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The Jersey Law Review - October 2004

FROM CUSTOM TO CODE - THE USEFULNESS OF THE CODE CIVIL IN CONTEMPORARY GUERNSEY JURISPRUDENCE

Gordon Dawes

Three centenaries

1       Centenaries are an excuse, should one be needed, to recall and commemorate history.  In the year 2004 there are three particular anniversaries to mark and to celebrate.  In reverse order of calendar date they are as follows.

2       First, on 24th June 1204 (800 years ago), Rouen surrendered to the forces of King Philippe Auguste of France, the culmination of events which led directly to the special constitutional position of the Channel Islands.[1]  The 8th centenary of the English Crown’s loss of mainland Normandy is an appropriate time to remind ourselves, as well as others, of the Islands’ distinct and very ancient laws, customs and rights.

3       Secondly, on 21st March 1804 (200 years ago), the Code Civil des Français[2] was promulgated by Bonaparte, Premier Consul.  The bicentenary of that great work of jurisprudence has been marked in a number of ways, including the publication by Dalloz of a facsimile of the 1804 Code,[3] a Livre du Bicentenaire with forewords written by the Président de la République, the Président du Sénat, the Président de l’Assemblée Nationale and the Garde des Sceaux, Ministre de la Justice[4] and the re-publication of various texts commemorating the event.  It is hard to imagine any piece of English legislation being celebrated in quite the same way; certainly none from the last 300 years.  Even Magna Carta[5] and the Bill of Rights[6] are more noteworthy as historical events conferring certain basic freedoms as opposed to being great works of law-making in themselves.

4       The Code civil’s influence spread far beyond the boundaries of France.  There are papers in the Livre du Bicentenaire concerning the Code civil and its future in Africa as well as its effect in Argentina, Israel, Louisiana, the Middle East, the Netherlands, Peru, Quebec and Vietnam.  This is not to overlook countries such as Belgium, Luxembourg, Portugal, Spain, Italy and even Japan.[7]  The purpose of this paper is to consider the relationship of the Code civil to Guernsey law and to examine the potential usefulness of the Code as a source of inspiration in the making of future case-law.

5       Thirdly, on 8th April 1904 (100 years ago), the Entente Cordiale was signed by the British Foreign Secretary, Lord Lansdowne, and the French Ambassador, Paul Cambon.  The Entente marked a turning point in Anglo-French relations, settling long-standing disputes and laying the foundation for a close relationship based upon mutual respect, if not full understanding, and the recognition that the two nations’ respective interests were better served through friendship as opposed to enmity.

Guernsey froideur[8]

6       It has to be conceded from the outset that Guernsey has been rather leery of the Code civil.  Although it is, of course, possible to find Guernsey cases which cite the Code civil they are not all that frequent.  At the same time there are cases which show a certain disregard for the Code even in areas of law where one might expect it to be influential.  Thus, in the case of The Rector and Churchwardens of St Saviour v Traisnel & Bougourd[9] it was held that the Church had a right of way through German-built tunnels on neighbouring land to the tunnels under the Church itself by operation of law.  The Code civil was cited and the principles applied to the facts of the case.  However, in Singleton v Le Noury,[10] another case concerning servitudes, Sir Charles Frossard stated -

“This Court is of [the] opinion that the Code civil has no application in this case.  The commentators on the coûtume set out in detail the law to be applied.”

7       The Jersey Court of Appeal went further in Public Services Committee v Maynard[11]where Southwell JA stated -

“… care has to be taken in referring to French legal texts in connection with the law of Jersey.  After the Channel Islands were severed from the rest of the Norman territories in what is now France, Norman customary law continued to develop in Jersey, Guernsey and Normandy in parallel, but not with identical developments.  In Normandy, development was naturally affected by doctrines prevailing in other parts of France.  The Napoleonic Codes embodied much of the pre-existing laws of the French provinces, but with some material changes.  After the Napoleonic Codes came into existence, French law developed independently of developments in Jersey and Guernsey, under the direction or influence of French statutes, French jurisprudential writers and the case law of the French courts.  Accordingly, no great weight can be placed on French law as it exists today in ascertaining what is Jersey law, except perhaps on a comparative basis as showing how the same problems have been treated in another legal system.  …”[12]

8       The principal purpose of this paper is to suggest that the Code has a considerable amount to offer contemporary Guernsey jurisprudence.  It is a combination of the circumstances in which the Code came into being and a misperception of its true nature which has, perhaps, led to its playing less of a part in Guernsey jurisprudence than might have been expected.  It is suggested that the Code should be re-examined and referred to as a matter of course, not only in those areas of Guernsey law which depend upon customary or French law, but generally.

The historical context

9       Guernsey jurisprudence has a long memory; that memory is perhaps a little coloured by the less than propitious circumstances of the Code’s birth; at least so far as the Channel Islands and insular public opinion were concerned.  There was very good reason to be suspicious of all things French towards the end of the 18th century.  On 1st May 1779 the so-called Prince or Count of Nassau with almost 3,000 men and fifty flat-bottomed boats escorted by five frigates and armed cutters appeared in sight of Jersey and attempted to land in St Ouen’s bay.  However, after one reportedly “feeble attack”[13] the French gave up.  A more serious attempt was made during the night of 5th and 6th January 1781 under the leadership of the Baron de Rullecour.  This impetuous commander pursued his invasion attempt notwithstanding the dispersal of his fleet in a storm and the fact that half his men never reached Jersey.  Of the 1,000 men who attempted to land only 600 managed to reach shore.  The watchmen were asleep and the people of Jersey awoke the following morning to find the market place of St Helier filled with French soldiers.  However, there were 1,900 regular British troops garrisoned on the island together with a similar number of militia and the resulting battle was an unequal one.  The French surrendered, but not before both the Baron and the leader of the opposing British force, Major Peirson, had been killed in the action.  Peirson is commemorated by a tablet set in the ground outside the Royal Court, Jersey.

10     The French revolution was barely eight years after these events.  Again popular opinion would have been strongly against the French.  Within a little over a year of the revolution Edmund Burke produced his Reflections on the French Revolution, a lengthy essay[14] written in the form of a letter to a French correspondent.  His work can be said to have led the reaction in England to the events in France.  Burke expressed himself in strong terms -

“Formerly your affairs were your own concern only.  We felt for them as men; but we kept aloof from them, because we were not citizens of France.  But when we see the model held up to ourselves, we must feel as Englishmen, and feeling, we must provide as Englishmen.  Your affairs, in spite of us, are made a part of our interest; so far at least as to keep at a distance your panacea, or your plague.  If it be a panacea, we do not want it.  We know the consequences of unnecessary physic.  If it be a plague, it is such a plague that the precautions of the most severe quarantine ought to be established against it.”[15]

11     Of course, Burke was writing a long time before even the Terror of 1792 - 1794 and the terrible excesses of that period.  Meanwhile France was at war with most of the European powers in varying combinations in the years following the Revolution, including England.  Napoleon came to the fore through his military success; becoming First Consul in 1799 and crowning himself Emperor in 1804.  The state of hostility between England and France intensified.  All of these events, before and after the turn of the century, were felt keenly in the Channel Islands.  As Duncan notes -

“During the horrors of the French revolution, a vast number of royalists fled from their own country to escape the deadly persecutions which threatened them, and found an asylum in these islands, where they were received with hospitality and kindness …”.[16]

12     Duncan tells us that during the revolutionary war against France, the privateers of Guernsey were “eminently distinguished by the hardihood of the crews and the rich prizes they captured”; noting also that -

“The celebrated Edmund Burke once observed, that the Channel Islands alone might rank among the naval powers of Europe, and certain it is that they have contributed their full share to that naval pre-eminence, which is the chief dowry of Great Britain.”[17]

13     Encounters between the French and English navies took place within sight of the coast of Guernsey, including the notable occasion on 8th June 1794 when Captain (later Admiral) Sir James Saumarez out-sailed a much superior naval force whilst permitting the rest of his ships to make good their escape.  Meanwhile two divisions of Russian troops were landed in the Channel Islands (by agreement, because they could not be landed in England given the terms of the Bill of Rights) under a French émigré general; some six thousand were garrisoned in Guernsey.  Tupper says of them that -

“Their conduct towards the inhabitants was at first peaceable and orderly, although they were excessively fond of ardent spirits; and, having plenty of money, they indulged in them freely, swallowing immense quantities in a raw state at one draught.”

14     The Russians left in June 1800 under something of a cloud, Tupper reporting that “the guns at Castle Cornet were kept shotted to prevent their relanding”.  The Napoleonic wars raged on land and sea until Waterloo finally put an end to Bonaparte’s career followed by exile on another British island, St Helena.  In the circumstances it is not entirely surprising that there should have been no headlong rush to adopt provisions of the Code Napoléon.

The birth of the Code civil

15     Napoleon had plenty of time to reflect on his career whilst in exile.  In his Présentation of the 2004 Dalloz re-print of the Code Civil des Français, Jean-Denis Bredin cites an earlier author as follows -

“«C’est par l’histoire» a écrit Jean Charbonnier, qu’il est «entré dans notre mémoire», il a été mis au monde par la volonté de l’illustre Naploéon Bonaparte, déjà présent dans l’histoire et qui tant la secouera.  «Ma vraie gloire», dira l’Empereur déchu, exilé à Sainte-Hélène, «ce n’est pas d’avoir gagné quarante batailles … Ce que rien n’effacera, ce qui vivra éternellement, c’est mon Code civil.  J’ai semé la liberté à pleine main partout où j’ai implanté mon Code civil» proclamera-t-il encore, sur son rocher, achevant de contempler sa gloire.”[18]

16     It is true that Napoléon deserves considerable credit for the creation of the Code civil; not just through his force of personality but via his personal input in the lengthy debates contributing to the final form of the Code.  However, there is much more to the history of the Code.  The consolidation, if not codification, of “French” law had been the ambition of many a French King long before the revolution intervened.  Indeed one can trace back these initiatives to at least the 16th century when the provinces were ordered to write down their customs in an authoritative form.  “French” law was then so hopelessly fragmented that Voltaire famously commented that an individual changed laws as often as he changed his horse.[19]  Halpérin says:

“Au nord et au centre de la France sont en vigueur pas moins de 65 coutumes générales (et plus de 300 coutumes locales dérogeant sur quelques points aux précédentes) … Au sud de ces pays de coutumes, les pays dits de droit écrit ont acclimaté le droit romain aux conditions locales au gré de la jurisprudence propre à chaque parlement.  …”[20]

17     One of the principal purposes of the Code was to unite French law as part of the process of forging a true nation, whether as an end in itself or else to consolidate the centralisation of power.

18     The Code was not a revolutionary document per se, more reactionary.  It was only the product of the revolution inasmuch as the revolution swept away aspects of the ancien régime which would otherwise have obstructed the creation of the Code; for example the abolition of feudal rights and dues on 11th August 1789, or the very existence of a King incapable of ruling his country effectively in favour, ultimately, of a person who most certainly could.  Napoleon did not carry on the revolution, he ended it.  His own coronation and the promulgation of the Code were each powerful symbols of this fact.

Authors of the Code civil projet

19     The four individuals appointed on 12th August 1800 to produce the draft of the Code civil were each of them products of the ancien régime and in particular of l’ancien droit.  Tronchet had been an Avocat au Parlement de Paris since 1745 and appeared as one of the advocates of Louis XVI before the Convention.  He became President of the Tribunal de Cassation at the beginning of the Consulat; Jean-Louis Halpérin describes him as appearing “… surtout comme un fin connaisseur de l’ancien droit (et plutôt comme un défenseur de la coutume de Paris)”.[21]  Portalis was a “brillant” advocate at Aix under l’ancien régime.  He was a loyalist during the revolution and was lucky to survive, being imprisoned briefly and going into exile in Switzerland and Germany.  He returned to France with the accession to power of Bonaparte.  Portalis is seen as the principal figure of the four and deserves considerable recognition for his achievement; he can be seen as the true father of the Code.[22]  Bigot de Préameneu was an advocate of the Parlement of Rennes; he too had been imprisoned during the revolution.  Maleville was designated secretary of the commission and had been an advocate of the Parlement of Bordeaux.  Halpérin says this of the four -

“Les quatre hommes partagaient un parcours et des opinions similaires:  practiciens de l’ancien droit (aussi bien du droit écrit que du droit coutumier), ayant l’expérience des assemblées, ils étaient fondamentalement des modérés, peu enclins à révolutionner le droit.”[23]

20     They worked quickly; the draft was printed and distributed on 21st January 1801.[24]  The draft was preceded by a Discours Préliminaire written by Portalis extending to some 55 pages of text, itself regarded as a masterpiece of French jurisprudential writing[25].  The Discourse sets out the approach of the Commission and the underlying philosophy of the Code.  The emphasis of the Discourse is the respect accorded to the ancien droit.  Portalis expressly contrasted the circumstances of the revolution with those of 1801 noting that -

“… un bon Code civil pouvait-il naître au milieu des crises politiques qui agitaient la France?

Toute révolution est une conquête.  Fait-on des lois dans le passage de l’ancien gouvernement au nouveau?  Par la seule force des choses, ces lois sont nécessairement hostiles, partiales, éversives.”[26]

21     By contrast:

“Aujourd’hui la France respire; et la constitution, qui garantit son repos, lui permet de penser à sa prospérité.

De bonnes lois civiles sont le plus grand bien que les hommes puissent donner et recevoir; elles sont la source des mœurs, le palladium de la propriété, et la garantie de toute paix publique et particulière:  si elles ne fondent pas le gouvernement, elles le maintiennent; elles modèrent la puissance, et contribuent à la faire respecter, comme si elle était la justice même.  Elles atteignent chaque individu, elles se mêlent aux principales actions de sa vie, elles le suivent partout; elles sont souvent l’unique morale du peuple, et toujours elles font partie de sa liberté:  enfin, elles consolent chaque citoyen des sacrifices que la loi politique lui commande pour la cité, en le protégeant, quand il le faut, dans sa personne et dans ses biens, comme s’il était, lui seul, la cité tout entière.  …

Mais quelle tâche que la rédaction d’une législation civile pour un grand peuple!  L’ouvrage serait au-dessus des forces humaines, s’il s’agissait de donner à ce peuple une institution absolument nouvelle, et si, oubliant qu’il occupe le premier rang parmi les nations policées, on dédaignait de profiter de l’expérience du passé, et de cette tradition de bon sens, de règles et de maximes, qui est parvenue jusqu’à nous, et qui forme l’esprit des siècles.”[27]

22     No one could have been left in any doubt as to the intention or the sympathies of Portalis and his co-commissioners.  Halpérin sums up the Code very elegantly in this way -

“Personne ne conteste qu’il s’agit d’un monument de l’histoire du droit français, ligne d’horizon vers laquelle convergent les évolutions des sources et des institutions de l’Ancien droit et point de départ de l’histoire contemporaine d’un droit privé désormais unifié.”[28]

And:

“Présenté comme une transaction entre les coutumes et le droit écrit, comme une œuvre tenant compte de “l’expérience du passé” et d’un “riche héritage”, le Code civil ne pouvait manquer d’apparaître comme une consolidation de règles et de formulations issues de l’Ancien droit.”[29]

The Code as synthesis

23     The Code civil was a synthesis of what went before; it represents a form of Hegelian dialectic;[30] i.e. the result of thesis (ancien droit), antithesis (revolutionary law) producing synthesis (Code).  It is sometimes objected that the element of revolutionary law, or more particularly non-Norman, law in the Code means that Guernsey law cannot look to the Code, at least not confidently.  However, this is to aggrandise the significance of ancient customary law as well as to overlook its many lacunae.  It is very rare that one will lift a contemporary Guernsey law solution off the page of the Grande Coutume or its last great commentator, Guillaume Terrien.

A re-evaluation of Guernsey customary law

24     When Elizabeth I sent out commissioners to enquire as to the “true state of that Isle” the resulting Order in Council dated 9th October 1580 shows that they found complaints of “want of due administration of Justice through the libertie, the Bailiffe and Jurats do take unto them selves to directe their Judgements by presidents, wherein there is neyther certainety nor rule of Justice … forsaking the Customarye of Normandie whereunto they should holde them selves …”.  The Bailiff and Jurats were ordered to follow the Grande Coutume save in those respects where local practice and law differed, as to which they were to produce for the Privy Council a written report.[31]  Meanwhile they were only to observe variations from the Grande Coutume such “… as they can shew have ben used there time out of minde …”.  The order appears not to have been respected, because a further Order in Council followed dated 30th July 1581 which again required the making of “… a booke of the sayd Lawes and Customs …”.

25     Terrien’s commentary had appeared in 1574.  The Bailiff and Jurats defined Guernsey law by reference to Terrien, notwithstanding that the Grande Coutume itself was more than 300 years old at the time and the King of France had been complaining to the Parlement of Rouen that they should replace what was already largely an obsolete text.  The Guernseymen produced their report which was called “L’Approbation des Loix”; literally “The Approbation of Laws” indicating which parts of Terrien and the Grande Coutume were approved as being a part of Guernsey law.  That report acquired the status of a statute on 27th October 1583, which is the date of the Order in Council adopting “L’Approbation”.  Alas, on 1st July 1583, just 17 weeks before, the Commissioners appointed by the king of France had completed their work of revising the Grande Coutume.  It was on this date that the new Coustumes du Pays de Normandie, anciens ressorts et enclaves d’iceluy, or la Coutume Redigée or Reformée, the Reformed Custom, came into force.  It follows that Guernsey law was defined and enshrined in the legal straitjacket of an Order in Council which took as its reference point a body of law only recently superseded to a very great extent in its jurisdiction of origin.

26     The obsolescence of the Grande Coutume is evidenced by various letters patent sent by Henri III to the material office holders in Normandy.  The following is an extract from a letter dated 17th July 1577 -

“… les Rois nos prédécesseurs ayent par plusieurs fois ordonné que les coustumes de chacun des Bailiages & Seneschaussées de cestuy nostre Royaume soient accordés en l’assemblée des trois Estats d’iceux, redigées par escrit, omologuées, publiées & enregistrées par après en toutes nos Courts & Jurisdictions, pour servir de Loy, & y avoir recours à l’avenir.  Ce qui n’avoit encore esté executé en nostre pays de Normandie, combien que par plusieurs fois il nous eust esté requis par les Estats dudit pays, & qu’il fust tres-necessaire:  parce que les coustumes, usages & stil d’iceluy ne se trouvent escrites qu’en un livre fort ancien, composé de langage & mots peu intelligibles, estans la pluspart d’iceux hors d’usage, & peu ou point entendus des habitans du pays:  mesmes aussi qu’aucuns articles de coustume, employez audit livre ancien, concernans tant l’instruction que décision des procès, sont antiquez d’un commun & tacite consentement par non usage:  pareillement qu’il y a eu accession de nouvelles observances, provenues tant des Ordonnances depuis faites par nosdits precedesseurs, que Arrests de nostredite Court, & introduction de l’usage commun.  Desirans pour ces causes que la dite coustume soit réduite …”[32]

27     This again suggests that it was perhaps not the most sensible time in history in which to found the Bailiwick’s system of law on the Grande Coutume, given that it appeared obsolete in large measure to Henry III and his court back in 1577; and yet we continue to read it today.

28     In or about 1700 Thomas Le Marchant sought to correct the (many) errors made in L’Approbation as well as to explain Guernsey law more fully.[33]  Later still, the Royal Commissioners appointed by the Crown in May 1846 to inquire into the state of the criminal law in the Channel Islands were particularly scathing about Terrien itself, saying of his work -

“The Norman law is here professedly brought down to the time of the work.  The several chapters of the Grand Coutumier which it contains are rearranged, and form a very small part of the whole.  The treatise enjoys a high reputation among the lawyers of Jersey, for which we find it difficult to account.  The intention of the author seems to have been to arrange and expound the Law of Normandy according to the system of the Civil Law; a design, as we think, ill conceived and ill executed.  The treatise appears to us to be utterly vague and unsatisfactory, and to possess scarcely any of the requisites essential to a legal authority.  … In Guernsey, indeed, it has … received a very remarkable recognition in the reign of Queen Elizabeth …”[34]

And:

“If his work was, in other respects, unobjectionable, its form alone would unfit it for the purpose to which it has been applied.  But the text, not being confined to the Customary of Normandy, to which the Bailiffe and Juratts were directed to hold themselves, but extending to Ordonnances of the Court of Exchequer at Rouen and the Parliament of Normandy, and recent Edicts of French Kings, contains laws never contemplated by the Orders in Council; and the notes, abounding with superfluous discussions in the style common at the time in which Terrien lived, with decisions of the French Courts upon laws never prevalent in Guernsey, and with statements of opinions conflicting one with another, form a worse than useless groundwork for a system of definite law.  The arrangement of the treatise appears also to us to be ill judged and most inconvenient for use.  In some cases, too, the Approbation has entirely misrepresented the meaning of Terrien.”[35]

29     The Commissioners were too harsh.  Terrien never intended his work to be put to this use.  He assumed a certain familiarity with the Grande Coutume.  He was also aware of the reality of Norman law; i.e. that it was itself a mélange of strictly (Norman) customary law, the influence of other coutumes, judicial law making both in Normandy and elsewhere, Royal Ordonnances and, in particular, Roman law.  Terrien frequently cites Justinian, by way of example.  The Grande Coutume itself is not a self-contained legal system; it does not pretend to be an all-encompassing system of civil law.  It plainly has little to say on the subjects of civil wrongs and contract law which makes up a considerable proportion of what is the proper concern of civil law (as opposed to mere regulation).  If man cannot live by bread alone, then he certainly could not live by pure customary law alone, unless one is taking the word “customary” in the broader sense of whatever Norman law in all areas happened to be, regardless of its origins and regardless of whether it pre or post-dated 1204.  The emperor was clothed, but he was not wearing a lot if one takes too minimalist an approach.

The evolution of Guernsey common law

30     In the centuries following the events of 1583, and notwithstanding those events, Guernsey law continued to evolve and adapt by reference to the law and practice of the Norman mainland.  Given the continuing influence of the Coutume reformée even today, it is fair to infer that its influence has always been felt.  Indeed, Laurent Carey[36]frequently cited the Coutume reformée.  The writings of the commentators of the Coutume reformée continue to be studied; copies of Bérault, Godefroy, d’Aviron,[37] Basnage, Pesnelle and Flaust are to be found in most serious Channel Island law libraries.  At the same time the works of other, non-Norman, French jurists had a considerable impact, not just on French and Norman law but also Channel Island law.  The figures of Jean Domat[38] and Robert Joseph Pothier[39]stand out in this regard, and Pothier in particular; a giant even amongst the most influential jurists in the history of Western law, including Anglo-American law.  Pothier continues to be cited frequently in Channel Island Courts, in particular his Traité des Obligations and the more specialist sub-treatises concerning, inter alia, contracts of sale (this in a jurisdiction without any sale of goods legislation).  Pothier was not a Norman; but he knew a great deal about customary law, having written a detailed commentary on the coutume of Orléans.  He also knew a great deal about Roman law, having, in effect, re-edited the entire Digest of Justinian.  In short, he never married and devoted the whole of his adult life to jurisprudence, dying after a short illness at the age of 73.[40]

31     The critical point to note is the debt owed by the Code civil to Pothier.  Dupin, in his dissertation on the life and works of Pothier preceding his 1827 edition of the Œuvres de Pothier said this:[41]

“Les ouvrages de Pothier n’ont pas été reçus comme lois; mais ils ont obtenu un honneur semblable:  car plus des trois quarts du Code civil ont été littéralement extraits de ses Traités.  En effet, les rédacteurs de ce Code, persuadés qu’ils ne pourraient jamais imaginer un ordre plus parfait que celui que Pothier avait adopté pour ses divers traités, et que nulle part ailleurs ils ne trouveraient ni des principes plus sûrs, ni des décisions plus équitables, ont eu l’extrême bon sens de se borner à analyser ses ouvrages.”[42]

32     Taking all the above into account it is suggested that the Code civil is best seen as being itself a new coutume; a consolidation of French law synthesising its customary and Roman antecedents filtered through centuries of law-making, judicial decisions and experience.  Indeed it was a common criticism of the Code that it was merely a re-working of l’ancien droit.  To the extent that the Code included true changes to pre-revolutionary law, they largely anticipated similar changes which would later occur in Channel Island law in any event, in common with advances across Western legal systems; for example to permit divorce.[43]

Changes to the 1804 Code

33     Those who are persuaded of the evolutionary rather than revolutionary nature of the Code may still object that the legislative changes inflicted upon the Code mean that it is far removed from the 1804 original.  This is true, but only up to a point, because as at 2003[44] fully 1,193 of the 2,283 articles of the Code remained intact.  As recently as 1964 there had been 1,716, which perhaps serves merely to evidence the fact that most Western European law will have undergone significant change since that time.  It is noteworthy that areas which are likely to have changed most, e.g. family law, are also those areas least likely to have an influence upon Guernsey law.  By contrast the Code’s provisions concerning the law of contract and property are comparatively very much closer to the 1804 original.  But even if the Code has evolved over the intervening 200 years that does not detract from its status as a legitimate descendant and repository of ancient (and modern) French civil law, nor mainland Normandy’s identity with it.

34     In short, the Code civil is and remains a legitimate source of inspiration for Guernsey and, I suggest, Channel Island law more generally.  True it is not authoritative per se; no more than English law, but it is a valuable, persuasive and under-used resource for contemporary Guernsey jurisprudence.

The Code civil in 2004

35     The Code civil is in its 103^rd edition.[45]  Although a very brief fourth book has been added in this edition, containing 18 provisions particular to Mayotte, the preceding 2,283 articles (2,281 in 1804) remain divided into the Titre Préliminaire[46] (articles 1 – 6 in both 1804 and 2004) followed by the Livre Premier, Des Personnes[47] (articles 7 – 515 in both 1804 and 2004) the Livre Deuxième, Des Biens et des Différentes Modifications de la Propriété[48] (articles 516 – 710 in both 1804 and 2004) and the Livre Troisième, Des Différentes Manières dont on Acquiert la Propriété[49] (articles 711 – 2281 in 1804 and 711 – 2,283 in 2004).  The three divisions are therefore concerned with (i) the status, rights and obligations of individuals qua individuals (ii) the nature of property qua property and (iii) the means of acquisition (and loss) of property rights.  The scope of this paper only permits the briefest of journeys through the 2004 Code, pointing out some of the jurisprudential highlights along the way.

Livre Premier, Des Personnes

36     Arts. 7 – 16-13 concern civil rights.  The French law of human rights is considerably more advanced than English law, necessarily so given the comparative youthfulness of English human rights legislation.  It would be particularly interesting to see how Guernsey jurisprudence would deal with the question of whether or not there is an enforceable private law right of privacy.  Certainly English common law has gone through all manner of contortions on the subject in recent years.

37     Arts. 112 – 132 may be of some assistance concerning the treatment of missing persons.

38     Arts. 388 – 487 concern tutelle[50] an institution common to Guernsey and French law, with, for example, its reliance on the conseil de famille,[51]albeit the finer points of  procedure would not be adopted, as opposed to principle.  Likewise, at articles 488 – 515 for adult incapables[52] and the institution of curatelle.[53]

Livre Deuxième, Des Biens et des Différentes Modifications de la Propriété

39     The whole of this, the smallest of the three original books of the Code, is of considerable potential usefulness in Guernsey jurisprudence.  Arts 516 – 543 concern the Distinction de Biens[54] with particular regard to immeubles and meubles.[55]  Arts. 544 – 577 concern the right of ownership.  Art. 544 famously states -

“La propriété est le droit de jouir et de disposer des choses de la manière la plus absolue, pourvu qu’on ne fasse pas un usage prohibé par les lois ou par les règlements.”[56]

40     Arts. 578 – 636 concern usufruit,[57] the droit de l’usage and de l’habitation.[58]  As regards usufruit, there is a Guernsey Ordinance dated 16^th January 1854 entitled Rapport sur le Droit Coutumier à l’Égard de l’Usufruit établi sur les Immeubles.[59]  There is little to distinguish this summary of the Guernsey law of usufruit from the provisions of the Code.  Indeed, a close study of the Ordinance shows that it follows and, indeed, borrows heavily from, the Code.  Thus the definition of a usufruit at paragraph 1 of the Ordinance is taken directly and word for word from the definition found at Art. 578 -

“L’usufruit est le droit de jouir des choses dont un autre a la propriété, comme le propriétaire lui-même, mais à la charge d’en conserver la substance”.

This translates as -

“A usufruct is the right to enjoy property belonging to another as if its owner, but at the expense of preserving the substance of that property”.

41     Nineteenth century Guernsey advocates undoubtedly knew their Code civil; indeed their education at a French university made this inevitable.[60]

42     Arts. 637 – 710 concern servitudes and are again of considerable potential use in modern Guernsey law.  Indeed this has been demonstrated very recently in the case of Russell & Caine v Gillespie & Ford.[61]  The parties were the successors in title respectively of adjoining parcels of land in the vicinity of Le Gouffre.  The land had been in the ownership of a single individual who had bequeathed what was now the plaintiffs’ cottage to his former housekeeper.  The gift included “the right on foot and with all vehicles over and by way of the drive and yard owned with the (other property - a house) … to pass and repass at all times between the premises devised … and the public road.”  After the death of the testator the will was registered in the normal way following application to the Royal Court.  The house was subsequently sold.  The former housekeeper was added as a party to the conveyance in which the right of way to the cottage was confirmed and ratified (as well as the boundaries) with the purchasers expressly acknowledging that the former housekeeper and her successors in title would be allowed right of way on foot and with all vehicles over and by way of (the driveway).  Subsequently the defendants’ immediate predecessors in title erected a gate and posts across the driveway.  The gates were re-hung by the defendants who claimed that because the will did not express the right of way to be in perpetuity the testator had granted a right of way personally to the former housekeeper which could not benefit successors in title.  It was said also that the subsequent conveyance did not vary or enhance the right of way.  Although the land was enclavé[62] and had been in the ownership of a single individual the plaintiffs did not claim a servitude of necessity and/or rights arising through the principle destination du père de famille[63] given the uncertainty and cost involved in negotiating such with the defendants (although neither principle was in doubt).  It was held that the servitude was a servitude réelle, following the classification of Basnage, Commentaires sur la Coûtume de Normandie,[64] which classification had also been adopted by Laurent Carey in his Essai sur les Institutions, Lois et Coutumes de Guernesey.  The servitude ran with both the servient and dominant land.  This was the essence of a praedial or real servitude in Roman law, a real right in English law and a servitude réelle or servitude prédiale in the Coutume de Normandie.  If a servitude was a servitude réelle then, by its very nature, it was to be regarded as enduring for the benefit of successors in title unless expressly restricted.  The Court cited and drew comfort from passages in Fournel, Traité du Voisinage,[65] and Pardessus, Traité des Servitudes[66]  both of which were treated as authorities in Guernsey, notwithstanding that they are mid to late 19^th century texts concerned with French law post-Code civil.

Livre Troisième, Des Différentes Manières dont on Acquiert la Propriété

43     Arts. 711 – 1100 concern the law of succession, inter-vivos dispositions and wills.  Arguably Guernsey law is sufficiently well provided for by its own legislation not to need much assistance from the Code civil; but it is easy to imagine points of principle where it could help, certainly to a much greater extent than English law.

44     Arts. 1101 – 1369 contain general provisions relating to contracts.  These articles are of obvious practical assistance to establishing Guernsey contract law.  It is important to note in this context the fact that English law itself is likely to move increasingly towards a continental model.  It is very likely that we will see European commercial law consolidate itself; indeed there is already a draft European contract law code.

45     Arts. 1371 – 1381 concern quasi-contracts and are of considerable interest, particularly in the context of unjust enrichment.

46     Arts. 1382 – 1386 concern torts and constitutes perhaps the least satisfactory aspect of the Code civil.  There is simply not enough here to found a modern tort law system; nor has French case law made up the deficit.  Hence the heavy reliance on English and Commonwealth case law.  Nevertheless Art 1382 is a highlight of the Code and worth setting out in full:

Art. 1382  “Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer.”

This translates as -

“Every human act whatsoever which causes damage to another obliges the person by whose fault that damage has occurred to make it good.”

47     Arts. 1386-1 – 1386-18 concern responsibility for defective products and is perhaps of limited use, general principles almost certainly being sufficient to make up for any want of particularity in Guernsey law.

48     Arts. 1387 – 1581 concern contracts of marriage and matrimonial regimes and have little to offer modern Guernsey law, save for the possibilities of reforming our own English-looking law comprehensively to find happier solutions to problems which take up a considerable amount of court time, as well as a large proportion of the legal aid budget.

49     Arts. 1582 – 1831 concern contracts of, inter alia, sale, exchange and rental.

50     Arts. 1832 – 1873 concern companies and are of little use given the comparatively recent and comprehensive Guernsey legislation in the same area.

51     Arts. 1873-1 – 1873-18 contain potentially useful provisions concerning contracts relative to the exercise of droits indivis[67].

52     Arts. 1874 – 1963 concern contracts of loan or bailment as well as the equivalent of the English stakeholder (séquestre).

53     Arts. 1964 – 1983 relate to contrats aléatoires; i.e. where what is contracted for is uncertain.

54     Arts. 1984 – 2010 concern mandat or agency and could again prove to be of considerable assistance.

55     Arts. 2011 – 2043 concern cautionnement or the law relating to sureties and may be helpful; in particular as regards the droit de discussion (Art 2021 et seq.) and division (Art 2026).

56     Arts. 2044 – 2061 concern the law of compromise (transaction).

57     Arts. 2071 – 2203-1 concern nantissement or security together with privilèges (in the sense of lien or preference) and hypothèques, and might, subject to the express provisions of Guernsey statute law, be of some assistance.  Note for example the wording of a Guernsey bond, which concludes, “In witness whereof the Borrower appeared before the undersigned Lieutenant Bailiff and the Jurats of the Royal Court of this Island of Guernsey on the day and year first above written and confirmed and ratified this bond on the security of all his real and personal property present and future”.  You only have to look at Art 2092 which reads:  “Quiconque s’est obligé personnellement, est tenu de remplir son engagement sur tous ses biens mobiliers et immobiliers, présents et à venir”[68] to see that such provisions are out of the same stable.

58     Arts. 2204 – 2218 concern expropriation forcée, i.e. saisie immobilière.

59     Arts. 2219 – 2283 concern prescription and possession and are of obvious potential assistance to Guernsey law, if not the precise periods themselves.

60     More generally there is assistance to be found with the meaning of particular words, such as bon père de famille,[69] which appear from time to time in Guernsey statute and case law, most notably at s.18(1) of the Trusts (Guernsey) Law 1989 (as amended); see for example articles 601, 627, 1137, 1728, 1766, 1806 and 1880 of the 2004 Code.

Other codes

61     There is not the time to consider other French codes; but I would mention the Nouveau Code de Procédure Civile which has a considerable amount to offer, at least potentially, to those areas of Guernsey procedural law plainly borrowed from France at some time or other.  I make particular mention of the action oblique and action paulienne as concepts already developing in Channel Island jurisprudence as aids to effective execution.[70]

English law

62     It is odd that Guernsey law should, currently, adopt almost unquestioningly, so much English case and (indirectly) statute law.  All of the objections which could be made to the Code civil apply with equal if not greater force to English law.  The principles underlying the case of Morton v Paint[71] apply as much to French law as to English law.[72]  The simple, but not very satisfactory, explanation is that those who make and practise Guernsey law are much more familiar with English law than French law; which emphasises the importance of informing ourselves about French law and the need to maintain the historic link between the Guernsey Bar and Caen University.  A paper of the present kind could not possibly be written without that experience.

63     There is, in any event, an increasing questionmark over the value of English case-law.  It is harder and harder to follow the meanderings of English judgments concerning what ought to be fairly basic issues capable of resolution, certainly within the many hundreds of years in which the common law has existed.  A recent example is the case of Transco Plc v Stockport Metropolitan Borough Council.[73]  Five Law Lords, namely, Lords Bingham, Hoffmann,[74] Hobhouse, Scott and Walker pondered, yet again, the true nature and extent of the near 150 year old rule taking its name from the case of Rylands v Fletcher.[75]  The very fact that this “rule” should still be controversial after such a time is itself something of an embarrassment for English jurisprudence.[76]  The further fact that this is the third time the House of Lords has had to consider the inter-relationship between the rule and the law of nuisance and negligence in the last ten years alone is further testament to the unhappy state of English law.  After citing 52 cases, 7 articles, one Law Commission report, 4 textbooks and 5 Acts as well as considering the law of 5 other jurisdictions, their lordships concluded, in the comparatively modest space of 35 sides of A4, that the rule in Rylands and Fletcher did indeed survive in English law - whatever the Scots and the Australians might think; although the rule was again confined in such a way as itself to represent something of a non-natural user.  There is no Guernsey case law either way; what are we to do, follow England or Australia?  Very difficult, and an expensive exercise.  It sometimes seems that English judicial reformers cannot see the wood for the trees.  They should start by providing clear and concise judgments, avoiding such uncertainty in the law and the repeated and often inconsistent examination of impossibly old chestnuts.  A single judgment rather than three or more would be a great assistance; judges should be required to reach agreement.  It is not Latin tags which are the problem.[77]  What layman could make sense of the Transco judgment?  English law has become more of an extended navel-gazing exercise in medieval scholasticism than an attempt to produce clear, just and practical legal principles of general application.

64     Consider also the recent case of Lagden v O’Connor,[78] a decision dated 4th December 2003.  After 70 years The Liesbosch was sunk (again[79]) and this time finally; but not before who knows how much in the way of judicial time and legal costs have been wasted in arguing the toss over Lord Wright’s “much discussed observations”.  Even then their Lordships could not reach agreement as to the merits of the appeal itself.  The majority (Lords Nicholls, Slynn and Hope) dismissed the appeal; the minority (Lords Scott and Walker) would have allowed the appeal.  Lord Scott went so far as to say that what the majority proposed would be “a disservice to the development of the law” (which is about as strong as you can get) whilst Lord Walker called it “dangerously open-ended”.  The majority were modifying a principle decided in the earlier (but not much earlier) House of Lords case of Dimond v Lovell.[80]  Both cases were further sorry instalments in the contest between motor insurers and credit hirers which has gone through a number of rounds, including plumbing the depths of the execrable Consumer Credit Act 1974, surely one of the worst pieces of legislation ever conceived by man.  The only Law Lord common to both decisions was Lord Nicholls, who found himself in the minority on the question of the measure of damages first time around; but made up for it in Lagden.  Equally Lord Scott had found himself on the wrong end of things whilst still in the Court of Appeal for Dimond.  He made his point by saying that either the House should stick to Dimond or else adopt a criterion of reasonableness as a test for recovery (of the full credit hire charges).  Enough said.

Codification for Guernsey

65     Certainly the celebration of the Code civil’s bicentenary in France has provoked debate concerning codification in general and the future of the Code civil in particular.  Perhaps the Channel Islands should themselves reflect upon codification.  A Channel Island penal code would be particularly useful, particularly in Guernsey where its criminal law is a patchwork quilt with a few of the larger gaps only very recently having been filled with the passing of bail and police powers legislation.  There is still no offences against the person law and the range of sentencing options is inadequate.

66     There is a lot to be said also for codifying at least the basic principles of tort and contract law.  It would be a simple matter to anticipate and resolve issues which would otherwise take up an enormous amount of court time and legal costs.  The question is, whether the Islands have the ambition and the will to take up such a challenge.  It would be a great opportunity also for the Bailiwicks to cooperate in areas which need not be politically sensitive, in the interests of good law making for everyday life.  One can only speculate as to how much law-making effort and cost is duplicated at present; I suspect a great deal.

Conclusion

67     In the Privy Council case of Vaudin v Hamon[81] Lord Wilberforce said -

“While it may be true, in a very general sense, that there is some basic similarity between Roman Law, at various periods, the various customary laws applicable in different parts of France, the Civil Napoleonic Code, the law applicable in Jersey and that which governs in Guernsey, this similarity is of a too general sense and approximate character to be of much assistance in a particular case:  it covers, quite clearly, large differences in matters not only of detail but of principle.  Examination of the various laws of prescription in fact shows examples, within these supposedly analogous systems, of purely extinctive prescription, prescription extinguishing the remedy but not the right, prescription defined purely in terms of acquisition, and prescription effective both to confer title and to extinguish adverse claims.  …

Thus, although as this Board has pointed out in La Cloche v La Cloche (1870) LR 3 PC 125, it is proper to look at related systems of law, and commentators on them, in order to elucidate the meaning of terms, the particular legal provision under examination in any case, in this case the Guernsey law as to prescription, must in the end be interpreted in the light of its own terminology, context and history.”

68     This statement is itself 30 years old.  It remains correct, so far as it goes; but jurisprudence has moved on.  The emphasis has changed.  Certainly English courts are much more willing than ever before to consider continental European law.  Lord Wilberforce perhaps did not give sufficient credit to the Code civil as a legitimate successor to, inter alia, Norman law.  It is noteworthy that Lord Hope in the much more recent Privy Council case (admittedly for Jersey) of Snell v Beadle[82] enthusiastically cited Roman and Scots law, whilst still expressing reservations about modern French law derived from Southwell JA’s 1999 article in this Review.  We continue to experience the backlash of the fact that the Privy Council allowed the appeal in Snell.

69     What these cases overlook is the fact that for Guernsey jurisprudence it is not a question of proving forensically the aetiology of any given provision of the Code civil, let alone that it is the direct successor of a provision of Norman law (and the Grande Coutume at that).  The relationship between the two is much more subtle.  The Code civil maintains the esprit of customary law to a much greater extent than English law and thereby derives its right to be consulted and cited by Guernsey lawyers.

70     Gérard Cornu wrote these words concerning the Code civil which bear reflecting upon -

“… on a et on aura toujours au moins une raison de célébrer le Code de 1804:  reconnaître en lui le tournant historique qui a consacré l’unité de la France civile; saluer ce point d’accomplissement de si loin amené où, par la confluence de toutes les sources du droit, les apports de toutes les France, se sont liés en un corps unique de droit, Ancien droit en sa double branche coutumière et écrite, ordonnances royales, œuvres des juriconsultes et, dans la fulgurance des idées révolutionaires, droit intermédiaire.  Cette union puissante a scellé, à la base de notre société, l’affranchissement des terres et la liberté des personnes, l’égalité civile, la sécularisation du mariage et l’état civil, la propriété privée, la liberté contractuelle, la responsabilité individuelle, la liberté testamentaire pondérée par la réserve héréditaire, l’égalité des partages, la libre circulation des biens et, sans le mot, la neutralité confessionelle du droit civil.”[83]

71     The Code civil has not yet played as full a rôle as it could and should have done in Guernsey jurisprudence.  There are historical reasons for this; most recently the terrible consequences of 10 years of devastating World Wars in the twentieth century and the great political and cultural dislocations caused by those events.  Equally there are great possibilities for European politics, culture and law, regardless of where in the spectrum of opinion you stand, whether advocating a glorified free trade area or else the creation of what should be, by rights, a superpower.  In any event European law will evolve rapidly.  The Channel Islands are peculiarly well placed, having a foot in both the Anglo-American and continental camps.  We should make greater use of French law, and in particular the Code civil, in evolving and maintaining our own distinct and free jurisprudence.  It is rare that a single legal system can move effortlessly between civil and common law principles, with an unbroken and informed viewpoint spanning fully 800 years.

Gordon Dawes is an advocate of the Royal Court of Guernsey and a partner in Ozannes, Advocates and Notaries Public, 1 Le Marchant Street, St Peter Port, Guernsey.

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