led to respect every agreement, and from the mercenary 
 point of view one passes to the civil point of view. The Council 
 of Carthage, in 348, had laid down this rule with respect to a 
 written agreement: "Pacta custodiantur " ; this formula plays a 
 part in the Decretals, having therein a general validity,^ and the 
 canonists gave, in order to procure the carrying out of agreements, 
 an action "ex nudo pacto" before the Courts of the Church,^ In 
 a spirit of equity the Italian commercial practice of the fourteenth 
 century adopted the same rule.^ In the civil practice the custom 
 of accompanying every agreement with an oath accustomed people 
 to a respect for the given word, and one can understand that a 
 time came when faith-pledging and the blow with the palm of the 
 hand could be left out without any detriment to the validity of 
 the pact ; the heart should follow the word, as is said in the " Livre 
 de Jostice," which without doubt was inspired by the canon law 
 from which it so often reproduced long extracts. The civil jurists 
 themselves held two-sided pacts as binding.^ It is only, however, 
 
 old Germanic law, as has been attempted (only since the seventeenth century). 
 "N. R. H.," 1866, 180: a confusion of the "carta" with the "notitia." 
 
 1 Let us also observe that the most important of all contracts, that of 
 marriage, is formed "solo consensu." 
 
 2 Ecclesiastical penalties against anybody who breaks the pact : " Carthage," 
 348, canon 12 (with regard to a transaction in writing between bishops as to the 
 limits of their dioceses), Dig. X, 1, 351 (generalizations). On this c. 1, Bernard 
 de Parme; Gratian, 2d part, 22, 5, 12. Innocent IV on this same c: excommu- 
 nication (following the "denuntiatio evangelica," a sort of criminal procedure). 
 But later on the action is a civil one, for it is designated under the name of 
 "Condictio ex canone juramenti" {Gratian, loc. cit.). Cf. Joh. Teutonicus, on 
 c. 66, C, 12, q. 2. On c. 1, Dig. X, "de pactis," see Panormitanus, Sandeus, 
 Gonzalez Telez; Thomas Aquinas, "Summa Theol.," sec. q. 110, 3 and q. 88, 3. 
 Difficulties arise on the point of knowing whether the canonic rules could be 
 applied before the secular tribunals. In the fourteenth century the juris- 
 consults of the civil law established this as the opinion of the canonists by 
 pointing out that it is opposed to the "jus ci\'ile." The question is connected 
 with a determination of the legislative and judicial competence of the Church: 
 Joh. Andrae, "ad.," c. 2, VI, 5, 13: "ubi versatur periculum animse leges suc- 
 cumbunt canonibus." To which Cinus, "ad Auth. Clerus," c. 33 ("Cod. 
 Just.," 1, 3) replies that if the Church had jurisdiction "ubicunque est pec- 
 catum, turbarentur rerum officia." 
 
 ' Bartole, on 1. 48, "D., mand.," 17, 1; Balde, "Lect. s. D^cr^tales," c. 1, 
 Dig. X, "de pactis," no. 8. They judge according to equity, says Bartole in 
 the "curia mercatorum." Now, in equity it is understood that there is no 
 distinction made between the pact and the stipulation. Cj. Alexand. Tar- 
 tagnus, "Cons.," 3, 41, 2; Karsten, p. 228. 
 
 ■• Alexandre Tartagnus, 1477. A naked pact gave rise to a natural obliga- 
 tion; the clause by which the usufruct was reserved, which was applicable 
 to it, made it obligatory; furthermore, the reiteration of the pact is a guarantee 
 against surprise and shows the seriousness of the consent. Cf. Huber, IV, 12 
 (delay in which to change one's mind). 
 
 502
 
 Topic 4] CONTRACTS. FEUDAL PERIOD [§ 376 
 
 towards the end of the fifteenth century that the modern principle 
 was declared in Italy.^ In France it was not fully accepted until 
 about the same date. But did not the jurisconsults of the thirteenth 
 century recognize it? It would seem so,^ if we rely upon certain 
 formulae which cannot be accounted for without difficulty, such 
 as this: "Agreements overcome the law," "which is related," says 
 Beaumanoir, "to the rule that 'All agreements are made to be 
 kept.'"^ In this we must only see a translation of the Roman 
 rule, " Pacta sunt servanda," just as there is a borrowing from the 
 canon law in the words of the "Livre de Jostice ": "It is ordered 
 that [in allusion to this law] agreements which are in conformity 
 with good customs shall make a bargain, and not the blow with 
 the palm of the hand; and the thoughts should confirm the words." ^ 
 These formulae did not at first have the practical bearing which 
 we should be tempted to attribute to them. They contain the 
 germ of the new law, but they are not very much in accord with 
 the judicial law of the thirteenth century; the same juriscon- 
 sults who pronounced them — J. d'Ibelin, Beaumanoir, P. de 
 Fontaines — forgot all about them as soon as they passed to 
 practical solutions of them; their contradictions are proof that 
 
 1 P. Picus, on 1. 10, "C," "de pactis," § 5; Socin le J., "Cons.," 56. Cf. 
 theory of Bartole in Karsten, p. 165. — In Germany in the seventeenth cen- 
 tury authority of Carpzov, p. 392 (" Schandgemalde " until 1577). 
 
 2 Esmein, p. 42. 
 
 3 Loysel,35Q; E'isen/iari, 1 ("Geding bricht Landrecht"); "Ass. de Jerus.," 
 J. d'Ibelin, 111; "C. des B.," 103; P. de Fontaines, 15, 6; "Anc. Us. d'Artois," 
 7, 14; Beaumanoir, 34, 2, 23; Bradon, 2, 5. Cf. Franken, p. 52; Esmein, p. 29. 
 Cf. Civil Code, 1134; Dig., 1. 1, "de pactis." 
 
 * Beaumanoir, 34, 2; cf. 34, 60: "A bargain is made as soon as both parties 
 have given their consent to keep it ... or as soon as God's pence has been 
 given, or as soon as earnest money has been given; for each one of these 
 three things is equivalent to a confirmation of the bargain." Franken, p. 53. 
 If the accord of the parties is sufficient to make the bargain, what is the 
 use of mentioning the earnest money and God's pence? As was perfectly 
 logical, these early proceedings for the formation of contracts disappeared. 
 Beaumanoir should have said, like the "L. de Jostice" or "Petrus": "earnest 
 money is useless, although in practice it is customary to give it." In order to 
 make his phrase intelligible one must translate "creanter" (to give one's 
 consent) by to give the blow with the palm of the hand, or to give one's word. 
 Cf. ed. Salmon, see "Gloss." Elsewhere Beaumanoir speaks of the blow 
 with the palm of the hand as being current usage; he also mentions faith- 
 pledging. It is true that in c. 34, which relates to agreements, he is especially 
 concerned with unlawful agreements, which would lead one to believe that 
 the question of form had lost some of its importance. The jurisconsults of 
 the fourteenth century speak of obligations entered into verbally, or of the 
 stipulation, as though the Roman law were still in force: "Gr. Cout.," p. 201; 
 Boutaric, 1, 42. — Cf. "Sachsensp.," I, 7; "Schwabensp.," 11; "Cons, de 
 la Mer,'^ 247; "Stadtr. de Fribourg en B." of 1520 (drawTi up by Zasius), 39, 
 and on that, Heusler, II, 227, 249. On the "L. de Jost.," post, "Proof"; 
 Beaumanoir, 35, 19; Desmares, 154, "Jostice," p. 8: "Let him who wishes 
 to give the blow with the palm of the hand do so." 
 
 503
 
 § 376] OBLIGATIONS [Chap. Ill 
 
 they are in advance of their time. ^Moreover, the maxim, " Agree- 
 ments overcome the law," was in old times only true in so far as 
 the agreement was clothed with the required forms; this meant 
 that individuals could make agreements in derogation of laws 
 which were not of a public nature; ^ thus, to take the special case 
 with which the jurisconsults that we have just cited were concerned, 
 a person can dispose of his possessions "inter vivos," although 
 the Customs confer them upon his relatives; one would be wrong 
 in concluding from this that the disposal would have been effica- 
 cious even if it had consisted in a declaration of will without any 
 forms. Thus it is probable that in the thirteenth century the for- 
 mulee which are cited above are not an accurate expression of the 
 Customary legislation.^ The new law is in process of formation. 
 To make up for this, Loysel, 357, presents it to us under the form 
 of a rule which was already an old one in his time,^ "Bulls are 
 bound by their horns and men by their words,"* and a simple 
 promise or agreement is worth just as much as the stipulations of 
 the Roman law." From this time on there was no hesitation 
 about making this rule an article of faith, a principle of natural 
 law.^ 
 
 IModern law, by taking this as the basis of its theory of 
 contracts, made their formation easier; and, by way of set-off 
 for this, it had to show itself more strict in matters which con- 
 
 * Not because all agreements must be kept, but because laws of a private 
 nature are only the probable expression of the will of individuals. 
 
 2 P. de Fontaines, after having said, "One should fulfill one's agreements 
 absolutely," 15, 1, with Roman texts to support him, declares a little further 
 on, 15, 13: " He has no very good claim whose claim is based upon an agree- 
 ment. . . ." On his part, Glanville, 10, 14, makes of sale a real contract, or 
 one based upon earnest money, while at the same time setting forth the prin- 
 ciple, "Conventio legem vincit"; a little further on, 12, 12, he states the prac- 
 tice to be as follows: "He who has neither gage nor pledge, but 'sola fides,' 
 obtains nothing at the court of the king." 
 
 ^ Dwnoulin, on "Cod. Just.," 2, 3: every legal agreement " pro stipulatione 
 habetur"; an action springs out of it; the c. 1, Dig. X, "depactis" is applied 
 "in utroque foi'o seculari et ecclesiastico " (motives drawn from "naturalis 
 sequitas"): Bucherellus, "Inst.," 3, 16; Duaren, "Coram." on the title "de 
 Verb. Oblig. epist. ad Lectorem": "hodie nullus contractus formula absque 
 stipulatione concipitur" (allusion to the notarial deeds in which it was cus- 
 tomary to say that there had been a stipulation, or at least to make use of 
 the terms: to promise, to stipulate): Argou, I, 2, c. 34. — Pasquier, "Inst.," 
 p. 596; Domat, 1, 1, 2, 7; Charorulas, "Pand.," c. 24, p. 279. — In the end the 
 agreement which did not set forth the consideration for the obligation was 
 called "paction nue. " — Cf. Goldschmidt, "Handelsr.," 3d ed., I, 303. 
 
 * Loysel did not understand this old proverb where allusion is made to 
 the formal character of the old procedure. — "One is bound by one's words; 
 once they have been spoken, it is no longer possible to withdraw them." 
 
 ^ Grotius, "De J. Belli," 3, 2, 11, and his school. Precedents: cf. Romanists 
 {Karsten, p. 87 et seq.) and Theologians. Cf. "Transfer of Ownersliip." 
 
 504
 
 Topic 4] CONTRACTS. FEUDAL PERIOD [§ 377 
 
 cerned the proof of their existence; ^ this is shown, for exam- 
 ple, in the practical importance attributed to the drawing up of 
 writings. In this sense the superiority of the system of freedom 
 over the system of formalism is less than it would seem at first 
 blush. But, to make up for this, it is possible for a contract to 
 be formed between people who are not in each other's presence;^ 
 it is concluded by means of representatives; ^ the personal pres- 
 ence of the parties may be required for the carrying out of certain 
 solemnities, but there is no reason to demand it for the mere expres- 
 sion of the will.^ Looking at it from another aspect, just as soon 
 as importance was given to the will of the parties, the question of 
 intention preceded everything else; contracts had to be interpreted 
 in equity, without taking account of the words which were actu- 
 ally made use of. "De sequitate canonica," says Baldus, "omnes 
 contractus mundi sunt boni fidei." "Every act is in good faith," 
 also declares Loysel, 670.^ The object and the consideration of 
 the obligation thenceforth determined its validity, and all the 
 more importance was attached thereto as there was no need to be 
 concerned with the form of the contract. 
 
 § 377. Contracts in English Law. None were at first recognized 
 excepting contracts "re" or "litteris." ^ An original development 
 
 ^ The question of the Proof of Contracts is of very great importance. The very 
 old Customary law is not very far removed in this respect from the practices 
 of the barbarian period. If we are to beheve the "L. de Jostice," pp. 98, 100 
 et seq., 126, 163 et seq. (cf. Esmein, p. 47), sometimes the defendant can defeat 
 the claim by his oath (simple proof, opposition in the "Gr. Cout. de Norm.," 
 85), sometimes he has no other recourse excepting to "offer opposition by 
 pledges of battle" (duel). He is allowed to defend himself by means of the 
 oath when the contract has not been executed, — at least not entirely. Cf. 
 Stobbe, "Vertragsr.," p. 70 ("Sachsensp.," I, 70, 2; I, 6, 5; II, 10, 2); "Ass. 
 de Jerus.," "C. des B.," 105, 118 (apparent covenant). Beaumanoir, 63, 11, 
 and P. de Fontaines do not make any distinction and always compel the 
 defendant to rebut the testimony of the witnesses by means of the duel: 
 J. d'Ibelin, 81, 117; "Et. de St. Louis," I, 118; "Jostice," 3, 4, 1; 4, 4, 1. 
 Moreover, in the old times only the testimony of persons called in especially 
 by the parties in order to take part in the act was admitted; Beaumnnoir, 
 39, 57 (now it is quite otherwise) : ./. d'Ibelin, 79; "Jostice," pp. 156, 163, 171; 
 "Summa Norm.," 61; Brunner, II, 392. When proof by witnesses was ad- 
 mitted without any of these restrictions it gave rise to such abuses that they 
 found themselves obliged to Hmit its application: "Ord." of Moulins, 1566, 
 Art. 54, and the maxim, "Writings are preferred to witnesses." 
 
 ^ Valery, " Les Contrats par Correspondance dans le Pass6 " (" R- G6n. Dr.," 
 1894, 3). 
 
 3 Post, "Order." 
 
 4 "L. Rom. Cur.," on Paul, 5, 2, 2; "Capit.," 817; "L. Long. Loth.," 14; 
 Heusler, I, 200 et seq., 214; Brunner, "Urk.," p. 522. 
 
 6 "Const. Pis.," n;Balde, on the c. 9, "De Plus Pet."; Beaumanoir, 35, 12; 
 P. de Fontaines, 26. 
 
 « As to the deed or specialty, cf. Pollock and Maitland, II, 215, etc. : actions 
 of covenant and of account. 
 
 505
 
 § 377] OBLIGATIONS [Chap. Ill 
 
 which took place from the fourteenth to the fifteenth centuries 
 resulted in rules similar to those which were admitted upon the 
 Continent. The action of debt, given on a contract "re," was 
 originally an action for restitution, a reclaiming (for example, in 
 the case of lending) against the man who withholds the property 
 of another.^ By a natural enough extension, it also served for the 
 demand of payment of the price of a thing sold or the arrears of a 
 rent. It assumed two things: 1st, that the plaintiff claimed a 
 sum of money; 2d, that he had performed something for the benefit 
 of the other party. In this there was seen a "legitima causa de- 
 bendi," a "quid pro quo," or a "valuable consideration," accord- 
 ing to the terms sanctioned afterwards. Whence came such a 
 requirement? Originally from the well-established repugnance of 
 the ancient law to the admission of gratuitous contracts; ^ fol- 
 lowing that, from the Roman theories upon the "causa," and upon 
 contracts not specified by the law, — theories which were quite 
 well adapted to the action of debt.^ From this action the theory 
 of the consideration was communicated to the action on the case 
 and the action of "assumpsit." Against the man who caused a 
 material injury to a person or a thing there lay a delictual action of 
 trespass ("de transgressione")."* In 1285 this action was applied 
 to cases where there had been no direct injury {cf. action " in fac- 
 tum legis Aquilise") by terming it an action " on the case." In the 
 fourteenth century the action on the case serves in the case of de- 
 fective performance (misfeasance) of a "nudum pactum" (responsi- 
 bility of a boatman who overloads his boat and thus causes the loss 
 of the cargo; he is responsible, not by reason of the contract, but 
 by reason of the offense) ; in the fifteenth century it serves in the case 
 of non-performance (non-feasance) (under Henry VI, 1422-61, 
 responsibility of the carpenter who does not finish the roof of a 
 house; there is no distinction drawn between the blacksmith w^ho 
 does not shoe a horse after having promised to do so and the 
 blacksmith who shoes the horse badly; in both cases the horse 
 goes lame). The action is then called an action of "assumpsit" by 
 allusion to the responsibility which a man assumes. It seems to 
 us that it would have been more simple to declare every agree- 
 
 1 Pollock and Maitland, II, 172, 203. 
 
 * C/. The Lombard " Launegild " : Heusler, I, 81; Pollock and Maitland, II, 
 211. 
 
 2 "Summa Norm.," 90 (ed. Tardif), see "do ut des, ut facias," etc. Cf. 
 Van den Berg, Galteschi translation, "Dei Contratti do ut des Sec. il Dir. 
 Musulm.," 1877. 
 
 * Cf. Pollock and Maitland, II, 523. 
 
 506
 
 Topic 4] CONTRACTS. FEUDAL PERIOD [§ 378' 
 
 ment binding excepting only those which were not based on any 
 " cause " ; this is the French system. The EngHsh practice adopted 
 the very opposite of this rule; it drew its inspiration more from 
 the old ideas and bears witness to a spirit which is more restric- 
 tive in appearance, although in fact its results are about the 
 same. 
 
 § 378. Obligations by Means of Writing and Written Proof. — 
 The custom of drawing up a writing in order to establish agree- 
 ments becomes more and more widespread in the Middle Ages. 
 By this means there is attained a method of proof which under 
 certain conditions is the most positive of all.^ Should we not go 
 further and say that writing constitutes a special way of binding 
 oneself? Although not very precise on this point, the texts of the 
 thirteenth century show that at that time people were not very 
 far from this conception.^ Even the expression which Beau- 
 manoir, c. 35, makes use of, "To bind oneself by writing," leads 
 one to believe this.^ In general, in order to make a contract in 
 writing, one binds oneself before the judge, and a deed or a writ- 
 ing of the contract is drawn up as though it were a matter of 
 drawing up a judgment (c/. Judgment of settlement).'* It is only 
 
 ' The restoration of the title in case of payment (Frankish period) is the 
 counterpart of the "traditio carta}"; it is torn up or it is annulled by a mention 
 of the fact in writing ("cassatura"). If the restoration is impossible (and it is 
 not agreed that the payment shall only be made upon restoration of the title, 
 Brunner, loc. cit.) one delivers an acquittal ("epistola evacuatoria"); the cred- 
 itor holds his debtor acquitted ("quietus") sometimes even without payment: 
 Marculfe, 2, 35; " Form. Andec," 18; Beaumanoir, 34, 21 ; 39, 60; P. de Fontaines, 
 15, 22. Cf. Dig., "depactis," 1; Huber, IV, 837; Glasson, VII, 691 et seq.; 
 "N. R. H.," 1886, 20, 178. 
 
 2 Cf., however, as to gifts, Esmein, pp. 31, 42, 44. 
 
 ^ Beaumanoir, 68, 7 (or by the pledge); Boutaric, I, 25, "Const, du Chdt.," 
 79: contract in writing; Britton, I, 29; Glanville, 10, 14 (written or delivered); 
 "Ass. de Jerus.," "C. des Bour.," 216; Esmein, p. 43. Conversely {Tardif, 
 Schwalbach), one may bring to notice passages from Beaumanoir, 31, 5: "In 
 another chapter we will speak of other methods of proof"; 35, 18: "Official 
 writings are only equivalent to one witness"; 39, 3. Cf. the English deed or 
 writing sealed and delivered by the debtor to the creditor, which is not only 
 a probative title, but a method of contracting like the Frankish "carta": 
 Pollock and Maitland, II, 217. The King's Court left to one side the old forms 
 ("hand-sale," etc.); it was necessary in every covenant to produce a specialty 
 or deed ("factum"); in the thirteenth century every free man has a seal which 
 he places upon the parchment containing the agreement. 
 
 ^ The custom of contracting at law goes back to the barbarian period ; but 
 only the tribunal of the king could give a deed of contract ("placitum") in 
 such a way as to furnish the interested parties with an incontestable proof: 
 Brunner, "Gerichtszeugniss," 154; R. Huhner, "Gerichtsurkunden d. Fn'ink. 
 Zeit"("Z. S. S.," 25). Cf. Periile, IV, 469. During the feudal period contracts 
 drawn .up in court were first of all established bv records, and then bv writings: 
 Beaumanoir, 35, 23; 39, 6; 63, 11; J. d'lhclin, 117, 121; "Sachsensp.," I, 18, 
 2; 70; II, 10; "Roisin," p. Q5et seq. In England they are all the more readily 
 
 507
 
 § 378] OBLIGATIONS [Chap. Ill 
 
 as an exception that they proceed in another way. According to 
 Beaumanoir, there should be three kinds of writings which bind: ^ 
 those which are sealed with the seal of the lord of the locality, or 
 of the king (or of their representatives, for example, the royal 
 bailiffs, "letters of authority"); ^ those which are sealed with the 
 seal of the council of the locality;^ and, lastly, those which are 
 sealed with the private seal of a simple gentleman, who has no 
 right of administering justice, on the theory that they proved an 
 
 used because there are no authenticated notarial deeds: Blackstone, II, 21; 
 Pollock and Maitland, II, 202 (recognizance), 205. Thus everywhere is devel- 
 oped this application of non-contentious jurisdiction. 
 
 1 Beaumanoir, 35, 18; 34, 59. Models: see also "Stilus Pari.," "Gr. Cout.," 
 Boutaric, I, 26. 
 
 2 According to Beaumanoir, 35, 23 (c/. 1, 44, "Ord." of Philip III), those 
 who wish to obtain a Letter of Authorization, because they have no seal or 
 because this means is more sure, should come before the bailiff, making a record 
 of the bargain, and then require that the letters be delivered to them "in the 
 form which follows: To all those who shall see or have these present letters, 
 Phelippes de Beaumanoir, Bailiff of Clermont, gives greetings. Know ye all 
 that in our presence P. and J. recognized at law that they of their own free 
 will and for their own benefit have made such and such an exchange." Then 
 follow the details of the agreement, and the obligation of keeping it and war- 
 ranting (for this and what follows we are referred to the formula of sale, 35, 
 20): "And this bargain above mentioned have I agreed to warrant for all 
 time for the said J. and his heirs again.st everyone"; the seller shall pay all the 
 expenses and damages occasioned by his default in warranty {cf. "Ord." Janu- 
 ary, 1324) and shall furnish this warranty; should he so wish, he may bind 
 himself even more strictly (damages may be fixed upon the oath of the creditor, 
 35, 19 ; P. de Fontaines, 15, 27) : "And to bind myself firmly I have bound myself 
 and my heirs and all I have in the present and in the future, movable and in- 
 heritances, to be adjudged by whatever justice he shall please to the said J. 
 or his heirs, or to him who shall bear these letters . . . and to take, to sell, 
 and to spend, without any delay, until th*e costs and the damages shall have 
 been paid and I shall have given a lawful warranty." Then, finally, come the 
 renunciations {cf. 35, 29) of every right and every law, canon or customary; 
 of the privilege of the cross, taken or to be taken (P. de Fontaines, 17, 7, 14); 
 indulgences of the pope or the king, customary delays, exception "non numer- 
 atse pecunise," a "lesion " of more than half; all exceptions or defenses and the 
 rule, " renunciations by way of gift are worthless " {Meynial, "N.R. H.," 1900- 
 1901); "and in order that this maybe a firm and stable deed I have had placed 
 upon these present letters the seal of the bailiff of Clermont [35, 24]. This 
 was done in such and such an incarnation [reign] and in such and such a 
 month." For the letters of a gentleman upon his seal, Beaumanoir, 35, 20, 
 maintains that they were given to the creditor: Beaumanoir, I, 41; 35, 6, 23; 
 Boutaric, I, 106, 107. The royal seal is recognized throughout the kingdom, 
 whereas the seal of the lord is only known in his domain. — Simple contract 
 creditors went before the aldermen; "Artois," 49, 12, ed. T. 
 
 3 According to Beatimanoir, 35, 18 (c/. 39, 61; Boutaric, I, 107), they were 
 only equivalent to a single witness when they were produced in the lay court 
 (excepting in spiritual matters, — for example, a marriage or a will). It was 
 the same with letters of the lay court when produced in a Court of the 
 Church. But there was an exception made for the letter of the king or the 
 apostolic letter (of the pope) ; these letters were everywhere equal to the full- 
 est testimony. Little by little the number of deeds that could be authen- 
 ticated by the ecclesiastical judges was restricted. — P. Foumier, "Offic," 
 pp. 41, 195. 
 
 508
 
 Topic 4] CONTRACTS. FEUDAL PERIOD [§'378 
 
 engagement entered into by him.^ The seal conferred upon the 
 deed an authenticity and a binding force. jMoreover, its genuine- 
 ness and physical wholeness signified a good deal; if only half 
 of the seal were left, this was sufficient, according to Beaumanoir, 
 to validate the deed.^ These writings were nothing more than 
 mere means of proof ^ when the rule that consent was sufficient 
 in order to bind was admitted.^ 
 
 Nevertheless, public writings were contrasted, as had long 
 been done, with private writings. The former, coming from 
 public officers — whence their name — w^ere principally the work 
 of notaries, that is to say, of the representatives of the king 
 and the lords. The affixing of the seal of jurisdiction ^ gave to 
 documents two privileges, — authenticity and executory force 
 (without taking into account mortgages, which will be discussed 
 further on). Thus they obtained full credence at law,^ and they 
 
 ^ But not to his own profit: G. Durand, "Spec," 2, 22, 298; P. de Fontaines, 
 15, 22; Beaumanoir, 35, 10, 18; 39, 73; Boutaric, I, 106, 107; "A. C, Bourges," 
 27 (c/. seal of the king); Loysel, 781 (bibl.), 856. Commoners had no authentic 
 seal, which placed them under the necessity of applying to the lord and the 
 bailiff, or to an officer; the gentleman also had recourse to them because of 
 the advantages which he found in so doing. In Normandy, where serfdom 
 disappeared at a very early time, the commoners often had private seals, just 
 as the nobles did. From thence arose, no doubt, the English practice of deeds. 
 — Cf. as to the effect of the deed under seal, Schulze, "Urkundenbew.," 1894; 
 Esmein, p. 126; Huvelin, "Th^se" ("Contrats en Foire"). 
 
 2 Beaumanoir, 35, 11. Cf. Joinville, § 66 (only the bottom of the seal is 
 left; St. Louis carried out the obhgation contrary to the advice of his Council); 
 Loysel, loo. cit.; "Gr. Cout.," p. 380. 
 
 ^ As to proofs in general, cf. bibl. in Camus and Dupin, nos. 1726 et seq.; 
 and as to practice, cf. "Treatises on Procedure," and see also Camus and Dupin 
 {Pothier, Pigeau, etc.); as to the profession of notary (Ferri'ere), " R6pertoires " 
 by Ferriere, Guyot, etc. Ordinances in the Conference of Gudnois, 1, 4; 
 Isambert, see "Temoins," "Enquete," etc.; Bonnier, "Tr. des Preuves," 4th 
 ed., 1874; "Tract, univ. J.," IV. — As to the old texts, cf. Beaumanoir, c. 35, 
 39; Boutaric, I, 105 et seq.; Masuer, 16 et seq.; " Artois," ed. Tardif, 49. — Pol- 
 lock and Maitland, II, 595. 
 
 ^ As one asks oneself if it was not already recognized in the time of Beau- 
 manoir, it is easy to understand that one hesitates as to the binding or merely 
 probative character of writings. Confusion of the "carta" with the "notitia." 
 
 ^ Loyseau, "Offices," 2, 5, 60. Cf. as to the affixing of the seal, p. 905, and 
 declaration of September 27, 1697, uniting the keepers of the petty seals to 
 the body of notaries: Ferrihre, see "Sceau de Justice"; Masuer, 18, 6 (bibl.). 
 As to protocols, minutes and copies, see Masuer, 18, 18; 37; 53, etc.; Rehuffe, 
 "De Litt. Obi." 
 
 ^ The Probatory Force of the deed under seal varies according to the seal 
 with which it is furnished; thus the seigniorial seal is not efficacious outside 
 of the lord's domain, and the seal of the ecclesiastical judge outside of the 
 diocese {Beaumanoir, 39, 71-76; 35, 18). On principle, sealed writings are as 
 good as full proof. But they may be forged, — that is to say, it may be al- 
 leged that they have been forged or falsified (broken seal, scratches, etc.); 
 Beaumanoir, 35, 9 et seq.; or their contents may be attacked by relying upon 
 an alibi: ibid., 35, 25; if they contain the names of persons called upon to serve 
 as witnesses, and if these persons declare that they have taken no part in the 
 
 509
 
 § 378] OBLIGATIONS [Chap. Ill 
 
 gave creditors a sure and speedy means of execution. This 
 status is due to the fact that, originally, notarial deeds were 
 judical records, arising from the parties' voluntary submission 
 of some transaction; they were at first drawn up in the pres- 
 ence of the judge, and later out of his presence. "But," says 
 Loysel, "it is always the judge who speaks through them." 
 They present the great practical advantage of cutting short many 
 a quibble. They have no serious inconveniences, when the 
 character and skill of the notarial profession is assured. Some 
 countries, especially England, have, however, refused to admit 
 them. Every deed must there be proved in court, and the 
 parties ordinarily betake themselves for the drawing up of 
 deeds to "attorneys" who are at the same time solicitors; this is 
 not without its dangers, because the duty of the scribe is to pre- 
 vent suits and the interest of the solicitor is to foster as many as 
 he can. In the German countries the tendency seems to be to 
 include the functions of a notary among the attributes pf a 
 judge, or, at least, to give to the judge the most important of the 
 notary's functions.^ 
 
 Private writings did not acquire any probative force ex- 
 cepting by virtue of an acknowledgment or confession in court, 
 on the part of the one who had signed them ; ^ or else as a 
 consequence of the procedure for the verification of the writing. 
 
 deed or give testimony contrary to that which the deed contains, then the deed 
 is annulled: ibid., 39, 59. Beaumanoir tells us that in order to avoid these 
 cases of nullity it has ceased to be customary to have the names of the witnesses 
 entered in the deed. These witnesses or "warrantors" ("Jostice," p. 156; 
 "A. C, Bayonne," 85, 5; "A. C, Anjou," I, 56), however, are to be found once 
 more in our modern witnesses to deeds. Cf. Huher, IV, 837, 17; Glasson, VII, 
 592. Obviously, also, when the deed establishes a debt, one may allege 
 that there has been payment (custom of restoring it and of tearing it up in a 
 case of this sort: Beaumanoir, 34, 21; 35, 10; 39, 3, 22; Masuer, 18, 59; "Tou- 
 louse," "de fide instr. de solut."). Under these conditions the public deed is 
 given credence, but only until the contrary is proved, and not merely until the 
 allegation of forgery is made: Masuer, 18, 53. Imbert only speaks of the alle- 
 gation of forgery as against depositions of ■witnesses. The "Ord." of Charles 
 VII, of 1453, Art. 17, had forbidden the attacking of a public deed under pre- 
 text of forgery unless a criminal accusation of forgery were brought in one 
 special case; that is, when it was a matter of a judgment having been altered 
 by the judges after its having been pronounced (Isambert, IX, 211). Fontanon, 
 on Masuer, ed. 1600, p. 344, seems to see in this a general decision. It is no 
 doubt because the practice of his time had generalized it: Fleury, " Inst, au Dr. 
 Fr.," II, 298; "Ord. Crim." of 1670, IX; "Ord." of January, 1383; February, 
 1737; Glasson, "Precis de Proc^d. Civ.," I, 542. 
 
 1 Bonnier, "Preuves," II, 18. — Heraud, "Formality du Double," 1901. 
 
 2 Deeds under private seal: Boutaric, I, 106; "A. C, Picardie," p. 115, ed. 
 Marnier. Deeds written in household books or merchants' account books: 
 Masuer. 18, 34; Ruber, IV, 838, 18; Posse, "Privaturk.," 1887; Bresslau, 
 "Forsch. f. D. G.," 26; Schupfer, "R. Ital. So. Giur.," 1889, 345. 
 
 nlO
 
 Topic 4] CONTRACTS. FEUDAL PERIOD [§ 378 
 
 The deed under private seal did not prove its own date, as far as 
 third parties were concerned, unless bearing official stamp (when 
 stamping was required. Edict of 1580, repealed in 1588, Edict 
 of 1693). The privilege of gentlemen to possess an authenticative 
 seal had no more reason for existing when feudalism declined; it 
 disappeared, and the jurisconsults of the sixteenth century, such 
 as Dumoulin, did not hesitate to affirm that these seals had no 
 more value than a private signature.^ 
 
 If private deeds had only a limited efficaciousness, oral testi- 
 mony had still less. Witnesses were distrusted for many reasons. 
 A person who has not taken part in an examination will never 
 be able to realize the difficulty there is in extracting the truth 
 from the confused and inaccurate depositions of the best inten- 
 tioned; in other depositions, money or threats have induced 
 lies;^ death removes some, and age or illness^ causes others 
 to lose their memory.^ Preconstituted proof, as embodied 
 in written deeds, is manifestly superior provided they are 
 removed to a great extent from the risk of loss and alteration.^ 
 The Ordinance of Moulins, February, 1566, Art. 54, wishing, it 
 says, to avoid the "complicating of lawsuits," decreed that a 
 contract must be drawn up for everything which exceeded 100 
 livres in value.® Thenceforth the}' no longer said, " Witnesses are 
 
 1 Dumoulin, on "Paris," 1, 8, 12; "Ord." of Moulins, Art. 54; Danty, 
 "Preuves," 2d part, no. 2. The evolution in English law has taken place in 
 the opposite direction: the writing sealed with the seal of gentlemen has been 
 preserved in the deed, a sort of document which in England takes the place 
 of a notarial deed. The French law has likened gentlemen to commoners by 
 taking away from them the right to have a seal; the English law has likened 
 commoners to gentlemen by giving them this right. 
 
 2 Even this fact was not necessary in order to justify the rule drawn from 
 the Scriptures: "Testis unus, testis nuUus": "Deuter.," xix, 2, 15; "Matt.," 
 xviii, 16; Dig. X, .3, 26, 10; G. Durand, "Spec, de Teste," § 11; Beaumanoir, 
 49, 5; "Toulouse," "de test."; "Montpellier," 25 et seq.; Loysel, 779. 
 
 ' From thence arose examinations for perpetuating proof: Masuer, 17, 1 
 (and p. 307). 
 
 ^ Loysel, 770, "He who shortens best, proves best." "Schwabensp.," 36-^. 
 These disadvantages became worse with the system of legal proofs which pre- 
 vailed in the old law, and which has its origin in the practice of the barbarian 
 period. For this was substituted the system of inmost convictions, which one 
 already finds at Rome, and of which there are traces in the canon law: 
 P. Fournier, "Offic," p. 193. Cf. Beaumanoir, 39, 19; Loysel, 867; Glasson, 
 VI, 553. 
 
 * Loss: Masuer, 18, 17, 51. 
 
 « "Ord." of MouHns, Art. 54: " Concerning everything exceeding the value of 
 one hundred pounds contracts shall be drawn up before notaries . . . without 
 receiving any proof by witnesses excepting as to the contents of the contract, 
 and without receiving any proof as to that which may be alleged to have been 
 . said or agreed upon before the contract, then and afterwards; by this we do 
 not intend that proofs are to be excluded which are made by the parties 
 
 511
 
 § 378] OBLIGATIONS [Chap. Ill 
 
 better than writing," but instead, "Writings are better than 
 witnesses." ^ 
 
 under their private seals and writings." "Ord." of 1667, 20, 2 (deeds instead of 
 contracts in order to get rid of difficulties and to generalize more). Proof by 
 witnesses is thus found to be excluded with a few exceptions; Civil Code, 1341. 
 1 Boutaric, I, 106 (p. 620): "Know that oral testimony has more force 
 than writings, if the witnesses testify contrary to the writings, and the judge 
 ought to accept the deposition of witnesses who depose with sound memory, 
 and pass sentence according to their deposition rather than according to the 
 contents of the writings wliich do not support them." The Commentary 
 required three or four witnesses in order to overcome a public deed; Hostien- 
 sis and the canonists are satisfied with two: Masuer, 18, 13, 53; Loysel, 774; 
 J. Faure, I, 15; "Cod. Just.," "de fide instr." 
 
 512
 
 Topic 5] NULLITY OF CONTRACTS [§ 380 
 
 Topic 5. Nullity of Contracts 
 
 § 379. The Nullity of a Contract. 
 § 380. Origin of the Theory of Nullity. 
 § 381. Nullity and Rescission. 
 
 § 382. Absolute Nullity. 
 § 383. Relative Nullity. 
 § 384. Rescission. 
 
 § 379. The Nxillity of a Contract, in the very old law, arises 
 chiefly from the failure to observe form; the absence of funda- 
 mental conditions, such as consent, is not so important as in mod- 
 ern law, because, ordinarily, if the act is regular as to form, the 
 contract is otherwise binding. But in the later system of contracts 
 formed by mutual agreement, the question of nullity is more 
 complicated and becomes vital. P. de Fontaines, c. 15, and 
 Beaumanoir, c. 34, having to deal with agreements, inquire first 
 of all as to which are the ones that must be kept and which the 
 ones that should not be deemed valid. 
 
 § 380. Origin of the Theory of Nullity. — The canon law bor- 
 rowed from the Roman law its theory of nullities, and especially 
 the distinction between nullities "ipso jure" and "exceptionis 
 ope" or "per in integrum restitutionem." ^ This was applied in 
 the same way, excepting that the absence of forms in the stipula- 
 tion did not prevent the contract from being valid.^ In its turn, 
 the Customary law felt the canonic and Roman influence. From 
 the thirteenth century we find in Beaumanoir a contrast between 
 contracts which are void and those against which one can only 
 plead some " barre," such as asking for "ratifying restitution."' 
 Voidable contracts may be validated by a short prescription ; * it 
 does not seem to have been the same with regard to contracts which 
 were void. But, though this difference can be pointed out, one 
 must be careful not to think that the difference between nullity 
 and liability to be avoided was very clearly distinguished by our old 
 authors; their language and their ideas are far from being precise; 
 the word " nullity " is the only one which they make use of to des- 
 
 1 Fournier, "Offic," p. 226. 
 
 * Dig. X, 1, 41, 8; 3, 17, 3 and 6; 1, 40, 2; "Dec. Grat.," I, 43, q. 10, 4; 
 G. Durand, II, 3. 
 
 » Beaumanoir, 16, 8; 34, 29; 16, 4, 11; cf. Boutaric, 1, 40, 19, 92; "Olim," 
 III, 202 (in 1306); 1180 (in 1317). — "Capitul.,^' VII, 288; V, 181, 
 362. 
 
 * A year and a day: Beaumanoir, 34, 29; Boutaric, I, 20: Masuer, 29, 19; 
 "N. R. H.," 1888, 326. 
 
 513
 
 § 380] OBLIGATIONS [Chap. Ill 
 
 ignate two distinct situations at one and the same time; ^ at the 
 most, in later times, absolute nidlity is often used in the sense of 
 non-existence; relative nullity is used for voidabihty. 
 
 § 381. Nullity and Rescission or restitution in entirety. — In the 
 thirteenth and fourteenth centuries every nulUty is officially pro- 
 nounced by the judge. Towards the fifteenth century ^ the law 
 changes; two classes of contracts which may be annulled are dealt 
 with: (a) the nullities established by the Customs and the Ordi- 
 nances are applied "de piano" by the tribunals;^ (b) royal letters of 
 rescission are necessary to plead the benefit of those which arise 
 from the Roman law.^ " Means of nullity have no place," they 
 say; ^ that is, it is necessary to have letters of rescission in order to 
 plead nullity; but this is only true in the case of Roman pleas of 
 nullity. What is the reason for this innovation? Almost all the 
 old jurisconsults reply: It is because the provisions of the Roman 
 law had no self-executory force in France except by permission of 
 the king.^ In our time other explanations of this have been sug- 
 gested. For some, letters of rescission would be due to the spirit of 
 exaction which was displayed by the old royalty; for others, this 
 would be one of the means made use of to restrain the jurisdiction 
 of the seigniorial judges (cognizance of claims for rescission was 
 taken away from them). But why should reform have been lim- 
 ited to the Roman nullities if it had only a political or fiscal ob- 
 ject? It is more likely that one must abide by the explanation of 
 our old authors, the political or fiscal reason being added thereto 
 
 1 Rebuffe, "Tr. de Resc. Contr. pr. " : " contractus aut nullus est, aut tenet, 
 sed tamen est annullandus." In the first case it is required ''ut declaretur 
 nullus"; in the second case, that it should be rescinded: D'Argentre, "Cons. 
 Brit.," in 283, com. 1, nos. 7-10; Dunod (eighteenth century), "Prescr.," 
 p. 47 (absolute nullity and relative nullitv) ; i?o?i/iier, on" Bourg.," 19, 12. Cf. 
 Pothier, "Oblig.," 1, 1, 1, 1, 3; 3, 2 and 3; "Proc. Civ.," 5, 4, 1. Cf. Domat, 
 1, 1, 5; 4, 6, 2 and 3. It is not without difficulty that the classical doctrine 
 has taken shape in our time. 
 
 2 Boutaric, I, 92, and the notes ofCharondas; "Ord." of 1536, 18, and 1539, 
 134; Du Cange, see "Rescissio": in 1481, letters of rescission in countries 
 of written law; they are probably of a still earher date in countries of 
 Customs. 
 
 ' For examj)le, a usurious contract (Ordinances), deeds of a married woman 
 without authority (Customs). 
 
 * For example, fraud: Pollock and Maitland, II, 533: Writ of Deceit 
 (under John). 
 
 5 LoTjsel, 706; Imbert, "Inst, for.," 1, 3, 3; "Enchir.," see "Contracts," 
 " Nullity "; see Ragueau. WTiich can also be understood in this way: that, 
 if there were no texts on the subject, a deed could not be annulled. — Cf. aa 
 to procedure: Glasson, " Precis de Procedure," 1, 14. — Ceepolla, "Tr. Cautel.," 
 1732. 
 
 ^ Guy Coquille, "Instit.," p. 7; on "Nivernais," p. 2; Imbert, "Enchirid.," 
 see "Contrats"; Charondas, "R^ponses," III, 102. 
 
 514
 
 Topic 5] NULLITY OF CONTRACTS [§ 382 
 
 merely in order to strengthen it. At the same time, the old expla- 
 nation itself has need of being rounded out. Taking it, in fact, as 
 it was set forth by the jurisconsults of the Customs, it would have 
 been necessary to obtain letters for the application of all the 
 Roman rules, a thing which did not, as a matter of fact, take place. 
 This was done only in the case of nullities which were unknown 
 to the old Customary law, and were opposed to its principles, 
 and of such an exceptional character that their introduction was 
 compelled to rest upon royal authority. The necessity for letters 
 of rescission was extended (evidently for fiscal reasons) to countries 
 of written law.^ In this sense there was an extension ; in another, 
 a restriction; practice at first required letters in case of nullity 
 "ipso jure" as well as in case of nullity "per exceptionem" or "in 
 integrum restitutionem " ; ^ at the end of the seventeenth century ^ 
 and in the eighteenth century'* letters of rescission were no longer 
 required for nullities "ipso jure." ^ Their use was abohshed by 
 the Law of September 7, 1790, Arts. 20-21. 
 
 § 382. Absolute Nullity resulted from lack of consent,^ lack of 
 an object or a "cause," ^ and the unlawful or immoral char- 
 acter of the object or of the "cause" ^ (improper consider- 
 ation). The "cause" ^ for the old jurisconsults corresponds 
 to the " quid pro quo " or to the " consideration" of the English 
 law. They took as their point of departure the Roman ideas upon 
 
 1 G. Pave, "Dec," q. 141, 143. Cf. Dupirier, "CEuvres," III, 186; Mortet, 
 p. 115 (cit.). Cf. "Advantage of Inventory," post. "Exceptions for Lorraine 
 and the Franche-Comte " : Argou, II, 13. 
 
 2 Rebuffe, "In Const. Reg.," 423; Charondas, "Pand.," II, c. 28; Pasquier, 
 "Interpret, des Inst.," 139; Despeisses, "CEuvres," I, 808; Mornac, s. 1, 16, 
 "D., de min. "; c. 3, C, 2, 22. For example, defect in form, an unlawful 
 object. In such a case the Customary law and the Ordinances were ordinarily 
 in accord with the Roman law to the effect that the deed should be annulled. 
 
 3 G. Coquille, "Inst.," p. 7; Ferriere, on "Paris," 223; Fleury, "Inst.," II, 
 43. 
 
 * Pothier, ;'Procdd.," 727; Guyot, "R6p.," see "Nullitd," § 7. 
 
 5 In practice, in order to avoid all difficulties, they often obtained letters 
 in the case of an annulment "ipso jure": Argou, "Inst.," II, 480; Duperier, 
 "CEuv.," Ill, 401. 
 
 ' " Jostice," II, 16. As to promises on behalf of another, Boutaric, I, 40. 
 
 ^ Boutaric, "Actes du Pari.," II, no. 6446 (in 1321). 
 
 ^ For example, interests, a concubine, etc.: P. de Fontaines, 15; Beau- 
 manoir, 34, 2, 23; 38, 15; 70, 2, etc.; Boutaric, I, 25; "Jostice," pp. 100, 325; 
 "Montpellier," 67 (gambling). If one wishes to have some conception of the 
 variations of the law upon this point one must remember that life insurance 
 was prohibited as being immoral ("Ord." of 1681); Portalis in his "Discours 
 Prdlminaire sur le Code Civil" flays it: "This institution, which implies a 
 'Votum mortis,' could only be developed," says he, "among the English, 
 where a vile spirit of commercialism has stifled the conscience." 
 
 ^ Domat, "Loix Civ.," 1st part, "t. des Conventions"; see Ferribre, Guyot, 
 Pothier, " Ohhg." — Timbal, "Th^se," 1879. 
 
 515
 
 § 382] OBLIGATIONS [Chap. Ill 
 
 the " condictio sine causa," upon contracts which were not specified, 
 and upon the nulHty of stipulations, and from thence they drew 
 up the rule: "No obUgation without cause." "He has no good 
 reason to claim," says P. de Fontaines, 15, 13, "who claims be- 
 cause an agreement was made with him, without advancing an- 
 other reason." ^ This principle was all the more readily accepted 
 because it squared in many cases with the older theory of the 
 necessity of at least partial performance of the contract in order 
 that an obligation should result therefrom.^ Bilateral agreements 
 carry their "cause" within themselves; the engagement under- 
 taken by one party accounts for and justifies the engagement of 
 the other (for example, sale). But the unilateral contract does 
 not always reveal its "cause"; sometimes it is reduced to a 
 mere abstract promise (I shall pay so much to X . . .).^ In this 
 form the Roman law validated it on principle, excepting that it 
 permitted an indirect attack to be made upon it and its efl^ects 
 thus to be paralyzed; our old law did not recognize the effects 
 of a simple promise unless it rested upon a lawful "cause" 
 (for example, I will pay 100 which has been lent to me, or for 
 some one to build me a wall).^ The question was raised espe- 
 cially with respect to deeds under private seal or bills without 
 a "cause"; sometimes the "cause" is not recited because it 
 is unlawful, and sometimes in order to simplify matters.^ 
 Was the bill thus worded a sufficient proof of the existence of the 
 contract? The Romanists incline towards the aflSrmative of this 
 question; those who were more true to the spirit of the old law 
 maintained that title and promise were null, as though made with- 
 out any "cause." A controversy took place over this question 
 and until the very end they were not able to reach any agree- 
 
 ^ "Summa Norm.," 90, 3. On the contrary, the writing did away with all 
 need for a consideration according to the old theory. 
 
 2 Esmein, p. 64; Boiceau, "Preuve par Tem.," II, 3 (letters of rescission). 
 
 ' In the case of gifts the spirit of generosity has been qualified as the con- 
 sideration. 
 
 « Charondas, on Boutaric, p. 841 (II, 37); "Pand.," p. 542; "Cout. de 
 Paris," p. 105. 
 
 * The Decretals have, to a certain extent, given of the 1, 25, 4, Dig., "de 
 prob.," an official commentary. Dig. X, 2, 22, 14; Beaumanoir, 35, 22: "The 
 writing which says that I owe money and does not mention for what I owe it 
 is a suspicious thing of malice, and when such a letter is brought into court 
 the judge should know the thing from whence such debt arose before he 
 insists on its payment." — Boutaric, II, 37 (p. 839: "Ego T. confiteor tibi 
 debere C") ; notes in blank to bearer. — "Toulouse," 44 (c/. Arts. 17, 26 et seq., 
 43); Casaveteri, fo. 20 v. (not apphed); Soulatges, p. 38; " Montpellier," 42; 
 Serres, "Inst.," Ill, 22. 
 
 516
 
 Topic 5] NULLITY OF CONTRACTS [§ 384 
 
 ment. From these discussions issued the obscure Article 1132 of 
 the Civil Code.^ 
 
 § 383. Relative Nullity affected contracts made by married 
 women without authority,^ or by prodigals who had been for- 
 bidden to make them;' the other party was bound civilly 
 towards the person under a disability/ and the latter was only 
 held bound by a natural obligation at the period when this Roman 
 theory penetrated into the law-books. ^ 
 
 § 384. Rescission took place in case of lack of consent, vio- 
 lence (force, fear), fraud (deceit, evil craft, cheating), mistake,^ in 
 case of any "lesion" received by a minor '^ ("minor restituitur non 
 tanquam minor, sed tanquam laesus"),^ of more than half if it was 
 a contract with a person over age, but then only in case of sale 
 and commutative contracts ("lesion enorme"),^ and, finally, in 
 case of a woman contracting in violation of the Velleianum 
 Decree of the Senate,^ ° and by the son of the family in countries of 
 written law, in violation of the Macedonian Decree of the Senate. 
 The contract which was subject to rescission had all the effects of a 
 valid contract until the rescission" was sanctioned in writing.^^ The 
 
 1 MerZin, "Q. de Droit," see "Cause"; Denisart, ibid.; Ferrihre, see" From- 
 esse." Authors and Orders cited in great numbers. The difficulty became 
 compHcated as a consequence of the rejection of the "defense of unnum- 
 bered money": Loysel, 707; Beaumanoir, 35, 20; "A. C, Anjou," IV, p. 340, 
 363; Boutaric, I, 55; "N. R. H.," 1888, 319. Distinction between "I admit 
 that I owe" and "I promise to account!" Cf. "Bill of Exchange." 
 
 2 Beaumanoir, 43, 22; 34, 50, 56; 70, 7; Desmares, 289; Boutaric, I, 19; 
 II, 29. 
 
 3 Cf. Boutaric, "Actes du Pari.," I, 2964; "Cout. Not.," 178; Pothier, 
 "Oblig.," 1, 1, 1, 4. Annulment of the deeds of those persons prohibited 
 from making them on account of dementia. 
 
 ■• Cf. Beaumanoir, 34, 56; 12, 45. 
 
 6 Domat, 2, 7, 1, 11; Pothier, "Oblig.," 192; Dunod, "Prescr.," 127; Mortet, 
 131. 
 
 * P. de Fontaines, 15, 50; Beaumanoir, 6, 25; 33,6; 34^,26 etseq.; "Jostice," 
 p. Ill et seq., 155; Boutaric, I, 19, 20, 54, 101; II, 25; "L. d. Droiz," no. 145; 
 "A. C, Anjou," II, 106, etc.; Desmares, 141; "Olim," III, 560; Boutaric, 
 "Actes du Pari.," II, 3308, 6867; Mortet, 133; Sieget, "Akad. Wien.," 128 
 (compulsion); Loysel, 830. 
 
 ' P. de Fontaines, 14, 10, 24; 15, 35; "Jostice," 3, 5, 7; 9, 1; Beaumanoir, 
 16, 8, 11 {cf. Roman Law); "Const, du Chat.," 72; "Olim," II, 205. 
 
 ^ Flach, p. 94, and authors cited. 
 
 ^ "Wis.," 5, 4, 7; "Bai.," 17, 9 (a very low price does not cancel the sale; 
 contra: Dig. X, 3, 17, 3, 6; Giraud, II, 58; "Olim," III, 480 (in 1307); Masuer, 
 23, 7, 40; Pothier, "Vente," no. 333; Stohhe, § 185; Fertile, IV, 503; Glasson, 
 VII, 622; Tpost, "Sale." [L68ion is our "failure of consideration." — Tr.] 
 
 10 Thevenin, "Textes," no. 131; LabbS, "Cone," IX, 473, c. 19. 
 
 " Form of these letters: Mortet, 119. — Lapeyrhre, "D6cis.," 381; Bourjon, 
 I, 583; D'Aguesseau, cd. 1772, II, 262. 
 
 1^ To ratify means to prove, to confirm, to accomplish, and, to a certain 
 extent, to complete: Du Cange, "Interinare," "Intcgrare"; see Ragueau, 
 Ferriere, etc. When the judge ratifies the letters of restitution or rescission he 
 
 517
 
 § 384] OBLIGATIONS [Chap. Ill 
 
 only one who wa3 authorized to rescind was the interested party, 
 and he could do so either by using it as a defensive plea or by means 
 of an action; it was not sufficient, to enable him to succeed, for 
 him to prove that there was a just reason for rescission ; he must 
 furthermore show that he was justified because of some injury: ^ 
 "Without damage no nullity." In case of serious injury the de- 
 fendant could avoid rescission by indemnifying his opponent. The 
 right of rescission was lost by ratification of the contract^ or the 
 prescription of ten years (Ordinance of 1510, 46);^ the defense 
 of rescission was not lost by prescription.^ 
 
 recognizes that the considerations for which they were issued really exist, and 
 that they have not been given on a false pretense; consequently, he gives 
 them his approval and orders that they be carried out: "Et. de St. Louis," II, 
 34, 37. 
 
 1 Guyot, see "Lesion"; Charondas, "Pand.," II, 40. 
 
 2 Renunciations made in advance contained in deeds were frequent, and 
 they were confirmed by oath: Beaumanoir, 35, 20; Masuer, 18, 12 (general 
 renunciation is void). Cf. "Cod. Just.," 2, 27, 1; "B. Ch.," 1849, 445; 1856, 
 466; 1874, 415; Charondas, "Pand.," II, 40; Despeisses, I, 807; Pothier, no. 
 103; Ferriere, see "Renonciation." 
 
 3 "Ord." of 1539, 134; L'Hommeau, p. 320. 
 
 ^ " Temporalia ad agendum, perpetua ad excipiendum " : Imbert, "Enchir.," 
 see "Exception"; Henrys, "CEuvres," II, 961; Dunod, "Prescr.," p. 206. 
 
 518
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS 
 
 [§385 
 
 Topic 6. Some Particular Kinds of Contracts ^ 
 
 § 385. Loan with Interest. — (A) Why 
 
 was it forbidden? 
 §386. The Same.— (B) Sanction of 
 
 this Prohibition. 
 § 387. The Same. — (C) Reaction. 
 §388. Estabhshment of Rents. — (A) 
 
 Origin. 
 § 389. The Same. — (B) Rent-charge. 
 § 390. The Same. — (C) Constituted 
 
 § 391. The Same. — (D) Life rents. 
 § 392. Assignment of Claims. — (A) 
 
 Early inaUenability. 
 §393. The Same. — (B) Indirect means. 
 §394. The Same. — (C) Assignment. 
 
 §'395. The Same. — (D) Payment 
 with subrogation. 
 
 § 396. The Same. — (E) Bills to bearer 
 and to order. 
 
 §397. The Same. — (F) BiUs of Ex- 
 change. 
 
 § 398. Agency and Representation. — 
 (A) General Remarks. 
 
 §399. TheSame. — (B)"Salmannen." 
 
 § 400. The Same. — (C) Attorneys. 
 
 §401. Sale. — (A) Formation. 
 
 § 402. The Same. — (B) Effects. 
 
 § 403. The Same. — (C) Warranty be- 
 cause of Eviction. 
 
 §404. The Same. — (D) Rescission of 
 the Sale. 
 
 § 405. Civil and Commercial Part- 
 nerships. — (A) Companies. 
 
 §406. The Same. — (B) Commercial 
 Partnerships. 
 
 § 385. Loan with Interest. — (A) Why was it forbidden? The 
 forbidding of lending at interest persisted throughout the old 
 law; only gratuitous lending was admitted, whereas the Roman 
 laws allowed of the collecting of interest on money which was 
 lent.^ The Church drew this prohibition: 1st. From the Mosaic 
 precepts,^ according to which the Hebrews when they lent money 
 were not authorized to demand interest, excepting from strangers; 
 among themselves they were to treat one another like brothers 
 and to be contented with the restitution of the capital. 2d. From 
 the words of the Gospel of St. Luke, vi, 35, "Mutuum date nihil 
 inde sperantes," ^ and from the spirit of fraternity which is the 
 
 ^ The detailed study of contracts would carry us too far; we must limit 
 ourselves to presenting with regard to some of them a few theories that are 
 especially important. With regard to the others a short bibliography will suf- 
 fice. Cf., in general, account books (French, Bonis, J acme, Olivier, etc.). 
 
 2 Marculfe, 2, 26, 17; " App.," 15, 50; "Liut.," 16; "Wis.," 5, 5, 8, etc. 
 
 3 "Deuter.," xxiii, 19,20; "Leviticus," xxv, 36, 37; "Psalms," xiv, 15.— 
 In primitive legal systems interest is not a rare thing. Lending of domestic 
 animals among the Ossetes: the increase is a natural sort of interest which is 
 restored with the capital: "Senchus Mor. id." The Mohametan law pro- 
 hibited lending at interest, under whatever form it may be disguised (even a 
 case of interest where delay is granted), but the law is evaded by means of 
 sale with future delivery ("salam"): Dareste, "Etudes," 58; J. Kohler, 
 "Modeme Rechtsfr. b. Islam. Jur.," 1885. 
 
 * "Vulgate" (cf. contra: "Luke," xix, and "Matt.," xxv: parable of 
 the talents). Is this indeed the meaning of the Greek text: "Samffxe 
 fjL-nd^v dTreXTT/foi'Tes" ? Th. Reinach, "R. des Et. Grecques," VI, 52, 1894, 
 suggests that we read, " d^>Te\^^lj;^ofTes" and translates: to lend without ex- 
 
 519
 
 § 385] OBLIGATIONS [Chap. Ill 
 
 foundation of Christ's doctrine.^ Once the rule was established 
 and applied, an authority which was almost equal to that of the 
 Scripture was found to justify it, independently of every religious 
 motive; I refer to Aristotle. This philosopher had maintained that 
 money was naturally sterile: "Nummus nummum non parit." ^ 
 This was rather a poor sophism, but it is excused when one reflects 
 upon the hard treatment inflicted upon people who were insolvent 
 and the disturbance which the question of debts gave rise to in the 
 ancient city.^ In the same spirit, Plato and other Utopians ban- 
 ished gold and silver from their ideal republics. But this did not 
 prevent Aristotle from drawing a very good income from those 
 sterile coins with which the generosity of the kings of Macedo- 
 nia abundantly provided him. In the Middle Ages the paradox 
 became a truth; the scholastics were able to take it seriously; in 
 fact, the majority of the time gold and silver remained unpro- 
 ductive in the hands of those who amassed it, because they found 
 absolutely no investment for it. By what right would they have 
 demanded interest from borrowers? If they ran a risk of losing 
 their capital, this risk was lessened and compensated for by the 
 severity of the measures of execution against debtors. The eco- 
 nomic condition thus tallied with the religious ideas, in order 
 to justify the prohibition of interest. Humanitarian arguments 
 came as a balance to the arguments drawn by the theologians 
 from Divine law and natural law. Even in those periods when the 
 Church was the most powerful, usury did not cease to be prac- 
 tised; the rate of interest was then raised to a ruinous rate, be- 
 cause the lender ran too many dangers not to impose upon the 
 borrower the most burdensome stipulations. St. Augustine was 
 
 pecting anything in return; that is to say, without hoping that even the capital 
 will be paid back, or, in other words, says, " Give": "Luke," vi, 34. Saint 
 Basil's Homily against Usurers" thus interprets the passage from the Gospel 
 and explains it by the idea that "He who gives to the poor lends to God." 
 Saint Gregory of Nyssus recommends that one give, and, if not, then one 
 should lend (without interest): for "lending is a secondary form of gift." 
 Cf. "Deuter." xv, 7; "Matt.,'^ v, 42. 
 
 ^ Communistic tendencies of the first Christians: Council of Nicea 325, 
 c. 17; "Can. Apost.," 44, etc.; Decree of Pope St. Leo, 445. "Dec. Gratian," 
 II, 14, q. 3, 1 et seq.; Dig. X, 5, 19; Benott XIV, Bull "Vix pervenit," 1745; 
 Pothier, op. cit.; enumeration of the classical laws; R. de Pennafort, "Summa," 
 ed. 1603, p. 227; Maffei, "Impiego dal Denaro," 1744; Lancelot, "Inst.," 4, 7. 
 
 2 "Polit.," 1, 3; St. Thomas, loc. cit. Another scholarly subtlety: When 
 one lends money and takes back interest besides the capital it is as though one 
 sold wine for a certain price and had oneself paid over and above for the use 
 of the wine. {Cf. lease of a house for a price based on the use one has of it). 
 
 * Hebraic Jubilee (" Levit.," xxv.), abolition of debts by Solon. History 
 of the "nexi" at Rome. In Gaul, "obserati": CoBsar, "De Bell. Gal." VI. 
 
 520
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 386 
 
 angry at seeing the capitalists strangle the poor man: "trucidat 
 pauperem foenore." How much more true was this phrase in the 
 Middle Ages! The legislator thought it was his duty to inter- 
 vene/ but he overshot his mark: the more harsh he became, the 
 more did the evil increase. 
 
 § 386. The Same. — (B) Sanction of this Prohibition. By usury 
 was understood all interest, no matter how little it might be.^ It 
 is especially on the occasion of the lending of commodities that 
 usury is committed; it appears there openly. But it may also be 
 met with in a disguised form in other contracts; there is scarcely 
 any kind of contract where one is not liable to see this " turpa 
 lucrum," of which the Church has a horror; for, ordinarily, one 
 does not act except with a view to profit. The casuists sought to 
 proscribe this everj'where. As a consequence of their extreme 
 views, the forbidding of usury was extended almost beyond belief 
 and becomes, as it were, the keystone of political economy in the 
 Middle Ages: sale, payment, damage, partnership, banking, bills 
 of exchange, — in so many matters is it especially dealt with.^ 
 The jurists only follow the theologians at a distance along this 
 way; especially from the sixteenth century do they make the pro- 
 hibition applicable only in the limited field of the loan, and 
 jurisprudence in its last stages only provides against excessive 
 usury. At first the prohibition was only applied in the laws of 
 the Church,"* to the ecclesiastics; it was less a precept than a piece 
 of advice; it was addressed to those who aspired to a perfect state 
 rather than to the mass of Christians. But the stricter tendency 
 prevailed; to lend for interest was considered a mortal sin, even 
 in the case of the laity. ^ This conception passed into secular 
 legislation under the Carolingians (Cap. 789, c. 5).^ From this 
 
 ^ Cf., the measures taken by Napoleon I against the Jews of Alsace, anti- 
 Semitism in certain localities (Poland, Galicia). 
 
 * Cf. Dig., tit., "de usuris et fructibus" "Capit," I, 119 (Ansegise): "usura 
 est ubi amplius requiritur quam datur " ; Du Cangc, see " Usurarii." The Ger- 
 man term: "Zins ("census"), meaning rent. 
 
 * Cf. Endemann, op. cit.; Ashley, I, 164 (theory of St. Thomas as to the 
 fair price). Taxes on bread and other produce: Gui Pape, "De Contr. 
 illicitis q. usurarii," in "Tract, ill. J. C," VII, 72; Loysel, 715; Bonacina, 
 "De Contr.," 1621; Polier, "Juste Prix," Thesis. 1903. 
 
 * Bruns, "Cone"; "Tours," I, 13 (II, 142); '^' Orleans," III, 27 (III, 200). 
 Cf. the rule that the cleric should not carry on any commerce. 
 
 5 Decretal of St. Leo, in Gralian, II, 14, 4, 7 (in 444); Decree of Gratian, 
 2d p., cause 14, q. 3 et seq.; Dig. X, 5, 19, " de usuris " (following the title " de 
 furtis"); CouncU of Vienna, 1311 ("Clem.," 5, 5, 1); Hostiensis, fo. 672; G. 
 Durand, etc. 
 
 * "Omnino omnibus intordictum est ad usuram ahquid dare." The Capit- 
 lilary invokes the Decretal of Pope Leo, the canons of the apostles and Scrip- 
 
 521
 
 § 386] OBLIGATIONS [Chap. Ill 
 
 time on it was sanctioned by a large number of laws/ and it 
 nicreased in the majority of the Customs.^ The legal effect of 
 the prohibition of lending for interest was civil or penal. 1st. 
 From the civil point of view, the contract was absolutely void; the 
 lender could not claim the interest which had been agreed upon; 
 the borrower who had paid this interest was authorized to have it 
 restored to him.^ 2d. From the yenal yoint of view, the lender was 
 exposed to canonic penalties, loss of their position in the case 
 of clericals, excommunication in the case of the laity.^ The 
 Customs confiscated the body and the possessions of the usurer 
 for the benefit of the lord; ^ the Ordinances prescribed various pen- 
 alties against them; thus the Ordinance of Blois, 1579, Art 202, 
 inflicted upon them for the first time the public penance and 
 pecuniary fines, one-quarter of which was paid to the informer; in 
 case of repetition, confiscation of body and possessions (the galleys 
 or perpetual banishment). But in reality these penalties affected 
 only excessive usury; the public Ministry did not especially pros- 
 ecute moderate usury, although the text of the Ordinances was 
 general.^ The result of what we have just said is that the right to 
 judge usurers belonged at the same time to the Courts of the 
 Church ^ and to the secular tribunals. In the end the latter at- 
 tained an exclusive jurisdiction in this matter, as in many others 
 (sixteenth century) ; they were not lacking in reasons for its justi- 
 fication for example, such reasons as these, — that lending gave 
 
 ture. Cf. in the Boretius ed., Index, see "Usura," "Foenus"; "L. Edwardi 
 Conf.," 37; "Const. Sic," I, 6. Italian statutes in Fertile, IV, 594; "Siete 
 Part. " 5 1. 
 
 1 ''Conf. des Ord. de Gu^nois," IV, 7: 1254, 1311, etc., 1579, 1629, etc.; 
 Isanibert, Table, see "Usure," "Interet," "Pret"; see Guyot ; L'Hommeau, 
 336; Argou, IV, 18. 
 
 2 "T. A. C, Norm.," 49; "Summa," 19; Beaumanoir, 68; Glanville, X, 3; 
 Boutaric, II, 11; "Gr. Gout.," 573; "Et. de St. Louis," I, 91; Giraud, "Essai," 
 II, 15, 19, 23, 37, 226; "Schwabensp.," I, 165; "Ac. leg. Toulouse," XI, 51; 
 XII, 400. — All the more was compound interest condemned. Difficulties of 
 proof: "Toulouse," 112. 
 
 ' 3 "Quid" if there has been an oath? Dig. X, 5, 19, 13. "Fides plivita?" 
 "Montpellier," 68 (to keep the oath). Cf. Pothier, 112; Serres, III, 15.— 
 The ParUament of Toulouse did not allow interest which had been volun- 
 tarily paid to be reclaimed. 
 
 * With excommunication are connected a refusal of religious burial, the 
 cancelling of the wall, and the disability to be a witness: Du Cange, see " Usur- 
 arii," "Reg. de I'Offic. de Cerisy," no. 9 et seq.; Desplanque, "Infames," p. 18; 
 "Olim," Index, see "Usur." 
 
 * Anglo-Norman law: dead, he belonged to the king, and living, to the 
 Church: "Summa Norm.," 19; "Regiam Maj.," 2, 54, 1; "Dialog. deScacc," 
 II, 10. 
 
 « Cf., however, the Ordinance of Jan. 13, 1311; Fleury, "Inst.," I, 445. 
 ^ Beaumanoir, 58, 56; "Et. de St. Louis," I, 255. 
 
 522
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 387 
 
 rise to a personal action, or that usury fell under the prohibition 
 of the Ordinances. 
 
 § 387. The Same. — (C) Reaction. Neither the Church nor 
 royalty put an end to lending at interest; it was too essential a 
 factor in economic order not to be justifiable in spite of the 
 proscriptions.^ Step by step, it regained the ground which it had 
 lost. People did not do any more lending, but they associated 
 themselves together, one furnished the money and the other his 
 labor, and the benefits were divided; agency, the assignment of 
 real estate for payment of a debt, sale with the power of redemp- 
 tion, exchange, and the establishment of rents performed the func- 
 tion of lending. The latter was tolerated on the part of the Jews, 
 to whom their religion did not forbid it; in lending, the Jews did 
 not contemplate doing a charitable act or a kindness; they were 
 speculating, and, as they occupied no regular place in the social 
 organization of the Middle Ages, trading in money became for 
 them a profession and, as it were, the trade of an outcast.^ They 
 had the monopoly of this until it became divided between them and 
 the Lombards and the inhabitants of Caor;^ the State thus granted 
 to them for a money price that which made it violate a law of the 
 Church, but it superintended them, which to a certain extent 
 eased its conscience. The progress of business and the advantages 
 which arose therefrom caused the mistake made by Aristotle to 
 be understood; money became fruitful and multiplied; at the time 
 of fairs in certain towns interest was allowed; ^ maritime loans,^ 
 
 ^ So much so that the monasteries filled the part of establishments of credit. 
 We know the operations carried on by the Templars. As to monasteries 
 in Normandy, from the eleventh to the thirteenth century, cf. thesis by GeneS' 
 thai, 1901. In very old times the temples were the bankers of the State. 
 
 2 A system of expulsion and calling back followed by confiscation prac- 
 tised by the old monarchy against the Jews, in such a way that the king 
 benefited by their plunder while at the same time appearing to satisfy popular 
 sentiment. As to the legislation in matters of usury, cf. Isambert, see " Juifs," 
 "Int6rets," etc. A very high rate of interest is tolerated; for example, more 
 than 43 per cent (1311). — C/. Dig. X, 5, 19, 18; Council of Lateran, 1215; 
 Endemann, II, 383. — Italy: Fertile, IV, 602. — Bohemia: "Ord." 1497; G. 
 Durand, "Spec," IV, 4; Giravd, II, 29, etc. 
 
 » "Ord." 1250, 1311, etc.; Isambert, see Table. Ashley, I, 257, cites a 
 statute of 1235: a loan nominally for three months, after which compensatory 
 interest will be due "ex mora." 
 
 * Fairs in Champagne, 1311; in Lyons, 1419. Towns of Montpellier, 
 Alais, Tournai, Saint-Omer, Barrois. — Contra, Dig. X, 5, 19, 19; Fassin, 
 "Th^se," 1900. 
 
 * Contrary to the "Deer. Naviganti" (Dig. X, 5, 19, 19) which prohibits 
 bottomry loans. Tremendous risk incurred by the lender, enormous profits 
 in favor of the borrower: Fothier, "Tr. du Prlt k la Gr. Aventure"; Camus 
 and Dupin, pp. 224, 439 (bibl.); Ashley, II, 492. 
 
 523
 
 § 387] OBLIGATIONS [Chap. Ill 
 
 and sometimes even commercial loans/ escaped the general pro- 
 hibition. In these exceptional cases,^ whether persons or localities 
 were concerned, the rate of interest was ordinarily limited by the 
 legislature.^ A mass of expedients was devised to evade the 
 prohibition in the instances where it still survived ; * some were 
 rejected by the theologians and the jurists/ and others were 
 openly practised and recognized as lawful^ by the Church and the 
 State: thus the "rente" for example. The theory of compen- 
 sating interest (due in the case of "damnum emergens"), which 
 was held to be lawful from the fourteenth century,^ in contrast 
 with lucrative interest (due in the case of "lucrum cessans"), which 
 was unlawful, made a large breach in the principle. It was not 
 difficult to find cases where interest was only an equitable com- 
 pensation for the disadvantage suffered by the lender in giving 
 
 1 Scacda, "De Commerciis" (end of sixteenth century), 1648; Argou, 
 III, 30: Provence, Dauphine, Bdarn, Franche-Comt6, Alsace; Henrys, I, 4, 
 q. 110; Serves, "Inst.," Ill, 15 (obligations between merchants). But cf. 
 Pothier, 68, " Tr. de la Pratiq. des Billets et du Pret. d'Argent entre Negociants," 
 1684; "Tr. des Prets de Commerce," 1738. 
 
 2 Other exceptional cases sometimes admitted, sometimes disputed, by 
 jurisprudence and doctrine; for example, funds of the ward, marriage portion, 
 etc.: Civil Code, 2001, 1372-1375; Ferriere, see "Deniers pupillaires " ; Mace- 
 donian "Senatusconsultum," supra. 
 
 * Cf. Fertile, IV, 604 (tex-ts). 
 
 * Cepolla, "De Simulatione Contractuum," fifteenth century. These tricks 
 of the new law in order to break through and overpower, thanks to the art 
 of the casuists, the scruples of timid consciences as well as the provisions of 
 the laws, are the despair of the Jansenists: Pascal, "Provinciales," I, 8. Cf. 
 the old teachers {Maillart, etc.). 
 
 ^ Such are the "usurious" ("mohatra") contract condemned by Innocent 
 XI and the triple contract condemned by Sixtus V, 1586. The usurious 
 contract was the buying on credit of merchandise which one immediately 
 resells at a loss to the vendor himself; one receives the price of the resale, 
 for example, 9000 francs, and one pays back the purchase price, — for example, 
 10,000 francs; the difference between them represents the interest: Pothier, 
 "Vente," 38. — The triple contract ("trinus contractus") was: (a) in the 
 case of an association; I furnish 100,000 francs to a trader, who will give 
 me 20 per cent of the profit that he will make; (b) insurance; out of my share 
 of these profits I promise him 10 per cent by way of insurance premium, in 
 order that he shall bind himself to pay me back the capital under any circum- 
 stances; (c) in case of a sale; as it is not certain that there will be any profits, 
 I sell him back 5 per cent of them, which represents my uncertain profit; 
 and he pledges himself to give me a lesser share of the profits, 5 per cent, which 
 he insures me. This is the same as though I had lent at the rate of 5 per cent. 
 Practised between three different persons the triple contract is lawful : Pothier, 
 "Soci6tes," no. 22; Ashley, II, 518. — On the "mort-gage" (practised by 
 the abbeys (Gellone, Redon) as well as by individuals), cf. post. 
 
 « The result of this is treatises like that of Broedersen, "De Usuris Ucitia 
 et illicitis," 1743; Camus d'Houlouve, "Tr. des Int^r^ts," 1774 (that is to say, 
 lawful interest). 
 
 ^ On the theory of the " Id Quod Interest," see the canonists and the treatise 
 by Dumoulin; cf. Nani, "Arch. Giur.," XVI, 207; Endemann, II, 243, 317; 
 "L. Wis.," 7, 5, 8; 2, 5, 7. 
 
 524
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 387 
 
 up the possession of his money (for example, delay by the debtor) ; * 
 and as the number of secure investments had become greatly in- 
 creased, it became a truth when one said that the lender suffered 
 a damage rather than lacked a profit.^ Speculators invented new 
 forms of credit outside of the traditional limits, which escaped 
 the now antiquated legislation,^ by reason of the time of their 
 birth. The exceptions overthrew the rule,'^ In the eighteenth 
 century philosophers and theologians were still disputing; but 
 the cause of the lawfulness of lending at interest was won.^ The 
 Revolution met with no resistance when it decreed the new prin- 
 ciple on the 2d of October, 1789. It was not suggested that they 
 establish the absolute freedom of lending at interest, but that they 
 fix by law a maximum rate which lenders could not exceed, and 
 this was in the interest of the foolish and the necessitous whom 
 the State ought to protect just as it does minors or the feeble- 
 minded. But this law was not enacted during the Revolution,^ a 
 fact which had this result without its being intended, that is, the 
 rate of interest was unlimited until 1807. At this date the Law of 
 the 3d of September fixed a maximum (which it took from the 
 legislation of the Old Regime with relation to "rentes"), — five per 
 cent, that is to say, one denier in twenty according to the old 
 
 1 Pawn Shops ("Monts-de-pi^t4," "Montes-Christi") were meant by their 
 founders to be establishments of free credit for the poor; they deducted a 
 moderate interest so as to cover their general expenses. The oldest of them 
 is perhaps that of Orvieto, 1463 (following the teachings of Fr. Bartolomeo da 
 Colle). Details and bibl. in Fertile, IV, 608; Endemarm, II, 374; Ashley, 
 II, 530; Holtzapfel, "Anfange d. Montes pietatis," 1903. 
 
 ^ Theory of P. de Castro (proof of the "lucrum"). Theory of the risk in- 
 curred by capital: Endemann, II, 322. 
 
 ' Voltaire, "Diet, phil.," see "Int6rets": the Sorbonne has decided that 
 lending at interest is a mortal sin. There is not one of these reasoners who does 
 not put his money out at interest, when he can, at 5 or 6 per cent, by buying 
 on the exchange bonds on farms, shares in the India Company, and Canadian 
 bonds: c/. Pothier, 94; Pertile, IV, 610. 
 
 * There were still so many adherents to this rule that it was not necessary 
 to seek an excuse for allowing lending at interest in the idea of a fiscal monop- 
 oly or a right to have oneself paid (Champeaux, loc. cit.). This is the reason 
 why this rule was upheld during the monarchic period. The Memorial of 
 Turgot, which was the decisive manifesto on this question, only goes back to 
 1767. 
 
 ' From the sixteenth century on: Dumoidin, "Tr. Usur.," Calvin, in a 
 letter to CEcolampade, maintained that the Scriptures only condemn exces- 
 sive usury which oppresses the poor, and not interest demanded from the 
 wealthy man who realized great profits by means of the money that had been 
 lent him. Following them: Saumaise, 1637; Montesquieu, "Esp. des Lois," 
 22, 19; Voltaire, see "Diet. Phil."; Turgot, 1767; Bentham, 1787. The Re- 
 formation did not affect this evolution; Luther and Zwingle condemned 
 lending at interest. Cf., however, Ashley, XL 540, 545 (England). 
 
 « Law of the 5th Therm., year IV; Civil Code, 1907. 
 
 525
 
 § 387] OBLIGATIONS [Chap. Ill 
 
 system of computation.^ The attitude of the Church in the face 
 of this legislation has been rather embarrassing; it has refused to 
 declare that interest was lawful in itself; but it has recommended 
 that the ecclesiastical authorities should not concern themselves 
 with lenders who acted in conformity with the laws, "Quousque 
 S^ Sedes definitivam sententiam emiserit." We are still waiting 
 for this pronouncement.^ 
 
 § 388. Establishment of Rents. — (A) Origin. According to 
 the current opinion, rents ^ were devised with the object of evad- 
 ing the prohibition of lending at interest. This is not so at all; 
 they have an entirely different origin; the only thing which is 
 true is that they did serve to attain this object after having been 
 turned aside from their original object. They began by being a 
 means of developing lands and not at all as a transaction of credit. 
 Lands were granted charged with rent or a portion of the products. 
 Quit-rent and rent are synonymous in the old language. But the 
 rent was distinguished from the quit-rent by losing all of its 
 feudal character; it was termed merely rent by contrast with the 
 seigniorial rent or quit-rent; it was applied at the decline of 
 feudalism to those possessions which had preserved the stamp of 
 feudalism the least of all, — for example, to houses in towns; ^ it 
 represented in the case of feudal possessions the part of the in- 
 come which corresponded to improvements, to the superior value, 
 and was superimposed upon the quit-rent, which represented the 
 income of the land itself. Thus it acquired an independent exist- 
 ence. jNIodeled in the beginning upon the juridical type of quit- 
 
 * Switzerland: after the sixteenth century, a limited freedom: Huber, IV, 
 868. Police Ordinances in Germany, 1577, 1600 and 1654. 
 
 '^ The modern canonists admit that there are extrinsic circumstances or 
 rights that can make interest lawful: 1st. The lender sustains some damage 
 ("damnum emergens")- 2d. He deprives himself of some profit ("lucrum 
 cessans"), at least if the profit is morally certain; what if it is probable? 
 P. de Castro, "Cons.," II, 55, 3. 3d. If the capital invested runs risks ("pericu- 
 lum sortis"), the interest represents an insurance premium; if it is a matter 
 of exceptional risks, — for example, by reason of the circumstances in which 
 the debtor's fortune happens to be. 4th. "Titulus legis civilis," the law au- 
 thorizes it; tliis is a right which it is difficult to justify (general interest? 
 Does this assume the existence of the other rights?) : Ashley, II, 535. 
 
 ' "Renda," "rendita" (ninth century), "redditus," meaning revenue. 
 Du Cange "Arr6rages" expresses the same idea with this difference, that he 
 assumes the rent to have fallen due and the debtor to be in arrears, "arriere." 
 Godefroy, see "Arri6rage"; Ragiieaii, ibid. However, the rent is contrasted 
 with the arrears; it then becomes lawful to demand the arrears (to jield a 
 rent, to draw one's rent): Pothier, "Personnes," no. 260. 
 
 * Lords' rent on houses: Beaumanoir, 24, 19, 20; "Gr. Gout.," 315 et seq., 
 833. Rent on the revenues of the State, upon the Hotel de Ville, Loysel, 517; 
 Larroque-Timbaud, 39 et seq. 
 
 526
 
 Topic 6] SOME PARTICULAR KINDS OF COXTIL\CTS [§ 389 
 
 rent, of which it was merely a variant, it departed more and more 
 from its original form, and approached the type of a loan at 
 interest. 
 
 § 389. The Same. — (B) Rent-charge} It will be sufficient for 
 us to recall the fact that by this is understood a rent established 
 by means of the alienation of an estate. The grantor retains 
 over the land a real right,- which is immovable and cannot 
 be repurchased;^ the grantee becomes the owner, subject to this 
 charge,^ with power to escape therefrom by giving up the land, 
 
 * Pothier, "Tr. du Bail h Rente," IV, ed. Bug.; Felix and Henrion, "Tr. des 
 Rentes fonc," 1829. — English law: rent service as contrasted with the rent 
 charge and the rent seek ("redditus sicus") which Pollock and Maitland 
 designate by a generic name: non-tenurial rent (II, 128). Cf. Rent of a room: 
 Bracton, fo. 2036. 
 
 2 Indivisibility of the quit-rent and of constituted rents or rent on land: 
 Desmares, 276; "Cout. Not.," 165; "Gr. Gout.," p. 354; "L. d. Dr.," 789. 
 
 ^ Except there be an agreement to the contrary, whereas constituted rents, 
 at least in the later stages of the law, are essentially capable of being bought 
 back. To buy back a rent on land is to dispossess the creditor. However, 
 the papal bulls have sometimes authorized this buying back, and the royal 
 ordinances have also allowed it as an exception for reasons of public utility 
 which we shall set forth, but also because the buying back often appeared as 
 nothing more than the reimbursement of a claim, — even when it was a matter 
 of a rent on land. The Ordinance of 1441, Art. 18, declares that the rents on 
 houses in Paris can be bought back at the rate of 8| per cent, because the 
 o\\Tiers of houses charged with excessive rents allow them to go to ruin. The 
 Edict of AIay,_1553 (other towTis); "Paris, N. G.," 12 "Orleans," 270; Glasson, 
 VII, 323. It is upon this occasion that the Declaration of May, 1609, intend- 
 ing to allow the debtor to take advantage of the lowering of the rate of interest 
 on rents, — that had passed from one-twelfth of the capital or 85 per cent, 
 in 1576, to one-sixteenth of the capital, or 6J<4 per cent, in 1601, — decided 
 that the debtor could on his own authority subrogate to the rights of his 
 creditor the lender from whom he borrowed the necessary sum for the buying 
 back; the creditor who had his money invested at more than 8 per cent would 
 not have consented, because he could not invest it at more than 6J^ per cent, 
 and the lender would require guarantees: Regulating Order of the Parliament 
 of Paris, July 6, 1690; Pothier, no. 23. Glasson, VII, 325, cites the Ordinances 
 of Apr., 1393, Oct., 1409, July, 1410, 1443, May 27, 1424, July 31, 1428. 
 Isambert, Table, see "Rentes"; Ashley, II, 475 (bujang back in Germany). 
 
 * In default of payment of the quit-rent or the rent, the old procedure ac- 
 cords with the primitive conception of our institution; the creditor has the 
 rights of an owner, whereas in the case of constituted rents, according to 
 the opinion of Dumoulin, he descends to the rank of an ordinary creditor. Cf. 
 post, "Execution." — Distraint or seizure of the possessions that furnished 
 the house, and, consequently, an obligation to furnish it ("Gout. Not.," 3, 36, 
 81, 187; "Pari, aux Bourg.," p. 137); execution on the standing crops upon 
 land. Fine, e.xcept in the city and outskirts of Paris. If the house is empty 
 and abandoned or in ruins, the seizure is publicly announced: "Gout. Not.," 
 169, 179,31, etc.; "Gr. Gout.," pp. 316, 277, 199, 544e<sc7.; "Gonst. duGhat.," 
 62 et seq.; "Paris, N. G.," 86: right to three years of arrears for the quit-rent 
 (the same for rents, "Ord." of 1563; Loyscl, 524); 163: in the case of rents only 
 three-fourths can be pledged, for the old delay of a year and a day here main- 
 tained makes one lose the right of seizure. Difficulties in the frequent cases 
 when there are several successive quit-rents or rents: Beauynanoir, 24, 20; 
 "Gr. Gout.," 315 et seq.; "Gout. Not.," 117, 151; "A. G., Anjou," II, 419; 
 Buche, "N. R. H.," 1884, 76. — English law: the rent seek, a variety of the 
 
 527
 
 § 389] OBLIGATIONS [Chap. Ill 
 
 for he has only held "propter rem";^ conversely, after-pur- 
 chasers by private right were subjected, as were universal heirs, 
 to the payment of the rent; the real right of the holder of the rent 
 could, in fact, be set up against every person who occupied the land. 
 The upholding of rent-charges with these consequences was in- 
 compatible with the system of the liberation of lands which was 
 inaugurated by the Revolution; generalizing a provision that 
 royalty must have been given its land as an exception (rents over 
 houses in Paris and other towns), the Law of August 11, 1789, 
 declared that they were capable of being repurchased.^ To-day 
 the seller of a piece of land in consideration of a rent has only a 
 personal right,^ which is a movable and can be repurchased; to 
 make up for this, the purchaser who is held personally liable has 
 been deprived of the power of giving up the land. Civil Code, 530. 
 § 390. The Same. — (C) Constituted rents. Instead of land, 
 one person may grant to another a sum of money, a capital, charged 
 with the payment back to him of a perpetual or life rent; the rent 
 which is thus established is called constituted perpetually or for life. 
 This operation is only a variation of lending at interest; it differs 
 in that the capital cannot be demanded back; it depends upon the 
 debtor to pay it back, but he can choose his own time; the creditor 
 cannot compel him to free himself; if he needs his capital he has no 
 other resource excepting to transfer his rent for a money consider- 
 ation to a third party, assuming that there should be third parties 
 disposed to buy it. At first blush it seems as though there were 
 no reason for not treating this act just like the ordinary case of 
 lending at interest, because the differences which we have just set 
 forth had nothing essential in them. But hypothetical forms are 
 met with where the constituted rent would merge with the rent- 
 charge, and the latter because of its origin was radically differ- 
 ent from lending at interest."* Hence these hypothetical cases, 
 being favorable, and the only ones which were known in the old 
 
 constituted rent, does not allow seizure to be made use of (Bradon, fo. 203 b) ; 
 the rent charge does allow it. 
 
 1 Excepting if there be an agreement to the contrary (a clause to furnish 
 and to plead): "Cout. Not.," 95, 96, 97, 171, 70; Desmares, 183; "Gr. Cout.," 
 317. The giving up consisted in the abandonment at law of the ownership 
 (and not onlv of the possession); the acquirer himself was allowed to do this: 
 Loysel, 520-366; Fleimj, "Inst.," II, 50. 
 
 2 Cf. Law of May 14, 1790, 7; of Dec. 18, 1790, 2; of Oct. 16, 1791; "Code 
 Civil intermed.," Table, see "Rentes"; Sagnac, 107, 147, 336 et seq. 
 
 ^ In addition, it is true, to a privilege and an action for cancellation. 
 * The lessor of a copyhold could receive and did receive most of the time 
 a portion of the issues of the land granted. 
 
 528
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 390 
 
 times, they induced the canonists to declare the constituted rent 
 lawful.^ There is very Uttle difference, for example, between the 
 ease where one sells a piece of land charged with a rent and the 
 case where one buys this piece of land in consideration of a price 
 paid to the vendor, after which the land is restored to him charged 
 with a rent. The canonists, looking at it from this point of view, 
 could hardly make any distinction between rent-charges and con- 
 stituted rents: the former were reserved at the moment of the 
 grant, " census reservativus " ; the latter were created or charged 
 on land which belonged to the debtor; " census constitutivus," 
 "consignativus " ; in both cases the creditor had a real immovable 
 right. In order to make the analogy complete, the canon law re- 
 quired that the transaction should affect a " res " which produced 
 profits.^ As the two transactions which we have just been speaking 
 of were not always so closely allied as we have assiuned, the canon- 
 ists, io order to avoid stigmatizing the constituted rent as usury, 
 declassijfied it, so to speak, and made of it a sale. According to 
 them, the debtor sold the right to collect the income; the creditor 
 bought this right and paid for it out of his capital.^ Thus the 
 rent appeared like a legal being distinct from the income and 
 producing returns in the same way as a piece of land, "lasting 
 forever." When the debtor paid back the capital which he had 
 received, it was said that he "repurchased" the rent."^ Finally, 
 by means of this artificial analysis they succeeded in giving the 
 reason for the fact that the capital could not be demanded; to 
 demand the capital would have been to compel a vendor to buy 
 back the object which he had sold. There is no need to observe 
 that the fact of not being able to demand the capital was due to 
 entirely different reasons; it is to be accounted for by the original 
 relationship which existed between the constituted rent and the 
 
 1 Innocently (1243), Commentary on Decretals "adc. in civit.,t.deusuri3"; 
 discussion until the Bulls "Regimini," of Martin V, 1200, and of Calixtus III, 
 1455 ("Extravag.," 3, 5, under the title "de emtione"). Cf. also the Bull 
 of Pius V, 1568. 
 
 * The arrears of the rent had to be in proportion to the revenue of the land 
 or the house charged with their payment; if the latter diminished in value 
 or became of no value at all, the rent did the same. 
 
 * A theory already pointed out in the Compendiums of the sixteenth 
 century. 
 
 * According to Pothier, the buying back is a right of the debtor's that can- 
 not be lost by prescription, and which cannot be affected by any clauses in 
 the contract. However, it is not allowed in cases of a life rent. And no 
 doubt in the old canonic doctrine the perpetual rent, which was likened to 
 the rent on land, could not be bought back excepting if there had been a 
 special agreement to that effect: Loysel, 511 and the note (Bull of 1568). Cf. 
 Ashley, II, 473; Pasquier, "Inst.," p. 559. 
 
 529
 
 § 390] OBLIGATIONS [Chap. Ill 
 
 rent-charge; grants charged with a quit-rent or a rent were per- 
 petual and irrevocable as a consequence of the social and economic 
 conditions of the later Middle Ages.^ 
 
 Constituted rents offered approximately the same advantages 
 that lending at interest did; the forbidding of the latter made the 
 former more numerous. And when they had once come into cur- 
 rent practice, debtors were no longer seen to give as a guarantee 
 of the pajTnent of the rent a charge on a stipulated piece of 
 land, but a general obligation over all other possessions. The 
 analogy with the rent-charge thus ceased to exist. It was asked 
 whether the law ought to sanction a security, or even a per- 
 sonal obligation of the debtor, which at a given time also allowed 
 one to proceed against all his possessions, even when there was 
 no mortgage. Dumoulin became a partisan of the validity of 
 personal rents,^ which were unknown in the old law; and his opin- 
 ion, which was advanced in 1545, was sanctioned some year§ later 
 by an order of the Parliament of Paris of the 10th of May, 1557.' 
 He found a powerful argument in the analysis of the rent which 
 was put forth by the theologians; the charge affecting a speci- 
 fied piece of land only seemed like a guarantee of payment; if it 
 were lacking, the transaction still existed; thus it was nothing 
 
 ^ Consequences: (a) The rents were divided up according to the law of 
 the locality where the immovable was situated, and not according to that of 
 the domicile of the debtor. (6) They were indivisible, just like the quit-rent, 
 and the adjudication of the land by decree did not clear them off as though it 
 had been a case of a mortgage where the beneficiarv had neglected to offer any 
 opposition: Desmares, 220; "Cout. Not.," 43; "Paris, A. C," 70, 71; "N. C," 
 99, 101. (c) An assignment meant the alienation of the land up to the amount 
 of the capital required for the payment of the rent ; the creditor thus acquired 
 a splitting of the ownership. He had to give homage and fealty for fiefs 
 to obtain the seisin in the case of common tenures, and to pay the transfer 
 taxes: Desmares, 189, 221; Beaumanoir, 24, 20; "Gr.CCout.," 174, 265; "A. C, 
 Anjou," vol. 2, pp. 238, 417, 547; "Paris, N. C," 82. In the pledge-giving coun- 
 tries the acquiring of this rent assumes that the formalities of vesting and divest- 
 ing had been carried out; elsewhere it was sufficient if the arrears were paid 
 (c/. recognitory rent) : "Anjou," 291; ikferZw, see "Assiettede Rente." (d) The 
 giving up of the land freed it from the rent in the same way as its loss would 
 have done: Argou, IV, 15. 
 
 2 Balde, "ad 1. un. C. de his q. poense nom.," admitted of personal rents 
 "inter bonos" and in conformity with the local custom (but contra, "si de 
 feudo vasalli," n. 7). Jean Faure maintained that assignment did not 
 necessarilv imply alienation ("Inst, de act.," § "item serv."; "de assign, 
 libert."; ^'Code de don."; "ad 1. si quis arg."). Some of the casuists allowed 
 personal rents when they were constituted by a trader or an artisan, for 
 they then sold a portion of their profits: Dwnoulin, "De Us.," 22. C/. on 
 "Paris," 84, 85; Loyseau, op. cit. But " Navarre," "De Usur.," q. 15, n. 115; 
 Tiraqueau, "De Retr.," 1, 6, 15, condemned general rents, rents that can be 
 bought back, and rents that may be easily removed; to the same effect, a 
 Bull of Pius V, in 1568. 
 
 3 Apropos of the lords' due and sales: "Paris, A. C," 58, "N. C," 83. 
 
 530
 
 Topic 6] SOME PARTICULAR KINDS OF CONTR.\CTS [§ 392 
 
 more than an ordinary mortgage, an accessory of the debt, and 
 not an essential part of the transaction. This opinion, which pre- 
 vailed ^ because it was more in harmony with the economic needs 
 of this time, should have caused constituted rents to be classified 
 among movables; as a matter of fact, they were only credits af- 
 fecting certain sums of money .^ But tradition was stronger than 
 logic; they continued to be placed among immovables under pre- 
 text that the rent formed a legal being, which was distinct from 
 the income, and because of the more serious motive that it had too 
 much value not to be subject to the protecting rules of invest- 
 ments in immovables in the interests of families. The Revolu- 
 tionary law proceeded to the natural consequences of the opinion, 
 of Dumoulin: at first these rents were practically converted into 
 movables, as they could no longer be mortgaged, and later 
 on they were converted into movables by means of a formal 
 enactment.^ 
 
 § 391. The Same. — (D) Life rents. This species of consti- 
 tuted rents ^ was first of all seen under the form of a charge (con- 
 tracted, for example, by a monastery) of lodging and supporting 
 until the end of his days the person who granted a domain or land 
 {cf. infra, "lease for support"). 
 
 § 392. Assignment of Claims. — (A) Early inalienability.'' 
 
 ' Consequences: the assignment is only a mortgage; no lords' due and 
 sales taxes have to be paid for the constitution of rents; the loss of the 
 land leaves the rent still in existence; sale by decree clears off perpetual 
 rents (and not life rents): Desmares, 223, 272; "Cout. Not.," 122, 130; 
 the rent is called movable in some of the Customs ("Blois," 157; "Reims," 
 181, etc.) and in the countries of written law: Ferribre.see "Rente"; however, 
 as a general thing, it is held to be an immovable: Ordinance of 1747, 1, 3. 
 The complaint is no longer admitted excepting in cases of rents on land: 
 Lauriere, on "Paris," 96 (contra, Desmares, 38); Loysel, 507-518. 
 
 2 The Ordinances, at least those since the sixteenth century, fix a maximum 
 rate of interest beyond which the rent cannot go without being tainted 
 with usury. This rate of interest has varied; it was 10 per cent according to 
 the "Extrav.," "Regimini"; SVa per cent in 1567; 6V4 per cent in 1601; 5% 
 per cent in 1634; 5 per cent in 1665, and especially according to the Edict of 
 June, 1725. Isambert, Table, see "Rentes." The Ordinance of May 3, 
 1350, etc. Prescription of arrears in five years: Ordinance of June, 1510, 71; 
 January, 1629, 142; Decree of August 20, 1792; August 24, 1793, 151: Loysel, 
 608-513; Legouix, "D^chdance quinquennale," 1901; Lair, "Int6r6ts,*' 1860. 
 
 8 Law of Dec. 18, 1790; Law of 11 Brum., year VII, 9; 22 Frim., year VII, 7. 
 
 * P. de Fontaines, p. 131; Beaumanoir, 50, 13. 
 
 ^ The intransmissibility of claims persisted in the English common law 
 until 1873; up to that time the creditor who wished to assign his right could 
 only do so, just as in the Roman law, by means of agency; the assignee, or, 
 rather, the attorney acted in the name of the assignor; the agency came to 
 an end upon the death of either one of the parties. There was an excep- 
 tion made in favor of the king. The courts of equity, on the other hand, 
 admitted the validity of this assignment. 
 
 531
 
 § 392] OBLIGATIONS [Chap. Ill 
 
 Neither claims arising "ex delicto" nor claims arising "ex con- 
 tractu" could, in early times, be granted to a third party; by 
 what right, in fact, could the latter have prosecuted the debtor? 
 He had been the victim of no injury on the part of the latter, and 
 he had received from him no engagement whatsoever (for ex- 
 ample, no oath). Just as to-day the changing of a debtor without 
 the consent of the creditor cannot be conceived of, so in olden 
 times they could not understand the substitution of one creditor 
 for another. They had also in mind the fact that the harsh 
 means of coercion with which creditors were armed — physical 
 constraint, for example — could be used in very diverse ways, 
 according to the mood of the persons who had a right to make 
 use of them; the creditor that one had chosen oneself, a relative 
 or a friend, would, as they knew, employ a great deal of care in 
 making use of them, whereas a stranger might very likely show 
 himself to be pitiless and inhuman. Even to-day, although the 
 transfer of claims is in common use, it is not a matter of indiffer- 
 ence as far as the debtor is concerned to have such and such a 
 man for his creditor. 
 
 § 393. The Same. — (B) Indirect means, however, of arriving 
 at results which were rather similar to those following an assign- 
 ment, were open to the parties. — 1st. Novation by changing 
 creditors; ^ this assumed a new undertaking on the part of the 
 debtor towards the third party who took the place of the original 
 creditor; consequently, it was dependent upon the will of the 
 debtor. — 2d. The order "ad litem"; ^ when representation at 
 law was admitted the creditor could give an order to a third party 
 to reclaim the payment of the debt, and, if necessary, to arraign 
 the debtor before the courts; the agent had only to keep intact 
 the amount of the claim; but this method of assignment was very 
 imperfect, because, if the agent should die before having been 
 paid, his powers did not pass to his heirs; none the less, it remained 
 in force in England until 1873. — 3d. The simultaneous under- 
 taking of the debtor towards the creditor and towards a third party; ^ 
 the latter by virtue of his designation has the right of demanding 
 payment without showing himself entitled to a right to the claim. 
 
 1 "Blume des Sachsensp.," II, 2, 98; Boutaric, I, 26. 
 
 2 English law and German law, "Stat, de Goslar," 70, 8-10, etc. In Ger- 
 many the assignor adds to the power of attorney a renunciation to his own 
 rights of action. Cf. in Rome, "procur. in rem suam." — "L. Anastasiana," 
 Goldschmidt, p. 311. 
 
 3 C/. in the Roman law the "adstipulator," the "adjectivus solutionis 
 gratia." 
 
 532
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 394 
 
 As long as representation at law was not admitted, this was only 
 done in an imperfect manner; there was in this a convenient ex- 
 pedient by which the same object might be obtained. From the 
 Prankish period we see the creditor making the debtor promise 
 him that he will pay the creditor in the hands of a third party 
 (designated beforehand or whom he has reserved the power of 
 designating afterwards). These clauses, while they developed 
 in the interests of commerce, gave rise to bills to order and to 
 bearer. 
 
 § 394. The Sapine. — (C) Assignment. Transfer. When form- 
 alism disappeared and the means of carrying out execution against 
 the debtor became less harsh, the assignment of claims could be 
 made in a direct manner; ^ the creditor transferred his right to the 
 assignee.^ According to the Custom of Paris of 1510, Art. 170, 
 ** A mere transfer does not give seisin," which means that the 
 transfer, according to the Custom of 1580, Art. 108, must be 
 notified to the debtor or accepted by him. Up to that time the 
 debtor is released by paying the transferror, the creditor of the 
 transferror can have himself paid out of the claim which has been 
 transferred, and, finally, between two successive assignees, the 
 one who has first notified the creditor has preference over the 
 other. The primitive meaning of this axiom is not very well es- 
 tablished;^ it is not certain that the old texts require the above 
 
 ^ In France transmissibility is not admitted of by certain Customs ; others 
 accept it at an early time. As to the former, cf., Boutaric, I, 26 (p. 146), II 
 (p. 54); "Roisin," 51, 56, 57. — On the other hand, this assignment appears 
 after the thirteenth century in P. de Fontaines, 15, 49; "Ass. de Jer.," "C. 
 des Bourg.," 212, ed. Kausler, 237; Beaumanoir, 35, 19 {cf. 18); Varin, 
 "Arch. Adm. de Reims," 1, 2, 744, 1118; Delisle, "Jug. de I'Echiq. de Norm.," 
 no. 267 (in 1249); "L. d. Droiz," § 760; "Summa art. not.," p. 27; M&ry, 
 "Hist, du Commerce de Marseille," 1, 292 (in 1224). 
 
 ^ The agency clause is only inserted in the assignment for the sake of 
 greater precaution: Varin, "Arch, adm.," I, 2, p. 1097. "Procuratio in rem 
 suam" borrowed from Italy. Nevertheless, the assignee is not treated like 
 a legal representative; thus he has no need of letters of authority in order to 
 proceed against the debtor; Bartole, c. 1, "C. J. de O. et A." 
 
 ' Lojjsel, 365, 657; "Saintonge," 42. Cf. "Blois " 263, and "N. C, Paris," 
 108. It is connected with the L. 3 of Gordien, "Coa. Just.," "de nov."; Ville- 
 quez, "R. h. Dr.," VIII, 466. But the Romanists look upon the claim as being 
 transmitted by the assignment, and not by the notification, and do not spe- 
 cially concern themselves withit, as the " N. C., Paris," 108, docs with the notice 
 requiring the production of a copy of the deed of conveyance; Brunner, 
 "N. R. H.," 1886, 28, 1, proposes two explanations: (A) The seisin of the 
 rents only takes place upon the attainment of the arrears, when investiture 
 no longer applies: "A. C, Anjou," § 332. This rule was extended to claims. 
 (B) It must have been a particular application of the rule: "A gift is invalid 
 without seisin," that w;us api)licd first of all to rents and then to claims, 
 Bourdot de Richeb., Ill, 175, 189 ("Mantes," 4, 3, 90), and then extended under 
 
 533
 
 § 394] OBLIGATIONS [Chap. Ill 
 
 meaning; ^ but it was too useful not to be demanded very soon; 
 in fact, thanks to this maxim, the debtor who was notified of 
 the assignment could not pay off his debt into the hands of the 
 assignor without incurring double liability. Thus, against third 
 parties, this notification became the equivalent of delivery in 
 the case of corporeal things.^ 
 
 § 395. The Same. — (D) Payment with subrogation is only the 
 Roman privilege of the assigiunent of actions combined with the 
 "successio in locum creditoris" as far as mortgages were con- 
 cerned.^ We must assume that a third party pays the debt of 
 another when due; he is allowed, in order to have the money he 
 advanced paid back to him, to make use of the rights which be- 
 longed to the creditor, whose interest has ceased, and especially 
 of mortgages given in his favor, according to the rank with 
 which they were invested. For this purpose he requires an agree- 
 ment, made with the creditor or with the debtor, which will be the 
 case when he acts in the interest of one or the other, or else, if the 
 third party acts in his own interest, a requisition addressed to the 
 creditor, whether the latter knows it or not. — It was not without 
 difficulty that subrogation based on an agreement with the debtor, 
 and carried out in spite of the creditor, was introduced into our 
 law; but this was only a logical consequence of the institution. 
 If the third party transmitted the money to the debtor and the 
 latter paid the creditor, then the creditor had no reason to offer 
 any opposition to the third party exercising those rights for which 
 he himself had no further use. As to subrogation upon a requisi- 
 tion for the benefit of those who paid what they owed with others 
 or for others (sureties, joint and several debtors, etc.) it would 
 have been logical to decide that this type of subrogation would 
 take place as matter of law; because the creditor could not offer 
 any refusal in opposition to the demand which was made of him, 
 
 the influence of Law 3, supra, and of the necessity of a notification for every 
 assignment. 
 
 1 Masuer, 31, 7. Acceptance by the assignee: Lauriere, on "Paris," 108. 
 
 2 Bills payable on presentation : "Zf. Handelsr.," 22, 59; "N. R. H.," 1886, 
 178; Franken, "Pfandr.," 1,248; "Avignon," 50; "Toulouse," "de solut." 
 The handing over of the bill ceased to be absolutely necessary when the latter 
 was no longer looked upon as anything but a means of proof; and when the 
 "carta" and the "notitia" were no longer distinguished, instead of restoring 
 its effect to the deed, or of invalidating it by a mention in writing, or by tear- 
 ing it up, they often limited themselves to the delivery of a receipt to the debtor, 
 — a thing that was absolutely abnormal during the Frankish period. 
 
 ' Confusion: cf. Bartole, on I, 1, D., "quse res pig."; Negusantius, "De 
 pign.," 5, 3, 45 (cited by Beaum., p. 159); Favre, "Def.," 1, 2, 3; Pothier, 
 "Intr.," no. 66 et seq. 
 
 534
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 396 
 
 the latter being nothing but an idle formality. This is what 
 Dumoulin upholds in the first of the formal lectures which he gave 
 at Dole, and which was in accord with the precedent of the " suc- 
 cessio in locum." Here the jurists were not in accord with the 
 courts.^ Though in that period it does not seem that Dumoulin's 
 opinion prevailed, the framers of the Civil Code very properly 
 sanctioned it (Art. 1251).^ 
 
 § 396. The Same. — (E) Bills to hearer and to order. This class 
 of writings contained a promise to pay a person other than the 
 creditor, a third party who was unknown at the time of the mak- 
 ing of the bill, and who would be determined in one instance by 
 the possession of the latter, — clause to hearer, — in another in- 
 stance by a writing of the creditor named in the bill, — clause to 
 order. In the hills to hearer the debtor promises to pay: 1st. Some- 
 times to the creditor or the bearer ("vel cui hoc scriptum in manu 
 paruerit"). 2d. Sometimes simply to the bearer ("ad hominem 
 apud quem hoc scriptum in manu paruerit"). The first of these 
 forms is met with in Italian records of the ninth century; the other 
 is only found about a hundred years later. From Italy bills pay- 
 able to bearer passed into general usage in other countries.^ In 
 France they are to be found in the thirteenth century.'* The al- 
 ternate clause ("to N. or to bearer") is the most commonly used.^ 
 
 ^ With the same meaning as DumouUn gives it, cf. Serves, "Inst.," Ill, 21; 
 Orders in Maynard, II, 49; D' Olive, IV, 31. — To the contrary, Pothier, 
 Renusson, etc. 
 
 ^ Cf. "personal subrogation" and "assignment of claims." The creditor is 
 free to convey his claim; subrogation is imposed upon him. The assignee 
 speculates; the man subrogated rather does a service or carries out his own 
 business; also, when he pays 9 for a claim of 10, he can only reclaim 9, whereas 
 an assignee would have the right to 10; and in the same way the surety can 
 only demand from his fellow sureties their share. Subrogation must not injure 
 the creditor; it is imposed upon him because "sibi non nocet, alteri prodest 
 (nemo contra se subrogasse censetur.") The man subrogated is not held 
 bound to furnish a guaranty as the assignor is. The man subrogated does not 
 have to give the debtor any notice. 
 
 3 Brunnner, "Zf. Handelsr.," XXII, 119, 505; Pertile, IV, 461 (testamentary 
 executor). 
 
 * Alternative clause: Wamkoenig, "Flanfr. Rechtsg.," Ill, 2, 159 (Act 
 of 1276); Beaumanoir 35, 20; "A. C, Artois," 3, 34; Mnzure, "F. de Beam," 
 p. 285; "Gr. Cout.,'* p. 834, etc. Simple clause: "Cartul. de Fhnes," I, 
 252 (no. 231), in 1281; /^Roisin," p. 303, etc.; Brunner, "N. R. H.," 1886, 36.— 
 Bracton, fo. 46 & ("missibilia"). 
 
 * See as to this clause the detailed analysis in the texts: "N. R. H.," 1886, 
 pp. 37-50, 139-148; "F. de Beam," 42, 110, 117; cf. od. 1715, p. 29; "A. C., 
 Artois," 2, 8; Boutaric, I, 11 and 107: "principal" and "command" (which 
 Brunner reads instead of "convent") means creditor and bearer (notes by 
 Charondas); "M6m. Soc. Antiq. Norm.," 18, p. 64; "Gr. Cout.," p. 433; 
 "Cout. Not.," 27; Desmares, 171, 179, 164, 378, 255; /. Lecoq, q. 4; Masuer, 
 "De Solut.," 15 (but cf. Bmnus, "Decis.," pp. 580, 277, ed. 1599); Rebuffcr 
 "Comment, in Const.," 1599, I, 39; "Inst, for.," I. 
 
 535
 
 § 396] OBLIGATIONS [Chap. Ill 
 
 The holder of a bill which contains this clause may demand the 
 amount without being compelled to show whence he obtained the 
 bill, and without having to prove the regularity of his possession.^ 
 Thenceforth it presents the great advantage of allowing the cred- 
 itor: 1st. To assign his claim without any waiting, and without 
 notice to the debtor, by the mere handing over of the bill. 2d. To 
 have himself represented by the bearer, without letters of authority, 
 and without warrant of attorney; it is true that the bearer may 
 abuse his powers by transmitting the bill to a third party, and that 
 this cannot be undone, for, so long as he has possession of the bill, 
 the debtor has no other creditor but him. However different his 
 position might be from that of an agent, our old jurisconsults 
 nevertheless called him an attorney of the creditor's with the ob- 
 ject of justifying his right to act at law^; this was a fiction invented 
 in order to harmonize the old practice with the Roman ideas. At 
 first it had no very great influence upon these facts; ^ but at the 
 end of the sixteenth century it resulted in causing bills to bearer 
 to be treated like ordinary bills which name some one, and re- 
 covery upon which one would have left in the hands of an agent; 
 this was to deprive them of their most essential advantages. The 
 need which practice had for the effects of a rapid circulation led to 
 the invention of notes in blank; at one time this sort of bill replaced 
 bills to bearer in civil and commercial usage; but the courts looked 
 upon them as dangerous and prohibited them; they were even 
 proscribed, with bills to bearer, by an Edict of 1716, which was 
 intended to reserve the privilege of the clause to bearer for notes 
 of the State and those of the national bank. The prohibition did 
 not survive this famous system; at least in 1721 another Edict 
 authorized bills to bearer. 
 
 The clause to order,^ which is of no less importance than the 
 clause to bearer, is connected, as is the latter, with very old for- 
 mulae. From the seventh century deeds contain clauses of such a 
 tenor as this : " I will pay to N. ... or to him ' cui dederit hanc 
 cautionem ad exigendum'"; in the eighth century they say: "vel 
 cui in manum miseris"; in the old Italian deeds of the twelfth 
 
 1 The conception that people had of the "carta" and of the role it played 
 in law must have contributed towards this result. 
 
 * However, the rule that agency is extinguished by the death of the agent 
 was applied to him: Desmares, 164, 378; Loysel, 377. 
 
 3 "To N. or his order," a formula that is equivalent to, "To the order of 
 N.," for N. can designate himself: Stobbe, § 178. Cf. in " N. R. H.," 1886, 169, 
 the comparison between the agency clause and the clause to order under 
 their various forms: Heusler, § 48; Debray, "These." 
 
 536
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 396 
 
 century: "vel cui ordinaveris." ^ The French formula of the 
 thirteenth century, "to N. or his depositary, or his messenger," in 
 the seventeenth century are replaced by the clause to order, which 
 comes from Italy and which prevailed everywhere. The bill to 
 order served the same purposes as the bill to bearer; but the latter 
 could circulate through several hands, whereas the bill to order 
 " only admitted of one transfer, for the depositary was obliged to 
 prove that title had been given to him by the person mentioned 
 in the deed," and this was ordinarily done by the presentation of 
 a warrant of attorney.^ A practice of Italian origin, indorsement,^ 
 dispensed with the production of a special warrant of attorney, be- 
 cause it was a real authority written on the back of the bill.^ The 
 innovation consisted less in this mention on the back of the bill — 
 a rather widespread custom, at least since the fourteenth century, 
 in very diverse cases, and one which passed without difficulty to 
 bills to order ^ — than in the sanction of a series of successive 
 transfers which ensued upon it.^ Bills to order thus took the 
 place of bills to bearer, which had been forbidden, and became 
 a medium of circulation. It is in this sense that the assertion of 
 
 1 Bill of exchange to order, c/. Act of May 18, 1760 (Genoa): "Monum. h. 
 pair."; Chart. 2, no. 882. Bills to order in Marseilles, 1247-1248 {BLancard, 
 op. cit.). Cf. the Neapolitan Law of 1607. 
 
 2 Instead of "letter of attorney," it would be better to say "designation of 
 the depositary"; the only thing that has to be proved by the depositary (who 
 is actually the bearer) is that he was designated by the payee "ad exigendum," 
 it matters little for what reason (gift, assignment for a consideration, or agency). 
 Has this designation the effect of making the holder an attorney or an as- 
 signee of the payee? It is very unlikely, because the old law knows neither 
 agency nor assignment. Thus we are reduced to the necessity of saying that 
 the holder has a right of his own that is acquired by him directly by virtue 
 of the clause to order; thus he is not the assignee of the payee; he does not 
 act in the hitter's name; nor can he be met by defenses available against 
 the latter (for example, payment, Loysel, 704; Boutaric, I, 44): "Olim," 
 II, p. 1362 (in 1318). The analogy between bills to order and bills to bearer 
 militated in support of this idea in the past, and the needs of commerce kept 
 its practical consequences in existence afterwards, at least up to a certain 
 point, when under the influence of the Roman ideas in the holder was seen 
 only an attorney of the payee (whether in "rem suam" or in the interest of 
 the latter). 
 
 3 A French origin is ordinarily attributed to it: "N. R. 11.," 1886, 174 
 (bibl.). But cf. Goldschmidt, 451; Debray, 47. 
 
 * The order is also ])lacod at the bottom of the bill of exchange in the same 
 way as a signature guaranteeing payment. 
 
 * "Gr. Cout.," 265; Du Cange, see "Indorsare"; Boutaric, I, 49. Cf. 
 "Cod. Just.," 8, 43, 14; Damhouder, "Praxis rerum civil.," c. 89 (indorsement 
 of every substitution of an agent). A custom of indorsing bills of exchange 
 was first of all established in order to confer the power of attorney. Ordinance 
 of 1673 which contrasts indorsement (giving of power of attorney) with the 
 order (assignment). 
 
 6 Cf. Debray, 47. 
 
 537
 
 § 396] OBLIGATIONS [Chap. Ill 
 
 Scavary that there was no indorsement upon bills of exchange 
 before 1020 is accurate.^ 
 
 § 397. The Same. — (F) Bills of Exchange. The merchant 
 who goes to a fair or to a distant place of business has need 
 of foreign money; he can procure it upon his departure or 
 upon his arrival by exchanging his specie for other specie 
 {manual exchange, transmitted from hand to hand). But the 
 transporting of money, especially in the ]\Iiddle Ages, was trou- 
 blesome, and not very safe; it was better to apply to a mer- 
 chant or banker who had a correspondent (associate, etc.) ^ in 
 the place where one was going; by paying value to him one ob- 
 tained from him the promise that he would cause the necessary 
 amounts to be furnished by his correspondent {exchange drawn, 
 exchange of specie with transfer to another locality; transfer from 
 place to place) .^ A writing, " instrumentum ex causa cambii" 
 was ordinarily drawn up to furnish proof of the transaction, as 
 in the case of every other deed. But it had no special effects, and 
 it is not from this source that the bill of exchange came; we may 
 merely note the fact that it habitually contained the clause to 
 order; the correspondent must pay to the man who gave value 
 "vel suo nuntio" (to the person presenting the bill). The bill of 
 exchange has its origin in the letter of notice or draft addressed 
 by the banker {drawer) to his correspondent {drawee) which asks 
 him to pay the sum which he, the banker, has promised; this was 
 a mere message without any value in law; * it co-exists in the thir- 
 teenth century and the beginning of the fourteenth century with 
 the notarial deed which we have been discussing. During the course 
 of the fourteenth century it comes to be substituted for the latter 
 and eliminates it, and this is possible because there are found 
 therein the same statements, and it is intrusted to the man who 
 
 * Parbre, 82; Goldschmidt, 451: from 1560 on, great number of indorse- 
 ments in Italy: " Pragmatique " of 1607 and 1617 (prohibition); Law of 
 Venice of 1593; Clairac, "Usances du Ndgoce," pp. 35, 62; Ord. of 1673, 5, 
 23. Cf. Debray, 51 (theories of the seventeenth and eighteenth centuries). 
 
 * Or even originally an overseer or clerk. Cf. "passive" clause to order 
 "per me vel per meum nuntium." 
 
 ^ Cf. Goldsmidt, op. cit., p. 412 ("cambium ad risicum maris," or, on the 
 other hand, "salvum in terra"). 
 
 * Various systems as to the origin of the draft. Goldschmidt connects it 
 with the domestic bill of exchange; Schaube, with business letters between 
 merchants; Lastig, "Zf. Handelsr.," 1878, 138, with the mentioning of it in 
 the registers of the bankers or "campsores," which in Italy had executory 
 force and were accompanied by a notice or letter of payment; Freundt con- 
 nects it with letters patent and sealed letters delivered by the kings or towns 
 to their creditors. On these points and on Arabian influence, cf. Huvelin, 
 op. cit. 
 
 538
 
 Topic 6] SOME PARTICULAR KINDS OF COXTIL\CTS [§ 398 
 
 gives value himself in order to be presented at maturity, either by 
 him or by his legal representative, to the drawee who shall pay 
 on presentation. It has, moreover, the special advantage of 
 summary proceedings at law, and it carries with it a recourse 
 by the man who gives value against the man who has signed the 
 bill, when unpaid by the drawee. The clause value received, 
 and the handing of the letter to the payee, implies an acknowledg- 
 ment of the debt on the part of the drawer. The order to pay, 
 which is given to the drawee, is to be accounted for by the fact 
 that he is the partner of the drawer, or that he has received 
 value from the latter (provision); under these circumstances, one 
 can understand that the drawee was held bound to accept the 
 letter. This was originally done verbally "per retentionem lit- 
 terarum," and later on by a notice written upon the deed itself; a 
 refusal to accept was also proved by means of a written notice of 
 the drawee; but this custom, which was not very favorable to 
 credit, disappeared, and the responsibility of niaking a protest for 
 non-acceptance was left to the bearer. By acceptance, although 
 the drawer is not liberated, the drawee binds himself as regards 
 the bearer; he does it rather in the name of the drawer than in 
 his own name, which allows him to avail himself (until towards 
 the sixteenth century) of the defenses which the drawer could 
 oppose to the payee (for example, the latter had not furnished 
 him with value). If the drawee accepted ''without cover" when 
 no value had been given, he was considered as being bound, 
 nevertheless, because "acceptance presumes value." Thus the 
 tendency to make the rights of the bearer independent of the re- 
 lations l^etween the drawer and the drawee is timidly advanced 
 with the object of facilitating the circulation of the bill and giving 
 more security to the bearer. The clause to order and numerous 
 indorsements furthermore allow the bill of exchange to fulfill a 
 new function; at first it only served to avoid the transporting 
 of money; now it becomes a means of payment and an instrument 
 of credit, a sort of currency between merchants; the value which it 
 represents is incorporated in it, and the complex practice of modern 
 times thus springs in an unexpected way from the formalistic 
 "carta" of the barbarian period. 
 
 § 398. Agency and Representation. — (A) General Remarks. 
 In the very old law juridical acts should be carried out by the 
 interested party himself; this is a consequence of their formalistic 
 character; ceremonies or words which they assume imply his own 
 
 539
 
 § 398] OBLIGATIONS [Ch.yp. Ill 
 
 presence; they would have no meaning if they came from a third 
 party. Under the system of non-formal transactions (for example, 
 contracts by mutual consent),^ representation became possible; 
 each one could make known his will, not only by means of a letter 
 or a "nuncius" ("epistola loquens") but by an agent furnished 
 with powers and instructions which were sufficiently broad for 
 one not to be able to term him merely a mouthpiece. Owing 
 to a rather natural fiction, however, he is likened to a mere . 
 messenger; the act of the agent is looked upon as the act of the 
 principal. Cases in which it is necessary to act through repre- 
 sentatives have occurred at all times, — for example, one is 
 absent or ill. How did one proceed in the formalistic period to 
 do a legal act in such a case as this? Inaction is not always 
 possible; for example, if one is summoned to appear in court, one 
 is compelled to appear so as to avoid the penalties which fall upon 
 the defaulter. The head of the family sometimes escaped this 
 necessity by using the people dependent upon him, the people 
 of his household ; ^ but their sphere of action was rather lim- 
 ited, for it is evident that they could not bind the master "in 
 infinitum." ^ To be sure, representation was less called for 
 than one might believe, for every act which involved a person 
 under a disability was performed by his custodian, who acted in 
 his own name by reason of his status as head of the family; such 
 would also be the case when an individual "sui juris" had 
 an interest in giving up his independence and placing himself 
 under the custody of some other person, with the result of placing 
 that other person over his affairs.^ As far as obligations were 
 concerned, bills to bearer furnished a means of dispensing with 
 representation. Besides the preceding cases,^ it was possible to 
 secure the performance of the majority of acts by a third person in 
 his own name, assuming that one obtained afterwards from him the 
 transfer of the advantage or the burden which resulted there- 
 
 » Heusler, I, 210. 
 
 2 Boutaric, 1, 12 (founders and factors); Beaumanoir, 34, 5, 6; 29 (sergeants). 
 Monks in the case of monasteries: Dig. X, 3, 35, 6. — Paul, 5, 2, 2 ("L. 
 Rom. Cur."). 
 
 * Goldschmidt, I, 244. 
 
 * Act of 693; Pertz, "Dipl.," 68; "Sachsensp.," 1, 42, l. — Cf. Roman 
 command; "L. Wis.," ed. Zeutner, Index, see "Mandatum"; Roziere, "Form.," 
 1,314 et seq.; Thevenin, "Textes," 262; Du Cange, see "Mandare"; "Siete 
 Part.," 5, 12, 20; "Cart, de St. Victor," I, 27. 
 
 * Also the English institution of "uses": a third party acquires "ad opus" 
 (French: "ces," "os"; EngUsh: "use") "monasterii": Pollock and Mait- 
 land, II, 226. 
 
 540
 
 Topic 6] SOME PARTICULAR KINDS OF CONTR.\CTS [§ 398 
 
 from. Thus one person bought a piece of land and paid for it, 
 after which he resold it to the one on whose account the pur- 
 chase had been made; but this complicated proceeding is not 
 without its risks; one of the parties may suffer by reason of the 
 insolvency of the other; if the transaction is an advantageous 
 one, the third party may possibly want to keep it for himself; he 
 may die before having carried out the transfer, and his heirs may 
 refuse to carry it out; if the transaction is a bad one, it is the 
 third party who is liable to lose, as a consequence of a change of 
 will or the death of the one who is chiefly interested.^ Noth- 
 ing can take the place of representation, properly so called.^ It 
 ■entered the Customary law in proportion as formalism disap- 
 peared.^ But, in order to show how slow was its progress, it is 
 sufficient to establish that it was not allowed, upon principle, 
 in Germany before the thirteenth century. Were it a matter of 
 endowing a monastery, one did this only when the relics had been 
 placed there; it is to the saint himself, in person, upon the shrine 
 where his remains are, that the transfer is made; if one is to 
 restore a piece of land to St. Victor of Marseilles, the monks bear 
 
 * Beaumanoir, 34, 36, 37, 55; c/. especially c. 29 (services carried out by 
 order). Cf. "Jostice," 162. — "Commission," cj. Ferriere, see "Facteur''; 
 "Diet, ceconomique," see "Commissiomiaire"; Goldschmidt, I, 331; Du Cange, 
 see "Commissio." — Will by commissioner: R. Caillemer, "Execut. test.," 
 p. 512. — Election of an agent: c/. "Repertoires," see "Prete-nom."; 
 Soldan, "R. Gen. Dr.," 1885, 113. 
 
 2 With regard to Promises and Stipulations on behalf of another there is a 
 great deal of confusion in the old doctrine. Cf. J. Faure, "Inst.," 3, 18, 
 3 and 19; Gui Pape, "Q.," 317. They are not very clearly distinguished 
 from promises and stipulations made by the interposition of a third party: 
 Bucherellus, "De sequitate canonica"; these deeds are valid, and, in fact, 
 the rule has so many exceptions that one is inclined to ask whether it was 
 possible to apply it: Pothier, "Oblig.," 53 et seq. (cited by Grotius). In the 
 very old law one promises a certain thing for another (for example, that he 
 will appear in court), and one stipulates for another, for from the moment the 
 required formalities have been carried out the promisor is bound; the ques- 
 tion as to whether the man making the stipulation has a moral or pecuniary 
 interest in the carrying out of the obligation is not gone into. The examples 
 ordinarily cited give rise to difficulties: appointment of a marriage portion 
 by the wife's relatives, conferring the fief upon a lord in order that he shall 
 invest the purchaser, deeds by a "Salmann," life rent for the benefit of a third 
 party, substitutions, stipulations in contracts of marriage for the benefit of 
 children to be born in the future, bills to order and to bearer. Stobbe, § 172. 
 The Roman axioms penetrated the old doctrine, although they were contra- 
 dictory to the rule that all contracts were in good faith. But this was not 
 done without some difficulty: Beaumanoir, 34, 36 et seq.; "Stat. Bonon.," 
 14.54, 118 (one may stipulate on behalf of another, "non obstante quod sua 
 non intersit," and the third party has an action "ipso jure," just as though he 
 had stipulated): Fertile, IV, 4.55; Bartole, on 1. 1. D., "de pactis": Voet, 
 "Pand.," 46, 1 etseq.; Charondas, '^'Rdp.," X, 46; Buchka, "Stellvertr.," 121; 
 Lambert, "Contrats en Fav. des Tiers," 1893. 
 
 " Fertile, IV, 452, believes that it is older than this: "L. long. Lud.," 14. 
 
 541
 
 § 398] OBLIGATIONS [Chap. Ill 
 
 his shrine to the place and leave it there three days. There was, 
 however, in this a particularly favorable case, because it was 
 absolutely impossible for the monastery to act; therefore, one 
 approached as nearly as possible to the personal act. And, when 
 representation is accepted, it is not a rare thing to find that there 
 are doubts cast upon the validity of the act of the representative, 
 and that this act must be confirmed by the man who is represented 
 as soon as that becomes possible. Scruple and hesitation have 
 disappeared towards the end of the fourteenth century in a gen- 
 eral way, and before that period in many instances.^ The status 
 of agents for business transactions (by contrast with agents or 
 attorneys at law) was worked out by borrowing from the rules 
 of the Roman law and the canon law (the Sixth Book of Decre- 
 tals, 5, 12, 68, 72) .2 
 
 §399. The Same. — (B) " Salmannen." With ordinary represen- 
 tatives let us compare testamentary executors, whom we will deal 
 with later on, ^ and the "Salmannen" of the German law.^ The 
 "Salmann" is, as his name indicates, a person who carries out 
 the"Sala" or transfer of land, but who carries it out for some 
 one else; he is an intermediary between the grantor and the 
 grantee. Originally, he is found officiating for transfers "mortis 
 causa"; ^ in danger of dying, I wish to please some one after my 
 death; but, if I survive, I intend to keep my possessions; in order 
 to attain this object I confide them to a third party, to the person 
 whom one would call a "Salmann" during the feudal period, at 
 the same time making him promise to carry out my wishes; by 
 this means I shall be better assured of recovering them in case I 
 
 1 Beaumanoir contrasts sergeants (those who render services) for wages 
 and by command, whom he likens to people of the household (39, 6), and whom 
 the lord cannot disowTi so long as they fulfill their offices (excepting in the case 
 of a crime), with sergeants by request or appointment, to whom only their 
 expenses have to be paid, and who are bound with respect to third parties 
 (29, 6), and finally with those who serve without wages or having their ex- 
 penses paid, at their own risk and peril: Du Cange, see "Serviens"; Ragueau, 
 see "Sergent." 
 
 2 Dig. X, "de procur.," 1, 38, and commentaries of Hostiensis, etc.; G. 
 Durand, "Spec," ibid.; Boutaric, I, 10; Masuer, 4; J. Faber, "Inst.," Ill, 
 26; IV, 11, etc.; Loysel, 371 et. seq.; Domat, I, 15; Pothier, "Tr. du Mandat," 
 1767. — Cf. ibid., on the commission, the administration of affairs, guardian- 
 ship and custody. — As to the contract of agency or brokerage, cf. Loysel, 
 416; Goldschmidt, "Zf. Handelsr.," 28, 115. — Sub-agents: Loysel, 371; Beau- 
 manoir, 4, in fine. 
 
 8 Cf. "manda" in the case of a will: "Fuero Real," 3, 4. 
 
 * Heusler, II, 215; Stobbe, "Z. R. G.," VII, 405; Beyerle, "Grundeigen- 
 thumsrecht" (Constance), I, 1; "Salmannenrecht." Cf. "Z. S. S.," 1900, 
 "G. A.," 351. 
 
 * "L. Sal.," tit. 46 (appointment of an heir). 
 
 542
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 399 
 
 survive than if I had directly deprived myself of them in favor of 
 the person for whom they are really intended; and, moreover, 
 the latter might not be present at the time when I wanted to make 
 the disposition. In a general way, recourse was had to this kind 
 of alienation by means of a person interposed, whenever there was 
 an obstacle to direct alienation.^ And in the end the "Salmann" 
 was sometimes even given the part of a warrantor of alienation.^ 
 Outside of this exceptional situation there has been a great deal 
 of discussion upon the function and the rights of the "Salmann." 
 According to some he is a representative of the grantor; according 
 to others, a purchaser in trust.^ As we look at it, the difficulty 
 arises from the fact that his role was not always the same; he be- 
 gan by being a fiduciary purchaser and tended to become an agent 
 with powers which were more or less extensive. It is precisely 
 because of this evolution that his acts are not reconcilable and 
 have been capable of furnishing arguments in different directions. 
 At one period, when representation was not admitted, the grantor 
 who could not dispose directly for the benefit of the one for whom 
 he intended his property, found himself under the necessity of 
 granting the full ownership of it to a friend, at the same time 
 charging him in his turn to make a similar grant to the ultimate 
 grantee. This friend became the owner, but he bound himself by 
 
 1 "Cart. Sen.," 50; "Hist. Frising.," nos. 224, 287, 308, 366, 342, etc.; 
 "Urk. St. Gall," nos. 325, 342, etc. In 1160 Conrad, the Duke of Suabia, 
 serves as an intermediary in the case of an acquisition for the benefit of the 
 Prior of Burglen, because the reUcs of St. John were not on the spot at the 
 time the deed was drawn: Heusler, I, 208. 
 
 2 "Saleburgiones." C/. the texts cited by fl^eusZer, II, 222. "The Bavarian 
 'Salmann,' " says this learned man, "is the living land register of all property; 
 he bears witness to the regularity of the alienation." Cf. ibid. : "The stranger, 
 by whom the acquisition of a piece of land situated in a town is not on prin- 
 ciple permitted, is authorized to purchase if he has the assistance of a 'Sal- 
 mann' who is a citizen of the town." 
 
 ' According to Heusler, loc. cit., the truth would seem to be half way be- 
 tween the two systems. As far as he is concerned, the "Salmann" would be 
 in a position analogous to that of a guardian ("Vormund"). But the powers 
 that he is recognized as having assume that he has become the absolute owner, 
 — at least in the very old law; in fact, in order that he may transmit the prop- 
 erty to the person for whom it is intended, he carries out an absolute aliena- 
 tion with "resignatio"; it is the same when it is a question of restoring the 
 property to the original grantor. If the latter should carry out the transfer, 
 such an act as this on his part would be invalid, and it would be necessary for 
 the "Salmann" to intervene. The appointment of the "Salmann" takes 
 place "per festucam." Sometimes, even, we find that the grantor has trans- 
 ferred the property to him by carrying out both the delivery and the "resig- 
 natio." Had he not been the owner, he could not have validly carried out 
 the formalities of the transfer of ownership, and could not have served as a 
 warrantor for the purchaser. Cf., however, texts and discussion in Heusler, 
 II, 218. 
 
 543
 
 § 399] OBLIGATIONS [Chap. Ill 
 
 "fides facta" to make restitution; it is the "fidelis manus," "treue 
 Hand," which restores that which it has received. The value of 
 this proceeding depends a great deal upon the good will of the in- 
 termediary. It is true that the "fides facta" allows one to compel 
 him to perform, but the beneficiary of the deed — that is to say, 
 the one who is chiefly interested — is not authorized to compel 
 him to do so; only the grantor and his heirs have the right, which 
 is not sufficient, because the grantor cannot always act, and it is 
 possible that heirs who are indifferent might not wish to do so. 
 Then it was that they must have thought of limiting the right of 
 the "Salmann" over the possessions which he received, so as to 
 remove from him the temptation to which he was exposed of un- 
 lawfully keeping them; it is undoubtedly by reason of this that 
 the grantor stops with a simple " traditio," without "se exitum 
 dicere" which allowed of his more easily recovering that which 
 he had given. In places where the institution of the "Salman- 
 nen" existed their powers were restricted; as a general thing, 
 they disappeared to make room for ordinary agents. 
 
 § 400. The Same. — (C) Attorneys. One could not be repre- 
 sented at law during the barbarian period by reason of the form- 
 alistic character of procedure.^ There w^as no exception, even in 
 case of a lawful excuse, unless one pleaded in the court of the king, 
 or had obtained a royal privilege.^ Principle and exceptions are 
 to be found in the Customary law. Many of the Customs still for- 
 bade representation at law,^ unless by virtue of a privilege of the 
 king or a lawful impediment.^ But privileges were multiplied: 
 
 1 For the same reason a defect of one party halts the proceedings; one can 
 only accomplish this originally by indirect means, such as the fine and placing 
 outside of the law: Brunner, § 113; Pollock and Maitland, II, 592. Later 
 on the rule, "Absens pro confesso habetur": Loysel, 871; Glasson, III, 452; 
 VI, 495. Cf. theories of the excuses, etc.; Tardif, "Proc^d. au XIIP s." — 
 Champions or defenders in the duel at law: Beaumanoir, 41, 6; P. de Fon- 
 taines, 22, 13. 
 
 2 Marculfe, I, 21 (appointment of a representative "per festucam"), 2^; 
 II, 31; "F. Arvern," 2; "Turon.," 20; Rozikre, 344, 384, 387, 391; TM- 
 venin, "Textes," 269; Capitulary of 802, 9 (I, 93); Heusler, I, 205; Hiibner, 
 "Gerichtsurk. d. franh. Z."; Battaglia, "Rist. dir.," 1889. As to "Sal. 
 Extrav.," 12 (76), cf. Geffcken, bibl.; Brunner, "Mithio," p. 6. — The rep- 
 resentative was in a position analogous to that of a "Salmann." Cf. "ad- 
 vocati" ("avou^s"), lawyers, ecclesiastical "vidames" (the clergy is pledged 
 to plead by means of an attorney. Council of Carthage, 75). "Capit.," see 
 Table; Pardessus, "Dipl.'' 11,233. The vassals of the king can also have 
 them. Cf. for "vicini,'' Fumagalli, "Cod. ambr.," no. 121. 
 
 ^ Beaumanoir, 2, 16; 4, 2 and 31; "Const, du Chdt.," p. 79; Langlois, 
 "Textes pari.," pp. 19, 20, 135; Aubert, "Hist, du Pari.," II, 44. Germany: 
 privilege of the lord. 
 
 * The representative at law is called "procurator," "procureur," "attorn^" 
 (Normandy), "allou^." General texts: Beaumanoir, 4; "A. C, Artois," 9, 
 
 544
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 400 
 
 such was the one which was granted in a general manner to the 
 Church and the prelates, which was the easier to be accounted 
 for as the Courts of the Church admitted of representation.^ In 
 Normandy and in England the rule is that before the court of the 
 duke or the king one may be represented.^ The Parliament of 
 Paris did not go so far as this, and made between the plaintiff and 
 the defendant a wide enough distinction, which the other tribu- 
 nals took unto themselves: the defendant was free to have himself 
 represented; ^ the plaintiff, who can choose his own time for plead- 
 ing,^ must obtain a charter of exemption J' These charters were not 
 granted originally excepting to those who had a lawful excuse.^ 
 But, when it was seen that they had no more reason for existing, 
 they degenerated into a fiscal provision,^ and in the fourteenth 
 century they were granted to anybody who paid the fees of the 
 chancery. ^Nlany people had been allowed to dispense with them 
 at an early time, — churches, towns, bailiffs, and guardians, — and 
 they were not demanded in countries of written law.^ In the end 
 
 10; "Gr. Gout.," 3; "Olim," I, 833, 45. He does not have to furnish surety 
 "de rato" in the lay court. Beaumanoir, IV, 24: the act of the attorney is 
 looked upon as the act of the principal: ibid., 29, 6. 
 
 1 "Ord.," I, 118 (in 1290); cf. Langlois, "Reg. de Nicolas IV," 825. 
 
 2 Cf. Pollock and Maitland, I, 190 (attorney); "Summa Norm.," 64 ("de 
 attornato"). 
 
 3 "Et. de St. Louis," I, 106; Beaumanoir, IV, 31 (only noblemen: the men 
 of power must have the permission of the king or of the lord justice). Monks, 
 clericals and women have this right, ibid., cf. Ill, 9. — But in criminal matters 
 the defendant must appear in person: Beaumanoir, IV, 14, 23; "Jostice," 
 pp. 106, 132; "A. C., Anjou," IV, 317; "Ohm," II, 228, no. 7; Guilhiermoz, 
 "Enq.," p. 109; "Toulouse," 2, 2; "A. G., Bret.," 91; "A. G., Artois," 7, 21; 
 "Picardie," 14; "Gap.," IV, 14; VII, 337. 
 
 * He does not always choose it, for we must not think that one pleads for 
 pleasure; ordinarily one only has recourse to the courts if one is the victim 
 of an injustice, and in this case it is often urgent to ask for a reparation of tliis 
 injustice. Nevertheless, the defendant is favored rather than the plaintiff, 
 because the wisest thing to do is to maintain the "statu quo" as long as it 
 has not been established that it is unjust to do so. 
 
 5 Beaumanoir, II, 16; III, 32; IV, 2; "Jostice," p. 105; "L. d. Droiz," 
 I, 209; "A. G., Artois," 9, 5; "A. G., Anjou," 2, 103; "Gr. Gout.," p. 394; 
 "Stil. Pari.," 13; Masuer, 18. As to the delivery of these charters, cf. "Gr. 
 Gout.," pp. 19, 433, 394; Boutaric, I, 10; Le Coq, "Quest.," no. 86; Ord. of 
 Nov. 3, 1400. Valid only for a year; whence the necessity for renewing them 
 in many cases: Beaumanoir, IV, 10. 
 
 « The "Stilus Pari.," 13, 3 and the "Gr. Gout.," p. 449, explain the neces- 
 sity of charters of exemption by two motives that are equally false: the seat 
 of justice is more honored by the presence of the parties; it is only when the 
 demand is unlawful, some little trickery, that the complainant fears to present 
 it himself; the king spares him by passing his shame on to another. Cf. 
 "Et. de St. Louis," II, 8; Pasquier, "Rech.," II, 4. In these charters of 
 exemption it is easy to recognize the royal privilege of the barbarian period. 
 
 ' "Gr. Gout.," p. 432; Boutaric, I, 10; "A. G., Artois," 2, 8, 9; "A.G., 
 Anjou," II, 103; IV, 74. 
 
 8 Loysel, 374, 375; BeauTnanoir, IV, 31; "Gr. Gout.," pp. 432, 393; "A. G., 
 
 545
 
 § 400] OBLIGATIONS [Chap. Ill 
 
 they were abolished by force of the remonstrances of the States- 
 General of Tours of 1484.^ Not only had representation become 
 lawful, but the official solicitors had to be employed by pleaders 
 in their interest. By one of those oddities which are not rare in 
 the history of the law, the formula itself of the old principle, how- 
 ever, survived; the saying is, even at the present time: "No one 
 in France pleads by means of an attorney save the king." It is 
 true that it has assumed a meaning very different from that which 
 it was given at first. The powerful lords were in the habit of 
 having at the court of the king permanent attorneys charged with 
 representing them in all their actions. Now, the latter pleaded 
 in their own names. The Parliament forbade this,' and decreed 
 that the name of the party himself figure in the pleadings 
 and in the judgment, and this even before the name of the 
 attorney. It wa^ necessary that the greatest lords should not 
 seem to be superior to the justice of the king and should call 
 upon it just as ordinary individuals did.^ It is obvious that 
 this reason did not exist in the case of the king. It no longer 
 existed even for the lords when they pleaded before their own 
 courts; thus they were authorized to plead therein by means of 
 attorneys.^ 
 
 In the olden times the plaintiff who was capable of appearing at 
 court came in person and appointed his representative before the 
 judges in the presence of the adverse party, and perhaps vnth the 
 consent of the latter.^ (Cf. " cognitor.") This archaic method was 
 abandoned first of all for the benefit of the powerful lords, who 
 
 Artois," 2, 8; 3, 32; 9, 5; Boutaric, I, 12; "Olim," I, 694; "A. C, Bourg." 
 in Giraud, II, 294; Langlois, "Textes s. Pari.," nos. 46, 103; Lot, "Frais de 
 just." ("B. Ch.," 1872); "Toulouse," 3; Blanchard, >'Doc. inedits sur leCom- 
 merce de Marseille" (agency in the thirteenth century); "B. Ch.," 1878. 
 Fiction of representation in the Italian statutes of the twelfth and thirteenth 
 CGnturiGS 
 
 1 Isamhert, XI, 61 (Art. 17). Attempts in 1414. Cf. "Journal" oi Nic. 
 de Baye, II, 198; Aubert, "Le Pari.," pp. 251, 355; Lot, "B.Ch.," 1872, p. 592 
 (legal expenses, fourteenth century); Tanon, "Ordre du proces civ.," p. 16; 
 Roziere, "Ass. de Senlis," p. 13; "R. crit.," 1875, 638; 1876, 353; Percerou, 
 "Nul ne plaide par procureur," 1898. Ordinance of Nov. 15, 1407: at the 
 Chatelet the attorneys no longer plead the other attorney's lack of a charter and 
 no longer ask for these charters, which does not, however, prevent them from 
 making the clients pay for them: Ordinance of Jan. 13, 1528; Lebret, "Souver," 
 III, 10; Edict of June^ 1549 (queen). 
 
 ^ This is the current explanation; it is not a very satisfactory one. 
 
 3 Loijsel, 861 (bibl.); cf. "Toulouse," 3. 
 
 * Beaumanoir, 4, 17, 18, 20 (towns); "A. C, Anjou," II, 102 (partnerships); 
 "L. d. Droiz," nos. 802, 846, 975 (church). Salaried attorneys of the great 
 men of towns and of communities: Aubert, "Hist, du Pari.," pp. 255 et seq.; 
 Boutaric, I, 6, 10; "Toulouse," ib. 
 
 546
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 401 
 
 were authorized to appoint an attorney by authenticated writings 
 addressed to the judge. In the case of ordinary individuals also, 
 the duty of appearing in person was soon replaced by an authen- 
 ticated power of attorney/ the regularity of which the judge 
 had to verify. As soon as the cause was at issue the attorney 
 became master of the proceeding and could no longer be ousted; 
 he was looked upon as pleading on his own account.^ Elsewhere 
 we have described how the attorney's profession, originally free 
 from interference, was regulated by the tribunals and trans- 
 formed into an official position. 
 
 § 401. Sale. — (A) Formation.^ Sale, having once more be- 
 come a contract based on mutual consent,* was subjected in 
 almost every way to the Roman rules. Our old law, however, 
 admits that the sale of something belonging to another is not 
 lawful,^ and that the risk of the "res" is on the owner and not on 
 the creditor; ^ this is, at least, the tendency which arises from the 
 midst of the discussion, and it should be noticed that it harmonizes 
 with the early system according to which sale was formed "re." 
 The variations of the law on the subject of the formation of con- 
 tracts perhaps also account for the classic controversy on the 
 question of a promise to sell.^ Some, like Decius, held that only 
 an obligation "facere" resulted from the unilateral promise to 
 sell when accepted by the buyer. The promisor was only liable 
 to pay damages when he refused to carry out the sale. Others, 
 such as Jason, held that an obligation arose therefrom and 
 
 ' "Procuratorium," Beaumanoir, c. A; Boutaric, I, 10; Giraud, "Essai,"II, 
 152; Mazure, "Fors de Beam," p. 247; Varin, "Arch. leg. de Reims," I, 96. 
 General power of attorney and special power of attorney (according to cir- 
 cumstances, — for example, to compound, to compromise: Beaumanoir, IV, 
 30, 36; "A. C, Anjou," II, 101 et seq.; IV, 80, 317, and according to the period) : 
 "Et. de St. Louis," I, 107; II, 109. 
 
 2 "Gr. Gout.," pp. 397, 419, 433; Boutaric, I, 10, 107; Masuer, IV, 13; 
 "L. d. Droiz," I, 213; "A. G., Anjou," IV, 395; "Gonst.du Gh&t.," 71 (death 
 of the beggar). 
 
 ' Sales by authority of the law (ordered by the law and carried out under 
 its control): "encan" (movables seized), "licitation" (selling at auction) of 
 the immovables which cannot be partitioned, "decret" (decree) or adjudi- 
 cation upon a decree of immovables which have been seized, sale at law of 
 the immovable possessions of minors. 
 
 * As to the publication of sale (Italy) : Fertile, IV, 555; Salvioli, "Pubblicita 
 n. vend.," 1895. — Jagemann, "Daraufgabe," (earnest money), 1873. 
 
 Cf. Paul, II, 17, 1 ("L.Rom. Cur."); "Wis.," 5, 4, 8; "Bai.," 15; Caillet, 
 cited by Pothier, no. 48; Denisart, see "Gar."; Beaumanoir, 34, 3, 9, 55; 
 "A. G., Anjou," II, 234, 507; Boutaric, I, 27, 48; Argou, III, 23; Domat, 1, 2, 
 4, 13. Origin of this idea in the Ganon law: Endemann, 2, 24, 82, 87: Kohler, 
 "Abh.," 224; Dareste, 96. 
 
 * Glanville, X, 14. 
 
 ^ Aubepin, "R. crit. de L^g.," 1859, 177, 399; Texereau, "Th^se," 1899. 
 
 547
 
 § 401] OBLIGATIONS [Chap. Ill 
 
 allowed the buyer to have the thing which had been promised 
 delivered to him. There was a like controversy with regard to 
 the reciprocal promise to sell and to buy. According to Jason, 
 to sell was one thing, to promise to sell was another thing; the 
 promise did not carry with it the transfer of the title; it did 
 not throw the risk on the party who had promised to buy. Du- 
 moulin, together with Alexandre, maintained that the promise to 
 sell was equivalent to sale from the moment when all the ele- 
 ments of the contract existed together, — agreement of the par- 
 ties, an ascertained object, and a settled price. However, they 
 distinguished the promise "de prsesenti" from the promise "de 
 futuro"; if it were made to be carried out in the future it did 
 not carry with it any present obligation; the lord's fees were not 
 due; in case it was not performed damages had to be paid; the 
 vendor, by inserting a clause in the promise, could reserve the 
 right to dispose of the object of the sale, and the buyer did not have 
 the risk. Dumoulin's doctrine prevailed in the French practice. 
 
 § 402. The Same. — (B) Effects. The obligation to deliver 
 and to warranty is incumbent upon the vendor, that of pay- 
 ing the price is incumbent upon the buyer.^ The old authors 
 subordinated the transfer of the ownership of the thing purchased 
 to the payment of the price.^ In practice this means that the 
 vendor has a lien on immovables which have been sold; he 
 also has one on movables, but only as long as they are in 
 the hands of the debtor. If there has been a sale for cash, the 
 vendor is even given a right of seizing within a short period 
 sold movables which are in the hands of third parties and of 
 keeping them until he has been paid ; ^ this is all that is left of 
 
 1 Tariff for the price of merchandise: "Capit." of 794, c. 4 (I, 74), etc.; 
 Fertile, IV, 566. — As to the fair price spoken of by the theologians, cf. Ende- 
 mann, II, 29; Ashley, I, 164; Gamier, "Thfese," 1900; Polier, "These," 1903. 
 Rescission in the case of a great injury (excepting in the case of judicial sales, 
 which, however, often take place for a very low price; they are necessary). 
 Law of Sept. 7-11, 1790: doing away with the chancery and, consequently, 
 with letters of rescission. Decree of the 14th Fruct., year III: abolition of 
 rescission for injury (because of the tremendous variations taking place in the 
 price of immovables). Law of the 3d Germ., year V, and Law of the 19th 
 Flor., year VI (temporary). Law of the 2d Prair., year VII: no rescission for 
 injury from the sale of national possessions, even though it were paid for in 
 assignments: Sagnac, p. 202. Thamasius had criticised this institution. 
 
 - Loysel, 407, 408 (a contradiction which is to be accounted for by the 
 history of the formation of sales). Argou, III, 23, reproduces the Roman 
 ideas: Beaumanoir, 34, 59; 35, 20; 24, 28; "Jostice," 328; "Toulouse," 98, 99; 
 Boutaric, I, 67; Fertile, IV, 568; Desmares, 195. Cf. "Paris," 177; "Or- 
 leans," 458; Fothier, no. 322; Ferrihre, on "Paris"; Serres, "Inst.," 2, 1, 41 
 (a special and preferred mortgage over the immovables). 
 
 3 "Paris, A. C," 194; "N.C.," 176; "Orleans," 458; Dumoulin, on "Paris." 
 
 548
 
 Topic 6] SOME PARTICUL.\R KINDS OF CONTIL\CTS [§ 403 
 
 the Roman rule. Warranty ^ protected against hidden defects 
 and eviction. Formerly hidden defects did not allow of any 
 recourse to warranty; so much the worse for the buyer, if he 
 had not been aware of them. But warranty was stipulated in 
 the writing, and then came to be implied in the case of the 
 more serious defects, so that it then was regarded as a natural 
 incident of sale. This matter was regulated by the Customs, 
 especially with regard to trading in domestic animals.^ 
 
 § 403. The Same. — (C) Warranty because of Eviction. Even 
 at the time of the very old law the vendor must have found himself 
 compelled to protect the vendee against anybody who wanted to 
 dispossess him of the thing which had been sold; ^ if through any 
 fault of the vendor the vendee could not keep the thing sold, the 
 vendor had to pay him a composition, because he was then guilty 
 of an offense as far as the vendee was concerned, and his respon- 
 sibility was the greater, as the third party who was reclaiming the 
 thing was proceeding against him "ex delicto." ^ However, it was 
 not unusual for the warranty to be stipulated for; ^ and thus it 
 becomes a matter of contract; the cases in which it applies are 
 more clearly specified ; the vendor is not permitted to take refuge 
 behind the idea that he has given up every right which he had and 
 should not be held accountable for anything else; and, finally, the 
 amount of the fine becomes fixed beforehand. It is in this way 
 that the once delictual obligation became a civil obligation for 
 damages, by virtue of an agreement which is implied in every 
 contract of sale. Evolution in this direction took place during the 
 Prankish period; at the same time there are found traces of the 
 
 The sale was not cancelled for this reason. Cf. Naz, "Th&se," 1870. Serres, 
 loc. cit., does not mention this right of witholding. 
 
 '■ Du Cange, see "Garens," "Waranthus," etc. Prov., "guiren." German 
 etymology: "weren," meaning to defend: Grimm "R. A.," 603; Brunner, 
 II, 501; "L. Rib.," 33, 4: "fordro" (hterally predecessor). — "Roisin," 145: 
 Warranty due by the castellan to his men who are cited to appear before the 
 aldermen. 
 
 2 "L. Bai.," 16, 9; Loysel, 418 et seq.; Glanville, X, 14; "Ass. de J^rus.," 
 "C. des B.," 34 et seq. (slaves); Fertile, IV, 561; Chaisemartin, 271; Stobbe, 
 § 185: Huber, IV, 854. — Strykius, "De Vitiis rer. ven.," 1709. 
 
 3 Cf. the Roman "deceitful selling" ("Stellionat"): D., 47, 20, 3, 1; see 
 Ferriere, 
 
 * "Bai.," 15, 4, 12; 17, 2; "Sal.," 47, 2; "Roth.," 231; "Rib.," 59, 6; 
 72, 6, 7 ("cinu werduinia"? Brunner, II, 504); Loening, "Vertragsbr.," 
 107. 
 
 6 Thevenin, "Textes," Index, p. 202; Hubcr, IV, 853, 13. As to the double 
 penalty cf. Fertile, IV, 558; "Milan," 9; Lattes, "Dir. consuet. Lomb.," 
 p. 208 ("Guadia fidejussores"). Greek law, warrantors furnished by the 
 vendor: Beauchet, op. cit., IV, 138; "Const, du Chat.," 51, 67; Dareste, 
 pp. 13, 46. 
 
 549
 
 § 403] OBLIGATIONS [Chap. Ill 
 
 early conception during the feudal period. — This early conception 
 rests essentially upon the idea that a recourse to warranty takes 
 the form of a penal action directed against the buyer. He is 
 accused of an offense; he replies by calling in his warrantor^ 
 ("vocare warantum").^ He is granted a delay in which to bring 
 his warrantor before the judge; ^ this is the day of warranty 
 ("dilatio garendi") of the feudal period.'* Instead of this post- 
 ponement granted by the plaintiff himself, the later law sub- 
 stituted the summons given by a public officer; and this also 
 took place in matters relating to warranty.^ — 1st. If the warrantor 
 does not appear in court. As a general rule, the man who does not 
 produce his warrantor loses his action. " He who calls upon a war- 
 ranty and has no warrantor loses his cause," Loysel, 499, still says. 
 A few of the barbarian laws, however, show less strictness by 
 allowing the party to exonerate himself by means of the oath 
 accompanied by fellow oath-takers.® All the more reason why 
 the later law should be still more indulgent and allow him to 
 
 1 Another system: the withholder refers the complainant to his warrantor: 
 "Roth.," 231. Cf. "^thelr.," 2, 8, 9. Old Russian law. 
 
 2 Glanville, III, 1; X, 15; Bracton, fo. 257, 380; "Stil. Pari.," 12; Masuer, 
 2; hnhert, I, 20; Boutaric, 1, 33; "Gr. Cout.," Ill, 16; Desmares, 140, 354; 
 "Cout. Not.," 67, 114. 
 
 3 "Rib.," 33; "F. Andec," 47; Thevenin, no. 114 (40 nights). — Can the 
 warrantor himself have his own warrantor brought into the action? The 
 Frankish law does not limit the recourse to warranty, whereas the Scandi- 
 navian law and the Lombard law require one to go no further than the third 
 warrantor, permitting him to escape the consequences of a theft by restoring 
 the thing stolen and by swearing that he has bought it: "Sal.," 39, 47; "Rib.," 
 58, 72; "Burg.," 83; "Bai.," loc cit; "Wis.," 7, 2, 8; 5, 4, 8; "Roth.," 231. 
 "Otto." I, 7; "Ina," 58. — Only three warrantors according to the "Gr. Cout. 
 Norm.'," 50; "A. C, Bourg.," 83; "Amiens," 32. Seven: "Et. deSt. Louis," 
 I, 91; "L. d. Droiz," no. 109. Indefinite recourse in Saxon law: Laband, 
 "Verm. Kl.," p. 126. 
 
 * Beaumanoir, 34, 44; "Et. de St. Louis," I, 31; "A. C, Anjou," I, 122; 
 "Ass. de Jer.," "C. des B.," 250; "Schwabensp.," II, 93. — The warranty 
 was first of all limited to the year and a day, for when this time had elapsed 
 the purchaser was in a position that could not be attacked : " Const, du Chat.," 
 83, 51; L. de Beaumont, 37; "Ass. de Jer.," "Abrege des C. des B.," 22; J. 
 d'Ibelin, 80 et seq.; 112, 132; Ph. de Navarre, 80. Cf. "L. d. Droiz," 569. 
 But one may stipulate for warranty to last indefinitely (fourteenth century) 
 and in the end people came to dispense with this special agreement. — The 
 duration of the delay for the warrantor is eight days if he resides within the 
 jurisdiction: "Us. d' Amiens," 49; Laroque-Timbaud, 20; Delisle, "Jug. de 
 I'Echiq.," no. 168; — arbitrary: "Et. de St. Louis," II, 27; Beaumanoir, 34, 
 64, 65; "Bayonne," 102, 1; "A. C, Bourg.," 14; Delisle, op. cit., no. 280; "Gr. 
 Cout.," 412. 
 
 8 "Ass. de J6t.," "C. des B.," 250; "Gr. Cout. Norm.," 50; Beaumanoir, 
 34, 44; "Bord.," 208; "Us. d'Amiens," 49. 
 
 6 Jobbe-Duval, p. 62; "Sal.," 47; "Rib.," 33, 75; "Roth.," 231; "Wis.," 
 7, 28; "Bai.." 9, 7; "Bordeaux," 15; "Us. d'Amiens," 49. Death of the 
 warrantor: ''Sal. extrav.," 7 (the withholder does not incur any penalty); 
 "Roth.," 231 (heirs). 
 
 550
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 403 
 
 go on with the trial.^ — 2d. TJie warrantor appears in court. 
 (a) He acknowledges his status of warrantor. In this case he 
 himself takes the place of the accused and pleads, not in the name 
 of the latter, but in his own name; the accused is "ipso facto" 
 removed from the action and the accusation falls upon the war- 
 rantor.^ This rule, which persisted throughout the old law,^ is 
 due to the criminal character of the old procedure. This became 
 less as soon as warranty took upon itself the aspect of a civil 
 action; the buyer was only excluded from the action if he asked 
 to be so.'* But the obligation of the warrantor always subsisted, 
 in the case of formal warranty,^ to take upon himself the responsi- 
 bility of the one he guaranteed, and not merely to intervene for 
 him, as in the case of simple warranty.^ — (6) The warrantor 
 does not admit that he is responsible by reason of any war- 
 ranty; he maintains that he has not sold the object in litigation.^ 
 Equity would require this new question to be the object of a special 
 action, following which the warrantor would be declared not to be 
 responsible or else compelled to defend his buyer. This is indeed 
 what happens in the thirteenth century ^ and afterwards. But the 
 very old law was afraid that this recourse to warranty was only a 
 trick intended to retard the settlement of the principal action, 
 and perhaps to allow the guilty man to escape the penalty incurred ; 
 so the defendant received the same treatment as in the case in 
 which the warrantor whom he had vouched did not present him- 
 
 ^ Beaumanoir, 37, 3. "Stil. Pari.," 12, 2: reserves the right to de- 
 fend himself which was done away with by the Ordinance of December, 
 1363, 5. 
 
 2 If it is a matter of a movable it is handed over to him: "Rib.," 33, 3; 
 72, 6; Jobbe-Duval, p. 65. Cf. "Roth.," 232; "Burg.," 83, 2; " Sachsensp.," 
 1, 53, 2; 3,83, 3; " Firmatio," "Bai.," 15, 12; Brunner, II, 516; commentary 
 on "Roth.," 231; Pertile, IV, 252 et seq. — The "Et. de St. Louis" only speak 
 of warranty in dealing with movables, the "Stil. Pari." in dealing with im- 
 movables, and refuse it "in casu novitatis," 18, 2. Boutaric, I, 33; "Gr. 
 Gout.," Ill, 16. — Gander, "Laud, auctoris," 1883. No representation. 
 
 3 Beaumanoir, 34, 45; "Et. de St. Louis," I, 95; II, 17; "Jostice," 19, 
 36,6; "Bord.,"18; " F. deMorlaas," 64,224; "Ass. de J6r.," "G. des B.," 247; 
 "A. C., Bourg.," 14; Boutaric, I, 33. 
 
 ^ Before the action comes on for trial. 
 
 ^ Masuer, p. 41; Inihcrt, p. 137 ("rcquesta formalis" addressed to the 
 warrantor). Cf. as to reclaiming against the farm tenant: Schwalbach, 
 p. 57; Civil Code, 1727. 
 
 8 See "Giving of Surety," and "Warranty in the Matter of Offenses": 
 "Stil. Pari.," 12, IS et seq.; Masuer, 2, 11, 19; "Gr. Cout.," Ill, 16. 
 
 ' Loysel, 410 (forced sale; all right to warranty and then afterwards to 
 DiS^d th-G forcG^ 
 
 8 Beaumanoir, 34, 44; 63, 8; "Ass. de J^rus.," "C. des B.," 246, 250; 
 J. d'Ibelin, 131. If the sale is not established the withholder is condemned: 
 Loysel, 699. Cf., however, 37, 3; "Et. de St. Louis," II, 17. 
 
 551
 
 § 404] OBLIGATIONS [Chap. Ill 
 
 self. — The Ordinances of 1667, S, 1/ finally regulated this matter 
 of warranty.^ 
 
 § 404. The Same. — (D) Rescission of the Sale ^ (and of other 
 bilateral contracts) by reason of non-performance by one of the 
 parties.'* The Roman law did not consider the sale as rescinded 
 by reason of default in the payment of the price ^ unless there 
 were a special clause to that effect ("lex commissoria," forfeiture 
 clause).^ As this clause was in common use in deeds, our old 
 law implied it; it even went further and, taking its support from 
 the Roman text relating to innominate contracts,^ it allowed the 
 parties in every bilateral contract to ask the courts ^ to rescind 
 the contract if one of the parties did not perform his engage- 
 ment through his own fault. ^ In such a case the title reverted 
 as matter of law to the seller.^° The real rights, which had been 
 granted by the buyer for the benefit of third parties, should also 
 have become void by virtue of the maxim: "Resoluto jure dantis, 
 resolvitur jus accipientis." But a distinction was made: 1st. Re- 
 scission is fully retroactive when it takes place " ex causa antiqua 
 
 ^ See the Commentators on this Ordinance: Berthelot, "Evictions," 1781; 
 Isambert, Table, see "Garantie" ("Ord." of 1559, 18, etc.). 
 
 ^ Principal warranty or principal action, which is distinct and brought 
 against the warrantor following the eviction; incidental warranty, or action 
 in warranty grafted upon the principal action in such a way as to settle the 
 rights of third parties and those of the warrantor at one and the same time. 
 As to the dangers of principal warranty, c/. P. de Fontaines, 15, 10; Beaumanoir, 
 34, 11; Boutaric, I, 33, 8. These jurisconsults seem to refuse to give any re- 
 course to the warrantor who is guilty of pleading secretly. — Warranty in the 
 matter of the assignment of claims: Jousse on "Ord. civ.," 8, 1. — As a general 
 thing, exercising the right of repurchase "cannot give rise to any warranty be- 
 cause the evicted purchaser must be indemnified by the person exercising 
 repurchase: " F. de Beam," "R. de Contr.," 22; P. de la Janes, II, 245. — C/., 
 however, in exceptional cases: "Const. Chat.," 51, 67, 86; Tailliar, "Rec. 
 d'Actes," p. 341. 
 
 3 Naz, "Resolut. de la Vente," Thesis, 1870. 
 
 * Disgrace, loss of the benefit conferred by the deed and of the amount 
 specified in the penal clause according to the law, "Si quis major," of Arcadius, 
 "Cod. Theod.," 2, 9, 3, which the documents of the barbarian period connect 
 with the Aquillian Stipulation: Patd, "Sent.," 1, 1, 3; "Petrus," IV, 27; The- 
 venin, "Textes," p. 260. Canonic penalties. 
 
 * The only right which the vendor had was to refuse to deliver the thing sold 
 so long as the purchaser did not pay him (defense "non adimpleti contractus"). 
 
 ® In the South necessity of the forfeiture clause and cancellation of absolute 
 right. Tendency to do away with forfeiture by the holder of a long-term 
 lease in default of payment of the ground rent: Gui Pape, 111; Despeisses, 
 "Dr. seign." 4, 5, 14. 
 
 ^ Cf., also, the canon law (analysis in Naz, p. 145). 
 
 * Canonic penalties and, consequently, necessity for a sentence. The 
 judges make certain that the failure to carry out is due to some fault. 
 
 3 Dumoulin, "Var. Quast., d. v. o.," nos. 58 et seq.; Pothier, "Vente," 
 no. 475; Domat, 1, 2, 12, 13; Ferribre, see "Pacta com.": Beaumanoir, 24, 
 28; "T. A. C, Bret.," 326. 
 10 Gavet, "Th^se," 1879. 
 
 552
 
 Topic 6] SOME PARTICULAR KIXDS OF CONTRACTS [§ 405 
 
 et necessaria." 2d. The rights of third parties continue to exist 
 in case the rescission takes phice "ex causa nova et voluntaria," ^ 
 that is to say, owing to a voluntary act on the part of the buyer, 
 for it cannot be left to his option to plunder his assignees and 
 to go back on his engagement. "This is a very fine theory," 
 says Loysel, who is a partisan of it, as are a majority of our old 
 authors; but as to the application of this theory there was a great 
 deal of discussion. Bartolus was its inventor. 
 
 § 405. Civil and Commercial Partnerships. — (A) Companies,^ 
 associations, communities, partnerships, in the old law, were con- 
 structed according to the same type as family communities.' 
 Such were especially those secret communities of villeins or serfs ^ 
 which are so well known by reason of the description which Guy 
 Coquille gives of them in the sixteenth century in his Commentary 
 on the Customs of the Nivernais, but which are very much older 
 than this, for long before him Beaumanoir alluded to them and 
 showed how they were formed. "The company is formed," he 
 says, 21, 5, "simply for the purpose of living together at a com- 
 mon board for one year and one day, because the movables of one 
 and of the other are mingled together." Community life was, in 
 fact, the only condition required originally in order that the 
 company might exist; whether they wished it or not, whether they 
 were relatives or not,^ the fellow inhabitants found themselves 
 associated together. But Beaumanoir maintains that by with- 
 drawing their movables they could avoid this result; this is an 
 expedient which does not at all correspond to the spirit of the old 
 law, for it is almost impossible to live together a year without 
 
 ^ Cancellation "ex tunc" or "ex nunc": L. 3 Dig., "quib. mod. pig."; 
 Loyseau, "D^guerp.," 4, 3, 6; Dumoulin, I, 33, 37. Interest, especially from 
 the point of view of the seigniorial profits (transfer tax). Keeping of admin- 
 istrative deeds (leases) : Dumoulin, " Reg. cancell.," no. 180; Coquille, " Quest.," 
 II, 143; Pothier, "Fiefs," noa. 291, 330 ("Emptor non tcnotur stare colono"). 
 — Cf. the distinction made by the Glossators between the "verba directa" 
 (returning, of absolute right, of the ownership) and the "verba obliqua" 
 (necessary surrendering), abandoned in the sixteenth century; between the 
 cancellation "ipso jure" and "per sententiam" (less important). 
 
 * "Cum-panis" ("compainz," "comi)agnon," company): see Diez; Du 
 Cange, see "Companium," etc. We still say "Company of Jesus," "railroad 
 companies," etc. 
 
 ' Gierke, " Genossenschaftsrecht," 1881; Ashley, I, 86; II, 79 (trades). 
 
 * Cf. the servile communities; Customs in the "Conf6r. de Guenois," I, 
 599; Masuer, 28, 14; Lebrun, "Comnumaut6," 709; see Guyot; Viollet, 
 751; Glasson, VII, 639; Larcher, "The.se," 1875; Boucomont, Lnssnrre, 
 Mahler, etc. — Cf. "consortium" at Rome: Poisnel, "N. R. H.," Ill, 431; 
 Girard, 570; Athens, Beauchet, IV, 340. 
 
 * Communitiesof brothers, relatives: Mont-dc-Marsan, "Soci6t6s"; "A.C., 
 Bord.," 44, etc.; sons-in-law and fathers-in-law: "Niv.," 23. 
 
 553
 
 § 405] OBLIGATIONS [Chap. Ill 
 
 some of the movables becoming confused. Personal belongings 
 which were not liable to such confusion stayed outside of the part- 
 nership; on the other hand, movables and acquests came under 
 it. As a general rule, the community had, like the family, a 
 head charged with administering it, whose powers remind one of 
 those of the head of the family. This master, or "head of the 
 loaf," who is the eldest of the members, is elected because of being 
 the elder, or else he is one of the associates who is expressly ap- 
 pointed. He administers the community within and represents it 
 without; he has extensive powers and binds his associates as far 
 as their movables are concerned when he contracts for the bene- 
 fit of the partnership. In important matters, such as the buying 
 of immovables, he consults with his associates; "they all, eating 
 of one bread, sleeping under one covering, and seeing each other 
 every day, he is ill advised or too proud" if he does not consult 
 with them. This artificial group is perpetuated in the same way 
 as the natural group of the family, "owing to the subrogation of 
 the persons who are born therein or are called into it from out- 
 side"; at the death of one of the associates there is no partition of 
 the common lands; his relatives who are not members of the com- 
 munity cannot claim the undivided part which would have been 
 his. The dissolution of the community takes place ordinarily by 
 reason of the decision of the associates to live separately: "The 
 loaf separates the villein; fire, salt and bread separate the man 
 in mortmain." We have already seen the reasons why these asso- 
 ciations were rarely found at the end of the Old Regime. They 
 are already suspicious to Beaumanoir; he looks upon them as very 
 dangerous and declares that many people were deceived by them; 
 the rich man who takes in his poor relation "because of pity" 
 finds him claiming half of his movables, and a man who came in 
 not worth forty "sols" goes away taking with him two hundred 
 livres. In the sixteenth century they are still numerous, but the 
 disfavor with which they are looked upon increases, as Loysel's 
 rules, 378 et seq., bear witness: " If one goes, all go" ^ (which makes 
 the partnership very fragile, whereas in other times the departure 
 of one associate could not have had any more effect than the de- 
 parture of one member of a family); "He who has a companion 
 has a master"; "Out of community possessions one cannot make 
 much." Jurisprudence is hostile to them, and the Ordinances 
 
 » "Excepting," says Guy Coquille, "if the man going out has naismanaged 
 affairs." 
 
 554
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 40G 
 
 require a written deed to establish the existence of every such 
 partnership.^ 
 
 § 406. The Same. — (B) Commercial Partnerships. They have 
 a history which is very complex and has been very much disputed. 
 The brief summary which is given here only serves to point this 
 out. Om* old law, here differing from the Roman law, considers 
 the property brought in by the associates as forming a mass which 
 is appropriated for the payment of the creditors of the partner- 
 ship to the exclusion of the personal creditors of the associates. 
 ]\Iust one conclude from this with Straccha that commercial part- 
 nerships form a "corpus mysticum," and translate this expres- 
 sion by saying that they constitute legal persons? Scaccia and 
 Emerigon express themselves in this way. However, it is not very 
 certain that the idea of the civil personality of commercial part- 
 nerships was forced upon the old law with regard to its other 
 consequences.^ Perhaps the peculiarity which we have pointed 
 out can be accounted for by a sort of implied engagement for the 
 benefit of the creditors of the partnership. 
 
 1st. Partnership in its collective name is like joint and several 
 ownership; the associates are held jointly and severally and with- 
 out limit for the debts of the partnership. They act all together 
 and all participate in partnership acts; or else, to make matters 
 more simple, one of them acts as "institor" on behalf of the part- 
 nership and in the collective name of all of its members; he has the 
 right to bind them without having called them together and con- 
 sulted them; he signs with his name and with theirs; this signa- 
 ture or name of the partnership had to be shortened when the 
 number of associates was too great; we say "So and So & Co." 
 Bartolus maintains already that the formula, "Titius et socii" 
 was an old one in his time, and that its use had the effect of carry- 
 ing with it the joint and several obligation of all the associates, 
 even of those who were not mentioned in it; and this no doubt 
 was for the good reason that their names are virtually included 
 
 1 Ordinance of Moulins, 54 (100 pounds); 1667, 22, 2; 1673, 4, 1; Civil 
 Code, 1834, 1837 (prohibition in the case of property to be acquired in the 
 future). Cf. "Code de la Convention," 5, 2, 22; "Orl6ans," 217. — Dis- 
 cussion in Lebrun, Ragueau, op. cit. 
 
 2 Post, "Legal persons." The personality, which is not dealt with in the 
 Ordinance of 1673, nor in its commentaries, makes its appearance in partner- 
 ships having shares by way of a privilege: Isambert, XVII, 319 (in 1656); 
 XXVIII, 19 (in 1785). — "Dec. Rot. Gen.," 7, 9. 10; 4, 13; Scaccia, "Qu.," 
 450; Emerigon, "Assur.," I, 324; Casaregis, III, 156; Vighi, "Person. Giur. 
 d. Soc. Com.," 1900. 
 
 555
 
 § 406] OBLIGATIONS [Chap. Ill 
 
 within it} If the partnership has a name of its own, then it has a 
 distinct personaUty, which is independent from that of the as- 
 sociates; or, at least, if one does not go so far as this, one can con- 
 ceive that it is possible to give a name to a collection of interests; 
 it is difficult not to recognize the fact that the tendency of the part- 
 nership to form a civil person is admitted in this very fact. Fre- 
 quently, and especially in order to plead, the associates, in their 
 collective name, instead of acting themselves, have an agent in- 
 vested with the power of making use of the partnership name. 
 
 2d. The limited partnership ("en commandite"), thus called 
 from the word "commendare," to confide, to loan,^ which is re- 
 lated to the lease of a farm and livestock, bottomry loan, to the 
 loan for a seaman's venture, which is well known in sea trade on 
 the Mediterranean in the tenth century, but which has precedents 
 in the legislation of antiquity,^ involves both a loan and a part- 
 nership. It assumes, just as a loan does, that a capitalist fur- 
 nishes value to a third party, and that this third party draws 
 a portion of it at will (to carry out the object fixed by the charter 
 of the partnership). Thenceforth this third party is the only one 
 known to the public, and the capitalist is only responsible to the 
 amount of his share of the capital, just as a lender would be.^ In 
 other respects the limited partnership is like the ordinary part- 
 nership; the profits are divided, the losses are sustained by the 
 silent partner and the capitalist : the one ventures his labor and his 
 fortune; the other runs the risk of not regaining his capital (as 
 every lender "ad risicum maris"). It is from this point of view 
 that the formation of this sort of partnership escaped the prohi- 
 bition which affected lending at interest in the Middle Ages, and 
 it is because of this that it was possible for it to be developed later 
 on. The Ordinances of 1673 accentuated the character of the 
 partnership in the case of a limited partnership by compeUing the 
 pubhcation of the articles of the partnership. 
 
 » Goldschmidt, p. 243 ("nome," "dita," "firma"), 273; Balde, "Cons.," 
 II, 191, n. 2: "ex consuetudine mercatorum unus scribit nomen alterius." 
 
 2 "L. Wis.," Index, see "Commendare"; Du Cange; Ragueau, see "Comm. 
 de B6tail." 
 
 » Texts in Goldschmidt. Cf. "Ass. de J6rus.," "C. des B.," Ill; Statute 
 of Marseilles (thirteenth century), III, 19; Saleilles, "Hist, des Soci6tes de 
 Commerce" ("Ann. de Dr. comm.," 1895); Speck, "Handelsges. d. Alter- 
 thums," 1900. 
 
 * A thing which has contributed a great deal towards the introduction of 
 the idea of a responsibility limited to the share of capital is just that very pro- 
 hibition of lending at interest; the capitalist, not being able to lend, forrns a 
 partnership, but does not wish to incur any more risk than if he were lending. 
 
 556
 
 Topic 6] SOME PARTICULAR KINDS OF CONTRACTS [§ 40G 
 
 3d. The name of anonjmious partnership, which was given 
 to a Hmited partnership, was also appHed equally to another 
 kind of secret partnership, the joint account, formed ordinarily for 
 one transaction only; this transaction is personal to the one who 
 acts, but after it has been carried out he divides the profits and 
 losses with his associates. These partnerships have no partner- 
 ship signature and no name; they do not constitute a civil person. 
 
 4th. Partnerships with shares of stock, or, rather, companies,'^ 
 established with the object of developing colonies, endowed with 
 special privileges and authorized by public authority (and hence 
 to be regarded as a public rather than a private enterprise), were 
 modeled after those great banks which existed at the end of the 
 Middle Ages.^ As in the latter, the capital was divided into parts, 
 which could be transferred, or shares of stock; and the responsibil- 
 ity of each associate was limited to his share of the capital. These 
 were true partnerships of capital, as is said, because the person- 
 ality of the associates makes no difference and they are not under 
 any personal responsibility; they are in contrast from every point 
 of view to partnerships "intuitu personse," and the "consortia" or 
 " f raternitates " of the very old law. 
 
 ^ Bonassieux, "Lesgrandes Compagniesde Commerce/' 1892. — "Monte," 
 "Maona," in Italy; Bank of St. George at Genoa in the fifteenth century; 
 the EngUsh East India Co., 1599, etc. Afterwards other enterprises: mines, 
 canals, farms and public carriages, arming of ships, etc. ; Isambert, see Table, 
 Lescoeur, "Soc. anon.," 1877; Viollet, p. 766; Goldschmidt, 290; Lehmann, 
 "Gesch. u. Entwick. d. Aktienr.," 1895. 
 
 2 Various systems as to the origin of these partnerships. Cf. partnerships 
 of publicans at Rome (to which the principle of limited responsibility is un- 
 known). Goldschmidt connects them with the Italian partnerships for the 
 farming out of taxes in the Middle Ages, partnerships that needed to put 
 their capital together, and which divided them into "partes," "loca," in 
 imitation of that which took place when States borrowed from individuals 
 in the case of pressing necessity; the concessions of taxes or of monopolies 
 were for them a means of paying their debts. Fourteenth century: "Maona 
 dei Giustiniani" at Genoa. 
 
 557
 
 §407] 
 
 OBLIGATIONS 
 
 [Chap. Ill 
 
 Topic 7. Means of Enforcement on the Person and 
 Personal Surety 
 
 § 407. Voluntary Satisfaction. 
 
 § 408. Compulsory Satisfaction. 
 
 § 409. The Same : Execution upon the 
 
 Person. (A) "Self-help." 
 §410. The Same: (B) Intervention of 
 
 the Law, 
 
 § 411. Imprisonment. 
 
 § 412. The Surrender of Possessions. 
 
 § 413. Suretyship. 
 
 § 414. Hostage. 
 
 § 415. The"Fidejussio"or"Pl^gerie." 
 
 § 416. Modern Suretyship. 
 
 § 407. Voluntary Satisfaction. — In the very old law the obli- 
 gation is extinguished by means of a "solutio" or a " satisfactio," a 
 direct payment, or some act which the creditor holds as being its 
 equivalent. Prescription which extinguishes or liberates seems to 
 have been unknown in matters relating to offenses; quarrels be- 
 tween one family and another were carried on indefinitely; the 
 right of vengeance could not be lost by prescription, and the man 
 who delayed in carrying it out did not give it up, but waited for a 
 favorable occasion to take his enemy unawares. Prescriptions 
 by rules of procedure began to make their appearance in propor- 
 tion as the intervention of the State in the matter of justice became 
 more active and more efficacious; in the end its system of pre- 
 scription was borrowed from the Roman law,^ just as, with many 
 modifications, set-ofE and cross-action ^ were borrowed from it. 
 
 ' Releasing or Extinguishing Prescription. Loysel, 713, 714; "Gr. Cout.," 
 p. 198; Boutaric, I, 20, 27, 49; Masuer, 22. Cf. Dig. X, 2, 26. As a gen- 
 eral thing, the rules and their duration (30 years) are drawn from the 
 Roman law. Cf., however, short prescriptions: 10 years ("Ord." June, 1510, 
 71: actions for rescission); five years {id.; arrears of constituted rents; 
 Decree of Aug. 20, 1792, rents on land; Decree of Aug. 24, 1793, life 
 rents); one year and six months ("Ord." June, 1510, 67, 18), etc.; "Cout. 
 de Paris," 126, 127; "Ord." of 1673, 1, 9; see Fernere, Guyot; Pothier, I, 337; 
 II, 374 (ed. B); Fertile, IV, 483 (texts). — Hebrews: Sabbatical year: Dareste, 
 "Etudes," p. 48; "Ac. Sc. M.," 1894. 
 
 2 Set-off (A owes B 100; B owes A 100; both debts are extinguished) 
 and Cross-action (A sues B, and B in a cross-action demands from A what 
 is due him, without bringing any special action against him, which would 
 perhaps be brought before other judges, and which would at any rate ne- 
 cessitate a preliminary set of proceedings, delays, etc.). The Romanists 
 admitted the cross-action (even "ex alia causa") and set-off, but were 
 unsettled as to whether the set-off ought to be legal (extinction of abso- 
 lute right of both the liquidated debts for things that could be restored 
 in kind, simply because of the fact that they coexisted) or judicial (brought up 
 in court and pronounced upon by the judge: Bartole and Doneau). Cujas 
 caused the system of the legal set-off to prevail in France (cf. "ipso jure" 
 in "Inst. Just.," 4, 6, 30): "Cout. de Milan," in 1396, Art. 117. Both the 
 set-off and the cross-action were also accepted by the Canon law: Dig. X, 
 2, 4; Lancelot, "Inst.," 3, 9; P. Fournier, "Offic," p. 111. — On the other 
 
 558
 
 Topic 7] MEANS OF ENFORCEMENT ON THE PERSON [§ 407 
 
 Upon principle, the debtor is held bound to pay or to give exactly 
 what is promised, unless the creditor consents to receive some- 
 thing else or liberates him from his undertaking without demand- 
 ing anything,^ Distraint in kind is thus the rule; but it often 
 happens that debts in money are paid in movables or in domestic 
 animals, because movables are looked upon almost like things that 
 may be restored in kind, and in the early social state the domestic 
 animal serves as money.^ If he fails to pay or to satisfy the cred- 
 itor, the debtor "ex delicto" again exposes himself to private 
 vengeance in the very early law; the failure to perform a con- 
 tract is held as being itself an offense and carries with it the same 
 consequences (slavery for debts, payment in services, see infra). 
 In proportion as the old conception of an obligation being an of- 
 fense disappears, the debtor who does not pay is held liable simply 
 for damages, — the kind called compensatory.^ " In every trans- 
 action it is to one's interest to make restitution." ■* In the same 
 way in the case of delay in performance, the debtor who was 
 liable to pay a fine during the barbarian period pays in later law 
 only damages, the kind called damages for delay.^ To tell the 
 
 hand, the Customary law rejected both of these institutions; Loysel, 704: 
 "One debt does not prevent the other from existing"; 703: "A cross-action 
 cannot take place" (in the lay court). These rules are consistent with the 
 formalistic systems and are to be found, for example, at Rome. Perhaps 
 they are also due to the multiplicity of the old jurisdictions and their patri- 
 monial character; the judges quarreled with one another over jurisdiction; 
 now the cross-action allowed the ecclesiastical judges to bring before them 
 cases which should have been submitted to the seigniorial judges; and, con- 
 versely, the seigniorial judges could by this same means pass upon religious 
 actions or upon matters appertaining to the royal judges, etc.: Beaurnanoir, 
 9, 47; P. de Fontaines, 29, '5 (mere defenses); "Ass. de Jer.," "C. des 
 B.," 51; Boutaric, I, 60. In the fourteenth century set-off in the case of 
 liquidated debts was allowed at the Chatelet of Paris: Desmares, 136, 137; 
 "Cout. Not.," Ill, 120. And later on in the seventeenth century the "C. de 
 Paris" ("A. C," 74; "N. C," 75) was interpreted to mean that it admitted 
 of the legal set-off. Under the rule of other Customs more faithful to 
 the old law the set-off could only take effect by virtue of letters of the 
 king. As to the cross-action, the "A. C, Paris," 75, still prohibited it; the 
 " N. C," Art. 106, only authorized it under certain conditions: some connection 
 between the two claims, and that the later one must be a defense again.st the 
 earlier. Court practice places a broad interpretation upon these provisions 
 (controversy); Pothier, X, 51; II, 334 (ed. B.); Lair, "Compens.," 1862; 
 Desjardins, id., 1864 (lengthy details); Chaisemartin, p. 259. 
 
 1 Payment of a debt, novation. Cf. Gaudemet, "Transport de Dette," 
 1898; Stobbe, § 181. — Real offers, "Arch. Giur.," LXVI, 322. 
 
 ^ Legal tariffs, — for example, "Rib.," 36, 11. — Money changing: "Tract. 
 ill. let.," XII; Loysel, 680; "What is equal in value to gold is gold." 
 
 3 Loening, Sickel, op. cit. 
 
 * Loysel, 414; Dareste, 7, 77, 79; Ragueau, see "Eramme." 
 
 6 Endemann, II, 243 (bibl.); G. Durand, "Spec," II, 3; DumouUn, "Tr. 
 de eo quod. int. Op.," Ill, 67 et seq. (ed. B.); Stobbe, § 182. — The rule: "Dies 
 interpellat pro homine" was sanctioned in Germany by the Imperial Chamber, 
 
 559
 
 § 407] OBLIGATIONS [Chap. Ill 
 
 truth, during the barbarian period it is not distraint alone that 
 extinguishes the obhgation ; owing to formaUsm, it is extinguished 
 by means of a proceeding analogous to that which served to 
 create it : the creditor who has acquired all his rights by means of 
 the "festuca" gives them up by throwing the "festuca"; if he has 
 acquired them by delivery of the "carta," he gives them up by 
 restoring the "carta." The writing " evacuatoria " is equivalent 
 to the giving of the "carta" when the latter has been lost.^ It is 
 not a rare thing to have drawn up, when the obligation is to be 
 cancelled, an "epistola securitatis," or promise not to trouble the 
 debtor any further, to hold him as discharged ("quietus") from an 
 offense which he has committed and which laid him open to venge- 
 ance or composition.^ From thence arose the employment of 
 releases, a convenient means of establishing the release of the 
 debtor when the giving of the paper or making use of the "fes- 
 tuca" had ceased to be required "ad solemnitatem." ^ 
 
 § 408. Compulsory Satisfaction. — In the very old law it is the 
 person of the debtor, his body, which is primarily responsible for 
 the payment of his debt; ^ by an extension, his movables are also 
 made liable, for "mobilia ossibus inherent"; in this sense it is true 
 to say "he who binds himself binds what is his"; but the immov- 
 ables of the debtor are not sufficiently his own for the creditor to 
 be able to reach them.^ The history of compulsory satisfaction 
 may be summed up in the overthrow of these ideas. The creditor 
 no longer pursues the person of the debtor, but pursues his be- 
 longings; in fact, the latter is no longer considered as a guilty 
 
 1595; it was looked upon as being in accord with the old Germanic law ("L. 
 Sal.," 50) ; c/. contra, Romanists and ItaUan statutes; but see " Petrus," IV, 51; 
 Pothier, loc. cit. : according to our customs a debtor is only considered as having 
 a suit brought against him when he is summoned at law. Loysel, 679. — As 
 to respites and excuses cf. "Procedure": Beaumanoir, 25. — "Siete Part.," 
 5, 1, 8; 14, 8. — Penal clause ante. Examples in Thevenin, "Textes," p. 260; 
 placing (in arbitration). Cf. Glasson, "Proced. Civ.," II, 123 ("astreinte"): 
 to pay so much for each day of delay. 
 
 ^ Roziere, no. 378 et seq. ; Thevenin, no. 33. 
 
 2 "Form. Andec," V, 39, 42 et seq.; "Tur.," .38; "Bign.," 8,9; "Liut.," 
 19; Mnrculfe, II, 18. One also renounces vengeance "per festucam": "L. 
 Rom. Cur.," 24, 2; Thevenin, no. 137; Brunner, 11,444; see Ragueau ; Du 
 Cange, see "Assecur."; Loysel, 821; "Gr. Cout.," p. 391, 867; Esmein, "Rev. 
 trim, de Dr. Civ.," 1903; Berryer, "These," 1903. 
 
 3 Fertile, IV, 478; Beaumanoir ; letters of discharge (34, 21; 43, 39). 
 
 * The debtor of old times had nothing before him but death or slavery; he 
 was lucky if his creditors did not eat him up alive, as we hear of in certain 
 legends. Compare in our time the American debtor, who grows rich by going 
 through bankruptcy. 
 
 5 "Roisin," p. 48; "A. C, Anjou," ed. B.-B., II, 338; "Olim," IV, 1486; 
 "Const, du Chat.," no. 73; Kohler, 65. 
 
 560
 
 Topic 7] MEANS OF ENFORCEMENT ON THE PERSON [§ 408 
 
 man upon whom one seeks to avenge oneself; value is claimed 
 from him and his inheritance must furnish it. Thus execution 
 on possessions passes into the foreground;^ but it at first affects 
 movables alone; immovables are available only as a last resort, 
 for only as immovable property has come into the hands of indi- 
 viduals has it been possible to authorize creditors to pay them- 
 selves out of this sort of property. 
 
 To the means of constraint which we have just referred to were 
 added proceedings of a spiritual nature, — excommunication,^ 
 for example, which frequently takes place in the Middle Ages, at 
 least if there is "contumacia" or fraud ;^ its consequence is the 
 refusal of religious burial.^ By a reversion to. pagan ideas, which 
 very closely accords with this redoubtable result of ecclesiastical 
 censure, the creditor attaches the corpse of the insolvent, whether 
 he be excommunicated or not; or, at least, he offers opposition to 
 its burial; thus, they are reduced to burying the body in a ditch, 
 where it is a prey to the beasts. In the eyes of the people there is 
 no more strict duty binding upon the relatives of the debtor than 
 that of indemnifying the creditor so as to give to the dead the 
 last rites; w^hen performed by strangers, this is an act so praise- 
 
 1 Unless the creditor should have reserved for himself the right of first of 
 all carrying out execution upon the person: "Sachseasp.," Ill, 39. 
 
 2 See Da Cange ; Fertile, IV, 502; Pasquier, "Inst.," p. 540. We find 
 formulae of excommunication "ob debita" in a book of forms of deeds printed 
 in Rome about 1479 or 1480 without date or title; in fact, debtors submitted 
 in advance to excommunication in case they should not carry out their engage- 
 ments; but the ecclesiastical judges could also excommunicate them, even if 
 there were no clauses of this nature. It was also agreed that the excommuni- 
 cation should take place ipso facto : "Tr. Univ. jur.," XIV; Ugolini, "De 
 Censuris," 1597; Eveillon, "Tr. des Excommunic," 1672; Kohlcr, pp. 61, 69. 
 We find them even among the Assyrians, thousands of years before Christ: 
 Kohler, p. 64; Osenbriiggen, "Stud.," p. 333: adjournment until the Last 
 Judgment in the Valley of Jehosayihat. — C/., conversely, the debtor who has 
 sought sanctuary in a church: "Wis.," 9, 3, 4. 
 
 ' Dig. X, 5, 23, 3; Hostiensis, "De. Cess. bon. et. de sent. Excom."; 
 "Bourges," 156; "Gr. Cout.," 611; Beaumanoir, 11, 32; "Reg. de Cerisy," 
 no. 431, etc. Obligation of "nisi." 
 
 * Other consequences: incapacity of appearing in court even before the lay 
 tribunals: Dig. X, 5, 29; "in VI,"" V, 11; "Mem.," by P. de Cugnieres, Arts. 
 1 and 12; "Songe du Verger," II, 203. Cf., however, "Gr. Cout.," 389. This 
 custom was so well established that in the sixteenth century it had to be pro- 
 hibited: "Ord." of Jan., 1560, IS; "N. C.,Bret.," 9; D'.4r<7en^^,tit. "des just.," 
 Art. 6; Fevret, " Abus," 7, 2. The secular judges first of all asked the ecclesias- 
 tical superior to absolve the imprudent debtor who had submitted himself 
 to excommunication; if the sujicrior refused to do so, he was then compelled 
 to by distraining upon his secular possessions: "Libert. Egl. Gall.," 35. In 
 order to simplify matters the Parliaments themselves legislated, dealing with 
 the precautionary absolution; the latter fell into disuse and Tiraqueau tells 
 us that persons who had been excommunicated had no difficulty in jileading 
 before the lay tribunals ("de retr. gent.," 8, 1, 276). Loysel, 709. The 
 same progress was made in the matter of oaths. 
 
 561
 
 § 408] OBLIGATIONS [Chap. Ill 
 
 worthy that it blots out the very greatest crimes.^ Outside of 
 ancient France, rehgion furnished individuals with other weapons 
 by means of which to overcome the resistance of their debtors : such 
 as that strange procedure of fasting, which was practised in an- 
 cient Ireland and among the Persians. The creditor, standing be- 
 fore the door of his debtor, refused to take any nourishment so 
 long as he was not paid, however weak he might be; thus he finally 
 overcame the most powerful. India had perfected this custom; 
 instead of fasting himself, the creditor sent a Brahmin to fast in 
 his place; this fasting by procuration was still more efficacious.^ 
 
 Taking satisfaction originally always assumed the form of the 
 "captio," seizure, "nam," and hence was necessarily individual, 
 even when there were several creditors;^ the one who distrained 
 excluded all the others,'* excepting that when he had been paid 
 off, they could in their turn seize whatever possessions of the 
 debtor remained. This system of individual prosecution made 
 payment the prize of the race and fostered fraudulent collusion 
 between the debtor and certain of his creditors; he favored the 
 most harsh and the most dishonest creditor and sacrificed with- 
 out reason the bulk of the others. This was particularly revolting 
 in case of failure,^ that is to say, when insolvency came to light 
 
 1 As to the arrest of the corpse, cf. Esmein, "Melanges," 245; Justinian 
 alludes to it: "Cod. Just.," 9, 19, 6; "Nov.," 60 (in 537). St. Ambroise, 
 "De Tobia," 10. Stories of the people, for example, John of Calais in Balde, 
 "Contes pop. de la Gasc," etc.; De Hinojosa, "El Archivo," 1892; Altamira, 
 "Hi«t. Esp.," II, 185 (Navarre, fifteenth century); Kohler, p. 19. 
 
 ^ If the debtor allows him to die of starvation ("a fortiori" if he kills him) 
 he is responsible for his death; the spirit of the creditor will never leave that 
 place, according to the old Animist beliefs, and will torment him and liis eter- 
 nally. Survivals of this in the Middle Ages: the "Lay of Ignaure," William 
 of the Falcon, an Irish legend of the three clericals and the cat (to fast against 
 the wishes of God); Gaidoz in "Melusine," IV, 305, 406 {cf. VII, 55, 182, etc.); 
 W. Stockes, "Academy," 1885, 169; Sumner Maine, "Inst, prim.," p. 370; 
 D'A. de Jubainville, "Litterat. Celt.," VII, 245 (Christian origin in Ireland); 
 Dareste, "Etudes," p. 84; Kohler, 15. 
 
 ' Garraud, "De la Deconfiture," 1880. Bibl. in Camus and Dupin, "Fail- 
 lites." Cf. Fertile, VI, 384; Seuffert, "Concursr.," 1888; Stohhe, "Gesch. d. 
 jilt. D. Konkurspr.," 1888. 
 
 ^ Beaumanoir, 34, 52; "Gr. Cout.," c. 10; "Artois," 115; "Ord. des Mai- 
 ours" (of Metz), "N. R. H.," 1878; "Ass. de Jerus.," "C. des B.," 78. 
 
 5 Beaumanoir, 34, 52; 54, 6; Boutaric, I, 46; 27. "Paris," 1880: failure 
 is when the possessions of the debtor are not sufficient to satisfy the apparent 
 creditors; Loysel, 685; "Ord." of 1629, 165; see Ragueau, Fcrriere, etc.; Du 
 Cange, see "Decoctio." — In case of failure after death a rather rudimentary 
 collective procedure is organized: "Ord." of 1396 (8, 95). Cf. J. dihelin, 
 185; "Ord. des Maiours," I, 5; post, "Benefit of Inventory," "Separation 
 of Inheritances"; "Norm.," 97; "Bret.," 513; "Lille," 14, 11; "Artois," 
 24. — One finds some agreements among creditors to unite in appointing 
 assignees or directors, — that is to say, representatives: Duparc-Poullain, 
 "Actes de Notoriete," p. 232. 
 
 562
 
 Topic 7] MEANS OF ENFORCEMENT ON THE PERSON [§ 408 
 
 unexpectedly, and the majority of the creditors presented them- 
 selves in court at the same time, in order to have distraint 
 carried out. 
 
 Towards the end of the thirteenth century the privilege of the 
 first one to distrain was no longer applied in such circumstances 
 as these. The price of the possessions was then divided, in pro- 
 portion to the amount of the claims, between all the creditors, by 
 holding written proof, as though they had all carried out their dis- 
 traint at one and the same time. They should have gone further 
 than this; the debtor ought to be dispossessed of all his possessions, 
 so as to prevent his liquidating them in an improvident manner 
 and favoring one of the creditors at the expense of the others. It 
 was necessary to summon the creditors by measures of publicity 
 and to group them into a syndicate or union, so as to arrive at a 
 distribution which was collective; and this procedure had to be 
 regulated upon a basis of the strictest equality. This is what was 
 done by the statutes of the Italian towns ^ when they borrowed the 
 complex system of execution of the Roman law ^ in order to regu- 
 late bankruptcy.^ At the same time, severe penalties were the 
 punishment for fraudulent bankruptcy ("banqueroute").'^ The 
 Italian customs for the most part passed into the old French law, 
 but they were only applied to a certain category of persons, — 
 merchants who had ceased to make payments (" Ord.," 1673, t. 
 XI). ^ Failure, or known insolvency, in the case of men who were 
 not merchants, was not regulated, and, excepting for the lien of 
 the first man distraining, which was not applied in these cases, 
 
 1 C/. the Italian authors: Straccha, "De Mercatura," I, 1; Rocca, "Be 
 Decoctione Mercatorum"; Casaregis, "De Commercio," etc. Order of the 
 Council of July 7, 1667; Ordinance of 1673, Title XI, of March 12, 1678; 
 Regulations, etc.; see Guyot, Ferriere, Denisart ; Comment, on the Ordinance 
 of 1673 (note); Jousse, Bornier, Fertile, VI, 391 et seq. 
 
 2 Differences: (a) the mere fact of the cessation of payment is a presump- 
 tion of insolvency and constitutes a state of failure; (b) the "decoctioni 
 proximus" is treated like the "decoctus," in this way, that acts done a short 
 time before the failure are treated as null and void; (c) a majority of the cred- 
 itors may compel a minority to surrender their debts and to replace the debtor 
 in charge of his afTairs ("concordat"). Italy: special courts; Fertile, Yl, 392. 
 
 3 Straccha, II, 1: "recentiores jurisconsulti fallitos et cessantes vocant." 
 
 < "Banca rotta": the bench which the trader has on the principal square 
 of the town is broken. Sometimes the penalty of death was inflicted ui)on the 
 bankrupt whose guilty act involved the ruin of a great number of his fellow 
 citizens and assumed the i)roportions of a public disaster. Public opinion 
 could with difficulty distinguish between the unfortunate man who failed and 
 the criminal bankrupt: "Decoctor ergo fraudator," says Baldus, who echoes 
 the popular prejudice. — "Ord." of Oct. 15, 1536; August, 1561, 143 (death, 
 etc.); Lsatrihert, see Table; Fertile, § 203. 
 
 ^ Cf., however, Thaller, "Failhtes en Dr. Comp.," I, 145. 
 
 563
 
 § 408] OBLIGATIONS [Chap. Ill 
 
 remained subject to the system of individual prosecution. The 
 reason for this is that the majority of the creditors of the persons 
 who had failed were furnished with notarial deeds, and thus 
 general mortgage, liens, thanks to which they escaped the law of 
 contribution, and they had the least possible interest in organizing 
 a distribution which was collective.^ 
 
 § 409. The Same: Execution upon the Person. — (A) Self-help. 
 Under its most summary form execution consisted in the seizure by 
 the injured person of the body of the wrong-doer who was taken 
 in the act of offense, just as one would capture an animal which was 
 taken damage-feasant.^ In primitive legislations the insolvent is 
 at the mercy of his creditors. His body belongs to them. "He 
 who cannot pay with his purse pays with his skin," says the old 
 proverb. The Irish law shows us the creditor himself taking pos- 
 session of the person of the debtor; he places his fetters on the 
 debtor's feet and a chain on his neck, takes him to his house and 
 shuts him up in it, not giving him anything to eat excepting a 
 dish of pap each day. If it were necessary, just as in Rome, the 
 body of the debtor is divided among his creditors; the "partes 
 secanto" of the Twelve Tables should be understood literally, for 
 in the old law every debtor is a criminal, upon whom one should 
 avenge oneself; the addition, "se plus minusve secuerint, se [sine] 
 fraude esto," bears witness to the awakening of seme scruples in 
 the conscience of the old Romans.^ By comparison, the conduct 
 
 1 For the same reason the PauHne action revoking the acts done by 
 the debtor in fraud of the rights of his creditors had lost almost its entire 
 usefulness. Nevertheless, it was extended to include renunciations of succes- 
 sions: " Ord." of 1747, 42. Cf. R. de Lacombe, see "Fraude"; Louet, R., 20; 
 Domat, 2, 10, 1, 2; Pothier, "Obhg.," no. 153. The creditors could also 
 exercise the rights and actions of their debtor who was negligent (Art. 1116, 
 Civil Code). Our old authors derived thi.3 rule from the Roman laws: 
 Domat, "Loix Civ.," II, 10; Louet, R., 20 (Order of the Parliament of Paris, 
 July 9, 1698); Lebrun, "Succ," 2, 2, 47. It is even a question whether a 
 legal subrogation was required with this object, and even whether it was not 
 necessary to have royal letters. Labbe, "R. Crit. de L^g.,'" 1856, maintains 
 that subrogation, which was at first required, ceased to be necessary, and that 
 the creditor could act "quasi ex jure cesso": Basnage, on 345 "Norm." But 
 cf. to the contrary the same, on 278 "Norm"; Lebrun, loc. cit. Here we have 
 a case of forced assignment which assumes the intervention of the courts: 
 Perier, "These," 1884; "Mel. P. Fabre," 1902, p. 416; "France judic," 
 1880-1881, I, 73. 
 
 ^ "Liut.," 146 (a prohibition to bring the malefactor, having put him in 
 chains); "Bai.," 3, 9; "Burg.," 19, 4. Cf. "Wis.," 8, 5, 1; Beaumanoir, 
 30, 31. 
 
 3 7Aermgr,"Scherz. U.Ernst," p. 223; Kohler, op. cit., p. SSI; "L. de Gulath- 
 ing," 71; "L. de Frostathing," 10, 26. — We find people gambling their 
 limbs, their life, their honor, their eternal salvation: Kohler, 60. William the 
 Tyrant, 11, 11: " barbam suam hypothecaverat " (that is to say, that the cred- 
 
 564
 
 Topic 7] MEANS OF ENFORCEMENT ON THE PERSON [§ 410 
 
 of the usurer in the IMiddle Ages, of the character in the "Peco- 
 rone," ^ from which Shakespeare created Shylock, the Jew, in his 
 "Merchant of Venice," is humane enough. He is contented with 
 the pound of flesh instead of taking the whole body of the debtor. 
 The formahties demanded by the Customs for the taking of the 
 body, the danger which the formal act offers for the one who 
 wrongly makes use of it, were the first securities offered the debtor. 
 But this could not be sufficient, and from a very early time one 
 finds in the intervention of the law a much more efiicacious means 
 of ameliorating the condition of the insolvent. 
 
 § 410. The Same. — (B) Intervention of the Law. (I) Pro- 
 cedure based on a hearing of both parties: Death or slavery for debts. 
 Assuming that the responsibility of the family has in vain been 
 brought into play by the procedure of the "chrenecruda," the 
 Salic Law, t. 58, requires that the debtor of the "Wergeld" — 
 that is to say, the insolvent murderer — should be presented 
 before four successive sittings of the court; if no one promises to 
 pay for him he shall pay with his life ("de sua vita componat"); 
 he shall be delivered up to the creditor, and the latter shall exer- 
 cise his right of vengeance by putting him to death." It is obvi- 
 
 itor acquired the right of cutting it, which was a very great disgrace for the 
 debtor in the East). 
 
 ' A collection of tales written in Florence in 1358 by Giovanni. In Shake- 
 speare's drama Portia disguised as a judge says to Shylock: "You have a right 
 to a pound of fiesh; the law gives it to you and the court adjudges it to you. 
 But do not spill any blood. Take everything that is due you, neither less nor 
 more. If you cut more or less than a pound, though the difference should be 
 but the twentieth part of an atom, you shall die and your goods shall be con- 
 fiscated." A good solution for a period when execution upon the body of 
 the debtor was no longer understood. 
 
 2 The ancient law of Gulathing (Norway), c. 71, contains provisions which 
 have been likened to this passage of the Salic Law and the "jiartes secanto" 
 of the Law of the Twelve Tables. The debtor who is not able to pay pre- 
 sents himself before the "thing" and offers his person and his relatives for 
 the sum which is due from him, beginning with the nearest relative. If none 
 of them consent to the bargain he belongs to the creditor until he has paid 
 his debt. He is a slave with respect to the latter, for the creditor may strike 
 him if he refuses to work; however, the creditor is not allowed to sell him 
 unless he has escaped and been recaptured. With respect to third i)arties he 
 preserves his quality of a free man; if he is struck, he has a right to the fine 
 fixed by the law for blows dealt to free men, and the master on his part may 
 demand the fine for blows given to a slave. The debtor who makes himself a 
 slave may give his children into slavery with him, but only to the amount of 
 3 "marks." If he will not work for his master the latter takes him to the 
 "thing" and places his relatives under the necessity of releasing him; if they 
 refuse, he can kill him or mutilate him; the law says that "he can cut where 
 he will, high or low": Daresle, "Etudes," p. 333. — As to the interpretations 
 of these texts c/. Kohler, p. 30, and authors cited above. Cf. "Bjarkor, R.," 
 II, 50, and especially the Law of Frostathing, 10, 26: the creditor estimates 
 the value of the limbs of the debtor and can cut them off, beginning with the 
 
 565
 
 § 410] OBLIGATIONS [Chap. Ill 
 
 ous, although the law does not say so, that the creditor can spare 
 his life and sell him as a slave or keep him himself in this capacity.^ 
 If a third party, "redemptor," should present himself during the 
 delay which we have just been dealing with, the debtor shall 
 become the slave of the latter, and he will gain the advantage 
 ordinarily of having a less severe master, because the latter has no 
 vengeance to carry out. Slavery for debts ^ is the normal fate of 
 the insolvent in the old law; sometimes this is as a result of the 
 procedure which we have just described, and sometimes it re- 
 sults from an agreement between the parties.^ The clauses of 
 this agreement and the moderation of customs resulted later in 
 restricting the rights of creditors. Instead of being perpetual, 
 slavery for debts then became temporary; it only lasts as long as is 
 necessary for the debtor to pay his debt by means of his services; 
 or else, the debtor gives himself as a pledge instead of surrender- 
 ing his liberty in an absolute manner.^ In one way or another 
 it becomes admitted at the end of the Prankish period that the 
 debtor who is in the power of his creditor should neither be killed, 
 nor mutilated, nor sold; the latter is only authorized to make him 
 work for his, the creditor's profit, or else to keep him sequestrated." 
 (II) Default. Having been regularly summoned, the debtor 
 
 smallest, in proportion to the amount of his debt. Cf., however, Amira, 
 "Voltstreck.," 262. 
 
 1 Cf. Edict of Chilperic. 8: at the 4th "mallus" the king turns over to the 
 creditor the "malus homo who cannot pay the composition due by reason of 
 his misdeeds: "faciat exinde quod voluerint:" "Pact. Childeb.," 2 (I, 5); 
 "Roth.," 253 et seq.; "Liut.," 80, 152, 187; "Wis.," 5, 6, 5; "Capit.," I, 556; 
 Brunner, II, 479; Kohler, p. 21. 
 
 2 Potgiesser, "De cond. serv.," 1707; Korn, "De Obnoxiat.," 1863; Kohler, 
 "Shakespeare," 1 et seq.; Brunner, loc. cit.; Nageli, "Selbstpfandungrs.," 1876; 
 Schroeder, § 35. — Comparative jurisprudence: Dareste, "Etudes," pp. 83, 96, 
 333; -post, 2, 285. — Cf. Roman " nexum," Ch'rard, p. 477. 
 
 ^ The debtor may pledge his liberty in advance in case he should not pay 
 or when payment falls due give himself up as a slave. Symbolical forms for 
 the carrying out of these agreements: one places a cord around his neck and 
 puts his hands in those of the creditor, etc. Cf. " Obnoxiationes " in Roziere, 
 "Form.," 43 et seq.; Thevenin, "Textes," see Table; "Cart, de Cluny," I, 
 30, etc.; also laws and Capitularies, especially: "Bai.," 1, 10; "Liut.," 15, 2; 
 "L. Rom. Cur.," 27, 1; Capit. of 779, 19; of 803, 3 (I, 51, 117). As to "Wis.," 
 2, 5, 7. see Zeumer, "N. Arch.," XXIV, 112. Cf. also in 1285, Art. 115a of 
 the "Coutume de Toulouse"; D?< Cange, see "Obnoxiatio"; Horten, I, 255. 
 
 * "Form. Andeg.," 3; Marculfe, II, 29,; "Ed. Pist.," 34; Mansi, "Concil.," 
 X, 548, c. 14. — Capit. of 803, 3: "semetipsum in wadium dare." — "Sach- 
 Bensp.," Ill, 39. 
 
 ■• Later texts corresponding to this state of the law: Statute of Toulouse, 
 1197; "Fors de B6arn," ed. Mazure, pp. 26, 48, 50; of Lille, 1533, 18, Art. 3; 
 of Perpignan, Art. 13 (twelfth century); see Du Cange: J. d'Ibelin, 116; "C. 
 des Bourg.," 39, 57, 78; Kohler, pp. 23, 24 et seq.; P. de Fontaines, 17, 6. — 
 Competition between several creditors, cf. Stat, of Toulouse, " C. dea Bourg.," 
 66; Per tile, VI, 357. 
 
 566
 
 Topic 7] MEANS OF ENFORCEMENT ON THE PERSON [§ 411 
 
 does not appear in court, or else, sentenced to "fidem facere," he 
 refuses to do so.^ He is placed outside of the law,^ or, following 
 this, banished, and his possessions are confiscated.^ 
 
 §411. Imprisonment. — The system of private imprisonment 
 gave rise to too many abuses, although the creditor was forbid- 
 den by the Customs or by law to ill-treat his debtor.^ For this 
 there had to be substituted the system of the public prison, which 
 was a natural consequence of the intervention of the State in 
 procedure against insolvents.^ There was no longer, properly 
 speaking, satisfaction by seizing the body, but physical compul- 
 sion; because imprisonment for debts w^as especially looked upon as 
 a means of getting the debtor to pay his creditor with the assistance 
 of resources which were supposed to be hidden.^ The public prison 
 was a protection for the debtor. However, he did not find that the 
 treatment to which he was submitted immediately became milder; 
 the Customs of the thirteenth century still show themselves to 
 be very severe for insolvents who are confined in the public jail. 
 Much time was to elapse before that half-serious, half-comic sys- 
 tem which the readers of Dickens have not forgotten, and which 
 made one foresee the abolition of physical compulsion as an in- 
 stitution.^ As a general rule, one can see that people who were 
 
 ^ As to the execution of the "fides facta" (for example, a promise to ap- 
 pear in court or to carry out a judgment), cf. Horten, "Personalexec," p. 21 
 et seq.; Kleinfeller, "K. V. J.," 1894, 219. 
 
 2 Cf. especially Edict of Chilperic, 9; Kohler, 51; Horten, I. 
 
 ' The debtor may cause the effects of the "bannitio" to cease by appear- 
 ing in court. Cf. the Capitulary of 801, 13, c, 13 (I, 172). Post, "Distraint 
 upon Immovables"; Fertile, § 185, VI, 335. Cf. Esmein, p. 157. 
 
 * The "career privatus," which was proliibited under the Lower Empire, 
 "Cod. Just.," 9, 5, had reappeared after the invasions, and during the feudal 
 period debtors were held in private prisons, fed on bread and water, and some- 
 times placed in irons. For example, see the Statute of Toulouse of 1197; 
 "Olim," I, 539 (in 1262): The parliament allows the citizens of Compiegne 
 the right to arrest a debtor and detain him in their own houses, — a right the 
 exercise of which was opposed by the bailiff of Vermandois. 
 
 ^ Leviel, p. 270; Kohler, p. 39; " Schuldthtirmer " in Germany. It was also 
 an advantage for the creditor himself to make use of the public prison because 
 he did not always have a place where he could keep his debtor shut up : Fer- 
 tile, IV, 500. — Instead of imprisonment, exile or sending into the interior of 
 the country: Kohler, 50; Fertile, VI, 335. 
 
 * It also served as a means of compelling the debtor to alienate his im- 
 movables so long as the compulsory execution could not affect this sort of 
 possessions. Finally, it was a punishment for the debtor in bad faith who 
 had borrowed knowing perfectly well that he could not pay back, or who had 
 through his own lack of foresight placed himself in a position where it was 
 impossible for him to pay back; the creditor did not have to establish the fact 
 that there had been marked fraud or an offense, such as swindling or abuse 
 of confidence, etc. Cf. penalties against bankrupts; Kohler. 41. 
 
 ' English law: cf. Follock and Maitlaml, II, 577 et seq.; ''Fleta," II, 64, 12; 
 Blackstone, III, 26. 
 
 567
 
 § 411] OBLIGATIONS [Chap. Ill 
 
 detained for debts were treated like those who were detained for 
 some crime, except that they had the right to be suppUed with an 
 allowance for food by the creditor ^ and they were set free when 
 they yielded up their possessions. Saint Louis, in 1254, made 
 provisions which should have made this form of compulsion dis- 
 appear, but which had at least as their result the accentuating of 
 its subsidiary character and the making of it an exceptional means 
 of execution.^ Under this form physical constraint was regulated; 
 it was only authorized under certain conditions, certain persons 
 were exempt, and its duration was limited. In order to be able to 
 exercise it, it was necessary either that the debtor should have 
 bound himself by means of his body,^ or that there should have 
 been a judgment against him; tliis was possible in former times for 
 every kind of debt. According to the Ordinance of 1667, 34, 1, 
 physical compulsion was only allowed in a limited number of cases ^ 
 (for example, bills of exchange, letters of exchange, debts between 
 merchants or the price of merchandise bought in fairs and mar- 
 kets, farm rent, money spent, recovery of possession, fraudulent 
 sale). Even in these cases the tribunals were at liberty not to 
 decree this sort of compulsion; and clericals and women and sep- 
 tuagenarians were exempt (with certain exceptions).^ The time 
 of duration of this compulsion was limited in certain of the Cus- 
 
 ^ "Ass. de Jerus.," I, p. 301, ed. B.; Beaumanoir, 51, 7. But cj. Kohler, 40. 
 
 2 The " Ord." of 1254, 19 (1256, 17), forbade the seneschals or baiUffs to seize 
 or hold the body of the debtor for a civil debt, unless it were a matter of a 
 debt to the treasurer: "Summa Norm.," 6, 7, 8; "Et. de St. Louis," II, 22; 
 "Jostice," p. Ill et seq.; 303, 311. — The origin of this provision is in the 
 Decretal, "Odoardus," Dig. X, 333, 3 (the insolvent cleric should not be ex- 
 communicated, but he should swear to pay his debts if his fortunes im- 
 proved). According to the "Ord." of St. Louis, physical compulsion, like 
 excommunication, would thus be a useless severity against the debtor who 
 has nothing (or who has made an assignment of his property): Paulin, 
 "Paris," "Gr. Chron.," IV, 345; it is especially undesirable that the officers 
 of the king should exercise it arbitrarily without any formal proceedings. 
 Practice interpreted the "Ord." of St. Louis in a restrictive manner; thus 
 Beaumanoir (24, 12, 32; 43, 18, 24; 51, 7; of. "Gr. Gout.," 162; "Ord." of 
 1303, 12) maintains that physical compulsion is possible if the debtor has 
 pledged his body in writing or at law, or before worthy people. It was also 
 permitted by virtue of a judgment: " Bergerac" (in 1322), art. 25. — Cf. "Siete 
 Part.," 5, 14, 14; "Ass. de Jer.," I, 188. 
 
 ' Beaumanoir, 51,7; "Bergerac," Art. 25 (in 1322); "Bord.," 79; "Paris," 
 160, etc.; "T. A. C., Bret.," 311; Kohler, p. 55; Reaction against these agree- 
 ments, ib., p. 68; "Const. Chat.," p. 80. 
 
 ■• The "Ord." of Moulins authorized it for every kind of debt. 
 
 ^ For reasons of humanity and of decency; privileges of the clergy: hnbert, 
 I, 27; Boutaric, II, 20; "Gr. Gout.," p. 216; Lecoq, "Quest.," 392; ^' Roisin," 
 no. 50. However, public tradeswomen can have their body distrained upon. J. 
 d'Ibelin, 115, exempts knights. — It lasted for a long while against foreigners: 
 Fertile, VI, 368. Places where one cannot arrest; ibid., 361. 
 
 568
 
 Topic 7] MEANS OF ENFORCEMENT ON THE PERSON [§ 412 
 
 toms; ^ but, as a general thing, it could be prolonged indefinitely, 
 because it was thought, and not without some reason, that the 
 creditor would get tired of nourishing the debtor at his own ex- 
 pense.^ Physical constraint was nothing more at the end of the 
 Old Regime than a means of execution which had become more 
 and more exceptional and was very often inefficacious. The 
 Convention abolished it March 9, 1793, under the pretext that 
 " it was a shame upon humanity and philosophy that a man when 
 receiving money could mortgage his person and his personal se- 
 curity." ^ In reality it took this step because of the hatred of 
 riches, upon which at the same time it imposed a tax; thus, it did 
 not hesitate a few days later, on the 30th of March, to revive it 
 against debtors of the public funds. Under the Directory, it was 
 re-established by the Law of the 24th Ventose, year V (March 14, 
 1797), organized by the Law of the 15th Germinal, year VI,* and it 
 existed in our legislation until 1867.'^ 
 
 § 412. The Surrender of Possessions, borrowed from the Roman 
 legislation and admitted at an early time in the Customs of the 
 South, and practised in the North from the second half of the 
 thirteenth century,^ permits the unfortunate but honest debtor 
 to escape imprisonment for debts. This is an advantage, one 
 may say, and that is true with regard to the old legislation; 
 but it is a veritable right if one considers physical compulsion 
 as a means of getting away from the debtor the possessions which 
 he conceals.'^ What is the use of tormenting him when it is certain 
 
 1 Lille: six months ("Roisin," no. 16); Beaumanoir, 51, 7: 40 days, providod 
 he makes an assignment of his goods (reason of humanity). Cf. the German 
 proverb: "The prison does not pay." "St.-Omer," 1127. 
 
 2 On the latest state of this law see the " Ord." of 1566, 1667; Pothier, "Pro- 
 ced. Civ.," nos. 658 et seq. Cf. Loysel, 895, 896 (towns in which arrest can be 
 made), 897 (fairs, "Ord." of 1343), 907, 90S (bibl.); Isnmbert, see Table. 
 
 3 Linguet, "Theorie des Lois Civ.," p. 392. Abolition in Tuscany, 1782 
 Periile, VI, 366. 
 
 * "Code civ. interm.," IV, p. 72; Fournel, "Contr. p. Corps," year IX 
 Sagnac, 203, 344. 
 
 6 Cf. Civil Code, 16, 3; Code Civil Proc, 5, 1, 15; Law of the 4th Flor. 
 year VII, and Sept. 10, 1807 (against foreigners); especially Law of April 17 
 1832; modifications in Law of Dec. 13, 1848; Aubrey and Rau, VIII, "R 
 Crit.," 1875, p. 791. 
 
 « "Aries," etc.; Giraud, "Essai," II, 20, 23, 188, 235, 262. Cf.J. d'lhdin, 
 116. A few Customs of the North rejected it, "Ord.," XI, 389, remaining 
 faithful in this to the spirit of the old law. liut the royal legislation authorizes 
 it and Beaumanoir, 54, 6; 24, 12, show>s it to us being actually applied. " Ord." 
 of 12.54, 19 (12.56, 17); "Siete Part.," 5, 15, 4. In many places, however, giv- 
 ing up of possessions does not release the debtor; for example, Tournay, Mar- 
 seilles, Geneva, etc.: Kohler, 44 (texts). 
 
 ' The Customs of the South allow the debtor to renounce beforehand the 
 privilege of giving up of possessions; but the "Gr. Cout.," 2, 17, declares 
 
 569
 
 § 412] OBLIGATIONS [Chap. Ill 
 
 that he has nothing left ? ^ In order to escape physical compulsion 
 it is necessary that he should strip himself of everything that he 
 possesses,^ " usque ad sacculum et perram, " says the Commentary; 
 he should only keep one garment and " pannicularia quae nudita- 
 tem cooperiant "; he is not even allowed to keep his cloak. In the 
 time of Beaumanoir this surrender affects immovables as well as 
 movables. It takes place at law, and it is probable that this 
 was so because the judges ought to make sure that they were 
 not dealing with a rogue.^ Humiliating formalities often accom- 
 panied the giving up of possessions;'* the best known, and that 
 which lasted the longest, consisted in being compelled to wear a 
 green cap; in the eighteenth century this fell into disuse.*^ But 
 it was otherwise with the formalities of publicity destined to 
 notify the public of the circumstances of the debtor.^ The Ordi- 
 nance of 1673, Art. 10, enacted in the case of merchants that the 
 surrender of possessions should be read and published, and also 
 posted upon a public notice board. It is all the more necessary to 
 notify third parties because the debtor is not freed by the surren- 
 der of his possessions; if he acquires any new possessions his cred- 
 itors have a right to take them. Every debtor who has made an 
 
 that this renunciation is of no effect, even if the debtor has done it under 
 oath; were it not for this, it would seem, it says, that he had pledged himself 
 to die: Loysel, 682; Beaumanoir, 54, 6; Boutaric, II, 20; Louet, " C," 14, 12; 
 Pasquier, 539; Tambour, II, 397 et seq., 157 et seq. 
 
 1 Chaisem,artin, 268: "The dungeon causes suffering, but it does not pay 
 the debt." 
 
 2 Custom of throwing one's belt on the ground (c/. the wife's renunciation 
 to the community): Du Cange, see " Cessio bon."; Ragueau, see " Ceinture"; 
 Pasquier, loc cit., and "Rech.," IV, 10; Fleury. "Inst.," II, 68; Kohler, 46; 
 Ord. of 1490, 44; 1510, 70; " Conf . des Ord. de Guenois," I, 523; Britz, 800. 
 Cf. post, statutes according to which the debtor is deprived of his clothing: 
 Kohler, 49. Italy: Fertile, VI, 391; ibid., 347; Wach, " Z. R. G.," V, 439. 
 
 3 Pasquier. " Inst.," 537; Argou, IV, 6; Pothier, " Proced.," no. 709; Merlin, 
 " Contrat d'Abandonnement." As to the last .state of the old law, see espe- 
 cially the " Ord." of 1667 and 1673; Isambert, see Table. 
 
 ^ At Salon in 1293 the debtor goes through the town in breeches and shirt, 
 with his head bare, preceded by a crier who blows a trumpet and proclaims 
 that no one must contract with him any more: Giravd, loc. cit., " R. de Leg.," 
 1844, 428; " N. R. H.," 1878, 370; Kohler, loc. cit. ; Gui Pape, " Quest.," 143; 
 "de culo percussit supra lapidem " (at Lyons); Pasquier, 542; Du Cange, see 
 " Cessio bon."; Lattes, " Dir. consuet. Lomb.," 122 (bibl.). — Flogging (Avig- 
 non), " N. R. H.," II, 371. 
 
 * U. Robert, " Les Signes d'Infamie au Moyen Age," 1880; Ragueau, see 
 " Bonnet vert "; Fleury, II, 168; Louet, " C," 56. Pasquier declares that he 
 never met anybody in the streets of Paris wearing a green cap, and Pothier 
 assures us that, although the tribunals did not fail to condemn the man to 
 wear the green cap, he never saw a creditor avail himself of this right to fur- 
 nish the debtor with this disgraceful headgear: Kohler, 48; Pertile, VI, 387; 
 '• Stat. Romae," I, 161. 
 
 8 Cf. Argou, loc. cit.; " Bretagne," 681, etc. 
 
 570
 
 Topic 7] MEANS OF ENFORCEMENT ON THE PERSON [§ 413 
 
 assignment at law can surrender his possessions (excepting in the 
 case of an offense); as an exception, the surrender did not take 
 place in tlie case of certain classes of debts, — classes which were 
 so extensive that this surrender lost its importance after the en- 
 actment of the Ordinance of 1G67. Instead of carrying out the 
 surrender of their possessions, debtors could also apply to the king 
 and obtain from him respites or "quinquenelles," which, as this 
 last term would indicate, were effective during five years.^ 
 
 § 413. Suretyship, called "fidejussio" (as at Rome) during the 
 early barbarian period,^ and then "fermansa,"' "garendia,"^ 
 "pie vine" or "plegerie,"^ during the feudal period, was, as one 
 
 1 Respite and Delay ("atermoiements"). — (A) Respite: "respectus," 
 "repit": Da Cange, see Ragueau, ih.; "Cod. Just.," 7, 73, 8 ("quinquennal, 
 induciaj"); Loysel, 682 et seq. The king grants the unfortunate debtor a de- 
 lay within which to pay his debt. " Ord." of 1188. In the fourteenth century 
 letters of rescission are commonly used: "Gr. Cout.," 2, 17; Boutaric, II, 22. 
 They must be ratified at law in order to be effective. According to Boutillier, 
 a majority of the creditors (in number and amount) had to give their consent 
 to it; but this requirement seems not to have lasted very long. Respites are 
 only granted for privileged debts (claims of the king, of minors, etc.) or in 
 case of pledge-giving: Loysel, 68.3, 684. One cannot renounce a respite ac- 
 cording to the "Stil. Pari., de foro compet.," and the "Ord." of 1669, 6, 12 
 (Loysel, 682 contra.). The effect of these letters, says Pothier, "Proced. Civ.," 
 no. 723, is to prevent the creditors from carrying out execution on the body 
 of the debtor or the movables which he uses; they are, however, permitted 
 to distrain upon the other movables and immovables, but they cannot have 
 them sold before the expiration of the delay granted by the letters. The " Ord." 
 of 1673, 9, 5, excludes debtors who have obtained letters of rescission from tak- 
 ing any public office; but if they pay their creditors off entirely, "letters of 
 rehabilitation" cause this disability to cease. See Ferriere, who tells us that 
 in the eighteenth century letters of rescission were not very much used; delay 
 ("atermoiement") was preferred to them. — (B) Delay is not distinguished 
 from respite in the old language; but in the end by this is meant a delay 
 granted by the creditor to the debtor by virtue of a friendly agreement. It 
 is customary to add to the delay of payment a reduction of the debt. This 
 contract thus corresponds to that which to-day is called a comj)osition. It 
 assumes the consent of the creditors who represent three-quarters of the 
 amount due: see Merlin. — Cf. Italy: Fertile, VI, 381 ("moratoria"); Salvioli, 
 388. Germany: Schroeder, 832. German proverb: " (Juinquenellcn in die 
 HoUe gehfiren." 
 
 2 Thevenin, "Textes," see Table; "Burg.," 82; "Wis.," 2, 1, 10, etc.; 
 see Du Cange. 
 
 3 "F. de Beam" and elsewhere; Customs of the South: "Bai.," 15, 11; Rat- 
 chis, 5: "causa quae per wadiafirmatur"; Franken, p. 207; "F.de Navarre," III, 
 16; "fidadores"; "SietePart.," V, 12: "fiadores"; DuCanj^e, see "Caplevator," 
 "Manvelator"; Munoz y R., "Fueros," p. 542. 
 
 ■• Du Cange, see "Garandia," "Warrantus," etc.; "Olim," see Table, 
 " Guadimonium " or "Vadimonium," "Lombarda " 2, 21. 
 
 ^ In the North see Godejroy, "Chanson do Roland," 3847. Its etymology 
 is unknown. "Pleige" means surety. "Pleigerie," "pl6vine," mean surety- 
 ship, pledging. Du Cange, see "Plegius" and its derivatives: "Appl^ge- 
 ments," "contre-plcge," "franc pl6ge." Brncton, 3, 10, 1: "Omnis homo 
 debet e.sse in franco plcgio" (responsiljility of the members of the "de(;anie"; 
 they are pledged to one another for the offenses which they commit); "aut in 
 ahcujus manupastu" (subject to some one). "Plegium" in the sense of gage; 
 
 571
 
 § 413] OBLIGATIONS [Chap. Ill 
 
 has seen, of very great importance in the old law.^ One can say 
 that the more defective and the more embryonic the procedure 
 was, the more extensive the part played by the surety became. 
 The giving of surety was not, as it is to-day, a security which 
 was accessory, occasional in the formation of contracts; it was 
 necessary for their very existence.^ At this time it was applied to 
 the most diverse objects:^ surety is given in order to guarantee 
 the payment of a debt or that one will appear in court,^ that one 
 will furnish proofs or execute a judgment, that some one who is 
 banished will not return, that such and such a man will not cause 
 damage, that the sons of the vendor will not attack the sale, etc. 
 When it ceased to be strictly indispensable the custom of joining 
 this security to contracts was no less widespread; judges de- 
 manded from pleaders pledges that they would appear; ^ custom 
 
 ibid., see, "plivium"; "F. de Bigorre," 37; Ragueau, see "Applegement," 
 "Plege," etc.; Pollock and Maitland, II, 183 (really: "gage"). — German: 
 "Biirge," c/. Anglo-Saxon: "borh." — Loysel calls it "reponse," 669. 
 
 1 Sources: "Ass. de Jerus.," J. d'Ibelin, 117 to 130; Ph. de Navarre, 78, 79; 
 "C. des Bourg.," 67 to 86; P. de Fontaines, c. 7 et seq.; Beaumanoir, 43; "Et. 
 deSt. Louis," 1, 108, 122; " Jostice," pp. 83, 87, 93, 105, 274; "T. A. C, Norm.," 
 52; "Summa Norm.," 59,89; Glanville, 10; Britton, "C. V.," "Reg. maj.," 3, 
 1; "A. C, Anjou," Table, see "Plege"; "Gr. Gout.," 2, 7; Boutanc, I, 101; 
 "Siete Part. " V II' "Petriis " II 43. 
 
 2 Kovalewsky '^^!lbl, 507;' Dareste, pp. 13, 57, 86, 97, 104, 113, 315. Cf. 
 also Horten, "Die Langobard. Schuldverpflichtung," 1896 (II, 1896, "Per- 
 sonal execution"). 
 
 3 Examples in Ruber, IV, 875; "Burg.," 82, 1; "Alam.," 36, 3; "Capitul.," 
 ed. Boretius, see Index. — Cf. the proxy, the responsible debtor in our law. 
 
 * Cf. in modern law provisional liberty of the accused under bail. Beau- 
 manoir, 53, 4: to deliver under surety with good pledges. Anglo-Norman 
 sources: the surety is called "viva prisonia ducis Normannia;"; and, con- 
 versely, it is said: the gaol of Fleet is the pledge (of such and such a man): 
 "Summa Norm.," 75, 5; "Select. Pleas," p. 197. 
 
 ^ We have seen how suretyship was an essential part of the mechanism of 
 the old procedure. In Normandy the " querimonia" or complaint at law takes 
 place "datis plegiis de la prosequenda" (the demandant should even bring 
 with him witnesses in order to make his complaint seem probable: this is the 
 "secta" of the English law: Brunner, "Entst. de Schwurg.," pp. 170, 428); 
 both demandant and defendant give surety "de stando juri": "Summa 
 Norm.," 56; 59, 10; see Du Cange, Ragueau, see "Ester." During the course 
 of the proceedings, generally speaking, in the old law pledges are often 
 required: Franken, § 17; "L. d. Droiz," Table, see "Plege"; Ragueau, see 
 "Applegement"; Beaumanoir, 43, 33 et seq.: the surety "stare juri" is only 
 furnished by the alien demandant; and if he is a poor man or a foreigner his 
 word is deemed sufficient, 2, 14 (cf. "caution juratoire," see Ferriere, Guyot). 
 According to Beaumanoir, loc. c%t., the pledge to abide by the law is held to 
 apply to the entire proceedings. This is equivalent to the payment of the 
 judgment, whereas the pledge to appear in court only applied to the appear- 
 ance: P. de Fontaines, 8, 5; "Jostice," p. 87; "C. des Bourg.," 127; Larroque- 
 Timbaut, 9. The tendency to do away with legal sureties made its appearance 
 first of all, it would seem, in the canon law; thus the "Auth.," "Generaliter" 
 was not applied within the ecclesiastical jurisdiction (P. Fournier, p. 146): 
 Tanon, "N. R. H.," 1882, 497. Later on, Loysel was able to say, 858: "There 
 
 572
 
 Topic 7] MEANS OF ENFORCEMENT ON THE PERSON [§ 413 
 
 imposed in certain cases an obligation upon the debtor to furnish 
 sureties.^ For a long time it was a duty for relatives - (or for client 
 and patron) mutually to serve each other as surety;^ the vassal 
 is held bound in some of the Customs to act as surety for his lord.'* 
 As a consequence, this becomes a favor which a friend will not 
 refuse to grant, and which is not without dangers for him because 
 of the severity with which sureties were formerly dealt with, — 
 dangers which were all the more to be feared because they were 
 hidden; the surety believes that he is brought in simply as a mat- 
 ter of form, he counts upon the solvency of the debtor, and nine 
 times out of ten the burden of the debt falls entirely upon him. 
 Certain legislators concerned themselves with this situation; ^ 
 thus, the Velleianum Senate Decree in Rome was enacted in order 
 to warn women against imprudent undertakings; they were al- 
 lowed to bind themselves, but not to act as surety for anybody 
 else.^ In our day, when "pecuniary interest dominates the legal 
 relations," suretyship has become more rare; it has taken on a 
 
 is no need for legal sureties between Frenchmen." By this he meant the 
 "judicatum sol vi," which was no longer required except from a foreign de- 
 mandant, because in his case the particular facts that accounted for the 
 necessity of his furnishing surety in the past had not changed; by returning 
 to his native country he could escape from the consequences of the proceedings 
 that he had begun in an offhand manner or with the object of annoying some- 
 body. As to other legal sureties, c/. Ferriere; "Ord." of 1667, 38; "Tract, 
 univ. juris," III (Schenclv); Pasquier, "Inst.," 599. — Also: Scotch law"Quon- 
 iam attachiamenta " ; see Du Cange. 
 
 1 "L. d. Droiz," 1008; "Arrestum Sane," at Toulouse, cf. Tardif, "Cout. 
 de Toul., i. f. "; "Le Droit prive au XIIP siecle," p. 42. 
 
 2 Dareste, pp. 113, 156 (pledge, remuneration given to the surety). C/. 
 p. 1367 {contra); Beaumanoir, 30, 59; Glanville, 11. 
 
 ^ At this time a great deal of strictness is shown as to the capacity of the 
 surety. Dareste, p. 376 : those who cannot be sureties according to the " Senchus 
 Mor," the canons of Ireland, and the laws of Gaul, are "servus," "peregrinus," 
 "brutus," "monachus," "femina" (with the exception of the "domina," — 
 that is to say, the woman who is at the head of the household because the 
 share contributed by her is greater than that of her husband). 
 
 * J. d'Ibclin, I, 196; "Summa Norm.," 59 10 ("homagiati," and even mere 
 "residentes"); Beaumanoir, 43, 21; Giraud, "Essai," II, 13G (inliabitants sub- 
 ject to the consuls); "Constit. Sic," III, 14; Fertile, IV, 512. 
 
 ^ Chaisemartin, 11; Huber, IV, 855: precautions taken in Switzerland, for 
 example, annulment of suretyships entered into in a tavern, prohibition of 
 binding oneself beyond a certain sum, entering in a public register: Beau- 
 manoir, 43, 2, 3. 
 
 " Stobbe, § 192. Special capacity to bind themselves in the matter of giving 
 surety. See as to feudal period: Beaumanoir, 43, 22, 26 et seq. (married 
 woman), 23 (serfs) 38 (clericals), etc.; P. de Fontaines, 8. "Abiding" surety; 
 that is to say, one who is domiciled within the jurisdiction, in order that 
 the examination of the matter may not be too difficult: P. de Fontaines, 7. 
 "Citizen" surety, meaning solvent, but originally it means that a citizen can 
 only have surety given for him by another citizen of the same town. "War- 
 ranty" of a surety, insuring that the surety is solvent. 
 
 573
 
 § 413] OBLIGATIONS [Chap. Ill 
 
 commercial character (indorsement of commercial paper); it is 
 less in favor because modern law is based upon the idea, "plus 
 cautionis est in re quam in persona." Loysel, 486, translates this 
 idea as follows: "A surety pleads, a pledge pays, and to give 
 surety is the occasion for a double action." ^ 
 
 §414. Hostage. — The early surety was only a living pledge 
 or a hostage; - it was his own person, his body, that was offered 
 as a pledge to the creditor by the debtor, "loco wadii"; ^ he be- 
 came a sort of slave (cf. a Roman "mancipium"); ^ also, he was 
 ordinarily chosen among the persons who were dependent upon 
 the debtor; it was some one of his household. The creditor kept 
 him near himself, sometimes sequestrated, or even in irons; he was 
 authorized to take vengeance upon him if the debtor did not pay 
 his debt at maturity, just as he would have taken vengeance upon 
 the person of the debtor (it was death, mutilation, slavery for 
 debts). Such a prospect as this must have led the hostage to 
 neglect no means of getting the debtor to free himself of the obli- 
 gation. Also, thenceforth one can account for two of the most 
 remarkable characteristics of the primitive suretyship: 1st, in 
 giving surety, the debtor frees himself; 2d, the death of the 
 surety destroys the right of the creditor; the fact of being in his 
 hands like a pledge could not be transmitted to the heirs of the 
 hostage. Of course, moreover, the creditor had to feed his 
 hostage,^ which gave rise to the gibe, "The banquet of a hos- 
 
 1 Lorjsel, 669, 670. — Cf., Endemann, op. cit., II, 344. 
 
 ^ Terminology: "obstagium." German: "Einlager," meaning to send into 
 the interior of the country; "Geisel," meaning hostage. — Cf., in the Roman 
 law: "Praes vas": Girard, "Manuel," p. 743. On the " vindex," ibid., p. 874; 
 Maria "These" 1896. 
 
 » Capitulary of 803', 8 (I, 114); Greg. Tours, "H. Fr.," Ill, 15. Charter of 
 1198 (Molinier, op. cit.): "tenet obsidem vel in pignore" (difficulties among 
 several creditors). A hostage is distrained upon in the same way as a pledge: 
 d'Arhois de Jubainville, "Etudes de Dr. Celt.," p. 255; "F. de Beam," 16; 
 "thianssers" (pledge or hostage). 
 
 ^ Huon of Bordeaux has killed the son of Charles; in order to obtain hig 
 pardon he must carry out certain exploits, and meanwhile he gives twelve 
 hostages; Charles, believing that he has accomplished nothing, orders that 
 these bondsmen be hung. Literature is in accord with the law; cf. freedom of 
 accused persons who have given surety. The proverb: "Blirgen soil Man 
 wiirgen" (sureties should be strangled) : Chaisernartin, 11. In criminal matters 
 the surety suffers the penalty which would have been incurred by the man whose 
 appearance he guarantees if the latter should not present himself on the ap- 
 pointed day. Cf., the surety of Schiller: "Sachsensp.," 3, 9, 1. — The law 
 changed upon this point (penalties became personal), and Loysel could say, 
 4, 5, 1 and 3: "He who answers for a criminal body for body, property for 
 property, is however only civilly bound." Cf., already, Beaumanoir, 43, 24, 
 25; "Roisln," 408. . " 
 
 ^ At any rate, he advanced him sustenance. He is even responsible fo^ 
 torts that the hostage may commit. 
 
 574
 
 Topic 7] MEANS OF ENFORCEMENT ON THE PERSON [§ 415 
 
 tage is a costly banquet." ^ In order to avoid these expenses, the 
 creditor gave up the person of his hostage, or, rather, did not de- 
 mand tliat the hostage should be handed over to him as soon as 
 the contract was made. He contented himself with the promise 
 that the hostage would present himself at the first summons at 
 the place which was appointed beforehand, or which should be 
 designated afterwards, — a town, a castle, or an inn, — and from 
 which place he was forbidden to depart until the debt should be 
 paid.^ The laws seldom had to see to the carrying" out of this 
 promise, because it was made a point of honor to keep it; and, 
 if necessary, excommunication would have had satisfaction from 
 the recalcitrant hostage (perjury or quasi-perjury) or else he would 
 have been taken by force (intervention of the magistrates).^ 
 Shutting up in prison was the natural penalty for the infraction of 
 this order; Beaumanoir recommended that one give the hostage 
 who has suffered this punishment better nourishment than is 
 furnished to prisoners for some crime.^ At the same time, the 
 hostage, and, as a consequence, the debtor, was charged with the 
 expenses occasioned by the sojourn of the former in prison.^ These 
 were surely real improvements, but they were such that they could 
 not preserve this superannuated institution from the disuse to 
 which it was destined.^ There is scarcely any mention of it 
 after the fifteenth century.^ But, if it disappeared from private 
 law, it remained longer in the relations between one nation and 
 another, and it is reverted to in times of crises; thus it is that the 
 Commune had its hostages. 
 
 § 415. The " Fidejussio" or " Plegerie," which takes the place of 
 
 ' Chaisemartin, p. 264: "Giselmahl kostlich Mahl." They are often seen 
 leading a gay life, — so much so that in 1577 in Germany, through the exercise 
 of the poUce power, it was forbidden to have hostages: Le Fort, p. 429. Cf. 
 Beaumanoir, 51, 7; 43, 32 et scq. 
 
 ^ He was confined a prisoner on parole: Giravd, "Essai," II, 189 (Aries), 
 23 (Aix). 
 
 3 Le Fort, p. 431. 
 
 * 51, 7; 43, 22 et seq. Cf. "Const, du Chatelet," § 73. But, generally 
 speaking, it was not allowed to throw him "in vincula et carcercm": it was 
 sufficient if he were prevented from taking flight: Loening, " Vertragsbruch," 
 p. 2.39. 
 
 ^ An indirect means of compulsion in this case. 
 
 8 Jean Faure, "Inst.," I, 3, asks if one can bind oneself "ad carcerem vel 
 ad tenendum ostagia"; cf. 4, 6; D' Argcntre, on "Bret.," 117; Beawnanoir, 51, 
 7: forty days' imprisonment at the mo.st {cf. pledge); "A. C, Bret.," 311, 312; 
 Regulation of the Consuls of Toulouse, 1198, 1200; "F. deBearn," r. 16.— 
 Prohibition in 1366; Frioul in 1396; Milan in 1577. — Germany: Kohler, 
 pp. 67, 376. 
 
 ^ At Bale-Campagne, instances are found until the eighteenth century: 
 Huber, IV, 880. 
 
 575
 
 § 415] OBLIGATIONS [Chap. Ill 
 
 the " obstagiiim " or exists together with it, retained under its 
 primitive form many of the former's characteristics; it differs in 
 that bodily responsibihty of the warrantor passes into the back- 
 ground; it is no longer anything but a satisfaction which is almost 
 equivalent to a payment, and which consequently prevents the 
 formation of the obligation rather than guarantees its carrying 
 out. It is formed by way of "fides facta" at first, and then by 
 faith-pledging or the blow with the palm of the hand. In the first 
 case the debtor holds out the "festuca" or the "wadium" to the 
 surety, and the latter in his turn gives the object which he has 
 received to the "fidejussor";^ in accepting it the "fidejussor" 
 releases the principal debtor ^ and takes the debt upon himself.^ 
 This is at least what seems to result from this obscure symbolism 
 if it is interpreted with the assistance of the early system of surety- 
 ship, of which it thus reveals the characteristics within narrow 
 limits."* With the practice of faith-pledging or the blow with the 
 palm of the hand the institution may have become more flexible; 
 its effects are no longer imposed by the forms which it assumes; 
 at the same time, the influence of the archaic "obstagium" is felt 
 less; thus changes are facilitated. 
 
 In view of these formalities and the influence of the "obsta- 
 gium," one has no difficulty in seeing that the early surety 
 had neither the privilege of having the principal debtor pur- 
 sued before himself nor the privilege of contribution, and that 
 his obligation could not be transmitted to his heirs. ^ (1) He does 
 
 1 Prankish and Lombard practice: Esmein, pp. 47, 73; Franken, § 17; Sohm, 
 op. cit.; Vol. de Ldevre, "Launegild," pp. 184, 215. Cf. Thevenin, "N. R. H.," 
 1880, 456; Thevenin, "Textes," no. 109, etc.; Roziere, "Form.," no. 465; 
 "Roth.," 182, 360; "Liut.," 32 et seq., 128; Pardessus, "Dip.," no. 424; "Bai.," 
 app. 4; D. Vaissette, "Preuves," no. 109; "L. Fr. Cham.," 16; Edict of Chilperic, 
 6 (going surety for oneself); " Aripr. et Alb.," II, 21: within three days the 
 debtor himself must hberate the "wadia" by furnishing "fidejussores"; if 
 not, he has to pay 12 sous for each day he delays. 
 
 2 The "wadia" is liberated: "Liut.," 37, 728; "Roth.," 360. 
 
 ^ Thenceforth he has the debtor's pledge, and it is understood that he can 
 realize upon it; but one thing that is not clearly explained in this act is the 
 binding of himself towards the creditor; in order that this should happen it 
 would have been necessary for him to have given the creditor his own "wa- 
 dium." It has been maintained that the "festuca" that was given him ought 
 to serve to carry out execution upon the debtor: " L. Sal.," 50, 3. Cf. Schroeder, 
 p. 290. 
 
 « "Jostice,"19,38; Esmein, p. 107; "Cart, de St. Victor," no. 143; D'Avenay, 
 no. 54. — Cf. Simple guaranty by verbal engagement in the "Summa Norm.," 
 89, 3. 
 
 ^ Esmein, "N. R. H.," 1887, 48, by means of the general idea of the intrans- 
 missibility of debts, whether they be those of sureties or those of the principal 
 debtors, explains various rules of the Roman law ; namely, that one can neither 
 stipulate nor promise anything to take effect after one's death. Passive intrans- 
 
 576
 
 Topic 7] MEANS OF ENFORCEMENT ON THE PERSON [§415 
 
 not have the privilege of having the principal debtor pursuetl 
 first; his responsibiUty is not secondary, as in our day; he is 
 kept in the foreground, just as is the principal obligor, and he 
 covers the debtor.^ One may even ask if the latter is not entirely 
 freed, at least as regards the creditor, simply because he has fur- 
 nished a surety; it is incumbent upon the surety to get the debtor 
 to carry out his undertaking, but in no case would the creditor 
 have the right of prosecuting the latter; he can only make appli- 
 cation to the surety. In other words, the surety is responsible to 
 the creditor and the debtor to the surety. Such is indeed the 
 tendency of the old Germanic law,^ and the documents of the 
 Frankish period sometimes yield to this tendency by freeing 
 the principal debtor ("is qui sub fide jussore discesserit") ^ or 
 even by permitting the debtor to act as surety for himself, which 
 would have no meaning if the creditor had been able to attack 
 him merely in his quality of debtor.^ In other cases, under the 
 Roman influence, they permitted the creditor also to act against 
 the debtor;^ but, as a general thing, if he proceeds in that way, the 
 
 missibility of penal actions, passive and active intransmissibility of the actions 
 "vindictam spirantes," and "adstipulatio": Fertile, 130. Cf. the rule, "The 
 living cannot distrain upon the dead"; post, "Distraint"; Dareste, pp. 77, 94, 
 95; Argou, II, 7. The king does not pay the debts of his predecessor: Isambert, 
 1, 279. 
 
 1 Explanation given by Esmein, p. 87: "One does not always choose one's 
 debtor (for example, in the case of an offence); one chooses one's surety and 
 takes care that he is solvent, so that it is more natural to pursue the surety 
 than the debtor." 
 • =' Denmark: " Jiit. Lov.," 2, 62, 64: he who gives surety is not responsible to 
 any other person excepting the surety : Dareste, pp. 113, 263; " Lib. Pap. Roth.," 
 178 3 
 
 »' "Burg.," 19, 5; 4, 7; 83, 1; "Sal. Extrav. B.," 6 (Hessels): the debtor is 
 released if the "fidejussor" dies after having received the pledge: "L. Fr. 
 Cham.," 16; "Roth.," 245, 366; "Ratch.," 8; "Aist.," 21; "Liut.," 36 et seq. 
 A suit in 692: Bethmann-Hollw., "Civilproz.," I, 558; Geffcken, "Sal.," p. 287 
 (bibl.). 
 
 * Edict of Chilperic, 6. According to the common opinion pointed out 
 above in the first place, the "festuca" passes through three hands, just as in 
 the caseof the giving of surety by a third party: Geffcken, "Sal.," 21\;Schroeder, 
 p. 291; Sohm, loc. cit.; "Eheschl.," p. 41; Brunner, II, 368; Esmein, p. 83; 
 Franken, p. 234; Heusler, II, 242; Huber, IV, 875; "N. R. H.," 1879, 342; 1880, , 
 77. Cf. "Jiit. Lov.," II, 104. 
 
 ^ The privilege of exhausting the remedy against the principal debtor 
 before proceeding against the surety did not exist — at least, on principle — 
 before the time of Justinian, "Nov.," IV. We read in "L. Rom. Wis.," 
 "Gaius," 2, 9, 2: the creditor has a right to pursue either the debtor or the 
 "fidejussor" at his will: "Liut.," 108; "L. Sal.," loc. cit. (cf. t. 50) (Geffcken, 
 287); if they are both alive the debtor is first held liable to pay, "N. R. H.," 
 1880, 457; 1879, 336. Fine for the debtor who allows the surety to be dis- 
 trained upon: "Burg.," 19^ 8, 9; "Liut.," 40; "Et. de St. Louis," I, 122 
 (choice of a creditor). A triple summons of the debtor in the law of the Bur- 
 gundians and the Lombards: "Roth.," 245. But it is not necessary for the 
 
 577
 
 § 415] OBLIGATIONS [Chap. Ill 
 
 "fidejussor" is liberated/ and in any event, the surety who is 
 prosecuted in the first place is under the necessity of giving satis- 
 faction. This surety is not able to send the creditor away and 
 tell him to first of all carry out his vengeance on the possessions 
 of the debtor, which rule is still found in the thirteenth century 
 in many of the books of Customs.^ Thus, Beaumanoir, 43, 21, 
 assumes that the creditor asks the surety to "act like a good 
 surety" without the debtor being informed of it; the surety has 
 the choice of paying at once or giving a sufficient pledge or nam 
 so as to gain time, obtain enough to pay or to proceed against the 
 debtor.^ This surety should do everything in his power to assure 
 the payment of the debt;^ he must busy himself in order to make 
 the debtor appear in court,^ and bear with the whole weight of his 
 moral authority or physical authority so as to compel him to give 
 satisfaction.^ Against the surety the creditor is armed with the 
 forcible means of action of the old law, the physical constraint,^ 
 and especially private distraint; ^ and in his turn the surety 
 makes use of them against the debtor,^ who is held liable towards 
 
 creditor to prove the insolvency of the debtor in order to pursue the surety : 
 "Ratch. " 8. Cf. Petrus II 27. 
 
 1 "Faux Cap.,'" Ill, 334; "L. Rom. Cur.," 22, 12; Esmein, 86; Baluze, 
 "Cap.," I, 154; Paul, "Sent.," II, 17 (effect of the "Htis contestatio"). At 
 Neufchatel, Switzerland, until 1855, the creditor who in the first place pursues 
 the debtor thereby loses all recourse against the surety : Huber, TV, 883 ; Stobbe, 
 III, 308. 
 
 2 "Et. deSt. Louis," 1, 122; "A. C, Bourg.," 5, 3; "Lille," 143; "Toulouse," 
 76; "Montpellier," 72; "Sachsensp.," Ill, 85, 1; "Schwabensp.," I, 6. No 
 preliminary denunciation of the debtor: Beaumanoir, 43, 1. But the surety 
 acts imprudently by not putting this point in issue: ibid., 43, 10, 12; Pasquier, 
 "Inst.," p. 585; the debtor and the surety can be prosecuted for debts owed to 
 the king without any examination: " F. de Bcarn," ed. Mazure, p. 294 (renun- 
 ciation of the three Roman privileges of exhausting the remedy against the 
 principal debtor before proceeding against the surety, contribution, and 
 assignment of the deed). 
 
 ' "Summa Norm.," 59, 7. It is clear that by this means progress was 
 being made towards the recognition of the subsidiary character of a surety. 
 
 * Which is done, for example, by his seizing the possessions, or even the per- 
 son of the debtor, and handing them over in payment to the creditor. Example 
 in Perlile, loc. cit.; "Burg.," 19, 7. 
 
 ^ Beaumanoir, 43, 25; Glanville, X, 5, 5. 
 
 » Pertile, IV, 505. 
 
 7 "Ass. de Jerus.," "C. des B.," 39, 58, 80, 112; "Alais," 7 in "Olim," IV, 
 1486; "Const, du Chatelet," 71 (by virtue of a special clause). But according 
 to Beaumanoir, 43, 18; 24, 30, the surety does not pledge his body; "T. A. C, 
 Norm.," 52. 
 
 8 "Liut.," 108 et seq.; Beaumanoir, 43, 15; 30, 51 et seq. In the County of 
 Clermont no one can have recourse to his surety by giving him up unless he 
 makes a complaint at law, excepting at Creil and in a few other places: Du 
 Cange, see "Abandum"; "Ass. de Jerus.," "C. des B.," 76, 77. 
 
 » Even before he has been pursued: "Liut.," 39, 40; "Burg.," 19, 82, 96; 
 •'Extr.," 21, 8. But the "L. Burg.," does not make any mention of a distraint 
 
 578
 
 Tone 7] ME-OfS OF EXFORCEMENT ON THE PERSON [§ 41G 
 
 him in double the amount.^ It is even noticeable that in this mat- 
 ter the employment of distraint by self-help is maintained much 
 longer than in the case of ordinary debts,^ (2) Between fellow 
 "fidejussores" there was neither contribution nor recourse.^ The 
 creditor was authorized to reclaim the entire debt from either one 
 he pleased; ^ the others were then freed by one payment, and they 
 neither had to contribute in advance to the "solutio" nor to in- 
 demnify the "solvens" afterwards.^ (3) Finally, as a last charac- 
 teristic of the old "iidejussio," the obligation of the surety did not 
 pass to his heirs ^ but died with him,^ which made of it a very 
 frail guarantee in one sense, while it was a very powerful one in 
 another, owing to the rights which it gave to the creditor. It is 
 probable that this risk was lessened by increasing the number of 
 sureties. 
 
 § 416. Modern Suretyship was developed, like the Roman 
 "fidejussio," by way of a spontaneous progression in legal ideas; 
 in proportion as the payment of debts became better assured by 
 force of law and morals, sureties became less useful ; ^ they ceased 
 to be so strictly held; ^ their undertaking became entirely acces- 
 
 practised by the creditor upon the debtor; the only question dealt with is one 
 relating to a summons made for the sake of form; the surety is responsible to 
 the creditor and the debtor to the surety. — Esmein, p. 90; Dareste, p. 113 
 (preliminary pledge given to the surety); p. 198 (privilege); p. 156 (salary). 
 
 1 "L. Fr. Cham.," 16; "Cap. de Pari. Sax.," 27; Papien, 14, 8; "Liut.," 
 108; Sickel, "Bestr. d. Vertragsbr.," 10; Esmein, 88, 97, 137. The same in 
 Hindu law, Irish law, etc.: Kovalewsky, p. 153; Dareste, "Etudes," p. 77; 
 Collinet, "N. R. H.," 1895, 653. "A. depensi" at Rome. 
 
 2 Beaumanoir, 43, 15; "Et. de St. Louis," I, 122; "Jostice," 19, 26, 38, 47, 
 174; "L.d. Droiz,"no.l94; "Ass.de Jerus.," "C.des B.," 74; "A. C, Artois," 
 22, 4; "A. C, Bayonne," 153. 
 
 3 Glanville, X, 5; "Ass. de Jdr.," "C. des B.," 72, 78; "Const, du ChAt.," 
 73, 76; Beaumanoir, 43, 7, 5; "Montpellier," 72; Pasquier, "Inst.," p. 589. — 
 Dareste, p. 90. 
 
 * He chose the one who appeared to be in the better position (the one who 
 was apparently more solvent). 
 
 5 The "solvens" could only ask the others in a friendly manner for an 
 immediate contribution or a promise to indemnify liim; he was not sure of 
 obtaining it unless it had been previously agreed upon. 
 
 8 Gains, III, 120 ("sponsor," "fidepromissor"); "Burg.," 82, 2; Capit. of 
 875, c. 42; Esmein, 89. — P^or the Feudal Period cf. "Summa Norm.," 59; 
 J. d'Ibelin, 129; "C. des Bourg.," 78; P. de Fontaines, 9, 5; Beaumanoir, 43, 
 4; "Jostice," II, 12, 3; Boutaric, I, 101; "Montpellier," 13; 'A. C, Bourg.," 
 78. — Cf. Dig. X, 3, 22, and the Commentaries of Hostiensis, G. Durand, etc. 
 
 ^ It has been said that a kind deed was personal. But it is just when it 
 becomes a kind deed that suretyship becomes hereditary: Esmein, "N. R. H.," 
 1887, 51; Dareste, p. 76. 
 
 8 No forms for suretyship {cf. Beaumanoir, 39, 69; "Summa Norm.," 89, 3) 
 no more than for ordinary contracts: "Roisin," 25, 47. 
 
 ' .Joint debt or "solidarity" was not distinguished from the old suretyship; 
 it only acquired a special existence when suretyship took on its new form and 
 lost its harshness: Argou, book IV; Glasson, VII, 599. 
 
 579
 
 § 410] OBLIGATIONS [Chap. Ill 
 
 sory ; ^ it was their possessions, and not their persons, that the 
 creditor attacked; also, the heirs of the surety had no right to 
 try to escape from this burden.^ By this means, what the creditor 
 loses on one side he finds that he gains on another; if his remedy 
 against the surety is less severe, it is the more certain. Already 
 in the thirteenth century the "Grand Coutumier de Normandie" ^ 
 contrasts the simple surety, whose obligation is personal, with 
 the surety who undertakes as a " surety and debtor," — that is 
 to say, one who binds both himself and his heirs.^ Inherita- 
 bility soon becomes the rule. For his part, the creditor, whose 
 protection gathers strength and who seeks property rather than 
 a person,^ is under the obligation to prosecute the debtor before 
 doing anything else, and it is only when it is well proved that 
 the latter is insolvent that the creditor can have recourse to 
 the surety ; ^ the latter is only a secondary debtor, a " segond 
 detors," as the Assizes of Jerusalem say. Excepting in a 
 few belated Customs, the surety has the Roman privilege of 
 ranking in order or of having the debtor's property pursued 
 
 1 Consequences: Pothier, "Oblig.," 373 (delay, physical compulsion). 
 
 2 The obligation of the pledge became hereditary sometimes as a conse- 
 quence of a privilege (claims of the sovereign, Beaumanoir, 43, 9), sometimes 
 as a consequence of a special clause or of the form which it took on ("pleigerie 
 stipulaire": Boutaric, I, 101): P. de Fontaines, 9, 5; Imbert, III, 16; finally it 
 passed to the heirs when the surety had been sued at law: Beaumanoir, 43, 4. 
 Cf. "L. Rib.," 67, 1; Dig., 50, 17, 139; Esmein, "N. R. H.," 1887, 57. Ac- 
 cording to the "Ass. de Jerus.," "C. des B.," 78, the possessions of the surety 
 are seized and sold if the debtor is insolvent; in fact, assuming that he is not 
 dead, he should have paid or given pledges. In a general way, one can say 
 that the reasons in favor of intransmissibility no longer existed, and that 
 the clause of heredity was implied. Post, "Inheritances." Cf. English law, 
 clauses of this nature ("specialty binding the heir ");i/e?isZer, II, 548. Heredity 
 according to the "Schwabenspiegel," VII, 289 (Stobbe, 191). 
 
 3 "Summa," 59, 89; Boutaric, I, 101; 'IL. d. Droiz," 143. 
 * The heirs are the pledges of chance: "Summa," 60, 12. 
 
 ^ Provided that the pursuit of the debtor is not too difficult, and that it ia 
 not simply to avoid this pursuit that one has had recourse to the "fidejussio." 
 
 ^ The surety pursued by the creditor had two means of defense in our old 
 law, — one of Customary origin, and the other of Roman origin: 1st, the de- 
 fense of warranty allowed him to interplead the principal debtor (or his fellow 
 "fidejussores"): J. d'Ibelin, 124; Beaumanoir, 43, 21; "Gr. Cout. de Norm.," 
 60, 89. — 2d, the primlege of having the remedy against the principal debtor 
 exhausted before the surety was proceeded against (Glanville, X, 3, 4; "A. C, 
 Anjou," I, 328; cf. "Et. de St. Louis," I, 122; "L. des Droiz," 620; Boutaric, 
 I, 120), by means of which the "fidejussor" makes the creditor pursue the prin- 
 cipal debtor before proceeding against him: "Bret.," 150, 207; Masuer, II; 
 Imbert, I, 20; Rebuffe, "De Litt. Obi.," I, 2, 88; Pothier, "Proc. civ.," no. 90. 
 The defense of warranty is especially serviceable to the surety who has re- 
 nounced the privilege of having the principal debtor pursued before himself 
 or of contribution. This warranty in personal matters, or simple warranty (the 
 surety not being put outside of the law) is contrasted with formal warranty (in 
 real matters): Esmein, 148. 
 
 580
 
 Topic 7] MEANS OF ENFORCEMENT ON THE PERSON [§ 41G 
 
 before himself.^ With the ordinary surety, who is held second- 
 arily and in default of the principal debtor, is contrasted ^ the 
 surety who is jointly and severally liable, and who is looked upon, 
 owing to a curious inversion of historical sequence, as having 
 renounced the privilege of having the principal debtor pursued 
 first,^ though it was the ordinary surety who acquired it. The 
 privilege of contribution ^ could not fail to be joined to the privi- 
 lege of having the principal debtor pursued before the surety ; ^ 
 the same reasons of equity caused it to be admitted in the fif- 
 teenth century by judicial practice, and a little later even the surety 
 who had paid without asking for contribution in the payment of 
 the debt obtained an action against his fellow "fidejussores." ^ 
 The recourse of the "fidejussor" against the principal debtor,^ in- 
 stead of being carried out, as it was formerly, by means of private 
 distraint, offered no other peculiarities excepting the possibility 
 of making use of the rights and actions which belonged to the 
 creditor ^ ("benefit of the assignment of actions").^ 
 
 ^ Italian statutes cited by Fertile, IV, 508. 
 
 2 He who assumes the character of a surety and debtor binds his heirs and 
 sometimes releases the principal debtor; then the clause means, the acceptance 
 of a new debtor instead of the old one: "Gr. Gout, de Norm.," 60; "L. d. 
 Droiz," 143. 
 
 ^ P. de la Janes, II, 338, 345, states that it was customary to renounce the 
 privileges of having the principal debtor pursued before the surety and of 
 contribution. The legal surety did not enjoy these advantages (but it was 
 otherwise with his warrantor), nor did jointly liable joint debtors (even in 
 countries of written law, although they say the Novella, 99, seems to have 
 granted them both these defenses). Cf. Loysel, 397; L'Hommeau, p. 312. 
 
 ■• "Beneficium nova) constitutionis": "Nov.," 4; Fertile, IV, 510; "F. de 
 Bcarn," ed. Mazure, p. 294. 
 
 * Right of interpleading his fellow sureties (warranty); also the Roman 
 privilege of contribution: Masuer, 29, 23; "Roisin," p. 47; "A. G., Anjou," II, 
 441; IV, 252. 
 
 6 D'Argentre, on "Bret.," Art. 213. Cf. Fasquier, "Inst.," p. 599. 
 
 ^ The liens which accompanied recourse of the "fidejussor" against the 
 principal debtor disappeared from the Gustoms (cf., however, "Bret.," 204) 
 at the same time as certain unfavorable rules which were, so to speak, its 
 counterjjart: no recourse if he denies his obligation and it is proved against 
 him: J. d'Ibelin, 117, 126; "G. des Bourg.," 69 (lo.ss of the right to reply in 
 Court); "Toulouse," 75; Beaumanoir, 43, 6, 39; "Jostice," 18, 7, 3. 
 
 ' "Coimter certificate of warranty" drawn up by the notary. , 
 
 ^ Italian statutes after the fourteenth century: Fertile, IV, 50S; "Toulouse," 
 81. By his own act the creditor loses the securities of payment which he had 
 at the time of the giving of surety; the surety is discharged: F. de la Janbs, 
 II, 342. — Novation: Beaumanoir, 43, 11, 12 (respite); "Ass. de J(5r.," "G. des 
 B.," 71, 73, 79; "Gonst. duGhiit.," § 79 (granting of aterm). — Gase in which 
 the surety can demand his release by the debtor: " Vergit ad inopiam." Stat- 
 ute of Trieste, 1550; at the end of a year, Ravenna, 1471; of ten years, Brescia, 
 1313; Fasquier, "Inst.," p. 595; "Siete Part.," V, 12. 
 
 5S1
 
 §417] 
 
 OBLIGATIONS 
 
 [Chap. Ill 
 
 Topic 8. Execution upon Possessions, and Real 
 Securities 
 
 § 417. Movables are the Seat of Debts. 
 
 § 418. Pledging of Movables based 
 upon an Agreement. — (A) 
 Early Conception. 
 
 § 419. The Same.— (B) Tfie Pledge 
 passes to the Condition of an 
 Accessory Security. 
 
 § 420. Private Distraint ("Pigner- 
 atio") upon Movables. 
 
 § 421. Pledge loy Legal Process. — (A) 
 Barbarian Laws. 
 
 §422. The Same.— (B) Customary 
 Law. 
 
 § 423. Execution upon Immovables. 
 Origin of Distraint upon 
 Immovables. 
 
 § 424. Land Distraint and Its Pro- 
 cedure. 
 
 § 425. The Same. — (A ) Documentary' 
 Right. 
 
 § 426. The Same. — (B) The Distraint 
 Proper. 
 
 §427. The Same. — (C) Public An- 
 nouncements and Award-. 
 
 § 428. The Same. — (D) Preferences. 
 
 I 429. The Same: Later Law. 
 
 § 4.30. Forms of Realty-Mortgage. 
 
 § 431. The Same: (I) Sale with Re- 
 demption. 
 
 (II) Land-Gage. 
 
 (III) "Bond." 
 
 - (A) The General 
 
 - (B) The Special 
 
 §432. The Same: 
 
 § 433. The Same: 
 
 § 434. The Same. - 
 Bond. 
 
 § 435. The Same. 
 Bond. 
 
 § 436. The Same.— (C) Comparison of 
 the General Bond and the 
 Special Bond. 
 
 § 437. The Same: Hypothec-Mort- 
 gage. (1) Countries of Pub- 
 lic Nam. 
 
 § 438. The Same: (2) The so-called 
 "Customary Common Law." 
 Mortgage is Creatable only 
 by Notarial Deed. 
 
 § 439. The Same: Every Notarial 
 Deed Implies a General 
 Mortgage. 
 
 § 440. The Same: Judgment Lien 
 ("Judicial Hypothec"). Ev- 
 ery Judgment Implies a 
 General Mortgage-Lien. 
 
 § 441. Implied Liens (Hjq^othecs) . 
 
 § 442. Consequences of the Mort- 
 gage. 
 
 § 443. "Clearance." 
 
 § 444. Revolutionary Law. 
 
 § 417. Movables are the Seat of Debts. — In the old times it 
 was the person of the debtor that answered for his debts. As a 
 consequence, movables, which are a part of his person ("ossibus 
 inhserent") were made liable also. The debtor gave his mov- 
 ables as a pledge to the creditor, or else the latter distrained 
 upon them, if payment were not made.^ Immovables escaped 
 creditors because they belonged to the family or to the tribe rather 
 *than to the individual: "He who has only immovables is insol- 
 vent."^ The feudal system strengthened this rule; in fact, the 
 vassal and the copyholder were not permitted in incurring debts 
 
 * Loysel, 326; Esmein, p. 168. Difficulties in admitting of distraint upon im- 
 movables, and even when it was admitted, the subsidiary character which it 
 always had : Benumanoir, 54. " L. Sal.," 50 : the creditor can only distrain upon 
 movables; 58: the insolvent debtor has given the creditor his "facultas"; that 
 is to say, his movables. Cf. Geffcken, pp. ISO, 218. English law: c/. Esmein, 164. 
 
 ^ A German a.\iom. 
 
 582
 
 Topic S] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 418 
 
 to involve the property right of the lord; it was also said that 
 "Fiefs are not liable for any debt." This was in accord with the 
 persistent tendency in the direction of the conserving of real 
 property in families.^ But we have already seen how these old 
 ideas which w^ere so contrary to the rules of the Roman law dis- 
 appeared or became w^eakened. The consequence was that it be- 
 came possible to distrain upon immovables, and that the entire 
 inheritance, and not only a certain category of possessions, were 
 liable for debts. Even although the principle of the very ancient 
 law was completely abandoned from the fourteenth century in 
 France, the heedlessness of the legislators has preserved traces of 
 it, even in the Civil Code.^ In England it has lasted almost to 
 our own day.^ 
 
 § 418. Pledging of Movables based upon an Agreement. — (A) 
 Early Conception. ''Without possession there is no pledge," one 
 can say, because the old law only recognized that which the Ger- 
 mans call the "Faustpfand," "* pledge of the hand, pledge given 
 
 1 Consequences of the rule: 1st. Only movables can be distrained upon in 
 the very old law; in the later law immovables can only be distrained upon if 
 there are no movables or if the latter are not sufficient to pay off the creditors. 
 — 2d. In a succession only the heir of the movables has to pay the debts; the 
 heir of the immovables, or, at least, of the personal belongings, receives them 
 without contributing to the payment of the debts; the charge of the debts 
 also falls, if there are no movables, upon the immovable acquests which belong 
 to the heir of the movables: Beaumanoir, 12, 6. CJ. P. de Fontaines, p. 1.38. 
 Guy Coquille, on "Niv.," 35, 4: "Tliis article was passed at the time when the 
 general opinion of the courts of the Customary countries of France was that the 
 heir of the movables ought to pay the debts upon the movables of the deceased; 
 since then, and with every reason, the other opinion has been accepted; that 
 is to say, that debts should be paid by all kinds of heirs." According to this 
 formula, the movable liabilities would have followed the movable assets and the 
 immovable liabilities the immovable assets. But this is only one of the first 
 steps towards the final giving up of the old principle. — 3d. The debts of each 
 spouse fall into the conjugal community affecting movables; in the system with- 
 out community the debts of the wife are charged upon the husband, because he 
 takes the movables; the wife of a noble renounces the movables in order not 
 to have any debts to pay. — 4th. Same charge for the guardian. — 5th. The 
 testamentary executor has the seisin of the movables, and at the same time 
 the obligation of paying the debts. 
 
 2 Article 1409. 
 
 3 Lehr, "Dr. Anglais," p. 157. 
 
 * Terminology (the same thing in general for pledge-giving of movables or 
 immovables), "gage," "wage," "vadium," "guadium," "gaigium," "vadi- 
 monium": Thevenin, "Textes," Table; Ragueau, see "Desgagement," "Contre- 
 gage." To pledge a fine; that is to say, to furnish a pledge to guarantee its 
 payment; to pledge the law, to pledge one's movables. Pledges in the 
 eense of salary: Giraud, "Essai s. I'llist. du Dr. Fr.," II, 28; "Bourg.," 125; 
 Bourdot de Rich., Ill, 234. CJ. the German, " Wette," " Gewette." — " Nans," 
 "namps," "namium," c/. the German "nahme," "nehmen" (to take). Pledge- 
 giving ("nantissement"), means putting in pledge. — "Phand" (German), 
 "pant" ("L. Fris. Add.," 8, 2), "Pfand." "Contrepan," Giraud, II, 41(5; see 
 Ragueau; " Hainaut," 95 : rents compensated out of an inheritance. — " Pignus," 
 
 583
 
 § 418] OBLIGATIONS . [Chap. Ill 
 
 from hand to hand.^ We have already seen what part the pledge 
 played in the formation of obligations which were established by 
 agreements. By being given a pledge, the creditor received abso- 
 lute satisfaction; ^ thenceforth there was nothing more for him to 
 claim from the debtor; he had been paid in advance.^ The debtor 
 simply had the power to demand the restitution of the pledge by 
 giving what he had promised.^ The pledgee creditor thus ac- 
 quired the ownership and the seisin of the pledge; he could hold 
 it as against everybody, recover it if it were taken away from 
 him, — at least in the case of theft or loss,^ He had the right to 
 make use of it and to turn it to account ^ on his own responsi- 
 bility; for, if when the debt came due and the debtor asked the 
 restitution of the pledge, the creditor found it impossible to carry 
 out this restitution, his liability was enforced; he answered for 
 the entire loss or for deterioration, without any distinction being 
 drawn between cases of accident and cases where it was his fault 
 or where fraud was present.*^ 
 
 "penh," "pignorare." — "Abotum," "about," "contrabout." — "Assignare," 
 "assignat" (assignment), "assenement," "assiette" ("assignare pecuniam 
 supera terram"). — "Obligare," obligation, "impedire," to encumber, "era- 
 bargar" ("Beam"), "thiansser" (id.), "poderium," "poderagium" ("Cou- 
 tume de Toulouse"). — See Du Cange, Ragueau; Brunner, II, 445; Franken, 
 op. cit. — "Fiducia" among the Lombards for the pledge given by agree- 
 ment: Fertile, IV, 515. — "Toulouse," 131: "Ponere bannum in bonis." 
 
 1 Boutaric, I, 64, 102. 
 
 2 "Liut.," 108, however, allows the creditor to claim the payment of that 
 which is due him when he acquires the ownership of the pledge. 
 
 ^ Dareste, p. 57 (revocable contracts). On the question of the formation of 
 obligations by agreements and on the point of knowing whether the responsi- 
 bility can exist independently of a debt, cf. also Horten, "Personal execution," 
 1894, and Von Schwind, "Wesen u. Inhalt des Pfandrechts," 1899 (account 
 given by Pappenheim, in "K. V. J.," XLII, 513); "Ord." of 1206, 7. 
 
 * Cf. fiduciary alienation at Rome; "Cout. du Valais," 104. 
 
 ^ Cf. binding of immovables. Movables are more liable to perish or to de- 
 teriorate than immovables. They will be better preserved if they are not made 
 use of, whereas the creditor who has received an immovable as a pledge cannot 
 help making some use of it; for example, in order to cultivate it. If the pledgee 
 delivers the movable to a third party the latter becomes the owner "erga 
 omnes"; it makes very little difference whether the act took place with the 
 consent of the pledgor or in spite of him; in the matter of immovables, 
 putting a third party in possession is not sufficient to deprive the owner of 
 the right of reclaiming. As to this right of reclaiming in the matter of movables, 
 cf. herein loc. cit. and in the existing law, " Saisie-Revendication " : Glasson, 
 "Proced.," II, 4.36. 
 
 * With regard to pledges that eat ("essende Pfander"), it was natural to 
 allow the pledgee to make use of them because he had to bear the expenses of 
 keeping them. As to their accidental injury, cf. Heusler, II, 204; Huber, IV, 
 822, n. 21. Cf. "Wis.," 5, 6, 4. 
 
 ^ If the pledge perished through some mischance the debtor did not claim 
 its restitution and the creditor suffered the loss, — a rule which has been pre- 
 served even to our time in Schwvz: Huber, 817 (example in the fifteenth cen- 
 tury), 822, n. 21. — "L. Lang. Car.," 108; J. d'Ibelin, 56; "Sachsensp.," 3, 
 
 584
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 419 
 
 § 419. The Same. — (B) Tlie Pledge passes to the Condition of 
 an Accessory Security. For a long time after the idea of the obli- 
 gation formed by consent came into existence a pledge was still 
 demanded from the debtor, but the giving of the latter did not 
 have the effect of freeing the debtor; he did not cease to be held 
 personally liable.^ Also, the creditor had only two essential rights, 
 
 — that of holding the pledge so long as he was not paid, and that 
 of having it sold if he was not paid, to realize the amount which 
 was due him out of the price of the sale.^ He was not allowed 
 to make any use of the pledge. His responsibility was limited, 
 and in case of total loss by accident of the object which was 
 pledged the creditor could still demand of the debtor the per- 
 formance of his promise. Thus a return was made to the 
 Roman rules. The forfeiture clause was forbidden, as it had 
 been by a law of Constantine.^ The Ordinances introduced a few 
 rules relating to form,^ but the actual giving of the possession of 
 the object which was pledged was always required, owing to the 
 reasons which have already been pointed out.^ The rule thus 
 being that the pledgee could keep the object with which he had 
 been provided until he had been paid, he was recognized as having 
 a lien upon the price of this object if he gave up its possession only 
 in order to have it sold.^ Sometimes even the existence of an 
 implied pledge is admitted, and, consequently, of a preference for 
 
 5, 4. — The responsibility of the pledgee existed in another sense: he was 
 responsible for the damage caused by the object given as a pledge. C/., how- 
 ever, "L. Alam.," 86, 2; "Fris. add.," 8, 1; Heusler, II, 203. Distinction be- 
 tween the pledge given by agreement and the pledge taken by distraint. 
 
 — "Sachsensp.," 3, 5, 4 and 5; Boutaric, I, 26; "A. C, Anjou," II, 412. 
 
 1 Agreements by which the debtor promises to pay even if the pledge is 
 not restored to him because it has perished through some accident. E.xample 
 in Heusler. 
 
 2 The Germans contrasted the "Verkaufspfand," pledge with the right of 
 selling it, with the " Verfallspfand," pledge which becomes the property of the 
 creditor if he is not paid when the debt matures: "Liut.," 108, 109; "Aripr. 
 et iUb.," 2, 21; Beaumanoir, 68, 10; "Montpellier," 49; "Jostice," p. 313. 
 
 ' Contrary to the tendencies of the old law: Civil Code, 2078; Fertile, IV, 
 541; Pothier, "Nantiss.," no. 19; "C. J.," 8, 35, 3. 
 
 * Ordinance of 1673, 6, 8, 9: drawing up of a notarial deed naming the sum 
 lent and the pledges delivered in order to avoid frauds and to fix the date of 
 the pledge-giving in case of a failure. (7/. Jousse on this text (the notarial act 
 is useless "inter partes") : Civil Code, 2074; "Co.," 446. — As to the pledge of 
 claims, cf. Order of the Court of Aides of March 18, 1769 (transfer under the 
 name of pledge-giving): Tambour, II, 162, 394; Pothier, "Hyjioth.," no. 211. 
 
 * Putting in pledge of the movables of another; the pledgee creditor is pre- 
 ferred to the owner, excepting in case of lo.ss or theft: Iluher, 822. 
 
 * The "Ord." of 1667 compelled the pledgee to have the sale carried out by 
 means of a bailiff, just as in the case of movables that had been distrained ui)()n; 
 but these formalities could be dispensed with in the contract of pledge-giving: 
 Pothier, "Nantissement," no. 19 et seq.; "Hypoth.," no. 216. 
 
 585
 
 § 419] OBLIGATIONS [Chap. Ill 
 
 the benefit of certain of the creditors.^ But the mortgaging of 
 movables retained by the debtor was never accepted in the French 
 law:^ "Movables cannot be followed by way of a hypothec" 
 (Loysel, 487). 
 
 §420. Private Distraint ("Pigneratio") ^ upon Movables.^ — 
 This means of taking justice into one's own hands is naturally 
 applied to obligations arising "ex delicto," in the case of which 
 the giving of a pledge by means of an agreement cannot be 
 conceived of.^ It was also allowable to practise this form of dis- 
 traint for obligations which arose from the formal contract or 
 " wadiatio," either as against the surety or as against the debtor.^ 
 Sometimes the "pigneratio" even affected the relatives, or it was 
 carried out under the form of reprisals against the neighbors, or 
 inhabitants of the same locality, or the citizens of the same town/ 
 Originally, the creditor was authorized to take possession of the 
 movables of the debtor without the permission of the judge,^ 
 whatever their value might be.^ But the older documents show 
 that distraint is subject to certain forms, such as a triple pre- 
 
 1 Cf. existing law: Valette, "Privil. et Hyp.," 1846; Planiol, "Dr. Civ.," II, 
 763. 
 
 2 In Switzerland a sort of mortgage on movables; for example, at Zurich in 
 the fourteenth century, by making a declaration before the municipal council 
 without any putting in possession. Cf. Stobbe, II, 686 (example of the giving 
 of a pledge without any physical handing over, especially at Liibeck, at a fairly 
 recent period). 
 
 3 Cf. "pignorLs capio" of the Roman law. Besides the word "pignoratio," 
 "pigneratio," they also say "captio," "districtio" (distress in English law), 
 etc. : see Du Cange. The " Ord." of 1260 (I, 293) prohibits abandonment, " qui- 
 dam captio," at Compiegne. Cf. the expression: "To take one's pledge by 
 abandonment": P. de Fontaines, 15, 29, p. 129; Beaumanoir, 43, 13. — To the 
 French "saisie (distraint) corresponds the German "Pfandung": Collinet, 
 p. 94; "Toulouse," 108, 137. 
 
 ^ Barbarian laws: "Burg.," 19; "Bai.," 12; "Roth.," 249 et seq.; "Liut.," 
 108 et seq.; "Wis.," 5, 6. Irish law, D'Arbois de Jubainville, op. cit. 
 
 B "Sachsensp.,'; 2, 27, 4; 2, 28, 2; "Schwabensp.," 231 (280). 
 
 8 WTiich is readily understood if the " wadium " began by being a real pledge; 
 the creditor who is satisfied with a nominal pledge has a right to distrain 
 upon a real pledge if he is not paid when the debt matures: "Roth.," 235; 
 "Liut.," 15. The jurisconsults of Pavia were unsettled as to whether "pig- 
 neratio" was applied outside of the "wadiatio": "Glos. Roth.," 235; "Expos. 
 Liut.," 8, 6; 107; "Burg.," 19, 5 (giving of surety). Heusler, II, 241 : distraint 
 by an individual arose from the executory character of the "wadiatio"; Fertile, 
 IV, 530 (texts). 
 
 7 "Roth.," 247; "Capitul.," II, 142 (c. 12); Schmid, "Ges. d. Angels.," 
 p. 642; Brunner, II, 448. Right of marque or reprisals: "B. Ch.," II, 529; IV, 
 2M,^12; Fasquier, "Inst.," 176. See "Suretyship," "Hostage." Reprisals 
 persisted in the "jus gentium" just because of the difficulty in having obliga- 
 tions carried out. 
 
 8 Lombards ("Reg. Farfa.," 2, 44, 45), Sweden {Amira, "0. R.," I, 234), 
 Saxony. 
 
 ^ "Liut.," 108 (three times the amount of the debt). 
 
 586
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 420 
 
 liminary summons, the presence of witnesses, and perhaps the 
 pronouncing of certain customary formulae.^ If the customary 
 formahties are lacking, the distraint is irregular; it obliges the 
 payment of a composition by the creditor, without taking into ac- 
 count the right which was given to the debtor of offering resist- 
 ance.^ After the Frankish period it is only authorized if carried 
 out with the permission of the judge, according to the majority of 
 the laws, a measure which lessens the abuses to which it gave rise.^ 
 The pledge which had been distrained was treated, as a 
 general rule, in the same way as a pledge given by agreement.'' 
 Also, we believe that during the primitive period the creditor 
 acquired at one and the same time both the possession and the 
 ownership of the object distrained upon, saving the power of the 
 debtor to redeem his goods. This appropriation is quite natural 
 under an economic system where the payment of debts is read- 
 ily accepted in movable objects. But the barbarian laws post- 
 poned it until the expiration of a fixed period in which to release 
 the object which had been distrained; until this time the creditor 
 has only the right of retaining, or, at the most, the right of 
 enjoyment.^ The feudal Customs give him the right to sell, 
 sometimes allowing him to carry out the sale himself; but 
 more often the sale is carried out under the public authorities.^ 
 After the barbarian period the abuses of methods of violence, 
 
 1 "Sal.," 50, 2; 74; "Burg.," 19, 5; 107, 7; "Roth.," 249 et seq.; "Cnut," 
 II, 19. Cf. Bruriner, II, 447; Collinet, p. 113. 
 
 2 "Burg.," "Bai.," loc. ciL; "Sal.," 75; "Roth.," 246; "Liut.," 41; "Ina," 
 9. — "Rescousse" in the feudal period: Esmein, p. 122; Collinet, p. 125. 
 
 3 "Sal.," 50, 2; "Burg.," 19; 96; 107, 7; "Bai.," 13. 1, 3; c/. "Wis.," 5, 
 
 6, 1; Brunner, II, 447 (other laws); Cap. of 787, c. 14 (I, 200): prohibition 
 "tollere" or "invadere" the property of another "sine judicium"; cf. I, 192, 
 c. 6; 330, c. 5; "Ina," 9; "Cnut," 2, 19; "L. Henrici I," 51, 3; "Const, pads" 
 of Frederick II, 1235, c. 10; Fertile, IV, 531. Cf. in the Anglo-Norman sources 
 "liberatio namnorum, vetitum namii": necessity of restoring the pledges upon 
 receiving surety ("replegiare," replevin) : Bracton, 157 et seq.; "Summa Norm.," 
 
 7. Provisional possession with pledges: Peronne, 18. As to provisional pos- 
 session see Beaumanoir, c. 53. Irish law, solvency of the person making the 
 distraint. 
 
 '' Cf., however, the responsibility of the pledgee: "Fris. add.," 9, 2. 
 
 5 "Verfallspfand." On the responsibility of the pledgee: "Roth.," 252. 
 According to " Liut.," Inc. cit., the creditor can retain the pr()i)crty twelve days, 
 can have the enjoyment of it twenty or sixty days, and then the ownership: 
 Fr. Gaudenzi, 12; Exp. on " Roth.," 247. — Reaction against the forfeiture clause: 
 "Wis.;" 5, 6, 3; "Capit.," VII, 299, 313; Dig. X, 3, 21, 7. — In the French 
 Customs sale of the pledge and payment of the creditor out of the price: 
 Esmein, p. 118 et seq.; Collinet, p. 124. English law: appraisement and con- 
 ferring of the property upon the creditor: Glasson, "Inst. Angl.," Ill, 328. — 
 Cf. Irish law. 
 
 « "Verkauf.spfand": /. d'Ibelin, 122; Ph. de Navarre, 78; "C. des Bourg.," 
 71, 76; Beaumanoir, 43, 16; Fertile, IV, 543; "A. C, Picardie," p. 41. 
 
 587
 
 § 420] OBLIGATIONS [Chap. Ill 
 
 such as the "pigneratio," resulted in its being forbidden/ but 
 customs are stronger than laws; it persisted and survived the 
 proscription and was revived to a certain extent in feudal times 
 under the rule of the "Faustrecht," ^ and did not completely dis- 
 appear until the monarchic period, as an accompaniment of the 
 progress of public power.^ At any rate, before having arrived at 
 this solution, the old institution had been altered and corrected on 
 many points, and it had become an exception or a privilege, the 
 maintaining of which was justified because of the status of the 
 creditor (king, nobles),^ that of the debtor (alien) or, finally, owing 
 to the nature of the debt (suretyship).^ We may note the prin- 
 cipal changes to which it has been subjected, — prohibition of 
 seizing as a pledge "alium pro alio," ^ of distraint on certain ob- 
 jects, such as those which are indispensable to the living of the 
 debtor (clothing), and horses and cattle,^ of distraining in certain 
 localities,^ and the tendency to prevent the creditor's acquiring 
 
 1 "Wis.," 5, 6, 1; "Ed. Theod.," 123; "Capit. Sax.," 25; 787, c. 14 (I, 200); 
 c/. ibid., 782, 6 and 825, 5 (I, 192, 330). There are even many who tliink that 
 the SaUc Law no longer admitted of distraint bj' an individual: Fertile, IV, 531. 
 
 2 Collinet, op. cit.; Brunner, II, 241. — J. d'lbelin, 118-122; "C. des Bourg.," 
 71-83; "Summa Norm.," 59, 60, 89; " Jo.stice," pp. 174, 274, 313; Beaumanoir, 
 30, 81; "Olim," Table, see "Captio Bonorum," etc.; "Bergerac" (in 1337), 29; 
 "Siete Part.," 5, 13, 11. 
 
 3 Loysel, 890: "Acts of violence are forbidden"; P. de Fontaines, XV, 29: 
 privilege of nobles; J. Le Coq, "Q.," 223: "A nobleman himself cannot distrain 
 where he has not jurisdiction"; Viollet, "Et. de St. Louis," I, 97, 329. The 
 Books of Customs ("Artois," 30, 10; "Et. de St. Louis," I, 138) and muni- 
 cipal charters ("Soissons," 1; "Amiens," 4; "Verviens," 24, etc.; Collinet, 
 p. 102) often forbade it. — Suspension of the carrying out of the distraint for 
 a certain time: Collinet, p. 128. 
 
 * Cf. Writs of Arrest formerly granted by the farmers and collectors of 
 the king's taxes (see Ferriere), and still to-day by financial administrations 
 (Revolutionary laws): Haurion, "Dr. Administr.," 3d ed., see Table. 
 
 * Distraint upon the pledge: "Ord.," I, 9. On Beaumanoir, 43, 15, cf. 
 Viollet, "Et. deSt. Louis," I, 329, 187; "Jostice," 303, 313; "Et. deSt. Louis," 
 
 I, 122; "Gr. Cout. Norm.," 60; Boutanc, 1, 101; "Ass. de Jerus.," "C. des 
 Bourg.," 83; Esmein, p. 109 et seq.; Collinet, p. 153. Cf. as to this, "Surety- 
 ship." The " contre-brevet " of warranty allows the surety to dispense with 
 using the individual distraint. In Switzerland individual distraint is only possi- 
 ble in the case of a "redliche," "kuntliche schuld" (a debt acknowledged at 
 law); Heusler, II, 208; Huber, IV, 826. — "T. A. C, Bret.," 329; "Avignon," 
 23, 42. 
 
 6 "Roth.," 247; "Burg.," 19, 3; "Pactus Alam.." 3, 7; Cassiod., "Var.," IV, 
 10. — "Sois-sons," 11; Collinet, p. 107; A. Thierry, "Mon. de I'Hist. du Tiers 
 Etat," IV, 40. A subject is also arrested for the debt of his lord: Tambour, 
 
 II, 48; "Troyes" (in 1230), Art. 23; "Fors de Bigorre," 9. 
 
 ^ "Cod. Th6od.," 2, 30, 1 (cattle, farm slaves: interests of agriculture and 
 the treasurer); "Burg, add.," 1, 18; "Pactus Alam.," 5, 4; "L. Alam.," 67, 1; 
 "Bai.," 13, 4, 5; "Roth.," 250 et seq.; "Capit.," I, 320; II, 134. — Customs of 
 the South; for example, "Avignon," 41. — Beaumanoir, 54, 7. — "Ord." of 
 1319, 19; Tambour, II, 125; Fertile, IV. 538. 
 
 8 Collinet, p. 118. 
 
 588
 
 Topic 8] EXECUTION UPOX POSSESSIONS, REAL SECURITIES [§ 420 
 
 ownership of the pledge without any other form of proceed- 
 ing.^ This institution often passes to the status of the privilege 
 which has been agreed upon and stipulated for by the creditor,^ 
 but it is allowed without any agreement against strangers and 
 aliens (towns where attachment was allowed).^ Where it per- 
 sisted longest, outside of the case of distraint against aliens, was 
 in the three following applications, which are especially remark- 
 able because they do not assume a contract or judgment: ^ 1st. 
 Distraint-pledge levied by the lessor of a copyhold, or the lessor 
 for a rent-charge, on the movables of the copyholder or lessee 
 for non-payment of the rent.^ 2d. Right of the innkeeper to dis- 
 train upon the movables of the traveler who does not pay his 
 
 1 B. de Richeb., IV, 1067; II, 1009. 
 
 2 A clause which is already frequent in Lombard deeds (Pertile, IV, 531; 
 "Liut.," 109) and which is made use of until the eighteenth century in Switzer- 
 land and in Germany. — Huber, IV, 825. How are we to reconcile the exist- 
 ence of these clauses with the prohibition against individual distraint? 
 Heusler, II, 208. 
 
 ^ The Privilege of Arrest given to the inhabitants of Paris first of all over 
 their fellow townsmen themselves, and later only over their alien debtors: 
 "Louis le Gros," 1134 ("Ord.," I, 6; "Confirm.," II, 437; IX, 464); "Paris, 
 A. C.," 192; "N. C," 173; Desmares, 233; "Gout. Not.," 49; "Gr. Gout.," 219; 
 Collinet, pp. 100, 135, 141; Ferriere, Mer^w, see "Ville d' Arret"; "Avignon," 
 42, 44; "Montpellier,'; 32; "Aries," 165; "Martel," 18, 19. As to the distraint 
 on ahens in the existing law: Gode Civ. Proc, 822; Glasson, "Proced.," II, 
 433; Heusler, II, 208; Tambour, II, 51. — Huvelin, "These" ("Execution des 
 Contrats en Foire"). — In the fourteenth Century the distraint had to be car- 
 ried out by the sergeant, and the privilege of the citizens was reduced to 
 being able to have this distraint carried out without any written author- 
 ity: "Ord." of 1351; "Const. Ghat.," 9. — Abolition, Law of Sept. 7, 1790, 
 art. 13. 
 
 * "Gout, de Paris," tit. 8. 
 
 5 The lessor of a house had originally the right to distrain upon the mov- 
 ables which happened to be in the house let, to take them away and sell them 
 for his own benefit: "Olim," III, p. 916, no. 77; p. 998, no. 60; p. 1007, no. 65 
 (in 1314—15); Beatimanoir, 34, 16; 38; 9 (but at the same time he states that 
 the custom was "to take off the door of the house," that is to say, to render it 
 untenantable, in order to compel tlie lessee to pay what he owed or else to go 
 away, 30, 39); Boutaric, I, 102; "Jostice," 9, 4," 1; 9, 9, 1; P. de Fontaines, 
 p. 119; "Gout, des Bourg.," 90. — Afterwards the right of the lessor became 
 weaker under the name of execution by way of security ("saisie-gagerie"); he 
 only had a privileged distraint over movables without being able to take them 
 away and also being compelled to have them sold by the authority of the law. 
 Movables which had been taken out of the house could not be reclaimed; but 
 the "N. G. de Paris," 171, allows of their being reclaimed under certain con- 
 ditions (Order of i:367; Lucius, "Placit.," 10, 3, 1); "Gout. Not.," 3, 31, 39; 
 "Gr. Gout.," 2, 15, 37; 3, 01 (pp. 126, 217 el seq., 248, 429, etc.); " Roisin," p. 71; 
 Loysel, 476, 890; Buche, " N. R. H.," 1884, 76; Collinet, p. 166. The person who 
 takes them is obliged to leave the house sufficiently furnished. In Paris execu- 
 tion by way of securitv is only granted to the amount of three-fourths of the 
 debt. Cf. Glasson, "Proc6d. Civ.," II, 4:27. — Uuber, IV, 824; Pertile, IV. 
 533, 538; Pollock and Maitland, II, 573. — Several of the Customs also allowed 
 the lessor of a farm to distrain upon the products: "Paris," 161 ei seq. — Also, 
 "Const. Chat.," 62, 63; "L. d. Droiz," 913; Tambour, II, 365. 
 
 589
 
 § 420] OBLIGATIONS [Topic III 
 
 charges.^ 3d. Distraint on the domestic animal damage-feasant; 
 
 formerly they even had the right to kill it, or to appropriate 
 it; the later law allows the one who has suffered the dam- 
 age to distrain only; and moreover, certain animals are not sub- 
 ject to this distraint. The one distraining must take the animals 
 distrained before the judge within twenty-four hours; they are 
 sold if necessary, and the price obtained for them is used to make 
 good the damage.^ Sometimes the distraint is only carried out 
 upon the hat of the shepherd.^ 
 
 § 421. Pledge by Legal Process. — (A) Barbarian Laws.^ Dis- 
 training at law ^ is only a rounding out of private distraint; ^ the 
 intervention of the authorities avoids quarrels between individuals 
 and prevents the creditor from abusing his rights, the debtor from 
 offering opposition to the seizure. Already the barbarian laws 
 had regulated it; thus the Salic Law, 50, 3,^ lays it down that the 
 
 1 Retention and lien in the latest stage of the law, whereas formerly he 
 sold the pledges distrained upon and paid himself back: "Paris," 175; cf. 
 Desmares, 176, 191, 368. "Cout. Not.," 50; Collinet, p. 175. See also: "Jos- 
 tice," 9, 9, 1; Art. 54; "Navarre," 3, 13; Huber, IV, 827. 
 
 - In the very old law vengeance is taken on the animals in the same way as 
 upon persons: from this arose the right to kill them (formerly, "Sal.," 9, 1; 
 "Wis.," 8, 3, 15; even at the present time, "Ina," 42; "Roth.," 350 et seq.; 
 "Liut.," 151; "Burg.," 23, 89; "add.," 1, 2; "Bai.," 14, 7; in case of a recur- 
 rence, Norway). Of this there remained the permission for the owner of the 
 land to kill hens and geese or poultry generally: Grimm, "R. A.," 595; Guy 
 Coquille, on'"Niv.," 15, 4; Chaisemartin, 225. But it was forbidden to kill 
 cattle and horses. In the law of the second period animals taken damage- 
 feasant are confined "in clausuram, in parcum" (German "schutten": cf. to 
 impound) ; they are fed and kept there until their owner has paid the damage, 
 and he is given notice by making known the distraint to the neighbors or to 
 himself, if he is known. In case he does not come forward the animal belongs 
 to the person who made the distraint: "Sal.," 9; "Rib.," 85; "Bai.," 14, 17; 
 "Burg.," 23, 49; "Wis.," 8, 3, 13; "Roth.," 343 et seq.; "Liut.," 86. — Many 
 of the Customs admit that "the stallion as well as the bull is free," because of 
 their usefulness as animals capable of reproducing their kind; the owner upon 
 whose land they trespass only has a right to drive them off: Chaisemartin, 
 p. 228; "Fors de Bigorre," 11. — In the latest state of the law "he who finds 
 animals doing damage cannot keep them; he must hand them over to the law 
 within twenty-four hours"; they are sold at judicial sale, just as an ordinary 
 pledge, and the price obtained serves to make good the damage: Huber, IV, 
 828. 
 
 ' Ragueau, see "Desgagement." 
 
 ^ Cf. especially Brunner, II, 452 (bibl.). 
 
 6 "Strudislegitima," "Rib.," 32; Edict of Chilperic, 8 ("extrudere ") applied 
 in the case of "fides facta" and of refusal to carry out a judgment, at least 
 at the end of the sixteenth century: "Sal.," 106 (Hessels); Edict of Chilperic, 
 7. Cf. administrative distraint for the payment of a fine for breaking the king's 
 ban, and for taxes: "Capit.," I, 165, c. 6; Greg. Tours, 5, 26; 10, 7. 
 
 « "Roth.," 251; Fr. Gaudenzi, 12, 13. Cf. " Friedlosigkeit " : among the 
 Scandinavians and the Anglo-Saxons the chief men of the judicial assembly 
 distrained upon the movables of the man who refused to appear before them. 
 
 ^ Onthistextseethebibl.inGefc/vc«, p. 197. — Irish law, "N.R.H.," 1888, 
 
 590
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 422 
 
 creditor, by virtue of the "fides facta," himself goes to the "grafio" 
 of the place where the debtor lives, takes hold of the "festuca" 
 and pronounces a formula which asserts that the debtor who 
 has been regularly summoned has not carried out the promise 
 wliich he made which affected such and such an object, and that 
 therefore his possessions could be seized by the "grafio," for which 
 the creditor would be responsible.^ Upon which, the "grafio" 
 took seven fit and proper " rachimbourgs " ^ with him and went to 
 the house of the debtor, where, after a last summons to pay, he 
 took possession of the goods of the debtor to the extent of the 
 sum which was due ; the estimate was made by the " rachimbourgs ' ' ; 
 the creditor kept two-thirds and the "grafio" took the other third 
 by way of "fredus." If the "grafio" distrained on more than the 
 law allowed, he had to pay the "wergeld" or else lose his life.^ 
 The debtor among the Salian Franks had no right to offer any 
 opposition to the distraint under the pretext that it was irregular; 
 his only resource was to apply to the tribunal of the king. On the 
 other hand, among the Ripuarians he might stop the man dis- 
 training by planting his sword before his door.^ The creditor be- 
 came the owner of the movables which were distrained; otherwise, 
 the law would not have failed to name a certain time of delay for 
 their redeeming; but among the Visigoths and the Lombards he 
 only had the enjoyment of them. 
 
 § 422. The Same. — (B) Customary Law.^ The Customs and 
 the Ordinances regulated distraint at law ^ in such a way that it 
 
 303; Law of Drenthe, 1608; Seerp Gratama, " Rechtsgesch. van Drenthe," 
 1883. 
 
 1 "Tu, grafio, homo ille mihi fidem fecit quem legitime habeo jactivo" 
 (according to Brunner, II, 368, the debtor who did not carry out his promise 
 became " jectivus" by the throwing of the "festuca" on behalf of the creditor; 
 bibl. in Geffcken, p. 198) "aut admallatum in hoc quod lex Sahga continet" 
 (the creditor has designated him in accordance with the Salic Law); "ego super 
 me et furtuna mca pono" (movables only, cf. "Sal.," 45, 46; Geffcken, pp. 175, 
 ISO) "quod securus mitte in furtuna sua manum. Et dicat de qua causa" 
 (thing? transaction?) "aut quantum ei fidem fecerat." Thus as a guarantee 
 of the regularity of the execution he gives his person and his possessions. But 
 it is difficult to classify this act: it is neither putting in pledge nor merely 
 making a formal contract. At any rate, the effect of it was to allow the 
 "grafio" to distrain upon his person and his possessions. 
 
 2 As to the meaning of the word "idoneos" cf. Geffcken, p. 199. 
 ' "Sal.," 51, and with regard to it Geffcken, p. 201. 
 
 ' "Sal.," 51; "Rib.," 32. 
 
 5 Tambour, "Voies d'Ex^cution," II, 119, 226; Collinet, p. 115. 
 
 ^ It is ordinarily termed distraint and execution : see Ferrihre. — Distraint- 
 Writ: Boutaric, I, 102. By means of a writ (garnishment) based on a per- 
 mission granted by the judge or on a protected claim, the creditor prevents his 
 debtor who is himself a creditor to a third part,y from having himself paid by 
 this third party to the detriment of the first creditor's rights. The Code of 
 
 591
 
 § 422] OBLIGATIONS [Chap. Ill 
 
 offered more protection for the creditor and the debtor at one and 
 the same time.^ It took place by virtue of a contractual right.- 
 Following a command to bring suit against the debtor/ a sergeant * 
 (sometimes, even, in the fourteenth century, the bailiff, like the 
 " grafio " of the Salic Law) takes away the movables of the debtor ^ 
 in order to give them to the creditor or intrust them to the cus- 
 tody of a neighbor; ^ if they were objects which could not be 
 moved, the bailiff who was carrying out the distraint (or several 
 of the bailiff's men) acted as a custodian ^ so as to avoid mis- 
 appropriation, without removing the objects which had been 
 distrained. The Ordinances of 10G7, t. 33, made this rule general 
 and applied it to every form of movable.^ Opposition offered by 
 the man against whom the distraint was carried out ^ could only 
 be heard upon condition of his paying a sufficient fee to have 
 justice rendered him; ^° even this did not prevent the distraint; it 
 only had the effect of postponing the seizure and of not allowing 
 
 Procedure has combined these two methods into one called distraint-writ 
 ("saisie-arret"), taking as the basis of its regulation the practice of the 
 " Chatelet " : Ferriere, see " Arret " ; Glasson, " Proced. civ.," II, 187 (exceptions 
 from the time of the old law in the case of pensions, salary, legacies for support, 
 etc.). — Offices, cf. Ferriere, see "Opposition au Sceau." 
 
 ^ Beaumanoir, 51, 6. Cf. sequestration, ibid., 51, 8 et seq., 51, 21. At 
 Metz "estault" or distraint by one of the mayors assisted by an alderman: 
 Prost, "Ord. des Maiours," § 32; Loijsel, 890 et seq.; "Coni. des Ord. de 
 Guenois" and "Conf. des Gout."; Ferriere, on "Paris"; Pothier, "Proced.," 
 437; Fleury, II, 169, 309. 
 
 2 Post, "Distraint of Immovables." 
 
 ^ Fine for the man who does not pay upon demand at maturity : Beaumanoir, 
 30, 49; " Talion," ibid., 50. The fine is avoided by offering sufficient pledges. 
 
 * Dangers, "R. hist.," VI, 304. 
 
 * Movables which are excepted for reasons of general interest or with a 
 humanitarian motive: (a) horses, cattle, carts and agricultural implements; 
 (b) 1 cow, 3 sheep or 2 goats, to help the debtor earn his living; (c) 1 bed and 
 the coat he is wearing. — Beaumanoir, 54, 7; Langlois, "Textes rel. h Pari.," 
 p. 152; "Fragm. d'un Repert. de Jurispr. Paris, au XV® s.," no. 23 (edited by 
 Fagniez). Cf. Givil Gode, 592, 593; Glasson, VIII, 671; "Proced. civ.," II, 
 153; Tambour, II, 2.36. 
 
 « Grenade, 30 ("Ord.," IV, 18); "T. A. G., Bourg.," 212 (Giraud, II, 305); 
 "T. A. G., Bret.," 302; "Ghatillon," 1371, art. 71; "Orleans," 452; "Nivernais," 
 35, 14. 
 
 ' As to these custodians or "nans manjans," cf. Beaumanoir, 54, 9 et seq. 
 
 * "Ord." of 1667, Title 33. The creditors could only have the seals put on; 
 that is to say, a seal bearing the arms of the king, if the debtor was absent, 
 had failed, or was imprisoned for debts. 
 
 " Fine in ca.se resistance was offered: Beaumanoir, 30, 54; 52, 6. If the 
 "saisie" keeps his doors and his chests closed, the "keys of the king" must 
 be made ; that is to say, that the sergeant can and should break open anything 
 which is closed: ibid., 54, 8. As to provisional possession, cf. Beaumanoir, 
 c. 52. As to claims, ibid., c. 55. 
 
 1" P. de Fontaines, "App.," 10, 8. With regard to claims of the king the 
 debtor cannot stop the execution, even by lining the hand of justice. "Ord." 
 7, 93, 371. 
 
 592
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 422 
 
 sale until after judgment had been rendered upon the ground of 
 his objection.^ The pledge distrained was sold ^ after a delay 
 which varied according to the Customs, and which the Ordinances 
 of 1667, 33, 12, fixed uniformly at eight days from the time when 
 notice of the distraint was given to the debtor.^ The sale took 
 place publicly, in the open market, ordinarily, and following 
 announcements or publication.'* The price was distributed at so 
 much in the pound among the creditors; they received a dis- 
 tribution by shares,^ but this was not done excepting in cases 
 of notorious insolvency, because in cases of that sort the cred- 
 itors acted collectively against the insolvent; whereas in the case 
 of an ordinary debtor, practice recognized — at least, from the 
 thirteenth century — the preference of the first one to distrain, a 
 preference which is to be accounted for by the fact of the creditor 
 physically seizing the object which was distrained and the old 
 system of the possession of movables.^ The other preferences 
 
 1 Other incidents: 1st. Demand for a Separation by third parties who say 
 they are oxvTiers, — at least in a case where the reclaiming of the movables was 
 possible: Beaumanoir, 54, 3; "Fors de Beam," 134; "Orleans," 456; "Bour- 
 bon," 128; "Bretagne," 233; Pothier, no. 473. — 2d. Opposition on behalf of 
 other creditors and subrogation in the prosecution. Once the distraint had 
 taken place, the creditors of the person against whom it had operated could 
 not carry it out a second time upon the same object; originally it was handed 
 over to the person making the distraint, which prevented another distraint 
 from being made, and afterwards the rule was kept up with the object of 
 preventing useless expense. Distraint upon distraint is invalid. But the 
 creditors had a right to offer opposition, that is to say, to have themselves 
 joined with the person making the distraint, and to ask to be paid with him; 
 by this means they could be brought in to the sale; the person making the dis- 
 traint could not withdraw it to their detriment; were he negligent, the others 
 had themselves subrogated to him by means of a judgment (to-day, subroga- 
 tion of absolute right following a summons which has not been answered, 
 which is more simple). The " Ord." of 1667 prescribed that the sale should be 
 postponed until a final settlement of the rights of those persons offering oppo- 
 sition should have been made, — a thing which meant delays, increased ex- 
 penses of the custodianship, and diminished the value of the pledge: Tambour, 
 II, 243. 
 
 2 Fleury, "Inst.," II, 189. — On the abandoned system of the acquiring of 
 the pledge by the creditor, cf. still in the sixteenth century Labourt, 14, 1, 2, 
 6; previous to that "Aries," 1162-1202; "Provence" 1366; "Falaise," 20, 
 etc. Conferring of the pledge upon the creditor based upon the appraisement 
 of worthy people. Post, "Distraint upon Immovables"; Pothier, "Nant.," 19. 
 
 ^ Beaumanoir, 30, 51: 40 days (nobles); 7 days (commoners). Immediate 
 sale in some places, excepting that delivery was delayed: "Ord." of 1411; 
 "T. A. C, Bret.," 322. 
 
 * Beaumanoir, 30, 53 (sale by the creditor after having summoned the 
 debtor); "ChS-tillon," 71, etc.; Declaration of Jan. 14, 1689 (silver vessels). 
 — Auctioneers: Law of 27 Vent., year XI, l;Law of July 21, 1790, 6; Sept. 
 17, 1793. 
 
 « Beaumanoir, 34, 51; 54, 6; "Gr. Cout.," p. 233; Boutaric, I, 46; Tambour, 
 II, 154, 248. 
 
 6 Beaumanoir, 34, 52; "Gr. Cout.," 2, 17; ' 'Paris, N. C," 178; Guy Coquille, 
 
 593
 
 § 422] OBLIGATIONS [Chap. Ill 
 
 connected with movables, which were made use of in cases of 
 insolvency as well as in the case of an ordinary action, arose, 
 as they do to-day: 1st, from the idea of an expressed or im- 
 plied pledge of record; 2d, or else from special reasons rank- 
 ing certain claims before others, but never causing them to be 
 preferred to the lien of a record-mortgage (costs at law, funeral 
 expenses, salaries, the treasurer).^ 
 
 § 423. Execution upon Immovables.- Origin of Distraint 
 upon Immovables.^ — Distraint of immovables was unknown in 
 the old law.^ It was introduced into legislation in two ways: 
 1st. The harshness of execution carried out upon the person was 
 such that the debtor did not hesitate at any means of escaping it; 
 he was seen to set aside for his creditors the enjoyment of his land, 
 and even its ownership.^ What he did by means of a private 
 agreement and voluntarily could not fail to be imposed upon him 
 by law. 2d. Procedure upon a default under the Carolingians 
 had as its consequence the "missio in bannum," or confiscation of 
 the possessions of the debtor; ^ some outward sjTnbol, such as a 
 little straw or a glove, served to make the matter public; ^ the 
 debtor had a year and a day in which to obtain its removal upon 
 condition of appearing in court; when the year and a day had 
 elapsed the confiscation became absolute, the possessions became 
 
 "Inst.," 444. — In case of insolvency all the creditors were paid at so much 
 in the pound: "Cout. Not.," 76, 153; "Gr. Gout.," 2, 27; Loysel, 185, 687; 
 Garraud, "Deconfiture," 187. 
 
 1 Loysel, 363, 683, 688, 897; Pothier, "Proced.," 481; Glasson, VI, 606; VII, 
 673; Dareste, "Etudes," p. 90 (privileges). — C/. Planiol, "Dr. Givil.," II, 
 754, 774. 
 
 2 Esmein, p. 156; Brunner, § 112 et seq.; Glasson, III, 390; Amira, "Voll- 
 streckungsverf."; "O. R.," I, 65; II, 89; Schroeder, 287, 396 (bibl.); Fertile, 
 § 242. 
 
 ^ At Rome the same means of execution with regard to all possessions. 
 
 * "Sal.," 50, 58; "Edict of Ghilperic," 7; Marculfe, "App.," 51; "Bai.," 2, 
 1; 7, 4. — Contra: Thonissen, "Org. Jud. de la L. Sal.," 3,2, 4 (the Sahc Law 
 represses attacks on the ownership of land and admits of their confiscation) ; 
 Nani, "Stud.," II, 112 (extrajudicial distraint of immovables among the 
 Lombards). 
 
 6 Roziere. "Form.," 277,374; Murafori," Ant.it.," 11,237; "Ord." of 1234,2'. 
 
 ' As to the placing outside of the law, from whence is derived the "missio 
 in bannum," cf. § 360, supra. The word banishment ("banniment") still sig- 
 nified distraint in Languedoc in the eighteenth century: "Max. du Dr. Fr.," 
 1749, 72. 
 
 ' Gntnm, "R. A.," 195, 941: "Wifa"; Lattes, "Parole e SimboH" (" wifa," 
 standing crops); "Rendic. Inst. Lomb.," 1900. Distraint upon standing crops 
 is a reproduction of the old custom. "Wifatio" practised by the owner to 
 forbid third parties from going upon his land (for example, even today one 
 puts a little straw at the end of a stick stuck into the ground in order to 
 notify the shepherds that they must not bring their flocks to pasture in a cer- 
 tain field) Fertile, loc. cit.: cross; Brunner, II, 459. 
 
 594
 
 Topic S] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 423 
 
 the property of the king; but the treasurer could not keep them 
 without doing an injustice to the creditors who had been de- 
 prived of them; ordinarily, as a special favor, he gave up to them 
 a portion of these possessions.^ At the end of the Prankish period 
 if the distraint upon immovables did not, properly speaking, exist, 
 at the same time they had an indirect proceeding which had simi- 
 lar results: ^ restricted at first to cases of default, in the end it was 
 applied in more and more numerous cases, and feudal practice 
 made it general; confiscation, after having been an essential part, 
 disappeared and left in its place only the distraint for the benefit 
 of creditors alone. In spite of these modifications, the very old 
 Customary law still sprang from the principle that immovables 
 could not be distrained; ^ and for a long time recourse was had to 
 
 ^ Capitulary of 782, 27 (I, 70): a debtor cannot furnish any surety; his 
 possessions will be placed "in bannum" until he can find a "fidejussor." 
 "Cap. miss.," 802 (I, 97), 32, 36 et seq.: "missio in bannum" of those who owe 
 certain compositions; Capitulary of 803, 6 (I, 118). Regulation by Louis the 
 Debonair. Capitulary of 816, 5; 818-19, 11 (I, 268, 283). Cf. "Cap.," II, 
 75, c. 3; 273, 7; 307, 3; "Ed. Pist.," 864, c. 6 ("missio in bannum judicio 
 scabinorum"), etc. Table, see "Bannus." — In 803 the king is consulted as 
 to what shall be done with the goods which had been seized; later on, under 
 Louis the Debonair he no longer proceeds to make a special decision in each 
 case, but it becomes the rule that creditors shall be paid first of all, and after 
 them the treasurer. Moreover, the property acquired by the treasurer only 
 goes to the creditors by virtue of a "prseceptum" of the king: Brunner, II, 74, 
 460. 
 
 ^ For cases where the "missio in bannum" applies, cf. Brunner, § 112. 
 The provisions of the Capitularies are not general, and it is not possible to say, 
 if one adheres to their texts, that the proceeding is a regular means of execu- 
 tion which can be made use of by every creditor. But the tendency to develop 
 its application is manifest; practice had to round out legislation upon this 
 point, — a thing which was all the more easy because the "missio in bannum" 
 was pronounced by the count, whereas the placing outside of the law of which 
 it is a modified form emanated from the king. Cf. Esmein, p. 157. In a pro- 
 cedure based upon a hearing of both parties the carrying out of the judgment 
 was insured by sureties which the debtor had to provide; thus for a long time 
 there was no need to be concerned with these cases. 
 
 ' Proofs. — 1st. Distraint upon immovables does not appear in certain 
 texts of the feudal period, any more than it did in the barbarian laws. Thus 
 at Metz until the middle of the fourteenth century "estault," which is the only 
 procedure of execution recognized by the "Ord. des Maiours," only affects 
 movables: "N.R.H.," 11,313; "F. de B(^arn,"p.225. — 2d. Pledging of the im- 
 movables and distraint upon the income, especially in the case of fiefs: Beau- 
 manoir, 17, 7; 35, 2; ".Jostioe," 12, 6, 38; "Ord." of 1218, 1234, 1314. "La 
 Salle de Lille": sale of the right of user for a hundred years: Boutaric, I, 25. — 
 3d. Sometimes the consent of the debtor is still required for the sale of immov- 
 ables. Privilege of the Duke of Burgundv at Rouvre in 1259 ("Ord.," IV, 
 389); "Hainaut," 74; "T. A. C, Bret.," 301; "Toulouse," 77; Boutaric, I, 69; 
 J. d'Ibelin, 185 et seq.; Beaumanoir, 35, 2: the sovereign orders the debtor to 
 sell his immovables within forty days, and it is only if he refuses to do so that 
 the sovereign must proceerl with the sale or leases the property to the creditor, 
 having had it appraised by worthy people: P. de Fontaines, 21, 9; "Jostice, 
 3, 6, 2; Boutaric, I, 25. — 4th. Subsidiary character of distraint upon immova- 
 bles; until the Edict of 1539, 74, preliminary seizure and sale of movables was 
 
 595
 
 § 423] OBLIGATIONS [Chap. Ill 
 
 means which assumed this principle as being in force, — appro- 
 priation of revenues, binding immovables by an agreement, — 
 which were indirect means of compulsion. Thus the "Etablisse- 
 ments de Saint Louis" lay it down that the debtor of the king 
 shall not be imprisoned if he swears that he has no movables 
 with which to pay, and if he sells his immovables within forty 
 days.^ There was another resource which was almost as forcible 
 as physical compulsion: the law appointed bailiff's men ("come- 
 stores," devourers) over the goods of the debtor, who lived at his 
 expense.^ These troublesome guests ruined the debtor without 
 any advantage for the creditor. Often, even, the debtor had an 
 understanding with the sergeant so that the occupation by the 
 bailiff's men was fictitious. By the thirteenth century Beau- 
 manoir attacks this abuse,^ and in the fifteenth century the 
 bailiff's men have become the commissioners of land-distraint.'* 
 
 § 424. Land Distraint and its Procedure. — Distraint upon 
 immovables having once been allowed, for the various local 
 Customs ^ there was substituted a regulation which was almost 
 
 absolutely necessary: Beaumanoir, 35, 2; 43, 18; 51, 9; "Gr. Cout.," 2, 17, etc.; 
 "Ord.," I, 698; IX, 453, etc.; "Jostice," 3, 6, 2; Boutaric, I, 5; II, 13; "A. C, 
 Picardie" (Marnier), p. 90 etseq.; "SummaNorm.," 6. — 5th. Formalities: for 
 example, summons to the debtor to sell his immovables: "Chatillon," 72, etc.; 
 Loyseau, "Deguerp.," 3, 7, 16. The debtor was entitled to take back his im- 
 movables within a certain time: Boutaric, I, 69. — Furthermore, several of these 
 peculiarities are also to be accounted for because of the relative value of im- 
 movables (for example, the subsidiary character of real distraint): Dig., 42, 1, 
 15, 2; Dig. X, 6, 5, 5, 8. — The evolution is perhaps still more striking in the 
 English law. Although the quality of not being distrainable is a consequence 
 of the quality of being inalienable, immovables became alienable in England 
 long before they could be distrained upon, — a thing which gave rise to frauds; 
 in fact, according to the common law, the creditor had a right to distrain upon 
 the body of the debtor, upon his movables, and upon the income of his immova- 
 bles; if the latter were distrained upon, the debtor had a very simple means of 
 taking away the benefit of them from the creditor; it was sufficient if he sold the 
 land; the Statute of Westminster II, under Edward I, allowed not only the 
 distraint of the income, but the land itself, up to the amount of half of the im- 
 movables of the debtor; the creditor held them until he was entirely paid 
 (tenant by elegit): Glasson, "Inst. Anglet.," Ill, 238. 
 
 1 II, 22. 
 
 2 See Du Cange, Ragueau; Beaumanoir, 53; 54, 9; 51, 5; Glasson, VI, 615. 
 
 ' Op. cit'; "Olim," II, 241; Tambour, II, 148 (local privileges). Privileges 
 granted by the kings in Languedoc; in P^rigord: "quod non ponantur come- 
 stores": "Ord.," I, 399, 694, etc. — C/. "Dragonnades" (prosecution of Protes- 
 tants in France). 
 
 * See Ferribre, Masuer, loc. cit. 
 
 » Analysis in Tambour, II, 131, 253; "Ass. de J^r.," "C. des Bourg.," 26, 
 27; "Chatillon," 72 (in 1371); Beaumanoir, 34, 51; 35, 6, etc.; "Gr. Cout.," 2, 
 17,24,33; 3,25; Boutaric, 1, 16,69; "Ord." of 1411; 1424; Maswer, 30. Customs 
 according to which the immovable of the debtor is given to the creditor: 
 Tambour, II, 143. — Fiefs (if there are no other possessions): J. d'Ibelin, 185 
 et seq.; Ph. de Navarre, 27; "T. A. C, Bret.," 295 et seq. 
 
 596
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 425 
 
 uniform by virtue of the Ordinance of 1551, better known 
 under the name of the "Edict of PubHc Announcements." ^ We 
 may say that in a general way the carrying out of execution upon 
 immovables was loaded down with formahties; "We have," said 
 Loysel, "a great deal more affectation and ceremony than there 
 was in the Roman law." This refers to the importance which hold- 
 ings in immovables had assumed ; but the expenses of dispossessing 
 diminished the creditor's security, and its long delays discouraged 
 him; through a wish to protect the debtor, his credit was entirely 
 removed. 
 
 § 425. The Same. — (A) Documentary Right. One cannot pro- 
 ceed with the distraint ^ excepting by virtue of some documentary 
 right, that is to say, a judgment or a notarial deed.^ An executory 
 force is naturally attached to judgments. As to the notarial deeds, 
 it is said that they signify a confession of judgment ("paratam 
 executionem"),^ thus differing from deeds under private seal; 
 
 1 Isambert, Table, see "Saisie r^elle" ("Ord." of 1539, etc.). The uniform- 
 ity was entirely relative, because the Edict was not applied in many provinces 
 (Flanders, Artois, Normandy, Lorraine, Bresse, Bugey, Franche-Comt4, 
 Dauphine, Provence, Languedoc, Guyenne, Beam and Navarre): Tambour, 
 II, 281; Glasson, "Proced.," II, 248. — Distraint upon rents and upon offices, 
 Edicts of 1583, 1669, 1683; Tambour, II, 171, 318. Cf. Basnage, "Hypoth.," 
 p. 87. 
 
 2 Obviously, the right must be one which has matured. Delay of four 
 months in the Roman law and in the canon law: Dig. X, 1, 29, 26; 2, 26, 
 15. Texts dealing with the Customs: Tambour, II, 113. 
 
 ' Loysel, 890: "One never gives up execution or distraint unless it is by 
 virtue of a contract protected by warranty, a judgment, or a privileged cause 
 of action (for example, a debt due the king), for acts of violence are prohibited." 
 Cf. exceptional cases under the heads, distraint-writ, seizure, alien distraint, 
 etc. Beaumanoir, 24, 13; "Const. Chat.," 8. — For quite a long time even the 
 executory right is not sufficient, and the creditor has still to provide himself 
 with letters of claim, the use of which is very limited during the monarchic 
 period; these letters consisted of an order to the sergeant to enforce the rights 
 of the creditor: Tambour, II, 95, 184; "Ord." of 1667, 27, 6. — Various judg- 
 ments, cf. Tambour, II, 72, 172. — No defense is possible against this executory 
 right unless the condition of "fining the hand of justice" be complied with 
 (pledges, sureties): see Ragueau; Loysel, 892. — Time: Loysel, 894. 
 
 * "Paree," from "parare" (primitive meaning). One must take care not 
 to confuse the confession of judgment with the clause called by way of avoid- 
 ance, by means of which the debtor authorizes the creditor to have the 
 immovables that are the pledge for his debt sold at public auction before no- 
 taries upon default of payment at maturity. By this means the creditor may 
 dispense with the formalities of distraint and forced dispossession, which is 
 an advantage for him, because he thus avoids many expenses and delays, but 
 which can be very prejudicial to the debtor, because he loses valuable guaran- 
 ties (for examjih;, y)ubli(;ity) of such a nature as would cause his projjcrty to be 
 sold at a higher price. The Law of June 2, 1841, prohibited this in tlie case of 
 immovables. Our old law allowed a friendly sale of the immovable distrained 
 upon (see Fcrricre). A debtor could also ajjpoint his creditor " i)rocurator in 
 rem suam" with power to sell his projjcrty (Dareste, p. 456). Although the 
 forfeiture clause was proliibited, contrary to the spirit of our old legal ideas and 
 
 597
 
 § 425] OBLIGATIONS [Chap. Ill 
 
 whereas the creditor with a deed under private seal can only 
 obtain execution after having obtained a judgment of conviction, 
 the creditor under a notarial deed has the right to act directly 
 against the debtor through a distraint. This likening of the 
 notarial deed to the judgment was devised by the practitioners; 
 resorting to the Roman rule " confessus in jure pro judicato habe- 
 tur," their method was to compel the parties to appear before the 
 judge at the time when the debt was contracted; the debtor ac- 
 knowdedged his debt, and this admission made in the presence of 
 the judge and established in writing had the same force as a 
 judgment; in this way the creditor found that he could avoid 
 incurring the risk of an action and did not have to fear the 
 chicanery and bad faith of the debtor. This custom appears first 
 in the writings of the Glossators and in the Italian practice 
 (" instrumenta guarentigiata"); ^ after this it spread throughout 
 Western Europe. In France the acknowledgment was made be- 
 fore the judge, who delivered a sealed charter setting forth the 
 debt and the acknowledgment; the affixing of the seal, which 
 was a mark of public authority, made the deed authentic and 
 carried with it the obligation to perform in the name of the 
 State. The notaries who were charged with drawing up in writ- 
 ing the acknowledgment made to the magistrates soon took this 
 acknowledgment themselves, at first in the name of the magis- 
 trates and then in their own name, because of an expressed or 
 understood delegation of authority.^ During the feudal period 
 the principle of seigniorial independence had the effect of limit- 
 ing the executory force of a judgment to the jurisdiction of 
 the judge who had pronounced it. In order to have it carried 
 out elsewhere it was necessary to obtain an order from the 
 local judge, — an order which was scarcely ever made without a 
 
 the texts of the thirteenth century ("Ord.," I, 506, n. b.; Giraud, "Essai," 
 II, 188, 212; "T. A. C, Bret.," 296 et seq.), yet a clause was authorized by vir- 
 tue of which, if the debtor did not pay at maturity, the object given as a pledge 
 was acquired by the creditor, after an appraisal by persons agreed upon by 
 the parties: Beaumanoir, 43, 3; Pothicr, "Nant.," no. 19. Now, the clause 
 by way of avoidance did not offer any greater dangers than this clause: Ser- 
 rigny, "R. etr. et Fr. de leg.," 1850, 257; Garsonnet, "Procedure," III, 467; 
 Briegleb, "Gcsch. d. Executivprocess," 1845; Fertile, VI, 349. 
 
 1 Viollet, loc. cit., seems to think that this practice is derived from the eccle- 
 siastical courts. 
 
 ^ Loysel, 890; Du Cange, see " Garentigia " ; Ragueau, see "Garantie"; 
 Loyseau, "Garantie des Rentes," 12; Pothier, "Proccd.," no. 438. — Customs 
 of the South, for example " Ord.," 3, 205; 4, 8, etc. — Beaumanoir, 35, 6; " Gr. 
 Gout.," 2, 17; Bmitaric, II, 13, etc.; Tambour, II, 82, 171, 181 (obligations 
 passed at law). 
 
 598
 
 Topic 8] EXECUTION UPON POSSESSIONS, RE.U, SECURITIES [§ 425 
 
 new examination of the entire matter, so that the whole ques- 
 tion was again opened.^ The monarchic law did not break 
 entirely with this traditional rule, as logic and the good adminis- 
 tration of justice would have required. But by a rather singular 
 inconsistency, notarial deeds had executory force in the entire 
 kingdom, even when they did not have an indorsement, "placet" 
 or "pareatis" ("Ord." 1539, 5, 65).^ It was otherwise with judg- 
 ments (in spite of the "Ord." of 1560, 46, and 1579, 172); the 
 rivalry between the judicial bodies was strong enough to uphold 
 the tradition, and their judgments could not be executed outside 
 of the jurisdiction of the judge who had pronounced them without 
 letters of "pareatis"^ delivered by the Keeper of the Great Seal 
 or by the Chancellors of the Parliaments, nor also without the 
 permission of the local judge. This was a rather idle formality, 
 because these letters were delivered without jurisdiction being 
 taken of the matter they dealt with ("Ord." 1629, 119, and 1667, 
 27, 6).'* "If the executory force of judgments was thus limited 
 in the interior of the kingdom, all the more should this force be 
 refused to judgments which were rendered abroad"; in this re- 
 spect notarial deeds were similar to judgments, in conformity 
 with the oldest practice.^ — Finally, it is to be noticed that execu- 
 tion was especially directed against the person, at least according 
 to the traditional notions; the executory right given against the 
 debtor remained without any effect as against his heirs; it was 
 necessary to obtain a new one. On the other hand, the execu- 
 tory right which was obtained by the creditor could be made 
 
 1 "Gr. Gout.," p. 214. 
 
 ^ C/., however, "Paris," 164, 1Q5; Pothier, no. 442 (it is no longer cus- 
 tomary to place a seal upon notarial deeds, although one still pays the 
 fee for the seal); id., no. 439; Givil Gode, 547; Law of 25 Vent., year XI, 
 Art. 28 (authentication, which is not required for the signature of the 
 clerk of the court). 
 
 ' Tambour, II, 197. "Pareatis" (obey) is a word derived from the context 
 of the hitters. Sentences of the ecclesiastical judges and arbitrators, etc. 
 Cf. Tambour, II, 172 et seq. 
 
 * The Revolution gave deeds and judgments executory force throughout 
 the whole of France; Gonstitution of 1791, 3, 5, 24 (uniform executory for- 
 mula); Law of Sept. 29, 1791 (engrossed copies of deeds entitled in the name of 
 the king and not in the name of the judge, and ending with a command 
 as to who should have them carried out); Law of Sept. 6, 11, 1790, 20, 
 21. 
 
 » Cf. Civil Code, 2123, 2128: Brodeau, on "Paris," 165 (II, 390): one must 
 petition by means of a new action before the local judge. Art. 121 of the 
 "Ord." of 1G29 merely sanctioned rules which had been admitted in practice 
 without difficulty: Edict of 1778, 2; Boullcnois, "Por-sonn. et K6alit6 des 
 Lois," p. 646; Julien, "Statuts de Prov.," 11,442; Pothier, no. 441; Glasson, 
 "Proc6d.," II, 142. 
 
 599
 
 § 425] OBLIGATIONS [Chap. Ill 
 
 use of by his heirs: "the dead carried out execution upon the 
 living, and not the living upon the dead." ^ 
 
 § 426. The Same. — (B) The Distraint Proper."^ The creditor 
 who possesses an executory instrument sends by the baihff to 
 the debtor a summons to pay the sum due.^ If this cannot be 
 done, the baihff goes upon the land with two witnesses,^ puts the 
 land under the hand of the king by placing upon it a wisp of 
 straw or an escutcheon bearing the arms of the king,^ places 
 commissioners there, publishes the distraint by means of posting 
 up notices before the main gate in the parish where the land 
 is situated, and then draws up a report of the whole (" return of 
 land distraint").^ The commissioners left in possession by the 
 bailiffs were originally poor people, whose responsibility was im- 
 aginary; afterwards they were officers who had given surety; ^ 
 it was their duty to have the distraint registered and to proceed 
 wdth the judicial lease of the possessions distrained upon, — a 
 lease which has been done away with in our law because of the ex- 
 pense and the delays which it gave rise to.^ In this way the debtor 
 found himself dispossessed of his property; any act of disposal 
 over the land or the income was forbidden him.^ Thus it was use- 
 
 1 Loysel, 891 (c/. 864). Other motives: to notify the heirs; debts are not 
 incumbent upon all without any distinction: Tambour, II, 106, 197 (details). 
 C'/., assignment of claims, ibid. 
 
 ^ Cf. feudal distraint, which was originally rather a restoration of the fief 
 to the lord's list because of his lord's right of ownership; the lord takes back 
 his property, but there is a tendency to confuse this right of reversion with 
 the real distraint carried out by the creditor upon the land of his debtor, in 
 proportion as the right of the vassal over the fief increases. However, a few 
 peculiarities still existed even after the old law had died out, whereas copyhold 
 distraint became an ordinary distraint: Tambour, II, 340, 349. — As to the 
 confiscation of the property which the vassal holds from his sovereign, cf. 
 "Ass. de Jerus.," I, 304; trial of John Lackland ; and the recent works of £emo«i, 
 Luchaire, Guilhiermoz. 
 
 3 Boutaric, II, 36; "Ord." of 1539, 74; "Ord." of Blois, 175. 
 
 * As to possessions which carmot be distrained upon, cf. Glasson, "Proced.," 
 II, 153; Fertile, VI, 348. —As to distraint upon fiefs, cf. Fertile, VI, 346; 
 Guyot, he. cit. 
 
 * "Cout. Not.," 118. Escutcheon, a little banner of cloth or linen bearing 
 the arms of the king: Fothier, no. 544 (not in use); Fertile, I, 339. 
 
 ^ Registration in the office of the commissioner of land distraint. Cf. the 
 existing form of publication by means of the transcription of the minutes of 
 the proceeding of distraint. 
 
 ' Edict of February, 1626. 
 
 * This lease, which was practiced under some of the Customs, was given a 
 general effect by the "Ord." of 1539, 82, and the Edict of 1551, 41, with the 
 object of preventing the commissioners who formerly administered property 
 that had been distrained upon, from appropriating the issues for themselves 
 under pretext that they were for disbursements and the expenses of adminis- 
 tration. As to these disadvantages, cf. Glasson, II, 242. 
 
 ' Encumbrances of the issues also. 
 
 600
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 427 
 
 less, and even impossible, for other creditors to distrain upon the 
 property, which had already been placed under the hand of the 
 law; all they could do was to offer objection in a petition; "dis- 
 traint upon distraint is invalid." ^ 
 
 §427. The Same. — (C) Public Announcements and Award. 
 Public announcements or proclamations were made after the 
 parochial mass, in order to announce to the public that the in- 
 heritance which had been distrained upon was to be sold and 
 awarded by decree, and to allow opposition to be offered by any 
 parties w^ho were interested (creditors, mortgagees, etc.). Follow- 
 ing this, notices were posted and a judgment certifying to the 
 public announcement established the carrying out of these for- 
 malities.^ It was the duty of the court to pronounce upon the 
 various objections offered, e.g., petitions to annul the distraint 
 of the land belonging to some one else, to exclude certain prop- 
 erty, to make an award only under the charge of a quit-rent, or 
 to include some one else among the creditors. After having ad- 
 justed these details, it enters an order of judgment.^ ]VIore 
 notices are posted up, and forty days after this order has been 
 made the man who has distrained places a bid in the clerk's 
 office; this corresponds to fixing a price. Within the forty days 
 anyone can make other bids; they are read in court, and there is a 
 provisional award to the highest bidder; but it is only after it has 
 been put off for a fortnight three times that the final judgment 
 takes place.^ The judgment vendee must pay the price of the 
 sale within a week, and if he does not do this the land can 
 again be subjected to the public announcement and sold at his 
 expense as having made an excessive bid.^ The final order 
 makes the judgment vendee the owner without delivery; ^ it even 
 extinguishes interests of which notice was not filed; so that the 
 judgment vendee can acquire more rights than the judgment 
 
 1 Loysel, 899, 758. 
 
 2 Edict of 1582. Control of distraint, Edicts of 1639, 1693, 1775. 
 
 ' Opposition could no longer be received after the adjudication: Desmares, 
 272, .54, 188; "Cout. Not.," 121; "Gr. Cout.," p. 263; Loijsel, 906; "Paris," 
 354-359 (after a copy of the decree had been made and sealed). "Ord." of 
 1629, 161: registration of objections; Tambour, II, 295. 
 
 ■• "Tiercement" at "Orl6ans," 476 (outbidding of the third party within a 
 week). Code of Civil Procedure, 708 et seq. Elsewhere the debtor himself 
 can take back his property within a year and a day ("suppression of decree" 
 in Languedoc, etc.). Cf. "Fragm. d'une R6pert. de Jurispr. Paris, au XV® s.," 
 pp. 2.5, 90; Fertile, VI, 343; Peliet, "Thdse," 1884. 
 
 * See Denisart. 
 
 ' This was a judgment. As to the voluntary decree, post, "Clearing Off." 
 In Ilainaut seisin must be taken by the purchaser. Cf. Loysel, 203. 
 
 GOl
 
 § 427] OBLIGATIONS [Chap. Ill 
 
 debtor had. There is an exception only in the case of the 
 lord's feudal right and the lord's copyhold right, real servitudes, 
 the dower of the wife of the judgment debtor, an entail not 
 yet matured, and life rents.^ In case he is evicted, the judg- 
 ment vendee has only the right to demand the restitution of the 
 price.^ 
 
 § 428. The Same. — (D) Preferences? The price of the sale 
 was not ordinarily distributed by way of equal shares; the court 
 must first settle the order of preference as between the privileged, 
 mortgage, or simple contract creditors,^ which prolongs a proce- 
 dure already very lengthy and overburdened with incidents.^ 
 
 § 429. The Same: Later Law. — The law of the 9th Messidor, 
 year III, and especially a law of the 11th Brumaire, year VII (not 
 the one relating to the system of mortgages), simplified the pro- 
 cedure w^hich was then called that of "forced expropriation "; this 
 last law did away with the rule that the decree clears off mort- 
 gages; the judgment vendee did not acquire any rights other than 
 those which the judgment debtor had.^ 
 
 § 430. Forms of Realty-Mortgage. — The establishment of im- 
 movable security met with obstacles, as did all alienation, in 
 the higher law of the family and in that of the lord. By the 
 Frankish period lands were, however, given as a pledge by debtors 
 to their creditors to answer for the payment of their debts, some- 
 times the absolute ownership (pignorative contract, sale with re- 
 demption) and sometimes only the enjoyment (land-gage). In 
 both cases the land passed into the hands of the creditor. Often, 
 however, the possession of the land was an embarrassment for 
 him, and the debtor had an interest in not giving up possession. 
 In various ways they succeeded in reconciling these needs with the 
 necessity of an effective security for the creditor; thus, in France, 
 
 1 Desmares, 220, 390; "Cout. Not.," 121, 127; "Paris," 354 et seq.; Loysel, 
 904; Glasson, VI, 612; Petiet, "These," _1884._ Cf. "Voluntary Decree," post, 
 "Clearing Off." This consequence had its origin in the form of the distraint: 
 "Olim," III, 557; "Jostice," 16, 2, 1; Desmares, 413; Glasson, "Proc," II, 
 245 (numerous local peculiarities); Petiet, op. cit. Did confiscation clear off 
 the rights of third parties? "Cout. Not.," 35; Desmares, 174. 
 
 2 Loysel, 905. Cf. Beaumanoir, 43, 3. 
 
 3 Fleury, "Inst.," II, 198. — Pos<, "Sub-orders"; Tambour, II, 155. 
 
 * The privalege of the first one to distrain is absorbed "by the legal mortgage 
 in the case of immovables: Beaumanoir, 34, 52; 24, 2; 55, 1; "A. C., Picardie," 
 cd. Marnier, p. 91; Esmein, p. 164; Tambour, II, 311. 
 
 5 The Law of the 11th Brum., year VII, reduces the delays to 50 days. 
 Cf. Glasson, "Proc," II, 247 (simplification under the old system). 
 
 « Intermediate law, Tambour, II, 433; Civil Code, 2204; Code of Civil Pro- 
 cedure, 613, 749; Law of June 2, 1841, wliich simplified the matter. 
 
 602
 
 Topic S] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 431 
 
 during the feudal period/ wlien execution upon real property 
 came into common usage, there was developed a new kind of 
 security, giving the creditor the same advantages as he would have 
 had by land-gage, but without the debtor's giving up possession. 
 Known first under the name of the bond,- in the end it became 
 confused with a Roman institution, the hypothec, for which anal- 
 ogous precedents can be found, such as fiduciary alienation and 
 the "pignus." 
 
 §431. Th3 Same: (I) Sale with Redemption. — In the old 
 legislation the pledge of a piece of land is often met with under 
 the form of true alienation: the creditor receives the full owner- 
 ship of a piece of land, just as he is given a movable pledge; he 
 will restore it if the debt is paid when due; if not, he shall have 
 the absolute ownership of it.'^ During the Frankish period,'^ and 
 even sometimes after it, this transaction was frequently met with. 
 The ownership of the land was conferred upon the creditor by 
 means of a conditional investiture; most frequently the condition 
 is a condition subsequent, that is to say, the creditor becomes the 
 owner "hie et nunc," but ceases to be so if the debt is paid.^ It 
 
 1 As to the order in which these various assurances made their appearance 
 and their coexistence, c/. Heusler, § 101. 
 
 2 German law: the "altere Satzung" corresponds to the land-gage of the 
 French law; the later or "neue Satzung" (of the thirteenth century), to the 
 bond; it is a copy of the procedure of execution upon immovables, and, con- 
 sequently, is derived from the process of outlawry. Actually, "Satzung" 
 means statute, regulation; "versetzen" means to put in pledge. CJ. post, 
 "History of the English Mortgage." 
 
 ^ If the object perishes or deteriorates the loss falls upon the creditor, for 
 if it no longer exists or loses in value the debtor will not claim its restitution : 
 "Soest," ia 1120; "Sachsensp.," 3, 5, 5. It is for this reason that "Liut.," 
 108, allows the creditor to demand the payment of the debt although he may 
 have become the owner of the pledge. — A creditor who is the owner of the 
 pledge alienates it or pledges it, which may make its recovery difficult for the 
 debtor; the alienation subject to a suspensive condition does not present this 
 difficulty. 
 
 4 "Cart, dc Redon," nos. 34, 35, 133, 135, 200: "de Cluny," II, 21, etc.; 
 Thevenin, no. 120; lioziere, "Form.," nos. 374 et seq.; texts in Heusler, espe- 
 cially Muratori, "Ant. Ital.," Ill, 116; "Cod. Cav.," I, nos. 70, 73; "Cart. 
 Langob.," no. 9, etc. Persistence of the pledge with ownership in English 
 law {Glanville, X, 6; post, "Mortgage"), in German law {Meiboin, 273; Fran- 
 ken, § 13). ( f. Boutaric, I, 103, 3; "Ass. de Jerus.," "C. des B.," 32; Franken, 
 p. 148. — Cf. theory of rents: the assignment of rents meant their alienation. 
 Britz^ p. 890: confusion of pledging of immovables ("engagtires") with sales 
 with the power of buying back, which are made use of in case of a borrowing 
 upon an immovable pleclge (Luxembourg). 
 
 ^ A new transfer of the ownershif) was absolutely necessary; it is hardly 
 credible that the ownership return(>d of absolute rigbt to the debtor. But the 
 texts are not very explicit : Heusler, §§ 93, 102, 103 (11, 13S): transfer without 
 "resignatio" or "Auflassung," in such a way as to leave the debtor a real 
 right over the land; in this case the "resignatio" ought to take place after 
 the transaction is completed for the benefit of the creditor who has not been 
 
 603
 
 § 431] OBLIGATIONS [Chap. Ill 
 
 may also happen that the condition is a suspensory one ; ^ the 
 creditor only becomes proprietor when the debt is due, if he is 
 not paid. But in either case he possesses the land; he has the 
 enjoyment of it without deducting from the debt the fruits which 
 he takes ;^ he acquires the absolute ownership in default of pay- 
 ment (contrary to the Roman law, which forbids the "lex com- 
 missioria");^ and he would not have the right to sue the debtor 
 by at the same time offering to restore the pledge to him. This 
 transaction, which was a dangerous one for the debtor, because 
 the creditor never failed to demand a pledge which was of greater 
 value than the amount of the sum due, struck at the rights of 
 the family, and in the feudal period struck at those of the lord; ^ 
 ordinarily it gave way to the land-gage. However, it did not dis- 
 appear entirely. This is one of the numerous means made use of 
 to avoid the prohibition against lending at interest; the casuists 
 forbade it under the name of yignoratim contract; ^ it is to be 
 distinguished from sale with redemption, which is lawful, by two 
 characteristics, — the low price, and the immediate reletting of 
 the land to the seller.^ 
 
 § 432. The Same: (II) Land-Gage. — To evade the need for the 
 
 paid. This ingenious system does not seem to us to have a sufficient founda- 
 tion in the texts. 
 
 1 Roziere, no. 377. In Lombard law the debtor carries out the "traditio 
 carta}" with the creditor and the latter binds himself in writing to restore the 
 "carta"; the debtor keeps the land. 
 
 2 The liquidation of the debt by means of the revenues from the pledge 
 was opposed to the spirit of the old law, according to which the pledge was 
 the provisional property of the creditor, and the expenses of cultivating it 
 and maintaining it, and its loss even, were chargeable to liim. 
 
 3 Penile, IV, 541. CJ. "Liut.," 147; "Roth.," 247; Du Cange, see "Trans- 
 actum." 
 
 ^ Consent of the heirs, repurchase: "L. Feud.," 2, 5.5; "Schwabensp.," 32, 
 6; 72, 2. Fief given by way of pledge, "Pfandlehn"; Homeyer, "Sachsensp.," 
 II, 345; Kohler, "Ffandr. F.," 291. 
 
 ^ Endemann, loc. cit., Neumann, "Wucher," p. 197; Lauriere, "Ten. de 5 
 Ans.," c. 5, 6; Franken, pp. 155, 178, 183. 
 
 * A borrows 100 from B, at the same time giving him the piece of land C 
 as a pledge; this is the same thing as though he sold C to B for 100 with the 
 power of getting back C for this price; for in both cases A only recovers C by 
 paying 100 to B. From the economic point of view the sale with redemption 
 is merged with borrowing upon a pledge, for the owner who sells his land 
 and keeps the power of buying it back only does this because he has need of 
 money. From the juridical point of view the distinction is a very subtle one. 
 The borrower upon a pledge can, they say, be compelled to pay in the same 
 way as any debtor, whereas nothing compels the vendor with power of 
 redemption to buy back his property. The former keeps the ownership of 
 the land pledged, whereas the owner no longer has it. Neither of these differ- 
 ences existed in the very old law. Afterwards these two transactions having 
 become separated from each other, their distinctive marks were seen in the 
 characteristics pointed out in the text: "Olim," III, 1, 107; Loysel, 484; 
 Lauriere, on "Paris," I, 273;. Guyot, see "Contrat pign." 
 
 604
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 432 
 
 consent of his relatives or of the lord, the debtor gave his lands as 
 a pledge to his creditors in such a way that they only had the 
 possession and enjoyment thereof; ^ in fact, he only thereby dis- 
 posed of the profits and income, the issues or crops; and this was 
 within his rights.- In the same way, when the inalienability of 
 the domains of the crown had been proclaimed, the kings gave 
 them in gage to their creditors.^ The land-gage is created by 
 means of the seigniorial giving of seisin, like any other aliena- 
 tion,* and when these forms fell into disuse the gage took place 
 by means of a physical delivery. In every case the debtor was 
 dispossessed; the creditor acquired the seisin by way of pledge; 
 consequently, he was protected in his possession against third 
 parties, and even against the pledgor.^ The profits and income 
 belonged to him, sometimes upon condition of deducting them 
 from the capital, " vif-gage " (live pledge), sometimes without any 
 credit, as an absolute loss for the debtor, " mort-gage " (dead 
 
 ' He did not cease to be a vassal, etc. Cf. German and English law. As 
 to freeholds, cf. the authors cited. Conditions for validity: Franken, p. 191; 
 contra, Glasson, loc. cit.; "Cart, de N.-D. de Chartres," no. 265. But cf. 
 Britz, p. 928 ("pignus stabile"). 
 
 2 This is called a sale of the revenues, of the "poil" (the crops), a granting of 
 the usufruct: "Cart, de Cluny," no. 908; "Ord." of 1204 (crusaders), 1208 
 (Christian debtors of Jews); Beaumanoir, 38; 35, 2 (fief); 17, 7; 24, 4; 34, 13; 
 44, 52; 68, 11; "A. C, Champ.," 4; "St. Dizier," 164; " Jostice," 8, 3, 5; 12, 6, 
 38 (minor debtor); "Olim," I, 690; II, 369, etc.; "T. A. C, Bret.," 296 (not 
 bound at the age of twelve); Boutaric, I, 35, 78 (Esmein, p. 165, cites ed. of 
 I486); "N. R. H.," 1880, 375 (immovables pledged atMetz: sale of the land to 
 a fictitious grantee who pledged it to the creditor); "A. C, Artois," 22; "A. C, 
 Bourg.," 33 {Giraud, II, 275): sale for three years "without the consent of the 
 lord"; "Us. de Guisnes," ed. Tailliar, p. 343. The repurchase by a person of 
 the same lineage was only allowed in the case of a perpetual pledge, a true 
 aUenationin disguise: Beaumanoir, 44, 52; "Bergerac," 49; "T. A. C., Bret.," 
 220; "A. C, Anjou," II, 239. — Incorporeal immovables: Fertile, IV, 520; 
 Peltier, 188. — "Pfandschilling," sort of fictitious purchase price: Franken, 
 108, etc.; Wcrminghoff, p. 13 et seq. — Warranty due from the seller. 
 
 ^ Revolutionary period, cf. Law of Nov. 22, 1790, of the 10th Frim., year 
 II, 14th Vent., year VII; "Code civil interm.," Table, see "Domaine en- 
 gag^"; Dalloz, "Rdpert.," id. 
 
 * Conflict between two pledgees and one pledgee and a purchaser; the 
 priority of talcing of seisin will determine the matter: Beaumanoir, 34, 13, 14, 
 15 {Peltier, p. 184); 52; 51, 20; "L. d. Droiz," 852; "Cout. d'Anjou," XIX, 
 632 (ed. B.-B.); "Montpellier," 41; "Toulouse," 109 et seq., 142 et seq.; 
 Franken, p. 116; "N. R. H.," 1885, 206 (pledging of immovables by a clod of 
 turf at Metz). WTien the debt is extinguished the debtor has a right to take 
 possession of his property without having the seisin conferred upon him by 
 the lord. Counter-prestation : Beaumanoir, 34, 58 et seq.; Franken, p. 103 
 et seq. — The lord could not evade the giving of seisin acquired by virtue of a 
 pledge: he could oppose the alienation by means of a repurchase. 
 
 5 Beaumanoir, 32, 30, 13; "L. d. Droiz," 124, 630, 637; Desmares, 31, 108, 
 177; Glanville, 13, 28 ("seisina ut de vadio " ; it has but few consequences in his 
 eyes). As to the " Gewere " in Germany, difficulties : Pertile, lY, 518; Franken, 
 p. 110. 
 
 605
 
 § 432] OBLIGATIONS [Chap. Ill 
 
 pledge) : ^ " The ' vif-gage ' is one which is paid off out of the issues, 
 the 'mort-gage' is one which is not paid off out of anything." ^ In 
 the case of the "mort-gage" the profits were the same as interest 
 paid to the creditor, at least in proportion to the amount that their 
 value exceeded the expense of keeping up and cultivating the land. 
 There was in this a form of usury which had entered so much into 
 the customs that it remained there for a long while unperceived; 
 in the twelfth century the Church decided to forbid it, with all 
 the more strictness as it appears to have been practised especially 
 
 1 English Law : At the time of Bradon the pledge of lands seems to have 
 been in common use upon the Continent; but the practice described by Glan- 
 ville is different, and perhaps it is in the pledge of ownership that the latter 
 tells us about that we must seek the origin of the "mort-gage" of the Common 
 Law. By this name is designated a true alienation of the land to the creditor 
 with the reservation that it will be annulled if the debtor pays at maturiiy; 
 in case he does not pay at this time the land is irrevocably lost to him. The 
 first tempering of this severe law consisted in the clause by virtue of which 
 the debtor kept the enjoyment under the status of a tenant at will. The judi- 
 cial law of the courts of equity destroyed the common-law mortgage by recog- 
 nizing the mortgagee as only having a security for the paying back of his 
 claim, and by allowing the debtor to have all the rights of an owner; even ma- 
 turity did not mean for him the irrevocable loss of the property, as would 
 have happened at law, but he had a right to take it back upon condition of 
 paying within a reasonable time. Under this form the English mortgage offers 
 the greatest analogy to the French mortgage ("hypotheque")- The mere de- 
 livery to the creditor of the title deeds of ownership constitutes a mortgage in 
 equity. In general the mortgage is no longer formed in the feudal manner by 
 investiture, long since abandoned, but by means of a simple deed. "Since 
 a law of Aug. 22, 1881, the creditor, instead of paying himself in kind out of 
 the immovable which has been pledged, may, if he prefers, sell it and pay 
 himself out of the price": Lehr, p. 157; Glasson, "Inst. d'Angl.," Ill, 238; II, 
 
 '310; Pollock and Maitland, loc. cit. 
 
 2 Loysel, 485; Du Cange, see "Pignus," etc.; Glanville, 10, 6, 8; "Reg. 
 Maj.," 3, 5; J. d'Ibelin, 32; Beaumanoir, 68, 11; "Summa Norm.," Ill, 11; 
 P. de Fontaines, pp. 115, 119; Boutaric, I, 72; Blackstone, II, 441; Toustain, 
 "Le Mortgage de Norm.," 1577; Thellier de Poncheville, "Vente k T. de 
 Mortgage," 1879 (p. 17); Huher, IV, 786; Periile, IV, 518; Franken, p. 123. — 
 In German law the live pledge ("vif-gage") is called "Todsate" or "Todsat- 
 zung," — that is to say, mortgage, because he liquidates ("amortit") the 
 debt. For example, "altere Satzung" in general, " Reichspfandschaft." Cf. 
 pledgee of the domain in France: enjoyment until he is paid back.^ — As to 
 the assignment of the revenue of immovables for the payment of a debt (il- 
 legal in the old law) cf. Pothier, "Hypoth.," no. 229. 
 
 [On the history of the English mortgage, see now the essay of Dr. Harold 
 D. Hazeltine, of Cambridge University, England, first printed in the " Harvard 
 Law Review," Vol. XVII, p. 549, and. Vol. XVIII, p. 36, and later reprinted in 
 Vol. Ill of " Select Essays in Anglo-American Legal History." This essay is 
 an abridgment of the author's longer monograph, entitled " Englische Pfan- 
 drechtsgeschichte," being No. 92 in the series " Untersuchungen zur deutschen 
 Staats-und Rechtsgeschichte," edited by Prof. Otto Gierke. 
 
 On the general history of the pledge and the mortgage in France and in 
 various systems of law, see the essay by John H. Wigmore," The Pledge-Idea; 
 a Study in Comparative Legal Ideas," "Harvard Law Review," Vol. II, p. 29. 
 — Tkansl.] 
 
 606
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 433 
 
 by religious establishments.^ From this time on the "mort-gage" 
 disappeared from French practice, save only in a few exceptional 
 cases (portion of younger children or marriage portion of daughters; 
 gifts, and alms given to the Church).- The canon law also forbade 
 the forfeit-clause, that is to say, the agreement by virtue of which 
 the creditor retained the property pledged as a payment if the 
 debt were not paid at maturity.^ Land-gage never gave the 
 creditor the ownership however long it lasted.^ 
 
 §433. The Same: (III) "Bond."— The foregoing two kinds of 
 security had the disadvantage of putting the debtor out of posses- 
 sion,^ whereas the Roman hypothec allowed him to keep his lands 
 without decreasing the security of the creditor. The Customary 
 law reverted to the Roman institution by making use of the bond ^ 
 ("obligation") by which the debtor appropriates beforehand his 
 
 1 In 1164, Dig. X, 5, 19; Beaumanoir, 68, 11; Glanville, 10, 8; "Gr. Gout. 
 Norm.," 20. The transaction is not annulled, but it is reduced to a live 
 pledge. In Germany the granting of a fief joined to a pledge in order to avoid 
 being accused of usury. Why the English mortgage has been tolerated, cf. 
 Franken, p. 189. — In 1199, example of a "mortgage" in the South: Pasquier, 
 "Doc. rel. h la Seigneurie de Boussagues," p. 50; Viollct, p. 734; "Cart, de 
 St.-Victor," no. 1117; Endemann, II, 337. 
 
 2 Loysel, 485; Boutaric, I, 25; Beaumanoir, 22, 2; "Glim," I, 449; no. 8; 
 P. de Fontaines, 15, 14; Lauriere, "Ten. de 5 Ans.," 4; Franken, p. 130; Peltier, 
 p. 203. 
 
 ^ Already during the barbarian period the reaction against the acquiring 
 of the ownership of the pledge bv the creditor who was not paid comes to light 
 in the "L. Wis.," 5, 6, 3, and in the "Faux Capit.," VII, 299, 313; "L. Feud.," 
 I, 27; II, 51; "Ordojudic." ("incertiauct."),2, 11; Dig. X, "depign.,"7; Beau- 
 manoir, 54, 6; Ragueau, see " Tresf oncer." The " Verf allspf and " becomes the 
 "Verkaufspfand," but first of all the sale is frequently made by the pledgee 
 himself: "Milan" (in 1216), 15, and not as in the prevailing law, by the law 
 and by means of public sales. The law sells as well as guarantees, says 
 Beaumanoir, 51,1. At Lille, " mort-gage " during two years and two days, after 
 which the land is forfeited: "Roisin," p. 61. Intermediate system of the hand- 
 ing over to the creditor of the property distrained upon after appraisal until 
 the amount of the debt is paid : Beaumanoir, 43, 3; 54, 8; "T. A. C., Bret.," 296; 
 "Metz," "N.R.H.,"IV,342; "Aries," 8. Cf. Franken, pp. 136, 148; "Ass.de 
 Jdrus.," "C. des B.," 32; "Montpellier," 40; "Alais," 6; Endemann, II, 341. 
 
 * Beaumanoir, 24, 4. Cf. English law: "Once a mortgage, always a mort- 
 gage." 
 
 ^ The same piece of land may be bonded with regard to several persons, 
 but it can only be gaged to one. The primitive pledge frees the debtor 
 (aa to-day, surrender releases a wrongful holder); the bond or hypothec 
 ("hj-pothfeque") is an accessory of the present debt; and the debtor remains 
 bound if the land mortgaged is not sufficient to pay off the creditor. This land 
 is sold by judicial sale, whereas the primitive plfedge becomes the property 
 of the creditor. Let us observe that these characteristics of the modern 
 hypothec were only created with difficulty; originally, or in the conservative 
 Customs, the same piece of land can only be bonded for the benefit of one 
 creditor; if it is destroyed a creditor only has a right to the remains, etc.: 
 Stobhe, § 107; Huhcr, IV, 793, 21; Britz, p. 924. The warranty due from the 
 man giving the pledge may be equivalent to a personal obligation. 
 
 ^ Bond still has the meaning of hypothec in practice (they say to contract 
 a bond). 
 
 607
 
 § 433] OBLIGATIONS [Chap. Ill 
 
 immovable property for the payment of his debts.^ Indi- 
 vidual ownership having gained strength, and a debtor being 
 now able to alienate his property thus, when he found it was im- 
 possible for him to meet his obligations, it was perfectly natural 
 that he should allow them to be distrained upon and sold, by a 
 clause in the promise itself. The debtor kept his lands,^ but 
 at maturity the creditor who was not paid found himself in 
 about the same situation as though he had received them as 
 a gage.3 
 
 From early times the bond could be general or special. 
 
 § 434. The Same. — (A) The General Bond affects all the 
 possessions of the debtor, movables and inheritances, present 
 possessions or those to come; ^ it confers neither a right against 
 third i^ersons, so that conveyances, at least those for a considera- 
 tion, made by the debtor can be set up against the creditor,'' nor 
 a right of lien, for in this matter it is only the priority of actions 
 
 1 The bond differs too much from the Roman hypothec for one to be able 
 to see in it a resurrection of this forgotten institution. CJ. "Liut.," 67. Its 
 formation seems to us rather to be accounted for by reason of custom, in the 
 same way as it would seem that the "Jiingere Satzung" of the German law 
 is to be accounted for (Franken, Brunner) ; the latter grew out of the procedure 
 of distraint upon immovables; it gives the creditor neither the ownership nor 
 the enjoyment of the immovables of the debtor; but it places him beforehand, 
 with respect to the time of maturity, in the position of one who had obtained 
 a judgment condemning the debtor and pronouncing the "missio in bannum" 
 of his property. The effect of the bond in French law is analogous. According 
 to the general opinion, the "Jiingere Satzung" made its appearance in the 
 towns in the thirteenth century (peculiar position of urban property, such as 
 houses, which the debtor cannot abandon). Heusler, II, 135, and § 104, 
 maintains that the "Jiingere Satzung" is as old as the "alt. Satz.," for example, 
 for a loan, the creditor wishing to have a pledge in his hands; the other was ap- 
 plied to future obligations that were uncertain, such as warranty or suretyship, 
 with regard to which there was no occasion to dispossess oneself "hie" and 
 "nunc" (for example, p. 147: "Furpfand," "subpignus" in the South). 
 
 2 Forms of transition: the pledgee retransfers the possession of the land to 
 the debtor, who will thenceforth be his tenant, his vassal,'^etc. : Huher, IV, 788, 
 8. Pledging of immovables ("engagere") at Neufchdtel until 1850: this was 
 a sale for a term or with the power of repurchase, the creditor being able to 
 leave the debtor in possession of the land: Ostervald, "Lois, us. et cout. de 
 Neufchatel," p. 230. Cf. also the English mortgage; G. Durand (tenure at 
 will); Viollct, p. 672. 
 
 ^ The relationship between the judicial pledge and the hypothec comes out 
 very clearly in the exposition of the Belgian law given by Britz, p. 927: the 
 hypothec is formed by acts of law, when an order to convert into money has 
 been given, by distramt or attachment, carried* out in fact, and complaint at 
 law, taking possession, and other similar ways (judicial hypothec); in Hainaut, 
 real distraint led to the same result as the hypothec. Cf. p. 931 (privilege of 
 the person carrying out the distraint). 
 
 * "Siete Part.," 5, 13, 5: it does not cover the concubine ("barragana"), 
 her children, her servants, etc.; "Wis.," 2, 5, 7. 
 
 ^ Beaunianoir, 70, 10; "Artois," 5, 1; Boutaric, I, 25; Viollet, 737. Cf. 
 "jiing. Satz." in German law (id.); Britz, p. 925. 
 
 608
 
 Topic S] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 436 
 
 which gives the preference.^ What good is it then? It serves 
 to do away with the old principle that immovables could not be 
 distrained upon,^ and to make the heir of the immovables himself 
 responsible for the debts of the debtor at a period when debts 
 were only paid out of movables.^ 
 
 § 435. The Same. — (B) The Special Bond, instead of affecting 
 the entire inheritance of the debtor, only affected a particular im- 
 movable; but it gained in strength what it lost in extent. Already 
 in the thirteenth century it carried with it a right against third 
 persons "* and a lien,^ and, consequently, had precedence over the 
 general bond.^ 
 
 § 43G. The Same. — (C) Comparison of the General Bond and 
 the Special Bond. From the time when it was admitted that im- 
 movables were subject to execution the general bond should have 
 disappeared. The practitioners preserved it by giving it all the 
 effects of the special bond (fourteenth and fifteenth centuries).^ We 
 may say that from this time on the bond becomes like the Roman 
 mortgage (hypothec) and should rather be so called.^ However 
 
 1 Beaumanoir, 35, 20; 34, 52; 54, 6. 
 
 2 It allows of distraint where it would be prohibited: "A. C, Picardie," 
 p. 90, and where it is possible it facilitates the procedure: Beaumanoir, 35, 2; 
 "Olim," 3, 158, 3. 
 
 ^ Ordinarily the debtor binds himself and his heirs: Beaumanoir, 35, 19, 
 etc.; "Gr. Gout.," p. 217. Cf. Loysel, 329; Huher, IV, 789. In England these 
 clauses were indispensable until 1833 (specialty binding the heir). — The 
 more recent law is stated by Masuer, 30, 2: the coercion of "nisi" (excommuni- 
 cation) and physical compulsion no longer existed against the heir, but this 
 is not so with the bond, for the heir and the deceased are one. 
 
 4 Beaumanoir, 34, 52; 38, 11; 54, 5; 70, 11 et seq.; "A. C., Artois," 5, 2. — 
 One finds written bonds in which the debtor promises not to alienate the lands 
 which he binds: Stobbe, II, 309 (difficulties before the fourteenth and fifteenth 
 centuries); Fertile, IV, 721 (Act of the year 777); Huber, IV, 788, 9. But this 
 promise could not be set up in opposition to a third party who acquired and 
 was duly given the seisin. How was the creditor recognized as having a right 
 of pursuit? This right belonged to the pledgee who had surrendered the land 
 pledge, — for example, by way of a lease. It may happen that this compli- 
 cated transaction was implied, and that the influence of the Roman hypothec 
 worked in the same direction. 
 
 * This right exists if the land has been alienated, for no one but the creditor 
 can take it back from a third party who has acquired it. When the immova- 
 ble which has been alienated is still in the hands of the debtor it is more doubt- 
 ful: Boularic, p. 386 (ed. Char., 1606); Esmein, p. 186. 
 
 « Boularic, I, 25; "T. A. G., Bret.," 308; "A. G., Bourges" 185; "L. d. 
 Dr.," 321; L'Hommeau, III, 327 et seq. Later on, liens: Britz (warranty of 
 Brussels). 
 
 ' The tie existing between the executory force and the obligatory form of 
 deeds must have contributed towards this result, just as did the existence of 
 the general hypothec in the Roman law. — Flenry, "Inst.," II, 16; the typical 
 clause : the special hypothec does not derogate from the general hypothec, nor 
 the general hypothec from the special one; Esmein, p. 190. 
 
 8 The Roman influence merely hastened and facilitated a spontaneous 
 
 COO
 
 § 436] OBLIGATIONS [Chap. Ill 
 
 important the differences which are raised between them may be, 
 they do not prevent the Roman theory of the mortgage as a whole 
 from being adopted by our old law. Let us observe the principal 
 points upon which they differed from the Roman mortgage: 
 (a) the mortgage over movables, admitted at Rome, was rejected 
 as a general thing; ^ (6) whereas in Rome the mortgage was formed 
 by a simple agreement, the old French law demanded formalities ; 
 (c) the judgment-hypothec is a creation of the French law; (d) as 
 also the " clearance." 
 
 §437. The Same: Hypothec-Mortgage.^ (1) Countries of Pub- 
 lic Nam.^ — In the North of France the bond could not be made 
 use of unless it were accompanied by formal acts in the same 
 way as conveyance; ^ upon this condition alone did it confer a 
 right against third persons and a lien. The debtor had to give up 
 possession into the hands of the lord, who in his turn gave the 
 seisin to the creditor; and the judge, as we have seen, stepped into 
 the place of the lord.^ The effect of the intervention of the court 
 
 evolution of the customary law. — Cf. as to the mortgage: Paul, 5, 28, 4; 
 "L. Rom. Wis.," p. 438; "Wis. ,"5, 6; "Fetrus," 11,47 et. seq. "Hypotheca": 
 "Montpellier," 38. "Ponderagium": "Toulouse," 109; elsewhere, assignment, 
 to encumber, to hinder. 
 
 1 Esmein, p. 198; Viollet, 740.^ Cf. Fleury, II, 20; Britz, p. 960; Argou, 
 4, 3 (where it is admitted, as it is in the countries of written law, it only gives 
 a right of preference). Cf. mortgage of movables in England. 
 
 2 [The French term "hypotheque" will here be translated "mortgage," 
 for the two terms represent the single institution which serves the same 
 purpose in the modern law of both countries. The essential thing about the 
 "hypotheque " so far as the historical contrast with the mortgage goes, is 
 that in the hypotheque" neither title nor possession is in the creditor. — 
 Transl.] 
 
 ^ [For the term "public nam," see ante, page 380, note 6. — Tbansl.] 
 
 * Seisin giving Customs ("Valois," etc.): endowed rents are always pre- 
 ferred to those which are not endowed; rents which are not endowed are 
 preferred to debts which are not privileged: Argou, IV, 3. 
 
 * The bond covering ownership was only possible in the case of feudal 
 possessions if given by means of the formalities of disseisin-seisin; it consisted 
 in fact of a true alienation, and the latter assumed the consent and the inter- 
 vention of the lord. Cf. the English mortgage, and the German "altere Sat- 
 zung." This was not the case with regard to the giving of a bond for the 
 enjoyment which did not involve the rights of the lord; but in this case, in order 
 to acquire the right to sell the immovable the creditor had to obtain seisin 
 from the lord, — that is, to do some formal act. This last proceeding was 
 applied to the bond: "A. C, Picardie," p. 91 (the debtor specially binds his 
 house; he gives up the seisin of it to the lord and then causes the creditor to 
 have the seisin given him). Beaumanoir, 54, 5, mentions the consent of the 
 lord and the formation of a special bond: Boutaric, I, 25. In the common law 
 the necessity for the consent of the lord and for the intervention of the lord 
 was done away with, just as in the case of the transfer of ownership: Beau- 
 manoir, 27, 8 and 9; Desmares, 274; "Toulouse," 109, Ula, 131, 142: "ponder- 
 agium" established by a public act, with the intervention of the magistrate 
 in the case of freeholds and of the lord in the case of fiefs and copyholds. — 
 Cf. the German "jiingere Satzung": declaration before the court or the town 
 
 610
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 438 
 
 was to make known the mortgage to everybody; publicity, one of 
 the essential bases of a rational system of mortgages, was intro- 
 duced under cover of feudal customs.^ The specific lien of the 
 gage, another principle which is no less important, was equally 
 implied in the public nam system, because the debtor must 
 give possession into the hands of the lord of only a certain piece 
 of land, and not all the land which one had or might have, in a 
 vague manner. The writing on the registers of the clerk's office, 
 in which the entire transaction was set forth, was thus both 
 public and specific, — specific because the land which was mort- 
 gaged was designated in the most exact way, public because the 
 registers were open to everybody.^ The Edict of 1771 did away 
 with these methods, and instead placed countries of public 
 nam under the rule of the common law in matters relating to 
 the system of mortgages.^ 
 
 § 438. The Same: (2) The so-called " Customary Common 
 Law." Mortgage is Creatable only by Notarial Deed.^ — No con- 
 sensus has been reached either as to the date of or the reason for 
 this rule. Our old authors offered two explanations, both of which 
 still have their partisans. — 1st. The mortgagees a result of the 
 power of execution in the notarial deed and arises from the affixing 
 of the public seal. Originally, the bond was strictly connected with 
 
 council, entering upon public registers. The influence of the Roman law often 
 caused these forms to be abandoned. 
 
 1 Publication in Italy, in Venice in 1288 (registers in which are entered all 
 contracts relating to land), etc.; Pertile, IV, 523 (bibl.); in Germany, Hamburg 
 and Liibeck, in the thirteenth and fourteenth centuries; in the Prussian towns: 
 Law of Sept. 28, 1693; Prussia, Law of Feb. 4, 1722, Dec. 20, 1783, Code 1794. 
 
 * "A. C, Artois," 22; Boutaric, I, 25; "Verm.," no. 77 (ed. B.-B.). The 
 old forms persisted in certain Customs, — for example, "Peronne," 260; 
 elsewhere everything is reduced to a question of an entry in a register: "Cam- 
 brai,"' 5, 11. Ordinarily there is a register for pledge transactions. A regu- 
 lating order of July 27, 1673, allows the wife's mortgage to dispense with the 
 public nam as well as the minor's mortgage and the judicial mortgage. 
 Cf. details in Britz, pp. 939, 957 (Hainaut: "refunding of inheritance": the 
 debtor disinherits himself of the land without appointing the creditor as his 
 heir, but it is understood that the land can be sold at the request of the cred- 
 itor who has not been paid; and, if this is done, the judge confers the inher- 
 itance upon the purchaser). 
 
 3 The Edict was not everywhere put in force; the Decree of Sept. 19, 1790, 
 declares that thenceforth the registration of the contract constituting a mort- 
 gage will take the place of public nam. 
 
 * "Toulouse," 109 (pubhc deed); "Sassari," in 1316, I, 46 (id.)] "A. C, 
 Anjou," II, 414; "Paris," 164, 165; Planiol, "Dr. Civil/' II, 792, n. 3, cites an 
 unpublished act of the "Cart, de Ste.-Melaine," at Rennes in 1293; we find 
 closely connected in it the admission of the debtor, the sentence pronounced 
 by the notary, who is a delegate of the judge, and the bond agreed to by the 
 debtor. Cf. "Tract, univ. jur.," VI. Furthermore, A. Favre and d'Argentr6 
 still maintain that this rule i3 a mistake on the part of the practitioners. 
 
 611
 
 § 438] OBLIGATIONS [Chap. Ill 
 
 legal execution on immovables; the execution itself took place 
 either by virtue of a judgment or by virtue of an agreement fur- 
 nished with a seal of the public authority; the bond, which was the 
 first form of the mortgage, was thus derived from the affixing of 
 the seal, which gave to deeds their executory force. Neither the 
 deed under a private seal nor the ordinary verbal agreement could 
 give a mortgage. If there was some hesitation with regard to 
 this doctrine, it was because of the influence of the Roman rules, 
 according to which the mortgage resulted from a mere contract; 
 but from the sixteenth century on, the Roman theory was finally 
 rejected as a consequence of the vogue of a system of proofs 
 wherein the notarial deed occupies the most important position.^ 
 — 2d. The mortgage is only the result of the ivill of the parties; it 
 does not in any way derive its executory force from the deeds and 
 the affixing of the seal; if the notarial deed possesses executory 
 force and the effect of a mortgage at one and the same time, it is 
 a remarkable coincidence, and nothing more.^ For a long time no 
 special form was required for the formation of a mortgage; thus it 
 could be created by a deed under private seal ^ or a verbal agree- 
 ment.^ But from the sixteenth century on, the necessity of a 
 notarial deed was introduced as a consequence of the modi- 
 fications introduced in the theory of proofs; and out of what 
 was only a question of proof, the courts made a substantial ele- 
 ment and a necessity. A deed under private seal ^ was only effec- 
 
 ^ Viollet, p. 743, no. 1 (texts); Masuer, 18, 6; Brodeau on Louet, II, 15; 
 "Cout. de Paris," II, 201 (on Art. 107) ; L'Hommeau, 315: "The mortgage does 
 not arise from the agreement of the parties, but from the authority of the 
 king"; Botirdin on "Ord." of 1539, Art. 65: "obsigilH regii auctoritatem " ; 
 Pothier, no. 9; Valin,on "La Rochelle," III, 318, etc.; Floury, "Inst.," II, 11; 
 Davot, "Tr. de Dr. Fr.," VII, 573; Loysd, 504, note; Britz, p. 927. — Deeds 
 drawn up in the administrative form, especially leases of the property of the 
 State, imply a mortgage according to the law of Oct. 2S-Nov. 5, 1790, 2, 13 
 and 14. 
 
 2 This is the opinion held by Esmein, loc. cit.: Guyot, see "Hypoth.," 
 Denisart, ed. 1768, see "Hyp.," nos. 14 et seq.; Basnage, p. 110. 
 
 ' "A. C, Picardie," p. 90; Boutaric, I, 25, 106; "A. C, Bourges," 27; Beau- 
 manoir, 35, 3; G. Durand, "Specul.," II, 2, 298; "Gr. Cout.," p. 222; A. 
 Favre, "De Error pragm.," 6; Imbcrt, "Prat.," I, 69, 3; Esmein, p. 216; Viollet, 
 p. 742. (In the States General of 1614 the Third Estate asked that the mort- 
 gage should only be created by means of a notarial deed: "Rec. de Lalource," 
 XVI, 362); Nic. de Passeribus, "De Script, priv.," 1712, p. 99; "Encycl. mcth.," 
 see "H>T)-," V, 100. 
 
 < "Bret. A. C.," 192; "N. C.," 176 et seq.; Imbert, loc. cit.^ 
 
 ^ Danger of antedating in the case of deeds under private seal. It is 
 true that the deed under private seal acquired a settled date by means 
 of the counter register, but the mortgage has superseded this institution 
 (established in 1553, done away with in 1588, and re-established in 1693): 
 Viollet, p. 738. CJ. Dumoulin, on "Paris," 8, 1, 16. — The counter reg- 
 
 612
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 438 
 
 tive if it were acknowledged in court, and in this case it imported 
 the mortgage, according to a judicial decision which the Ordi- 
 nance of Villers-Cotterets, 1539, 91, 92, sanctioned. Proof by 
 means of witnesses was not admitted where sums of more than 
 one hundred livres were involved, after the passing of the Ordi- 
 nance of Moulins, 1566. Under these circumstances one can 
 understand that practice caused the mortgage to be formed 
 exclusively by means of the notarial deed.^ 
 
 As to these two views : it is quite certain that during the late 
 stages of our old law the power of execution and the mortgage 
 were to be distinguished from each other; execution was ob- 
 tained from the court, the mortgage depended upon the agree- 
 ment. But originally the mortgage was, if one may say so, only 
 a transposition of compulsory execution; it has the same source; 
 thus, a notarial deed which had been drawn up abroad could 
 not give a mortgage upon property situated in France, because 
 executory force was not attached thereto.^ Nevertheless the will 
 of the parties is established in a very exact way by virtue of a 
 deed of this nature; the same observation may be made with re- 
 gard to contracts drawn up before ecclesiastical notaries.^ One 
 is tempted to offer as an objection to this that judgments must 
 have carried with them a mortgage-lien, because they were fur- 
 nished with executory force, but that this judgment lien did not 
 always exist; it seems to date only from the Ordinance of Moulins. 
 This argument does not seem decisive to us; in fact, the judgment 
 imported from the first a general bond, — that is to say, the power 
 of carrying out execution against the debtor even upon his immov- 
 ables. When for the bond, properly so called, was substituted the 
 mortgage with the right of levy and of preference, they hesitated 
 to derive it from a judgment; it was necessary in order that it 
 should come into existence that the creditor should have been 
 given the seisin by the lord, and the judgment did not give the 
 seisin; it is only on the day when the system of " public nam " 
 
 ister continued to exist in Normandy: Perrin, "Orig. des Dr. d'Actes," 
 1901. 
 
 ^ The bond under seigniorial seal implied a mortgage throughout the king- 
 dom and could not have executory force outside of the lord's domain: Lauribre, 
 on "Paris," 164 et seq. 
 
 2 Civil Code, 2128. Nor did judgments rendered by foreign tribunals 
 result in a legal mortgage. As to their executory force, cf. "Ord." of 1629, Art. 
 121; UHommcau, 315; Guyot, op. cit.; Louet, II, 15. 
 
 ' Fleury, "Inst.," II, 11; Loysel, 496. It was the same with judgments of 
 ecclesiastical tribunals. 
 
 613
 
 § 438] OBLIGATIONS [Chap. Ill 
 
 had been abandoned by the Customary common law that the 
 judgment Hen was arrived at. 
 
 § 439. The Same: Every Notarial Deed Implies a General Mort- 
 gage. — The co-relation between the power of execution and the 
 mortgage naturally led to this result. Moreover, notaries inserted 
 in their deeds the clause by virtue of which the debtor bound all 
 his goods, owned in the present or to be owned in the future. This 
 clause became the rule, and from the sLxteenth century on it was 
 implied in every notarial deed.^ 
 
 § 440. The Same: Judgment Lien (Judicial Hypothec). Every 
 Judgment Implies a General Mortgage-Lien. — Formerly the 
 creditor who was armed with a judgment was similarly situated 
 to the man who had obtained a general bond. But, when this 
 bond became transformed into a mortgage with rights against 
 third persons and a lien, the judgment no longer produced it, as 
 we beheve, because the seigniorial giving of seisin was lacking; ^ 
 the only lien which the creditor was recognized as having by 
 virtue of a judicial sentence was that which resulted from priority 
 of actions.^ Nevertheless, there was something repugnant in not 
 giving a judgment as much effect as a notarial deed. They began 
 by giving a mortgage-lien to a deed under a private seal which 
 was acknowledged, or even proved, in court, as if it were acknowl- 
 edged before a notary.^ After which the Ordinance of Moulins, 
 1566, Art. 53, decided that the lien would result from the judg- 
 
 1 Esmein, p. 202; Loyseau, "Deguerp.," Ill, 1, 5; A. Favre, "De Err. 
 pragm.," I, 3. — Observe a confusion of the personal bond and the mortgage 
 that is due to the archaic conception of the bond: "T. A. C, Bret.," 367, 194; 
 Boutaric, I, 25: as soon as the man is bound the mortgage is placed. Cf. 
 the formula, "He who binds himself binds what is his." 
 
 2 Also the legal mortgage was introduced with difficulty into the countries 
 of pubUc nams: Louet, II, 25; Regulating Order of July 29, 1623; "Reims," 
 180; Ferriere, see "Hyp." Cf. Britz, luc. cit. 
 
 3 Beaumanoir, 34, 52; "Gr. Gout.," p. 203; "T. A. G., Bret.," 306; D'Argentr^, 
 on "Bret., A. G.," 188. There was a disagreement as to the fact upon which 
 depended the priority of actions : was it the demand of payment or was it the 
 judgment of condemnation or the execution of the sentence (distraint)? The 
 placing of property under the protection of the law should have been decisive 
 ("Gout. Not.," 5; cf. Britz, loc. cit.); but during the interval between the sen- 
 tence and the distraint there was the chance that the debtor might dispose of 
 his property in fraud of the rights of the creditor. Furthermore, the prefer- 
 ence which was given the most diligent one had scarcely any reason for existing 
 in equity. After the "Ord." of 1666, Lemaistre, "Griees," 32, still maintains 
 that preference should be admitted: Imbert, "Prat.," ed. 1625, p. 346. — "Siete 
 Part.," 5, 13, 13: the "pignus judiciale" is only effective through delivery, thus 
 differing from the "pignus" made by agreement. 
 
 ^ "A. G., Paris," 78 (voluntary recognizance) ; "Ord." of Villers-Gotterets, 
 1539, 92, 93 (recognizance or verification); "N. G., Paris," 107 (mortgage of 
 the day of denial); Imbert, p. 378. Cf., however, Favre, "De Err. pragm.," 
 I, 2; Pothier, no. 11; Givil Gode, 2123; Planiol, "Dr. Giv.," II, 849. 
 
 614
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 441 
 
 ment itself. This solution was justified by saying that, according 
 to the terms of the Roman laws, the judgment was a quasi- 
 contract between the pleaders; reference was made to the insti- 
 tutions of the "pignus prsetorium" and the "pignus ex causa 
 judicati captum"; it was also argued that this would insure the 
 carrying out of judgments.^ In one sense we may say that the 
 judgment-lien is derived from the mortgage-lien which was con- 
 nected with notarial deeds; in another sense, it seems that it 
 also had its origin in the lien of the first one to distrain, which 
 disappeared with relation to immovables, being absorbed to a 
 certain extent by the judgment-lien.^ 
 
 §441. Implied Liens (Hypothecs). — The old law borrowed 
 from the Roman legislation the principal cases of implied hypo- 
 thecs; ^ certain of them which were given the right of preference 
 have become our liens on immovables.^ Although general and 
 
 ^ Judgment-lien in the Italian practice in criminal matters in the four- 
 teenth century. It was the same in France, Edict of 1553, 17; " T. A. C, Bret.," 
 307; Esmein, p. 226. Cf. Imbert, p. 378 (consequently, in civil matters it is 
 reasonable that such a lien should also come into existence at the time of 
 the contest or of the judgment ; this note written before the " Ord." of 1566 proves 
 that the judgment-lien did not yet exist in civil matters). Ferriere, see "Hyp." : 
 formerly the judgment only implied a lien from the time of the execu- 
 tion and putting in possession; after the Ord. of Mouhns it comes into existence 
 the day the judgment is pronounced. 
 
 2 There is a great deal of discussion as to the worth of the judgment-lien 
 in the existing law {cf. the Belgian system, Prussian system, etc., in Planiol, 
 "Dr. Civil," II, 848), but it is unanimously recognized that the framersof the 
 Civil Code were lacking in logic when they attached a mortgage to private 
 deeds acknowledged at law, while at the same time they did not admit the 
 old mortgage arising from notarial deeds. 
 
 ^ Some are general, others are special or limited to certain property. The 
 majority of them have been borrowed from the Roman law. Lien of the 
 wife over the possessions of her husband, of the minor or of the man deprived 
 of civil rights over those of the guardian or the custodian, of communities, 
 etc., over the possessions of their assignees or administrators (Civil Code, 
 2121), of the treasurer over the possessions of his debtors (liable for taxes, 
 contract debtors and accountable agents: "Cout. Not.," 131; Desmares, 191, 
 etc.; cf. Law of Sept. 5, 1807, privilege of the treasury, etc.), of the vendor 
 over the property sold, of the coparcener, of the architect (liens. Civil 
 Code, 2103), and of a legatee (Civil Code, 1017). — There is already some 
 question of them in the texts of the fourteenth century: "Montpellier," 12; 
 "Cout. Not.," 20, 62; Desmares, 94, etc.; "Gr. Cout.," 2, 17. — In the case of 
 the Sale for a Term of immovables, Ferriere, on "Paris," II, 1331, remarks 
 that jurisprudence changed in 1628; the Romanists maintained that by giving 
 credit the vendor renounced every right over the land sold unless a special 
 agreement were made to the contrar}'; this agreement, which became very 
 common, must in the end have been implied: "Cout. Not.," 141, 159; Pasquier, 
 " Inst.," p. 256. In 1207, in the South, the vendor's " obligatio " on lands sold to 
 cover the unpaid purchase price: Pasquier, "Doc. rel.k la' Seign. de Boussagues," 
 p. 59 (1901). 
 
 * As to Liens in general, see Ferriere, Gmjot; Pothier, 26; Domat, 3, 1, 
 5; "Code civ. interm." At Rome lions assumed a competition between 
 contract creditors (Dig., 42, 5, 32: " privilegia ... ex causa)." Our old 
 
 615
 
 § 441] OBLIGATIONS [Cuap. Ill 
 
 secret, implied liens were admitted in countries of public nam, 
 where their validity w^as not subjected to any formalities.^ 
 
 § 442. Consequences of the Mortgage. — These are ordinarily 
 reduced to three: the right to realize by a sale, the right against 
 third persons taking under the debtor, and the right of lien against 
 other creditors. — (A) In default of payment the mortgage creditor 
 does not acquire the ownership of the land mortgaged ; as a general 
 rule, he does not even sell it through a friendly transaction ;2 he 
 finds himself under the necessity of having a land distraint or judi- 
 cial sale carried out just as though he were a creditor by simple 
 contract. Under this early form of the bond, the mortgage only 
 conferred upon him, in fact, the right to distrain, and the prac- 
 tices of the expropriation of the pledge or the friendly sale did not 
 offer sufficient securities for the debtor. Thenceforth the debtor's 
 surrender of the immovable loses its usefulness; the third party in 
 possession may surrender in order to escape from the annoyance of 
 the procedure to remove encumbrances.^ — (B) When the creditor 
 proceeds against a third party in possession, the latter can ordi- 
 narily set up the plea of seizure and sale against the creditor, — 
 that is to say, he can oblige the creditor to distrain and to sell 
 the possessions of the debtor. But, as during the delays neces- 
 sary for this operation the mortgage may be barred by prescrip- 
 tion, he is allowed to sue on a "declaration of mortgage," 
 so as to stop the running of the prescription. The latter takes 
 
 authors, when they borrowed from the Roman law the majority of its reasons 
 for preference, qualified them as liens without concerning themselves as 
 to the basis of these preferences: "A. C, Anjou," II, 514; "Toulouse," 
 111; "Siete Part.," 5, 13. (C/. liens of the EngUsh law.) They distinguished 
 between: (a) special hens over immovables, true privileged mortgages; 
 Pothier, no. 33; "Proc. Civ.," no. 648; (6) special liens over movables 
 based upon the idea of an expressed or implied pledge; the right of Detainer 
 may be likened to them ("Ord." of 1539, 97; 1566, 52; 1667, 27, 9), although 
 the Roman traces of the defense of fraud here prevented the formation of 
 a very clearly defined theory ("N. R. H.," 1884, 351); (c) general hens 
 bearing at one and the same time upon movables and immovables (costs, 
 funeral expenses, salaries, claims of the treasurer) ; they depended upon the 
 nature of the claim. Cf. Planiol, "Dr. civ.," II, 753 et seq. 
 
 1 Loysel, 498. 
 
 ^ The early relinquishment released the debtor just as giving up released 
 the copyholder. Cf. exceptional cases in which the old law was kept up: 
 Argou, 4, 3. Clause of avoidance: Stohbe, II, 311. English mortgage: 1st. 
 The creditor keeps the property bound by means of an action of foreclosure; 
 2d. The tribunal may, if it prefers, order the sale of the property; 3d. The 
 creditor may be authorized by a clause in the deed to sell the property hiniself 
 without further formahty. In all cases the intervention of the law is required 
 in order that the creditor may keep the property: "Once a mortgage, always 
 a mortgage." 
 ' _ 3 Ferrihe, see "Hyp."; Bntz, p. 953. Cf. Kohler, "Pfandr. Forsch.," p. 22. 
 
 C16
 
 Topic S] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 443 
 
 place at a period of from ten to twenty years for the benefit of 
 the third party in possession. — (C) Between mortgage creditors 
 preference is regulated according to the date of the mortgages: 
 The first come first (excepting for special liens) .^ The transfer 
 of claims or payment with subrogation can give a third party 
 the rights of the original creditor.^ It may also happen that his 
 own mortgage is encumbered with other mortgages, and this fre- 
 quently takes place with a system of general mortgages like that 
 of the old law; the rank then becomes complicated with sub- 
 ranks, that is to say, that the sum for which the creditor has been 
 marshaled is distributed between his own creditors according to 
 the date of their mortgages.^ 
 
 § 443. " Clearance." — IMost lands were encumbered wath 
 mortgages, because every notarial deed implied a general mort- 
 gage over the possessions of the debtor, and, as there was nothing 
 which told of its existence, the most careful purchaser ran the risk 
 of finding himself evicted by a mortgage creditor who was unknown 
 even to the vendor; and this might happen after a long period. 
 Under these circumstances dealings in immovables became al- 
 most impossible. The evil was remedied by the clearance, or power 
 of the purchaser of a piece of property which had been mortgaged 
 to free it from the mortgages which encumbered it by paying the 
 purchase price to the creditors, after having put them in default 
 by giving them notice; this was done by means of certain formal- 
 ities, and foreclosed them if they did not present their claims at 
 this specified time. They were reimbursed in spite of themselves, 
 but general expediency required this sacrifice on the part of pri- 
 vate interests. This clearance was invented by the practitioners. 
 Having found that the compulsory decree cleared oft' the mort- 
 gages, they contrived a feigned proceeding of distraint in order 
 to obtain this same result: the purchaser had an understanding 
 with a third party, who presented himself as a creditor and dis- 
 possessed him from the land which he had purchased. This re- 
 sulted in the voluntary decree, so called because the parties both 
 
 ^ Roman rule: "Prior tempore potior jure"; Loysel, 492, 686. The same in 
 English law (excepting "soudure" or con.soli{lation of mortgages). 
 
 * As to subrogation except in the case of the married woman's mortgage, 
 cf. Beiulant, "R. crit.," XXVIII, ;30. 
 
 ' The sub-ranks were abolished because of the expenses and the delays to 
 which they gave rise (Code of Civil Procedure, 775), but if a mortgaging of 
 the mortgage is no longer admitted in our law, practice has introduced assign- 
 ments or subrogations of mortgages which have pretty nearly the same re.suit 
 with this slight difference, that they do not give rise to the proceedings of 
 sub-orders. 
 
 617
 
 § 443] OBLIGATIONS [Chap. Ill 
 
 agreed to obtain it.^ The procedure there employed did not differ 
 from that of the compulsory decree (excepting in what concerned 
 the judicial lease, which obviously did not apply) ; it produced the 
 same effects. But it was only at the price of excessive delays and 
 great expense that the clearance was arrived at in this roundabout 
 way. Once the institution had been accepted, the interminable 
 preliminaries of land distraint were gotten rid of, and in their 
 place was substituted the more simple procedure of letters of rati- 
 fication.2 The Edict of June, 1771, which regulated this pro- 
 cedure, gave the purchaser a means of causing the expiration of 
 the mortgages by obtaining from the Chancery letters which rati- 
 fied the purchase; the creditors who thought that the price was 
 lower than the value of the property were given an opportunity 
 to offer opposition by means of certain formalities and to outbid 
 this price; if this were not done, the letters were delivered, and then 
 their mortgages were cleared off.^ It is this Edict of 1771 wliich 
 created the "conservators of mortgages," whose duty it was to 
 hear these objections.'* 
 
 § 444. Revolutionary Law. — There are two principal defects for 
 which the system of mortgages of the old law may be reproached: 
 the secret character of the mortgage, and the great number of 
 general mortgages. Colbert, in an Edict of March, 1673, which 
 was repealed almost as soon as it was passed (April, 1674) at- 
 tempted to introduce publicity, — that is to say, light, into the 
 chaos which the old system of security on real property presented. 
 The nobility, fearing to lose its prestige, was opposed to this use- 
 ful reform; families did not, any more than the State, wish to have 
 their income and expenses known.^ That which royalty had not 
 
 1 "Ord." of November, 1441 {Isambert, IV, 86): clearing off of rents on 
 houses in Paris. 
 
 ^ Origin (see Ferriere) : rents on the Hotel de Ville in Paris could be mort- 
 gaged; he who bought them paid them off first of all by means of a forced decree 
 and by virtue of an Edict of March, 1673, by obtaining letters of ratification 
 under the Great Seal (that is to say, from the Chancery, and not from the 
 Parliament). 
 
 3 As to the procedure, cf. Civil Code, 2193 et seq.; Law of the 11th Brum., 
 year VII. 
 
 * Bibl. in Camus, No. 1665; Commentaries or Questions upon the Edict: 
 Masuer, "Obs.," 1779; Brohard, 1780; Grenier, 1787; R., 1785; Corail de 
 Ste.-Foy, 1785. 
 
 6 Previous to this, cf. Ord. of 1424 of Henry VI {Isambert, VIII, 693, Art. 6), 
 Edicts of 1553, 1581, 1606 (fiscal measures). CJ. The Edict of August, 1626, 
 with regard to Brittany: Girard de Joly, "Offices," I, 212 (registration clerks). 
 The "Ord." of 1673 created in the principal bailiwicks a registry office where 
 creditors should make themselves known by bringing forward claims; per- 
 sons setting up claims were preferred to those who did not do so. 
 
 618
 
 Topic 8] EXECUTION UPON POSSESSIONS, REAL SECURITIES [§ 444 
 
 had the courage to do, the Revolution found itself under the 
 necessity of carrying out as a consequence of the disturbance of 
 business caused by political events.^ By means of two celebrated 
 laws it attempted to establish a rational system of mortgages. 
 The first, and the most original, the Law of the 9th Messidor, 
 year III, allowed the owner of a piece of land to take a mortgage 
 on himself, for ten years at the most, and up to the amount of 
 three-quarters of the merchantable value of the land; the deed 
 drawn up by the conservator of mortgages was called an ac- 
 knowledgment of mortgage; this could be transmitted by way of 
 endorsement and constituted an executory title for the benefit 
 of the bearer. This law remained a dead letter.^ The Law of the 
 11th Brimiaire, yearVII, did away with this institution, the prime 
 feature of which sprang from the theory of rent-charge and the 
 custom of "assignats" which was so greatly condemned.^ It gave 
 as the bases of security on real property the two principles of pub- 
 licity and specialty. The publicity took place, not by the copying 
 of the deed, as in the case of the transfer of ownership, but by 
 the entry upon a public register. The entry, which was necessary 
 for every mortgage without any exception, had to be specific with 
 relation to the debt and specific with relation to the immovable 
 which was mortgaged, — that is to say, it had to indicate in a 
 precise manner the amount of the debt and it had to specify the 
 immovable, so that the real credit of the owner could be exactly cal- 
 culated. The Civil Code made the mistake of not strictly uphold- 
 ing the logical unity of this system, so much so that during the 
 entire nineteenth century it has been necessary to contemplate 
 a recasting of the title on Liens and Mortgages; this was only 
 partially realized by the Law of March 23, 1855. — Abroad, the 
 very best result has come from the German system of mortgages,* 
 
 * As to the cadastral survey, cf. Declaration of Nov. 23, 1765: Bequet, 
 "R/'p. de Dr. adm."; see "Gr. Encycl." In our own time there has been 
 some thought of making use of the cadastral survey, not only for the laying 
 of taxes, but for the strengthening of ownership {cf. Flammer, Besson, op. cit.). 
 The Convention had contemplated creating a Great Book of territorial owner- 
 ship: Declaration of the 8th Pluv., year II (not carried out). 
 
 * Prorogued by the Laws of the 26th Frim., 19th Vent., 19th Prair., 24th 
 Therm., year IV; finally suspended by the Law of the 28th Vend., year V. — 
 "Codes Tripier," cd. Monnier, under Art. 2124 of the Civil Code, see a model 
 for an acknowledgment of mortgage. 
 
 * One read, for example, on an assignment: "Assignment for 50 livres. 
 Mortgage on the national domains." — As to rents and the mortgage, cf. 
 Heusler, II, 151; Stohhe, § 104. 
 
 * Sohm, op. cit.; Viollet, p. 747 (bibl.); Huher, § 157; Besson, "Livres fon- 
 ciers," 1891. — Cf. pledge letters of credit on land in France. 
 
 619
 
 § 444] OBLIGATIONS [Chap. Ill 
 
 with its principle of legality; its conservator, who is a true 
 judge, and who passes upon the declarations which are made 
 to him; its land registers ("Grundbiicher") kept by parcels, and 
 not, as ours are, by names of persons; its letters or acknowledg- 
 ments of mortgages; its notes on real property; and its nego- 
 tiable drafts on real property, which are like commercial goods. 
 It had its origin in the "neue Satzung," and in the theory of 
 rent-charges; in various ways it recalls the Law of Messidor, 
 year III.^ 
 
 » Law of May 5, 1872; German Civil Code, 1113. 
 
 620
 
 Topic l] 
 
 GENERAL IDEAS 
 
 [§445 
 
 CHAPTER FOUR 
 INTESTATE SUCCESSION AND GRATUITOUS CONVEYANCES 
 
 Topic 1. General Ideas. 
 
 Topic 2. Intestate Succession. Various Kinds of Heirs. 
 
 Topic 3. Acquisition of Heirship and its Consequences. 
 
 Topic 4. Testamentary Provisions. 
 
 Topic 5. Gifts "inter vivos" and "causa mortis." 
 
 Topic 6. Coven.^nts Relating to Inheritance. 
 
 Topic 7. Reservation and Legal Sil\re. 
 
 Topic 1. General Ideas 
 
 445. Preference for Intestate Suc- 
 
 cession. 
 
 446. Various Kinds of Succession. 
 
 447. Plurality of Successions. 
 
 § 448. Countries of Written Law. 
 § 449. Reservation and Legal Share. 
 § 450. Gratuitous Conveyances. 
 
 § 445. Preference for Intestate Succession. — Intestate succes- 
 sion was the only one known to the old Germanic law, and if 
 the will has come to take a place beside it, it has not ceased 
 throughout the Middle Ages, and even until "our day, to have a 
 certain superiority over the will. This Germanic trait had struck 
 Tacitus ("Germ.," 20) by its contrast to the Roman habits; at 
 Rome no honorable citizen dies without having made his will. In 
 Germania the free man has no conception of this act. The formu- 
 lae of the Middle Ages, "The appointment of an heir cannot be 
 done," and "Deus solus heredes facere potest," attack the Roman 
 principles scarcely less, because the will in Rome is before every- 
 thing else a means of creating heirs for oneself. Whence comes 
 this lack of wills in the Germanic custom, and in the later law the 
 disfavor for an act which is so natural in our eyes? It is because it 
 was incompatible with the old ideas of family joint ownership, 
 and of the preservation of possessions in the family. The will 
 substitutes the wish, or even the caprice, of the individual for the 
 traditional usage, and the shortsightedness of a man for the wis- 
 dom of generations. By choosing his successor to please his fancy 
 
 621
 
 § 445] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 the head of the family runs the risk of upsetting the forxiiation of 
 this group, which existed before him, and whose stabiHty in the 
 primitive social state is a question of life and death for the indi- 
 viduals who go to make it up. Privileges, such as the preference 
 of males, and, to a lesser degree, the right of primogeniture, have 
 their "raison d'etre" in the superior interest of the group. 
 
 § 446. Various Kinds of Succession. — Succession under its 
 primitive form is limited to that narrow circle of persons who 
 constitute a household, to those relatives who have lived with the 
 deceased under the same roof, at the same table, and who can be 
 likened to the Roman "sui heredes." If there were not any of 
 these, the possessions of the deceased returned originally perhaps 
 to the community of the village ("vicini"); following this, to the 
 relatives w^ho did not live in a state of community with the de- 
 ceased, to the lineage, to the "Sippe"; in this case they devolved 
 not exactly by taking into account the nearness of the relation- 
 ship, but by way of consanguinity. By this is understood groups 
 of relatives who have a common ancestor. Thus the deceased and 
 his descendants form a first degree of consanguinity; the father of 
 the deceased, and all those who descended from him (consequently, 
 the brothers of the deceased, etc.), a second degree; the grand- 
 father and his posterity, a third degree; and so on and so forth. 
 To relationship through the males (or agnatic) was contrasted re- 
 lationship through the women (or cognatic); under the system 
 which excluded women from inheriting, the mother did not trans- 
 mit anything to her son, and the maternal relatives or cognates 
 could not set up any claim to the succession of the latter. From the 
 day when women inherited it was possible to distinguish in the 
 patrimony of every decedent between two masses, — the mass of 
 possessions coming from the father or from the paternal line, and 
 the mass of possessions coming from the mother or from the ma- 
 ternal line. The majority of the Customs practised what is called 
 " division " in the succession of the deceased, and conferred the pater- 
 nal possessions on his paternal relatives and the maternal possessions 
 on his maternal relatives, "paterna paternis, materna maternis." 
 Some of them went even further and proceeded to a redivision in 
 each one of the successions which were thus established; for ex- 
 ample, the paternal possessions were subdivided among the paternal 
 relatives and the maternal relatives of the father of the deceased. 
 
 § 447. Plurality of Successions. — The old law, as we have 
 seen, sought for the origin of possessions in order to regulate their 
 
 622
 
 Topic l] GENERAL IDEAS [§ 448 
 
 devolution by way of inheritance; it also depended upon their 
 character in such a way that each category of possessions gave 
 rise to a distinct succession; at the death of a person his patri- 
 mony was disintegrated, and each fragment followed its own law: 
 fiefs, copyholds, servile tenures, allodial tenures, movables and 
 immovables, personal belongings and acquests, homestead ("lar" 
 in the Pyrenees or "Hantgemal" in Germany), clothing and orna- 
 ments of the women ("rhedo" in the barbarian laws, "Gerade" 
 in the German law), arms and military equipment ("Heergewate," 
 German). All these possessions had their particular destination 
 and were subject to rules which conformed with it. The unity of 
 the patrimony and the perpetuity of the person of the deceased 
 by the heir, — these fundamental principles of the Roman system 
 of succession were with great difficulty introduced into our old 
 legislation; and, moreover, they were never entirely admitted; 
 the possessions of noble families had always their own special sys- 
 tem, even in the countries of written law; and in the countries of 
 Customs, besides this, the succession of personal belongings is con- 
 trasted with that of acquests and movables. Loysel could still say 
 while alluding to the Roman distinction between the "pagani" and 
 the "milites," "The French, like warriors, have received various 
 patrimonies and various sorts of heirs from the same person." 
 
 § 448. Countries of Written Law. — Apart from the exception 
 which we have mentioned with relation to the possessions of the 
 nobility, community of succession is the rule in countries of writ- 
 ten law, and possessions devolve upon the relatives in conformity 
 with the probable intention of the deceased. It is the nearest 
 relative who receives them on principle, because it is he for whom 
 the deceased had the most lively affection. Privileges in the in- 
 terest of the family were effaced because of this new consideration. 
 The very simple system which was organized by Justinian in the 
 celebrated "Novella," 118, is applied. In countries of Customs 
 the tendency to follow the principle of presumed affection 
 makes itself felt only in the case of succession to movables and 
 acquests. As far as the other possessions are concerned, which 
 are often the most important of all, the guiding principle is the 
 keeping of property in the family. The Revolutionary legislation 
 unified the system of successions by establishing the equality of all 
 possessions and the equality of persons; distinct masses were no 
 longer separated according to their nature and their origin; they 
 were all made alike, and privileges such as the right of primo- 
 
 623
 
 § 448] INTESTATE SUCCESSION, GIL^TUITOUS CONVEYANCES [Chap. IV 
 
 geniture or the right of the male Une were aboHshed. However, 
 one can say that the system of succession under the Revolution 
 was frankly individualistic; the traditional right of the family is 
 shown in the classification of heirs and in the tremendous restric- 
 tions upon the right of making gratuitous conveyances. 
 
 § 449. Reservation and Legal Share. — The right of the rela- 
 tives over the family possessions is not only shown by the power to 
 collect them by means of intestate succession, that is to say, after 
 the death of their actual owner; it is also shown during the lifetime 
 of the latter. Thus, certain barbarian laws recognized the parti- 
 tion of the community inheritance between the father and the 
 children during their lifetime, — a partition a curious example of 
 which is furnished by the parable of the prodigal son. Another 
 application of this is found in the giving up of possessions of which 
 the German "Evelganc" seems to be a very old form, and which 
 the Civil Code has disguised under the name of " partition among 
 ascendants." The family communities, or " Ganerbschaften," 
 the carrying on of the conjugal community between the surviving 
 spouse and the children born of the marriage, the rights of the 
 children over the dower of their mother, and entails in trust, also 
 bear witness in various ways to the power of the old idea with 
 relation to the formation of the family. But it is especially in the 
 institution of the repurchase by a person of the same lineage and 
 the hereditary reservation, which are so widespread, that the rights 
 of the relatives come to light. By these means the possessions of 
 the family become almost incapable of being disposed of to the 
 advantage of the family. The Roman legal share, which took its 
 place alongside of the reservation in countries of Customs, and 
 which alone obtained in countries of written law, has an entirely 
 different object; it is established "by reason of compassion," it is 
 a kind of provision for support left to the very near relatives. 
 
 § 450. Gratuitous Conveyances. — In the old Germanic law 
 adoption was undoubtedly the only means at the disposal of 
 individuals for transmitting their patrimony at their decease to 
 people other than their relatives; nevertheless, it was possible only 
 for a person who had no posterity to do this. From this arose 
 the appointment of an heir in the Salic Law, which was already no 
 longer an adoption, but which produced analogous results. It 
 seems as though it had been supplanted by "donationes post 
 obitum," which were very frequent after the seventh century, 
 especially in favor of the Church. To these institutions are re- 
 
 624
 
 Topic l] GENERAL IDEAS [§ 450 
 
 lated the covenants on a future succession of the feudal and cus- 
 tomary periods. They operate especially in contracts of marriage, 
 where they have served until our day to facilitate family arrange- 
 ments. Everj'where else the \\'ill has replaced them. It came into 
 practice under cover of and in order to assist religious ideas. The 
 archaic "share of the dead" of pagan times, consisting of horses 
 and arms, which were closed up in his tomb, or were cre- 
 mated with him, has its counterpart in the disposals " pro remedio 
 animse" of the Christian period. These pious legacies or charges 
 of a religious character constituted at first the entire will. As 
 it was to be feared that the natural heirs would not show a very 
 great zeal in carrying out the last wishes of the dead, because these 
 wishes would result in depriving the heirs of the property on which 
 they had counted, the execution of these wishes was confided to 
 third parties who were disinterested, "erogatores," "eleemosy- 
 narii," and, finally, to testamentary executors, in whom are ordi- 
 narily seen the successors of the intermediaries who were charged 
 with a similar role in the appointing of an heir. The Roman will 
 marks the last stage of evolution; it includes disposals of every 
 kind, and charges "pro remedio animae" have lost a good deal of 
 their importance. One can say that this act, which was formerly 
 entirely religious, tends to become secularized. But, although the 
 use of the will was widespread, the legatee could not be compared 
 with the heir at law, — at least, in countries of Customary law: 
 the former was only a legatee, a successor to the property, whereas 
 the latter perpetuated the person of the deceased. These formu- 
 lae are significant in spite of their exaggeration. They help us in 
 understanding the small degree of favor which the right of disposal 
 by will met with in the Revolutionary legislation, and certain super- 
 annuated provisions of the Civil Code have no other derivation. 
 This did not prevent the theorists of natural law, such as Grotius, 
 following the example of the Romans, from looking upon an in- 
 testate succession as the will of a person who had not made one. 
 On this point, as on a multitude of others, they took the opposite 
 view from the historic truth.^ 
 
 ^ Variations and controversies abound in the history of the law of succession; 
 the work of criticism is not yet sufficiently far advanced for one to be able to 
 trace its design from the origin up to our time in exact and certain character- 
 istics. We are not attempting to conceal from ourselves either the imper- 
 fections or the gaps in the outline which we here give. One will onlj' too often 
 find in it the reflection of the uncertainties that are presented by the origin 
 of the family and that of ownership; for the system of succession has especially 
 depended upon the formation of the family and the organization of ownership. 
 
 625
 
 § 451] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 Topic 2. Intestate Succession. Various Kinds of Heirs 
 
 § 451. The House and the Lineage. 
 
 § 452. (I) The House. 
 
 § 453. (A) Privilege of the Male Line. 
 
 § 454. (B) The Right of Primogeni- 
 ture. 
 
 § 455. Lack of Representation. 
 
 § 456. (II) Lineage (Ascendants and 
 Collaterals) . 
 
 § 457. Succession to Personal Be- 
 longings. 
 
 § 458. Ascendants. 
 
 §459. Collaterals. 
 
 §460. The Same.— (A) Nearest in 
 
 § 461. The Same. — (B) Privilege of 
 the Double Tie. 
 
 § 462. The Same. — (C) Representa- 
 tion. 
 
 § 463. The Same. — (D) Devolution. 
 
 § 464. The Surviving Spouse. — (A) 
 Countries of Written Law. 
 
 § 465. The Same. — (B) Countries of 
 Customs. 
 
 § 466. Irregular Successions. 
 
 § 467. The Revolutionary Law. 
 
 § 451. The House and the Lineage.^ — The French law in its 
 last stages distinguishes between three kinds of heirs : descendants, 
 ascendants, and collaterals. If these are all lacking, then the in- 
 heritance passes to the surviving spouse and to the Treasury. But 
 this classification of heirs-at-law is borrowed from the Roman law; 
 it does not conform with the old Customary law and with the law 
 of the barbarian period. As to this archaic legislation, in which 
 the idea of presumed affection plays no part, one can say that 
 the right of inheriting belongs: 1st. Primarily, to those who form 
 a part of the same family community, that is to say, as a general 
 rule, only to the descendants of the deceased (heirs of the body) 
 upon the condition that they live with him.^ 2d. Secondarily, to 
 
 1 Cf. Beaumanoir, "Assises," etc.: (a) descent in the direct line; (6) escheat 
 in the collateral line: "Const. Chat.," p. 43; Du Cange, see "Escaeta"; Pol- 
 lock and Maitland, I, 332. 
 
 2 To the family community belohg above all others sons and daughters 
 and generally descendants of the head of the house; but it may also include 
 his mother, his wife, his sisters, sometimes even the sisters of his father or 
 those of his mother; the presence of brothers or uncles in it is rare, for most 
 of the time they leave the paternal house in order to establish themselves 
 elsewhere. The group of women occupies a peculiar position. As to male 
 descendants, they may be qualified as " sui heredes " in the Roman sense; in 
 fact, they derive their right of succeeding less from their quality of relatives 
 than from that of being members of the community. This is so true that they 
 no longer inherit if they have been emancipated or expelled from the house, 
 "foris familiati"; that certain legislations call the brothers of the deceased to 
 the inheritance to the exclusion of his sons, — no doubt because these brothers 
 belonged, at least in the old times, to the same household and occupied because 
 of their age a higher position (Ottomans, Irish "tanistry"; post, "Represen- 
 tation"); again, this is so true that in certain legal systems, — for example, 
 among the " Burgundians," 1, 24, 51 {cf. India, Hungary: "N. R. H.," Ill, 445; 
 parable of the Prodigal Son), the sons have a right to demand partition of the 
 family patrimony during the lifetime of their father: Schroeder, pp. 324, 326. 
 
 626
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 452 
 
 his lineage, that is to say, to his ascendants and collaterals,^ to 
 those who form a part of the same league organized for mutual 
 defense, but who do not live in the same house.^ Such is the ordi- 
 nary system of succession according to the Germanic and Custom- 
 ary law.^ But its application was often impeded by the feudal 
 theories. Thus, the succession to fiefs was not freely admitted 
 from the very beginning; it was only with difficulty that descend- 
 ants (other than sons) or collaterals were allowed to partake of 
 it; ^ the wishes of the lord imposed special rules upon it. In case 
 of lands in servile tenure, mortmain was for a long time a great 
 obstacle to the right of the family. This right was not finally 
 exercised with its full freedom excepting over villein tenures; 
 moreover, some exceptions must be made to this.^ 
 
 § 452. (I) The House. — The (lawful) Descendants^ of the deceased 
 inherited in preference to all other relatives. The family of which 
 he was the head was perpetuated by them, sometimes by forming 
 a more extended community with more members, sometimes by 
 being divided up into colonies surrounding the homestead, w^hich 
 was ordinarily given to the eldest son.^ Equality between de- 
 scendants of all ages and of both sexes, — such could be the formula 
 
 ^ It is not without difficulty that the Hneage has come to be preferred to 
 the "vicini" or to the treasurer: Edict of Chilperic, "Fris.," 19, 2; Schroeder, 
 p. 324; Ficker, II, 375; Geffcken, p. 270. 
 
 2 C/. the part played by the family in private vengeance, or the payment of 
 the "Wergeld" and its rights in matters of succession: i/ewsZer, II, 522; Brunner, 
 "Sippe u. Werg. Add."; Gierke, "Genossenschaftsr.," I and II. 
 
 ^ Right of succession of the barbarian period: "Sal.," 59 and "Cap. extr.," 
 7; "Rib.," 56; "Fr. Cham.," 42; "Alam.," 57, 95; "Fris.," 19; "Sax.," 41 
 et seq.; "Thur.," 26-34; "Burg.," 14; 24; 51; 53; 75; 78; "Roth.," 158, 181, 
 etc.; "Liut.," I, 65; "Roth.," 153; "Qusest. et Monita," § 4 (SaHc Law) and 
 § 31 (Lombard Law) ; "Tract, de Ord. Success, ab int. sec. Jus. Langobard." 
 ("M.G. H., L. L.," IV, 605). 
 
 * The Constitution of Conrad II, 1037, for Italy, which was the point of 
 departure for the theories of succession of the "L. Feudorum," secured the 
 fief to the posterity of the vassal: Heuslcr, II, 613. 
 
 ^ Details in the Commentaries on the "Libri Feudorum." Numerous 
 treatises on feudal law, cf. Camus and Dripin, "Tract, jur. univ.," X; Struve, 
 Rosenthal, Goetzman, Lilnig, etc.; Pfiser, "Lehensfolge," 1818; Michaelis, 
 "De Ord. succed.," 1818; Homeyer, "Sachsensp.," II, 2, 444; Heusler, II, 
 610; Stobbe, § 315; Fertile, § 131; Brunneck, "Z. Gesch. d. Grundeig. i. Preus- 
 sen," 1895; "Z. S. S., G. A.," 1898, 210; Pollock and Maitland, I, 228; Glasson, 
 VII, 463. 
 
 ^ See Chapter I, Topic XI, § 169 ante. See especially Lombard and Wisi- 
 gothic laws; PertUe, 4, 65 (Italy); Dahn, "Westg. St.," 131; Stobbe, § 295; 
 Schroeder, 302. Succession to estates of intestate bastards, cf. Beaumanoir, 18; 
 "Glossaires" and "Repertoires" ; Loysel, see Table. Treatises upon the 
 Domain, etc.: Viollet, 844 (the mother's succession: "Cout. loc. d'Arras," 
 1744, p. 196, etc.); Britz, 687; Kovalewsky, p. 219; Chaiseirmrtin, p. 413 
 ("ebcnburtig"); Thevenin, "Textcs," no. 35a; "Siete Part.," Table, see 
 "Spurius." 
 
 7 Cf. the "stock-family" of Lavedan: "N. R. H.," 1900, 601. 
 
 027
 
 § 452] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 of modem law, which was in harmony with the foundation of the 
 modern system of inheritance and with the idea of the presumed 
 affection of the deceased. The old law is, on the contrary, a sys- 
 tem of inequalities and privileges, which are not arbitrary, as is 
 sometimes said, but which are necessary because of the superior 
 interest of the family. The principal ones are, (A) privilege of the 
 male line, (B) right of primogeniture, and (C) exclusion of the 
 grandsons (all of which were done away with by the Revolution). 
 § 453. (A) Privilege of the Male Line. — In an age of violence 
 like the barbarian period, the physical weakness of women had the 
 consequence of making them incapable of inheriting; to inherit 
 was a privilege (if one can call a privilege the right to pay with 
 one's blood), for those who fought and who alone were fit, with 
 the lance or the sword, to protect the property of the family.^ If 
 women, when they married, passed into another family, they 
 could not take with them any portion of the paternal patrimony, 
 and, as the ties which united them to their natural family were 
 broken, their descendants found that they had no more rights 
 than these women. — Such must have been the old Germanic law, 
 at least under the system of the patriarchal family.^ Tacitus 
 does not mention the succession of women. Certain barbarian 
 laws, like the one called that of the Chamavian Franks, 42, and 
 the Law of the Thuringians, 6, refused to give the daughters any 
 right over the land as well as over the domestic animals and the 
 slaves which should naturally have belonged to them; their broth- 
 ers excluded them, — even, according to this latter law, the family 
 relatives to the fifth degree. After this degree was passed the in- 
 heritance fell into the female line.^ Women were left, as though 
 by a kindness, their clothing and their ornaments, which could not 
 be of any use to the men ("rhedo," "gerade").'^ If there were no 
 
 ' Cf. other persons under a disability, — the infirm, monks. 
 
 ^ Cf. other legislations: Post, I, 222; Simon, "La Cite Chinoise," p. 48 
 (1891); Paturet, "Cond. de la Femme dans I'anc. Egypte"; Dareste, pp. 62, 74, 
 112, 227, 258, 273, 314. It was Mahomet who introduced the succession of 
 women among the Arabs. About 1.50 years ago, despite the "Koran," the 
 delegates of the Kabyle Confederations pronounced in a final manner the 
 exclusion of women from successions: Jobbe-Duval, "These," p. 160 (1874); 
 Lehr, "Dr. Civil Russe," I, 393. 
 
 3 "L. Thuring.," 6; Heusler, II, 604. 
 
 * There are certain possessions which women receive in preference to men 
 because these possessions can only be used by them, and the converse is true. 
 From this there arise special kinds of succession, about which, however, there 
 is hardly any question excepting in Saxony: Chaisemartin, 392. — (A) " Heerge- 
 wate" ("vestis bellica"). The armor is kept for the nearest male agnate: 
 "L. Thur.," 31; "Sachsensp.," 1, 27, 2; 22, 4. This was extended to other 
 
 628
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 453 
 
 male descendants, then how should the daughters be treated? 
 Two solutions were possible: make them serve to re-establish the 
 male line, as in the Athenian custom of leaving girls as heirs in 
 default of male issue,^ or the "Erbtochter" of the German law;^ 
 or else leave them out of the succession entirely. Perhaps it was 
 this last course which was resorted to originally, especially in the 
 case of land, so as to leave the field free for the right of the " vicini," 
 or that of the people of the same lineage. But, little by little, the 
 right of the daughters was strengthened against the others as a 
 consequence of the Roman and Christian influence, and, again, as 
 a consequence of the disintegration of the agnatic family; and, as 
 a consequence of this, the maternal relatives took part in the suc- 
 cession alongside of the paternal relatives. It is at this stage of 
 evolution that the Salic Law seems to have arrived in its Title 59, 
 which is so much discussed, and where the question of succession 
 "de alodis"^ is involved. This Title, which is an addition to the 
 tariff of compositions given in the early Custom, had as its exclu- 
 
 objects, — for example, tools, books: "Preuss. Landr.," 2, 1, 523; Grimm, 
 682. — (B) " Gerade " (clothing and ornaments used by women) . The daughter, 
 and, if she be dead, the nearest female relative, are the only ones who have a 
 right to them: "L. Thur.," 32, 38 ("rhedo"); "Burg.," 51 (14, 6): "mala 
 hereda," meaning "nuptialia ornamenta." According to Gaupp, the "materna 
 hereditas" of the ".L. Franc. Cham.," 42, was nothing more than the "Gerade" : 
 Heusler, II, 577; Froideveaux, "LaLoi ditedes Fr. Cham.," p. 135; "Sachsensp.," 
 I, 27. Extension: ibid., I, 5, 3; III, 38, 5. — If there are no relatives who are 
 qualified to take them, both of these kinds of possessions come to the judge: 
 "Sachsensp.," I, 28; Heusler, II, 617; Stobbe, V, 130; Ficker, 1018. — In ancient 
 India the daughters inherit nothing but the ornaments and clothing of their 
 mother. 
 
 1 Beauchet, "Dr. priv6 Athdn.," I, 398. Dareste, p. 26: among the Hebrews, 
 girls who are heiresses are married by their nearest male relatives, in order to 
 prevent their family from becoming extinguished: "Ruth" iv, "Numbers" 
 xxxvi. 
 
 ^ Schroeder, 777. 
 
 * Tacitus, "Germ.," 20: "sororum filiis idem apud avunculum qui apud 
 patrem honor. Quidam sanctiorem arctioremque hunc nexura sanguinis 
 arbitrantur et in accipiendis obsidibus magis e.xigunt . . . Heredes tamen suc- 
 cessoresque sui cinque liberi, fratres, patruei, avunculi." "Sui " does not mean 
 his own heirs. "Liberi" and "fratres" include neither the daughters nor the 
 Bisters. As to the paternal and maternal uncles, they seem to be placed in the 
 eame line: Brunner, I, 80; Amirn, "Erbenfolge," 219; Schroeder, 71. Order 
 in the "L. Sal.," 59: mother, brothers and sisters, mother's sister, the nearest 
 maternal relative ("L. Emend.": father and mother, brothers and sisters, 
 father's sister, mother's sister, the nearest relatives of the paternal line). 
 Cf. "Sal.," 44 (right to the "reipus"): eldest son of the sister, eldest son of 
 the niece, son of the maternal cousin, uncle who is the mother's brother. 
 "Sal.," 58 ("de chrenecruda"): father and brothers, the nearest three in the 
 maternal line and the nearest three in the paternal line: Geffcken, p. 223 (bibl.); 
 Heusler, II, 524; Dargun, "Mutterrecht," pp. 60, 153; Opet, op. ciL; Amira, 
 p. 25; Brunner, "Z. S. S., G. A.," Ill, 41; sec also, A. del Vecchio, "Lo zio 
 Materno," 1891; Pollock and Maitla?ul, II, 238; Glasson, III, 153. 
 
 629
 
 § 453] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 sive object the fixing of the rights of inheritance of the maternal 
 relatives. They are classed in the following order: 1st, the mother; 
 2d, the brother or sister born of the same mother; 3d, the sister 
 of the mother; 4th, the nearest maternal relatives after the former,^ 
 It is quite natural to assume that this classification was borrowed 
 from that of the paternal relatives, so that the two groups of heirs 
 called upon to divide the succession would be symmetrical. Noth- 
 ing is said about the paternal relatives because their rights were not 
 contested; but the scribes to whom we owe manuscripts which 
 give a more recent text of the Salic Law thought it would be a good 
 thing to show the paternal and the maternal relatives together 
 (cf. "lex emendata"). They limited themselves to reserving land 
 for the paternal line ("virilis sexus") and in the latter to the 
 brothers of the dead (brother of the whole blood or brother of the 
 same blood): "de terra viro in muliere hereditas non pertinebit." 
 Title 59 says nothing on the subject of the daughters of the de- 
 ceased; it assumes that the latter has left no posterity ("si filios 
 non dimiserit"); everything would lead one to believe that they 
 were excluded by their brothers, not only from the land, but even 
 from the entire succession, with the exception of the "ornamenta 
 muliebria" (cf. "L. Fr. Cham."); if there were no sons the daugh- 
 ters undoubtedly took the other possessions, but not the land (cf. 
 "L. Rib. Thur."). The exclusion of women, which was at first 
 absolute, was soon restricted to that which was later on called the 
 
 * The inferior status of women, which was commonly admitted until quite 
 recent times, has just been brought up for discussion again, — especially by 
 the partisans of the matriarchate. They base their arguments on Titfe 59 
 of the SaUc Law (Dargun, Heusler, Opet, Ficker). But it is difficult for them 
 to explain why the maternal uncle has gradually ceased to be mentioned, and 
 why the brother of the deceased succeeds with his sister; it is also singular 
 that we do not find the matriarchate in the order of succession which is told 
 of by Tacitus. Among the Lombards and the Visigoths it is well established 
 that the right of women progressed by becoming better developed. In the 
 Visigothic law especially the equahty of the sexes is of recent date (which 
 weakens M. Glasson's recent remark that the oldest barbarian laws treat 
 women better than the more modern ones): Code of Euric, 320; "Wis.," 
 4, 2, 1, 9; Zeumer, "N. Arch.," 26. Preference of males in the Anglo-Saxon 
 law and in the "gavelkind" of Kent: Pollock and Maitland, II, 258. The 
 interpretation of Title 59 of the Salic Law which we borrow from Brunner, 
 "Z. S. S.," 1900, "G. A.," 1, is ingenious, but rather on the order of guesswork, 
 and is open to a serious objection: why grant a privilege to the father's sister 
 and to the mother's sister? "Rib.," 56. Perhaps because they have not 
 left the house, whereas the brothers have gone away from it. Cf. the Lombard 
 law. But this should have been specified. Let us observe that the Customary 
 law sometimes grants the daughters privileges in the succession or in the mar- 
 riage portion of their mother: Pertile, IV, § 126 (succession of women). Cf. 
 "L. Fr. Cham.," 42; Froideveaux, p. 135 (various interpretations); Law of 
 Burchard of Worms, c. 10 (in 1024). 
 
 630
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§453 
 
 personal belongings of the succession as contrasted with the ac- 
 quests of immovables.^ Also, while the older text of the Salic Law 
 only contained the word "terra" by itself, we read in the later 
 texts "terra salica," an expression the original meaning of which is 
 very doubtful,'^ but which certainly in the seventh and eight cen- 
 turies is synonymous with "terra aviatica" (land of the ancestors, 
 "avi"), as is said in the law of the Kipuarians, 56, 4, in a provision 
 which corresponds to that of the Salic Law, and which may be con- 
 sidered as the official interpretation of the latter, — at least as 
 applying to the period of its redaction. Finally, the Edict of 
 Chilperic, in 596, decided that daughters should inherit the land 
 if there were no sons, sisters if there were no brothers, in such a 
 way as to exclude the "vicini," and also undoubtedly the more 
 distant collaterals.^ 
 
 * According to Heusler, II, 578, the privilege of the male line was extended 
 in Saxony and was appUed even to acquests and cattle, and to agricultural 
 implements as being accessories to the land. In the South of Germany, on 
 the other hand, the principle of the equality of the sexes was admitted, ex- 
 cepting in the case of the "Ansedel," "Hantgemal." Thus among the Ala- 
 mans ("Schwabensp.," 128, 148a); in time the privilege of males over the 
 dwelling house became a right of primogeniture or a household right (" Berne," 
 1614, 2, 12, 6). On the "Handgemalgut," cf. Heusler, I, 232. "Handgemal" 
 means "Hand Zeichen" (manual sign, "chirographum"), and "Stammgut," 
 Schroeder, 432. 
 
 2 Outline and bibl. in Geffcken, p. 226: Du Cange, see "Fusus." Various 
 opinions: 1st. "Terra salica," just as one says "lex saUca," has the same mean- 
 ing as "terra" in general. The Edict of Chilperic says "terra," and nothing 
 more: Dares^e, p. 411; "Roisin," p. 6. — 2d. Salic land means "terra aviatica." 
 — 3d. House and enclosure, something like the manor and the homestead of 
 feudal times, — that island of individual ownership pointed out by Tacitus 
 in his description of a system of collective ownership. "Sala" means house: 
 "Alam.," 81, 1; "Sal.," 16, 2 ("salina"); "Dipl.," II, 284, 333. Eccard in his 
 "Coram, s. L. Sal.," cites a Florentine commentary according to which the 
 Salic Law or "selilant" was that "qua; ad salam sivedomumcurtispertinet": 
 Gucrard, "Polypt. d'Irminon," p. 483. In the ninth century, in the region 
 of the Rhine, the seigniorial manse as contrasted with the tributary manses 
 is called Salic land. Cf. Viollet, p. 824 (bibl.); Glasson, III, 149; Stobbe, V, 
 88; Heusler, II, 576 (cf. " Hantgemal "). — The problem has become a compli- 
 cated one for recent authors because they have connected it with the obscure 
 question of the formation of the ownership of land following the invasions. 
 Cf. on this subject: Meitzen, "Siedelung u. Agrarwesen d. West, und Ostger- 
 manen," 1895. Sohm compares the "terra salica" to the Anglo-Saxon folk- 
 land; on the other hand, for Schroeder, p. 212, this is the land which is acquired 
 by virtue of a "pra3ceptum regis," whether the king made a gift of part of the 
 crown's domain or whether he gave permission for the occupation of unoccu- 
 pied lands; this would also be the nobleman's property, "ethel," "odal," 
 which was granted to the Germanic princes in the same way as the conferring 
 of an office, and which soon became hereditary; these Salic lands are contrasted 
 with the "Hufe" ("Hof") or "sors" ("los," "hlot"), with the portions of 
 land coming from the community of the village and reverting back to this 
 community. Cf. Heusler, II, 525, 575. On the Norwegian "odal" (personal 
 belonging) cf. "Z. S. S.," 1901, "G. A.," 109. 
 
 ' If there were no sisters, did the right of the "vicini" still continue to 
 
 631
 
 § 453] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 But the principle of the inequahty of tlie sexes was not' abol- 
 ished in the PVankish law.^ The father was only authorized to do 
 away with this principle by calling back to the succession the 
 daughters; it depended upon him whether they should compete 
 with the sons. A celebrated formula of IMarculfe, II, 12, shows 
 that the inspiration in this was taken from the Christian and 
 Roman ideas; the father gives the same rights to his sons and his 
 daughters as regards his inheritance, contrary to that which he 
 calls the "impious old custom":^ "Sicut mihi a Deo sequaliter 
 donati estis, ita et a me sitis sequaliter diligendi et de res meas 
 sequaliter gratuletis tam de alode paterno quam de comparatum 
 vel mancipia." ^ 
 
 In the next stage, the feudal system ^ was opposed to the suc- 
 cession of women because they were incapable of rendering the 
 military and court services connected with the possession of a fief.^ 
 But the principle of the inheritability of fiefs led to the trans- 
 mission of these possessions in the same way as others. Women 
 could aspire to them on condition of rendering the feudal services 
 by means of a representative, and, as their most natural repre- 
 sentatives were their husbands, from this there developed a right 
 for the lord to impose a marriage upon his female vassal until she 
 attained sixty years. However, on this point the feudal deeds 
 and the Customs were divided: sometimes they admitted the 
 succession of women (or of cognates) (feminine fiefs), sometime 
 it was rejected (masculine fiefs) in order to allow only the males 
 (or the agnates) to inherit. As a general thing, women only took 
 
 exist? The Edict is silent. The end of its § 3 seems to contemplate acquests 
 to which the "vicini" could lay no claim: cf. title 45, "L. Sal.," "de migr."; 
 Geffcken, p. 270 (bibl.); Gierke, op. cit.; Meitzen, I, 588; Chaisemartin, 412. 
 
 1 The sons who took the succession were charged with the nourishing and 
 support of their sisters, if they did not marry; if they did marry, the sons had 
 to furnish them with the customary marriage portion. 
 
 * The " Sachsenspiegel " was condemned by the papacy because of its 
 exclusion of daughters. CJ. as to the Roman law: "Petrus," I, 6; "Ass. de 
 J6r.," I, 275, ed. V. 
 
 3 Pasquier, "Inst.," p. 512. 
 
 * "L. Feud.," 1, 1, 3, 8: "filia non succedit in feudonisi investitura fuerit 
 ut fiUi et fihaj succedant." Thus there resulted a particular system for each 
 fief until a common law came to be established. Cf. French entails, especially 
 fee tails in England: "Summa Norm.," 25; Littleton, IS. In the latter country 
 in 1100 there was absolutely no doubt that women could succeed to fiefs held 
 by military tenure: Pollock and Maitland, II, 260. In France, cf. Beaurnanoir, 
 14; "Jostice," 12, 7, 3; Durand, "Spec," p. 311; "Const. Chat.," 68, 75; 
 "Cout. Not.," 71; "Gr. Cout.," p. 290; "T. A. C, Bret.," 232; Loysel, 634; 
 Pothier, VIII, 100. — Cf. Venice, Statute, 4, 25; "Const. Sic," II, 26. 
 
 ' Cf., however, ladies who held fiefs sitting in feudal courts, daughters or 
 widows taking part in the pohtical assemblies: Loysel, 608; Beaurnanoir, 41, 27. 
 
 632
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 453 
 
 if there were no males of the same degree.^ "If there were a son 
 only a day old and there were forty daughters," says Philip of 
 Navarre, 69, " they would have no right, for a daughter cannot be 
 the lawful heir before a son." On the other hand, in the case of 
 possessions of people who were not nobles the principle which 
 prevailed in the Customary law was that of equality between men 
 and women. ^ 
 
 In many places, however, the privilege of the males subsisted 
 in the form of excluding from the inheritance daughters endowed 
 in marriage.^ The mere departure from the family was originally 
 sufficient to make them lose every right of inheritance, whether they 
 were endowed or not; when it no longer had this effect, they were 
 looked upon as being sufficiently provided for when they received 
 the marriage portion. Sometimes the exclusion took place as 
 matter of law, sometimes it resulted from a clause of renunciation 
 of succession inserted in the marriage contract.^ Sometimes the 
 Custom compelled them to be contented with a chaplet of roses '° 
 as their entire marriage portion; sometimes the marriage portion 
 had to be a proper one ("marriage in conformity" in Normandy). 
 Finally, the marriage portion is designated under the name of 
 the legal share, in localities where the loss of the rights of inherit- 
 ance is made subordinate to the receiving of the entire legal share.^ 
 
 1 Loysel, 634 et seq. Foreclosure of descendants (whether males or not) 
 by the women: Beaumanoir, 14, 28; "Cout. Not.," 71; Loysel, 325; Blackstone, 
 II, 14. 
 
 2 "Summa Norm.," 24; Beaumanoir, 14, 11. Contra, Alsatian "colonges." 
 In certain places there was a right of preference for males among nobles, 
 affecting common tenures as well as fiefs: Glasson, VII, 467. 
 
 ' It was a Roman custom to bequeath the marriage portion to the daughter 
 while disinheriting her: Dig., 34, 1, 10, 2; 33, 5, 21; Esmein, "N. R. H.," 8, 4. 
 Exclusion of daughters who had had a marriage portion in the Lombard laws: 
 "Roth.," 181; "Liut.," Ill, 102 (cf. daughters "in capillo," with their hair 
 hanging down, — a distinctive sign of the unmarried woman, and daughters 
 "in casa," who had not left the house); Fertile, IV, 51; in the Italian statutes, 
 with the effect of keeping the property in the family. See La Mantia, "Storia 
 d. Legislaz. Ital.," I, 242 et seq.; Fertile, IV, 56, 62; Briinneck, p. 83; Viollet, 
 p. 826; and in the Customs of the South of France: "Montpellier," 90; "Mar- 
 seille," II, 54 {ed. Fresquet); "Giraud," II, 248; "Bergerac," 55; Gide, p. 441; 
 Tardif, p. 60. Cf. De Ribhe, op. cit., p. 1003. — As to the Customs of the North, 
 cf. "Touraine," 284. Fosl, " Inconsistency of the (Quality of Heir and Donee." 
 — "N. R. H.," 1877, 22; Chaisemartin, S90; De Maulde, "Proces politiques 
 sous Louis XII," 1885 (unpublished documents): rights of Anne of France. 
 
 * Loysel, 341; Fasquier, "Inst.," p. 509. These renunciations should have 
 been cancelled according to the Roman law, because they affected future 
 successions; but cf. as to this, Sexte, 1, 18, 2; Gui Fape, "Quest.," 227; Meynial, 
 "N. R. H.," 1901. 
 
 * Ragueau, see "Chapel," "Serpol" (trousseau); Laboulaye, 407. 
 
 * Loysel, 639: "The king must i^rovide marriages for his sisters and daugh- 
 ters." "Honeste dotare" say the Italian statutes. Cf. a fitting marriage in 
 
 633
 
 § 453] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 The idea of the physical weakness of women had long ceased 
 to be sufficient to account for their incapacity of inheriting 
 (legal or by agreement); public order, which was better as- 
 sured owing to the more active part played by the State, pro- 
 tected women from violence. Other motives accounted for the 
 inferiority of their condition. The expressed or implied clauses 
 in the contract of infeudation were often the foundation of this 
 inferiority; and, finally, the desire to prevent the parceling of the 
 family inheritance acted very strongly in this direction.^ Daugh- 
 ters and younger sons were sacrificed to the elder, not in the per- 
 sonal interest of the latter, but in the interest of the family. It is 
 true that the right of primogeniture could have been granted to 
 daughters; if it was refused them in order to be reserved for the 
 men, it was because when they married they ceased to represent 
 the family and took a new name; it was also because under vari- 
 ous circumstances it is difficult, or even impossible, for a woman 
 to carry on the role of the head of the family.^ 
 
 § 454. (B) The Right of Primogeniture, frequently found in the 
 old legislations, where it is connected with religious ideas and the 
 worship of ancestors, with which the "child of duty" is especially 
 charged, and which is mentioned in the Bible where Esau gives it 
 up to Jacob, "Genesis," xxv, is barely noticed in Tacitus, "Germ.," 
 with relation to only one of the tribes of Germania, the Tencteres, 
 and does not figure at all in the barbarian laws (any more than it 
 figured in the Roman laws).^ One would have expected to see it 
 there; with equal partition the house is not stable and is divided up 
 in each generation. But perhaps this is only in appearance because 
 the sons of the deceased often live in joint possession. Family com- 
 munities make up for the absence of primogeniture; ^ they are 
 
 Normandy: "T. A. C, Norm.," 80; "Summa," 24, 14; Le Poittevin, "N. R. H.," 
 1889; Fertile, IV, 60. In Corsica, in 1571, I, 43: arbitration with three near 
 relatives. Elsewhere it is the legal share that must be paid them. As to widows 
 cf. herein "Second Marriages"; Fertile, IV, 62; post, "Marriage Contract": 
 in countries of customs, "No one has a marriage portion who does not wish it," 
 whereas in countries of written law there exists an obligation to furnish a 
 marriage portion. 
 
 1 This motive, which is found at an early period in the documents, has 
 long maintained the inferiority of women in the matter of succession, even 
 in countries where the effects of the Roman law have been felt the most, — 
 for example, in Italy. In Sweden, where Birger Jarl called women to the suc- 
 cession in 1262, to the extent of one-third of the inheritance, the equahty of 
 the sexes was only proclaimed in 1845. 
 
 2 Loysel, Table, see "Femmes"; Benumanoir, "Jost.," id. 
 
 » Cf. "Sal.," 43; "Cap. extr.," 7; "Div. imperii," 817. Succession to the 
 throne of Lothaire in 954: Loysel, 328. — C/. "Alam.," 91; "Bai.," 1, 1; 15, 9. 
 * "Roth.," 167; "Liut.," 70; Capitulary of 818, 6, 11; of 825, 6 (I, 282, 
 
 634
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 454 
 
 preparing for it; in fact, the brothers have the eldest among them 
 as their natural head; they Uve "sub seniore fratre." ^ 
 
 With the feudal system the right of primogeniture finally ap- 
 pears.^ 1st. Originally, it is established in the interest of the 
 lord. The fief is indivisible because the rendering of feudal serv- 
 ices, and especially the military services, would have been affected 
 had there been a partition.^ The fief is granted to the eldest be- 
 cause he has that natural superiority over his brothers which is 
 given him by age and experience, because he has been associated 
 
 330). As to the "Gemeinderschaften," "Ganerbschaften," " Genossenschaf- 
 ten," c/. post, "Legal Persons"; Heusler, I, 51; Brunner, I, 70; Schroeder, 326; 
 Frommhold, 11; Huber, " Gemeindersch. d. Schweitz," 1897 ("Unters." by 
 Gierke); Pollock and Maitland, II, 260; Maitland, "Domesday Book," 145. 
 Example of Thanes holding the land in common with one of them as "senior" 
 (although there is no right of primogeniture). These tenures recall the par- 
 tition of the Norman and Angevin law. Contra, see Guilhiermoz, pp. 204, 
 205, who wishes to connect "parage" with "patrem"; which would be very 
 difficult, as we see it, because "patrem" has given us the word "pere" (father), 
 while "paratre" is a scientific word. In the same way the Provengal "par- 
 atge" cannot be derived from "paire," but comes from "par," meaning equal. 
 "N holds from a lord *en parage,' " seems to us to mean that N holds his land 
 from such and such a lord upon condition that there shall be equality of lineage 
 among his sons. Communities are even found in the South (Roussillon, Guy- 
 enne, Provence). Cf.A.de Brandt, p. 40; "Z.S. S.," 1901, "G.A.," 373; Ver- 
 delot, p. 28. 
 
 1 Feudal primogeniture, just as elsewhere, the commoner's right of younger 
 sons, would thus seem to have very important precedents in the family com- 
 munity ("Hausgenossenschaft," "Were," or group of relatives living together). 
 Cf. post, "Anerbenrecht," indivisibility of commoners' tenures (see note 4, 
 " Anerbenrecht," page 637 ); Dultzig, 68, 108, 117; Brentano, "Zukunft," 1895, 
 444; Pick, "Bauerl. Erbfolge," 1895; Brandt, p. 64; post, "Countries of Writ- 
 ten Law"; Sumner Maine, "Inst, primit.," p. 123 (gavelkind), 154; Dareste, 
 "N. Et.," 286, 297, 304. 
 
 2 The right of primogeniture, so to speak, preceded the heritability of 
 fiefs, for the grantor at the death of the vassal frequently renewed the grant 
 for the benefit of the elder son of the latter. Once fiefs became hereditary, 
 a period of uncertainty and hesitation was reached, which was escaped from 
 more or less quickly according to locality. The Breton Assize of 1185 is one 
 of the first legislative acts upon this matter, and it must have been preceded 
 by an Anglo-Norman law of Henry II, which has not come dow^l to us, but 
 which must have prohibited the partition of baronies and fiefs of the hauberk, 
 at least among males: "L. Henrici," I, 70, 21; Glanville, 7; Braclon, fo. 64; 
 "T. A. C, Norm.," 8, 83; "Summa," 23 et seq., 99; "Cout. de 1.583," 335; 
 Planiol, "N. R.JI.," 1887, 145; Pollock and Maitland, II, 258; Guilhiermoz, 
 p. 214. If there were several fiefs the eldest son only took one of them. The 
 indivisibility of fiefs was still more necessary for the Normans, established in 
 a hostile country, or for the Crusaders in Palestine: Ph. de Nav., 69, 71; J. 
 d'Ibelin, 68, 148, 156, 182. To tenure by descent and the system of homage 
 to the eldest (applied in the Duchy of Normandy, cf. Guilhiermoz, p. 202) 
 should be likened the joint lords' domain of the South: Dognon, "Inst, du 
 Languedoc," p. 16, the Catalonian system: " Usat. Barchin.," 31, the German 
 system derived from the Law of Conrad the Salic, 1037: "Sachsensp.," Lehr, 
 29, 2, and the "L. Feud.," 1, 2; 4, 1. Cf. Glasson, VII, 430; "N. R. H.," 1885; 
 Heusler, II, 614 ("Gesammtbelehnung"); Loysel, 611, 638; Schroeder, 401, 
 409. 
 
 * As to the dismembering of the fief, cf. Guilhiermoz, p. 195. 
 
 635
 
 § 454] INTESTATE SUCCESSION, GRATUITOUS CON\'EYANCES [Chap. IV 
 
 I:-' 
 
 with his father — at least, in fact — in the carrying out of feudal 
 duties longer than his brothers, because it is to the interest of the 
 lord to maintain this situation, and because at the same time 
 transmission by inheritance takes place to his advantage more 
 readily. On the other hand, in the succession to rural tenures, 
 reasons of a different kind often caused the youngest son to be 
 preferred (minority, youth, belonging to the household).-^ 2d. The 
 indivisibility of large fiefs and of important manors had a political 
 reason; they were small States whose parceling would have 
 caused many difficulties; the administration of justice and sov- 
 ereignty cannot be divided. 3d. In the last stages of the law, 
 neither the interest of the lord nor political interest are brought 
 into play, because the feudal military service has come to an end 
 and centralization has taken away all independence from the 
 manors; ^ the right of primogeniture still persists in the interest of 
 the family. And, since at the period when it was established the 
 old constitution of the family was weakened in many places, it 
 scarcely had that absolute and severe character which one is only 
 too liable to attribute to it. Each of the foundations which it had 
 had was found to be undermined with such rapidity as not to have 
 been capable of producing its full effects for any length of time. 
 
 1 Ultimogeniture. — 1st. In a system of collective ownership the elder sons 
 have a share and a separate hearth ; only the youngest son lives and works with 
 his father; he is near him at the time of his death and becomes the guardian 
 of the hearth, — a very important role in the Animist Religion (gallowa 
 puppets made out of mandrake roots gathered under a gibbet and given as a 
 sort of domestic god to the younger son, reservation of the hearth itself 
 to the youngest son of all in the gavelkind of Kent, legend of "Hop o' my 
 Thumb"). — 2d. The youngest of the sons keeps the paternal house because 
 he has not been able to create a separate establishment for himself; he has a 
 greater need for it, and it is a just compensation for his work, — 3d. The 
 eldest son is often a rival of his father, wiio has become old; it is not the same 
 with the Benjamin, upon whom the father lavishes liis affection. — Brittany 
 ("quevaize," meaning right of the youngest child): B. de Richebourg, 4412; 
 Furic, "Usem. de Cornouaille," 1644, p. 61. England: Hoel the Good, "C. 
 Ven.," I, 16; borough English, Year Book, 1, Edw. Ill, f. 12 (in 1327). Artois, 
 Picardy, Hainaut, Brabant, Friesland, Westphalia, Alsace, Switzerland, etc. In 
 ancient India and in the Caucasus it co-exists with the right o'f primogeniture, 
 and, a still stranger thing, it does not exclude a privilege for the benefit of the 
 brothers coming between them; it is true that Gautama does not take this 
 last verj^ seriously: "Let the middle brother," says he, "receive besides a share 
 equal to that of the others some old beast of burden with only one eye and with a 
 horn or a tail missing": Ernouf, "France judic," 1882-83, 1, p. 313 (according 
 to Elton); Pollock and Maitland, II, 277; Kovalewsky, p. 224; Grimm, p. 475; 
 HexisUr, II, 579; Huher, IV, 559; Stohhe, § 283, 321; Schroeder, p.' 736; Viollet, 
 p. 724, n. 1; 842; Bonvalot, "Dr. de juv.," 1901; Post, I, 223; II,' 188; Dareste, 
 273; "N. Et.," 271; Michelet, 59; Bntz, 669; Glasson, VII, 498;\DuUzig, 111; 
 Chaisemnrtin, p. 446; see Ragueau. 
 
 * In the eighteenth century it is still said that the baronies are indivisible. 
 
 636
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 454 
 
 The eldest, instead of takins; the entire fief, is charged with the en- 
 dowment of the younger children and the giving of a marriage por- 
 tion to the daughters,^ and no longer has anything but a reference 
 legacy and a share for his profit: the principal manor and the 
 homestead as a reference legacy, and two-thirds or one-half of the 
 fief by way of share to his profit.^ The dividing up of the fief 
 could only be avoided with the assistance of entails in trust. 
 From the thirteenth century the right of primogeniture is found to 
 be very much restricted: there is no right of primogeniture among 
 the daughters ^ or the next in the collateral line, nor is there any 
 with respect to plebeian possessions.^ Already it has become only 
 an exception; equal partition is the rule, following the custom of 
 the Roman law.^ 
 
 1 Springfeldius, " de apanagio, " 1663; see "Dig. Ital.," Maffert, "These," 
 l^QQ. — D' Argentre, "Advis s. le Part, des Nobles," 1570. 
 
 2 "Paris," 13; "Orleans," 89; "Touraine," 260; Glasson, Guilhiermoz, op. 
 cit.; "Confer, des Cout. de Guenois," pp. 183 and 700; Ferricre, on "Paris," 13 
 et seq. Besides the texts that are cited therein, cf. "A. C, Bord.," 57; "Ver- 
 mandois," ed. B.-B., 161, 168; "A. C, Anjou et Maine," id., Table; "A. C, 
 Bourgogne," in Giraud, II, pp. 296, 272. 
 
 3 "T. A. C, Norm.," 9. Contra: Ponthieu, Lavedan, etc. Cf. Iivein, 7715. 
 * Beaumanoir, 14; "T. A. C, Norm.," 8; "Bourg.," etc.: even for fiefs: cf. 
 
 gavelkind of Kent, — an old custom whose keeping up and development are 
 to be accounted for by the commercial prosperity of this county: Pollock 
 and Maitland, I, 165; II, 269 (bibl.). — However, according to some of the 
 Customs, plebeian tenures belonging to a noble are partitioned in the same way 
 as noblemen's tenures. The indivisibility of plebeian tenures has also been 
 established in the interest of the family or has continued to exist as a relic of 
 the family community: Viollet, 840, 841 (primogeniture in Normandy) ; Glasson, 
 VII, 419, 470; "Bareges," 1; Soule, 27; Labourt, 12; Merlin, "Rapports," 
 21; Nov., 1790; Sagnac, p. 218. — Germany, system of the " Anerbenrecht": 
 Stobbe, § 322 (V, 3S.2); Heuslcr, II, 616; Blondel, "Et. sur les popul. rurales de 
 I'Allem.," p. IQl ■,Verdelot, "These," 1899; £/. v. Dulzig, "Deutsch. Grunderbr.," 
 1899 (bibl.); ("Z.S.S.," 1900, "G.A.,"279); Frommhold, op. cit., and'' Ancrh.," 
 1886. L. Brentano, and after him Pick, op. cit., see in the "Anerbenrecht" a 
 seigniorial institution and connect it with the "Hofrecht." But this theory 
 is contested by the majority of legal historians, who make the "Anerbenrecht" 
 a consequence of the family community; from this would have sprung the 
 estates in tail and estates to youngest sons, appanages, recompenses or "Ab- 
 findungen" owed by the "Anerbe" — who takes the whole of the inheritance 
 — to his brothers, and marriages or marriage portions to the daughters, unless 
 they be excluded from the paternal house because of the dower which they ac- 
 quire when they marry: Stobbe, § 324 (bibl. on the " Abfind"), 290; Boissonnade, 
 "Anc. Cout. du Japon," 1894, p. 13. — As to daughters in Lombard law see: 
 Kjer, "Dansk og Langob. Arveret," 1901 (C. R. in "Z. S. S.," 1901, "G. A.," 
 367). — Chaisemartin, p. 442. — Repurchase of the eldest, Decree of Nov. 30, 
 1793. 
 
 ^ Equality, which did not exist between older children and younger chil- 
 dren, existed still less between Children of Different Marriages. Very often, 
 in fact, in the old Customary law, the mother's dowor was limited to the 
 children who were issue of the marriage so as to exclude the children of the 
 other marriages. The application of the old laws to second marriages pro- 
 duced an analogous result. The father's possessions were thus partitionedj 
 to make use of the old expression, "par ventr6es." As to these institutions, 
 
 637
 
 § 454] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 Under the form which it had assumed, primogeniture had become 
 too much reduced to give the French nobihty any real power. 
 And the Revolutionary laws and the Civil Code in abolishing 
 primogeniture only generalized the common law of the Customs.^ 
 In vain was it attempted to re-establish this right in 1826 by 
 means of legislation; this resurrection met with a very lively 
 opposition in the shape of public opinion. But there are still 
 families where the eldest son is appointed, that is to say, the 
 eldest son is provided for at the expense of his brothers to the ex- 
 tent that the law will allow, and often beyond this, as had already 
 been formerly done in countries of written law.^ The School of 
 Le Play proposed regulating the freedom to make a will in such a 
 way as to allow the father of a family to choose among his children 
 the one who is most worthy to carry on his work and so to avoid 
 the parceling up of a patrimony which has been built up with diffi- 
 culty. It is also with this latter end in view that many French 
 families have adopted the course of having an only son; but this 
 system, which Malthus was naive enough to vaunt under the 
 name of "moral restraint," is inspired rather by base selfishness 
 than by real pride; they shrank from having the care of children. 
 Individuals have gained nothing by substituting this for the 
 right of primogeniture and the State has lost a great deal.^ 
 
 cj. Tyost, "Marriage Contract." In the Netherlands they are described as a 
 right of devohition; and it was by virtue of this very right that Louis XIV 
 claimed the Netherlands themselves in the name of his wife, Maria Theresa 
 (War of the Devolution, imi): Britz, 670; Slohhe, V, 101; Ficker, IV; II, 457. 
 Decree of 18 Vend., year II. 
 
 1 Decree of March 15, 1790; April 8, 1791 (abolition of the rights of primo- 
 geniture and preference of males). Mirabeau's speech (read an hour after his 
 death in the Constituent Assembly, on April 2, 1791); Laferriere, p. 220; 
 Sognac, p. 518; Sevin, "Orig. Revolut. du Code Napoleon," 1870, 350 et seq.; 
 Brandt, op. cit., p. 69. — Estates in tail, Decl. 1806, 1808; Peerage, "Ord." 
 1815, Law of May, 1826 (entails); R. Foelix, XVI, 11. 
 
 2 It is to be observed, in fact, that the Roman principle of equal parti- 
 tion {Argou, II, 21) had departed from this: (a) by means of testamentary 
 provisions conferring some advantage on the eldest, even in the families of 
 plebeians; {h) by certain Customs ("Beam," "Bigorre," "Pays Basque") 
 conferring the family possessions upon the eldest son or eldest daughter im- 
 partially, and describing the younger sons as slaves: A. de Brandt, "Droit 
 et Cout. des Popul. rurales de la France en mat. successorale," 1901, p. 29. 
 Cf. Lagreze, Cordier, etc.; Lespinasse, "R.prat.," 1879 {Cayolars). — Flammer, 
 "Dr. Civil de Geneve," p. 18: customs, being stronger than the laws, kept 
 up the right of primogeniture, which had been prohibited; the youngest sons 
 remained bachelors and became the men servants of the eldest, or else emi- 
 grated: Th. dc Montauge, "L'Agr. Toulous.," 118. 
 
 ' It is a good thing in our opinion for each one of the children to receive 
 a portion of the father's possessions: but, if this partition results in the ruin 
 of some enterprise, and means the liquidation or the selling at a very low price 
 of an industrial or commercial establishment, it fails to attain its object, and 
 
 638
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 455 
 
 § 455. Lack of Representation. — In the very old law repre- 
 sentation was not admitted, either in the direct line or in the col- 
 lateral line: (a) grandsons did not share with sons who were 
 brothers of their predeceased father in the succession of their 
 grandfather; (b) all the more reason why if a brother died, his 
 brother succeeded to him and excluded his nephews who were the 
 sons of another predeceased brother. In our day, on the con- 
 trary, and before this in Rome, grandsons or nephews represented 
 their father and had the same rights of succession as he had, be- 
 cause the affection of the grandfather or the uncle was carried 
 back to them. In the old Germanic law it seems that two reasons 
 were opposed to representation: 1st. When brothers lived in a 
 community, the death of one of them did not at the moment con- 
 fer any right on his sons; the circle of interested parties contracted, 
 and that was all.^ 2d. Leaving out all question of a community, 
 the uncle was preferred to the nephew because, owing to his age 
 and his position, he was more fit to fill the part of head of the fam- 
 ily. This is so true that in certain legislations sons are excluded 
 from the succession of their ow^n father by their uncles, who are 
 brothers of the latter (tanistry in Ireland).^ — The cause of the 
 uncles should not have prevailed, because it was in opposition to 
 the general aspect of the law of inheritance.^ From the year 596, 
 
 it would be better to confer the entire patrimony upon the eldest or one of 
 the other sons charged with setting up his brothers and giving a marriage 
 portion to his sisters. We do not condemn the system of equal partition, but 
 we do criticise its unintelligent application. The care of avoiding the disad- 
 vantages that it carried with it should be left to the tribunals and to the 
 father of the family subject to their control. It would be a mistake, moreover, 
 for one to imagine that this reform and other more radical ones, such as the 
 introduction of the freedom to bequeath by will or the establishment of the 
 right of primogeniture, would change the existing customs: De Bonald, "La 
 Famille et le Dr. d'Ainesse," 1826; Noiret, "Morcell. et Reconcentr.," 1901; 
 Brandt, op. cit., p. 69 et seq. (details as to the actual application of the old 
 Customs); Verdelot, p. 614; Regnier, "These," 1900. 
 
 1 Gierke, II, 949; Dultzig, 69. The grandsons who were the issue of a son 
 who was married and had an establishment outside of the house could not com- 
 pete with their uncles who remained connected with the family community 
 to which they themselves no longer belonged. 
 
 ^ There are no traces of this .system in the barbarian laws; but it was some- 
 times applied to the succession to the throne under the Merovingians (the 
 children of Clodomir); Viollet, "Inst, pol.," I, 246; "Mc';m. s. la Tanistry" 
 ("Ac. Inscr.," 32, 2, 275). Application to the fief in Poitou: D'Espinmj, 
 "N. R. II.," 1896, 477; Dc la Menardiere, "Succession de Frfire h, Frere dans 
 la T. A. C. de Poitou " ; Chaisemartin, 398 : The inheritance remains in the heart 
 of the family; Grimm, 5: a child "in sinu avi." Cf. Heusler, loc. cit. "Z S S 
 G. A.," 1901, 372. 
 
 » Roman law: "Cod. Th6od.," 5, 1, 4. Cf. "Nov. Just.," 118; Papien, 
 10; "Burg.," 14, 75, 78; "Wis.," 4, .5, 4; 4, 2, 18 ("Ant.," 327); Grimoald, 5-; 
 "Liut.," 3; "Sax.," 46. — When the grandsons compete only among them- 
 
 639
 
 § 455] INTESTATE SUCCESSION, GIL\TUITOUS CONVEYANCES [Chap. IV 
 
 the "Dec. Childeberti " allowed grandsons "exfilio"or "exfilia" 
 to represent their father or their mother in the succession of the 
 grandfather. It is not certain that this law was applied; and, 
 in fact, we are in possession of later formulae of the recalling to 
 succession of grandsons wherein it is apparent that legally they 
 would not have inherited.^ In Germany it is reported that the 
 question was settled in 942 before Otto I by the duel at law; the 
 champion among the nephews took the succession.^ 
 
 During the feudal period representation combined with the 
 right of primogeniture. The grandson of the predeceased eldest 
 son enjoyed the same privileges as his father and kept the succes- 
 sion to the fief from his uncles. This was a solution which was 
 not without its disadvantages, because it sometimes resulted in 
 giving the lord a child for his vassal, and because it might make 
 of a minor the head of the State. The law was not sufficiently 
 well settled to avoid conflicts taking place between uncles and 
 nephews, like the one which arose between John Lackland and 
 his nephew, Arthur of Brittany ; the tragic death of the latter 
 was only a temporary development of that which was called the 
 "casus regis." The misfortunes which overthrew John Lackland 
 seemed to be a just judgment from God upon the usurping uncle; 
 and, in fact, in the fourteenth century representation prevailed in 
 England.^ In France, during the thirteenth and fourteenth cen- 
 turies, there is a divergence between the Customs, and in the six- 
 teenth century representation is with difficulty admitted in the 
 collateral line.^ The Decree of April 8-15, 1791, generalized repre- 
 
 selves because the sons have predeceased them, the partition by heads, "per 
 capita," is a logical consequence of the family community. It was practi-sed 
 first of all, it would seem. Cf. "Sal. Herold" (59), 62, 6, and "M. G. H., L. L.," 
 IV, 590; "Sax.," 46; Stobhe, V, 96; Heusler, II, 5S3. After the Frankish period 
 partitioning by stocks, "per stirpes," which is in accord with the system of 
 assumed affection, is substituted for partition by heads: "Rib.," 48; Roziere, 
 141 ; Chaisemartin, 410. — If the deceased only leaves nephews, sons of several 
 brothers, they inherit from their common ancestor and partition by heads 
 according to Azon {id. Diet of Spire, 1529): they come in by representation 
 and partition by stocks according to Accursius {id. Civil Code, 742); Pasquier, 
 "Inst.," 487; Stobbe, V, 114. Cf. Civil Code, 787. 
 
 1 Roziere, "Form.," 131 et seq.; Sirm., 22; Marculje, II, 10, etc.; TMvenin, 
 Table. 
 
 2 " M. G. H., S. S.," Ill, 440. It does not seem that very much account was 
 taken of this decision: "Sachsensp.," 1, 5, 1; "Schwabensp.," 8. 
 
 3 "T. A. C. Norm.," 12; Marnier, p. 25; "Summa," 23, 5; Glanville, VII, 3; 
 Bracton,{o. 267 /i; Brunner, 43; Pollock and Maitland, 11, 281. — "N. R. H.," 
 1893, 5. 
 
 * Beaumanoir, 14, 23; Desmares, 238, 282. Representation in the collateral 
 line was not admitted until 1580 in the "Cout. de Paris," 319. Certain of the 
 Customs still rejected it even in the direct line: "Ponthieu," 8; " Boullenois," 
 
 640
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 456 
 
 sentation in the direct line of descendants, and tlie Decree of tlie 
 17th Nivose, year II, Art. 77, established it indefinitely in the 
 collateral line in conformity with a small number of the Customs. 
 The Civil Code only admits it in the direct line and in favor of 
 the descendants of brothers and sisters, following the example of 
 the "Novella," 118, and of the Custom of Paris. 
 
 § 456. (II) Lineage (Ascendants and Collaterals).^ — If there 
 were no descendants, the succession seems to have devolved in the 
 old times upon the lineage of the deceased, in order of kindred or 
 groups of relatives having each a common ancestor (thus my kin- 
 dred includes my entire posterity, son, grandson, etc.).- If there 
 
 75, etc.; Loysel, 321. Unlimited representation in the collateral line: "Anjou," 
 224; "Auvergne," 12, 9. Cf. public law: Guyne, "Tr. de la Repr6s.," 1727, 
 1779; "Champagne," id. 1720; "Mignot," id. 1777; Gerhardi, "Orig. de la 
 Regie: Representation a lieu a I'lnfini," 1767; Ricard, "Tr. de la Repres. et 
 du Rappel," "CEuvres," 1685, 1783. — On the recalling to succession c/. ylr^ow, 
 I, 439; this can be done by means of some deed; distinction between the re- 
 calling in terms of law (that is to say, according to the Roman law), and not 
 in terms of law, — the latter merely having the same effects as a legacy : 
 Pasquier, 512. 
 
 1 On computation of relationship cf. Heusler, II, 586; Stobbe, V, 62, and 
 authors cited. Especially will one find very full details in Ficker, I, 277-475 
 (he distinguishes in Germanic law four kinds of calculation: 1st, by groups of 
 brothers; 2d, by groups of cousins; 3d, by degrees; 4th, by taking into account 
 the line which contains the greatest number of degrees); cf. II, 22; XLII, 68. 
 
 — "Stemmata" or "arbores cognationum" drawn up after the manner of 
 the Roman law, — especially Paul, IV. 10, in the "L. Rom. Wis."; Girard, 
 "Textes," p. 427 et seq. The " Lectura of Joh. Andrece "super arboribus con- 
 sanguinitatis" was very well known. — In Germanic law relationship is figured 
 differentlj^; it is represented in the form of the human body; each member or 
 each joint constitutes a degree: "Genu, Geniculum": "Sal.," 59; "Rib.," 56. 
 
 — "Jostice," p. 228. 
 
 2 The system of degrees of consanguinity considered by Mayer and Eich- 
 horn at the beginning of the nineteenth century as the basis of the German law 
 of succession, and discarded afterwards by Siegel and Wasserschlebcn, reckoned 
 many partisans, beginning with the works of Brunner, Gierke and Heusler; 
 however, Amira and Ficker, even to this day, still refuse to admit it. If it is 
 rejected, the Germanic system of succession is nothing but confusion : no guiding 
 principle can be found in it. The existence of this system of consanguinity 
 seems to have been established especially among the Lombards, the Anglo- 
 Normans and the Frisians: "Roth.," 153. Cf. " Liut.," 17; Thevenin, "Textes," 
 no. 55; Glanville, VII, 3; Bracton, f. 68 &; "Fleta," VI, 2; Bntton, VI, 3, 4; 
 "Summa Norm.," 23; "T. A. C., Bret.," 220; "A. C.," 566; "N. C.," 594; 
 Brunner, "Erbf.," 15; "Sippe u. Verg., pass." Moreover, the term "parentela" 
 has in the barbarian laws more the indefinite meaning of our word "parente" 
 (relationship): Heusler, II, 594; Huher, IV, 548; Ficker, II, 55, 304, 387, 616; 
 Homeyer, "Parentelenordn.," 1860; Stobbe, V, 62; Kohler, "Z. V.R.," VII, 201 
 (India) . The very fact of the computation of relationship not by degrees, but by 
 lines, bears witness to the favoring of the system of degrees of consanguinity; for 
 it would harv'e been strange not to have applied it under circumstances of so great 
 importance as the devolution of an inheritance. Cf. Law of the 17th Niv., 
 year II (orders of heirs, calling to mind the degrees of consanguinity): Dnreste, 
 p. 290; Kohler, "Abh.," 341; Schroeder, 327 (bibl.). Criticism of Ficker in 
 Dnltzig, 56. This system has persisted in the successions of noblemen in 
 Germany: "Sachsensp.," 1, 3, 3. It is not formulated "ex professo" in a 
 
 641
 
 § 45G] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [ Chap. IV 
 
 were no descendants of the deceased, the kindred of his father — 
 that is to say, the relatives who were issue of the latter — were 
 called to the succession. When this kindred was exhausted they 
 passed to the kindred of the grandfather, etc. This system, with 
 the strict application of the agnatic principle, has left traces in 
 the Customs of the Middle Ages; but it has been replaced in a 
 general way by systems which are less logical and which tend to 
 become like the Roman rules. According to the latter, the as- 
 cendants succeeded and shared with the brothers and sisters (or 
 nephews of the full blood) of the deceased ("Novella," 118, of 
 Justinian); if there were none of these the succession devolved 
 upon the nearest collaterals, without any distinction being made 
 according to the nature and the origin of the property: personal 
 belongings and acquests, movables and immovables, were treated 
 in the same manner and formed one single mass. This classifica- 
 tion of relatives, based upon the presumed affection of the de- 
 ceased, was accepted in countries of written law. The Custom of 
 Toulouse was the only one which deviated from it, because, as 
 concerned this matter, just as in the matter of the "privilege of 
 the double tie" (of relationship), the law enacted previous to 
 the reforms of Justinian, that is to say, the Theodosian law, had 
 remained in full force: the paternal relatives excluded the maternal 
 relatives. As to the countries of Customs, they followed the rules 
 of the written law, — at least, in the case of succession to movables 
 and acquests.^ 
 
 § 457. Succession to Personal Belongings,- in countries of 
 
 single text; they limit themselves to applications of it. As to its abandonment, 
 cf. Heusler, II, 608. — Dareste, "N. Et.," p. 92 (Greece); Post, II, 190; Lardy, 
 "Legisl. civiles des Cantons Suisses," 1877, gives tables of the computation 
 of relationship according to the Germanic systems (degrees of consanguinity, 
 etc.); Stintzing, "Gesch. d. Popul. Lit.," I, 151 (on the "arbores"). 
 
 1 Glasson, VI, 427. — Cf. especially: Beaumanoir, 12, 14, 18; "Jostice," 
 pp. 235, 252; "Const. Chat.," 19; "Cout. Not.," 91; Desmares, 93; "Summa 
 Norm.," 23 et seq.; "T. A. C, Bret.," 220. — As to acquests, cf. Ficker, II, no. 
 570. — Jarriand, op. cit.; Escarra, "Succ. aux Biens r^els dans les Cout. 
 Anglo-Norm.," 1903 ("These"). 
 
 2 See especially the treatises on personal belongings by Renusson in 1700 
 and by Pothier in 1777. — Dufounna7itelle, "These," 1882; Viollei, 845; 
 Glasson, VII, 471; Schroeder, 733; "Z. S. S.," 1901, 109 (Norway); Ficker, II, 
 404; III, 469. — Formation of the theory of personal belongings, cf. varia- 
 tions, ibid., V, 164, 244, 292. Old tendency towards uniformity in the system 
 of personal belongings in the matter of succession, repurchase, and the com- 
 munity. In the seventeenth century this tendency had long since ceased, as 
 is proved by Lebrun, and as was inevitable in the progressive disintegration 
 of the rights of the family. — As to the "Stammgiiter" or family possessions 
 of the German nobility, which are transmitted in the male line, cf. Verdelot, 
 "These," p. 90. — "Z. S. S.," 1881, "G. A.," 1898. 
 
 642
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 457 
 
 Customs, may be summed up according to the final law in the 
 " splitting " or division of personal belongings into two parts, the 
 one coming from the father or the paternal family, the other com- 
 ing from the mother or the maternal family. Each mass returns 
 whence it came, — "paterna paternis, materna maternis." ^ 
 The older law sprang from the idea that only paternal personal 
 belongings were included in the succession; the mother of the de- 
 ceased, being excluded from the paternal inheritance, had brought 
 nothing into it, which resulted in the maternal line, the relatives 
 by the distaff or the spindle ("Spillmagen," " Kunkelmagen ") 
 having nothing to claim in the hereditary possessions; the rela- 
 tives by the sword or by the spear ("Schwertmagen," "Speer- 
 magen") ^ being alone called to collect them. In conceding to 
 women important rights of succession, the maternal line was 
 eventually allowed to take the possessions in the succession which 
 came from the mother; to make the paternal relatives benefit 
 thereby would have been to sacrifice one family to the other. 
 Thus there was established in the new law the repartition between 
 the two lines, but not without falterings and compromises.^ The 
 Edict of Mothers, 1567, repealed in 1729, attempted for a little 
 time, but without any success, excepting in Provence, to intro- 
 
 1 "Cart, de Redon," in 871; Statute of Burchard of Worms, 1; "L. Feud.," 
 2, 11; "Ass. de Jer.," "C. des B.," 58; "Cout. Not.," 12; "A. C, Picardie," 
 156; Doutaric, I, 76; "Ord.," V, 156; D'Espinay, "Cartul. Angevins," p. 245. 
 — The South: "Beam," 1551, wills; Lavedan, 6; Jarriand, "N. R. H.," 1890, 
 240; " R. Q. hist.," 1890, 214 (succession of persons not having attained puberty, 
 Quercy, Confluent). — Pollock and Mailland, II, 297. — Schroeder, 735 (bibl.); 
 Stobbe, V, 105; Heusler, II, 527; Ficker, II, 404; III, nos. 705, 745 (equality 
 of both lines originally; extension of this rule from acquests to personal be- 
 longings: nos. 570, 586). Splitting, resplitting and resplitting again, in such 
 a way as to divide the mass into eight parts, in certain Customs. — The 
 "Schwabensp.," 148, cites the Bible, "Numbers," xxvii, 8. — "Montpellier," 
 58. 
 
 ^ Heusler, II, 606. Peculiarities of the German law on the subject of the 
 "Vatermagen" and " Muttermagen " and of the distinction formerly estab- 
 lished between these classes of relatives and the "Schwertmagen" and "Spill- 
 magen," etc.: "Sachseasp.," I, 71, 1; "Schwabensp.," 148 (128), 275 (225). 
 Sometimes the male agnates exclude the women and sometimes the paternal 
 line excludes the maternal line, etc.: Ficker, III, 518, 590, 4, 1; 5, "Z. S. S.," 
 1883, "G. A.," 1; Stobbe, V, 106; Pertile, IV, 71, 76. As to the succession of 
 the "Muttermagen," cf. Drunner, "Berlin, Akad.," 1894, II, p. 1293; Adam, 
 " Thronfolgerecht der Kognaten," 1897. See also "Toulouse," 124. Some- 
 times the maternal relatives only have one-third. Sometimes the father takes 
 to the exclusion of the mother: Chaisemartin, p. 390; Giraud, "Essai," I, 112. 
 
 ' Exclusion of daughters in the collateral line (of equal degree): J. d'Ibelin, 
 175; "Jostice," 12, 6, 28; "Cout. Not.," 71; "Const. Chat.," 68; "Gr. Cout.," 
 II, 25 (p. 279); Lo!/.se;,634 et seq.; "Paris, A.C.," 16; "N C," 25; Pothier, VIII, 
 100 (ed. Bug.). — Barring of descendants (whether males or not) of the women: 
 Loysel, ibid.; "Touraine," 284; "Auvergne," 12, 25; Beaumanoir, 14, 28. Cf. 
 ' ' Primogeniture, " " Representation. ' ' 
 
 643
 
 § 457] INTESTATE SUCCESSION, GItVTUITOUS CONVEYANCES [Chap. IV 
 
 duce into the countries of written law this rule, which was so 
 contrary to Roman legislation.^ 
 
 § 458. Ascendants.^ Rule: " Personal Belongings do not As- 
 cend." ^ — This rule has been extended in two directions. (A) For- 
 merly it signified that ascendants did not succeed to their 
 descendants; they were excluded by the collaterals, and even by 
 the Treasury.'* Is this peculiarity of the Customary law to be 
 accounted for by the influence of the rule, "fiefs do not ascend" ? ^ 
 This could be readily understood, because at a given time the ma- 
 jority of lands were fiefs and copyholds.^ Must one rather see 
 
 1 Mellier, "Sommaire explicatif de I'Edit du Roi par lequel il ordonne que 
 dorenavent les Meres ne succederont a leurs Enfants es Biens provenus de 
 Cote paternel, mais seulement es Meubles et Conquets provenus d'ailleurs," 
 1575; Bouhier, "Tr. de la Succ. des Meres," 1726; Argou, II, 22; VioUet, 847. 
 
 2 As to the rights of ascendants, cf. especially Picker, II, 399; III, nos. 702, 
 740, 9175; Britz, V, 678. — Texts of the Customs in Gu^nois, II, 15. — Fertile, 
 IV, 69. 
 
 3 Tacitus, "Germ.," 20; "Burg.," 14, 53, 78; "Thur.," 6. On the other 
 hand, the "L. Sal.," 59, calls fathers and mothers to the succession: "Rib.," 
 58; "Wis.," 4; "Alam.," 92; "Roth.," 170; "Fris.," 9; Greg. Tours, IX, 93. 
 Charters, for example, that of Saint-Omer, "Ord.," IV, 251; "Lib. pract. 
 Rem.," 39; "L. Henr. I," 70; Glanville, VII, 1, 10; Chaisemartin, 401; Picker, 
 II, 457 (details and special system); III, 364, 607; Stohhe, V, 107; Fertile, IV, 
 71 (mother). Exclusion in China, Greece, and among the Slavs: Dareste, 
 "Nouv. Et.,"298, 90. 
 
 ^ "Cout. Not.," 185, 90, 194; "Gr. Cout.," p. 369; "Paris," 312; Loysel, 
 322; "Ass. de J6r.," "C. des B.," Abridgment, 58; Commentary on "Roth.," 
 153. The personal belonging is defined as being the property which the de- 
 ceased holds from his ascendants by means of succession or gift. If it is a 
 piece of property that has been given, the reversion restores it to the ascendant. 
 If it is a piece of property that has come to him by succession, the ascendant 
 is dead and can no longer reclaim it. The rule, "Personal belongings do not 
 ascend," seems at first blush to be inapplicable. But this merely appears to 
 be so. There are exceptional hypothetical cases, it is true, where it is liable 
 to apply. N dies leaving a personal belonging which came to him from his 
 father (who predeceased him), and which was an acquest of the latter's; can 
 the paternal grandfather of N succeed to this personal belonging in prefer- 
 ence to the collaterals? Or, again, can my father take in my succession the 
 personal belongings coming from my paternal uncle, whose succession he had 
 renounced, etc.? Masuer, 32, 8; Pasquier, "Inst.," 499. 
 
 6 <'L. Feud.," 1, 14; 2, 11; 2, 50; J. d'Ibelin, 185; Blackstone, II, 14; Glas- 
 son, VII, 462. The fief could only go to the descendants of the grantee from 
 the point of view of the grantor; the ascendants of the first vassal were thus 
 excluded from it. If it were a matter of a fief that had been granted in former 
 times, an ascending inheritance of the present vassal belonged to the posterity 
 of the original vassal ; but the fief had escaped him to go to his descendants, and 
 he himself could not take it back. This same reasoning applied in the case 
 of copyholds. — Italy: right of ascendants to freeholds, but exclusion of the 
 mother (and of brothers born of the same mother): Commentary, on "Roth.," 
 153; Texts in Fertile, IV, 70; "Z. S. S.," 1901; "G. A.," 374 (Kier, etc.) 
 
 8 Brunner, "Erbf.," 22, suggested an explanation of this rule drawn from 
 a passage in Glanville, 7, 1, 10: "Nemo ejusdem tenementi simul potest esse 
 hseres et dominus." The vassal who wishes to dispose of his fief for the bene- 
 fit of his son is only free to do so during his lifetime by means of subinfeudation; 
 thus he grants it to his son as a fief held under a mesne lord that has passed to 
 
 644
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 458 
 
 therein a formula previous to the feudal system, demonstrating the 
 fact that the succession of ascendants was a physical impossibility? 
 Because one of two things must have taken place, — either the 
 descendants had not left the paternal house, and in this case they 
 possessed nothing of their own, or else they had left the paternal 
 house, and then the ties which united them to their descendants 
 were broken. But, according to this last hypothesis, it is not very 
 easy to see why these ties between them and the collaterals still 
 remained. Whatever its origin may be, this rule was too contrary 
 to the spirit of the new law to last very long; it was abandoned, 
 and with the exception of brothers and sisters the ascendants 
 were preferred to any of the collaterals.^ In the past, legal rever- 
 sion had helped in supporting this rule. — (B) At this point the 
 rule, "Personal belongings do not ascend," should have disap- 
 peared. It was preserved by giving it a new meaning; it meant 
 that the paternal personal belongings did not come to the mater- 
 nal relatives, and vice versa, — at least, if there remained no 
 person of the line for which the personal belonging had been ap- 
 propriated. In this case the property devolved from one line upon 
 the other. Thus understood, it was a useless repetition of the 
 maxim, "Paterna paternis, materna maternis." ^ — (C) Legal re- 
 version for the benefit of the ascendant donor is not connected, 
 as has been thought, with the provisions of the Roman laws relat- 
 
 the heirs of the body or to the collaterals; it is only upon failure of heirs that 
 it reverts back to the original grantor: "Etabl. de Norm.," ed. Marnier, 25. 
 "Assise" of Count Geffroi, 1187. — In Normandy, at the beginning of the 
 thirteenth century, this theory did not exclude the right of ascendants to suc- 
 ceed. In England, following the Statute "Quia Emptores" (18, Edward I), it 
 was possible for a vassal to grant a portion of his fief without subinfeudating 
 it; and thenceforth the obstacle which stood in the way of the right of ascend- 
 ants to succeed, — which was that " No one could be heir and lord of the same 
 tenement at the same time," — disappeared. Britton, II, 310, 163 (according 
 to him, the inheritance, which is the important thing, descends and never 
 ascends). Cf. Pollock and Maitland, II, 284 (a means of weakening the con- 
 sequences of the right of primogeniture). Assuming that the rule, "Nobody 
 can be," etc., had its influence upon the Anglo-Norman law, it could not account 
 for the principle in the other legal systems that " Fiefs do not ascend," and still 
 less for the analogous principle, "Personal belongings do not ascend." 
 
 1 The rule, "So long as the stem has a stock it does not fork," Loysel, 334, 
 expresses the preference for ascendants before collaterals: "Paris," 325. — 
 Cf. Chaisemartin, 399 ("Schoossfall" ); "Sachsensp.," VII, 17. 
 
 2 Benumanoir, 14, 22, 23, 24: The personal belonging which has come from 
 the father passes to the paternal grandfather, although the hitter is excluded by 
 the brothers and sisters of the deceased with regard to movables and acquests 
 (they are one degree nearer). Contra: "Gr. Gout.," p. 369; Desmarei^, 293. 
 Cf. "Pari, aux Bourg.," p. 119. On these contradictory texts, cf. Fickcr, ITT, 
 580; Lauriere, on Loysel, 334; on "Paris," 312. Succession of ascendants to the 
 usufruct in certain of the Customs: Argou, II, 22. Cf. Civil Code, 754; Polhier, 
 11,1. 
 
 645
 
 § 458] INTESTATE SUCCESSION, GR-\TUITOUS CONVEYANCES [Chap. IV 
 
 ing to the restitution to the " paterf amihas " of the " dos " by 
 succession in the direct Hne/ in case of a dissokition of the mar- 
 riage owing to the predecease of the wife. Nor can it be derived 
 from the pre-Justinian any more than from the Justinian law; in 
 fact, the restoration of the " dos " by succession in the direct hue 
 had ceased to be made use of at the time of the invasions; ^ thus 
 it is not from the Theodosian legislation that it could have been 
 borrowed. Justinian gave this institution a sort of artificial life, 
 but, as the influence of the Justinian law only made itself felt 
 rather late in France, and as reversion was there practised be- 
 fore this period, it was not borrowed from the Justinian legisla- 
 tion to any greater extent than this.^ In reality it is only a 
 survival of the old Germanic law, according to which a gift was 
 
 1 Dig., 23, 3, 6 (Pomponius); "Cod. Just.," 6, 61, 1 and 2; Mitteis, "Reichs- 
 recht," 251; "Cod. Theod.," 3, 5, 9 ("wedding gifts" restored to all who gave 
 them); "Novella," 25 of Leo the Philosopher (ninth century). 
 
 2 Without having been abrogated, the old law was no longer apphed. 
 This is the result of the texts inserted in the "Papien" and the "Brev. 
 d'Alaric"; "Novella, Theod.," II, 14, 1,3; "Novella, Valentinian," 111,34, 
 8, 9, 10; "Novella Major," 6, 6, 7; Pajnen, 26, 10; "Ed. Theod.," 54; Mitteis, 
 op. cit., 248. — "Cod. Euric," 321; "L. Wis.," 4, 2, 13.— C/. "Cod. Just.," 3, 
 38, 12 (which does not contemplate a right of reversion to the mother) ; 5, 13, 
 
 I, 13; "Novella," 22, 23; "Petrus," I, 3: no legal reversion; acquiring of the 
 marriage portion by the surviving husband, unless there be an agreement to the 
 contrary; "Toulouse," 88, 113 et seq. 
 
 ^ Reversion in the barbarian laws ("Sax.," 42; "Alam.," 54, 2; Heusler, 
 
 II, 318, 326; "Wis.," 3, 1, 5; 4, 5, 3; 5, 2, 4. Cf. "Bai.," 15, 8; "Burg.," 62, 
 2), later on in the "Schwabensp.," 15; in the Scandinavian law ^mira, "N. O.," 
 I, 529; II, 655; in Flanders and in Friesland. In the Anglo-Norman law the 
 reversion was admitted formerly {Glanville, 7, 18, 3; Delisle, "Jug. de I'Echiq.," 
 no. 537), unless the property had been granted as a fief by the donor to the 
 donee, because no one can be heir and lord of the same tenement ; this perhaps 
 explains why it has disappeared from the English law (Glanville, 7, 1,9); the 
 "Summa Norm.," 119, also rejects it. Sicilian law: "Catane," 14; "Messine," 
 12, reversion of Norman origin: Briinneck, 35. In the French sources the 
 reversion is frequently found in the twelfth and thirteenth centuries, and rarely 
 in the fourteenth and fifteenth centuries, as a consequence of the influence of 
 the rule, "Personal belongings do not ascend," or else because the old concep- 
 tion of the gift has been abandoned; the reversion is generally found in the 
 second half of the sixteenth century because of the influence of the Roman laws, 
 and because the rule, "Personal belongings do not ascend," had changed in 
 meaning. In the "Cout. de Paris," it disappears between the "Const. Chat.," 
 18, and the "N. C," of 1580, 313; "Cout. Not.," 185; Desmares, 293; "Gr. 
 Cout.," p. 369; "N.R.H.," 1891, 188. Municipal charters, Laon, etc. ; "Ord.," 
 XI, 186, 233, 236, etc.; P. de Fontaines, 15, 14; "Jostice," 253; "Reims," 
 1520, 6; "A. C, Champ.," 10; "Vitry," 26; "Amiens, T. A. C," 63, 70, 82; 
 Marnier, "Picard.," 15; Guynes, ed. Taillar, p. 213; "L. de Droiz," 857. 
 On "Olim," I, 715, cf. Glasson, VII, 506; Brunner, p. 699 (the text contem- 
 plates the right of reversion in the most formal manner under the form of a 
 succession by some special right, and it is sought to do away with it by de- 
 jiarting from the rule, "Personal belongings do not ascend "). Thus we believe 
 that M. Glasson is mistaken in denying the existence of the right of reversion 
 during the feudal period, whether it be in countries of written law or in coun- 
 tries of Customs: "Schwabensp.," I, 16. 
 
 646
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS. OF HEIRS [§ 458 
 
 first of all looked upon by the donor as a conditional act, an act 
 of generosity which was only meant for the donee himself, and, 
 at the very most, for his children or his descendants; if he had 
 no posterity, the property which had been given reverted back 
 to the donor. This conception, which was abandoned for ordi- 
 nary gifts, subsisted in the case of gifts made by ascendants to 
 their descendants, no doubt because there was found therein an 
 opportunity to keep the property in the family.^ — In countries 
 of written law the reversion took place more fully; there was 
 seen therein the same effect as an implied condition subsequent 
 would have,^ and, consequently, the property reverted to the 
 donor free from every charge.^ The countries of Customs gave 
 the ascendant lesser rights, perhaps because whatever advan- 
 tage he lost by way of reversion he recovered by way of repur- 
 chase and the reservation. Reversion was looked upon as the 
 exercise of a true right of intestate succession; ^ the donor only 
 
 1 Celebrated controversy among the Glossators to decide whether the mar- 
 riage portion ought to be restored, even in case there were cliildren. Bul- 
 garus, who agreed with the texts, maintained this; Martinus, who was of 
 a more practical turn of mind, denied it. The wife of Bulgarus having died 
 without leaving any children, the father-in-law of this jurisconsult consulted 
 Martinus. "If I were in Bulgarus's place," said the latter, "I would not give 
 you back the marriage portion; but in his case, unless he contradicts himself, 
 he should give it back to you." Martinus thought that he had found a very 
 good opportunity of confounding his rival. But this was not so at all. Bul- 
 garus restored the marriage portion without hesitation, to the great disappoint- 
 ment of Martinus. Thenceforth the opinion of the latter prevailed in practice, 
 for the disinterestedness of Bulgarus found few imitators; and we must indeed 
 admit that the object of the marriage portion is to provide for the mainte- 
 nance of children. Cf. the Edict of 1456 as regards Provence. 
 
 2 The reversion of the old law took place "ipso jure" in the South as well 
 as the North; at Rome the "pater" only had an action for the restoration of 
 the marriage portion by succession in the direct line. The reversion belonged 
 not only to the paternal ascendants, but to the maternal ascendants, and some- 
 times to'- every relative; it was applied to every gift, and not merely to the 
 marriage portion. If the donee had children, the reversion did not take place; 
 this was not so in the case of marriage portion by succession in the direct line. 
 We can see how the reversion differed from the Roman institution that must 
 have served as its prototyi^e. Judicial law saw in these differences happy 
 innovations and invoked the not very serious reason given by Pomponius, 
 Dig., 23, 3, 6, in order to justify the Roman rule, " Ne et filia) amissa; et pecuniae 
 damnum sentiret." Beaumanoir reproduced it: "One is more easily recon- 
 ciled to one loss than to two," says he, "and one must encourage gifts for the 
 benefit of children"; he states that there were controversies as to the existence 
 of the reversion (14, 23). Cf. Ficker, III, 588; Argou, II, 22. 
 
 ' Excepting for the mortgage over the marriage portion, which the wife 
 of the donee had, Civil Code, 951. 
 
 ^ Perhaps the reversion to the stock, of personal belongings in the collat- 
 eral succession, was the decisive analogy which directed the jurisconsults of 
 the countries of Customs. Perhaps they should have made of the reversion 
 a method of succession in order to avoid the difficulties which would have 
 resulted from the restoring of ownership carried out by the donee in accord- 
 
 647
 
 § 458] INTESTATE SUCCESSION, GR.A.TUITOUS CONVEYANCES [Chap. IV 
 
 took back the property which had been giv^en if he found it still 
 in the hands of the donee and in the same condition as when 
 it was given; conveyances, grants of mortgages and servitudes, 
 could be set up against him, as against every heir; and, as every 
 heir does, he contributed to the payment of debts; his right only 
 affected the immovables which were personal belongings, and in 
 order to exercise this right he had to accept the inheritance; all 
 the more did he have to be called upon to collect it (which ex- 
 cluded relatives of an illegitimate child). ^ — AboHshed by the 
 Law of the 17th Nivose of the year III, reversion was admitted 
 again by the Civil Code, Art. 747, under its customary form, 
 that is to say, by way of an anomalous succession.^ 
 
 § 459. Collaterals.^ — The system of succession as affecting col- 
 laterals can be summed up for countries of written law in the 
 following principle: The nearest relative of the deceased is pre- 
 ferred to the furthest removed, excepting for the application of 
 the privilege of the double tie and representation. The same 
 rules apply in countries of Customs for movables and acquests, 
 but they are not applied exactly to personal belongings, as we 
 shall see. 
 
 § 460. The Sams. — (A) Nearest in Degree.^ This rule met 
 with so many obstacles that it passed almost into the condi- 
 
 ance with the complicated proceedings of disseisin-seisin; it is obvious that 
 these proceedings were inconsistent with the revocation of the right of the 
 donee, "ipso jure." In countries of written law the question of the transfer of 
 ownership was more simple. 
 
 1 Loysel, 333 (hihl.) ; see Fer Here, Guyot, etc.; Pothier, "Don.," 3, 4; "Succ," 
 2, 3. 
 
 2 Cf. Civil Code, Art. 747, 766, 351, 352. — Reversion by agreement, 
 ibid., 951, 952. 
 
 ^ Although the collaterals have always been excluded by the descendants 
 from the ordinary succession, this was not so with regard to the right to the 
 " Wergeld": a part of it was reserved for them, because they assisted in taking 
 vengeance for the death of their relative: Brunner, "Z. S. S.," 1882, "G. A.," 
 1, and "D.R.G.,"II, 136. Bri^z, p. 670: at Tournay, the "honorable reparation" 
 for homicide all goes to the eldest son, whereas the "profitable reparation" 
 (pecuniary) is equally divided among the children. — Conversely, the suc- 
 cession of collaterals was not organized among the Franks, — at least, in 
 the case of land, — before the Edict of Chilperic; the land was redistributed 
 among the "vicini" in conformity with the system of collective ownership 
 which had continued to exist where the Franks were found to be grouped 
 together in "vici" {Heusler, II, 575; Schroeder, 320), a system destined to 
 disappear rapidly when it came in contact with the Romans: Dareste, "Nouv. 
 Et.," pp. 304, 324, 90, 343; post, II, 179, 196; Margais, "Par. Succ. en Dr. 
 Mus.," 1899; "R.de Leg.," Ill, 54. — C/. "Succession to the Throne": "Ass. 
 de Jer.," II, 395, ed. B. 
 
 * The reckoning of degrees of relationship was made in certain Customs 
 according to the Roman laws, and in others according to the Canon law; but 
 in the end the Roman method prevailed almost everywhere. — "Ass. de 
 J6r.," "C. des B.," 53 et seq. 
 
 648
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 460 
 
 tion of an exception.^ — (a) " Paterna paternis, materna maternis,"^ 
 and by applying this maxim the paternal personal belongings go 
 to the collateral who is furthest removed in the paternal line 
 rather than to the nearest collateral or ascendant in the maternal 
 line, and vice versa. One collateral thus could not prevail over 
 another by reason of his being of a nearer degree, excepting if 
 they were both in the same line.^ — (6) As a general thing, resort 
 to the origin of possessions is compulsory and prevents taking 
 into account the proximity of the degree. In this respect the 
 Customs vary a great deal: ordinarily, three principal systems are 
 to be distinguished: 1st. According to Customs relating to the 
 stock ("Tours," "Mantes," "Reims," etc.),^ the personal be- 
 longing passes to the descendants of the first person who ac- 
 quired it; it returns to the stock from which it has been detached.^ 
 As many successions as there were personal belongings having a 
 distinct origin, together with very complicated inquiries as to 
 the genealogy of each one, — such were the vices of this sys- 
 tem, which system was the most faithful to the conception of 
 the conservation of possessions in the family. 2d. According to 
 Customs of the side and line ("Paris," "Meaux," and the majority 
 
 1 See "Privilege of the Male Line"; Ficker, II, 257 (one-third to the women)- 
 
 2 In Friesland, in Switzerland and at Hamburg partition by halves of al^ 
 the property among both hnes, as is done according to the Civil Code, 733 ; 
 Britz, 681, 686. 
 
 ^ Competition between ascendants and brothers and sisters. (A) Countries of 
 uritten law. Brothers and sisters of tlie whole blood compete with ascend- 
 ants. — (B) Countries of Customs. The Customs are divided. Generally 
 brothers and sisters are excluded by ascendants from the succession to mov- 
 ables and acquests and exclude the ascendants from the succession to personal 
 belongings: Argou, II, 22; Stobbe, V, 108. Customs according to which the 
 mother is excluded by the father, and even by the brothers and sisters; 
 brothers and sisters of emancipated children exclude the father and mother; 
 brothers and sisters living in a community: at the death of one of them the 
 succession goes to the community, etc.; Heusler, II, 185 {cf. 608): if the ties 
 of blood prevail the father and mother are preferred; on the contrary, the 
 intcrestof the house may give the brothers and sisters the ascendancy : "Sal.," 
 69; "Rib.," 56; "Alam.," 95; "Fris.," 19; "Sachsensp.," I, 17 (preference 
 of the father and mother); "Burg.," 51, 2; 78, 1 (preference of brothers in 
 the succession of the brother who has partitioned the family possessions 
 with his father); Fertile, IV, 70; Lehr, "Dr. Scandin.," 382; "Dr. Russe," I, 
 414; Britz, 078; Law of Niv., year II; Civil Code, 748. — "Ass. de Jerus.," II, 
 284, ed. B.; "Siete Part.," 7, 13, 4. 
 
 * Chnisemartin, 404: "The property should go whence it came." "Jus 
 recadentia?, revolutionis," "Ruckfallsrecht." Thus the family community is 
 reconstituted: Blackstone, II, 14; Ficker, III, 463; Lecoq, "Qu.," 87; Lauriere, 
 on "Paris," 329; Britz, 682. 
 
 ^ Stock, trunk, root, branches, bough, — so many expressions drawn from 
 the use of genealogical trees. The lineage is a series of relatives, and side and 
 line are understood to apply to the paternal or maternal side, and, in one of these 
 sides, to the line to which the first acquirer belongs: Ficker, II, 188; HI. 
 
 649
 
 § 460] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 of the others), the personal belonging goes to any relatives of the 
 first person acquiring it, descendants first of all, and if there are 
 none, then to collaterals; if the first person acquiring it has left no 
 descendants the personal belonging goes to the family of his brother 
 or of his uncle, — to an inheritance to which it had never be- 
 longed, however. This system, which was a little more simple 
 than the preceding one, was still very complicated, 3d. The 
 Customs of the side only ("Chartres," etc.) gave the nearest 
 paternal relative of the deceased all the paternal personal be- 
 longings, and to the nearest maternal relative all the maternal 
 personal belongings. Thus the difficulties of application were 
 done away with, but at the -risk of despoiling one family for the 
 benefit of the other; thus In the paternal line are found the rela- 
 tives of the grandfather and the grandmother; the personal be- 
 longings coming from the grandfather may pass to the relatives 
 of the grandmother, if they are nearer related to the deceased.^ 
 
 § 461. The Same. — (B) Privilege of the Double Tie.^ This 
 Roman prerogative, which was based upon the conception of pre- 
 sumed affection, gave the brothers and sisters of the whole blood 
 the entire succession in preference to half-brothers, that is to say, 
 descendants of the same blood or descendants of the same 
 mother. Certain of the Customs applied this rule to successions 
 to movables and acquests, and it was sometimes even extended 
 to collaterals other than brothers and sisters.^ With relation to 
 personal belongings the privilege of the double tie could not be 
 conceived of; but the brothers or relatives of the whole blood took 
 in both lines, because they belonged to both lines; descendants of 
 the same blood or descendants of the same mother only took a 
 share in one line, the one to which they belonged. 
 
 § 462. The' Same. — (C) Representation in the collateral line 
 
 1 Argou, loc. cit.; Britz, 681 (Antwerp, Ostend, etc.). 
 
 2 Guyne, "De la Repres. et du Double Lien," 1779; Mignot, id., 1777; 
 Serres, "Inst.," p. 297. — Law of the 17 Niv., year II, Art. 89 (suppression); 
 Civil Code, 733; Britz, 684. 
 
 _^ The Customs are very much divided; some do not admit it: "Paris" (id., 
 Civil Code, 733), "Melun," "Sens"; others only allow brothers and sisters 
 to enjoy it: "Saint-Quentin," "Dreux," and nephews as well, " Orleans "; there 
 are some that apply it without Hmit: "Blois," "Montargis"; Loysel, 335; 
 Pasquier, "Inst.," 495; Argou, II, 23; Britz, 684. — Same hesitation in for- 
 eign countries: Brunner, "Erbfolg.," 28; Pollock and Maitland, II, 300 (bibl.). 
 The English common law absolutely excludes relatives of the half blood, even 
 from the succession to personal belongings; but in the time of Bracton, fo. 65, 
 6, they disputed: Blackstone, II, 14; Chaisemartin, 403; "Sachsensp.," I, 3; II, 
 20; "Schwabensp.,".3; Stobbe, V, 116; Heiisler, II, 612; Picker, III, 444, 213; 
 Lattes, " Dir. Cong. Lomb.," p. 262.— Also, Loysel, 335; " T. A. C, Bret.," p. 479. 
 
 650
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 4G3 
 
 was rejected by certain Customs and admitted in others, and then 
 it was sometimes admitted to infinity and sometimes within limits 
 fixed by law, — that is to say, to nephews and nieces, following 
 the Roman law. " The more the Customs advanced towards the 
 North," says Lebrun, 3, 5, 2, 3, "the more were they hostile to 
 the right of representation." 
 
 § 463. The Same. — (D) Devolution. Collaterals to infinity 
 inherited, no matter of what degree they were, in the last stages 
 of the Customary law, and even, according to the Law of the 17th 
 Nivose, year 11.^ But in old times relationship was limited in its 
 effects over inheritance;- the barbarian laws and certain of the 
 Customs, being connected with the Roman or Germanic methods 
 of computation, refused the right to inherit to those beyond the 
 5th, 6th and 7th degrees, and sometimes even the 10th degree. 
 Sometimes, even, the clauses in feudal grants or enfranchise- 
 ments of serfs, restricted the right of inheritance still more. The 
 Civil Code, in Article 755, declares that beyond the 12th degree 
 relatives do not inherit. This is a solution by way of compromise 
 between the system of presumed affection and that of the rights 
 of relationship. — If there are no relatives in one line the personal 
 belongings which would have reverted to the lord belonged first 
 of all to him;^ it is only in the sixteenth century that devolution 
 from one line to another, or, rather, the passing of personal be- 
 longings to the heir of movables and acquests, was admitted.'* 
 "Where one branch fails the lineage inherits," Loysel, 342. "Fis- 
 cus post omnes etiam in centesimo gradu." 
 
 » "Berry," 19, 1; Law of 17 Niv., year II, Art. 75. 
 
 ■ The limitation of relationsliip does not very well agree with family soli- 
 darity; but originally it may be that there was no succession outside of the 
 circle of the "sui," which would give three degrees (sons, brothers, nephews). 
 The other restrictions are drawn from the Roman law: "Thur.," 34; "Rib.," 
 56, 3, etc. (5th degree); "Sal.," 44, 9 (Gth degree); "Wis.," 4, 1, 7; 4, 2, 11; 
 "Bai.," 15, 10; "Roth.," 1.53; "Schwaben.sp.," 14; Gratian, c. 2, C, 35, q. 5 
 (7th degree); "Sachsensp.," I, 33; Beaumanoir, 14, 3 (4th degree). — The 
 10th degree is only the 5th canonic degree reckoned in the Roman way: 
 "Inst. Just.," 3, 5, in fine; Glanville, VII, 1; Bracton, fo. 67, 372 b. The limi- 
 tation of Hilationship is in accord with the custom of representing it by means 
 of the human body, and not by using genealogical trees: Chaisemartin, 387; 
 Brunner, 44, 37; Heusler, II, 591; Schroeder, 319; Stobbe, § 287; Pollock and 
 Maitland, II, 305; Picker, I, 475; Valroger, "Celtes," p. 468 (second cousins); 
 Dareste, "Etudes," 329. 
 
 « Desmares, 184; "Cout. Not.," 92; Lecoq, "Q.," 87; Boutaric, I, 78; 
 Masuer, 33. Sometimes the same rule is applied to the succession to the 
 movables: "Ohm," II, 787, 418; CI. Liger, 431; Zeeland, "Z.S.S.," III, "G. A.," 
 31; Masuer, 32, 8. Exclusion of the ascendants by the Treasurer. 
 
 * Dumoulin, on J. Lecoq, S7; "Paris, N C," 330; Loysel, 342; Lauribre, on 
 "Paris," 330; Glasson, VII, 477; Picker, III, 464. 
 
 651
 
 § 464] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 § 404. The Surviving Spouse.^ — (A) Coimtries of Written Lnw.^ 
 If there are no lawful relatives the surviving spouse succeeds to 
 the predeceased spouse; if there are relatives, he only has a 
 right to the poor man's fourth in conformity with the "Authentic," 
 "Praeterea": the surviving spouse who is poor takes one-quarter 
 of the inheritance of the predeceased spouse who is rich, when 
 there are at least three children; the share of a male, if there are 
 more children. This quarter is usufruct if there are children and 
 ownership if there are none. In the eighteenth century courts 
 restricted the right of the surviving spouse to a mere allowance 
 for life, even when there were collaterals. 
 
 § 465. The Same. — (B) Countries of Customs.^ Originally, 
 if no family survived, the Treasury was preferred before the sur- 
 viving spouse, who had to be contented with the portion of the 
 survivor which was established for his benefit. But, when atten- 
 tion was paid to the notion of the presumed affection of the de- 
 ceased in order to regulate his succession, under the influence of 
 the Roman ideas, it led to a recognition of a reciprocal right of 
 succession between the spouses, giving a preference over that of the 
 lord or the Treasury,^ and which was of the same nature as that of 
 relatives.^ The Law of November 22 to December 1, 1790, gen- 
 eralized the succession of the surviving spouse if there were no 
 relatives living.^ 
 
 1 Post: "Rights of the Widow" (bibl.) ; Guyot, see " Quarte" ; Sevres, "Inst.," 
 Ill, 10, 3; Louet, "F.," 22; "V.," 13, etc. — Viollet, 853; Stobbe, § 294; Fertile, 
 § 127. — Dareste, "Nouv. Et.," pp. 304-327; "Z.S.S.," 1898, "G. A.," 107; 
 Ficker, IV. 
 
 2 Roman law: " Bon. possessio unde vir et uxor"; "Cod. Theod.," 5, 1, 9; 
 "Cod. Just.," 6, 18, 1 (Authentic "prseterea"); "Novella," 53,6; 22, 14; 117, 5; 
 "Novella," 106 of Leo. — "Siete Part.," VII, 13, 7. 
 
 5 Loysel, 340: "The wife does not succeed to the husband, nor the husband 
 to the wife"; Bacquet, "Aubaine," 34; "Norm.," 146; "Maine," 286. — Ordi- 
 narily, the Customs remain silent, which proves that they know nothing of 
 succession between spouses: "Ass. de Jerus.," "C. des B.," 186: "No man is 
 his own heir at his death, as is his wife." She excludes, says this text, invok- 
 ing " Genesis," ii, 24 ("Vir et uxor unum corpus"), even the sons and daughters 
 and fathers and mothers and brothers and sisters. But it seems that she only 
 acquires a limited ownership. Cf. c. 187. In the same way at Liege, by virtue 
 of the marriage agreement, the surviving spouse takes all the possessions left 
 by the other; but the right of devolution prevents his abusing this favor to 
 the prejudice of the children: "Z. S. S.," loc. cit. (one-half to the widow, one- 
 third to the dead). 
 
 " "Berry," 19, 8; "Poitou," 299; Louet, "F.," 22 (Order of 1582). For- 
 feiture in case of the wife's adultery and of a separate maintenance decreed 
 against the husband. 
 
 * Pothier, "Cout. d'Orleans," Introduction to Vol. XVII, no. 35: the spouse 
 has the seisin. Contra: Civil Code, 767; Britz, 693, 690: he is the necessary 
 heir (Flanders). 
 
 6 I, 4. Cf. Law of March 9, 1891. 
 
 652
 
 Topic 2] INTESTATE SUCCESSION. . VARIOUS KINDS OF HEIRS [§ 46G 
 
 § 466. Irregular Successions. — In a strict system of individual 
 ownership ^ the possessions of a person who has died without rela- 
 tives capable of succeeding him should be "res nuUius," which 
 could be seized upon by the first corner.^ But this rather imprac- 
 tical solution was discarded from the time of the Frankish period ; ^ 
 the royal Treasurer appropriates the possessions in case of the 
 failure of heirs, no doubt following the example of what took place 
 at Rome^ and because of the royal patronage over individuals 
 who had no family. The right resulting from failure of heirs ^ 
 which belonged to the lords-justices (lay or ecclesiastical, indi- 
 viduals or towns), passed away as a consequence of the feudal 
 movement, and the king only kept it in those localities where he 
 himself administered justice. Alongside of this right,^ and acting 
 almost as different interpretations of it, are the rights of succes- 
 sion to the estate of deceased aliens and of succession to the estate 
 of an intestate bastard,^ and even the right of confiscation.^ 
 
 1 Cf. Rights of the "vicini": Heusler, II, 616. 
 
 2 At Rome, usufruct "pro herede." 
 
 3 "Sal.," 44, 10; 60, 2; 62: "Fris.," 19, 2; "Bai.," 15, 10, 4; "Roth.," 223: 
 Brunner, "D. R. G.," II, 48, 71; Zeumer, "Forsch. D. Gesch." 
 
 * Girard, "Man.," p. 878. 
 
 ^ The heirs could at first only claim successions that were vacant within a 
 year and a day ("Ass. de Jer.," "C. des B.," 196), then during 10 and 30 years: 
 "T. A. C., Norm.," 21, 2; "Sachsensp.," I, 28; "Montpellier," 114. As to the 
 prescription running against the petition of the heir, see Ferrikre, Guyot, — • 
 "Abr. de C. des B.," 34 et seq. 
 
 * Administration of vacant successions by the public officers, but only 
 since the twelfth century, for up to that time they are simply conferred upon 
 the lord: "Fribourg en Beam," 4; " Saint- Antoine en Rouergue," 1144; 
 "Albi," 20. The custodians pay the debts: "L. d. Droiz," 897 (appointment 
 of a "curator" by law if the creditors ask for it). Details in R. Caillemer, 
 p. .58. Cj. in the existing law the distinction between a vacant succession 
 which nobody claims, not even the State, and for which a "curator" is named, 
 and the succession to which the heirs have failed, which escheats to the State: 
 Guyot, Ferriere, see "Curateur k Succ. vacante." In fact, there is a vacancy 
 as soon as the heirs of the first degree have renounced: Fothier, Introduction 
 to Vol. XVII, "Gout. d'Orleans," no. 67. 
 
 ' One does not find in failure of heirs the penal character which distinguishes 
 confiscation, and from this difference, which was scarcely perceptible originally, 
 there resulted in time the two opposite systems: Blnckstone, II, 16, 18. 
 
 8 With the confiscation of the possessions of a man condemned to death or 
 to banishment will naturally bo connected, although there is no penal con- 
 demnation, that confiscation which affects the succession of usurers ("T. A. C., 
 Norm.," 49, Dauphin6, Savoy, for example "Evian," 4; "Fribourg en Uecht," 
 57), of suicides, persons dying intestate or unconfessed ("desperati"), both 
 guilty towards the State or the Church. The unconfessed: "Summa Norm.," 
 20; "Et. de St. Louis," I, 93; Boutanc, I, 39; Du Cange, see "Intest." The 
 intestate is only a sort of unconfessed man; he has not made any provi- 
 sions for the salvation of his soul; his succession was first of all confiscated, 
 and when legislation became miklcr they limited themselves to distributing 
 his property for pious uses: GlanviUe, VII, 16. The "intcstia" of Roussillon 
 are probably only a relic of persons in mortmain. As to suicides, cf. Loysel, 
 837: "The man who puts himself to death in despair has his property confis- 
 
 653
 
 § 466] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Ciiap. IV 
 
 The prerogative of the lord-justice found itself limited in two 
 directions: 1st. As a general thing, it only aflFected allodial holdings 
 and movables, because fiefs and copyholds reverted to the lord 
 who had granted them; these kinds of possessions were never un- 
 occupied and without an owner. ^ 2d. Successions resulting from 
 failure of heirs were often divided between the lord and the chari- 
 table organizations; ^ they were appropriated for public charges, 
 especially for the succor of the poor, as an accidental and un- 
 foreseen resource which humanity prescribed should be used to 
 benefit those who had been disinherited by fortune. If the lord- 
 justice divided the inheritance with the poor, all the more should 
 he indemnify the creditors of the inheritance, at least within the 
 limits of the assets which he collected ("intra vires ").^ Such was 
 the general custom based upon equity; but it was rather difficult 
 to justify from the strict legal point of view, because the lord 
 seems rather like a grantee by some special right or a privileged 
 occupier than an heir ^ {cf. Law of Nov. 22, — Dec. 1, 1790, 1,3). 
 § 467. The Revolutionary Law began by abolishing the ine- 
 qualities which resulted from the right to the preference of males 
 and the right of primogeniture (nobles' possessions, D. March 15, 
 
 cated by his lord." His movables, at least, were confiscated, and sometimes 
 his immovables themselves; and CI. Liger, Art. 1435, establishes the appU- 
 cation of the archaic right of ravaging to the lands of the suicide. In time 
 distinctions were drawn according as to whether the suicide was conscious or 
 unconscious of his act, and whether the suicide did or did not take place in 
 order to escape a capital punishment. Cf. Dig., 48, 21; "Summa Norm.," 
 20; "Et. deSt. Louis," I, 92; "T. A. C, Bret.," 296; "A C, Bord.," 41; Beau- 
 manoir, 69, 12 (Table, see "Suicide"); "Gr. Gout.," p. 664; "Ohm," I, 
 442, 6, etc.; Boutaric, I, 39; II, 15 (rejects confiscation); Bracton, II, 504 
 ("felonia deseipso"); "Fleta," I, Bi; Britton, I, 7. Diversities in German law : 
 "Sachsensp.," II, 31, 1; Brunnenmeistcr, "Quell, d. Bambergensis," p. 93. 
 Rights of the executioner over the condemned whom he executes: "Gr. 
 Gout.," 657. As to "Hagestolzen," or unmarried men, cf. "Z. S. S.," 1901, 
 "G. A.," 1. Succession of emigrants, cf. "Lois civiles interm." 
 
 1 Glamille calls the lord "ultimus heres": Glasson, VII, 463; "T. A. C., 
 Norm.," 88 et seq.; "Schwabensp.," I, 32 et seq.; 159. 
 
 2 Details and texts in R. Caillemer, p. 75; Britz, 691. In England the suc- 
 cession of the intestate was in the end distributed under the supervision of the 
 Ghurch: Pollock and Maitland, II, 356. 
 
 ^ Cf. in R. Caillemer, p. 119, the discussion of this question: "Roth.," 223: 
 the king does not pay debts; Fertile, IV, 134, 127; "Ohm," II, 328. Cf. to 
 the contrary: "Lunas," 7; "Riom," 5; "Aries," 83, etc. 
 
 * We may observe a tendency of the old law to confer the succession of a 
 person upon the body or the estabhshment to which that person belongs; for 
 example, the succession of a monk to his monastery, and that of a patient to 
 the hospital where he was cared for. Viollet, 487 : the Charite of Lyons adopted 
 its orphans. Law of the 15th Pluv., year XIII, Art. 8. The Vestry Board re- 
 ceives the possessions of the priest. The possessions of (secular) ecclesiastics 
 belonged first of all to the Church; later on, in the fourteenth century, their 
 relatives succeeded to them: Loysel, 343 et seq. 
 
 654
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 467 
 
 1790; plebeians' possessions, D. April 15, 1791, which were passed 
 in spite of the protestations of the deputies from Normandy and 
 Beam). In the countries of written law the Novella, 118, does 
 not recognize the Customary privileges, but freedom to make a will 
 allowed their re-establishment; this freedom was attacked, and if 
 the opposition of the Romanists and the deputies from the South 
 for a time prevented the reform from coming to a head, on the 
 25th of October, 1792, the Convention did away with trust-entails 
 and renunciations to future successions; and on March 17, 1793, 
 it abolished the power to leave by will to the direct line; the 
 Decree of the 5-12 Brum., year II, and the I7th Niv., year II, 
 restricted within the narrowest limits the portion which could be 
 disposed of. 
 
 This last law, which can be called the " Succession Code of the 
 Convention," contains two other series of provisions: 
 
 (a) Devises aiming to maintain the old rules were annulled, 
 dating from July 14, 1789, and partitions of successions which 
 had vested since that date were to be remade according to the 
 new principles. We see that the Law of Nivose, like that of 
 Brumaire, also, had a retroactive effect. At the same time that 
 they proclaimed in the Declaration of the Rights of Man that 
 the retroactiveness of laws was a crime, the members of the Con- 
 vention applied it to matters of succession, either out of hatred of 
 the Old Regime or else under the influence of deputies who were 
 interested in this iniquitous measure; they did not want for soph- 
 isms whereby to justify themselves in their own eyes; they pre- 
 tended that, dating from 1789, equality had been established, and 
 that all they did was to apply a pre-existing principle. This was 
 the distinction of a casuist, which did not prevent the results 
 of this law from being deplorable; they had to repeal it in the 
 year 1 11.^ 
 
 (6) In the devolution of succession they considered neither the 
 nature nor the origin of possessions; they formed but one single 
 mass, in the same way as the Roman legislation, which simplified 
 their transmission a great deal. The right of inheritance is con- 
 ferred first upon the descendants, who succeed in equal portions, 
 either "per capita" or by means of representation; it is forbidden 
 to favor any of them, and the special gifts must be shared alike, 
 
 1 Laws of the 5th Flor., 3d Fruct., year III; 3d Vend., year IV; 18th Pluv., 
 year V; Glasson, "R6f. Soc," 1889, II, 217; Sagnac, pp. 234, 325; Aron, 
 "N. R.H.," 1901,618. 
 
 655
 
 § 4C)7] INTESTATE SUCCESSION, GRATUITOUS CONVEY.ANCES [Chap. IV 
 
 even by those who decline. Contrary to the axiom of the 
 Customary law, "Bastards do not succeed," the Laws of June 
 4, 1793, and of 5-12 Brumaire, year II, had given to mere natural 
 children the same rights of succession as to legitimate children, 
 and to children born of an adulteress one-third of these rights 
 (with the retroactive efTect abolished by the Laws of the 15th 
 Thermidor and the 3d Vend., year IV).^ If there are no descend- 
 ants, the inlieritance is divided into two equal parts, one for the 
 paternal line, the other for the maternal line; and if there is any 
 occasion for it, this division is followed by a redivision. In each 
 line they do not seek, as would be done under a system of succes- 
 sion based upon presumed affection, to ascertain who is the near- 
 est relative of the deceased, but rather who are the relatives who 
 are descendants of the nearest ascendants of the deceased; in this 
 way they finally establish a series of lines or groups of kindred, 
 that of the father and that of the grandfather, etc., which are 
 called successively to the inheritance. This unexpected resur- 
 rection of the Germanic system of groups of kindred, which was 
 at that time so much forgotten in Customary France, seems to. 
 be accounted for by two causes, — one which is rather archaic, 
 and the other which is rather revolutionary: 1st, it was proposed, 
 just as in the Customs, to restore the possessions as nearly as 
 could be to the line or the stock which had provided them; 2d, this 
 proceeding had the advantage of dividing the property among a 
 great number of persons, for it must often have happened that 
 each group of kindred contained many members. In each group 
 the descendants excluded ascendants, — for example, the brother 
 is preferred to the father; this privilege for the younger genera- 
 tions accords with the old principle that " Personal belongings do 
 not ascend," but perhaps in establishing it, it was only desired to 
 attach the classes which were most naturally fitted to support it 
 to the new political system. Representation is admitted to in- 
 finity for the same reason, and thenceforth partition takes place 
 by stocks. The privilege of the double tie is abolished, but those 
 of the whole blood have a share in each line. If there are no rela- 
 tives (and they succeed without the limitation of degree) the sur- 
 viving spouse is called ; as well say that he, or she, will hardly ever 
 succeed; not very much favored in this direction, they are still 
 less favored in that which concerns the portions of the survivor, 
 such as dower, which the old law had instituted in their favor; 
 * Sagnac, pp. 317, 356. 
 G56
 
 Topic 2] INTESTATE SUCCESSION. VARIOUS KINDS OF HEIRS [§ 467 
 
 the Revolution abolished them. The State is the ultimate 
 heir. 
 
 Two motives dominate the Revolutionary legislation, — a re- 
 gard for Equality, and the desire to simplify the law of succession 
 by parceling the fortunes. It is based on the idea which was so 
 widespread in the eighteenth century that the individual has no 
 right to make a disposal of his possessions to take place after his 
 death; this right belongs to the law alone. And this legislation is 
 inspired, not by the probable wishes of the deceased, but by the 
 political reason. Succession is not a sort of presumed will, the will 
 of those that death has taken unawares before they had made 
 known their last wishes; in theory it is looked upon as a regulation 
 in the interest of the public, regarding the final disposal of pos- 
 sessions which have been abandoned by their owner, — a theory 
 perhaps of a very momentous nature, because the State might take 
 advantage of it in its own interest to deprive the relatives who 
 were capable of inheriting. But, as a matter of fact, they are far 
 from contemplating giving it this meaning; the State gains noth- 
 ing; it limits itself to protecting the family against the caprices 
 of individuals. In short, the system established by the Law of 
 Nivose is an incoherent amalgamation of new ideas and obsolete 
 principles.^ 
 
 1 Cf. various opinions: "N. R. H.," 1901, 616. 
 
 657
 
 § 4G8] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 Topic 3. Acquisition of Heirship and its Consequences 
 
 § 468. The Vesting of the Succession. 
 
 § 469. Incapacity to Succeed. 
 
 § 470. Disinheritance. 
 
 § 471. Disqualification. 
 
 § 472. The Role of the Heir. 
 
 § 473. Acquirement of a Title by 
 
 Inheritance. 
 § 474. Hereditary Seisin. 
 § 475. Acceptance and Rejection. 
 § 476. The Same. — (A) Acceptance 
 
 pure and simple. 
 
 § 477. The Same. — (B) Renunciation. 
 § 478. The Same. — (C) Time to make 
 
 an Inventory and deliberate. 
 § 479. The Same.— (D) The privilege 
 
 of the Inventory. 
 § 480. Partition between Co-heirs. 
 §481. Forms of Partition. 
 § 482. Effects of Partition. 
 § 483. Refunding. 
 § 484. Payment of Debts. 
 § 485. Separation of Assets. 
 
 § 468. The Vesting of the Succession ^ only takes place to-day 
 as a result of natural death ("nulla viventis hereditas").^ But 
 formerly it also resulted from events which were likened to death, 
 and which one might be tempted to term in a general way civil 
 death, although this term was hardly applied excepting to cases 
 of criminal condemnation and entering into religious orders.^ 
 Such were, in the very old law, leprosy,'* the loss of sight, madness,^ 
 and perhaps the serious infirmities which accompany old age.® 
 Absence ^ had not so radical an effect, although it authorized the 
 handing over of the possessions of the one who was absent ^ 
 to his nearest relatives. In fact, the law counted so much on the 
 
 1 Pothier, III, 1; Fertile, IV, 119; Stobbe, § 279. 
 
 2 " Commorientes," Civil Code, 720; Pothier, III, 1, 1; Dig., " de reb. dub.," 
 9, 22; Law of 20 Prair., year IV; Zeijs, "Le Nil," § 7; "Acad. leg. Toul.," 187 
 (Fons). 
 
 3 Post, "Persons," Loysel, 345; Pothier, "Pers.," 70; Pertile, IV, 120. The 
 excommunicated, "T. A. C, Norm.," II, 3. 
 
 * Post, "Persons"; "Roth.," 176: he is "tanquam mortuus." 
 » "Prisons"; Amira, "Erbenf.," 151. — C/. "Wis.," 3, 4, 12. 
 ^ Cf. giving up of possessions, post. 
 
 ' As to absence, cf. Ferriere, Guyot; ViUequez, "R. h. Dr.," II, 209; "Dig. 
 Ital.," and "Encicl. Giur. Ital.," see "Assenza"; Stobbe, V, 10 (bibl.); Civil 
 Code, 112 et seq. 
 
 * An absent man is one who leaves his domicile and is not heard from any 
 more. It is Domicile which determines the personal status of a person; at 
 first it is not very clearly distinguished from citizenship or connection with 
 a lord's domain. During the monarchic period one could have a domicile: 
 
 (a) of origin, that is the domicile of the father and mother at one's birth; 
 
 (b) of fad, resulting from establishing oneself in some place with intent to 
 remain there; (c) of law, in the place where one has a benefice or an office, and 
 only in so far as matters relating thereto are concerned; (d) of choice, or one 
 agreed upon for the carrying out of a contract, etc. ; (e) with respect to marriage, 
 a residence of six months or one year in the parish; (/) ivith respect to tallage: 
 Argou, I, 12; see Guyot, Ferriere (bibl.); Civil Code, 102; Homeyer, "Heimath" 
 ("Berl. Abh.," 1852). 
 
 658
 
 Topic 3] ACQUISITION OF HEIRSHIP XND ITS CONSEQUENCES [§ 4G9 
 
 possibility of the return of the absent man that it presumed 
 him to be Hving as long as the contrary was not proved, or as long 
 as a hundred years had not elapsed since the date of his birth. ^ 
 His possessions were administered by a curator appointed at 
 the request of the interested parties.^ After a delay of 3, 7, or 
 10 years, according to locality, the heirs presumptive^ were put 
 into a provisional possession; twenty or thirty years after the 
 last news or the disappearance, the legatees were finally put in 
 possession by the court. In such cases the spouse who was 
 present could not remarry unless proof of the death of the one 
 who was absent was produced.^ 
 
 § 469. Incapacity to Succeed, in the very old law, exists when 
 it is j^hysically (demented, idiots, lepers,^ children of tender age,^ 
 women) or morally (ecclesiastics,'' monks,^ people condemned to 
 capital punishment) impossible for the heir to be head of the 
 family; ^ 2d, when the person whom the ties of relationship would 
 call to succeed does not belong to the house (alien, bastard/" son 
 
 1 Contra : Pothier, "Introd. a la Cout. d'Orl.," XVII, no. 7: there is no pre- 
 sumption as to whether he is living or dead; it is for those who have an inter- 
 est in doing so to prove that he is alive. — Contrary to this idea, it was allowed: 
 (a) that he take part in successions opening for his benefit; (b) and that rights 
 dependent upon the death of the absentee could not be exercised by the inter- 
 ested parties (for example, usufruct). Laws of Oct. 5, 1791, 21st Vent, and 
 16th Fruct., year II. 
 
 2 "Coutume de Chatillon," Art. 72 (see Giraud, Ferrihre). 
 
 ^ Does this mean the nearest relatives at the time when the taking of pos- 
 session was allowed or at the time of the disappearance? Diversity in the 
 Customs: Stobbe, loc. cit. — If the absentee has left an agent there are diffi- 
 culties. — The spouse who is present can demand the dissolution of the com- 
 munity, and this dissolution becomes final or is bound to take place when a 
 final partition is made. 
 
 * "Novella," 117, 11; "Authentica, hodie," on I. 7; "Cod. Just.," "de 
 repud. "; Dig. X, "de spons.," 19; Bretonnier, see "Absents." Cf., however, 
 Pothier, "C. de Mar.," 106. 
 
 ^ "Summa Norm.," 25, 22, 10; "Cout. de Bareges," 2 ("pec," from "pecus," 
 idiot; "taros," imbecile). Deaf mutes: Bonnejoy, "These," 1899; "Roth.," 
 176, and "Sachsensp.," I, 4 (lepers). Dwarfs, hermaphrodites, etc.: Schroeder, 
 737. As to hermaphrodites, r/.Zeys, "LeNil," §6; Post, II, 176, 178 (bastards). 
 
 6 Probability of their living? Cf. "Alam.," 92; "Wis.," 4, 2, 17; Stobbe, 
 § 37, 280. According to several of the Scandinavian laws a child can onlj-^ 
 inherit if he has eaten or been baptiz(!d. — As to the rule, "Infans conceptus 
 pro nato habetur," cf. Lambert, "Stipul. pour Autrui," p. 166. 
 
 ' "Cout. de Bareges," 1; Loysel, 343; Stobbe, V, 17. 
 
 * According to the Roman and the canon law, the monk succeeds to his rela- 
 tives and transmits this succession to the monastery. But the Customary law 
 places him under a disability; he can neither succeed for his own adv^antage 
 nor for that of the monastery: Loysel, 345; post, "Persons"; Londry, "Mort 
 civile des Relig.," 1900 (h\h\.); Stobbe, V, 18; Laws of Feb. 20, March 26, and 
 Oct. 14, 1790; of the 18th Vend., year II. 
 
 » "Summa Norm.," 25, 9. 
 10 "Wis.," 4, 5; "Bai.," 14, 8. Children born of an incestuous union: 
 
 659
 
 § 4G9] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 who is emancipated or who has founded a separate home/ daugh- 
 ters married outside of the house -) or is set aside owing to the 
 apphcation of the seigniorial right (for example, he is a serf). 
 Capacity to succeed even depends sometimes upon equality of 
 status with the deceased; thus, the plebeian cannot succeed 
 to the noble in certain localities.^ Many of these incapacities 
 disappeared in the later law, which was especially concerned 
 with carrying out the probable wishes of the deceased. However, 
 the incapacity of aliens, bastards and monks remained, and we 
 have seen what happened with regard to the exclusion of daughters. 
 Legal persons or people in mortmain were not always deprived of 
 the right of succeeding; thus the monastery took the possessions 
 of the monks when they died. 
 
 § 470. Disinheritance. — This principle was contrary to the 
 spirit of the very old law, according to which one can no more 
 take away from a person the status of being an heir than one can 
 confer it upon him; ^ at the same time, the "foris familiatio" or 
 expulsion from the family produced the same effects.^ In its final 
 form disinheritance was borrowed in the countries of the Customs 
 from the Roman law, and the judicial practice of the countries of 
 written law. In the thirteenth century a testator could deprive 
 his heirs of only the "disposable" portion of his estate; they 
 kept the legal share and the reserve share ; ^ under these conditions 
 the simplest means of disinheriting one's heirs was to grant one's 
 "disposable" possessions on somebody other than they. When it 
 became lawful to oust them of the entire succession,'^ and this is 
 
 "Sal. em.," 14, 16; "Liut.," 32; "Roth.," 185; "Alam.," 39; "Wis.," 3, 5; 
 "Cod. Theod.," Ill, 12. — R. Caillemer, "Admin, et Conf.," 129. 
 
 1 Anticipated partition between father and children, post., "Reservation"; 
 "Sal.," 60; "Montpellier," 58. — Freund," Was in der Were verstirbt," 1880. 
 
 2 "Roth.," 181; "Liut.," 2 (girls "in capillo in casa"). Anticipated re- 
 nunciations of succession, cf. "Z. S. S., G. A.," 1889, 202. 
 
 3 "SaclLsensp.," I, 17, 33. 
 
 ' "Wis.," 4, 5, 1; "Roth.," 71, 61, 166; "Bai.," 1; "Sax.," 16, 62; "Burg.," 
 24; "L. Alam.," 1; "Faux Capit.," Ill, 326; Schroeder, 333. 
 
 * In the barbarian laws and the Capitularies to disinherit means to alienate 
 one's possessions; but we have seen that restrictions were placed upon the free- 
 dom of ahenation: Grirnoald, 5] "Liut.," 105; "Sax.," 64; Capitulary of 814- 
 827, c. 6, etc. (I, 312, 114); Dig. X, "qui filii s.," 4, 17, 1; Gnmm, "R. A.," 
 482. — On the forswearing, cf. P. de Fontaines, p. 76; Beaumanoir, 60, 7; 
 "A. C, Artois," 7, 7; Dareste, "Nouv. Et.," pp. 342, 69 (Greek law). 
 
 « P. de Fontaines, 33, 33; 44, 10; Beaumanoir, 12, 17; "Ass. de J^r.," "C. des 
 B.," 239; Boutaric, 1, 103; "Anion," 251; "Maine," 369; "Tours," 286; PeZews, 
 "Act.forens," V,31; "Schwabensp.," I, 17; II, 122. Cf. "Petrus," I, 15 et seq. 
 
 ' Ordinance of 1556; Chnssaneus, "Cons, Burg, de Succ," 13, 2. Cf. 
 exclusion of daughters, "foris familiatio." — Pothier, "Succ," I, 2, 4; Ferricre, 
 on "Paris," 318. — As to the position of the children of the man disinherited, 
 
 660
 
 Topic 3] ACQUISITION OF HEIRSHIP AND ITS CONSEQUENCES [§471 
 
 what was accepted at least by the sixteenth century, a formal 
 declaration became necessary (will, notarial deed, or declaration 
 before the judge), which moreover had no effect unless it were 
 based upon a just ground which was expressly recited.^ Though 
 this requirement did not apply to the "disposable" portion, the 
 courts found a means of protecting the interests of the family, 
 which were liable to be too readily sacrificed; at the end of the 
 sixteenth century it annulled disposals which were inspired, not 
 by a desire to gratify the legatee, but by hatred or anger against 
 an heir (action "ab irato").^ This nice search for motive left 
 the tribunals a great latitude. Just as disinheritance was ham- 
 pered by formalities, so was its revocation made easy; it could 
 be implied, — for example, it might result from the fact that the 
 man disinherited had been received by the man disinheriting 
 and had lived with him; it was even presumed, when he had 
 rendered him great services.^ The Decree of 9th Fructidor, year 
 II, abolished disinheritance, and the Civil Code has not re-estab- 
 lished it.^ — Officious disinheritance, which was also abolished 
 by the Revolutionary law, permitted the father of the family to 
 "set up" his grandchildren and disinherit his prodigal sons. By 
 this means results analogous to those of a spendthrift guardian- 
 ship were arrived at, while avoiding the scandal which comes with 
 the latter; the son who was disinherited received an allowance 
 for his support, or else the usufruct of the succession. 
 
 §471. Disqualification^ is only an implied disinheritance pro- 
 
 <^. Ricard, "Don.," Ill, 951; Remisson, "Propres," II, 7, 6; "T. A. C., Norm.," 
 10: refusal of a marriage portion to the daughter who lives "luxuriose." 
 
 1 In the sixteenth century it was agreed that the enumeration of just causes 
 of disinheritance which it contained should be borrowed from the "Novella," 
 115, c. 3, and to them was added marriage without the consent of father and 
 mother: Beaumanoir, 12, 17; "Et. de St. Louis," I, 144; "A. C, Bret.," 495; 
 "Ord." of 1556; 1579, 41 ; Declaration of 1639. IDisinheriting and revocation of 
 gifts because of ingratitude had for a long time been api)lied in this case: 
 Stobbe, § 253; Schrneder, "Z. R. G.," IX, 140 (texts); "Sachseasp.," I, 5: the 
 misconduct of the daughter does not make her lose her rights of succession. 
 Contra, various Cv^stoms: "T. A. C, Bret.," p. 507, ed. P. — Outside of legal 
 just causes, was disinheriting possible for some serious reason? Controversy: 
 Pothier, 1, 2, 4; Furgole, "Test.," 8, 2, 92. 
 
 2 The Civil Code no longer recognizes the action "ab irato." The Law of 
 Niv., year II, did not allow collaterals to be excluded and had thus rendered 
 the action "ab irato" on their behalf useless. As to disinheritance "cum 
 elogio," cf. Ricard, "Don.," I, 630. 
 
 ' Law "si furioso " (Dig., 27, 10, 16; "Arr. Pari. Paris," 1611, 1625); Ricard, 
 "Don.," Ill, 1139; Lebrun, "Succ," III, 5, 2; see Denisart. 
 
 " Laws of Oct. 14, Nov. 14, 1792, 9th Fruct., year II, Art. 20; Sagnac, 
 pp. 308, 375. 
 
 * Dig., 34, 9; Argon, II, 20; see Ferrihre, Guyol (bibl.); Gendreau, "Thdse," 
 1889. 
 
 661
 
 § 471 J INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 nounced by the law after the death of the deceased when circum- 
 stances have prevented the latter from making use of the power 
 of disinheriting/ — for example, because his heir had attempted 
 to kill him.- The causes for disqualification were the same as 
 those of disinheriting,^ and they produced analogous effects. 
 
 § 472, The Role of the Heir.^ — The heir in Roman law per- 
 petuated the person of the deceased. In French law the patri- 
 mony was divided into several masses. They had not been able 
 to accept the fiction that the deceased and his successor were one 
 person. The heir rather resembled one functionary who takes 
 the place of another, and who is not held bound by the obligations 
 of the latter as far as every detail is concerned; he became the 
 head of the family in his turn and exercised the powers of his 
 predecessor, but he did not inherit the personality of his predeces- 
 sor. This is not the same as saying that he may be compared to 
 the mere grantee by specific titles.'' For each of the masses of 
 the inheritance, the succession vests by "universal" or joint title, 
 in this sense, that one takes a mass* of possessions and not iso- 
 lated pieces of property, one by one; and also in this sense, that 
 one assumes the legal status of one's ancestor, and not that 
 one creates for oneself an entirely new status having no connec- 
 tion with the preceding one.^ The Romans pushed the notion of 
 
 1 Thus it is possible to grant a pardon, but this is no longer done, for dis- 
 qualification is a public penalty. 
 
 2 "Roth.," 163; "Fris.," 19, 1; "Sachsensp.," Ill, 84, 3; Stohhe, V, 15. 
 
 ^ Generally speaking, the succession is not confiscated, but it passes to the 
 next degree of kin. It seems, however, that originally the children of the per- 
 son disqualified were punished because of their father's offense: "Summa 
 Norm.," 22, 10; J. Lecoq, "Q.," 266; Lebrun, 3, 9, 10. But Pothier, 1, 2, 4, 6, 
 protests against this doctrine : Boutaric, I, 39. Children of heretics and of those 
 condemned for high treason, etc.: Stohhe, V, 16. 
 
 * Cf. Blackstone, II, 29 (one abbot succeeds to another, etc.); Isambert, I, 
 279 (in 1526): the king is not held bound to pay the debts of his predecessor; 
 LeBrei, "Souver.," IV, 10. 
 
 * It may be that originally the inheritance of movables did not differ very 
 much from a mere occupation affecting things which had been abandoned. 
 Cf. "jus spoHi." 
 
 8 It is difficult to see anything but an acquisition by sojie special right in 
 the succession to the "Gerade," to the " Heergerath " (cf. the English "heriot," 
 Pollock and Maitland, I, 293; II, 257). And if one wishes to get some idea of 
 the possibilities of the parceling of an inheritance, one has only to suppose with 
 Pollock and Maitland, II, 253, the existence of a succession in which a split 
 and a resplit take place, which result in four portions, and in each portion 
 property some of which is subject to the common law, some to the Custom of 
 Gavelkind, and some to the Custom of Borough English; should there be 
 heirs for each one of these sub-successions, the result would be infinitesimally 
 small portions. The general right then becomes very much like a special 
 right. But at the same time one can understand the adoption of the Roman 
 ideas as to the "successio in universum jus defuncti," if one will observe with 
 Heusler, II, 525, that the Germanic heir ordinarily succeeds to the general 
 
 662
 
 Topic 3] ACQUISITION OF HEIRSHIP AND ITS CONSEQUENCES [§ 472 
 
 succession by "universal" title to its utmost consequences and 
 merged the personality of the heir with that of the deceased 
 ("successio in universum jus defuncti"). The old French law 
 stopped halfway, either because of the personal character of 
 debts or the fact that they could not be transmitted, or else be- 
 cause of the distinctions made between the possessions of the fam- 
 ily and the personal possessions, between the house and the lineage. 
 But the early conception of the part played by the heir was little 
 by little effaced, in proportion as its peculiarities disappeared 
 or became less; for example, when the obligation lost its personal 
 character, the debts of the deceased passed quite naturally to the 
 heir, together with his possessions.^ Thus they returned to the 
 Roman conceptions. These they found in perfect harmony with 
 the very powerful idea of moral and economic mutual respon- 
 sibility of relationship under the Old Regime; the son would have 
 thought himself dishonored in not paying, even out of his own pos- 
 sessions, the debts of his father; and the third party in negotiating 
 with the father relied upon the son, and, in fact, upon the whole 
 household. Thus the liabilities w'ere closely united to the assets, 
 all the elements of the patrimony tended to form but a single 
 mass.^ 
 
 By an early combination of the Roman law and the Custom- 
 ary ideas, two categories of "universal" heirs were to be distin- 
 guished, — 1st, heirs or persons who perpetuated the person; 
 2d, mere successors to the possessions. The former were the law- 
 ful relatives who inherited upon intestacy; the latter were irregu- 
 
 share. He is not a "universal" heir, but he is an heir by "universal" right (c/. 
 "L. Sal.," 50, 58: "facultas," "fortuna"; "Liut.," 20: "substantia"; "Alain ." 
 35, 57, " hereditas " ; "Sachsensp.," 1, 6, 2: "erbe," meaning all the property 
 left). Taking possession of the house of the deceased, at least, in certain places; 
 for example, in Neerlande; this symbolizes inheritance. In the petition for 
 inheritance one proves one's title to it against anybody who possesses "pro 
 herede" or "pro possessore." Cf. Pollock and Maitland, II, 253. For Heusler 
 the conception of the patrimony (" Vermogen") is economic and not juridical; 
 all the rights and obligations designated by this are, in fact, only one. Cf. 
 Zeys, "Le Nil" (a great number of heirs). Cf. Blackstone, II, 29. 
 
 1 Canon law: The son is held "juxta facultates" for the debts of his father 
 in order to save the soul of the latter (restitutions); Dig. X, 3, 28, 14; 5, 12, 
 5; 5, 19, 9; 5, 39, 28; Stohhe, V, 60. 
 
 * What does the inheritance include? There are rights that die with their 
 holder; for example, the family rights. The inheritance is understood to apply 
 to the rights and obligations which go to make up the patrimony; and, again, 
 certain of these rights cannot be transmitted (for example, the usufruct). 
 As to the character of claims and debts, cf. ante. At an early time claims could 
 be transferred in the same way as cor()oreal objects. As to debts, pod, and 
 Heusler, II, 540. From the succession the Greek law excludes the right to 
 pursue the murderer and the right to marry the daughter left as an heir where 
 there is no male issue, etc.: Dareste, "Nouv. Et.," 90. 
 
 663
 
 § 472] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 lar successors upon intestacy, such as the Treasury. In the former 
 the law saw a survival of the person of the deceased ; if they were 
 heirs of the body, this was natural enough ; if they were other rel- 
 atives, it was not hard to apply the same theory. But the second 
 class above mentioned was scarcely in harmony with the Custom- 
 ary principles; there was not much inclination to strengthen their 
 rights by regarding them as perpetuators of the person; the dis- 
 favor which fell upon them resulted in their being left in their 
 original position, which corresponded pretty nearly to that of 
 legatees in the Roman legislation.^ 
 
 § 473. Acquirement of a Title by Inheritance took place by 
 operation of law, without formalities and without an act of ac- 
 ceptance. This was as logically demanded by the family joint 
 ownership. The heir did not have to accept; if he made no re- 
 nunciation, the succession belonged to him from the moment of 
 the death of the deceased.^ One can even say that a renunciation 
 would have had scarcely any object, as long as the heir was not 
 held for the debts, or was only held for them to a limited extent; 
 he had a chance of winning and ran no risk of losing. The annoy- 
 ing formalities imposed on a renunciation (after the law came 
 to allow it), and the disfavor shown to the Roman privilege of 
 demanding inventory (before acceptance) show the legislator's 
 repugnance to the idea of an heir's refusal to act. For the descend- 
 ants of the deceased, especially, the preservation of the house was 
 a sacred duty. Suitable enough as this principle was for the mem- 
 bers of the family who formed a part of the house (cf. in Roman 
 law the circle of the "sui") it was equally inappropriate for distant 
 relatives and "a fortiori" for irregular successors and legatees. It 
 would have been natural to exact an acceptance from them, and 
 even to require them to make proof of their rights; ^ and it would 
 
 1 Loysel, 304, 313; La Thaumassiere, on "Berry," 19, 9; Argou, II, 19; 
 Pasquier, 490. 
 
 * No inheritance in abeyance henceforth: "L. Feud.," 1, 14; 2, 1, 11, 33. 
 And, consequently, also, transmission of the succession, simply because of the 
 fact that it is open, to the heirs of the heir: Fertile, IV, 123. The succession, 
 in fact, was originally nothing more than the liquidation of a pre-existing com- 
 munity: Gierke, "Z. R. G.," XII, 481, and "Genossenschaftsrecht," I. Cf. 
 Flanders: heir by necessity; Britz, 693. 
 
 ' The legislation of other countries has shown us attempts in this direction. 
 Sometimes the heir himself attempted to place his right under the protection 
 of the law, and sometimes the public authority itself intervened because of 
 the rights that it had over vacant successions. The heir was asked to swear 
 that he was the true heir; he was put in possession only after he had paid for 
 it. Sometimes public authority went so far as to liquidate the succession and 
 only paid over the net assets to the heir after having paid the debts. Thence- 
 
 664
 
 Topic 3] ACQUISITION OF HEIRSHIP AND ITS CONSEQUENCES [§ 474 
 
 have been natural to hold that prolonged silence would carry with 
 it the loss of their rights of inheritance.^ But the old law did 
 not go so far; it merely treated the heirs or successors on intest- 
 acy in a different manner from testamentary successors; the latter 
 were not allowed to have the immediate exercise of their rights; it 
 was necessary for them to demand the delivery of their inher- 
 itance from the lawful heirs, and in case of a refusal, to have 
 themselves put in possession by the law. 
 
 § 474. Hereditary Seisin. — Before any physical entry on the 
 property, the lawful heir is considered as being in possession, by 
 operation of law at the death of the deceased. The latter is con- 
 sidered as having himself put the heir in possession at the moment 
 of his death: the dead enfeoffs the hving.^ The result of this 
 formula is that the heir, from the moment of the death, has all 
 the advantages of possession and cannot be deprived of them, — - 
 the right to the profits, the role of defendant in suits for the 
 property-title, the bringing of actions for possession,^ the continu- 
 ation of the prescriptive possession of his ancestor, and "a fortiori" 
 the power of taking possession by his own authority, without the 
 intervention of the lord or the law,'* of the property belonging to 
 
 forth the practice of the inventory became general. Thus through the Customs 
 the privilege of inventory was arrived at. What actually took place was an 
 entry upon the land registers. CJ. Stobbe, V, 31. 
 
 1 Were the rule, "Fructus augent hereditatem," and the Juventian Senate 
 Decree, which were rejected by the Civil Code, 138, applied in the old law? 
 No, according to Pothier, "Propr.," no. 429. — Are sales made by the heir 
 apparent valid because of the rule, " Error communis f acit jus "? It is doubtful. 
 
 2 "Mortuus saisit vivum": "Olim," I, 452, 16 (in 1259); II, 517, 9; II, 
 556, 3, etc.; J. d'lbelin, 151; "Et. de St. Louis," II, 4; Beaumanoir, 27, 2; 41, 
 9; "Const, du Chat.," p. 63; Desmares, LII, 234, 286; "Gr. Cout.," pp. 233, 
 287, 304, 367; Boutaric, p. 128; "Stil. Pari.," 28, 6; "Paris," 318; Loysel, 317; 
 "Arr. de Lamoignon," "Succ," 1, 2; see Ragueau, "Der Todte erbt den 
 Lebendigen" (middle of the fifteenth century, Western Germany). The 
 "Sachsensp.," 6, 1; 3, 83, already said that with regard to fiefs and other prop- 
 erty the deceased transmits the "Gewere" of the property to the heir together 
 with the property itself ("possessionem beneficii sicut et beneficium"). — 
 Glanville, 9, 1, 4, 6, 2; 11, 1, 3; 13, 9; "Summa Norm.," 35; see liagueau. CJ. 
 "Ass. de J(5r.," "Abr. C. des B.," 47, 57. 
 
 3 J. Faber, "Inst, de Interd." ("Stylus Curia? Francise"), § "retm.," 7; "Gr. 
 Cout.," II, 31. — Cf. the Norman law: writ of "saisinaantecessoris": "T. A. C, 
 Norm.," 74; "Gr. Cout.," II, 21: "saisina defuncti descendit in vivum"; 
 Blackstone, II, 14: "saisina facit stipitem" (French tran.slation. III, 20). 
 
 ' "Gr. Cout.," II, 21; "Stil. Pari.," Ill, 28; "T. A. C, Bret.," 66, 540: the 
 dead puts the living in possession in the dir(>ct line, the law in the collateral 
 line. — In the German law the putting in legal possession, is frequent and 
 the symbolical taking possession bj- the heir also (for example, ho places 
 himself upon the seat reserved for the head of the family, etc.). In the Nether- 
 lands the heir has his title recognized at law and, following the judgment, pub- 
 licly takes possession of the house of the deceased by taking hold of the door 
 with liis hand and placing his foot upon the threshold ("Anevang an Thure 
 
 665
 
 § 474] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 the succession, movables or immovables, personal belongings or 
 acquests, freeholds or copyholds.^ This privilege belonged only 
 to the heirs at law,^ — to descendants and ascendants first of all, 
 and only towards the sixteenth century to the collaterals them- 
 selves. A few Customs extended it to successors appointed by 
 will.^ On the other hand, the seisin of the movables was very 
 generally vested in the testamentary executors, so as to enable 
 them to fulfill their duties.* 
 
 Upon this question of the acquiring of possession of the inherit- 
 ance, the Customary law was distinct from the Roman legislation; 
 for, according to the latter, the heir should only have possession 
 by virtue of taking possession in fact.^ The history of the theory 
 of possession at Rome will alone enable one to understand why 
 the Roman heir, succeeding "in universum jus defuncti," was not 
 
 und Schwelle")- In Southern Germany the intervention of the law is still 
 more clearly marked: Stobbe, V, 34, 26; Heusler, op. cit. According to some 
 these were nothing more than useful formalities, having nothing essential 
 about them. Others think that originally the possession of the inheritance can 
 only be acquired by means of the carrying out of the "Anevang" by the heir 
 upon his own initiative or following the intervention of the law; in time the 
 "Anevang" must thus have degenerated into a mere formality, and through 
 the fact of the death alone the heir found that he acquired the ownership and 
 the possession ("civilissima") of the inheritance at one and the same time. — 
 In English law the heir before having taken possession (entry) has the seisin 
 only in law and not in deed; he could not begin an action of trespass against 
 a third party who might encroach upon his rights. As to rights of entry and the 
 assizes of " mort d'ancestor," cf. ante, Chap. II, Topic iv, §270, and Lehr, 
 p. 701. The heir of the personal property must ask for administration of it at 
 the hands of the law. — Cf. the Civil Code, 724, 769: putting in possession of 
 irregular successors. — Italy, Pertile, IV, 125. — Cf. ''T.A. C, Bret.," 66. 
 
 1 Even as late as the fourteenth century the lord is given the seisin before 
 the heir (in the case of fiefs): "Gr. Cout.," II, 19; II, 27 (pp. 234, 305, 367); 
 Desmares, 234 (local customs still require the lord to be given the seisin); 
 VartJi, "Arch. \6g. de Reims," I, 662, 711. — But as to fiefs themselves, in 
 the end the seisin of the lord came to be dispensed with. The right of the family 
 did away with it. — Cf., however, Glasson, VII, 487 (evolution in the opposite 
 direction); "Artois," 6. 
 
 2 The seisin is individual and not collective; it is conferred upon the "nearest 
 heir and the one best able to succeed," and not upon the entire Hneage: "Et. 
 de St. Louis," II, 4; "Paris," 318; "Jostice," 16, 2. Each heir is seised of his 
 share, and not of the whole. Controvensy upon these points, which bear rather 
 upon the acquirement of the ownership: Blondeau, "Sep. des Patr.," p. 652. 
 — Pothier, "Succ," 3, 2, 4; Ferriere, on "Paris," 318; Denisart, see "H^ritier," 
 5,2. 
 
 3 "Stil. Pari.," 28, 10; "Gr. Cout.," p. 282; Masuer, II, 33; XI, 34. — Seisin 
 to the appointed heir: "Olim," II, 556, 3; "Bourg.," 3, 43; "Berry," 19, 28; 
 "Niv.," "Don.," 12; Pothier, "Succ," p. Ill (ed. fi.): coimtries of written law. 
 But this only contemplates the acquirement of the o^^Tiership. Italy (Modena, 
 Rome, etc.): Pertile, IV, 122. — Cf. Benumanoir, 30, 38; Loysel, 312 et seq. 
 
 * "Olim," II, 255, 9; Beaumanoir, 12, 6. 
 
 ^ There are three hypotheses to account for seisin: 1st, Roman origin 
 (Planiol); 2d, Germanic origin (Heusler); 3d, Customary origin (reaction 
 against feudal exaction) (Lauriere). Cf. synopsis of these systems in "R. 
 crit.," 1891, 584 (Dufourmantelle). 
 
 666
 
 Topic 3] ACQUISITION OF HEIRSHIP AND ITS CONSEQUENCES [§ 474 
 
 invested with the possession and the ownership at one and the 
 same time. That is what we have to explain. One is accustomed 
 to taking the question backwards, and, consequently, to ask, by 
 what peculiarities was possession found to be acquired by the 
 heir in the Germanic law immediately after the death of his an- 
 cestors? In truth, it is a perfectly natural consequence of his situa- 
 tion "de facto," and the usual course is for possession and ownership 
 not to be separated. The heir, who is most often the son or the 
 grandson of the deceased, lived under the same roof with him; he 
 was at the same time joint owner and joint possessor of the family 
 property. In saying that he had the seisin from the moment of 
 the death, they were not expressing a fiction, but a reality and a 
 positive fact. The same could not be said, it is true, with regard 
 to collaterals; but, again, it would have been more difficult to 
 concede them the seisin. When the formation of the family became 
 modified, this principle seemed to lose its reason for existing; it 
 was the object of the attacks of the Romanists, who held it to be 
 a veritable heresy; ^ but the practical advantages which it offered 
 were its salvation, and it is again met with in the Civil Code, Art. 
 724. By declaring that the heir was seised "a die mortis," usur- 
 pations were made more difficult; his interests could no longer be 
 jeopardized by mere accident, an unforeseen absence, or a lack 
 of knowledge of the death. The advantage was also gained of his 
 escaping from the payments of the seigniorial profits which were 
 demanded in cases of change in fiefs and copyholds brought about 
 by death, under the pretext that the lord had to give the seisin or 
 invest the new vassal and the new copyholder. These pretensions 
 could be replied to by saying that it was not the lord, but the de- 
 ceased who gave the seisin or invested the heir; the formula, "The 
 dead gives the seisin to the living," was perhaps invented as a 
 protection against feudal exaction.^ But the fundamental rule 
 of which it is a picturesque expression is earlier than the feudal 
 period;^ it dates back to barbarian times* and is found again in 
 
 1 Innocent IV, "Com. s. Decrct.," Dig. X, 2, 19, 8; Balde, "Const.," 337, 
 no. 12; Cujas, on Law 30, Dig., 4, 6 ("possessiodefuncti quasi junctadescendit 
 in heredem") (c/. D., 41, 2, 23), says that the maxim, "The dead enfeoffs 
 the living," is derived from an inaccurate interpretation of this rule ("vox 
 de via collecta"). Cf. Viollet, 831; "Gr. Cout.," II, 21; "Bourg.," 310. But 
 seisin existed previously to the revival of the Roman law. See as to the Roman 
 law and its influence, Slobbe, V, 28. 
 
 ^ Lauriere on Loysel, 317. 
 
 ' The collaterals have the seisin, but this does not prevent them from being 
 subjected to the payment of the seigniorial fees; "Paris," 318, 33. 
 
 * See texts in Heusler, op. cit.: "pater me vestitum dimisit." 
 
 667
 
 § 474] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 all the countries where the Germanic influence has made itself 
 felt, — not only in Germany ^ and in France, but in Italy ,^ in 
 Spain,^ and in England.^ 
 
 However, in the last stage of our old law hereditary seisin is 
 not very clearly distinguished from the "successio in universum 
 jus defuncti" of the Roman law. The acquiring of the possessory 
 actions seems like a necessary consequence of the acquiring of 
 the succession; and, if one is to believe Lebrun and Pothier, the 
 old maxim, "The dead gives the seisin to the hving," would be 
 understood to apply to ownership as well as to possession.^ 
 Owing to this alteration, it was not difficult to connect with it, 
 as was sometimes done, the obligation which was imposed upon 
 heirs to pay debts "ultra vires" and the declarative effect of 
 partition, — two institutions, one Roman and the other Custom- 
 ary, but both entirely foreign to possession.^ 
 
 § 475. Acceptance and Rejection. — The logical outcome of 
 the very old law was that the heir did not have to accept formally 
 the succession; if he did not renounce it, that was sufficient to 
 make him acquire it. But the doctrine which prevailed drew its 
 inspiration from the Roman law and likened the heir at law to the 
 testamentary successor, and gave both of them the choice between 
 three courses, — acceptance pure and simple, renunciation, accep- 
 tance with the privilege of inventory. 
 
 § 476. The Same. — (A) Acceptance pure and simple took 
 place " verbis aut facto," by taking the title of heir or by playing 
 the part of heir, — " He who takes the possessions of the succes- 
 sion to the siun of five sous performs the act of an heir." ^ By 
 this means the one who was capable of inheriting barred himself 
 from making use of the power of renunciation and came within the 
 contemplation of the Customs. 
 
 § 477. The Same. — (B) The renunciation ^ was, on the con- 
 
 1 "Dipl." of 1322 in Kraut, "Privatr.," § 159. 
 
 ^ Italian statutes: Fertile, op. cit.; Lattes, "Studi Sen.," II, 319. 
 
 3 L. de Toro, 45; Covarruvias, "Op.," II, 3, 5; De Paz, "De Tenuta," 1671. 
 
 * Pollock and Maitland, II, 60; Bracton, fo. 31 h., 262, 434 h. 
 
 6 Ferriere, on "Paris," 318, 1, 2; Valin, on "La Rochelle," 56, 21. 
 
 8 Civil Code, 724; Pothier, V, 3, 1. This is the counterpart of the acquiring 
 of the assets. 
 
 ' Loysel, 319; "L. Rib.," 67. 
 
 8 "Burg.," 65; "Wis.," 5, 1, 6; 7, 2, 19 and 5, 8. Cf. Commentary on 
 "Liut.," 57. Germany: no example of renunciation before the fourteenth 
 century: Heusler, II, 570. At Neufchatel, in Switzerland, the children of the 
 insolvent could not renounce until the nineteenth century. Greek law : Dareste, 
 "Nouv. Et.," 88. English law: the heir of the real property cannot renounce, 
 but is only held liable for the debts up to the amount of the value of the prop- 
 
 668
 
 Topic 3] ACQUISITION OF HEIRSHIP AXD ITS CONSEQUENCES [§ 478 
 
 trary, in opposition to the spirit of the old law. It was tolerated, 
 witness the maxim, "He is not heir who does not wish to be"; 
 and people capable of inheriting had recourse to it from the time 
 when they found themselves held for debts "ultra vires" of the in- 
 heritance. But the disfavor which attached to it was shown by the 
 fact that it was impossible to make an implied rejection.^ Origi- 
 nally, this rejection assumed a formal declaration and s^Tiibolical 
 formalities, such as the casting of one's belt into the grave of the 
 deceased.^ From the thirteenth century, at least, it is carried out 
 by means of a declaration in court; ^ a declaration made to the 
 clerk and a notarial deed, which were both equally in use after 
 this, are only variations of it.^ It is also met with, it is true, under 
 the form — to-day prohibited — of renunciation to future suc- 
 cession. From the twelfth century, at the latest, it is imposed 
 upon daughters who have been given a marriage portion, and it 
 is specified in their contract of marriage.^ If the heir neither ac- 
 cepted nor rejected, he could decide at any time, because the 
 power of renunciation could not be lost by prescription.^ But, 
 once having taken place, renunciation as well as acceptance could 
 not be revoked.^ 
 
 § 478. The Same. — (C) Time to make an inventory and deliber- 
 ate. Drawing their inspiration from the Roman law and modify- 
 ing it at the same time, they gave the heir a period of three months 
 to post himself as to the amount of the succession, and, forty 
 days to choose from the various courses which were open to him. 
 During this respite the actions of creditors of the inheritance were 
 not barred, but suspended.^ 
 
 erty. The heir of the personal property can renounce at law, but is not de- 
 jirived of his share of the succession if anything remains after the debts have 
 been paid. 
 
 1 "Gr. Gout.," 2, 40, p. 365; J. Lecoq, "Q.," 489; "Paris," 317. 
 
 2 Bouthors, "Sources du Dr. rur.," p. 538; De Ribbe, "Soc. prov.," p. 142; 
 " Frioul," Pertile, IV, 126. Alsace, Siobbe, V, 51. Cf. renunciation of the com- 
 munity by the wife. 
 
 ^ Renunciations entered in the register of the "Parloir aux Bourgeois" 
 (thirteenth century). Cf. Italy, Pertile, IV, 126: permission of the bishop, dues 
 to be paid, disabilities: "L. Feud.," 2, 45 and 51. At Rome the sons of traders 
 are held liable for their debts, even if they have renounced the inheritance. 
 
 « Loysel, 318. 
 
 5 Givil Gode, 791; cf. "Aries," 1142, etc.; "Et. de St. Louis," I, 9; Lebnm, 
 3, 8, 1; Law of 5 Frim., 22 Vent., year II; 18 Pluv., year V; Lattes, "Dir. cons. 
 Lomb.," 261. 
 
 * Variations in the Customs: Pasquier, "Inst.," 491; Pothier, III, 4, 2; 
 Merlin, see "Abstent"; Civil Gode, 789; Villequez, "N. R. H.," 1889, 733. 
 
 ' Givil Code, 783, 790; Pothier, 3, 1, 1, 3 and 4; contra, Lebrun, 3, 8, 2, 61 
 (one may withdraw one's renunciation). 
 
 8 G. Durand, "Specul.," II, 2, 16; J. Faber, "Inst.," p. 60, ed. 1582 (3 
 
 6G9
 
 § 479] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 § 479. The Same. — (D) The privilege of the inventory ^ offers 
 the same benefits as acceptance and rejection; the heir is not 
 Uable for the debts "ad infinitum," and the balance of the heredi- 
 tary assets, once the debts had been paid, belonged to him.^ But, 
 as this Roman institution was almost equal to a renunciation, 
 royal letters were demanded in countries of Customs in order to 
 allow recourse to be had to it,^ and the heir using it found him- 
 self excluded, at least in the collateral line, by the man capable of 
 inlieriting who was of a degree further removed and who accepted 
 purely and simply.^ Moreover, the administration and the liqui- 
 dation of the hereditary possessions and the payment of the debts 
 were incumbent upon the accepting heir thus placed at the head 
 of a patrimony which was insolvent, and for whose acts he was 
 made responsible.^ By means of a sort of assignment of posses- 
 sions he had the power to escape from this role of assignee in bank- 
 ruptcy, which was sometimes rather dangerous; he was at liberty 
 to give up the succession to the creditors and the legatees.^ 
 
 § 480. Partition between Co-heirs.^ — No one can be compelled 
 to live in a state of joint possession, says Article 815 of the Civil 
 Code. This is an expression of the modern law, a law very hostile 
 to the community system and the silent partnership of other times. ^ 
 
 months); "Cout. Not.," 84, 85; "Gr. Cout.," p. 364; Boutaric, I, 77; Masuer, 
 32, 28; Pasquier, "Inst.," p. 425; "Arr. de Lam.," "Succ," 9; Pothier, VIII, 
 125; Serres, II, 19; "Ord." of 1667, 7, 1; "T. A. C, Bret.," 316. 
 
 1 "Cod. Just.," 6, 30, 22 (Justinian's "lex Scimus"). In countries of Cus- 
 toms a confusion of the "jus deliberandi" [and the privilege of inventory. 
 The " Ord." of 1667 generalizes this. 
 
 ^ The hereditary share of the person renouncing was sometimes looked upon 
 as having no owner. But this rather impractical idea, that the inheritance 
 could only be put off once, gave way to the Roman system of the successive 
 transmission to the different kinds of heirs, the furthest removed being in- 
 vested if there were none nearer than they. 
 
 3 "Cout. Not.," 84 (in 1366); Pasquier, p. 426 (case of Loysel). Required 
 in countries of written law. Edicts of 1697 and 1704; Argou, IV, 5; Breton- 
 nier, see "B6n. d'Inv." "R. de Leg.," IX, 311; c/., however, Serres, II, 19. 
 Done away with by the Law of Sept. 7-11, 1791. — German law: various 
 forms; Stobbe, V, 53. 
 
 ■• Loysel, 320; Lauriere, on "Paris," 342; Lebrun, 3, 4, 5; Pothier, 3, 3, 3. — 
 Prohibition for the heirs of the responsible agents of the pubhc funds to accept 
 under the privilege of inventory: "Ord." of January, 1563, 16. — Fertile, IV, 
 137; "Aosta," 5, 12 (prohibition). 
 
 ^ "Paris," 345; see Ferriere; Bretonnier, on Henrys, 6, 4, 2 (frauds); post, 
 "Partition of Inheritances"; Stobbe, V, 56; Fertile, IV, 137. Cf. Austria: 
 publishing at law, following wliich the creditor who does not come forward 
 loses all right: Siegel, p. 439. 
 
 6 Pothier, Introduction to Title 17, "Cout. d'Orl^ans," no. 53; Stobbe, V, 
 5; Civil Code, 802. 
 
 ^ Fleury, II, 328; Glasson, VII, 518; Stobbe, V, 38; post, II, 205. 
 
 * In German law partition between heirs can only take place at the expira- 
 tion of thirty days after the death. This period for mourning is closed 
 
 670
 
 Topic 3] ACQUISITION OF HEIRSHIP .IND ITS CONSEQUENCES [§ 481 
 
 Joint possession is now as rare as it formerly was frequent; under 
 the old system customs and economic conditions often compelled 
 the heirs, and especially brothers, to live in a state of community.^ 
 Partitions in fact affecting the enjoyment of property were made 
 a part of these associations and sometimes put an end to them. 
 But the disfavor which in the end affected joint possession was 
 extended to these partitions themselves, no doubt because the 
 rights of the parties were not very well settled in them; the parti- 
 tion of right (that is to say, which existed in a formal agreement 
 proved by deed) became necessary, and the only thing which could 
 take its place was divided possession carried on for thirty years.^ 
 § 481. Forms of Partition. — We will first look at partition in 
 itself, setting aside the incidents of refunding and the payment of 
 debts. As a general thing, it is carried out in a friendly way by 
 means of an agreement; but in case of the disagreement of the 
 parties, or if one of the persons interested is under a disability, it 
 takes place in court. The possessions which cannot be partitioned 
 are sold at auction, and the price is distributed among the co- 
 parceners. "It is customary for the eldest to apportion and the 
 youngest to choose." ^ The desire to avoid parceling the posses- 
 sions scarcely comes to light until the last period of the old law, 
 and then no more than in the Civil Code. The only object pur- 
 
 with a religious ceremony. During this time the peace of the house where 
 the death took place must not be disturbed; the widow and the household 
 must not leave it; they live upon whatever provisions happen to be there; 
 and the heirs cannot be pursued by the creditors having claims against the 
 inheritance: "Sachsensp.," I, 22; Stobbe, V, 23 (bibl); Grimm, "R. A.," 481; 
 Homeher, "Der Dreissigste" ("Abh. Berl. Akad.," 1864); Siegel, "K. V. J.," 
 VII, 275; Heusler, II, 567. Cf. house of the widow or "Beisitz," post, "Mar- 
 riage Contract." Delay in which to make an inventory. — The month of 
 mourning is of Jewish origin. 
 
 1 Beaumanoir,G. 22 ("compagniesd'^ritage"); "A. C, Bord.,"56, 67, 74, 97, 
 139, 143; "Toulouse," 91; "A. C, Bourges," 22. Cf. Ansegise, IV, 23; Thevenin, 
 "Textes," nos. 70, 126; "Roth.," 167. — The continuation of the community, 
 post; "Orl. A. C," 180; "N. C," 213. 216; Lattes, "Dir. consuet. Lomb.," 
 p. 267; TFippermann, " Ganerbschaften, 1873. — Sumner Maine, "Inst. Prim.," 
 pp. 133, 140; "Et. s. I'ancien Dr.," p. 314; Dareste, "Nouv. Et.," pp. 344, 347; 
 Pollock and Maitland, II, 243, 268, 272; Blackstone, I, 2, 12; Glasson, "Inst. 
 Anglet.," VI, 261. Also joint possession of fiefs, partition of the user, tenure 
 in partition. 
 
 2 Pothier, "Succ," IV, 1. Cf. Loysel, 93, M'Beaumanoir, 22, 7. 
 
 ' Loysel, 390. Allusion to the barbarian Custom: Greg. Tours, 4, 22; 
 Du Cange,see "Sors," "Consortes"; Grimm, 480 ("Kiirrecht "); "Sachsensp.," 
 Ill, 29, 2; Dig. X, 3, 29, 1; J. Faber, "Inst, de Act.," § "Qusedam," no. 10; 
 "Cod. Th(5od.," 7, 8, 5, 2; J. d'Ibelin, 148; " Abr. C. des B.," 49 (inverse order); 
 "Et. de St. Louis," I, 106 (the demandant divides the property into shares 
 and the defendant chooses one); Beaumanoir, 16, 19: Lord, Compromise, 
 Disposal, Agreement; "Bord., A. C," 139; "Gr. Cout. Norm.," 26; "Tours," 
 266, 271; "Anjou," 279; Gui Pape, 289; Pertile, IV, 131; Blackstone, I, 2, 12. 
 
 671
 
 § 481] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 sued is equality at any price, even to the details.^ When the di- 
 vision is not equal, the co-heirs who are injured are given an action 
 to rescind the partition, even although the shortage is not more 
 than half, — as the rule would be if there were a sale; ^ and, when 
 there is equality, and it ceases after partition is carried out, they 
 are given an action of warranty because of the eviction.^ If 
 one of the heirs grants his rights in the inheritance to a stranger 
 (that is to say, to one who is not an heir) the other heirs can ex- 
 clude the grantee by means of the repurchase of the inheritance 
 and indemnifying him. In this way the possessions remain in the 
 family; imprudent speculators are kept away, and a difficult trans- 
 action is facilitated, a transaction which is one of such a nature 
 as to estrange even those who are united by the bonds of a close 
 relationship. 
 
 § 482. Effects of Partition. — In Rome partition was looked 
 upon as an act which attributed rights, as an exchange between co- 
 heirs, each one giving up to the others his undivided rights over 
 the part which they received.^ The Customary law started with 
 the opposite point of view; it saw in partition an act which de- 
 clared rights, and not one which transferred them; the fact of 
 joint possession was wiped out by a fiction (retroactive effect); 
 each co-heir was looked upon as having received his portion direct 
 from the deceased; consequently, he was looked upon as holding 
 nothing from his co-heirs and as having transferred nothing to 
 them; everything was carried out just as though the partition had 
 taken place at the very moment of the death. Perhaps this way 
 of looking at it is due to the fact that the Roman analysis of par- 
 tition was too nice for our old jurisconsults; they did not grasp it 
 very well and substituted for it a fiction which was much more 
 simple in their eyes. It seemed to them quite natural to give 
 fictitious force to the period of joint possession, though often 
 
 ^ As to the question of parceling in general, see: H. Passy, "Division des 
 Heritages," 1839; "Syst.de Culture," 1846; L. Faucher, "R. D. M.," 1839; 
 Baudrillard, "Popul. agricoles de la France," 188.5-93; "Enquete sur I'Etat 
 des Families et I'Applic. des Lois de Succ." (by the Society of Social Economy), 
 1892; Souchon, "La Propr. paysanne," 1899; A. de Brandt, op. cit.; Verdelot, 
 "These," 1899; "Econ. Fr.," Jan. 18, 1896; "Reforme soc," June 1, 1898; 
 Aug. 1, 1899, etc.; "Acad. Sc. mor.," 1902, 479 (cadastral survey notices, 
 1657, in Champagne); Albert, "Lib. de tester.," 1900. 
 
 2 Pothier, "Succ," IV, 6. Cf. Law of the 2d Prair., year VII. 
 
 3 Pothier, "Succ," IV, 5, 4; Lehrun, IV, 1, 36. Contract for rents. 
 
 ^ Dig. " Com. div.," 6, 8 (contrary opinion by Trehntius, Dig., "de us.," 31); 
 "Petrus,"22, 23; "F. Sirm.," 25; "Bign.," 18; "Andec," 54; Marculfe, II, 
 14; "App. Marc," 39; Thevenin, 16, 53, 108, etc 
 
 672
 
 Topic 3] ACQUISITION OF HEIRSHIP AND ITS CONSEQUENCES [§ 482 
 
 very short.^ Perhaps one should connect the Customary system 
 with the old forms of joint possession (community or joint 
 ownership "zu gesammter Hand"); the co-heirs shared only the 
 enjoyment of the property, and this only during the joint posses- 
 sion; they had a right to dispose of the whole or part of the in- 
 heritance on condition only of all acting together; when the law 
 changed on these points, the old solutions were kept for new 
 reasons.^ 
 
 As is usually the case, the theory was not formulated first of all 
 in the form of a general rule; it was limited to practical questions. 
 It is the fiscal aspect of the question which is the first to appear in 
 the texts in the thirteenth century,^ and the documents of this 
 period do not show any trace of the innovation. It is laid down 
 there that in case of partition the heirs do not have to pay the 
 lord the customary profits upon alienation.^ The transfer which 
 took place owing to death already carried with it the payment of 
 the seigniorial rights (relief, etc.) ; it would have been very hard 
 to have demanded others (fifths, lord's due, and fees) when par- 
 tition took place, especially when in the majority of cases this 
 proceeding followed very closely after the death. To this prac- 
 tical reason there was added a theoretical basis. As a result 
 of partition each party interested became the full owner of his 
 portion, instead of having joint rights over the entire succession 
 (though in reality he gained nothing and lost nothing). When 
 Roman law, which was progressing, caused the character of an 
 exchange to be attributed to partition, at least in the School and 
 in the books, the question of the seigniorial rights became more 
 complicated. The followers of Bartolus were divided. For some 
 of them, the lord's due and fees not being payable in case of an 
 
 1 To the contrary, Planiol, op. cit. But the fiscal question is settled by 
 the "L. de Jostice," loc. cit., and by the Bartolists before it is thought of ap- 
 plying this principle in civil matters. 
 
 2 To this effect cf. the German law, especially with regard to fiefs. The par- 
 tition of the issues ("Mutschierungj" "Ooerterung") could not give rise to 
 the payment of these seigniorial dues. 
 
 ' Various systems of accounting for the customary rule. — 1st. A borrowing 
 from the L., .30, D., 4, 6. — 2d. Lebrun, "Succ," IV, 1, 21, connects it with 
 the seisin. But the rule is applied to testamentary successors, and even to 
 some kinds of members of communities. — 3d. It is a weapon forged by the 
 jurists against feudal exaction. But it would have been useless for the descend- 
 ants, for they were not compelled to pay the transfer tax: "Gr. Cout.," 
 p. 304; Beaumaiioir, 27, 4. — 4th. It is preferable to see in it a common opinion 
 which made it prevail over the Roman doctrines because of its practical ad- 
 vantages: Beaumanoir, 14, 20, 21; "Jostice," p. 241; "Toulouse," 125, 126; 
 D'Argentre, "Prat, des Nobles," q. 40; Loysel, 542. 
 
 * Beaumanoir, 52, 24. 
 
 673
 
 § 482] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 exchange, partition benefits by this favor; yet difficulties are pre- 
 sented with respect to partition with settlement and with respect 
 to sale at auction, — two proceedings which are more like sale. 
 For the others, partition was a compulsory alienation, and they 
 concluded therefrom that it should be free from the payment of the 
 seigniorial rights. This was rather a doubtful theory, for in the 
 old Customs the compulsion of partition was scarcely percepti- 
 ble, and, by admitting that a transfer was indispensable, there was 
 no excuse to deprive the lord of his rights.^ It was easier to 
 say with certain jurists that partition was an act "sui generis," 
 which was carried out without intention of a transfer; but, if 
 this were done, one had to fall back on the first explanation; 
 this came to the same thing as saying that partition was not an 
 exchange, which is contrary to the Roman doctrine. This is the ex- 
 planation which prevailed, and it triumphed in so absolute a man- 
 ner that to ordinary partition were likened, after some dispute, the 
 equivalent acts whose object was to put an end to joint possession, 
 such as partition with settlement,^ sale at auction,^ etc. 
 
 The Roman theory and the Customary theory were divided on 
 another point, in that which concerns the outcome of mortgages 
 given during the joint possession by one of the co-heirs. If the 
 property mortgaged falls into the portion of another heir the mort- 
 gage still continues, according to the Roman doctrine, because 
 the actual owner is the assignee of the mortgagor; it disap- 
 pears, on the contrary, according to the Customary doctrine, be- 
 cause the mortgagor is looked upon as never having been the owner. 
 It seems as though this question had only been brought up in the 
 sixteenth century.^ At this time the system of mortgages in the 
 
 1 Balde, "L. si domus, D., de leg.," 1; J. Andrece, "Ad Specul. de Contr 
 emt.," § "nunc dicend"; Alb. de Rosate, I, 110; Boutaric, I, 83; Gui Rape, 48, 92 
 Louet, "L.," 9; Guy Coquille, on "Niv., Fiefs," 24; D'Argentre, on "Bret.," 73 
 4; "Advis. s. le Part, des Nobles," q. 40. 
 
 * Dues which must be paid in case of an exchange with a settlement 
 "Toulouse," 125, 126, 143; Beaumanoir, 27, 5; "Jostice," p. 241 (or partition) 
 but not in the case of a partition between co-heirs, "Orleans, A. C," 54 
 "N. C," 15, 113; Dnmoulin, on "Paris," "Fiefs," 33, 1, 69 ("principalis intea 
 tio fuit dividere") (bibl.); "Censive," 78, 1, 170; D'Argentre, on "Bret.," 73 
 "de laudim," no. 2453; Louet, "L.," 9. 
 
 ^ "Orleans," 114: the fees for a sale must be paid in case there is anadjudi 
 cation to a stranger, but not if it accrues to the benefit of a coparcener: " Paris 
 N. C," 80; Brodeau, on this article (bibl.) ; " Arr." by Lamoignon, 11, 5; Glasson 
 VII, 512. 
 
 * Louet, "H.," 11; Ordersof 1569, 1571, 1581, and 1595; G. Coquille, "Q.,' 
 27; Pothier, "Succ," 4, 5, 1. — The question had already come up in 1538 
 with regard to the case of a feudal distraint carried out upon the share of a 
 co-heir: Dumoulin, on "Paris," "Fiefs," 1, 9, 43. 
 
 674
 
 Topic 3] ACQUISITION OF HEIRSHIP AND ITS CONSEQUENCES [§ 483 
 
 old law was finally established; from every notarial deed there 
 sprang a general mortgage over the present and future possessions 
 of the parties, and, as there is no one who at some time or other 
 does not draw up a deed before a notary, the majority of inherit- 
 ances were found to be encumbered. Under this system the Roman 
 theory of partition would have had the most grievous results; in 
 fact, if it had been applied each time that the inheritance of one 
 of the co-heirs had been mortgaged — and we have seen that this 
 happened nine times out of ten — this pre-existing mortgage, 
 which was often unknown, would have extended over all the 
 possessions of the inheritance and would have survived the par- 
 tition. The co-heirs who owed nothing would have been exposed 
 to the prosecution of the mortgage creditors and all their co-heirs; 
 they would have been dispossessed and the partition would have 
 had to be made over again. These disadvantages caused the 
 courts of the sixteenth century (especially 1595) to prefer the 
 Customary theory. But one would be mistaken if one thought 
 that the law logically followed out in all details the principle 
 of the declaratory effect of partition. Upon many questions it has 
 only bequeathed us uncertainties.^ 
 
 § 483. Refunding. — In order to make up the mass to be par- 
 titioned, one is not limited to combining the assets and the lia- 
 bilities of the deceased; it is necessary to join thereto gifts 
 which the heirs have received from the deceased; after which the 
 partition can take place without one of them being found to have 
 profited at the expense of the others.^ This regard for equality 
 contrasts with the system of privileges which dominates the sys- 
 tem of successions on intestacy. But those privileges are peculiar 
 to feudal matters, or have for their object the keeping up of the 
 family; outside of these two conceptions one only meets with 
 equalizing provisions. 
 
 The children remaining in the family community^ were the 
 only heirs originally; as everything which they acquired went to 
 increase the family inheritance, they could neither keep their 
 
 * Capacity of partitioning, warranty in case of eviction: Pothier, 4, 5, 4; 
 Lebrun, 4, 1, 56. Repurchase of joint possession, Pothier, " Coramunaut^," 
 146. Succession including at the same time movables and immovables and 
 accruing to one of the spouses, ibid., 140. — Partition is not subject to the 
 repurchase by a person of the same hneage: Chassaneus, on "Bourg.," 10, 
 9, 19. 
 
 2 Leroux de Lincy, op. cit.. p. 121 ("Sent, du Pari, aux B.," 1293). 
 
 3 Du Cange, see "Cella ; Beaumanoir, 14, 26; Ragueau, see "Cell6^ 
 B. de Richebourg, III, 258. 
 
 675
 
 § 483] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 savings, enrich themselves by their own industry, nor receive 
 gifts. Thus equahty between them was assured.^ But when those 
 who had been put out of the community were admitted to the 
 succession, whether they were children who had been emancipated 
 or daughters who had received a marriage portion, this was no 
 longer the case.^ Sons who had been emancipated had worked 
 for their own gain; those who lived in the house had only worked 
 for the family; the family belongings, that is to say, the inherit- 
 able estate, took any earnings received by these latter. It would 
 have been iniquitous to call those who were emancipated to share 
 in the partition without compelling them to contribute their per- 
 sonal gains to those of their brothers. The former were given choice 
 between two courses; either they could adhere to the old principle 
 which excluded them from the succession, so as to preserve their 
 personal gains; or else they could claim their hereditary rights, 
 but then they had to contribute these gains and partition them 
 with their brothers.^ 
 
 Advancements of inheritance which sons or daughters had re- 
 ceived on the occasion of their being set up in business or of their 
 marriage should also be refunded to the mass to be partitioned. 
 Only the heir who had received gifts from the deceased was al- 
 lowed to keep them if he preferred it, provided that he did not 
 raise any claim to the inheritance, and upon condition that 
 they should not be excessive."* The old decisions pushed the 
 passion for equality to such an extent as to compel children to re- 
 fund, not only the sums which had been given them, but even 
 those which had been lent them. Pothier thus justifies this re- 
 funding of debts: "It would be an indirect advantage if a father 
 caused his money in cash to go to one of his sons while the others 
 would only have in its stead a mere claim against their brother." ^ 
 
 1 "Roth.," 167, 199; "Liut.," 2, 4; "Wis.," 4, 5, 5. On the contrary, there 
 was no refunding among the Franks unless there was a clause providing for 
 it: "L. Sal. extrav.," 14; Thevenin, nos. 13, 131. Cf. "Rib.," 59, 9; "Milan," 
 19; "R. h. Dr.," 1860, 534. 
 
 2 Cf. Roman law: "collatio bonorum, dotis"; Girard, 889. 
 
 ' "Jostice," 12, 21 and 24; "Gr. Cout.," p. 315; Beaumanoir, 14, 12; 
 Desmares, 236; Leroux de L., p. 108, 109 ("Pari, aux Bourg."); "Toulouse," 
 91, 121; Giraud, II, 271; Fertile, IV, 129, 131. — This power resulted first 
 of all from the stipulations inserted in the marriage contract (declaration that 
 the gift was made as an advancement on the inheritance). In the fourteenth 
 and fifteenth centuries this came to be a usual clause and the "Cout. de Paris," 
 1510, Art. 123, impUed it after some discussion: Lamoignon, "Arr. des Rap- 
 ports." — Cf. "Sachsensp.," I, 13; Lauriere, on "Paris," 278; Lebrun, 2, 3, 6, 1. 
 
 ' Loysel, 351; "T. A. C, Norm.," 9, 13, 14. 
 
 ^ Sixteenth century: Loiiet, "R.," 13; Meynial, "These," 1886; Deschamps, 
 id., 1889. 
 
 676
 
 Topic 3] ACQUISITION OF HEIRSHIP AND ITS CONSEQUENCES [§ 483 
 
 It was especially as between children or descendants that 
 equality seemed to be desirable.^ As to ascendants or collaterals, 
 many of the Customs did not compel them to refund; ^ and still 
 less was there any obligation of this nature incumbent upon tes- 
 tamentary successors. As among children, more or less strictness 
 is shown according to the Customs. In this respect there are 
 three principal classes to be distinguished. — 1st. Customs of 
 absolute equality, which are most like the old law, make the 
 refunding compulsory, even in the case of descendants who re- 
 nounce the succession.^ By this means every fraud affecting 
 equality is found to be averted.^ — 2d. In the Customs of simple 
 equality ("Paris") the heir can avoid carrying out the refunding 
 by renouncing the succession; but, if he accepts it, he must always 
 refund, even when the deceased has exempted him therefrom.^ — 
 3d. A few Customs called Customs of reference-legacy ("pre- 
 ciput" ) allowed the heir to escape the refunding by renouncing the 
 succession, and allowed the deceased to exempt him therefrom, 
 even although he had accepted the succession.^ In this latter 
 case he took what was given to him by way of reference-legacy over 
 and above his share. The Law of the 17th Nivose, year II, could 
 scarcely fail to adopt the system of the Customs of absolute 
 equality, so well did it agree with its tendencies; but, even be- 
 fore the Civil Code, a Law of the 4th Germ., year VIII, gave up 
 
 ' Cf. post, "Reservation," "Disposable Portion," P. de Fontaines, 34, 10; 
 "Et. de St. Louis," I, 136; II, 26; "L. d. Droiz," no. 83; Beaumanoir, 14; 
 "Gr. Gout.," I, 40; Boutaric, I, 103; "Jostice," 12, 21, 5; "Ass. de J6r.," 
 "G. des B.," 170. — From this it follows that the refunding does not benefit 
 the creditors: Loysel, 355. 
 
 2 Loysel, 355. Privileges exempt from the refunding, ibid., 352; Pothier, 
 4, 2, 3; Ferriere, on "Paris," 304; Civil Code, 852. — German law: weapons, 
 horse, etc.: "Sachsensp.," I, 10. 
 
 ' AH gifts are presumed to be an advancement of inheritance; they can 
 only be kept through one's right as an heir. 
 
 * "Summa Norm.," 35; "T. A. C., Bret.," 207; "Anc. Gout. d'Anjou," 
 ed. B.-B., Table, see "Rapport"; "Anjou," 260, 337; "Mame," 278, 349; 
 "Tourainc," 309, etc.; Law of the 17th Niv., year II, Art. 42. Cf. "Lois 
 civ. interm.," see "Rapport"; Esmein, p. 162. 
 
 * "Paris," 303; "Orleans," 304, and the majority of the Customs. One 
 cannot be heir and donee at one and the same time: Beaimianoir, 7, 19 et seq.; 
 14, 14; 70, 58, distinguishes between the refunding and the reduction. From 
 this there arises the "refunding for another," — that is to say, the obliga- 
 tion imposed ui)on an heir to refund the gifts made to liis spouse, to his 
 father, and to his son; for they arc looked upon as persons interposed: 
 Loysel, 353 et seq.; "Or. Gout.," pp. 365, 371; Civil Code, 847; Pothier, 4, 
 3, 5. 
 
 6 "Nivcrn." 27, 8; "Berry," 19, 42; "Bovubon," 368; Fertile, IV, 131. 
 Cf. Roman law. Civil Code, Art. 840. The refund is only due because the in- 
 tention of the deceased was to maintain equality among the heirs. As to 
 the "Abfindungen" in the German law, cf. Slubbc, §§ 324, 290. 
 
 677
 
 § 483] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 this system in order to become more like the more modern system 
 of the Customs of reference-legacy. 
 
 The refunding of inmiovables generally took place in kind, ex- 
 cepting in the Customs of simple equality, where it could be car- 
 ried out hy taking less if there were immovables of equal value and 
 quality which formed a part of the succession. The encumbrances 
 (servitudes, mortgages) which had been created by the donee be- 
 came void when the property conferred passed into the share of his 
 co-heirs; but the sales which he had made remained in force, which 
 meant that the refunding took place by way of taking less when- 
 ever the donee had disposed of the possessions which he had re- 
 ceived. It was also by taking less that the refunding of movables 
 was carried out.^ 
 
 Equality may be disturbed not only by gifts "inter vivos," but 
 also by legacies. The Customs saw in this a still more pressing 
 danger, for the will is much more exposed than is the gift to undue 
 influence; the condition in which the testator finds himseK at the 
 time when he makes a will, that is to say, as a general thing, on 
 his death-bed, lays him open to every influence and points him out 
 as a prey to every kind of greed. Therefore, the common law 
 of the Customs adopted without any exception, even in the case 
 of collaterals, the rule that one cannot be heir and legatee at the 
 same time.^ The only advantage which the heir drew from a 
 legacy was the power of choosing between this legacy and his 
 hereditary rights. 
 
 § 484. Payment of Debts. — The old law only by degrees ar- 
 rived at the revived Roman law doctrine according to which the 
 heir is responsible to an unlimited extent and out of his own 
 property for the debts of the deceased, — at least, if he accepts 
 without reservation ("creditores propinquissimi sunt heredes"). 
 
 1 Beaumanoir, 14, 13 et seq.: cf. 20, 9 and 10 (penalty for concealment); 
 Pothier, 4, 2, 7; Lebrun, 3, 6, 3 and 4. Withholding: "Paris," 305. Offices: 
 Argou, II, 28. 
 
 2 "Gr. Cout.," 369; "Ohm," I, in 1261; "Pari, aux B.," Aug. 13, 1293; 
 Boutaric, I, 103; Ferriere, on "Paris," 300; Pothier, VIII, p. 179, ed. B.: "A 
 means of preserving peace and harmony in families. ... It was all the more 
 important to maintain this equality with respect to warlike and ferocious men 
 such as our ancestors were, — men who were more susceptible to jealousy 
 than others and always ready to come to blows and to kill for the slightest 
 thing." In the case of gifts this danger was less, because here it was a matter 
 of something that had been consummated. The inconsistency between the 
 capacity of heir and that of legatee did not exist in the countries of written law, 
 where only the refunding of gifts "inter vivos" was recognized, — a refunding 
 which one can always dispense with by renouncing the gifts. Cf. Law of 
 March 25, 1898. 
 
 678
 
 Topic S] ACQUISITION OF HEIRSHIP AND ITS CONSEQUENCES [§ 484 
 
 In early times debts were personal, not capable of transfer or 
 of succession; ^ they died with the debtor.^ Having become in- 
 heritable,^ they only conferred rights over the movables of the 
 debtor; ■* they were charged to the heir of the movables and only 
 up to the amount of the value of the latter,^ because the head of 
 the family has not the right to destroy the family's patrimony. 
 As ideas progressed, the hereditary immovables became liable 
 just as the movables; and finally they came to impose upon the 
 heir the obligation of paying debts "ultra vires" (in excess of 
 assets) out of both the succession and out of his own possessions.^ 
 This evolution has already been partly explained under the subject 
 Obligations. It only remains to show how the hereditary liabilities 
 
 1 Primitive system of transactions for cash and promises followed by the 
 giving of the pledge or of surety, which is rather a method of payment than a 
 promise. However, even in the barbarian period certain laws charged the 
 debts to the heirs: "Rib.," 67; "Roth.," 362, 369, 323; "\Vis.," 5, 1, 2; 2, 6; 
 "Arech." (774), 10 (debtors who give away all their possessions "inter vivos" 
 in order to defraud their creditors); Fertile, IV, 134, 137 (sons, whether sep- 
 arated or not from their fathers). — Survival of the old law: "The dead carry 
 out execution upon the living, and not the living upon the dead." Declaration 
 of March 4, 1549; Civil Code, 877. — Lewis maintains, contrary to the gen- 
 eral opinion, that the heir was originally held liabL for the debts "ultra 
 vires," and that later on his responsibility became less. 
 
 2 If the deceased has committed a murder the obligation to pay the "Wer- 
 geld" is incumbent, not only upon his heirs, but upon his relatives, for the 
 relatives are just as much exposed to the private vengeance as are the heirs: 
 "Sal.," 53, 62; "Sax.," 2, 6; "Roth.," 2 (two parts of the claim of the "Wer- 
 geld," one for the heirs, the other for the relatives); contra: "Rib.," 67; 12, 2; 
 "Bai.," 8, 20; "Thur.," 31 (heirs alone); Heusler, II, 541; Brunner, op. cit.; 
 Dareste, "Nouv. Et.," 90. The responsibihty for debts "ex dehcto" is hm- 
 ited even under the family community system. Were this not so, it would 
 have been too easy to wipe out even this community itself by means of its 
 debts: Capitulary of 816, 5 (I, 218); Heusler, II, 545. Contra, Amira, "Erb.," 
 213. Debts "ex delicto" generally: Siobhe, V, 59 (bibl.). 
 
 ' The transmissibility of claims to the heirs of the creditor seems to have 
 been far more easily admitted than the transmissibility of debts; however, the 
 numerous deeds in which it is stipulated that the debtor will pay the creditor 
 or his heirs bear witness to the fact that this was not done without some hesi- 
 tation. 
 
 * Capitulary of 816, c. 5 (I, 268); /. d'Ibelin, 68; "Ass. de Rom.," c. 124 
 "Et. de St. Louis," I, 15; "A. C. Bourges," 62; "Malines," in 1535, 16, 35 
 "Sachsensp.," 1, 6, 2; 2, 41; "Richst. Landr.," 10, 3. — "Lorris," 15, 11 
 "Bourbon," 316; "Touraine," 310, etc.; "Arr." by Lamoignon, op. cit., 1. — 
 Cf. Stobbe, V, 50; "Summa Norm.," 19, 6 (religious authorities charged with 
 the liquidation of intestate successions, at least with regard to the movables). 
 — Post, "Testamentary Executors" : they are given possession of the movables 
 and, consequently, are charged with paying the debts. Cf. especially as to 
 English law, Lehr, p. 724, and Pollock and Maitland, II, 344. 
 
 <* "Rib.," 67, 79; "Burg.," 65, 47; "Liut.," 57; "Wis.," 7, 2, 19; 7, 6, 8; 
 .5, 6, 6; "Roth.," 224; "Cap.," IV, 23; "Gr. Cout. Norm.," 59, 88; "Schwa- 
 bensp.," 20, 10; Esmcin, 180. — Cf. power of renouncing given to the heir 
 who is the beneficiary: Stobbe, V, 52. 
 
 • "L. Rib.," 67, 1. See the German proverb: "Wer einen Heller erbt, 
 einen Thaler bezahlen muss." 
 
 679
 
 § 484] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [CuAP. IV 
 
 followed the disposal of the assets and united with the latter, 
 and how the personal responsibility of the heir has been coupled 
 with that of the deceased.^ 
 
 From the moment when the movables were charged with the 
 debts, they were charged in the hands of the heir as well as in 
 those of the deceased. In either case the responsibility was thus 
 limited to a portion of the inheritance. However, it became nat- 
 ural to connect the liabilities and the assets. When distraint 
 upon immovables came to be permitted, it was also authorized, 
 owing to the same reason, when they were in the hands of 
 the heir. But why was not the heir always considered as being 
 held "propter rem," i. e. only "intra vires"? Why was he made 
 a personal debtor liable " ultra vires," i. e. beyond the estates, 
 assests, and why was he made subject to arrest for debt, like 
 his intestate, in case he became insolvent? Various reasons 
 brought about this result: ^ 1st. The influence of the Roman idea 
 that succession bore "in universum jus defuncti," with this cor- 
 rection, that the renunciation and the privilege of inventory pre- 
 vented all harm; if the heir suffered because he had taken upon 
 himself too heavy a responsibility, he had done it of his own free 
 will. 2d. The practical motive, the actual confusion of the property 
 of the deceased and that of the heir; it often happened that the 
 responsibility became unlimited, as there was no means of know- 
 ing what property it should have been confined to. 3d. The mutual 
 moral responsibility of the members of the house, the idea that the 
 
 1 The transmissibility of debts to the heirs was prepared for by means of 
 those clauses in deeds by virtue of which the debtor bound his heirs themselves: 
 Marculfe, II, 25; Desmares, 159; "Cod. Cav.," II, 213; "Cart. Lang.," 6. 
 Outside of any agreement, the mere fact of having enriched themselves without 
 giving any consideration therefor made them responsible: "Ass. de Jer.," 
 "C. des B.," 165, 171. Thus, according to the "Saclisensp.," II, 17, 1, the 
 heir is not responsible for any debts excej^ting those for which he has re- 
 ceived an equivalent, " wederstadinge " and debts arising out of theft or plun- 
 dering; this last kind of debt only obliges him to restore the thing stolen that 
 is found to be in the succession; he does not have to pay any composition. 
 Cf. Heusler, II, 546; Stobbe, V, 58, 60. 
 
 2 "Wis.," 7, 5, 8; Beaumanoir, 15, 4; 7, 8; P. de Fontaines, 15, 84; "Cout. 
 Not.," 18, 84. See "Privilege of Inventory." Cf. Desmares, loc. cit., Esmein, 
 "N. R. H.," 87, 52, 61. Customs wliich make the heirs jointly and sever- 
 ally responsible: "Amiens," 91, 159; "Norm., Regl.," 1666, 159; Masuer, 31; 
 Lebrun, 4, 2, 7, 11. — Stobbe, V, 52: "ultra vires" obligation, even where the 
 influence of the Roman law did not exist: Dareste, " Nov. Et.," 298, 328 (China). 
 — But in the English law the heir is only held liable for debts up to the amount 
 of the value of the property that he has received. And, again, we must add 
 that even almost up to our own time the immovables escape the creditors: 
 Glasson, "Inst. Angl.," 259; Lehr, p. 701; Pollock and Maitland, II, 117.— 
 In Mahometan law the heir is only held "intra vires": Zeys, "Tr. de Dr. 
 Mus.," II. 
 
 680
 
 Topic 3] ACQUISITION OF HEIRSHIP AND ITS CONSEQUENCES [§ 484 
 
 latter constituted a legal person whose acts were connected by 
 a close bond, whoever might be the doer of them; the debts of 
 the house passed from the father to the son; at first religion,^ and 
 then honor, made it a duty to liquidate them. Custom often im- 
 posed upon the heir before the law did so the obligation of paying 
 the debts; the credit of the family profited thereby. The com- 
 bination of these ideas led to remarkable consequences: 1st. Thus 
 the distinction between the representatives of the person, that is 
 to say, the heirs at law, who were the only ones held for debts 
 "ultra vires" of the inheritance (and not for legacies),^ and the 
 successors to property, that is to say, irregular successors, lega- 
 tees, and "universal" donees, who were held "intra vires" ("bona 
 non intelliguntur nisi deducto pere alieno").^ 2d. The privi- 
 leged situation of relatives or heirs at law, the seisin which 
 they enjoyed, placed them under the necessity of advancing the 
 whole amount of the debts ^ (under a levy) ; should one of them 
 alone be called to the succession, he could be compelled to indem- 
 nify the creditors; if several of them were called, each one had to 
 pay his "man's share," which was an almost inevitable solution 
 in the case of liquidations as complicated as those of the old suc- 
 cession, with the difficulty of knowing the part of the liabilities 
 which was incumbent upon each one of those interested. ^ i\lore- 
 over, they were given a recourse against the successors to the prop- 
 erty for the amount that they had liquidated in discharging the 
 debts. According to the final regulation (" contribution for debts ") 
 every "universal" successor had to pay a share of the liabilities 
 proportional to the share of the assets which he received ® (except 
 the eldest, who did not contribute for his reference legacy).^ 
 
 1 Restitution carried out for the salvation of the soul of the deceased : Dig. 
 X, 3, 28, 14; 5, 17, 5, etc.; Stobbe, V, 60; "Const. Sic," I, 25; Fertile, IV, 135; 
 "Schwabensp.," V, 178. Contra: "Sachsensp.," 1, 6, 2, and 1, 18, 1. Cf. 
 Desmares, 117. 
 
 2 Beaumanoir, 12, 6; Desmares, 13, 1: "debita sunt prajfcrenda Icgatis"; 
 L&ysel, 330; "Et. de St. Louis," I, 15; Polhier, "Succ," V, 4; c/. VIII, p. 138 (the 
 heir is only held for legacies which are "intra vires"). 
 
 3 Pothier, 5, 3; Lehrun, 4, 2, 1; Ricard, "Don.," IV, 1, 112. But upon 
 condition of making an inventory or some other deed equivalent to it, in order 
 to be able to distinguish the property in the succession from their own personal 
 belongings, — a thing which greatly reduced the dilTerence between represen- 
 tatives of the person and successors to the property: BoiiUtric, II, 25. 
 
 ■• Polhier, Y, 3 (legatees are not personal debtors). Lehrun, loc. cit. In 
 certain of the Customs each heir is held liable for the whole. Distinction be- 
 tween the personal advance and the advance by way of mortgage: "Gr. Cout.," 
 p. 369; Desmares, 159, 167; "Cout. Not.," 18, 86, 26. 
 
 " Pothier, 5, 3, 1; Lebrun, 4, 2, 1, 5; Civil Code, 873. 
 
 « "Roth.," 385; Fertile, IV, 136; P. de Fontaines, p. 138. 
 
 7 Cf. Lauriere, on "Paris," 334; "T. A. C, Bret.," 210. Other reference 
 
 C81
 
 § 485] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Craf. IV 
 
 § 485. Separation of Assets. — The liability of the individual 
 assets of the heir with the inherited possessions was an ad- 
 vantage for the creditors of the succession when the heir had 
 resources; if he were insolvent it turned against them, they found 
 themselves under the necessity of competing with his personal 
 creditors. In Rome, in order to guard against this disadvantage, 
 a collective measure in the interest of all the deceased's creditors 
 was devised, the "separatio bonorum," which was an incident 
 of the "venditio bonorum"; by this means, instead of one bank- 
 ruptcy proceeding, two occurred, — that of the deceased and 
 that of the heir; each one had its group of creditors, its special 
 assets, and its administration. In our old law the separation 
 of assets, although borrowed from the Roman legal system, took 
 on an entirely different character. It ceased to be an incident 
 of procedure for liquidation. Each creditor of the estate and 
 each legatee was authorized to demand this partition individually 
 against each personal creditor of the heir, and to move for the sepa- 
 ration of all the possessions or of some of them only. The heir was 
 not dispossessed, as he was in Rome, but kept the administration 
 of the hereditary possessions, somewhat as in the privilege of 
 inventory, and, as in that case, letters of chancery were neces- 
 sary at first;, in the seventeenth century they were no longer 
 demanded.^ Contrary to the decisions of the countries of writ- 
 ten law, where these letters were for a long time required, and 
 where it was only possible to ask for the separation during five 
 years, the Parliament of Paris allowed it to be availed of at any 
 time without imposing upon the creditors the necessity of making 
 a demand at law.^ One sees that the separation tended more and 
 more to become a simple right of preference, a lien on the heredi- 
 tary possessions; ^ there was nothing to prevent the creditors of 
 the succession having their claims paid out of the possessions of 
 the heir, once his personal creditors had been indemnified (doc- 
 trine of Papinian and Pothier). It would have been more strictly 
 logical had they made these two classes of creditors share with 
 
 legacies in the German law: "Morgengabe," "Gerade," "Musstheil," 
 etc. 
 
 1 In the Swiss law the local authority steps in to supervise the payment of 
 these debts, to compel the heirs to give surety, in order to insure this payment, 
 and to pay them itself, — a thing which rendered useless provisions in the 
 nature of the partition of inheritances. 
 
 2 Argou, IV, 4. The same in Belgium: Regnerus, "Censura Belg., ad. t. 
 de Separ."; Raviot, on Perier, "Arr. Dijon," 291, 8: five years in the case of 
 immovables. Civil Code, SSO. 
 
 ' Loysel, 494; Bourjon, "Succ," II, 12, 28 (privilege). 
 
 682
 
 Topic 3] ACQUISITION OF HEIRSHIP AM) ITS CONSEQUENCES [§ 485 
 
 each other out of the estate of the heir. It seemed that 
 they were progressing towards this solution, because Ferriere 
 shows the existence of a practice according to which the per- 
 sonal creditors of the heir had the right to demand a separation of 
 the possessions as against the creditors of the deceased. What 
 was the good of this if the latter had not shared with them? ^ 
 
 1 Contra: Ldmm, IV, 2, 1, 16, and Pothier, V, 4; Civil Code, 881. 
 
 683
 
 § 486] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Ciiap. IV 
 
 Topic 4. Testamentary Provisions 
 
 § 486. Neither Will nor Gifts "causa 
 mortis." 
 
 § 487. "Thinx" and Ceremony of 
 Appointing an Heir. — (A) 
 Adoption. 
 
 §488. The Same.— (B) "Affatomie." 
 
 § 489. Covenants pertaining to Suc- 
 cession. 
 
 § 490. Gifts "pro anima" and Share 
 of the Dead. 
 
 § 491. Testamentary Executors. 
 
 § 492. The WUl. 
 
 § 493. The Same. — (I) Jurisdiction. 
 
 § 494. The Same.— (II) Capacity to 
 make a Will or to receive by 
 Will. 
 
 § 495. The Same. — (III) The Ap- 
 pointment of an Heir. 
 
 § 496. The Same. — (IV) Different 
 Fonns of Wills. (A) The 
 Canon WiU. 
 
 § 497. The Same.— (B) Modem State 
 of Law. 
 
 § 498. The Same. — (V) Revocation 
 of WUls. 
 
 § 486. Neither Will nor Gifts "causa mortis" were recog- 
 nized in the Germania of Tacitus/ or even in the majority of the 
 barbarian laws.^ The old system of family community only ac- 
 commodated itself to intestate succession, that is to say, the exer- 
 cise by the relatives of rights which already belonged to them.^ 
 With the disintegration of the family the will became once more 
 possible. The Roman precedents and the influence of the Church ^ 
 were in favor of the evolution which was to result in the twelfth 
 century in the renaissance of this institution which had been 
 abandoned. But this result was only reached slowly.^ Those 
 who wished to dispose of their possessions did so for a long time 
 by means of contractual deeds "inter vivos" before employing 
 the unilateral act such as the will is. The appointment of an 
 heir was only gradually recognized, as witness the adages : " Solus 
 Deus heredem facere potest, non homo";^ "Giguntur heredes, 
 
 1 Tacitus, "Germ.," 20; Kohler, "Z. V. R.," 1887, VII, 224; Law of Gortyne; 
 Dareste; Hauss, "Inscr. jurid. Grecques," III, 462; Dareste, "Nouv. Et.," 
 349. 
 
 2 Excepting the laws of the Burgundians and the Visigoths, 4, 2, 4; 2, 5, 10. 
 Cf. "Liut.," 6 ("Lomb., de ult. vol.," II, 12, 2); Palumbo, p. 317; Tamassia, 
 "Alienaz.," 242; Schulze, "Langob. Treuh.," 14. 
 
 * Alienation "inter vivos" was in general use earlier than the will for two 
 reasons: (a) because it was easier actually to carry it out; (h) because it was 
 sometimes necessary, and for that reason accepted by the relatives. 
 
 * The Church went so far as to make it a duty to make a will and to punish 
 those who died intestate: Du Cange, see "Intestati" (examples of third parties 
 making wills for others); i2. Caillemer, p. 47; Auffroy, p. 555; Pollock and Mait- 
 land, II, 356. 
 
 5 Before the thirteenth century instead of " testamentum " they say "carta 
 divisionalis," devise, present, "gadium": see Du Cange; Rastall, see "Devise"; 
 Auffroy, p. 338. "Destinatio" {Du Cange, see "Destinare"), destiny. 
 
 « Clanville, VII, 1; "Poitou," 272, etc. 
 
 684
 
 Topic 4] TESTAMENTARY PROVISIONS [§ 487 
 
 non scribuntur." They still said in our old Customs, "The 
 appointment of an heir is not made," ^ which at that time 
 had two meanings: (a) the heir appointed by will is not in all re- 
 spects like the relatives called by Custom; (6) the appointment 
 of an heir is not required thenceforth in order to make a will valid; ^ 
 thus there Avas no distinction between the will and the codicil.^ 
 
 The disfavor with which the will was looked upon was also 
 accounted for by the notion that "the will is a creation of the 
 civil law," whereas the gift is due to natural law. It was a cur- 
 rent prejudice in the school of natural law, accepted by every- 
 body in the eighteenth century, that the will is a creation of the 
 legislator, something artificial. In fact, they said, what could 
 be more unnatural than to carry out the orders of a dead man? 
 The philosophers who defended this theory made themselves with- 
 out realizing it the perpetuators of the old Customary tradition, 
 which was hostile to testamentary provisions, and the orators of 
 the Revolution were inspired by these same ideas. 
 
 § 487. "Thinx" and Ceremony of Appointing an Heir ("affa- 
 tomie"). — (A) Adoption was almost the only means, in use in 
 many of the primitive legislations, of creating heirs for oneself 
 when one was afraid of dying without posterity.^ The proceeding 
 which is the most like it in the barbarian laws is the Lombard 
 "thinx" or "gairethinx." ^ The man who despaired of having 
 children because of his advanced age or his state of ill health ap- 
 pointed an heir before the full public assembly.^ In order to do 
 this, it is probable that he proceeded by means of the giving of 
 weapons, in the same way as in political emancipation, thus treating 
 the man appointed as though he were his own son. The Edict of 
 Rotharis was satisfied with the presence of free men and the inter- 
 
 1 Beaumanoir, 12, 58; Loysel, 304; "Paris," 299. 
 
 2 Contra: countries of written law. But exceptions: "Toulouse," 1236. 
 
 * Loysel, 300. Uselessness of the codicil clause ("ut vici codicillorum scrip- 
 tura debeat obtinere"): Serres, II, 23; Argou, II, 17. 
 
 * "Rib.," 48 ("adoptare in hereditate vel adfatimi"); Dareste, "Et.," Ill, 
 110, 190, 263, 290, 350; Kovalewsky, "Cout. Contemp.," 203; Post, I, 103; II, 
 198; bibl. in Lambert, VII, 24; Vdlroger, "Celtes," p. 546; D. VaisseUe, VIII, 
 385. 
 
 ^ "Gairethinx," meaning assembly of armed free men ("gaira" or "ger" 
 means lance), and approval by this assembly ("vapnatak"), cf. Schroeder, 
 24, 41. Pappenheim, 29: "Garethinx" means general assembly; "Liut.," 73. 
 
 « With regard to enfranchisement, "Roth.," 224: "per gaida et gisil." 
 "Gisil" means surety. "Gaida" means: 1st, according to some, "sagitta": 
 P. Diac, "H. Lang.," I, 13; "Gloss. Matrit.," 29. —2d, according to others, 
 "aidos" ("Roth.," 259), "sacramentales": Pappenheim, 31. Cf. Dareste, 
 "Et.," 110; Kohler, "Z. V. R.," V,427; Schroeder, 222. As to what the "Thinx" 
 was intended for and its final disappearance, cf. Palumbo, 276. 
 
 685
 
 § 487] INTESTATE SUCCESSION, GRATUITOUS CONV^EYANCES [Chap. IV 
 
 vention of a "gisel" or surety, although it did not mention this 
 formaHty because the act was not connected with the adoption.^ 
 The Laws of Liutprand, § 4, made it still simpler by reducing 
 the whole to the "carta" or written report. The doer of the 
 "Thingatio" bound himself not to dispose of his possessions to 
 the prejudice of the rights conferred upon the heir which he ap- 
 pointed for himself, — rights which were the same as those 
 of a legitimate child; however, he was at liberty to alienate his 
 property in case of necessity; still, the heir then had the power 
 to prevent the alienation by supplying him with support. The 
 unexpected birth of a child revoked the act, and in the same 
 way ingratitude did so in cases where it would have allowed 
 of the disinheriting of a lawful son.^ 
 
 § 488. The Same. — (B) Under the name of "affatomie" ("L. 
 em." t. 46), "adfathamire,"^ the SaHc Law describes a transac- 
 tion which is perhaps derived from adoption, but which differs 
 very much therefrom, owing to its exclusively patrimonial char- 
 acter. It consists in three separate acts: 1st. At the "mallus" 
 which has been summoned by the "thunginus" the donor throws 
 the "festuca" at the breast of a third party,'* by this means per- 
 forming a symbolical transfer of his inheritance; ^ at the same 
 time he declares that he wishes to give all or part of his fortune to 
 another person whom he designates. — 2d. The person who has 
 received the "festuca" goes and takes up his residence in the 
 house of the donor, receives three guests, who eat pap with him 
 and thank him for his welcome; and this is a taking possession of 
 
 1 "Cod. Thdod.," 8, 12, 1, 2; "Roth.," 172; "L. Rom. Cur.," 8, 5. 
 
 2 "Roth.," 168 et seq. Cf. 156, 362; "Liut.," 57; "Areg.," 10; Geffcken, 178 
 (bibl.). 
 
 3 A word which seems to mean "embrace" by allusion to the old rites of 
 adoption: see Kern, "L. Sal.," ed. Hessels. Other texts: "Cap. extrav. L. 
 Sal.," 8; Capitulary of 819, 10; "Rib.," 48, 49; "Form. Merkel," 16, 24, 25; 
 Lindebr., 13; Marculfe, I, 12; "App. Marc," 47; "Form, imp.," 38; Du Cange, 
 see "Affatomare." 
 
 * According to an interpretation which would seem to be fairly reasonable, 
 but which is hard to reconcile with the text, the third party is eliminated; 
 the entire transaction takes place between the donor and the donee; the latter 
 receives the "festuca" and then installs himself in the house of the donor and 
 finally returns to him with the "festuca" the right of enjoyment of his posses- 
 sion: Glasson, III, 37. 
 
 ^ It has been pointed out that there was one thing lacking in the alienation 
 for the benefit of the person interposed: the surrender by him. This must have 
 been an intentional hiatus; in not relinquishing his possessions the donor re- 
 served to himself the power of keeping them: R. Caillemer, p. 258. Post, 
 "Donationes post obitum " "Testamentary Execution." But neither is the 
 surrender of the property by the person interposed mentioned. And, further- 
 more, could not the heirs of the donor make use of the lack of this surrender 
 in order to get the property away from the beneficiary? 
 
 686
 
 Topic 4] TESTAAIENTARY PROVISIONS [§ 488 
 
 the property which has been transferred to him.^ — 3d. Within 
 a year, in the presence of the king or at the "mallus legitimus," 
 by means of the throwing of the "festuca," he gives the heir who 
 has been appointed the inheritance of which he has become the 
 owner. 
 
 The most striking thing about this description is that" the 
 ceremony of appointing an heir (" aff atomic ") consists in a giv- 
 ing by a person who is interposed, and that it takes place in the 
 "mallus." Whether one carry it out in the "malkis" or in the 
 presence of the king may depend as to whether one's object is 
 pubUcity or one needs the approval of public authority in order to 
 validate the act; it is probable that both the "mallus" and the 
 king originally had an active part,^ but the silence of the law leads 
 one to suppose that their part had become passive. It is more 
 difficult to account for the intervention of a third party .^ It would 
 be very easy to understand if, as has been asserted,^ the third 
 party had only to transmit the property with which he had been 
 invested, after the death of the donor; in this we could see a 
 proceeding designed: 1st, to avoid the rule which forbids gifts 
 made to take place after death, because here everything took 
 place between the living; 2d, and at the same time, in order to 
 allow the donor to keep until his death the enjoyment of his pos- 
 sessions, because the third party who receives them is an accom- 
 modating friend, who has no reason to keep them himself when he 
 promises to allow the donor to have them. Unfortunately, this 
 plausible opinion is condemned by the text of the Salic Law; it is 
 not said in so many words that restitution must take place within 
 a year of the death of the donor, but it is said that it must take 
 place within a year, which can only be understood to mean the 
 year which follows the fact of which one is speaking, — that is to 
 say, the transfer of the property to the person who is interposed. 
 
 As for our view, we would propose by way of conjecture the fol- 
 lowing explanation : ° The ceremony of appointing an heir would 
 
 ^ "Sessio," of an indeterminate length of time; consequently, "sessio trid- 
 uana" (three days and three nights) : Geffcken, 182 (bibl.)- 
 
 2 Lambert, p. 30 (bibl.). Will "calatis comitiis," cf. Gerard, "Man. de Dr. 
 Rom.," p. 789, 3d ed. At Unterwalden ratification of acts of last will by the 
 public authorities: Lardy, op. cit., p. 263; Huber, IV, 609; Statute of Ivrce 
 (fourteenth century) in "L. Munic," I, 1134. Cf. rights of the "vicmi" and 
 of the king. 
 
 3 Cf. at Rome " familiae emtor," a trust. 
 
 * Heusler, op. cit. 
 
 * Was not the interposition of third parties intended to evade the law and 
 to allow one to make a gift for the benefit of persons under a disability? — 
 
 687
 
 § 488] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 take place in the majority of instances, like the Lombard "thinx," 
 in the case of the old man without children who was anxious to 
 have some one who could administer his interests after he was 
 gone, who could give him the care which his age demanded, and 
 who could take the place of a son to him. He could not attain 
 this object if he did not transfer his inheritance to this person 
 during his lifetime, for, as representation was not admitted, the 
 heir appointed could not perform a single act affecting the prop- 
 erty of the donor. But how was he to carry out this transfer, 
 which was indispensable to him? (a) The beneficiary may be ab- 
 sent at the time when the donor makes up his mind to it. In such 
 a case as this, direct transfer is not possible, and yet at the same 
 time the act will not admit of being put off, because the donor is 
 exposed to the danger of death or feels that his end is drawing 
 near. The interposing of another person is here found to be neces- 
 sary. But this case does not seem to us to have been the most 
 frequent one. (6) Ordinarily, the beneficiary was present, or, if 
 he was away, the act could be postponed until his return. In this 
 case the presence of the intermediary was justified by three mo- 
 tives: 1st. His intervention served to notify third parties that the 
 donor gave up possession of his property; if the latter had been 
 satisfied to deal directly with the beneficiary, if he had called him 
 to him in order that they should live together, the situation of af- 
 fairs would not have been obvious; the installation of a third party 
 
 For Schroeder, p. 344, the presence of an intermediary in the Salic Law could 
 be accounted for in the same way as that of the "gisel" in the Lombard 
 "thinx"; but the latter is hard enough to understand, for adoption by handing 
 over of weapons takes place ordinarily without any intermediary (c/., however, 
 Girard, "Man. de Dr. Rom.," pp. 115, 173; enfranchisement "per quartam 
 manum" among the Lombards). The Salic ceremony of appointing an heir 
 has rather a patrimonial character, and the third party interposed takes pos- 
 session of the property of the donor; perhaps one might say that the "gisel " also 
 acquires from the natural father the power over the person of the adopted son, 
 and that he transmits it to the adopting father. — According to R. Schmidt, 
 p. 73, the taking possession carried out by an intermediary would be a legal 
 demand addressed to third parties who have rights, to assert them over 
 the possessions of the donor (that is to say, to the relatives of the latter); 
 they should in some way be summoned to come before the "mallus" in order 
 to raise their claims there, under penalty of being barred. But we do not see 
 why the presence of an intermediary should be necessary in order to attain 
 this result. It is very likely that some connection exists between the period of 
 twelve months allowed for restitution of the property and the old one-year 
 tenure. "Ante XII menses" can scarcely mean at the end of the year, and 
 yet this translation has been offered because the expiration of this period ex- 
 tinguishes any possible claims which the relatives or the true owTier may have. 
 Perhaps, on the other hand, what they meant to say was that the intermediary 
 could not keep the property during a whole year, because, if he did so, he would 
 have acquired the indefeasible ownership of it. 
 
 688
 
 Topic 4] TESTAMENTARY PROVISIONS [§ 489 
 
 in the house of the donor gave evidence of the fact that the latter 
 had deprived himself of possession. 2d. The intermediary ought to 
 take an interest in the carrying out of the gift, and was morally 
 responsible for it. 3d. The donor deprived himself of the right 
 of revoking the act and carried it out in a public manner and by 
 means of an intermediary. — Whatever the theory may be, from the 
 time of the transfer which was executed for his benefit, the bene- 
 ficiary found himself with respect to the donor in the same posi- 
 tion as a son; he was appointed heir ("heredem appellare").^ 
 Everything leads one to believe that the title which was thus con- 
 ferred was irrevocable (excepting in case of expulsion from the 
 family, just as in the case of a lawful son).^ The Salic ceremony of 
 appointing an heir seems to have soon disappeared from practice, 
 for the Frankish statutes do not mention these formalities; it 
 degenerated into a direct transfer, that is to say, into a mere de- 
 livery,^ and became confused with gifts "causa mortis" or cove- 
 nants pertaining to a succession, which we are about to deal with.^ 
 Perhaps, however, the intermediary in this ceremony of appointing 
 an heir is to be once more found in the testamentary executor of 
 early times, or, at least, the precedent of the Frankish law has 
 contributed towards having testamentary execution accepted in 
 practice. 
 
 § 489. Covenants pertaining to Succession. — In the guise of 
 a will, the law of the Frankish period makes use especially of con- 
 tracts, or, to put it better, of conveyances "inter vivos," which 
 confer "hie et nunc" rights which are irrevocable, but whose final 
 carrying out is postponed until the death of the donor; such are 
 recalls to succession,^ appointments by contract, mutual gifts 
 between spouses,^ "post obitum" gifts, with the reservation of 
 the usufruct or tenure at will. The first of these acts presents a 
 
 1 "Rib.," 48, 49; "Cap. 1. Rib. add.," 803, 8; "Roth.," 174. 
 
 2 How was the intermediary to be compelled to carry out what he had to do? 
 
 3 "Rib.," 48: He who has neither sons nor daughters may give all his" facul- 
 tas" in the presence of the king either to his spouse or to a near relative or 
 to a stranger under the form of an adoption by right of heir ("adojjtare in 
 hereditate") or "adfatimus" in writing ("scripturarum series") or by delivery 
 before witnesses. "Cap. leg. Sal. add.," 819, 10: "de afTatomie dixerunt 
 quod traditio fuisset." 
 
 ^ "Rib.," 49: "adfatimus" between spouses; the survivor can only make a 
 disposal for religious purposes or because of pressing necessity; after his death 
 the possessions wliich have been given to him retm-n to the lawful heirs. CJ. 
 "Gifts 'inter vivos,'" "Dower." 
 
 * Roziere, "Form.," nos. 130 et seq.: "hereditorise": Auffroy, p. 215. 
 
 8 Demuth, " Wechselseitig. Verfug. von Todesw./' 1901 ("Unters." by 
 Gierke). 
 
 689
 
 § 489] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 very great similarity to the early "adoptio in heredum." ^ The 
 others are more like gifts "inter vivos" of some particular object, 
 although they more often than not affect a number of possessions. 
 Whether they were gifts "post obitum" ^ or gifts with the reserve 
 of the usufruct,^ there were always deliveries; and, as they were 
 ordinarily intended for a church or a monastery, the donor pro- 
 ceeded by means of the "traditio cartse," — for example, by plac- 
 ing the deed of gift upon the altar or the shrine of a saint.^ 
 The beneficiary acquired the property of the donor, but could 
 not exercise his rights until the death of the latter; who thus 
 continued to retain it and to enjoy it. Whether the gift 
 were made "post obitum" or with the reservation of the usu- 
 fruct, the result was the same; the donor retained the life owner- 
 ship of the property transferred,^ the donee acquired a future 
 ownership, a right to future possession, which was absolute and 
 which could not be attacked.^ In order better to define the rights 
 of the donee a rent was often paid to him by the donor. ^ Here we 
 have a remarkable example of that limited ownership in point of 
 
 1 For example, the daughter called back to a succession acquires the same 
 rights as a son. 
 
 2 Hubner, p. 11 (sources) and passim; Roziere, "Form.," 212 et seq.; "Cart. 
 de Redon," nos. 137, 140, 149, etc.; see D. Vaissette, passim. 
 
 3 "Possidere usufructuario ordine, sub usu beneficio," etc.: Marculfe, 2, 3, 
 5. Examples in Hubner, p. 76 et seq. "Tenure at will," "benefice": Roziere, 
 nos. 319 et seq. Cf. Bondroit, "Les Precarise verbo Regis," 1900. The reser- 
 vation of the usufruct may be made for the benefit of the donor, of his widow, 
 or of his cliildren. 
 
 * Delivery "per cartam" seems to be sufficient of itself without any gi\nng 
 up or putting in possession. The formula? contain the word "trado" without 
 mentioning the "se exitum dicere": "Alam.," 1; "Bai.," Caillemer, 313. 
 
 ^ Hubner, p. 149, systematically contrasts these two sorts of deeds, but the 
 documents do not make any very great distinction between them, and their 
 practical effect is the same. The donor who has possession of the property 
 which has been given him can abuse his position and transmit it to third 
 parties; but in this case the donees in the same way as the relatives have a 
 period of a year and a day within which to make complaint. In case the donee 
 dies before the donor his heirs only profit by the gift as an exceptional thing: 
 post, "Gifts 'inter vivos'"; "Ass. de J6rus.," "C. des B.," 116; Heusler, II, 
 635, n. 9; R. Caillemer, p. 274. 
 
 * The donor could reserve the right of revoking his gift, not at his own 
 pleasure, but if some particular event took place, — if he should survive 
 such and such a happening, if he should have a son. Heusler, has maintained 
 that even in the absence of such reservations as these the donor was not 
 bound (cf. the gift "mortis causa" at Rome), "Gewere," p. 472; but in hia 
 "Inst.," II, 121, he seems to give up this idea and to consider the right of the 
 donee as irrevocable. To the same effect is Hubner, p. 47. The delivery "per 
 cartam" having taken place in due form, it is clear that the donor has abso- 
 lutely deprived himself of the property. As to confirmations ("renovationes," 
 "iterationes") cf. ibid., p. 57; Brunner, "Urk.," p. 266. On the Capitularies 
 of 803, 6, and 818, 819, see Brunner, "Urk.," 278; Hubner, 63; R. Calliemer, 
 371. 
 
 ^ Hubner, p. 116. 
 
 690
 
 Topic 4] TESTAMENTARY PROVISIONS [§ 491 
 
 time which the old law erected in many cases, for example, for 
 the benefit of the mortgagor, the guardian, the widow with a 
 jointure, the beneficiary, and still others.^ 
 
 § 490. Gifts " pro anima " and Share of the Dead.^ — In pagan 
 Germany there seems to have existed the custom of dividing the 
 movables of the deceased into three parts, one-third for the widow, 
 one-third for the children, and one-third for the dead. The ob- 
 jects which went to make up this last third were burned or en- 
 tombed with the corpse, so as to be of use to him in the life beyond 
 the grave. After the conversion to Christianity the division into 
 thirds persisted for a long time in many places, but the disposal 
 of the share of the dead changed; it was employed in pious works, 
 "pro remedio animse"; this was the share of the Church.^ It was 
 conferred upon the Church either by means of gifts in the nature 
 of those which we have just been discussing, or by means of uni- 
 lateral declarations made by a sick man upon his deathbed when 
 it was impossible for him to carry out the gifts in fact.'* But in 
 the tenth or the eleventh century these gifts are only efficacious 
 when testamentary executors are interposed. It is under this form 
 of alms, of the pious legacy, that the will reappears in the Christian 
 practice, as a completion of the confession "in extremis." 
 
 § 491. Testamentary Executors, who were unknown in the 
 Roman legislation, but not in the Byzantine law,^ make their ap- 
 
 1 As to this conception of a limited ownership, of an ownership for Hfe 
 distinct from the Roman usufruct, c/. Heusler, II, 13; Huber, "Gewere," 54; 
 Champeaux, "Vestitura," 146; R. Caillemer, 338. 
 
 2 Brunner, "Z. S. S.," 1898, "G. A.," 107 ("Todtentheil"); "Alcad. Berlin," 
 1849, 191. Guardians for the dead, R. Caillemer, 360. 
 
 ' "Novella" of Leo; Zacharie de Lingenthal, "Gesch. d. Griech. Rom. R.," 
 p. 116. Sicilian law: Brandileone, "Dir. Rom., n. Leggi Normanne," 1884, 
 p. 136, and Italian Statutes; Tamassia, "Arch. Giur.," 1885, p. 5, n. 2; "Ass. 
 d'Antioche," ch. I, p. 49. Anglo-Norman law: Commentary on the "Summa," 
 c. 31, fo. 37 6, ed. of the "Gr. Gout, de Norm.," of 1523 (cited by Brunner); 
 "Gout, de Norm.," 1583, 392, 418; "T. A. C., Norm.," 5, 4, 5; "T. A. C., Bret.," 
 207; Blackstone, II, 33. Same custom among the Scandinavians and the 
 Russians. 
 
 ^ "Seelgerate" ("anima; consulitur"), "Geschiifte," "Gemiichde" : Aw^roy, 
 350; Heusler, II, 642; Stohbe, V, 205; Pollock and Maitland, II, 316. Auffroij, 
 p. 406, cf. 350, 603, shows how difficult it was to realize these gifts "in extremis," 
 as the transfer of ownership could only take place bj^ means of the wishes of 
 the deceased; his heirs were the ones that had to carry it out. Penal clauses, 
 canonical penalties against them. Cf. Zacharie de Lingenthal, p. 180. On the 
 other hand, deathbed gifts are looked upon with suspicion. {Glanville, VII, 
 1, 4; they are only void if they affect lands): "Sachsensp.," I, 52, 2. Cf. 
 "Liut.," 6; Heusler, II, 198. 
 
 s Zacharie de Lingenthal, "Gesch. d. Griech. Rom. R.," p. 138 (2d ed.) 
 "Cod. .lust.," "de episc," 28, 48. " Novella," 131, 11. Cf. Dig., 17 and 88, 
 "de leg.," II; "ad Sc. Treb.," 78, 1; " Mand.," 12 and 13. "Novella" of 
 Leo the Philosopher by Manuel Commenus. It is found again in the Mahome- 
 
 691
 
 § 491] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 pearance in the Frankish deeds of the eighth century; ^ and after 
 this period they figure in almost every wilL" They are still men- 
 tioned in the Civil Code, Art. 1025. Roman ^ or Germanic "* prece- 
 dents for this institution have been sought for; but if the latter 
 especially made its formation more easy, it is no less true that 
 it owed all its importance to religious ideas,^ and that it was 
 first regulated by the decisions of the ecclesiastical courts and 
 by the canon law. It served to realize gifts "pro anima." The 
 Roman will had disappeared, and with it the heir who was ap- 
 pointed and charged with carrying out the last wishes of the de- 
 ceased. As the heirs at law could not be relied on, and as means 
 of compulsion against them were lacking, — for example, when 
 the donor had contented himself with a unilateral declaration of 
 will,° — recourse was had to the interposing of third persons. 
 
 tan law: Hedmja (twelfth century), 52, 7; R. Caillemer, 680; Lambert, 15 
 
 (bibl.). 
 
 1 Names for Executors- — " Eleemosjmarius," a man of charity, a monk 
 distributing alms to the poor, a testamentary executor charged with creating 
 pious foundations (ninth century), "aumosnier" (thirteenth, fourteenth cen- 
 turies), "Wadiator," "Gadiator" (tehth, eleventh centuries), allusion to their 
 appointment by the "wadium," "gagiers" (tliirteenth century). "Fide- 
 jussor," "tutor" (tenth, eleventh centuries); "spondarius" (testamentary 
 guardian or executor), "Toulouse," 6, 82, 83. "Vormund," "momper," 
 "advocatus"; "salmann," " manufidelis " ("Treuhander"), Germany, "Feu- 
 main," Flanders, "Erogator," distributor of property, "dispensator" (eighth 
 century), "distributor," "fideicommissarius" (tenth century) and (abbrevia- 
 tion) " commissarius." "Executor" (twelfth century). In Spain, "cabe- 
 Qalero" ("cabega," meaning function). Thevenin, "Texts," see Table; Du 
 Cange, ibid. — Cf. the "mund" of the Anglo-Saxon will or "cwide"; Pollock 
 and Maitland. Inc. cit. 
 
 2 See, for example, Tuetey, op. cit. — Texts: G. Durand, "Spec," II, 2, 13; 
 Beaumanoir, 12, 26 et seq.; P. de Fontaines, 488; "Ohm," Table, see "Exe- 
 cut.," "Eleemos."; "Summa Norm.," 59, 12 and Table, see "Eleemos."; 
 Glanville, VII, 6; Boutaric, I, 17 and 20; Masuer, 30, 39 (bibl.); Loyscl, 314; 
 "Siete Part.," 10, 10; " Baumgartenberg. Formelbuch" (tliirteenth century), 
 in "Pontes Rer. Austr. Diplom.," XXV, 1866. 
 
 3 "Deutsch Vorliiufer d. heut. TestamentsvoUstrecker in Rom. R.," 1899; 
 Collinet, "N. R. H.," 1894, 573. 
 
 * Cf. the intermediary in the appointment of an heir, ante. See in Lambert, 
 75, a comparison with the surrender to use of will, of copyholds in English 
 law. 
 
 ^ So absolute seemed the necessity for testamentary execution from the 
 reUgious point of view in the Middle Ages that, if there were no testamentary 
 executors (because none had been appointed: Desmares, 68, 328; "Siete Part.," 
 6, 10, 5; death or refusal: "Capit. Ital.," 790, I, 93; Beaumanoir, 12, 1, 27, 60, 
 discharged, etc.) the bishop became a legal executor, and, if he himself could 
 not fulfill this office, he designated an appointed executor in place of him- 
 self {cf. legal guardianship or guardianship by appointment). In the time 
 of Beaumanoir, 12, 27, the civil authorities were also competent: "Ass. de 
 J^r.," "C. des B.," 185. In England the ecclesiastical courts designated an 
 administrator "cum testamento annexe": Blackstone, II, 32; "Summa Norm.," 
 19,6. 
 
 « Cf. the " Salmann." Other cases in which the naming of an executor is in- 
 
 692
 
 Topic 4] TESTAJVIENTARY PRO\^SIONS [§491 
 
 During his lifetime the donor granted his possessions as a matter 
 of form to third parties (almoners, executors, cf. "Salmannen"); 
 he kept them in fact, — that is, kept the enjoyment of them; but 
 these third parties became the owners and were charged with 
 transferring them after his death ^ to a church or a monastery, to 
 do acts of charity in order to redeem his sins, and to assure a suit- 
 able burial for his body and eternal salvation for his soul. The 
 purely religious part which was originally played by executors 
 was enlarged when the will appeared in practice and when the 
 people no longer limited themselves to dispositions "pro anima"; ^ 
 they paid the debts, made good the damages caused by the de- 
 ceased ("male ablata," torts done), indemnified those who made 
 complaints ("clamores") against him,^ paid off the legacies and 
 upheld the vahdity of the will,^ and, not satisfied with being the 
 liquidators '" and, as it were, the guardians of the succession, they 
 were seen sometimes to become the testamentary guardians of the 
 minor children of the deceased. Thus the institution took on a 
 secular aspect. It is easy to understand that the seigniorial judges 
 should have disputed the jurisdiction of testamentary execution 
 with the ecclesiastical judges, until the time when the seculariza- 
 tion having taken place, ecclesiastical courts lost all jurisdiction 
 in this matter (sixteenth century).^ 
 
 However, when once people had become accustomed to having 
 the entire inheritance pass to legatees by the intervention of 
 executors, the appointment of an heir in the Roman sense became 
 
 dispensable: (a) taken unawares by death, one only has time to choose some 
 friend to carry out the transfer "super altere"; (6) one wishes to have the gift 
 made on the date of the funeral (pagan idea). We also find gifts "causa 
 mortis" made by means of a third person being interposed. 
 
 1 Sometimes executors "inter vivos." 
 
 2 One can appoint a third party to make one's will ("will by agent"), but 
 the canon law decided that this third party only had one right, and that was 
 to confer the property of the succession upon the poor or to repartition this 
 property "causa; pia;": Dig. X, 3, 26, 13; 5, 40, 18; Fertile, IV, 44; "Fuero 
 Real," 3, 5, 6; "L. deToro," 32; F. de Vizcaya, 21, 3. England: John Lackland, 
 1216; "Fleta," II, 62, 13; Britton, 28. France: "Bullet, hist, et phil.," 1898, 
 p. 376 (in 1286); Desmares, 49; "T. A. C, Bret.," 326; Masuer, 33, 38; Furgole, 
 "Test.," 10, 4, 51; Fertile, IV, 45; Fasquier, "Doc. rel. k Boussagues," p. 29. 
 
 * R. Caillemer, p. 74. 
 
 * In England the first duty of executors after having had the funeral of the 
 testator attended to is to have his will proved by the judge ("probatio"; 
 from this comes the Court of Probate, 1857, merged in 1875 into a single 
 Supreme Court). On the (continent the proof and the formalities of publishing 
 the will are especially incumbent upon the notary and the heir. 
 
 * Beaumnnoir, 12, 31, 58: procedure of hquidation; "Olim," II, 255, etc. 
 Cf. Blackstone, II, 32. 
 
 6 Loysel, 316; Fasquier, 472; Fithou, "Lib. de I'Egl. Gall.," 24, 25; Council 
 of Trent, s. 22, c. 7. 
 
 693
 
 §491] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 customary. From this time dates the decHne of testamentary- 
 execution. Creditors and legatees were sufSciently protected 
 against the ill-will of heirs, and, as the property passed directly 
 to the latter, it was they, so it seemed, who were bound to pay 
 the debts and legacies.^ Executorship fell into disuse in countries 
 of written law. It was kept up in the countries of Customs, where 
 the appointment of an heir had difficulty in making its way, and 
 where the heirs of the blood sought to avoid the clauses of the 
 will which took away their estate; but the role of executors was 
 limited to the payment of legacies. They have not disappeared in 
 the existing law (Law of the 7th Nivose, year V, Civil Code, 
 1025) .2 
 
 The rights and the powers of the executor have varied accord- 
 ing to the part played by him.^ The earliest executor is a sort of 
 heir; he becomes owner ^ of the properties of the deceased through 
 delivery.^ At the death the possession of them comes to him of 
 absolute right; he has the seisin, collects and profits by the issue, 
 pays the legacies and the debts out of the movables, and transmits 
 
 1 "Gr. Cout.," p. 369 (they carry out the will provided surety has been 
 furnished). Bracton, fo., 407 6; actions on behalf of and against the heirs, 
 and not against the executors. Beautnanoir, 12, 2: the heirs dispute the seisin 
 with them. 
 
 2 Cf. legatees charged with transmitting the property of the deceased to 
 charitable estabUshments and with carrying out certain works, etc. Auguste 
 Comte charged thirteen executors to watch over his spiritual work; and one 
 of them, P. Lefitte, carried it on. 
 
 2 Executors have often been considered as agents acting in the name of the 
 deceased; but the truth of the matter is that they act in their own names and 
 are invested with powers of their own {cf. ' ' Guardians " ) . The old Germanic law 
 did not admit of representation: ante; R. Caillemer, 131. After the revival of 
 the will, as soon as alienation by agents is allowed, there is a tendency among 
 the Romanists and the canonists to make of the executor an agent "post 
 mortem," without this tendency being fully reahzed; thus the executor could 
 keep the seisin of the movables: Beautnanoir, 12, 26; he represented the person 
 of the deceased: Dig. X, 3, 26, 19; Auffroy, 367. 
 
 * The nature of the right of executors is all the more difficult to define 
 because their powers vary greatly; sometimes they are charged with the dis- 
 tribution of the property of the testator as they may see fit, sometimes the 
 deed naming them Umits their rights, sometimes they only receive special 
 pieces of property, and sometimes they are executors of the residuary estate. 
 
 5 Must we say, as we did with regard to the "Salmann," that the donor 
 keeps certain rights over the property when he makes a deUvery without any 
 giving up of possession ("resignatio")? Heusler, I, 218; R. Caillemer,_ 258. 
 Or must we then reject this idea, although it conforms with the majority of 
 the texts ("Cart. Sen.," VII, 34, 30. Contra: will of Acfred, 928, in Baluze, 
 "Capit.," II, 1532), because these rights would then pass to the heirs, and 
 because the "traditio cartse" is complete of itself (without even the "se 
 exitum dicere")? Cf. appointment of an heir and gift "post obitum." Can 
 the "lex traditionis" be opposed to third parties? "Gr. Cout.," p. 233 (the 
 testator gives up his possession by the delivery of the will). Cf. Beautemps- 
 Beaupre, "Cout. d'Anjou," IV, 221; Caillemer, 324 et seq. — From the delivery 
 comes the word "Salmann." 
 
 694
 
 Topic 4] TESTAMENTARY PROVISIONS [§491 
 
 the ownership of the lands to the legatees.^ With rights as exten- 
 sive as these, abuses were to be feared. How were they avoided? 
 The deceased chose the executor among those of his relatives 
 or his friends of whom he could be sure. In order to avert the 
 chances of death and to establish a control, he ordinarily appointed 
 several executors.^ The obligation of conscience to which they 
 were bound was undoubtedly fortified by an obligation which was 
 valid in the eyes of the civil law ("fides facta"). Finally, the 
 religious and civil authorities did not remain indifferent to their 
 administration; the bishop and the judge watched over it. Their 
 powers were limited, they were compelled to have an authorization 
 for important acts, and they had to furnish the same guarantees 
 as guardians,^ — an inventory, a surety, sometimes an oath, and 
 the rendering of accounts.^ After the twelfth century, with the 
 revival of the will, they no longer have the hereditary possessions 
 delivered to them, but they are appointed by the will ^ and there 
 is a tendency for them to become nothing more than posthumous 
 agents with the special powers which are derived from their 
 former situation.^ Their seisin is restricted to movables; it only 
 lasts during a year and a day after the death; it carries with it the 
 prerogatives relating to possession, but one cannot say that it is, 
 as it was formerly, an expression of the right of ownership, for it 
 does not exclude the heir's right of ownership.^ 
 
 ^ Can the seisin of the executor be transmitted to his heirs? Contradictory 
 texts. Yes, in EngUsh law, no, in the canon law and according to the Customs. 
 The agency does not pass to the heirs of the agent : Beaumanoir, 12, 28. 
 
 2 Plurality of executors: on principle, collective action was required of 
 them ; but there were clauses in derogation of this rule, and in the end the power 
 of each one of them to act alone was admitted: Beaumanoir, 12, 58; Pasquier, 
 "Doc. rel. a la Seign. de Boussagucs," p. 40. Joint tenancy in English law. 
 
 ' The functions of the executor are: (1) gratuitous, but it is customary for 
 the testator to bequeath him something; (2) optional (the office of a friend 
 rather than a public function), but once they have been accepted, one can no 
 longer give them up as an agent would do: Commentary on "Cod. Just.," 1, 
 3, 28; Bartole, on Dig., 31, 1; Beaumanoir, 12, 26, 57; "T. A. C, Bret.," 324. 
 
 * Beaumanoir, 12, 29 et seq.; "Or. Cout.," II, 40; Destnares, 50, 71, 121; 
 Loysel, 314 et seq. The remainder belongs originally to the executors, who were 
 charged with distributing it as they might wish in charities {Joinville, "Hist, 
 de 8t. Louis," 34; "Siete Part.," 6, 10, 13), and then to the heir {Beaumanoir, 
 12, 33, 56). In England the residue has become the property of the executor: 
 Blackstone, II, 32. 
 
 5 Already during the barbarian period in Italy, in Septimania, and in 
 Catalonia ("Wis.," 2, 5, 10 et seq.; "Novella" of Valentinian, III, 4, 2) the 
 will continues to exist and the executors are named without delivery. Wills 
 of clericals. — Cf. Schulze, p. 151 et seq. 
 
 « Great importance still in England and in Germany. 
 
 ^ Loysel, 314; Beaumanoir, 12, 2, 14 (movables, immovables); "Paris," 
 297; "6rl6ans," 290; Dumoulin, on "Paris," 95: "non est verus possessor et 
 nisi procurator tantum"; Pasquier, "Inst.," 472. — In England the seisin has 
 
 695
 
 § 492] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 § 492, The Will, properly so called/ a unilateral deed which is 
 often secret and always revocable, involving the disposal of pres- 
 ent and future possessions to take effect after death, finally made 
 its reappearance about the twelfth century ^ under the pressure 
 of practical needs and as a consequence of the general changes 
 undergone by legislation (lessening of the rights of the family and 
 of those of the lord). The revival of Roman law only made the 
 more easy an evolution which would have taken place independ- 
 ently of it. From a religious act, which it was at first, the will, in 
 the course of its development, became half secularized. After 
 having recommended his soul to God and his body to a church to 
 which he left by way of burial fee some movable object (for ex- 
 ample, a horse), provided for his funeral expenses, made provision 
 
 always been restricted to the personal property (excepting since 1897), but 
 it is not limited to a year; on the other hand, it is only at the end of a year that 
 one can exercise measures of compulsion against the executors. On the Conti- 
 nent the length of time the seisin lasts is not more than a year from the thir- 
 teenth century on {G. Durand, 89; c/. his "Const., Acad. Sc. Montp.," 1900, 
 p. 109) ; this was admitted in the interest of the heirs as a consequence of par- 
 ticular clauses. The Church accommodated itself to this result because it 
 sought to insure a rapid execution of the will, and it already imposed upon 
 the executors rather short periods. Cf. Caillemer, p. 418. As to the invest- 
 ment, at the will of the executors, of the income of the prebends which ac- 
 crued within a year of the death of the titulary ("annus gratise"), cf. ibid., 
 p. 412. The German proverb: "The priest lives one year after liis death." 
 
 1 A series of wills from the barbarian period on, in the Cartularies and other 
 collections. The authenticity of some of them is disputed (for example, that 
 of Saint Cesaire d'Arles, a short will of Saint Remy: "N. Arcliiv.," 1899; 
 "Rev. benedict.," id.). Many are found in the proofs of the "Hist, de Langue- 
 doc" by D. Vaissette, etc. Thevenin, "Textes," nos. 76, 99, etc.; Du Cange, see 
 "Testamentum"; Tuetey, "Test, enreg. au Pari, de Paris sous Charles VI," 
 1880 (unpubUshed) ; Motorc?, "Test.des Xlle, XllI^, XIV^ siecles" ("Arch, de 
 I'Yvonne") ; "Bull, du Comite des Trav. hist.," 1884, p. 224; "R. h. Dr.," XIV, 
 529, etc.; "B. Ch.," 1, 3, 282; Pasquier, "Doc. rel. a la Seign. de Boussagues," 
 1901; Wills of Phihp Augustus, of St. Louis, etc.; Isambert, see Table; 
 Beaumanoir, 12, 58 (model) ; Boutaric, p. 873, etc.; Auffroy, p. 679 (and passim); 
 R. Caillemer, p. 687 (bibl.); Heidhard, "Rabelais Legiste et le Testament de 
 Cuspidius," 1888; Girard, "Textes," p. 722 et seq.; Engelmann, "Les Test. 
 Coutumiers au XV^ siecle," 1903 (Thesis). 
 
 2 St. Paul, "Hebr.," ix, 16. On the revival of the will cf. Auffroy, pp. 423; 
 R. Caillemer, pp. 288, 313; "Cart, de Cluny," V, 109 (in 1100), 510; "St. P. 
 de Chartres," II, 370; Yves de Ch., "Deer.," XVI, 115; Gratian, II, 12, 5. 
 The tendency is manifested earUer in the southern territory of the Visigoths; 
 it is possible, even, that there was no interruption there in the use of the will: 
 "Wis.," 4, 2, 4; 2, 5; Act of 1128, which reproduces it; D. Vaissette, see no. 499; 
 "L. Burg.," 43, 60 {cf. "L. Rom. Cur.," 26, 1: declaration "in die mortis," 
 translation in MarcuZ/e, II, 17; "Carta Sen.," 42, 45; "L. Saxon.," 62; "Alam.," 
 1; "Bai.," 15, 10); "Brachyl.," II, 19, 32; "Petrus," IV, 19 (custom). — As 
 to the Lombard law, cf. "Liut.," 6; "Aist.," 3, and on these texts see bibl. in 
 Caillemer, 289; Palumbo, 301; Schidze, 14; Auffroy, 135, 279, 514; Glasson, ' 
 III, 177; Vlll, 540. English law: Pollock and Maitland, II, 314 et seq. (from 
 the Anglo-Saxon "cwide" to the will of modern times). Rymer, "Foedera," 
 I, 47 (Will of Henry II, 1182); Ruber, IV, 608 to 667 (Switzerland); Zacharie 
 de Ldngenthal, "Gesch. d. Griech. R.," p. 124 et seq. 
 
 696
 
 Topic 4] TESTAMENTARY PROVISIONS [§ 494 
 
 for the salvation of his soul (foundation of masses, anniversaries, 
 charities or legacies), the testator regulated the disposal of his 
 possessions as a whole and in particulars. Very important con- 
 sequences were the result of this change. 
 
 § 493. The Same. — (I) Jurisdiction. The lay courts contested 
 with the ecclesiastical courts for jurisdiction over wills (thirteenth 
 century) and finally kept this jurisdiction entirely to themselves 
 (sixteenth century).^ 
 
 § 494. The Same. — (II) Capacity to make a will or to receive 
 hy will was regulated in the same way as the capacity to leave or 
 take an intestate succession, except for a few pecuharities, with 
 the object of better assuring the freedom of the testator and the 
 prevention of undue influence. The reversion to the lord of pos- 
 sessions granted by him to his vassals, copyholders, or serfs, was an 
 obstacle to the exercise of the right to make a will, especially as 
 far as these latter were concerned, who were only authorized to 
 dispose of five sous for the salvation of their soul. The rights of 
 succession to the estate of deceased aliens, of succession to the 
 estate of an intestate bastard, and of confiscation, produced re- 
 sults which were analogous to those of the inalienability of a serf's 
 property.- Those who were still under a disability (for lack of an 
 inheritance or lack of desire to make a will) were those civilly dead, 
 monks, sons of a family in the South, minors under custody or 
 guardianship in the North, madmen, and prodigals.^ In countries 
 of written law a person who has not attained puberty cannot make 
 a will; in the countries of Customs one must be twenty years old 
 in order to make a will of one's movables and acquests, and twenty- 
 
 ' From the tenth to the twelfth century the ecclesiastical judges had the 
 exclusive jurisdiction in the matter of wills, excepting, perhaps, in the south, 
 where at a very early time in all cases the civil tribunals had a concurrent 
 jurisdiction. In the sixteenth century the latter courts once more became the 
 only ones that were competent: Loysel, 316; "Comp.," la, 3, 22; Dig. X, 3, 
 26; Sextus, III, 11; "Cart, de St.-Pere de Chartres," II, p. 313 (towards 1100, 
 Bishop as arbitrator); pp. 278, 306, 425 (towards 1120 he becomes the Judge); 
 "T. A. C, Norm.," 1, 57, 2; "Olim," II, 55, 255, 335; Beaumanoir, 11, 10; 
 12, 1, 14, 27, 60; J. Le Coq., 93; Boutaric, II, 1; Auffroy, pp. 357, 385, 396, 485, 
 635; Viollet, 864. 
 
 2 Rights of the lord, cf. "mortuarium," in English "heriot," Pollock and 
 Maitlnnd, I, 293; Fertile, IV, 18. Numerous provisions in municipal charters 
 granting the right to bequeath by will. Aliens may give "inter vivos," but 
 not by will. 
 
 3 "Brachylogus," II, 20; "Petrus," I, 26; G. Durand, "Spec," II, 2, 12- 
 Beaumanoir, 12, 3, 45; "Toulouse," 147 et seq.; " Montpellier," 54 (marrica 
 daughter); "Carcass.," 40; Auffroy, 526. Cf. "Jostice," 12, 1, 20, 25; "Et. 
 de St. Louis," I, 28; XC, 133; "Summa Norm.," 22, 9; Loysel, 302; "Paris," 
 293 et seq. As to the married woman: Viollct, 866. Bastards: Pasquier, 398; 
 ArgoiC, II, 12. Cf. Blackstoiie, II, 32; Stobbe, § 303; Fertile, § 122. 
 
 697
 
 § 494] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 fi\'.e in order to make a will of a fifth of one's personal belongings; 
 at least, this is so in the later stages of the law.^ Those who are 
 under a disability to receive by way of a will are, as a general thing, 
 people in mortmain,^ spouses from one another, and illegitimate 
 children.^ 
 
 § 495. The Same. — (III) The ajjpointment of an heir of the 
 Roman law reappeared, (a) Countries of written law.^ It is there 
 found towards the middle of the twelfth century; it became at 
 once a general custom. There are local Customs, like that of 
 Toulouse, which do not regard it as necessary; but, at least in the 
 fourteenth century, it becomes a necessary condition for the 
 validity of the act,^ and the heir who is appointed has a right to 
 one-fourth, by w^ay of portion, which he can distribute, or a por- 
 tion of one-fourth which he can keep out of the inheritance which 
 is affected by a trust.® ih) Countries of Customs. The appointment 
 of an heir was still unknown in the time of Beaumanoir; ^ it is not 
 valid even as a legacy, according to certain of the Customs of the 
 sixteenth century; ^ others, for example that of Paris (1580), do 
 not look upon it as being indispensable and give it at the most the 
 effects of a " universal " legacy.^ 
 
 1 "Paris," 293, 294, and Customs that are silent. Boutaric, I, 103. 
 
 2 Loysel, 75, 76. Edict of August, 1749; D'Aguesseau, "CEuvres," XIII, 
 ed. Pard., Theses: Serville, 1898; Mourmant, 1900; Bondroit, "De Capac. 
 possid. eccl.," 1900 (Merovingian period). — Ecclesiastics may bequeath by 
 will, may inherit, and may receive legacies, but not monks: Loysel, 343 et seq. 
 
 ^ Cf. post, "Gifts." Legacies from one spouse to another: Beaumanoir, 
 12, 4, 10, 22; "Et. de St. Louis," I, 118. — Special disabihties: Argou, II, 12 
 (Declaration of 1549, etc.; jurisprudence); II, 15; Civil Code, 901 et seq. 
 
 * "Petrus," I, 16, 18; "Usat. Barchin.," 76; "Montpellier," 56; "Toulouse," 
 123; "Ass. de Jer.," "C. des B.," 184; Auffroy, p. 489. Cf. Palumbo, 358; 
 Argou, II, 13, disinheriting. 
 
 6 G. Durand, "Specul.," II, 2, 18; Auffroy, p. 638; Pasquier, "Doc. rel. a 
 la Seign. de Boussagues," p. 15 (in 1260); Serres, "Inst.," II, 14, 26. The 
 codicil, differing in this from the will, cannot include the appointment of an 
 heir; the distinction is made in countries of written law, whereas in countries 
 of Customs the will is in substance and in its form merely a codicil: Viollet, 900; 
 Pertile, IV, 15. As to the employment of the codicil clause, cf. Ferriere, 
 Guyot; Argou, II, 17; Auffroy, 603. As to the Roman law, see Girard, p. 850. 
 
 6 "Petrus," I, 15; "Brachylog.," II, 29 et seq.; G. Durand, "Specul.," II, 
 2, 12, 33; IV, 2, 16; Dig. X, 3, 26, 18. These shares of one-fourth may, more- 
 over, be done away with by will or codicil: G. Durand, II, 2, 12, 47; Serres, 
 "Inst.," II, 22; Argou, II, 12 (appointment of the one of the children whom 
 the surviving spouse shall choose; cf. substitution). Cf. Zacharie de Lingenthal, 
 p. 177. 
 
 ^ P. de Fontaines, 15, 7; 23, 16; "Jostice," 12, 21, 11 and 15; Beaumanoir, 
 12, 19; "Layettes du Tr6s. des Chartes," III, no. 3661 (in 1248); R. Cailleyner, 
 p. 207. 
 
 8 "Paris, N. C," 299; cf. "A. C," 120; Loysel, 304, 813; Ferriere, see "Inst. 
 d'H^r."; Bucherellus, "Inst.," p. 254; Viollet, 899; "Navarre," 27, 31 (seisin). 
 
 8 As to special legacies, cf. Pothier, VIII, 138. Imphed mortgage of legatees, 
 
 698
 
 Topic 4] TESTAMENTARY PROVISIONS [§ 496 
 
 § 496. The Same. — (IV) Different forms of wills. (A) The 
 canon will} As the most important thing of all was the salvation 
 of the soul of the testator, the Custom of the Church showed it- 
 self not very exacting as to the validity of this act. (a) It was 
 first of all satisfied with a verbal declaration made in the presence 
 of two or three witnesses (instead of the seven or five of the Roman 
 law), for, according to the Gospel, "In ore duorum vel trium tes- 
 tium stet omne verbum." ^ (6) The parish priest of the locality 
 more often took part in this because the will was a sequel to 
 a confession. His services became obligatory. There was seen 
 in him not only a scribe who was proving by means of writing 
 the last wishes of the deceased, but a sort of public officer charged 
 with watching over the regularity of the act and with making sure 
 of its fulfilment.^ After the death the procedure of "publicatio" 
 or "probatio," ending in a report, was often required in order 
 officially to establish and put beyond all discussion the last wishes 
 of people who were dying."* The canon will, at least under its 
 written form, was still upheld by the Ordinance of 1735, Art. 25, 
 in those localities where the Customs authorized it.^ This was 
 a measure which was justified by practical necessity, for many 
 localities had no notaries, and in an urgent case it was neces- 
 sary to make a will before the parish priest, or, otherwise, not 
 make a will at all. Aside from such cases as these, it must be ad- 
 mitted that so much simplicity for an act as serious as this was 
 full of disadvantages, because it left the field clear for frauds 
 and abuses. Every effort of the civil legislation tended to sur- 
 
 L. 1, "Cod. Just.," "Comm. de leg."; see Fernere (bibl.). Legacy of something 
 belonging to another: Beaumanoir, 12, 46; Argou, II, 15. Increase: ibid.; 
 Fleury, "Inst.," I, 313 et seq.; Masuer, 24; Boutaric, I, 105. 
 
 1 Thomas, op. cit.; Viollet, 895; Glasson, VII, 541; Auffroy, 441. C/. "L. 
 Wis.," 2, 5, 10 et seq.; Tardif, "Dr. prive au XIIP siScle," p. 66; Blackstone, 
 II, 23, 32. 
 
 2 " Matthew," xviii, 16; Gratian, 2, 13, 2, 4: "Ultima, voluntas defuncti 
 modis omnibus conservetur " ; Dig. X, 3, 26, 4, 10 (Alexander III, 1170); 
 "Toulouse," 123; "Petrus," IV, 10; "Montpellier," 52; "Carcassonne," 38; 
 "Ass. de Jer.," "C. des B.," 184, 201; Beaumanmr, 12, 9, 40; "Gr. Cout.," II 
 40; Pasquier, "Inst.," p. 446; Ordinance of May, 1579; Loysel, 301; Palumbo, 
 373. 
 
 »' Council of Albi, 1244, c. 37 (Labbe, XI, 2370). 
 
 * Thirteenth century. Cf. "L. Wisig.," 2, 5, 12; D. Vaissette, 8, 1293 (in 
 1251); Council of Avignon, 1279, c. 14, etc.; G. Durand, "Spec," II, 2, 12, 9; 
 Auffroy, 448, 519, 599, 656; Stobbe, V, 37; Pollock and Maitldnd, II, 339. Cf. 
 publication in Italy: Fertile, IV, 30; "Paris," 293 (registers for baptisms, 
 marriages, wills and burials) ; "Lib. Instrum. Memor." (Montpellier), p. 194 
 et seq. 
 
 ^ Depositing of the deed with the notary of the locality after the death of 
 the testator. 
 
 699
 
 § 496] INTESTATE SUCCESSION, GIL^-TUITOUS CONVEYANCES [Chap. IV 
 
 round it with formalities, that is to say, with guarantees of 
 sincerity. 
 
 § 497. The Same. — (B) Modern state of law} The forms of 
 the will are not the same in countries of written law and in coun- 
 tries of Customs.^ The Ordinance of August, 1735," kept its regula- 
 tions on this point in two different parts. ^ 1st. The Holographic will,^ 
 which is the most simple of all because it is sufficient if it is dated, 
 written, and signed by the hand of the testator. In the thirteenth 
 and fourteenth centuries the affixing of the notarial seal was re- 
 quired in order to make it valid; ^ after that the signature of the 
 testator took its place. An exception in countries of written law, 
 it seems to have been little used in countries of Customs.^ — 2d. 
 Nuncupative will, or verbal will of the countries of written law.^ 
 This consisted in a declaration made in the presence of five or 
 seven witnesses.^ It was perfectly logical to admit it at a time 
 when the rule, "Witnesses are preferred to writings," was followed. 
 When the opposite principle was adopted, "Writings are preferred 
 to witnesses," it should have been abolished; this was only done 
 
 1 Registration of wills: Edict of June, 1581, Arts. IV and VII; Edicts of 
 1693, 1703; Oct. 29, 1720; Oct. 17, 1721. Cf. Registration of Gifts: Viollet, 
 903; " Papyrus of Ravenna," Girard, loc. cit.; "Form. Wis.," 21, 25; Thevenin, 
 no. 18; Palumbo, 150, 273. — With the Germanic and Customary practice in 
 the matter of the transfer of the ownership of immovables seem to be connected 
 the Customs of Flanders, which require legal formalities (ratification, acknowl- 
 edgment and registration), at least in order that the testamentary heir should 
 be invested with the ownership: Boutaric, I, 103; Britz, 912; Struve, "Jurisp. 
 for.," II, 15. Cf. Demuth, "Wechsels, Verfiig.," 25; Huber, IV, 608 et seq. 
 The intervention of the court or the public authorities is very frequently met 
 with in the Germanic countries. 
 
 2 Halm, "Dediv. Test, form.," 1817; Hommel, "De Script, in Test, nunc," 
 1729; Netlelbladt, "De Test, noncup. in Script, red.," 1758; Viollet, 890; 
 Fertile, IV, 25; Stobbe, § 304; Masuer, 32; Mich. Grassus, "Sentent. de Success.," 
 1603; "Parfait Notaire," I, 11. 
 
 3 Declarations of 1745, 1751, and 1783. Authors cited supra; "Recueil des 
 Quest, prop." 
 
 ^ PecuUarities: the blind, soldiers, a will made at sea, in times of plague, etc. 
 Cf. Ferricre; " Ord." of 1735, 27 et seq.; Civil Code, 961; Argou, II, 12, 17. 
 
 5 " Novella " of Valentinian, III, 4, 2. All the epitomes of the Breviary deal 
 with it: "L. Wis.," 2, 5, 11, 13, 14; DeGreve, "DeTest. hoi.," 1825; "Navarre," 
 27, 22. — Cf. also "testamentum parentum inter liberos." 
 
 8 Beaumanoir, 12, 9: authentic seals; Auffroy, pp. 600, 650 (seal of the Mayor 
 of La Rochelle); Bucherellus, "Inst.," p. 188; Lamoignon, "Arr.," "Test.," 49 
 et seq.; "Ord." of January, 1629, 126 (not enforced); 1735, 1, 3, 16. 
 
 ^ Ferrihre, on "Paris," 289. The opening of the will before the judge 
 and depositing it with a notary: Ferriere, see "Ouverture"; cf. Boutaric, 
 p. 873. 
 
 8 "Novella" of Th^od., II, 2, 1; G. Durand, "Spec," II, 2, 12, 39; Viollet, 
 893; Auffroij, 651. 
 
 9 Seven for the will and five for the codicil: "Wis.," 2, 5, 12; "Burg.," 60; 
 "Brachyl.," 2, 19, 32. Example in Auffroy, p. 513; Boutaric, I, 105; Serres, 
 II, 10. As to witnesses to wills, cf. R. Caillemer, p. 87; " Ord." of 1735, 39 et seq. 
 
 700
 
 Topic 4] TESTAJMENTARY PROVISIONS [§ 498 
 
 by the Ordinance of 1735, Art. 1.^ — 3d. Will by public deed. — 
 (a) Written nuncupatue loill - of countries of written law.^ This 
 was a declaration made by the testator in the presence of seven 
 witnesses, including a notary, who wrote it down at the dictation 
 of the testator.** — (6) Formal will of the countries of Customs. 
 This consisted in a declaration (dictated) made in the presence 
 of two notaries, or of one notary and two witnesses, and taken 
 down in writing by either of the two notaries or by the single 
 notary. This is the will of the canon law secularized; but the 
 courts, reacting against the spirit of the canon legislation, called for 
 a great deal of strictness in passing upon its validity; the most 
 minute formalities prescribed in the case of notarial deeds must 
 be observed, under penalty of nullity.^ — 4th. Mystic will, or 
 secret will of countries of written law, borrowed from the legal 
 system of the Lower Empire (tripartite wills). The testator pre- 
 sents to seven witnesses, including a notary, a paper folded and 
 sealed, declaring at the same time that therein are contained his 
 last wishes; the notary draws up a minute upon the envelope (act 
 of subscription).^ 
 
 § 498. The Same. — (V) Revocation of wills, (a) Express. This 
 results, in countries of Customs, from a notarial deed, or one 
 under private seal, whereas in the South a new will is necessary, 
 following the Roman law. (h) Implied. This would take place by 
 means of any change of will manifested in a way which was not 
 equivocal: inconsistency with a previous will, alienation of pos- 
 sessions which had been bequeathed, or an enmity sprung up be- 
 tween the testator and the heir who had been appointed. In the 
 South the custom of the appointment of an heir results in every 
 valid will revoking all preceding wills, even if its provisions are 
 
 1 Pasquier, "Inst.," p. 467 (out of use since the "Ord." of 1566). 
 
 2 D. Vaissette, VIII, 1292. Use of the codicil clause: G. Durand, "Spec," 
 2, 2, 12, 9, 18. For Codicils five witnesses were sufficient: Argou, II, 17. 
 Cf. Girard, p. 805 (will " apud acta "). As to the subscribing of witnesses, cf. 
 ibid., p. 804; Giry, "Diplom.," p. 601. As to codicils, "Tract, univ. jur.," 
 VIII. 
 
 ' Fans, "Acad. I^g. Toul.," XI, 14; Viollet, 893; "Lib. Instr. Mem.," 172 
 et seq. 
 
 * For a long time the scribe who drew up the will was not a public officer: 
 Giry, "Diplomat.," p. 826 (ninth and eleventh centuries); "Wis.," 2, 5, 10. Some 
 of the Customs were satisfied with three or four witnesses, and these need not 
 include a parish priest or notary: Loysel, 301; "Bourbon," 289. 
 
 " "Paris," 289 (and Commentaries); Pasquier, "Inst.," p. 469; Civil Code, 
 971. 
 
 « "Novella" of Th^od., II, 9 (in 439); "Inst. Just.," 2, 10, 3; "Burg.," 43, 
 60; D. Vaissette, VIII, 1293 (in 1251); G. Durand, "Spec," II, 2, 12; Serres, 
 "Inst.," II, 10. — Cf. Pertile, IV, 29; Civil Code, 976. 
 
 701
 
 § 498] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 reconcilable with theirs.^ Formerly, under the influence of the 
 old ideas as to irrevocability of covenants relating to succession, 
 certain impediments to freedom to revoke wills were tolerated; 
 for example, it was allowed to covenant that a will could not be 
 revoked excepting under certain conditions (clauses in derogation), 
 a later will would only be valid if it began with formulae such as 
 "Beatus vir qui timet dominum." ^ The Ordinance of 1735, Art. 
 76, abolished this custom. When by means of the same deed two 
 persons had made a will for each other's benefit (conjunctive 
 wills) ^ one of them could not revoke the provisions which they 
 had made without notifying the revocation to the other, evi- 
 dently so that the latter could do the same on his part. This 
 double deed, which did not accord with the Roman conception 
 of the will, recalls the "interdonatio" of the barbarian period, 
 and, like the latter, is especially made use of between spouses.^ 
 Art. 77 of the Ordinance of 1735 forbade it. 
 
 1 Beaumanoir, 12, 41 et seq.; Auffroy, p. 488 (a^ts of 1022, etc.). Cf. 
 revocation of gifts: see Ferriere; Fleiiry, "Inst.," I, 313. The judge may hold 
 a will as being revoked should there be posthumous children: Argou, II, 13; 
 Chaisemartin, p. 434. 
 
 2 " Entendez-vous bien," etc.; "Lib. Instr.," 202; see Ferriere. 
 
 3 Stobbe, V, 250 (bibl. and details): "testamenta simultanea, reciproca, 
 mutua, correspectiva": Harmann, "Erbvertr. u. gemeinschaftlich. Testam.," 
 1860. Cf. mutual gifts and partition among ascendants. Hesitation and 
 diversity upon the theory of conjunctive wills. Post, "Contractual Appoint- 
 ments." 
 
 4 "Nov." Valent., Ill, 4, 1 (epit.); Pardessus, "Diplom.," I, 136 (in 572); 
 "Papyrus of Ravenna," in Marini, "Papir. dipl.," no. 75; TMvenin, "Textes," 
 nos. 18, 40 et seq.; Marculfe, II, 17; Schulze, p. 29; Huber, IV, 632. 
 
 702
 
 Topic 5] GIFTS "IXTER VIVOS" AND "CAUSA MORTIS" [§ 500 
 
 Topic 5. Gifts "inter vivos" and "causa mortis' 
 
 § 499. The Formula of Loysel. 
 
 § 500. Gifts during the Barbarian 
 
 Period. 
 § 501. To give and to withhold is not 
 
 Valid. 
 § 502. Formalities. 
 
 § 503. Incapacity to give and 
 
 receive. 
 § 504. Gifts between Spouses. 
 § 505. Mutual Gifts. 
 § 506. Revocation of Gifts. 
 § 507. The Gift " causa mortis." 
 
 to 
 
 §499. The Formula of Loysel, 662, "Everj^one [of sufBcient 
 age] can dispose of his possessions at his pleasure by gift 'inter 
 vivos,' according to the opinion of all our French doctors," is just 
 the opposite of the very old law. Even in the time of Loysel it is 
 far from being accurate. In the very old law the gift runs too 
 much counter to the rights of the family or those of the superior 
 owners, for it to be authorized "de piano"; and when these rights 
 became weaker it was still looked upon with disfavor. It ran 
 counter to many restrictions: (a) The rule, "To give and to with- 
 hold is not valid"; (6) special formalities; (c) special disabilities;, 
 (d) theory of the legal share. This mere enumeration shows how 
 far they were from freedom of giving; the theorists of the school 
 of natural law may in vain proclaim that the gift is an " act rec- 
 ognized by the law of nations" and an indispensable attribute of 
 ownership; ^ it is easy to see that it could scarcely have been treated 
 otherwise, starting with the idea that this was an act of the civil 
 law.^ 
 
 § 500. Gifts during the Barbarian Period.^ — The gift " inter 
 vivos" is carried out by handing over (delivery); ^ but, as applied 
 to immovables, it has a personal character which has made it 
 differ greatly from the Roman gift.'' It is rather a gratuitous lend- 
 
 1 Pothier, no. 4; Pasquier, "Inst.," p. 327. 
 
 * It was, however, less dangerous for the family than the will, for there is 
 a certain repugnance for gifts "inter vivos," and to-day there are only five 
 such gifts for every hundred wills. 
 
 3 Viollet, "Dr. pubhc," I, 320; Thevenin, "Textes," Table, see "Dona- 
 tions" (various clauses). Cf. deeds in D. Vaissette, "Cartul.," etc. 
 
 * Gifts by means of a promise do not seem to have been possible. The 
 formal contract would not have bound the heirs; the extent of its application 
 was limited (giving of surety, etc.) : Thevenin, nos. 40, 69, 75, 83, 132 (solemn 
 forms). Cf. Salvioli, "Pubhcata n. vendita," 1895. 
 
 ^ This is what was proved by Brunner, "Landschenk. d. Merow.," 1885 
 ("Forsch.," p. 4); Tamassia, "Don. more salario," 1901: Bondroit, "Precariae 
 Verbo Regis," 1901; Guilhiermoz, "Orig. de la Nobl., p. 104; Marignan, 
 "Et. s. la Civilis. Fran^.," I; Dareste, "Et.," p. 329, 63. 
 
 703
 
 § 500] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 ing than an absolute gratuity. Thus the possessions given do not 
 pass to the heirs of the donee (cf. Prankish benefices), unless there 
 is an expressed clause, and the tendency is always in the direction 
 of the limitation of inheritance and the reversion to the donor.^ 
 If the gift is made to an heir, it constitutes an advancement of 
 inheritance; and one can understand that at the death of the 
 donor it would come back to increase his estate. The reversion 
 pertaining to succession is only a natural application of these 
 ideas.^ The donee has not the right to dispose of the possessions 
 given unless there is a clause which authorizes him to do so, or 
 unless he has the special permission of the donor.^ Frequently, 
 the gift is made with a certain object, for example, on condition 
 of services; if this object is not realized, the donor takes back 
 his possessions.** To sum up, the gift only conveys a limited 
 ownership; ^ its effects, even against third parties, depend upon 
 the clauses w^hich it contains, upon the "lex donationis." ^ 
 
 So little could gifts be counted upon, that the Lombard law 
 devised an expedient to render them permanent. It required for 
 the formation of a gift a counter-giving on the part of the donee; ^ 
 
 1 Cf. English law. Necessity of the clause "sibi et heredibus suis." If they 
 said "sibi aut heredibus" there would be a reversion to the donor: Glanville, 
 7, 1, 2; Bracton, fo. 176 and 926; Pollock and Maitland, II, 24; "Valenciennes," 
 1619, Art. 108. Sweden: Aviira, "N. O.," I, 510, 550 (Vestrogoths : the vendor 
 also has the right to take back the property sold) . Frisia: Richiofen, "Fries, 
 Rechtsq." (gifts to illegitimate children). "Sedan," 116. Bavaria: " M. G. H., 
 L. L.," Ill, 460, c. 8. Cf. as to this, exclusion of women from the Sahc land and 
 succession to fiefs, ante. — In our own time, cf. bestowal of some grade of some 
 order of knighthood. 
 
 2 "L. long. Car.," 106; Schroeder, 221. 
 
 ' Deeds including the clause: "Quiquid exinde facere volueris, liberam 
 habeas potestatem." In others the donor adds: "ex permisso nostro." Mar- 
 culfe, I, 14, 31; Brunner, p. 12 (gifts of the Bavarian dukes); cf. "Bai.," 1, 1. 
 Confirmation of gifts by the Frankish kings: Greg. Tours, 9, 42; 10, 31, etc.; 
 "Cart, de Redon," no. 144; "Burg.," 1, 3. — In our day, cf. gift of a book with 
 dedication. 
 
 * "Roth.," 225 (to generalize); "Wis.," 5, 3, 1, 3; 5, 2, 4; Greg. Tours, 8, 
 22 (Bodigiselm); 9, 35 (Waddo); "F. Vat.," 275. Pretentions of royalty over 
 the domains granted to the churches and the abbeys: Loening, "D. Kirch.," 
 I, 300; Vanderkindere, "Introd. h I'Hist. de Belg.," p. 279; Marignan, "Et. 
 s. la Civilis. Fr.," I; Bondroit, "De Capacit. possid. eccles.," 1900; Vauthier, 
 "Pers. morales," p. 80, 95. 
 
 6 One also finds at this period gifts of the absolute ownership that are irre- 
 vocable and inheritable (cf. "F. Vat.," 275), in this following the example of 
 the Roman law. But the old Germanic conception, the rights of the family 
 or of the grantor are more in favor of gifts of a limited ownership : cf. Reverdy, 
 p. 336. 
 
 ^ The difficulty is to explain why the "lex donationis" could be opposed 
 to third parties. Cf. Albertu, II, 18; "Et. de St. Louis," I, 117. 
 
 ' ValdeLihre, "Launegild u. Wadia," 1877; "Z.S.S.,^' 1883, "G.A.," 15 
 (bibl.); PapTpenheim, "Launeg. u. Gaireth.," 1882 ("Unters.," by Gierke); 
 Havet, "N.R.H.," 1878,255; Schupfer, "Arch. Giur.,'^ 1883,507; cf. "Ann. d. 
 
 704
 
 Topic S] GIFTS "INTER VIVOS" AND "CAUSA MORTIS" [§ 501 
 
 after having received the possessions with which he was presented, 
 he should give to the donor some object of small value (a ring, a 
 cloak, etc.),^ called "Launegild," that is to say, to a certain extent, 
 value in exchange. By this means he changed the gift into an act 
 involving exchange, an exchange which was even-handed; and acts 
 of this nature are the only ones which the old legislation sanc- 
 tioned. If there was no "Launegild," the property which had been 
 given could be taken back; once the "Launegild" had been given, 
 the gift was irrevocable and the donor was bound to guarantee it 
 (if there was any eviction, "reddat ferquido," i.e. "similem"). 
 The "Launegild" degenerated in the thirteenth century into ear- 
 nest money to confirm a transaction.^ 
 
 § 501. To give and to withhold is not Valid.^ — The gift, little 
 by little, lost its personal character in order to revert back to the 
 Roman type. Everything contributed to this result, — a new 
 conception of the gift, implying that the donor deprived himself 
 absolutely, the simpleness of this solution, the method of realiza- 
 tion, the revival of the will, opposition between deeds "causa 
 mortis" and deeds "inter vivos," — to say nothing of the Roman- 
 
 Giur. Ital.," 1871; Franken, "Pfandr.," 59; Esmein, "Contrats," p. 13; Pal- 
 wnbo, "Test.," 254; Schroeder, 294; Heusler, I, 80; II, 254; Brunner, "Forsch.," 
 624, 3; Wodon, "Forme," p. 197. 
 
 1 "Lohn," compensation; "Geld, "money. Cf. "Widerdonum," recompense: 
 "Form. s. Roth.," 184. Indispensable in the case of a gift, the "Launegild" 
 is also applied to other acts (delivery of the wife to the husband, adoption, 
 emancipation, transactions, etc.), perhaps by an extension of its use, in the 
 case of a gift. Cf. Schroeder, loc. cit. There is some question about this in the 
 Edict of Rotharis, 175, 184: Thevenin, nos. 48, 59, 61. This is an old usage, 
 "cawerfeda," allowing one to dispose of one's possessions privately, and not 
 an expedient devised to take the place of gifts "per gairethinx," which fell 
 into disuse when the popular diet became an assembly of the foremost men 
 (at the latest in the eighth century). In the thirteenth century Car. de Tocco 
 states that the "Launegild" was no longer in use. 
 
 2 Various systems besides that which is set forth in the texts: 1st. A mark 
 of the donee's gratitude {Val de Lievre, who gave up this idea), which cannot 
 be reconciled with the "Launegild requirere" of the texts. 2d. A symbol of 
 the consideration for the gift, like the price in a sale (Pappenheim) , but the 
 symbol expressed the very opposite of the idea of gratuitousness. 3d. The 
 confirmatory earnest money of the Roman law (Beseler) or the "constitu- 
 toria," earnest money of the Germanic law (Sohm, etc.). But the earnest 
 money is given before the execution of the contract. 4th. A means of pro- 
 tecting gifts from being attacked by relatives of the donor bj* transforming 
 them into deeds with a consideration. But deeds with a consideration them- 
 selves could be attacked. It is simpler to say that this is a counterpart of 
 exchange which was intended to make the deed irrevocable on the part of the 
 donor: "in omnibus contractibus," says the Lombard law, "permutatio con- 
 tinetur." Cf. " venditio nummo uno " of the Roman law. 
 
 3 A. Desjardines, " R. crit.," XXXIII, 207; Ch6)ion, "R. Canon.," 1899 
 (a question of law in the tenth century). Theses; Reverdy, p. 193; Constant, 
 1889, etc.; Stobbe, V, 186. 
 
 705
 
 § 501] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 canonic influence. Just as in the past, delivery was always re- 
 quired, and one can say that there was no gift without the donor's 
 giving up possession. This rule resulted from the fact that the 
 simple agreement to give was not obligatory, — " To promise and 
 to keep the promise are two things"; ^ in order to produce the ef- 
 fect it had to be carried out {cf. real contracts) ; ^ now, the carry- 
 ing out here consisted in the transfer before the lord, by means of 
 the vesting and divesting in such a way that it was difficult for 
 the donor to withhold in his own possession the thing given, just 
 as it was difficult for him to take it away from the donee (strictly 
 speaking, he would need, in order to do this, to have recourse to 
 the same formalities, but in the opposite way). To this state of 
 law corresponds the maxim, "To give and to withhold is not 
 valid"; ^ it expresses the necessity of delivery without absolutely 
 iniplying irrevocabihty. In fact, the books of maxims of the 
 thirteenth century authorize the donor to insert in the deed a 
 clause, allowing him to take back the property given (to give to 
 one's "rapiau"),^ and in the sixteenth century the validity of this 
 clause in certain cases is still being discussed.^ 
 
 During the period of the drawing up of the Customs delivery 
 was no longer demanded with so much strictness, but, by way of 
 set-off, they were very extreme on the question of irrevocability. 
 
 (A) Contracts being formed "solo consensu," the agreement 
 to give became binding. But if this rule was admitted as far as 
 promises to pay a sum of money or to pay a rent were concerned, 
 it was not the same with gifts affecting immovables.^ It is only at 
 
 1 "Ass. de J^r." J. d^Ibelin, 144 (gift in words, but not in deed); "Clef de 
 la H.-C," 194; "C. des B.," 214 (a gift is invalid without the seisin of the 
 thing); Glanville, VII, 1; Bracton, fo. 11, 38 etseq.; "Fleta," III, 3; Blackstone, 
 II, 20, 30. The EngUsh texts almost confuse gifts and aUenation. Naples, 
 cf. Fertile, IV, 585; "Sachsensp.," I, 52 (legal "Aufiassung"); Lattes, p. 225; 
 De Mony, "Comtes de Foix," II, 16, 371. 
 
 * They could have been satisfied with a partial carrying out, earnest money, 
 etc., as in the case of ordinary contracts. 
 
 ^ "A. C, Champagne," Art. 44: necessity of divesting and investing at law; 
 if the donor keeps the inheritance without paying any quit-rent to the donee, 
 the gift will be invalid as against the heir of the donor at the death of the 
 latter; by the common law and by the "Coutume de Champagne," "To 
 give and to withhold is invalid"; "Gr. Cout.," II, 28 {cf. sale); Loysel, 
 659; "Paris A. C," 160; "N. C," 273 to 275 (to give and to withhold means 
 that the donor remains in possession until Ins death) . — As to movables, 
 manual gift. Annexed State: "Ord." of 1731, 15; Duval, "De Reb. dub.," 
 2; P. Bressolles, "Dons manuels," 1882. 
 
 * Beaumanoir, 12, 39; 34, 2; "Ass. de J(5rus.," "Abr. C. des B.," I, 35; "L. 
 d. Droiz," 321. 
 
 s Opinion of Charondas le Caron, on "Paris," 275 (charge of the debts). 
 8 Delalande, on "Orleans," 283; Ragueau, on "Berry," 7, 1; Buridan, on 
 "Reims," 238; D. du Pont, on "Blois," 269; see Guyot. The "Cod. Th6od.," 
 
 706
 
 Topic 5] GIFTS "IXTER VIVOS" AND "CAUSA MORTIS" [§ 501 
 
 the end of the eighteenth century that it was recognized that such 
 gifts gave rise to a personal action against the donor with the 
 effect of compelKng him to transfer the ownership.^ This trans- 
 action had itself become more simple. Instead of vesting and 
 divesting before the lord, they were satisfied with a real delivery 
 to the grantee, and even with fictitious deliver^', following the law 
 of the Customs. But this change had great difficulty in being ac- 
 cepted as far as gifts were concerned ; ^ at one time real delivery 
 was always required, and at another time certain forms of fic- 
 titious delivery — such as the withholding of the usufruct — 
 were tolerated; but others were rejected — such as the clause of 
 disseisin-seisin — because they seemed to run too directly counter 
 to the old Customary rule.^ At last, however, fictitious delivery 
 was held sufficient,^ and there was nothing to prevent the donor 
 from keeping the thing given in his own possession, — for example, 
 as usufructuary or farm tenant. — (B) The maxim, "To give 
 and to withhold is not valid," which had ceased to be understood 
 as relating to the necessity of a real delivery, no longer had any- 
 thing in view excepting the irrevocability of the gift.^ This meant 
 that the donor could reserve neither the ownership of the things 
 given nor the right to deprive the donee of them whenever he saw 
 fit to do so (for example, by inserting in the deed a condition of 
 recall,^ by imposing upon the donee the charge of his own future 
 debts, by giving him property to be acquired in the future, that is 
 to say, property which it depended upon himself to acquire.)^ 
 
 8, 12, 1, seems to require the actual delivery "advocata vicinitate" for the 
 validity of gifts. Although Justinian made the covenant to give a binding 
 one, this innovation was only known in France after the twelfth century: 
 "MontpeUier," p. 74; Beaumanoir, 12, 39; 30, 38; 80, 9; "T. A. C, Bret.," 318, 
 319; Esmein, "Contrats," pp. 183, 189. 
 
 1 Ferriere, on "Paris," 273; Ricard, 879; Pothier, no. 77; "Ord." of 1731, 5. 
 
 2 Certain Customs always require real delivery (customs of seisin and of 
 public nams): "Reims," 231; "Laon," 53; "Sedan," 109; "Senlis," 212; 
 "Valois," 130, etc. 
 
 ' Ricard, 940; Pothier, no. 251; Ferriere, on "Paris," 275; Masuer, 24. 
 
 * Loysel, 746; Pothier, no. 67, Civil Code, 938. 
 
 s Beaumanoir, 12, 39 (irrevocability unless there be a clause to the contrary) : 
 Boutaric, I, 45; "Cout. Not.," 143; "Gr. Cout.," 2, 8. Confirmations: "L. 
 d. Dr.," no. 479, 982; Desmares, 248, 371. Cf. "Toulouse," 186 et seq.; "iMont- 
 peUier," 74; Tardif, "Dr. priv(5 au XIII° siecle," p. 70. 
 
 ^ This irrevocability did not go so far as to apply to accidental conditions 
 or those independent of the will of the donor in general (ingratitude, subse- 
 quent birth of children): Ricard, nos. 1038, 1046. Cf. the clause: "I give you 
 my house should I die before you." 
 
 ' Reservation by the donor of the right to dispose of something included 
 within the gift or of a fixed sum to be taken out of the possessions given 
 (charged with the carrying out of the last will of the donor). In such a case 
 as this there are two distinct gifts, — one being void and the other vahd (of. 
 
 707
 
 § 501] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 These reservations annulled the entire gift.^ It seems as though 
 it was because they rendered the gift not very sincere and ran 
 the risk of becoming a source of difficulties; if they did not 
 take the trouble of annulling the sale under these same circum- 
 stances, it is because scarcely any sales of this nature are ever 
 presented in practice.^ Our old authors justified the rule, "To 
 give and to witlihold is not valid," by another consideration;^ in 
 their opinion its principal usefulness consisted in preventing heed- 
 less gifts which w^ere prejudicial to families; in fact, by compelling 
 the donors entirely to deprive themselves, to strip themselves 
 of their means of livelihood and all power to revoke what they had 
 done, they were restrained by their ow^n interests; "He who gives 
 what is his before dying is getting ready soon to suffer greatly." 
 This reasoning is based on a very just remark, which is that it 
 costs little to strip one's heirs and a great deal to strip one- 
 self. But, if it was apparently right, as long as the donor was 
 obliged physically to dispossess himself of the property given, 
 it lost almost all of its force when this was no longer required. 
 We can say more exactly that it was the reason which was set 
 up for a long time against recognizing fictitious delivery in 
 matters of gifts. 
 
 § 502. Formalities. — 1st. Notarial deed. The Ordinance of 
 
 "L. d. Dr.," 479). Gifts of possessions to be acquired in the future were lawful 
 in countries of written law upon condition that the donor had reserved for 
 himself, in order that he might make a will, one-twentieth of his possessions: 
 Furgole, on "Ord." of 1731, 15. Id., in Italy; Fertile, IV, 586. Cf. post, "Con- 
 tractual Appointment." 
 
 1 Domat, ''Loixciv.," I, 10; "Ord." of 1731, 15; D'Aguesseau, "Lettres," in 
 "CEuvres," XII, 308; Pothier, no. 79; Civil Code, 943; Grenier, "Tr. des 
 Don.," 1812 (historical discussion). 
 
 2 Exceptions in the case where the gift would ordinarily be carried out: 
 mutual gift, gift by contract of marriage, etc. 
 
 3 The reservation only affected testamentary gifts; the legal share also 
 allowed of the reduction of gifts in the interest of the nearest relatives; those 
 who were not entitled to the legal share benefited by the obstacle which was 
 brought to bear upon gifts by the rule, "To give and to withhold is not valid." 
 It seems as though it would have been more simple to prohibit gifts; but the 
 rights of the family were not sufficiently strong to permit them to think that 
 they could go as far as that; the jurisconsults of the eighteenth centurj^ give 
 expression to this idea in a slightly different maimer by saying that no one 
 dared to interfere with a natural right like the freedom of giving. In the pre- 
 ceding centuries there had been no scruple as to the prohibition of alienation 
 (see intervention of the relatives, "Breispruchsrecht," etc.); even after these 
 rules had disappeared the spirit of the old law was not disarmed; the axiom, 
 "To give and to withhold," etc., was used to protect the interests of the 
 family, and from thence came the requirements pointed out in the texts 
 on the subject of delivery. Various explanations: Coquille,'" Ijist.," "Don."; 
 Ricard, no. 900; Ferriere, on "Paris," 273. Cf. criticisms by Desjardins, 
 op. cit. 
 
 708
 
 Topic 5] GIFTS "INTER VR^OS" AND "CAUSA MORTIS" [§ 502 
 
 1731, 1, by compelling the intervention of a notary, only sanctioned 
 an old Custom whose need was felt all the more as the irrevoca- 
 bility of gifts become better established.^ — 2d. Solemnity of the 
 acceptance. This is another requirement which simply bears 
 witness to the disfavor with which gifts were looked upon. The 
 Ordinance of 1731 here again limits itself to putting into a law 
 a practice which had already been accepted, a clause which was 
 customary in the proceedings of notaries.- — 3d. Entry upon the 
 public registers of the deed of gift.^ This formality was borrowed 
 from the Roman legislation ^ and introduced into our law by the 
 
 1 "Protest, du Pari, de Toulouse," "Questions," p. 57; Pothier, no. 130. De- 
 livery takes the place of the authenticated deed in the case of manual gifts 
 of movables. — Italy: gift before judges, the town council or a notary, Pertile, 
 IV, 58.5. 
 
 2 The acceptance should be formal and expressed. Cf. Roman texts: 
 Dig., 39, 5, 19, 2; "Dec. Cap. Tol.," 384; Pothier, no. 47. A separate deed? 
 C/. "Ord." of 1539, 132; Declaration of 1549; Reverdy, p. 227. 
 
 3 Quicherat, "B. Ch.," 1860, 440; Martel, "Enreg. dans les Gesta Munic," 
 1877; Renaud, "R. de Leg.," 1872, 233; Brunner, "R. G. d. Urkunde," p. 139. 
 Theses: Larnaude, 1876; G. Blondel, 1881; Lattes, 225. 
 
 ■" Entering, or copying upon public registers ("gesta municipaha," offices 
 of the clerks of the courts), of private deeds was in use at Rome with the object 
 of insuring the preservation of these deeds and of giving them more force 
 ("fides publica," to some extent official character). Under the Lower Empire 
 this formahty was made compulsory in the case of gifts "with the object of 
 furnishing proof and pubUcity." "Cod. Theod.," 3, 5, 1; 8, 12, 1, 3; "F. 
 Vat.," 249. As to Justinian's system, cf. Girard, p. 932; Pertile, IV, 584. 
 Similar formalities were prescribed in the case of wills after they had been 
 opened: "L. Rom. Vis.," Paul, 4, 6, 1; Girard, "Textes," 729. The entering 
 of gifts and wills was still practiced in Frankish Gaul at the beginning of the 
 ninth century (Roziere, 221; Will of Bertrann, Bishop of Mans, 612, in Par- 
 dessus, "Dipl.," no. 230; gift of Harwich d'Angers to the Abbey of Priim, 
 804, in Martene, "Ampl. Coll.," I, 54; Charters of Noirmoutiers, "N. R. H.," 
 1898, 763). Traces of it are still to be found in the tenth century: Thevenin, 
 "Textes," 186. This entering was left to the care of an agent, in whom there 
 has been an attempt to see the prototype of a testamentary executor: R. 
 Caillemer, op. cit., 19. But it had become optional, and it was abandoned 
 more and more: Marculfe, II, 3; "Brachyl.," II, 13, 11; Renaud, op. cit. During 
 the early part of the feudal period it was mentioned in the countries of written 
 law, but with the meaning of a drawing up by a notary. Cf. deeds of 1172, 
 1211, etc., in D. Vaissette, VIII, c. 293. Hesitation in J. Faher, "Inst.," fo. 
 40, ed. 1582. In the fourteenth and fifteenth centuries it was re-introduced 
 into the practice of the South: Gui Pape, "Q.," 325, 3.50, etc.; "Dec. Cap. 
 Tolos.," 382. In the countries of Customs only the registration of alienations 
 arising from the custom of public mortgages was known. In certain com- 
 munes, — for example, Amiens, — contracts were registered. The "Ord." of 
 1539 prescribed the entering and registration, — that is to say, that gifts 
 "inter vivos" should be coi)ied in the offices of the clerks of the royal justices 
 of the place. Cf. the formula in Viollet, 905. The same with gifts "causa 
 mortis"; "Ord." of 1731, 3. Details in Ferribre, "So. des Notaires," 17, 4, 5; 
 Pothier, no. 86; Argou, II, 11; Serrcs, "Inst.," II, 7; Isambert, see Table. 
 Wills had to be entered, but not under penalty of annulment: Edict of lay en- 
 tering of 1703: Pothier, " Don. tost.," no. 15. As to the inspection or registration 
 of notarial deeds and deeds under private seal, and, consequently, of gifts and 
 wills, cf. the Edict of 1581, which established it for the time being, and then 
 
 709
 
 § 502] INTESTATE SUCCESSION, GILiTUITOUS CON\^EYANCES [Chap. IV 
 
 Ordinance of Villers-Cotterets, 1539, Art. 132, not only in the 
 fiscal interest, but so as to bring to the knowledge of the public 
 the transfer of ownership. This became necessary from the time 
 when the surrender of possession by means of vesting and divest- 
 ing ceased to be made use of, and when people were contented 
 with fictitious delivery, — that is to say, with a secret transfer 
 of ownership. The right to invoke the lack of registry in order 
 to have the transfer regarded as invalid, was only refused to the 
 donor himself; all other interested parties possessed this right: 
 heirs of the donor, his legatees, his creditors, even by simple 
 contract, later donees, or other grantees who had given a 
 consideration.^ 
 
 § 503. Incapacity to give and to receive.^ — The system of in- 
 capacities,^ which was another check upon the freedom of giving, 
 had the effect of preventing a great number of gifts,^ because it 
 affected the very persons for whom gifts were preferably meant, 
 — for example, communities and religious establishments, illegiti- 
 mate children,^ spouses, or concubines. 
 
 § 504. Gifts between Spouses.^ — In Rome gifts between 
 spouses, which were incompatible with the system of the "manus," 
 were prohibited, even when this system was abandoned, in order 
 to avoid the abuses of influence on the part of one of the spouses 
 ("ne mutuo amore invicem spoliarentur"). In the end, however, 
 it was admitted that they would be valid if the spouse who gave 
 predeceased the other one without revoking the gift, just as tes- 
 tamentary gifts or gifts "causa mortis" would have been.^ The 
 countries of written law adhered to these principles,^ — In the 
 
 the Edict of March, 1693, etc., Ferrihre, "Sc. des Notaires," 17, 2; Isamhert, 
 see Table. The Revolution substituted copying for entering (Law of the 
 11th Brum., year VII) and registration for inspection (Law of Dec. 5-19, 1790; 
 Law of the 22d Frim., year VII): "Code Civil interm.," see "Insin., Transcr., 
 Enreg." — "Comment, s. le Tarif du Controle," 1766; Perrin, "Th.," 1901. 
 
 1 "Ord." of February, 1566, 58; 1731, 27; Civil Code, 941; Pothier, no. 116. 
 
 2 Pothier, VIII, 348; Ferribre, see "Incap. de succ6der," etc. 
 
 ^ Very old custom according to which gifts are only possible when made by 
 a person in good health ("sanus et sana mente"): "Schwabensp.," 52; Huber, 
 IV, 610. Cf. "Paris," 277; Stobbe, V, 185. 
 
 * "Cout. Not.," 143; "Paris," 272 (25 years); B. de Richebourg, III, 83. 
 Monies, minors, persons under a disabiUty, married women, and foreigners. 
 Relative disabilities: guardians, judges, teachers, confessors, doctors, etc. 
 "Paris," 276; Beaumanoir, 54, 5; "Const. Chat.," 81 (in fraud of creditors). 
 
 6 "A. C. Anjou," ed. B.-B., II, 461 ; " L. d. Dr.," 770; "Summa Norm.," 35, 2. 
 
 8 Gifts between concubines: Loysel, 127; Pothier, "Tr. des Donations 
 entre Mari et Femme," n. 7, ed. B.; Fertile, § 111; Schroeder, p. 728; Glasson, 
 VII, 532; Laboulaye, Gide, etc. 
 
 ' Girard, p. 934; Esmein, "Melanges," p. 49; "Petrus," I, 36. 
 
 8 "Dec. Cap. Tol.," 262; Serres, II, 7; "Siete Part.," 4, 11, 4. Cf. "Mont- 
 
 710
 
 Topic 5] GIFTS "INTER VIVOS" AND "CAUSA MORTIS" [§ 504 
 
 countries of Customs more strictness was shown.^ The marital 
 "mundium" sometimes, as in England, went so far as to absorb 
 the personality of the wife in that of the husband, which made 
 gifts between spouses impossible. Elsewhere the old system 
 placed the woman in a strict dependence with regard to her hus- 
 band.^ Also, the Custom used its authority to fix the pecuniary 
 relations between spouses, especially in giving them the portion 
 of the survivor and a share in the privileges, so as not to affect 
 the principle of the preservation of property in the family. At- 
 tempted deviations from this were deemed to be due to unwise 
 impulse or an abuse of authority. Hence the rule for the nullity 
 of gifts between spouses, whether they were direct or indirect, 
 disguised or made by means of persons interposed.^ Contracts 
 based upon a consideration were also held to be included in the 
 proscription: "Nullum contractum etiam reciprocum facere pos- 
 sunt nisi ex necessitate," says Dumoulin; it was feared that gifts 
 might be hidden under cover of these acts.^ Even testamentary 
 gifts came to be treated in the same way as ordinary gifts. 
 The Civil Code (Art. 1096), drawing its inspiration rather from 
 the Roman system, allows of gifts between spouses, but declares 
 that they are revocable. Already the Revolutionary laws of the 
 5th Brumaire, year II, Art. 2, and of the 17th Nivose, year II, 
 Art. 2, had broken with tradition by authorizing without reserva- 
 tion gifts between spouses by way of donations or legacies (unless 
 
 pellier," 54; "Bergerac," 129; "Poitou," 219; "Angouleme, Gu^nois," XIII, 
 52; Baissonade, 289. 
 
 1 From what date? Barbarian period. A restrictive tendency in "Liut.," 
 102: prohibition of gifts made by the husband to the wife for whom the ante- 
 nuptial gifts (marriage portion and "Morgengabe") should suffice. Other 
 laws are more liberal : "Rib.," 48, 49; "Bai.," 9, 14; "Wis.," 5, 2, 4, 5; Pardessus, 
 "L. Sal.," 678. — Feudal period: P. de Fontaines, 33, 14; Beaumanoir, 12, 4, 
 allowing of legacies from one spouse to another. According to the "Ass. de 
 Jer.," " C. des B.," 173, the husband can only make a gift to his wife at liis 
 death or in his will. The "Et. de St. Louis," 1, 118, did not allow the wife 
 to make a gift to her husband excepting at her death. The tendency which 
 prevailed resulted in the prohibition of every gift between spouses with the 
 exception of the mutual gift: "Gr. Gout.," II, 32; Desmares, 235; Boutaric, 
 1, 99; "L. d. Droiz," I, 183. 
 
 2 Strictly speaking, gifts of the husband to the wife should have been in- 
 cluded. The "Gout, de Norm.," 410, even prohibited the mutual gift, but not 
 the will, 422, 429. Cf. "Summa," 100; "Saclisensp.," 31, 2 (the gift by the 
 wife to the husband is not even thought of). However, Struve, "Inst.," II, 
 10, states that in liis time gifts between spouses were lawful (legal registration; 
 cf. mutual gift); Lehr, "Dr. Angl.," p. Ill (courts of equity). 
 
 3 "Gout. Not.," 58; Desmares, 232; "Et. de St. Louis," I, 118; "A. G., 
 Anjou," ed. B.-B., see Table; "Paris," 282; "Orl6ans," 280; Loysel, 127; 
 "Gonf. des Gout, de Gu«5nois," 648. 
 
 ^ P. de Fontaines, p. 113; Dumoulin, on "Paris," 156, no. 5. 
 
 711
 
 § 504] INTESTATE SUCCESSION, GRATUITOUS CON\'EYANCES [Chaf. IV 
 
 in excess of the usufruct of half of the property when there were 
 children.^ 
 
 § 505. Mutual Gifts. — In use from the Prankish period, under 
 the name of "interdonatio," ^ the reciprocal donation between 
 spouses did not cease to be made use of throughout our old law. 
 It had its reason for existence in a system without community 
 ownership and without a portion for the survivor or well-regulated 
 rights of succession. When the community and dower come into 
 existence it loses its usefulness; it is tolerated rather than en- 
 coiu-aged, as is proved by the restrictions brought to bear upon 
 its validity. In his "Institutes," Loysel, 128, thus summarizes 
 the rules: "A husband and wife who have no children can mutu- 
 ally give to one another, provided, say some of the Customs, they 
 are alert or equal in health, age and belongings." ^ It is this con- 
 cern for equality which was the salvation of the mutual gift. It 
 already began to make its appearance in the Prankish formulae, 
 for, if one of the spouses gave the entire inheritance to the other, 
 the latter gave the same in return; but equality in health, age and 
 fortune was not a necessary requisite for the gift to be valid. This 
 gift might be general or special, of ownership or of enjoyment. At 
 the same time, the existence of children, which at first did not pre- 
 vent the spouses from making donations to one another,^ was al- 
 ways an obstacle to the giving of ownership. Even if there were 
 no children, the mere giving of the use for life was generally pre- 
 ferred. Prom the fourteenth century there was a tendency to 
 have the mutual gift affect only movables and property acquired 
 jointly. In the sixteenth century the Customs of Paris no 
 longer allowed anything more than gifts of the usufruct of that 
 portion of the community property which would come back to 
 each spouse.^ In the earliest times the mutual gift could not be 
 
 1 Gifts are no longer revocable nor void: Vermeil, "Code des Succ," cited 
 by Troplong, "Don.," no. 2648; Boissonade, p. 323; Sagnac, p. 298. 
 
 2 Roziere, "Form.," 245 et seq.; Thevenin, "Textes," 40, 82, 132. Cf. 
 Gift "post obitum"; "Adfatimus" of the "L. Rib.," 49; Brunner, "Z. S. S., 
 G. A.," 1885, 79; Stohhe, V, 193. 
 
 3 "Gout. Not.," 58; "Gr. Gout.," II, 32; "Paris A. G.," 155; "N. G.," 280: 
 "Anjou," 328, etc. 
 
 * "Paris," 281. Mutual gifts in the marriage contract of children: Bois- 
 sonade, 259. 
 
 * Rozihre, op. and loc. cit.; "Gout. Not.," 58 (for Hfe or for him and his 
 heirs); "Gr. Gout.," p. 321 (all possessions); Desmares, 235 (movables and 
 jointly acquired property); "Paris," 280; "Prevot de la J.," II, 233; Law of 
 17 Niy., year II, 13 (reduction to usufruct of half of the possessions if there 
 are children). The person receiving a mutual gift, and who received a portion 
 of the community, was held for the corresponding debts, but only for the in- 
 
 712
 
 Topics] GIFTS "INTER VIVOS" AND "CAUSA MORTIS" [§ 500 
 
 made without delivery; ^ the spouses invested one another, put 
 one another in possession of the property which they possessed 
 themselves; ^ also, the survivor did not have to ask their de- 
 livery from the heirs of the predeceased spouse and the gift was 
 absolutely irrevocable.^ In the final state of the law this is no 
 longer so: "The mutual gift does not confer seisin"; ^ from 
 whence it follows that the heirs have to make delivery, and the 
 irrevocability, while it subsists on principle, becomes weakened. 
 Both spouses acting together can revoke the mutual gift; ^ it is 
 simply forbidden one of them acting alone to annul the donation 
 which has been made.^ The condition of survivorship assimilated 
 the mutual gift to gifts "causa mortis." Moreover, almost as 
 much exaction was shown in relation to its forms as though it had 
 been a matter of a gift "inter vivos." ^ 
 
 § 506. Revocation of Gifts. — (I) Reversion of the inheritance. — 
 (II) Ingraiiiude of the donee.^ Borrowed from the relations which 
 existed between a patron and a freedman, the revocation for 
 ingratitude had become generalized under the Lower Empire and 
 was applied to gifts between persons of any kind.^ It passed 
 
 terest on them, because he was merely a usufructuary. To the spouse who has 
 been given a mutual gift is appUed an old rule, cited in Chap. Ill, Topic 8, 
 § 417. 
 
 1 Transfer "per cartam," c/. Frankish formulae and deeds: Demuth, 25 et 
 seq. 
 
 2 Cf. Gift between husband and wife or mutual gift {Boutaric, I, 99, 
 and p. 885, ed. 1603; see Guyot, Ragueau; Fasquel, "These," 1902): (a) By 
 ■writing: this assumed the performance of the formalities ; it conferred upon the 
 survivor the usufruct of plebeian tenures and the ovioiership of the mo\'ables 
 left by the predeceased with the charge of giving up a portion to the children 
 should he remarry ("pargon," "fourmorture," see Guyot; Britz, 769; cf. also 
 devolution, ih.; variations in the Customs of Arras, Lille, etc.). (fe) By the 
 blood or operation of law, when there had been children born of the marriage. 
 Cf. Customs according to which the community only comes into existence at 
 that time: Tailliar, "Rec. d'Actes du XIP, XIIP s.," p. CCCI; Brunner, 
 "Z. S. S.," 1895; "G. A.," 63. — Ceremony of the kiss in public: "Tour.," 13, 
 etc. — C/. "Roisin," 84. 
 
 ' Roziere, loc. cit. Cf. "post obitum" gift. See, however, Thevenin, 82 
 (divorce). 
 
 4 Loysel, 129; "Paris," 284; contra: "Bourbon," 277; "Blois," 163; "Du- 
 nois," 68. 
 
 5 Court practice understood the irrevocability decreed by the Law of the 
 18th Niv., year II, in this sense. As to the Revolutionary law, cf. Fasquel, 
 129; Civil Code, 1097. 
 
 8 Contra, the conjunctive will. Here at least the indirect revocation by 
 means of alienation for a consideration is possible. 
 
 ' "Ord." of 1231, 30, 46. Notarial deed, registration, but no expressed ac- 
 ceptance. Can the mutual gift be made Dy means of two separate deeds? 
 The jurisconsults are divided. 
 
 * Failure to carry out the charges: Pothier, no. 187; Reverdy, "Thtise," 
 p. 349. 
 
 » "Cod. Just.," 8, 56, 9 and 10; Girard, p. 922. 
 
 713
 
 § 50G] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Cuap. IV 
 
 into the old French law, at first on condition of royal letters, and 
 later without this condition. As it was a penalty, it only affected 
 the guilty donee, and not the third party who had negotiated with 
 him, and who had not participated in his fault.^ — (III) Unex- 
 pected birth of children. Another trace of the Roman rules relating 
 to gifts from a patron to a freedman ("lex si unquam").^ The 
 revocation because of the unexpected birth of children was looked 
 upon by wSt. Augustine as being in conformity with the Christian 
 ideas.^ It had no difficulty in maintaining itself in the countries 
 of written law. As it was in harmony with the Germanic concep- 
 tion of the gift ^ and with the interest of the family, the countries 
 of Customs also adopted it. Our old authors justified it by rather 
 weak reasons: The donor would not have made the gift, "si cogi- 
 tasset de liberis"; he did not know '"that affection which nature 
 puts in the breast of fathers." These aphorisms did not tally very 
 well with facts, because the donor might have had children and 
 have plainly foreseen that he would have others. In reality, the 
 unexpected birth of children was an implied condition subse- 
 quent which had been changed into the form of an obligatory 
 rule in the interest of the family. Since that time the commenta- 
 tors have been fighting over the matter of revocations (onerous 
 gifts, mutual gifts, gifts in favor of marriage) and over the effects 
 of the former ("ipso jiu-e" or by judgment, "ex nunc" or "ex 
 tunc").^ The controversy was sharp, especially with regard to 
 gifts by contract of marriage; a celebrated decision of 1551 deter- 
 mined that they should be revocable of absolute right.^ 
 
 1 "L. d. Dr.," 135, 197, etc.; Boutaric, I, 45; Pothier, no. 180; Civil Code, 
 955. 
 
 2 "Cod. Just.," 8, 56, "de revoc. don.," 8 (in 355); cf. "F. Vat.," 272. 
 
 3 "Dec. Grat.," 2, 17, 3, 43. 
 
 4 Edict of Rotharis, 111; Stohhe, V, 177; Heusler, "Gewere," 475. 
 
 ^ One may judge as to how uncertain this doctrine was by the verbal com- 
 mentary upon the "Lex si unquam" in which Tiraqueau loses himself amid 
 the difficulties of the subject. 
 
 s This Order of the Parliament of Paris, April 12, 1551, was handed down 
 in a case in which Dumoulin was a party. Wishing to devote himself entirely 
 to the study of law, he had made a gift of all his possessions to his brother. 
 Ferry Dumoulin (October, 1531); but in 1538 he married Louise de Beldon, 
 and, having had a child by her, he petitioned for a rescission of the gift by ob- 
 taining letters from the Chancery. The Parliament decided in his favor. It 
 was thenceforth held that gifts made in a marriage contract by a person who 
 was not bound to furnish a marriage portion should be revoked of absolute 
 right (although, following the example of Dumoulin, people often obtained 
 letters of resci-ssion). The revocation took place "ex tunc": but Dumoulin 
 consented that the property which had been restored to him should be en- 
 cumbered secondarily with a mortgage guaranteeing the dower of his nephews; 
 this kindly concession on his part gave rise to misunderstandings and disagree- 
 
 714
 
 Topic 5] GIFTS "INTER VIVOS" AND "CAUSA MORTIS" [§507 
 
 § 507. The Gift "causa mortis," which was to be distinguished 
 from the old "post obitum" gift, after the twelfth century re- 
 covered the same characteristics that it had had in the Roman 
 law. Although a true contract like the gift "inter vivos," and al- 
 though it assumed as its consequence acceptance on the part of 
 the donee, it was none the less revocable in imitation of the will, 
 (a) by the predecease of the donee; (b) at the will of the donor. 
 Thenceforth it did not mean the immediate dispossessing of 
 the donor, but only a dispossessing which was to take place 
 at his death.^ Only five witnesses were required for its execution 
 (instead of the seven w^hich were necessary to the validity of 
 the will), which resulted in its being treated rather like a codi- 
 cil. It was only made use of in countries of written law and 
 for the benefit of sons of the family who did not have capacity to 
 make wills.^ In the countries of Customs it had become confused 
 with the will.^ The Ordinance of 1731, Art. 3, being based upon 
 this practice, decided that in the future gifts "causa mortis" 
 would only be valid if they were clothed with the same forms as 
 the will, which was perhaps not to forbid them,'* but which 
 was most certainly to take aw^ay all their usefulness.^ Civil 
 Code, 893. 
 
 ments to which the " Ord. " of 1731 sought to put an end in its Art. 39. Cf. the 
 Civil Code, 930; Coquille, on " Niv.," "Don.," 13; Papon, "Arr.," 2, 1, 20; Pas- 
 quier, "Inst."; Dumoulin, "De Don. in Contr. matr.," "Opera," III, 513, ed. 
 16S1; Brodeau, "Vie de Dumoulin," p. 60; Aubepin, "Infl. de Dumoulin" 
 ("R. crit.," 1855), detailed bibl. — As to countries of written law, cf. Furgole, 
 "Don.," 11, 10; Maynard, VI, 60, 8; Reverdy, 357. 
 
 1 The Edict of February, 1549, does not make it necessary to register them: 
 Gui Pape, 325, 610. 
 
 2 "Dec. Cap. Tol.," 454; Serres, "Inst.," II, 12 and 7. According to the 
 "Ord." of 1731, the clause of gift "causa mortis" validated the will of the son 
 of the family. 
 
 3 "L. d. Dr.," 116; Boutaric, I, 45; Laurihre, on Loysel, 667; Order of 1639; 
 Ricard, "Don.," II, 37; "Paris," 292; according to Art. 277, gifts made while 
 "in extremis" were only looked upon as being of the same validity as gifts 
 "causa mortis"; the "Ord." of February, 1731, Art. 4, even refused to give 
 them tliis effect. 
 
 4 Merlin, "R6p.," see "Don. k Cause de Mort"; Masuer, 24, 23. 
 
 ^ Cf. gift of property to be acquired in the future, gifts between spouses: 
 See " Code Civ. interm." 
 
 715
 
 § 508] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 Topic 6. Covenants Relating to Inheritance 
 
 508. Covenants upon Future Suc- 
 
 cession. 
 
 509. Renunciationa of a Future 
 
 Inheritan'>'>. 
 
 510. Appointment by Contract. 
 
 §511. The Abdication of Possessions. 
 § 512. Partition by Ascendants. 
 § 513. Substitutions in Trust (En- 
 tails). 
 
 § 508. Covenants upon Future Succession/ which were for- 
 bidden at Rome as being immoral, because, it was said, they might 
 arouse criminal hopes and contain a "votum mortis," ^ were, on 
 the other hand, frequent in our feudal and monarchic society. 
 They were derived from the old usage of disposing of one's in- 
 heritance by contract. But we have seen that a reaction against 
 this practice had taken place in the Roman spirit, resulting in the 
 dividing of gifts into two groups, — wills, and gifts "inter vivos." 
 One of the results of this reaction was to isolate covenants re- 
 lating to inheritance and to restrict them to marriage contracts, 
 where the feudal and family spirit made use of them until the very 
 end, in order to resist the modern tendencies; in that field they 
 have been preserved even to our day in the interest of marriage. 
 In these covenants, of which the principal ones are the renunciation 
 of a future inheritance, stipulations relating to personal belongings 
 in the inheritance,^ and appointments by contract, we will include 
 abdication of possessions and entails, although these latter did not 
 necessarily play a part in contracts of marriage. 
 
 § 509. Renunciations of a Future Inheritance,^ which were 
 proscribed by the Revolutionary laws,^ contributed in our old 
 
 1 Pothier, II, 62; ed. B.; Dumoxilin, "Cons.," 15, 2, 3. Gradual appearance 
 under the Lower Empire: "Cod. Just.," 2, 3, 30 (the consent of the deceased 
 validates the contract already entered into between his heir and a third party 
 and relating to his succession). 
 
 2 P. de Fontaines, 15, 7; Masuer, 28, 9; G. Coquille, on "Niv.," 27, 12; 
 Favre, "De Err. pragm.," 38, 6, 6; " Ord." of 1731, 13. — C/. "Dec. Cap. Tol.," 
 453. 
 
 ' It is stipulated that certain possessions which should have been owned in 
 common shall belong to one or the other of the spouses and his or her heirs 
 (fictitious personal belongings) : see Ferriere. 
 
 * "N. R. H.," 1888, 348, 320; Lebrun, "Succ," 3, 8, 1; Pothier, "Sue," 
 VIII, 30, ed. B.; Gide, "Cond. des Femmes," 394; Huber, IV, 666; Stobhe, V, 
 296, 315, n. 24 (bibl.). On the German law of princes, of. especially Schulze, 
 "Erb. und Familienr.," 1871; Heffter, "Sonderr. d. Hauser Deutschl.," 1871; 
 Pappermann, "De Ordine quo Femirue," etc., 1868. 
 
 5 Law of the 5th Brum., year II, Art. 14; Law of the 17th Niv., year 11^ 
 Art. 11. The Civil Code has maintained this prohibition in Art. 791. Out- 
 
 716
 
 Topic 6] COVENANTS RELATING TO INHERITANCE [§ 509 
 
 society, like the right of primogeniture and entails, to the pres- 
 ervation of the inheritance of old families; in fact, they only 
 took place ordinarily for the benefit of the eldest son.^ In 
 days when emancipation and marriage ceased to be of themselves 
 causes of exclusion from a succession, the spirit of the family 
 still had enough strength to obtain from younger sons or daugh- 
 ters renunciations to the rights which they had just acquired, and 
 which were contrary to the old Custom.^ Outside of contracts of 
 marriage and contracts made by other heirs, they were rare, 
 or even forbidden.^ They were made in the form of unilateral 
 declarations in the presence of the assembled relatives; ^ the cus- 
 tom of fortifying them by means of an oath contributed not a 
 little towards having them upheld as being valid, in spite of 
 the Roman rules."'' The consequence of this renunciation varied; 
 it was made subordinate to the payment of a marriage portion 
 or a promised grant to a younger branch; it was void in the 
 case of the predecease of the relative or the line for the benefit 
 of which it had taken place,^ or, again, if the person renouncing 
 
 side of reasons of a political nature which have been responsible for their con- 
 demnation we can say that they are very dangerous; it is very seldom that 
 they are made freely and with full knowledge. 
 
 1 Sometimes for the benefit of brothers or agnates. They affected the 
 succession of the father or the mother, sometimes also that of the brothers. 
 They were generally contained in the marriage contract of the party making 
 the renunciation, but if he were of age they also formed a part of the marriage 
 contract of the eldest son or of the brothers and sisters. 
 
 2 Stobbe, V, 97; Bereng. Fernand, "Op.," 527 ; Boucheul, p. 336; Arf/ow, III, 17. 
 ' Contra, German law. With the consent of the deceased the heir may 
 
 grant his hereditary rights to a third party: Pothier, III, 206 (sale of rights of 
 succession). Cf. "Schwabensp.," 35; Stobbe, V, 296 (renunciation at law with 
 certain symbols); "Sachsensp.," I, 13; Huber, IV, 664, 667. 
 
 The Covenant "de Hereditate tertii viventis " is a contract between the 
 heir and a grantee carrying with it for the heir the obligation to transfer his 
 rjghts of succession at the death of his ancestor; thus he must accept this 
 succession; however, if the grantee is an heir of subsequent degree, the heir 
 granting to him can renounce the succession so that the grantee may benefit 
 by the renunciation. The daughter who has a marriage portion and who re- 
 nounces the succession of her relatives can neither accept nor renounce after 
 they are dead; the succession does not open for her benefit. CJ., however, 
 practical difficulties in Boucheul, loc. cit. 
 
 * Without the beneficiary's having to accept (any more than at the time 
 when daughters, younger children, or the emancipated children were excluded 
 from the succession). The German practice, which generalized renunciations 
 of succession, made of them a contract between the deceased and the heir 
 presumptive. Whether it be a contract or a declaration, it is effective as 
 against third parties. 
 
 5 Sexte, 1, 18, 2. Practical difficulties: Stobbe, V, 307. 
 
 * Controversy between the "Erbtochter," descendant of the last male 
 agnate, and the heirs of the man making the renunciation (" Regredienter- 
 ben") : Stobbe, ibid. CJ. the clause, "Bis auf ledigen Anfall." Boucheul, p. 353: 
 renunciation with a reservation of the royal escheat (the sister succeeds to 
 
 717
 
 § 509] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 was recalled to the succession by the deceased.^ Did the renun- 
 ciation bind the descendants and the heirs of the person renoun- 
 cing? This point was disputed," but the daughter who had a 
 marriage portion and who renounced did it ordinarily as affect- 
 ing herself and her descendants; it was implied if no express 
 declaration were made.^ 
 
 § 510. Appointment by Contract, or appointment of an heir by 
 contract, conflicts at one and the same time with the Customary 
 rule, "The appointment of an heir is not valid," and with the 
 principles of the written law according to which the appoint- 
 ment of an heir can only be contained in a will, that is to say, in a 
 deed which is revocable.* The "adfatimus" was scarcely any- 
 thing else in the law of the Ripuarians,^ and the formulae desig- 
 nated a recall to succession by that name.^ During the feudal 
 
 her brother in the interest which she has renounced in the inheritance of 
 her father should he die without children, and she also receives a collateral 
 succession in which the paternal inheritance plays a part). 
 
 1 The Recalling to Succession, which could be carried out by will or by 
 contract, could always be revoked unless it had been made in a marriage con- 
 tract (cf. appointment by contract). This does not assume the consent of the 
 eldest son or of the brothers who have an interest. Its effect is to restore to the 
 person renouncing, his rights of succession upon intestacy; however, there 
 were many who were only willing to consider this as a legacy: Loysel, 310, 341. 
 
 2 Cf. the Romanists, Balde, Bartole, cited by Goden, "Consil.," no. 97. 
 
 ^ Cf. the Sahc Law, t. I. In the same way appointment by contract, which 
 is the counterpart of a renunciation to future inheritance, benefits the appointee 
 and his unborn children. 
 
 4 Texts: Lauriere, I, 24, etc. (in 1044); D. Vaissette, VIII, 385 (in 1185); 
 "Anjou," ed. B.-B., 62; Masuer, 32, 6; "Bourb.," 219; "Niv.," 27, 12; 
 "Poitou," 216; "Auvergne," 15; "Marche," 248, etc.; Loysel, 308 et seq.; 
 Lamoignon, 39, 2; Guyot, "Sect.," 1; "Ord." of 1560, 59; of Feb., 1566, 57; 
 of 1731, 17; of 1747, 12, 14; Auffroy, 402; "Berry," 8, 5. 
 
 s Uncertainties as to the origin and the date of the appointment by con- 
 tract: Beseler, II, 174; Stobbe, V, 190. Cf. the old opinions: 1st. Roman origin. 
 The "Novella," 19, of Leo the Philosopher (which was onlv known in France 
 through the translation of Agylseus in 1560). Cf. "Cod. Th^od.," 11, 24, 2; 
 "Cod. Just.," 2, 3, 15, 19, 30; Dig., 39, 5, 29, 2; 45, 1, 61. — L. 19, "Cod. 
 Just.," "de pactis" (military will, and thus a privileged one). Basnage, 
 Lauriere, Merlin. — 2d. Feudal origin. "L. Feud.," II, 29 (morganatic mar- 
 riage); Lebrun, "Succ," 3, 2, 3, etc. Cf. Montesquieu, "Espr. des Lois," 31, 
 34 (at first only nobles); Laboulaye, "Cond. des Femmes," p. 391. — Decius, 
 "Cons.," 225: "Sub tali pacto nobiles inveniunt nobiliores per quos nobil- 
 itas crescit"; Baluze, "Hist, de la Maison d'Auv." (Act of 1425); Automne, 
 "Conf., s. 1. 15 'C. de pactis.' " — 3d. Germanic origin. Cf. the text. — Under 
 its final form the appointment by contract dates from the feudal and custom- 
 ary period; but the law of that period especially made use of the Germanic 
 precedents. 
 
 6 "Aoste," III, 20; Fertile, IV, 10. Let us liken mutual gifts between 
 spouses to them: Huber, IV, ^QZ; Stobbe, I, 192; the " Erbverbrliderungen " of 
 the higher German nobility (an alliance between two families; if one dies out 
 the other succeeds to it), ib., V, 194, 277 et seq. As to the " Einkindschaft," 
 cf. Stobbe, II, 247; Heusler, I, 234; Ferrihre, see "Rappel" (bibl.); Boucheul, 
 p. 271. 
 
 718
 
 Topic 6] COVENANTS RELATING TO INHERITANCE [§ 510 
 
 period there appeared clauses which were related to the right 
 of primogeniture: "Declaration to proclaim an eldest son and 
 principal heir," ^ "promise of equality."^ It was especially for 
 the benefit of noble families, and to assure what was due to a 
 fief, that the appointment by contract was brought about.^ Dur- 
 ing the decadence of the nobility it was justified less because of 
 its feudal aspect than because of its matrimonial aspect; it seemed 
 to be a happy reconciliation of two contrary interests, that of the 
 grantor who did not expect actually to deprive himself, and that 
 of the beneficiary for whom, in order that he might found a new 
 family, the frail hopes which the will holds out vrere not sufficient. 
 The Revolution forbade this appointment because of its aristo- 
 cratic and feudal character.^ Even though the Civil Code re- 
 established it. Art. 1082, it did not dare call it by its former name; 
 the former appointment by contract has lost this suspicious desig- 
 nation and is called a gift of future possessions. 
 
 In the very old law the appointment by contract was effected 
 by means of delivery.^ Also, it was irrevocable, and at the 
 death of the person making the appointment the donee found 
 himself in possession of the latter's property without having the 
 power of renouncing it, because he had accepted it beforehand. 
 The burden of debts did not pass to him unless there was an ex- 
 press clause to this effect (cf. testamentary executors).^ According 
 
 1 Lauribre, I, no. 30; V, 111; Ricard, 1064; Argou, III, 10. 
 
 2 There are certain differences between the appointment of an heir prop- 
 erly so called and its variations: (a) recalling to succession, see note 1, p. 718; (b) 
 a declaration of the eldest son which guarantees him his hereditary portion of 
 the present possessions (and not merely liis legal share) : this does not prevent 
 the property from being disposed of for a consideration: Loysel, 309; (c) 
 promise of equahty, — that is to say, not to favor any of his children to the 
 detriment of the others, which, however, allows of gifts for the benefit of 
 strangers: "Nov.," 19, of Leo; Lebrun, 3, 2, 12; Coquille, on "Niv.," 12; 
 Ferriere, on "Paris," 318; Boucheul, 5, no. 28. 
 
 ' Cf. appointment of an heir charged with taking the name and bearing the 
 arms of the grantor. Letters of the king are necessary in order to change 
 one's name, but not to join one's name to that of the grantor. 
 
 * Law of March 7, 1793; 5th Brum., year II; 17th Niv., year II; 22d Vent., 
 year II; re-enacted on the 18th Pluv., year V; 4th Germ., year VII; "Code 
 civil interm.," see Table; Aron, "N. R. H.," 1901, 448 et seq. Cf. Prussian 
 Code, 1, 12, § 617. 
 
 6 Dronke, "Cod. Fuld.," 115-119; c/. 104; "Schwabenspiegel," 22; Dig. X, 
 2, 13, 9; Heusler, II, 637; Fertile, IV, 8; Stobbe, V, 178 ("Salmann"), 180, 181, 
 189 ("Auflassung," intervention of the public authorities). 
 
 * Cf. transmission of hereditary debts. If it was difficult to admit that 
 "universal" successors were held for the debts of their ancestors, it was all the 
 more difficult to admit it for successors by some special right, such as donees. 
 At the most, the latter could only be required to pay present debts (existing 
 at the time of the gift) if they were bound to do so by a clause in the deed, 
 either expressed or implied (that is to say, resulting from the general character 
 
 719
 
 § 510] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 to the final theory, which was rather unsettled on certain points, 
 the appointment by contract is defined as "an irrevocable gift 
 of succession," ^ and it is made by means of a clause in 
 the contract of marriage,^ for the benefit of the spouses alone, 
 or of one of them,^ and of the children who may be born of the 
 marriage.'* 
 
 of the gift). The man appointed by contract seems to have had from the very 
 outset, from the point of view of debts, the same position as the heir at law. 
 Cy. the Lombard "tliinx." After that he finally came to be considered as 
 being held "ultra vires." Cf. Loyseau, " Deguerpiss.," I, 11; Ricard, no. 
 1522; Duplessis, "Don.," s. 6; Lebrun, "Succ," 3, 2, 41; Lauriere, I, 244; 
 Pothier, "Succ," 5, 2, 3; Ferriere, on "Paris," 334; Stobbe, V, 184. Moreover, 
 neither the gift of present possessions nor the gift of future possessions had 
 the effect of releasing the donor; he remained open to the prosecution of 
 his creditors and could be subjected to personal arrest. — Cf. as to the 
 modern German theory of transfer of debts, Delbriick, "Uebern. fremd. 
 Schuld.," 1853; Saleilles, "Th. de I'Oblig.," 1890; Gnudemet, "These," 1898. 
 
 1 Wholly or partly, but by "universal" right. "Post obitum" gifts also fre- 
 quently had this characteristic; they affected a domain or a village with its 
 farmers, its rights of enjoyment, and its chapel, or all the possessions present 
 and future. Cf., however, Beseler, I, 161, 175; Loersch and Schr., "Urk.," 
 no. 63 (57); Hubner, "Don. post obit." The German law contrasts the "Erb- 
 vertrag" (appointment of an heir) with the "Vermachtnissvertrag" (appoint- 
 ment of a legatee) : Huber, op. cit.; Stobbe, V, 298. 
 
 2 Formerly it was possible outside of a marriage contract, — for example, 
 "Auvergne," 15, 1, in the charter of an association, Benedicti, "in cap. Rayn.," 
 see "Duas hab.," 200. Thus is to be accounted for the power of bringing in 
 a third party — for example, a brother of the appointee — to share in the 
 advantages arising from the appointment: Stobbe, V, 277. (The German law 
 also admits of them outside of contracts of marriage.) Cf. P. de Fontaines, 
 15, 7; Masuer, 32, 13; 28, 9; Bugnyon, "De leg. abr.," I, 226. 
 
 ^ Not only the father and mother (or one of them) could appoint their 
 children when they married them, but collaterals and third parties could also 
 do it. Gifts made by contract of marriage by one of the future spouses to the 
 other, whether mutual or not, affecting a few possessions or all, or a portion 
 of their present and future inheritance, are valid (because there is no suspicion 
 of compulsion or of undue influence), must be registered (just like mutual 
 gifts between spouses made during the marriage) and cannot be reduced 
 to one-fifth of the personal belongings. Cf. post, "Reservation," "Marriage 
 Contract." 
 
 * If it were made at the time of the marriage, the appointment should 
 naturally benefit the cliildren that might be born from the marriage. This 
 is what happened when the spouses or one of them had received the benefit 
 of the appointment during their lifetime. But if the appointee should die before 
 the person making the appointment, would the children of the former take 
 the succession in his stead as soon as it opened? Cf. as to this. Topic 4, 
 § 499, of this chapter (lapsing in this case if there were no children). An ex- 
 pressed clause must have been necessary first of all; "Et. de St. Louis," I, 
 119: " I give to you two and toyour heirs who shall issue from you two." After- 
 wards it came to be implied. Difficulties arose as to its nature and its conse- 
 quences: a common trust-entail according to the general opinion; cf. direct 
 transfer, entail in trust (which could be expressed). The Romanists im- 
 plied astipulation made by the notary for the benefit of the unborn child: 
 Boerius, "Decis.," 172; Gui Pape, 67. To the contrary: Ordinance of Villers- 
 Cotterets, 1539, 133; of Feb., 1731, 5; Louet, "D.," 51; Ed. Lambert, "Stipul. 
 pour Autrui," 1893, § 165. The Ordinance of 1735, 49, decides that the heir 
 appointed by vnll should be conceived at the time of the death of the testator, 
 but does not prohibit special legacies for the benefit of those not conceived at 
 
 720
 
 Topic C] COVENANTS RELATING TO INHERITANCE [§ olO 
 
 Our old authors set their wits to work without much success 
 in trying to make this sort of appointment fit within the classical 
 terms; it was a gift "inter vivos" for some ^ and "causa mortis" 
 for others,- a double gift of possessions present and future, accord- 
 ing to some of them, an amphibious act, a contract and a will at 
 one and the same time, says Furgole, giving it up in despair. Not 
 one of these conceptions agrees with the effects which it was given 
 in practice. Its object was to guarantee the title of heir to the 
 beneficiary. It is irrevocable because it arises from a contract 
 upon the faith of which the marriage has been carried out, and 
 which is "the statute of two famihes." Though the title of heir 
 cannot be taken away from the person who has received it, any 
 more by will than by any other deed,^ it is otherwise with regard 
 to the emolument attached to this title. The person making the 
 appointment reserves besides the enjoyment of his possessions the 
 right to dispose of them privately (sales, debts, and even small 
 gifts) ,^ which caused Lauriere to say, "Of all the snares which one 
 can set by means of a contract of marriage (and they are numer- 
 ous) there is none to be feared more than appointments by con- 
 tract." Against this danger there was no protection excepting 
 through moral guarantees, the honesty of the one making the 
 appointment, the natural attachment which the latter felt for 
 his possessions, and the right of recovery in case there were 
 fraud. During the lifetime of the grantor the person appointed 
 had no rights. At the death of the former the latter was "ipso 
 jure" in possession of the property which made up the inheritance, 
 just as an heir at law would have been, and was held for the debts 
 " ultra vires, " except that he was able to renounce, or even to ac- 
 cept by inventory.*" In the countries of written law, where the ap- 
 pointment by contract was likened to a gift of present and future 
 
 that time. On the condition, "si nascatur," cf. Favre, "De Error pragmat.," 
 33, 8, IS. 
 
 1 Lebrun, III, 2, 6; Pothier, I, 534; Bourjon, V, 3. Consequences: (a) 
 registration (controversy); (6) prohibition of alienation for a consideration; 
 the "Ord." of 1731, 12, dispenses with an expressed acceptance; and, 19, 20, 
 witli registration (at least in the direct line); (c) it is not subject to the reserva- 
 tion; ((/) and it can be disposed of (alien, person in mortmain, bastard, son 
 of the family, etc.). 
 
 2 Ricard, no. 971; Lauribre, c. 2. Renusson, "Propres," III, 2, 33, cites 
 for this Bncquet, whom he disputes. The appointor gives nothing during his 
 Ufetime. The gift lapses if the appointee dies before the appointor. — Cf. 
 "post obitum" gifts (where the donor could not survive the donee, ordinarily 
 a legal person). 
 
 3 Boerius, "Dec," 204. Ingratitude? Birth of children? "Petrus," I, 7. 
 
 * Reservation, cf. Stobbe, V. 177, 191. 
 
 * He should have been treated rather as a testamentary heir. 
 
 721
 
 § 510] INTESTATE SUCCESSION, GILiTUITOUS CONVEYANCES [Chap. IV 
 
 possessions,^ it was admitted that the person appointed could 
 escape from debts incurred after the contract of marriage by 
 renouncing any possessions which had been acquired after that 
 time. This appointment was also held as being absolutely 
 irrevocable, that is to say, the person making the appointment 
 had no right to dispose of his present possessions even for a 
 consideration. 
 
 § 511. The Abdication of Possessions is not connected with the 
 Roman will "inter liberos," but rather with barbarian institutions. 
 Among the Burgundians the children have a right during the life- 
 time of the father to a portion of the family community belong- 
 ings; the father cannot alienate anything without having made a 
 partition and conferred their shares upon them.^ With greater 
 reason general usage ^ authorizes parents who have become old, or 
 have been affected by a permanent infirmity,^ and who are conse- 
 quently incapable of administering their patrimony, to abdicate 
 their position of head of the family, like a functionary who retires, 
 in order to give the position to their descendants,^ — that is to 
 say, to people who are younger and more fit; their succession 
 vested by way of anticipation^ ("to resign one's activity," "to 
 
 ' The cumulative gift of present and future possessions was looked upon in 
 countries of wTitten law as containing two gifts placed together, — one of 
 present possessions (wliich gave the immediate seisin), the other of future 
 possessions, which had the same effect as an appointment by contract, be- 
 cause one might accept or refuse it, etc.: Henrys, I, 4, q. 183; Furgole, on 
 Ordinance of 1731, Art. 17. In countries of Customs it was not split up; there 
 was only seen in it one gift, conferring upon the donee a right of option which 
 went into effect at the death of the donor; he could be satisfied with the present 
 possessions at the time of the gift (and in this case he did not pay debts ac- 
 cruing afterwards), or take the entire gift in a mass, and, assuming this, the 
 gift had the effect of an appointment by contract in that which concerned 
 present possessions as well as in that which concerned future possessions: 
 Pothier, I, 357; "Ord." of 1731, 17. 
 
 2 "Burg.," 1; 24, 5; 51; 74, 3; 78, 1 (as to the history of this law, cf. Zeumer, 
 "N. Arch. f. alt. D. G.," 25, 258); Schroeder, p. 27S; Ficker, "Erbenf.," I, 
 271; II, 123, 358; III, 380; V, 104; V, 185; Viollet, 818. Cf. emancipation, 
 reservation: "Sachsensp.," I, 14. "Watschar," " Swascara," meaning "propria 
 portio" (portion which had been released by this partition); Heusler, I, 241; 
 Amira, 122. — Ancient custom of pillaging the possessions left by the dead: 
 Post, II, 173; "Festg. f. Dernburg" (Berlin), 47. 
 
 3 "Form Andec," 57, 34; Marculfe, II, 11; F. Merkel, 24; Rozihre, "Form.," 
 no. 166 et seq.; D. Vaissette, V., no. 102. In Friesland, "evelganc" ("iibel," 
 sick man); Noordeweir, "Regtsoudheden," 255; Grimtn, "R. A.," 486, 563. 
 
 * Primitive societies in which the old men are allowed to die of hunger, 
 where they commit suicide or their children kill them and eat them from filial 
 piety: Deniker, "Races," p. 286; Grimm, loc. cit.; Post, II, 172. 
 
 6 Rarely to others. Interest of the family, and even of the lord : " L. Feud.," 
 II, 14. 
 
 ° Other systems as to the nature of the resignation. Sale, innominate con- 
 tract (because of the charges); gift "sub modo," gift "mortis causa"; "divisio 
 
 722
 
 Topic 6] COVEN.'USrTS RELATING TO INHERITANCE [§ 511 
 
 make oneself dead"). Those who acquired the inheritance bound 
 themselves in return to furnish those resigning it with sustenance 
 (provisions, necessaries), with care and a decent burial.^ 
 
 In the earliest times the abdication of possessions required a 
 delivery of the entire inheritance;^ it meant actual and irrevocable 
 relinquishment,^ or, at least, it was only subject to revocation if 
 the beneficiaries did not fulfill the duties which were incumbent 
 upon them (for example, if they refused to feed and support their 
 parent). In the later law the practice becomes altered owing to 
 various causes : lack of cohesion in the family, possibility of acting 
 through a representative, and simplification of delivery. The 
 individualistic idea comes to light in the maxim, "The father 
 does not undress before going to bed," and results in new com- 
 binations which sometimes replace the abdication of possessions 
 (for example, a partnership between the parents and the children) 
 and sometimes limit its bearing (reserve of a portion of the pos- 
 sessions). In the majority of the French Customs general abdi- 
 cation persisted, but it became revocable. Although it was based 
 upon a contract,* it was treated like a will (without, however, 
 going so far as to require the same forms). The authority of 
 the father, the respect which was due to parents, profited thereby, 
 but at the price of great disadvantages when the possessions had 
 passed into the hands of third parties; for the result of revoca- 
 tion was to deprive purchasers, and it might take place as a con- 
 sequence of a fraudulent understanding between parents and 
 children. An attempt was made at least to protect the interest 
 of third parties by means of certain provisions of publicity.^ 
 
 According to the earliest ideas, abdication of possessions was 
 a sort of deprivation of civil rights, a sort of civil death; the 
 ascendant who lived with his children under the same roof and 
 
 parentum inter liberos": Stobbe, V, 400. Thus differing from covenants upon 
 future succession, everything takes place "inter vivos" and the consequences 
 of the transaction are immediate. 
 
 1 Lodging, board, "Allentheil," "Leibzucht," etc. As to the nature of these 
 rights, cf. Stobbe, V, 408; Lalou, "These," 1900; Heusler, II, 534. 
 
 ^ The giving up takes place as a general right. Cf., however, " Bret., N. C," 
 537. 
 
 * Thus in Brittany and some other customs: D'ArgentrS, 266, c. 4. 
 
 * Which the heirs were free to accept. The partition among ascendants 
 was not a contract. 
 
 ^ The resignation often took place in order to avoid the payment of the 
 tallage, or, at least^ to have the one making it put at the end of the list among 
 the sick; the conditions requisite for tliis were a notarial deed ratified by the 
 representatives, published at the time of the sermon or at the close of the church 
 service, notice being given to the collectors. Controversy as to the registration : 
 Boullenois, "Q.," 10. 
 
 723
 
 § 511] INTESTATE SUCCESSION, GRATUITOUS CONVEYAJSTES [Chap. IV 
 
 who was reduced to an inferior station could not acquire any 
 new possessions nor contract any new debts. According to the 
 law of the second period, he loses his possessions but keeps his 
 capacity ; thus he can have possessions to come, and future debts 
 which call for a settlement at his death. Practice was doubtful. 
 Many authorized the descendants to keep the present posses- 
 sions at the same time that they renounced future possessions, 
 (that is to say, those which had been acquired after the abdica- 
 tion).^ As far as debts are concerned, the descendants were held 
 ("intra vires") ^ for the debts in the present, but not for future 
 debts in the case where they renounced.^ There was nothing to 
 prevent the man who was abdicating his possessions from pro- 
 ceeding himself to make partition of them among those to whom 
 he surrendered them, but nothing compelled him to do this; in 
 any case it was necessary to follow the same rules as though 
 partition had taken place after his death. If he must carry 
 out the partition of his property ^ he had to distribute all of it 
 among all his heirs,^ in conformity with the Custom,^ and this 
 under penalty of nullity.^ 
 
 The practice of abdication of possessions was not abolished 
 by the Revolutionary laws; but, in order to make partition, it 
 was necessary to act in conformity with the new regulation with 
 
 ^ Vacant succession: Pothier, op. cit.; Boullenois, "Q.," 11. 
 2 Huber, IV, 668 ("intra vhes"); Stobbe, V, 398. 
 » And if the deed of resignation has been registered. 
 
 * Cf. P. de Fontaines, 34, 2; Beaumanoir, 47, 11; "Artois," 36, 37; Viollet, 
 "Et. de St. Louis," III, 3. 
 
 * Should the equahty of shares exist at the time of the resignation, or at 
 the time of the death? Accidental loss? In case of the predecease of the person 
 to whom the property was surrendered, it passed to his children, or, if he had 
 none, to his fellow heirs; if there were none, it returned to the man resigning it. 
 
 * Germany: conferring of the patrimony upon the "Ganerben," to the 
 "Anerbe," charged with furnishing " Abfindungen " to his brothers: Heusler, 
 loc. cit.; Stobbe, V, 401. In France the right of primogeniture is a clause fre- 
 quently met with in the partition between ascendants, and it is often by this 
 means that it is introduced. The chronicler, Dudon de Saint-Quentin, IV, 
 128, tells us that Richard I, Duke of Normandy, being at the point of death, 
 in 996, appointed his eldest son as his successor, charging him that he give 
 his brothers sufficient for them to live in an honorable manner. In later law 
 the customary rule was made binding upon the relatives: "T. A. C, Norm.," 
 10, 2, 3. Distinction between the Customs of reference legacies and those of 
 equality. Bi-itz, 764: inequaUty, which was possible by the advice of the father 
 and mother with the assistance of two relatives. 
 
 ^ Already in the old law we observe a tendency to insist that each heir 
 should have a share in kind of each piece of property in the succession, which 
 results in a partition that is mechanical and unintelligent and of such a nature 
 as greatly to diminish the advantages of partition among ascendants: Civil 
 Code, 834. Existing judicial law has still further exaggerated this. Cf. 
 treatises by Regnier, Barafort, etc. Glasson, "R6f. soc," 1889, 209; De 
 Foville, "Le Morcellement," 1885. Theses: Henru, 1895; Caillet, 1900; Megan, id. 
 
 724
 
 Topic 6] COVENANTS RELATING TO INHERIT.\NCE [§512 
 
 regard to intestate succession. In the Civil Code, Art. 1075, the 
 name of abdication of possessions has disappeared, but the in- 
 stitution is found therein, confused with partition by ascendants, 
 to which its revocable character had made it similar.^ 
 
 § 512. Partition by Ascendants.^ — The partition of property 
 made by parents among their children by act of last will presented 
 great practical advantages; it is carried out without expense; the 
 property is distributed in a more intelligent way, taking into ac- 
 count the fitness of each one; and, finally, quarrels between 
 brothers are avoided. The countries of written law,^ and even the 
 countries of Customs,* borrowed this sort of gift from the Roman 
 law.^ Whence the name "devises," often given to wills, because 
 it is in wills that they are found. ^ They were looked upon with 
 favor and were free from the ordinary formalities which were at- 
 tached to these acts; it was sufficient if " the wishes of the testa- 
 tor were certain and constant"; thus in countries of written law it 
 was permitted as an exception to make use of the holographic will 
 in such cases as these.^ The partition could be revoked by the 
 one who made it, just as every testamentary gift,^ at least, if it 
 did not form part of a contract of marriage.^ At the death of 
 the ascendant the coparceners took the property as heirs at law 
 
 1 Practised in the South, although contrary to the rule: "Nulla viventis 
 hereditas"; the resigning of possessions was there looked upon: (a) as a gift 
 "mortis causa" affecting possessions to be acquired in the future; (6) as a 
 gift "inter vivos" for present possessions (and in tliis case it is irrevocable 
 and must be expressly accepted and registered). The child who was left out 
 would only have a right to his legal share, for the written law allowed of the 
 favoring of one or several of the heirs. 
 
 2 Furgole, "Test.," 8, 1, 141. 
 
 ' "Brachyl.," II, 25; "Liber lustrum, memor.," p. 172 et seq. 
 
 * "Bret.," 560; "Bourb.," 216; "Poitou," 219; "Niv.," 34, 17; "Bourg.," 
 7, 6, etc. Some Customs authorized even partitions among collaterals: 
 "Amiens," 94, etc.; Louet, "P.," 24. 
 
 ^ (A) "Divisio inter liberos," permitted first of all only to the father be- 
 cause of the "patria potestas" and later to the mother and the ascendants: 
 D., 10, 2, 20, 3; 39, 5; "Cod. Th^od.," II, 24; "Cod. Just.," 3, 28, 8; 3, 36, 21, 
 26 ("Auth. Si modo"); "Nov. Just.," 18, 7, 107, 3. The descendants did not 
 cease to be heirs at law. — (B) "Testamentum inter liberos": "C. J.," 6, 23, 
 21, 3; "Nov. Just.," 107, 2. Method of distribution creating testamentary 
 heirs, and which dispensed with the formalities required for wills. Lebrun, 
 "Succ," IV, 1, 8, does not distinguish between the "divisio" and the will 
 "inter liberos"; there is a distinction within the meaning of the Customary 
 delivery; at the time when the appointment of an heir disappeared these two 
 kinds of acts became confused. 
 
 * See Ragueau; cf. Du Cange, see "Divisa," "Ordinium"; "Fors de B^arn," 
 ed. Mazure, p. 174: "ordi"; Beaumanoir, ed. Salmon; "Gloss.," see "Devis," 
 "Deviser." 
 
 ■> Serves, "Inst.," 2, 10 (p. 219, ed. 1771). Cf. Ordinance of 1735, 17. 
 
 8 Even when it was signed by the coparceners. 
 
 9 As, moreover, did the surrender of possessions. 
 
 725
 
 § 512] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 (seisin, obligations "ultra vires")- In countries of Customs the 
 partition was of no effect unless it was made among all the 
 children and unless it affected all the property which the parents 
 possessed at that time.-^ In countries of written law it was not 
 necessary that the shares should be equal,^ provided that the law- 
 ful share had not been affected in any way.^ 
 
 § 513. Substitutions in Trust ^ (Entails) signify a gift contained 
 in a will or in a contract by which the donee (or "one encum- 
 bered") is charged with keeping the property which is trans- 
 mitted to him and giving it up on his death to a third party who 
 is "substituted for him" (to "the one called," "remainder-man"); 
 the latter may in his turn be charged with keeping and giving up 
 to another, and so on, when the substitution is "graduated" or 
 has several degrees.^ Thus the grantor regulates the disposal 
 of his inheritance during one or more generations; he disposes of 
 it for the benefit of persons who will not have come into being at 
 the time of his death; he creates a special "ordo successivus," 
 which differs from the customary or legal devolution. These en- 
 tails were most often made from male to male by way of pri- 
 mogeniture. These constitute a form of "majorat," that is to 
 say, giving this last word its broad meaning, trusts which were 
 perpetual and indivisible in favor of the eldest of the family, 
 "major natu." They strengthened the right of primogeniture 
 by keeping the family patrimony intact in spite of the misfor- 
 tunes, the extravagance or the lack of skill of its head. This was 
 one of the masterpieces of the old organization of the nobility; it 
 has been maintained that England owes to it a part of her great- 
 ness; 6 in our day, in Germany, its suppression or its preservation is 
 the subject of a lively controversy. 
 
 ^ The coparceners divided acquests made after the partition. 
 
 2 In countries of Customs it is the same according to the customs of the 
 reference legacy; but according to the customs of equaUty a fairly serious 
 injury (one-sixth in Brittany) means that the act is annulled. 
 
 ' Right to the substitute of the legal share. 
 
 * [As Brissaud points out in note 6 on " English Law," trust has been rather 
 badly translated by "fideicommis." The converse is also true in this transla- 
 tion, for the word fideicommis" has here been rendered "trust" for want of 
 a better term. The term "entail" has here been used as the nearest equiva- 
 lent of the ambiguous "substitution." — Transl.] 
 
 ^ As to ordinary entails in the case of wards, cf. Argou, loc. cit. They are 
 sometimes called direct ones as contrasted with the trust-entails which is 
 called an indirect one. Substitution in grants to younger branches of a sov- 
 ereign house, cf. Potheir, "Fiefs," I, 1. 
 
 « Englisli Law. The history of entails is very complicated. Let us dis- 
 tinguish in this brief outline between the conditional fees of the common law, 
 fees granted by virtue of the Statute "de Donis," and family arrangements 
 
 726
 
 Topic 6] COVENANTS RELATING TO INHERITANCE [§ 513 
 
 Entails in trust are not very frequently met with in France, 
 nor elsewhere, before the twelfth century,^ and for the reason, 
 
 or settlements which came into existence after the seventeenth century. — 
 (A) Conditional fees were reserved for a certain class of the heirs of the donee 
 (for example, the heirs of the body to the exclusion of the collaterals, the males 
 to the exclusion of the females), upon failure of which class they reverted to the 
 donor (or to liis heirs). The grantees sought to prevent this reversion by ahen- 
 ating their fees as soon as a child was born to them, and by buying them 
 back afterwards in order to make them capable of being transmitted to their 
 heirs, whether direct or collateral. — (B) The second Statute of Westminster, 
 1285, "de donis conditionalibus," revived estates in fee tail (that is to 
 say, limited), for example, in those that are granted with a clause that they 
 shall only pass to the male cliildren of the donee, and upon failure of his male 
 children shall revert to the donor. By degrees entailed possessions were 
 made free, but this scarcely took place before the time of Henry VIII: Black- 
 stone, II, 7. Cf. Pollock and Maitland, II, 11 et seq. As to the reversion 
 (return to the grantor) and the remainder ("remanere," revertibility to third 
 parties), Lehr, p. 310. — (C) At the beginning of the seventeenth century 
 the patrimonial domain was found to be liable to be split up because the actual 
 owner might aUenate it or dispose of it by will; the right of primogeniture by 
 itself was not sufficient to keep this domain intact. Then it was that the upper 
 gentry devised family settlements, by the terms of which the heirs placed 
 themselves in the same position as the one encumbered with an entail. 
 Even to-day it is estimated that more than two-thirds of the soil is subject to 
 this system, the formation of which Blackstone does not seem to have under- 
 stood. It is true that neither the laws nor Parliament nor the courts were 
 favorable to it; from a legal point of view entails were only lawful if they 
 were for the life of one or more persons in being, together with the life of 
 a person to be born, until that person attained the age of twenty-one years, 
 which was about the same thing as though they were limited to a duration 
 of eighty years; but the English aristocracy renewed these time hmited 
 estates in such a way as to make them in fact perpetual: Boutmy, "Develop, 
 de la Const, en Anglet.," ed. 1898, p. 246. — (D) Cf. the system of trusts, — 
 a word which has been rather badly translated by " fideicommis " : property 
 is intrusted to one person (trustee) in the interest of another ("cestuy que 
 trust"): Lehr, p. 268; Pollock and Maitland, II, 226; Pollock, "Land Laws," 
 223; "France jud.," 1877-1878, p. 129. 
 
 1 They are to be found in the South as early as the tenth century: D. 
 Vaissette, see 255 (in 966); 891 (in 1121); 958 (in 1129); 1173 (in 1154); 1177 
 (in 1155), etc. Cf. ibid., 237, 238, 241, etc.; "Liber Instr. memor.," p. 172 et 
 seq. Sometimes it is forbidden to aUenate before the age of twenty-five or 
 thirty years, and sometimes the prohibition is absolute: "Petrus," I, 16; 
 "Montpellier," 56; ffaenel, "Dissens. domin.," p. 465; Pasquier, "Doc. rel. 
 h Boussagues," 1901; Dig. X, 3, 26, 16, 18; Gui Pape, 103, 232 (bibl.); "Decis. 
 capella) tolos.," q. 4.54, 455; Boerius, "Dec," 38, 147, 156; Menochius, 
 "Prajs.," 189 (testamentary executors called "fideicommissarii"); see Du 
 Canrje; Auffroy, "Th.," 500; "Ass. de J6rus.," "Abrege de la C. de Bourg.," 
 c. 39. — Germany: similar clauses, — for example, if the donee dies without 
 any issue, the property that he has received will go to such and such a person: 
 prohibition to alienate to no matter whom, or to alienate excepting to such ana 
 such a person, etc. But frequently these grants are made "zu gesammter 
 Hand" (jointly) with the exclusion of the cognates (examples as early as 1075, 
 "Bair Akad. bist.," 14, 2, 78); the property is indivisible and inalienable; a 
 " Ganerbschaft " is formed (literally co-heir, but really a couununity) ; Schroedcr, 
 273; Verdelot, p. 27. In the fourteenth century the establishment of an order 
 of succession makes its appearance. This is what preceded the family trust 
 of the seventeenth century: S. Meyer, "Beitr. z. Gesch. d. Fideic. Subst.," 
 1878, and "Z. R. G.," XV, 131; Stobbe, loc. cit.; Brunner, "Grundz." p. 210. 
 PertUe, IV, 152, gives an instance of an entail at Bergamo dated 1076 
 
 727
 
 § 513] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 undoubtedly, that until that time the interests of the family 
 were protected by other means. At that time the spread of the 
 Roman law and its trust "familiae relictum" ("ne heres fundum 
 alienaret et ut in familia relinqueret"),^ and the admission of 
 feudal primogeniture, gave to this institution its essential char- 
 acteristics. But it had been in force for a long time before this. 
 Without mentioning the family trust which was in use among 
 the Anglo-Saxons in the eighth century,^ in the Prankish coun- 
 tries it is not difficult to see in deeds the materials whose amalga- 
 mation later formed entails : reservations, and clauses of reversion 
 making the property which was being disposed of inalienable, con- 
 ferring of this property upon a person and his "genealogia," and a 
 regulation of its disposal in case the grantee died without poster- 
 ity; later on during the feudal period fiefs are conferred upon a 
 certain class of the heirs of the vassal, and during his lifetime 
 the latter cannot alienate the fief .^ With such precedents as this 
 the genesis of entails becomes natural enough.^ These entails 
 were a partial restoration, for the benefit of the nobility, of 
 the old organization of the family.^ The more the old customs 
 
 (Lupi, II, 706) ; "Stat. Venet.," 4, 7. In Spain it is established that they existed 
 in 1291. 
 
 1 D., 35, 2, 54; 30, 114, 14, 15 (rescripts of Severus and Antoninus); "No- 
 vella," 159 (four degrees) ; Girard, pp. 282, 912 (on the trust in general) ; Zacharie 
 de Lingenthal, § 53. 
 
 2 Brunner, "Zur Rechtsgesch. der Rom. u. Germ. Urkunde," p. 190 
 (cited by Kemble, 147, 169, 299, 327; " Alfred," 41); Schroeder, 285 (before the 
 year 770 the gift of a count to his "genealogia"). See as to appanages, their 
 reversion to the domain: Maffert, "These," 1901. 
 
 ^ "The fief is not a free piece of property; it is fettered from two points of 
 view : for the benefit of the sovereign and for the benefit of the agnates of the 
 vassal. From this last point of view it is similar to the trust"; Guilhiermoz, 
 "Nobl.," 200; Lagonelle, "Th.," 1902. 
 
 * As to the Spanish origin of entails, which was formerly generally ad- 
 mitted (see, for example, Ferriere), cf. Pfaff and Hofmann, op. cit., p. 23. 
 But there existed in Germany and Italy entails that were similar to the 
 "mayorazgos" or Spanish estates in tail before the influence of Spain had 
 begun to make itself felt. After the seventeenth century there was a great 
 increase of family trusts in Spain, Laws of Toro, 1505; in Italy, Edict of July 
 16, 1648, of Charles Emmanuel II, etc.; "Cost. Piemont.," 1770, VI. In 
 Germany cf. the Prussian "Landrecht" and the majority of the Codes of the 
 last century. Cf. also on this subject, England. 
 
 * German Law. The theory of family trusts became well established in 
 the seventeenth century, and especially in the writings of Knipschildt. 
 This author likens entailed property to "Stammgiiter"; they were formed 
 either by will or by contract (thus differing from the Roman trust) ; the devo- 
 lution of the property takes place "ex pacto et providentia majorum." The 
 restriction of (>ntails to four degrees (" Nov.," 159) is not admitted; they 
 are perpetual, for the object is to maintain the power of the family indefinitely. 
 For this same reason property is ordinarily entailed for the benefit of the 
 males and the eldest of the males (contrary to the Roman law). In time the 
 "Stammgiiter" and entailed property came to be distinguished; the latter 
 
 728
 
 Topic 6] COVENANTS RELATING TO INHERITANCE [§513 
 
 became altered, the more frequent became these entails, at 
 least among those whose power depended upon them. They 
 made the patrimony inheritable, indivisible, inalienable and in- 
 capable of being distrained upon, which was a striking return to 
 the past; they only gave the head of the family a limited right of 
 ownership, as was his status in the early times; his debts re- 
 mained personal to him and did not encumber the property of 
 which he had been the depositary, — another archaic rule; and, 
 finally, at his death his property passed to heirs who were chosen 
 independently of his wishes, and in former times this was also 
 done in the same way. In the more modern law, at least in 
 France, this conception little by little lost ground, and the leg- 
 islation of the monarchic period rather looked upon entails 
 with disfavor, seeing in them a "nursery for lawsuits," and it 
 modified to a certain extent the system of property affected by 
 them. 
 
 The entail is not the result of the law or the Custom, but of 
 a declaration of will, testament or contract; in Germany the 
 approval of the sovereign or the law has been sometimes further- 
 more required. It especially affects immovables, although mov- 
 ables are found to be included in entails of general application; 
 and in our day trusts of capital are sometimes created. The 
 wishes of the grantor are often the determining factor in that which 
 concerns the naming of the remainder-man; sometimes the entail 
 is made for the benefit of the family of the person encumbered, 
 and sometimes for the benefit of the member of the family whom 
 the one encumbered shall choose;^ most often the property is 
 kept for the male agnates alone, and the trust estate is trans- 
 mitted entirely according to the systems of seniority (for the bene- 
 fit of the eldest of the family), of the "majorat" ("sensu stricto," 
 for the benefit of the oldest among the most nearly related with- 
 
 assumed a special grant; the former were established by the law or the Custom; 
 the "Stammglit" is alienable and can be distrained ujjon in certain cases; the 
 entailed property cannot be (but this difference became less); the inheritance 
 of the "Stammgiit" follows the common law and docs not take place "ex 
 pacto et providentia majorum." The "Grundechte," § 18, of the Parliament 
 of Frankfort, in 1848, abolished trusts, but their decision did not have a very 
 lasting effect. The existing Civil Code leaves to the local legislative bodies 
 the care of regulating this matter. In 1895 there were in Prussia only about 
 2,000,000 "hectares" subject to trusts out of nearly 35,000,000 that are con- 
 tained in the territory of this country: Blondel, "Popul. rurales de I'All.," 
 p. 435 (bibl.); Regnier, "Th6se," 1900 ("Distinctions de Classes dans la 
 Societe Allemande actuelle"). 
 
 1 Brillon, see Ferribre; Vulson, op. cit.; Guyot, see "Choix.," " Ord." of 1735, 
 62 et seq. 
 
 729
 
 § 513] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 out representation).^ The remainder-man inherits "ex pacto et 
 providentia majoriim"; he does not take the inheritable property 
 of the man encumbered, but that of the donor, which means that 
 the acts of the man encumbered cannot on principle be set up 
 against him. The man encumbered, or the actual titulary of 
 the trust, has the full ownership of the property in trust (domin- 
 ion and user);- he has the possession and the enjoyment; he is 
 even authorized to change the cultivation, etc.; he exercises the 
 honors and dignities attached to this property. It is only asked 
 of him that he shall not compromise the rights of the remainder- 
 men. Thus he must administer after the manner of a good 
 father of a family, under penalty of having to pay damages. He 
 cannot alienate the property in trust.^ If he does so, there are 
 two possible solutions of the matter: either to let the alienation 
 stand until his death or to consider him as being deprived of his 
 rights and to allow the immediate vesting of the rights in re- 
 mainder; this last solution would be more in conformity with the 
 spirit of the institution, but it has not been conceded in France, 
 under the pretext that it was sufficient in the interests of the fam- 
 ily that the remainder-man could take the trust estate when the 
 trust should vest for his benefit. One may ask if the consent of 
 the remainder-men could validate the alienation ; in fact, it is a very 
 rare thing in the case of " graduated " trusts that all later in line 
 can give their consent; in case this did happen the French juris- 
 consults decided that the alienation would be valid, although it 
 would be possible to see in this a renunciation of future succes- 
 sion by the remainder-man. The remainder-man in tail has in 
 fact a right of succession, an expectant estate, which may be com- 
 pared to the reservation; if he should survive the one encumbered, 
 he takes the trust property, and, just as an heir at law, he should 
 be seised by operation of law; but the Ordinance of 1747 (40, 1) 
 treats him as a legatee and compels him to ask for delivery at the 
 hands of the one encumbered (or from his heirs). The latter re- 
 stores the hereditary property, excepting a life share and the 
 heir's quarter of the estate in countries of written law. During 
 
 ^ Sometimes it was. customary to grant an appanage to the younger sons 
 of the family whom the trust had disinherited: Fertile, IV, 156; Maffert, 
 "Apanages," "These," 1901. 
 
 * Controversy, cf. Stobbe, II, 562. See appanages. — As to the possessions 
 of the stock, "Stammgiiter," of the famiHes of the higher nobihty and the 
 question of the juridical status of these families, cf. Verdelot, p. 109 et seq. (bibl.). 
 
 ' Cf., however, the trust "de eo quod supererit." — As to clauses of in- 
 alienability, cf. the Theses of Besnus, 1S99; Fourrier, 1900; Henrys, V, 49. 
 
 730
 
 Topic 6] COVENANTS RELATING TO INHERITANCE [§513 
 
 the life of the man encumbered the next in Kne could at the most 
 perform acts for preserving the inheritance; an inventory made 
 previous to the entry upon the enjoyment of the estate by the 
 one encumbered, the sale of movables affected by the trusts, would 
 suffice ordinarily to protect the interests of the successor; if there 
 was any waste which amounted to a destruction of buildings, 
 the latter could have a bond furnished him or have himself put 
 in possession. In case of an action being brought against the 
 one encumbered which affected the property in trust, the judg- 
 ment could only be set up against the remainder-man if the public 
 ministry had intervened; and, again, the latter had the power to 
 protect himself by means of the civil petition against proceedings 
 in which he had not been a party. 
 
 Entails were justified during the monarchic period by two 
 reasons: 1st. The interest of children and their posterity; the 
 father and mother who had a son who was a spendthrift pre- 
 vented him by means of an entail from ruining himself; the en- 
 tail was then a sort of domestic conservator, without scandal, 
 but also without surety.^ 2d. The interest of the nobility; "in 
 the great houses whose possessions consisted of lands, entails 
 have become almost necessary because of the tremendous ex- 
 penses forced upon the lords who have to uphold illustrious 
 names and fill an occupation which is worthy of their birth"; 
 they appear thus as being an indispensable complement of 
 the right of primogeniture.^ — But these results were only ob- 
 tained at the price of great disadvantages, as long as entails 
 could be perpetual and secret. Perpetual: the property under 
 these was excluded from trade; and if only this mass of property 
 was a great one, a serious obstacle to the development of public 
 wealth resulted therefrom.^ Secret: under which the man encum- 
 bered passed for the absolute owner and because of this en- 
 joyed a fictitious credit. His position was a snare which invited 
 public confidence; very few resisted the temptation to abuse the 
 
 1 "Lex si Furioso," Dig., 27, 10, 16. Cf. "Official Disinheriting," Ferribre, 
 see "Subst." 
 
 2 Verdelot, p. 247, analyzes the recent German writings for and against 
 trusts. Cf. Petiel, "These," 1901; Rey, "Noblesse," "These," 1902. 
 
 ' Mahometan law: alongside of the "melk" ownership (similar to our 
 individual ownership) there exists the "wakf" or "habous," a piece of prop- 
 erty dedicated in perpetuity to some charitable work, a sort of endowment, 
 but with this peculiarity, that it goes first of all into the hands of the inter- 
 mediary grantees, who are designated by the grantor. This has been 
 compared to entailed property: Lescure, "Th.," 1900 (bibl.); Dareste, "Nouv. 
 Et.," 344. 
 
 731
 
 § 513] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 good faith of third parties; if the old famiHes kept their property, 
 it was only with the shame of a bankruptcy in each generation. 
 Guy Coquille (on "Niv.," 23, 10) deplores the fate of the de- 
 frauded creditors and abused sons-in-law, "who so often found the 
 inheritance which they thought was very rich to be good-for- 
 nothing." ^ The Old Regime had to remedy this evil: (a) the 
 Ordinance of Orleans, 1560, 59, limited entails to two degrees, not 
 including the first holder; - (b) various edicts or ordinances 
 of tJie sixteenth century,^ especially the Ordinance of Moulins, 
 15G6, Art. 57, provided for the publicity of entails; they had 
 to be read in court and registered.^ But these laws were hardly 
 effective; they were not in force in the provinces which had 
 been newly added to France; certain of their provisions were 
 disputed, for example, the one about the reckoning of degrees; ^ 
 the Parliaments of the South maintained entails to the fourth 
 degree. Finally, it was decided — very late — to establish a uni- 
 form legislation in this matter; this was the work of the Ordinance 
 of August, 1747, which did little more than codify the previously 
 existing law to correct and settle the decisions, but which, with- 
 out making much of an innovation, none the less rendered great 
 services by cutting short a large number of litigations.^ 
 
 Abolished by the Revolution out of hatred for feudalism (D. 25 
 Oct., 14 Nov., 1792) ^ entails were also prohibited on principle by 
 
 1 Provisions in the interest of creditors by Pope Clement VIII: Fertile, IV, 
 159. 
 
 2 The "Ord." of 1650 only provided for the future; the "Ord." of Moulins, 
 February, 1566, Article 57, limited to four degrees entails which had been 
 created previous to it. Cf. the Edict of 1598 of Charles Emmanuel I for 
 Piedmont. Maria Theresa restricted them to two degrees: Pertile, IV, 162. 
 
 Perpetual entails were still possible, provided letters patent had been 
 obtained from the king, and even these letters were not necessary in the 
 case of a peer's duchy. Edict of May, 1771, on peerages: Thevenot, p. 463. 
 
 3 1539, 1553, 1566, 1690. Cf. Isambert, see Table; Argou, II, 14. 
 
 * Provisions as to pubhcation in Italy since 1491: Pertile, IV, 159. Cf. 
 as to Germany, Stobbe, op. cit. 
 
 5 "Ord." of 1629, Art. 124 et seq. 
 
 8 D'Aguesseau did not think very well of entails: "The absolute aboli- 
 tion of all trusts," said he, "would perhaps be the best law of any . . . 
 but I fear that in order to arrive at it, especially in the countries of written 
 law, it would be necessary to begin by reforming the individuals; and this 
 would be the work of a single individual, who himself would have need of 
 being reformed." Letter of June 24, 1730. Montaigne, II, 8, rises up against 
 entails limited to the male line, which "we take," says he, "too seriously, 
 and by means of which we propose to give our names a ridiculous eternity." 
 Montesquieu, "Espr. des Lois," V, 9. In the seventeenth century P. Nav- 
 arretta and Diego de Saavedra also criticise entails: Adami, "Leggi. 
 8. Manimorte," p. 13; Flammer, "Dr. civil de Geneve," p. 20; Fenet, XII, 
 '516. 
 
 7 Sagnac, p. 224. Cf. Du Casse, "M^m. du roi Joseph II," 299 (1856).— 
 
 732
 
 Topic 6] COVEN.iNTS RELATING TO INHERIT.AJNCE ' [§513 
 
 the Civil Code, Art. 896, because of this motive and because of 
 economic reasons^ (the interest of agriculture, of credit, and of 
 the circulation of property, etc.).^ 
 
 Abolition in Tuscany in 1782: Fertile, IV, 162. — A few customs, "Norm.," 
 "Auv.," "Niv.," already prohibited their being made by will: Bretonnier, 
 op. cit., in fine; "Code Civil interm.," see Table. The Romanists held them 
 to be "odiosa" (Alciat, etc.). 
 
 1 Aron, "N. R. H.," 1901, 586. 
 
 2 Previous legislation. — (A) Estates in tail (Decree of March 30, 1806; 
 Senate Decree of Oct. 14, 1806; March 1, 1808) for the benefit of the new 
 nobility created by Napoleon. The possessions forming the endowment 
 of the new titles were effected by perpetual entails and they were trans- 
 mitted from male to male in order of primogeniture. They were forbidden 
 for the future and practically abolished as to the past by the Laws of May 
 12, 1835, and May 7, 1749: Rondonneau, "Coll. des Lois Cone, des Maj.," 
 1808; Desquiron, "Comm. s. le Statut de 1808," 1809; Merlin, see "Maj."; 
 V alette, "Rapp. s. Loi 1849." — (B) Entails aUowed. The Civil Code 
 itself permitted as an exception "officious" entails, provided that they 
 did not create any inequaUties between children (Art. 1048). Under the 
 Restoration there was some question of re-establishing the right of primo- 
 geniture. The Law of May 17, 1826 (repealed in 1849) authorized entails 
 for the benefit of one child. 
 
 733
 
 § 514] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 Topic 7. Reservation and Legal Share 
 
 § 514. Barbarian Legislation. 
 § 515. Feudal and Customary Law. 
 § 516. The "Legal Share" ("legi- 
 time"). 
 
 § 517. By what Right did one collect 
 
 the Legal Share? 
 § 518. The Revolution and the Civil 
 
 Code. 
 
 §514. Barbarian Legislation. — The point of departure, at 
 least for the present purpose, of the evolution of the Germanic 
 law, is the inalienability of the family inheritance.^ In time this 
 was gotten away from in various ways. Among the Burgundians, 
 the Alamans and the Bavarians, the father and the children lived 
 in a community; ^ although the head of the family, the father 
 could not alienate the possessions which were jointly owned ; ^ 
 but he had the power to make a partition with his children; '* by 
 
 1 Ficker denies this, and maintains that the freedom of alienation e.xisted 
 originally in the law, but that it was limited by customs at the outset and 
 afterwards by legislation. The arguments on this point which he draws 
 from the barbarian laws have been refuted, especially by Brunner. Cf. 
 "L. Thur.," 54, and "Alam.," which are explained by "Bai.," 1 (the free 
 man can dispose of his property for the benefit of anybody he chooses; but 
 it is understood that this means provided the customary conditions are all 
 fulfilled, — for example, that there has been a partition). Cf. the Capitu- 
 lary of 818-819. — On this disputed question cf. a summing up of the various 
 opinions in Adler, p. 3. To-day there is an ever increasing tendency to admit 
 that the reservation is, like the law of succession itself, an outcome of the 
 primitive family community; the " Gemeinschaftsrecht " becomes changed 
 into "Wartrecht," into "Erbrecht." Danish law: cf. Matzen, "For. or. 
 Danske Retshistorie," I, 19. Swedish law, cf. Beauchet, "N. R. H.," 1900, 
 601 (family ownership). Cf. Mahometan law, Hanoteau, "Kabylie," II; 
 Ze7js, "Le Nil." 
 
 2 " Ganerbschaft " (cf. the German translation of the Capitulary of 818-819: 
 "Coheres," meaning "geanervo"), "Hausgenossenschaft," "Gemeinder- 
 schaft," etc.: "Burg.," 1, 24, 51; "Bai.," 1; Schmollcr, "Die alt. Arbeits- 
 genossenschaften u. d. alt. agrarische Familienwirtlischaf t " ("Jahrb. f. 
 Gesetzgeb.," 1890); Miaskowski, " Problem des Grundbesitzvertheilung," 1890. 
 
 ^ There is unity of joint ownership, "zu gesammter Hand," that is to 
 saj', all the members of the community must participate, at least in the 
 alienation of the immovables. Details and bibl. in Verdelot, "These," p. 15 
 et seq. After the death of the father the community does not cease; some- 
 times there take place "Mutschierungen" or partitions in fact of the usufruct 
 between the members of the community without its unity being broken. 
 Cf. partitions of the kingdom under the Merovingians and the CaroHngians 
 (the same title, "Rex Francorum" for each king; increase; reckoning of the 
 years of the reign dating from the accession, even with regard to shares which 
 had increased, etc.). Cf. also descent, appanage, and collective investiture 
 of fiefs. As to the maxim, "Was in der Were verstirbt, das erbt wieder an 
 die Were," Freund, 1880, cf. Chaisemartin, p. 445; Grimm, 556, 602. 
 
 * The Law of the Burgundians does not say that children can compel their 
 father to partition; it is otherwise in the "Schwabenspiegel," I, 59; Heusler, 
 I, 240; II, 439. Must we assume that during the period of the barbarian 
 laws the male children and those who had attained their majority had not 
 
 734
 
 Topic 7] RESERVATION AND LEGAL SIL^RE [§ 514 
 
 this means he acquired the right of disposing of his share. ^ Per- 
 haps, even, it was not rare in such a case as this for the near rela- 
 tives to be asked to approve of the aUenation,- as was the case 
 among the Saxons, who at the period when their law was drawn 
 up do not seem to have had any family communities.^ Among 
 the Franks ^ and elsewhere both the Saxon custom of the consent 
 of the relatives living out of the community, and the communi- 
 ties of near relatives living under the same roof,^ are once more to 
 be found. Under the influence of religious ideas ^ these very old 
 rules were not conformed with; one might even think that they 
 were entirely abandoned, for one reads at the head of Chapter 6 
 of the Capitulary of 818, 819, "Ut omnis homo liber ^ potestatem 
 habeat, ubicumque voLuerit, res suas dare pro salute animse suae." 
 Practically, this formula means that if the grantor lives in a com- 
 munity he will nevertheless be able to make a grant for the benefit 
 of the Church; the public authority (the count or "missus") would 
 force the recalcitrant members of the community to partition with 
 
 only the right to demand their share of the common patrimony in case of a 
 partition, but also the right to compel their father to make a partition? This 
 no doubt depends upon what period we are considering. Capitulary of 
 818-819, c. 6; "Z. S. S., G. A.," 1895, 229. 
 
 1 " Todtheilung " (partition), "Watschar" (portion). 
 
 2 Cf. especially the analysis of Bavarian deeds in Adler op. cit. Those 
 in which the relatives are mentioned are almost as numerous as those in which 
 they do not play a part. Their absence may be because the grantor is the 
 last of his family; he has no posterity, no relatives. Their intervention is 
 to be accounted for by the existence of a community, or, if it has been dis- 
 solved, by the necessity of establishing the fact that they have been given 
 their share; the Customs, which are more strict than the law, taking into 
 account family solidarity, widen the circle of the relatives: "propinqui con- 
 senserunt, ego, fratres et proximi tradiderunt convocata parentum turma," 
 etc. In 770, Poapo, "vir nobilis," calls together his relatives and submits 
 to them a difference which he has with his sons on the subject of a gift which 
 he wishes to make to a church (perhaps this deals with a special custom 
 peculiar to the nobihty). 
 
 ' As to the Saxon law and the "Beispruchsrecht," cf. § 339, supra, and notes. 
 
 < Pardessus, "Dipl.," no. 559; "Sal. em.," 14, 11; Capitulary of 805, 22; 
 820, 3; 816, 5; 818, 819, 11 and 6 (I, 125, 292, 267, 283). Cf. Brwiner, op. 
 cit.; Kohler, p. 234 (various texts). According to Ficker, IV, 204, 372, 
 if there were no reservation ("Wartrecht") among the Salians the mother's 
 "dos" was appropriated for the children; to the contrary, Brunner, op. cit. — 
 Cf. "L. Rib.," 48, 49. 
 
 ^ "Roth.," 167; see Grimoald, etc.; Thdvenin, no. 79. 
 
 • Citations of the Fathers of the Church in Locning, "D. Kirchenr.," I, 
 220; II, 38, 685. Salvien advises the faithful to give all their possessions 
 for the salvation of their souls and not to trouble about their relatives ("nemo 
 conjunctior quam vos ipsi"). Others, more scrupulous, do not wish the 
 family to be stripped. St. Augustine prescribes that the Church should be 
 accounted as one more child. Rozicrc, "Form.," 175: Gifts "ad loca sanc- 
 torum" (preambles). 
 
 ' The man who is not free cannot alienate to any one outside of the domain. 
 
 735
 
 § 514] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 the Church benefiting as the grantee, or, if partition was im- 
 possible for the time being, the Church would enter temporarily 
 into the community, in order to exercise therein the rights of the 
 grantor.^ Already, the law of the Burgundians, Title 1, authorized 
 the father to make a grant before any partition, which was contrary 
 to the old rule; ^ this old rule only remained in force with regard 
 to a certain category of possessions, the share of the Burgundian 
 tenant in the partition of lands with the Gallo-Roman owner 
 ("terra sortis titulo adquisita"). Furthermore, the law of the Sax- 
 ons dispensed with the consent of the relatives to alienations for 
 the benefit of the Church and the king. In specially conceding 
 the privilege of the Church,^ the barbarian legislation is far from 
 freedom of alienation. Sometimes this was only permitted with 
 the approval of near relatives,^ sometimes the head of the family 
 was only free to make a grant of a portion of the inheritance which 
 he administered,^ either of the share of one child — and then the 
 quantity which could be disposed of varied ^ — or of a fixed quan- 
 tity, one-fifth among the Visigoths,^ one-third among the Salian 
 
 1 For example, as long as the children are minors, c/. "Sal.," 73; Schroeder, 
 pp. 264, 320; Adler, "Ehel. Guterr.," 1893 (c/. "Z. S. S., G. A.," 1895, 229). 
 
 2 The father who could not alienate before he had made a partition with 
 his sons (Tit. 24-51), acquired through a later law (amendment of Tit. 1) 
 the right to dispose of his property before the partition: Brunner, op. cit. 
 To the contrary, Ficker, I, 272. If one of the children died before his father 
 his share would revert to his father (Tit. 51, 2), who once more became its 
 owner, but without the power of alienating it; thus his other sons would have 
 a sort of reservation over this share. Tit. 78 changes the limited ownership 
 of the father into a mere enjoyment and gives the bare ownership to the 
 brothers; if one of them should die before the father his children would suc- 
 ceed to his property, whereas, according to Tit. 51, they would not have been 
 able to compete with their uncles. 
 
 3 Cf. p. 437, note 3. Protestations against the not very scrupulous cleri- 
 cals who stripped famihes (Capitularies). The feudal system resulted in 
 forbidding on principle the disposing of immovables for the benefit of "main- 
 forte" or of "mainmorte" ("nee militi, nee clerico"). As to this prohibi- 
 tion and the means used to evade it, cf. § 515; Agen, 25. 
 
 ^ Cf., however, the formulge stating that each one can dispose of his pos- 
 sessions: "Andec," 36, 45; Roziere, 131, 205. 
 
 ' The portion reserved to the son is called the "Falcidia": Ldndenbrog, 
 72; see Du Cange; Zanetti, "Legge Romana reticacoirese," p. 120. 
 
 • The father who has two sons can dispose of one-third of his possessions; 
 the one who has three, of one-fourth, etc. Lombards: Fertile, IV, 104; 
 "Roth.," 154-171; "Liut.," 65, 101-113, "Aist.," 1-13; "Areg.," 14. Ac- 
 cording to Pa-ppenheim., "Z. S. S., G. A.," 1901, 389, the hereditary share of 
 the children and of the father must have been absolutely incapable of being 
 disposed of during the time of Rotharis {Contra, Ficker, II, 356) ; it is only in 
 the eighteenth century, perhaps as a consequence of "Liut.," 113, that it 
 became divided into a disposable portion and the reservation: Brunner, 
 "Reg. farf.," p. 10 ("Mitth. d. Inst. f. oest. Gesch.," II, 1). As to the rights 
 of daughters, cf. Brunner, "Z. S. S., G. A.," 21, 6. 
 
 ' Quantity which appears at first in a retouch by Leovigild of an " Antiqua," 
 
 736
 
 Topic 7] RESERVATION AND LEGAL SHARE [§ 514 
 
 Franks, and one-half among the Burgundians.^ In this last case 
 the reservation is only mentioned as being for the benefit of the 
 descendants.^ We have already seen that disinheriting is very 
 exceptional.^ Gifts were sometimes for the benefit of the Church 
 or third parties, and sometimes for the spouse of the one making 
 the grant, or for one of his children, or one of his heirs. For each 
 one of these grantees a special rule, due to favor or distrust, 
 was conceived of; but the incoherent provisions of the barbarian 
 laws hardly enable one to make out their growth excepting in 
 that which concerns the Church and the spouse. To judge from 
 them according to their general spirit, they must rather have tol- 
 erated reference-legacies or special advancements ("melioratio") 
 to one of the children than gifts to strangers of such a nature as 
 to strip the family. But the spirit of equality already made itself 
 felt and was sometimes in conflict with this result.^ Among the 
 Burgundians, the Alamans and the Bavarians, third parties and 
 children were placed upon the same footing. Among the Ripu- 
 arians it was forbidden to give one of the children more than 
 twelve sous outside of his share, and the Salians do not seem, to 
 have known any reference-legacy other than the gift made to a 
 daughter upon the day of her wedding, or to a son the day when 
 his hair was cut for the first time. Among the Visigoths the 
 amount which could be disposed of for the benefit of children, 
 
 5, 2, 4, cf. 5, 2, 5, and "Cod. Euric," 319, and which Chindasvnnd generalizes, 
 4, 5, 1 and 2, in abrogating an old law of Euric which we do not possess, and 
 which had introduced the freedom of alienation among the Visigoths (in 
 what terms? Disinheritance "pro levi culpa" was not permitted formerly); 
 the innovation of Euric can scarcely be accounted for, excepting by the in- 
 fluence of the Roman law or of the Church: Brunner, loc. cit.; Ficker, IV, 104; 
 Zeumer, "N. Arch.," 26, 139. The reservation is first of all conferred upon 
 the children out of the property given by the husband to the wife (Leovigild), 
 and then out of the "dos" (Chindaswind), and finally out of all the property 
 excepting the acquests made during the marriage, the booty of war and royal 
 gifts ("Wis.," 4, 2, 16; 14.5, 2, 2; Euric, 305). Erwig only makes the reserva- 
 tion affect the husband's personal belongings (4, 5, 1, cf. 2, 1, 6; 3, 1, 9) . 
 
 1 Arg., "Form. Andec," 58. The marriage portion among the Salians 
 is one-third: "T. A. C, Norm.," 89; "T. A. C, Bret.," 41; "Compil. de us. 
 Andeg.," 43; Ficker, IV. 382, 394. — C/. § 490, supra (the share of the 
 dead; division of the patrimony into three parts, — one for the dead, another 
 for the widow, and a third for the children); Dareste, "Nouv. Et.," 304; 
 "Burg.," 51, 1; 53, 2; 75; Ficker, II, 123. 
 
 2 Communities among brothers are, however, not a rare thing. On the 
 hereditary rights of the father and mother cf. "Z. S. S.," 1901, "G. A.." 374. 
 
 3 "Wis.," 4, .5, 1; "Alam.," 1; "Sax.," 82; "Roth.," 166; "Liut.," 5,19, 
 57; "Z. S. S." 1901, "G. A.," 385; Am6g., II, 31; "F. Capit.," Ill, 326. Cf. 
 "Schwabenspiegol," ed. Matile, VIII, 28 ("a man makes his son a monk"). 
 
 * Cf. "Cod. Th(5od.," 3, 8, 2: right of favoring one child in the case of a 
 second marriage. Majorien abolishes it ("Nov.," 6, 8); Severus, I, 1, id. 
 
 737
 
 § 514] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 which was one-tenth (instead of one-fifth as for third parties), 
 was increased by Erwig ^ to one-third of the possessions. 
 
 § 515. Feudal and Customary Law. — Out of these precedents ^ 
 there arose ^ the Customary reservation/ a new and a httle less 
 powerful form of the right of relatives. This is to gratuitous 
 alienations what the repurchase by a person of the same lineage 
 is to alienations for a consideration. Like the latter, it is re- 
 
 1 "Wis.," 4, 5, 1 and 2, 18; "Rib.," 59, 9. Cf. "Sal.," 100 (ed. Hessels); Geff- 
 cken, p. 253, bibl.; Schroeder, p. 319; "Burg.," 1 and 86. Among the Ba- 
 varians, Adler, p. 121; Marculfe, 2, 12, 14. Among the Lombards cf. "Liut.," 
 101, 113; Fertile, IV, 129, 104. — The Roz. formula?, 166 et seg., contemplated 
 gifts by reference legacy ("absque consortium") for the benefit of one son 
 or grandson (reference to the "L. Rom. Wis.," 2, 24, 1, int.). — As to ille- 
 gitimate children see Roziere, "Form.," 130: Brunner, "Grundz.," p. 200. 
 
 - In many places the old usages persisted: "A. C, Artois," 23, 1 (aliena- 
 tion at the pleasure of the heir); 1509, Art. 50; 1544, Arts. 76, 77; "Boulenois, 
 A. C," 73 ; " N. C," 124; " Reims," 1481, Art. 54, 106; " Bayonne," 70; " Bearn,'^ 
 1552; cf. ed. Mazure, Art. 178; Labourt, 5, 1; Soide, 17, 1; 26, 4; Kohler, loc. cit.; 
 Britz, p. 724 (at Valenciennes one gave up the seisin to a fictitious grantee). 
 The "Coutume de Lille" and a few others only allowed of the disposal of 
 income and personal belongings. — Prohibition of disposing of immovables 
 by will, Glanville, 7, 5, 4; cf. "T. A. C, Norm.," 57, 4 et seq. — Disfavor with 
 which wills were looked upon by our old jurisconsults of the seventeenth and 
 eighteenth centuries (proceedings to which they give rise, arbitrary char- 
 acter of their provisions); Domat, "Loix civ.," 4, 8; Le Brun, "Succ," — 
 "There is always acomplaintas to wills, andneverasto successions"; Meaupou: 
 "I should desire to do away with wills and entails"; Flammermont, "Le 
 Chanc. Meaupou," p. 618. 
 
 ' The origin of the reservation is neither in the Roman law nor in th<? 
 Feudal law. Cf., however, Glasson, VII, 555. But it is from the feudal 
 sj'stem of ownership that the prohibition of alienating to persons "de main- 
 morte" or "de mainforte" is derived ("nee militi, nee clerico, nee domni 
 religionis," D. Vaissette, V, 891), which prohibition is an important restriction 
 upon the right of disposal, looked upon in the eighteenth century as estab- 
 lished in the interest of the State and in that of the family. Cf.- the pre- 
 amble of the Edict of August, 1749 (prohibition of provisions of last \y\\\ for 
 the benefit of persons in "mortmain," necessity for the authorization by letters 
 patent of acquisitions for a consideration; the ratification of Parliament is suffi- 
 cient for pious or charitable foundations (masses or obituals, charity schools, 
 etc.). Cf. Civil Code, 910 (administrative reservation) : "T. A. C, Norm.," 57; 
 Adami, "Race. d. Leggi s. le manimorte"; Britz, 519; Tissier, "Tr. des Dons 
 et Legs aux Etabliss. publics," 1896. Theses: especially Coulondre, 1886; Pitois, 
 1890; G. de Lapradelle, 1895. Cf. frequent allusions in the Customs to the 
 consideration of piety or pity. — As to the restrictions upon alienation in the 
 interest of the feudal lord, cf. Auffroy, pp. 461, 527, 615, 663. Indivisibility 
 of fiefs, cf. J. d'Ibelin, c. 144 et seq.; "Gr. Cout. de Norm.," 36; Guilhiermoz, 
 "Orig. de la Nobl.," p. 200; Maffert, "Apanages," "These," 1900; Lagouelle, 
 "These," 1902, p. 227 (Normandy). 
 
 * Customary reservations, allusion to the divergencies in the Customs of 
 customary legal share {Pothier, "Don. entre vifs," no. 245), as contrasted with 
 the legal share of the law (Roman). Legal share of compassion for the benefit 
 of younger children when all the father's possessions are encumbered with 
 an entail for the benefit of the eldest: "Novella," 39, 1; Boissonade, p. 314 
 (bibl.). German law: "Pflichtheil," legal share; "Notherben," necessary 
 heirs. Russia: indisposability even by gift of the patrimonial possessions: 
 Lehr, "Dr. Civ. Russe," II, 44. 
 
 738
 
 Topic 7] RESERVATION AND LEGAL SILA.RE [§ 515 
 
 stricted to personal belongings; movables and acquests having 
 been left to the free disposition of individuals/ contrary to the old 
 law. It allows relatives of the same lineage to keep the personal 
 belongings which have been disposed of by will ^ in excess of a 
 certain quantity. It should also, it seems, have authorized them 
 to reclaim possessions of this same nature which had been given 
 "inter vivos"; but, although quite a number of Customs adopted 
 this solution,^ it was rejected by the common law, undoubtedly 
 because gifts — and especially with regard to the impediments 
 with which they were surrounded — seemed less to be feared than 
 did legacies.^ The amount of the reservation, that is to say, of 
 the portion of the intestate succession which could not be dis- 
 posed of by will to the prejudice of the heirs, and which is reserved 
 for the latter, varied according to the Customs.^ From the thir- 
 
 1 Cf. Champeaux, "Gr. Encyclop.," see "Reserve"; Loysel, 305; Beau- 
 mayioir, 12, 3: "Jostice," 12, 3, 1 (p. 224); "Cartul de Notre-Dame," no. 177; 
 Desmares, 149; "Cout. Not.," 7; "Paris," 292; Ferriere on this article; "Confer, 
 des Cout. de Guenois," fo. 682. — Customs in which the reservation affects both 
 personal belongings and acquests: (a) because of a survival of the old law, 
 "Norm.," 418; "Metz," 8, 7; (&) as a consequence of the tendency to confuse 
 the reservation with the legal share: "Bourg.," VII. Customs called those 
 
 . of subrogation, in which, if there are no personal belongings, the reservation 
 affects movables and acquests: "Bret.," 203; "Anjou," 340; "Maine," 
 352; "Touraine," 238; "Poitou," 181 et seq.; "Sens," 68, etc.; Kohler, p. 256; 
 R. de Lacombe, see "Reserve." 
 
 2 Gifts by way of reference legacy are hard to reconcile with a system 
 of family joint ownership such as the one that served as a basis for the reserva- 
 tion. On the other hand, they can without difficulty be applied to acquests 
 and movables, and it is especially with regard to these that the legal share 
 must have been introduced. The general tendency of the Customs is to 
 prohibit these gifts, but certain of the Customs authorize them. P. de Fon- 
 taines, 23, 10, 11, 14, with regard to the legal share allows a child to be left 
 the same that could be left to a stranger. Beaumanoir, 12, 3; 14, 13, 15; 
 70, 5: the father cannot leave more to one child than to another; however, 
 he may give one of them the power of disposing of the movables and acquests: 
 "Olim," II, 807 (no. 170); "T. A. C, Norm.," 10; "Summa Norm.," 35; 
 "Et. de Norm.," pp. 9, 11, 79; "Gr. Cout.," pp. 365, 369, 372; J. d'lhelin, 
 144, 146, 152; 27, 29; "Clef des Assises," 191 et seq.; "C. des Bourg.," 192; 
 "Guenois," fo. 702; D'Espinay, "F6od. et Dr. civ.," p. 305; Boissonade, 
 p. 231; Albert, p. 513; Van de Walle, "Th^se," 1903, p. 161 (Flanders). — i?". 
 de Daroca, Munoz, 542. 
 
 ' Sometimes by adhering to the Germanic tradition, and sometimes by 
 applying the Roman theory of the legal share. "Blois," 166 ("formerly it was 
 allowable to make a gift 'inter vivos' of all possessions, which custom seemed 
 to be too harsh"); Kohler, p. 2.53 et seq. As to the rule, "To give and to 
 withhold is invalid," see texts in Kohler, p. 261. Gifts made upon one's 
 deathbed were frequently likened to dispositions of last will, ibid.; Loysel, 
 666; "Gr. Cout.," p. 364; "Paris," 277, etc. 
 
 * Glanville, VII, 1 (prohibition of gifts "in extremis"; "Norm.," 427; 
 Blackstone, French translation. III, 327 (heirlooms). 
 
 ^ Importance of the reservation of two-thirds (partition into thirds): 
 "Et. de St. Louis," I, 10, 68; "Touraine," "Aniou," "Maine," "Troves." 
 etc.; "Bord.," 57 eUej. — One-half, "Reims," 1481, Arts. 78, 95; "Laon," 60, 
 
 739
 
 § 515] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 teenth century it is usually four-fifths of the personal belong- 
 ings;^ only one-fifth may be bequeathed, whatever the number 
 and quality of the heirs who survive.^ It is necessary to go back 
 to the time of the death ^ in order to see whether the reservation 
 has been impaired or not, and then proceed, if there is occasion to 
 do so, to the curtailing of excessive donations.^ The heirs to the 
 personal belongings ^ (that is to say, the relatives called to the in- 
 testate succession) alone have the right, but only upon condi- 
 tion that they have neither renounced nor been excluded,® for the 
 reservation is nothing but the intestate succession less the dis- 
 
 etc. — Three-quarters, "Lorraine," 11, 13; "Sedan," etc. — Sometimes there 
 is a distinction made between fiefs and villein tenures: "Noyon," 17, etc. — 
 No reservation, "Luxembourg," 1623, X, 1; "Douai," "Orchies," etc.; 
 Kohler, p. 250; Britz, p. 725; Brocher, 206. — Portugal: the amount which can 
 be disposed of consists of one-fifth of the personal belongings and one-third 
 of the acquests (thirteenth century); and later on of one-third of all the 
 possessions (sixteenth century); Jordao, "R. h. Dr.," 1857, 500. Spain, cf. 
 "L. Wis.," Sicily, one-third: Brilnneck, II, 95. 
 
 1 P. de Fontaines, 33, 12, 15; Beaumanoir, 12, 3, 5, 6, 17, 18; 44, 55; 14, 
 15, 31; 70, 5; "Jostice," 12, 3, 1; Desmares, 70, 149, 237; "Cout. Not.," 
 VII, 143; "Gr. Gout.," II, 20; "Olim," III, 2, 1010; "A. C., Picardie," 
 73; "Amiens, A. G.," 4: "An inheritance can only be divided into fifths 
 once," — that is to say that the fifth part can only be given once so 
 long as the inheritance stays in the same family; cf. 1507, 1 and 4; 1567, 
 46, 57; Viollet, "Et. de St. Louis," I, 128 (in 1244). — This system of the' 
 conferred fifth, which is that of the Ile-de-France and of Orleans, prevailed 
 perhaps because, with its chsposable quantity, wliich did not vary and was 
 not very great, it was more like the old law and at the same time satis- 
 fied the new needs that were responsible for the success of the legal 
 share. — Loysel, 306; "Valois," 85; Beaumanoir, 12, 6; Auffroy, p. 619. — 
 Variations in Boissonade, p. 258; Albert, p. 513. — MuTioz, 509; one-fifth for 
 the eldest. 
 
 2 However, certain Gustoms drew a distinction according to whether there 
 were or were not children: "Norm.," 414^28; cf. 392; "Eure," 101 et seq.; 
 "Maine," 332 et seq.; "Anjou," 321 et seq.; "Touraine," 233 et seq. — On the 
 Norman system of partition by thirds: "T. A. G., Bret.," 206; Glanville, VII, 
 5; Brilnneck, "Siciliens Stadtr.," II, 6. — Loysel, 158: " The proper dower for 
 children is a customary legal share"; post, "Dower." 
 
 ^ For example, to ascertain whether there are or are not children. — Loysel, 
 329: the personal belongings included in the reservation are free and clear 
 of debts; but the "Gout, de Paris," 295, prescribes that the debts shall be 
 paid out of all the possessions, without any distinction. 
 
 ■* The action for curtailing is a real action, for the personal belonging is 
 looked upon as not having left the patrimony of the deceased. The donee 
 would thus not have the power to pay oiT in money the heir entitled to the 
 reservation in order to keep the immovable. Some Gustoms only give the 
 person entitled to the reservation a personal right: "Audenarde," 20, 9; 
 "Termonde," 18; "Furdes," 20, 8; Ferriere, see "Retranchement." 
 
 * (Customs of the stock, etc.). The testator should leave four-fifths of 
 the paternal personal belongings to the paternal relatives and four-fifths of 
 the maternal personal belongings to the maternal relatives. 
 
 ^ Beaumanoir, 12, 17: disinheritance does not make one lose the four- 
 fifths of the personal belongings. As to the daughter who lives "luxuriose," 
 "T. A. C., Norm.," 10, or the son who marries without the consent of his father, 
 see Fertile, IV, 109; "Usat. Barchin.," 77, 78. 
 
 740
 
 Topic 7] RESERVATION AND LEGAL SHARE [§ olG 
 
 posable quantity.^ If there are no heirs there is no reserva- 
 tion.^ Thus the fate of a particular legacy made in a particular 
 will would depend upon divers circumstances, — variations in what 
 goes to make up the inheritance itself, the existence of heirs, and 
 the ability of the latter to collect the inheritance. The right of 
 those for whom the reservation is made is thus dependent upon 
 events, but it cannot be taken away from them by the deceased, 
 and thus it appears as a survival of the family joint ownership. 
 
 § 516. Th9 Legal Share ^ ("legitime"), in use among the Gallo- 
 Romans ^ and in countries of written law,^ is a Roman institution 
 
 1 It may be encumbered with an entail (Lauribre, on Loysel, 341); 
 this would not be so with regard to the legal share: Benedicti, "Rep. in c. 
 Rayn.," II. 
 
 ^ The most distant collateral has a right to the reservation, but the Treas- 
 ury has not: "Gr. Gout.," II, 40; "Et. de St. Louis.," I, 68. 
 
 * This is the "quarta legitimse partis" of the Roman law. Girard, p. 856 
 (an amount left to the estimation of the judge originally, and later fixed in 
 imitation of the heir's fourth of that wliich the heir would have had if there 
 had been an intestacy). As to this amount in the Justinian law cf. post. 
 
 The heir's fourths ("quarte Falcidie," or the "quarte trebelhanique") 
 which the appointed heir could keep, — the former out of legacies, the other 
 out of trusts, — were not admitted in countries of Gustoms, where the ap- 
 pointment of the heir did not take place. In countries of written law they 
 were applied; better still, the appointed heir, when he was entitled to the 
 legal share, could add to it one of these fourths, excepting if the testator had 
 forbidden it: "Nov.," 1, 2, 3; "Auth., Sed cum test."; Faber, "Inst.," fo. 69; 
 Pasquier, "Docum. s. Boussagues," p. 29 (in 1334); Dig. X, 3, 26, 16 and 
 18; Masuer, XXXII; Pasquier, "Inst.," p. 459; "Ord." of 1735, 56-60. Juris- 
 prudence was hostile to this, excepting in Bordeaux: see Ferriere; Britz, 
 p. 733; Briinneck, p. 99; Lattes, p. 265 (bibl.); "Siete Part.," VI, 11. 
 
 * The legal share is often incorrectly called "Falcidia": Paul, 4, 5, 2, 3; 
 3,11; "God. Th6od.,"5, 1,4;2, 19, leise^.; "L. Rom. Gur.," 8, 5, etc.; "Nov. 
 Th.," 11, 1, 6; Papien, 10, 4; 31, 2; 45, 2, 7: Zeumer, "Z. S. S. G. A.," IX, 26; 
 Stouff, "N. R. H.," 1887, 273 ("Falcidia" in sales). On the Edict of Theo- 
 dosius, 33, cf. Auffroy, p. 102. The "Papien," 45, 6, refuses to give the 
 "querela inoff. test." to brothers (cf. "God. Th^od.," 2, 19, 1). In the form- 
 ula; and deeds the "Falcidia" is reserved to the heirs: Mnrculfc, II, 17; Lin- 
 denbr., 72; "Touraine," 17; "Andec," 41; Will of Widerad, 721; of Abbo, 
 739 ("Falcidie" to a first cousin), etc. Frequently, however, in the preamble 
 of a will there is a statement of the right to dispose freely for the benefit of 
 the Ghurch, of one of the relatives, or of third parties: "Andec," 37, etc. Cf. 
 the barbarian law (father and son coparceners). The "Brachyl.," II, 23, 
 24, and the "Petrus," I, 12, 18, repeat the system of Justinian in his "Nov.," 
 18 and 115: the "Falcidie" includes one-third of all the jiossessions of the as- 
 cendants if there are four descendants at least, or one-half if there are more; 
 the ascendants have a fourth; the person entitled to the legal share may be 
 deprived even of his fourth by disinheriting him in those cases provided for by 
 the law. The "Petrus" does not speak of a fourth share for the benefit of 
 the brothers. It does not require that this should be left "jure institutionis." 
 — Italy: Crespo de Valdaura, "Obs.," 24 (does not e.xist in Aragon). 
 
 * Cf. Romanists, such as J. Faber, etc.; Serres, II, 17; Julien, "Gom. s. les 
 Statuts de Prov.," I, 483; Henrys, "CEuvres," see Table; R. de Lacotube 
 (bibl.); Roussilhe, op. cit. — Variations in the C'ustoms of the South. The 
 "querela inoff. test." and the action supplementary to the legal share ("God. 
 Th6od.," 2, 19, 4; "God. Just.," "de inoff. test."," 30) are both admitted. 
 "Bourg.," 1459, 7, 3 (the legal share should be left as a part of the right of 
 
 741
 
 § 51G] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 unknown to the Germanic law and to the very old Customary law.^ 
 It was introduced in the countries of Customs towards the middle 
 of the thirteenth century,- to be made use of in cases where, the 
 deceased having few personal belongings or having none at all, the 
 reservation was nothing or else was insignificant. By giving " by 
 devise all his possessions to strangers and nothing at all to his 
 children," if the latter are poor and if the testator has nothing to 
 reproach them with, he is lacking in the "officium pietatis," in his 
 duty to support them.^ "One should assist one's heirs because of 
 compassion." But it was not necessary in order to do this to an- 
 null the will entirely; ^ they limited themselves to revoking it in 
 
 the appointment of the heir under penalty of annuUing the will). Cf. "L. 
 Rom. Burg.," 45. On the contrary, the "Cout. de Bergerac," 1322, only 
 admits the supplementary action: Serves, II, 18; "Bayonne," 11, 9; "Bord 
 N. C," 57, 63, 75; Guyot, " Preterition." — Restrictions with regard to daughters 
 who have received a marriage portion and who have not always a right to 
 their legal share: Jarriand, p. 254; Auffroy, p. 665. — Appointment for a 
 small sum: "Montpellier," 55. (the childi-en must be contented with this). 
 "Toulouse," 123, a, b, c, d, ed. Tardif: the mother can disinherit her chil- 
 dren, the father must leave them at least 5 sous (in order to show that he 
 has not forgotten them): Tardif, "Dr. Priv6 au XIIP s." p. 68 (error); La- 
 bourt, XI, 3; Sole, 26, 3; "Metz," 8, 8; Henrys, 5, 4, 41; "Dec. Cap. Tolos.," 
 438. "Biscaye": a tree, a "real," or a tile. — Some Customs of the South 
 organize a true reservation: "Bord. A. C," 59, 94, 145; "N. R. H.," 1890, 400. 
 — Italy {Pertile, IV, 105): the Customs often do away with the legal share 
 ("Aoste," V, 9, 53: "In this country there is no form or image of the legal 
 share"); but they do not allow the sons to be left out, and the mother can- 
 not take from them; in Venice the legal share consists of one-third of the 
 possessions. 
 
 1 P. de Fontaines, 34, 10: "It would be too cruel and inhuman for anybody 
 to say that a father could give all his chattels, movables and jointly acquired 
 property to any one of his children that he wished . . . this would be con- 
 trary to the written laws." Here one sees at once the imprint of the Roman 
 system. Cf. also Beaumanoir loc. cit. At Liege a customary third part, Britz, 
 p. 726. Cf. also P. de Fontaines, 34, 1 et seq. The legal share was all the 
 more necessary for the younger children because the right of primogeniture 
 left them with very little. Boissonade, p. 307. — Cf. "Cout. Not.," "Et. de 
 St. Louis," I, 10. 
 
 ^ P. de Fontaines, 34, 30; Beaumanoir, 12, 17 et seq., 37; 70, 5; "Jostice," 
 p. 225; "Or. Cout.," II, 40 (p. 364); "L. d. Dr.," no. 931; Boutaric, I, 103, 
 and Charondas' notes (Order of 1558, 1583, etc.); "A. C, Paris," silent; "N. C," 
 298 (one-half of the hereditary share of each child); Dumoulin, "Cons.," 
 29, 35; Lauriere, Ferriere, on "Paris," 298; de Guenois, "Conf. des Cout.," 
 ibid.; Kohler, p. 272; see Guyot, R. de Lacombe; Pothier, "Don. entre vifs," 
 212. — Cf. the dower of children; see Guyot, § II; " Normandie," 399 (customary 
 third, fitting marriage). 
 
 ' P. de Fontaines loc. cit.; Ricard, "Don.," no. 1463. 
 
 '' P. de Fontaines, 34, 10; Beaumanoir, 12, 20. Cf. "querela inoff. test." 
 at Rome, Girard, p. 857; and in countries of written law annulment of the 
 will in case the persons entitled to the legal share are passed over. " Ord." of 
 1735, 51 et seq. In countries of Customs the person entitled to the legal 
 share has never any right to anything excepting his legal share. Cf., how- 
 ever, provisions "ab irato." As to Germany, see Stobbe, V, 238. — Juris- 
 })rudence, at least after the sixteenth century, had no difficulty in admitting 
 of actions for the annulment of wills for the benefit of the heirs because of 
 
 742
 
 Topic 7] RESERVATION AND LEGAL SHARE [§516 
 
 part for the benefit of "needy near relatives," that is to say, 
 descendants and ascendants,^ or even in the sixteenth century de- 
 scendants alone.^ They were given a right to maintenance affecting 
 the movables and acquests, and this right, which was not very 
 exact at first, became fixed after the manner of the Roman legal 
 share. The judge determined the amount (during the period of 
 Beaumanoir) in such a way that the " heirs could live reasonably 
 and have their maintenance according to their condition in life." ^ 
 Differing in this from the reservation, which tends to keep the pos- 
 sessions in the family, the legal share is to be accounted for by the 
 duty between near relatives of mutual assistance; it is the supreme 
 accomplishment of the obligation to support,^ In the fourteenth 
 century the amount seems to be fixed by custom at half of the 
 movables and property acquired jointly, at least if one* is to be- 
 lieve the "Grand Coutumier de France"; ^ this figure is found once 
 more in the sixteenth century in the Custom of Paris.^ If the 
 legal share was impaired, the reduction affected gifts "^ as well as 
 legacies, so as better to assure maintenance to the one who had a 
 right to it. Conversely, the right to the legal share only existed 
 
 undue influence or suggestion, by connecting them with the Roman law: 
 M. Bernard, "Obs. de Droit," p. 593; see Ferriere, Guyot; Domat, 3, 1, 5, 25; 
 Pothier, "Don. test.," no. 96; Furgole, "Test.," 5, 3. " Ord." of Aug., 1735, 
 Art. 47. As the Civil Code is silent on this subject, a wiU could only be an- 
 nulled to-day for obvious fraud. 
 
 1 P. de Fontaines, 34, 11; Beaumanoir, 12, 20. Cf. exclusion of ascendants 
 from fiefs and personal belongings: Glasson, "Inst. Anglet.," II, 275. 
 
 2 "Paris," 298; Declaration of Feb., 1731, 34 et seq.; see Ferriere (bibl.). 
 In countries of written law there is a legal share for the benefit of ascendants 
 (one-tliird) and even for the benefit of brothers and sisters if the deceased has 
 appointed as heir a "persona turpis." Special jurisprudence of the Parlia- 
 ment of Toulouse, ibid., Argou, II, 13; Boissonade, 288. 
 
 ' Beaumanoir, 12, 37; 70, 5. Elsewhere it is suggested that the stranger be 
 given the same share as the child, Beaumanoir, 12, 19; P. de Fontaines, 34, 10. 
 
 * The obligation to support existing between relatives is connected with 
 the Roman law by our old authors (see Ferriere, bibl.); "Tract, univ. jur.," 
 VIII; Surdus, "De Alimentis"; Ferraris, "Bibl. Canon.," see "Alim." Also 
 Romanists, such as Voet, etc.; F. de Vizcaya, XXIII, but it was also included 
 in the old Customary law. Theses, for example, Geny, etc. 
 
 * "Gr. Cout.," II, 40 (p. 364) : a text standing by itself; does it contemplate 
 the disposal of his or her share of the community made by one of the 
 spouses? 
 
 6 "Paris," 298. Cf. "Auth. de triente et semisse"; "Nov.," 18, 115, 
 followed in countries of written law and in some of the Customs ("Reims," 
 "Melun," etc.); "Petrus" I, 10. 
 
 ^ Reduction in the following order: "universal " legacies (or general legacies, 
 no distinction being made), special legacies, gifts "inter vivos" or marriage 
 portions (see Guyot, 8, 2), beginning witli the most recent one (even gifts to 
 the Church). As to the appointment by contract, see the " Ord." of 1731, 34, 36. 
 Controversy in case of the insolvency of the donee. The real action against 
 third parties who have acquired part of the inheritance. The legal share 
 should be paid in kind. 
 
 743
 
 § 51G] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 in case the reservation were insufficient ; ^ if four-fifths of the per- 
 sonal belongings were equal to a half of all the possessions (in- 
 cluding personal belongings), the person entitled to the legal share 
 could claim nothing out of the movables and property acquired 
 jointly; if the four-fifths were equal to a quarter, the legal share 
 was a quarter; and so on and so forth. Moreover, when there 
 were several persons entitled to the legal share, they did not take 
 the half of the inheritance in one lump in order to partition it 
 among themselves, but each one of them was entitled to half of 
 his hereditary share, because the legal share was individual. 
 
 § 517. By what Right did one collect the Legal Share? ^ — As 
 heir? or as near relative, rather after the manner of a creditor? 
 Two systems here came slowly into existence, the first in countries 
 of written law, and even among many of the jurists of the countries 
 of Customs; the other was rare excepting in countries of Cus- 
 toms. — First System. " Legitima est pars bonorum, non heredi- 
 tatis." ^ — The "inheritance" includes the assets and the liabilities 
 which are inheritable; the "properties" are what is left once the 
 debts have been paid, or even that which is outside of the inherit- 
 ance, such as things already given away. He who has a right to 
 the properties is not seised of them like an heir, is not compelled 
 to accept the possession of the inheritance in order to claim them, 
 and is not held for debts "ultra vires." There is no need to accept 
 the inheritance in order to "take steps for the reduction" of gifts 
 and legacies. One may keep (by way of an exception) the legal 
 share with which one is invested, even though one has received 
 gifts from the deceased, provided one renounces all right of suc- 
 cession. So also one is authorized to keep, if there be occasion 
 to do so, the "disposable quantity" (by the same right as a 
 stranger to whom it had been given would have had); which 
 means that a man might cumulate his legal share and the dispos- 
 able quantity. The legal share is reckoned upon what remains 
 after having paid the debts and funeral expenses; the one entitled 
 to the legal share is not treated as a preferred creditor; but he is 
 
 ^ Beaumanoir, 12, 18; P. de Fontaines, 34, 10. 
 
 ^ Aubey and Rau, VII, § 6S2; Demolovihe, XIX, nos. 47 et seq.; Machelard 
 "R. h. Dr.," VIII, 682; XIX, 245 (reproduced in "Melanges"); Dramard, 
 "Bibliogr. du Code Civ." 
 
 3 Ricard, "Don.," 1463, contrasts the reservation, to which one has a 
 right as heir, and the legal share, "which is especially dependent upon the 
 fact that tlie beneficiary is one of the children and the obligation which is in- 
 cumbent upon a father to leave sustenance to those whom he has brought 
 into the world"; Polhier, "Don. test.," no. 189. 
 
 744
 
 Topic 7] RESERVATION AND LEGAL SHARE [§518 
 
 not held for the debts of the inheritance out of his own assets 
 (unless he has accepted the inheritance), nor out of properties 
 which have been given him by the deceased and are subject to be 
 reduced, for these do not form a part of the creditor's security.^ 
 — Second system. "Nemo legitimam habet nisi qui heres est." ^ — 
 The legal share is confused with the inheritance like the reserva- 
 tion whose complement it is. Thus one is seised of it b}^ opera- 
 tion of law; ^ one has a right to it only on assuming the character 
 of heir, and one is held for the debts "ultra vires" of the inherit- 
 ance unless one has accepted under the privilege of inventory. 
 But the logical consequences of this system were not all accepted, 
 even by its partisans. It was admitted that no one could claim 
 his legal share by way of an action for reduction of the possessions 
 which had been bequeathed, unless he assumed the character of 
 heir in the same way as though the reservation was concerned. 
 The child who had received a gift or a legacy should not have 
 been allowed to keep his legal share of the possessions which had 
 been given or bequeathed to him in case he renounced the suc- 
 cession; but he was authorized to do so in imitation of the first 
 system,^ and he was allowed to have the cumulation of the dispos- 
 able share and the legal share, ^ The person entitled to the legal 
 share did not have to contribute to the debts of the inheritance 
 out of the possessions arising from the reduction; for it was said 
 they only re-entered the inheritance in an entirely relative way, 
 with relation to the inheritance alone, and not with relation to 
 the creditors of the deceased.^ 
 
 § 518. The Revolution and the Civil Code. — Far from con- 
 templating the proclamation of the freedom to make a will (a 
 natural corollary, it would seem, of individual ownership), the 
 Revolutionary Assemblies came almost to suppress the will, — 
 the theoretical lawfulness of which they contested and the effects 
 of which they feared in practice, — to put in its place the new 
 
 1 The action for the attainment of the legal share does not make one the 
 heir. Cf., however, "Nov.," 115 and 92; Fiirgole, "Test.," c. 8. 
 
 2 Ricard, 1117; Dumoulin, on "Paris," 125, 1 (I, 884). Cf. "Nov.," 115, 
 c. 3. 
 
 3 Dumoulin, "Cons.," 36, 12; on "Berry," 18, 3; Boissonnde, 279. 
 
 * Pothier, "Don. entrc vifs," nos. 217, 226; "Don. test.," no. 189; see Guyot, 
 1, 3; 7, 3. The man who renounces in order to keep the gift that he has 
 received is included in the number uj)()n which the reckoning of the legal 
 share is based: Boissonnde, p. 292 (difficulties). 
 
 ^ Excepting in the Customs of absolute equality: "Paris," 307; "Orleans," 
 273; " Ord." of 1731, 34; Ricard, "Don.," 979; Lehrun, 2, 3, I; Pothier, "Don.," 
 217. — Dumoulin's theory; Ginoulhiac, op. cit.; Cuenot, p. 205. 
 
 6 Ricard, "Don.," 979; Lebrun, 2, 3, 1, 39 (Order of 1685). 
 
 745
 
 § 518] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 system which they had inaugurated.^ A memorable discussion 
 on the right to make a will took place in 1791 in the Constituent 
 Assembly.^ IMirabeau (in the discourse which death prevented 
 him from delivering), Tronchet, Dupont de Nemours .and Robes- 
 pierre upheld the thesis of Rousseau's ''social contract," that 
 "Ownership dies with the man."^ According to them, the right 
 to make a will is contrary to nature; the freedom to make a will 
 is also as injurious to the State, because it facilitates the for- 
 mation of the great domains of the aristoci:ary of nobles, as it is * 
 fatal to the family because it encourages the despotism of the 
 father over his children,^ and because it gives rise to jealousy and 
 hatred between the latter as a consequence of the inequality of 
 fortune. They did not, however, go so far as to propose that the 
 right to make a will should be abolished; but they wished to re- 
 duce the amount which could be disposed of, — Mirabeau to one- 
 tenth of the possessions, Tronchet to one-fourth. Cazales and a 
 few orators from the South defended the system of the countries 
 of written law with sufficient energy for the discussion to remain 
 without any immediate results. In their eyes the right to make a 
 will was as natural as the right to sell or mortgage, the effects of 
 which are not limited to the life of the owner. One only works 
 and economizes and acquires wealth in order to be able to dispose 
 freely of the possessions which one has acquired. This is an in- 
 dispensable attribute and one of the most efficacious sanctions of 
 the paternal power. Finally, the inequality of partitions arouses 
 
 1 Laferriere, "Hist, des Principes de la R^vol.," p. 222; Brocher, p. 291; 
 Boissonade, p. 350; Albert, p. 643; Sagnac, pp. 213, 350; Aron, "N. R. H.," 
 1901, 606. 
 
 2 Summing up in Aron, "N. R. H.," 1901, 478. Cf. "Arch. Parlem.," 
 XXIV. 
 
 ' Montesquieu, "Esprit des Lois," 26, 6, 15 (the father is not held bound to 
 leave his fortune to his children: he is under no further obligation to them 
 after he has brought them up). The theory of Grotius, according to wliich 
 intestate succession was nothing more than an implied will, was in favor of 
 the freedom to bequeath by will. 
 
 * The Revolutionary laws declared that immoral or unlawful conditions 
 inserted in gifts (contrary to the old law, by which these conditions were 
 annulled) or in wills should be treated as though they had never existed, in 
 order that individuals should not revive in their own interests institutions 
 which had been abolished: Laws of Sept. 5-12, 1791; 5th Brum., year II, Art. 
 1; 17th Niv., year II, Art. 12; Civil Code, Art. 900; Bartin, "These," 1887. 
 
 ' "He who only respects his father because he hopes for a greater share 
 of his succession comes pretty near to awaiting with impatience the time 
 when he shall take it, and pretty near to hating his father." Robespierre, 
 April 5, 1791. It is certain that good sons need no rewards, and that bad 
 sons will always be met with, whether or not there exists freedom to dispose 
 by will. But how many others there are upon whom the prospect of being 
 disinherited has its effect! 
 
 746
 
 Topic 7] RESERVATION AND LEGAL SHARE [§518 
 
 the industry of younger sons and allows of extensive farming, 
 which is only advantageous in certain localities. As we see, the 
 question of the right to make a will was bound up, in the thoughts 
 of the members of the Constituent Assembly, with the question 
 of the right of primogeniture and trust-entails.^ The ideas of 
 Mirabeau and the majority of the members were the inspiration 
 for the laws passed by the Convention, of the 5th Brumaire and 
 the 17th Nivose, year II. They allowed one to dispose by gift 
 or legacy only of one-tenth of one's possessions if the deceased had 
 heirs in the direct line, and of one-sixteenth if he had collaterals.^ 
 This minimum quantity could not be conferred upon one of the 
 heirs by way of a gift as a reference-legacy;^ this had the effect 
 of preventing parents from stripping their children for the benefit 
 of one of them, and it also favored the parceling of the prop- 
 erty. The right of granting as a gift was thus found to be re- 
 duced to almost notliing. In the reaction which took place against 
 the philosophical and political tendencies of the Constituent As- 
 sembly and of the Convention, this system was abandoned in order 
 to substitute for it a compromise between the rights of the in- 
 dividual and those of the family. This was the natural termina- 
 tion of the course of the old legislation, and one which rather 
 agreed with the common opinion. The Law of the 4th Germinal, 
 year VIII (March 25, 1800), allowed one to give or bequeath 
 one-fourth of one's possessions, if there were less than four chil- 
 dren; one-fifth if there were four; and so on, reckoning the donee, 
 in order to determine the quantity which could be disposed of, 
 as one child more; gifts by way of reference-legacy for the ben- 
 efit of those capable of inheriting were authorized. The Civil 
 Code had but to simplify these rules (Art. 913 et seq.). This law 
 gives the name of the "reservation" to the portion of the inherit- 
 ance which cannot be disposed of, understanding by this that it 
 is a fraction of the intestate succession, and that one must be the 
 heir in order to have a right to it. However, the modern institu- 
 
 ' The customary tradition in favor of the preservation of the possessions 
 in the family was first of all based entirely upon the idea of family joint owner- 
 ship; following this it found a support in the feudal system (right of primogeni- 
 ture); and finally it seemed to be justified to a certain extent by the interest 
 of the monarchy itself (entails). 
 
 ^ Law of the 5th Brum., year II, Art. 11; Law of the 17th Niv., j'ear II, 
 Art. 16 et seq. See for more details, and on the subject of canceling gifts, 
 the authors cited ante. As to disinheriting, Brandt, op. cit., p. 88, and Decree 
 of March 7, 1793. 
 
 ' Law of the 5th Brum., year II, Art. 9; Law of the 17th Niv., year II, 
 Art. 9. 
 
 747
 
 § 518] INTESTATE SUCCESSION, GRATUITOUS CONVEYANCES [Chap. IV 
 
 tion is not justified because of the old idea of the preservation 
 of possessions in the family, but by the duty which near rela- 
 tives have to sustain and help one another; in fact, the collaterals 
 have no right, the disposable quantity varies according to the 
 number and the quality of the heirs who are interested; and, 
 finally, the reduction affects gifts as well as legacies. This system 
 had only approval in France, until the school of Le Play ^ came 
 to claim the freedom to make a will as it existed in England,^ 
 with the object of restoring the paternal authority; and until 
 the socialist schools had attacked the right to make a will, and 
 even intestate succession, because they are hostile to individual 
 ownership.^ 
 
 1 Details in Boissonade, pp. 362, 664; Albert, p. 785. "These" upon the 
 family possessions or the homestead: Verdelot, Petiet, Serves, etc. 
 
 2 English law- Freedom of disposal by will, right of primogeniture and 
 substitutions (entails) : such are the most noticeable characteristics of the Eng- 
 lish system of succession of our own times. The freedom to dispose by will 
 has oiily existed since the time of the Tudors (Statute of Henry VIII allowing 
 one to dispose by will of one's tenures in socage; assimilation under Charles 
 II, of military tenure to socage tenure): Coke, "Inst.," II, 32. In the time of 
 Glanville (I, 7) it was forbidden to dispose of immovables by will; one could 
 only give "inter vivos" a reasonable portion ("quandam partem terrse") in 
 order to furnish a marriage portion for one's daughter or by way of " frankal- 
 moign," etc. The chattels were divided into three parts, — one for the widow, 
 another for the heirs, and the third for the deceased; it was only tliis last por- 
 tion which could be bequeathed (as to tliis division c/. "Share of the Dead," 
 § 490, supra, of this chapter). Among the Anglo-Saxons it was already men- 
 tioned by Bede: Pollock and Maitlayid, II, 247. Magna Charta, 1215, c. 20, 
 also gave the widow and children a right to a reasonable share: Bracton, 
 fo. 60 et seq. If one of the parties does not exist the division still takes place 
 by thirds, and not by halves. But Bracton tells us that even in his time in 
 London there existed a special custom allowing relatives to dispose freely 
 of their movable possessions: "Were it not for this," says he, "not a citizen 
 would seek to enrich himself; and his cliildren, who would be sure of having 
 the father's fortune, would live in debauchery." Cf. Pollock and Maitland, II 
 350. Thus it is, no doubt, that tluough special customs the rule of partition 
 into thirds came to be abandoned. Fitzherhert maintains still that the legal 
 share exists by virtue of the "consuetudo regni"; but after his time it is only 
 met with as an exception. As to immovables, for a long time they could 
 only be disposed of, at least by act of last will, by indirect methods and by 
 having recourse to the practice of uses. We have seen that from the time 
 of the Tudors this was quite otherwise. The freedom to dispose by will was 
 thus established in England through a reaction of a national character against 
 its institutions; but in uniting with entails and the right of primogeniture 
 it has lost some of its importance. Cf. Houard, "Anc. Lois," I. 244, 288; 
 "Cout. Anglo-Norm.," II, 136, 445; III, 272. 
 
 3 Mentha, "Le Droit de tester," 1891; Thiehault, "Thdse,'' 1899 ("Le Prin- 
 cipe de la Propri6t6 individuelle devant I'Assembl^e Constituante"). 
 
 748
 
 Topic l] 
 
 PRANKISH PERIOD 
 
 [§519 
 
 CHAPTER FRTE 
 SYSTEM OF PROPERTY BETWEEN SPOUSES 
 
 Topic 1. Frankish Period. 
 
 Topic 2. Dower and Other Rights by Survivorship. 
 
 Topic 3. Systems without Community. . 
 
 Topic 4. Systems of Community. 
 
 Topic 1. Prankish Period 
 
 § 519. System of the Husband's 
 "Mundium." 
 
 § 520. "Pretium Nuptiale" or Ger- 
 manic Marriage Portion. 
 
 § 521. The Gift of the Morning or 
 "Morgengabe." 
 
 § 522. Roman Marriage Portion, "Fa- 
 derfium," "Maritagium. 
 
 § 523. Rights of the Husband during 
 the Marriage. 
 
 § 524. Dissolution of Marriage. 
 
 §525. The Same. — (A) The "Mor- 
 gengabe." 
 
 §526. The Same. — (B) The "Pre- 
 tium." 
 
 § 527. The Same. — (C) The Disposal 
 of the Share brought by the 
 Wife. 
 
 § 528. Rights of the Wife over Pro- 
 perty acquired jointly. 
 
 § 519. System of the Husband's " Mundium." — Just as in 
 the old Roman law, where the woman was "in manu mariti," so 
 in the old Germanic law she found herself, body and possessions, 
 under the "mundium" of her husband; ^ this was a natural con- 
 sequence of the old organization of the family.- In proportion as 
 the latter gives way, — and there is scarcely need to say that 
 evolution has varied according to peoples, and we are here too 
 often limited to systematic outlines, — the rights of the woman 
 come to light, little by little. Sometimes, as in the Roman law, 
 certain possessions are taken out of the husband's power {separate 
 
 1 "Cod. Dipl. Langob.," I, 134, no. 74 (in 769); "Cartul. Lang.," no. 16; 
 TMvenin, no. 48. The Lombard law here shows us a belated phase of evolu- 
 tion; it is in this form that we make use of it; we do not pretend, as we have 
 been reproached with doing, to generalize its solutions in order to extend 
 them absolutely to other barbarian peoples: Brandileone, "Arch. Giur.," 
 67, 2. 
 
 2 Cf. especially as to the evolution of the Germanic law, Heusler, § 134 
 (bibl. and discussion of systems). The vigorous synthesis that is found 
 there shows how hard the problem is and how far we are from being in accord 
 as to the details, and even as to the whole. 
 
 749
 
 § 519] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 maintenance); sometimes there is formed a partnership of pos- 
 sessions between the spouses, which is more or less extensive 
 {community of possessions); in the former ease the rights of the 
 husband are restricted to certain possessions; in the second case 
 they extend over all the possessions. In the primitive system/ 
 which is a system without community, there can scarcely be any 
 question of the possessions of the wife; there only exists one in- 
 heritance, which is in the hands of the husband. But from a very 
 early time — from the time of the establishment of the barbarians, 
 it would seem — three classes of possessions over which the 
 woman has claims are distinguished: the Germanic marriage por- 
 tion, the gift of the morning, and the marriage portion in the 
 Roman sense, or the share brought by the wife.^ 
 
 § 520. " Pretium Nuptiale " or Germanic Marriage Portion.^ — 
 
 1 We shall not reconsider the celebrated passage of Tacitus, 18, which hag 
 been so widely discussed. Cf. "Acad. 16g. Toulouse," 1900, 169. And as 
 opposed to it: Lefebvre, II, 354; Meynial, "N. R. H.," 1898, p. 165 (an interest- 
 ing analysis of the old Germanic epic poems, the "Eddas," "Gudrun"); I dare 
 not generalize and come to the conclusion with the author that "the woman 
 keeps her possessions and can leave her husband at her will." Brunhild as 
 well as Fredegonde seem to me not to come under the general rule. Cf. as 
 to the Celtic law, Collinet, "R. Celt.," 1896, 320. 
 
 2 One finds a matrimonial system which recalls that of the barbarian 
 laws in the Babylonian Code of Hammourabi, about 2250 B.C.: "Mem. 
 de la D616g. en Perse," IV; "Textes Elamites," 2d series, by V. Scheil, 1902; 
 Winckler, "Gesetze Hammurabis," 1902; Dareste, "J. des Sav.," 1902; Meiss- 
 ner, "Beitr. z. altbabylon. Privatr.," 1893; "Beitr. z. Assyriologie," 1898; 
 "N. R. H.," 1886, 113 (the notes of Bunanitun); G. Cohn, "Gesetze Hammur- 
 abis" 1903. 
 
 3 "Dos," and afterwards, at least in the ninth century {Thevenin, nos. 175, 
 179; "Capitul," see Index "Dotalicium," " Dotarium," "Doarium"). "Dona- 
 tio nuptialis," " sponsalitia largitas," " sponsahcium." "Antifactum" (ante- 
 nuptial gift); Thevenin, no. 48, " Wittemon," " widem" ("Burg."), "Weotuma" 
 (Anglo-Saxon), "witthum" in the later law, cf. the Gothic "vidan," to bind; 
 "wette" in modern German. Cf. "vidnum, Meta" (Lombard), cf. "Miethe," 
 "Lohn," modern German; " medfio " means "meta-feo" ("pecus"); " Munds- 
 ket" (Prisons); "Scaet," "ceap," "gyft" (Anglo-Saxon, meaning "pretium." — 
 "Tanado," "tandono" (etymology? Brunnerop. cii., p. 547) only in the Prank- 
 ish formulae: Marculfe, II, 15, 16; Merkel, 15, 17, 19, 22; Bignon, 6; Zeumer, 
 "N. Arch.," VI, 33. — "Arrhse," Thevenin, no. 135; "L. Wis.," see index; Du 
 Cange, id. Later Catalonian documents (" screix," meaning increase) — " Oscu- 
 lum," Roman custom of betrothals: "Cod. Th6od.," 3, 5, 5 (6) and Godefroy, 
 on this text; Terhdlian, "de vel. virg.," 10. Syrio-Roman book, 45; Mitteis, 
 "Reichsr.," 225; Roziere, no. 219; Zeumer, "Porm.," p. 163; Thevenin, no. 
 177; F. Viejo, 5, 1, 4; "oscle," "oclage," "ousclage"; see Ragueau, Guyot; 
 Viollet, 421, 810; Laboulaye, 130; Esmein, "M61.," 62; Meynial, "N. R. H.," 
 1896, 527; Stouff, "N. R. H.," 1887, 249. Tacitus, 18; Tertullian, "ad uxor.," 
 2, 8; "Nov. Th6od.," I, 14, 1, 4 (gifts "ante nuptias," as contrasted with 
 the "Altera dos"); Papien, 21, 3; "Burg.," 62, 2; "Wis.," 3, 2, 8; 5, 3; 
 6, 1; cf. 4, 5, 2; "Ep. ^Egid.," 3, 5, 1 (registration of marriage portion); "L. 
 Rom. Cur.," 24, 20; 26, 1, etc.; "Sal. Cap..extr.," 7, 8; "Rib.," 37; F. Angers, 
 1 ("Dos," meaning "libellus dotis"). Brunner, "Prank. Rom. Dos," 546, 
 shows how the word "dos" has changed in its meaning and is used in the 
 
 750
 
 Topic l] FIL\NKISH PERIOD [§ 520 
 
 (A) This is the purchase price paid by the husband to the relatives 
 of the wife on the occasion of the betrothals in the primitive law.^ 
 It belonged absolutely to the relatives, and the wife had at first no 
 claim over it; from her husband she received the gift of the morn- 
 ing; from her relatives, a few articles of clothing or ornament; 
 these constituted her entire assets. — (B) But the law of the sec- 
 ond stage ^ reversed the roles by giving the woman all or a large 
 part of the "pretium," ^ which was changed into a marriage por- 
 tion (called "ex marito"); whereas the relatives only had a 
 small portion, or were even reduced to the symbolical price, such 
 as the sou and denier among the Franks.'* The providing 
 of a marriage portion is none the less always considered as 
 a requisite condition of the validity of the marriage; the wife 
 whose husband has not given her a marriage portion is only a con- 
 cubine; and the Church compels this doctrine to prevail, so much 
 so that the law of the Ripuarians ^ and a few other barbarian 
 
 barbarian texts to designate the possessions given by the husband to the 
 wife at the time of the marriage; he has especiallj^ insisted upon the custom 
 of the Lower Empire, — aheady pointed out by Esmein, "Mel.," p. 66, — 
 which was to appoint as one's marriage portion the antenuptial gift: "Cod. 
 Theod.," 3, 5, 13; "Nov. Theod.," II, 14, 1, 3 (in 439). Thus is to be ac- 
 counted for the precept of Valentinian III, "Nov.," 34, 9; and of Majorien, 
 "Nov.," 6, 9, according to which the marriage portion should not be less than 
 the antenuptial gift. Cf. "Wis.," 3, 1, 5; Brandileone, "Don. pr. n.," 1892; 
 "Arch. Giur.," 67, 2. 
 
 1 "Sax.," 40; "Bai.," 7, 6; "Wis.," 3, 2, 8; 4, 6; "Burg.," 12; "Alam.," 
 54,2; " iEthelbert," 77,83; "Ina," 31; Cassiodore, "Y&r.," 4:, 1; Procope,"De 
 B. G.," IV, 20; Isidore, "Orig.," I, 24; Gntmn, "R. A.," 421. Cf. "mun- 
 dium" and "meta" in the Lombard laws: Fertile, III, 314; "mundr" in the 
 Scandinavian law: Dareste, "Etudes," 348, etc.; Glasson, "Inst. Anglet.," 
 I, 116; Theses: Roche, 1899; Lafourcade, 1902; J oly, "Dr. familial dans I'ls- 
 lamisme," p. 79. 
 
 2 A very irregular formation, made with hesitation and survivals, and of 
 very diverse dates according to locahty: Braiidilione, "Arch. Giur.," 67, 2. 
 
 ^ Marriage portion conferred by delivery (Roziere, 220, 228; Stouff, account 
 of the "Rapyjolst. Urk." in the "Arm. de I'Est," 1901; delivery of the marriage 
 portion to the wife with a wisp of straw, with the hands and the mouth, pub- 
 licly upon the road of the empire) or "per cartam": "Rib.," 37; Roziere, 
 219 et seq. ("Libelh dotis"). Cf. Brunner, op. cit., and "Rom. und Germ. 
 Urkunde," 1880. Necessity for the "gestis alligatio" for the antenuptial 
 gift, and even for the marriage portion, contrary to the Justinian law, which 
 even dispenses with the necessity for registering the antenuptial gift: "Cod. 
 Th6od.," 3, 5 ("Int." and "Epit."); " F. Andec," 1 ("N. Arch.," XI, 328); 
 "Sen.," 39, 40; "Bitur.," 15; Roziere, 221 et seq. 
 
 * " Burg.," 66 (partition by thirds if the wife has neither father nor brothers) ; 
 86, 2; 62; 69; 42; 52; F. Lindenbr., 75; "Rib.," 37; "Alam'.," 55; "Bai.," 14, 7; 
 "Cnut," II, 74; "Alfred," 12; "Roth.," 178 and on "Liut.," 89, 114, 126 
 et seq. Under Rotharis the wife has a right to the "meta" as an exception; 
 under Liutprand, as a general rule, and then her parents only receive a sym- 
 boUcal price (4 deniers: Fumagalli, "Cod. dipl.," 69, in 853); Rive, "De 
 dote," 1852; Brandileone "Arch. Giur.," 67, 2. 
 
 * "Rib.," 37, 2; 50 sol {cf. "Wergeld" of 200 sol, and "Rib.," 36, 11: 25 
 
 751
 
 § 520] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 laws ^ established a legal marriage portion if there were no mar- 
 riage portion given by agreement. The custom of the marriage 
 portion "ex marito" is to be accounted for ^ outside of the Roman 
 
 head of cattle or 4 horses, etc.); "Alam.," 55, 3: 40 sol; "Bai.," 14, 6 et seq.; 
 7, 14. On the "justicia" of the Bavarian law cf. Adler op. cit., and account; 
 given hy Br uniier. Brunner, "Z. S. S., G. A.," 1895,231; "Forsch.," 482; 
 "Fr. r. Dos.," 569 et seq.; "Festg. f. D.," 41 et seq., maintaias that among the 
 Salians in the absence of a special agreement the marriage portion is equal 
 to one-tliird of the possessions (movables or immovables) of the husband, 
 and that the word "tertia" is even the technical term designating this cus- 
 tomary marriage portion: Pardessus, "DipL," no. 179 (sixth century); Mar- 
 culfe, 11,17; Thevenin, nos. 53, 175, 179 (in 833, etc.); "Cart. Langob.," 
 "M. G. H., L. L.," IV, 595 ("tertia," marriage portion of the Salians, and 
 "quarta," marriage portion of the Lombards). In the "Cap. extr." of 
 "L. Sal.," 7 and 8, the marriage portion of 62 "sols" or one-half, is per- 
 haps the customary "tertia," for it seems that it is equal to one-third of 
 the "Wergeld," and the "Wergeld" itself corresponds to the value of 
 a free man's share of land ("Hufe"). According to Ficker, III, 376 
 et seq., the normal marriage portion is one-half. Heusler, II, 310. It 
 is curious that this quantity of a third should be exactly equal to the 
 right wliich the widow has over acquests. Cf. post, " Dower of One- 
 third," and ante, "Share of the Dead": "Anc. Us. d'Anjou," ed. Marnier, 
 § 75. 
 
 1 If there is no marriage portion, then there is no marriage, and the chil- 
 dren are illegitimate: Mojorien, "Nov.," 6, 9 (in 458) (Oriental precedents, 
 Mitteis, "Reichsr.," 225). Although abrogated by Severus in 463, the rule 
 was applied in Gaul. Letter from Leo the Great to Rusticus of Narbonne 
 in 458 or 459 {Mansi, VI, 405), received in "Capit.," VII, 105 (VI, 133; 
 VII, 179, 389, 463; 4, 2), in Gratian, 2d p., C. 30, q. 5, c. 6 (pretended Council 
 of Aries, ante, Chap. II, § 101): " Nullum sine dote fiat conjugium." Mar- 
 jorien had in mind the Roman marriage portion; Pope Leo, the antenuptial 
 gift "in dotem redacta," the later ecclesiastical sources, and the Germanic 
 marriage portion (up to the twelfth century): "Wis.," 3, 1, 9 (Eswig); 12, 3, 
 8; Papien, 37; "Cod. Theod.," 3, 7, 3. The "Libelli dotis," Roziere, nos. 
 2i9 et seq., include every sort of conferring of marriage portion by the husband 
 upon the wife. According to the Germanic conception of marriage, if there 
 were no betrothals there could be no regular union, or, at any rate, no honor- 
 able union: Dareste, "Etudes," 309, 324. 
 
 2 The antenuptial gift of the Lower Empire is derived from the very com- 
 mon usage of the giving of presents by the husband to the wife before the 
 marriage; this usage itself originated in the marriage by purchase. Why 
 did it become generally accepted, and why did it grow into a regular insti- 
 tution? Cf. Esmein, "M61.," p. 58; Mitteis, "Reichsr.," p. 256; Larocque, 
 "Le Don du Fianc^," "These," 1898; Lefebvre, II, 223; Meynial, "N. R. H.," 
 1897, 134 (scarcity of paraphernaUa) ; Dareste, "Etudes," 41. The Roman 
 practice was readily blended with the Barbarian law, which, like many of 
 the old legislations, transformed the purchase price into a marriage portion 
 for the benefit of the wife. The preambles to the formulae conferring mar- 
 riage portions invoked the "Lex Romana" and the "consuetudo pagi," 
 which were in accord with one another in spite of the divergence between 
 their sources. Cf. Bachmnnn, "Corpus juris Abessinorum," 1890. Dareste, 
 "Etudes," 4, etc.: the marriage portion given by the husband is met with 
 in Egypt (with the supremacy of the wife in the household which greatly 
 scandalized the Greeks), among the Jews under the name of "Khetouba" 
 (a minimum of 200 "zouzes" or deniers for the daughter, and 100 for the 
 widow, Talmud), among the Arabs, among the Hindus, and in the Cau- 
 casus, where since 1866 the father gives the daughter one-third of the price 
 that he has received for her: Hanoteau and Letourncux, "Kabylie," II, 
 155. 
 
 752
 
 Topic l] PRANKISH PERIOD [§ 520 
 
 and barbarian precedents in two ways:^ (a) having become a 
 widow, the wife would have found herself without resources at the 
 mercy of the husband's heirs, and almost in the same situation as 
 a slave; the marriage portion from the husband assured her better 
 treatment and, if need be, provided for her maintenance; (6) under 
 a system where all the possessions of the wife passed to the hus- 
 band, where they were all merged by the marriage relation, and 
 where the woman had no paraphernalia, the Germanic marriage 
 portion seems like an equitable compensation for the benefit of the 
 wife; ^ the husband appropriates for her a portion of his estate 
 in return for what he gains over her possessions or with the 
 assistance of her possessions; this motive became more pressing in 
 proportion as the rights of inheritance of the wife assumed im- 
 portance and a portion of the acquests had to be conferred on her. 
 Originally, undoubtedly, the marriage portion "ex marito" only 
 consisted in movable objects;^ but deeds and formulae contain 
 long lists in which there figure, together with gold and silver, 
 horses and clothing, pieces of land, and even domains with the 
 slaves who cultivate them.'* Among the Lombards and the Visi- 
 
 1 These reasons seem to us to result from an analysis of the institution. 
 Formulae and deeds simply consider the marriage portion as the necessary 
 consequence of marriage, a requisite condition for its regularity (I marry 
 you, and that is why I give to you). Cf. Roziere, no. 240; no. 238. The 
 expression, "pro amore dulcitudinis" (Roziere, no. 229, 232), etc., alludes to 
 the "affectus maritalis," — that is to say, to the lawful marriage excluding 
 concubinage. Cf. Lefebvre, II, 426; Heusler, II, 294: the husband shows by 
 these means that his wife shall be "loco filiae, socio vit£e." In Norway the 
 increase of the marriage portion or the "tilgiof" conferred by the husband 
 generally consists of one-half of the marriage portion. The Jewish "Khe- 
 touba" seems intended to prevent the husband's abusing his right of repudiat- 
 ing his wife. 
 
 2 This is the idea which could very well be expressed by the word "tanodo" 
 of the Frankish formulae if one were to accept the reading of "tanto dono" 
 in certain documents in the sense of a gift that is the equivalent of the marriage 
 portion. It is too bad that neither this reading nor tliis meaning seems to 
 be correct. But, leaving aside all question of terminology, it is nevertheless 
 true that the Germanic marriage portion has become the "quid pro quo" 
 for the Roman marriage portion; it is quite certain that the prospect of having 
 a large marriage portion must have determined the betrothed man to show his 
 generosity. However, they did not go so far as to say that the two marriage 
 portions must be equal, and the Germanic marriage portion still continued 
 to be given before the marriage, in the same way as the Roman antenuptial 
 gift, to which it was similar. Cf. "Wis.," 3, 1, 5; Caesar, "Bell. Gal.," VI, 20. 
 
 3 Cf. the exclusion of the wife from succession to the land. Originally, 
 the wife only has a marriage portion consisting of movables and a right to 
 the "Beisitz," that is to say, a right not to be expelled from the conjugal 
 hearth. Post, "Dv/elling-house." 
 
 / Rozihre,nos. 219 et seq.; Thevenin, noa. 177 (11 "villje"), 174. Gals- 
 winthe receives five towns in Aquitaine, among others, Limoges, Cahors 
 and Bordeaux ("Capit.," ed. Bor., I, 13). The Jewish "Khetouba" was 
 only actually paid at the time of the dissolution of the marriage. 
 
 753
 
 § 520] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 goths a maximum which the marriage portion could not exceed 
 was fixed in imitation of the testamentary " disposable quantity."^ 
 § 521. The Gift of the Morning or " Morgengabe " ^ consisted 
 originally in merely a few simple gifts ^ which it was customary 
 for the husband to give to the wife the day after the marriage.^ It 
 consisted, on the part of the husband, in a ratification of the con- 
 jugal union, a renunciation of the right to repudiate his wife in 
 cases where according to the biblical expression she did not find 
 favor before him; these cases were those in which she had undis- 
 closed defects,^ and one of the latter among many of the primi- 
 tive peoples is the loss of virginity; thus, they sometimes called 
 the "Morgengabe," "pretium prtemium virginitatis." ^ In the 
 Christian reaction against the facility of divorce, the gift of the 
 morning, losing its early reason for existing, was changed into 
 something which corresponded to the Germanic marriage por- 
 tion; ^ like the latter, it included movables and immovables, and 
 
 1 "Liut.," 7 (in 717) ("morgincap" of one-fourth or more), 88 ("meta" 
 of 400 or 300 "sols" at the most), according to the position of the interested 
 parties: Fertile, III, 316; "Wis.," 3, 1, 5 ("Chindaswind") in 645: one-tenth 
 of the husband's possessions. Cf. "Ulp., Reg.," 15; Zeumer, "N. Arch.," 
 loc. cit.; Brandileone, "Arch. Giur.," 67, 2. 
 
 2 Greg. Tours, IX, 20: "tam in dote quam in morganegiba, hoc est matu- 
 tinaUdono"; "Rib.," 37; "^thelbert," 80; "Roth.," 199, etc.; see Dm Ca^i^e, 
 Haltaus. "Morgengabe" is feminine, but the barbarian laws say "ipsum 
 morgincap"; Thevenin, no. 178; Gengler, "De Morg.," 1843; Zedekauer, 
 "II Dono di Mattino" (Florence), 1886 ("Miscell."); Heusler, II, 297; 
 Schroeder, "Gut.," I, 106; Huber, IV, 380. 
 
 ' "Alam.," 52, 6: the amount of 12 "sols," and the wife establishes the 
 existence of it by swearing with her hand upon her breast: Huber, IV, 355; 
 "Sal.," 102, Hessels. 
 
 * Passing from hand to hand: "Rib.," 37. 
 
 6 The engaged man did not even know his betrothed as a general thing. 
 Cf. Mahometan customs. 
 
 8 Cf. Juvenal, VI, 199: "quod prima pro nocte datur." — As to the impor- 
 tance connected with virginity, cf. " Deut.," xxii, 14 et seq. Queer provision of 
 the Capitulary of 757, 10; "L. Walliaj," II, 20; Michelet, "Orig.," p. 58; " Tris- 
 tan et Iseult"; "Aethelbirth," 77; Westermarck, p. 341; Post, II, 94; Fertile, 
 111,317; Heusler, II, 298 (bibl.); "Alam.," 53. Widows were entitled to the 
 "Morgengabe"; however, some of the more recent Customs ("Augsbourg," 
 "Bdle") would not give it to them because of a hatred for second marriages; 
 when allowed to widows it is sometimes given the name of "Abendgabe," 
 or gift of the evening: Osenbriiggen, "Stud.," 76 (Switzerland); Amira, 
 "Rccht.j" 162. "Morgengabe" given by the widow to the man whom she 
 marries if he is not a widower: Huber, IV, 380. — Perhaps we must look upon 
 it as a sort of composition to be paid by the husband as a consequence of 
 the abduction. Heusler sees in it rather an honor that is done the wife, a 
 sign that she will not be treated as a slave, but as the mistress of the house 
 (the treasure of the " Niebelungen " was the "Morgengabe" of Kriemhilt). 
 Dareste, "Etudes," 108 (Persians); 288 (Sweden: a giving before 12 witnesses 
 and a price varying according to the station of the spouses); 324 ("Unfe" 
 in Norway); "Nouv. Et.," 239, 370 (Wales). 
 
 ^ The "Morgengabe" is met with in the case of irregular unions, thus 
 
 754
 
 Topic l] FIL^'KISH PERIOD [§ 522 
 
 not mere objects for the use of women; ^ it ended by becoming 
 merged with the marriage portion (together with which it was 
 made use of) in order to become dower.^ 
 
 § 522. Roman Marriage Portion ("Dos"), "Faderfium,"^ "Mari- 
 tagium." ^ — (A) The share brought by the wife consisted first of 
 all in clothing and ornaments exclusively used by women 
 ("rhedo")/ the only inheritance of which she could not be de- 
 prived. — (B) When she was recognized as having more exten- 
 sive rights over the paternal inheritance the share which she 
 brought was increased; over and above her trousseau she had a 
 marriage portion in the Roman sense.^ This is the "faderfium" 
 of the Lombards, the "maritagium" of the Anglo-Saxons. Some- 
 times her parents gave her her share of the inheritance ^ in 
 advance, at the time she was married, and sometimes she had 
 already received the inheritance to w'hich she had a right 
 as a consequence of the previous death of her father and 
 
 differing from the "pretium": "Roth.," 223. Cf. morganatic marriages, 
 ante. The "Schwabensp.," I, 20, makes it a privilege of the nobihty. 
 
 1 For real deUvery is substituted a writing. Among the Lombards the 
 "morgincap" should not be more than one-fourth (Adelg., 3: one-eighth) 
 of the present and future possessions of the husband; "Liut.," 7 (in 717), 
 103: prohibition against the husband's giving the wife more than she has 
 received "in diem votorum in mepfio et morgincap"; "Burg.," 24; 42, 2. 
 
 2 Lombard law: deeds of 833, "pro meta," i.e. "quarta"; 874, 875, etc. 
 "Form. Wisigot.," no. 20: conferring of marriage portion in hexameter verses. 
 "Tr. d'Andelot," 587: Galswinthe received towns "tam in dote quam in 
 morganegyba." Huber, IV, 380: a deed of 1282 ("dote seu dotalicio quod 
 vulgariter dicitur morgangaba"); however, there are survivals of it even to 
 our time, ib., 381; "Schwabensp.," 18. 
 
 3 "Roth.," 182: "fader," meaning father; "fio," meaning "pecus," 199, 
 201. 
 
 * "L. Henrici," I, 1, 3, 4, 70, 22; "T. A. C, Norm.," 3; Glanville, VII, 1; 
 see Du Cange. 
 
 ^ "Rhedo" (trousseau, cf. post, the German "Gerade"; Italy, "corredum"), 
 derived from "rat," meaning "supellex": "Thur.," 2, 4; 1, 7; "L. Fr. Cham.," 
 42; "Burg.," 51, 3 and 4; 86,1; 14, 6 and 14, 4. C/. "Sal.," 59; "Cap. extr.," 
 7; "Alam.," 55; Lupo, "Cod. Berg.," I, 529; Fertile, III, 312; Diimmler, 
 "Formclbuch," p. 96. In the fifteenth century the Dithmarscs (Fricsland) 
 still marry their daughters without giving them any marriage portion: Hano- 
 teau and Letourneux, "KabyUe," II, 162, 294; Du Cange, see "trosellus"; 
 Dig. "de leg.," 32, 32, 6. 
 
 * Was there a deUvery to the husband of the things comprising the mar- 
 riage portion? 
 
 7 "Roth.," 181, 182, 184 {Pappenheim, "Launcgild," p. 9), 186, 199, 
 201, 228; "Liut.," 1 et seq., 14, 64, 101, 113; "Aist," 1, 4, 5; Deeds, for ex- 
 ample c. 855; Fertile, III, 312; Schroeder, 305; Greg. Tours, IV, 27 (large mar- 
 riage portion of Galswinthe); VI, 45 (the marriage portion of Rigonthc, 
 daughter of Fr6d6gonde, carried in fifty carts); "Sal. Cap. extr.," 14; Mar- 
 culfe, II, 10. — Disinheriting in case of the daughter's marriage without the 
 consent of her parents: "Liut.," 119 (imperative provision); "Burg.," 12, 5; 
 "Alam.," 57 (misalliance). — Cf. Girls made heirs in default of male heirs 
 in the Greek law, Beauchet op. cit.; "Erbtochter" of the German law. 
 
 755
 
 § 522] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 mother.^ The progress made in the rights of inheritance of 
 women is one of the most important factors in the evolution of 
 the system of possessions between spouses. By making a sister 
 the equal of her brothers the wife was made more like her 
 husband. 
 
 § 523. Rights of the Husband during the Marriage. — In the 
 family communities such as those which existed under the Bur- 
 gundian law, the community of inheritance did not allow the wife 
 to have anything of her own (excepting, no doubt, the " ornamenta 
 muliebria"); her possessions were mingled with those of her hus- 
 band; products and lands served to increase the common assets.^ 
 Under systems which were less strictly those of the community 
 the husband's "mundium" carried with it consequences which 
 were similar in certain aspects and different in others.^ In ap- 
 pearance, at least, there was but one inheritance; the possessions 
 which composed it, whether they came originally from the wife or 
 the husband, were subjected to the administration and the enjoy- 
 ment of the latter. "* He had the power to alienate movables (ex- 
 
 * Ireland : the authority in the household belongs to that one of the spouses 
 who contributes the largest share: Dareste, "Etudes," 324. 
 
 2 Huber, "Hist. Grundlage d. ehel. Giiterrechts d. Berner Handfeste," 
 1884; "Gesch. d. Schweiz. Privatr.," IV, 3i9 ; Heusler, II, 301. The "com- 
 munis facultas" of the father and the children includes the share contributed 
 by the wife, which she can no longer withdraw; 14, 4 (cf. Huber, IV, 351, 3; 
 Schroeder, "Giit.," 299; Brunner, "Z. S. S., G. A.," 1895, 104); she has a 
 right to a portion, a child's share of the common property, cf. 24, 62, 74. 
 Cf. "Alam.," 91, 95, 53, 55; "Pactus,"3; Huber, IV, 352 (bibl.); Post, II, 150. 
 
 ^ Among the Arabs before the time of Mahometanism the wife was 
 purchased and formed a part of the inheritance; according to the Koran 
 she should give her consent to the marriage, she becomes the owner of the 
 nuptial gift, keeps the enjoyment of her personal belongings during the mar- 
 riage, and does not even contribute to the expenses of the household; she is 
 not subject to any authority on the part of her husband. When she becomes 
 a widow she takes by right of inheritance a portion of the husband's prope^t}^ 
 The Arabian wife has thus passed from extreme subjection to extreme lib- 
 erty. Dareste, "Etudes," 61. But we must not suppose that these rules 
 were applied in all the Mahometan countries. Cf., for example, Hanoteau 
 and Let., "Kabylie," II. 
 
 * "Burg.," 100: "Maritas facultalem ipsius mulieris" (Roman or Bur- 
 gundian) "sicut in eam habet potestatem, ita et de rebus suis habeat" (in 
 the absence of previous betrothals). Cf. XII, 61. This "Novella" ("N. 
 Arch.," 25, 285) is made for a period of transition (Roman marriage portion, 
 barbarian "mundium"). For M. Lefebvre, II, 442, this cannot be an over- 
 throwing of the old Burgundian law and the establishment of the husband's 
 power by virtue of the Christian ideas: Glasson, III, 211; "Burg.," 1, 42, 45, 
 etc.; "Cod. Euric," 223;" "Melanges Couture," p. 25; "Wis.," 2, 3, 6; 4, 
 2, 15; Zeumer, "N. Arch.," 24, 96; Schroeder, "Guterr.," I, 126; "Rib.," 74; 
 this "bit of text," as it is called by Lebfevre, II, 445, is very significant; 
 it states, in passing and as a foregone conclusion, that one can no more con- 
 tract with the wife of another person than one can uith a slave or a child, 
 obviously refei*ring to the customary organization of the family in order to 
 
 756
 
 Topic l] FIL\NKISH PERIOD [§ 523 
 
 cepting the "ornamenta muliebria").^ Every acquisition realized 
 during the marriage belonged to him,^ — fruits, harvests, or the 
 
 justify this statement. It is especially among the Salian Franks that 
 Lefebvre, II, 432, contests the existence of the husband's "mundium." The 
 example of Fr^degonde is of little value as proof (see ante, § 144, note 2, 
 Chap. II); her case was such an abnormal one that it needs to be justified in 
 the eyes of the Franks. But we admit that the "libelli dotis" {Roziere, 219 
 et seq.) furnishes him with a better argument by conferring upon the wife the 
 ownership, the enjoyment and the possession (either immediate or from the 
 time of the marriage) of the property established as a marriage portion by 
 the husband. No allusion is made to the "mundium" or to the intervention 
 of the husband in the administration or the disposal of these possessions. So 
 that the Frankish wife appears to be independent of the husband, having 
 separate property, with a distinct inheritance and interests, like the Roman 
 wife. Let us observe, however, that all the formulae are not identical; some- 
 times the spouses must have possession together, or the wife must have her 
 marriage portion if she survives; sometimes she has it at once, but only for 
 her life with a reversion to her husband or his heirs; sometimes she can do 
 as she wishes with it. Thus the wife's rights vary; but apparently her posi- 
 tion is always the same, and it is for this reason that we must not allow 
 formulae based upon Roman models to make too great an impression upon 
 our minds; they only express to a certain extent the law as practised by the 
 barbarians; this is clearly seen from the gaps in them and the absence of the 
 right to acquests, for example. Perhaps we should conclude from this that 
 it was legal to give the wife a "peculium" of her own, just as she had her 
 paraphernalia at Rome; but it would be a mistake to consider as common 
 law something which was only a rare exception and a copying of the civilized 
 man by the iDarbarian of the better class (for instance, gift of "villse" and 
 of considerable domains). Behind this deceitful veneer there exists, at least 
 for the masses, and no doubt also to a great extent in exceptional cases, the 
 old custom which submits the wife to the husband and does not allow her 
 to do anything without him. Furthermore, the conferring of the possessions 
 given to the wife does not necessarily imply a loss of their enjoyment by the 
 husband who gives them. The essential object of the "libellus dotis" was 
 to make the wife's right irrevocable; it was given the same name as the right 
 of a purchaser by making use of typical clauses {Roziere, 267 et seq.; cf. 159 
 et seq.); this does not mean that the wife had to act in the same way as a pur- 
 chaser; she would have had to lose her status of a married woman in order 
 to make that possible. Also, in " interdonatio " charters there is no mention 
 made of the marriage portion "ex marito": Roziere, 245 et seq.; to read them 
 one could not doubt its existence. 
 
 1 "Burg.," 51, 4. Here we have the germ of the "pecuHum," of separate 
 and personal belongings for the wife (English and German law). We have 
 just seen that perhaps as early as the Frankish period the wife also had, 
 as an exception, we believe, possessions of which she had the administra- 
 tion, and the products of which she kept. Such was the case of Fredegonde 
 (a very exaggerated case because of the character of this queen): Greg. 
 Tours, VI, 45; 10, 79. Cf. Lombards, Fertile, III, 313; Dareste, "Etudes," 
 325: In Norway the husband has the administration of his wife's possessions, 
 but the inheritance of each of them remains sei)arate, and the wife's inher- 
 itance consists of the marriage portion, the increase, the gift of the morning, 
 and everything that the wife acquires by inheritance or otherwise. If the 
 wife dies first the husband keeps the increase. Cf. ibid., 348 (Iceland). 
 
 2 Cf. "Roth.," 184; "Liut.," 57. Cf. post, "Partition of Acquests." How- 
 ever, Fr(5dogonde kept for herself the acquests due to her own labors, to 
 the income from her possessions, and to the gifts of her husband or third 
 parties. In mutual gifts between spouses the husband and wife each give 
 the other the acquests made during the marriage "quod pariter conlabora- 
 verimus"; Roziere, 245 et seq. 
 
 757
 
 § 523] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 products of work ("quod simul laboraverunt").^ When the share 
 brought by the wife was an immovable, a conflict took place 
 between the rights of the husband and the rights of the wife's 
 family;^ as a general thing, the husband did not have the free dis- 
 posal of them, any more than he did of his own immovables.^ Nor 
 was he authorized to deprive his wife of the rights which had been 
 conferred upon her under the form of the "pretium" or of the 
 "jNIorgengabe." ^ 
 
 § 524. Dissolution of Marriage.^ — The various possessions 
 which were united in the hands of the husband so as to form a 
 single estate, at least in appearance, were not always separated 
 on dissolution. The tendency of the Barbarian law is rather to 
 allow the community of possessions resulting from the marriage 
 
 1 CJ. "Rib.," 37, 3; "Alam.," 55, 2; "Wis.," 3, 6, 1; Greg. Tours, X, 29. 
 The wife's possessions, as well as those of the husband, must answer for the 
 debts of the latter: "Bai.," 1, 10; "Burg.," 65. Contra, "Ina," 57; "^thel- 
 stan," 6; "Cnut," II, 76. The wife's "Wergeld" belongs to the husband: 
 "Alam.," 51; "Roth.," 200. 
 
 2 C/. in the Roman law the husband as owner of the land included in the 
 marriage portion: "Burg.," 100. Among the Jews the marriage portion 
 and the "Khetouba" are administered by the husband during the mar- 
 riage. CJ. as to the Caucasus, the wife's administration: Daresle, "Nouvellea 
 Etudes," 239, 268 (Mongols: the wife freely disposes of her dower), 323 
 (Cambodia). 
 
 3 "Liut.," 22: with regard to her relatives or the judge, the wife who 
 alienates her property with the consent of her husband, "violentiam se pati 
 non reclamat " ; 29; Thevenin, nos. 58, 148; "Roisin," " Formvorschr. f . die Ver- 
 ausserungsgeschaf te der Frauen " (Lombard law), 1880 ("Unters." by Gierke); 
 Dareste, "Et.," p. 310. 
 
 * The wife's rights account for her frequent intervention in deeds made 
 by her husband {cf. children). Deeds (Schroeder, "Giit.," p. 130 et seq.); 
 773, the husband having made a delivery to his wife, both together deliver 
 to a third party the property that she has received; 775, the husband gives 
 what he has excepting the marriage portion conferred upon his wife; 774: 
 "O. et conjux mea H. donamus, hoc est quod donat conjux mea suam dotera 
 quam tradidi ilh ante diebus nuptiis"; "Rib.," 37, 3; during the marriage, 
 "conscripta" or "tradita" possessions have been used up ("simul consump- 
 serint"), the widow has no right to reclaim them, and undoubtedly no right 
 to demand an equivalent for them : Heusler, II, 314, 349; Thevenin, no. 134; 
 Huber, IV, 358: "ego" (wife) "et L." (husband) " conquisivimus " ; Heusler, 
 II 314; Lefebvre, II, 433. Cf. "Acts of the Apostles," v, 1: Ananias sells his 
 property jointly with Saphira. 
 
 ^ According to Brunner op. cit., the national Frankish law gave the widow 
 the o\vnership of the Germanic marriage portion, but an ownership which 
 was limited by the rights of the children if there were any, and if there were 
 none by the right of reversion that belonged to the relatives of the husband 
 who had made the gift; in case the wife predeceased the husband her heirs 
 had no rights to this property and the husband kept it; the "Morgengabe" 
 reverted to the donor after the death of the wife; as to acquests, they must 
 have belonged to both spouses together, excepting that they were partitioned 
 in the proportion of two-thirds to the husband or his heirs and one-third to 
 the wife. Moreover, the marriage portion established by contract must 
 have excluded the right to a portion of the acquests. Cf., however, "Festg. 
 f. Dernb." (right to dispose). 
 
 758
 
 Topic l] FRANKISH PERIOD [§ 524 
 
 to continue to exist.^ When the marriage is broken, the disposal 
 of the possessions varies, not only in different systems, but 
 according to the causes of the dissolution of the marriage, — ac- 
 cording to whether there are (or have been) children,^ or whether 
 that one of the spouses who survives shall remarry.^ We can 
 only give a brief summary of this complex subject.^ We point 
 
 ^ The German " Beisitz." Thus is to be accounted for the law of the Thur- 
 ingians which declared that the mother leaves the land to her sons, and to 
 her daughters the " Gerade." She is excluded from the succession to the land; 
 but, because of her right of "Beisitz" she takes the place, in fact, of her 
 husband at the head of the family patrimony. In Poland the widow keeps 
 the enjoyment of the possession so long as she does not remarry; if she does 
 • remarry she has no share in the inheritance, but she takes away her bed with 
 its bedding and any product of her own labor: Dareste, "Et.," 186; "N. Et.," 
 324; Glasson, "Inst. Anglet.," I, 125; Joly, "These," p. 132 (system of the 
 "Hadana" in Mahometan law). 
 
 2 Brunner, "Z. S. S., G. A.," 1895, 63, has shown the influence of the birth 
 of a child on the matrimonial system ("Kinderzeugen bricht Ehestiftung";. 
 In the very old law people are married "Uberorum quaerendorum causa," 
 and barrenness of the wife is a just cause for repudiation: "Bai.," 8, 14. 
 Charlemagne repudiates the daughter of Didier: "Mon. S. Gall.," Ill, 17; 
 Hincmar, in Migne, "Patr. Lat.," 125, 734. So long as there are no chil- 
 dren the marriage is only provisional, and it is not hard to see that a pro- 
 visional system of possessions must also correspond to tliis trial of a life in 
 common. Once the marriage has been sealed through the birth of a child 
 the pecuniary rights of the spouses are modified, even though the child should 
 die before the dissolution of the marriage. Thus, taking up the various 
 periods of the old law: (a) under the system of separate possessions the rights 
 of the husband accrue; he obtains the marriage portion in case he survives 
 (com-tesy of England); (6) the separation of possessions becomes changed 
 into a community; the limited community into an absolute community; 
 the survivor takes all the property (at least if there are no children at the 
 time of the death). Applications of this among the Frisians: 1st. Barbarian 
 law, "Pactus Alam.," 3, 1; "L. Alam.," 89 (the child has opened its eyes, 
 seen the roof and the four walls); "Bai.," 15, 8; "Sax.," 47; mhelhert, 78, 81; 
 "Burg.," 14, 3, 4 {Brunner, p. 104); "Gulathingslog," § 54. — 2d. Feudal 
 France, Normandy, England: a child screaming and crying, — post, "Rights 
 of the Survivor." — 3d. Sicily (Norman origin?). Absolute community par- 
 ticipated in by the children: V. la Mantia, "Consuet.," p. 6; Brunneck, 
 I, 81; II, 6; "Ass. d'Antioche," p. 47. — 4th. Artois, Flanders, Hainaut, 
 Vermandois: blood gift between husband and wife: "Gout, de Flandre," 
 ed. Liinburg-Stirum, III, 509; Faider, "Gout, de Hainaut," III, 353. — 5th. 
 Frisia, Westphalia, various parts of Germany, c/. Brunner, op. cit. — 6th. 
 Switzerland: Ruber, IV, 356, 437; "Placit gen. de Lausanne," ed. Salis, 
 p. 58; "Zfschw. R.," 1903, 226. — Brunner, p. 92 also sees in the period of a 
 year and a day a time of trial; Mitteis, "Reichsr., p. 224 (Egj-pt): if the wife 
 has not become pregnant at the end of this time the husband has a right to 
 repudiate her. Post, " Basis of the Community." 
 
 ^ The majority of the barbarian laws contemplated subsequent marriages, 
 and their pecuniary consequences: Brunner, "Sitzb. Ak. Berlin," 1894, 2, 
 1289 (Tit. 44 of the Salic Law on the "reipus" is only an imitation of the 
 Gallo-Roman practice, "Cod. Th^od.," 3, 7, 1; it is to be accounted for by 
 the idea of facilitating the marriages of widows, which the relatives of the 
 first husband might have an interest in opposing: "Roth.," 182; "Bai.," 
 14, 6 et seq.; "Jydske Lov.," 1, 8; "Gragas," II, 155, 162. Cf. "Sal," 72; 
 '■Gap. extr.," 7, 8). Moreover, the title dealing with the "reipus" was 
 never applied in practice: Capitulary of 819; Heusler, II, 308; Post, I, 185. 
 
 * Cf. Heusler, II, 306 (a study of the various barbarian laws in succession). 
 
 759
 
 § 524] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 out as a striking characteristic the appropriation of the posses- 
 sions of the spouses for their children; this will be found later 
 on embodied in the rule, "The dower of the mother is the 
 principal inheritance of the children." ^ 
 
 § 525. The Same. — (A) The " Morgengabe " returned to the 
 husband who had given it, because of its personal character,^ in 
 case the wife died or was repudiated for just cause. If the 
 husband died or the wife was repudiated without cause, she ac- 
 quired this gift absolutely.^ 
 
 § 526. The Same. — (B) The " Pretium" belonged to the hus- 
 band'* when the wife died before him or was repudiated for some 
 just cause,^ excepting that the rights of their children were not 
 affected, the result of which was that he was not allowed to make 
 an alienation of it. Sometimes, even, a duty is imposed upon him 
 to restore back the "pretium" during his life, when the children 
 have attained their majority.^ In case the husband dies, his widow 
 
 * Brunner, "Ft. r. Dos.," p. 568, only sees in the Merovingian capitularies 
 which deal with the marriage portion and second marriages a stamp of the 
 Roman law in its last stages (contrary to those who considered them as an 
 expression of the Frankish law: Heusler, II, 311): (A) Marriage with chil- 
 dren. The Roman legislation had ended by making family possessions of 
 the antenuptial gift and the marriage portion; the surviving spouse had the 
 enjoyment of them, but was not able to dispose of them: "Cod. Th^od.," 3, 8, 
 2, 3; "Nov. Theod.," II, 14, 1, 3 ("second marriages"); "Nov. Majorien," 
 
 6, 6, and "Severus," 1; cj. "Int. de Nov. Th.," II (even if there were no second 
 marriages). A "Nov." of Valentinian III, 34, 10, even compels the widower 
 to restore half of the wife's marriage portion to the children, unless they 
 attain the age of twenty years: "Ed. Th6od.," 54; Papien, 26, 2; "Wis.," 
 4, 2, 3; " Cod. Euric," 321; "L. Sal.," "Cap. extrav.," 7, 8. — (B) Marriage 
 without children. The system of partition by halves ("Nov. Valent.," Ill, 
 34, 8, c/. Mitteis, "Reichsr.," pp. 248, 252) is found once more in "Burg.," 
 24, 2, and "Wis.," 4, 2, 13. With this maybe connected "Sal. Cap. extrav.," 
 
 7, 8 (the widow has two-thirds, but upon condition of giving up that 
 which the German law later on calls the "Federwat" (bed and bedding), 
 and the value of this seems to make up the difference between two-tliirds 
 and one-third. Cf. "F. Andec," 1; Troya, "C. Dipl. Lang.," no. 520. The 
 Edict of Chilperic, c. 4, comes back to partition by halves between the sur- 
 viving spouse and the relatives of the other. Cf. "Bai.," 14, 9; "Alam.," 
 55; Brunner, op. cit., p. 568. These capitularies are only applied in cases 
 where no agreements have been entered into. Cf. Roziere, nos. 245 et seq.; 
 Brandileone, op. cit. 
 
 2 Cf. Huber, IV, 355. 
 
 ^ "Alam.," 56. As to repudiation, Joly, "These," p. 148. 
 
 * However, the marriage portion is partitioned between the surviving 
 spouse and the relatives of the predeceased spouse according to the "Cap. 
 extr.," 7 and 8 of the "L. Sal," and the Edict of Chilperic, 4. 
 
 6 "Burg.," 34, 3; "Bai.," 7, 14; "Wis.," 3, 4, 3, 12. According to the law 
 of India, a gift made to the wife passes at her death to her daughter if she 
 has children, and to her husband or her father if she has not, while at the same 
 time taking into account the various forms of marriage: Dareste, "Etudes," 74. 
 
 6 This is what the "Cap. extr.," 7 and 8 of the "L. Sal," held in the case 
 of second marriages: the widower or the widow who remarries keeps the 
 
 760
 
 Topic l] FRANKISH PERIOD [§ 527 
 
 gets the "pretium," ^ sometimes the absolute ownership of it,^ but 
 more often with rights which are Hmited in the interests of their 
 children or of the relatives of the husband, to whom it returns 
 when there are no children.^ These restrictions are especially- 
 prominent when the wife leaves the house of the husband to re- 
 turn to her relatives or in order to enter into a second marriage. 
 The wife who has been repudiated without cause '* is in about the 
 same situation as the widow. 
 
 § 527. The Same. — (C) The disposal of the share brought by 
 the icife would seem as though it should be easy to regulate; it 
 ought to belong to the wife or her heirs under all circumstances.^ 
 
 Germanic marriage portion without being able to give it or sell it, the former 
 until the children have attained the ''perfecta aetas," the latter until her 
 death. If there is no second marriage the widower or the widow will ordi- 
 narily live with their children and the possessions will be mingled. 
 
 1 "Burg.," 69, 42 (right of the widow who has not remarried to one-third 
 of the husband's possessions, but only for her Ufe, assuming that there are 
 no children; loss of this right in case of a second marriage); 52; "Roth.," 
 1S2, 184; "Aist.," 5; "L. fam. S. Petri Worm.," 1 (reversion to the hus- 
 band's relatives if there are no children); Beyer, "Mittelrh. Urk.," I, 83. 
 
 2 Various systems in the formulae (and later on in the Customs deahng with 
 dower) : 1st. Absolute ownership of the wife in every case (you will do what 
 you wish, will leave to whom you wish); 2d. Ownership if there are no chil- 
 dren; and enjoyment if there are; 3d. Enjoyment in all cases. One does not 
 see any very striking differences between the barbarian formulae and the 
 Roman formulae: Roziere, nos. 219 et seq. Heusler, II, 307, maintains, taking 
 as his basis the Frankish formulae, "Lindenbr.," 7, and "Bignon," 6, that the 
 marriage portion of the widow was reserved for the children ("verfangeu"). 
 Idem., Ficker, III, 378. Brunner, "Fest. f. Demberg" (Berlin), thinks, on 
 the contrary, that she had a right to dispose of her "tertia" or marriage por- 
 tion, and that this "tertia" in ownership was then converted into a dower of 
 one-half in enjoyment: " L. Sal.," "Cap. extr.," 7, 8 (Roman influence according 
 to Brunner; second marriages only); Marculfe, 2, 9, 17; "Andec," 34, 40, 54 
 Thevenin, nos. 53, 113, 176; "Cart, de Saint Pere de Chartres," p. 88; "Wis.,' 
 4, 5, 2 (right of the wife to dispose of only one-fourth, formerly of the whole) 
 "Alam.," 55, 56; "Burg.," 24, 62 (partitioning). The Treaty of Andelot 
 587, has not very great probative force because its character is that of a trans- 
 action following a crime. C/., however, Lefebvre, II, 428; Fertile, III, 318 
 Brandileone op. dt. 
 
 ^ Cf. post, "Dower"; Tacitus, 18, second marriages, birth of children 
 "L. Sal.," "Cap. extr.," 7 (the widow who remarries cannot alienate the mar- 
 riage portion); "Cod. Th6od.," 3, 8, 2, 3; "Nov. Th^od.," II, 14, 1, 3 (Int.) 
 Majorie>i, 6, 6; Severus, 1. Cf. "Nov. Just.," 98, 1 and 2; 127, 3; "Alam.,' 
 55, 57 (argument contra: "nunquam revertatur ") ; " Bai.," 14, 6 (15, 7) : besides 
 her marriage portion and the share contributed by her, the widow has the 
 child's share of the husband's possessions, " unsufructuario jure," but she 
 loses it if she remarries; if there are no cliildren the widow takes half of these 
 possessions, the near relatives of the husband the other half; but should she 
 remarry or die, her heirs will have only her marriage portion and the share 
 she contributed ; one-half of the husband's possessions revert to his own near 
 relatives; the widow who remains chaste keeps the gifts of her husbantl if 
 there are no descendants or near relatives: "Cod. Eur.," 322; "Wis.," 4, 2, 14. 
 
 * "Bai.," 7, 14; "Alam.," 53; Grimm, 6: "Wis.," 3, 6; "Burg.," 34, 4 
 ("Int. Cod. Th^od.," 3, 16, 1). Cf. Greg. Tours, 10, 8; 9, 33. 
 
 ^ This is what happens according to the "Rib.," 48, 49, if there is no "ad- 
 
 761
 
 § 527] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 But the husband often acquires it, especially when there are chil- 
 dren and he does not remarry; it is deemed sufficient to limit his 
 right of disposing of it.^ In the community system of the Bur- 
 gundians this share remains mingled with the possessions of the 
 husband; neither the widow nor her heirs have any right to it. 
 Among the Lombards the husband's "mundium" is sufficiently 
 strong to cause this share to be kept by the husband who survives, 
 even if there are children. Among the Alamans the husband 
 acquires this share, provided that there shall have been born a 
 child of the marriage who shall have lived sufficiently long after 
 the death of his mother to open his eyes and see the roof of the 
 house and the four walls.^ If the wife survives or is repudiated 
 without cause, she gets back the share she has contributed ^ 
 whether she return to her relatives or whether she remarry. In 
 the case of divorce by mutual consent the rights of the spouses 
 over their possessions are fixed by their agreement; but ordinarily 
 the wife only recovers the share which she has contributed."* 
 
 § 528. Rights of the Wife over Property acquired jointly. — 
 Besides her rights as survivor, in the foregoing properties, i. e. the 
 "pretium" and the "Morgengabe," the widow takes a portion of 
 the acquests which have been made during the marriage,^ — one- 
 
 fatimus": "L. Sal.," "Cap.extr.," 8; "Bai.," 14, 9; "Burg.," 24, 4; "Roth.," 
 201. 
 
 1 This was no doubt so among the Franks. Cf., however, Glasson, III, 
 217. 
 
 2 At least in the Lombard law: Thevenin, no. 61. Cf. "Roth.," 187, 188, 
 201, 1.30. 
 
 ^ "Roth.," 182: the widow who remarries has the "Morgengabe" and the 
 "Faderfium"; 184, if she prefers to live in her father's house after he is dead, 
 she must previously deduct the "Morgengabe" and the "meta," but she must 
 partition the "Faderfium" with her sisters, just as she must the rest of the 
 succession. "Alam.," 55: she has "quidquid de sede paterna adtularit," 
 besides the legal marriage portion, to the extent that "parentes ejus legitime 
 plagitaverint " ; proof by oath with fellow swearers or by the judicial duel: 
 "Factus," 3,2; "Sal.," "Cap. extr.," 7, 8; "L. fam. S. Pierre Worm.," 1; "L. 
 Henrici," I, 70, 22; "T. A. C, Norm.," 3. — "Burg.," 14, 4 (an interpretation 
 wliich refuses to give the widow without children the right to the share con- 
 tributed by her). 
 
 * "Wis.," 3, 6; "Pact. Alam.," 3, 2; "Roth.," 182; Thevenin, no. 82. 
 
 ^ There is no mention of them in either the "libelli dotis" or the "Cap. 
 extrav." of the Salic Law. Must we assume with Brunner that the marriage 
 portion conferred by agreement excluded both the legal marriage portion 
 and the right to acquests? — Was this portion of the acquests reserved for 
 the children in the same way as the marriage portion? Cf. as holding the 
 contrary opinion Heusler, II, 310. — In the Burgundian family community 
 the wife seems to have been counted as one more member, and she was given, 
 for example, one-third of the husband's inheritance when she survived him 
 (Tit. 74). The right to acquests quite naturally arises from this system of 
 community. There has been a desire to find for it a more distant origin; 
 the saying of Tacitus, "Germ.," 18, in speaking of the Germanic woman, 
 
 762
 
 Topic l] FRANKI3H PERIOD [§ 528 
 
 third among the Franks, according to the law of the Ripuarians ^ 
 and a Capitulary of 821, chapter 9,^ and one-half among the 
 Westphalians, according to the law of the Saxons; ^ the law of the 
 Visigoths divides the acquests between the two spouses in pro- 
 portion to their respective fortunes.'* In this right to the acquests 
 some only see a right by sm-vivorship, others find in it the proof 
 
 "laborum periculorumque socia," already seems to presage the community 
 of possessions. But life in common cannot of itself result in community of 
 possessions, for, were this not so, it is hardly likely that any but this matri- 
 monial system would have been known. In Norway the spouses can form a 
 community of acquests in which the wife's share is only one-third: Dareste, 
 "Etudes," 325, 348 (Iceland); "Nouv.Et.," 325 (Cambodia), 341 (Malgaches). 
 
 ^ "Gesta Dagoberti," 46 (in 639); "Rib.," 37. Schroeder, I, 94, wrongly 
 concludes from this that the widow has a choice between the "Morgengabe" 
 and the acquests. Cf. Heusler, II, 313. If we admit with Brunner that there 
 is a legal marriage portion of one-tliird, the word "tertia" may mean this 
 marriage portion; and this learned man beUeves that this is its technical 
 acceptation. Cf. "Polypt." of Irminon, 12, 3; Marculfe, II, 17; "App. Marc," 
 40; "Andec," 45, 58; "Lindenbr.," 50; Greg. Tours, 8, 39; 7, 40; Thevenin, 
 no. 53 (Pardessus, "Dipl.," no. 179, in 572; cf. Brunner, "Festg. f. Dernb.," 
 p. 45), 175 (in 833? the engaged man gives his future spouse a manse with 
 slaves," and besides this one-third of his present and future possessions), 
 176 and 179 (one-third of all the present and future possessions), 174, n. 1 
 (marriage portion of one-half instead of one-third about 904); Schroeder, 
 "Gut.," I, 92; Kraut, "Vormundsch.," II, 379. Cf. in the later Customs 
 partition of the community in the proportion of two-thirds to the husband 
 and one-third to the wife (portion of the sword and portion of the distaff): 
 Merlin, see "Cout. de Ferrette." 
 
 ^ Capitulary of 821, 9 (I, 301). In giving the widow one-third "collabora- 
 tionis quam simul in beneficio conlaboraverunt," the Capitulary means to 
 say that this advantage shall not itself be treated as an acquest, no doubt 
 because of its personal character. As to other acquests, "res quas (maritus) 
 aliunde adduxit vel comparavit vel ei ab amicis conlatum est," the Capitulary 
 confers them without saying "tam ad orphanos quam ad uxores," and re- 
 ferring to the previous law: Flodoard, "Hist. Rem.," 85; "Cap. Kiersy," 
 877, c. 5, 6. On the question, cf. Sandhaas, 121; Schroeder, "Giit.," I, 91; 
 Heusler, II, 310. 
 
 " "Sax.," 47; 48; HexLsler, II, 346; Brunner, "Z. S. S., G. A.," 1895, 100; 
 Haenel, "R. Z. G.," I, 290; Stemann, "Guterr." (Jutland), 1857. 
 
 * "Wis.," 4, 2, 15, 16; 5, 2, 3 and 4; Zeumer, "N. Arch.," 26, 123; Brissaud, 
 "Melanges Couture," 1901 ("La Soci6t6 d'Acquets entre Epoux dans les 
 Lois Wisigothiques"). — The Code of Euric, 325, perhaps already contem- 
 plated in express terms the community of acquests among spouses; this was 
 assumed in its c. 323, where it sets forth that certain acquests belong to the 
 husband, — a thing which would have been useless unless there were a part- 
 nership and in the "Antiqua," 5, 2, 3, reserving for the spouse who receives 
 the gift alone the possessions given by the king. The Law of Reccosvind, 
 4, 2, 16, thus did not introduce the community between spouses into 
 the Visigotliic law; this community already existed in the time of Euric. 
 With regard to this law, let us notice: (a) that it gave the heirs of the spouses 
 the same rights as the latter over their share of the acquests; thus there is 
 no question here of a right of the survivor; {h) that the conjugal community 
 is to be accounted for by reasons of a pecuniary nature rather than of a moral 
 nature, because the share of each spouse is in proportion to his or her fortune, 
 and because the acquests to the production of which one of the spouses docs 
 not contribute belong exclusively to the other. Cf. "M. G. II., L. L., Leges 
 Visig.," pp. 183, 211. 
 
 763
 
 § 528] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 of the existence of a true community of possessions between 
 spouses ^ since the barbarian period. Except among the Visi- 
 goths, there is rather a 'progress towards community than com- 
 munity properly so called, for the right to acquests does not 
 pass to the heirs of a predeceased wife.^ 
 
 * To this effect, Brunner, op. cit.; Heusler, II, 310. Cf. Post, II, 156. Contra, 
 Glasson, III, 213. 
 
 2 In fact, the majority of the texts assume that the wife who takes the 
 acquests survives the husband: "Rib.," 37. At the same time, the contrary 
 has been argued from the formulae of Marculfe, 2, 7, 17, according to which 
 the wife gives the surviving husband her portion of the acquests, — a thing 
 which is quite useless if, simply owing to the fact of her surviving, it belongs 
 to her. But it is difficult to draw any argument from this clause, for it has 
 as its counterpart another clause that is certainly incorrect, — the clause 
 by which the husband gives his surviving wife, not his share in the acquests, 
 which might be understood, but all the acquests; a thing which he cannot 
 do when the wife has one-third of them. Cf. Edict of Chilperic, 4; Thevenin, 
 no. 57; " Andec," 54; "Lindenbr.," 13; Pithou, 38; "Cart, de Cluny," I, 9, etc.; 
 Glasson, III, 215. 
 
 764
 
 Topic 2] DOWER AND OTHER RIGHTS BY SURVIVORSHIP [§ 529 
 
 Topic 2. Dower and Other Rights by Survivorship 
 
 § 529. Dower. General Ideas. 
 
 § 530. Conditions requisite for the 
 Existence of Dower. — (A) 
 Ivinds of Dower. 
 
 § 531. The Same. — (B) The Amount 
 of legal Dower. 
 
 § 532. The Same. — (C) The Seat of 
 the Customary Dower. 
 
 § 533. The Same. — (D) Wife obtains 
 Dower on going to Bed. 
 
 § 534. The Same. — (E) The Forfei- 
 ture of Dower. 
 
 §535. 
 
 §536. 
 
 §537. 
 §538. 
 
 §539. 
 §540. 
 §541. 
 
 Rights of the Wife over the 
 
 Dower. — (A) During the 
 
 Marriage. 
 The Same. — (B) At the Death 
 
 of the Husband. 
 The Dower of Children. 
 The Increase of the Marriage 
 
 Portion. 
 Rings and Jewels. 
 Counter-Increase. 
 Mourning and Residence. 
 
 § 529. Dower. General Ideas. — By this is understood that 
 portion of the personal belongings of the husband ^ over which 
 the widow has the right of enjoyment during her life, and also 
 this right of enjoyment itself. We have already seen that dower 
 was the result of the fusion of the Germanic marriage portion and 
 the "jNlorgengabe." ^ Originally it formed a set-off or equivalent 
 given to the wife in return for the share brought by her,^ and, 
 
 ^ "Dos," "dotalicium," "dotarium," "doarium," "vitalitium," "viduali- 
 cium," "viarium"; see Du Cange, "Vivelotte," Ragueau (dower of commoners 
 in Boutaric, I, 97). Germany, Italy: "dotalicium" has as its synonymns terms 
 which sometimes serve also to designate institutions similar to dower: "Leib- 
 geding," contract for life; "Leibzucht," "liftocht," allowance for life; "Wit- 
 thum,". dower; "Widerlage," "Contrados," post, "Increase of Marriage 
 Portion"; Fertile, II, 336; "meta," "quartisium," "sponsaUcium," "donatio 
 propter nuptias," "antefactum," "morgengabe." 
 
 2 The conferring of dower precedes the marriage, and yet " Au coucher gagne 
 la femme son douaire"; it is a very widespread opinion that dower is "the 
 reward and recompense of chastity": Pasquier, "Lettres," IX, 1; Fertile, 
 111, 337. — In the German countries the "Morgengabe" has often been main- 
 tained alongside of the increase of marriage portion or " Widerlegung " and 
 the dower: Stobbe, IV, 108, 183; Huber, IV, 379; Heusler, II, 374; "Sachsensp.," 
 1, 20; 3, 38. Legal "Morgengabe" for the Saxon nobility. Sometimes it 
 consists in simple gifts, sometimes it constitutes a dower (Austria), and some- 
 times, finally (Southern Germany, Switzerland), it forms a "Sondergut" 
 for the wife: "Schwabensp.," 1, 18 (20); "estreine." Sometimes the "Wit- 
 thum" has also this last character: Heusler, II, 373. 
 
 ' If it were exclusively a recompense for the marriage portion, women 
 who did not furnish a marriage portion would have no right to it: Loysel, 152. 
 In Germany dower properly so called, "Witthum" or "Widem," is con- 
 trasted with the counter marriage portion, "Widerlage" (or increase of mar- 
 riage portion), the amount of which is in proportion to that of the marriage 
 portion, and which the surviving wife obtains, just as the surviving husband 
 obtains all or part of the marriage portion: Chaisemariin, "Prov.," p. 341: 
 "Rich wives make poor children," F. v. Wyss, p. 49; Stobbe, IV, 114 (dis- 
 tinctions); Heusler, II, 370; Huber, II, 375. The increase in the amount of the 
 
 765
 
 § 529] syste:\i of property betw^een spouses [Chap. V 
 
 when this share was nothing, then it was a means of preventing 
 her from being absolutely destitute.^ The Church showed itself 
 favorable to dower, and the Custom made it obligatory, following 
 the example of the canon law.- It seemed all the more necessary 
 as the wife was strictly dependent upon her husband ; her rights of 
 inheritance in her own family were often very much curtailed, and 
 the few possessions which she had were in danger of being spent 
 during the marriage in the interest of the husband, for at one time 
 there was nothing to prevent the husband from alienating them 
 or pledging them for himself; the income which they produced or 
 the acquests which they served to obtain did not benefit the wife, 
 or only benefited her to a small extent, under the old matrimonial 
 system, which was exclusively one of community. Thus we see in 
 what an embarrassing situation an elderly widow might find herself 
 at the death of her husband. Dow'er was often her only res6urce. 
 It made the possessions of the husband inalienable, in coun- 
 tries of Customs, just as the marriage portion system made the 
 
 marriage portion was thus of very great importance in this matter. In Italy 
 at the beginning of the fourteenth century marriage portions were almost re- 
 duced to a mere trousseau. They soon increased, and Dante was able to say 
 that the birth of a daughter was a source of ruin. In 1434, in Florence, there 
 was created a marriage portion insurance ("monte dei doti"): Periile, III, 321. 
 
 1 There is a close connection between dower and the system of property 
 between spouses on the one hand and inheritance or gifts between spouses 
 on the other. — (A) Lardy, "L^gisl. Civiles des Cantons Suisses," see the 
 charts at the end of the volume. The idea of a right of succession between 
 spouses was opposed to the principle: "Who has my blood has my property." 
 However, in time they came to recognize this idea as a consequence of the 
 resemblance shown between dower or community right, which was common 
 to the surviving spouse, and the right of succession. In Germany -the dis- 
 tinction is not very clear, and one can say that, generally speaking, the right 
 of succession there takes the place of the legal dower: Stobbe, IV, 499; Huber, 
 IV, 470; Heusler, II, 421. Very often the spouse who inherits appears rather 
 as a member of the community giving up joint possession than as an heir 
 properly so called. In France, perhaps as a consequence of the Roman 
 influence, the idea of succession is brought out better (c/., however, Nor- 
 mandy). Rimasson, however, connects the legal right with the right of suc- 
 cession of the barbarian period. Cf. as to the case where the survivor takes 
 the succession of the predeceased in the quality of heir of their children: 
 "Jostice," p. 212; "Sachsensp.," 1, 33; "L. Alam.," 95; Pollock and Maitland, 
 II, 422 (copyholds); Lehr, "Dr. Angl.," p. 107; post, "Community"; Van 
 Weter, "Dr. Rom. et Dr. Celtique," 1898, p. 48; "M. G. H., L. L.," 11,37 
 (general law in the year 1019 giving the survivor, if there are no children, all 
 the possessions of the predeceased; this law was not applied). Cf. Dower 
 of Children, "Verfangenschaft." — (B) Gifts between spouses; Loysel, 149, 
 150: "Mutual gift does not prevent dower"; Perfile, III, 344; Chaisemartin, 
 382: "Hat with the veil and veil with the hat" (placed upon the altar), a 
 sjTnbolioal form of mutual gift. 
 
 2 Dig. X, 420; "Jostice," p. 216; Glanville, VI, 1. Competence of the 
 ecclesiastical judges, post. Part played by the Holy See in the quarrel be- 
 tween John Lackland and Queen B^rang^re on the subject of the dower 
 which she claimed: Rymer, "Acta," I, 152. 
 
 766
 
 Topic 2] DOWER AND OTHER RIGHTS BY SURVIVORSHIP [§ 529 
 
 possessions of the wife inalienable in countries of written law. 
 The husband could not dispose of property without the consent 
 of the wife, and, moreover, the personal belongings or family pos- 
 sessions, which it affected if there were no agreement to the con- 
 trary, consisted in those things of which people scarcely deprived 
 themselves, even where the Custom permitted it. So great was 
 its importance still in the thirteenth century, that Beaumanoir 
 devotes an entire chapter of his work to it, whereas he passes 
 rapidly over community. The institution met with some resist- 
 ance on the part of feudalism; the woman was, in fact, scarcely 
 capable of fulfilling the feudal duties; it was necessary that the 
 heritability of fiefs should be fully accepted, for dower to be ap- 
 plied to this category of property.^ In the last stage of the old 
 law the jurisconsults have some difficulty in justifying its exist- 
 ence.^ The system of property had changed; the community 
 between spouses had become common, and more often than not 
 it was sufficient if the wife had her share of the community. But 
 the community might be a bad thing; the husband might abuse 
 his powers in order to dissipate it or might administer the personal 
 
 1 Originally fiefs could not be encumbered with dower. "L. Feud.," 
 
 I, 9, 1; "Sachseasp.," 3, 75. Later on it was allowed, but with restrictions 
 which recall the primitive law, such as consent of the lord: Viollet, p. 779. 
 "Dower of the finest," in England, that is to say, dower affecting the finest 
 of the common tenures, whereas tenures by knight-service during the minority 
 of the children return to the lord; the suppression of tenures by knight-service 
 involved the disappearance of this form of dower: Littleton, 49; Blackstoiie, 
 
 II, 8. Kingdoms, the great manors, castles, which the vassal promises to 
 give back and which the lord can demand, were not subject to dower: Beau- 
 manoir, 1.3, 8, 19; Loysel, 1.36; "Bourges," 59; "L. d. Dr.," 115; "Amiens," 
 121; "Schwabenspiegel," "Lehnr.," 36, 104, 188; "Const. Neapol.," Ill, 13; 
 Fertile, III, 339. — The right of the family and the right of primogeniture 
 were also found to be in conflict with dower: "Poitou," 162. — As to the 
 dower of queens, cf. Isambert, Table, see "Douaire"; Ducoudray, "Orig. 
 du Pari.," p. 795; Maffert, "Apanages," "These," 1900; Monteil, "Domania- 
 litc publique," "These," 1902. 
 
 - ".Jostice," p. 219: She [the wife] is of little service during her life 
 [this is not so in the case of the young widow in good health who has personal 
 belongings; moreover, one might say the same of the husband who is old or 
 infirm]; she is the slave of the lord [St. Paul to the E-phesians, V, 22: 'viris 
 subditaj']; she has more pain in childbirth than the lord has [a motive 
 which it is hard to take seriously, even by saying that dower is a recompense 
 for maternity]." The saying of Beaumanoir, 13, 1, is often cited, "At the death 
 of the husband the widows are left stunned and despairing"; but the juris- 
 consult does not seek to modify the dower on this account; he means to say 
 that one should not take advantage of their mourning to deprive them of 
 their rights. If the dower only served to insure the maintenance of the 
 widow, the one who had resources could make no claim to it. Cf. Viollet, 
 "Et. de St. Louis," III, 267. If he had to pay for the care and the services 
 of his wife, reciprocity would be due the husband. Cf., however, the German 
 proverb: "Dower is the fief of women"; Chaisemartin, p. 335; "Norm.," 376; 
 Lefebvre, "La Cout. Frang. du Mariagc au Temps de Saint Louis," 1901. 
 
 767
 
 § 529] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 belongings of his v/ife badly. Dower seems to have overcome 
 these dangers, which became less, moreover, as guaranties in the 
 interest of the wife came to be developed. It was intended to 
 allow the widow to live honorably according to the station of her 
 husband, and to keep her rank in society; the nobleman's widow, 
 excluded from the paternal inheritance, had rights which were 
 quite special. Finally, several of the Customs saw in dower a 
 means of keeping for the children the personal belongings of their 
 father. 
 
 If dower had only been, as said sometimes, a witness of af- 
 fection, it would have been natural for the husband to receive a 
 corresponding benefit; but the Customs for the main part re- 
 fused to grant him any such benefit, which, indeed, proves that 
 dower has sprung rather from a thought of interest than from one 
 of affection. It is true that, following the example of the Bar- 
 barian law, the usages of certain provinces, such as Normandy, 
 Anjou, and Maine, made an exception to the common law and 
 allowed the w^idower the marriage portion of the wife; this same 
 Custom existed across the Channel under the name of curtesy of 
 England,^ which reminds one of the "Counter-Increase" of the 
 countries of written law. 
 
 Having become less useful,^ being restricted by court decisions, 
 
 1 In Paris and in various of the central provinces, — Orleans, Anjou, 
 Touraine, Maine and Poitou, — the husband who was a widower obtained 
 for his Ufe the marriage portion of his wife, provided he had had a male heir 
 by her and had married "cum virgine." This was a sort of counter-dower: 
 "Et. de St. Louis," I, 13 (provided that the child had screamed and cried); 
 Bouiaric, I, 45; "L. d. Droiz," § 415; Beautemps-Beaupre, "Cout. d'Anjou," 
 I, 189; "A. C, Picardie," 15. In these texts only the gentleman widower is 
 dealt with. Cf. "Confer, de Guenois," 602; "Paris," 238 (reference legacy of 
 the noble spouse). South: "Charroux," 13; "Limoges," 76; "A. C, Bayonne," 
 63, SI; post, "Counter-Increase"; "Ass. d'Antioche," 1; Viollet, p. 808. The 
 Norman law extended this right of the widower over all the immovables of 
 his wife, but it was made subject to the condition that he should not remarry: 
 "Summa Norm.," 119; cf. "C. de 1583," 382; Delisle, no. 72 (in 1210): "quam- 
 diu erit absque muhere"; Colin, "N. R. H.," 1892, 465. The Custom of 
 England, which was more liberal, more "courteous" than the Norman Cus- 
 tom, did not deprive the widower of this right in case he married again; nor, 
 moreover, did the other French Customs: Glanville, VII, 18, 3; Bradon, 
 fo. 438; "Reg. Maj.," II, 57; "L. Burg.," 44; Pollock and Maitland, II, 412; 
 Littleton, 35 (Blackstone, II, 8, 3: On the free bench of the County of Kent, 
 or right of the survivor to half of the lands of the predeceased spouse, cf. 
 the German " Beisitz "). — As to the origin of this right cf. Brunner, " Forsch.," 
 708; "Z. S. S., G. A.," 1895, 96. The fact that it persisted is to be accounted 
 for outside of the force of tradition by the desire not to treat the husband 
 who was a widower any differently from the way in which the wife who was 
 a widow was treated. Cf., moreover, the right of custody in case the children 
 live, ante, §§ 163 and 197. 
 
 2 Lamoignon suggested the abolishing of all legal rights of the survivor: 
 
 768
 
 Topic 2] DOWER AND OTHER RIGHTS BY SURVIVORSHIP [§ 530 
 
 and left in use mainly among the class of the nobility, dower 
 appeared under the Revolution like a fragment of feudalism, a 
 hindrance to the freedom of transactions, a complication in the 
 regulating of inheritances.^ The Law of the 17th Nivose, year II, 
 Art. 61, seems to have abolished it "as well as the increase of the 
 marriage portion" and the other rights of a survivor;^ though 
 it has been possible for dispute to arise on this subject,^ it is 
 quite certain that the Civil Code no longer recognizes the legal 
 dower. ^ 
 
 § 530. Conditions requisite for the Existence of Dower. — (A) 
 Kinds of dower. Two sorts of dower are to be distinguished: 
 dower by agreement (or prearranged) and Customary dower (or, as 
 we would say to-day, legal dower). Beaumanoir in a passage 
 which has given rise to a great deal of discussion, 13, 12, attributes 
 the institution of the Customary dower to an ordinance of Philip- 
 Augustus, of the year 1214, which has never been found: "The 
 general custom of dower . . . the wife takes half of that which 
 the man has the day he marries her, which began with the ordi- 
 nance of the good King Philippe, king of France, who reigned 
 there in the j^ear MCC and XIV. And this ordinance commanded 
 this to be done tlii'oughout the whole kingdom of France, ex- 
 cepting the domain of the crown and several baronies held from 
 the crown, which were not to be divided in half for dower, and 
 which bring no dower to the ladies excepting that dower which 
 is promised them when they are married. And before this ordi- 
 nance of the king Philippe no woman had dower excepting such 
 dower as should be promised at the marriage. And it is very 
 evident that the custom was such formerly, from a word which 
 the priests caused the man to say when he was married, for he then 
 said, 'With the dower which is arranged between my friends and 
 thine I endow thee.'" It is beyond a doubt, however, that before 
 
 " Arr.," pp. 269 and 464. Regulation of 1773 doing away with the legal dower 
 in Aosta. 
 
 1 "Code Civil interm.," II, 171; cf. Ill, 155; Sagnac, p. 300; Avon, 
 "N. R. H.," 1901, 601; Merlin, see "Gains nupt.," and "Quest, de Dr.," 7, 
 
 §3- . 
 
 ^ There is no doubt that the dower of children was abohshed: Decree of 
 22d Vent., year II, Art. 49, and of 9th Fruct., year II, Art. 24. Controversy 
 as to the dower of the wife: Schmitz, "Th6se," 1900, p. 81. 
 
 * Under the Civil Code gifts by marriage contract, etc. 
 
 * A Law of March 9, 1891, reopening an evolution which seemed to be 
 closed, has conferred rights of succession upon the survivor of the spouses, 
 whether rich or poor, and even when there are children, when it would have 
 been sufficient to have given an allowance for support to the spouse who was 
 in want. 
 
 769
 
 § 530] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 the year 1214 Customary dower was not unknown;^ the "dos 
 legitima" of the barbarian laws is nothing else, and there is noth- 
 ing to show that it fell into disuse.- Perhaps this ordinance was 
 enacted with respect to fiefs, which dower could not affect with- 
 out injuring the rights of the lords.^ At any rate, the Church and 
 the Custom made it a duty of the husband to give his wife dower.^ 
 
 1 In the English Customs one will observe a remarkable evolution from 
 the dower by agreement to the legal dower. Thus, according to Glanville, 
 VI, 1, the husband is held bound to endow his wife "ad ostium ecclesise"; 
 when endowing her sometimes he chooses property which is a part of the 
 marriage portion ("dos nominate"), sometimes he does not specify in what 
 the dower shall consist, and then the dower is "rationabiUs"; it includes one- 
 third of the free tenement of which the husband is seised at the time of the 
 marriage. About the time of the reign of Edward III the wife has a right to 
 a reasonable marriage portion, even if 'the husband has remained silent; 
 the dower being compulsory, it is implied: Bradon, fo. 12; Britton, 101. — In 
 France it was even deemed sufficient to promise a dower, or the formula 
 reported by Beaumanoir was made use of, without any specific piece of prop- 
 erty being made subject to dower. In the eighteenth century certain of the 
 French Customs only admitted of dower by agreement ("Marche," 288; 
 "La Rochelle," "Yssoudun," "Cambrai," "Amiens," etc.). Perhaps the 
 legal dower had never been admitted in these Customs, perhaps it had ceased 
 to be recognized by them. Other Customs distinguish between the noble 
 women and the plebeian women. Thus the "Cout. de Saintonge," 76, only 
 confers the customary dower upon noble women; the Customs of "Anjou" 
 and "Maine" refuse to give it to them when they are the principal heirs of 
 their relatives. According to Rimasson, p. 493, Customary dower is but a 
 transformation of the right of succession that was formerly recognized as 
 belonging to the spouse and that was added to the marriage portion conferred 
 by agreement. 
 
 2 To the contrary, Rimasson, p. 496. 
 
 ^ Beaumanoir makes three assertions, all of which are open to dispute: 
 (a) Philip Augustus was responsible for the creation of Customary dower. 
 But it is quite certain that even before his time a legal dower existed. One 
 may assume, it is true, that this legal dower had fallen into disuse in the 
 Ile-de-France and the neighboring regions. Cf. Rimasson, 496. (6) The 
 Ordinance of 1214 was meant to apply to the entire kingdom. This is very 
 unlikely, and, in fact, it was not applied in Normandy and in the other coun- 
 tries where the English law was applied, (c) This ordinance must have 
 assumed that the amount of dower was one-half. But charters establish the 
 fact of the previous existence of this quantity. Then, if that is so, did the 
 Ordinance of 1214 never exist? It is hard to believe that, because P. de Fon^ 
 taines, 21, 45, himself also speaks of the enactment of King PhiUp which con- 
 ferred the seisin of dower upon ladies who were -widows. Laboulaye makes 
 the conjecture that the ordinance was enacted to apply to fiefs, which were 
 not affected by dower, according to the "L. Feud.," 1, 9, 1. The word 
 "ladies," the exception which concerned the kingdom and the great manors, 
 all support this conjecture: Blackstone, II, 8. Brunner, "Festg. f. Dernb.," 
 Berlin, p. 41 et seq., rounding out this explanation, beheves that Philip Au- 
 gustus at one and the same time converted the dower of one-third of the 
 ownership into the dower of one-half of the usufruct, the usufruct alone 
 being admissible in the case of fiefs. "Bret.," 199: "No one can give more 
 than one-third by way of inheritance or one-half by way of usufruct." Cf. 
 Glasson, VII, 396. 
 
 ^ Glanville, VI. — Afterwards dower comes to be regarded so much as the 
 acquitting of an obligation that there is no occasion for its registration, and 
 it is not subject to reduction because of its affecting the legal share. 
 
 770
 
 Topic 2] DOWER AND OTHER RIGHTS BY SURVIVORSHIP [§ 531 
 
 It was natural that a legal dower should be imposed upon those 
 who had avoided this obligation (for example, in marriages which 
 the priest had not blessed). Such Avas the favor with which dower 
 was looked upon that the wife could not renounce her legal dower 
 by marriage contract; ^ in the seventeenth century, dower having 
 become less of a necessity, this was allowed." Prearranged dower, 
 moreover, excluded the legal dower; ^ but it is to be noticed that 
 it was forbidden to contract for this dower during the mar- 
 riage for fear it should only serve to conceal gifts between 
 spouses.* 
 
 § 531. The Same. — (B) The amount of legal dower varied ac- 
 cording to the Customs; it was generally one-half, in conformity 
 with the Ordinance of 1214.^ But the dower of one-third, or Eng- 
 lish dower,^ — it would be more accurate to call it Norman dowser, 
 — was also very widespread, especially in the provinces of the 
 West.^ The dower established by agreement might be less than 
 the Customary dower, but could not exceed it, — excepting, how- 
 ever, in Paris, Orleans and some provinces where there was no 
 
 1 Boutaric, I, 97. "A fortiori," a general renunciation during the mar- 
 riage would be unlawful: Boissonade, p. 208; cf. Loysel, 151; "F. gen. de 
 Navarre," 4, 1, 1. _ 
 
 2 Lauriere, on "Paris," 247, states that this amounted to a break with the 
 practice of several centuries. The abolition of the Velleianum Decree of 
 the Senate, the custom of creating the Customary dower when a prearranged 
 dower was established, may have contributed towards this result: Pothier, 
 no. 2; Ricard, on "Paris," 247; Order of Jan., 1606. 
 
 ^ "Cout. Not.," 51; Desmares, 175. Excepting according to certain Cus- 
 toms in which the widow had her choice. Jamont, "These," p. 80 (Brittany); 
 Folhier, no. 3. 
 
 ^ Desmares, 219; "Gr. Cout.," II, 32. 
 
 6 Beaumanoir, loc. cit.; Viollet, "Et. de St. Louis," I, 138; "Cout. Not.," 59; 
 "Ohm," IV, 346; "A. C, Artois," 32; "Paris," 248. The dower of one-half 
 seems to be more frequent among plebeians, the dower of one-third among 
 nobles (perhaps because of the right of primogeniture). J. d'lhelin, 179: 
 the nobleman's widow has half of the fiefs, the commoner's widow all the pos- 
 sessions; "Cout. des Bourg.," 186; Varin, "Arch, de Reims," I, 609. — "There 
 cannot be dower upondower," post, "Dower of Children." 
 
 ^ That is to say, which was in use in England; but the English themselves 
 had borrowed this from the Normans, and we have aheady seen that this 
 amount is met with as early as the barbarian period. Cf. right of primo- 
 geniture, which is of two-thirds. 
 
 7 "T. A. C, Norm.," 3 (excepting the chief manor); 5, 2; 79; Dii Cange, 
 see "Manerium," "Mesnagium," "Mesuagium"; "Summa," 101: one-third of 
 fiefs; one-half of burgage tenures; "Bret.," 336; "Anjou," "Maine," "Tou- 
 raine," etc.; "Et. de St. Louis," I, 17: one-third for nobles, one-half for others; 
 1, 137; Glanville, XII, 20; " Magna Charta" of 1215, c. 8. Cf. "Magna Charta" 
 of 1217, c. 7; BSmont, "Chartres," p. 50. We also find in England, alongside 
 of the common-law dower, which is of one-third, dower of one-half (socage, 
 gavelkind) and even of all the husband's lands. One-third at Naples and in 
 Sicily (Pertile, III, 334, 337; Brunneck, p. 37) in Castille] (" F. Viejo," V, 1); 
 "Ass. de J6r.," J. d'lhelin, 71, 91; Geoff, le Tort., 16; Ficker, III, 244. 
 
 771
 
 § 531] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 maximum.^ Whether equal or less, it excluded ^ Customary dower, 
 and, as the Customs did not fix any minimum,^ the dower of the 
 widow ran the risk of being very greatly reduced as a result of 
 special agreements; there was nothing anomalous in this, after 
 she was allowed to renounce her dower by marriage contract. 
 
 § 532. The Same. — (C) The seat of the Customary dower is ex- 
 clusively the husband's own inheritance; ^ movables and acquests 
 are not subject thereto. One would rather expect the opposite 
 result, for the family possessions ought, it seems, not to have 
 been affected by the rights of the wife. But over the movables 
 and jointly acquired property of the marriage this right was 
 converted into a right of community, which had the advantage 
 of leaving to the husband the free disposal of this category of 
 possessions.^ According to the Ordinance of 1214, dower only 
 affected those personal belongings of which the husband was pos- 
 sessed at the time of the marriage; ^ by this it would have been 
 too much restricted, because in most cases the husband is too 
 young at that time to have any personal belongings; so the dower 
 was by contract extended to present and future personal belong- 
 ings, according to a practice which is found from the time of the 
 barbarian period.^ Frequently, the father in consenting to the 
 marriage, also consented to subject the family possessions to 
 the dower; ^ this consent was implied where the son merely pro- 
 
 1 "T.A.C., Norm.," 79,2; "Magna Charta," 1215,8; "Olim," IV, 346; 
 "Jostice," p. 217, 219; "Const. Chat.," 78; Loysel, 139; Desmares, 137, 218, 
 makes a distinction: commoners can give more than one-half, noblemen 
 cannot; "Cout. Not.," 59; "Norm.," 371; "Poitou," 259. Divided dower in 
 Burgundy: Robin, "These," p. 165. — This restrictive tendency comes to 
 light as early as the barbarian period and is in accord with the rights of the 
 family. — Cf. Italy, Brandileone, "Arch. Giur.," 67, 2. Lauriere and Lamoig- 
 non complain of the conferring of enormous dowers. 
 
 2 "T. A.C., Norm.," 79; "Jostice," p. 219; "Cout. Not.," 51; Desmares, 
 175; "Paris," 261; Loysel, 147, 151: Troyes, Meaux, etc., option between the 
 two kinds of dower. 
 
 2 The English law admitted that the wife could alwaj'S claim her legal dower 
 of one-third: Littleton, 39, 41. This was not so in the thirteenth century: 
 "Magna Charta," c. 8. 
 
 * Fiefs or plebeian tenures. Cf. Boutaric, I, 98. A subsidiary dower 
 upon jointly acquired property and movables according to certain Customs: 
 Pothier, nos. 17, 98; "T. A. C, Norm.," 5, 4; 79, 2; "T. A. C, Bret.," 30, 40; 
 "Orleans," 221; "Paris," 257. 
 
 ^ Survivals of the old law: J. d'Ibelin, 177 (dower upon the acquests). 
 
 6 Glanville, VI, 1; "Magna Charta" of 1215, c. 8; cf. "Magna Charta" of 
 1217 and 1224; Pollock and Maitland, II, 419. This is normally the object 
 of the prearranged dower, of the "libelli dotis." 
 
 ' Thevenin, nos. 175, 176; D. Vaissette, "Preuves," no. 502. — To the same 
 effect, Beaumanoir, 13, 13 et seq. 
 
 8 Anglo-Norman dower, "ex assensu patris": "T. A. C, Norm.," p. 81; 
 Viollet, "Et. de St. Louis," III, p. 276 {id. in Touraine, Anjou, etc.); Loysel, 
 
 772
 
 Topic 2] DOWER AND OTHER RIGHTS BY SURVIVORSHIP [§ 533 
 
 ceeded by making a gift of present and future possessions. What 
 agreements accomplished, the Custom accompHshed also, and 
 with all the more ease because the Customary dower was an ali- 
 quot part.^ The personal belongings coming from collaterals or 
 descendants were alone ordinarily excepted from the appropria- 
 tion made for dower.^ Even taking this restriction into account, 
 one can see that a large number of immovables were found to be 
 incapable of being disposed of.^ The feeling of practical necessity, 
 combined with a desire not to take away the personal belongings 
 from the administration of the relatives to whom they belonged, 
 often led to the substitution of a dower consisting of a sum of 
 money, especially under the form of a rent-charge for dower in 
 kind.-* 
 
 § 533. The Same. — (D) The wife obtains her dower, upon going 
 to bed, it was formerly said; ^ the majority of the Customs by the 
 sixteenth century have abandoned this archaic rule, and no longer 
 demand that the marriage shall have been consummated. The 
 dower accrues merely by virtue of the nuptial benediction.^ 
 
 138; L'Hommeau, III, 56. This was especially useful in a case where the 
 son died too young to have taken the succession of his parents; his widow 
 would none the less have a dower over the hereditary share which would 
 have come to him: "Poitou," 260 ("Semi-dower")- 
 
 1 "T. A. C, Norm.," 79; cf. "Summa," 101; Beaumanoir, 13, 14; "Gr. 
 Cout.," II, 32, Desmares, 175, 21.5; "Gout, not.," 51. Loysel, 137, attributes 
 the extending of dower to include future personal belongings to an advocate 
 of the fourteenth century, Eudes de Sens; but as early as 1268 the "Glim" 
 mentioned it: "Paris," 248. — Entailed possessions were subject to dower if 
 there were no others: "Ord." of 1747, 45 et seq.; Pothier, no. 61. 
 
 * Boutaric, I, 97; Beaumanoir, 13, 13. 
 
 3 According to the "Ass. de Jer.," J. d'Ibelin, 220, in the Customs of 
 "Berry" and " Bourbonnais " (Pothier, no. 13) and at Lincoln in England, 
 etc., dower is only taken out of possessions of which the husband is seisetl 
 at the time of his death. Thus any alienation executed by the husband 
 cannot be attacked. Cf. Rimasson, p. 495; "A. C., Anjou," ed. B.-B., 1, 
 p. 517. 
 
 ^ In English law from the time of Henry VIII the system of jointures or 
 rents in money upon some immovable of the husband's came to be sub- 
 stituted almost entirely in practice for dower in kind, which had the dis- 
 advantage of making the husband's possessions incapable of being disposed 
 of: Blacicslone, II, 8; Lehr, p. 105; Chaisemartin, p. 340: in Saxony a frequent 
 changing of the dower into a life rent; Stobbe, IV, 114. 
 
 5 Loysel, 140; Beaumanoir, 13, 25; "Summa Norm.," 101; "Jostice," 
 p. 219. Survival in the "N. C., Bret.," 4,50, where it is merely required 
 that the wife shall have put her foot into the bed: Buche, "N. R. H.," 1885, 
 653; Pothier, no. 147; "Toulouse," 113 (id. for the increase); Littleton, 36 
 (the wife only has a right to the dower if she is more than nine years old at 
 the time of her husband's death) ; cf. pout, the basis of the community. The 
 old rule is to be accounted for by remains of the "Morgcngabe," the "Beil- 
 agcr," and marriage perfected by consummation. "Osculum," "Ass. do 
 J6rus.," "G. des B.," 145 (re-enacting "God. Just.." 5, 3, 16). 
 
 6 Loysel, 140; "Bret.," 450; Launhre, on "Paris,*' 248 (II, 295). 
 
 773
 
 § 534] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 § 534. The Same. — (E) The forfeiture of dower arises from the 
 adultery of the wife, from the fact that she has abandoned her 
 husband, or, as a general thing, that the separation of domicile 
 has been adjudged against her; or, again, owing to misconduct of 
 the wife during the year of mourning.^ A second marriage com- 
 pels the woman who has dower to furnish surety, but the dower is 
 not lost unless there is an agreement to that effect.^ 
 
 § 535. Rights of the Wife over the Dower. — (A) During the 
 marriage. Prearranged dower affecting specific possessions was 
 at first considered as the property of the wife.^ But, accord- 
 ing to the classical theory, the husband kept the ownership, ad- 
 ministration and enjoyment of it during the marriage. All the more 
 was this so with respect to the Customary dower, which affects 
 a certain quantity — a half or a third — of the possessions of the 
 husband.'* If the latter no longer loses the ownership of dower, 
 he only has a limited right of disposal ; he cannot by means of any 
 deed,^ whether for a consideration or gratuitous, deprive the wife 
 of her dower.^ When he alienates possessions which are encum- 
 bered with dower, the alienation, though it cannot be attacked 
 
 1 "Gr. Cout.," II, 32; Loijsel, 174; "Norm.," 361; "Bret.,"_450; GlanvUle, 
 VI, 17; Blackstone, II, 8; Pothier, no. 257; Dumoulin, on "Paris," 30; Loysel, 
 175; Pothier, no. 258 (Order of 1571); "F. de Nav.," 4; Stohhe, III, 116.— 
 "Anjou," 311: Misappropriation of dower, — that is to say, abuse of its 
 enjoyment. — Some of tlie Customs, "Touraine," 337; "Maine," 313; 
 "Anjou," 310; and "Bret.," 208, consider as being inconsistent the quality 
 of dowager and of legatee or donee; in Paris the wife can have at one and the 
 same time her dower out of the personal belongings and a gift out of the 
 portion of the jointly acquired property of the community which was con- 
 tributed by her husband. — "Bourg.," 38: renunciation of the community 
 causes loss of dower. Contra, "A. C.," (in Giraud), Art. 3. 
 
 2 Fleury, I, 385; Pothier, no. 263; "Bret.," 254; "Ass. de J6r.," "C. des 
 B.," 167; "Olim," III, 1193, 3. 
 
 ' The husband makes a delivery to the wife. Cf. a charter of 1069 in 
 Beugnot, "Ass. de Jer.," II, 116: "I give you one-half of that which I shall 
 receive from the inheritance of my mother"; then comes a specification of 
 the property: "hec autem trado tibi sub attestatione carte hujus" (Verdun). 
 Cf. Lauriere, on Loysel, 155; P. de la Janes, nos. 405, 409: the ordinary clause 
 of disseisin-seisin is sufficient. Germany: formalities of the "Auflassung" 
 in general, but in families of princes a mere agreement is sufficient: Stobbe, 
 IV, 115. 
 
 * The wife could at the most be considered as a joint owner of one-half 
 or one-third of the husband's possessions. 
 
 ^ "T. A. C., Norm.," 4; 79, 12: confiscation of the husband's possessions 
 carries with it loss of dower. Contra, Loysel, 142 et seq.; L'Hommeau, III, 55. 
 
 * "Jostice," p. 169: "Dower cannot be encumbered"; Chaisemartin, 
 p. 339; Rimasson, p. 158. The inalienabihty or quasi-inahenability of dower 
 was one of the causes of its being done away with. Cf. the English law of 
 1833 (Lehr, p. 104): the husband is authorized to deprive the w-ife of her 
 dower unless he shall have stipulated not to do so in the marriage contract; 
 purchasers or creditors of the husband are consequently preferred to the widow. 
 
 774
 
 Topic 2] DOWER AKD OTHER RIGHTS BY SURVIVORSHIP [§ 535 
 
 during the marriage, is void as against the wife upon its dissolu- 
 tion.^ From this it follows that: (a) if the husband survives, as 
 there is no longer any dower, this deed cannot be attacked ; (6) if 
 the dower is prearranged, the wife who survives has the right to 
 reclaim - the personal belonging which has been alienated,^ though 
 the grantee who has been ousted may bring an action of warranty 
 against the heirs of the husband; (c) if the dower is Customary, the 
 wife who survives may reclaim possessions alienated by the hus- 
 band only if there are no personal belongings in the inheritance ; 
 the heir is thus compelled to provide her with her dower first of 
 all out of the hereditary possessions. It of course follows that 
 these solutions are applied to agreements creating rights in land 
 as well as to alienations properly so called. The husband whose 
 credit was found to be very much affected by the rights of his 
 wife, and third parties with whom he dealt, could not fail to at- 
 tempt to provide for themselves against the danger of an eviction. 
 There were cases in which eviction could not take place, for ex- 
 ample, the case of sworn poverty; for if the rights of the family 
 were blotted out under this hypothesis, all the more should it be 
 the same with the rights of the wife.'* In all periods it seems that 
 alienations made by the husband with the consent of the wife have 
 been made valid; numerous examples of this are to be found dur- 
 ing the barbarian period.^ During the feudal period renunciation 
 of her rights by the wife is authorized ^ on condition that it shall 
 take place under oath,^ and when the dower has been prearranged 
 
 ^ This general principle has not been everywhere applied in the same 
 way. Our outline is therefore only general. 
 
 2 For how long a time? Certain Customs only give her a period of a year 
 and a day. Generally she has the ordinary periods of prescription reckoned 
 from the time of the husband's death: Dumoulin, s. 119; "Gr. Perche"; 
 "Paris," 117; L'Hommeau, p. 482. The Decree does not extinguish the 
 dower. 
 
 3 Beaumanoir, 13, 5 (c/. 21, 3): after her death the inheritance reverts 
 to the purchaser. Contra, if the dower belongs to the children: "T. A. C, 
 Norm.," 79; "Summa," 101; Blackstone, II, 8; Glanville, VI, 3: same solution, 
 but with this exception, that if the wife offers opposition to the alienation 
 she loses her dower; this is because she is bound not to gain.say her husband. 
 
 * "Gr. Cout.," II, 32; Boularic; "Actes du Pari.," no. 7823. Other cases 
 of necessary ahenation: Pothier, no. 84. 
 
 * Rimasson, p. 397. 
 
 8 Beaumanoir, 13, 5; "Olim," I, 735 (in 1268): expressed renunciation; 
 "Jostice," p. 169 (grant to the wife); Boutanc, I, 97; "L. d. Droiz,"_ 849; 
 "T. A. C, Norm.," 4 (the wife's renunciation is not binding). The wife in 
 Scotland renounces her dower without any formalities; in English law the same 
 result is arrived at indirectly by means of the proceeding of the fine and 
 recovery. 
 
 ' "Et. de St. Louis," I, 173; "Artois," 33. The other texts do not mention 
 it: "T. A. C, Norm.," 4; "T. A. C, Bret.," 30, 40; "F. de Beam," 272. 
 
 775
 
 § 535] SYSTEM OF PROPERTY BETWEEN SPOUSES [Cn.'U'. V 
 
 the amount renounced must be reinvested.^ This, however, only 
 came about very gradually, for it was to be feared that the 
 consent of the wife was not free; if during the marriage she 
 could not give up her dower in mass and all at once, she ran the 
 risk of being led to lose it bit by bit by means of successive re- 
 nunciations in proportion to the alienations made by the husband. 
 In the sixteenth century the oath is no longer made use of. Re- 
 investment, properly so called, has given way to the recompense 
 or legal reinvestment;^ and, finally, the security of the wife 
 consisted in an implied mortgage.^ 
 
 § 536. The Same. — (B) At the death of the hushand. Only 
 then did this right vest for the benefit of the wife, for the rule is 
 that "a husband never paid dower." '^ Loysel, 14G, says that 
 "Customary dower gives seisin;^ prearranged dower had to 
 be asked for at law, which is something that is beginning to be 
 changed almost everj-where." ^ In prearranged dower the pos- 
 sessions subject to the dower were known beforehand. On the 
 other hand, it was necessary to partition the personal belongings 
 of the husband in order to know which of them were affected bv 
 
 1 "Et. de St. Louis," I, 173; Boutaric, I, 97; "Artois," 33. 
 
 2 Loysel, lol. Lauriere states that the renunciation is valid even if the 
 wife does not take any other property from the husband's succession in order 
 to indemnify herself. Cf. renunciation of the Velleianum Decree of the 
 Senate: Meynial, "N. R. H.," 1900. 
 
 3 Loysel, 155. Rank, Pothier, no. 193 (Order of 1661: after the marriage 
 portion and before the reinvestment of the personal belongings), 343; Boissoti- 
 ade, p. 178. The mortgage affects the hereditary possessions held by the heirs 
 and possessions which have been aUenated and are held by third party pur- 
 chasers. The implied mortgage was brought about in two ways: (a) system 
 of rents assigned over a piece of land; (b) notarial deeds: see "System of 
 Mortgages"; "Toulouse," 118: " assignamenta pro necessariis dotibus et 
 dotaliciis." A similar mortgage for the increase of the marriage portion; 
 the wife could not renounce it (cf. post, "Marriage portion system"), whereas 
 she was allowed to renounce the dower mortgage. 
 
 * Dower even went so far as tliis: Loysel, 141, 172. However, in case of a 
 judicial separation or separate maintenance the wife had a right to reclaim 
 her dower "during the hfetime of her baron." "Ass. de Jerus.," "C. des 
 B.," 171; Viollet, p. 790; Pothier, no. 153; Fleury, "Inst.," I, 386. In the 
 seventeenth century the wife who had obtained a separate maintenance only 
 obtained an allowance, the "Semi-dower": see Ferriere. 
 
 5 Loysel, 141; Desmares, 216; "Gr. Gout.," II, 33; "Paris, A. C.," 140, 
 143; "N. C.," 236. The issues, arrears, complaints: Pothier, 159; Stobbe, 
 IV, 115. 
 
 ^ Competence of the ecclesiastical courts; in the thirteenth century the 
 lay courts have jurisdiction in the action for possession, and in the sixteenth 
 century there is no longer any question of ecclesiastical jurisdiction: P. de 
 Fontaines, 21, 52; "Glim," in 1269, in Boutanc c, 1364; "T. A. G., Norm.," 
 5, 7 : delays in the ecclesiastical courts as a result of a series of appeals carried 
 as far as the pope: Glanville, VI, 11, 14; Boutaric, II, 1; Loysel, 146; Beau- 
 manoir, 11, 9; "L. d. Dr.," 421. 
 
 776
 
 Topic 2] DOWER AND OTHER RIGHTS BY SURVIVORSHIP [§ 537 
 
 the Customary dower; ^ according to certain Customs, the 
 "woman who has dower apportions and the heir chooses";^ 
 others give the wife the choice of possessions. — The estate of 
 the wife, especially in dower by agreement, consisted at first in 
 a true ownership, which was sometimes perpetual and sometimes 
 for life; ^ the latter prevailed, and was transformed under the in- 
 fluence of the Roman theories into a mere enjoyment or usufruct, 
 which was extended, it is true, by reason of its origin, in a very 
 broad manner.^ Dower is free, it is said; ^ thus, the widow does 
 not have to pay any relief; ^ she does not contribute to the 
 debts on movables of the inheritance of her husband; ^ and, 
 finally, in many of the Customs she furnished no surety.^ 
 
 § 537. The Dower of Children ^ is nothing else than the dower 
 of the mother ^° which has become a Customary, "legal share" " 
 
 1 "Dwelling-house," post; Beaumanoir, 13, 19. 
 
 2 Beaumanoir, 13, 8, 24; "Bret.," 31, 33; Loysel, 156 et seq. 
 
 3 Viollet, p. 777; "Et. de St. Louis," I, 132, 137. Ownership according 
 to certain Customs, — for example, "Sens," 169; or by means of an agree- 
 ment: P. de la Janes, no. 400. Dower without any reversion, see Ferriere; 
 Loysel, 148; "T. A. C, Norm.," 6. The "Cout. d'Aoste," 5, 7, 15, allowed the 
 wife to dispose of her dower without leaving any part of it to the children, 
 "which custom seemed to be rather harsh": Fertile, III, 337; Stobbe, IV, 115. 
 — The general tendency, which was in conformity with the general con- 
 ception of the gift, must have been to confer upon the wife only an ownership 
 limited by the right of reversion to the donee and his heirs; this right became 
 stronger when the dowager had only a usufruct, whereas in the case of 
 ordinary gifts it disappeared or was reduced to the condition of a right of 
 succession: Brunner, "Forsch.," 733. Cf. Rimasson, pp. 403, 159 (Roman 
 influence). 
 
 ^ The idea of ownership enables us to understand why the widow origi- 
 nally had the honorary rights connected with the fief (hunting, presentation 
 of benefices, etc.), gave homage, paid the rehef ("Gr. Cout.," II, 27. Cf. 
 lease, appanage, pledge), paid not only the ordinary charge, such as the quit- 
 rent, but the extraordinary charges, such as the Church tallage. — When 
 she became a mere usufructuary she no longer had anything excepting rights 
 of user, did not pay any relief ("Paris," 40), and very often had to give surety. 
 Cf. Fothier, nos. 53 and 230. 
 
 5 The dowager must have taken the issues free and clear: Beaumanoir, 
 12, 2; 13, 7, 22 et seq.; Bracton, II, 40, 4; Brittoji, 103; Stobbe, III, 116. 
 
 • Loijsel, 154; "Olim," I, 419; "Paris," 40; F. de la Janes, no. 402. 
 
 7 Beaumanoir, 13, 9; "Olim," I, 467, 1; "Const, du Chat.," § 78 (ed. 
 Mortet), note; -post, "Community"; Renusson, c. 8. 
 
 * Loysel, 153 (she keeps up the land, and pays the charges and ordinary 
 rents of the land, but not those which have been constituted during the mar- 
 riage); Beaumanoir, 30, 40; Desmares, 187, 196; "Cout. Not.," 104; "Paris," 
 252 264' Fothier nos. 53 210. 
 
 9 Fothier, no.' 228 el 'seq.; Marchant, "These," 1899 (bibl.); R. Caillemer, 
 "Melanges Appleton," 1903 ("Douaire des Enfants"). 
 
 1" Save a few exceptions: Lebrun, "Succ," II, 5. 
 
 " An exTaression of Loysel, 158. — Cf: the " Verfangenschaf t " of the German 
 law: Stobbe, IV, 105 (bibl.), in the hands of the surviving spouse the immovable 
 possessions of the predeceased spouse constitute with those of the former a 
 mass which is inalienable unless the consent of the children be given; these 
 
 777
 
 § 537] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 for the children.^ If the mother dies before the father, the children 
 are given dower in her stead and place; ^ but their right only vests 
 at the death of the father. Up to that time the dower cannot 
 be disposed of by him; it is even more inalienable than that of 
 the wife, because she could renounce it and the children cannot. 
 ^^^len the father dies ^ the children are given a choice between the 
 paternal inheritance and the dower, because "No one can be heir 
 and have dower at the same time." If they accepted the inherit- 
 ance the dower was not separated from the latter; they had to 
 pay the debts of the father and abide by alienations made by 
 him. If they renounced, they were authorized to take dower free 
 from the paternal debts and no transferee could set up against 
 them any alienation or agreement conferring real rights. How- 
 ever, they were held bound to deduct from the dower gifts which 
 they had received, because no one can have dower and be a donee 
 or legatee at the same time. Thus the dower of children appears 
 to be a more powerful form of reservation; "* the latter, in fact, was 
 
 possessions are "Verfangen," that is to say, chained up for the benefit of the 
 children; in case the surviving spouse marries again they are kept for the chil- 
 dren of the first marriage to the exclusion of those of subsequent marriages. 
 Cf. devolution and mutual gift, ante. The theory of " Verf angenschaf t " 
 gives rise to controversy (summed up in Stobbe, IV, 128). From the his- 
 toric point of view one should notice its variations : the surviving spouse found 
 himself originally at the head of the community, then his possessions were 
 distinguished from those of the predeceased, and over the latter he was given 
 merely an ownership for life or a usufruct. Cf. as to this evolution, Heusler, 
 II, 457. 
 
 1 P. de Fontaines, 34, 8; Boutaric, "Arr. du Pari.," March 15, 1326; "Jos- 
 tice," 10, 21; 12,24; 12, 6; 8,3; Beaumanoir, 13,2-18 (villages alone); "A. C, 
 Artois," 35; "A. C, Picardie," pp. 151, 154; "Gr. Gout.," II, 32; Desmares, 
 175, 217, 283; "Gout. Not.," 82; Boutaric, I, 97 (note by Charondas); "Gonf. 
 des Gout, de Guenois," loc. cit.; "Paris," 248 et seq.; Ferriere on this Art.; 
 Marchant, pp. 54, 61. 
 
 2 Which means that "there is no dower upon dower": Loysel, 168; "Jos- 
 tice," p. 256; Beaumanmr, 13, 2, 18; "Gonst. Ghat.," 26; "Gr. Gout.," II, 27. 
 Thenceforth in the case of a second marriage the dower of the second \vife 
 is one-fourth, that of the third one-eighth, etc.; in fact, the only thing that 
 is left at the disposal of the father who remarries is one-half of his personal 
 belongings; and, the dower being of one-half, this will amount to one-fourth 
 (or the half of one-half) of the inheritance properly speaking, etc.: "Paris," 
 253; "Artois," 135. 
 
 ' Cf. in the Roman law the rule, "Dotis causa perpetua est." The in- 
 alienability of the land constituting the marriage portion, which is inspired 
 by the thought of allowing the widow to marry again, was diverted from this 
 object and served to keep the marriage portion in the family. 
 
 ^ The legal share in the reservation must be paid by the father and the 
 mother; the dower, by the father alone. Dower affects present personal 
 belongings at the time of the marriage, or those which are acquired later on, 
 even though they be alienated for a consideration, and not merely when they 
 are given or bequeathed. Dower is only charged with debts contracted 
 previous to the marriage; on the contrary, debts contracted during the mar- 
 riage are paid out of the legal share and the reservation. In order to have 
 
 778
 
 Topic 2] DOWER AND OTHER RIGHTS BY SURVIVORSHIP [§ 538 
 
 only an obstacle to gifts by will.^ Dower is connected with the 
 very old institutions, inspired by the old spirit of community in- 
 terests.^ It is therefore not very difficult to account for the fact 
 that they succeeded in maintaining this ground until the end of 
 the Old Regime in certain Customs, such as that of Paris, but 
 that at the same time they did not have sufficient strength to 
 become generalized or to become common law. 
 
 § 538. The Increase of the Marriage Portion is the dower of 
 countries of written law.^ It has the same object and the same 
 characteristics,^ but not the same origin. The amount of the in- 
 crease varies according to localities; as a general thing, it is pro- 
 portional to the marriage portion to which it is added,^ and the 
 amount of which it increases J^ Sometimes it is equal to the mar- 
 dower one must renounce the position of heir. The children can be de- 
 prived of dower (and not of the legal share or of the reservation) by a clause 
 in the marriage contract, dower not being subject to the rules relative to 
 primogeniture: Loysel, 163. These peculiarities are to be accounted for by 
 the fact that from the day of the marriage the children acquire the dower 
 just as though a delivery of it had been made; they get it "jure contractus," 
 and not "jure successionis " : P. de la Janes, 409. 
 
 1 The customary third in Normandy, introduced for the first time in 
 the "Custom" of 1583, Art. 399 et seq. (see Basnage, etc.), is a sort of legal 
 share, — the only one, moreover, which was recognized in this province, 
 and one which the Custom gave to the children in the form of the ownership 
 of certain of their father's and mother's possessions in case they gave up their 
 succession, and of which they could only be deprived by being disinherited: 
 see Ragueau, Guyot. 
 
 2 During the barbarian period it is not a rare thing for the widow to be 
 unable to dispose of the marriage portion given by her husband to the preju- 
 dice of her children; in case of a second marriage the surviving husband is 
 forbidden to dispose of it. Contra, "N. R. H.," 1884, 654. Can one also 
 say that the dower consisting of ownership naturally passed to the children? 
 
 * Terminology: "Donatio propter nuptias," "sponsalicium," "augmentum," 
 "agenciamentum," "osculum": "Bord., A. C," 111; "Cahors," 22; "Ass.de 
 J6rus.," "C. des B.," 167; "Toulouse," 113 et seq.; "Angoumois," 47; Viollet, 
 p. 810. "Arras," in Spain; "Screix" (increase) in Roussillon and Catalonia. 
 B. d'Argis, p. 98 (advantage by contract). Italy: "contrados," cf. 
 "avTKp^pvT)," "incontro," " contrafatto," "antefatto" ("maximum"). German 
 law, see "Widerlage." 
 
 ■• Boucher d'Argis, p. 25 (comparison with dower). Effects during the life 
 of the husband: "Toulouse," 118, 153; "Tonneins," 84. — There are Cus- 
 toms according to which the widow has the increase and the dower both at 
 the same time. In Navarre the widow of a noble has the usufruct of all her 
 husband's possessions, besides the "arras" and one-half of the acquests. 
 
 ^ Before the time of Justinian the antenuptial gift was already in pro- 
 portion to the marriage portion. The correlation was very much closer 
 after the time of Justinian: (a) it could be established during the marriage; 
 (h) the amount of it had to be equal to that of the dower ("Nov.," 97); (c) 
 the immovables were inalienable ("Nov.," 61); (d) mortgage upon the hus- 
 band's possessions; (e) anticipated restitution if the husband became in- 
 solvent: Girard, p. 957. 
 
 8 No increase without marriage portion: "Petrus," I, 30. — In the will 
 (unpublished) of a simple workman, Jean do Latour, Aug. 28, 1348, the fact 
 is admitted that his wife brought him a marriage portion of 8 "livres" and 
 
 779
 
 § 538] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 riage portion (double marriage portion)/ sometimes to one-half 
 or one-third of the latter.^ Although the parties may be free to 
 fix the amount of the increase,^ it is not usual for the increase 
 which is agreed upon to be greater than the Customary increase. 
 It ordinarily consists in a right of ownership if there are no children, 
 and in a usufruct if there are.^ The mother who does not remarry 
 acquires, as a general thing, the "mans share" of ownership in 
 the increase, — that is to say, a man's share with respect to th j 
 number of children who inherit.^ The origin of the increase, 
 which was formerly much disputed,^ seems to have been in the 
 " ante nuptias " gift of the Theodosian law, which had not ceased 
 to be in use in the South of France.^ Upon two points they are 
 similar; like the antenuptial gift, it cannot be appointed during 
 the marriage; and, like that also, it is necessary that it should be 
 equal to the marriage portion. This equality, which was for- 
 bidden by the law of Justinian, was only accepted by a few ex- 
 ceptional Customs.^ The Southern Custom introduced an increase 
 
 10 "sols," and this sum was assigned out of a certain piece of land; J. de 
 Latour gives his vfiie as an increase of her marriage portion, and by reason 
 of her pleasing services with her body and her property, a simi of 70 "sols." 
 — Lezat, 49; "Tonneins," 83. — Italy, Lattes, 240, 247. 
 
 1 "Bord. N. C," 47, 49; "Agen.," 27, etc.; Stobbe, IV, 185. 
 
 2 "Toulouse," "Foix," "Montauban," "Albi," "Comminges"; Lezat, 
 p. 97, etc. 
 
 3 Roussilhe, "Dot," II, 141; "Cahors," 22. 
 
 * "Petrus," I, 33. As to the Justinian law cf. Zacharie de Ldngenthal, 
 p. 64 et seq. 
 
 * Boucher d'Argis, p. 194; Henrys, IV, 9, 56 and 111. 
 
 ^ Boucher d'Argis connects it with the Byzantine "hypobolon." Cf. 
 Zacharie de Lingenthal, p. 64 et seq. The crusaders must have brought this 
 institution with them from Constantinople. But the truth of the matter 
 is that both the "hypobolon" and the increase have a common origin: Bran- 
 dileone, "Don. propter nuptias," 1892; "Studii s. svolg. d. Rapporti patri- 
 moniah fra conjugi in Italia, Arch. Giur.," 67, 2 (1901); "Ult. fase d. Don. 
 pr. nupt."; Esmein, "Le Test, du Mari et la Don. ante nuptias" ("Mel.," 
 1886); "N. R. H.," 1884, 1. 
 
 ' The marriage contracts in the South as early as the eleventh century 
 contain antenuptial gifts which are frequently joined to marriage portion 
 gifts. Examples in D. Vaissette, V, 738 (in 1095). Bertrand, the son of Rai- 
 mond de Saint-Gilles, gives his fiancee "in sponsalicio" the towns of Rodez, 
 Cahors, Viviers, Avignon and Digne, each one "cum comitatu et episcopio"; 
 after the death of the spouses they will pass to their children; if there are no 
 children the wife, should she survive, shall have the right to dispose of them 
 at her will. Generally in other deeds, if there are no children, the property 
 reverts to the husband's relatives: V, 795, 888, 954, 1109, 1202; VIII, 278 
 (in 1171: inequality between the marriage portion and the gift "propter 
 nuptias"), 317, 394, 498. Pasquier, "Doc. rel. a Boussagues," pp. 26, 28; 
 "Liber Inst, memor." ("Cartul. des Guillems de MontpeUier," 1884-6), 
 pp. 92, 263, 270, 349, etc. 
 
 8 "Petrus," I, 30, 43, 51, also requires that the gift "Propter nuptias" 
 and the marriage portion should be of equal value; "Bord. N. C," IV, 47, 49. 
 Contra: "MontpeUier," 75, 95; "Alais," 17; "Liber Instr. memor.," lac. cit. 
 
 780
 
 Topic 2] DOWER AND OTHER RIGHTS BY SURVIVORSHIP [§541 
 
 established by agreement into certain localities.^ Both the in- 
 crease and the antenuptial gift were for the benefit of the children, 
 provided the mother should have survived, whereas the dower 
 only benefited them as an exception and when the mother had not 
 survived.^ 
 
 § 539. Rings and Jewels ^ were another right based on sur- 
 vivorship, granted to the widow in countries of written law, and 
 consisted originally in objects specifically given by the hus- 
 band to his wife,^ and later in a fraction of his possessions, — one- 
 twentieth or one-tenth of the marriage portion, so as to form a 
 sort of balance for the increase.^ 
 
 § 540. Counter- Increase.^ — In case the wife died before the 
 husband the latter received all or a part of the marriage por- 
 tion, sometimes in ownership, when there were no children, or- 
 dinarily in usufruct, especially where there were children.'^ This 
 is what is called the "Counter-increase," an equitable set-off 
 for the acquisition of the increase of the marriage portion by 
 the widow, and perhaps a survival of the acquiring of the marriage 
 portion by the husband in the Roman legislation. 
 
 § 541. Mourning and Residence.^ — The Customary law, which 
 is in accord with the customs of the barbarian period, allowed 
 the widow to reside in the house of the husband,^ and also allowed 
 her mourning, — that is to say, mourning garments.^*' The widow 
 
 1 "Bord. N. C," 47, 49; Boucher d'Argis, p. 29; Pons, he. cit. 
 
 2 Bretonnier, "Quest.," II, 1, 4, 9, 1. 
 
 3 Boucher d'Argis, p. 63; see Guyot; Argou, III, 11. 
 
 * Cf. the old custom of betrothal presents. — See "Morgengabe," ante. 
 Aragon, "bentages forales" (clothing, jewelry, the best bed in the house, 
 a hackney, two beasts of burden with their harness). Catalonia, "regalos 
 de boda." — Cf. paraphernaUa of the English wife: Lehr, p. 103 (jewels given 
 to the wife in order that she may wear them with a view of maintaining her 
 rank in society; frequently she does not acquire their ownership; they are the 
 family jewels). — In Rome, Labeon bequeaths to his wife Neratia the " mundus 
 muhebris" and the "ornamenta muliebria": Dig., "de leg.," 32, 32, 6. 
 
 ^ Sometimes the rings and jewels are the wife's of absolute right (Lyonnais), 
 sometimes they must be stipulated for in the marriage contract (Provence, 
 Grenoble, Bordeaux, Toulouse). They are to be found once more at Metz. 
 
 ® See as to this deeds of the South in D. Vaissette, V, 895, etc.; "Toulouse," 
 88, 92, 114, 115; "Tornadotz," "Fors et Cost, de Bdarn," "r. de marit."; 
 "Bord., A. C," 104; Ducros, "Refl. s. la Cout. d'Agen," 246. 
 
 ■ The Customs of the South vary greatly: "Nov.," 53, 6; 117, 5; "Cod. 
 Just.," 6, 18; "Petrus," I, 33; B. d'Argis, Koussilhe, etc. 
 
 8 Pothier, "Tr. du Dr. d'Habitation," 1771; Boucher d'Argis, 63, 101; 
 Argou, III, 11; Civil Code, 1465, 1481, 1492, 1570. 
 
 » "Et. de St. Louis," I, 16. Cf. in the Mahometan law the period of legal 
 repurchase ("aidda"), Joly, "Th6se," p. 176. 
 
 1° Loysel, 135. Roman custom: "mulier non debet suis sumptibus lugere 
 maritum." The English widow has not a right to mourning: Lehr, p. 107 
 {contra in Scotland): Civil Code, 1481. 
 
 781
 
 § 541] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 originally could not be banished from the conjugal hearth as long 
 as she did not remarry. But later this right became restricted; 
 the Custom of Paris only grants it during the period required 
 to make an inventory and decide on what is to be done; the widow 
 then took her maintenance and that of the servants out of the 
 stores belonging to the community.^ It was also customary in 
 countries of Customs for her to withdraw from the movables of 
 the community a few minor objects for her personal use ("linen 
 and wearing apparel").^ — In countries of written law she had 
 no right to residence unless there were a special agreement to that 
 effect.^ But mourning she was entitled to, as well as maintenance 
 ("necessaria, vestitus et victus") during the year which was 
 granted to the heirs of the husband within which to make restitu- 
 tion of the marriage portion (excepting that she was not allowed to 
 demand interest on the marriage portion) ; if she had not brought 
 with her any marriage portion, she received an allowance during 
 this year, which was called "the ■widow's." ■* 
 
 ' "Quarantine" of the widow in England ("Magna Charta," 1215, c. 7; 
 Bracton, fo. 96). "Free Bench of the County of Kent," ante. "Trentaine" of 
 the German law, and often during this period the widow has the "Musstheil," 
 that is to say one-half of the provisions for eating which happen to be in the 
 house at the time of the death of the husband: Schroeder, 309; Heusler, II, 
 298, 326, 342; Fertile, III, 341. 
 
 2 Beaumanoir, 13, 21, only allows the widow to carry away her every-day 
 dress and a bed such as she was accustomed to use for her rest; Boucher d'Argis, 
 81. — "Roisin," p. 154; Lagreze, "Dr. dans Pyr.," p. 127; "Tours," 293. 
 
 * "Insistance," "Toulouse," 119 etseq.; "Tenute" in "Roussillon"; B. 
 d'Argis, 93; "Des Dev. du Dez.," p. 822; "F. de Beam," 2, "De Marit." 3. 
 
 * "Toulouse," 119 et seq.; "Decis. Cap. Tol.," IX, 337; R. de Lacombe, 
 see "Augment," no. 24 (dwelling-house until the pay merit of the increase); 
 Roussilhe, no. 625. 
 
 782
 
 Topic 3] 
 
 SYSTEMS WITHOUT COMMUNITY 
 
 [§543 
 
 Topic 3. Systems without Community 
 
 § 542. In General. 
 
 § 543. English System. — (A) The 
 
 Common Law. 
 § 544. The Same. — (B) Courts of 
 
 Equity. 
 § 545. The Same. — (C) Act of the 
 
 10th of August, 1882. 
 § 546. Norman System. — (A) Inca- 
 
 pacityof theMarried Woman. 
 
 § 547. The Same. — (B) The Admin- 
 istration of the Immovables. 
 
 § 548. The Same. — (C) Inalienabil- 
 ity of the Marriage Portion. 
 
 § 549. German System of Unity of 
 Possessions. 
 
 § 550. The Roman System of Mar- 
 riage Portion. 
 
 § 551. The Partiiership of Acquests. 
 
 § 542. In General. — The systems of property between spouses 
 during the feudal and monarchic periods are very diverse, but 
 can be reduced to two principal types. 1st. Systems without 
 community, which are in use in England and Normandy and in 
 rather a large portion of Germany and Switzerland and a few 
 localities in the "east of France. We may group with this the 
 Roman system of marriage portions which was in effect in coun- 
 tries of written law, Italy and Spain. — 2d. Systems with commu- 
 nity. Such are the partnership in acquests found in Spain and the 
 southwest of France, the community of movables and acquests 
 found in Customary France and Germany, and the absolute 
 community found in a part of Germany. 
 
 § 543. English System.^ — (A) The Common Law under its 
 classical form, such as it appears in Blackstone, with that extreme 
 logic which does not hesitate at the absurd, seems to organize the 
 entire system of property between spouses as a function of the 
 incapacity of the married woman. During the marriage the wife 
 is nothing and has nothing. Her personality is absorbed in that 
 of the husband: "Vir et uxor sunt quasi unica persona," Brac- 
 ton was already saying, referring to the text of scripture, " erunt 
 duo in came una." ^ Marriage is for the woman a sort of civil 
 death; she cannot contract with her husband because they only 
 form one person ; gifts between spouses are radically impossible ; ^ 
 agreements entered into between them before the marriage are 
 
 1 Blackstone, I, 7, and II, 29; Pollock and Maitland, II, 397; Glasson, "Inst. 
 d'Anglet.," II, 284; IV, 308: VI, 187; Lehr, p. 70; Bc.rtheau, "The&e," 1902. 
 
 2 Bracton, fo. 429 b. Cf. fo. 414; Littleton, no. 168 : Gtanville, VI, 3 ; " Quoniam 
 Attach.," 22; "L. Burg.," 131. 
 
 * Cf. "Reg. Maj.," II, 15; Bracton, fo. 29. But the husband may make a 
 will leaving his property to his wife, as the gift is made to take effect at a 
 time when the marriage will no longer be in existence. 
 
 783
 
 § 543] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 annulled by the fact of its celebration; the wife cannot, moreover, 
 have any dealings with third parties, nor act at law, nor make 
 her will.^ There is no need for the husband to give her au- 
 thority, because she does not exist, considered as a person; ^ it 
 is he who acts, who contracts, and who pleads; he would un- 
 doubtedly have been charged with making his wife's will if 
 there had not been seen in this a religious act based upon 
 conscience alone. 
 
 There is some exaggeration in these formulfe, even if we only 
 consider the final state of the Common Law, and especially if one 
 goes back to the period of its formation. In the thirteenth century 
 the husband and the wife act jointly in court and extrajudicially, 
 where the lands of the wife are concerned. If their alienation is 
 proceeded with, the wife is interrogated by herself in order to find 
 out if her consent has been free. Thus one sees that her personal- 
 ity is not entirely obliterated. She owes obedience to her hus- 
 band, "non potest contradicere viro, quia vir caput mulieris"; 
 the husband has a right over her which can be compared to the 
 custody of a minor. By virtue of this right he acquires the 
 movables (personal property) of the wife, subject to paying her 
 debts, and has the administration and the enjoyment of her lands 
 (real property). It is in this sense that the passage from Bracton 
 must be. understood : "Omnia quse sunt uxoris sunt ipsius mariti." ^ 
 From this unity of patrimony, and from the respective rights of 
 the spouses at the death of one of them, there might have arisen 
 the system of the conjugal community.^ But the germs of this 
 
 ^ Glanville, VII, 5, 3: the wife cannot make a will without the authority 
 of her husband, but it is his duty to allow her to dispose of one-third of the 
 movables, and the majority of husbands do tlus. This is all the more readily 
 understood as in case the husband dies first, the mass of the movables is 
 divided into three portions: one for the deceased, one for his wife and one for 
 his heirs. Private documents support this assertion. Cf. also Bracton, 
 fo. QOb. If the wife dies intestate one portion of the movables is used in 
 pious works for the salvation of her soul through the care of the Church. 
 Thus it is the Church which claims the wife's portion and not the he,irs, as 
 would have been the case under the community system. 
 
 2 The wife may contract in the capacity of an agent of her husband, in 
 order to obtain household necessaries: Pollock and Maitland, II, 432. 
 
 3 Bracton, fo. 32. 
 
 * Pollock and Maitland, II, 432, cite an old deed which concludes as fol- 
 lows: "Sic utriusque conjugis bona confunduntur, ut quivis eorum totius 
 patrimonii in soHdum dominus sit." The two spouses are tenants by en- 
 tireties. Cf. Blackstone, II, 12. One conveys to the husband and the wife 
 and their heirs, the price of the wife's lands is paid to the husband and wife, 
 following the fine they both appear in court on behalf of the wife's lands: 
 Littleton, 667 et seq. Moreover, the community is not always easy to dis- 
 tinguish. It is generally admitted that it existed very long ago in Scotland, 
 and yet Fraser has maintained, "Husband and Wife," 1876, p. 648, that it 
 
 784
 
 Topic 3] SYSTEMS WITHOUT COMMUNPTY [§ 543 
 
 institution came to nothing in England as well as in Normandy. 
 The law set its face towards the separate property system. A 
 special fact accentuated the tendencies of the old legislation in this 
 direction. What I mean is the double jurisdiction of the Courts 
 of the Church and the secular tribunals. The former, not finding 
 the community either in the Roman or the Canon law, empha- 
 sized the fact that the wife had no movable property during the 
 marriage; the secular courts maintained a decided separation be- 
 tween the immovable inheritance of the spouses, so as to preserve 
 it for their family. 
 
 As a last item, the corporeal movables of the wife belong to the 
 husband ; he has the right to take possession of them, and, provid- 
 ing that he has done so, to dispose of them as of his own posses- 
 sions "inter vivos" or by will; they are included within the inte- 
 state succession.^ The products of the wife's labor are not 
 excepted from this rule. The taking of possession has a partic- 
 ular importance with regard to chattels real or choses in action, 
 whose disposal, consequently, is found to be a little different from 
 that of corporeal movables.^ As to the wife's immovables,^ the 
 husband acquires an estate over them as long as the marriage 
 lasts, or even for his whole life, in case a child is born (curtesy of 
 England) . He is free to dispose of tliis estate, but he cannot con- 
 fer on third parties rights more extensive than those which he 
 has himself. "A wife's property cannot be lost," as is demanded 
 by the interests of the family; the only means of alienating it is 
 the fine with the participation and consent of both the spouses.^ 
 
 had been but recently imported from France. Cf. post, Germany: D'Olive- 
 crona, p. 68. 
 
 1 Cf., however, above, the right of the wife to one-third of the movables 
 or to one-half if there are no children. But this old rule disappeared from the 
 common law: Pollock and Maitland, II, 346. Cf. "Anc. Us. d'Anjou," ed. 
 Marnier, § 75. 
 
 2 (A) Chattels Real; the husband can dispose of them but only "inter 
 vivos"; if he dies without having done so, they belong to the wife; if the 
 husband survives they belong to him. (B) Choses in action; the husband 
 collects the claims and can pursue the debtors; by this means he acquires 
 tliis species of property. If he does not do this, as the wife has never been 
 disseised, she keeps them. The husband who survives cannot pursue the 
 wife's debtors in his quality of husband, but he can do so as administrator 
 of the estate of his wife. 
 
 3 As to the "Maritagium" cf. Glanville, VII, 18; "Reg. Maj.," II, 18; 
 II, 28 et seq.; II, 48 et seq.; II, 57; III, 17; "Quoniam Attach.," 20, 91 et seq.; 
 "Stat. Alex.," II, 22; "Fleta," I, 13; III, 11; Britton, 67; Bracton, fo. 22, 28; 
 Littleton, 265 et seq.; Glasson, "Inst. Anglet.," VI, 185: "The daughters 
 scarcely ever receive any marriage portion from their parents, and, as their 
 rights of inheritance are very limited it follows that all the wealth is kept for 
 the men." 
 
 * Glanville, VIII. — Gide, p. 253. 
 
 785
 
 § 543] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 If one wishes to have a complete idea of the English system, one 
 must remember that the wife has a dower of one-third, which 
 makes it impossible for the husband to dispose of his lands during 
 the marriage excepting by way of fine and with the consent of his 
 wife. She still has a right to her "pin money," an annual allow- 
 ance which it is customary for her husband to promise her, and 
 to "paraphernalia," jewels and articles of the toilet (without 
 counting the wardrobe which is necessary for her).^ 
 
 § 544. The Same. — (B) Courts of Equity. The decisions of 
 the courts of equity authorized the wife to keep as her personal 
 belongings certain properties (separate estate) by confiding them 
 to trustees or fiduciaries.^ With respect to these possessions she 
 has the same capacity as the unmarried woman ("feme sole"), the 
 assured power ("ligia potestas") of the widow. At law the wife is 
 " covert de baron" ^ and has no possessions of her own; in equity 
 she becomes independent of her husband through the interven- 
 tion of trustees and to the extent of her separate estate.^ This is 
 the wife with a marriage portion and the wife with paraphernalia, 
 of the Roman law, but quite differentiated as a result of the pres- 
 ence of the fiduciaries who are strangers to the husband. This is 
 a solution of rather doubtful propriety, this three-cornered estab- 
 lishment, but no other expedient was found to take the woman 
 whose personal fortune was considerable out of the power of her 
 husband. The motives which justified this even caused in time 
 the recognition of the fact that the wife had a right to demand a 
 separate estate independent of any agreement (equity to a settle- 
 ment).^ 
 
 § 545. The Same. — (C) Act of the 10th of August, 1882. This 
 body of rules was completed and generalized by a Law of 1882 en- 
 acting the civil emancipation of the married woman. This statute 
 was exactly opposite to the common law. All the possessions 
 
 1 The husband has a right to dispose "inter vivos" (but not by will) of 
 the rings and jewels of his T^-ife and these form a pledge for his creditors. 
 Cf. "Quoniam Attach.," 21, 38; "Fleta," V, 17. 
 
 2 Pollock and Maitland, II, 430 (origin of this sort of trust). CJ. "Sonder- 
 gut" of the German wife. 
 
 ^ Du Cange, see "Cooperire"; Pollock and Maitland, II, 404. 
 
 * Cf. ante, "Uses." The Courts of Chancery recognized married women a3 
 having the status of a "cestui nue use." 
 
 * A settlement is usually a aeed by means of which the disposal of a piece 
 of property is determined. The Court of Chancery at first only intervened 
 on behalf of the wife when the husband applied to it, for example in order to 
 obtain possession of a piece of the wife's property; it applied the rule: "He 
 who seeks Equity must do Equity"; the Court would only give its help to the 
 husband if he made a settlement on his wife, as Equity required. 
 
 786
 
 Topic 3] SYSTEMS \\-ITIIOUT COAniUNITY [§ 546 
 
 of the wife are looked upon as paraphernalia, except there be an 
 agreement to the contrary. The wife is fully capable of acting 
 alone at law or ext^ajudiciall3^ She has only to contribute to the 
 expenses of the keeping up of the marriage if the husband or the 
 children are indigent. The life in common of the spouses is not 
 accompanied by a single community of interests outside of that 
 which they may wash to establish and which they can put to an 
 end when they please. Separate property and equality of the 
 spouses, such is the liberal formula at which the English law 
 has arrived, after having begun with the strictest subjection 
 of the wife to the husband.^ 
 
 § 546. Norman System. — (A) Incapacity of the Married Woman. 
 The Norman law took the same point of departure as the English 
 law. "As soon as the wife is under the authority of her husband," 
 says the "Grand Coutumier de Normandie," ch. 100, "he can do 
 as he wishes wath her ^ and with her property and her inheritance; 
 she cannot be heard as long as she lives under him." ^ The abso- 
 lute incapacity of the married woman such as results from this 
 formula ^ suffers exceptions at a very early time and decreases es- 
 pecially during the sixteenth century; there are cases in which the 
 woman can act at law even in spite of her husband, for example, 
 when she has received an injury.^ When the alienation of her 
 marriage portion became lawful she had to be a party, and if 
 she had her husband's authority she was free to obligate herself 
 in the exceptional cases in which, even in the old times, she was al- 
 lowed to alienate her marriage portion (to get the husband out of 
 prison, etc.).^ If the early incapacity was not kept up, it at least 
 paved the way for the Velleianum Senate Decree, which forbade 
 married women, and even unmarried women and widows, to bind 
 themselves for another. It was introduced into Normandy, as 
 in the rest of Customary France, about the fourteenth century,^ 
 
 1 Barclay, "Bull. Soc. l^g. comp.," XII, 443; Esmein on Gide, p. 259; 
 Bertheau, p. 312. 
 
 2 "Summa," 85, 8; 100, 3, 77. The following saying of Dumoulin is often 
 cited: "In Neustria mulieres sunt ut ancillse, multum subdit£B viris suis 
 qui sunt avari." 
 
 * Incapacity of making a wnll lessened in Art. 417 of the "N. C." 
 
 « Cf. "Hainaut," 1534: Glasson, VII, 389; Dum4es, "Dr. Fr. Flandre," 
 1753. 
 
 s "Summa,"76; 96; 100,3; "N. C," 543 et seq.; "Anc. Us. d'Anjou," ed. 
 Marnier, § 95. 
 
 ° Separate maintenance of Roman origin (which has not been adopted by 
 the English law). 
 
 ' Before this date no trace of it is to be found, a thing which is readily 
 conceived of, for the Theodosian law either disappeared or else became blended 
 
 787
 
 § 546] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 but it was applied there with a special strictness; intercessions for 
 the benefit of the husband or a third party were looked upon as 
 void at law unless there were letters of rescission ; women were for- 
 bidden to renounce the benefit of the senate decree, which was 
 contrary to the general usage in countries of Customary law, and 
 the Parliament of Rouen refused to register the Edict of August, 
 1606, which abolished the Roman institution.^ 
 
 The property brought by the wife, or "marriage," was very 
 small originally, for " the father owes his daughter a husband and 
 nothing more." ^ Daughters were excluded by the law, even 
 in the absence of agreement, from the inheritance of their as- 
 cendants, if they had brothers; ^ at the same time, they might be 
 recalled to the succession by a "reservation to partition," or even 
 receive a marriage portion; and in this case all of them together 
 ought only to have a third part of the inheritance at the most, 
 and each one only the share of one of her brothers (or the one who 
 took the least). If there were no reservation, the sons took the 
 entire succession; but the daughters, who could claim nothing 
 from their father,* had the right to demand from their brothers ° 
 a fitting marriage,^ that is to say, a sufficient marriage portion to 
 enable them to contract a marriage which corresponded to their 
 station. The brothers were freed as far as their sisters were con- 
 cerned, even if they did not give them any marriage portion, if 
 they succeeded in procuring for them an honorable husband; 
 
 with the Germanic law, and the Justinian law only penetrated the Norman 
 practice very slowly. The "Coutume" of 1583 makes no mention of it. 
 
 1 Froland, "M6m. concern. I'observ. du Ste. Vell^ien en Norm.," 1722; 
 Colin, p. 437. 
 
 2 Houard, "Diet, de Dr. Norm.," see "Filles," II, p. 503. This dictionary 
 is consistent with "T. A. C," 10, 1; 80, 2; "Summa," 26, 100; "N. C," 248 
 etseg., 250: if nothing were promised him at the time of his marriage, he should 
 have nothing. Le Poillevin, p. 267 (details as to the rights of succession of 
 daughters). 
 
 3 "T. A. C," 8-13, 80. C/. "Anjou," "Maine." 
 
 < "T.A.C.," 80, 2 (one-third at the most); "Summa," 100, 13. Cf. the 
 maxim of the Customs: "No marriage portion for him who does not wish one." 
 The discretionary power of the parents was tempered by the affection which 
 they felt for their children, and it was more to be feared that they would make 
 excessive gifts. As to contractual appointments (the benefits of which were 
 extended to include the brothers of the appointee, because the Custom was 
 one which equalized, and which made it impossible for the father appointing one 
 of his children to ahenate or to mortgage all the immovables), cj. § 519. 
 
 5 " T. A. C," 80, 4 : the brother is allowed a delay of a j^ear and a day within 
 which to provide his sister with a husband, when she is twenty years old; 
 "Summa,'^ 100. 15. 
 
 « "T.A. C," 80, 4: "De matrimonio competent! providere," "to provide 
 a suitable marriage." Cf. 3, 1 and 2; Ragueau, see "advenant," "apparag^e"; 
 "A.C., Anjou," ed., B-B., I, 70. 
 
 788
 
 Topic 3] SYSTEMS WITHOUT COMMUNITY [§ 546 
 
 when the sisters refused to accept the husbands procured for 
 them, they were (formerly) deprived of the marriage portion; con- 
 versely, if the brothers refused to establish their sisters, the latter 
 were allowed to apply to the law in order to obtain a third of the 
 paternal inheritance; and in cases of this sort they married whom- 
 soever they wished. In the last stage of the law daughters asked 
 for an arbitration of a fitting marriage for them before an assem- 
 bly of the family. This marriage portion, which was also called a 
 "legal share," or the equivalent of their hereditary share, consti- 
 tuted a preferred claim. It was paid regularly in money, but 
 consisted just as often in a conveyance of possessions of an equal 
 amount, as the sons preferred to free themselves in this way so that 
 the daughter, compelled to have recourse to means of compul- 
 sion, should not be able to claim from third parties ^ the im- 
 movables coming from the family.^ The settlement of the fitting 
 marriage was a complicated operation; the right of the daughter 
 or daughters was to one-third of the inheritance, but the share 
 of any one of them could not exceed the share of the son who took 
 the least; besides, in order to allot these shares, they had to take 
 into account the nature of the possessions (fiefs, burgage, etc.). 
 
 The husband acquired the movables of the wife subject to 
 paying her debts.^ But, although this rule of the old law 
 never ceased to apply on principle, it underwent in fact consider- 
 able restriction as a consequence of the custom of inserting in 
 the marriage contracts the "taking-back clause" (or conversion 
 into money of a part of the movables), and because of the obliga- 
 tion which the Custom imposed on the husband to invest a portion 
 of these movables, as though by virtue of an implied contract. By 
 way of set-off, moreover, the wife who survived received, not 
 onlj^ her dower, but one-third or one-half of the ownership of the 
 movables left by the husband at his death, ^ — one-third if he had 
 children born during the marriage, one-half if there were no chil- 
 dren alive; when she renounced this in order to avoid paying a 
 
 * Even before the marriage a marriage portion is already owing by the 
 brother which cannot be compromised, either by him or by the sister to whom 
 it is owing, for she can only draw on the income; unmarried daughters have 
 nothing of their own: "N. C," 261-26S. The "T. A. C," 80, 5 and G, gives 
 them the ownership of their land and the right to dispose of it, "as though 
 they were males." Cf. "Summa," 24. 
 
 ^ That is to say, only when they are included within successions in the 
 direct line: "N.C.," 262. 
 
 3 Cf. "N.C.," 390; Hounrd, "Dictionn.," see "Mari." 
 
 ■• "T. A. C, Norm.," 5, 4 and 5: "De communi catallo," etc. But not the 
 heirs. 
 
 789
 
 § 54G] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 corresponding portion of the debts, she was still given her para- 
 phernalia, that is to say, movables which were for her personal 
 use (bed, clothes, linen). ^ 
 
 § 547. The Same. — (B) The Administration of the Immovables 
 belonging to the wife was confided to the husband; he administered 
 them as though they had been his own, drew the revenues, and 
 appeared in court with respect to them.^ Acquests realized dur- 
 ing the marriage belonged to him exclusively.^ Thus there was 
 no community of property between spouses in Normandy, not 
 even of acquests. Not only did the Custom not admit of any 
 community, but it forbade community to be stipulated for.^ As 
 a matter of fact, the position of the wife who survived her hus- 
 band did not differ very much from that of the wife who had a 
 community of property; she had the right to one-third of the 
 usufruct of the ordinary property which was acquired jointly ^ 
 and to half of the ownership of property acquired jointly in bur- 
 gage. As to ordinary jointly acquired property, she had rather a 
 right to succession,^ that is to say, a right which was dependent 
 upon her survival and the death of her husband. Over property 
 acquired jointly in burgage, that is to say, over immovables which 
 were in towns, she was recognized as having rather a community 
 right, for it was exercised upon the separation of estates (post, 
 § 565) without waiting for the death of the husband, and the 
 heirs of the wife had the same right to it as she had,^ The former 
 of these rights seems to be very recent; it only appears in the 
 Custom of 1583; ^ the other goes back to the "Grand Coutumier," 
 
 1 "Norm.," 392-95. Or at least one portion. 
 
 2 "Summa," 14, 5: "nihil divisum habent." Cf. German law. 
 
 3 "Summa," 100, 9. Cf. "Ord." of July, 1219, I, 38. 
 
 4 "N. C," 330, 389. The old texts are silent. This rule, which the Par- 
 liament of Rouen looked upon as a real Statute, is all the more remarkable 
 because Normandy, just as the other provinces, has had its partnerships of 
 participants or implied communities: Colin, p. 440; Pothier, "Comm.," no. 
 11. Ficker, 1237, finds a community of thirds even in the old Norman law. 
 Cf. Sicily. 
 
 ^ A Custom peculiar to Gisors and Caux. 
 
 6 "Summa," 100; "N. C.," 329, 392-95; "Placites," 80, 130. The wife 
 who is the husband's heir, loses the right of ousting third parties who have 
 purchased immovables included within her marriage portion, a thing which 
 would not be permitted, were she a member of a community. Cf. Tessier, 
 "Soc. d' Acquets," no. 122. Moreover the Norman statute had not been 
 repealed by the Law of the 17th Niv., year II. 
 
 ' Holdings in burgage (immovables situated in towns or boroughs) may be 
 alienated without being subject to the control of the lord: "Summa," 29; 
 Custom of 1583, 270; Genesthal, "Thdse," 1900, pp. 76, 126; Lagouelle, p. 249; 
 Viollet, p. 136. 
 
 8 "Summa," 100, 9; 101, 5. Afterwards it seemed unjust for the husband 
 
 790
 
 Topic 3] SYSTEMS WITHOUT COMMUNITY [§ 548 
 
 100, 9, — that is to say, to about the same period in which the 
 community system had come to be introduced into the towns of 
 the North of France.^ 
 
 § 5-18. The Same. — (C) Inalienability of the Marriage Portion.^ 
 The Norman law, drawing its inspiration from the desire to pre- 
 serve the wife's immovable possessions in the family, at a very 
 early time provided for guaranties against the abuses of power by 
 the husband; and, if these guaranties were more energetic in Nor- 
 mandy than elsewhere, it is because in no other locality did the 
 family run a risk of being stripped because of the absolute inca- 
 pacity of the married woman. The inalienability of the marriage 
 portion consisting of immovables ^ was already found in the 
 "Tres Ancien Coutumier," 80, 5; "Durante matrimonio non valet 
 aliquis contractus factus de terra mulieris." Even as late as our 
 day, people would say : " The possessions of the wife should never 
 be lost." But the bearing of this maxim has not always been the 
 same. In the old times the wife was authorized to reclaim her per- 
 sonal belongings from third parties, whether they had been alien- 
 ated by her husband/ by herself, or by both of them acting 
 together; she had to act within a year and a day after the death 
 of her husband by using an action which will always keep the 
 
 alone to profit by the advantages arising partly, and sometimes entirely, 
 out of the wife's property. Cf. the community system. Neither the law of 
 Upland, 1275, nor the law of the Ripuarians can serve to account for an 
 institution of the sixteenth century. 
 
 1 Gragas, II; differences between this and the Norman law: Colin, p. 464. 
 
 2 The Norman system of marriage portions was not borrowed from the 
 Roman law. — (A) It can neither be derived from the Theodosian law (why 
 should the Roman marriage portion alone have survived out of so many 
 other institutions, and in Normandy alone?), nor from the Justinian law 
 (how could its revival have reacted so promptly, and only upon this special 
 point?) — (B) Difference between this and the Roman marriage portion 
 system: (a) The share contributed by the wife is called marriage and not 
 marriage -portion, excepting after the sixteenth century. — (6) At Rome the 
 father is held bound to give his daughter a marriage portion, and not in Nor- 
 mandy. — (c) In Normandy all the property is included within the marriage 
 portion, the husband acquires the wife's movables charged with the payment 
 of her debts. — (rf) And finally the inalienability of the marriage portion 
 is not arranged in Normandy in the same manner as it is in Rome. CJ. 
 Viollet, p. 797; Glasson, VII, 383. 
 
 3 "T.A.C.,"4; 80,5; "Summa," 100; "N. C," 537-531; "Placites," 128: 
 Regulating Order, 1511; Terrien, "Comm.," ed. 1575, p. 267; Colin, p. 433. 
 Cf. "T. A. C," 80, 7; 79, 12. Cf. Viollet, p. 797. Alienation in court is possi- 
 ble, but only as a great exception; cf. the fine in England. Did the property 
 which had come to the wife during the marriage through collateral succession, 
 whether gifts or legacies, have to be included within the marriage portion? 
 No, according to the general opinion: "N. C," 390, 542. Cf. Glasson, VII, 
 387 
 
 ^ Guarantee due the husband by the heirs: "T. A. C," 4, 3; 80, 5; "Summa," 
 14, 5 and 5 bis; Tardif, p. 72. 
 
 791
 
 § 54:8] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 archaic name of writ of encmubered marriage.^ The inaUenability 
 was absolute. 
 
 Such a hampering of transactions resulted therefrom that prac- 
 tice invented a system less strict in one sense and more sure in 
 another. The WTit of encumbered marriage was looked upon as 
 being the equivalent of recovering the possession; there was seen 
 in it a sort of possessory action; this was not very accurate,^ but 
 it allowed the woman who did not bring the action within a 
 year and a day to petition after this period by means of an action 
 of ownership ("action of apparent law") within forty years after 
 the dissolution of the marriage. By way of set-off, the alienation 
 of the marriage portion was legalized when executed by both 
 spouses acting together.^ This reform, which was finally sanc- 
 tioned by an Order of 1529, was passed in the Convention of 1583.^ 
 At the same time, while authorizing alienation, the Courts pro- 
 tected the interests of the wife: 1st, by means of the reinvest- 
 ment; 2d, by an implied mortgage over the possessions of the 
 husband; ^ 3d, by a subsidiary recourse against third parties 
 who were grantees, enabling her to obtain the value of the 
 property alienated, or, in default of this, the property itself. 
 One can sum up this system by saying that the marriage 
 portion had ceased to be inalienable, but that the wife was 
 assured of recovering its value. If separation of estates (post, 
 § 565) took place, the wife could only dispose of her immov- 
 
 1 The wife who failed on the writ of encumbered marriage, could not 
 afterwards sue by means of the action for real property: an obvious proof 
 that tliis writ was not a mere possessory action. 
 
 2 On these writs see Brunner. Cf. '"Schwurger.," "Impedire," to encumber, 
 that is to aUenate or to burden with real rights; "Summa," 100, 2; see Du 
 Cange. This writ was no longer made use of excepting when the husband 
 alienated the marriage portion by himself. 
 
 3 "Gr. Gout. Norm.," 100. Cf. "Summa." The right which the "T. A. G.," 
 80, 5, recognized the unmarried woman as having, that is, the right of disposing 
 of her lands as though she were a man, was perhaps the foundation upon which 
 the new doctrine was built up. In order to validate aUenations made with 
 the consent of the wife, recourse was had to the general practice of the oath. 
 Judgments of the Exchequer of 1391; Marnier, p. 66. In the sixteenth cen- 
 tury the old ideas as to the absolute incapacity of the married woman had 
 become out of date. Order of 1511, and especially Order of Gerisy of 1539, 
 which settled jurisprudence upon this point; Terrien, "Gomm.," p. 267; 
 " N. G.," 527, 538; " Placites," 124. Owing to the application of the Vellieanum 
 the wife had no right to mortgage her immovables, even with the consent 
 of her husband. 
 
 * The Roman law starts with relative inalienability and ends with ab- 
 solute inalienability (cj. the "Lex Julia," the object of which is to allow 
 second marriages, and the Justinian law). The Norman law progresses in 
 exactly the opposite direction. 
 
 * As to this mortgage and its position, cf. Basnage, "Tr. des Hyp.," c. 6. 
 
 792
 
 Topic 3] SYSTEMS WITHOUT COMMUNITY [§ 549 
 
 ables with the authorization of the law and with the advice of 
 her relatives.^ 
 
 One last characteristic of the Norman system was the strict- 
 ness with which the prohibition of gifts between spouses ^ was ap- 
 plied. It is true that the husband had his right to curtesy and 
 the wife her dower, with its rights over movables and jointly 
 acquired property. — (A) During the marriage, every gift, even 
 mutual gifts, and every contract for a consideration, was for- 
 bidden between spouses; the wife could not make a will in favor 
 of the husband and the husband only had a right to bequeath to 
 her the share fixed by Article 429 of the Custom of 1583; neither 
 spouse could give anything to the relatives of the other. — (B) 
 Before the marriage neither betrothed could give to the other any 
 part of their immovables; of their movables they were only au- 
 thorized to dispose of a fraction calculated on the sum of their 
 fortune in immovables, so that, if they had no immovables, they 
 could give nothing. The woman betrothed, on the other hand, 
 had the power to dispose of one-third of her immovables present 
 and future for the benefit of her future husband (who already re- 
 ceived all her movables) ; this is what they called the gift of mov- 
 ables, an expression which seems to allude to the fact that these 
 possessions which were the object of the gift could be disposed of 
 by the husband in the same way as movables, whereas the other 
 immovables of the wife were inalienable.^ The gift of movables 
 is the counterpart of the right of the wife to acquests ("N. C," 
 390). 
 
 § 549. German System of Unity of Possessions ("Giiterein- 
 heit," "Giiterverbindung") or of the Community of Administra- 
 tion ("Verwaltungsgemeinschaft"). — The matrimonial systems 
 in use in Germany and Switzerland from the barbarian period 
 until the nineteenth century were scarcely less munerous than the 
 systems of succession.^ They can be reduced to three types, about 
 equally widespread: unity of possessions, partial community 
 (movables, acquests) and absolute community. It is no doubt 
 
 ' But she could alienate her movables and her immovables acquired after 
 the separation: "Placites," 126 et seq. Cf. "Rdgl. sur Tutelles," 1673, Art. 51. 
 
 2 "N. C," 411, 422, 429. 
 
 ' If made by a widow who had children the pift of movables could not be 
 of more than a child's portion. Cf. Edict of 15()0; see Guyot, Houard. 
 
 ■• Wachter counted more than sixteen principal systems in Wiirtemburg 
 alone, upon one single point, that of the rights of succession of the spouses: 
 Stohbc, IV, 75; Lardy, !'L<5gisl. des Cantons Suisses en Mat. de Tutelle, de 
 R(5gime matrim.," 1876 (charts); Schroeder, "Gesch. d. ehel. Gut.," II; Masse, 
 "These," p. 163 et seq. 
 
 793
 
 § 549] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 under cover of the first that there was introduced here and there, 
 foUowini^ the acceptance of the Roman law, the Southern system 
 of marriage portion. The unity of possessions is not unknown in 
 France; it is found in some of the Customs of the East,^ such as 
 the Custoni of Reims, Art. 239 of which lays it down that the 
 spouses do not have a community of possessions;^ and the au- 
 thors of the Civil Code thought it tneir duty to establish it in 
 Articles 1530 et seq. The "mainplevie" of the Custom of Liege 
 is also only a variation of this,^ In Germany it has thrown out 
 such deep roots that the new Civil Code has made of it the system 
 of the common law. 
 
 Unity of possessions is very closely connected with the system 
 of the barbarian period. As in the latter system, there is a unity 
 of inheritance; the possessions of the two spouses are mingled in a 
 single mass. Under its very oldest form the wife owns nothing, 
 or almost nothing; the husband becomes "dominus dotis" as in 
 Rome."* In a second stage the wife keeps the ownership of at least 
 a share of the immovables contributed by her; the husband only 
 has their administration; the unity of inheritance has become an 
 entirely external thing; there is rather a juxtaposition of posses- 
 sions ("Giiterverbindung") than a unity of possessions ("Gliter- 
 einheit"). If the powers of the husband should be still more 
 
 1 These French Customs did not forbid the spouses to stipulate for the 
 community of possessions: Pothier, "Comm.," no. 4G1. 
 
 2 "Reims," 239 et seq.: the husband can dispose of the movables and the 
 jointly acquired property; the widow has an option, she can either take one- 
 half of the movables and jointly acquired property or else keep her dower 
 and the share contributed by her; the heirs of the wife who dies before her 
 husband have a right to the jointly acquired property. There are many who 
 maintain that there is a community (Varin, "Arch. leg. de Reims," I, 618- 
 697), but that the rule "Uxor non est proprie socia, sed speratur fore," is 
 followed literally: Chauny, I, 1; Chimay, II, 1; Constantin, "Le Dr. des gens 
 maries a Reims," 1903 (Thesis). 
 
 ' All the present and future possessions of the wife form a part of the 
 inheritance of the husband, who can dispose of them as though he were their 
 owner, even by will : Pawillart, 14s., Art. 110. About the sixteenth century 
 it was admitted that the husband could not restrict the rights of his surviv- 
 ing wife by will. The only advantage derived from this system by the wife 
 was that in case she survived she was given all the property left by the 
 husband (excepting fiefs). Britz, p. 859, mistakenly concludes from this 
 that we have here an absolute community; there can be no question of a 
 community where one of the parties has the power to deprive the other of 
 all rights by will: Van Wetter, "Le Droit Romain et le Droit Celtique," 1898, 
 with still less reason on his side, has gone back to the abandoned theory of 
 the Roman origin of "Mainplevie" (cf. "manus"). Cf. Chimay, II, 1; Arden- 
 bourg, "Bouc van tale," 46; Ragueau, see "Plevie"; see Guyot. 
 
 ■* See ante, "Mainplevie" at Liege. The law of Beam merely obhges the 
 husband to refund the value of what he has received; he thus becomes the 
 owner of the marriage portion. 
 
 794
 
 Topic S] SYSTEMS W7TH0UT COMMUNITY [§ 549 
 
 lessened,^ then they would arrive at a third phase, that of the 
 separation of estates {yost, § 565); each spouse would have the 
 management and enjoyment of his inheritance. There is no 
 need to say that there are countless transitions between these 
 various phases, and that the first two cannot always be distin- 
 guished from community as clearly as one might think. Under 
 the community system, as under that of unity of possessions, the 
 husband's power means that the husband has the administration 
 and the enjoyment of the possessions of the wife and the right to 
 dispose of her movables, and that the woman has no capacity. 
 
 The causes of preference for unity of possessions rather than 
 the community are all the more difficult to discern because these 
 two systems which appear to be dissimilar have in this respect 
 many points in common. During the marriage no external in- 
 dication shows whether the spouses have community of posses- 
 sions or not. The community is characterized by the mingling of 
 the interests of the two spouses, by their participation in the 
 profits and losses resulting from this life in common. It is a sys- 
 tem which harmonizes with a system of individual ownership; it 
 can be applied to movables and to acquests. The unity of posses- 
 sions lends itself better to the preservation of the family property; 
 it admits of more easily providing securities for the benefit of the 
 wife and her relatives against abuses of the husband's power, — 
 abuses of which the wife living in a community seems to have 
 to take the risk. The Customs of the Pyrenees form an example 
 in support of these ideas too curious not to be cited here, although 
 it may appear to be out of place : they declare that there is a 
 community of possessions ("meitades") between younger chil- 
 dren ("soult" and "soulte") who intermarry and receive only a 
 small marriage portion, whereas there is no community between 
 the eldest son or the eldest daughter who are heirs, receiving 
 in this capacity the family possessions and their "stranger" 
 spouse.^ 
 
 1 We believe, contrary to the opinion hold by Heualer, that the question 
 of the matrimonial system is closely connected with that of the capacity of 
 the married woman; thus separate maintenance is inconsistent with the 
 rights of the husband over his wife in the very old legislation; it was necessary 
 for the wife to be capable of becoming the owner of the immovables for the 
 community of acquests to exist. But we admit that once the married woman 
 was recognized as having capacity, it bec^ame possible to form difTerent systems, 
 on the one hand the community, on the other the possessions held in com- 
 mon, while at the same time placing her under the husband's power under 
 practically the same conditions as existed before. 
 
 2 "Soult" ("solutus") seems to mean: detached from the paternal house 
 
 795
 
 § 549] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 To describe the unity of possessions ^ one should first of all 
 recall the force of the husband's "mundium." The "Schwaben- 
 spiegel " says that the husband is the master and the guardian 
 of his wife ("Vogt und Meister"). According to the "Sachsen- 
 spiegel" he takes her body and possessions under his guardian- 
 ship ("nimt he in sine gewere al ir gut to rechter vormuntscap"). 
 Husband and wife have no distinct possessions during their life; 
 to the one to whom the 'wife gives her body she also gives her 
 possessions; she has nothing during the marriage excepting "the 
 blue sky and her distaff." Like the " tutor " of former times, the 
 husband acquires the absolute ownership of the movables of his 
 wife, subject to paying the debts for which she is held before 
 the marriage. He gains the product of the wife's labor, the 
 income of the land which she possesses; every acquisition made 
 during the marriage belongs to him exclusively, even if they 
 arise from the possessions of the wife. He has the administration 
 as well as the enjoyment of the immovables^ which his wife 
 owns; but he is not authorized to alienate them without the co- 
 operation of his wife, and these possessions do not constitute a 
 pledge for his creditors; "The possessions of the wife should 
 neither increase nor decline." At the death of one of the spouses 
 the disposal of the possessions which have been joined in the 
 hands of the husband was regulated in various ways. Some- 
 times the surviving wife is only given a small portion of them, 
 such as a third of the acquests; sometimes she takes back the share 
 which she has brought, at least her family possessions; and her 
 heirs have the same rights as she has ; sometimes no partition 
 
 According to the "Cout. de Bareges," 1670, Art. 13, these younger children are 
 called "sterles," "esterlos" (outside of the house); so long as they are within 
 the house they are slaves. Cf. "Cout." of 1760, VII; Soule, 24; Lagreze, "Dr. 
 dans les Pyr.," p. 185; "La Navarre," II, 242. "Adventice" (acquired) 
 means a stranger (to the family). 
 
 1 Unity of possessions is to be found in the "Sachsenspiegel," I, 31, 20-24, 
 45; III, 74s., and in the law of Magdeburg. On the other hand in Westphalia 
 if there are children, a community of acquests becomes established between 
 the spouses. Franconia and Southern Germany are also countries where the 
 conimunity exists. But there is some question as to whether the "Schwaben- 
 spiegel" admits the "Gesammte Hand" or the "Giiterverbindung." To the 
 effect that it is the latter, cf. Wyss, p. 61; "Schwabenspiegel," I, 11, 20, 21, 
 35, 36, 63, 71, 166; II, 23, 100; III, 98, ed. Matile; Stobbe, IV, 93 (differing with 
 the "Sachsenspiegel" as follows: the consent of the wife's relatives is not 
 always required for the alienation of her lands, etc.); Huber, op. dt., connects 
 the law of B(3arn with that of the Burgundians. 
 
 2 "Usufructus maritahs," an incorrect name for the old law, but one which 
 tends to become more applicable in proportion as the Roman law takes root 
 in Germany. Influence of this law on the nature of, and the privileges at- 
 tached to the marriage portion. Cf. the ItaUan Statutes: Fertile, III, 353. 
 
 796
 
 Topic 3] SYSTEMS WITHOUT COMMUNITY [§ 549 
 
 takes place, but the surviving spouse takes the entire mass ^ (ex- 
 cepting that it cannot be disposed of to the prejudice of children, 
 if there be any, "Verfangenschaft"). Outside of these cases the 
 wife has ordinarily those rights of survivorship, whether legal or 
 established by agreement, which survive as institutions from the 
 law of the previous period; Dower ("Witthum" in Suabia; 
 "Leibgeding," "Leibzucht" in Saxony), "increase of the marriage 
 portion," — that is to say, dower in proportion to the marriage 
 portion ("Widerlegung"), " ]\Iorgengabe " (which is sometimes 
 preserved). She is also recognized as having the right to live in 
 the conjugal house ("Beisitz") as long as she does not remarry, 
 — at least, if there are no children. The movables belong to 
 the husband or his heirs,^ with the exception of the "Gerade" 
 (clothing and ornaments) ^ reserved to the widow or her near- 
 est female relative ("Niftel"), and of the "Musstheil," that is 
 to say, of one-half of the provisions which are found in the 
 house upon the death of the husband, to which the widow alone 
 has the right, to the exclusion of his heirs. ^ 
 
 In the course of time the Germanic system of the unity of 
 possessions became more advantageous for the wife. The hus- 
 band ceased to be looked upon as her guardian and lost the 
 lucrative rights which were connected with this title; he only 
 kept the administration of the entire patrimony in his quality of 
 head of the family. He no longer obtained the possessions of the 
 
 1 "Worms," 1184; Stobbe, 222, 242. Other Customs give the widower one- 
 half and the widow one-third or the share of a child (share of the sword, 
 Bhare of the distaff): Schroeder, p. 313. The "Alleinerbrecht des iiberle- 
 benden Ehegatten" must at first have existed only for the benefit of the 
 husband, and tliis was not a right of succession, but the maintaining of a 
 pre-existing right. As far as the wife is concerned it was an innovation; 
 it is readily understood that it could exist in new towns where "area;" were 
 granted at one and the same time to the husband, wife and children, and 
 where the inhabitants had no family possessions, but only acquests. Cf. 
 "Mainplevie" at Liege. Switzerland: "portio statutaria" ("Eherecht"), a 
 hcreditarj' right. Perhaps it is by tliis means that the formula of the "Ass. 
 de J6rus.," "C. des B.," 186: "No man is so much the right heir of the dead 
 as his lawful wife," is to be accounted for. Van Wetter, loc. cit., p. 46; Glasson, 
 VII, 379. 
 
 2 As to wedding presents, cf. Stobbe, IV, 163. 
 
 ' As to the "Gerade": "Sachsensp.," I, 24, 3; cf. I, 45, 2; Picker, IV, 20. 
 
 * Heusler sees in the "Gerade" and the "Musstheil" a proof of the exist- 
 ence of a sort of community of movables (with unequal shares), for what 
 these possessions consist of varies with the fortune of the husband; they are 
 mingled during the marriage with the other movables, and the creditors of 
 the husband can distrain upon them. But as the law which came into exist- 
 ence after the "Sachsenspiegel" ehminates all idea of a community, the 
 rights of the wife had to be termed rights of succession contrary to the spirit 
 and the terms of the old legal system. Cf. Stobbe, IV, 82. 
 
 797
 
 § 549] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 wife, in case he survived her, to the prejudice of the natural heirs 
 of the latter. The restitution of the wife's immovables was guar- 
 anteed to her by forbidding the husband to alienate them with- 
 out her acting with him. Securities are provided which have the 
 effect of allowing her to recover the value of her land which has 
 been alienated,^ or, again, of the share of movables brought 
 by her; she gets first of all a contractual lien on certain posses- 
 sions of the husband, and afterwards an implied mortgage on 
 the whole of his inlieritance. The incapacity of the married 
 woman became less, a change which took place of its own accord 
 from the time when she had a distinct inheritance of her ow^n, 
 and when the formation of the family no longer absolutely de- 
 manded the complete subordination of its members to its head. 
 She could bind herself if she had the authorization of her hus- 
 band (or even of a court in modern law), have dealings with her 
 husband (except that the intervention of a guardian or compli- 
 ance with certain formalities to assure her freedom was neces- 
 sary), carry out urgent affairs in the absence or illness of her 
 husband. The contracts which she made alone, without any au- 
 thorization, she or her heirs could be compelled to perform at the 
 dissolution of the marriage.^ She even had the right to bind her 
 husband for household necessaries ("Schliisselgewalt") ^ or when 
 he had authorized her to carry on a separate business or trade. 
 Towards the thirteenth century the separate estate by decree 
 was introduced; '^ the husband who was a prodigal and a spend- 
 thrift could be deprived of his rights, and then it was the w^ife who 
 had the administration and enjoyment of them, sometimes alone 
 and sometimes with the aid of a guardian in localities where the 
 guardianship of women was in force. 
 
 The system of the separate property, "Sondergut," is nothing 
 more than our separate estate (post, § 565) by agreement, or, if 
 one prefer it, the Roman system of paraphernalia. With relation 
 
 ' As to the reinvestment and the recompense, cf. Stobbe, IV, 164. 
 
 2 In the Hanseatic towTis the creditor who meets his debtor (when the 
 debtor is a woman) is authorized to distrain upon her dress; the husband has 
 to pay him off, at least if he wishes his wife to be able to recover her clothing 
 and go out of the house. 
 
 3 In the old law the wife can only act as her husband's overseer and can 
 only enter into binding obligations to the extent of very small sums of money, 
 3, 5, and 12 deniers. Modern law tends to recognize her as having a power 
 of her own, subject to the control of her husband, assuming that there is no 
 opposition on his part. The result of tliis is that she binds herself when 
 she binds her husband. 
 
 ^ ''Schwabenspiegel," I, 73, ed. Matile; Stobbe, IV, 292. 
 
 798
 
 Topic 3] SYSTEMS WITHOUT COMMUNITY [§ 549 
 
 to the "Sondergut," the woman has the same capacity as though 
 she were not married. At first only those things which are exclu- 
 sively for the use of women, such as clothing and jewels, "Nadel- 
 geld," were left at their disposal. And later the Custom allowed 
 them to reserve by contract of marriage every kind of property, 
 movables or immovables; third parties who made them gifts were 
 allowed the same rights. The " Sachsenspiegel " still clung to the 
 principle of the inheritance, but a hundred years later these reserva- 
 tions are authorized by the "INIagdeburg-Blume." In its develop- 
 ment the practice of the "Sondergut" resulted in nothing less than 
 the emancipation of the married woman carried out by agreement. 
 The "Verfangenschaft," which was especially in use in countries 
 where the community existed (Franconia, Southern Germany), 
 has the effect of forbidding the spouse who survives and who re- 
 ceives the entire estate of both spouses to make any disposal of 
 it to the detriment of the children of the marriage; it is pre- 
 served for the latter in such a way that in case the surviving 
 spouse enters into a second marriage the children of this second 
 marriage have absolutely no share in it; conversely, the children 
 of the first marriage can claim nothing out of that which consti- 
 tutes the estate of the second marriage. This system often re- 
 sulted in great inequalities between the children of the various 
 marriages, — inequalities which were all the more regrettable 
 as they were due to pure accident, such as the date of the acquir- 
 ing of an inheritance by the spouse who married again ; should the 
 relatives of this spouse die during the first marriage, their inherit- 
 ance wenl to the children of the first marriage; should these rela- 
 tives die a little later, the children of the second marriage would 
 profit thereby. Such results as these were repugnant, but the old 
 law was better adapted to them than to the fusion of the two 
 families into one, and so they had to be allowed in order to 
 avoid such results. By virtue of the marriage, a community of 
 interests, and often even a community of possessions, had been 
 established; spouses and children were included therein; a new 
 union created a distinct community, another " Hausgemeinder- 
 schaft." ^ The family spirit was opposed to one community be- 
 
 ' Schroeder, p. 724 (bibl.) seeks to find the origin of this institution in 
 the clauses employed in gifts between spouses; it is thus, he says, that the 
 mutual gift in writing gave rise to the mutual gift of blood. But how account 
 for these clauses themselves? Moreover see Heusler, II, 457, 473 (contrast 
 between the Suabian law and the Franconian law); Ficker, "Unt.," II, 213; 
 IV, 556. Cf. Britz, p. 670 (devolution); "Roisin," p. 88. 
 
 799
 
 § 549] SYSTEM OF PROPERTY BETWEEN SPOUSES [CiiAP. V 
 
 coming enriched at the expense of another; the surviving spouse 
 was left the possessions of the first community, but with his hands 
 tied in case he might wish to dispose of them. During the mar- 
 riage these possessions were practically incapable of being dis- 
 posed of by the husband, or, at least, he could not dispose of them 
 without the intervention of his wife; after the dissolution of the 
 marriage the inalienability persisted in practically the same way; 
 the co-operation of the children of the first marriage was neces- 
 sary in order to alienate. We have no difficulty in seeing how this 
 practice of the " Verfangenschaft " (or devolution) furnished the 
 children of the first marriage with guaranties against the risk 
 which a second marriage caused their interests to be subjected to; 
 like the dower of children, or the continued community {yost, 
 § 564), this practice served the same purpose as the application 
 of the laws of the Lower Empire on the subject of second mar- 
 riages did elsewhere. 
 
 The institution of the "Verfangenschaft" is rather often modi- 
 fied by the admission of the " Theilrecht," or right to partition, 
 which is commonly considered as being of more recent date 
 (middle of the thirteenth century). The surviving spouse who 
 wished to remarry could be forced to partition with the chil- 
 dren; with his share which was thus released, and the possessions 
 which he acquired afterwards, he entered into a new community; 
 as to his children, they were given their share once for all; they 
 had no longer any claim over his inheritance; membership in 
 the community in their case had killed heirship. The "Theil- 
 recht" was thus inspired by the same thought as the "Verfang- 
 enschaft"; the community established by the first marriage 
 remained entirely distinct from that w^hich resulted from the 
 second marriage. Difficulties were presented with regard to 
 acquests made or debts contracted during the interval between 
 the two marriages; the Customs varied a great deal upon this 
 point, but at the same time, as a general thing, these acquests and 
 debts were included in the partition. Towards the thirteenth 
 century, and especially since the middle of the fourteenth, there 
 begin to appear in marriage contracts agreements for "afTratella- 
 tion " between the children of diflFerent marriage " unio pro- 
 Hum," "Einkindschaft" ("To einen kindermadchen"), by virtue 
 of which the children of both marriages should be treated as 
 though they were brothers. In cases of this sort there are no 
 longer two separate communities, but only one. The spouse who 
 
 800
 
 Topic 3] SYSTEMS WITHOUT COMMUNITY [§ 550 
 
 marries again has the advantage of no longer being compelled to 
 make a liquidation, which is perhaps untimely, and which is at 
 any rate complicated and prejudicial to his interests. As to the 
 children, their equality is also justified in many cases; and, if it 
 is not equitable, for example, because the predeceased spouse had 
 a fortune which was greater than that of the new spouse, or vice 
 versa, there is nothing to prevent a stipulation being made for a 
 reference-legacy for the benefit of the children of the first or 
 second marriage.^ 
 
 § 550. The Roman System of Marriage Portion remained in 
 force in Italy ,^ in Spain ^ and in the countries of written law^ in 
 France; it even penetrated into Germany.^ In its essential char- 
 acteristics it is a system of the separation of the interests of the 
 spouses. The wife keeps her properties; she gives the husband 
 only a part of them, — the marriage portion (" dot," "dos"), which 
 is a reserve fund for her and for^the family,^ thenceforth not sub- 
 ject to any alienation; the husband has no right to dispose of it, 
 nor has the wife; and she cannot bind herself with respect to her 
 marriage portion. These broad rules were not interfered with, 
 and court decisions and practice, and sometimes even local cus- 
 tom, added to them and corrected them in ways some of which 
 are of importance. 
 
 Contrary to the axiom of the Customs, "No marriage portion 
 from him who does not wish it," the father of the family is held 
 bound in the South to give his daughter who has come of age 
 a marriage portion, even though she marry without his consent.^ 
 
 1 Stohhe, 244; Heusler, II, 476; "Z.S.S., G.A.," 1901, 440; "Tract. Uni. 
 jur.," VI; Groeben, "De orig. unionibus prolium," 1870; Beseler, "Erbvertr.," 
 
 I, 7; Viollet, pp. 489, 789. Cf. Sicily: Fertile, III, 360. 
 
 2 "Digesto Ital.,"see "Beni"; Salmoli, 347; Pertile, III, 320; Zdekaner, 
 "Patto dotale" ("R. Ital. p. le sc. giur.," 25, 99); Ciccaglionc, "Patti nuziali" 
 (Naples), 1881; "Storia d. Dir. Ital.," I, 444; Laltes, "Dir. consuet. Lomb.," 
 p. 239. 
 
 ^ "Siete Part.," IV, 11; "F. de Vizcaya," XX. 
 
 * Stobbe, § 235. 
 
 6 "F. de Bdarn," 269. 
 
 « L. 19, Dig., "de ritu nupt."; L. "si pater," "Cod. Just.," "de dot."; 
 "Nov.," 21 of Leo. This Custom makes its appearance in the deeds of the 
 eleventh century: D. Vaissette, "Preuves," nos. 244, 385, 388, etc.; "Siete 
 Part.," IV, 11,8; "Bord., N. C," 43; "Toulouse," 117 (the daughter who has 
 been given a marriage portion is excluded from the succession of her father); 
 Tardif, "Le Dr. priv6 au XIII", s.," p. 30, SI; Henrys, I, 4, q. 52; Roussilhe, 
 no. 4, 87. The conferring of the marriage portion is generally carrie<l out by 
 means of a notarial deed: "Toulouse," 109; D. Vaissette, V, 518, 1031. As 
 to the trousseau, wedding chest, comb, cf. Ragueau; Lagrhe, "Navarre," 
 
 II, 185; Breionnier, see "Quest." Marriage portion of nuns: Mallebay de 
 la Mothe, "Quest." D., 20; Benedicti, see "Dotem." 
 
 801
 
 § 550] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 This obligation, which is not only moral, but legal, is incumbent, 
 if there is no father, upon the paternal grandfather and the mother. 
 The courts compel them to pay it, and if necessary determine its 
 amount. The woman often appointed as her marriage portion 
 all her possessions present and future.^ If there were no ap- 
 pointment, it was usually assumed that her possessions were para- 
 phernalia; however, the question was disputed, and in certain 
 localities, — for example, at Toulouse and in Auvergne, — her 
 properties were held as forming a part of the marriage portion, 
 just as they did in countries of Customs.^ 
 
 The power of the husband did not exist in countries of written 
 law.^ The wife, who was the owner of her paraphernalia, had the 
 enjo\Tnent and the administration of them as though she had not 
 been married.^ At the same time, in countries of written law, 
 within the jurisdiction of the Parliament of Paris (Lyons, Beau- 
 jolais, ]\Iacon, and Forez) she was compelled to provide herself 
 with the authorization of her husband in order to dispose of them 
 (Civil Code, 1576). 
 
 According to the Roman law, the possessions forming a part 
 of the marriage portion became the property of the husband, but 
 he was bound to restore them.^ This was a very limited owner- 
 ship, especially with regard to the land, which formed a part of 
 the marriage portion, and which was made inalienable. Thus, 
 the Glossators queried whether the marriage portion belonged 
 
 ^ "Toulouse," 87, and with regard to this, Casevieille and Soulatges (who 
 mistakenly interpret this as an application of the L. "Qutntus Mucins," 
 Dig., 24, 1, 51, according to which acquisitions made by the wife are presumed 
 to belong to the husband and to have been paid for out of his money, unless 
 she prove the contrary, a very reasonable presumption moreover, when all 
 the wife's property is included within her marriage portion); "Auvergne," 
 14, 8 (the marriage portion is here called " Verchere," see Ferriere, Du Cange); 
 "Toulouse," 84, 85 (the presents given to the spouses the day before the 
 wedding or the day of the wedding itself belong to the husband); "Bord., 
 N. C," 48. On the Ordinance of 1563, 17, see Ginoulhiac, p. 139 (the mar- 
 riage portion should not be more than 10,000 "tournois"). — Italy: Fertile, 
 III, 352. 
 
 2 The acquired property, or property accruing during the marriage, is 
 included in the paraphernaUa : Ginoulhiac, p. 138; Haenel, "Dissens. domin.," 
 pp. 6, 105. 
 
 ' Excepting in certain localities: Auvergne, Masuer, XIV, 39; Bordeaux, 
 "F. de Beam," 261. Everj^ivhere the wife owes "obsequium" to her husband 
 (c/. L. "Assiduis"), for exam.ple she is bound to go where he goes: "Dec. 
 cap. Tolos.," 86. We may observe the fact that as a general thing marriage 
 does not emancipate, as it does in countries of Customs, which means that 
 the woman may be subject to the paternal power: Serres, "Inst.," I, 12. 
 
 * "Petrus," I, 32: "etiam sine consensu viri et liberorima." Contra: "Bor- 
 deaux." 
 
 5 "Cod. Th^od.," Ill, 13; Pajrien, 22; "Petrus," I, 30 et seq.; IV, 54; 
 "Toulouse," 87. 
 
 802
 
 Topic 3] SYSTEMS WITHOUT COMMUNITY [§ 550 
 
 to the husband or to the wife ("Diss, domin.," p. 436); after them 
 our old authors said that the husband was the master of the mar- 
 riage portion, that he had the legal title to it; they were willing 
 to add that the wife kept the true ownership of it; and the more 
 recent of them treated the husband as a mere usufructuary. The 
 Civil Code merely re-enacted their doctrine by denying to the 
 husband the ownership of the marriage portion, and only left him 
 its enjojTnent.^ 
 
 The immovables of the marriage portion are inalienable; neither 
 the husband alone nor the wife alone, nor the two spouses acting 
 together, can make a disposal of them. The Custom of Tou- 
 louse, 103, agreeing with the Breviary of Alaric, authorized an 
 ahenation of them which was made by the two spouses act- 
 ing together. "This was a disastrous Custom," said the Glos- 
 sator Casevieille, "the most obvious result of which would be to 
 deprive the wife of her marriage portion, and one which I have 
 never seen enforced." ^ In his time the absolute inahenability of 
 the Justinian Law had taken the place of the relative inalienability 
 of the "Lex Julia." ^ This was a consequence of the revival of 
 
 ^ The husband's ownership is again affirmed by Argou, III, 8: R. de La 
 Combe, Ferriere, see "Dot"; "Siete Part.," IV, 11, 7. But Roussilhe, no. 216, 
 denies its existence. Masuer, XIV, 25, also used to say, in speaking of the 
 reclaiming of the land included within the marriage portion: "it is nec- 
 essary that both should take part in it, the husband as far as the usufruct 
 is concerned, and the wife with regard to the ownership." The other authors 
 who are cited habitually in support of this proposition merely give a transla- 
 tion of equivocal expressions of the Roman law (for example D. "de j. dot.," 
 75: "quamvis in bonis mariti dos sit, mulieris tamen est"); Wallon, p. 133. 
 Thus Domat, "Lois civ.," 1, 9, 1, 4, according to whom the husband alone 
 acts, if it pleases him so to do, or else the wife acts with the authority of the 
 husband or of the law. Cf. Tessier, "Quest, sur la Dot," 1852. — Upon this 
 question of the bringing of the actions for real property with regard to im- 
 movables included within the marriage portion, the old case-law was not 
 very well settled: Tessier, II, 137; Roussilhe, I, 255. 
 
 2 "Petrus," I, 34 (cf. "Nov.," 61). The same rule is applied to the gift 
 "propter nuptias." — Cf. "F. de Beam," 264, 262; F. of 1552, "r. de mariti," 
 15; "Bord., A. C," 114; "Montpellier," 1205, 14: consent of the father and 
 mother or, if this is not obtained, of the wife's relatives: "Salon" in Giraud, 
 II, 254 (oath). — The "Cout. de Toulouse," 110, also allows the wife to bind 
 herself on behalf of her husband, excepting that it does not allow her a priv- 
 ileged recourse similar to that which she has in matters concerning her mar- 
 riage portion. — Gide, 2d ed., p. 392. 
 
 ' In our time a formula has been suggested which was unknown to our old 
 authors: it would be better for the wife with a marriage portion to be unable 
 to alienate rather than for the land to be inalienable, iiut so long as the 
 husband was looked upon as the owner of the marriage portion there could 
 hardly be any question as to the incapacity of the wife. It is true that the 
 ^'elleianum Decree of the Senate made the wife incapable of binding herself 
 and especially on behalf of her husband, but this disability affected the wife who 
 was given her paraphernalia, and not the wife who was given a marriage 
 portion, who could not bind her marriage portion even on her own behalf. 
 
 803
 
 § 550] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 the Roman law in the twelfth century, and no doubt practice 
 willingly based itself on this theory with the object of procuring 
 assured and indestructible resources for families. It was only per- 
 missible to alienate the marriage portion in exceptional cases: 
 (a) With the permission of the court, for example, to have the hus- 
 band released from prison, or to procure nourishment for the fam- 
 ily. (6) By virtue of a clause in the contract of marriage, which 
 either did or did not forbid reinvestment.^ Outside of these two 
 cases alienation was absolutely void at law unless there were " let- 
 ters of rescission." During the marriage the wife could not avail 
 herself of this nullity because of the rights of her husband over 
 the marriage portion; but as soon as the marriage was dissolved 
 she had thirty years within which to invoke it. As to the hus- 
 band, although he is ordinarily refused the right of repudiating 
 his own act by evicting the grantee, at the same time there 
 is a tendency to grant him the action in avoidance, — a tendency 
 which tallies with the recognition of the ownership of the wife. 
 
 The obligations contracted by the wife during the marriage 
 could not be realized from the lands of the marriage portion,^ 
 even when the marriage had come to an end; had it not been for 
 this, the spouses would have had a very simple means of evading 
 the rule that the marriage portion was inalienable.^ Moreover, 
 on this point it is necessary to take into account the Velleianum 
 Senate Decree; we know that it forbade women, whether married 
 or not, to become bound for a third party.^ In Justinian's time this 
 prohibition was especially applied to the relations between spouses; 
 for, according to the Authentic, "Si qua mulier," outside of cases 
 in which they bound themselves for their husbands, wives were 
 authorized to renounce the benefit of the Senate Decree; as a 
 matter of fact, renunciations were frequent. The wife, who was 
 incapable of binding herself even with respect to her parapher- 
 
 Again the Velleianum Decree of the Senate has always been distinguished from 
 the inalienability of the marriage portion. The Velleianum is renounced, not 
 the inalienability: Loiiet, 12, 3. The Edict of 1606 abrogated the Velleianum 
 without affecting the inalienability: Henrys, I, 4, q. 104. The Velleianum 
 could not be invoked without letters of rescission, and one had to act within 
 ten years, whereas the inalienabihty acted "de piano," and one had thirty 
 years within which to plead it: Despeisses, 2, 2, 1, 7; Roussilhe, I, 399. One 
 is a personal statute, the other a real statute: Roussilhe, I, 373; Mongin, 
 "R. crit.," 1886, 92; "N.R.H.," 1888, 343; Ginow?/wac, p. 143. 
 
 1 The wife may also make a gift of her possessions included within the 
 marriage portion in order to establish her children. 
 
 2 It was otherwise with regard to obligations "ex delicto." 
 ' Du Perier, "Quest.," I, 3; Roussilhe, nos. 379 et seq. 
 
 * "Toulouse," 68, 69, 71, 74, 109, 110, 130 et seq. Italy: cf. Lattes, p. 245. 
 
 804
 
 Topic 3] SYSTEMS WITHOUT COMMUNITY [§ 550 
 
 nalia in the interest of iier husband, was all the more incap- 
 able with respect to her possessions which formed a part of the 
 marriage portion. The Edict of 1606 repealed the Velleianum; 
 but it did not succeed in preventing its being applied in countries of 
 written law; and only had the force of law in those countries which 
 were included within the jurisdiction of the Parliament of Paris, 
 and even in them it was not of very much use in the numerous 
 cases where all the possessions of the wife formed a part of the 
 marriage portion. In order that the promises which she made for 
 the benefit of her husband should be of some value, she had to be 
 allowed to bind and to alienate her marriage portion; and this is 
 what was done in the interests of commerce by a Declaration of 
 April, 1664.1 
 
 The movables of the marriage portion consisted of money or 
 of certain specific things. In the first case it often gave rise to 
 the "investment clause," which was inserted in the contract of 
 marriage, and the effect of which was to substitute a marriage 
 portion in real property for the one consisting of money.^ 
 The specific things (movables or immovables) which had been 
 appraised became the property of the husband, for "appraisal 
 is equivalent to sale." With regard to the specific things which 
 had not been appraised, a question as to the inalienability of the 
 movables of the marriage portion ^ was raised, — a question 
 to which the increase of wealth in movables in our day added 
 considerable interest. As a general thing, the husband had the 
 right to dispose of corporeal movables and choses in action ■* (al- 
 though the Parliament of Bordeaux refused to give him this right 
 because it did not recognize his ownership of the marriage portion ; 
 it did not even allow alienation by both spouses acting together).^ 
 But in all the countries of written law (excepting in those within 
 the jurisdiction of the Parliament of Paris since the Statute of 
 April, 1664), it was accepted that the wife could not compromise 
 
 1 Bretonnier, "Quest.," see "Dot" (this Declaration was passed at the 
 request of the General Receiver of Lyons who wished for more guarantees 
 from his under farmers by having their wives bound); Henrys, 4, 3, 8. 
 
 2 Dig., 23, 3, 54. Cf. 27th term of D'Aguesseau; Roussilhe, no. 184 et seq.; 
 Benech, "Emploi ct Remploi de la Dot," 1847. 
 
 ' An analysis of the; old case-law: Tessier, "Quest, s. la Dot," 1852; 
 Lescaeur, "R. crit.," 1875, 380; Wallon, "Th5sc," 1877. 
 
 * Roussilhe, nos. 226, 233, 238, 257, 265, 266 (ed. Sacnse); Serres, II, 8. 
 Cf. "Petrus," I, 34. The question would not have bo(>n of very great prac- 
 tical interest, had the maxim "In matters of movables possession is equal 
 to title" (at least with regard to corporeal movables) been applied. 
 
 5 Lescoeur, p. 391; Wallon, p. 195. — C/. "F. de B6arn," "r. de marit.," 
 15. 
 
 805
 
 § 550] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 the restitution of the movables of her marriage portion by re- 
 nouncing her claim against her husband, or the mortgage which 
 guaranteed the latter,^ In this sense the movables of the mar- 
 riage portion were inalienable as far as the woman was concerned.^ 
 The practitioners of the Parliaments, being inspired by the spirit 
 of the Roman laws, had extended to movables, in the measure 
 that the nature of these possessions allowed, that which the Roman 
 laws had enacted with regard to the lands of the marriage portion.^ 
 The mortgage ^ which guaranteed the restitution of the mar- 
 riage portion ^ affected all the husband's possessions.^ It dated 
 back to the marriage contract, assuming the latter to have been 
 notarial; and, if not, to the marriage itself.^ The result of this 
 was that the wife was preferred to the creditors of the husband 
 as far as the restitution of her marriage portion was concerned, 
 but she was only preferred to creditors who became such after the 
 marriage. Within the jurisdiction of the Parliament of Toulouse 
 
 ^ Roussilhe, nos. 238, 303, 314; Julien, "Elem.," I, 4, 28; Despeisses , III, 
 29; "Bord., A. C," 113. Italy (Lattes, p. 244): as early as the eleventh cen- 
 tury renunciation of her mortgage by the wife when the husband ahenates 
 one of his possessions; she declares that the other possessions of her husband 
 are sufficient to assure her the restoration of her marriage portion, or else the 
 husband assigns other possessions to her by way of guarantee. 
 
 2 The Romanists were concerned with this question especially with regard 
 to the L. 30, "Cod. Just.," "de j. dot," 5, 12; Justinian declares therein 
 that "naturali jure" the movables included in the marriage portion belong 
 to the wife, but "secundum legum subtilitatem " they belong to the husband. 
 Bartolus in his "Lect. s. I'Auth. 'Sive a me,'" which is taken from the "Nov.," 
 61, and inserted at the end of c. 21, "Cod. Just.," "ad Sen. Veil.," IV, 29, 
 maintains that the "Nov.," 61, which modifies the law in the Code and the 
 Digest, prohibits the alienation of "res dotales quaj servari possunt." Cf. 
 also on the L. 1, Dig., "Sol. matr.," no. 18, and on the "Cod. Just.," 5, 13, 1. 
 On these texts and on the L. 30, cf. Cujas. Domat, 1, 9, 1, 30. Details in 
 Wallon, p. 133; "Dissens. dom.," p. 202. 
 
 3 D'Olivecrona, III, 28; Mallebay de la Mothe, "Quest.," B., no. 14. 
 
 * Borrowed from the Roman law. In the "Cout. de Toulouse," 118, 153 
 {Casaveteri, fo. 48), it is presented under the form of assignment established 
 over the husband's possessions by the consuls or the magistrate: "pro nec- 
 essariis" (Art. 119), "dotibus et dotalitiis"; "F. de Beam," ed. Mazure, 
 254, 271; F. of 1552, "r. de mariti," 6;_"Siete Part.," 4, 11, 17; Lattes, p. 241. 
 Cf. "The Community." As only the immovables were affected by the mort- 
 gage, the wife was granted a privilege over the husband's movables: Breton- 
 nier, see "Meubles"; Boucher D'Argis, "Gains nupt.," XXIII. Finally the 
 payment of the marriage portion was also guaranteed by means of a mortgage 
 over the possessions of the pledgor: "Dissens. dom.," Ill, 103, 401, 582. 
 
 ' "Toulouse," 116, allowed of the appointment of "fidejussores"; Casa- 
 veteri, fo. 45, v.; D. Vaissette, V, 402 (in 1083). • Same custom in Spain. Contra: 
 "Cod. Theod.," Ill, 15; "Cod. Just.," V, 20; "Dissens. dom.," p. 443. 
 
 ^ Even those held in trust (by virtue of a secondary title); "Ord." of 1747, 
 52-53. 
 
 ^ A compulsory or a voluntary decree clears the mortgage on the marriage 
 portion, if there be no opposition offered to the distraint, at least before the 
 Edict of 1771. On the subject of this Edict, cf. Roussilhe, no. 312. 
 
 806
 
 Topic 3] SYSTEMS WITHOUT COMMUNITY [§ 550 
 
 an enactment of Justinian's, the celebrated law "Assiduis," was 
 followed, which preferred the woman to the mortgage creditors 
 previous to the marriage,^" but with one alteration: the latter were 
 allowed to bar out the priority of the wife if they warned her 
 of the existence of their rights before the marriage was celebrated 
 ("giving of notice").^ 
 
 Separate Estate. — The wife could ask (post, § 565) for an antici- 
 pated restoration of her marriage portion if her husband became 
 insolvent ("vergit ad inopiam").^ By virtue of a judicial decree, 
 she took back the administration and the enjoyment of her posses- 
 sions which had gone into the marriage portion, but she was com- 
 pelled to invest the movables,'* the preservation of which was 
 no longer guaranteed by a mortgage over the husband's pos- 
 sessions. The marriage portion land remained inalienable, and 
 the woman had no capacity to bind herself with respect to her 
 marriage portion. As she recovered her right to bring actions, 
 every prescription thenceforth began to run against her.^ 
 
 The matrimonial system which we have just outlined was com- 
 pleted by the rights of survivorship,^ rights of inheritance, and 
 gifts between spouses, which have been discussed above. 
 
 The comparison between the system of marriage portion of the 
 South and the community of the Countries of Customs has long 
 been a classic point.^ Pasquier already said, "Ask those who are 
 
 1 L. 12, "Cod. Just.," "qui pot.," VIII, 18 (p. 531). Contra: "Toulouse," 
 109, 110, 111. Priority of those creditors to whom both of the spouses are 
 under obhgation, ib., 71; Lattes, p. 242. Difficulties as early as the time of 
 the commentators; cf. Azon, "Summa Cod.," ad 1. "Qui pot."; Bartolus, 
 on 1. "Assid."; Haenel, "Dissens. Dom.," pp. 104, 438, 582. 
 
 2 Soultages, "Cout. de TouL," I, 250; Ferriere, see "Dot"; Argou, III, 8; 
 Serres, IV, 4, 29; cf. "Bret., A. C," 410 (D'Argentres), and "N. C," 439. 
 
 3 Dig., "sol. matr.," 24; "Petrus," IV, 54 (prohibition against ahenating 
 what she receives); "Decis. Cap. Tolos.," 339; G. Durand, p. 467; "Siete 
 Part.," IV, 11, 29; Lattes, p. 244. 
 
 ^ Julien, "E16m.," I, 4, 36 et seq.; Lavigucrie, "Arrets inedits," I, 254. 
 
 ^ Roussilhe, nos. 433, 491 et seq. (she needs no authorization), 497; Breton- 
 nier, see "Dot." Cf. Viollet, p. 804. 
 
 " Right of the survivor or reciprocal gift which the future spouses make 
 and which shall go to the survivor of them, especially in countries where there 
 is neither increase nor counter-increase: Roussilhe, no. 597; "Siete Part.," 
 IV, 11, 23 e< seq.; "F. de B6arn, r. de marit.," 10; Ginoulhiac, p. 147: the hus- 
 band who survives receives the marriage portion at Toulouse, Bordeaux, 
 Agen and Montpellier. As to the increase see: Ginoulhiac, pp. 97, 129, 149; 
 Brandileone, "Stud. prel. s. svolg. d. rapporti patrim. fra conjugi in Italia," 
 1901 ("Arch. Giur."). 
 
 ' There is a complete literature on this subject: Dramard, "Bibl. du Code 
 Civil," p. 215; Troplong, "Contr. de mar.," Preface, 1851; Sacasc, Preface 
 to liis edition of Roussilhe, "Dot," 1856. As to the Revolutionary drafts 
 of a Code, cf. Sagnac, pp. 295, 376 j Locre, "L(5gisl. civ.," 13, 27. The draft 
 of the Civil Code, art. 138, prohibited even the stipulating of inalienability. 
 
 807
 
 § 550] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 brought up in countries of written law, and they will tell you that 
 separate estate is beyond comparison better than community, 
 while those of countries of Customs will give their decision in 
 favor of community of possessions, — so great is the tyranny which 
 a long and ancient custom has over us." Each one of these sys- 
 tems has its advantages and its disadvantages; they correspond 
 to different situations. This accounts for their being preserved 
 in our Code. P. Gide brings out in excellent terms the merits of 
 the system of the marriage portion, "If it be true that for the 
 good government of a household, as for that of the State, it is 
 necessary to combine in a fair proportion the principle of conser- 
 vation and the principle of progress, never was this combination in 
 domestic order more happily realized than by the marriage portion 
 system. This system forms into two parts the fortune of the 
 household ; one immovable, unchangeable, should constitute for the 
 family a reserve fund; this is the marriage portion of the wife. 
 The other, left to the free disposal of the head of the house, may 
 be transformed, may increase, and may serve to sustain com- 
 merce and industry; this is the husband's fortune." It is not for- 
 bidden to do this under the community system, but everything 
 then depends upon the prudence and the good will of the spouses. 
 By adopting the marriage portion system they tie their hands be- 
 forehand; they take precautions against themselves, against their 
 imprudence or their inexperience; and in many cases this is more 
 sure. It is true that by exonerating the fortune of the wife from 
 every risk of loss she is prevented from having any benefit from 
 it, but this result can be avoided by a stipulation for a partnership 
 in acquests. 
 
 One could also make the marriage portion system more flexible 
 by always allowing the alienation of the marriage portion funds, 
 subject to reinvestment in immovables, government securities 
 or other good securities (this is what parties did formerly in the 
 clauses of their marriage contracts), or even without reinvestment 
 with the authorization of a court (this is something which was 
 
 The decline of the marriage portion system in France seems to be attested 
 by recent statistics (1899, 1900): Planiol, "Tr. de Dr. civil," III, 234; J. 
 Bressolles, "Des reg. matrim. actuellement pratiques dans le pays toulousain," 
 1880. According to practitioners, its abandonment is especially due to the 
 impediments which it places in the way of the most useful sort of acts and also 
 to the injury wliich it thereby causes the spouses; it gives an opportunity for 
 fraud; and finally by adopting the community, one saves the expenses of the 
 drawing of a marriage contract: Hoinherg, "Abus du rdgime dotal," 1849; 
 GUc, p. 489. 
 
 808
 
 Topic 3] SYSTEMS WITHOUT COMMUNITY [§ 551 
 
 only permitted as an exception). Thus, this would be like a com- 
 munity system under which the marriage portion is alienable, 
 but under which its restitution is assured by a system of reinvest- 
 ments and compensations. Or, again, it would be like the absolute 
 system of community, which is only a marriage portion system 
 with all the possessions in the marriage portion, but not includ- 
 ing inalienability, just as separate estate is a marriage portion 
 system with all the paraphernalia of the wife's property. 
 
 § 551. The Partnership of Acquests is combined with the 
 Roman marriage portion system in the Bordelais,^ at Bayonne, in 
 the Labourt, the Soule,^ in Navarre ^ and Spain. ^ In the Spanish 
 region it is connected with the Visigothic laws,^ and perhaps these 
 laws have left traces of it in the Southwest of France.^ At all 
 
 1 On the "Cout. de Bordeaux," cf. Commentaries: Ferron, 1540; De Lurbe, 
 1612, 1701; Automne, 1621, 1737; Dupin, 1746; La Moihe, 1768 (see Camus' 
 no. 1205); Salviat, "Jurispr. du Pari, de B.," 1787; Tessier, "Soc. d'acq.,', 
 ed. Deloynes, 1880; "Acad. leg. Toulouse," VII, 521; IX, 53S. ~ Glasson, 
 VII, 390. 
 
 2 Sixteenth century: "Bayonne," 9, 24; "Labourt," 9, 1; "Sole," 24, 1 
 (acquests and shares contributed by the spouses); "F. de Beam," 255 et seq. 
 (ed. Mature, p. 99): the wife has no right to acquests (a thing which would 
 perhaps not have been established if the tribunal had not been opposed upon 
 this point to the previously existing law). 
 
 3 Desdevises du Dezert, "R. des Pyrenees, 1890, 804 ("conquistas, bienes 
 de ganancia"); "F. de Navarre," r. 25 (the survivor of those who marry 
 "solt a solte" takes all the possessions of the predeceased, unless there be 
 children). 
 
 ^ From the "Fueros Juzgo" the partnership of acquests must have passed 
 into the local "fueros," for example it is to be found in the " Fueros de Cuenca" 
 at the end of the twelfth century (Antequara, p. 157), having this peculi- 
 arity that partition of acquests takes place by halves, whatever may have 
 been the share contributed by either spouse. It is the same in the "Fueros 
 Real," III, 3 ("de las ganancias"). Omitted from the "S. Partidas," the 
 partnership of acquests once more makes its appearance in the Laws of Toro 
 and thence passes into the laws which follow: Lehr, "El. de Dr. Esp.," I, 
 120. — In Portugal, there has existed a universal community between the 
 spouses since the twelfth century (at least among the lower classes): "R. h. 
 Dr.," 1858, p. 132. Similarly in Biscaya there exists the "Hermandad" be- 
 tween spouses. — Sardinia: "Carta de Logu," 162. 
 
 * Peculiarities in the "Fueros Real" which bear witness to the Visigothic 
 origin of the partnership of acquests: profits gained in an expedition carried 
 out at the king's expense, etc. It is true that the Code of Reccesvirul divided 
 the acquests in the proportion of the share contributed by each spouse. But 
 the change which has taken place with respect to this point may be accounted 
 for by means of the difficulty of proving what this contributed share consisted 
 of and the need of simplification. Cf. Walter, I, 495, note o, on "L. Wisig.," 
 4, 2, 11 (])artition bv halves). The Zeumer edition makes no mention of this 
 passage; cf. "N. Archiv.," XXVI, 107; Dahn, "Weatgot. Stud.," 127. 
 
 ^ One might also be led to believe that there has been a spontaneous forma- 
 tion of the partnership of acquests in the Southwest of France, beginning with 
 the Prankish law. • — At any rate it is not of Roman origin, as was thought 
 formerly; for the Roman laws which would have been drawn from in order 
 to form a typical clause (Dig., "pro soc," 17, 2, 7 et seq.) were not included 
 within the lireviary of Alaric, and the Justinian law was not yet sufficiently 
 
 809
 
 § 551] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 events, its existence is attested at Bordeaux from the twelfth cen- 
 tury.^ In 1206 a Privilege of John Lackland did away with the 
 right of the widow to half of the acquests,^ but it did not go so far 
 as to forbid this half being granted to her by means of express 
 stipulation. The partnership of acquests then became a system 
 based upon agreement, but only in the town of Bordeaux, to which 
 the Privilege was confined.^ Up to that time it was the system of 
 the common law,^ and it did not cease to be so in the Bordelais, 
 In the absence of agreement ^ the spouses were married subject 
 to the partnership of acquests. The woman had no paraphernalia 
 and was subject without any reservation to the power of the 
 husband, which formed a striking contrast to the Roman system 
 in force in the rest of the South. ^ Once the Custom had been im- 
 paired by the Privilege of 1206, practice widened the breach and 
 tended to make the Roman law prevail, without succeeding, how- 
 ever, in abolishing the partnership of acquests. Little by little, 
 the rule established for the town came to be applied in the sur- 
 
 well known in the Bordelais in the twelfth century for it to have been possible 
 to have drawn an institution of such importance from a few texts scattered 
 at random through the Digest. Furthermore, why should these texts have 
 only resulted in the partnership of acquests at Bordeaux? Finally, let us 
 observe that the Bordeaux system differs very greatly in other respects from 
 the Roman system: the wife has no paraphernalia and she is under the hus- 
 band's power. — Lastly, the "Cout. de Bordeaux" did not borrow the part- 
 nership of acquests from the neighboring countries of Customs, for only the 
 community of movables and acquests was recognized in them. 
 
 1 "Arg. Privil," of 1206: "sicut capere consuevit." 
 
 2 "A. C, Bord.," 202. With what object was this privilege asked for? 
 Must it be accounted for by the influence of the English law or of the Roman 
 law? The text is silent. This privilege left in existence the right to the ac- 
 quests for the benefit of the children in case the mother died first. Later 
 on a formal stipulation was required from the wife's heirs as well as from the 
 wife herself: "Bord., A. C," 82 et seq., 108 et seq.; "N. C," 70 et seq. 
 
 2 The same restriction applied to the exclusion of the daughter who was 
 given a marriage portion from the succession of her father: "A. C," 76, 202. 
 
 * This was also the system in use in Bayonne, Labourt, Soule, and Navarre. 
 
 ^ Rights of the survivor, sum which the surviving spouse takes out of the 
 possessions of the deceased spouse: "A. C," 98, 104, 111, 113; "N. C," 47. 
 49. Contractual reservation of the acquests or conferring the ownership of 
 all the acquests upon the children to be born of the marriage, the surviving 
 spouse having only the usufruct of them: Tessier, no. 302. 
 
 ^ Other provisions of the "Cout. de Bordeaux" which are connected with 
 the Customary law: (a) Communities between brothers or cousins who are 
 not nobles: "A. C," 13-18, 56-68, 74, 85-88, 96, 97, 111, 112, 143, 244, 245. 
 — (h) Repurchase by person of the same lineage. — (c) The rule: "Paterna 
 paternis." — (d) Reservation, two-thirds for commoners, one-third for 
 nobles. — (e) Hereditary seisin. — (/) Right of primogeniture (for the benefit 
 of the sons or the daughters) . — Together with these rules are found others 
 of Roman origin: the paternal power, the legal share, the making heirs of 
 girls in default of male issue, disinheritance, etc. — The "A. C," makes no 
 mention, as the "N. C," does, of the obligation which the father is under of 
 giving his daughter a marriage portion. 
 
 810
 
 Topic 3] SYSTEMS WITHOUT COMMUNITY [§551 
 
 rounding country; this change is perceived in the "Nouvelle 
 Coutume" of 1520; the marriage portion system is the law and 
 the partnership of acquests only exists by virtue of a special stip- 
 ulation; ^ it has become an accessory of the marriage portion 
 system. At the same time, the paraphernalia possessions,^ which 
 were unknown to the old Custom, became distinct from the pos- 
 sessions which formed the marriage portion ; ^ the husband had 
 the administration of them,^ just as he had that of the partner- 
 ship of acquests; but the wife, who was subject to the power of the 
 husband with respect to these possessions, acquired the right to 
 dispose of them without authorization. Thus the old system of 
 Bordeaux came to be altered, and it is in this state that Article 
 1581 of the Civil Code and the practice of the Southwest of France 
 preserved it.^ 
 
 1 "N. C," 26; "Attest." of the 13th of July, 1715, and of the 12th of 
 Feb., 1746. 
 
 2 That is to say, those which the wife acquires after the marriage. 
 
 3 "A. C," 61, 64, 66, 80, 85, 112. 
 
 * "N. C," 42. In the written law, the issues of the paraphernaha belong 
 to the wife. 
 
 ' "A. C," 114: the selling of the wife's inheritance is only vahd when 
 carried out with the husband's consent and if he has possessions out of which 
 his wife will be able to recover the value of her inheritance; 56, 103, 174. 
 Cf. "N. C," 53 and {Lamothe) II, p. 128: the wife can alienate it by herself, 
 "salvo jure mariti." 
 
 811
 
 §552] 
 
 SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 Topic 4. Systems of Community 
 
 § 552. Origin of the Community of 
 Possessions between Spouses. 
 Distinctive Characteristics of 
 this System. 
 
 § 553. Date of the Community. 
 
 § 554. Causes which produced the 
 Community and directed its 
 Evolution. 
 
 § 555. Various Forms of the Commu- 
 nity. — (A) General Com- 
 munity. 
 
 § 556. The Same. — (B) Partial Com- 
 munities. 
 
 § 557. Freedom of Matrimonial Agree- 
 ments. 
 
 § 558. What the Community con- 
 sists of. — (A) Assets. 
 
 § 559. The Same. — (B) The Lia- 
 bilities. 
 
 § 560. Administration of the Com- 
 munity. 
 
 § 561. Part played by the Wife. 
 
 § 562. The Wife's Personal Belong- 
 ings. 
 
 § 563. The Dissolution of the Com- 
 munity. 
 
 § 564. Continuation after Death. 
 
 § 565. The Separate Estate (Judicial). 
 
 § 566. Right of the Wife to choose 
 between Acceptance and Re- 
 nunciation. 
 
 § 567. Transactions Previous to Par- 
 tition; Reinvestment and 
 Recompenses. 
 
 § 568. The Same. — (A) Recom- 
 penses due from the Com- 
 munity. 
 
 § 569. The Same. — (B) Recompenses 
 due from the Spouses to 
 the Community. 
 
 § 570. Partition. — (A) Assets. 
 
 § 571. The Same. — (B) Liabilities. 
 
 § 572. The Married Woman's Mort- 
 gage. 
 
 § 552. Origin of the Community of Possessions between 
 Spouses. Distinctive Characteristics of this System. — The sys- 
 tem of common law at the beginning of the feudal period in 
 countries of Customs placed the possessions of the wife under the 
 administration and made them subject to the enjoyment of the 
 husband; one can say that in this sense they were all part of 
 the marriage portion. All the acquests belonged to the husband. 
 The wife, who was strictly subject to the husband's guardianship, 
 only had a right of survivorship (dower, etc.) and the restoration 
 of the share brought by her in immovables, when the marriage 
 came to be dissolved. Under this system, as under that of the 
 community, the possessions of the spouses formed but one mass, 
 which was in the hands* of the husband. But it was lacking in the 
 two essential characteristics by which the community system is 
 marked: (a) the transmissibility of the wife's rights to her heirs; 
 by which, if marriage were dissolved by her dying first, her heirs 
 took the share to which she would have had a right if she had 
 survived ; (6) during their joint life the spouses are looked upon as 
 joint owners, or as partners with respect to losses and gains;^ 
 
 * To-day there is much discussion as to the juridical nature of the com- 
 munity. CJ. especially Stobbe, IV, 215. The various opinions which have 
 
 812
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 552 
 
 Had legal relations been governed by pure logic, the husband 
 would have fallen to the rank of a mere manager charged with the 
 administration of the common possessions in the interest of the 
 family. This was a modest position which the husbands of other 
 times could not accept, even assuming that the wives would have 
 thought of imposing it upon them, for this would have been to 
 give up their domestic power. So, they preserved their author- 
 ity almost in its entirety; all the possessions of the wife were 
 included in the marriage portion, as in former times, and were 
 placed in the hands of the husband. The result of this is that 
 the transition from one system to the other was scarcely per- 
 ceptible; the old texts are not very precise; what an embarrassing 
 question it is to decide whether or not they have in view the com- 
 munity system! Until the very end of the old law one can say, 
 however paradoxical the expression may seem, that the system 
 which is the most like that of the community is the exclusive sys- 
 tem of community; this is so true that, if there were no community, 
 it was this latter system that the spouses were considered as hav- 
 ing adopted. In the community, it is said, the wife gets an in- 
 terest in the prosperity of the household ; this is correct, but she 
 gets not a very much larger interest in the community where she 
 only had a right to a third than in the exclusive system of com- 
 
 been formed show the special tendencies of certain legal systems or certain 
 phases of the evolution of this system. Our old authors did not, so to speak, 
 concern themselves with the question; they were satisfied with defining and 
 regulating the relations existing between the spouses without seeking to find 
 the only principle upon which they could have based this regulation. For 
 them the community is a civil partnersliip "sui generis," having special rules 
 due to the special position of the spouses. — Here is an outline of the prin- 
 cipal systems suggested: 1st. "The husband is the only owner" of the com- 
 munity possessions; the wife only has a right to arise in the future if there 
 remain any of these possessions at the time of the dissolution of the marriage 
 (community "mortis causa"). This is the tendency of the French Customs. 
 Furthermore, the husband has not been authorized to dispose of the commu- 
 nity by last will and testament. 2d. There exists "joint ownership or joint 
 possession" between the spouses; but neither member of the community can 
 claim their share or make any disposition of it; the husband's debts are an 
 encumbrance upon the wife's share as well as his own, etc.; scarcely any of 
 the rules of Roman joint possession are applied. 3d. The community con- 
 stitutes a "legal person"; from this it would follow, for example, that after 
 the dissolution of the community, the creditors of the community would have 
 a right to the community possessions before the creditors of the spouses indi- 
 vidually; in the old law there is not a trace of these ideas to be found. 4th. 
 There would exist a Germanic joint ownership, "zu gesammter Hand"; 
 this not very precise theory would assume that both spouses would have to 
 act "communi manu"; but as this is only true in exceptional cases, the con- 
 ception of unity of hands must be brought in ("Einhand"), a thing which 
 overthrows the principle. Cf. the oft-cited passage from Justus Veracius, 
 "Libellus consuet. princip. Biimberg" (1681), 1733, p. 59. 
 
 813
 
 § 552] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 munity with its right of survivorship, also equal to one-third. 
 The transmission to her heirs of her rights of joint ownership 
 constituted the only practical difference between these two 
 cases. 
 
 Thus, at its very origin the community is scarcely to be dis- 
 tinguished from -the system of possessions between spouses of the 
 barbarian period. But an evolution due entirely to decisions 
 and practice ^ modified its early characteristics by increasing the 
 number of guaranties and privileges in the interests of the wife, 
 which served as a counter-weight to the very extensive powers 
 
 1 The evolution of the community system is, as we see it, characterized 
 by the affirmation and the more and more energetic protection of the rights 
 of the wife. There are many who interpret it differently. There are those 
 who maintain that the wife was at first almost the equal of her husband (in 
 the thirteenth century she validly binds herseK for the time follomng the dis- 
 solution of the marriage, she takes the place of her husband when he is under 
 a disabiUty or absent): Cheron "These," p. 17; Gautier, "Chevalerie," p. 358; 
 Gide, 470; Lecoy de la Marche, "La chaire Fr. au moyen ige," p. 400. 
 Cf. Viollet, "Et. de St. Louis," I, p. 147; GlassoJi, VII, 267. In the sixteenth 
 centm-y under the sway of Roman ideas she must have been deprived of this 
 rank, she must have been placed under a disabiUty and under guardianship. 
 The community must have lost its original character of a partnership between 
 equals; the powers of the husband must have grown out of all proportion 
 when the wife was placed under a disability ; and yet at the same time nothing 
 could be more inaccurate than tliis pretended weakness and inexperience of 
 the sex, because both unmarried women and -nadows were under no disabiUty. 
 The community came to be, in the eighteenth century, a partnership in nothing 
 but name, a thing which could be compared to a scale gone crazy, which, tipping 
 now to the right, now to the left, never attains equilibrium; a Umping insti- 
 tution of which it could rightly be said: "It is the wife which the community 
 oppresses so long as it exists, and the husband when it is dissolved." Fenet, 
 XIII, p. 707 (Duvergier's report); Cheron, "These," p. 58. There would be 
 an inconsistency, according to these ideas, between the disability of the 
 wife and the partnership of possessions. The formula of Pothier (unformed 
 law) is taken laterally, and it is contrasted with the old law, according to which 
 the wife who was not under a disability was a true partner, although she was 
 subordinated to her husband. It has been reiterated "ad nauseam," that 
 if the married woman is under a disability, it is not because she is inferior to 
 her husband. Nor is it apparently because she is his superior. Had she 
 been the man's equal, she, as often as he, would have been the head of the 
 household. But custom made of her a perpetual minor. Chassaneus tells 
 us that, in his day, when a married woman passed near a man custom re- 
 quired that she cover half of her face through modesty. How can we be as- 
 tonished, being given this characteristic and others of a similar nature, that 
 the jurisconsults had to concern themselves with the "fragiUtas sexus," with 
 the lack of experience of women. Unmarried women and widows were not 
 similarly situated; they ran the risk of causing injury to themselves, and that 
 is all; married women ran the risk of causing injury to their families, therefore 
 greater precautions had to be taken against them. Where many see nothing 
 but an unfortunate retrogression, I see only the continuation of an older 
 state of affairs. It was thought that it would be best to place the wife under 
 a disability, to compel her to provide herself with the authority of her hus- 
 band for every act, the day that the archaic sj^stem which made the family 
 patrimony practically inalienable, disappeared. Granting this point of de- 
 parture and the Customs of former times, the progress of our old law can far 
 more readily be understood. "A. C, Bord.," 66. 
 
 814
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 553 
 
 of the husband.^ Instead of establishing a mathematical equality 
 between spouses, which would have resulted in the strong making 
 use of the weak, they were placed in an equal position by an in- 
 genious combination of rights which varied but which were equiv- 
 alent. It is because originally the community did not differ very 
 much from the system which preceded it that it retained the in- 
 stitutions of dower and mutual gift, which were much more in 
 harmony with the system abandoned. Under the Civil Code ^ 
 dower has disappeared ; community, which was formerly restricted 
 to countries of Customs, has become the common system of law 
 in the whole of France. Its foundations have not been modified ; 
 the husband has not ceased to be the head; but he is no longer 
 looked upon as anything but an administrator with extensive 
 powers. It would no longer be correct to say that he is the master 
 and the lord of the community ; he can no longer give the posses- 
 sions belonging to the community "inter vivos." This is an ad- 
 vance; it had, however, been half realized by the old law. It would 
 be difficult to go very much further in this direction by increasing 
 the rights of the wife, as some have asked, without running the 
 risk of destroying the equilibrium which has been established be- 
 tween the spouses by a system consisting entirely of set-offs and 
 balances. 
 
 § 553. Date of the Community. — It is true that in its early 
 stages the community was not a very important thing; ^ one must 
 wait until it passes unperceived into the early part of the Cus- 
 tomary period. The examination of documents does not belie 
 
 * Separate maintenance, a right to attack alienations made in fraud 
 of her rights, renunciation of the community, ' benefit of emolument, 
 prerogatives in the exercise of the recaption, the implied mortgage: such are 
 the weapons given the wife against her husband, and it is easy to see, even 
 from this mere enumeration, that she is not sacrificed. The husband has 
 absolute power, but he is held in check at every turn by the feeling of liis 
 responsibility. 
 
 2 The first draft of the Civil Code of Cambac6r&s, 1793, Art. 11 (Fenet, I, 
 20), gave both spouses an equal right to the administration of their possessions; 
 the wife could exercise it as well as the husband. This rule, which was founded 
 upon the idea that the inequality of the sexes was nothing more than a preju- 
 dice, was abandoned by Cambac^rcs himself in his third draft, that of the 
 month of Messidor, year IV, as being contrary to the natural order of things 
 and only liable to give rise to disputes: Sagnac, p. 294. Cf. preparatory 
 work on the Civil Code. 
 
 ^ Cf. as to the German texts, Schroeder, II, 2, 2; II, 3, 390 et seq.; Stobbe, 
 IV, 118 (uncertainty). A comparison with the German law is here, as in 
 many other cases, of great utility, because we find therein, as though in an 
 archaeological museum, forms which have disappeared elsewhere, rules which 
 were used in periods of transition, anomalies and exceptions which permit 
 of our following more closely the progress of our own institutions. 
 
 815
 
 § 553] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 this conjecture.^ It is rarely found mentioned in the twelfth 
 century; ^ the charters of the communes of the North, Uke that 
 of Laon, 1128, c. 13, speak of a community of acquests between 
 the spouses.^ In the thirteenth century P. de Fontaines does 
 not seem to make any allusion to it; "Jostice,"^ the "Et. de 
 St. Louis," '" the Assizes of Jerusalem,^ and the Registers of 
 Parliament,'^ are far from being explicit. Beaumanoir is very 
 sparing of details; he, however, affirms in a categorical manner 
 the existence of the conjugal community and presents it as an 
 immemorial custom, 21, 2: "Everyone knows that a community 
 is formed by marriage, for as soon as the marriage is performed 
 the property of one and the other becomes common by virtue of 
 the marriage. My views are that the man is a guardian. . . ." ^ 
 
 * Among the Scandinavians, about the twelfth century: D'Olivecrona, 
 p. 31; "Saga de Nial," Dareste's translation, p. 3. 
 
 2 "Cart, de Cluny," in 937, no. 476: a wife gives her husband her half of 
 the jointly acquired property. "Fribourg en B.," 1120, Art. 15; Giraud, 
 "Essai," I, 123; Ruber, IV, 426. 
 
 ' "Ord.," XI, 185 (no community of movables: return of the money to 
 the donor); "Amiens," 1190, 35: one-half of the acquests to the survivor, 
 the other half to the children. Cf. Charters of Cerny, Crespy, Bruyeres, 
 Sens, etc.; "Ord.," XI, 2.33,235, 259. — See also the "Ord." of 1219 (I, 38) 
 as to Normandy (Lauriere) : if the wife dies before her husband without having 
 had any children; the husband gets all the movables and acquests; he excludes 
 the wife's heirs. 
 
 * P. 256. Cf. pp. 169, 170, 225, 231. 
 
 8 "Et. de St. Louis," I, 16, 17, 139, 140, 143; Viollet, "Et.," I, 132, cites 
 D'Espinay, "Cartul. angevins," p. 183 et seq.; "R. h. Dr.," VIII, 45; Chevalier, 
 "Cartul. de Noyers" (1085), p. 152; "L. de Droiz," I, p. 182. 
 
 8 In the Assizes of the High Court, the wife of a noble has only dower, 
 but this dower includes half the movables and immovables which are left 
 at the death of her husband (at least in the case of knights), after the debts 
 on the movables have been paid (ed. B., Table, see "Douaire"). Besides 
 her dower the "Assises de la Cour des Bourgeois" give the widow (or her 
 children) the absolute ownership of one-half the jointly acquired property, 
 c. 183, 187; she is held responsible for the debts of her husband, without there 
 being any mention of a possible renunciation by means of which she can escape 
 this, c. 191; the husband should also pay his wife's debts contracted before 
 the marriage, or even during the marriage if they were for the needs of the 
 household, and he is allowed to sell his wife's personal belongings even to pay 
 his own personal debts, assuming that his own personal belongings are not 
 sufficient, c. 194. According to c. 186, "acquests made by the husband before 
 the marriage" belong, if he dies "intestate," to his wife, for "no man is so 
 rightly the heir of the dead as his wife" (and "Gen.," ii, 24, is cited). 
 
 7 "Ohm," I, 5 (in 1255); 261 (in 1267); 565 (in 1265); 708: community 
 of acquests; II, 422, 474; III, 862, 1179; Boutaric, "Actes du Pari.," II, no. 
 5049; Ducoudray, "Orig. du Pari.," p. 797. 
 
 8 Beaumanoir, 21, 2; 13, 9, 21; 30, 99; 57, 1 et seq. According to Beau- 
 manoir, the community established by the Custom existing of absolute right 
 between the spouses, includes all their movables and deprives them of their 
 inheritances; all their debts on movables fall into this community. Are 
 the immovables acquired during the marriage jointly owned?_ On this point 
 Beaumanoir is not very precise. To read him without having any precon- 
 ceived idea, it would seem as though in his opinion the acquests made by 
 
 816
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 554 
 
 We must come down to the fifteenth century in order to find in 
 •the texts a detailed regulation of this institution.^ 
 
 § 554. Causes which produced the Community and directed 
 its Evolution.- — The causes which made the wife the partner 
 of the husband are of an economical nature rather than 
 of a moral nature; we can hardly find them in the Christian 
 sentiments of the ^Middle Ages.^ As we see it, the community is 
 
 each of the spouses individually belonged to them individually {cf. Leroux 
 de Lincy, "Hotel de Ville de Paris," 127); as to the immovables which they 
 acquire together, they also are personal belongings, in this sense that the 
 husband has no right to dispose by himself of the share which belongs to his 
 wife, but only of the jointly possessed personal belongings wliich are di\dded 
 into halves at the dissolution of the marriage {cf. 21, 2; 30, 99). The husband 
 is necessarily the administrator of the association, the guardian of his wife, 
 the "sires" of his wife's possessions as well as of his own personal belongings. 
 He can dispose of the movables at his pleasure and he alone can bind the 
 community. The community is dissolved at the death of one of the spouses, 
 but not when there is a judicial separation; at the most the husband provides 
 his wdfe vnih an allowance for her support. One-half of the debts are to be 
 charged to the wife, but she can free herself of this obligation by renouncing 
 the movables. There is no question of recompenses; the price received for 
 personal belongings wliich were ahenated went into the community just as 
 the other movables did. It seems that the community comes into existence 
 at the time of the celebration of the marriage {cf., however, 21, 2, and 21, 25). 
 As between people of rank, a three-sided association is formed if the sur- 
 viving spouse enters into a second marriage, consisting of this surviving spouse, 
 the new spouse and the children of the first marriage. 
 
 1 Desmares, XX, 124, 152, 247; "B.Ch.," 2d. s., I, p. 400, Art. 8, 11; "Gr. 
 Cout.,"p. 321; J. Lecocq, 83; "Gout. Not.," 19, 161, 176; "A. G., Anjou," 
 ed. B-B., II, 227; IV, 261; "Gout, de Lords," ed. Tardif, Art. 193; Loysel, 
 III, 385, 657; "Paris, A. G.," 110; "N. G.," 220 et seq. {cf. Ferriere, bibl.); 
 "Gonf. des Gout, de Guenois," fo. 549; Moliere, "Ec. des femmes," IV, 2. — In 
 Burgundy the community was not generally adopted until 1489; cf. "T. A. G.," 
 "de acq.," 8 and 11 {Giraud, "Essai," II, 286 et seg). — "Gout, de Verm.," 
 10; "L. deDr.," I, 184. 
 
 2 Cf. Ginoulhiac, Laboidnye, D'Olivecrona, etc., also Tardif, "Origines 
 de la Comm. de biens entre (§poux," "These," 18.50; L. Passy, "These," 1857; 
 P. de Salvandy, "Gains de survie," "These," 1855. 
 
 * Christian Origin. The Ghristian guidance given the family in the Middle 
 Ages must have resulted in the power of the father and the conjugal community : 
 Ltfebvre, "Lee. d'introd." and "La Gout, franc, du mar.," 1901. Cf. Typaldo- 
 Bassia, p. 16. — If Ghristian feelings had created the community .how does 
 it happen that this institution was unknown to the Ghristians of very early 
 times? One has difficulty in finding among the writings of the theologians 
 and the canonists a few scattered texts which either deal fully with, or touch 
 lightly on the community. Cf. in Lefebvre, II, 488, the letter from St. Augus- 
 tine to Ecdicia, "Ep.," 282 of the "Pati. lat." of Migne, and compare it with 
 the "Laudatio Turiae," Gratian, c. 27, q. 2, o. 17; Dig. X., 4, 20, 2. The can- 
 onists know of scarcely anything beyond the Roman marriage portion system 
 with dower. If it be unconsciously that the spirit of Ghristianity has given 
 birth to the community, how is it that it did not produce this same effect in 
 Southern Europe, in Normandy, in England and in certain portions of Germany? 
 Why did not this spirit make the absolute community prevail everysvhere, as 
 must logically have followed? Why in the French Customary community 
 do the acquests of the spouses obtained before the marriage remain their 
 personal belongings? The maxim "Vir et mulier hunt una caro" serves, in 
 the "Ass. de J6r.," "Gour des Bourg.," 180, as a justification of the wife's 
 
 817
 
 § 554] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 to be accounted for in the same way as the rights of survivor- 
 ship of the barbarian period.^ The share contributed by the wife, 
 increased, either because the value of her work became greater, 
 or especially because she more easily had access to the paternal 
 inheritance.^ She was finally recognized as having more exten- 
 sive rights by virtue of the marriage. The old constitution of the 
 family was in opposition to this, but we have seen that the prin- 
 ciple of the unity of inheritance and the strength of the power of 
 the family head were all the time becoming weaker. Thus it was 
 possible either to keep a separate estate for her, as in England 
 and in Germany, or to consider her as a joint owner with her hus- 
 band of certain possessions.^ This last system was preferred in 
 France and elsewhere, for the very simple reason that it was the 
 one which differed the least from the previous system, while at 
 the same time it satisfied new needs. ^ It was, as we have observed, 
 
 right to half the acquests, and, in Bracton, to account for her disability. From 
 Modestinus' definition of marriage (D., 23, 2, 1: "consortium omnis vitae"), 
 must one infer the community? 
 
 1 Germanic Origin. — (A) Either one is to derive the community from the 
 old customs of Germania attested by Tacitus, 18 ("laborum periculorumque 
 sociam") and from a loftier conception of marriage than that which could 
 properly have been held by the Germanic race (c/., however, Modestinus, D., 
 
 23, 2, 1). We have disputed this opinion, see ante, § 100. Cf., however, Beau- 
 chet in Typaldo-Bassia, IV: this idea of marriage was the first basis for the 
 conjugal community; it was developed under the influence of family joint 
 o^\Tiership and of the "mundium," which placed all the belongings of the wife 
 in the hands of her husband, thus estabhshing an external or formal com- 
 munity from whence issued the true community. These ideas, which were 
 very much in favor in the time of Miitermaier, etc., have to-day scarcely any 
 partisans left in Germany. — (B) Or else we find the community already in 
 existence in the documents of the barbarian period, and its formation is to be 
 accounted for by means of economic causes pointed out above (§ 520) or by 
 means of the tendencies of the times towards the community. Cf. Schroeder, 
 "R. G.," 723; Ginoulhiac, p. 285. 
 
 2 If the family's rights of succession are not very great, as is the case in 
 Normandv, the community comes to nothing. Cf. Ficker, §§ 1052, 1111; 
 Stobbe, § 324. 
 
 * Other systems which no longer need even be discussed. — 1st. Roman 
 Origin: Laurikre, "Gloss.," see "Comm."; Bouhier, on "Bourg.," I, 175. 
 It is certain that the spouses could contract for a partnership between them- 
 selves at Rome (and even in Greece, Xenophon, "Econom.," VII, 12; Beauchet, 
 "Dr. prive de la R^publ. Athen.," I, 244), out this is something which is 
 very exceptional: Dig., 34, 1, 16, 3; "Laudatio Turise"; Girard, "Textes," 
 p. 777 (each spouse takes care of the other's possessions, but there need be 
 no community for this to be so). A few texts are still cited: D., 23, 2, 1; 
 
 24, 3. 17, 1; 25, 2, 1; "Cod. Just.," 9, 32, 4; Martial, "Ep.," IV, 75; Denys 
 d'Haiic, "Ant. Rom.," II, 25; "Colum. r. r.," 12. — Van Wetter, "Le Dr. 
 Rom. et le Dr. Celtique," "La comm. des biens entre 4poux," 1898, has once 
 more just taken up this abandoned opinion. — 2d. Celtic Origin. Pasquier, 
 "Rech.," I, 398; Grosley. "Rech.," p. 8; Pardessus, "Ac. Inscr.," X, 752. 
 
 * It is not always to the wife's advantage. The wife who is in a community 
 runs risks, especially if one admits that she was not originally authorized 
 to renounce the community. 
 
 818
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 554 
 
 a scarcely perceptible transformation.^ A few favorable circum- 
 stances were sufficient to produce this slight variation.^ In towns, 
 where family possessions are rarely met with, there is nothing to 
 offer an obstacle to its adoption; the marriage portion of the wife 
 consists in the making of an investment, as would the share of a 
 partner; the benefits resulting from commerce and industry, or 
 acquests which are realized because of them, are shared, because 
 the woman, owing to her fortune or her activity, contributes to 
 their production.^ Community is thus the matrimonial system 
 of the merchants. In the country the land does not belong to the 
 peasant, but to the lord; the possessions of people of small power 
 are reduced to movables, which, because of their very nature, are 
 hardly to be distinguished from one another; they were declared 
 to be common to the two spouses. The community is thus the 
 system of the serfs and the commoners.^ It was more difficult for 
 it to obtain a hold in the class of the nobility; the share brought 
 by the wdfe was there, in fact, ordinarily very small (unless 
 she were the heiress of a fief); she would be contented with her 
 dower. In time the system of the community, however, was ex- 
 tended to the nobility themselves; but the queen of France never 
 lived in a community of possessions with the king, which is a re- 
 markable example of the survival of the early sj^stem.^ 
 
 The opinion which sees in the conjugal community a variation 
 of those secret communities ^ which were formed among people of 
 
 1 We have already pointed out the analogy existing between the rights of 
 the sur\nvor, rights of succession and the community rights allowed the 
 married woman; the change from one to the other of these rights must have 
 taken place without difficulty: Stobbe, § 122; Heusler, § 154. 
 
 2 The Scandinavian law shows the community taking the place of a still 
 older system analogous to that of unity of possessions, by means of agreements; 
 at the end of a certain time of long or of short duration, for example tliree 
 years, the wife becomes the husband's partner; this is an advantage which is 
 granted her because of the share contributed by her, when the marriage has 
 lasted a sufficiently long time for a presumption to arise that there will be 
 no rupture. Cf. Amira, 163; D'Olivecrona, p. 94; "Saga de Nial," Dareste's 
 translation, p. 3; Lehr, "Dr. civ. Russe," I, p. 28: in spite of the "Svod," 
 wloich leaves to the wife the free administration of her personal possessions, 
 there is in fact a real community between the spouses. 
 
 8 D'Olivecrona, p. 135 (laws of the Swedish towns). In the Danish towns 
 there is an absolute community; in the country the personal belongings are 
 not included within the community. Cf. Stobbe, IV, 119. 
 
 * In Germany the community also appears to be an institution of urban 
 law; but it is just as old among the peasants; its formation among the 
 rural classes is to be accounted for bj^ means of the influence of the "Ganerb- 
 schaften" which are so numerous in the regions where it was adopted, by means 
 of the improvement in the wife's position in the family, and by means of 
 the decline of the rights of the family over lands. 
 
 8 Loysel, XXII, 111. 
 
 8 "Conf. de Gudnois/' p. 601; "L. d. Dr.," I, 194. 
 
 819
 
 § 554] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 power, generally brothers or relations by marriage,^ owing to the 
 single fact of their life in common during a year and a day,^ is 
 one which is usually accepted.^ It would have been surprising if 
 the existence of this partnership, which is attested from the time 
 of the barbarian period,^ had not facilitated the adoption and the 
 extension of the community between the spouses. But there are 
 too many differences between these two institutions for one of 
 them to account sufficiently for the formation of the other." The 
 
 1 "Gr. Cout.," p. 371; Guy Coquille, "Q.," 125. 
 
 2 These communities are to be found in almost the whole of France : Masse, 
 "These," p. 383; Glasson, "N. R. H.," 1891, 446; Dunod, "Tr. de la main- 
 morte," p. 87; Ragueau, see "Chanteau"; G. Coquille, on "Niv."; Chassaneus, 
 on "Bourg."; Chabrol, on "Auv.," 189; Lebrun, "Tr. des comm. ou soc. 
 tacites," at the end of his "Tr. de la comm. entre mari et femme"; Lattes, 
 p. 267 (Lombardy: community between brothers); "A. C^ Bord.," 67, etc, 
 C/. as to the German "Ganerbschaften," Heusler, I, 230; Gierke, "Deutsch. 
 Privatr.," I, 664. 
 
 3 Laboulaye, p. 333; Masse, "These," p. 383. 
 
 4 Capitulary of 818, c. 6; "Polypt. d'Irmion," II, p. 24, ed. Guerard. 
 
 5 Beaumanoir speaks of one and the other of them in the same chapter, 
 but without confusing them. Guy Coquille, in his "Institutes," and Lebrun 
 in his "Tr. de la Comm.," also compare them. Among other similarities, 
 the following have been pointed out: 1st. The conjugal community at first 
 only began at the end of a year and a day, just the same as silent partner- 
 ships did. 2d. Just like the latter (which are rare among nobles) it only existed 
 and was carried on among commoners. These are two points which are 
 very much discussed. In the sixteenth century, the number of Customs 
 which only cause the community to begin after the year and a day are very 
 limited in number; in the later texts this Custom scarcely makes its appear- 
 ance. We do not find that the Customs which make the community between 
 spouses commence a year and a day after the marriage reject silent partner- 
 ships; this rule is one of the newer laws and has exceptions: Loysel, 378. But 
 let us observe that the delay of a year and a day in the formation of part- 
 nerships between relatives or strangers was only required in the absence of 
 an agreement. Cf., however, "Gr. Cout.," II, 40. Thus brothers living 
 in a state of joint possession after the death of their father became community 
 owners of possessions immediately, and not at the end of a year and a day. 
 As between spouses, there would always have been an agreement. — 3d. 
 In the sixteenth century, silent partnerships, like the conjugal partnership 
 in France, only include the movables and acquests; but in other countries 
 the community between spouses is absolute; if we assume that at first silent 
 partnerships were absolute, we shall no longer be able to account for com- 
 munities of movables and acquests or of acquests alone, between spouses. — 
 4th, the enjoyment of the community possessions belongs to each one of 
 the participants or to each of the spouses in proportion to their needs and 
 not to the shares contributed by them respectively. — With these resem- 
 blances, which as we see amount to very little, let us contrast their important 
 differences: 1st. The conjugal community is nothing more than a special 
 method of regulating the interests of the spouses; on the other hand silent part- 
 nerships between relatives have their origin in the economic and social con- 
 ditions of the late Middle Ages. — 2d. Married persons who became members 
 of a silent partnership only counted as one individual (example, the com- 
 munity of the Jault); women, like minors, only had a right to their support 
 and maintenance; when they married they were given a marriage portion 
 in money or in movables, without touching the community lands; far from 
 calling for the community between spouses, silent partnerships would rather 
 
 820
 
 Topic 4] SYSTEMS OF COimUNITY [§ 554 
 
 situation of married people and that of relatives or strangers who 
 are associated together is entirely different; the difference in sex, 
 the presence of children, the constitution of the family, carried 
 with them differences wdiich were inevitable. Also, provinces such 
 as Normandy are found where secret partnerships existed in the 
 old times, and where the community between spouses did not 
 succeed in taking root. 
 
 We are led to believe that the community was more frequent 
 originally among the commoners, and that it only became gen- 
 erally accepted among the nobility later on. But we cannot hide 
 from ourselves the fact that there is a good deal of uncertainty 
 upon this point.^ There was no absolute obstacle to the formation 
 of a community among members of the nobility, at least one re- 
 stricted to movables. The right of survivorship of the Frankish 
 period existed in the case of women of very high rank, as well as 
 women who were free; in various localities it became trans- 
 formed into a community right.^ But there are to be found texts 
 from which it clearly follows, or which allow one to assume, that 
 in other localities the wife of the nobleman had no community 
 possessions, and that she was satisfied with her dower and her 
 legal reference-legacy in movables;^ this is because the old tradi- 
 
 have excluded it. C/., however, Viollet, p. 796, who admits of the opposite 
 evolution having taken place; according to him the wife originally counted 
 as one individual, but the texts wliich he cites are recent ones: "Orl.," 213 
 et seq.; "Auv.," 14, 32 (and Chabrol, II, 399). See L. Passy, p. 35, Norman 
 text of 1241. — 3d. The "head of the loaf," although called the master of the 
 community, has not such extensive powers as the husband. — 4th. The separa- 
 tion of the spouses, in the time of Beaumanoir, did not mean the dissolution 
 of the community; cf. the rule "the loaf parts the villein." — 5th. The com- 
 munity between spouses is divided into halves between the spouse and the 
 children; in silent partnerships, the children of one of the participants do not 
 divide his share among them, but each of them counts as one more membei-. 
 — 6th. At the death of one of the participants, without issue, his fellow as- 
 sociates are given his share by right of increase, to the exclusion of liis rela- 
 tives and the lord; the share of the spouse who has died without issue goes 
 to his heirs, although they are not members of the community. "Gr. Cout.," 
 p. 371, protest of the relations by marriage (and not of the spouses). 
 
 > Laboulaye, p. 287. Cf. Glasson, VII, 359; Schroeder, "Giit.," 2, 2, 177. 
 
 2 Beaumanoir and the "Livre de Josticc" do not distinguish between 
 nobles and commoners; the "Olim " set forth the right of the widows of nobles 
 to the jointly acquired property. The "Anc. Cout. d'Anjou," ed. B-B., 
 I, 48, 192, .523, speaks of the community between spouses without specifying; 
 but cf. IV, 261 (as between nobles an express agreement is necessary); 
 "Meaux," IX, 51. 
 
 ' Contrast between nobles and commoners: "Et. de St. Louis," "Ass.de 
 J^rus.," loc. cit. Cf. also P. de Fontaines, 15, 8; "A. C, Champ.," XII; "A. C, 
 d'Artois," XXXIV; Loysel, 178: "the husband is the guardian of his wife"; 
 now the guardianship of the noble spouse who survives over the minor chil- 
 dren excludes the idea of any community between them. Beaumanoir, 
 21, 9 (notice that Beaumanoir docs not say the community is continued among 
 
 821
 
 § 554] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 tion was retained in this matter, as happens often enough in the 
 Lt-w of the nobility, the social anatomy of this law being more 
 archaic than that of plebeians; it is also because the exclusion 
 from inheritance, to which all women were formerly subjected, 
 lasted especially in the case of the nobility. Perhaps this pecul- 
 iarity, better than any other explanation, will account for this 
 remarkable fact: until 1580 the renunciation of community was 
 only allowed in Paris to the woman of the nobility; in doing this 
 she acted as an heiress rather than as a partner. 
 
 § 555. Various Forms of the Community.^ — (A) General 
 Community. This system, which is opposed to the principle of 
 the preservation of property in the family, has, nevertheless, been 
 very widespread in Belgium,^ Holland,^ in various parts of Ger- 
 many,^ in Switzerland '^ and Denmark,^ and even in Sicily ^ and 
 Portugal.^ It is only met with in France as an exception in a few 
 of the northern provinces.^ It could only be established in urban 
 
 people of rank and not among gentlemen) . — The legal reference legacy 
 of the noble spouse is an anomaly in the community system. — Survivals: 
 in the Sardinian States, the Code of Charles-Fehx, Art. 174, still excluded 
 the community among nobles. Fertile, III, 356, cites Italian statutes ex- 
 cluding "bona conditionata" ("livello," fiefs) from the community. 
 
 1 The "Ecloga" (in 740), Tit. II, introduces into the Byzantine law the 
 system of the community between spouses; if there are children, the sur- 
 viving spouse keeps all the possession of the other, and the community con- 
 tinues to exist sometimes even between brothers. Zachariae, § 11. As to 
 the "hypobolum" and the "theoretrum," a sort of "Morgengabe," c/. § 14, etc. 
 
 2 Britz, pp. 838, 858; Van Wetter, pp. 32, 41. 
 . 3 Van Wetter, p. 41. 
 
 * D'Olivecrona, p. 56; Stobbe, IV, 200. In many places the absolute com- 
 munity only came into existence with the birth of children: Ficker, § 710 
 et seq. 
 
 * Wyss, p. 119 et seq.; Huber, IV, 424. In this country, moreover, it is 
 only with difficulty that the various matrimonial systems can be reduced 
 to any clearly defined types. Cf. Lardy, op. cit. 
 
 * D'Olivecrona, p. 114; in the country, community of movables and acquests, 
 in the towns there came to be formed little by little an absolute community. 
 Iceland, p. 97 ("Gragas"): the spouses had a right to establish by means of 
 an agreement, either before or after the marriage, a community affecting all 
 their possessions or else their movables alone, provided they both possessed 
 a fortune which was about equal; they had the power of modifying or of 
 cancelling this agreement; the community also came into existence by law 
 when the spouses had lived together three years and the witnesses to the 
 betrothals had died, and when the spouses had nothing when they married 
 and acquired a fortune afterwards, etc. Norway, p. 103. Sweden, p. 136 
 (towns). 
 
 ^ In Sicily, according to Briinneck, the community of possessions must 
 have been introduced by the Normans: "Sicil. Stadtr.," p. xxxiv. The 
 absolute community is there preferred, whereas in Sardinia only the community 
 of acquests was known: Fertile, III, 353. In Istria, marriage "ut frater et 
 soror," that is to say absolute community: Ciccaglione, "Man.," I, 445 (cf. 
 Byzantine law). 
 
 » "Portug. Mon. hist.. Leges," I, 368. 
 
 ' Viollet, p. 775, states that the absolute community existed at Tournai, 
 
 822
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 557 
 
 surroundings, where the rights of the family over immovable pos- 
 sessions were declining rapidly, and in rural surroundings where 
 personal belongings were unknown. It is sometimes difficult to 
 distinguish this type of community from a certain form of that 
 system which does not make use of community but exaggerates 
 the powers of the husband to such a point as to allow him to 
 dispose even of the immovables of the wife, and which gives 
 the entire inheritance of the joint estate to whichever spouse 
 survives, excepting that it makes these possessions incapable of 
 being disposed of by the latter (" Verfangenschaft").^ 
 
 § 556. The Same. — (B) Partial Communities. The most com- 
 mon forms are the community of acquests - and the community 
 of movables and acquests. This last community^ became the 
 common law in Customary France and came to be applied in a 
 large portion of Germany. The personal belongings or possessions 
 of the family are not included within it, but the movables of both 
 spouses are included in it and are mingled just as in secret partner- 
 ships. The husband is free to dispose of them, and in this respect 
 he enjoys the same prerogatives as he did under the matrimonial 
 system existing previous to that of the community; property ac- 
 quired jointly during the marriage forms a part of the community, 
 which is perfectly rational, because the labor or the fortune of the 
 spouses contributes to the production of such property; if acquests 
 made previous to the marriage remain outside of this commu- 
 nity, it is because they would be classed as personal belongings. 
 — Clauses which vary greatly in practice modified the Customary 
 community; thus there was formed little by little a community by 
 agreement, which was an adaptation of the ordinary system to the 
 particular circumstances of the marriage. 
 
 § 557. Freedom of Matrimonial Agreements.^ — Originally, the 
 Customary community seems to have been imposed upon the par- 
 ties. The authors of the thirteenth century and the marriage 
 contracts of that time never speak of the parties adopting a mat- 
 
 Boutaric, I, 76; at Arras, c/. "Cout. locales d'Arras," 1746, p. 37; at Daours 
 and Bouthors, "Cout. loc. d'Amiens," I, 308; at Neuf-Brisach and other 
 places in Alsace, D Agon de Lacontrie, "Anc. Statutairc d'Alsace," p. 140, 
 etc.; in Auvergne, in the fifteenth century according to Barbier, "Viatorum 
 juris" ("R. de 16g.," 1873, 224); Doneau, "Comm. jur. civ.," 13, c. 16, 8. 
 
 1 Cf., for example, "mainpl6vie" at Li^ge; Heusler, II, 203; Briinner, 
 "Grundz.," p. 107; Britz, 838. 
 
 2 In Franche-Comt6 the community is limited to the movables and im- 
 movables acquired during the marriage: Slohbe, IV, 268; Fickcr, § 1194. 
 
 3 Stnbbe, IV, 270; D'Olivecronn, p. 57; Huber, IV, 432. 
 
 < Oilier, "These," 1902; Stobbe, IV, 136; Heusler, § 155 ("hilix"). 
 
 823
 
 § 557J SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 rimonial system; it follows that this system is and can only be the 
 community, in the jurisdiction of the Customs which admit of it; 
 the spouses were not free to adopt any other.^ At the same time, 
 from this period on, one finds clauses which modify the formation 
 of the community or even its dissolution.^ Little by little, they 
 become more numerous,^ and in the sixteenth century they ar^ 
 frequent enough for the principle of the freedom of matrimonial 
 agreements to be proclaimed.^ At this time the rejection of the 
 community is even tolerated. This freedom is, however, not un- 
 limited; we do not find that it was ever lawful to establish the in- 
 alienability of the marriage portion.^ The jurisconsults were then 
 
 ^ Beaumanoir does not even admit legal separate maintenance: "Gr. 
 Gout.," p. 371; Loysel, 111. 
 
 ^ Stipulations for personal belongings: "Amiens," about 1249, Art. 70; 
 between 1249 and 1292, Art. 50, use of the funds of the marriage portion; 
 Charter of St. Louis of 1269 (L. Delisle, "Mem. s. les op^r. financ. des Temp- 
 liers," 1889, "Acad. Inscr."): deposit of a portion of the marriage portion 
 of Blanche D'.Artois at the Temple to be used by one of her relations chosen 
 by her, for the purchase of land or rents; these acquests will be personal 
 belongings in spite of all Customs to the contrary; the remainder of the mar- 
 riage portion handed over to the husband to dispose of as he may see fit, shall 
 be restored at the dissolution of the marriage. J. Lecoq, p. 83: right of the 
 wife to take back the share contributed by her, if it has not been used, out of 
 the community, before any partition takes place, and if not then out of the 
 husband's possessions. Marriage contracts of 1292 and 1396, Jamont, 
 "These," 252, 267. Clause of unequal shares, "Olim," II, 74, 10. Cf. 
 general formulae, but of Uttle probative force, of P. de Fontaines, 15, 8, and the 
 2d. Charter of Amiens, Art, 50; "Ass. de Jer.," " C. des Bourg.," 103. 
 
 ^ J. Lecoq, 83: " conventiones in contractu, matrimonii factse sunt tenendse 
 quia alias forte non fuisset matrimonium factum." In support of this are 
 invoked in the sixteenth century, Roman texts such as the "1. ahmenta," "qui 
 societatem," D., "de aUm. et cib." (communities of possessions); "Orleans," 
 173; "Berry," 8, 8 (exclusion from the community); "Troyes," 83. At this 
 time apphcations of this rule increased in every direction. Boerius, on 
 "Bourges," states as being in general use in 1508, and consequently as dating 
 from the fifteenth century, the clauses of Art. 144, of "free and clear"; Art. 161, 
 of the retaking of the share contributed free and clear in case of renunciation. 
 The "Const, de Vermandois," 1448, (no. 231), take into account the reference 
 legacy. J. Faber, on "Cod. Just.," "ad leg.," "de fideicom.," Tit. "de trans- 
 act."; on the "Inst.," fo. 14, "de nuptiis"; forfeiting of the community. Act 
 of 1389, "Docum. de la Soc. d'hist. de Fr.," 1884, 208: id. Boerius, on 
 "Bourges," loc. dt.; Desmares, 129 id. (provision is also made for the clause 
 of taking back the contributed share free and clear in case of renunciation, 
 for it is said that the wife is not held liable for the debts, if she only takes 
 back her contributed share; this would seem to us to assume that she could 
 pursue some other course). 
 
 * In the sixteenth century clauses in the marriage contract which would 
 not be allowed elsewhere are validated: pacts on succession, gifts of future 
 possessions, clause of taking back the contributed share free and clear by 
 means of which a member is not affected by losses and profits: "Orleans," 
 202; "Lorris," 200; "Montargis," 8, 9; "Berry," 8, 7; Britz, 826. 
 
 ^ The following are prohibited: 1st. Clauses cutting down the power of 
 the husband in his capacity of head of the community; thus it cannot be 
 agreed that the mfe shall be the head of the community, or that the husband 
 must have had the authorization of his wife before he can contract. — 2d. 
 
 824
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 557 
 
 able to declare that the Customary community was not formed 
 " vi ipsius consuetudinis," but as a consequence of an implied agree- 
 ment; from this there arose the important consequence that it was 
 a personal regulation and not "in rem." ^ — Among the wealthy 
 classes at least, the drawing up of a marriage contract was frequent.^ 
 The relatives of the spouses took part,^ even when the spouses had 
 come of age, either for the purpose of discussing the clauses, or to 
 make certain gifts, or to look after their hereditary rights. If the 
 spouses were minors, the presence of their relatives seems to con- 
 stitute a sufficient protection of their interests.^ "Habilis ad nup- 
 tias, habilis ad pacta nuptialia." They were looked upon as being 
 capable of making agreements which were made use of in marriage 
 contracts.^ Old institutions which were not much in harmony 
 
 Clauses cutting down the husband's power, for example, allowing the wife 
 to do without the authorization of her husband, c/., however, Separate Main- 
 tenance; some of the Customs allowed a general authority to be given in the 
 contract of marriage ("Artois," "Flandre," "Berry") or even outside of the 
 marriage contract ("La Rochelle," 23); Pothier, "Puiss. dumari," 67; Valin, 
 on "La Rochelle," 23, 86; Guyot, see "Autor."; — 3d. Clauses by wliich the 
 wife lost her right to renounce the community or her benefit of emolument ; — 
 4th. Clauses of inalienability, cf., however, Bourd. de Richebourg, III, 870. 
 Stobbe, IV, 205: the German law allows the husband and wife to reserve 
 "Sondergiiter" for themselves. Guenois, "Conf.," 584. 
 
 1 Legal system: the community could only be applied to immovables 
 situated witliin the jurisdiction of the Custom which imposed this regulation; 
 tacit agreement (Dumoulin): it affected all the possessions of the spouses 
 no matter where situated. As the question was an unsettled one it was 
 customary in Paris expressly to stipulate it: Masuer, t. "de dot.," 4; Pasquier, 
 "Inst.," p. 367; Pothier, 10; "B. Ch.," Ill, 57 (in 1322). Contest between 
 the Parhaments of Paris and of Rouen: Dumoulin, "Cons.," 39, 53. Contra, 
 D'Argente, "Bret.," 218, "Gl.," 6, no. 33. 
 
 - " Instrumentum dotale" of the Roman law, "Libellus dotis" during the 
 Prankish period, afterwards marriage articles. The notarial deed is gen- 
 erally customary because of its practical advantages, of the importance of 
 this contract and of the scarcity of deeds under private seal. "Arr. Cons.," 
 of Dec. 13, 1635; Decl. of 1639; "Arr. Cons.," of Dec. 13, 1698; Decl. 
 of Dec. 11, 1703 (prevention of the antedating of gifts between spouses). 
 However the private deed was in use in Normandy, and in this province in 
 the old times they were even satisfied with a parol agreement ("N. C," 386, 
 387), the proof of which was obtained from the marriage record. There 
 are other provinces where the private deed was lawful: Tessier, "Soc. 
 d' Acquets," p. 41; Guyot, see "Contr. de mar."; Britz, p. 239 (Lombardy). 
 In G(;rinany intervention of the law and publication: Stobbe, IV, 136. Forms 
 of marriage contracts in Ferribre's "Parfait Notaire," and other works of 
 this kind. Jamont, "Thdse"; National Archives, "cartons" U, 1031-1033. 
 Guyot, loc. cit. — Cf. Ordinance of Moulins, 54. 
 
 3 Tacitus, "Germ.," 18; Beaumanoir, 34, 49; "Bourg.," 1459, 1570, 26; 
 "Norm.," 262. Cf., however, "Arr. de Rdgl." of the 17th of May, 1762; 
 Pothier, no. 16; Guillemin, "These," 1885. 
 
 * Pothier, 306. Cf. lOZ. — Beaumaiwir, 34, 49; Loysel, 106. 
 
 6 Lebrun, "Communautd," 1, 5, 2: the minor is not free to adopt any 
 clause he pleases; for example, the conversion of real property into personal 
 property and the absolute community are forbidden him. Cf. the Civil 
 Code, 1398; Pothier, 303. 
 
 825
 
 § 557] SYSTEM OF PROPERTY BETWEEN SPOUSES [Cuap. V 
 
 with the principles of the Roman law, such as covenants upon 
 future succession, were upheld in these deeds, as a result, it was 
 said, of the freedom of matrimonial agreements and the favor 
 which was due to marriage. These family arrangements, which 
 were veritable treaties, less between two individuals than between 
 two sets of relatives, constituted the charter of the new household; 
 they should be settled before the marriage, for it was only then 
 that the freedom of the contracting parties was absolute,^ and, 
 once they had been settled, they could not thereafter be changed ^ 
 ("immutability of matrimonial agreements").^ — The majority 
 of the Customs make the community commence from the time of 
 the celebration of the marriage,^ but there are some of a more ar- 
 chaic character according to which it dates only from the going 
 to bed,^ like the right of dower, or at the expiration of a year and 
 a day,^ or, finally, from the time of the birth of children.^ 
 
 § 558. What the Community consists of. — (A) Assets. The 
 properties in the community are the movables, present and future, 
 
 ^ Annulment of counter-letters: Pothier, nos. 13, 16; Lauriere, on "Paris," 
 258; Loysel, 106; Stobbe, IV, 138. — Germanic delivery (betrothals); "Or- 
 leans," 202. 
 
 2 In countries of written law the marriage portion may be increased or 
 settled, but not diminished during the marriage (prohibition of restoring 
 the marriage portion in advance for fear the wife might dissipate it) : Serves, 
 "Inst.," p. 169; Bouhier, on "Bourg.," p. 407. Cf. dower, "Gr. Gout., p. 321. 
 
 3 Formerly the settlement of the marriage portion or of dower were in- 
 contestable ("L. Rib.," 37), just as the fixing of the "pretium emtionis" 
 was: P. de Fontaines, 15, 9; Beaumanoir, 34, 49. Afterwards in the inde- 
 feasibility of marriage contracts there was seen an assurance of peace and 
 concord, a means of securing the prohibition of gifts between spouses, perhaps 
 even a means of preventing the exposure to deception of third persons deal- 
 ing with the spouses on the strength of the contract. Abroad this prui- 
 ciple has not always been admitted. Cf. D'Olivecrona, p. 97 et seq.; Britz, 
 p. 829. Even in France, at least in certain provinces, the spouses were per- 
 mitted to return, during the marriage, to the common law system which they 
 had given up in the making of their contract: Viollet, p. 814; Stobbe, IV, 214; 
 Heusler, II, 429: it was not generally admitted that the marriage contract 
 had to be made before the marriage. 
 
 * Desmares, 247; Beaumanoir, 21, 2 (but cf. 21, 25). See post, the maxim: 
 "The husband lives as master and dies as a partner." TouUier's doctrine, 
 according to which the community only comes into existence at the dissolu- 
 tion of the marriage (XII, 75). 
 
 5 "Bourg.," 21; "Niv.," 23, 2; Stobbe, IV, 120. Viollet cites as appl>ang 
 to Strasbourg, Silberrad, "De acq. conjug. sec. jus Argent.," 1771; Pertile, 
 III, 348; Chaisemartin, "Prov.," 28. Cf. "Paris, A. C.," 210, and "N. C.," 
 220. 
 
 » "Gr. C.," II, 40, p. 371; "T. A. C., Bret," 207; "A. C.," 469, 586; 
 "Chartres," 57; "Dreu.x," 48; "Lodunois," 24, 1; "Chateauneuf," 66; "An- 
 jou," 511; "Maine," 508; "Tour., A. C.," etc. 
 
 ^ "Gr. Gout.," II, 40. Bayonne in the thirteenth century. Sicily, for 
 example "Messina," 1; "Saga de Nial," Dareste's translation, p. 3. —_ In view 
 of these rules one can understand clauses establishing the community for a 
 term or upon some condition: Pothier, no. 278; Lebrun, 1, 3, 10. 
 
 826
 
 Topic 4] SYSTEMS OF COMMUNITY f § 558 
 
 of the spouses, the revenues of personal belongings/ and the jointly 
 acquired property or immovables acquired for a consideration 
 during the marriage.^ — It is readily understood that the movables 
 acquired for a consideration during the marriage come under the 
 community. It is less easy to explain why it is the same with re- 
 gard to movables of which the spouses are possessed when they 
 marry, or which come to them by inheritance; if they were 
 treated in the same way, it is because of the old rule which gave 
 the husband the free disposal of them; when this old principle was 
 lost sight of, the lack of an inventory at the time of the marriage 
 seemed to be a sufficient reason to justify the solution which was 
 admitted. Moreover, the mingling of the movables of the spouses 
 was formerly far from presenting the disadvantages which it has 
 to-day; movable belongings were not very highly developed, and 
 those of high value had been classified under the head of immov- 
 ables (offices, rent-charges). — The property acquired jointly is 
 contrasted with community personal belongings or immovables 
 which are not common property, but which remain the personal 
 property of each one of the spouses. One might think that the 
 personal belongings that are inherited are the only personal be- 
 longings subject to the community, as both of the spouses reserve 
 to themselves their family possessions and nothing more; but this 
 is not so; all the movables belonging to the spouses at the time 
 of the marriage were placed outside of the community, as far as 
 inheritance is concerned,^ whether they were personal belongings 
 or acquests. The immovables acquired gratuitously during the 
 marriage were also ordinarily personal belongings of the com- 
 munity. There was no difficulty in this with respect to those 
 
 ^ Under the more modern law one can say that these issues of the personal 
 belongings form part of the community in their quality of issues and not 
 in the quality of movables, for the products are personal belongings although 
 they are also movables: Pothier, 95, 204. As to old times see Benumanoir, 
 21, 2. The early rule was no doubt that the issues were acquired by being 
 collected, and it was always applied to natural issues, arrears of quit-rents, 
 tithes, produce claimed by the lord and the price of farm leases. From the 
 Roman legal system was borrowed the idea of causing the civil issues to be 
 acquired, such as arrears of rents, day by day, in proportion to the time the 
 marriage lasted. At Frankfort profits realized in a separate trade are personal 
 belongings, but advantages accruing from industry are not; Stobbe, IV, 247. 
 In 1859 Canada gave the wife an absolute right to her profits and wages. 
 
 2 Every immovable belonging to the spouses is looked upon as being jointly 
 acquired: Loysel, 222. Cf. Pasquier, "Inst.," p. 499. 
 
 ^ "Jointly acquired property is acquired by two, acquests are acquired 
 by one." As a general thing acquests made during the marriage arc treated 
 like jointly acquired property. Cf. "Poitou," 229; Marsal, 33, 38, etc.; 
 " Sain t-Quen tin," I, 1. 
 
 827
 
 § 558 J SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 which were inherited, either directly or collaterally, and which it 
 was sought to keep in the families from which they came. But 
 with respect to gifts there was some hesitation. According to the 
 rule, "There is no acquest so fine as a gift," they should be jointly 
 acquired property. The theory which prevailed saw in gifts coming 
 from relatives, especially in the direct line, an advancement of 
 heirship; this theory classed possessions that were given in this 
 way with those that were acquired through inheritance.^ With re- 
 gard to gifts made to the spouses by people other than their rela- 
 tives, they constituted jointly acquired property, unless the donor 
 had stipulated otherwise, — a thing which no doubt often hap- 
 pened. The courts completed these rules, drawing inspiration 
 from the spirit which had dictated them, by means of theories as to 
 accommodating the families, — renouncement and recompenses.^ 
 
 Marriage contracts departed from the regulation which we 
 have just described, sometimes by restricting the community, 
 and sometimes by enlarging it. The merging of the movables of 
 both spouses in one single mass was prejudicial to the one who 
 contributed a great deal and advantageous to the one who con- 
 tributed little; this evil was remedied by no longer merging the 
 property: 1st. Partially, by the clause of conversion into money ^ 
 or stipulation as to personal belongings,"* which likened certain 
 
 ' "Cout. Not.," 183. In the collateral line it is jointly acquired prop- 
 erty: "Paris," 246; Desmares, 26; a personal belonging: "Maine," 507; 
 "Anjou," 513; Loysel, 393, 657; Pasquier, "Inst.," p. 362; Britz, 839. 
 
 2 Exceptional cases in which immovables, although acquired for a con- 
 sideration during the marriage, constitute personal belongings. — (a) Re- 
 purchase by a person of the same lineage: "Orleans," 382. As to the 
 redemption, cf. J. Lecoq, p. 84. — (6) Real subrogation: see "Exchange" and 
 "Reinvestment," Mi/ra. — (c) As to the acquiring of an immovable by the 
 husband, of wloich Ins wife is a joint owner (Civil Code, 1408, 2), cf. D., "de 
 j. dot.," 23, 3, 78, 4; Roussilhe, "Dot," 556 (an acquisition imposed upon 
 the wife). In countries of Customs, cf. the repurchase of joint possession; 
 controversy: (1) Compulsory acquisition for the wife, Lebrun, 1, 5, 2, 3, 12; 
 Ferriere, on "Paris," 220, 3, 13; Bourjon, I, 537. — (2) Option for the 
 wife, Valin, on "La Rochelle," I, 493, Art. 22, 1. Cf. Pothier, no. 150.— 
 Friendly acquisition resulted in the property being considered as jointly 
 acquired. 
 
 ^ Express or implied conversion into money (clause of investment, clause 
 of contributed share): Pothier, no. 325; see Denisart, Ferriere, Guyot. As 
 marriage portions were more often than not in movables, the conversion into 
 money clause, which at an early time was frequently made use of, became 
 almost a typical clause during the later stages of the old law. The invest- 
 ment clause which was made use of in the tliirteenth century (see post, "Rec- 
 ompense") lost its importance from the time when the mortgage served to 
 guarantee the wife's claims: Renusson, "Propres," VI, 7. 
 
 ^ The husband may dispose of the personal belongings held to be such by 
 the contract (and not of the real personal belongings) without the participa- 
 tion of his wife, unless the conversion into money has been stipulated for as 
 
 828
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 559 
 
 movables to the immovable personal belongings. 2d. Absolutely, 
 by means of a community reduced to acquests.^ This system, 
 which is more fitted to our economic state, seems to have been 
 little used formerly. Pothier only sees in it a variation of the con- 
 version into money. The conversion of realty into personalty - and 
 the general community produced the opposite effect by classing 
 the immovables which were the personal belongings of the spouses 
 with the movables which belonged to the community; they were 
 clauses which were used when one of the spouses had only mov- 
 ables and the other only immovables. 
 
 § 559. The Same. — (B) The liabilities of the community con- 
 sisted of: 1st. The charges of the marriage (support of the spouses, 
 education of the children), whereas under the marriage portion 
 system, they were incumbent upon the husband alone. 2d. The 
 interest and arrears of personal debts and the disbursements for 
 support, usufructuary repairs of the property of which the com- 
 munity had the enjoyment. 3d. The debts of the spouses with 
 respect to movable property contracted previous to marriage. 4th. 
 The debts of inheritances which had accrued to them during the 
 marriage. 5th. The debts contracted during this time by the hus- 
 band or by the wife with the authority of the husband.^ — Debts 
 previous to the marriage were a charge on the community by virtue 
 of the old rule according to which debts could only be collected 
 
 applying to everything, — a clause which was not a very practical one, even 
 during the last stages of the old law, and which could not have been allowed 
 originally. Cf. "Olim," II, 151, 37; Pothier, no. 325; Lebrun, I, 5, 1, 3, 4. 
 By means of the conversion into money one only obtained community per- 
 sonal belongings, but one could also obtain personal belongings appertaining 
 to the succession: Renusson, "Propres," 6. 
 
 1 An expression rarely made use of. Cf. partnership of acquests, ante. 
 A conversion into money and a separation of the debts of the spouses take 
 place at one and the same time. 
 
 2 See Ferrihre, Guyot, etc. Pothier, 304; Lebrun, 1, 5, 1, 2. 
 
 3 Cf. the German law, which is in great confusion on this subject. As a 
 general thing, however, one can contrast the personal debts with the com- 
 munity debts. Personal debts only affect the inheritance of the spouse 
 who is liable for them; his share in the community cannot be reached until 
 after the marriage has been dissolved. These debts are those contracted 
 previous to the marriage, debts contrary to the interests of the community 
 and debts contracted in the personal interest of one of the spouses. The 
 community does not have to pay this sort of debt; still less is the spouse who 
 is not the debtor liable for them. It is otherwise with the community debts, 
 that is to say wath the expenses of the marriage or debts contracted by both 
 spouses or by one of them in the interests of the community; the creditors 
 can secure payment out of the community possessions, and if these are not 
 sufficient, then up to the amount of one-half of the debt out of the possessions 
 of each of the spouses. At the same tin>e the wife enjoys a privilege; she 
 can escape responsibility for the community debts by means of the renuncia- 
 tion: Stobbe, IV, 279. 
 
 829
 
 § 559] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 out of movables.^ "Who marries the body marries the debts," 
 says Loysel, 110; and this was equally true with regard to the 
 system where there was no community, for the husband then 
 also collected the whole of the movables.^ Debts chargeable on 
 immovable property and charges on possessions outside of the 
 community could not be paid by it. — This repartition of the 
 liabilities was no longer justified after the immovables became 
 liable for debts, that is to say, after the end of the thirteenth 
 century or thereabouts. It persisted, however; the disadvantages 
 which it presented when one of the spouses had more debts than 
 the other were remedied by means of the clause of " separation of 
 debts." ^ — Debts of inheritances accruing to the spouses during 
 the marriage were originally subjected to the same system. Le- 
 brun still maintained that the community ought to bear the 
 debts chargeable on movables because it collected the movable 
 assets, and because the spouse who mherited was held liable to 
 pay the debts chargeable on immovables for the reason that he 
 kept the immovables. As far as inlieritance was concerned, the 
 charge of debts ended by falling upon the heir of the personal be- 
 longings. The rule was the same as far as the community was 
 concerned ; the system of the repartition of the liabilities between 
 the community and the spouses in proportion to the assets which 
 they received, without making any distinction between movables 
 and immovables, also prevailed, thereby conforming to equity 
 and the Roman rules. Thus, when one spouse received an in- 
 heritance including movables and immovables together, if the 
 movables were worth one-third of the entire inheritance, one- 
 third of the debts chargeable to movables or to immovables 
 was charged against the community: "Where the assets go the 
 liabilities go." * 
 
 1 Beaumanoir, 43, 26; Desmares, 181, 247; "Cout. Not.," 15, 70, 83, 139, 
 167; "Gr. Cout.," 2, 32, p. 322; but cf. p. 223; "L. de Dr.," 400; "A. C, Anjou," 
 I, 482, III, 332; IV, 201, ed. B.-B.; "Ass. de Jer.," "C. des B.," 133; "Paris," 
 221; Pothier, no. 259. 
 
 2 The wife's creditors could therefore not sue her for her personal belong- 
 ings, but this was no longer the case when immovables became the creditor's 
 pledge. 
 
 3 "Paris," 222; Argou, III, 7. This clause could be pleaded against the 
 wife's creditors, if there had been an inventory. As to the "free and clear" 
 clause, by means of wliich the relatives of the man about to be married certi- 
 fied that there were no debts and allowed a compensation for the wife should 
 there be any, cf. ante § 557; Argou, III, 10; Pothier, nos. 351, 370. As to the 
 clause which allowed the wife who made a renunciation to take back the share 
 contributed by her, free and clear, cf. Pertile III, 335; Stobbe, IV, 279. 
 
 4 Lebrun, 2, 3, 2; Peronne, 198; cf. "Paris," 334; Pothier, no. 261. 
 
 830
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 559 
 
 The debts of the spouses contracted during the marriage came 
 under the community, like acquests which they made during that 
 time. It was necessary, however, that they should be contracted 
 by the husband or with his authorization, for in his quality of 
 head of the community he alone had the right to bind it.^ He 
 even binds it by means of his offenses, "Tam deliquendo quam 
 contrahendo." ^ Originally, if his possessions were confiscated 
 the community was also confiscated, and the wife lost her share. 
 This was a harsh rule ; and against it a reaction set in, having 
 as its theoretical point of departure the Roman law of the Lower 
 Empire, and as its real foundation the more and more ener- 
 getic affirmation of the rights which the wife had over the com- 
 munity. Dumoulin relates that he had to struggle for more than 
 forty years in order to have the old practice abandoned by the 
 ParHament of Paris.^ — The wife did not bind the community, 
 either by her offenses ^ or by making a contract under the au- 
 
 ^ The husband's debts are thus debts of the community and \nce versa. 
 Cf. Stobbe, IV, 281; Britz, 840: in Gand, the wife, even when she has obtained 
 separate maintenance, is held jointly and severally Uable for the debts con- 
 tracted by the husband. 
 
 2 Loysel, 89; "Ord." of 1250, 4; "Beziers," 1303, 30; Beaumanoir, 30, 99, 
 100. Cf. "Troyes," 134; "Meaux," 26, 208: Pothier, 248 etseq.: the commun- 
 ity is held Mable for fines and civil damages which may arise through the hus- 
 band's WTongful actions, excepting in so far as offenses punishable with a 
 capital penalty are concerned, for, in a case of this sort, the judgment impUes 
 civil death and dissolves the community of absolute right; the husband's 
 debt is thus contracted after the community has ceased to exist. Such is 
 the subtlety by means of which the decline of the husband's powers was 
 justified. It is interesting to compare with, this what Potliier has to say 
 with regard to the wife (no. 501). Civil death, which reduces the rights of 
 the husband by one-half, should, when it affects the wife, mean the confiscation 
 of her share of the community; far from having tliis effect, it prevents the rights 
 of the wife from coming into existence. "Jostice," p. 219: in case the hus- 
 band's possessions are confiscated, the wife does not lose her dower (and "a 
 fortiori" her personal belongings), but after her death the property which 
 is the subject of the dower reverts to the Treasury: "Ass. de J6r.," "Livre 
 au Roi," c. 21; "T. A. C, Bret.," 118, 235; "A. C," 423; "Anjou," ed. B.-B., 
 "E.," 78; I, 97; "Toulouse," 120; "Bord. A. C," 21; Stobbe, IV, 98. 
 
 3 On " Vermandois," 12. Loysel, 846, cites to the same effect an Ordinance, 
 or Privilege granted in 1431 by Henry VI to the Parisians. 
 
 * The wife's oifenses. In the thirteenth century, the husband was still 
 personally responsible for them, which caused the community to be charged 
 with fines and pecuniary damages: ".lostice," p. 131; Beaumanoir 30, 55. 
 In the sixteenth century the husband's responsibility had disappeared, ex- 
 cepting in a few of the Customs where he was protected by means of the order 
 for separate maintenance. The dependency of the wife was no longer suffi- 
 cient for one to be able to say that she had acted under her husband's influence. 
 But as she had no possessions of her own, unless she could be subjected to 
 bodily distraint, the victim of the injury had no remedy against her during 
 the time of the marriage; nor had the victim any remedy against the husband. 
 In case the possessions of the wife were confiscated as the result of a capital 
 penalty, her share of the community went: (a) to the Treasury: "Bourb.," 
 
 831
 
 § 559] SYSTE]\I OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 thority of a coiirt.^ She could only bind it by contracting under the 
 authority of her husband,^ excepting if she were a public trades- 
 woman in her own business,^ or in a few exceptional cases, such as 
 to obtain the release of her husband from prison.^ When she acted 
 with the authority of her husband, one may ask on what theory the 
 community was bound. ^ According to the early point of view, the 
 husband alone had the right to bind the community; the act of 
 the wife which was authorized was looked upon as the act of the 
 husband; the wife was effaced and had only carried out this act 
 in the quality of an agent. The result of this was that during the 
 time the community lasted the wife could not be levied on as 
 to her personal belongings, and that when the community was 
 dissolved she was only held liable with regard to half (assuming 
 that she did not use her right of renouncing — post, § 566 — nor 
 of the advantage of emolument). The husband, on the other hand, 
 could be levied on for the whole, just as though he had con- 
 tracted himself. This point of view did not agree very well with 
 the facts; the woman had spoken when acting, she had personally 
 bound herself and bound those who were related to her; she was 
 not merely the mouthpiece of the husband. In proportion as the 
 idea of her rights over the community came to be better under- 
 stood, the community was looked upon as being held on behalf of 
 the wife, and the husband could only be sued for a half in his 
 quality of a joint owner of the property, when the marriage was 
 dissolved.^ 
 
 266; "Tour.," 255; Beaumanoir, 30, 99; cf. ante, the husband's offenses; (b) 
 to her heirs: "Orl.," 209; (c) to her husband: Dumoulin, on "Montargis," 
 5, 3; Loysel, 847; Pothier, no. 501. 
 
 1 Formerly the authorization of the law was not made use of; if it were 
 neces'^ary, the wife could bind the community ("Jostice," p. 131; "Ass. 
 de J^r.," "C. des B.," 191; Boutaric, I, 9) by acting alone. We have seen 
 how the custom of having her disabihty removed by the coiirts came to be 
 introduced: "Orldans/' 201; "Paris," 224; Loysel, 124. 
 
 2 Argou, III, 13 (it is presumed that she has bound herseK on behalf of 
 her husband); Lebrun, 2, 3, 1, 2; Pothier, 730. 
 
 3 Beaumanoir, 43, 28. The mere fact of carrying on trade with the hus- 
 band's knowledge was equivalent to an authority: "Poitou," 227. Cf. the 
 proverb: "The wife's apron binds the husband": "Et. de St. Louis," I, 47; 
 "Ass. de J4r.," "C. des B.," 132, 191; "Paris," 234; Loysel, 57; Stobbe, I, 282. 
 
 * A trace of the old law. 
 
 ^ As to the personal status of the wife, according to Beaumanoir, cf. "T. A. C, 
 Bret.," 40; "Const, du Chfit.," 39; Desmares, 289; "A. C, Anjou," ed. B.-B. 
 Table, see "Femme mari(5e"; "L. de Dr.," I, 184. 
 
 8 When the wife binds herself together with her husband she is only looked 
 upon as his surety; in Brittany, "T. A. C," 312, 314, she could plead that 
 the remedy be exhausted against the principal debtor before the surety be 
 proceeded against ; the common law of the Customs left her equally liable with 
 the husband to the prosecution of the creditors, but it gave her a remedy 
 
 832
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 560 
 
 § 560. Admixiistration of the Community. — This belongs to 
 the husband, like the management of the personal belongings 
 of the wife, because of his husband's power. "The man is the 
 guardian," says Beaumanoir.^ His power was so extensive that 
 he is qualified as "lord and master of the community," ^ and it 
 is said of the wife, "Non est proprie socia, sed speratur fore." 
 In the thirteenth century, however, there is a distinction to be 
 made between movables and jointly acquired property; the hus- 
 band has an unrestricted right to dispose of the movables, and his 
 powers are rather those of an owner than those of the manager of 
 a partnership; he can only dispose of the jointly acquired property 
 with the concurrence of his wife. Over the wife's movables he 
 has only preserved a right which he already had before the 
 community existed; it follows that the wife is subject to the will 
 of her lord as far as concerns her movables and the deprivation 
 of her inheritance, — "provided that she openly sees her loss " 
 (Beaumanoir).^ As far as jointly acquired property is concerned, 
 the husband cannot dispose of it alone,^ — no more, however, than 
 he could alone dispose of his personal belongings because of the 
 dower which encumbered them. This limitation of his rights is 
 all the more surprising as it had disappeared from the Customs of 
 
 against her husband, basing this upon the idea that the latter had alone bene- 
 fited by her obUgations (unless the contrary were sho-ft-n): Argon, III, 13, 
 etc. We can see how far removed the customary law was from the system 
 of the Velleianum Senate Decree which forbade women to become surety for 
 a third party: "T. A. C, Bret.," 329; "Cout. d'Anjou," ed. B.-B. F., 1167; 
 "E.," 228; I, 261; Ducoudray, "Orig. du Pari.," p. 799. 
 
 1 Beaumanoir, 21, 3; 30, 99, 100; 31, 2; 57, 2; "Jostice," p. 169; "Cout. 
 Not.," 14, 164, 175; Desmares, 70, 152, 161; "Gr. Cout.," II, 31; "Paris," 
 107, 110, 226. 
 
 2 Beaumanoir, 57, 2. 
 
 ' Cf. certain German laws according to which each spouse can dispose of 
 the community possessions (Munster), or else the spouses must both 
 contract in order that the community may be bound (Nuremberg) : Stobbe, 
 IV, 209. 
 
 * Beaumanoir, 21, 2; 30, 99; "Jostice," p. 173; Desmares, 152; "L. d. Dr.," 
 581, 884, etc.; Boutaric, II, 29; "T. A. C, Bret.," 82, 215, 211 (recompense 
 for the wife when the daughters have been given a marriage portion out of 
 the jointly acquired property). 
 
 6 "Jostice," p. 169; Beaumanoir, loc cit.; "L.d.Dr.," 829; "T. A. C.,Bret.," 
 40, 211, 217: the wife has the same share as the husband in the jointly ac- 
 quired property; Jamont, "These," p. 50; Glasson, VII, 367. But cf. "Ass. 
 de J<5r.," "C. des B.," 162; Desmares, 70; "Paris," 225; "Anjou," 289; "Tours," 
 254; Viollet, p. 781; "Catane": the husband cannot alienate the community 
 immovables without the assistance of his wife. Cf. in German law the prac- 
 tice of the "gesammte Hand." But as early as the twelfth century we also 
 find the husband disposing alone, and without the assistance of his wife, of 
 the immovable jointly acquired property: Stobbe, IV, 209. The question is 
 of especially great importance under the system of absolute community. — 
 Cf. "Conf. do Gu«5nois," p. 557. 
 
 833
 
 § 5G0] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 the fourteenth century.^ It was perhaps due to the old rule that 
 inheritances were not liable for debts; the obligations of the hus- 
 band affected movables, but not jointly acquired property, and 
 the wife by renouncing the movables preserved her share of the 
 jointly acquired property. The husband, if he could not take 
 this property away from her indirectly by contracting debts, 
 should have been able, it seems, to alienate it, just as he could ac- 
 quests made by him before the marriage; but the rights of his 
 wife, which came into existence owing to the fact of the property 
 having been acquired by both of them, were opposed to this; there 
 was seen in her a joint owner in the joint tenancy, and the hus- 
 band was bound to act only with her co-operation, so long as the 
 immovables were a species of property the preservation of which 
 was held to be very important. In the fourteenth century, on the 
 other hand, the husband was given the right to dispose of jointly 
 acquired property as well as of movables. Immovables were no 
 longer incapable of being distrained upon;^ thenceforth creditors 
 of the husband could seize the jointly acquired property as well as 
 the movables; in order to free herself from the debts of the com- 
 munity, the wife had to renounce both the movables and the 
 jointly acquired property, — that is to say, she had to renounce 
 the entire community property. As soon as jointly acquired 
 property had to answer for the debts of the husband, the con- 
 currence of the wife in their alienation became rather useless, in- 
 asmuch as the subordination in fact under which she found herself 
 made of her presence a mere formality; it was preferred to give 
 her other safeguards. Some of these consisted in restrictions upon 
 the powers of the husband, and others, which we shall discuss later 
 on, in the power which she had to withdraw herself from the con- 
 jugal partnership. 
 
 The limitations upon the powers of the husband principally 
 affected his gifts and debts. He was allowed to dispose of the com- 
 munity property, even by means of a gift "inter vivos," ^ at his 
 
 1 "Paris," 225; Coquille, on "Niv.," 23, 3; Pothier, no. 3; "Bretagne, A. C," 
 414; "N. C," 444 (c/. 443); "Cout. Not.," 175; Des^nares, 152. 
 
 2 The evolution which gave rise to this new principle has been sometimes 
 more rapid, and sometimes slower, according to locality. Boutillier only 
 mentions distraint upon movables and taking of inheritances, whereas J. 
 d'Ibelin, 185, deals with the sale of the fief for a known and proven debt. 
 The application of this principle, whether under its final form or whether 
 by the indirect means which led up to it, to the matter of the community must 
 also have varied. 
 
 3 "Cout. Not.," 175; Desmares, 152; "L. d. Dr.," 911, 929, 930, 937; "A.C., 
 Anjou," II, 237. — Pothier, no. 3; Ferriere, on "Paris," 225; Bntz, 841.— 
 
 834
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 561 
 
 own pleasure and will, without the consent of his wife, but only 
 to a person who was capable of receiving it and if there was no 
 fraud ("Paris, N. C," 225). Now, there would be fraud if he 
 secured any personal advantage from gifts of the community pos- 
 sessions (for example, by making a disposal for the benefit of those 
 from whom he inherited or his heirs presumptive, or of his children 
 by his first marriage, or of his bastards), or if he gave an undi- 
 vided part of the community, "a fortiori" the entire commu- 
 nity.^ He was never allowed to make a will of more than his 
 share in the community, for, as the will only went into effect at the 
 death of the testator, the husband had at that time only a half 
 of the community property.^ — Though he still bound the com- 
 munity by his offenses, we have seen that confiscation had in the 
 end been restricted to his share. — The theory of recompenses 
 (post, § 567) prevented him from enriching himself at the expense 
 of his wife, and the separate estate (post, § 565) obtained by the 
 latter carried with it more than one restriction upon the powers 
 of the husband; it implied the surrender of them. — In spite of 
 these restrictions, it is nevertheless true that the husband did not 
 cease to be the lord and master of the community; on principle, 
 he kept the right of disposing for a consideration and gratui- 
 tously of the possessions which went to make up the community. 
 He is not a mere administrator of somebody else's fortune. 
 
 § 561. Part played by the Wife.^ — From the fact that the wife 
 did not take any part in the management of the community pos- 
 sessions, it would be incorrect to conclude that she was a stranger 
 to the community during the life of her husband.* Dumoulin's 
 
 Prohibition of gifts "inter vivos": "Anjou," 289; "Maine," 304. — Prussian 
 "Landrecht," 2, 1, 381; Stobbe, IV, 208 ("reclamatio uxoria" within a ahort 
 delay). — Also, Coucy, I, 1, etc. 
 
 1 As to gifts with a reservation of the usufruct see Pothier, no. 480. 
 
 2 Desmares, 70; "Paris," 290; Loysel, 121. — But during the period of 
 transition when the community was being formed, it no doubt happened that 
 the husband was allowed to dispose of the community possessions by last 
 will and testament. This is what is still done under the "Cout. de Lorraine," 
 II, 7. — Cf. as to the absolute community, Stobbe, IV, 214. 
 
 ' Cf. as to the law of the present time. Basset, "Thc^se," 1896. As to the 
 old German law see R. Bartsch, " Rechtsstellung der Frau," 1903. Switzer- 
 land: Huber, op. cit. 
 
 * As to the status of the married woman in general see Chap. I, § 144. 
 The wife living in a state of community has two sorts of rights: rights over 
 her own possessions and rights over the community. — (a) \\Tien the old 
 ideas as to the disability of women were abandoned and unmarried women 
 and widows were allowed to act in the same way as men, — and we may observe 
 that this did not take place without difficulty, without some hesitation and 
 without inconsistencies, — thus in Brittany ("T. A. C," 337) the wife cannot 
 bind herself on behalf of third persons, whereas she can do so on behalf of 
 
 835
 
 § 561] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 celebrated formula, "Non est proprie socia, sed speratur fore," ^ 
 is exaggerated; and this applies also to Pothier's paraphrase, "The 
 right which the woman has is looked upon, as long as the commu- 
 nity lasts, as only an imperfect right, which can be reduced to the 
 right to some day share the possessions which will be found to 
 compose the community at the time of its dissolution." The wife 
 is systematically kept away from the affairs of the community; 
 she is often invisible, but always present because of her future 
 rights and because of the guaranties with which they are sur- 
 rounded.^ One can say with regard to her, as with regard to a 
 person in a partnership which has an appointed manager, that 
 her right is "potius in habitu quam in actu." Furthermore, there 
 are occasions when this right is made manifest. This is not an 
 allusion to the cases in which she manages the affairs of the 
 household,^ or, again, to the case where she carries on business 
 with the knowledge of her husband; her status of a partner has 
 nothing to do with her part as mistress of the house, as pictures 
 show her, carrying her keys and her purse at her belt; the proof 
 is that she plays this same part under the system which has no 
 community, and that she binds her husband under similar condi- 
 tions; her position in this respect is that of an individual "alieni 
 juris" in the Roman law, a slave or the son of a family placed in 
 control of a sum of money or charged with certain transactions; 
 
 her husband, her father and mother and her children; elsewhere she cannot 
 make her will without the authorization of her husband; marriage does not 
 emancipate her everywhere, — in Burgundy acts done without authority are 
 looked upon as being against good custom, etc., — at that time one might have 
 recognized the married woman as having the freedom to dispose of her personal 
 belongings, to bind herself with regard to them, upon condition of respecting 
 the enjoyment of the community; the tendency in this direction, after having 
 enjoyed a certain amount of favor, came to nothing. The married woman 
 who was held to be under a disability had to be provided with the authority 
 of her husband or with the authority of the law. — (6) The same disabihty, 
 and still more so with regard to the community rights, for the management of 
 community affairs is left to the husband. One may well ask, however, if this 
 disabihty was absolute. 
 
 1 Dumoulin, on 109 "Paris," no. 3; cf. on 37, 1, 1; Pothier, no. 497; Lauriere, 
 on "Paris," 225. 
 
 2 In the Customs which admit of the dower of children, the consent of the 
 wife to the alienation of the husband's possessions which are subject to dower 
 does not deprive the children of their rights; so that the participation of the 
 wife in this form of alienation becomes of little use and is no longer very often 
 found: Pothier, "Douaire," nos. 85, 343. Cf. in the existing law, the wife's 
 mortgage over the jointly acquired property and over the husband's per- 
 sonal belongings; the wife ordinarily takes part in the alienation of these 
 possessions, because third party grantees require that she should give up 
 her mortgage. 
 
 3 Dumoulin, on 114 "Paris," no. 3, calls her the agent of the husband; 
 Pothier, no. 574; Chaisemartin, p. 324. 
 
 836
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 562 
 
 the same observation applies to the wife who is a pubhc trades- 
 woman.^ Where she appears as a partner is when she bequeaths 
 her share of the community and concurs with her husband in 
 gifts "inter vivos" of things which belong to the community, and 
 also perhaps when she binds herself with the authorization of 
 her husband,^ and in this way binds the community. Upon this 
 last point one can only speak doubtfully, because, as we have 
 seen, our old authors did not agree upon the part played by the 
 wife. In the time of Beaumanoir the wife was also invested, as 
 matter of law, without the authority of court, with the powers 
 of the husband whenever the husband was not present (absence, 
 madness, imprisonment); but here again we must observe that 
 she was in the same position under the system where there was no 
 community; there were seen here cases of necessity which made 
 the wife the provisional head of the household. At a later 
 date, the authority of court was an indispensable thing,^ but 
 she was none the less in a restricted way at the head of the 
 community.^ 
 
 § 562. The Wife's Personal Belongings. — The husband has 
 also the administration of the wife's personal belongings; ^ he 
 cannot be deprived of this right, which belongs to him in two 
 ways: (a) first, by reason of his husband's power, which also 
 means that he possesses it under the exclusive system of com- 
 munity; (6) and then as head of the community, because it is 
 natural that, having the enjoyment of the personal belongings, 
 he should also be entitled to the administration of them. The 
 
 ^ Desmares, 77, allows the wife to act at law with regard to her wages 
 without the authority of her husband. 
 
 2 Old deeds containing formal authorizations: Jamont, "These," p. 19 
 (in 1151). 
 
 3 This is what led to the saying that: "formerly a joint owner of the com- 
 mon mass from the time of the marriage, in spite of her role of a subordinate, 
 she no longer has, in the sixteenth century, anything but a right in the com- 
 munity which is incomplete." From a partner kei)t in the background, she 
 must have descended to the rank of a stranger. In this one will recognize 
 the fatal influence of the Roman law. In our opinion this influence has been 
 greatly exaggerated; the Roman law is often notliing more than the foreign 
 flag which covers a species of merchandise which is quite a national one, the 
 fashionable mask with which a theory must clothe itself in order to penetrate 
 into the juridical world. 
 
 * The absolute prohibition of these contracts between spouses is to be 
 accounted for by the fear of indirect advantages, and by the idea of the de- 
 pendency of the woman: "Gr. Cout.," p. 321; Dumoulin, on "Paris," 156; 
 "Paris," no. 5; Pothier, "Don. entre mari," no. 78; "Niv.," 23, 27; "Bourb.," 
 226; "Norm.," 510; "Bourg.," 26 (the consent of the heirs presumptive is 
 valid); Lebrun, 1, 5, 3, 4. Cf. separate maintenance: Hauriou, "These," 
 1898. 
 
 6 Beaumanoir, 57, 2; 30, 99; 21, 2; "Gr. Cout.," 2, 32, p. 322. 
 
 837
 
 § 562] SYSTEM OF PROPERTY BETWEEN SPOUSES [Cuap. V 
 
 result of this is that the wife could not, for example, keep for 
 herself the management of a part of her inheritance.^ Separate 
 estate formed by contract makes its appearance only at the 
 end of the Old Regime; and then it is still extremely rare. The 
 powers of the husband thus extend over all the wife's posses- 
 sions,^ and, as these possessions were all brought to the husband 
 in order that he should provide for the expenses of the household, 
 one can say that they are all in the nature of marriage portion. 
 The husband has the right to lease them out for the customary 
 period (generally, nine years) ^ and upon condition that he does 
 not act in such a way as to defraud his wife of her rights.^ He 
 can bring possessory actions, but not actions for title to prop- 
 erty,^ nor can he alienate or encumber the immovables of his 
 wife in any manner; ^ as Loysel says, 119, "As to that which 
 concerns ownership, it is necessary that both should speak , ac- 
 cording to the Custom of France." This rule, in use for many 
 years, was applied even in countries where the community was 
 not recognized. If it had been infringed, the wife or her heirs 
 had the right to reclaim the personal belongings which had been 
 
 1 Nor could the husband grant its enjoyment, nor could his creditors 
 distrain upon anything other than the emoluments as they came into exist- 
 ence: Coquille, on "Niv.," 107. 
 
 2 As the nobleman's possessions of the wife went to the husband in his 
 capacity of guardian, there arose the opportunity to pay for the buying back, 
 "Et. de St. Louis," I, 66, cf. "mortis causa," transfer: the husband paid 
 the fealty and homage, could be known as marquis, count, or baron, if the 
 seigniory was a marquisate, an earldom, etc.; he exercised the feudal rights 
 (summons, feudal distraint, profits, etc.), the rights of justice (appointment 
 and discharge of officers, etc.), the rights of patronage (presentation to ec- 
 clesiastical benefices, holy water and incense, funeral decorations, etc.): 
 Pothier, "Puiss. marit.," 86; "Gr. Gout.," 2, 27; "Ohm," II, 56, 8; Loysel, 
 118, 178; "L. d. Dr.," 444; "T. A. G., Bret.," 233. Cf. the question of knowing 
 whether widows ought to pay fealty and homage for their dower: "Gonst. 
 Chat.," 79 (ed. Mortet); "Gout. d'Anjou," ed. B.-B., IV, 182. 
 
 3 Contra, "Blois," 179 (duration of the marriage); Pothier, "Puiss. marit.," 
 91, 93. 
 
 * "Paris," 227. A lease made in advance by way of anticipation would 
 be fraudulent: Lamoignon, "Arretes," XXXII, 59, 60 (right of renewing 
 leases nine or eighteen months before their expiration). Cf. the Givil Gode, 
 1430. 
 
 5 "Ass. de J6r.," "G. des B.," 222; Beaumanoir, 21, 2; "Gout. Not.," 
 161, 176; Desmares, 20; "Olim," IV, 336; Boutaric, II, 23; "L. d. Dr.," 
 75, 581; J. Faure, "Inst., de act.," "fuerat," no. 2. — Contra, "Melun," 
 214; "Poitou,'' 228 {contra to the "L. d. Dr.,"). — "Gonst. Ghat.," 25, 80: 
 in case the wife is absent the husband takes the possessions which come 
 to her by way of succession and can plead in her place and stead. 
 
 6 Beaumanoir, 21, 2; 57, 4; "Jostice," p. 169, 170, 173; "Gr. Gout.," 2, 32; 
 "T. A. G., Bret.," 10; "L. d. Dr.," 308, 484, 581; "A. G., Anjou," I, 575; III, 
 460; Stobbe, IV, 277; Briiz, 841. In certain Gustoms of Lorraine, an aUenation 
 of the personal belongings is only valid if carried out with the consent of 
 the relatives of the wife: Marsal, 40. 
 
 838
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 5G4 
 
 alienated from the third party who had acquired it, once the 
 marriage had been dissolved/ — that is to say, once the enjoy- 
 ment of the community had come to an end. However, if the 
 wife (post, § 566) had accepted the community, she was held in 
 her quality of a member of the community for the obligation 
 in warranty which was incumbent upon the husband who made 
 the sale, and, as a consequence, upon the community. So that 
 she was compelled to restore to the third party who had been 
 ousted half of the price and damages.^ 
 
 § 563. The Dissolution of the Community results from the 
 death (natural or civil) of one of the spouses, or from the estab- 
 lishment of separate estate.^ 
 
 § 564. Continuation after Death. ^ — After the death of one 
 of the spouses the community is dissolved, as a general rule, 
 but can be continued according to certain Customs if no parti- 
 tion takes place between the survivor and the children.^ — (A) 
 In the thirteenth century the continuation of the community, 
 which never takes place excepting in the case of commoners,^ 
 
 ' Up to this point the widow was respected: " Jostice," p. 169, 170; Boutaric, 
 p. 822; Ferriere, on "Paris," 226, "gl." 1, no. 4; Lebrun, 2, 2, 4, 18. 
 
 2 Such is the general opinion. Pothier has dissented from this: "Vente," 
 no. 179 (1762) : reclaiming of one-half, for as to half the plea of warranty can 
 be urged against her; "Communaute," no. 253 (1769) : reclaiming of the whole, 
 for the husband has exceeded his powers, but she has to pay back half the 
 purchase price, which she has unjustly received, exclusive of all damages. 
 Cf. "Puiss. du mari," no. 84; Coquille, "Quest.," 105; Ferriere, on "Paris," 
 226, etc. 
 
 ' Absence : when he would have reached the age of one hundred the spouse 
 who is absent is presumed to be dead; the community is therefore dissolved 
 when this time comes; up to that time there is occasion for the putting in 
 possession of the heir presumptive of the absent person (after delays wliich 
 vary according to the Customs). The community is then considered to be 
 provisionally dissolved, but if the one who is absent reappears, it was con- 
 sidered as having been in continual existence; in fact the heirs of the absentee 
 had the power to leave the present spouse in possession of the community 
 property. Cf. the Civil Code, 124; see Ferriere, Guyot, etc.; Pothier, VII, 
 274; VIII, 106; see Bretonnier, post, "Civil Status." 
 
 * Loysel, 386 et seq.; Lauriere, on "Paris," 240; "Gloss.," see "Comm."; 
 Renusson, p. 3; Pothier, 769; Ferriere, on "Paris," 240; Stobbe, 222, 241. 
 
 6 Also in Germany. Cf. Stobbe, loc. cit. and p. 232 ("communio bonorum 
 prorogata," " fortgesetzte Giitergemcinschaft"). Cf. the similar institutions 
 of the "Verfangenschaft," the " Alleinerbrecht des iiberlebenden Ehcgattcn." 
 In certain localities the child who has received his share of the community 
 property can no longer have any claim over the succession of the surviving 
 spouse: Ficker, no. 721, etc. 
 
 ® Beaumnnoir, 21, 9. The surviving sj)ouse, if a noble, keeps all the pos- 
 sessions of the children because of the right of guardiarLship; this makes the 
 forming of an association by them impossible: "A. C, Anjou," ed. B.-B., 
 II, 228. We have already seen that silent partnerships among nobles were 
 rare, the "Gr. Cout.," 2, 40, makes use of general expressions: "Et. de St. 
 Louis," I, 139, 140, 143. Decision of the "Pari, aiix Bourg.," in 1293, in 
 
 839
 
 § 564] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 seems to have been merely a consequence of the community life; ^ 
 the facility with which secret partnerships were formed seems to 
 account for this.- But, if these were isolated cases, the effect 
 of this fact would only have been the formation of a new com- 
 munity at the end of the year and a day; and Lauriere has, in 
 fact, maintained that there could be no question of anything else 
 excepting a new community,^ even when there was no such inter- 
 vening period.'* This proposition seems to be condemned by the 
 texts; it is the same community which is continued by operation 
 of the law ^ between the children who have come of age and those 
 who are minors.^ With what object? They used to say, to leave 
 to the surviving spouse in the interest of the family the inheritance 
 which was established when the marriage took place. This is 
 what sometimes took place under the exclusive system of com- 
 
 Leroux de Lincy, p. 120: there exists no association between the survivor and 
 liis cliildren, for one is head of the house and the others acquire on his behalf; 
 no association comes into existence excepting one between children after 
 the death of the sm-vivor. 
 
 ^ At least in the sixteenth century the condition of cohabitation is not 
 requisite, and it does not ordinarily exist between the surviving spouse and 
 the collateral relations of the predeceased spouse: "Orleans," 216; "Berry," 
 8, 19; " Bom-bon," 270. It is only alluded to when there has been no inventory 
 and partition. 
 
 2 The " N. C. d'Orleans," 213, abolishes the use of silent partnerships, which 
 were sanctioned by art. 180 of the "A. C," and yet at the same time it up- 
 holds the carrying on of the community in its Art. 216, between the surviving 
 spouse who is not a noble and lais heirs whether minors or not, and whether 
 they be descendants or collaterals. 
 
 ^ Lam-iere reasons as follows: (a) the survivor who is a mere administrator 
 has not a right to make a disposal of the property such as the husband has, 
 he being the head of the community; (b) the members of the community 
 are not the same; everything acquired by either of the spouses goes to make 
 up a part of the conjugal community; what is acquired by the children does 
 not go into the continued community. — This last remark was perhaps not 
 correct with regard to the old law. Cf. "Gr. Gout.," p. 371. The first remark 
 is correct, but it does not prove anytliing against the maintaining of the com- 
 munity; in this there is something which is analogous to the German "Ver- 
 fangenschaft." 
 
 ^ Beaumanoir, 21, 8, does not mention the condition of a year and a day, 
 but he seems to demand it further on, 21, 25. It is true that one is justified 
 in asking whether he does not admit that a new community is formed, 21, 9; 
 "Gr. Gout.," p. 26.5 (the survivor remains in possession a year and a day 
 without making any inventory; the heirs can claim the community). 
 
 <* "Bourb.," 270; "Orl. A. G.," 182; "N. G.," 216; "Mame," 216; "Gd. 
 Perche," 106, etc. 
 
 ^ Does the community continue to exist even with the heirs who are not 
 the descendants of the predeceased spouse? Gertain of the Gustoms declare 
 that this is the case, but we have our doubts as to whether they really rep- 
 resent the old law: "Montargis," 9, 3; "Berrv," 8, 19; "Bourb.," 270; "Bass- 
 igny," 55; "Orl.," 216; "Chateauneuf et Thim.," 70; "Metz" town, 6, 9. 
 To'the contrary Viollet, p. 787. — Cf. "Gr. Gout.," 2, 40, pp. 365, 371; "A. G., 
 Anjou," ed. B.-B., II, 230; IV, 263; "Poitou," 254; "Gambrai," 7, 11; "Ass. 
 de J(5r.," "C. des B.," c. 187. 
 
 840
 
 Topic 4] SYSTEMS OF COimUNITY [§ 564 
 
 munity, without there being any question, consequently, of com- 
 munity properly so called. This is also what took place under the 
 community system to which the old institution adapted itself 
 as well as it could. If the survivor of the spouses happened to 
 be the father, it was natural that his children who were under 
 his authority should not affect his position, — at least, dur- 
 ing their minority; if it were the mother, the same solution, 
 which made her the head of the community, was less easy to 
 justify. Nevertheless, it was often to the interest of all not 
 to parcel the conjugal inheritance by exercising the right of 
 dower. 
 
 The continued community included, besides the possessions which 
 had been part of the community during the marriage, acquests 
 which had been made after the dissolution of the marriage by the 
 surviving spouse. To compensate for this, the acquests made by 
 the children were scarcely ever included in this community (be- 
 cause they did not arise from the income of the community, which 
 was all in the hands of the surviving spouse, and they could not 
 be the result thenceforth of anything but personal gifts). However 
 this may have been, the surviving spouse had the same powers 
 as the husband had during the marriage. Thus the widow as 
 well as the widower was in charge of the community affairs; 
 the co-operation of the children was required for acts of disposal 
 affecting the personal belongings which would come back to them, 
 just as during the marriage the co-operation of the wife was neces- 
 sary for acts analogous to these. All the children together only 
 counted as one person, which does not agree very well with the 
 manner in which secret partnerships are organized. If one of the 
 children died without issue his share went to the others by right 
 of increase, without there being any possible question as to the 
 inheritance or as to any right for the benefit of the surviving 
 spouse. 
 
 The continued community came to an end at the death of the 
 spouse or a second marriage; and, according to certain Customs, 
 upon a partition which was carried out at the demand of the chil- 
 dren when they had come of age; or, in certain localities, by the 
 surviving spouse. In a case where the survivor remarried, the new 
 community established between him and the new spouse was 
 grafted upon the old community in such a way as to form a com- 
 munity with three heads, — the new spouse and the children of 
 the second marriage only counting as one person. This is what 
 
 841
 
 § 5G4] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 Avas called the "continuation of a composite community," as con- 
 trasted with the continuation of the simple community.^ 
 
 (B) In the sixteenth century secret communities disappeared; 
 the continuation of the community should have disappeared with 
 them, all the more so as the old institution from which it was de- 
 rived had for a long time ceased to exist. The Custom of Paris, 
 however, preserved it under the head of "a penalty against the 
 surviving spouse," whether a member of the nobility or a com- 
 moner, who had neglected to make an inventory, and only for the 
 benefit of minor children. Through his own fault, the surviving 
 spouse ran a risk of depriving the children of the community share 
 of the predeceased spouse. The children were authorized to 
 claim one-half of the movables and acquests which were found in 
 his possession at the time when they acted. In this way he could 
 not enrich himself to their detriment, because he owed them a 
 part of the advantages which accrued to himself.^ But the rem- 
 edy was worse than the evil. It resulted in the most extreme 
 complications in the regulating of the respective interests of the 
 parties, especially in the case of the community with three heads, 
 
 § 565. The Separate Estate (Judicial) is one of the most 
 powerful guaranties which were created for the benefit of the 
 wife against the bad administration of the husband; in fact, it 
 brings to bear upon the power of the husband a more serious 
 check than renunciation of community or benefit of emolument. 
 It was not recognized at first, even as a consequence of domestic 
 separation (post, §§ 566, 567). According to Beaumanoir, 57, 2 
 and 4, the wife only had a right in a case of divorce to sufficient 
 support for her maintenance, assuming that the separation had 
 been pronounced in her favor; ^ if it were pronounced against her, 
 
 1 Beaumanoir, 21, 8 (community with tliree or four members, according as 
 to whether there has been a second or a third marriage); "Olim," IV, 1176; 
 "Gr. Gout.," p. 371. — C/. Sicily, Fertile, III, 359; "Messina," 7 (the share 
 of the spouse who has married twice, at death is divided into halves among the 
 children of the first and second marriages). — Stobbe, IV, 285. 
 . 2 "Paris, A. C," 118; "N. G.," 240; Pothier, no. 769, etc.; Givil Gode of 
 Lower Canada, 1323. It depended upon the choice of the cliildren as to 
 whether the community should be carried on or not; if they decided in favor 
 of its dissolution at the death, it was difficult for them to prove of what the 
 community had consisted: "Arr.," of Lamoignon, 29, 114 et seq. 
 
 * Beaumanoir, 57, 4: the wife is given by law "some of the community 
 possessions for her support; but not when there is no division either by halves or 
 by quarters," 5: she loses what she has received if she leads an evil life; Fertile, 
 III, 356. Long before this the "Ass. de Jer.," "G. des B.," 171, 172, took 
 precautions for the preservation of dower, when the husband impoverished 
 himself; but there is no question of a partition of the community: Viollet, 
 p. 790; "T. A. C., Bret.," 82, 215. At the same time the "Olim," III, 152 
 
 842
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 565 
 
 it carried with it the loss of dower and of her share of the com- 
 munity.^ In Boutillier's "Somme Rural," if the husband loses 
 his fortune, the wife asks for a separation of bed and board, or a 
 portion of his possessions." 
 
 The principal form of judicial separate estate was borrowed 
 from the Roman law towards the sixteenth century.^ It was 
 sanctioned by Art. 224 of the Reformed Custom of Paris. It 
 was granted to the wife^ in a, rather discretionary manner, starting 
 from the Roman idea that the marriage portion was endangered 
 by the disorder of the husband's affairs, "Vergit ad inopiam." 
 The wife who was given a separation took back her personal be- 
 longings; but it was doubted whether she should have her share of 
 the community. The very fact that the separation had taken 
 place led to the assumption that the community was a bad one.^ 
 However, practice granted her this privilege, for the wife had a 
 chance to get back the remains of her fortune in movables in 
 what was left of the common assets. — Separate estate was 
 regulated by the courts in such a way as to safeguard all the 
 interests of the wife without doing any injury to third persons.^ 
 It could only result from a judgment; if it were done in a friendly 
 way it would have allowed of too many pretenses and too much 
 deceit. This judgment itself had to be surrounded with pub- 
 licity (for it retroacted to the day when the separation was asked 
 
 (in 1304), gave the wife divorced by the Church her "bona immobilia et 
 paraphernalia." C/. Dig. X, 4, 20; 1, 4, 10. 
 
 1 "Gr. Gout.," 2, 32, p. 322; "Jostice," pp. 217, 219 (one profits by the 
 fooUshness of the other); Pothier, no. 507. 
 
 2 Boutaric, II, 8; "L. d. Dr.," 223; "Ohm," loc. cit.; "Gr. Gout./' 2, 32. 
 
 3 Dig., 24, 3, 24; "Nov.," 97, 6; Loysel, 126, 395; "Orleans," 198; "A. G., 
 Bret.," 408, etc.; Argou, III, 20. _ Viollet, p. 790, and Glasson, VII, 370, cite 
 a document of the year 1396 deahng with a separate estate at law. Desmares, 
 129, does not provide for a case of this sort; Stobbe, IV, 215. 
 
 * Some of the Gustoms allow the husband to obtain separate maintenance 
 against the wife, because of the offenses committed by her and the responsi- 
 bility which he incurs ("Maine," 145; "Anjou," 160). To the same effect 
 Lebrun, 3, 1, 11, who cites an Order of 1602 of the Parliament of Paris pro- 
 nouncing a separate maintenance for a husband whose wife was involved in 
 114 actions. This opinion did not prevail. Separate maintenance was made 
 a privilege of the wife's, under the influence of Roman tradition and upon 
 the basis that it was a remedy for abuses of the; husband's power, a means of 
 preventing the husband from squandering the marriage portion: Pothier, 
 no. 513. German law is contra to this. 
 
 * Lauriere maintains that acceptance of the community is in direct opposi- 
 tion to separate maintenance. To the contrary Lebrun, etc. 
 
 * Regulating Order of 1555 (Normandy). Claims made against the States 
 General of 1614 {Picot, "Hist, des Et. gdn.," IV, 69); Onhnance of 1629, 
 143, 193; Edict of Sept., 1703; "Arr." of Lamoignon, 29, 71 et seq.; Pothier, 
 no. 518. Local regulations, for example at Orleans. As to the wives of 
 traders, cf. Ordinance of 1673, Tit. 8; Viollet, p. 793. 
 
 843
 
 § 565] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 for, SO as to avoid the complete loss of the husband's fortune) and 
 it had to be carried out without fraud. The effect of the separation 
 was that the position of the wife was found to be greatly changed. 
 Once more in control of her fortune, she had, according to certain 
 Customs, its free disposal, just as though she had not been mar- 
 ried.^ The common Customary law, without going as far as this, 
 at least allowed her the enjoyment and the administration of her 
 possessions, but charged with paying to her husband a portion of 
 her income to cover the expenses of the household.^ The re-estab- 
 lishment of the community was possible if both spouses gave their 
 consent to it; but it had to be established by means of a notarial 
 deed, excepting in the case of a separation of bed and board, in 
 which case it resulted from the re-establishment of the community 
 life.3 
 
 § 5GG. Right of the Wife to choose between Acceptance and 
 Renunciation. — A partner cannot choose between acceptance 
 and repudiation of the partnership when the latter is dissolved ; he 
 takes his share in the benefits and losses. It is otherwise with 
 heirs called to a succession; they have the choice between two 
 courses, — either to accept or to renounce. The wife living in a 
 community is treated rather as an heir than as a partner; she has 
 the power to renounce her share of the community in order to 
 escape the consequences of the husband's bad administration. By 
 this means, after this choice has taken place, she makes herself a 
 stranger to the partnership when the liabilities are greater than 
 the assets. They w^ent even further than this; she was authorized 
 to make an agreement to the effect that when she made a renun- 
 ciation she should be able to withdraw what she had contributed; 
 this is the " clause of the retaking of the share contributed free and 
 
 1 "Bourbon," 170, 232; "Montargis," 8, 6; "Dunois," 58; "Sedan," 97; 
 Viollet, p. 790. When separate maintenance is decreed, the wife may be 
 given a general authority to alienate her possessions, according to certain of 
 the Customs: "Berry," 1, 21; "Handre"; see Guyot; Pasqider, "Inst.," 
 p. 370. There are some who conclude from the "Gr. Cout.," 2, 40, p. 371, 
 that the spouses, by making a division or a protest within a year and a day, 
 were thereupon granted separate maintenance; we believe that a division 
 or a protest of such a nature as to do away with the community could only 
 be carried out by the relatives, which the "Gr. Cout." also mentions. 
 
 2 Loysel, 126. There were two views as to the status of the wife who was 
 separated from her husband: there are some who would allow her to dispose 
 of her movables without restriction, at least for a consideration, and also to 
 bind herself with regard to her immovables; others not wishing to allow her 
 to dispose of her movables excepting to supply her needs and to allow her 
 only to contract slight obUgations not exceeding in amount the value of the 
 movables. 
 
 3 Retroactive effect: "Orleans," 199; Pothier, no. 524. 
 
 844
 
 Topic 4] SYSTEMS OF COMMUNITY [§ oGG 
 
 clear." ^ Leaving aside a clause as exorbitant as this, let us note 
 the fact that the right to renounce was justified by saying with 
 Dumoulin: "Marito non licet onerare propria uxoris," If the 
 wife had not been able to renounce the community she would 
 have been liable to pay the debts of the husband which were at 
 the same time debts of the community. Personal belongings 
 would have been seized and the husband would have indirectly 
 succeeded in depriving her of them. The renunciation of com- 
 munity was regulated in the same way as rer^unciation of succes- 
 sion. It had to take place at law or by notarial deed. The period 
 granted within which to make it and which varied according to 
 the Customs was, according to Loysel, forty days from the time 
 of the inventory; and the inventory itself had to be made within 
 forty days of the death : " The term of forty days and forty nights 
 was the one generally in use among the French." The Ordinance 
 of 1667, T. VII, Art. 5, gave the wife three months and forty days 
 within which to make an inventory and come to her decision. At 
 the end of this time she lost her plea for delay, which up to that 
 time she had a right to set up in opposition to the creditors of the 
 community; but not her right to repudiate. 
 
 During the fourteenth century the renouncing is presented 
 under the form of a symbolical act consisting in the throwing of 
 the belt, the purse and the keys of the widow upon the grave of 
 the deceased, as soon as the body has been put into the grave; 
 ha\ang done this, the widow had to take care not to return to the 
 "house where movables are," but to go away and "live some- 
 where else." She should only take with her her regular dress. 
 Under these conditions she was "clear of the debts forever." ^ 
 This ceremony, performed as it was without any delay and 
 without any time having been taken for reflection, bears witness 
 
 1 CJ. Desmares, 129. Contrary to Lebrun's opinion the wife should then 
 pay her debts contracted previous to the marriage. There was a tendency 
 to make of this a typical clause: Louet, D., 39, 9; Argou, III, 6; "Arr." of 
 Lamoignon, 23, 37. 
 
 2 "Gr. Cout.," p. 375: Lecoq, "Q.," 131; "A. C, Bourges," 3; Boutanc, 
 II, 21; "Bourg. A. C," 38, 39; "N. C," 4, 20 (Chassaneus, p. 749); D'Achery 
 "Spicil.," Ill, 721; Loysel, 132 (historical examples); Pasquier, "Rech., 
 IV, 8; Ragueau, see "Clefs, Ceintures." In the sixteenth century this usage 
 was still to be found in certain of the Customs: "Vichy," "Meaux," "Lor- 
 raine," 2, 3, etc. Germany: "Schlusselrecht" or "Mantelrecht": Stobbe, 
 § 221. — No doubt the widow could also make a renunciation at law in cases 
 where there was some obstacle in the way of the carrj^ing out of the customary 
 ceremony at the grave; thus a "Fragm. d'un R(5pert. de jurispr. Parisienne 
 au XV® s.," shows her to us placing her girdle, her purse and her keys upon 
 the provost's desk. It was an easy transition from this to a mere declara- 
 tion: Britz, 840. 
 
 845
 
 § 566] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 to the rudimentary condition of this institution. What did the 
 renunciation to the community consist of at this time? Did it 
 exist at all ? What is its origin ? Upon this embarrassing question ^ 
 let us observe first of all that the reason which was invoked in the 
 sixteenth century in order to justify the renunciation did not exist 
 at the beginning of the Customary period; in fact, the personal 
 belongings could not be distrained upon. The husband might 
 get himself into debt, but he could not by this means succeed 
 in indirectly alienating the personal belongings of his wife, or in 
 a general way in alienating the immovables which she possessed. 
 If she made no renunciation, at the most the wife would have 
 been liable to be sued with respect to her future movables, and 
 especially the income of her personal belongings. This is an evil, 
 undoubtedly; at the same time, it is a lesser evil than if she had 
 been dispossessed of her lands. With creditors who were a little 
 tolerant, and whose interests often compelled them to be patient, 
 we can conceive of a system of community without renunciation. 
 The question is whether, in fact, it existed. Our old authors 
 thought so. They believed that the right of renunciation was 
 unknown originally, but that it was introduced for the benefit of 
 the widows of the nobility, at the time of the crusaders, who 
 had sunk their fortunes and those of their wives in order to go to 
 the Holy Land to fight. This privilege would then have belonged 
 to the wives of the crusaders, and later to the wives of the nobles, 
 and finally, by a last step, to the wives of the commoners. The 
 first trace of this explanation is to be found in a passage of the 
 "Grand Coutumier de France," that is to say, in a work written a 
 long time after the crusades. Absolutely no contemporary testi- 
 mony confirms it.^ No one accepts it to-day. There is, moreover, 
 a point to which sufficient attention had not been given; the texts 
 previous to the fifteenth and sixteenth centuries are not concerned 
 with renunciations to the community looked upon as an indivisible 
 whole; they only speak of renunciations of movables; ^ in abandon- 
 
 1 The authors are very much divided: Loysel, 112, 113; Ginoulhiac, 312; 
 Laboulaye, 286; Tardif, op. ciL; Guilhiermoz, "B. Ch.," 1883, 489 (careful 
 analysis of the texts); Glasson, VII, 371; Viollet, 785; Stobbe, § 221, 222. 
 
 2 "Gr. Gout.," p. 375. Cf. note by Charondas, h. 1.; Bidrey, "Priv. 
 des croises," "These," 1900. — Cf. Maillart, "Gout. d'Artois," p. 815; Loysel, 
 112. 
 
 ' Sometimes it is a question of the renunciation of the portion of the 
 movables which ought to revert to the wife, and sometimes of the renunciation 
 of all the movables (reference-legacy of the noble spouse) : "Gr. Gout.," p. 375; 
 "Goust. de fief," loc. cit.; J. Lecoq, 131; Boutaric, II, 11; "A. G., Champ.," 
 12; "Paris, A. G.," 115, 116; "N. C.," 237 el seq.; "Goust. de Verm.," 307- 
 
 846
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 566 
 
 ing her share of the movables the wife freed herself from the debts; 
 this did not prevent her from having a half of the property acquired 
 jointly.^ On the other hand, the renunciation of movables is only 
 allowed to the wife of a noble.- Upon both these points the law 
 changed. The Old Custom of Paris, 115, did not yet give the 
 right of renunciation to the widow of a commoner.^ It is only in 
 the Reformed Custom, 237, that it was sanctioned, in conformity 
 with the doctrine of Dumoulin. We do not know exactly at what 
 period the renunciation, instead of being limited to movables, 
 affected the whole community. Certain manuscripts of the " Grand 
 Coutumier" mention the renunciation of movables and property 
 acquired jointly. There is reason to believe that it was towards 
 the end of the fourteenth century that this change took place.'* 
 
 "A. C, Picardie," p. 110. The renunciation even makes its appearance 
 under the system where there is no community, when the survivor takes 
 all the movables with the power to dispose freely of them, whereas the im- 
 movables are conferred upon him, but with the reservation of the rights 
 of the children. We have already pointed out this remarkable tendency 
 towards the maintaining of the imity of the inheritance at the death of one 
 of the spouses. 
 
 1 "OUm," II, 240 (in 1284), and ^'A. C, Champ.," 12: does the word in- 
 heritance include the share of the jointly acquired property? Cf. "Vitrv," 
 92; "Sedan," 88; Brittany, "T. A. C, Bret.," 315; Ordinance of John V, 1420, 
 Art. 24: the wife who renounces shall not have anv right to the acquests; 
 D. Morice, II, 1058; "Paris, A. C," 115; "Coust. de Verm.," 307. 
 
 2 "T. A. C, Bret.," 35, 207; Desmares, 153; "Cout. Not.," 15, 83; Boutaric, 
 I, 20; "A. C, Anjou," ed. B.-B., I, 483; II, 338; III, 3.34; IV, 201. Guil- 
 hiermoz, p. 5(30: renunciations by princesses in the fourteenth and fifteenth 
 centuries. They were looked upon with disfavor. In Burgundy the wife 
 who renounced was deprived of her dower, her furnished chamber and her 
 rings and jewels, etc.: Loysel, 398 (formerly loss of the mutual gift); "Conf. 
 de Guenois," p. 578 et seq. 
 
 3 Loysel, 113 (De Mesme); "A. C, Poitou," Guilhiermoz, p. 497. — The clause 
 in her marriage contract by which the wife prevented herself from making 
 a renunciation of the community was held to be illegal; cf. however, "Orleans," 
 204. Thus the power of renouncing had become one of a public nature. • — 
 It was at first a personal right of the wife's; her heirs could lay no claim to 
 it unless by virtue of a special clause in the marriage contract. Some Orders 
 of the sixteenth century (of April 15, 1567; "Orleans," 204) allowed them 
 the power of renouncing: Pothier, no. 5.50. — The extension of this right in 
 these two directions shows us that it did not naturally belong to the wife living 
 in a state of community; it was a right which she only attained with difficulty. 
 The formula of the fourteenth century: "conquicstus mobilia et debita esse 
 communia," also excludes the idea of a renunciation: "Gr. Cout.," p. 321; 
 J. Lecoq, 83. Cf. also "Gr. Cout.," p. 218 (the wife held liable to pay the 
 debts contracted by her jointly and severally with her husband, although 
 all the movables have been confiscated). 
 
 * In the printed editions of the "Gr. Cout.," p. 375, only the renunciation 
 of movables is dealt with, but in several manuscripts both the movables 
 and the jointly acquired property are mentioned. In the "Coustumes de 
 fiefs" (abridged by the "Gr. Cout.," p. 298), "B. Ch.," 2d s., V, 56, the wife 
 renounces all the movable possessions and all the husband's debts and all 
 the possessions of every kind which she and her husband have held (except- 
 ing her dower); this indefinite formula does not seem to take the immovables 
 
 847
 
 § 566] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 This was, moreover, perfectly logical; for the day when immov- 
 ables became a pledge for the creditors, the wife could no longer 
 withhold her share of the jointly acquired property without con- 
 tributing to the debts.^ The division of the community into two 
 portions, movables and jointly acquired property, has in it noth- 
 ing contradictory to the very old law; it is about the same as the 
 distinction which is made with relation to succession between the 
 heirs to the movables and the heirs to the personal belongings. 
 It is not so easy to explain why the renunciation of movables 
 seems to be reserved for the nobility alone. If it is a favor that 
 was conferred upon them, one has to seek the motive for it in 
 vain; for it seems very difficult to believe that the nobility were 
 the only people who got into debt, in spite of the proverb, "The 
 villein has ready money, a noble prince has never a sou"; if it is 
 a right which they exercise, it should also belong to common- 
 ers. By supposing {ante, § 554) that the community was not origi- 
 nally used by the nobility the problem would be found to be 
 solved in a rather satisfactory manner; the status of a community 
 owner of possessions or a partner prohibited the commoner from 
 making a renunciation ; ^ on the other hand, the spouse who was 
 a noble was entitled to a right by survivorship, which he was 
 free to give up.^ It is true that this theory of the history of 
 
 into account; cj. Boutaric, II, 21; "C. de Verm.," 203 et seq. On the other 
 hand in a document dated during the latter part of the fourteenth century, 
 the "Notables Points de I'usage de France," ed. Bordier, "Rec. de textes 
 rel. aux Cout. de Paris," 1845, the renunciation is applied in one paragraph, 
 at the beginning, to movables, and in another paragraph, further on, to the 
 jointly acquired property. It must therefore be at this time that the change 
 takes place; the noble widow, in order to be free and clear of the debts, should 
 renounce the movables and the acquests at one and the same time: "A. C, 
 Bourg.," 1 (Giraud, II, 268); "A. C, Berry," 57 (renunciation of the movables, 
 jointly acquired property and debts). Gkisson, VII, 371: in 1396, in Paris, 
 the renunciation of the noble wdfe is Hmited to her former effects. "Fragm. 
 d'un repert. de jurispr. Paris, au XV^ s.," p. 89, cf. p. 21. Three years 
 later it assumes a much more general form before the Provost of Paris. Finally 
 the "Cout." of 1510, Art. 115, requires that the renunciation also affect jointly 
 acquired property. 
 
 1 Italy : the Sardinian and Istrian statutes allow the renunciation (Pertile, III, 
 357)of the acquests; in view of this the wife protects her personal belongings. 
 
 2 It was possible to introduce the renunciation and the benefit of emolu- 
 ment for the benefit of commoners by means of special clauses which be- 
 came typical ones and which in the end were sanctioned by the Customs: 
 Dwnoulin, on "Montargis," 8, 8; Loysel, 396 (extended to include the heirs). 
 
 ^ Beaumnnoir, 13, 9, declares that the widow can choose as to whether she 
 will leave all the movables and all the debts to the heirs of her husband and 
 take her dower free and clear, or whether she will take her share of the movables 
 and debts. He does not make any distinction between the noble wife and the 
 commoner. On the other hand he makes no allusion to the share of the jointly 
 acquired property which comes back to the widow {cf, 14, 29). Nor is there 
 
 848
 
 Topic 4] SYSTEMS OF COM-MUXITY [§ 567 
 
 the community has not been admitted by everybody, but we think 
 it is possible to draw from this theory a conclusion which can be 
 correctly applied to all systems, and that is that the nobility 
 as a class showed more attachment for tradition than did the 
 commoners. ^Vhen the community right was substituted for the 
 rights by survivorship of the barbarian period, the nobility kept 
 for it a few of the characteristics of the latter, — a thing which 
 was all the more natural as, had it not been for this, the widow 
 would have run the risk of losing by this change. 
 
 § 567. Transactions Previous to Partition; Reinvestment and 
 Recompenses. — If the wife accepts the community, it becomes 
 necessary to arrange this divisible mass^ by distinguishing the 
 personal belongings of each spouse from the possessions owned 
 in common, — whether they exist in kind, or there has been a 
 reinvestment — that is to say, whether they have been replaced 
 by possessions which are their equivalent — or whether, finally, 
 in case there be no reinvestment, it is necessary first to deduct 
 from the assets of the community recompenses or indemnities for 
 personal belongings which may have been alienated.- The theory 
 
 any question as regards them in the letters of 1343, in Achery, "Spicil.," 
 
 III, 721. "OUm," II, 240: it is a well-known custom of the Ile-de-France 
 that the widow, by renouncing Iier share of the movables, escapes from the 
 payment of the debts for which she was liable, or for which she and her hus- 
 band were liable (that is to say debts of the community); she does not have 
 to pay them either out of her dower or out of her " hereditagium " (does this 
 latter word only mean the wife's personal belongings? does it also include 
 her share of the jointly acquired property? were there any jointly acquired 
 possessions included in the schedule?). The matter under consideration 
 refers to the widow of Bouchard de Montmorency, that is to a noble's wife; 
 but the argument by means of which this decision is justified is not based 
 upon this rank of a noble wife; an accepted usage is relied upon, without any 
 mention of anything which might lead one to suppose that it was one which 
 applied especially to nobles. Cf. "Quest." 131 of J. Lecoq, and the other 
 texts cited; Guilhiermoz, op. cit. The "A. C, Berry," 57, does not make any 
 distinction either. — On the other hand only the wives of nobles are taken 
 into account in the"Gr. Gout.," "Paris, A. C," 115, etc.: "Et. de St. Louis," 
 I, 17; "A. C, Artois," 34; "A. C, Picardie," ed. Marnier, p. 116; "Coust. 
 de Verm.," § 238. This inconsistency is a difficult one to settle. Benumanoir 
 is too precise for us to have any right to imply that he meant only to speak 
 of the noble wife. He was far too familiar with the neighboring Customs 
 not to have pointed out a divergency between them and the Custom of Beau- 
 vaisis, had there been one. Finally, according to him, one cannot assume 
 that there are divergences in the law, the wives of commoners having lost 
 the right of renunciation, and having regained it in the sixteenth century. 
 
 1 Ferriere, on "Paris," 317; Pothicr, nos. 529, 537, 690. Penalties for 
 embezzlement: loss of the right of renunciation ("Gr. Gout.," 2, 29) or of 
 the advantage of emolument, and of the share in property set aside: "Goust. 
 de Verm.," 303; Britz, 844; Loysel, 133, 397; Picot, "Hist, des Etats g<5n.," 
 
 IV, 72; "Arr.," of Lamoignon, 29, 89. 
 
 2 Same transactions in case of renunciation, for the wife always has a 
 right to her personal belongings. 
 
 849
 
 § 567] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 of recompenses rests upon a strict distinction between the in- 
 heritances of the two spouses and that of the community. It can 
 be summed up in the principle that neither one of them should 
 be enriched at the expense of the other; this assumes that they 
 each have their own special accounts and their assets and liabili- 
 ties clearly distinguished from one another. The very old law 
 knew nothing of this complication. In the thirteenth century 
 there was no question either of " reprisal " or of recompense. It 
 was especially in cases where the personal belongings were alien- 
 ated that recompenses were due from the community. Now, it 
 was formerly the principle that the price of the personal belong- 
 ing which had been alienated should form part of the community 
 by way of movable and without indemnity. Thus it was said that 
 "the husband should get up three times in the night in order to 
 sell the property of his wife." ^ He gained the power of disposing 
 of the price, just as of other communal movables, and when the 
 partition took place he took one-half of the price. Undoubtedly, 
 alienation was not possible unless the wife gave her consent ; but 
 how many times did she not yield to the pressure brought to bear 
 upon her by her husband? If recompenses due from the com- 
 munity to the spouses were not known, still more was it the case 
 with regard to recompenses due from the spouses to the community 
 in a case where valuable assets were taken from the funds of 
 the community in order to acquire or to improve personal be- 
 longings. In so far as the husband had done nothing more than 
 make use of his powers, he was free, in fact, to dissipate the pos- 
 sessions of the community, "a fortiori," to make use of them for 
 his own advantage or for the advantage of his wife. 
 
 This old law had the defect of attacking the principle of the 
 preservation of personal belongings in the family and the pro- 
 hibition of gifts between spouses. It could only have been per- 
 mitted at a period when legislation was not very well fixed in the 
 direction of the prohibition of gifts between spouses,^ as witness 
 the usage of the mutual gift and the benefit resulting from the 
 conferring of the wife's movables upon the husband, under the ex- 
 clusive system of community, and of the mingling of the movables 
 
 • "Gr. Cout.," 2, 32; "L. d. Dr.," 285; "Lorraine," 2, 16; Loysel, 116 
 (rule which has been discarded). C/. "T. A. C, Bret.," 215, 211. — The prin- 
 ciple: "res succedit in locum pretii et pretium in locum rei": Stobbe, IV, 
 274. — "Jostice," p. 242; Fremont, "Thdse," 1899. 
 
 2 Beaumanoir, 70; "Montfort," 149; "Maine," 334; "Auvergne," 14, 39 
 and 46; "Arr.," of Lamoignon, XXXII. 
 
 850
 
 Topic 4] SYSTEMS OF COMIMUNITY [§ 568 
 
 of the spouses under the regular community system. In time new 
 principles came to be introduced. "By means of a clever system 
 of reprisal and of recompense," says Gide, "they succeeded in 
 reconciling these two irreconcilable things, the mingling of the 
 inheritances of the spouses and the preservation of each one 
 of them intact." They were all the more concerned to prevent 
 reciprocal gains by spouses, to which the system of com- 
 munity indirectly lent itself, because they were not freely con- 
 sented to, and because the spouses had sometimes not even given 
 ihem an}' thought, and thus found themselves to be making gifts 
 without knowing it. The danger was especially great for the 
 wife; in fact, the husband virtually possessed the right of in- 
 vesting the community possessions, for the benefit of his own 
 personal inheritance; still more was he liable to abuse his in- 
 fluence over his wife in order to induce her to alienate her 
 personal belongings. 
 
 In law the theory of recompense may be of service to the hus- 
 band; in fact, it constitutes a new guarantee for the benefit of the 
 wife, a means of protecting her against her husband, an essential 
 part of that system of counter-checks which goes to make up the 
 community. It comes to light in some few cases after the four- 
 teenth century, but it does not reach its full development until the 
 period of the drawing up of the Customs.^ 
 
 § 568. The Same. — (A) Recompenses due from the Community, 
 for example, movables converted into money, the price paid for 
 personal belongings alienated, the buying back of rents belonging 
 to one of the spouses.^ ^ (I) Movables invested as a Fund. The 
 investment of the funds of the marriage portion, that is to say, 
 their conversion into immovables, which was in use in countries 
 of written law, here furnishes a precedent from which the people 
 in the countries of Customs drew their inspiration. In 1269 a 
 charter of Saint Louis relating to the marriage of his niece, Blanche 
 d'Artois,^ sets forth that a part of the marriage portion should be 
 
 1 Cf. as to German law, Slobbe, IV, 230. 
 
 ^ The right to the recompense is all the more natural in this case, because 
 the rent can be bought back in spite of the spouse who owns it; it is against 
 his will that his personal belongings arc changed into community belongings. 
 Consequently this can be extended to include other hypothetical cases. 
 
 ^ Cf. this very important deed in L. Delisle, "M6m. s. les op6r. financie^res 
 des Templicrs," 1889 ("Acad. Inscr.," XXXIII, 2d p.) p. 105; Jnmont, 
 "These," p. 44 (cf. investment in Brittany before the end of the thirteenth 
 century); J. Lecoq, q. 83: it is a matter of the investment of the funds of 
 the marriage portion and not of a sum of money given by the husband to the 
 wife; Boerius, "Dec," 209; Buche, "N. R. H.," 1884, 646. 
 
 851
 
 § 568] SYSTEM OF PROPERTY BETW^EEN SPOUSES [Chap. V 
 
 deposited at the Temple in Paris in order to be invested in lands 
 or rents through a relative or a third party to be designated in the 
 future; the remainder should be paid over to the husband to dis- 
 pose of at his pleasure, but at the dissolution of the marriage he 
 was held bound to restore the sum which he had received. In the 
 first case the reprisal took place in kind, just as though the wife 
 had contributed as a part of her marriage portion the immovable 
 which had been bought out of its funds.^ In the second case, one 
 can say that she had a right to a recompense by virtue of a clause 
 in the contract of marriage.- The right of the wife to take posr 
 session of the property of the husband until she should have 
 been paid was often stipulated for; in this way the payment of 
 the recompense was assured.^ — (II) Reinvestment ami Recompense. 
 (a) Agreements for reinvestment (frequent from the fourteenth 
 century).^ In contracts of marriage or upon the alienation of a 
 personal belonging it could be agreed that the price should be in- 
 vested with the object of obtaining another immovable, which 
 was intended to be subrogated to the former one, — that is to say, 
 to take its place; this operation was too much like an investment 
 of the funds of the marriage portion not to be looked upon as law- 
 ful. In default of precedents in this direction, they should nat- 
 urally have been led to the idea of subrogation by the simple and 
 practical case of an exchange; the reinvestment is in the last 
 analysis only an exchange divided into two distinct acts, separated 
 by a longer or shorter interval of time. If there was no clause of 
 reinvestment, the spouse had no right originally to the recovery 
 
 * The husband should swear when he withdraws the money that it will 
 be used without fraud to pay the purchase price of a piece of land which has 
 already been bought. Cf. "Gr. Gout.," 2, 32; Lecoq, 83; Loysel, 394; Coquille, 
 on "Niv.," 23, 12; "Quest.," 112. 
 
 2 If the investment had not been made at the time of the dissolution of 
 the marriage, the wife could take back the amount of the marriage portion, 
 according to the Gharter of St. Louis. See the controversy on this question 
 in J. Lecoq, 83. Id., "Amiens," 1249, Art. 70; "N. G., Paris," 93; Loysel, 
 394. — "Arr.," of Lamoignon, 29, 9. 
 
 3 "OUm," II, 96, 31 (in 1277); P. de Fontaines, 15, 8. There then came 
 into existence a contract-lien on the husband's possessions (either over all 
 of them, or over some of them only); they were set aside to be used for the 
 restoring of the marriage portion. This was a pubhc nam of imrnovables 
 which was carried out under the three forms of sale with redemption, the 
 engagement and the obligation. See §§ 427, 428. In "Nivernais," 23, 12, 
 the contract-lien is still considered as a sale in the sixteenth century, and 
 it carries with it transfer of ownership: Loysel, 117. Cf. 120; Coquille, 
 "Quest.," 113. Cf. "Bourg.," 4, 17; Bouhier, I, 167; Ragueau, see "As- 
 signal." As to the " seat" in Brittany and the " consignment" in Normandy, 
 Bee Oilier, "These," p. 110 (bibl.). 
 
 * "Melun," 255; "Sens," 277; "Auxerre," 197, etc. 
 
 852
 
 Topic i] SYSTEMS OF COMMUNITY [§ 568 
 
 of the price.^ (6) Reinvestment independent of all agreement.- 
 The validity of the reinvestment was now not made dependent on 
 a prehminary contract; from the fourteenth century, at least, this 
 is the case.^ In the last stage of the old law reinvestment was pos- 
 sible under the following conditions: 1st. A declaration upon the 
 acquiring that it is made with the funds resulting from the aliena- 
 tion of a personal belonging, and that it is made in order to take 
 the place of a reinvestment.^ 2d. In case of a reinvestment in 
 the interest of the wife, an acceptance by her, the acceptance 
 being no longer possible once the community had been dissolved.^ 
 (c) Security on the community possessions and on those of the hus- 
 band. Instead of proceeding to a reinvestment, on acquiring 
 of property belonging to third parties, the husband may grant 
 to his wife the jointly acquired property of the community, or 
 even certain of his own belongings, for the price of the personal 
 belonging which has been alienated.® Instead of making her a 
 grant in ownership, he may content himself with conferring upon 
 her a security on these possessions; if these transactions are 
 
 1 In his "Qu.," 1, J. Lecoq asks the "pretium rei hereditariae reputari 
 debeat hereditagium." Equity would require "pretium loco rei succedit"; 
 the custom is otherwise. 
 
 2 The reinvestment clause served to give a right to a recompense; when 
 this right was recognized, even if there were no agreement to that effect, it 
 allowed the wife to ask for separate maintenance, if, because the agreement 
 should not have been carried out her marriage portion was found to be in 
 danger of being lost. 
 
 ' "Gr. Gout.," p. 321: the husband declares before the judge that he is 
 about to buy a piece of land to take the place of his personal belonging which 
 he has alienated; if this declaration is made, the new inheritable piece of prop- 
 erty will not be a piece of jointly acquired property. "Jostice," p. 242. 
 
 "* Lebrun, 3, 2, 1, 2, 69. But c/. Pothier, no. 198; "Arr.," of Lamoignon, 
 29, 53. 
 
 5 Duplessis, 1, p. 447. Cf. the Civil Godc, 1425. The property having 
 been left at the community's risk, it would hardly be equitable for the wife 
 to be able to take away from the community the advanUiges resulting from 
 any increase in value which may have taken place. If it were made at the 
 right time, the wife's acceptance had a retroactive effect: D'Aguesseau, 27th 
 "plaid"; Pothier, no. 200. Cf. Labbe, "Ratific. des actes d'un gerant 
 d'affaires," 185Q. — Bacquet, "Dr. de just.," XXI, 300. 
 
 " With the price received from the alienation of one of the personal belong- 
 ings, the husband acquired an immovable, and after having done so he made 
 a declaration of reinvestment (instead of making it at the time of acquiring). 
 There thus took place a transformation of a piece of jointly acquired j)roperty 
 into a personal belonging without third parties having any notice given them; 
 the retroactiveness which would have in the meanwhile caused establisheil 
 rights to accrue to the advantage of third parties could therefore not be rec- 
 ognized. Cf. Lebrun, p. 372; Louet, "R.," .30; Le Prcsire, II, 83. — In favor 
 of retroactivity are cited: Dumoulin, on "Jiourb.," 238, and "Blois," 264. 
 This last text merely establishes the right of the wife to a recompense: Gun 
 Coquille on "Niv.," rights of married persons, art. 12; Loyseau, "Deguerp.," 
 I, 8; cf. "Lorraine," 2, 16; Bassigny, 47; Loysel, 117, 120. 
 
 853
 
 § 568] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 allowed for the investment of the funds of the marriage portion, 
 it is hard to see why they should be forbidden in the ease of rein- 
 vestment.^ (d) Dumoulin maintains in the sixteenth century that 
 the husband was authorized to acknowledge afterwards the right 
 of the wife to a recompense independent of any contract of re- 
 investment or of security, (e) Finally, the Custom of Paris of 
 1580, Art. 232, sanctioned ^ the right of the wife to a recom- 
 pense, a legal reinvestment or " reprisal " in the absence of any 
 contract or recognition on the part of the husband.^ Its rule was 
 extended by the courts to those Customs which were silent or 
 even hostile. 
 
 The principle of reprisal once having been admitted, the courts 
 had to determine upon the manner in which it should be exer- 
 cised. Various systems were suggested, — that of the implied 
 security on the jointly acquired property of the community, 
 and, in default of this, of the personal belongings of the hus- 
 band;'* that of the " half-funds," which made an ordinary claim 
 of one-half of the part retained for the wife; ^ and, finally, that 
 of "previous deductions," which prevailed.^ The wife, before 
 
 1 On 238 "Bourb."; "Blois,'; 164. 
 
 2 If it is one of the wife's immovables which is alienated she stipulates 
 that the husband shall invest the price, "Olim," I, 149, 4 (reinvestment 
 in his own inheritable property in kind), or else she demands that her husband 
 promise her an indemnity to be previously deducted from the community. 
 J. Lecoq, q. 1. From before the time of the reforming of the " Cout. de Paris," 
 there were Orders wliich adjudged that the recompense must legally be given 
 for rents of the wife's which were bought back. It was also thought advisable 
 to stipulate in marriage contracts that all the personal belongings of the wife 
 without any distinction should be reinvested; there was no desire to make 
 a purchase of inheritances obligatory, but merely to reserve a recompense. 
 It was this clause which had become a typical one, which the "Cout. de 
 Paris" impHed (1580, 232). 
 
 ' Art. 232; Louet, "R.," 30; Remisson, "Propres," 4, 3, 5 (Orders of 1574, 
 1579). — Some of the Customs, however, still excluded the reinvestment, 
 if it were not stipulated for: "Blois," 164; "Lorraine," 2, 16; "Bassigny," 
 46, etc.; "Arr.," of Lamoignon, 29, 90. 
 
 ^ Louet, "R.," 30; Pocquet de Liv., "Fiefs," 3, 5, 3. Cf. Charondas, 1, 
 p. 367. The jurisprudence of the seventeenth century rejected this system 
 under the pretext that subrogation was a narrow interpretation of the law: 
 Rousseau de Lac, "Remploi." In reality it was because the mortgage had 
 taken the place of the contract-lien. 
 
 ^ The possessions of the community are divided into halves between the 
 spouses. Each one taking half of the community paid themselves, because 
 of the mingling of the property, one-half of their claim. As to the other 
 half, each spouse was a creditor of the other (the wife having a mortgage). 
 The claim at maturity became part of another community, being treated 
 as a movable. With this system the recourse and actions between the spouses 
 were too numerous: "T. A. C, Bret.," 217, 218, 2.30; Loysel, 381. 
 
 * The system of half-funds recalls the time when there were no recompenses. 
 The system of previous deductions for the benefit of the wife may be con- 
 sidered as a simple method of payment instituted for greater simplicity in 
 
 854
 
 Topic 4] SYSTEMS OF COMMUNITY [§ 568 
 
 any partition, deducted from the community specific things rep- 
 resenting a value corresponding to the amount to which she had a 
 right; if the community possessions were not sufficient, she could 
 then take them out of the inheritance of the husband. Upon 
 his side, the husband only exercised his right of reprisal on 
 that which was left of the community after the wife had been 
 paid; he was never allowed to take the personal belongings of the 
 wife (even by virtue of a special clause). In this respect the wife 
 thus found herself more favored than the husband, a new measure 
 of protection in her favor.^ If she was placed before the husband, 
 should she not also be preferred to the creditors of the community 
 in the exercise of these reprisals? Reinvestment assured her this 
 preference, for the possessions which were acquired by force of 
 the reinvestment were substituted for her personal belongings 
 which had been alienated; she was regarded as having always 
 possessed it, and this fiction put to one side the creditors of the 
 community. If there were no reinvestment she could not call 
 herself owner; she could only present herself in the quality of a 
 creditor to the amount of her personal belongings, and as such she 
 came in at so much in the pound with the creditors of the com- 
 munity. Over the community movables she was not recognized as 
 having any lien ; ^ but there was nothing to prevent her from 
 taking advantage of her mortgage over the jointly acquired prop- 
 erty of the community and the personal belongings of the husband, 
 so as to precede those of the creditors whom she could rank. 
 
 the interests of the spouses themselves, in order to avoid the sale of their 
 possessions. It was also sought to account for it by saying that the wife 
 acted more as an owner than as a creditor; a "greater right over the com- 
 munity" was spoken of; but the very vagueness of this expression shows that 
 the theory under which it is made use of is scarcely well fovmded. Pothier, 
 "Succ," 5, 1, sees in it a new opinion. Interest: tliis right will be movable 
 or immovable according as the taking back affects movables or immovables; 
 it ^ill go, according to circumstances, to the heir of the movables or to the 
 heir of the immovables; finally the wife shall be preferred in her claims over 
 the community movables even to the creditors of the community: Esmein, 
 "R. crit.," 1877 (and authors cited), p. 83; Pothier, "Fiefs," 459: previous 
 deductions did not give rise to the collection of the assessment of one-fifth. 
 
 1 The "Cout. de Paris" was silent with regard to this. But these privi- 
 leges had been introduced in practice, by way of compensation, for the benefit 
 of the woman, because of the dependent position in which she was placed 
 with respect to her husband. She treated him in the same manner as a 
 minor treated his guardian (cf. mortgage): Rcnusson, "Propres," IV, 4, 4; 
 Lebrun, III, 2, 1, 2, 66. It was not so much the liquidation of a partnership 
 as the rendering of an account to a person under a disability by his manager. 
 
 2 Pothier, ,58.^, 701 (previous deduction of the sum at which the recaption 
 was valued); Dejiisnrt, see "Dot," 25, 6 (ed. of 1788) (the wife has no privilege 
 over the movables); "Actes du Chatelet," 1711 and 1745; Pont, "R. crit.," 
 1854, p. 556 et seq. (authors cited). Cf. "Blois," 164. 
 
 855
 
 § 569] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 § 569. The Same. — (B) Recompenses due from the Spouses to 
 the Community.^ It often happened that the inheritance of the 
 spouses was enriched at the expense of the community ; it was with 
 the money of the community that they made acquisitions, and 
 that they made improvements upon their personal belongings, 
 because the spouses could not have sums of money or objects 
 which belonged to them individually. But this enrichment did 
 not seem of such a nature as to be the basis for a right to the 
 recompense; when the husband could dissipate the community 
 possessions it mattered little whether he made use of them in his 
 own interest or that of his wife. Yet though there was no recom- 
 pense, analogous results were arrived at in certain special cases. 
 Thus, when one of the spouses exercised the right of the repur- 
 chase by a person of the same lineage, and to carry it out made 
 use of the community funds, the immovable which was acquired 
 came into the community in the quality of jointly acquired prop- 
 erty; the spouse who was of this same lineage only obtained it 
 upon the dissolution of the marriage and by the exercise of an- 
 other repurchase, which was called that of the "half-funds."^ 
 He paid the other spouse a half of the price which had been paid 
 out. The result was the same as though there had been a recom- 
 pense made to the community. The immovable finally came to 
 be looked upon as a personal belonging, and no longer as a piece 
 of property jointly acquired. The idea of the recompense was 
 thenceforth accepted without difficulty. One can say as much of 
 the case where one of the spouses bought out a rent which en- 
 cumbered one of his personal belongings. The community which 
 paid for the repurchase was looked upon as acquiring the rent. 
 The latter existed as a piece of property jointly acquired. When 
 the community was dissolved, the rent was divided between the 
 two spouses, and the debtor found himself under the alternative 
 of paying half of the arrears to the other spouse or of paying back 
 one-half of the rent. It would have been more simple to say that 
 the personal belonging had been released, and that the rent had 
 been extinguished. This is what the parties really intended, and in 
 order to obtain this result it was only necessary to pay a recom- 
 pense to the community. They did not yet dare to go so far as 
 this in the Custom of Paris in 1580; the}^ did, indeed, admit 
 that the land was freed, but they decided that a new rent was 
 
 1 Desmares, 152; Loysel, 391; "Paris," 244 et seq.; Pothier, no. 613. 
 
 2 Beaumanoir, 14, 20; 44, 48; "Arr.," of Lamoignon, 29, 42. 
 
 856
 
 Topic 4] SYSTEMS OF COIMMUNITT [§ 570 
 
 created, — half of the amount of the former one.^ Thus it was 
 thdt they came gradually to establish recompenses against the 
 spouses in case they acquired personal belongings with the funds 
 of the community. In the case of the improvement of personal 
 belongings,^ the idea of the recompense rested upon the fact 
 that the husband was acting in fraud of the rights of his wife, or 
 upon the desire to forbid indirect enrichment between the spouses. 
 The jurists by way of generalizations laid down the two follow- 
 ing rules : a recompense is due every time the spouses have en- 
 riched themselves at the expense of the community; ^ the amount 
 of the recompense is equal to the profit realized by the spouse (if 
 it is of greater value) or to the sum paid out by the community ; to 
 put it better, to whichever of these two amounts is the smaller.'* 
 
 § 570. Partition. — (A) Assets. As a general thing, partition 
 took place by halves ^ between the husband and the wife or their 
 heirs. But this rule, however natural it may seem to us, was es- 
 tablished with some diflSculty; until the end of the old law special 
 agreements were frequently made in derogation of it. Thus, par- 
 tition sometimes did not take place until there had been children 
 of the marriage; if there were no children, the surviving spouse 
 kept the entire community.^ Or, again, he was given the whole 
 of the movables and a share of the immovables. One method of 
 partition which was very widespread was that which consisted in 
 only giving the wife or her heirs a third of the community posses- 
 sions.^ These old practices, which had disappeared as a general 
 thing from the French Customs, persisted under the form of agree- 
 
 1 "Gr. Gout.," p/324; "A. C, Paris," 119; "N. G.," 244; Loysel, 392; 
 " Arr.," of Lamoignon, 29, 41. 
 
 2 "T. A. G., Bret.," 215: recompense for the improvement of lands held 
 by commoners. — Contra, "Et. de St. Louis," I, 16. 
 
 3 The powers of the husband are also found to be limited by this means. 
 Cf. marriage portion of a child of both spouses or of a child of the first mar- 
 riage consisting in the community property: Lebrun, 2, 2, 1, 15; Pothier, 656; 
 "Arr.," of Lamoignon, 29, 28 (preservation of the personal belongings). 
 
 * Pothier, 636. The community carmot be treated like a banker who de- 
 mands the exact sum he has loaned. 
 
 6 Stobbe, IV, 231, cf. 229. 
 
 8 Also right of succession of the survivor, ib., 285. Glause by which the 
 survivor has the enjoyment of the community: Argou, III, 9; "Gout, de 
 Diesse " 25 5. 
 
 7 "blim'" "ll, 74, 10 (in 1276); "T. A. G., Bret.," 217, 42: partition by 
 thirds among commoners, the children taking the share of the dead besides 
 their third; Loysel, 385. Sicilian statutes, "Messina," 1, 9, 49; "Palermo," 
 45; "Gatana," 3, 16, etc.; Pertile, III, 358. Scandinavian law: D'Oiiverrona, 
 p. i08 et seq. Bonvalot, "Gout, de Lorr.," p. 47, 95; " Gout, de Ferette" (Upper 
 Alsace), XVI (cf. Guijot); Viollet, p. 775; D^glin, "Thcise," 1883, p. 108; 
 Stobbe, IV, 231. In Liibeck the husband can by last will reduce the wife's 
 share. 
 
 857
 
 § 570] SYSTEM OF PROPERTY BETWEEN SPOUSES [Chap. V 
 
 ments. For example, they would agree that the wife should only 
 bear one-third of the joint expenses, or that her heirs would only 
 have a certain sum in lieu of all their rights over the community 
 ("forfeit of the community").^ Similar clauses to these, which 
 were fixed by tradition in certain localities, were consequently 
 considered as marriage agreements, and not as gifts which were 
 prohibited. They were justified by saying that the inequality of 
 the shares was due to the fact that the industry or the estate 
 brought by one of the spouses was of more importance. Only a 
 few of these clauses were done away with, and they were the ones 
 which would have been too much against the spirit of the new 
 law, — for example, the conferring of the entire community upon 
 the surviving spouse; ^ this was, in fact, the denial of the idea of a 
 partnership and a survival of the exclusive system of community. 
 One of the most frequent clauses was the stipulation for a " refer- 
 ence-legacy made by agreement." ^ It was obviously derived 
 from the old custom of conferring certain possessions outside of 
 his share upon the surviving spouse, such as the weapons and the 
 horses of the husband, the dresses and the jewels of the wife. An- 
 other archaic remnant: the "legal reference-legacy of the noble 
 spouse." ^ According to the Custom of Paris, 238, if there 
 were no children the surviving spouse who was a noble had the 
 power to previously deduct all the community movables,^ being 
 charged with the payment of the debts of the community and with 
 bearing the expenses of the funeral of the predeceased spouse.® 
 The "Grand Coutumier de France," 2,41, seems to see in this the 
 counterpart of the nobleman's lease or custody; the surviving 
 spouse took all the movables by right of being a guardian if there 
 
 1 "Olim," III, 860, 39. CJ. Bannelier, on Davot, VII, 160; "Arr.," of 
 Lamoignon, 29, 4, 7. 
 
 2 Britz, 858 ("mainplevie" at Liege); Stohhe, IV, 231, 242. 
 
 3 "T. A. C, Bret.," 207; "A. C, Picardie," p. 110; Glasson, VII, 379 (Stras- 
 bourg), etc.; Stobbe, IV, 101. 
 
 * Bonvalot, "Cout. du d. de Lorraine," p. 37: all the movables devolve 
 upon the survivor whether a noble or a commoner; Stobbe, IV, 231, 242. 
 
 6 Excepting those situated in Paris (beginnings of a reaction against the 
 reference-legacy). Cf. Pothier, no. 428. As to claims opinion was divided, 
 cf. "A. C," 131; "N. C," 231. 
 
 * Can the surviving spouse, after having accepted the legal reference- 
 legacy, give up his emolument in order to escape having to pay the debts? 
 There were some who said not, comparing him to the nobleman guardian 
 who, having accepted the guardianship, is held liable for the debts of the 
 minor, even those which are "ultra vires," and cannot escape them by giving 
 up the emolument connected with the guardianship. Pothier, no. 439, was 
 not of this opinion; from his point of view the beneficiary of the reference- 
 legacy was a mere donee, and it is a recognized principle that the donee is 
 only held Hable up to the amount of his emolument. 
 
 858
 
 Topic 4] SYSTEMS OF COMMUNITY [§571 
 
 were children, and by virtue of the reference-legacy if there were 
 none.^ 
 
 § 571. The Same. — (B) Liabilities. The debts of the com- 
 munity were divided in the same way as the assets, — so, as a 
 general thing, by halves, (a) Execution by the creditors. 1st. 
 The husband can be levied on for all debts contracted in his own 
 right and chargeable upon the community.^ As to the debts 
 which were contracted in the right of the wife, debts previous to 
 the marriage, or due through inheritances which had accrued to 
 the wife during the marriage, there was a difference of opinion. 
 Some who were more true to the old principles of the matrimonial 
 system treated these as the debts of the husband ; others, on the 
 contrary, inspired by more recent conceptions, said that the hus- 
 band was only held in his status of a community owner of pos- 
 sessions and could only be sued for half of them. We have already 
 come across a difficulty of this nature with regard to debts con- 
 tracted by the wife with the authority of her husband. 2d. The 
 wife here enjoys a new privilege: she has the benefit of emolument.^ 
 At first she could only be sued to the extent of her half for debts 
 contracted in the right of her husband chargeable upon the com- 
 munity. Later on she was not even under the necessity of paying 
 this half when she was asked for more than the amount which she 
 had withdrawn from the community; she could be cleared with 
 respect to the creditors by giving up to them her "emolument." 
 It was not the same with respect to debts contracted in her own 
 right; as she had personally bound herself, she could be sued for 
 the whole amount, even if she made a renunciation.* The benefit 
 of emolument does not seem to have been known before the six- 
 teenth century.^ It was especially useful in the Customs which 
 
 ' It might be thought that this could be accounted for by the employraont 
 of reference-legacies established by agreement; but if this were so, then why 
 should it have been peculiar to the noble spouse? By making it depend, 
 as we do, on the old tendencies, it is more readily understood; this anomaly, 
 imder the community system, only exists among the class of nobles, that 
 is to say where there was the greatest difficulty in having the community 
 accepted. 
 
 2 Cf., however, Bacquet, "Dr. de Justice," c. 21. 
 
 3 "Paris, N. C," 228; "Orleans," 187. — Contra: "Ass. de Jdr.," "C. 
 des B.," 191; "Bourg.," cf. Bannelier, on Davot, VII, 332. 
 
 * Loysel, 398. 
 
 5 Perhaps it was introduced under the form of agreements and clauses 
 which were practical. After 1513, Papon, "Arr.," 15, 1, no. 25, there were 
 Orders which applied it in the absence of any clause, in spite of the silence 
 of the Custom: CoquiUe on "Niv.," 23, 7 ((Drder of 1567). These Orders 
 only took into account commoners. The "N. C, Paris," 228, made it a law- 
 ful right of all wives without distinction, whether they were noblewomen or 
 
 859
 
 § 571] SYSTEM OF PROPERTY BETTV^EEN SPOUSES [Chap. V 
 
 refused to give the wife the right of renouncing.^ But it was in- 
 troduced even elsewhere and became general, either in imitation 
 of the benefit of inventory with regard to inheritance, or finally in 
 order better to assure the preservation of personal belongings in 
 case the wife made an unwise acceptance. Originally, the wife 
 who wished to make use of this benefit had to provide herself with 
 royal letters; but it was not long before courts were content 
 with the making out of an inventory .^ (6) Contribution to debts. 
 Once the creditors had been paid, there had to be a final settle- 
 ment between the spouses, so as to have each one bear half of the 
 community debts, whatever may have been their origin. But 
 here again the wife could set up against her husband the benefit 
 of emolument; the latter, or, rather, his heirs, could not compel 
 her to bear community liabilities beyond the amount which she 
 had withdrawn from the community. She had recourse against 
 them for everything which she had paid beyond this. 
 
 § 572. The Married Woman's Mortgage. — Besides the privi- 
 leges and guaranties which have been dealt with, the courts 
 granted to the wife a general mortgage over the possessions of 
 her husband. This mortgage was of Roman origin. Admitted in 
 very old times in countries of written law, it seems only to have 
 been recognized in countries of Customs in the sixteenth century.^ 
 At this time it was introduced without difficulty by virtue of the 
 principle that every notarial deed meant a general mortgage; the 
 marriage contract, being drawn up most of the time in the form of 
 a notarial deed, a mortgage dating from the execution of the deed 
 arose therefrom for the benefit of the wife. It was equally ad- 
 mitted that the mortgage would have existed if there had been no 
 contract; but then it no longer had the same date, it only dated 
 from the celebration of the marriage. It guaranteed all the claims 
 of the wife, — dower, marriage portion funds, reference-legacy, 
 
 commoners. By reason of this they found themselves in the same position 
 as a silent partner or partner with a limited responsibility. It was no more 
 permissible to deprive oneself of the advantage of the emolument by mar- 
 riage contract than of the power of renunciation. 
 
 1 "Orleans, A. C," 1509, Art. 167, 188; Brillon, "Diet, des Arr.," II, 263; 
 Dumaulin on "Poitou," 259, no. 28. 
 
 2 Boucheul, on "Poitou," 239, no. 29; Coquille, on "Niv.," 34, 28; Pothier, 
 VIII, 127. 
 
 * Loysel, 497; "T. A. C, Bret.," 207 (there is no question of the wife's mort- 
 gage because of what she takes back). See ante, p. 759, note 2: texts which 
 take into account the implied mortgage or assignment arising because of 
 the existence of dower, in the fourteenth century; "Gr. Gout.," 2, 32 (but 
 contra, 17), p. 321; "A. G., Anjou," ed. B.-B., I, 197; cf. as to the assignment, 
 "Niv.," 23, 8; "Bourb.," 248; D'Argentre, on "Bret.," 410, 3, 4. 
 
 860
 
 Topic 4] SYSTEMS OF COIDHUNITY [§ 572 
 
 and recompenses. Although on principle she only had one and 
 the same date for these various claims (by analogy of guardian- 
 ship, "initium garendpe administrationis ") at the same time one 
 already finds in the Customs and in the decisions attempts at a 
 classification of them; thus with regard to the claim for the price 
 of a personal belonging which has been alienated, or for the in- 
 demnity because of an engagement entered into with the hus- 
 band, they tried to give the mortgage the same date as these 
 claims, — that is to say, the date of the alienation ^ or of the en- 
 gagement. ^ In giving her consent to the alienation of the hus- 
 band's possessions the wife could renounce the right to invoke 
 her mortgage over the possessions which had been alienated,^ 
 which meant that the protection which had been established in 
 her favor (very serious in appearance and very annoying for the 
 husband, whose credit it might ruin) ran the risk of being of 
 scarcely any effect. Yet the wife who lived in community, thus 
 differing from the wife who had a marriage portion, was free to 
 alienate her personal belongings and free to give up her mortgage. 
 It was even proposed to allow her to grant the benefit of this mort- 
 gage to the creditors of the husband, to subrogate third parties for 
 herself.* What did it matter, to those against whom this mortgage 
 was set up, whether it was the wife who exercised it or another 
 person in her stead ? In any case the creditors of the wife who had 
 a general mortgage over her possessions, and, in consequence, a 
 mortgage on her mortgage, received, in the order which was 
 settled for the distribution of the price of the husband's posses- 
 sions, the dividend to which the wife had a right; and they divided 
 it up among themselves by means of the complicated proceeding 
 of subdistribution.^ 
 
 1 "Bret.," 439; "Norm.," 539, 542; Pothier, "Douaire," no. 343. 
 
 2 Parliament of Paris of 1702, 1740, 1742 ("Lyonnais," etc.); Bannelier, 
 on Davot, VII, 25. 
 
 ' Pothier, IX, 477. — There was in this a sort of co-obligation, which was 
 contrary to the Velleianum Senate Decree. D'Argentre, on "Bret.," 409, "gl.," 
 3, no. 2 et seq., criticises the employment of the renunciation. But this re- 
 nunciation allowed the wife to take part in the affairs of the community. 
 In our day practice in developing the tendencies of the old law, "has made 
 of it a true ' means of credit ' at the disposal of the wife and the principal ele- 
 ment of her influence in the household." 
 
 * Those who had dealings with the husband would ask that the wife should 
 also become bound, by giving a mortgage on her possessions; by this means 
 they benefited by the wife's mortgage over the property of her husband. 
 
 ^ This procedure of Sub-Orders, which was in use as early as the seven- 
 teenth century in the Parliament of Paris, was confirmed by the Ordinance 
 of the 30th Dec, 1681: Pothier, no. 766; "Prov. civ.," nos. 585, 6.56; HMcourt, 
 "Vente des imm.," 11, 14; Code of Civil Procedure, 775 (suppression). 
 
 861
 
 §573] 
 
 STATUS AND CAPACITY OF PERSONS 
 
 [Chap. VI 
 
 CHAPTER SIX 
 STATUS AND CAPACITY OF PERSONS 
 
 Topic 1. Certificates of Civil Status. 
 Topic 2. Persons under a Disability. 
 Topic 3. Legal Persons. 
 
 Topic 1. Certificates of Civil Status 
 
 § 573. Early Methods of Proofs. 
 
 § 574. Certificates of Religious Status. 
 
 § 575. Certificates of Civil Status. 
 
 § 576. Secularization of Certificates of 
 Civil Status. 
 
 § 573. Eaxly Methods of Proofs. — We have not always had 
 special methods of proof for birth, marriage, and death, that is 
 to say, for the principal facts relating to the civil status of per- 
 sons.^ For a long while recourse was had to ordinary means in 
 order to establish them, such as testimony,^ wTitings, a confession 
 even, or an oath,^ presumptions; ^ for example, the requisite age 
 
 ' There are others, which are, however, of less importance; for example, 
 emancipation, etc. 
 
 2 Ordinary proof by means of witnesses or general repute ("fama"). Ad- 
 mission of the testimony of women with regard to birth: Beaumanoir, 16, 6; 
 39, 30; 49, 54; Masuer, 16, 45; "Toulouse," 31 (near relatives). Primo- 
 geniture when there are twins: Brunner, "Z. S. S., G. A.," 1895, 64. Birth of 
 kings: the confinement is surrounded with a sort of publicity. — As to ques- 
 tions connected with the above: the rule " Infans conceptus pro nato habetur '; 
 likelihood of hving ("L. Alam.," 95, and "Wiss.," 4, 2, 17, 18); monstrosities 
 and the custom of putting them to death (which has been kept up among 
 the people), c/. Stobbe, § 37; Post, I, 15; hermaphrodites ("Zwitter"), ib. 
 §39. 
 
 3 Pcrtile, III, 262. 
 
 * Especially as to death: Fertile, III, 202. — As to absence, see ante, 
 and Bourjon, I, p. 103; Britz, 540; Stobbe, I, 268 (history); Bruns, "Verschol- 
 lenheit, Kl. Schr.," 1882; Tamassia, "Arch. Giur.," 1866; Fertile, § 104; 
 Glasson, VIII, 321; Lehr, "Dr. Angl.," p. 30. They are dealt with in the 
 writings of the Romanists: "Dissens. Domin.," Index, see "Rest, in int." 
 Cf. Procedure ("Capit.," VII, 226: prohibition of judging persons who are 
 absent; 229). — Domicile: Homeyer, "Heimath," 1852 ("Berl. Akad."); 
 Argou, I, 12; Fothier, I, p. 3, ed. B.; Glasson, VIII, 405. — The Itahan doc- 
 trine estabUshed the presumption which was formerly generally accepted: 
 that one was supposed to be dead when a hundred 3^ears had elapsed since 
 the time of one's birth: Bretonnier, "Quest.," see "Absents"; Gierke, "D. 
 Privatr.," I, 365. 
 
 862
 
 Topic l] CERTIFICATES OP CIVIL STATUS [§ 574 
 
 for doing homage or exercising certain functions was guessed 
 rather than proved by means of the "aspectus corporis." ^ Mar- 
 riage and fihation depended ordinarily on the possession of status 
 ("nomen," "tractatus," "fama").- The keeping of registers of 
 civil status relegated to the background these imperfect modes 
 of proving; they were only allowed when registers were lacking, 
 that is to say, when the registers had perished or had not been 
 kept up. As a contrast to this, full faith was given to these reg- 
 isters, which had the advantage of furnishing •a preconstituted 
 proof established under the best conditions of impartiality and 
 .sincerity.^ 
 
 § 574. Certificates of Religious Status. — The origin of our 
 legislation on the subject of certificates of civil status is not to be 
 found in antiquity,'* but in the customs of the Church.^ By the 
 fifth century the clergy made a practice of drawing up lists of 
 baptisms. This practice disappeared, only to reappear in the 
 fifteenth century in the regulations of a few bishops with the special 
 purpose of furnishing information upon the spiritual relationship 
 resulting from baptism, and, consequently, upon the impediments 
 to marriage which were connected with it.^ There could be noth- 
 ing more irregular than the keeping of these records. Nevertheless, 
 in case of need, they were used to prove civil status, being rounded 
 out with the assistance of oral testimony, household registers, and 
 documents, and especially with the "Livres de Raison." ^ As to 
 
 1 Primitive means of establisliing the fact of puberty ("attrectatione barbaj," 
 "alarum," "pubis"): "Scliwabenspiegel," 27; "Saclisenspiegel," 1, 42, 1; "F. 
 de Navarre," 3, 4, 3; Pertile, III, 262. 
 
 - Pertile, III, 262. Or even by means of public rumor alone. 
 
 ^ The Canon law does not bar other forms of proof; it is monarchic legis- 
 lation and jurisprudence wliich have done so. C/. Fournier, "OfficiaUtcs," 
 18S0. 
 
 * Entering in the register of the phratria at Athens: Benuchet, "Hist, du 
 Dr. prive de la Rep. Athen.," I, 350. In Rome, registration of the newly 
 born, under Marcus Aurehus: Mommsen and Marquardt, "Man. des Ant. 
 Rom.," French translation; "Vie priv6e des Rom.," I, 57, 99, 398; Deroine, 
 "R. de 1.," 1849, 261; Jhe, "R. gen. de Dr.," 1894. 
 
 5 Besides the texts of the Canon law relative to the sacraments and 
 the commentators upon them of old or of recent times (c/. Hinschius, 
 § 200; Frmlherg, §§ 133-156; Richter, § 592, etc.), see Morel, "De 
 eff. baptism!," 1598 (French author of the eighth century); Thiers, "Su- 
 perst. q. reg. Ics sacrem.," 1704; Corblet, "Hist, du bapterae," 1882; Du- 
 chesne, "Orig. du culte," 1889; Viollet, p. 457 (bibl.); Gautier, "Chevalerie," 
 p. 106. 
 
 ^ Henri le Barbu, Bishop of Nantes, 1406. 
 
 ' That is to say books of accounts (kept by the heads of families, which 
 had become frequent since the sixteenth century, especially in the Soutii): 
 Tamizey de Larroque, "Bibliog. des Livres de r.," 1892; D. D'Aussy, "R. q. h.," 
 18th year, p, 239; De Santi and Vidal, "Deux liv. de r.," 1896. 
 
 8G3
 
 § 574] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 marriages^ and burials,^ the clergy were also in the habit of keep- 
 ing special registers in order to prove them; they aimed by this 
 means to assure the collection of offerings or remunerations which 
 they received when burials took place, and which they even de- 
 manded, contrary to the old ecclesiastical discipline.^ These were 
 really account books; the oldest of them date back to the middle 
 of the fourteenth century. Like the registers of baptism, they 
 were often not complete; the keeping of neither of these registers 
 was well regulated or quite general. The Council of Trent in 1563, 
 it is true, made the previous practice regular by ordering the 
 parish priests throughout Christendom to keep registers of bap- 
 tisms and marriages (Session 24, "De Ref. Matr.," 1 and 2); but 
 it said nothing about deaths, and its orders were not always 
 strictly respected. 
 
 § 575. Certificates of Civil Status. — The royal power regulated 
 the keeping of these certificates, and also made it absolutely 
 obligatory. In order to prevent the abuses resulting from the 
 exercise of the pope's right of priority in the matter of the 
 bestowal of religious offices,^ the Ordinance of Villers-Cotterets, 
 August, 1539, Art. 50, decreed that the clergy of the kingdom 
 should keep a register of the death and burial of those who had 
 held such office. At the same time, in its Article 51 it estab- 
 lished registers of baptism everywhere with the object of prov- 
 ing "the time of coming of age or of minority." In practice there 
 was included in the burial registers even the burial of those who 
 had not received religious office. The Ordinance of Blois, May, 
 1579, which reenacted these precepts, borrowed besides, from the 
 Council of Trent, the keeping of a register for marriages whose 
 solemnization in the face of the Church was henceforth prescribed 
 under penalty of nullity. This matter was definitely regulated by 
 
 1 As to the proof of marriage, c/. Esmein, "Mar.," I, 191; "A. C, Artois," 
 ed. Tardif, 49, 5. — Italy: custom of keeping among the archives of the 
 churches the contracts of the marriages which had been celebrated therein: 
 "Nov.," 74, c. 5; Fertile, III, 264. 
 
 2 As to burials: Dig. X, 3, 28 and the Commentaries; G. Durand, "Specul.," 
 4, 3, "de sepult."; Lancelot, II, 24; Hericourt, "G.," XII. Cf. Friedberg, 
 § 95 (bibl.); "Siete Part.," I, 13. 
 
 ^ There are in existence such records from 1335 to 1350, and of the year 
 1378: "Mem. Acad. Dijon," 1865, XIII, 31; Viollet, 461. In Italy there 
 were still older customs: Pertile, III, 263. 
 
 ^ Cf. Thibeaud, p. 69. The papacy gave a preference to those which bore 
 the earliest date at Rome after the death of the one entitled to the office, 
 provided that the messenger sent wth the request had not started out before 
 the death: Fleury, "Inst, au Dr. eccl^s.," II, 21. If the date of the death was 
 not legally proven, frauds became an easy matter: Code of Henry III, 1, 17. 
 
 864
 
 Topic l] CERTIFICATES OF CFV'IL STATUS [§ 576 
 
 the Ordinance of 1667, T. 20, and the Declaration of April 9, 1736.i 
 The depositing of the registers with the clerk of the royal judges 
 assured their preservation, and it was forbidden for the judges to 
 receive any other proof of civil status (excepting when no registers 
 had been kept or they had been lost).^ 
 
 § 576. Secularization of Certificates of Civil Status. — The 
 monarchy did not always keep up the observance of its laws in 
 matters of civil status with all the strictness which was desirable. 
 Perhaps these laws would have been better respected if the keep- 
 ing of the certificates of civil status had been confided to public 
 functionaries who were more dependent upon the State than were 
 the clergy. This progress was only realized in the last years of 
 the Old Regime, and then only in the case of the Reformers. 
 Protestant ministers had at first kept registers of civil status ac- 
 cording to the example of the Catholic priests; but the Decree of 
 October, 1685, which revoked the Edict of Nantes, abolished this 
 practice. The Protestants were under the necessity of having 
 their children baptized by Catholic priests if they wished to have 
 a legal proof of their filiation; they had to be married before these 
 same priests in order that their marriage should be valid and 
 proved. The Edict of November 28, 1757, caused this inhuman 
 treatment to cease by allowing them to apply as they might wish 
 to the parish priests or to the oflScers of justice in the locality; 
 moreover, the parish priests in these cases set aside their religious 
 character in order to act as a public functionary. This was only 
 a half measure, because legislation had become secularized with 
 respect to those who were not Catholics, but remained religious 
 with respect to those who were Catholics.^ 
 
 * A double set of registers are kept, but ordinarily there is only one: Isam- 
 hert, Table, see "Actes de I'etat civil." Details given in Thibeaud, pp. 74, 
 81, 166, 169 (taking of holy orders), 101 (facts established "de visu" by the 
 parish priest, and facts which are reported to him by the persons making 
 the declarations); Sagnac, p. 261. 
 
 2 Italy: municipal registers of emancipation from the fourteenth century 
 on (they had begun by making a memorandum of these certificates, because 
 of their character, upon the registers which contained the decrees of the 
 communes). Registration of proclamations at about the same date. From 
 these customs there perhaps arose, in the fourteenth and fifteenth centuries, 
 the establishment of registers of civil status in the Italian towns, at first at 
 Sienna, at Bologna in 1454, etc. Nevertheless the system of registers kept 
 by the clergy prevailed until the time of the French Revolution: Fertile, 
 §105. 
 
 ' Isambert, Table, see "Actes de I'^tat civil," "Culte protestant"; Guyot, 
 see "Religionnaires"; Thibeaud, p. 224 (Alsatians), p. 174 (Jews); Declaration 
 of the 11th Dec, 1685: register of the deaths of reformers kept by the royal 
 judge. 
 
 865
 
 § 576] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 The Constituent Assembly, adopting a more radical system, 
 which was the only one in harmony with the principle of the free- 
 dom of conscience, secularized the registers of the civil status for 
 all Frenchmen, without any exception. Their keeping was en- 
 trusted to the municipalities by the Legislative Assembly, and to 
 the mayors and their deputies by the Law of the 28th Pluviose of 
 the year VIL^ 
 
 1 "Const." of 1791, 2, 7; Decree of Sept. 20-25, 1792; Thibeaud, p. 239; 
 Sagnac, p. 271. In Germany and Switzerland the secularization only dates 
 from 1875. 
 
 866
 
 Topic 2] 
 
 PERSONS UNDER A DISABILITY 
 
 [§577 
 
 Topic 2. Persons under a Disability 
 
 577. Status and Capacity of Per- 
 
 sons. 
 
 578. Foreigners or Aliens. 
 
 579. The Same. — (A) The Feudal 
 
 Law. 
 
 580. The Same. — (B) Trans- 
 
 formation of the seignio- 
 rial right into a domanial 
 right. 
 
 581. The Same. — (C) Nation- 
 
 ality. 
 
 § 5S2. The Same. — (D) Disability of 
 aliens or right of succession to 
 the estate of deceased aUens. 
 
 § 583. The Same. — (E) How did the 
 Crown's succession to the 
 estate of a deceased alien 
 disappear? 
 
 § 584. Those Civilly Dead. 
 
 § 585. Entering Rehgious Orders. 
 
 § 586. The Penal Civil Death. 
 
 § 587. Lepers and Outcasts. 
 
 § 577. Status and Capacity of Persons. — The enjoyment of 
 rights varied a great deal in the old times according to nationality 
 (foreigners, non-residents)/ religion ^ (clericals,^ monks, crusaders,* 
 heretics,^ Jews),^ social condition "^ (nobles, commoners, serfs,^ 
 slaves), and penal condemnations (civil death, public disgrace, 
 dishonorable professions). Sex, age, and infirmities, which to- 
 day have hardly any effect excepting upon the capacity " stricto 
 sensu" or fitness to exercise the rights which one has ("Handlungs- 
 fahigkeit"), formerly affected even the enjoyment of these rights 
 
 ^ As to the Bohemians or "gitanos" who appeared in France in the fif- 
 teenth century, c/. De Rochas, "Parias de France," 1876, see "Gr. Encycl." 
 
 2 Gierke, "Deutsch. Privatr.," § 54; Ruffiyii, "Liberia religiosa," 1901; 
 Bonel-Maury, "Hist, de la lib. de consc," 1901. 
 
 ^ Ponced, "Th^se," 1901; "Tract.univ. jur.," VIII (privilege of students, etc.). 
 
 * Bridrey, "Cond. jurid. des croisfe," "Th^se," 1900. 
 
 5 C/. "Wis.," 12; Dig. X, 5, 7 and the commentaries; G. Durand, IV, 4; 
 Lancelot, "Inst.," IV, 4; Corvin, IV, 7; H6ricourt, "E.," 24; Delamare, "Police," 
 II, 4; "Siete Part.," VII, 26; "Tract, univ. jur.," XI; Pollock and Maitland, 
 II, 542. — On the Inquisition see Lea, "Hist, of the Inquis.," French trans- 
 lation, 1900, and the articles by Alex. Bertrand, Ch.-V. Langlois; Douais, 
 "Doc. pour servir k I'hist. de I'Inquis."; "La proc^d. inquisit.," 1900; "Ann, 
 du Midi," 1902, XIV; "Mgr. Douais et I'Inquis." — As to the Protestants, 
 f/. "Code civ. interm.," see "Religionnaires." 
 
 * See among other texts, "Wis.," 12; Dig. X, 5, 6 and the commentaries; 
 "Capitul.," Table, see "Judsei"; see Du Cange; Delamare, "Police," II, 
 3; Britz, 509; Fischer, "De statu Jud.," 1763 (Metz); Stobbe, "Juden in 
 Deutschland," 1866; "Handb.," § 46; Gierke, "D. Privatr.," § 55; Pollock and 
 Maitland, I, 451; Pertile, 99; Glasson, VII, 74. Theses: Gasnos, 1897; Lucien 
 Brun, 1900; M.Maynial, "La quest, juiveen 1789," 1903; Fauchille, "La quest, 
 juive s. I'Empire," 1884; Iteinberg, "Z. Gesch. d. ludcn" (Switzerland), 1902. 
 
 ^ Heusler, § 36; Stobbe, § 46; Gierke, "Deutsch. Privatr.," § 46 et seq.; 
 Regnier, " TMse," 1900 (" Dist. des classes dans la socidt^ Allemende actuelle ") ; 
 Ritou, id. (Basques); "R. h. Dr.," I, 407 (Oviedo); Michelin and Legrand, 
 "Cond. des pers. d'ap. le Koran," 1879; Post, § 125; "Tract, univ. jur.," XVI. 
 
 8 Chopin, "Prii-il. rustic," 1875; "Tract, de privil.," 1582. 
 
 867
 
 § 577] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 or the fitness to have them ("Rechtsfiihigkeit"). This is what 
 we have already seen with regard to piibhc law and the family. 
 It remains only to complete upon a few points the explanations 
 which have already been given. 
 
 § 578. Foreigners or Aliens ^ were in the early times without 
 any rights in the social group to which they did not belong.^ 
 Everybody was free to ill-treat them, to make them slaves, or even 
 to kill them with impunity; there was nobody to avenge them.^ 
 It is in pursuance of these ideas that the shipwrecked sailor 
 belonged for a long time, body and possessions, to the lord of the 
 land where he came ashore.* 
 
 1 "Albanus" from "AIbi," elsewhere (popular Latin), "alibanum"; ety- 
 mology which is certain and which reheves us from the necessity of men- 
 tioning the current fanciful explanations. Charter of 820 giving the Bishop 
 of Paris jurisdiction "de incolis qui rustice albani appellantur," over the 
 land owned by Notre-Dame: Lasteyrie, "Cart, de Paris," 1887, I, no. 31 (dis- 
 cussion as to its authenticity). — Other names: "Peregrini" (pilgrims), see 
 Du Cange; "advense"; " alaienigenae " ; "Wargangus," "L. Fr. Cham.," 9; 
 "Roth.," 367, cf. "Wargus," the person outside the law (outlaw); various 
 explanations: a person who begs alms from house to house ("alilanti," which 
 is equivalent to "der Elende"); Grimm, "R. A.," II, 335; or a person who 
 is protected, "wara" meaning protection, ib., II, 143. Cf. "Sal.," 45: "homo 
 migrans," that is, a stranger in the village, the inhabitant of another village 
 who migrates; he is not a foreigner, i.e., one who is not an inhabitant of that 
 country; also there is no question of anything save a legal expulsion declared 
 against him. See also the collective responsibiUty of communities, ante, 
 § 356. English system of the frankpledge. Pollock and Maitland, I, 554. 
 
 2 The majority of them were malefactors, persons who had been banished, 
 exiles or else spies sent by the enemy. 
 
 3 Viollet, 265; Post, I, 448; Grimm, 396; Michelet, 'iOQ. — Salvien, "De 
 gub. Dei," V, 9; Meginhard (ninth centurv), "Transl. S. Viti," 13: "Transl. 
 S. Alex.," 13. Cf. "Burg.," 38, 39; "Ina,""'20: he is treated as a thief "si nee 
 vociferaverit nee cornu insonuerit"; thenceforth, if he takes care to call out, 
 he is neither killed nor reduced to slavery: Siegel, § 130. — As to the Moors, 
 cf. "Siete Part.," VII, 25; Dig. X, 5, 6; Glasson, VI, 662. 
 
 * Right to wreckage, "lagan" ("laga," law); see Du Cange; Pertile, III, 
 200. It is difficult to see in this an extension of the right of occupation of 
 "res nullius" which was admitted of by the Roman law, for the things which 
 happened to be cast up were not "res nullius," and the person who took pos- 
 session of them ran the risk of being punished as a thief: "Cod. Just.," II, 
 5, 1; Pact of Sicard de Benevent in 836. Cf., however, Zanetii, "Legge 
 Romana ret. coir.," p. 125; "Cod. Euric," 282; "L. Wis.," 7, 2, 18, ed. Zeumer. 
 Reprisals against the Normans and other pillagers must have contributed 
 towards the maintenance or even towards the development of the right to 
 wreck. According to certain very old documents, the Pagans regarded the 
 ocean as a cow which gave itself up to them; as soon as a vessel in distress made 
 its appearance they all ran down to the shore with drag-hooks in order to 
 take possession of the wreckage: Grimm, "R. A.," 250. In the eleventh cen- 
 tury the Church, going back to the Roman tradition, excommunicated those 
 who availed themselves of this barbarian right: Dig. X, 5, 17 (1179). Fred- 
 erick II abolished this right in his Constitution in favor of foreigners, in 1220, 
 c. 9: "M. G. H., L. L.," II, 243; Authentic "Navigia" under "C. J.," 6, 2, "de 
 furtis," 18; Schroeder, 520; "Const. Sic," I, 29; "R61es d'Ol^ron," 29. But 
 it still continued to exist in many places under the name of local custom. 
 The "Ass. de Jer." "C. des B.," 46, had also done away with it. In France 
 
 868
 
 Topic 2] PERSONS UNDER A DISABILITY [§ 578 
 
 Hospitality ^ imposed by Customs,- and sometimes by the law;^ 
 tempered the severity of this right; the foreigner ceased to be 
 treated as an enemy as soon as there could be found a member 
 of the community to take him under his protection, to become 
 surety for him, and to admit him as a guest in his own family.'* 
 So the first aim of the foreigner came to be to find himself a 
 patron (from this arose the old custom of going to sit at the 
 fireside of the family under the protection of the household gods). 
 
 Following the invasions and the mingling of races which 
 was the result of them, and following the establishment of 
 the Frankish State, whose subjects were of various nationalities, 
 and following the conversion of the Alamans to Christianity and 
 the influence of the Roman customs, the prejudice against 
 foreigners lost its force. Those who belonged to the divisions 
 of the Frankish State were not looked upon as foreigners when 
 this State was divided up into several kingdoms; this division 
 was often only provisional, and there subsisted a certain moral 
 unity and rather frequent relations between the new States. But 
 still more than the nationals did strangers find themselves under 
 the necessity of having a patron {cf. "right of the lord"). The 
 patronage of the king had always been especially sought, because 
 it was more effective; it alone was exercised in a beneficial way 
 over the travelers and the pilgrims who were passing through the 
 
 a treaty of 1231; Ordinance of 1277, 1461, etc.; Isambert, Table, see "Bris 
 et naufr."; D. Vaissette, V, 1114. Cf. "Aucassin et Nicolette," ed. Suchier. 
 The Ordinance of 1681, 4, 9, 1 and 4.5, placed under the protection of the king 
 vessels which were wrecked, and punished with death those who lighted fires 
 at night on the shore in order to attract and shipwreck them. As the right 
 of wreck disappeared it became necessary to determine what was to become 
 of the things washed ashore which nobody claimed. Cf. the Ordinances of 
 154.3, 1.567, etc. — Pappafava, p. 22 (bibl.); Linyer, "Le Dr. d'epaves dans 
 la 16gisl. actuelle," 1903. 
 
 1 Cf. Post, I, 449; Osenbnlggen, "Stud.," p. 19; "Dig. Ital.," see "Alberghi"; 
 Lehmann, "Abhandl.," 1888. 
 
 2 Texts of Scripture: "Exodus," xxii, 21; xxiii, 9; "Leviticus," xix, 33, and 
 xxxiii, 22; "Deuter.,"x; xviii, 19. 
 
 3 Cwsar, VI, 23; Tacitus, "Germ.," 22; "Burg.," 38: penalty against any 
 one who sends away a guest refusing to receive him, and against the Bur- 
 gundian who sends him to a Roman; Cassiod., "Var.," 14; "Bai.," 3, 14; 
 Capitulary of 802, 27 (I, 96); Anseg., I, 70; Capitulary of 803, 20, etc., I, 
 131, 193, etc.: Bened. Lev., I, 364. Cf. Rozihre, "Form.," nos. 27 et seq. — 
 Grimm, "R. A.," 400. Rights of the passer-by: "Roth.," 3.58; "Wis.," 8, 
 4, 27, etc. — "Cout. de Bigorre," 24; "Wis.," 11; "Barcelona," 629 (peace 
 of the roads). 
 
 '' On principle the foreigner observes the law of his patron, but the king 
 sometimes authorizes those who are under his protection to live according 
 to the law of their domicile of origin: "Roth.," 190; Rozikre, no. 27 (Jews). 
 Cf. post: "guidaga," "ducatus," during the feudal period, for the foreigner 
 who is only passing through, or the merchant: Dareste, "N. R..H.," 1903, 483. 
 
 8G9
 
 § 578] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 kingdom. It became subsidiary, that is to say, the king made 
 himself a patron of those who had no patron.^ For this protection 
 the king collected an annual rent, the "Wergeld" and the in- 
 heritance of those who were subject to it,^ at least, if they died 
 without heirs. By means of an order ^ it was prescribed that 
 the "missi" should draw up a list of the foreigners who were 
 found within their circle of inspection.^ 
 
 § 579. The Same. — (A) The Feudal Law ^ continued the Bar- 
 barian law, but emphasized it. Instead of becoming the exclusive 
 monopoly of royalty, the patronage of aliens and the beneficial 
 rights which it admitted of became dispersed more and more 
 among the lords. ^ Annoying consequences resulted therefrom; 
 (a) thenceforth the individual who does not belong to the lords' 
 domain is looked upon as a foreigner, even if he be a Frenchman; ^ 
 (6) at the same time, the greed of the lord's treasurer exaggerated 
 his rights over aliens, as over other persons of inferior condition 
 besides. The alien had to declare himself the man of the lord upon 
 whose lands he established himself; ^ he was ordinarily granted for 
 this a period of a year and a day,^ at the expiration of which he 
 
 1 Schmid, "Ges. d. Angels.," p. 126; Council of Paris, 996 (D. Bouquet, 
 X, 627); I, 125. Also with regard to the Jews, it seems that the king, from 
 the Frankish Period on, exercised over them a general patronage. • At the 
 same time this point is one which has been discussed: Gierke, "D. Privatr.," 
 I, 438. 
 
 2 "L.Fr.Cham.,"9; "Ina,"23; "Cnut,"40; "Bai.,"4, 30; "Capit.," I, 447, 
 c. 2; Mabillon, "Ann. Ord. S. B.," II, 699; Miihlbacher, "Reg.," no. 152. 
 The Lombard law, "Roth.," 390, does not allow them to dispose of their 
 possessions "absque jussione regia"; however, if they have any legitimate 
 children the latter wiU receive them in their capacity of heirs. Can they 
 receive an inheritance? It would seem not (argument to the contrary in the 
 Capitulary of 806, c. 9, "Divisio regni": the subjects of those kingdoms 
 estabhshed by having been divided may succeed one another); "Epist. 
 ad Offam." Cf. "Rib.," 31, 3; 36. 
 
 ' Particular measures, such as the "Praceptum pro Hispanis," 812, 815. 
 See also Imbart de la Tour, in the "Mel. P. Fabre," 1902 (agricultural colonies 
 and occupation or cultivation). Cf. German colonies, Blondel, Meitzen, 
 op. cit. Cf. See, "Classes rurales," p. 62; Flach, "Orig.," II, 139. 
 
 ' Capitulary of 803, 6, and of 806 (I, 115, 447) ; Bened. Lev., VI, 222; " App.," 
 II' 4. 
 
 * Du Cange, see "Albani," etc.; "Glim," see Table; Ragueau, see 
 "Aubaine." 
 
 ^ Terms: estray, unrecognized, alien, etc.: Du Cange, see "Forenses"; 
 Rastall, see "Foreign." — Fertile, III, 193. 
 
 ' Strangers to the bailiff's jurisdiction, to the diocese: Loudunois, 2, 5; 
 "Tour.," 2, 3; Brussel, "Us. des fiefs," III, 16; Stobbe, I, 310. 
 
 8 During the year and a day the alien may declare himself to be the man of 
 another lord or of the king: "Et. de St. Louis," II. 30; "Agen," 33 (a year 
 and a month within which to choose one's lord); Laroque-Timbaut, 51; Loysel, 
 44. Sale of the " justitia albanorum." Act of 1232 cited by Demangeat, p. 99. 
 
 3 Oath of aliens: "Gr. Cout.," 2, 29. The ahen keeps his station; if he is 
 a commoner he does not become a serf, etc. 
 
 870
 
 Topic 2] PERSONS UNDER A DISABILITY [§ 579 
 
 could be seized, body and possessions.^ Assuming that he made 
 the declaration, he was often treated like a serf ,2 and this is what 
 happened in the domains where serfdom was the rule, where the 
 "air makes one a slave" (excepting in the case of gentlemen) ; ^ on 
 the contrary, in domains where the "air makes one free," ^ or 
 serfdom does not exist or is only an exception, he is free. In the 
 former case his condition is easy to determine; let us notice 
 especially that he is subject to mortmain. On the second sup- 
 position, he is treated like the commoners of the locality in 
 which he lives, subject to the same rights, and, furthermore, 
 affected by incapacities which varied, the most common of these 
 being the following: his inheritance belongs to the lord ("liber 
 vivit, servus moritur"),^ at least if he does not leave any descend- 
 
 ^ "Et. de St. Louis," I, 92; 100. Difficulties arise as to these texts. The 
 mistake has been made of trying to draw a distinction between the foreigner 
 of unknown origin (c. 100) and the foreigner coming from a neighboring 
 feudal jurisdiction (c. 92): Viollet, p. 366, n. 5; Du Cange, see "Explectabilis." 
 
 2 Tliis comparison with the serf has been contested. But cf. Beaumanoir, 
 45, 19; Chateauneuf, II, 20; "Cout. d'Anjou," ed. B.-B., I, pp. 232, 311; Math. 
 Paris, "Hist. Angl.," in 1213. Prosecution of aUens: Du Cange, see "Albani." 
 Marriage out of one's station: Bacquet, op. cit.; "Chalons," 16 (argument to 
 the contrary). Rent, "cens," "census," " forasticus " : Deynangeat, p. 100 
 et seq. (texts of the eleventh century); Viollet, "Et. de St. Louis," IV, 303. 
 Mortmain: "Et. de St. Louis," II, 31 (II, p. 439); "Jostice," p. 255; Loysel, 
 68, 101; Ragueau, see "Parcours." — "Wildfange" (especially in the Palat- 
 inate): Grimm, "R. A.," 327, 399. — In the same way the Jews were consid- 
 ered " servi principum " : 5<. Thomas, "Summ. theol.,"sec. q.x., Art. 2; "Schwab- 
 enspiegel," 260 (214). They were not foreigners properly speaking, for they 
 did not come from some outside country. In the Prankish Period they had 
 already been placed under various disabilities which were not due to anything 
 but religious prejudice; but they were not likened to slaves: Edict of Chlot., 
 2, 10; Capitulary of 850, c. 24. How does it happen that their position 
 became worse afterwards? Heusler, § 35. Influence of the crusades. 
 
 ' Vitry, 72; see Ragueau. 
 
 * Beaumanoir, no. 972, ed. Salmon; Larroque-Timbaut, 53. The majority 
 of the municipal charters provide for the settling of the foreigner: Loysel, 
 24; "Toulouse," 155, 1.56; "Lezat," 2; "Montpellier," 31, 45, 93, 105; "Albi," 
 4; "Agen," 33; "Charroux," 3; "Martel," 18; "Apt," 38, etc. Sometimes 
 they provide for favors to be conferred upon the foreigner: Fertile, III, 290. 
 Protection by way of guidance, safe-conduct, an escort, especially when fairs 
 and markets were being held: Huvelin, "Th^se" (escort, letters); Du Cange, 
 see "Ducatus," etc. Opposition between the inhabitants and the citizens: 
 Soulatges, "Cout. de Toulouse," Municipal Ordinance of 1731. — German 
 " Gastgerichte " : Osenbrilggen, op. cit. England: {Lehr, p. 27) mixed juries, 
 Court of Piepoudre (for alien merchants). Cf. as to this expression, "L. 
 Burg.," 140; "L. d. Dr.," no. 486. 
 
 ^ To allow a foreigner to inherit, would have been to have allowed him to 
 take out of a lord's domain the property which was to be found therein, 
 which amounted to the same thing, according to the ideas of tliat jieriod, 
 as the commission of a species of theft at the expense of the lord. Sometimes 
 he was absolutely refused the right of inheriting, sometimes the lord was 
 allowed to keep a portion of his possessions. The lord was authorized to 
 enforce a restraint of this same nature over the possessions of the person 
 who left his domain ("gabella eraigrationis"): Stobbe, I, 312, 316. Fre- 
 
 871
 
 § 579] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 ants born in the lord's domain; ^ he cannot make a will,^ nor can 
 he inherit upon intestacy or by will; he is forbidden to acquire 
 lands ^ or to exercise any public function; ^ his penalties are more 
 severe and his taxes are higher; ^ he is subject to reprisal,® to ar- 
 rest or distraint carried out by an individual/ and to expulsion. 
 The reaction against this severe treatment thus inflicted upon 
 the foreigner came from the Church and the monarchic power. 
 In 1220 the Authentic "Omnes Peregrini" of Frederick 11,^ 
 
 quently the inheritance of the foreigner was found to be without an heir to 
 take it, for his relations were either unknown or far away. Cf. Fertile, III, 
 189. Possibly these ideas would not have sufficed to give rise to the right to 
 the succession to the estates of deceased aliens, but they had a sufficient 
 amount of influence to keep up, on this point, tradition wliich was hostile to 
 the foreigner and which refused to give him any rights: Brunner, "D. R. G.," 
 I, 275. 
 
 1 "A. C, Verm.," nos. 140, 141 (right to make a will): Pertile, III, 196; 
 "L. d. Dr.," no. 376. 
 
 2 Cf., however, "Et. de St. Louis," loc. cit.; "A. C, Verm.," p. 80; Picot, 
 "Hist, des Etats Gen.," I, 469. 
 
 3 "Sal.," 45; "Salon": consent of the Court: Giraud, II, 260. Italian 
 Statutes: Pertile, III, 191. Sometimes prohibition of giving any marriage 
 portion to the woman who married a foreigner, ih.; especially in Italy and 
 in Germany: Stobbe, I, 310 ("landsassiatus plenus"). Repurchase of mer- 
 chandise: "Montpelher," in 1205, 6. In England, until 1844, foreigners 
 could not acquire any immovables (or ships) by any right whatsoever, under 
 penalty of having them confiscated. The foreigner married to an English- 
 man could not therefore have any dower, and the foreigner married to an 
 Englishwoman could not enjoy the advantage of the curtesy of England: 
 Blackstone, II, p. 54, French translation. Cf. on the establishing of these 
 rules, Pollock and Maitland, I, 445 (relations existing between France and Eng- 
 land). In Languedoc the Jews possessed lands: Saige, op. cit. But this 
 was not generally so. 
 
 * "Aries," "Salon," "Carcassonne," etc.: Giraud, II, 131, 153, 254. Italian 
 Statutes: the position of notary, or of advocate: Pertile, III, 190. Sometimes 
 even he was excluded from the practice of certain professions. They could 
 only become members of corporations after the Edict of August, 1776, Art. 
 9. "Montpellier," 109: they could not fall back upon the legal tariff for 
 merchandise; their testimony was not admissible in court; surety "judic. 
 solvi," ib. In their case penalties were more severe ("Aries," 17, 18) and 
 procedure more strict, ib. Creditors who were members of the nation were 
 given preference over foreign creditors. — Marriages between members of 
 the nation and foreigners sometimes burdened with formalities, and at other 
 times looked upon with favor: "Montpellier," 93. — Tonneins, 91. J. Faure 
 questions as to whether a foreigner may be a guardian, I, 26a (cf. Table). 
 
 ^ Aries, 1235, in Giraud, II, 6 et seq. Cf. penalties at fairs: Huvelin, 
 "These," p. 467. 
 
 « "Montpelher," 23, 29 to 34; "Carcassonne," 138; Pasquier, "Inst.," 176; 
 Stobbe, I, 318; Fertile, § 34; Pappafava, p. 29; Huvelin, p. 44.3; Del Vecchio 
 and Casanova, "Rappresalie n. communi medievali" (Florence), 1894. 
 
 7 '-'Montpellier," 29 et seq.; "Aries" in Giraud, II, 165; "Albi," 5; Martel, 
 19, 23; "Bord., A. C," 101; "Arch. leg. de Reims," I, 38; Pertile, III, 191. 
 No giving up of possessions: Ordinance of 1667, 34, 1; 1673, 10, 2; Stobbe, 
 
 I, 318. Cf. franchises of fairs: "Cod. Just.," 4, 60, 1; Huvelin, "These," 
 p. 438. 
 
 8 "Const. Frid.," II, § 10; following the "L. Feud." (or "M. G. H., L. L.," 
 
 II, 243, c. 8); Authentic on "C. J.," 6, 69; Isambert, III, 128. Pertile, III, 
 
 872
 
 Topic 2] PERSONS UNDER A DISABILITY [§ 580 
 
 re-enacted by Louis the Headstrong in 1315, granted them the 
 right to make a will, and, if they had no heirs at law or testa- 
 mentary heirs, conferred their possessions upon the poor or upon 
 the Church. It is true that these provisions were scarcely ever 
 applied. At the same time, local causes which were more effica- 
 cious, — relations, commercial or otherwise, between towns and 
 lords' domains, — caused the right to the succession to the es- 
 tate of a deceased alien to disappear, especially in the interior of 
 the kingdom.^ Sometimes, for example, at Nice, in the thirteenth 
 century, one finds the principle of reciprocity established; there 
 foreigners were treated in the same way as the inhabitants of Nice 
 were treated in their country.^ 
 
 § 580. The Same. — (B) Transformation of the seigniorial right 
 into a domanial right. Through an evolution similar to that 
 which took place during the Frankish period, the avowry of the 
 king became subsidiary but ended by being exclusively recognized. 
 In the domain of the crown every alien who had not been made 
 one of the lords' men within a year and a day became the king's 
 man.^ In time the alien could not, indeed, recognize any other 
 lord than the king; this was so from the thirteenth century in 
 the District of Orleans.^ About the same period an Ordinance 
 inserted in the "Olim" of Parliament, II, 456, under the signifi- 
 cant title of an "Ordinance Relating to People Subject to Mort- 
 main, Aliens and Bastards," bears witness to the frequency of the 
 contentions between the lords and the agents of the king with re- 
 lation to the inheritances of these three classes of persons.^ Only 
 the rights of the high lords-justices are recognized; moreover, it 
 was necessary that there should be no adverse possession. During 
 the reaction which took place after the reign of Philip the Hand- 
 some these rights were still recognized in 1315. But at the end of 
 
 195, cites earlier provisions enacted by the Holy See as applying to its domain 
 (1169). CJ. texts which confer one-half of the inheritance upon the host 
 and the other half upon the town. The host took the clothing of the foreigner : 
 Stohhe, I, 315. 
 
 1 "MontpeUier," 30; "ChAtelblanc," 1303, Arts. 5 and 6; "Chatillon," 
 Art. 25 {Giraud, 11,346); "AIbi," 1220, 1 and 2; "Saint-Maurin," 13.52, 2, 
 etc.; "MontpeUier," 108, 114; R. Caillemer, "Admin, de success, par les pouv. 
 publics," 1901. 
 
 ^ Fertile III 197. 
 
 3 "A. C.', Champ." (B. de Richehourg, III, 218). 
 
 * "Et. de St. Louis," II, 31. Cf. Charter of Juvisy in 1136; Glasson, 
 VII, 67. A similar evolution as far as the Jews are concerned: "Schwab- 
 ensp.," 214 (w.): they are the serfs of the "camera" (treasurer) of the 
 Roman king. 
 
 » "Olim," II, 4.56; III, 211, 223; Vuitry, "Et. s. le r6g. fin. de la France," 
 I, 442; Ducoudray, "Orig. du Pari.," p. 809. 
 
 873
 
 § 580] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 the fourteenth century (1386) Charles VI was seen to appropriate 
 to himself the inheritance of aliens throughout the whole of Cham- 
 pagne, no matter in what jurisdiction of high justice they might 
 have died.^ The same phenomenon of concentration had taken 
 place in the domains of the great feudatories. As the king inherited 
 from them, a universally royal succession to the estate of the de- 
 ceased alien ^ was the system which was in force from the sixteenth 
 century, excepting under certain Customs which, stopping half 
 way along this path, still connected the right of succession to the 
 estate of deceased aliens with high justice.^ This change had happy 
 consequences for foreigners. It made their condition uniform and 
 moderated it; at the same time, it diminished their number, be- 
 cause there was no longer any question of foreigners to the lord's 
 domain, but only foreigners to the kingdom. 
 
 § 581. The Same. — (C) Nationality.'^ Feudal particularism for 
 a long time obscured the idea of nationality; one was a Breton or a 
 Gascon rather than a Frenchman. But with the absolute monarchy 
 and the long wars against neighboring peoples this idea became 
 rooted in public opinion just as it did in the law. The fact of birth 
 decided first of all what was one's nationality; anybody who was 
 born on French soil was a Frenchman, whether his parents were 
 French or foreigners (" jus soli ").^ In the sixteenth century there 
 were certain disputed cases; in the eighteenth century a new prin- 
 ciple came to light in some cases, that of the "jus sanguinis." It 
 was said that nationality and the attachment which one has 
 for a country could not depend upon an accident such as birth 
 during the progress of a journey or during a very short and some- 
 times compulsory sojourn. Chance should no more create nation- 
 ality than it does relationship. Thenceforth there is a tendency to 
 
 » "Ord.," VII, 156; Desmares, 295; Lecoq, 290. 
 
 2 When he delivered letters of naturalization, the king took away from the 
 lords their right to the estates of deceased aliens. 
 
 ^ Exceptions: Ragueau, see "Aubenage"; Duvioulin, on "Anjou," 41; 
 "Maine," 48; "Tours," 43; Loysel, 71; Glasson, VIII, 296. But in the eight- 
 eenth century no attention was paid to Customs which might be contrary 
 to this, the sovereignty of the king not being subject to prescription: Argou, 
 
 * G. de Lapradelle, ''Nationality d'origine," 1S94. 
 _ ^ The English law is one of those which most logically have admitted the 
 "jus soli" (c/., however. Pollock and Mnitland, I, 441: discussion in 1343; 
 Blackstone, II, p. 54, French translation): whoever is born on English soil 
 is an Englishman, whether his parents were English or not; and no one 
 else is an Enghshman (excepting he be naturalized); on the other hand, 
 he who is born an Englishman can only cease to be such with the consent 
 of the sovereign (perpetual allegiance). Oath of allegiance: Blackstone, II, 
 p. 46. 
 
 874
 
 Topic 2] PERSONS UNDER A DISABILITY [§ 581 
 
 take into account the nationality of the parents in order to de- 
 termine that of the child ; ^ thus the child who is born abroad of a 
 French father is a Frenchman, — unconditionally if the father 
 has not given up all expectation of return; ^ and, upon condition 
 of setting up a domicile in France, if he has given up this expec- 
 tation. Conversely, the status of being a Frenchman is lost by 
 the establishment of a domicile abroad without expectation of re- 
 turning.^ In case there is a return to France, then, "ipso facto," 
 one becomes once more a Frenchman (without any retroactive 
 effect). 4 
 
 Foreigners became Frenchmen, apart from the annexation of 
 territory, by becoming naturalized. At first only the connection 
 with some lord's domain or the acquiring of citizenship in some 
 town was recognized ; later on the citizenship of the king, when it 
 took on a personal character, served as a preliminary step to the 
 acquiring of nationality. From the.nyddle of the fourteenth cen- 
 tury the king could give letters of naturalization without consult- 
 ing any special body of citizens.^ There were no other conditions 
 required than the pleasure of the king.^ At the same time, 
 scarcely any people were naturalized excepting those who resided 
 in France.^ The delivery of these letters ^ ordinarily was based 
 on the payment of a fee which was in proportion to the fortune 
 
 1 Blackstone, II, 57, French translation, says that in this, differing from what 
 takes place in England, a child born in France of foreign parents is a for- 
 eigner. But Pothier, nos. 43 et seq., says the contrary. 
 
 2 Pothier, no. 65; "Arr. de I'Anglaise," 1576; Boerius, "Decis.," 13. But 
 cf. Glasson, VIII, 282; Racquet, II, 128. 
 
 ^ Penalties agaiast the Protestant Reformed refugees under Louis XIV; 
 the revolutionary legislation against the emigres is nothing more than an 
 imitation of the provisions taken by the Old Regime against the Protestants: 
 Maria, "Acad. leg. Toulouse," 1903. 
 
 * Pothier, nos. 62, 63, 66 (details). 
 
 5 Manuscript letters cited by Viollet, 372, 1 (in 1341: we declare A. G., 
 together with his children already born and to be born, to be our citizens 
 of Paris, of Montpellier and of all our kingdom) and 2 (in 1340). Viollet, 
 371, cites a case (which is very exceptional) of naturalization by the lord 
 in 1497. — See Ferriere. — Glasson, VIII, 286, distinguishes between letters 
 of naturahzation and letters of a declaration of intention of becoming nat- 
 uralized. 
 
 ^ The giving of letters of naturalization gave rise to abuses; too many 
 of them were given. The "Etats de Blois," 1576, asked that they only be 
 granted to those who had resided ten years in France: Bacquet, p. 73. A 
 Declaration of February, 1720, revoked all letters granted to non-residents. 
 — The English law placed many obstacles in the way of naturalization and 
 did not allow a naturalized person to sit in Parliament. 
 
 ^ In old times the attainment of citizenship assumed ordinarily the es- 
 tablishment of a residence, the acquiring of a house or lands: "Aries" in 
 Girnud, II, 89; "Salon," ih., p. 248. 
 
 ^ Registration in the Chamber of Accounts: Pothier, no. 51. Entering 
 (Edict of Dec, 1703): Glasson, VIII, 284. 
 
 875
 
 § 581] STATUS AND CAPACITY OF PERSOXS [Chap. VI 
 
 of the person becoming naturalized.^ Sometimes these letters 
 were collective,^ and they were then practically confused with 
 that which is ordinarily called the " benefit of the law." The natu- 
 ralized foreigner, on principle, had the enjoyment of the same 
 rights as native Frenchmen ; ^ but his children only had the ad- 
 vantage of this naturalization if they had been expressly included 
 within it. 
 
 § 582. The Same. — (D) Disability of aliens or right of succes- 
 sion to the estate of deceased aliens "sensu lato." Aliens were ex- 
 cluded from ecclesiastical benefices and public office,^ even from 
 guardianship.^ But they had the enjoyment of many private 
 rights; the distinction between those which were refused them 
 was rather arbitrary and rather to be connected with old tradi- 
 tion. ]\Ioreover, there was a tendency for this doctrine to depart 
 from its theoretical foundations; it granted to aliens the enjoy- 
 ment of those rights which formed a part of the law of nations 
 and refused them rights based on local law, — a learned stand- 
 ard, but one which did not have any great practical bearing.^ As 
 a matter of fact, the acquisition even of immovables and granting 
 "inter vivos" were allowed them, — for example, the gift. On the 
 other hand, they were incapable of acquiring and giving *' causa 
 mortis" (right of succession to the estate of a deceased alien "sensu 
 stricto"); thus they could not receive any inheritance upon in- 
 testacy or by will; ^ nor could they have heirs at law (with the ex- 
 
 1 Exception (Viollet, p. 372), for Laurent de Medicis, 1519. 
 
 2 Converted Portuguese Jews, 1550. Workmen of the Gobelins, of Beau- 
 vais, etc. Declaration of 1687: those who have served five years in the army 
 or navy. 
 
 3 A few restrictions: Demangeat, p. 166: Ordinance of Blois, 1579, 4; Warn- 
 koenig, II, 1S7. Exemption from the right of taking the estates of deceased 
 alieas only conferred rights of succession: Pothier, no. 60. Denization in 
 England differs from naturaUzation, although it carries with it some of the 
 effects of the latter; it results from letters patent from the king, whereas 
 naturaUzation has for a long time required an act of Parliament. The den- 
 izen became a British subject, but had not the same rights as an Englishman 
 by birth. He could acquire lands, excepting by succession or grant from 
 the king; he remained subject to the special taxation which affected for- 
 eigners; he could not hold public office nor have a seat in Parliament: Black- 
 stone, II, p. 53, French translation; Pollock and Maitland, I, 443. 
 
 * Pothier, loc. cit.; Glasson, VIII, 287, 303 (special provisions against for- 
 eigners). 
 
 6 Also in the application of these disabilities there are controversies which 
 it is practically impossible to settle: the alien is recognized as having a right 
 to marry, to contract, and to acquire ownership; but can he gain by prescrip- 
 tion? Can he make use of the repurchase by a person of the same lineage, 
 etc.? Glasson, VIII, 290. 
 
 fi The foreigner can have a domicile, which is a piece of property in fact. 
 
 ^ Cf. treatises on the law of succession, for example Lebrun. According 
 
 876
 
 Topic 2] PERSONS UNDER A DISABILITY [§ 582 
 
 ception of their legitimate children born and residing in France) ^ 
 nor dispose of their possessions by will (they only had a right to 
 make a will of five sous for the salvation of their soul).^ They 
 could marry and enjoy the majority of the family rights.^ Out- 
 side of civil disabilities the foreigner was subjected to certain rules 
 of procedure in the absence of which he w^ould have been able to 
 "suck the blood and the marrow of Frenchmen and then to 
 pay them by becoming bankrupt and by going back to his own 
 country." 1st. The plaintiff who is a foreigner must provide a 
 surety "judicatum solvi," that is to say, a surety guaranteeing 
 the payment of any sentence pronounced against him.^ 2d. The 
 Ordinance of 1667, 34, 1, restricting the application of insolvent 
 arrest, applied only to natives; the privilege of the assignment 
 of property was refused to foreigners. 3d. Foreigners could be 
 sued before the French tribunals by Frenchmen ^ (or even by 
 
 to Viollet, this rule dates from the fifteenth century, for privileges previous 
 to that time make no mention of it: "Ord.," IV, pp. 52, 430, 670. It is quite 
 certain that they could not succeed another alien, because the latter's pos- 
 sessions went to the Treasury. But we do not see why they could not re- 
 ceive the property of their French relatives. We are inclined to think that 
 the silence of the old texts is to be accounted for in another manner; in the 
 old times cases of relationship between natives and foreigners were very 
 rare; when they became more numerous there was a tendency in this direc- 
 tion. Loysel, 67: foreigners living outside of France could receive property 
 situated in France by way of succession. This in our opinion is erroneous. 
 Cf., however, Glasson, VIII, 294. 
 
 1 Only "the heirs procreated of his body in lawful marriage" succeeded 
 to the alien, to the exclusion of the king: "Et. de St. Louis," II, 31. Having 
 native-born children was equivalent to the alien's having letters of naturaUza- 
 tion; for the Treasury having no further interest, it became possible to abide 
 by his last will and testament: Loysel, 70. 
 
 ^ It is hard to believe that the right to make a will, which was looked upon 
 with so much disfavor formerly, could have been given to aliens. Cf., how- 
 ever, a few exceptional texts: "Et. de St. Louis," III, 51, ed. Viollet'; "Cout. 
 d'Anjou," ed. B.-B., Ill p. Ix; "Const, de Verm.," p. 80; Viollet, 368. 
 
 ' Bacquet, 1, 4: formerly one must have the permission of the king in order 
 to marry. 
 
 * The giving of surety "judicatum solvi" is only the public nam of the 
 Customs to abide by the law, kept as an exception for the foreign demandant, 
 whereas formerly it was required for everybody, whether demandants or 
 defendants, natives or foreigners: Littleton, 198; Pollock and Maitland, I, 
 442; "Abbeville," 37; "Montpellier," 1205, Art. 2; Lnroque-Timbaut, 9, etc.; 
 Loysel, 858; J. Lecoq, 47, 49; Imbert, "Prat.," I, 30; Bacquet, VIII, 3. It is 
 said that the defendant no longer needs to furnish it because the defense 
 is a right of natural law: Stobbe, I, 317; Pappafava, p. 32; Glasson, "Proc^d. 
 civ.," I, 471. 
 
 * Even if he resides outside of France: J. Lecoq, 148. In matters relating 
 to real property, competence of the tribunal of the locality where the land 
 is situated; in matters relating to personal property, of the tribunal of the 
 domicile or the residence of the foreigner, or if he has none then of the de- 
 fendant's domicile. In the old times (Boutaric, I, 3), the courts were taken 
 to the frontier; later (Ordinance of 1667, 2, 7) to the houses of the Attorney- 
 General of the Parliaments: Ordinance of 1673, 12, 17. 
 
 877
 
 § 582] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 foreigners) ^ contrary to the ordinary rules of jurisdiction which 
 would have held that they should be judged in their own country. 
 We have already seen whether it was possible to apply the 
 national law in their case.^ 
 
 § 583. The Same. — (E) How did the Crown's succession to the 
 estate of a deceased alien disappearf This right, after having 
 been restricted as to its effects by the monarchic system, was 
 again partially done away with : (a) by means of exemptions for 
 the benefit of certain classes of foreigners (those who came to fairs, 
 merchants, Lombards, and Caorsins, Swiss and Scots in the service 
 of the kings, workmen employed in the royal manufactories, those 
 who held rents from the Hotel de Ville, and diplomatic agents) or in 
 certain localities (Toulouse, Lyons, Bordeaux, Marseilles, Langue- 
 doc, 1484, and the jurisdiction of the four great Parliaments 
 of the South, etc.); ^ (6) by means of international treaties; in the 
 
 ^ Louet, "C," 42, 3. Actions between foreigners were formerly judged 
 by their Consuls. Cf. on the institution of the consulate, treatises on in- 
 ternational law, for instance Bonfils-Fauchille, etc.: Valroger, "'^. R. H.," 
 1891; Goldschmidt, I, 181 and "Mitth. oest. Gesch.," XIII, 337; Schaube, 
 "Konsulatdes Meers in Pisa," 1888; "La proxenieau moyen age" ("R. h. Dr. 
 int.," 1896, 525); Pappafava, p. 32 (bibl.). A distinction must be made 
 between three kinds of consuls: 1st. The "baile" or national consul, a true 
 magistrate sent by the metropolis to the districts or factories of the East 
 (at least after the first crusade). 2d. The consul elected locally by a foreign 
 colony, when they did not have any consul "missus"; thus according to the 
 Statutes of Pisa {cf. ed. Bonani), wherever five natives of Pisa happened to 
 be they were allowed to choose a consul for themselves; this usage must have 
 been fostered by the custom of each trade body appointing its own head who 
 was often known as their consul; thus at Pisa, the "ordo maris" (those who 
 carry on mari time trade or exercise a profession connected with it) has its 
 consuls or "consuls of the sea"; the consuls "missi" or "electi" abroad are 
 naturally under them; but in France the consulate of the sea only existed at 
 Perpignan and Montpellier, to which places it must have come from Bar- 
 celona; the consular jurisdictions established at Toulouse, in 1549, Paris, 
 in 1563, and Marseilles, in 1565, are more probably connected with the judicial 
 powers of the consuls of the merchants; cf. also the jurisdiction of fairs (cus- 
 tody of fairs, and in the fifteenth century preservation of fairs). 3d. The 
 consul who might be called "proxene," because of the analogy with the old 
 "proxenies"; that is to say he is an inhabitant of a town where a foreign 
 colony has been established; this colony, with the consent of the metropolis, 
 makes a contract of hospitality with him; he will be the host,' the protector 
 and the judge of these colonists (example, consul of the inhabitants of 
 Narbonne at Pisa, in 1275: C. Port, "Essai s. I'hist. du comm. marit. de 
 Narbonne," 1854). The expansion of trade caused the consul to lose his 
 character of host; he ceased to furnish stores and lodgings and became merely 
 a patron and defender. This form of consulship was developed, especially 
 among the Germanic nations; thus until 1867, Prussia had only had foreign 
 consuls. 
 
 2 Should the French courts judge foreigners according to the French law 
 or according to their own laws (in proportion as the right to the estates of 
 deceased aliens ceased to exist)? 
 
 ^ Cf. details and texts in Demangeat, p. 198 et seq.: Glasson, VIII, 298; 
 Isamhert, Table, see "Aubaine," etc.; Pigeonneau, "Hist, du commerce," 
 
 878
 
 Topic 2] PERSOI^S UNDER A DISABILITY [§ 583 
 
 last half of the eighteenth century France thus entered into agree- 
 ments with sixty-six States, which abolished the right to the in- 
 heritance of deceased aliens;^ but this system, which was called 
 one of diplomatic reciprocity, still left in existence,^ ordinarily as 
 a reduction of this right, the right of "withdrawing" (a deduction 
 of from 10 to 20 per cent from inheritances which had devolved 
 upon foreigners)/ and the right of succession to estates of de- 
 ceased aliens itself once more came into existence if the treaty 
 happened to be repealed.^ The Revolution, being inspired by the 
 wtI tings of the philosophers,^ took more radical steps; the right of 
 inheriting the estate of a deceased alien was abolished in general 
 by the Constituent Assembly on the 6th of August, 1790, as 
 being "contrary to the principles of fraternity which ought to 
 bind all men together. " ^ This generous beginning found so little 
 echo in the other countries that the framers of the Civil Code 
 thought that France played the part of a dupe, and once more 
 
 I, 205 et seq. We see the Lombards as early as the twelfth century, "dis- 
 puting with the Jews the monopoly of trade, of banking and usury"; under 
 Philip the Handsome, they administered the royal finances, "conducted the 
 commercial and financial education of France." Later on, it was contended 
 that the inhabitants of Milan should be exempt from the effects of the right 
 to the estate of deceased aliens, because they had originally come from a 
 country which had belonged to the kings of France; but in the eighteenth 
 century this theory was abandoned: Britz, 509; Demangeat, p. 206; Glasson, 
 VII, 93. Merchants and inhabitants of Caor, in England: Pollock and Mait- 
 land, I, 447; Huvelin, "These," loc. cit. 
 
 1 Report of Roederer; Locre, "Legis. civ.," II, 117; Isambert, Table, see 
 "Traites.'/ 
 
 ^ The incapacity of transmitting was generally done away with; but the 
 foreigner only took the succession of his French relatives if he were naturalized. 
 
 ' "Gabella hereditatis, "Detractus reahs" as contrasted with the "Gabella 
 emigrationis" or "Detractus realis": see "Encycl. method. Jurispr.," Ill, 
 fJS7;Stobbe, I, 315; Gierke, "D. Privatr.," I, 450. 
 
 '' Declaration of war; ordinarily strangers had a certain time given them 
 within which to leave France; when tliis time had e.vpired they were liable 
 to arrest and to have their possessions confiscated. 
 
 ^ Montesquieu, "Espr. des Lois," 21, 17; Guerra, op. cit. Necker, in 1787, 
 pointed out that the fiscal advantages of the right to the estates of deceased 
 aliens were of very little importance in themselves, and that they were as 
 nothing compared to the impediments which its exercise i)laced in the way 
 of trade: Glasson, VIII, 298, 303 {Montchrestien, "Econ. polit.," p. 35 et seq.: 
 very hostile to foreigners; Babeau, "Ville," I, 20). 
 
 " This Decree, according to general opinion, only contemplated the in- 
 capacity of transmitting. The incapacity of taking was done away with 
 bv means of the Decree of April S, 1791, Art. 3: Decree of Aug. 13-17, 
 1791; "Const." of Sept. 3d, 1791, VI; Decree of the 5th Fruct., year III, 
 Art. 335; Viollet, p. 854; Sncjnac, p. 246. — Strangers were still subject to give 
 surety "judicatura solvi," and to physical compulsion (Decree of the 4th 
 Flor., year VI), etc. The law of the 28th Vend., year VI, allowed the govern- 
 ment the right of expelling them by means of a mere administrative pro- 
 vision, a right which, be it understood, the Old Regime had practised: "Code 
 civ. interm.," see "Aubaine," "Etrangcrs"; Glasson, VIII, 288. 
 
 879
 
 § 583] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 established the incapacity to grant and to receive by way of a gift/ 
 which had formerly affected foreigners, and contented themselves 
 with the suppression of the name of the right to inherit from de- 
 ceased aliens. The only thing which could make it disappear was 
 a treaty establishing reciprocity. This was a measure of reprisal 
 whose deplorable consequences were felt in the crisis which was 
 experienced throughout France following the wars of the Empire; 
 the Restoration re-enacted the abolition above referred to (Law 
 of July 14, 1819) with a view to drawing foreign capital into our 
 impoverished country. Thus from motives of interest it did what 
 the Revolution had done with a humanitarian motive. 
 
 § 584. Those Civilly Dead are, 1st, the monks, following their 
 renunciation of the world; 2d, those condemned to capital punish- 
 ment as a consequence of conviction. 
 
 § 585. Entering Religious Orders resulted in the eyes of the 
 Church in death to the world. From this it should have been con- 
 cluded that from the time of his entrance into a monastery the 
 monk could not acquire anything, and that the possessions which 
 he had at that time should pass to his heirs. But this is not the 
 role given to him by the Justinian law.- According to this legisla- 
 tion he becomes a sort of "alieni juris," who can have nothing of 
 his own, but who can receive for his monastery; all his present and 
 future possessions, even those he inherits from his relatives, go to 
 the monastery, without his testamentary heirs or heirs at law hav- 
 ing any claim whatsoever over them. The Theodosian Code did 
 not go so far as this;^ it made a distinction between the present 
 and the future; with respect to the future the personality of the 
 monk was absorbed by that of the monastery. He acted as a 
 means of receiving for the benefit of the monastery; with respect 
 to the past his possessions were conferred upon his testamentary 
 heirs or heirs at law; the monastery only took when one or the 
 other of these heirs was lacking. It is with the Theodosian tradi- 
 tion that the old French law seems to be connected.^ Once he had 
 
 1 Ci\al Code, Arts. 726, 912. Even by gift (contrary to the old law). 
 
 2 "L. Deo nobis," "Cod. Just.," 1, 63, 56, and Auth. "Ingressi," "Si qua 
 MuUer," "Nunc autem"; "Cod. Just.," 1, 2, 13; 1, 3, 20; "Nov." 5, c. 5; 76 
 and 123, 38; Gratian, c. 7, 9, 10, C, 19, q. 3; c. 11, 13, C, 12, q. 1; c. 16, 
 C, 18, q. 2; Dig. X, 3, 35, 6; "Petrus," 1, 24, 25, 26, 56 (reservation of the 
 "Falcidia, sic," for the descendants). 
 
 3 "Cod. Thcod.," 5, 3, 1; "C. Eur.," 335; "Wis.," 4, 2, 12. 
 
 * "Capitul.," Index, see "Monachus," "Monasterium," " Sanctimoniahs " ; 
 "Cap.," 1, 114 (authorization of the sovereign necessary before a free man 
 could enter a monastery); 1, 137 (the free man who becomes a monk may 
 give liis possessions to the monastery); 5, 379 (a monk leaves his monastery; 
 
 880
 
 Topic 2] PERSONS UNDER A DISABILITY [§ 585 
 
 entered a monastery/ the monk, stripping off his own personality, 
 could only receive for the benefit of his community; ^ in the same 
 way as children who were not emancipated could receive for the 
 benefit of their family. But the monastery did not take those 
 possessions which he had at the time of his entering it ; he was re- 
 garded as being dead at that time, and from this fiction there 
 arose two consequences: 1st, his inheritance vested for the bene- 
 fit of his relatives; ^ 2d, he was thenceforward incapable of in- 
 heriting upon intestacy or by virtue of a will, either in his own 
 interest or in the interest of the monastery.^ In this sense the civil 
 death with which he was affected was the equivalent of real death. ^ 
 
 all his possessions remain the property of the monastery, even those which 
 he did not take into the monastery); 5, 381 (id.); 6, 110 (all the possessions 
 of the monks belong to the monastery, even if they have children). Cf. 
 "Petrus," loc. cit. 
 
 1 As to the entering of religious orders see Loysel, 346. NulHty of tliis 
 if done secretly: Ordinance of 1566, 55; Declaration of July 10, 1566; Du- 
 moulin, on "Blois," 147; Louet, "C," 8, 42; Register of the taking of the 
 habit of a friar and of novitiates; Ordinance of 1667, 20, 15: Declaration of 
 April 6, 1736, etc.; Isambert, loc. cit.; D'Aguesseau, ed. 1772, IV, 49, 100. 
 As to the necessity that the Order be one recognized by the State, in order 
 that the entering of it should be valid, see: Le Vayer de Boutigny, "Autor. 
 des rois touchant I'admin. de I'Eglise," p. 234; "De I'autor. du roi touch. 
 I'age necess. a la prof, relig.," 1669, 1751; Landry, pp. 69, 73. 
 
 2 Innocent IV, "in t. de Privel.," c. 13, no. 3. Cf. "Nov." 5, 5 and 123, 38. 
 — "L. d. Droiz," I, 24; Bucherellus, "Inst.," p. 181; "Decis. Cap. Tolos.," 
 Table, see "Monachus." Monks could be called upon as witnesses before 
 the law, because their honor was absolute: Ordinance of 1670, 6, 3; represent 
 their Monastery before the court; have a benefice or a " peculium ": Laiidry, 
 p. 37. But they could not hold public office: Capitulary VI, 124, etc.; Bou- 
 taric, II, 2. A Conclave of Nantes, c. 19 {Labbe, IX, 473), forbade unmarried 
 women and widows consecrated to God to take part in the sittings of the 
 courts. — England: before the Norman conquest the fiction of civil death 
 does not seem to have been strictly enforced. 
 
 3 He could not make a will: "Lib. de I'Egl. GaUic," 26; Ordinance of 
 1579, 29; of 1735, 21; Landry, p. 45. 
 
 * Richer, p. 677, cites an Order of the Exchequer of Normandy in 1207; 
 Brodeau, on Louet, "C," VIII, 22, an order of the King's Court in 1225 
 (Lizet's note); Marnier, "Echiq. de Norm.," p. 116; Glanvill, 13, 5, 6. William 
 of Auvergne, Bishop of Paris, 1128-49, was filled with indignation at see- 
 ing children compelled to enter monasteries, "quemadmodum catuh et por- 
 culi quos matres non sufficiunt enutrire" with the object of having them 
 become civilly dead ("civihter moriantur"), that is to say, in order that they 
 might be deprived of their hereditary share: "Tract, de moribus," c. 9; P. 
 de Fontaines, p. 49; "Gr. Cout.," 2, 40; "Summa Norm.," 25, 10; Loysel, 
 345; "Paris, A. C," 132; Laurrikre, on "Paris," 337; Landry, p. 13. Nor could 
 they receive any gifts: Richer, p. 804. Cf. Loysel, 343 and Lauribre's notes. 
 Ecclesiastics inherited from their relatives, and their relatives from them; they 
 also had the right to make a will : Ordinance of 1368; "Stil. Pari.," 111,37. 
 According to the ancient custom the church with which they were connected 
 inherited at least the possessions which they had acquired since their pro- 
 motion to the priesthood: "Petrus," I, 26; Buche, "N. R. H.," 1884, p. 573. 
 
 8 "Capit.," I, 38, c. 16 (Compidgne); 40, c. 21 (Verberie); Dig. X, 4, 6, 3; 
 Council of Trent, s. 24, 9; Richer, p. 241. — "Sachsensp.," I, 25; "Preuss. 
 Landr.," § 1199. 
 
 881
 
 § 585] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 From the thirteenth century it is found to be accepted with all its 
 consequences by the Church as well as the State, at least in France. 
 There are two reasons which especially account for the French 
 Custom: (a) in the conflict which took place between families and 
 monasteries it applied the principle of the preservation of property 
 in families; like the man who is emancipated, the monk might 
 find himself impliedly disinherited, simply owing to the fact 
 that he had left the paternal house; in shutting up younger 
 children in a cloister, their parents often had no object other 
 than that of creating a better share for their elder children; ^ 
 (6) the disabilities of monks had their special place in the 
 old system of restrictions as against people in mortmain; it 
 was feared that they might monopolize all the possessions in 
 the kingdom.^ 
 
 At the same time that it did away with the religious orders, 
 the Revolution allowed the incapacity of inheriting which affected 
 their members to remain for some time; but a decree of the Con- 
 ventional so did away with this.^ 
 
 1 Law of May 24- June 2d, 1825, Art. 5: limitation, in the interests of the 
 family, of the right to dispose belonging to nuns who were members of an 
 authorized community (one-fourth of their possessions). 
 
 2 "Gr. Cout.," 2, 21, p. 258 (nothing shall escape them); Chassaneus, 
 on "Bourg.," 7, 13. 
 
 3 The Decree of Feb. 13, 1790, no longer recognized monastic vows; as 
 a consequence the rehgious orders were done away with; the monks were 
 free to leave their monasteries but were not obliged to do so. The civU death 
 which had formerlj' e.xisted was found to be abolished by these provisions. 
 — The Legislative Assembly, on the 17th and 18th of August, 1792, pro- 
 nounced the dissolution of religious communities; their houses were vacated 
 and their possessions sold as national possessions; it was desired "to dispel 
 the remains of fanaticism to which the former monasteries offered an all too 
 easy refuge." "Believing that a State wliich was truly free should not 
 allow the existence of any corporation in its midst, not even those which, de- 
 voted to public enlightenment, have deserved well at the hands of the father- 
 land," the Assembly also did away with every lay or religious corporation, 
 whether of men or of women, even those which were devoted exclusively 
 to the hospital service. The members of rehgious orders who were thus 
 expelled had a right to a pension, on condition of taking the oath of citizen- 
 ship, if they were men. The wearing of ecclesiastical clothing was forbidden: 
 Aulard, "La Revol. Fr. et les Congreg.," 1903. The Law of Feb. 13-19, 1790, 
 no longer recognized monastic vows, and yet the Law of Feb. 20, 1790, 
 declared that members of religious orders who should leave these orders 
 still remained incapable of inheriting and could only receive rents for life 
 by will or as gifts. However, according to the Law of March 19-26, 
 1790, they were to inherit before the Treasury. But a Decree of the 18th 
 Vend., year II, allowed them to inherit generally: Decree of 5 Brum., year, II, 
 Art. 4; 17 Niv., year II, Art. 3 (retroactiveness going back to July 14, 1789); 
 "Code civil interm.," Table, see "Religieux." In every other respect 
 they had gone back to civil life by 1790 (thus they could marry): Sagnac, 
 p. 252. As to the dissolution of congregations cf. expulsion of the Jesuits 
 in 1764: Gazier, "R. hist.," XIII, 308; Dounrche, "La banqueroute du 
 p. Lavallete" ("France judic," 1880-81, 1, 73); Couzard, "Deedicto Rothom,, 
 
 882
 
 Topic 2] PERSONS UNDER A DISABILITY [§ 586 
 
 § 586. The Penal Civil Death of the Old Regime makes one 
 think of the system of outlawry in the Germanic law, the 
 "capitis deminiitio" and infamy of the Roman law, and the ex- 
 communication of the canon law. The Germanic process of out- 
 lawry ^ meant a true civil death in the full force of the term, for the 
 individual who was subjected to it lost his possessions and his 
 family rights.^ The hanishnent of the Carolingian and feudal 
 times, which is only a milder form of it,^ made one lose the right 
 to appear in court, but did not deprive one of the right of living, 
 
 1603," 1900. See also the trial of the Templars, Ch.-V. Langlois, "Rev. 
 des Deux-Mondes," 1891, p. 384. 
 
 1 "Sal.," 56; "Chilp. Ed.," 10, etc. 
 
 2 Cf. formulae in Grimm, 40: you shall be outside the law, your wife shall 
 be a widow, your sons shall be orphans, your fiefs shall revert to the lord, 
 and your possessions go to your sons, your body shall become the prey of 
 wild beasts, etc. It would have been the same thing had they said that he 
 was looked upon as dead, and this is what was already done by the "Capit. 
 Saxon.," 797, 10; "Const. Sic.,"_2, 3; Alb. de Rosate, "de stsit.," 4, 14; "Inc. 
 Auct.," 2, 10, 3: "finitur (societas) morte natural! vel civih." — Outlaw, 
 "utlagatus," "exlex," in England: see Du Cange. — The German terminology 
 is a confused one: "rechtlos" (without any right); "ehrlos" (without honor); 
 "echtlos" (unlawful, without a right to be considered, "privatio legalitatis"). 
 The "Rechtlos" has a "wergeld" which is very small and sometimes a mock- 
 ery; "Sachsensp.," Ill, 45: a cartload of hay for the bastard, the shadow of 
 a man for the buffoon, the reflection of a shield in the sun for the champion, 
 etc. There is a question as to whether he lost his social rank, for example, 
 his title of nobihty. — Budde, "Rechtlosigkeit," 1842; Hildebrmul, "Entz. 
 d. blirg. Ehre," 1844; Gierke, "D. Privatr.," § 52 (bibl.). According to the 
 latter, the "Echtlos" or "elos" is confused with the "Friedlos." The 
 "Rechtlos," who cannot appear in court ("juri stare"), cannot be a judge, 
 a witness, etc., but keeps his family rights and has an inheritance; offenses 
 against him are punishable. One is "rechtlos": 1st. Because of a judgment 
 condemning to corporal punishment ("Hals und Hand," " Haut und Haar"). 
 2d. As a consequence of the exercise of a dishonorable profession. 3d. As 
 a consequence of being born out of wedlock. One is "ehrlos," generally 
 speaking, when one is declared to be so by a judgment; in a case of tliis sort, 
 one can neither lend nor be heard as a witness nor hold public office. 
 After the reception of the Roman law, the theory of infamy at law and in 
 fact overthrew these old ideas. As to the honor of each class of society, 
 cf. ib., I, 422, "Scalbarkeit," "Anruchigkeit," ib., and Stubbe, § 47. 
 
 ^ The effects of banishment have varied greatly according to localities, 
 but they have often preserved a great severity until a comi)arativcly recent 
 period. The man banished is "omni jure omnique actu legitimo ipso jure 
 privatus," according to the "Coast, pacis" 1235, 10. He loses his rank, 
 his fiefs, his judicial power; his property is confiscated; he can no longer 
 appear in court, either as a party or as a witness: "Sachsenspicgel," I, 38; 11, 
 51, 1. At Milan in 1216, the first comer would without fear of punishment 
 attack him in person or property. At Rome in 1425, his murderer was only 
 punished with a fine of twenty livres. According to the Venetian law, in 
 1531, liis nearest relations themselves cannot shelter him without incurring 
 the penalty of banishment. Even in the time of Alb. de Rosate the question 
 of the upholding of his marriage was still being discussed: "de statutis," 
 4, 4; according to general opinion there was no occasion for anything more 
 than separate maintenance. The "Jura min. Col.," 7, allowed liis wife 
 to receive him, but declared that their children would be illegitimate: Fer- 
 tile, § 101. 
 
 883
 
 § 586] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 if one can speak of it in that way,^ It was the same thing with 
 excommunication; and there was this special feature, that the 
 person excommunicated recovered his rights if he should be ab- 
 solved. The secular tribunals even ended by no longer taking into 
 account the plea of excommunication which was set up against 
 parties in order to avoid answering them.^ It was upon these 
 customs that the Roman ideas of the "capitis deminutio" and in- 
 famy ^ were superposed. The term civil death became a technical 
 one ■* and below it was placed infamy, with its two degrees, — in- 
 famy at law and infamy in fact. 
 
 Civil death was on principle likened to natural death, excepting 
 upon certain points where the too severe effects of the fiction had 
 been done away with by reason of humanitarian or religious 
 ideas. ^ Thus the person who was civilly dead was left free to per- 
 form those acts without which it would have been impossible for 
 him to live (to contract, to acquire for a consideration and to 
 appear in court through a guardian). Thus, again, although he 
 was held as being incapable of marrying in the future, the mar- 
 riage which he had already contracted before the judgment was 
 not dissolved; the religious tie of the sacrament was not affected, 
 
 1 As to the freebooter, the bandit, "diffidatus," "forjudicatus," etc.: 
 see Du Cange, and "Exterminare." Cf. Michelet, "Orig.," p. 398; "Bord., 
 A. C," 28 (part played by the dead); Beaumanoir, 34, 32; "C. d'Anjou," 
 L. 28. Cf. Beaumanmr, 34, 32; 30, 36; 39, 16; 61; P. de Fontaines, 13, 6 et 
 seq. (loss of the right to be heard and to reply in court); 17, 8; "Jostice," 
 Table, see "Forb."; "A. C, Bord.," 27, 42; 'Ass. de J6r.," I, p. 114; 
 "T. A. C, Norm.," 88 (devastation); "T. A. C, Bret.," 109; "Et. de St. 
 Louis," I, 28. 
 
 2 "Capitul.," V, 62; Friedberg, 104 (bibl.); Hinschius, § 261; Dig. X, 
 5, 39, etc.; G. Durand, "Spec," 4, 4; Lancelot, "Inst.," IV, 13; Hericourt, 
 "E.," 22. Measures taken by the secular power in order to lead persons who 
 had been excommunicated to repent; Capitulary of 789, 35 (I, 326; II, 214); 
 VI, 142; Ordinance of 1228, 1269, etc.; Corvin, "Jus. can.," 4, 43. But ac- 
 cording to the "Gr. Cout.," II, 4.5: "non repelluntur ab agendo." Ordinance 
 of July 3d, 1371 (the secular judges shall compel them to obtain absolution, 
 but they shall not be compelled to pay too dearly for absolution); "T. A. C, 
 Norm.," 2, 3; Giraud, "Essai," II, 31, 93, 121 ■,^Desmares, 155; "Et. de St. 
 Louis," I, 127; "L. d. Dr.," 645; Boutaric, II, 12; Pollock and Maitland, 
 I, 461; Viollet, "Hist, des inst. poht.," I, 380; II, 269. We have seen that 
 excommunication was used in order to give more force to rights {Briegleb, 
 "Gesch. d. Executiv. process," 1845, p. 132); against dead persons and animals: 
 D'Adossio, "Bestie delinquenti," 1892. 
 
 3 Stobbe, I, 364. 
 
 * As early as the fourteenth century the expression "civil death" was in 
 current use: Gui Pape, "Q.," 547. "de morte ci\'ih et naturali." 
 
 ^ In the latest stages of the law, civil death results from condemnation 
 to a natural death, to the galleys for life and to banishment for life. More- 
 over, the condemnation must have been pronounced after the defendant 
 has had a hearing, for the man who is condemned by default is in a special 
 position. Cf. as to this position, Pothier, no. 98. See also Humbert, p. 193 
 (validity of contracts in the "jus gentium"). 
 
 884
 
 Topic 2] PERSONS UNDER A DISABILITY [§ 58G 
 
 they said, by the sentence of the judges, although it no longer 
 could produce civil effects. The man civilly dead lost the power 
 of the husband and the power of the father; the system of posses- 
 sions between him and his spouse ceased to exist, but in the eyes 
 of the Church this spouse was none the less married and could not 
 contract a new marriage. The possessions of the man civilly dead 
 were confiscated.^ He could not transmit them upon intestacy 
 or by will, nor could he take any inheritance nor receive as a gift 
 (excepting for maintenance).^ Civil death disappeared from the 
 penal code of 1791 ; but this did not prevent the Revolution from 
 declaring the "emigres," and generally the deported also,^ to be 
 civilly dead. It is found once more in the Civil Code.^ 
 
 The infamous ^ were excluded from holding public office; they 
 could not be witnesses in court or to notarial deeds; finally, they 
 ■were also held as being incapable of making a will. Infamy re- 
 sulted as matter of law from certain penal sentences ^ (a term at 
 the galleys, flogging and branding, the pillory, the iron collar, 
 censure, and public penance).'' It was also connected with the ex- 
 ercising of shameful professions,^ but in the last stages of the law 
 
 » Cf. Loysel, 839 et seq.; Domat, I, pr. 2, 2, 12; Tanon, "Inquis.," p. 623. 
 
 ^ As to letters of remission, pardon, recalling, cf. Pothier, no. 105. 
 
 3 Decree of March 28, 1793. Cf. Decree of Sept. 17, 1793; Lafemere, 
 "Hist, des principes de la Revolution," 1850, p. 294. Cf. Protestant refugees 
 after the revocation of the Edict of Nantes. 
 
 * Abolished by the Law of May 31, 1854. General confiscation had been 
 abolished by the Charter of 1814, Art. 66. 
 
 6 Tacitus, "Germ.," 6; "L. Wisig.," ed. Zeumer, see Table, "Capitul.," 
 see Table; Capitulary of 789, 44; 809, 28, etc.; "L. long. Car.," 45, 67; 
 "Siete Part.," 7, 5 and 6 (as to infamy); Sachsenspiegel," 1, 38, 2; Beaumanoir, 
 39, 42, 63, etc.; P. de Fontaines, c. 13; "Ass. de J^r.," "C. des B.," 151; Bou- 
 taric, 2, 2; Loysel, 835; "Lib. de I'Egl. gall.," 22; "Tract, univ. jur.," XI; 
 Pertile, III, 227; Kruiit, § 49. 
 
 ® Disgraceful penalties in use during the latter part of the Middle Ages: 
 U. Robert, "Les signes de I'infamie au moyen age," 1889; Tanon, "Hist, 
 des trib. de I'inquis.," p. 490; Michelet, 377. — As to persons who have failed, 
 insolvents, "Arch. stor. lomb.," March, 1876; Kohler, "Shakesp.," 50, etc. 
 
 ' Letters of rehabilitation restoring the disgraced person to all his rights. 
 Cf. letters recalling a banishment: Pothier, no. 108 et seq. 
 
 * Disgraceful professions are ordinarily the following: usurers ("Const. 
 de Catalogue," I, 154; Peguera, "Decis.," 1613, XXXI, no. 1; Stobbe, I, 
 359; "T. A. C, Norm.," 49); keepers of gambling houses and professional 
 gamblers ("Const. Sic," III, 90; Delnrnare, "Police," 3, 2, 4); women of evil 
 life, and "lenones" or bullies (Regulation of 1380 for Pcrpignan; "Siete Part.," 
 VII, 22; "Cout. d'Anjou," F, 559; Delnrnare, "Police," 3, 3, 5; Muyart de 
 Voiir/Jans, "Loix crim.," Ill, 4); "baratieri," "ribald!," debauchees (see Du 
 Cam/e; "Siete Part.," VII, 16, 9; Pertile, III, 229: the chief or king of the 
 debauchees has a disciplinary power over women of the town in various places; 
 "Siete Part.," loc. cit.); the executioner (he is often chosen among male- 
 factors or debauchees: Pertile, III, 230; Caklero, "Decis. Cathol.," 1726. 
 I, l.')6); champions in the duels at law ("Sachsenspiegel," I, 37); story tellers, 
 buffoons or actors ("Sachsenspiegel," ib.; see Guyot). These "persona; turpes " 
 
 885
 
 § 586] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 this was an infamy in fact, something hke the Roman "levis 
 nota,"^ whose effects are vaguely defined, thus differing from those 
 which were produced by the infamy at law.^ 
 
 § 587. Lepers and Outcasts. — The formidable malady of lep- 
 rosy has always been known in Europe, but after the crusades 
 it became an epidemic and raged with such intensity that those 
 who were affected with it formed a class of pariahs. The Church 
 and the State had to borrow from the Mosaic legislation ^ its 
 severe measures of segregation in order to prevent all contagion. 
 The unfortunates, "mesels" or "meseaux," ^ who were affected 
 with the malady of St. Lazarus or St. Ladre ^ and called "ladres" 
 like him, were segregated from the rest of society,^ shut up in 
 lazarets or leper-houses,^ or else compelled to live in a separate 
 house, bound to wear garments of some striking color ^ and to 
 
 among whom bastards or children of priests were included ("Sexto," 
 I, 11; Fertile, III, 230) could neither bring an accusation nor appear as 
 witnesses in court, etc. Cf. "Capit.," VI, 362, and also III, 88; "Siete 
 Part.," VII, 6. At Perpignan, the Jews were grouped together at the "Call," 
 the gamblers at the "Tafurerie," the women of the town at the "Partit," 
 the executioner and his assistants at the "Escarcellerie," and the persons who 
 were vagrants in certain low alleys: Desplanques, "Les infames dans I'anc. 
 dr. roussillon," 1893. 
 
 1 Cf. our certificate of good conduct and morals: Argou, I, 25; "Dec. Cap. 
 tolos.," q. 174. 
 
 '^ The barbarian laws drew a distinction between witchcraft (love-potions, 
 magic draughts, etc.) and vampirism (the "strix," "masca," "lamia," to 
 devour and to dry up the blood of men, "intrinsecus comedit"; feast of vam- 
 pires or nocturnal revels). Details in Hansen, op. cit. There was a regular 
 epidemic of witchcraft in the fourteenth and fifteenth centuries; when the 
 Albigeois had disappeared the sorcerers were persecuted. Cf. Dig. X, 5, 21; 
 Lancelot, "Inst.," IV, 5; "Siete Part.," VII, 24; Brillon, see "Demon"; 
 Delamare, "Police," III, 7, 4; Ferricre, see "Sortilege"; Funck-Brentano, 
 "Le drame des poisons," 1900, 4th ed. As to bewitching, cf. the trial of Robert 
 d'Artois, by Guichard Bishop of Troyes. — "Tract, univ. jur.," XII. — 
 Pollock and Maitland, II, 544. 
 
 ' "Leviticus," xiii et seq. 
 
 * From "misellus," which is a derivative of misery: Loysel, 419 (wretched, 
 sickly swine); Ragueau, see "Langeieur"; "Cout. de Tonniens," Arts. 15 and 
 16. 
 
 ^ Cf. the parable of Dives and Lazarus, "Luke," xvi; "John," xi. 
 
 ® They cannot be witnesses in court nor can they present themselves there 
 in person: Beaumanoir, 39, 33; 63, 10. 
 
 ' Although leprosy was looked upon as a punishment from heaven, more 
 than any other form of illness (Mary sister of Moses; Gehazi the servant of 
 Elisha), both the Church and society tried to alleviate the hard fate of its 
 victims, by granting that there were extenuating circumstances in the case 
 of those whom God had afflicted without hope of mercy: special asylums, 
 charities, order of St. Lazarus (the master of which had to be a leper) : " Olim," 
 Table, see "Lepros." The Bishops were obliged to support the lepers 
 within their diocese: "Cone. d'Orl," 549, c. 21; "Lyon," 583, etc.; afterwards 
 this charge falls upon the parish, or upon the commune: "Roisin," 234, 247; 
 "Lille," 22, Isambert, V, 367. 
 
 * U. Robert, "Les signes d'infamie au moyen &ge," 1889. 
 
 886
 
 Topic 2] PERSONS UNDER A DISABILITY [§ 587 
 
 shake a clapper or rattle in order to give notice of their approach. 
 In certain localities, in finding cases of leprosy,^ they celebrated 
 over those who were affected with it a requiem mass; - they 
 were dead to the world.^ This idea of civil death was not al- 
 ways and everywhere applied with the same sev^erity. In the old 
 times their marriage was dissolved ; ■* but the Decretals of Gregory 
 IV broke with this old rule and considered lepers as being capable 
 of marrying.^ Their dignities and their possessions ceased to be- 
 long to them.® They only lived upon charities and became in- 
 capable of acquiring anything, and, consequently, incapable of 
 inheriting from their relatives.'' Ordinarily, their inheritance 
 vested for the benefit of their heirs. At the same time, a few 
 Customs allowed them to dispose of a portion of their possessions 
 by will.^ This legislation fell into disuse towards the end of the 
 fifteenth century, when leprosy became rare. 
 
 However, the evil seems to have persisted in certain localities 
 under a milder form, the "leuce" or white leprosy.^ Those who 
 
 1 The ecclesiastical judges were for a long time charged with deciding as 
 to whether a case were one of leprosy or not: "Reg. de I'off. de Cerisy," no. 
 9, 25a, etc. CJ. "Leviticus," loc. cit. 
 
 2 SjTiodic Statutes of the diocese of Troyes, 1430 (ceremonial): the priest 
 celebrates mass which is attended by the leper, who is apart from the other 
 worshipers and has his face covered as though he were dead. WTien the 
 service is over the priest takes earth from the cemetery in a spade and puts 
 it on the leper's head, saying: "My friend, this is a sign that thou art dead 
 to the world." He then leads him to his dwelling at the head of a procession 
 and at the threshold says: "Friend, thou knowest and it is true that the head 
 of the leper-house of Troyes has in writing denounced thee as a leper, where- 
 fore I forbid thee to violate any of the following articles: thou shalt not enter 
 any house excepting thine own cottage, nor any mill; thou shalt not look 
 into any well nor fountain; thou shalt eat only food prepared for thyself; 
 thou shalt not drink out of any vessel saving tliine own; thou shalt have thy 
 well before thy cottage; thou shalt no longer take part in any trial at law; 
 thou shalt no more enter the church when a service is going on; when thou 
 speakest with any one go the side away from the wind; wlien asking alms 
 sound thy clapper; thou shalt not go far from thy cottage without having 
 put on thy covering; thou shalt not pass over any plank or bridge without 
 having put on thy gloves; thou shalt go nowhere from whence thou canst 
 not return to sleep in thy cottage without the permission of thy parish priest 
 or of Monscigneur the ecclesiastical judge": Rague.au, see "Service." 
 
 3 "Roth.," 176; Capitulary of 789, 36; Italian Statutes; "Cout. d'Aoste," 
 6; Giraud, "Essai," II, 222 (Aries, 96), 251; "Jostice," p. 196; Beaumanoir, 
 56; "Hainaut," 135; "Summa Norm.," 25, 10; "R. h. Dr.," 1857, 559; "F. 
 de Beam," .55; "Cout. d'Anjou," ed. B.-B., "A," 78; "F," 835. 
 
 * Capitulary of 757, 19 (I, 39); "Ass. de J6t.," "Livre au roi," 42; "F. de 
 Morlaas," 357. 
 
 » Dig. X, 4, 8; Boutaric, II, 8; "Siete Part.," IV, 2, 7, 17. 
 « "Auct. vet. de benef.," I, 81 (loss of fiefs). Contra: "Livre au roi," 
 42. — Osias, king of Judea. 
 7 "Summa Norm.," 25, 10. 
 
 * Beaumanoir, 56, 2. 
 
 » F. Michel, "Hist, des races maudites," 1834; De Rochas, " Les pariaa 
 
 887
 
 § 587] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 were affected by it, and those who were suspected of being lepers 
 because of certain equivocal symptoms or because they w^ere re- 
 puted to belong to the families of lepers/ remained until the end 
 of the seventeenth century ^ under disabilities of the same nature 
 as those which we have just been discussing, which were traces of 
 the former condition of lepers.^ In the Pyrenees they were desig- 
 nated by the name of outcasts ("cagots"),^ in Brittany under that 
 of "cacoux" or "caqueux," words which seem to be synonyms 
 of " leper." 
 
 de France," 1876; Hovelacque and Vinson, "Et. de linguist.," p. 210; "Rev. 
 des Deux-Mondes," 1878, 426; Lagrhze, "Navarre," I, 49; Cadier, see "Gr. 
 Encycl." 
 
 1 They were supposed to have physical defects (fetid breath, an evil odor, 
 ears without lobes, Httle granules on their tongues similar to those by means 
 of which leprous pigs are distinguished, the "earn milhargousa"). In the 
 seventeenth century it became established that these presumptions had no 
 foundation. 
 
 2 Reforms: Parliament of Rennes, in 1681 (at the instigation of Hevin); 
 Declaration of 1683 (Beam). In Spanish Navarre, equality proclaimed 
 from the beginning of the sixteenth century; however, for the filling of cer- 
 tain offices, for a long time the "Umpieza de sangre," that is proof that one 
 was neither descended from a Moor, nor from a Jew, nor from an outcast, 
 nor from a heretic, was required. 
 
 3 Separate dwelling place, obligation to wear on their clothing a piece of 
 red cloth cut into the shape of the foot of a goose or a duck, a separate place 
 in church and the cemetery, prohibition of entering mills, of drinking at the 
 fountains, exclusion from public office, exemption from tallage; they can only 
 give testimony in court as an exception, they can only marry among them- 
 selves, etc.: "F. de B6arn," 65. 
 
 * "Cagot," a Bearnese word, of unknown origin; the old explanation of it, 
 "canis Gotus," is not a very probable one; the Breton "cacodd," leprous, 
 has been suggested, but Brittany is very far away from Beam. Other names: 
 "gafet" or "gahet," from "gaf," hook, because leprosy makes the hands 
 hooked; "capot," from the cape or hood which they wore; "chrestias," the 
 poor of Christ; "ladre," see ante. In the "Siete Partidas," the "gafo" is 
 a leper: Lespy, "Diet. B^arn.," see "Cagot." 
 
 888
 
 Topic 3] LEGAL PERSONS [§ 588 
 
 Topic 3. Legal Persons 
 
 § 588. Political Bodies. 
 
 § 589. Corporations (Bodies and Communities, Persons in Mortmain). 
 
 § 590. Foundations, "Piae Causae." 
 
 § 588. Political Bodies. — The Roman law, to which our legal 
 system ^ owes the idea of a collective being,- looked upon towns, 
 guilds and corporations as persons ("personae vice funguntur").^ 
 Like natural persons, in fact, these fictitious persons ^ had pos- 
 
 ^ On the classification of legal persons see Savigny, § 86 (of necessity 
 and of their own free will). Analogies in the "Apparatus" (on the Decretals) 
 of Innocent IV: Ruffini, op. cit. — Division into Corporations and Founda- 
 tions: Avril, "These," p. 10. — The Civilians contrast partnerships (either 
 commercial or civil) formed with the sole object of gain, with associations which 
 are not exclusively engaged in the acquiring of wealth for their members. — 
 The authors who write on Public Law distinguish public persons, such as the 
 State, the Communes and public estabhshments (or services detached from 
 the State to carry on an existence of their own, for example the Institute of 
 France, the Universities, the Faculties, etc.), from private persons (chari- 
 table and scientific societies, reUgious assemblages, professional syndicates; 
 cf. Cezar-Bru, 1891, and all estabhshments of public usefulness in general). 
 This distinction was unknown to the Old Regime under wliich bodies and 
 communities form an assemblage of persons which are at the same time 
 public and private, all subject to the same system; it was also unknown to 
 the Revolution, which made public establishments, that is to say special 
 administrations, of those which it left in existence; it is only in the nine- 
 teenth century that estabhshments of public utility make their reappearance, 
 by becoming detached from the administration and by acquiring a certain 
 autonomy which makes them similar to the bodies and communities of former 
 times. 
 
 2 Girard, "Man. de Dr. Rom.," 3d. ed., p. 232; Vaulhier, p. 8; Gierke, 
 op. cit., Ill, 246 (Innocent IV); 354 (Bartolus). 
 
 ^ "Sodahtates," "corpora," "collegia" (for example, colleges of priests, 
 funeral guilds): Dig., 50, 16, 16; 46, 22; 3, 4, 1. The personality of the 
 oldest ones seems to be accounted for by their family character (rather than 
 by the personality of the god with whom they were connected and who was 
 regarded as the owner of their possessions). Under the Republic and under 
 the Empire, authorization from the State became indispensable for the forma- 
 tion of these associations, no doubt because they were degenerating into 
 political clubs. In fact there were no doubt always some of them that were 
 merely tolerated: Epinay, "These," p. 35. — Partnerships ("socidtds") dif- 
 fered from associations: 1st. By reason of their object being gain, whereas the 
 object of a.ssociations was a disinterested one. 2d. Because of their limited 
 duration (" mortc socii solvitur societas ") . 3(1. Because of their lack of civil per- 
 sonality (c/., however, early "consortium"). 4th. Because the authorization of 
 the State was lacking in their case. At the same time there was a class of part- 
 nerships whic;h, as an exception, were given a personality; perhaps with the 
 object of being better able to render the public service with which they were 
 charged, these were partnerships of toll collectors who farmed the collection 
 of the revenues of the State, and who made tenders for the public works: 
 Girard, p. 532; Kniep, "Soc. pubhc," 1896. 
 
 * The likening of them to persons only takes place "mutatis mutandis." 
 
 889
 
 § 588] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 sessions and rights, which they enforced through the intervention 
 of representatives (because they could not act themselves). The 
 personality of the State seems to be beyond any doubt, although 
 its political role tends to make one forget its private role. From 
 a very early time it is seen to have possessions and rights of 
 action, and its magistrates act in its name (for example, the 
 acquiring of inheritances).^ Around the State, towns and guilds 
 are organized in corresponding groups. 
 
 The formation of the Christian Church had the result of es- 
 tablishing alongside of the political system of the State and its 
 dependencies a corresponding religious system composed of the 
 Church and its establishments. Detached from the State, owing 
 to its origin, the Christian religion achieved personality for its 
 communities, its dioceses, its monasteries, its charitable institu- 
 tions, and its pious works. It gave corporate development a 
 strong impulse and succeeded, at least in its own sphere, in mak- 
 ing a principle of liberty prevail which had been unknown until 
 that time. Its legal persons were modeled after the Roman type. 
 Its symmetry would have been complete if the universal Church 
 had been from the legal point of view what it was from the 
 religious point of view, a single body.^ A tendency in this 
 direction has not been lacking; we have seen ["Public Law"] in 
 what way and up to what point it has been realized. But for a 
 long time the only thing that had to be considered with relation 
 to the Church was the diocese;^ each diocese — that is to say, 
 each church — had its own inheritance;^ this belongs neither to 
 the priests individually nor to the bishop who is their head; ^ it 
 belongs to a legal being, that is the Church, and it is devoted to 
 objects of a higher nature, in view of which the Church has been 
 established; it is the fortune of the poor, the endowment of the 
 clergy and of religion. This conception was transmitted to the 
 
 Thus collective beings do not marry, and have no family rights; but they 
 do have an inheritance. 
 
 1 Vauthier, 54; Pernice, "Labeo," I, 263; Stobbe, I, 382; Saleilles, "N. R. H.," 
 1888, 497 (the public domain at Rome). 
 
 2 At least in Private Law. As to Public Ecclesiastical Law c/. Paul, 
 I, "Cor.," xii, 12. The Church is the spiritual body of Christ. 
 
 3 Imhart la Tour, "Par. rurales," 1900; Ruffini, "Rapresent. giurid. d. 
 parrochie," 1896. 
 
 * Loening, "D. Kirchenr.," I, 221; Gierke, II, 903; Bondroit, "De capac. 
 possid. Ecclesige," 1900; Hiibler, "Der Eigenthiimer des Kirchenguts," 1868. 
 
 ^ Cf. episcopal and vicarial revenue. The corporation sole of the English 
 law: an ecclesiastical office personified distinct from the incumbent: Black- 
 stone, I, 10. The king and the crown constitute a lay corporation sole: Pol- 
 lock and Maitland, op. cit. 
 
 890
 
 Topic 3] LEGAL PERSONS [§ 588 
 
 Middle Ages and never ceased to be true in theory ; but, as a mat- 
 ter of fact, it was often departed from. Thus the system of bene- 
 fices made it necessary to consider the possessions of the Church 
 as belonging to a certain extent to the clergy and the monks. 
 Their rights only being for life, the canonists none the less 
 upheld the old doctrine which defined the possessions of the 
 Church and at the same time took into account their origin and 
 their destination, " the vows of the faithful, the price of sins, and 
 the inheritance of the poor." A matter which was more serious 
 was that the civil authority was often substituted for the clergy 
 in the management of its possessions; without going back to feudal 
 times, to avowries, or to feudal tithes, in the monarchic period 
 their works of charity were seen to pass more and more into the 
 secular power; and it was the same with respect to the external 
 assets of religion (manufactures).^ In suppressing the clergy 
 as a body, in transforming the possessions of the Church into 
 national possessions,^ in taking upon itself the support of the 
 clergy and the expenses of the worship, the Revolution did nothing 
 which was not logically in accord with the public law of the Old 
 Regime. It acted especially from force of necessity, so as to cover 
 the deficit and avoid the bankruptcy into which the State was 
 being driven. But other considerations were mingled with these 
 reasons of a financial nature, — a consciousness of the evil which 
 existed in keeping outside of commerce, and so having them pro- 
 duce nothing, the considerable amount of possessions which were 
 
 ^ The ecclesiastical establishments of the Old Regime which were done 
 away with by the Revolution made their reappearance after the Concordat 
 and the Organic Articles: manufactures, episcopal, vicarial, capitulary and 
 seminary revenues: Hennequin, "Essai hist. s. les fabriques" (''Journ. des 
 Cons, de Fabr.," 1834, I, 8); Ladrat, "R. gen. d'adm.," Sept., 1890. 
 
 2 As to the secularization of ecclesiastical possessions see Sagnac, "Lcgisl. 
 civ. dc la Revol.," p. 155. — Gerin, "Rech. hist. s. L'Ass. du clerge de 1682," 
 1869, p. 87, cites a formal address by Pussort before the assembly of the 
 clergy in 1690: "in a case of pressing necessity the king is the owner of the 
 property of all his subjects and especialbj of the property of the ecclesiastics." 
 Le Vayer, "Autor. legit, des rois," p. 323; Et. Mignot, "Dr. de I'Etat sur les 
 biens possedes par le clerge," 1755 (Cerfvol); "Dr. du souverain sur les biens- 
 fonds du clerge et des moincs," 1770. Cf. Chntnjnon, "Cahiers de 1789" 
 ("Revolution Frangaise," June 14, 1894); "Rev. des Deux-Mondes," 1886, 
 850 (P. Leroy-Beaidieu); Bourgain, "Biens eccl^s. av. la Rev.," 1891; Burec, 
 "Propr. de I'Eglise," 1898; Le Carpentier, "R. hist.," 1901, 71; Leouzon- 
 Leduc, "Journ. des Econom.," August, 1881. — Ficker, "Eigenth. d. Reichs 
 an Kirchengut" ("Akad. Wien," 72, 77); "Dig. Ital.," see "Asse ecoles."; 
 Furgeot, "R. Q. hist.," XXIX, 428 (under Charles IX); Marion, "Machault 
 d'Arnouville," 1891. — Cf. secularization which took place after th(> Ref- 
 ormation, for example Stonff, "Le pouvoir tcmporol et le regime municijial 
 dans I'eveche de Bale," I, 235; F. Dubois, "De recup. Terr, sanct.," 16, 30; 
 25, 42, etc. 
 
 891
 
 § 588] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 in mortmain; the fear of seeing the Church profit by its position 
 of a very great landed proprietor in order to dominate the State; 
 and, finally, the thought that religion entered into the great public 
 offices, and that its administration ought to be connected with 
 that of the State. ^ 
 
 Roman tradition with respect to civil personality thus persisted 
 in the religious system of the Old Regime; it was maintained with 
 more difficulty in the parallel political system. The State had its 
 incarnation originally in the person of the king, which meant that 
 it was not necessary to investigate whether it constituted a legal 
 person or not. The possessions and the rights of the State were 
 looked upon as the personal attribute of the king during the Frank- 
 ish period as well as during the feudal period. But the monarchic 
 law did a great deal towards making a distinction between the 
 person of the king and that of the State; thus it is that the do- 
 main of the crown had a tendency to become separated from the 
 private and personal domain of the sovereign. Thus did it pave the 
 way for the Revolution, for which it was reserved to strip public 
 functions of all their inheritable qualities.^ 
 
 As far as cities and communities of inhabitants ^ were concerned, 
 their civil personality was not always so readily to be distinguished 
 as one might suppose.^ While contrasting the community with its 
 
 1 The modern tendencies towards the separation of the Church and the 
 State were not set forth until the law of the 3d Vent., year III, which pro- 
 claimed the freedom of worship ; it was by virtue of this Law that the Catholic 
 form of worship made its reappearance; it was officially restored under the 
 Consulate, but without becoming a State religion. From that time on, our 
 law distinguishes between forms of worship not recognized by the State (which 
 are subject to the general laws affecting associations, meetings, etc.) and forms 
 of worship which are recognized by the State: Catholicism (Concordat of the 
 26th Mess., year IX, and "Articles organiques" of the 8th Germ., year X, a 
 unilateral act on the part of France which the Church submits to rather than 
 accepts, Hebrard, "Art. organ.," 1870), Lutheranism and Calvinism (re- 
 organized under the authority of these same Articles), the Israelitish worship 
 (Decree of May 30, 1806; of March 17, 1808): Gazier, "Et. s. I'hist, 
 relig. de la RevoL," 1887; Aulard, "Le culte de la Raison," 1892. — As to 
 the Concordat, besides the speech of Portalis, cf. Boulay de la Merthe, "Doc. 
 8. la negoc. du Concordat," 1891 ; Seche, "Orig. du Cone," 1894; Card. Mathieu, 
 "Le Concordat," 1903. 
 
 2 Tacitus, "Germ.," 10, 12. Germany: in the thirteenth century, the 
 "Hausgut" is contrasted with the "Reichsgut": Heusler, § 63; Stobbe, I, 
 382, 392 (in 1125, the property of proscribed persons is rather "regiminia 
 dicioni quam regis proprietati"); Gierke, II, 527; III, 62, 117; Vauthier, 
 304; Pollock and Mailland, I, 495, 509; Viollet, "Inst.," II, 250; Monteil, 
 "Doman. publique," "These," 1902. — Chopjyin, "Dom.," I, 6; Domat, 
 "Loix civ.," 1, prel., 3, 1; Loyseau, "Seigneuries," I, 23; II et seq. — On 
 the Law of Nov. 22-Dec. 1, 1790, cf. Monteil, p. 159. 
 
 3 Beaumanoir, 4, 32; 43, 42; "Gr. Cout.," p. 389. 
 < Gierke, III, 730; PertUe, III, 268. 
 
 892
 
 Topic 3] LEGAL PERSONS [§ 589 
 
 members, it was asked if each one of the latter did not have an in- 
 dividual right to reparation for damage caused to the community, 
 and if obligations which were incumbent upon the community 
 could not be enforced against the possessions of each one of its 
 members; ^ there was some doubt as to who represented the com- 
 munity at law, and as to who could take an oath for it. The 
 Revolution by forbidding the partition of community possessions 
 among the inhabitants ^ seemed to see in this a mere case of 
 joint possession.^ In this way it gave evidence of its repugnance 
 to corporate ownership. The possessions of the State and the 
 possessions of the clergy were sold as national possessions; com- 
 munity possessions should also have disappeared by partition. 
 
 § 589. Corporations ^ (Bodies and Communities, Persons in 
 Mortmain). — Family communities,^ which were the primitive 
 
 ' C/. Law of the 10th Vend^m., year IV (responsibility of communes for 
 crimes committed on their territory). 
 
 2 Bertrand, "Dr. d'affouage," "These," 1900; Stobbe, 1, 446. 
 
 ^ The wealthy bought for a very low price the share of the poor: Taine, 
 "Revolution," III, 476; Sagnac, p. 151, 177 (analysis of the revolutionary 
 law); "Code civ. interm.," Table, see "Communaux." As to the possessions 
 of parishes and of communities, cf. Merlet, "Ass. de commun. d'habitants 
 dans le comt6 de Dunois," 1880. 
 
 * Du Cange, see " Corporatio " : a term employed by the English jurists, 
 cf. Rastall. The old French authors say "corps et communaute," "gens de 
 mainmorte." According to a terminology which to-day is very widespread, 
 they are called " universitates personarum" as contrasted with "univer- 
 sitates rerum" or foundations, from which it is not always easy to distinguish 
 them: Stobbe, I, 384. 
 
 * As to the origin and the various kinds of legal persons according to 
 the German authors, cf. Stobbe, I, 404 (bibl.), 443; Sohm, "Deutsche Ge- 
 nossenschaft," 1889; Heusler, § 50 et seq.; Gierke, "D. Privatr.," § 58 et seq. 
 According to the latter, there must have been known in the old Germanic 
 law free associations ("Sippe," "Gaugenossenschaft," "Gemeinde," etc.), 
 and groups composed of the lords (following, vassalage, etc.). But under 
 the influence of the Roman law absolutism came to be introduced into public 
 law and individualism into private law; there was a tendency to restrict the 
 number of legal persons, to connect some of them with the State, and to do 
 away with the others; the theory of "fictitious personality" must have arisen 
 as a consequence of these tendencies. According to Gierke, who maintains 
 that he relies on the old Germanic conception, the collective person, 
 "Verbandspcrson," is just as much a reality as the physical person, as the 
 individual. He contrasts, in approximately these terms, the German "Genos- 
 Benschaft" with the Roman " Universitas." In the latter, the individual 
 disappears, being absorbed in the whole; the community is sacrificed to the 
 unity; this absorption docs net take place in the case of the Germanic cor- 
 poration; it may be shown in the collective rights of its members; this plurality 
 of rights which is developed at the expense of the rights of the individual 
 makes the German corporation resemble a case of joint ownership ("com- 
 munio"). But the German joint ownership, the "Gemeinschaft," owing 
 to the principle of the "gesammte Hand," which establishes therein a certain 
 amount of unity, is similar to the "K(Jrpcrschaft," so that the abyss which 
 in the Roman law lies between the "communio" and the "universitas" is 
 found to be filled up, in the Germanic law, with intermediate types. Without 
 wishing to express an opinion as to the validity of this theory, and whether 
 
 893
 
 § 589] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 type of civil persons, were formed spontaneously and to some ex- 
 tent organically, even under the system of the State; there was no 
 question of the authorization or control of the latter. But the pub- 
 lic authorities did not so readily leave untouched the formation of 
 associations which were not of this character. They suppressed 
 those which seemed to them suspicious; thus the Carolingians 
 prohibited guilds. In this sense it is correct to say that no asso- 
 tion could be formed without the consent — at least the implied 
 consent — of the State. But this formula is not absolutely cor- 
 rect excepting in the new law; in the old times the greatest lati- 
 tude was allowed, especially to religious communities; ^ they were 
 scarcely liable to find any obstacle excepting on behalf of the 
 Church. Rural communities were also very easily established, 
 some existing perhaps from time immemorial, others more mod- 
 ern, having obtained the implied consent of the lord. No doubt 
 this same latitude was allowed from the early part of the Middle 
 Ages to associations for trade.^ At that period these ecclesiastical 
 
 we should look upon it as the result of an incomplete analysis or a gen- 
 eral summing up, we may say that it seems to be in accord with the current 
 conceptions of the Middle Ages; tlie corporation is at one and the same time 
 joint ownership and a legal person; those who are members enjoy for that 
 reason personal advantages, for example by participating in the enjoyment 
 of the common inheritance. In modern law Gierke distinguishes between 
 three sorts of " Verbandspersonen " (legal persons), without counting the 
 State ("fiscus"): (A) Corporations ("Korperschaften"); 1st. Communes: 
 "Markgemeinde," "Gemeinde" at the present time ("allmends"), agricul- 
 tural associations. 2d. Public " Genossenschaf ten, " such as religious groups, 
 trade bodies, etc., and private, such as the families of the higher nobility, 
 associations of an economic nature, etc. (B) Establishments or foundations: 
 1st. "Anstalten" (public establishments). 2d. "Stiftungen" (private foun- 
 dations). With the "Verbandsperson" he contrasts the "personenrecht- 
 lichte Gemeinschaft," sometimes "zu gesammten Hand" (with united hands), 
 for example, communities between brothers after the death of their father, 
 "Ganerbschaften," and sometimes established by public authority. 
 
 1 In the Middle Ages the word " Universitas " means a group, a collectiv- 
 ity of some kind, a commune, an association, a university. The Glossators 
 do not seem to have a very concise idea of the legal personality, as their 
 definition of the "Universitas" shows: "nihil aliud est nisi singuli homines 
 qui ibi sunt," which was a hard thing to reconcile with the maxim: "quod 
 universitatis est non est singulorum," or with that other one, " universi con- 
 sentire non possunt." Cf. Mestre, p. 46 et seq. The Canonists were the 
 first to give a current application of the term "persons" to collective groups: 
 Innocent IV, in his "Apparatus" on the Decretals, 5, 52, 1, and 2, 14, 2. 
 After them the Post-Glossators, and especially Bartolus, developed the theory 
 of the legal personaUty. 
 
 2 As to commercial partnerships, cf. Saleilles, "Hist, des soci^t^s en com- 
 mandite," in the "Ann. de Dr. comm.," 1895. The Italians, Straccha, 
 Scaccia, etc., recognized commercial partnerships as having a fictitious per- 
 sonality. Cf. on this point, discussions, Lyons and Caen, "Acad. sc. mor.," 
 1900, 471; Nigulesco, "Th^se," 1900; Avnl, p. 12; Meynial, "Sir.," 1892, 
 I, 497; Stobbe, I, 389. The great commercial companies constituted true 
 public establisnments: see "Encycl." 
 
 894
 
 Topic 3] LEGAL PERSONS [§ 5S9 
 
 or secular groups of people filled the part which has to-day de- 
 volved upon the State; ^ it is not surprising that the State in the 
 course of developing the extent of its prerogatives should have in- 
 cluded within them the sphere occupied by this group. Previous 
 authorization, an administrative guardianship, under the mon- 
 archy, paved the way for the absorption of these bodies by the 
 State and their conversion into the form of administrative organs.^ 
 The system of freedom, under which people in mortmain be- 
 came very numerous during the barbarian and feudal times, gave 
 way in the monarchic period to a system which was very restric- 
 tive. Loysel, 400, sums it up in this rule : " One cannot assemble 
 in order to create a body and a community without permission 
 and letters of the king." ^ The previous and express authorization 
 of the State is the first requisite for the existence of legal per- 
 
 1 This characteristic is shown us by Bodin, III, 7: "All bodies and guilds 
 are instituted for religious purposes or for purposes of police" (and we know 
 that "police," in a broad sense, is the same thing as administration). They 
 are associations founded by individuals in view of the public interests; 
 Lavie, "Des corps politiques," 1766, II, p. 12. According to Domat, "Dr. 
 public," I, 15, 1, the body is established for a common benefit for those who 
 are members, but also one which is connected with the public welfare. It is 
 stated that these bodies render services to the State; this is so, for example 
 with regard to the institutions of teaching, as the Universities, or of charity, 
 as the alms-houses or "Maisons-Dieu," which at first were reUgious estab- 
 lishments and which had not yet entirely lost their ecclesiastical character 
 in the eighteenth century (rights of the Bishops over the Universities, they 
 are members by birth of the boards of the alms-houses, etc.). At the close 
 of the Old Regime they are called public establishments. As to the king's 
 rights with regard to the ecclesiastical institutions see, Le Vayer, "Autorit4 
 legit, des rois," p. 319 et seq. (poUtical sovereign, protector, founder). 
 
 2 Being given this characteristic, it is quite natural that there should 
 have been, especially at the close of the Old Rdgime, estabUshments of the 
 same nature created by the king, royal foundations (for example, the College 
 of France, the Hospice of the Invalides, the Academies, etc.). On the trade 
 bodies, cf. Monin, "R^vol. Fr.," 1894, 327. On the order of barristers, c/. 
 Vasseur, "Thfese," 1900. 
 
 * This was the Roman rule: Gains, Dig., 3, 5, 1; Girard, p. 234; Edict of 
 Nov., 1629; Declaration of June 7, 1659; Edijct of Dec, 1666 (Le Vayer, 
 "Autor. legit, des rois," 1682, p. 279: no community can be established or 
 build monasteries without the express permission of the king, for no bodies, 
 communities or guilds may be formed without the consent of the political 
 magistrate; every new establishment of monks is a novelty, according to the 
 discipline of the Church, and it is one of the duties of its supporters to prevent 
 innovations within the Church); and especially the Edict of Aug., 1749, 
 Art. 1; Avril, p. 60 (citations), 72; Blackstone, I, 10. Associations which had 
 not been authorized could be dissolved, that is to say their members could 
 be compelled to separate; but they were tolerated if they appeared to be 
 inoffensive: Viollet, p. 647. The members of these irregular communities 
 were not looked upon any differently from ordinary individuals, they were 
 not allowed to act in a collective name. — Furthermore, when the group 
 had been in existence for a very long time, until the year 1749 the State did 
 not require them to produce their title. It is thus perhaps that the toleration 
 shown fraternities and freemasonry is to be accounted for: Guyot,see "Com6- 
 dien"; Decree of June 14-17, 1791, Aug. 18, 1792. 
 
 895
 
 § 589] STATUS AND CAPACITY OF PERSONS [Cuap. VI 
 
 sons.^ Every association which had this authority "ipso facto" 
 had a civil personaUty,^ without a special grant being necessary; 
 this personality was not a gift from the State, but a natural con- 
 sequence of the existence of the association, and, if one may 
 say so, its way of being and of living.^ The State could have 
 
 ^ As to this system of freedom, which dates from the time of the Lower 
 Empire, cf. theses: Plocque, 1887; Buretel de Chassey, 1893, etc.; Vauthier, op. 
 cit. — Power of receiving: Gierke, II, 903. 
 
 2 The personality of bodies and communities has been accounted for by 
 means of a fiction. This, in our opinion, is the Roman theory; it is to be 
 found again in the writings of the Canonists, the BartoUsts, the Civihans, the 
 commercialists and of the School of Natural Law; it played an important 
 part in the discussion on the secularizing of the possessions of the clergy 
 in the Constituent Assembly. — The Germanists, Beseler and Gierke, have 
 risen up in opposition to this traditional opinion; for them legal persons 
 are not fictitious beings, but actual beings; in every association there exists 
 a collective will, which is quite distinct from the individual wills and which 
 is just as much a reality as that of an individual. Let us mention among 
 other deductions which are drawn from these ideas, the following: (1) The law 
 does not create legal persons, but merely recognizes them; the government 
 cannot dissolve them by means of a mere provision of policy. (2) Once having 
 been recognized in the country where they originated they can operate abroad. 
 (3). When their dissolution takes place their possessions do not belong to the 
 State as being goods without an owner, but form the object of a special suc- 
 cession wliich is related to the object for which they were destined (they can 
 therefore once more be divided up among the members). These conclu- 
 sions would not have been denied by the majority of our old authors, for they 
 did not pretend that the law created legal persons "ex nihilo," but merely 
 that they had to have the authorization of the law in order to operate, which 
 amounts to the same thing as saying the State has a right to forbid them; 
 now nobody denies that the State has this right. It is quite certain that the 
 fie t' on of the personality does not account for everything; but fictions are 
 not created with the object of accounting for things; they are formulae devised 
 by the jurists, and as it were a sort of convenient coinage which is in circu- 
 lation in the law. A thing which proves in favor of this fiction is the fact that 
 no one has succeeded in replacing it with anything else. If we should be asked, 
 why treat an association or an establishment in the same way as a man, we 
 would reply that this question comes rather within the sphere of politics or 
 of political economy than within that of jurisprudence; the personification 
 was at a certain period the best way in which certain physical needs could 
 be satisfied. We therefore do not go so far as the Germanist system; but 
 we recognize the new school as in two ways deserving of merit; in the first 
 place, its liberal tendencies, and then also the bringing into prominence of 
 an important fact, the free and spontaneous formation of legal persons 
 in the Middle Ages. — According to others, for example, Planiol, "Dr. civil," 
 I, 262, the personality (whether fictitious or real) is a myth; under the name 
 of civil persons one should include masses of possessions, without any indi- 
 vidual owner, devoted to some collective use; cf. Brim, "Pand.," and his 
 theory of the "Zweckvermogen." These ideas are foreign to the old law. 
 One can say the same thing with regard to other theories, a very concise out- 
 line of which will be found in Mestre, op. cit. As to associations without any 
 civil personality, cf. Stobbe § 61. [See now the elaborate and masterly 
 critique of the history and theory in Saleilles' " La Personality Juridique, " 
 1909. — Transl.] 
 
 ' The idea of distinguishing the grant from the civil personality and the 
 authorization to associate is a modern one. Muhlenbruch (on the occasion 
 of the Stadel trial) and Savigny (who incorrectly translates "corpus" as civil 
 person, Dig., 3, 4, 1), have caused this idea to prevail in Germany; following 
 
 896
 
 Topic 3] LEGAL PERSONS [§ 589 
 
 taken away the legal personality of an association, or, without 
 going so far as this, could have restricted its capacity; but it was 
 not customary to proceed in this way. The association was purely 
 and simply suppressed.^ It is thus that legal persons ordinarily 
 die, by means of a withdrawal of authority; they can also disap- 
 pear for lack of an object ^ when the end for which they have been 
 established has ceased to exist,^ or when all the members of the 
 partnership have died.^ But these hypotheses are obviously of 
 an exceptional character; it is in the very nature of bodies and 
 communities to last forever, and one of the greatest advantages 
 which they offer is the very fact that they last far beyond the 
 limits of human life, for their existence is independent of that 
 of their actual members. 
 
 The constitution of the community is the result of custom or is 
 contained in written regulations. During the monarchic period 
 these regulations had to be presented to the Parliaments or to the 
 other royal departments, with the object of obtaining their ap- 
 proval. It was for the magistrates to see that nothing had been 
 slipped in which was contrary to "the laws, to public liberty and 
 the interests of other people." ^ The community acted through 
 
 them Zacharie introduced it into France. — One is justified in saying that 
 this distinction was as it were prepared for by the provisions of the Edict of 
 1749, by virtue of which a community which was already in existence and 
 which had been authorized needed a further authorization in order to acquire 
 possessions in certain cases. But as a general thing, in the old French law 
 as in the Roman law, merely owing to the fact that a corporation had a legal 
 existence, it was invested with a civil personality; the authorization was not 
 a granting of the personality. 
 
 1 "Ord.," I, siO: the king forbade the "scolares et doctores" of the 
 "studium" of Orleans to form a " Universitas " ; they would be subject to 
 the laws "tanquam singulares." 
 
 ^ Religious orders which disappeared for lack of an object, for example 
 the ransoming of captives, the care of lepers, etc. 
 
 ' In 1620 the Abbey of Tournus became secularized with the consent of 
 all its members in order to be changed into a collegiate church: Juenin, "Hist, 
 de I'abb. de Tournus," 1733, cited by Charmont, "Annee sociolog.," 1900, 
 p. 96 (causes of the extinction of corporate ownersliip). 
 
 * Is the presence of a single member sufficient to maintain the association? 
 Controversy. Cf. Stobbe, I, 436. Can all the members by agreeing to do so 
 dissolve the body? Ibid., Gierke, "D. Privatr.," § 70. 
 
 ^ The principle of the peculiarity by virtue of which legal persons must 
 keep within their legal powers, was devised by modern judicial law; it was 
 unknown to the old law; thus charitable foundations were applied by lit- 
 erary establishments (the Montyon prize at the French Academy), manu- 
 factories received gifts and legacies for the poor or made in the interests of 
 education, the revenues of the charity schools established for the benefit of 
 poor children were administered by church wardens: Jousse, "Gouv. des 
 fabriques," 283. But we must take into account the fact that education, 
 charity and worship, were in former times within the scope of the objects of 
 ecclesiastical establishments. 
 
 897
 
 § 589] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 the organs which it gave itself.^ For its ordinary management it 
 had one or several agents, a " syndic," who was elected and whose 
 powers varied. In contracting and in pleading he bound the 
 community within the limits of his powers; his act was looked 
 upon as the act of the community; it was at his domicile that 
 writs against the community were served.^ The general meeting 
 of the members formed the higher power; ^ majority decided,"* 
 excepting in that which concerned the formation or the disso- 
 lution of the community. Ordinary members had individual 
 rights; for example, that of taking part in the general meetings, 
 or even, in case the community were dissolved, of taking a portion 
 of the community assets ("jura singulorum").^ 
 
 The estate of the community belonged to the body itself, and 
 not to each one of its members, as would have been the case 
 with a thing which was jointly possessed. That which was due 
 to the body or by the body was not due to any one of its mem- 
 bers, nor by one of them; they could be creditors or debtors of 
 the community and plead against it just as though they had been 
 strangers to it. Bodies and communities enjoyed privileges and 
 were under various disabilities.^ They were treated like minors; 
 
 1 Distinction between the organ and the representative: Gierke, "D. 
 Privatr.," I, 472. 
 
 2 Actions against bodies and communities: Ordinance of 1670, 21; Decla- 
 ration of Oct. 2d, 1703 (permission of the manager). 
 
 * Odofredus on 1. 9, 1, and on 1. 7, D., 4, 2, relates an important decision 
 by Johannes Bassianus, with regard to a revolt of peasants against the Arch- 
 bishop of Ravenna: should the " Universitas " be punished or the rebels "ut 
 singuli"? Bassianus answered that a distinction was to be drawTi according 
 as each one had acted either on his own account or on the other hand col- 
 lectively, under instructions, and sent out at the sound of the bell, with the 
 council at their head; if this were so then the "Universitas" ought to be pun- 
 ished. This doctrine soon became classic. 
 
 * Gierke, II, 480; III, 322, 393, etc. (the majority). 
 
 ^ In such a case as this one wonders to whom the possessions reverted. 
 The opinion which was generally accepted in former times, was that they 
 belonged to the State as being goods without an owner: Gierke, III, 238. 
 The modern theories are greatly opposed to one another: Gierke, "D. Privatr.," 
 I, 565. 
 
 * Could legal persons commit crimes, or be excommunicated? Cf. as 
 to this Family joint and several responsibility. Innocent IV, in 1245, for- 
 bade the excommunication of a "Universitas" (c. 3, "in Sexto," 5, 11; in fact, 
 the "Universitas" is but a fiction, it can neither wish nor act). This reason 
 had not prevented the Church from placing nations and provinces under 
 an interdict, any more than it had prevented the statutes and the civil laws 
 from decreeing penalties against towns. Cf. on this question, Bartolus, 
 on 1. 16, § 10, D., 48, 19; Gierke, "D. Privatr.," I, 528; Mestre, op. ciL; Fertile, 
 III, 271. The Post-Glossators admit the possibility of punishing com- 
 munities. In 1331 the Parliament of Paris condemned the town of Toulouse 
 to the loss of its right of being a body and a community, together with a 
 confiscation of its inheritance, because of the case of a student, Aimery Be- 
 
 898
 
 Topic 3] LEGAL PERSONS [§ 589 
 
 they had a right to the same privileges; in return for this they 
 were subjected to a very strict administrative guardianship, 
 whose form varied, but whose principle was always the same, be- 
 ginning in this way to be connected with the State.^ They could 
 not alienate their immovables excepting by virtue of a decree 
 of a judge,^ nor could they acquire money invested in an an- 
 nuity, under penalty of confiscation, as a consequence of royal 
 decrees during the monarchic period. Under the feudal system 
 the lords compelled them to give up within a year the fiefs and 
 copyholds which they had acquired;^ we have seen by what 
 processes this prohibition was evaded and how there arose from 
 this the theory of amortization.'* The celebrated Edict of Au- 
 gust, 1749,^ made them incapable of receiving inheritances, rent- 
 charges on specific lands, or rights in land. Their disability was 
 absolute with respect to testamentary gifts. On the other hand, 
 gifts "inter vivos," or acquisitions for a consideration, could be 
 authorized for just and necessary causes, — that is to say, as 
 an exception; ^ they were only allowed freely to acquire mova- 
 
 renger, condemned to death by the Capitouls in violation of the privileges 
 conferred upon members of the universities: Ordinance of 1670, 21, 1. 
 
 1 For example, rescission of unfair contracts, turning over of actions deal- 
 ing with land to the Public Ministry, prescription of forty years, etc.: Per- 
 tile, III, 272. These privileges have disappeared from modern law, which 
 is disposed to lavish upon corporations disabihties rather than favors. 
 
 2 Edict of Dec, 1606, Art. 15; G. Forget, "Personnes," "Choses ecclgs.," 
 1611, p. 60. 
 
 ^ The disability of acquisition of persons in mortmain is not owing to the 
 fact that they are for the most part religious establishments; it exists in the 
 same way for all "corpora mortua." If the first laws on amortizement were 
 directed against religious communities, and if at all times anxiety has been 
 displayed as to the accumulation of immovable possessions in their hands, 
 this has been owing to their great prosperity; lay communities, on the other 
 hand, have often found themselves in embarrassing circumstances. 
 
 * Before the Edict of 1749, the lords, in their own interests, compelled 
 the communities to give up within a year any inheritances which they might 
 have acquired, but the king's attorney could do the same thing in the interests 
 of the public, says Pothier, no. 216, because the possessions of communities 
 were taken out of trade. Cf. on this Lamoignon's "Arr.," 16. In the States 
 General of 1614 the Third Estate expressed the wish that persons in mort- 
 main should not be able to acquire immovables: Picot, "Hist, des Et. gen.," 
 Ill, 482. Cf. II, 246; Mourmant, "These," 23. 
 
 6 Tardif, "R. de 16g.," II, 492; P. Bernard, "R. h. Dr.," X, 37; Mourmant, 
 "These," 1900 (precedents for the Edict of 1749); other theses: Coulondre, 
 1886; Pitois, 1890; A. Lot, 1895; Epi7iay, 1896; Garein, "La Mainmorte 1749 
 k 1789," 1903, etc. — Other countries also have their legislation on posses- 
 sions in mortmain: Adami, "Legg. s. 1. manimorte," 1834; Kahl, "Deutsche 
 Amortisationsgesetze," 1880; Gierke, "D. Privatr.," I, 516; Pollock, "Land 
 Laws," 91; Pollock and Maitland, I, 314, 639. 
 
 8 Letters patent registered in Parliament and only granted after an in- 
 vestigation, for just and necessary cause: Civil Code, 910, 937. — Letters 
 patent were not necessary for mere pious or charitable foundations, such 
 
 899
 
 § 589] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 bles and rent-charges on the king or other communities. In this 
 manner progress was made towards the Revolutionary legisla- 
 tion. The latter, which was frankly hostile to all corporate 
 ownership, converted into national possessions the possessions of 
 religious ^ or secular communities, such as those of the secular 
 clergy.^ At the same time, it changed into administrative ser- 
 vices that which it left in existence of the organizations of the 
 Old Regime; the change was hardly noticeable, because they 
 had already been submitted to the administrative guardianship 
 and were half incorporated in the State. In this way was ruined, 
 after political feudalism, that which has been called "corporate 
 feudahsm";^ thus perished "the spirit of the corporation, which 
 was so dangerous," says Condorcet, "but which was so natural at 
 
 as masses or obituals, the sustenance of students or the poor, etc.; it was 
 sufficient if they were ratified by Parliament. 
 
 1 On the suppression of religious communities and the Decree of Feb. 
 13-19, 1790, c/. Avril, p. 134 (bibl. and discussion): the real idea of the 
 Constituent Assembly was to reform the regular clergy rather than to de- 
 stroy them; it proceeded in the same manner with regard to the secular clergy. 
 
 2 The antipathy felt by the Revolution towards corporations is still shown 
 in the Civil Code from the lack of a special title on legal persons. The 
 more recent Codes, such as the German Code, do not show this hiatus. Cj. 
 law on associations, of July 1, 1901. 
 
 *' There are no longer any classes or orders of corporations, but a gigantic 
 administration which has inherited their privileges and which fulfills their 
 functions. During the debate upon the question of the possessions of the 
 Church, Thouret declared amidst the plaudits of the Constituent Assembly, 
 that: "Bodies are but instruments created by the law in order that some 
 public good may be derived therefrom; what does the workman do when his 
 tool is not suited for the work for which he had intended it? He breaks it; 
 he changes it." From a historical point of view there is nothing more in- 
 accurate than this pretended creation of fictitious bodies. The spirit of 
 the Revolution is very clearly shown in the Decree of Aug. 18, 1792, which 
 abohshed religious and lay corporations; even those devoted to the hospital 
 service and to the rehef of the sick. "Considering," says the preamble, 
 "that a State which is truly free should not allow in its midst any corpora- 
 tion, not even those which, devoted to the public education, have deserved 
 well at the hands of the fatherland." With these ideas as a basis, worship 
 became a pubhc service, the Church a special administration with its budget; 
 the manufactories, seminaries and religious chapters re-established by the 
 Concordat, are administrative persons; all other ecclesiastical establishments 
 (especially the religious communities) were done away with by Article 11 of 
 the "Articles organiques." Relief, the services of the almshouses, education 
 also, have a tendency towards being changed into services of the State. Cf. 
 the Constitution of year III, Art. 300. The Decree of August 8, 1793, had 
 done away with the Academies and literary societies patented or endowed 
 by the State. On the 15th of September, 1793, the Convention also did away 
 with the Faculty of Law and other Faculties; although this decree was sus- 
 pended the day following that on which it had been enacted, the Univer- 
 sities ceased to exist: Liard, "L'enseign. supdr. en France," I, p. 217. The 
 Law of 23 Mess., year II, united with the national property and debts the 
 assets and liabilities of the charitable institutions. Details as to the carrj-- 
 ing out of this scheme in Avril, "Thdse," p. 113 et seq. Cf. Italian Law of 
 the 17th July, 1890, on "opere pie." 
 
 900
 
 Topic S] LEGAL PERSONS [§ 590 
 
 a time when everything was privileged." ^ It is true that it only 
 perished to be born again. Modern law did not feel the same 
 distrust of it as did the Revolution.^ 
 
 § 590. Foundations" Pise Causae," works of piety or of public 
 utility (such as an almshouse, masses, etc.) ^ for which are appro- 
 priated a group of properties ("universitas rerum"). Founda- 
 tions are presented under two principal forms: sometimes it is a 
 service imposed upon a legal person already in existence, as when 
 a dying man disposes of his property for the benefit of a church 
 or a monastery, charging them to pray for the repose of his soul; 
 sometimes it is a gift for the benefit of an organization to be cre- 
 ated; thus an individual establishes and endows a charity school 
 by will. In the first case the foundation is effected through an 
 intermediary; ^ and it is natural that the intermediary chosen 
 should be a legal person, — that is to say, a person who does not 
 die, — for the foundation is in its very nature perpetual. In the 
 second case the founder has himself been able to organize his 
 work, and thus to allow it to continue after his death (or even 
 during his lifetime) ; ^ if he has not done so, the Church or the 
 State can serve as intermediaries.^ The persons who carry out 
 the wishes of the founder, or the managers provided for it,^ 
 
 1 "Rapport sur I'organ. de I'instr. publ.," in the "Proc6s-verb. du Comity 
 d'instr. publ. de I'Assemblee legisl.," published by Guillaume, p. 188. More- 
 over Condorcet did not claim that a monopoly of education should exist for 
 the benefit of the State. 
 
 2 Cf. as to Germany, Gierke, "D. Priv.," I, 488. The modern English 
 system: corporations are formed without any intervention on the part of the 
 administration, upon condition of complying with a few very simple formal- 
 ities, such as the registration of their by-laws. 
 
 * German law: "Stiftung" (private foundation) and "Anstalt" (public 
 establishment). 
 
 ^ In this case the foundation is in the form of a charge; the ownership of 
 the possessions is in the intermediary, but it is hmited by the object for which 
 these possessions are intended. Cf. foundations carried out by persons in 
 being, for example the will of Nicole: Denisart, see " fidcicommis " ; Lambert, 
 "Stipul. pour autrui." 
 
 * Examples in the past: will of the Countess Mahaut ("Cartul. de I'hop. 
 Saint-Jean d'Arras," p. 27), of Giraud Aymeric at Marseilles, etc. More 
 recently, the Staedel foundation at Frankfort (1828), the Bluntschli founda- 
 tion (competition in international law): Savigny, "Stiftung," etc. German 
 law places every facility at the disposal of the founders, whereas French legis- 
 lation seems to undertake to discourage them; a direct foundation, by last 
 will cannot be made under it. The old French law, on the other hand, held 
 them to be lawful: Furgole, "Test.," 6, 1, 37, and 84: validity of gifts for the 
 foundation of a college, etc.; they contain the implied condition: "Provided 
 the college, the almshouse, etc., be founded, and authorized." The Edict 
 of 1749 forbade the creating of foundations by last will. 
 
 " Cf. under the Lower Empire rights of the Bishop, and even of ordinary 
 individuals: C. J., 1, 2, 15; 1, 3, 38. See ante, Testamentary Executors. 
 ^ Domat, "Dr. publ.," I, 18, states that the founders of an almshouse 
 
 901
 
 § 590] STATUS AND CAPACITY OF PERSONS [Chap. VI 
 
 are not the owners of the possessions which have been appro- 
 priated for the foundation; ^ these possessions are destined for a 
 certain purpose and cannot be used for anything else; if they 
 belong to anyone,^ it is said, in the earlier instances, that they 
 belong to the saint under the patronage of whom the organization 
 is placed; ^ it is upon his shrine that the founder places the charter 
 containing the expression of his will. This mystical person acts 
 by means of miracles and creates for himself rights upon the 
 gratitude of the faithful; it is not astonishing that he should be 
 looked upon as the owner. After the barbarian period and follow- 
 ing the Roman renaissance we see rather a sort of moral entity, 
 but as he was more abstract than that of bodies and commu- 
 nities,^ our old authors scarcely mention foundations among 
 legal persons; however, their properties were true estates in mort- 
 main. When they came to an end, — which rarely happened, 
 because foundations are ordinarily perpetual, — the lands were 
 freed, but remained in the hands of the organization which 
 already possessed them, or, if this were not so, passed to the 
 State as possessions without an owner. ^ 
 
 Foundations were not unknown in heathen antiquity; ^ thus 
 
 could establish within it an administration which suited themselves; this 
 is no longer possible to-day, an administrative commission being appointed 
 in conformity with the law and bound to follow the rules laid down by the 
 law in their management. 
 
 1 Nor do these possessions belong to the beneficiaries (which is obvious 
 in a case where they are animals, such as the bears of Berne). C/., however, 
 G. de Lapradelle, p. 418. The texts are not very definite; thus it is not a 
 rare thing for legacies to be left to the poor. Thomas de Vio looked upon 
 the "universitas pauperum" as the legal object of the "Mont-de-Piete." 
 
 2 The o-wnership was given to the king or the lord who was the protector 
 of the estabUshment, church or almshouse. See a criticism of this opinion 
 (which is the one held by Ficker) in Heusler, § 64 et seq.; Senn, "Avoueries 
 eccles.," 1903. 
 
 * This idea is once more found in very old times: Cicero, "in Caecil.," 
 17: "se et omnia sua Veneris esse." 
 
 * Since the time of Savigny and those who followed him, a distinction is 
 drawn between two classes of legal persons, associations or "universitates 
 personarum" and foundations or "universitates rerum." Cf. theory of 
 Brim, "Pandekt.," § 61, according to which there are no legal persons, but 
 inheritances created in view of a certain object ("Zweckvermogen"). Was 
 the duality of legal persons admitted by our old authors? It is certain that 
 the Edict of 1749 contrasts foundations with bodies and communities. Cf. 
 G. de Lapradelle, pp. 406, 412 et seq. Domat, "Dr. publ.," I, 18, considers a 
 hospital a sort of community; Pothier, "Don. entre vifs," I, 4. 
 
 ^ Is the State held bound to use the property of the foundation for some 
 similar purpose? No, if it takes it as being goods without an owner; yes, 
 if one consider the State as the ultimate grantee of this property in the intent 
 of the founder: Gierke, "D. Privatr.," I, 6.59. 
 
 « Benuchet, "Hist, du dr. priv6 Ath^n.," Ill, 706. Foundations by Pliny, 
 "Ep.," VII, 18; by Trajan, Pernice, "Labeo,'* III, 150. On the law of the 
 
 902
 
 Topic 3] LEGAL PERSONS [§ 590 
 
 Theophrastus appropriates his gardens for a school of philosophy, 
 and Phny the younger creates foundations for sustenance at 
 Como, his native place. But they increased so greatly under the 
 influence of Christianity, became so extensive and took on so 
 characteristic a physiognomy, that it is not incorrect to look upon 
 them as a Christian institution. Under the Lower Empire and 
 during the first part of om* old law their development was favored 
 through a system of freedom.^ The Church encouraged them; 
 people were often satisfied with its implied approval. At the 
 same time, the classical canon law demanded the authorization of 
 the bishop for their validity.^ If for a long time they depended 
 upon ecclesiastical authority, the civil powers tended more and 
 more to place their hands upon them.^ The same evolution took 
 place: from the old system of implied approval they passed in 
 1749 to that of an expressed authorization. It is the charter that 
 establishes the foundation and that organizes its administi'ation 
 for the future; if this were lacking, formerly the Church inter- 
 vened, and later on the State. The State also intervened in the 
 matter of the control and supervision of foundations, whereas the 
 Church alone had been charged with this care in the past.'^ The 
 
 Lower Empire, C. J., 1, 2, and 1, 3; " NoveUa," VII, 120, 123, 131. Gifts 
 for the benefit of the poor were also declared to be valid during tliis period. 
 
 1 During the Frankish period foundations were frequent. Sometimes the 
 founder makes a gift to the Virgin or to a saint {Thevenin, "Textes," p. 2.54; 
 Italy, "patrimonium Crucifixi," Fertile, III, 268; England, Pollock and 
 Maitland, I, 481; cf. ancient Customs, Guiraud, "Propr. en Grece," p. 238), 
 and sometimes he makes a gift for the benefit of an abbey, or a church {Par- 
 dessus, "Dipl.," I, 81, 138, etc.; Loening, "Deutsch. Kirchenr.," I, 250; II, 
 37 et seq.; Gierke, II, 962; III, 198 et seq.). The monastery of Lorsch was 
 founded by Count Cancor and his mother, and delivered by them to the 
 Bishop of Metz, whom they charged to deliver it to another person whom he 
 should choose. The Capitularies seem to recognize the independence of 
 foundations of almshouses ("xenodochia"): "Capit.," I, 189, 194, 200, etc. 
 G. de Lapradelle, p. 41, maintains, on the other hand, that they all belong 
 to some one, a church, a monastery or the king: Windscheid, "Pand.," 57. 
 At the beginning of the feudal period their independent existence is the result 
 of gifts made for their benefit ("hospitaU lego," etc): Richard, "Cartul. de 
 I'hop. Saint-Jean d 'Arras," 1888, p. xxvii. 
 
 2 Dig. X, 3, 36, 4; Tiraqueau, "De privil. pia? causa," 5, 4. In the same 
 way in order to create a monastery it is necessary to have the authority of 
 the pope and of the bishop, besides letters patent from the king registered in 
 Parliament. 
 
 3 Edict of 1543 conferring upon the royal judges the surveillance over 
 foundations having a charitable object (it had been complained that the 
 regular clergy which had the administration of them were making use of 
 their revenues for their own benefit). Cf. Edicts of 1629, 1639, 16.59, 1666 
 and 1749. In England, from the sixteenth century on, the king, who is the 
 visitant of all foundations, has them inspected by commissioners of charity. 
 
 * Its role also became more important in charitable matters. One sees an 
 example of this in the development of the part played by the bureaus of 
 charity. They were formed under the Revolution to distribute to the poor, 
 
 903
 
 § 590] STATUS AND CAPACITY OF PERSONS [CllAP. VI 
 
 Church often took these responsibiUties easily, paying Httle heed 
 to the intentions of the founders; ^ this was a good pretext for 
 royal authority, which was always eager to extend itself, and it 
 looked into and ratified the titles of the foundations, the result 
 being a very restrictive legislation,^ almost entirely summed up 
 in the Edict of 1749, Arts. 2 and 5.^ The Revolutionary legisla- 
 tion did not show itself any more favorable to foundations than it 
 had to corporations. The Law of May 6, 1791, Art. 25, abolished 
 them entirely, taking as its basis the ideas advanced by Tur- 
 got in his article in the Encyclopedia: "If every man who has 
 lived had a tomb for himself, and there remained no more land to 
 be cultivated, it would indeed be necessary to destroy these useless 
 monuments and scatter the ashes of the dead. Thus there comes 
 a time when a foundation can no longer keep its character; other- 
 wise, lands would no longer belong t-o the living, but to the dead." ^ 
 
 funds accruing from a tax upon public entertainments (poor tax): Law of 
 7 Frim., year V. The Order of 27 Prair., year IX, gave them the property 
 which had been devoted to charitable foundations. It is perhaps using this 
 as a basis that the charity bureaus have been made the necessary represen- 
 tatives of the poor, the only ones which are qualified to receive and manage 
 gifts made to the poor. 
 
 1 Appeals against the abuse of power, protests of the jurisconsults: Chopin, 
 "De sacra politia," 1, 4, 20; Feuret, "Abus," I, p. 206, ed. 1736. By the Edict 
 of Jan., 1780, the State made itself the cashier of Establishments in mortmain; 
 they must pay over to it all sums arising from the sale of immovables or from 
 gifts yielding interest at the rate of 5 per cent. This law illustrates the fact 
 that there might be occasion to sell the real estate of the almshouses. "When 
 the guardian contemplates converting the inheritance of his wards into per- 
 sonal property, he is quite ready to appropriate it for himself at the first 
 opportunity." 
 
 2 In former times, on the other hand, the "causa pia" enjoyed numerous 
 favors in the same way as the Church, the Treasurer and minors did (allowed 
 to dispense with the forms required for wills, an implied mortgage over the 
 possessions of the administrators, preferred liens on those of its debtors, etc.); 
 Dig. X, 3, 26, 10. Tiraqueau tells us of no less than 167 preferred liens for its 
 benefit: Stobbe, I, 517; Gierke, III, 760. 
 
 ' Edict of Aug., 1749, Art. 5 : ratification of the deeds granting foundations by 
 the Parliaments, whereas the establishment of bodies and communities could 
 only take place by virtue of letters patent of the king; Art. 2: prohibition 
 of testamentary foundations with the object of creating bodies and commu- 
 nities or for the benefit of persons charged with their creation. Cf. Spanish 
 Placards in Flanders: Patou, on "Lille," I, 200; Ferriere, on "Paris," 13, 2, 56. 
 
 * The Decree of Nov. 4, 1789, which placed all the possessions of the Church 
 at the disposal of the nation, did not take into account foundations. Cf. 
 Decree of Nov. 18, 1789; of Oct. 23, 1790; of May 6, 1791; the Decrees of 23 
 Mess., year II, and 13 Brum., year II, added the possessions of the alms- 
 houses and foundations to those already belonging to the nation. The Decree 
 of 16 Vent., year III (Feb. 21, 1795), Art. 9, held that "no perpetual gift or 
 gift for life can be made." — Afterwards there was a reaction; thus the Law 
 of 9 Fruct., year III, suspended the sale of possessions of the almshouses; 
 the Law of 28 Germ., year IV, and 16 Vend., year V, restored their posses- 
 sions to the civic almshouses, etc.; Concordat, Art. 15, etc. These provisions 
 inaugurated the new law. 
 
 904
 
 Topic 3] LEGAL PERSONS [§ 590 
 
 The liberal tendencies of the English legislation are in contrast 
 with this restrictive law; since the reign of Elizabeth foundations 
 can be established with the greatest facility, and they have in- 
 creased to such a point as often to relieve the State of its duty of 
 education; thus the great universities and their colleges are kept 
 up with the income of private foundations; the Catholic Church 
 has no other income.^ 
 
 1 The new German Civil Code, II, 2, sanctions the principle of the freedom 
 of foundations, but the State must authorize their operation. Cf. the Swiss 
 Federal Code of Obligations, Art. 716. 
 
 905
 
 INDEX
 
 INDEX 
 
 [References are to pages.] 
 
 A. 
 
 Abandonment, 350. 
 Abdication of possessions, 722, 
 Abduction, 11; imitation of, 12; by 
 violence, 113; with seduction, 114. 
 Absence, 658, 839, n. 3. 
 Acceptance, and rejection of succes- 
 sion, 668; of succession pure and 
 simple, 668; right of wife to choose 
 between, and renunciation of com- 
 munity, 844. 
 Accessories (of immovables), 271, n. 5. 
 "Accipiens," 289. 
 "Accusatio," 132. 
 " Achasius," 153. 
 
 Acknowledgment of mortgage, 619. 
 Acquests, 267, 273; partnership of, 
 808; community of, 823; commu- 
 nity of, and movables, 823; commu- 
 nity reduced to, 829. 
 Acquisition, of ownership of immov- 
 ables, 350; principal methods of, 
 "inter vivos," 350; of heirship, 658; 
 of title by inheritance, 664. 
 Act of August 10, 1882, 786. 
 Action, penal, 295; for a lost thing, 
 298; of theft, 298; possessory, 302, 
 329, 337; real and personal, 306; 
 and plea "spolii," 319; of simple 
 seisin, 348; at law for repurchase, 
 446; "de transgressione," of tres- 
 pass, 506. 
 " Acts of law," 382. 
 Administration, of the community, 
 833; of wife's personal belongings, 
 837. 
 Adoption, 217. 
 Adultery, 17, 136; penalties for, 137; 
 
 of the husband, 189. 
 Advancement of inheritance, 676. 
 " Affatomie," 685, 686. 
 Affiliation, or foster-brotherhood, 219. 
 " Affinitas," 125. 
 
 Agency (and representation), 539. 
 Agnates, proprietary guardianship by, 
 233. 
 
 Agnation, 18. 
 
 Agreements, freedom of matrimonial, 
 ,823. 
 
 Alemanni, 32. 
 
 Alienation, for a consideration, 52; 
 "inter vivos," 274; by will, 276. 
 
 Aliens, 868; disability of, 876. 
 
 Alliance, 61. 
 
 "Allmend,"35, 36, 45. 
 
 Ancestor worship, 20. 
 
 "Anefang," 293. 
 
 " Anerbe," 53. 
 
 " Anerbenrecht," 637, n. 4. 
 
 Anglo-American townships, 38. 
 
 Anglo-Norman law on possessory' 
 actions, 329. 
 
 Apprehension, or taking possession. 
 See Possession. 
 
 Arms, taking up, 183, n. 5. 
 
 '' Arramitio," 477. 
 
 Arrest, order of arbitrary, 188, n, 4; 
 privilege of, 589. 
 
 Ascendants, 641,644; competition be- 
 tween, and brothers and sisters, 649, 
 n. 3; partition by, 725. 
 
 Assemblies of relatives, 252. See 
 Popular Assembly. 
 
 Assets, separation of, 682; community, 
 826. 
 
 Assignment, 533. 
 
 Assignment of claims, early inaliena- 
 bility, 531; indirect means of, 532; 
 novation by changing creditors, 532; 
 simultaneous undertaking of debtor 
 towards creditor and third party, 
 532; payment with subrogation, 
 534. 
 
 Assize, of " Mort d' Ancestor," 333; of 
 "novel disseisin," 330. 
 
 Attorneys, 544. 
 
 Attornment, 404. n. 1. 
 
 " Auflassung," 389. 
 
 Authentic, " Sed Hodie," 138; "Si 
 qua Mulier," 804; "Omnes Peri- 
 grini," 872. 
 
 Authorization, letter of, 508, n. 2. See 
 Husband. 
 
 909
 
 INDEX 
 
 [Beferences are to pages] 
 
 B. 
 
 Bailiff's men, 596. 
 
 Banishment, 883. 
 
 Bankruptcy, 563; fraudulent, 563. 
 
 Banns, 104, n. 1. 
 
 Barbarian law on, second marriages, 
 1.52; reclaiming, 289; pledge, dis- 
 traint, 590; primogeniture, 634; 
 gifts "inter vivos," 703; reserva- 
 tion and legal share, 734; curtesy, 
 768. 
 
 Bastards, condition of, 207; succes- 
 sion to estate of intestate. See Suc- 
 cession. 
 
 Beaumanoir on, system of husband's 
 authorization, 176; paternal power, 
 194; immovables, 270; disseisin, 
 339; repurchase, 439; killing ani- 
 mals causing damage, 462; agree- 
 ments, 503; obligation by writing, 
 507; nullity of contracts, 513; com- 
 panies or secret communities, 553; 
 communities, 816; suretyship, 578; 
 customary dower," 769; administra- 
 tion of community, 833; judicial 
 separate estate, 842. 
 
 " Beilager," 102. 
 
 Betrothals, 93; essential, 95. 
 
 Bids. See Land distraint. 
 
 Bills, to bearer and to order, 535; of 
 exchange, 538. 
 
 Birth, of a child, 759, n. 2; proof of, 
 862. 
 
 Blow with the palm of the hand, 495. 
 
 "Bocland," 401, n. 3. 
 
 Bodies and communities, 893. 
 
 Bond, 603, 607; general, 608; special, 
 609; comparison of general and 
 special, 609. 
 
 Brothers and sisters, competition be- 
 tween, and ascendants, 649, n. 3. 
 
 Boundaries, marking, 310. 
 
 Bourjon, on title, 303. 
 
 "Cagots," 888. 
 
 Canon law, 97; previous to Council 
 of Trent, 101; of divorce, 143; on 
 second marriages, 154; on posses- 
 sion, 317. 
 
 Capacity of persons, 862, 867. 
 
 "Cap. Extravag.," 34. Capitulary of 
 819, 34, 236; of 789, 144, 521; of 
 829, 144; of Worms, 236; of 803, 
 354; "legi addita," 354; of 809, 
 371, 372; of 818-819, 735; of 821, 
 763. 
 
 Castes, 60. 
 
 "Causa mortis," gifts. See Gifts, 
 "causa mortis." 
 
 "Cause," 515. 
 
 "Census," " reservativus," 529; "con- 
 stitutivus," 529; " consignativu.s," 
 529. 
 
 Certificates, of civil status, 862, 864; 
 secularization of, of civil status, 
 865; of religious status, 863. 
 
 "Cestui que use," 408. 
 
 Charges, 416. 
 
 Charter, great, of Henry III, 406; of 
 exemption, 545. 
 
 Chattels, 270. 
 
 Chiefs, 76. 
 
 Child, birth of a, 759, n. 2. 
 
 Children, position of, 15; indepen- 
 dence of, 25; of first marriage, 
 protection of, 156; exposure of , 181, 
 n. 1; sales of, 181, n. 4; father's 
 right of correction of, 187; capacity 
 of, under authority, 192; adoption 
 of, 217; of different marriages, 637, 
 n. 5; remaining in family commun- 
 ity, 675; unexpected birth of, 714; 
 dower of, 777. See Illegitimate 
 Children. 
 
 " Chrenecruda," 565. 
 
 Church, the; legislation of, on mar- 
 riage, 88; jurisdiction of, over 
 marriage, 89; 890. 
 
 Cities, 892. 
 
 Civil Code on, power of father, 200; 
 movables, 288; market overt, 300; 
 good faith, 304; transfer of owner- 
 ship, 367; transcription, 385, 3S6; 
 short and long term leases, 413; 
 servitudes, 421, 425; repurchase, 
 430; payment with subrogation, 535; 
 assignment of claims, 535; mort- 
 gages, 619; primogeniture, 638; 
 representation, 641; reversion, 648; 
 devolution, 651; acquiring pos- 
 session of inheritance, 667; joint 
 possession and partition, 670; tes- 
 tamentary executors, 692; gifts 
 between spouses, 711; gifts "causa 
 mortis," 715; appointment of heir 
 by contract, 719; abdication of 
 possessions, 725; entails, 733; reser- 
 vation and legal share and freedom 
 to dispose by will, 745; dower, 769; 
 unity of possessions, 794; para- 
 phernalia, 802; partnership of ac- 
 quests, 811; succession to estate of 
 deceased alien, 879; civil death, 885. 
 
 Civil death, 468, 658, 880, 884; penal, 
 883 
 
 Clan, 21, 64; Celtic, 65. 
 
 Classes, 60; of population, 70. 
 
 Clause, to order, 535, 536; to bearer. 
 
 910
 
 INDEX 
 
 [References are to pagea] 
 
 535; value received, 539; by waj- 
 of avoidance, 597, n. 4. 
 
 "Clearance," 617. 
 
 "Clientele," 66. 
 
 Codicil, 701, n. 2. 
 
 Cognation, 18. 
 
 Collaterals, 641, 648; nearest in 
 degree, 648; privilege of double tie, 
 650; representation, 650; devolu- 
 tion, 650. 
 
 "Colonges," 37. 
 
 Colonies, 62. 
 
 Common law, the, 783. 
 
 Common recovery, 406. 
 
 Commons, rights of, 44, 45, 267; 
 partition of, 49. 
 
 Commune or "Dessa" of Java, 41. 
 
 Community, 312, 893; family, 20, 22, 
 750; of possessions, 28, 812; village, 
 in India, 39; secret, 553; systems 
 without, 750, 783; systems with, 
 783; comparison between, and 
 marriage portion system, 807; sys- 
 tem, 812; origin of, of possessions 
 between spouses — distinctive char- 
 acteristics, 812; juridical nature of, 
 812, n. 1; date of, 815; causes 
 which produced, and directed evo- 
 lution of, 817; forms of, 822; gen- 
 eral, 822, 829; partial, 823; of 
 acquests, 823; of movables and 
 acquests, 823; Customary, 823; by 
 agreement, 823; what it consists of, 
 826; personal belongings, 827; 
 reduced to acquests, 829 ; liabilities, 
 829; administration of, 833; dis- 
 solution of, 839; continuation after 
 death, 839; recompenses due from, 
 851; of inhabitants, 892. 
 
 Companies, 553. 
 
 Competition between ascendants and 
 brothers and sisters, 649, n. 3. 
 
 Complaint in cases of seisin and tres- 
 pass, 342; procedure of, 344. 
 
 Composition, pecuniary, 462. 
 
 Compulsory satisfaction. See Satis- 
 faction. 
 
 Concubinage, 159. 
 
 Condition of women, 221; in public 
 law, 223; changes in, 225; German 
 and Italian law, 226; in France, 
 227; Velleianum Decree of the 
 Senate on, 227. 
 
 Conditions, theory of implied, 500. 
 
 Conferred fifth, 740, ?i. 1. 
 
 Confession of judgment, 597. 
 
 Confinement expenses, 210. 
 
 Confiscation, 282, 653. 
 
 Conjunctive wills, 702. 
 
 Connection of characteristics, 63. 
 
 Consanguinity, 622. 
 
 Consent, mere, does not bind, 471. 
 
 Consuls, 878, n. 1. 
 
 Continuation of community after 
 death, 839. 
 
 Contracts, 471; between spouses, 175, 
 n. 6; Prankish period, 471; real 
 and formal, 472; real, 475; judicial, 
 474; extra-judicial, 474; formal, 
 477; formation of, by writings, 487; 
 feudal period, 491; "in re," 491; 
 English law, 505; proof of, 505, n. 
 1; nullity of, 513; rescission of, 514, 
 517; "cause," 515; particular kinds 
 of, 519; pignorative, 602; appoint- 
 ment of an heir by, 718; of marriage, 
 gift by, 720, n. 3. 
 
 Contribution to debts, 860. 
 
 Conversion, into money, 828; of 
 realty into personalty, 829. 
 
 Conveyances, gratuitous, 621, 624. 
 
 Copyholds, 375; English, 407. 
 
 Corporations, 893. 
 
 Corpse, attachment of, 561. 
 
 Correction, right of, over wife, 167; 
 over children, 187. 
 
 Costs, true, in action for repurchase, 
 448. 
 
 Council of Lateran, 1215, 125. 
 
 Council of Trent, 105, 131, 864. 
 
 Counter-increase, 781. 
 
 Countries of Customs on, legal rever- 
 sion, 647; surviving spouse, 652; 
 appointment by will, 698; marriage 
 portion system and community, 807. 
 
 Countries of Written Law on, suc- 
 cession, 623; legal reversion, 647; 
 surviving spouse, 652; appoint- 
 ment by will, 698. 
 
 "Couvade," 17. 
 
 Covenants, pertaining to succession, 
 689; relating to inheritance, 716; 
 "de hereditate tertii viventis," 717, 
 n. 4; upon future succession, 716. 
 
 Criminal intent, 457. 
 
 Crops, 605. 
 
 Cross-action, 558; ibid., n. 2. 
 
 Cumulative gift of present and future 
 possessions, 722, n. 1. 
 
 Curtesy of England, 768. 
 
 Custodian, guardian and, are but one, 
 266. 
 
 Custody, 232; nobleman's, 245; ple- 
 beian, 246; citizen's, 247. 
 
 "Customary common law," 611. 
 
 Customary dower, seat of, 772. 
 
 Customary law on, prescription, 363; 
 servitudes. 423. 424; suretyship, 
 572; pledge, distraint, 591; dis- 
 traint upon immovables, 595; bond, 
 607; "universal" heir, 663; ac- 
 quiring possession of inlieritance, 
 
 911
 
 INDEX 
 [Reterences are to pages] 
 
 666; partition, 672; appointment 
 of heir and wills, 685 ; gifts between 
 spouses, 711; abdication of posses- 
 sions, 723; reservation and legal 
 share, 738; legal share, 742; in- 
 crease of marriage-portion, 780; 
 mourning and residence, 781; in- 
 alienability of marriage portion, 
 791; unity of possessions, 794; 
 entering religious orders, 882. 
 
 Customary reservation, 738. 
 
 Customary third, 779, n. 1. 
 
 Customs relating to the stock, 277, 
 443, 649; of side and line, 277, 443, 
 649; of side alone, 277, 443, 650; 
 of absolute equality, 677; of simple 
 equality, 677; of reference-legacy, 
 677. 
 
 Customs, countries of. See Coun- 
 tries OF Customs. 
 
 D. 
 
 Damage, caused by animals or inani- 
 mate things, 460. 
 
 Damages, 465, 559; compensatory, 
 559; for delay, 559. 
 
 Daughters, excluding from inheri- 
 tance, endowed in marriage, 633. 
 
 Dead, the, enfeoffs the living, 665; 
 share of the, 691; civilly, 880. 
 
 Death, proof of, 862; civil, 468, 658, 
 880, 884; penal civil, 883; for 
 debts. See Compulsory Satis- 
 faction. 
 
 Debts, payment of, 678; hereditary, 
 719, n. 6; previous to marriage, 829; 
 of inheritances, 830; of the spouses, 
 831; contribution to, 860. 
 
 Declaration of, June 23, 1772, 384; 
 April, 1664, 805; AprU 9, 1736, 865; 
 the Rights of Man, 282, 655; recent 
 work, 349. 
 
 Decree of, March 15 to 28, 1790, 240, 
 654; 9 Mess., year III, 387; April 
 8-15, 1791, 640, 655; 17 Niv., year 
 
 II, 641, 655; 5-12 Brum., year II, 
 655; 9 Fruct., year II, 661; 25 
 Oct.-14 Nov., 1792, 732; October 
 1685, 865. 
 
 Decree, voluntary, 617. 
 Decretal, "Saepe contingit," 320; of 
 Alexander III, 359; of Innocent 
 
 III, 359; of Gregory IV, 887. 
 Deed, notarial, 708. 
 
 Default, 566. 
 
 Delay, 571, n. 1. 
 
 Delivery, 367; symbolical, 369; in 
 court, 371; "per cartam," 374; of 
 the deed, 379; pretended, 392; con- 
 
 ditions and effects of pretended, 
 397; estimate of pretended, 398. 
 
 Demand for a stolen thing, 298. 
 
 "Denier, sou et," 94. 
 
 Descendants, lawful, 627. 
 
 "Dessa,"41. 
 
 Devise, 725. ' 
 
 Devolution, 651. 
 
 Disability, persons under a, 867; of 
 aliens, 876. 
 
 Disbursements, in action of repur- 
 chase, 448. 
 
 Disinheritance, 660; officious, 661. 
 
 Dismemberment, 62. 
 
 Dispensations, 130. 
 
 Disposal of share brought by wife, 
 761. 
 
 Dispossession, voluntary, 289. 
 
 Disqualification, 661. 
 
 Disseisin, 375. 
 
 Disseisin-seisin, 375. 
 
 Dissolution, of marriage, 141, 758; 
 of the community, 839. 
 
 Distinctions, social, 60. 
 
 Distraint, private, upon movables, 
 586; -pledge, 589; on domestic 
 animals damage-feasant, 590; -writ, 
 591, n. 6; upon distraint invalid, 
 593, n. 1, 601; origin of, upon 
 immovables, 594; land, 596; land, 
 documentary right, 597; proper, 
 600; feudal, 600, n. 2; land, 
 public announcements and award, 
 60i; land, objections, 601; land, 
 bids, 601; land, preferences, 602; 
 land, later law, 602. 
 
 Distribution by shares, 593. 
 
 Divesting, 375; vesting and, 375. 
 
 Division, 622; right of, 47. 
 
 Divorce, 141; Germanic law, 142; 
 Canon law, 143; Revolutionary 
 law, 148. 
 
 Domanial right over aliens, 873. 
 
 Domicile, 658, n. 8. 
 
 Dominion, 53. 
 
 "Dos," 755. 
 
 Double tie, privilege of, 650. 
 
 Dower, 765; conditions requisite for 
 existence of, 769; kinds of, 769; 
 by agreement (or prearranged), 769, 
 771; Customary, 769; amount of 
 legal, 771; seat of Customary, 772; 
 wife obtains, on going to bed, 773; 
 forfeiture of, 774; rights of wife 
 over, 774-776; of children, 777. 
 
 Druids, 71. 
 
 Dumoulin on, movables, 302; pre- 
 scription, 363; gifts between spouses, 
 711; debts of spouses, 831; rights of 
 wife, 835, 836; right of wife to 
 renounce the community, 845. 
 
 912
 
 INDEX 
 
 [References are to pages] 
 
 E. 
 
 Earnest money, 492. 
 
 Ecclesiastical superior, intervention 
 of, 500. 
 
 Ecclesiastical judge, intervention of, 
 500. 
 
 Edict of, Nantes, revocation of, 108, 
 865; Henry II, Feb. 1556, 116; 
 July 1560, 156; Rotharis, 168, 221; 
 Aug. 1606, 229; 1664, 229; June 
 1771, 384, 618; Aug. 1626, 386; 
 May 3, 1553, 401; Dec. 1703, 401; 
 Oct. 1705, 401; 1771,611; Mothers, 
 1567, 643; 1606, 805; Nov. 28, 
 1757, 865; Aug. 1749, 899, 904. 
 
 Emancipating majority, 198. 
 
 Emancipation, of woman, 26; of chil- 
 dren, expressed, 195, 196. 
 
 Eminent domain, 53. 
 
 Emolument, benefit of, 859. 
 
 Enclose, freedom to, 310. 
 
 Encumbered marriage, writ of, 792. 
 
 Encumbrances upon land, 411. 
 
 Endogamy, 8. 
 
 Enfeoffs the dead, the living, 665. 
 
 Enforcement, means of, on tne person, 
 558. 
 
 English law on, theft, 298, n. 4; own- 
 ership, 311; transfer, 381; delivery 
 and transfer, 401 et seq.; contracts, 
 505; mortgages, 606, n. 1; sub- 
 stitutions or entails, 726, n. 6; free- 
 dom to dispose by will, 748, n. 2; 
 property of spouses, system with- 
 out community, 783; foundations, 
 905. 
 
 Entails, 726; perpetual, 731; secret, 
 731; allowed, 733, n. 2. 
 
 Entry of a deed of gift, 708, ibid., 
 n. 4. 
 
 Equality, Customs of absolute, 677; 
 Customs of simple, 677. 
 
 "Equites," 71. 
 
 Equity, courts of, 786. 
 
 "Erbtochter," 629. 
 
 Estates, in tail, 733, n. 2; separate, 
 807; separate judicial, 842. 
 
 "Estovers," 417. 
 
 Estrays, 284. 
 
 "Evelganc," 624. 
 
 Excluding from inheritance daughters 
 endowed in marriage, 633. 
 
 Excommunication, 561, 884. 
 
 Execution, upon the person, 564; upon 
 possessions, 582; upon immovables, 
 594; by creditors, 859. 
 
 Executors, testamentary, 691; names 
 for, 692, n. 1; legal, 692, n. 5; ap- 
 pointed, 692, n. 5. 
 
 Exogamy, 8. 
 
 Exposure of children, 181, n. 1. 
 Expropriation, 282. 
 Extrajudicial acts of wife, 172. 
 
 Factors of social evolution, 62. 
 
 "Faderfium," 755. 
 
 Failure, 562. 
 
 Faith-pledging, 495, 497. 
 
 Family, origin of, 1; 82; institutions 
 
 in our period, 53; Le Play's "stock," 
 
 53; change of, 167; solidarity, 463; 
 
 interest of, 636. 
 Fasting, 562. 
 Father, power of, has no existence, 186; 
 
 rights over person of children, 187; 
 
 intention on part of, to create 
 
 servitudes, 424. 
 "Faustpfand," 583. 
 Feoffment with livery of seisin, 402. 
 Ferriere, on movables, 303. 
 "Festuca," 370, 482. 
 Feudal law, on guardianship, 237; 
 
 majority, 259; reservation and 
 
 legal share, 738; foreigners or 
 
 aliens, 870. 
 Feudal period, relinquishment and 
 
 loss of property, 296; possession, 
 
 322; transformation of system of 
 
 ownership of land delivery, 374. 
 Feudal system, of succession, 632; 
 
 of primogeniture, 635. 
 Feudists, theory of, 47. 
 "Fidejussio," 571, 575. 
 "Fides facta," 477, 480. 
 Fiefs, 268, 375; lease of, 240; lease 
 
 of, to whom does it belong?, 241; 
 
 lease of, ceases, 244; masculine, 
 
 632; feminine, 632; do not ascend, 
 
 644. 
 Fifth, conferred, 740, n. 1. 
 Filiation, proof of natural, 209. 
 Fine, or recognizance at law, 404. 
 "Flurzwang," 44. 
 "Folcland," 401, n. 3. 
 Following, the Germanic, 68. 
 Foreigners, 868. 
 Forests, prerogative of, 285. 
 Forfeiture of dower, 774. 
 "Forisfamiliatio," 196. 
 Formal act, 478, n. 2. 
 Formalism, consequences of, 486. 
 Formal will, 701. 
 
 Foster-brotherhood, or affiliation, 219. 
 Foundations "piae causae," 901. 
 Four-fifths, reservation of, 27(i, 740. 
 Fourth, poor man's, 652; heir's, 741, 
 
 n. 3. 
 Frankish law on, possession, 321; 
 
 913
 
 transfer of property, 367; sale with 
 
 redemption, 603. 
 Fraternization, 219. 
 Freedom, to enclose, 310; to grant 
 
 "inter vivos," 426. 
 Freehold. See Tenure. 
 French practice on pretended delivery, 
 
 396. 
 Fund, movables invested as a, 851. 
 
 G. 
 
 "Ganerbschaften," 624. 
 
 "Genossenschaft," 312. 
 
 "Gens," 21, 64; maternal, 64; Roman, 
 65. 
 
 "Gerade," 623, 628, n. 4. 
 
 Germanic law on, divorce, 142; illegit- 
 imate children, 202 ; condition of 
 women, 221; waifs and estrays, 284; 
 transfer of property, 389; contracts, 
 472; intestate succession, 621; priv- 
 ilege of male line, 628; representa- 
 tion, 639; acquiring possession of 
 inheritance, 667; entails, 728, n. 5. 
 
 Germanic marriage portion, 750. 
 
 "Gewere," 315; " rechte," 355. 
 
 Gifts, 675; "inter vivos," 52, 703; 
 "causa mortis," 684, 703, 715; 
 "pro anima," 691; during bar- 
 barian period, 703; irrevocability 
 of, 707; formalities of, 708; be- 
 tween spouses, 710, 713, n. 2, 793; 
 mutual, 712, 713, n. 2; revocation 
 of, 713; by contract of marriage, 
 720, n. 3; cumulative, of present and 
 future possessions, 722, n. 1 ; by way 
 of reference-legacy, 739, n. 2; of 
 the morning, 754; of movables, 793. 
 
 God's pence, 494. 
 
 Good faith, in prescription, 358. 
 
 Government, 55; personal, 59. 
 
 Gratuitous conveyances. See Con- 
 veyances. 
 
 "Grundbucher," 391. 
 
 Guardian, does not represent minor, 
 235; rights of, 242; obligations of, 
 243; powers of, 250; subrogated, 
 252; and custodian are but one, 266. 
 
 Guardianship, 232; perpetual, 14; 
 of minors during barbarian period, 
 232; maternal, 233, n. 1; proprie- 
 tary, by agnates, 233; over the 
 person of the minor, 233; inter- 
 vention of the State in, 237; Feu- 
 dal law, 237; by appointment, 238; 
 lease, 238; plurality of, 238; seign- 
 iorial protection, 238; modem, 247; 
 appointive, in France, 248; testa- 
 mentary, 249; guarantees in inter- 
 
 INDEX 
 
 [Referencea are to pages] 
 
 est of minor, 251 ; of mother, 250, 
 71. 1; council of, 253, n.. 2; emanci- 
 pation of minors under, 260. 
 
 "Giitereinheit," 793. 
 
 "Guterverbindung," 793. 
 
 H. 
 
 Hair, cutting of, 183, n. 5. 
 
 ' ' Handlungsf ahigkeit, ' ' 867. 
 
 "Hantgemal," 623. 
 
 "Haro," 334. 
 
 "Heergewate," 623, 628, n. 4. 
 
 Heir, of the body, 626; role of, 662; 
 "universal," 663; one cannot be, 
 and legatee at the same time, 678; 
 ceremony of appointing an, 685; 
 appointing an, by contract, 718; 
 fourth, 741, n. 3. 
 
 Heirship, acquisition of, 658. 
 
 Hereditary, seisin, 665; debts, 719, 
 n. 6. 
 
 Holographic will, 700. 
 
 Homestead, 53. 
 
 Hostage, 574. 
 
 House, 627; and lineage, 626. 
 
 Hue and cry, raising the, 334. 
 
 Husband, power of, 163; authority 
 of, 170; authorization of, how given, 
 173; authorization of, special, 173; 
 supplementary authorization given 
 by law, 174; absence or illness of, 
 174; minority of, 174; effects of 
 authorization of, 176; lack of au- 
 thorization of 176; in sixteenth 
 century, 176; rights of third parties 
 towards, 177; system of "mundium" 
 of, 749; rights of, during marriage, 
 756; limitations on power of, 834. 
 
 Hypothec, 603, 615; mortgage, 610; 
 judicial, 614. 
 
 Illegitimate children, 202; bom of a 
 free woman, 203; of a mother 
 who was not noble, 204; termi- 
 nology, 204, n. 6; Christian ideas on, 
 204; law of, monarchic period, 207; 
 legitimation of, 213. 
 
 Immovables, 268, 271 ; execution upon, 
 594; origin of distraint upon, 594; 
 administration of, of wife, 790; of 
 marriage portion inalienable, 803. 
 
 Impediments to marriage. 111; classi- 
 fication of, 112; invalidating, 112; 
 incapacity, 119; resulting from 
 relationship, 121; previous mar- 
 riage, 126; entering religious orders, 
 126; monastic vows, 126; diversity 
 
 914
 
 INDEX 
 [Relerences are to pages] 
 
 of religion, 126; prohibitive impedi- 
 ments, 128. 
 
 Impotence, 119. 
 
 Imprisonnaent for debt, 567. 
 
 Impuberty, 119. 
 
 Inalienability, of marriage portion, 
 791; of immovables of marriage 
 portion, 803. 
 
 Incapacity, to succeed, 659; to give 
 and to receive, 710. 
 
 Incest, 6. 
 
 Incompatibility of marriage with 
 other conditions, 126. 
 
 Incorporeal property, 314. 
 
 Increase of marriage portion, 779. 
 
 Indemnity due by person repurchas- 
 ing, 447. 
 
 Indissolubility, reaction against, 147. 
 
 Infamous, the, 885. 
 
 Infanticide of girls, 8. 
 
 Influence, undue, 742, n. 4. 
 
 Ingratitude of donee, 713. 
 
 Inhabitants, communities of, 892. 
 
 Inheritance, 271; by way of escheat, 
 281; excluding from, daughters 
 endowed in marriage, 633; ad 
 vancement of, 676; covenants re- 
 lating to, 716; debts of, 830. 
 
 Innkeeper. See Rights. 
 
 Insane, system of caring for, 263. 
 
 Intent, criminal, 457. 
 
 "Inter vivos." See Gifts. 
 
 Interest. See Loan with Interest. 
 
 Intestate succession. See Succes- 
 sion. 
 
 Inventory, time to make, and deliber- 
 ate, 669; privilege of, 670. 
 
 Investiture, 375, 387; real, 368; 
 public, see Public Investiture. 
 
 Irregular succession, 653. 
 
 Irrevocabihty of the gift, 707. 
 
 Issues, 605; acquirement of, 309, n. 4. 
 
 Jerusalem, Assizes of, 192, 580. 
 
 Jewels, 781. 
 
 Joint ownership, conception of family, 
 
 185. See Ownership. 
 Jointly acquired property, 827. 
 Judicial acts of wife, 173. 
 Judicial council, 265. 
 Judicial sale, 616. 
 Judicial separation, 145. 
 "Jus ad rem," 307. 
 "Jus in personam," 308. 
 "Jus in re," 308. 
 "Jus sanguinis," 874. 
 "Jus soli," 874. 
 "Juveigneurie," 19. 
 
 K. 
 
 Kindred, 641. 
 Kings, 76. 
 Krokis, 6. 
 Kumites, 6. 
 "Kunkelmagen," 67, 643. 
 
 Labor, division of, 63. 
 
 Land-distraint, 596; documentary 
 right, 597; or judicial sale, 616. 
 See Distraint. 
 
 Land-gage, 602, 604. 
 
 Lateran, Council of, 125. 
 
 "Launegild," 705. 
 
 Law, putting outside the, 73, 466; 
 "acts of," 382. 
 
 Law of, Aug. 14, 1792, 49; June 10, 
 1793, 49; Aug. 28, 1792, 199; 11th 
 Brum, year II, 211; Sept. 20, 1792, 
 IV, 2, 260; Aug. 13, 1791, 281; 
 Apr. 21, 1810, 283; July 12-19, 
 1791, 283; Apr. 13-30, 1791, 285; 
 Oct. 6, 1791, 300; Jan. 3, 1791, 
 314; Sept. 19-27, 1790, 385; 11 
 Brum, year VII, 385, 401, 414, 619; 
 Mar. 23, 1855,385; 1704,410; 1735, 
 410; Oct. 1, 1845, 410; Dec. 18, 
 1790, 414; 9 Mess, year III, 414, 
 619; Sept. 7, 1790, 515; Sept. 3, 
 1807, 525; Aug. 11, 1789, 528; 24 
 Vent, year V, 569; 15 Germ, year 
 VI, 569; Mar. 23, 1855, 619; 17 
 Niv. year III, 648, 651; Nov. 22- 
 Dec. 1, 1790, 652, 654; June 4, 
 1793, 656; 5-12 Brum, year II, 656, 
 711; 15 Therm, year IV, 656; 
 3 Vend, year IV, 656; 17 Niv. year 
 II, 677, 711, 769; 4 Germ, year 
 VIII, 677, 747; 7 Niv. year V, 694; 
 Aug. 10, 1882, 786; " Assiduis," 807; 
 28 Pluv. year VII, 866; May 6, 1791, 
 904. 
 
 Lease, of fiefs, 240; and release, 403; 
 for a long and short term, 412; 
 for possession at will, 414. 
 
 Legal persons, 889. 
 
 Legal reversion, 645. 
 
 Legal share, 624, 633, 734, 741; by 
 what right did one collect? 744. 
 
 Legatee, one cannot be heir and, 
 at the same time, 678. 
 
 Legitimation, 213; by rescript of the 
 prince, 215. 
 
 "Legitime," 734, 741. 
 
 Lepers, 886. 
 
 Letters of, authorization, 508, n. 2; 
 claim, 597, n. 3; "pareatis," 599; 
 
 915
 
 INDEX 
 
 fReJerences are to pages] 
 
 ratification, 618; naturalization, 
 875. 
 
 Levirate, 16. 
 
 "Lex Julia," 229. 
 
 Liabilities, community^ 829. 
 
 Lien, specific, 611; judgment, 614; 
 general mortgage, 614; implied, 615; 
 on hereditary possessions, 682. 
 
 Limitations upon powers of husband, 
 834. 
 
 Lineage, 82, 641; house and, 626; 
 ascendants and collaterals, 641. 
 
 Loan with interest, 519; forbidden, 
 519; sanction of prohibition of, 521; 
 legal effect of prohibition of, from 
 civil point of view, 522; legal effect 
 of prohibition of, from penal point 
 of view, 522; reaction against the 
 prohibition of, 523. 
 
 Lord, interest of the, 635. 
 
 Loss, 292, 297. 
 
 Loysel on, treasures, 284; waters and 
 ways, 286; possession, 317; trans- 
 fer of ownership, 392 ; on pretended 
 delivery, 399; negligence, 457; 
 accomplices, 459, 460; damages, 465; 
 putting outside the law, 467; con- 
 tracts, 505; warranty, 550; com- 
 panies, 554; suretyship, 574; pledge 
 of movables, 586; land distraint, 597; 
 ' ' pagani ' ' and ' ' milites, ' ' 623 ; devo- 
 lution, 651; gifts "inter vivos," 
 703; mutual gifts, 712; dower, 776; 
 administration of wife's personal 
 belongings, 838; right of wife to 
 renounce the community, 845; re- 
 strictions upon persons in mortmain, 
 corporations, etc., 895. 
 
 M. 
 
 Macedonian Decree of the Senate, 
 193, 193, n. 6. 
 
 "Malnete," 19. 
 
 "Mainpl^vie," 794. 
 
 Maintenance, separate, 29, 749, 750. 
 
 "Majorat," 726. 
 
 Majority, emancipating, 198; bar- 
 barian, 258; full, 260; persons 
 who have attained, and are under a 
 disability, 262. 
 
 Male line, privilege of, 628. 
 
 Manorial svstem, 43. 
 
 Manors, 268. 
 
 March, the Germanic, 35, 37. 
 
 "Maritagium," 755. 
 
 Market overt, 300. 
 
 "Marrenage," 417. 
 
 Marriage, 87, 101; formation of, 11; 
 by servitude, 13; effects of, 14, | 
 
 136; system of Gauls, 14, ji. 2; 
 religious, 15, 88; after the inva- 
 sions, 87; civil, 89; legislation, 88; 
 jurisdiction of, 89; promises of, 98; 
 through an agent, 103, n. 5; civil 
 legislation of, 107; of Protestants, 
 107; impediments to, 111; invali- 
 dating impediments to, 112; con- 
 sent to, lack or defects in, 112; con- 
 sent of relatives to, 114; monarchic 
 law of, 116; consent of the king to, 
 118; consent of lords to, 118; inca- 
 pacity for, 119; impediments to, 
 resulting from relationship, 121; 
 relationship by, 125; incompati- 
 bility of, with other conditions, 126; 
 prohibitive impediments to, 128; 
 preventing, 129; nullity of, 132; 
 rehabihtation of, 134; repudiated, 
 134; dissolution of, 141, 758; 
 second, 152; union other than, 158; 
 morganatic, 161; "in conformity," 
 633; rights of wife over dower 
 during, 774; property brought by 
 wife or, 788; fitting, 788; writ 
 of encumbered, 792; obligations 
 contracted by wife during, 804; 
 debts previous to, 829; proof of, 
 862. 
 
 Mairiage portion, 28; Germanic, 750; 
 Roman, 755, 801; increase of, 779; 
 inalienability of, 791 ; owTiership of, 
 803; immovables of, innlienable, 
 803 ; movables of, 805 ; movables of, 
 inalienability of, 805; comparison 
 of system of, and community, 807. 
 
 Married woman, incapacity of, 787. 
 
 Married Woman's Property Act, 29. 
 
 Marry, obligation to, 99. 
 
 Maternal family, 10. 
 
 Matriarchate, 5. 
 
 "Melioratio," 737. 
 
 Merging of movables of spouses, 828. 
 
 "Mesnie," 84. 
 
 Minority, of husband, 174; renuncia- 
 tions of benefit of, 257. 
 
 Minors, guardianship of, 232; posses- 
 sions of, 234; not represented by 
 guardian, 235; suspension of ac- 
 tions by or against, 235; interven- 
 tion of the State for, 237; guaran- 
 tees in interest of, 251 ; capacity of, 
 254; emancipation of, under guar- 
 dianship, 260. 
 
 "Mir," 38. 
 
 Monarchic law, legislation and juris- 
 prudence on marriage, 91; on mar- 
 riage, consent, 116; on illegitimate 
 children, 207; on transfer of prop- 
 erty, 380; on constitution of com- 
 munities, 897. 
 
 916
 
 INDEX 
 
 [References are to pages] 
 
 Monastic vows, 126. 
 
 Money, conversion into, 828; earnest, 
 492. 
 
 Monogamy, 23, 24. 
 
 Morganatic marriages, 161. 
 
 "Morgengabe," 754, 760. 
 
 "Mort-gage," 605, 606, ?i. 1. 
 
 Mortgage, realty, 602; creatable bj' 
 notarial deed, 611; is result of 
 notarial deed, 611, 612; conse- 
 quences of, 616; acknowledgment 
 of, 619; German system of, 619; 
 given during joint possession, 674; 
 guaranteeing restitution of mar- 
 riage portion, 806; married woman's, 
 860. 
 
 Mortmain, persons in, 893. 
 
 Mother, rights of, 194; guardianship 
 of, 2.50, n. 1. 
 
 Mourning, 781. 
 
 Movables, 268; and chattels, 270; 
 ownership of, 288; cannot be fol- 
 lowed, 288; cannot be followed by 
 way of mortgage, 301; judicial law 
 of eighteenth century of, 302; the 
 seat of debts, 582; pledging of, 
 based on agreement, 583; private 
 distraint upon, 586; of wife, 789; 
 of marriage portion, 805; inalien- 
 ability of, of marriage portion, 805; 
 community of, and acquests, 823; 
 merging of, of spouses, 828; in- 
 vested as a fund, 851. 
 
 "Mundium," 163, 167, 179, 183; 
 limited duration of, 183; trans- 
 formation of, 185; of husband, 
 749. 
 
 Mutual gifts, 712, 713, n. 2. 
 
 Mystic will, 701. 
 
 N. 
 
 Nams. See Public Nams. 
 
 Nationality, 874. 
 
 Naturalization, letters of, 875. 
 
 Niyoga, 16. 
 
 Norman system of property of spouses, 
 
 787. 
 Notarial deed, 611, 614, 708. 
 Notes in blank, 536. 
 Notice, public. See Public Notice. 
 "Novella," 134, 10, 138; 118, 623, 641, 
 
 642, 655. 
 Nullity of, marriage, 132; contracts, 
 
 513; contracts and rescission, 514; 
 
 contracts, absolute, 515; contracts, 
 
 relative, 517. 
 Nuncupative will, 700; written, 
 
 701. 
 Nuptial benediction, 102. 
 
 O. 
 
 Oath, effects of, 498; conditions for 
 regularity, 498; promissory, 498; 
 confirmatory, 4^, 499. 
 
 Objections. *See Land-distu.\int. 
 
 Obligations, number and importance 
 of contractual, in modern law, 450 
 characteristics of, in old law, 451 
 in modern law, 452; by writing, 507 
 to support, 743, n. 4; contracted by 
 wife during marriage, 804. 
 
 Occupation, 351. 
 
 Offense, 454; flagrant, 292; public 
 and private, 454; by one family 
 against another, 455; character- 
 istics of, 455; special kinds of, 469; 
 wife's, 831, n. 4. 
 
 Offer to next of kin. See Repur- 
 chase. 
 
 Orders, Regulating, of Parliament of 
 Paris, of Mar. 18, 1614 and Dec. 
 23, 1621, 264; of 1529, 792. 
 
 Ordinance of, 1639, 98; Blois, 107, 
 117, 157, 522, 864; Feb. 1556, 210; 
 Aug. 1539, 256, 599; Villers- 
 Cotterets, 400, 613, 864; Moulins, 
 511,613,614,732; 1510,518; 1667, 
 552, 568, 571, 592, 599, 845, 865, 
 877; 1673, 556, 563, 570; 1551 
 (Public Announcements), 597; Or- 
 leans 1560, 599, 732; 1579, 599; 
 1629, 599; 1735, 699, 702; 1731, 709, 
 715; 1747, 730, 732; 1214, 771, 
 772; "Relating to People Subject 
 to Mortmain, Aliens and Bastards," 
 873 
 
 "Ordinarium," 346, n. 2. • 
 
 Outcasts, 886, 888. 
 
 Ownership, 1, 30, 267; collective, 31, 
 41, 43; of movables, 30, 288; of 
 land, 30, 305, 308; of soil among 
 Gauls, 31, n. 2; of land among 
 Alemanni, 32; in Rome, 32, n. 1; 
 family joint, 50, 51; beneficial, 53; 
 individual, 54; domain, 309; bene- 
 ficial, 309; restrictions on right of, 
 309; hmited, 311; joint, 311; 
 party, 311, 312; of immovables, 
 acquisition of, 350; transfer of, 
 by agreement, 367; of marriage 
 portion, 803, 
 
 "Palmata," 495. 
 "Pannage," 417. 
 Paraphernalia, 802. 
 "Pareatis," letters of, 599. 
 Parents, duties of, 189. 
 
 917
 
 INDEX 
 
 [References are to pages] 
 
 Partition, 857; between co-heirs, 670; 
 forms of, 671; in fact, 671; of 
 right, 671; thirty days after the 
 death, 670, n. §; effects of, 672; 
 declaratory effect of, 675; by 
 ascendants, 725; transactions pre- 
 vious to, 849; of assets, 851; of 
 liabiHties, 859. 
 
 Partnership, civil and commercial, 553; 
 commercial, 555; in its collective 
 name, 555; limited, 556; anony- 
 mous, 557; with shares of stock, 557; 
 of acquests, 807. 
 
 Party walls, 312; ownership, see 
 Ownership. 
 
 Pasture on waste land, 44. 
 
 "Paterna paternis, materna maternis," 
 52, 277, 643, 645, 649. 
 
 Paternity, recognition of, 16; inves- 
 tigation of, 209. 
 
 "Patria potestas," 183; perpetuity of, 
 183. 
 
 Patriarchate, 11. 
 
 Pawn shops, 525, n. 1. 
 
 Payment of debts, 678. 
 
 "Peculium castrans" or "quasi cas- 
 trans," 192. 
 
 Penal, action, 295; clauses, 489. 
 
 "Per capita," 639, n. 3. 
 
 Period for repurchase, 445. 
 
 Person, rights over, correction, 187; 
 status and capacity of, 862, 867; 
 legal, 889; in mortmain, 893. 
 
 Personal belongings, 267, 273; inherit- 
 ance of, 276; do not ascend, 277, 
 644; jointly held, 277; real, 277; 
 by agreement, 277; past and present, 
 278; fictitious, or received by repre- 
 sentation, 278; community, 827; 
 of wife, 837. 
 
 Personal government, 59. 
 
 Personal rights, 305. 
 
 Philosophers of eighteenth century, 
 147. 
 
 "Pigneratio," 586. 
 
 Pignorative contracts, 602, 604. 
 
 Plea of seizure and sale, 616. 
 
 "Plobs," 71. 
 
 Pledge, passes to condition of acces- 
 sor}^ security, 585; distraint-, 589; 
 by legal process, 590. 
 
 Pledging of movables, based on agree- 
 ment, 583. 
 
 "P16gerie," 571, 575. 
 
 "Plenarium," 346, n. 2. 
 
 "Plcvine," 571. 
 
 Political bodies, 889. 
 
 Political forms, 58. 
 
 Political function, 72. 
 
 Political organs, 73. 
 
 Polyandry, 7. 
 
 Polygamy, 22. 
 
 Poor man's fourth, 652. 
 
 Popular Assembly, 73. 
 
 Possession, 315; voluntary relin- 
 quishment of, 296; joint, 311; 
 Canon law, 317; yearly, 328; 
 recovery of, 340; provisional, 345; 
 confirmed, 346; immemorial, 360; 
 apprehension, or taking of, 368; 
 putting in, in fact, 372; resort to 
 the origin of, 649; putting in legal, 
 665, n. 4. 
 
 Possessions, community of, 28, 750; 
 rights of parents over, 190; of the 
 minor, 234; without an owner, 281; 
 abdication of, 722; cumulative gift 
 of present and future, 722, ?i. 1; 
 German system of unity of, 793; 
 between spouses, origin of com- 
 munity of, 812; nobleman's, 838, 
 n. 2. 
 
 Pothier on, movables, 303; refunding 
 of debts, 676; rights of wife, 836. 
 
 Poverty, sworn, 438. 
 
 Power, of the husband, 163; paternal, 
 178; sources of paternal, 178; 
 origin of paternal, 179; of the father 
 has no existence, 186; limitations 
 upon the, of the husband, 834. 
 
 Pre-emption, 43, 426. 
 
 Preference, of first to distrain, 593; 
 between mortgage creditors, 617. 
 See Land-distraint. 
 
 Prerogatives, royal, 279; over the 
 ground, 281; of mines, 283; of 
 forests, 285; over waters, 286; 
 over public ways, 286. 
 
 Prescription, short and long, 353; 
 Roman, 361 ; of ten to twenty years, 
 361; of thirty years, 361; Custom- 
 ary law, 363; of serv'itudes, 424; 
 which extinguishes or liberates, 558. 
 
 "Pretium nuptiale," 750, 760. 
 
 Privilege, of the male hne, 628; of the 
 double tie, 650. 
 
 Primogeniture, 19, 634. 
 
 Probatory force, 509, n. 6. 
 
 Procedure of repurchase, 445. 
 
 Profits, legal, 191; upon alienation, 
 673. 
 
 Promiscuity, 3. 
 
 Promise to sell, 547. 
 
 Promises and stipulations on behalf 
 of another, 541, n. 2. 
 
 Proofs, as to kinds of property, 278; 
 of contracts, 505, n. 1; written, 507; 
 early methods of, of civil status, 862. 
 
 Property, classification of immovable, 
 into personal belongings and ac- 
 quests, 52; divisions of, 267; of the 
 enemy, 282; incorporeal, 314; sub- 
 
 918
 
 INDEX 
 
 [References are to pages] 
 
 ject to repurchase, 441; system of, 
 
 between spouses, 749; acquired 
 
 jointly, 827. _ 
 Propriet}', public, 125. 
 Prosecution, system of individual, 562. 
 Protestants, marriage of, 107. 
 Provisions, testamentary, 684. 
 Puberty, 118. 
 
 Public authority, appeal to, 188. 
 Public investiture, Breton, 381; by 
 
 proclamation, 385. 
 Publicity, 611. 
 Public nams, countries of, 380, 610; 
 
 Customs of, 381, 384; effects of, 384. 
 Public notice, giving of, at Metz, 387. 
 Putting outside the law, 73, 466. 
 
 Q. 
 
 'Querela novae dissaisin.T," 330. 
 
 R. 
 
 Rankj 617. 
 
 Real mvestiture. See Investiture. 
 
 Real rights, 267, 305. 
 
 Real securities, 582. 
 
 Real servitudes, 420. 
 
 Realty-mortgage, 602. 
 
 Recalling to succession, 640, 718, n. 1. 
 
 "Rechte gewere." See "Gewere." 
 
 "Rechtsfiihigkeit," 808. 
 
 Reclaiming, not admitted, 296, n. 4; 
 procedure on, of immovables, 306, 
 n. 3. 
 
 Recompenses, 849, 850, 852; due from 
 community, 851; due from spouses 
 to community, 8.56. 
 
 Recovery of possession. See Posses- 
 sion. 
 
 Reference-legacy, Customs of, 677; 
 gifts by way of, 739, n. 2. 
 
 Refunding, 675; of debts, 676; of 
 immovables in kind, 678; of im- 
 movables by taking less, 678. 
 
 Reinvestment, 849, 852; agreements 
 for, 852; independent of agree- 
 ment, 853. 
 
 "Reipus," 152. 
 
 Rejection, acceptance and, of succes- 
 sion, 668. 
 
 Relationship, 82; as an impediment to 
 marriage, 121; method of comput- 
 ing, 12.3; by marriage, 125; civil, 
 124; spiritual, 124. 
 
 Relatives, assemblies of, 252; consent 
 of, sec Repurchase. 
 
 Releases, 560. 
 
 Religion, diversity of, 126. 
 
 Religious orders, entering, 120, 880. 
 
 Relinquishment, voluntary', of pos- 
 session, 296. 
 
 "Remedium spolii," origin of, 318. 
 
 Rent-charge, 527. 
 
 Rents, 416; origin of establishment of, 
 526; constituted, 528; personal, 
 530; life, 531. 
 
 Renunciation, of succession, 633; to 
 future succession, 669; of a future 
 inheritance, 716; right of wife to 
 choose between acceptance and, of 
 community, 844. 
 
 Representation, lack of, 639; in 
 collateral line, 650. 
 
 Representative of the person, 681. 
 
 Repurchase, 43, 426, 439; Ijy neigh- 
 bors, 427; by a community, 427; for 
 convenience, 428; of a joint posses- 
 sion, 428, 431; seigniorial, 428; 
 by a person of same lineage, 428, 
 433; by agreement, 428; disad- 
 vantages of, 429; suppression of, 
 429; in Civil Code, 4.30; of a con- 
 tested right, 430; of an inheritance, 
 431, 672; consent of relatives for, 
 435; offer to next of kin for, 435; 
 conditions of, 441; property subject 
 to, 441; acts which give rise to, 442; 
 who has the right to, 443; against 
 whom, is allowed, 445; of "half 
 funds," 445; procedure, 445; effects 
 of, 448. 
 
 Rescission, of contracts, 514, 517; of 
 sale, 552. 
 
 Reservation, 624, 734; of four-fifths, 
 276, 740; Customary, 738. 
 
 Residence, 781. 
 
 Respites, 571, ibid., n. 1. 
 
 Responsibility for the act of another, 
 460. 
 
 Restriction, right of, 47. 
 
 Reversion, legal, 645; of the inherit- 
 ance, 713. 
 
 Revocation, of wills, 701; of gifts, 713. 
 
 Revolutionary law, on, rights of com- 
 mons, 48; marriage, 92, 109; pu- 
 berty, 118; divorce, 148; power of 
 father, 199; proof of paternity, 211; 
 condition of women, 230; guardi- 
 anship, 253; repurchase, 440; loan 
 with interest, 525; rents, 528; im- 
 prisonment for debt, 569; mort- 
 gages, 618; succession, 623, 654; 
 primogeniture, 638; gifts between 
 spouses, 711; renunciation of a 
 future inheritance, 716; appoint- 
 ment of an heir by contract, 719; 
 abdication of possessions, 724; en- 
 tails, 732; reservation and legal 
 share and freedom to dispo.se by 
 will, 745; dower, 769; succession 
 
 919
 
 INDEX 
 
 [References are to pages] 
 
 to estate of deceased alien, 879; 
 civil death, 885; suppression of 
 clergy, and confiscation of church 
 property, 891, 900; communities 
 of inhabitants, 893; confiscation of 
 community property, 900, 904. 
 
 "Rhedo," 623. 
 
 Rights, real and personal, 305; in 
 land, 411; of profits, 417; of bene- 
 ficiary over ecclesiastical benefice, 
 419; of innkeeper, 589; to mainte- 
 nance, 743; of husband during 
 marriage, 756; of wife over prop- 
 erty jointly acquired, 762; of wife 
 over dower, 774; of wife over dower 
 during marriage, 774; of wife over 
 dower at death of husband, 776; 
 of wife to choose between accept- 
 ance and renunciation, 844; seign- 
 iorial and domanial, over aliens, 873; 
 of succession to estate of deceased 
 aliens, 876. 
 
 Ripuarian law, 354. 
 
 Rings, 781. 
 
 Romanists, theory of the, 48. 
 
 Roman law, on, transfer of ownership, 
 393; servitudes, 421; contract in 
 writing, 487; nullity of contracts, 
 514; rescission of sale, 552; execu- 
 tion on person, 564; mortgages, 610; 
 lineage, 642; "universal heir," 663; 
 acquiring possession of inheritance, 
 666; partition, 672; responsibility 
 of heir for debts, 678; gifts between 
 spouses, 710; covenants upon future 
 succession, 716; legal share, 741; 
 marriage portion, 755, 801, 802; 
 legal persons, 889. 
 
 Roman marriage portion, 755, 801. 
 
 Royal prerogatives, 279. 
 
 " Sachsenspiegel " on, repurchase, con- 
 sent of relatives, 436; self-defense, 
 456; unity of possessions, 796. 
 
 "Saisine," 315. 
 
 Sale, 547; of new-born children, 181, 
 n. 4; formation of, 547; promise 
 of, 547; effects of, 548; warranty 
 because of eviction, 549; rescis- 
 sion of, 552; with redemption, 602, 
 603. 
 
 Salic law, 11, 34; on marriage of 
 widows, 1.52; "de migrantibus," 
 354; on offense committed by a 
 band, 459; on family composition, 
 464; on formal contracts, 477; on 
 debtor of "Wergeld," 565; on 
 pledge-distraint, 590; on inierit- 
 
 ance of women, 629; on appointing 
 an heir, 687. 
 
 "Salmann," 542. 
 
 Satisfaction, compulsory, 560; com- 
 pulsory, intervention of the law, 565 ; 
 compulsory, procedure based on 
 hearing of both parties, 565; com- 
 pulsory, death or slaverj' for debts, 
 565. 
 
 "Schwabenspiegel," 164, 796. 
 
 "Schwertmagen," 67, 643. 
 
 Second marriages, 152; in countries 
 of written law, 155. 
 
 Secularization of certificates of civil 
 status, 865. 
 
 Securitj^, 485; on community posses- 
 sions and on those of the husband, 
 853. 
 
 Seigniorial protection, 238. 
 
 Seigniorial right over aUens, 873. 
 
 Seisin, 324; acquired, 325; under 
 law, 326; giving of, 375; hereditarj^, 
 665. 
 
 Self-help, 564. 
 
 Senate, 75. 
 
 Separate estate, 807; judicial, 842. 
 
 Separate maintenance, 29, 749, 750. 
 
 Separation, judicial, 145; demand for, 
 in cases of distraint, 593, n. 1; of 
 assets, 682. 
 
 Servitudes, real, 420; natural and 
 legal, 422; of public utility, 422; 
 of private interests, 45^2 ; established 
 by act of man, 423; intention on part 
 of father to create, 424. 
 
 Set-off, 558, ibid., n. 2. 
 
 Share. See Legal Share. 
 
 Share of the dead, 691. 
 
 "Sippe," 21, 67, 622. 
 
 Sisters, competition between brothers 
 and, and ascendants, 649, n. 3. 
 
 Slavery for debts. See Satisfaction. 
 
 Slaves, 72._ 
 
 Social distinctions, 60. 
 
 Social evolution, factors of, 62. 
 
 Social laws, 62. 
 
 Society, 55; how formed, 61; ele- 
 mentary and composite, 63, 77; 
 primitive, 63. 
 
 Solidarity, 486, n. 1 ; family, 463. 
 
 "Solus consensus obligat," 501. 
 
 "Sondergut," 798. 
 
 "Sou et denier," 94. 
 
 "Speermagen," 67, 643. 
 
 "SpUlmagen," 67, 643. 
 
 "Splitting," 643. 
 
 Spouse, surviving, 652. 
 
 Spouses, contracts between, 175, n. 6; 
 gifts between, 793; system of 
 property between, 749; debts of, 
 831. 
 
 920
 
 INDEX 
 
 (References are to page3l 
 
 State, the, origin of, 55; organic 
 theory of, 5G; intervention of, in 
 matters of guardianship, 237. 
 
 States, confederation of, 61; Federal, 
 61. 
 
 Status of persons, 862, 867; certifi- 
 cates of civil, 862; certificates of 
 rehgious, 863; secularization of 
 certificates of civil, 865. 
 
 Statute, "De Donis," 311; of Ed- 
 ward III, 405; "De Religiosis," 
 406; of Westminster II, 406; of 
 Uses, 409. 
 
 Stipulation, 497. 
 
 Stock family of Le Play, 53. 
 
 Stocks, by ("per stirpes"), 639, 
 n. 3. 
 
 Sub-rank, 617. 
 
 Subrogation, 593, n. 1; actual, 278; 
 action of, 430. 
 
 Substitutions in trust. See Entails. 
 
 Succession, systems of, 19; rules of, 
 51; intestate, 621, 626; preference 
 for intestate, 621; various kinds of, 
 622; plurality of, 622; to estates of 
 intestate bastards, 627, n. 6, 653; 
 calling back to the, 632, 640; feudal 
 system of, 633; renunciation of, 
 633, 668; recalling to, 640, 718, n. 1; 
 to movables and acquests, 642; 
 to personal belongings, 642; irregu- 
 lar, 653; to estate of deceased 
 aliens, 653, 876, 878; confiscation 
 of, 653; vesting of, 658; incapacity 
 to, 659; acceptance and rejection 
 of, 668; acceptance of, pure and 
 simple, 668; renunciation to future, 
 669; time to make an inventory 
 and deliberate for, 669; covenants 
 pertaining to, 689. 
 
 Suggestion, 742, n. 4. 
 
 "Suiheredes,"626, n. 2. 
 
 "Summariissimum," 346, n. 2. 
 
 "Summarium," 346, n. 2. 
 
 Support, obligation to, 743, n. 4. 
 
 Surety, personal, 558. 
 
 Suretyship, 571; modern, 579. 
 
 Surrender, 350, 368; of possessions, 
 569; debtor's, 616. 
 
 Surviving spouse. See Spouse. 
 
 Sworn faith, 497. 
 
 Symbolical delivery. See Delivery. 
 
 System, of property between spouses, 
 749; of husband's "mundium," 
 749; without community, 750, 783; 
 with community, 783; English, of 
 property of spouses, 783; Norman, 
 of property of spouses, 787; Ger- 
 man, of unity of possessions, 793; 
 Roman, of marriage portion, 801; 
 of community, 812. 
 
 Taking by proclamation at Metz, 381. 
 
 Taking up arms, 183, n. b. 
 
 Tanistry, 19, 639. 
 
 Tenement, of five years, 358; dom- 
 inant, 420; servient, 420. 
 
 Tenure, 53; servile, 268; allodial, 268; 
 of a year and a day, 356; freehold, 
 379, 402; free urban, 414. 
 
 "Terra salica, 631. 
 
 "Terra aviatica," 631. 
 
 Testamentary executors, 691. 
 
 Testamentary provisions, 684. 
 
 Theft, 292, 298. 
 
 "Theilrecht," 800. 
 
 "Thinx," 685. 
 
 Third parties, authorization of hus- 
 band, 177. 
 
 Title, acquirement of, by inheritance, 
 664. 
 
 "To give and to withhold is not valid," 
 705. 
 
 Torrens Act, 366. 
 
 Town, Gallic, 69; Germanic, 69; the 
 ancient, 78. 
 
 Township, Anglo-American, 38. 
 
 Trade, things which do not come with- 
 in, 279. 
 
 Tradeswoman, wife as, 171. 
 
 Transactions, previous to partition, 
 849. 
 
 Transcription, 385. 
 
 Transfer of claims, 533. 
 
 Transfer of ownership by agreement, 
 367. 
 
 Treasure, 284. 
 
 Trent, Council of, 105, 131, 864. 
 
 "Triage," 47. 
 
 Tribe, 68. 
 
 U. 
 
 Unity, German sysem of, of posses- 
 sions, 793. 
 
 Ultimogeniture, 636, n. 1. 
 
 Undue influence. Sec Influence. 
 
 Unexpected birth of children. See 
 Children. 
 
 Union, personal, 61; actual, 61. 
 
 "Universal" heir. See Heir. 
 
 Uses, 408. 
 
 Usucaption, 301. 
 
 Usufruct, 418. 
 
 Usury, 521. 
 
 Vclleianum Decree of the Senate, 165, 
 
 171, 228, 499, 573, 787, 804. 
 "Verfangenschaft," 799. 
 
 921
 
 INDEX 
 
 [References are to pages] 
 
 "Venvaltungsgomeinschaft," 793. 
 "Vestigium minare," 292. 
 Vesting, and divesting, 375; of suc- 
 cession, 059. 
 "Vestitura," 315. 
 "Vif-gage," 605. 
 Voluntary decree, 617. 
 Vows, 190, n. 4; monastic, 126. 
 
 W. 
 
 "Wadiatio," 477, 586. 
 
 "Wadium," 484. 
 
 Waifs, 284. 
 
 Warrantor, does appear in court, 551; 
 does not appear in court, 5.50. 
 
 Warranty, because of eviction, 549; 
 formal, 551; simple, 551. 
 
 "Wergeld," 67; of women, 223, n. 1. 
 
 Wife, status of, 14; general incapa- 
 city of, 171; as tradeswoman, 171; 
 extrajudicial acts of, 172, 173; 
 judicial acts of, 173; separate proji- 
 erty of, 175; authorization of, 
 by husband, 170; authorization of, 
 by husband how given, 173; supple- 
 mentary authorization of, by hus- 
 band, 174; effects of authorization 
 of, by husband, 176; lack of author- 
 ization of, by husband, 176; au- 
 thorization of, third parties, 177; 
 husband's right of correction of, 
 167; disposal of share brought by, 
 761; rights of, over property jointly 
 acquired, 762; obtains dower on 
 going to bed, 773; rights of, over 
 dower, 774; rights of, over dower 
 during marriage, 774; rights of, 
 over dower at death of husband, 776 ; 
 movables of, 790; immovables of, 
 790; obligations contracted by, dur- 
 ing marriage, 804; offenses of, 831; 
 
 71. 4; part played by, 835; personal 
 belongings of, 837; right to choose 
 between acceptance and renuncia- 
 tion, 844. 
 
 Will, 52, 684, 696; alienation by, 276; 
 jurisdiction over, 697; capacity to 
 make or to receive by, G97; differ- 
 ent forms of, 699; canon, 699; mod- 
 ern law of, 700; holographic, 700; 
 nuncupative, 700; by public deed, 
 701; , written nuncupative, 701; 
 formal, 701; mystic, 701; revoca- 
 tion of, 701; express, 701; implied, 
 701; clauses in derogation, 702; con- 
 junctive, 702. 
 
 Wine to seal the bargain, 494. 
 
 Witnesses, 511. 
 
 Woman, emancipation of, 26; condi- 
 tion of, 221; in public law, 223; 
 "wergeld" of, 223, n. 1; changes 
 in condition of, 225; German and 
 Italian law on status of, 226; 
 status of, in France, 227; Velleia- 
 num Decree of Senate on, 227; 
 married, incapacity of, 787. 
 
 Writing, obligation by means of, 507; 
 proof by, 507; public, 509; private, 
 510. 
 
 Writs, of entry, 333; of arrest, 588, 
 n. 4; of distraint, 591, 7i. 6; of en- 
 cumbered marriage, 792. 
 
 Written law. See Countries of 
 Written Law. 
 
 Y. 
 
 Year and a day, prescription of, 354; 
 repurchase of, 445. See Tenure. 
 
 "Zadruga," 21. 
 
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