regulate the family council. Thus an edict of 1673 ordains that six relations on the paternal, and as many on the maternal side of any orphan or orphans, shall assist the judge in selecting trustees. A clause of the Breton Code enjoined that consultation should be held as to the education of the minors in question, "the profession, whether of arms, letters, or otherwise, for which they should be trained, the same to be decided according to their means and position."

In the Nivernais, the family council consisted of seven members; in the Berri of six; in the Orléannais of five. The Parliament of Bordeaux in 1700 fixed the number at six, as in the Berri. These facts show the importance attached to the function before the Revolution. Up to that period it was an elastic system based upon usage and tradition rather than law; the family council now underwent minute and elaborate revision at the hands of successive bodies of legists; finally embodied in the Code Napoléon it has undergone little modification to our own day.

One of the most curious documents in this history is the rescript drawn up by Napoleon III. and his ministers at the Palace of St. Cloud, June, 1853. Following the statutes regulating the position of all members of the Napoleonic House, we have here the Imperial Family Council, as permanently and finally organized. The emperor decided its constitution beforehand, once and for all. In other ranks of life such an assembly is called together when occa sion requires.

"The Conseil de Famille." runs the ordonnance, "shall be presided over by the Emperor in person, or some representative of his choosing; its members will consist of a Prince of the Imperial family also chosen by the Emperor, of the Minister of State, the Minister of Justice, the Presidents of the Senate, the Legislative Body, and the Council of State, the first President of the Court of Cassation, of a Marshal of France or General of Division named by the Emperor."

As we proceed in this enquiry we see how utterly at variance are autocratic principles with the real spirit of this domestic legislation. A body thus framed was a mere "vehmgericht," not dealing certainly with life and death, but with personal liberty and fundamental rights of the individual. Thus this imperial assembly could declare any member of the family incapable of managing his affairs, in other words, shut him up as a lunatic. All the powers vested in the Conseil de Famille were in this case without a single guarantee to the individual whose interests were concerned.

The origin of this truly patriarchal system is doubtless two-fold. Although not directly traceable to Roman law, the family council must be considered as partly an outgrowth of that source. In certain cases legal decisions concerning the property or education of minors in ancient Rome were guided or modified by the advice of near relations. But there was no obligation on the part of the magistrate; his decision was final.

On the other hand, the spirit of this domestic conclave is eminently Gallic. We find the same spirit animating French life at the present day. In France, the family does not only mean the group of father, mother, and children, who gather round a common board. "La Famille," rather conveys the notion of a clan, the members of which are often settled within easy reach of each other, their entire lives spent not merely as kinsfolk, but as neighbors. To realize this aspect of French society we must live in the country.

"The entire system under consideration," writes a French lawyer, "is based upon the bonds which unite, or ought to unite, the members of a family. It is a development, and not one of the least happy, of the patriarchal spirit. Its general tendency is excellent, and the rules framed for practical use are admirably drawn up and adjusted. Further, this legislation is in perfect harmony with our national character and our theories concerning children generally. We love children, perhaps,

too well, since so often we spoil them by excess of tenderness." Regard for the welfare of children and of property underlies the constitution of the "Conseil de Famille;" the same motives, therefore, that actuate minds in the present day were uppermost centuries ago. No more striking evidence of national affectionateness and forethought is to be found than in the family council as handed down from the days of the good King Réné to the Third Republic.

II.

ITS CONSTITUTION.

The family council may be described as the guardian of guardians. It is an assemblage of next-of-kin, or in de fault of these, of friends, presided over by a justice of the peace, called together on behalf of orphans, of mentally incapacitated or incorrigible minors (see Art. 388 and 487 of the Code Civil). It is composed of six members exclusive of the juge de paix, namely, three next of kin on the paternal and three on the maternal side; in default of these their place may be filled by friends. Natural children, according to the law, have no relations; in their case, friends or relations of the father acknowledging them are eligible. No one who has forfeited civil rights by imprisonment can form part of the council; members must be of age, and where two are equally fit, the elder is selected in preference to the younger.

From

Here follow some clauses that strongly bring out the Napoleonic distrust and contempt of women. end to end of the Code Civil we discern this spirit. The woman, the wife, the mother, is relegated to the status of minor, imbecile, or criminal. Thus, no married woman can join a Conseil de Famille except the mother or grandmother of the ward whose interests are in question; the same rules hold good with regard to guardianship.

Friends taking the place of kinsfolk are always named by the juge de paix, and cannot be accepted simply from the fact of offering themselves.

Unnaturalized foreigners, or French people who have accepted another nationality, are ineligible for the family tribunal. Nor can those take part in the deliberations who at any time have had a lawsuit with parents of the minor in question.

So much for the constitution of the family council. We will now proceed to its formalities. Here it is necessary to say a word about the juge de paix, whose name occupies a prominent place in this history. "French law," writes a legist in his commentary on the Conseil de Famille, "constitutes the juge de paix natural protector of the minor."

The juge de paix, we need hardly say, is a creation of the Revolution. His

mission, as set forth in the code, is to assist, conciliate, decide. He can sentence to short terms of imprisonment and to fines not exceeding two hundred francs. In cases of burglary, accident, murder, suicide, arson, he is immediately summoned to the scene to take evidence. It is his office to seal the papers of defunct persons, and to preside at the family council. The appointment of these rural magistrates is made by the State, and they receive from three to four thousand francs yearly, and a small retiring pension at the age of sixty. As a rule, entire confidence is placed in such intermediaries between the people and the higher courts of justice. A juge de paix once informed me that in nine cases out of ten he was able to arrange disputes between employer and workman, or peasant owners quarrelling about boundaries. The family council is convoked by the juge de paix on his own account or at the request of friends or relations of the minor; summonses to attend may be sent out in two forms, either by a simple notice or by a "cédule" or obligatory request. In the former case, attendance is optional, in the latter refusal without valid excuse exposes the offender to a fine of fifty francs. But what is a valid excuse? "Accident, sickness, absence,” writes a commentator; in fact, any obstacle which the juge de paix holds insuperable. With him rests the responsibility of the fine, also the compo

learned commentator,' "that the 'curateur à l'enfant à naître' is named solely in the interest of a man's heirs, a result as pointed out elsewhere due to an adhesion to Roman law; Article 393, has crept into our code probably without due weighing of consequences on the part of the legislator." The curateur's duty is also to verify the condition of the wife "dans la mesure des convenances," also the birth of a legitimate child. When we reflect that the legal heirs of a defunct person are his next of kin, we can easily understand the offensiveness of this law to an honorable, delicate-minded woman; at the same time we are bound to admit that such precautionary measures would in our own country prevent the scandal of a "Baby Claimant." French law, sometimes for good, certainly sometimes for evil, interferes with private life much more than in England. When we come to the subject of minors and orphans, we appreciate the enormous power vested in the family council. The appointment of trustees and guardians, when not made by parents, rests entirely with this assemblage; also in its hands is a power requiring more delicate handling still, namely, the withdrawal of paternal authority. Here we meet with points recalling the Society for the Protection of Children, founded some years ago by the Rev. Benjamin Waugh. As will be seen, however, the family council holds entirely aloof from criminal cases, concerning itself with civil affairs only, first and foremost with the disposition of property. All who have lived in France among French people understand the pre-eminence attached to invested capital. The English for the most part live from hand-to-mouth. Our neighbors regard such a condition as sheer Bohemianism, brand of a shift1 M. J.-L. Jay, Conseils de Famille.

2 When the last surviving parent has failed to appoint trustees and guardians, the duty devolves upon paternal or maternal grandfathers; grandmothers are ineligible. This is the Tutelle légale, the Tutelle dative being that appointed by the family council.

come bankrupt equally with the forfeiture of civil rights by imprisonment, is no longer allowed to manage his children's affairs, that is to say the property hitherto held in trust for them; and here a remark by the way. As a rule, all children of middle-class families have some provision tied down to them from their birth. Thus an officer marries a wife with interest of capital bringing in about fifty pounds a year of our money. But that capital is strictly settled upon the children in the marriage contract. If dispute occurs as to the bringing up of such children, the same being left motherless, a family council is called, and all questions decided upon as in the case of a widow. "From the earliest time," writes a learned commentator, "minors have been regarded (by French law) as privileged beings, placed under the protection of society generally." Alas! history proves that this optimistic view will not bear too close an inspection.

French legists have doubtless done their best for the foundling, the illegitimate, the disowned. Especially within recent times has the lot of these waifs and strays been ameliorated by the law. Terrible was their condition formerly as revealed in early records, also in statutes and legal commentaries. During the Middle Ages, when, according to a French writer, "Roman law fully excrcised its disastrous influence, foundlings were deposited at church doors, sex and age of each child were inscribed in a book called the "matricule" (Lat. matricula), they were reared in convent or nunnery, and, when sufficiently grown, sold by auction. These wretched little beings were chiefly offered for sale in the large cities and purchased by the poor for a mere trifle, often disfiguring or even maiming their chattels so as to excite public compassion. It was not till 1640 that St. Vincent de Paul founded the first foundling hospital in France. A century before, the ordonnance of Moulins had obliged the communes of that jurisdiction to maintain all abandoned children

found within their limits. In 1599, the Parliament of Paris had moved in the same direction, ordaining that the charge of foundlings should fall upon the parishes to which they belonged." It is the honor of the Republic to have established orphanages in all the cities and larger towns. By a law, moreover, of 15 Pluviose An. XIII., a kind of family council was appointed for the children of the State. The "conseil de tutelle," discharged the functions of a "conseil de famille." This trusteeship lasts till the majority or marriage of the individual.

We now come to a class only a degree less unfortunate. I allude to the acknowledged children of irregular connections, the illegitimate. French law, as we know, is very merciful to parents who will atone for such lapses. Marriage, no matter the age of the offspring, legitimizes. A natural child is thereby put on precisely the same footing as if born in wedlock.

In all other caces the law stands by him, in so far as possible, protecting and promoting his interests. "If there is a human being in the world requiring legal guardianship," writes a commentator before mentioned, "it is without doubt the illegitimate, friendless from the cradle, having no relations, none to look to but him to whom he owes his birth. The care and maintenance of natural children is the duty, the obligation of every father. If no provision were made by law to this effect, such provision would have to be made." The Code Civil has in so far as possible regulated the position of natural children. A family council, however, summoned on their behalf cannot be composed in the ordinary way, the illegitimate having neither kith nor kin. The relations of the father acknowledging them. friends of both father and mother are accepted, and the legal guardianship is framed on the same principles as that of children lawfully begotten. Volumes have been written on this subject, legists differing as to the right of a natural child to what is called legal or confessed guardianship,

"tutelle légale," i.e., paternal, or “tutelle dative," i.e., appointed by the family council. When difficulties arise, the matter is settled by the Cour de Cassation.

After minors, orphans, and illegitimates come the "interdis," or individuals pronounced incapable of managing their affairs. These are imbeciles, maniacs, and persons condemned for criminal offences. Here the Code Napoléon, now known as the Code Civil, amended the sterner Roman clause, according to which a deaf mute was placed on a level with idiots. A dispute on this question having arisen at Lyons in 1812, the Cour de Cassation decided that a deaf mute giving evidence of intelligence, although unable to read and write, must be pronounced compos mentis.

In the case of insanity a family council is summoned as a preliminary measure, a judicial sentence being required before depriving the individual in question of his liberty. An instance of the kind came some time ago under my own notice. The conseil de famille had agreed as to the necessity of seclusion, the tribunal decided otherwise. It will thus be seen that, except in case of a veritable conspiracy of relations, friends, and juge de paix, the extensive powers of this domestic court is hemmed round with guarantees. Again, we must bear in mind a fact constantly insisted upon by French legists, namely, that we are here dealing with a "conseil d'avis," a consultation acknowledged by the law and responsible to the law, not with legislation itself.

A final class coming under the wardship of the family council consists of the incorrigible and the spendthrift, in French phraseology "le prodigue."

Any guardian having grave matter for complaint against his ward, is em powered to summon a family council in order to pass the disciplinary measure called "la zéclusion," in other words, a term of modified imprisonment (Code Civil, Art, 468, De la puissance paternelle).

This thoroughly French custom will