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cannot fail to be of interest to the student of comparative Jurisprudence in all countries.
Briefly stated, the question discussed at Coire was, what are the fundamental differences, in the Civil Law, between French and German Legislation, and what is the common ground on which they can meet or be fused ? Few subjects could be chosen more full of instruction in the particular branch of the Science of Jurisprudence to which I have adverted, and the political events of 1870-71 lend an additional interest to this attempt at a juridical unification of France and Germany. For Switzerland this question has not simply a theoretical but a directly practical value, and its solution is the more earnestly sought. The difficulties are great, beyond those of any other European country. France, Germany, and Italy, in their respective labours at the unification of their laws have known nothing like the obstacles that stand in the path of the Swiss Jurists. Between French and German Switzerland rises the apparently insurmountable barrier of two entirely different systems of law, as well as of two different languages. Knowing the difficulties of their task the Swiss Jurists set themselves early to work upon it. Ten years have elapsed since a first essay at unification was made in the Canton of Berne, a microcosm of the whole country, half French, half German, and therefore the fittest starting point for such an attempt.
By decree of the Grand Council of Berne, in January, 1864, a Committee was appointed to draw up a United Civil Code (Code Civil Unitaire), for the two parts of the Canton ; up to the present time the results produced consist of a general Report,* and the first book of the proposed Code. This rate of progress is not calculated to raise expectations
Rapport sur les bases d'un Code Civil Unitaire, pour le Canton de Berne, rédigé par M. Leuenberger, Berne, 1869. Projet de Code Civil pour le Canton do Berne. Titre preliminaire, Livre ler, Des Personnes et de la Famille, Porrentruy, 1871. Reference may also be made to an analysis of the Draft Code, by M. Lyon-Caen, in the “Bulletin de la Société de Législation Compared," for April, 1873.
of a speedy conclusion of the work which has yet to be taken in hand for the whole of Switzerland, but it would be unreasonable to complain of a slowness due to such exceptional circumstances. In order that each of the conflicting systems might be adequately represented in the discussion at Coire, the Swiss Juristenverein appointed two Reporters, M. Carrard, Professor of Law at the Academy of Lausanne, for French Switzerland, and Herr Hilty, advocate at Coire,* for German Switzerland. These two Reports, which were read before the Congress when it assembled, on the 6th Sept., 1873, under the presidency of M. Planta, and subsequently published by order,t may be fairly taken as the expression of juridical public opinion in Switzerland on the subject of unification.
The Reporters both begin with a general outline of Swiss Legislation, no easy task, when it is borne in mind that twenty-six Law systems prevail in the twenty-two cantons and portions of cantons, several of which are divided between different juridical administrations. Of these twenty-six bodies of Jurisprudence, fourteen only are codified, namely, Geneva (Code Napoléon), Berne-Jura (Code Napoléon), Vaud (1819, completed 1853), Berne, ancient canton (1824-30), Lucerne (1832, completed 1861 and 1865), Freiburg (1834--49), Ticino (1838, revised 1873), Solothurn (1842—48), Zurich, (1844–46), Aargau (1847–58), Neuchâtel (1854–55), Valais (1855), Grisons (1862), Schaffhausen (1864–65). It thus appears that the seven French cantons all enjoy a codified system, and, therefore, that out of the fourteen Codes existing in Switzerland, the French, or Napoléon,” element, occupies half the field.
There are commencements of codification, which would belong, however, to the Teutonic element, in Zug, Thurgau, Glarus,
* Now Professor at the University of Berne.
+ Originally in vol. ix. of the “ Zeitschrift des Bern : Juristenvereins," and afterwards separately, (the former in French, the latter in German) under the title, “ Die Haupt differentzen der Französisch-und Deutsch-Schweizerischen Civilgesetzgebung. Berpe, 1873.
and Lower Unterwalden. In considering the juridical aspect of the various Cantons it is necessary to note carefully their sub-divisions, which tend greatly to perplex the question. Thus, among the French cantons, Geneva Town, and the Bernese-Jura are under the Code Napoléon, only modified slightly in certain details; the canton of Neuchâtel, though never under the Code Napoléon, has yet followed it very closely; the cantons of Valais and Ticino are noticeable as combining with the Code Napoléon, the old Codes of the Kingdom of Sardinia and Duchy of Parma ; Canton Vaud has a Civil Code which presents a curious mixture of French law, and old local statute law; lastly, there is the Canton of Fribourg, which may be considered the point of junction between the “Pays de Droit Français and Pays de Droit Germanique.”
In the German cantons, nineteen systems of law prevail, of which six only are codified, the rest forming, as Mr. Gide says, “a veritable legislative mosaic." Through this labyrinth, however, the reporters have skilfully threaded their way, and we are thus enabled to touch very briefly on the salient points noted by them. The first charge which the German Reporter, Herr Hilty,* brings against the French Civil Code and the Swiss systems which have imitated it, is the absence of moral “personæ.” They had but a very scanty recognition, M. Gide points out, in the Roman Law. German Codes, on the other hand, generally begin by dividing persons into physical and juridical, and take special pains in regulating the rights of the latter class. As against this may be set what M. Gide calls a grave lacuna in the German Codes, namely, the absence of a title on registration (" Actes de l'état Civil”) such as finds place both in the French Code and the Codes of French Switzerland. In most of the German cantons, and even in the French canton of Vaud, the registers are kept by the clergy, without the guarantees afforded by the French law. This state of
• P. 78 of his Rəport. Cf. Carrard's Report, pp. 32-33. Carrard and Hilty are quite one on this point.
things, however, is hardly likely to be allowed to continue, under existing politico-religious circumstances, and in fact it is noted by M.Gide that article 53 of the new Federal Constitution of 1874 provides that "registration and the custody of registers shall belong to the State.” Up to this point we have been on comparatively easy ground, where the one system of legislation may be made to supplement the other. But with the Marriage Law of Switzerland serious differences commence. In the German cantons, whether Roman Catholic or Protestant, marriage is considered, if not as a Sacrament, at least as a religious act. Not only does the priest or pastor celebrate the rite, and exact communiontickets from the couple, but the marriage is itself regulated in accordance with Ecclesiastical Law. Hence in the mixed cantons persons belonging to different confessions are under different Legislations, and sometimes are forbidden to inter-marry. The French cantons, with the exception of the two Catholic cantons of Fribourg and Valais, have followed the example of France, and secularised the marriage ceremony. To this rule there is an apparent exception also in Canton Vaud, but M. Carrard contends* that it is only apparent, for in that canton “the pastor acts simply as a State functionary, whose duty it is to put into execution the Laws of the State and not of his Church." Whether the pastor can or does always so entirely divest himself of his clerical character may be doubted. The French cantons have not only substituted civil for religious marriage, but have also freed marriage from many of the restrictions and impediments under which it laboured before the French Revolution.
In the German cantons an entirely opposite mode of treatment prevails, of which M. Carrard gives some curious particulars. The list of canonical impediments upheld by the Roman Curia is itself sufficiently large, but the German cantons add communal impediments which must sometimes
Report, pp. 24-5.
be severe enough in their application to shake the patriotism of persons desirous of marrying. In these fatherly cantons the commune is regarded as an extension of the family, and the State only gives its daughters in marriage to those thrifty men who can provide for their possible children, and whose bachelor conduct was in keeping with the sanctity of matrimony. In these cantons, moreover, the support of needy citizens is a debt upon the commune; hence the commune is opposed to marriages which would increase its expenses, and only permits them to persons of substance.
As regards the dissolution of the marriage-tie the differences between Cantonal Legislations are not so great. All the Protestant Cantons, both German and French, recognise divorce; all the Roman Catholic Cantons, both French and German, refuse to admit it. The only difference is that in the French Protestant Cantons, the divorce is pronounced by the civil, in the German Cantons by the religious, authorities. So indispensable is the intervention of the clergy deemed in this matter in the cantons where it is required, that in Canton Zurich a Roman Catholic couple, if unable to have their divorce pronounced by their curé, must get it pronounced by the Protestant pastor.* Thus far, in the eyes of the German Reporter, French Law deserves the preference. On all points connected with marriage and divorce, Herr Hilty says he does not hesitate to declare that the French principles ought to be adopted by German Switzerland. And the New Constitution of the present year (1874) takes practically the same view, for by article 54, “no impediment to marriage can be based upon confessional considerationst (i.e., the Laws Ecclesiastical of any Religious Community), upon the poverty of either party, upon their conduct, or any other police reason whatever.” The
Carrard, pp. 25-6; Hilty, pp. 82-3.
+ Hence the marriage of ecclesiastics who have received major orders in the Roman Communion is legal in Switzerland. · Plus conséquents qu'on ne l'est en France,” says Prof. Rivier, in the “ Revne de Droit International," "aucun obstacle ne sera mis au mariage des prêtres.”