remain at the helm. This is precisely what happened at the two national elections of 1910. But in France, it is the ministry that must give way in any conflict with Parliament; dissolution is, practically, not available as a mode of ministerial vindication. In other words, the ministry is responsible to Parliament alone and not to the nation; it cannot appeal over the head of Parliament to the electorate, or ask the people to sustain it by electing a parliament of a different complexion. As has been explained, development in England has been of precisely the opposite sort. There, unless the circumstances are very unusual, the ministry refuses to yield to an adverse parliamentary majority unless the people back up that majority at the polls.1

2

Elements of Continuity and Stability." The chronic inability of the French to produce the two-party system," says an English writer, "is in itself a sure sign of their incapacity for parliamentary government. This judgment is much too drastic. Failure to develop a two-party system (and there is no indication that such a system will arise) unquestionably means that France cannot have parliamentary government of the English type. It may very well mean that her government must continue to be in some respects inferior to the English. But it does not mean that the French system is impossible, objectionable, or inefficient, or that it is not entitled to be called " parliamentary government." In point of fact, French government is exceptionally democratic, economical, and effective. It is also far more stable and continuous than might be inferred from the kaleidoscopic succession of ministries; and this for two main reasons. In the first place, in each executive department there is, as in England, a corps of highly trained officials who carry on the actual work of administration and who do not change with the rise and fall of their chiefs. In the second place, a ministerial "crisis" involves as a rule no very great upset. Defeated in the Chamber of Deputies, or unable to make progress, a ministry as a body resigns. But many of the members will probably be immediately reappointed, with perhaps an exchange of portfolios. In England a change of ministry usually means not only a new personnel throughout, but a general shift of policy. In France many familiar faces reappear, and the change of policy is apt to be microscopic. In her own way — which is

1 On the general subject of the control over the ministers by the chambers in France see Dupriez, Les ministres, II, 432-461; Esmein, Éléments de droil constitutionnel (4th ed.), 857-884; and Poudra et Pierre, Traité pratique de droit parlementaire, VII, Chap. iv.

2 Bodley, France, II, 176.

not necessarily the best way, but the only way for her, considering the conditions - France contrives to get most of the great advantages of parliamentary government. If the political surface seems unduly ruffled, it is only the ripples that reach the eye; the current runs deep and steady beneath.1

1 For varying estimates of the French parliamentary system see Bodley, France, II, Chap. v; Lowell, Governments and Parties, I, 127-137; and E. S. Bradford, The Lesson of Popular Government (New York, 1899), I, Chap. xv. See also Dupriez, Les ministres, II, 373-461; L. Duguit, "Le functionnement du régime parlementaire en France," in Rev. Polit. et Parl., Aug., 1900; C. Benoist, “Parlements et parlementarisme," in Rev. des Deux Mondes, Aug. 1, 1900; ibid., La réforme parlementaire (Paris, 1902); J. Barthélemy, L'introduction du régime parlementaire en France (Paris, 1904); F. Moreau, Pour le régime parlementaire (Paris, 1903), and H. Leyret, Le gouvernement et le parlement (Paris, 1919). An interesting piece of reading in this connection is J. T. Shotwell, "The Political Capacity of the French," in Polit. Sci. Quar., Mar., 1909.

CHAPTER XXV

LAW AND JUSTICE

Legal Origins. The law of France, like that of England, is deeply rooted in the past and includes elements drawn from many sources. Considerable parts of it are strictly modern, having sprung from the legislation of the successive national assemblies between 1789 and the present day. But other important parts represent codifications of legal principles and rules whose origins are traceable to the Middle Ages, or even to a remoter antiquity. Aside from certain contributions from the canon law, French law in medieval and earlier modern times. consisted chiefly of (1) survivals of Roman law; (2) local coutumes, or "customs "; and (3) royal legislation. Roman law, which under the later Empire was extended over the whole of Gaul, was neither entirely superseded nor forgotten because of the Germanic occupation; and in the eleventh and twelfth centuries it underwent, especially in the south, a notable revival. From this time dates the division of the kingdom into the southern pays de droit écrit (“ land of the written law "), in which Roman law, as codified by Justinian, was received as the ordinary law, and the northern pays de coutume ("land of customary law "), where the Roman law was far outweighed by custom. As late as the sixteenth century fresh influences of the Roman law, in such fields as contracts and obligations, were powerfully exerted on the development of legal usage throughout the country, even in the north.

Customary law sprang partly from old Germanic practices, partly from feudal usage, partly from the decisions of a wide variety of public and private courts. It was local law; for although the coutumes of the petty jurisdictions tended to merge into bodies of law having force throughout large regions, this development never went so far as to bring about substantial uniformity of law over the kingdom as a whole. The English common law which also was the product of custom - found in France no analogy; 1 Voltaire could still say at the middle of the eighteenth century that a traveler in France had to change

1 See pp. 207-209.

laws about as often as he changed horses. Originally, the customary law was unwritten. Jurists, however, occasionally made collections, called livres coutumiers, and judges' clerks sometimes compiled registers of notable decisions. By the sixteenth century the "general" customs of the provinces and districts of the pays coutumiers were, in most cases, formally recorded. Their codification became, indeed, a matter of official action. Drafts prepared by the king's judicial agents in the districts were submitted to the government, referred back to specially constituted local assemblies, and finally proclaimed by royal commissions; and the texts could thenceforth be altered only by the same procedure.

Royal legislation took the form of édits, déclarations, or ordonnances, which were sometimes applicable to the entire country, sometimes only to specified sections. The grandes ordonnances of the fourteenth, fifteenth, and sixteenth centuries were commonly promulgated after sessions of the Estates General and, being drawn up with a view to meeting the suggestions of the deputies, were likely to embrace a good deal of new law, or at least to make important changes in the old laws. From 1614 to 1789 the Estates General was, however, never convened, and in this period the ordonnances oftener took the form of a codification of a particular branch of law. Under Colbert's direction, in the reign of Louis XIV, a code of civil procedure was issued in 1667, a forest code in 1669, a code of criminal procedure in 1670, a code of commerce on land in 1673, and a code of commerce on the sea in 1681. Similarly, at the instigation of the chancellor d'Aguesseau, in the reign of Louis XV, codes were issued relating to wills, property left in trust, and other matters.'

The Great Codes. The Revolution was an event of the first magnitude in the history of French law, for two principal reasons. In the first place, the successive assemblies revised or abrogated a very large part of the existing law, and enacted great masses of new and uniform law, on marriage and divorce, on inheritance, on land tenure, on criminal procedure, and on many other subjects. In the second place, the Constituent Assembly and the Convention undertook, although they were not able to carry far, the codification or recodification, of the whole body of French law, old and new, civil and criminal. In 1791 the Constituent Assembly gave the country its first penal code; four years later the Convention gave it a new code of criminal procedure. The greatest need was a code of civil law, which should bring together the 1 Ilbert, Legislative Methods and Forms, 8-15.

best that was in the regional systems, fuse it with the new legislation, and thus furnish a nation-wide and uniform legal system. Such a code was earnestly demanded in the cahiers of 1789 and was definitely promised in the constitution of 1791.

Some steps in this direction were taken by the first two Revolutionary assemblies, but the development of a coherent plan began only in the Convention, in 1793.1 In the period of the Consulate (1799-1804) the task was continued and progress was rapid. The drafting of the code was intrusted to a special commission, appointed by the First Consul, Napoleon; and the final decision of difficult or controverted questions fell to the Council of State, over whose deliberations Napoleon frequently presided in person. On March 31, 1804 - less than two months before the Empire was proclaimed the new Code Civil des Français was promulgated in its entirety.2

In arrangement the Code resembles the Institutes of Justinian, and also Blackstone's Commentaries; in content it represents a very successful combination of the two great elements with which the framers had to deal, i.e., the ancient heterogeneous law of the French provinces and the new uniform law which flowed from the deliberations of the Revolutionary assemblies. Napoleon justly regarded the Civil Code as the chief glory of his reign.

With the progress of time certain defects appeared, and since the middle of the nineteenth century the Code has been repeatedly amended and expanded, although it remains essentially the same in principle as when it left the hands of its framers. The last important revision was worked out by an extra-parliamentary commission created at the celebration of the Code's centennial in 1904. In the main, the faults to be corrected were such as had sprung from the development of new interests and conditions, notably in the domain of industry and labor. As a great scientifically organized body of law, the Code has had world-wide influence. In Belgium, which received it when the country formed a part of the Greater France of Napoleonic times, it survives practically intact. The Rhine Provinces of Germany abandoned it only on the promulgation of the civil

1 1 H. Cauvière, L'idée de codification en France avant la rédaction du Code Civil (Paris, 1911).

2 In 1807 the instrument was renamed the Code Napoléon. tion was restored in 1818, the amended name again in 1852. name has been Code Civil.

The original designaSince 1870 the official

3 See La Code Civil, livre du centenaire (Paris, 1904) - a volume of valuable essays by French and foreign lawyers. Cf. M. Leroy, "Le centenaire du code pénal," in Rev. de Paris, Feb. 1, 1911.