Part 3 — CHAPTER XVIII

JUSTICE AND LOCAL GOVERNMENT

I. French Law

The law of France is of highly composite origin. Its sources lie far back in the Roman law, the canon law, and the Germanic law of the Middle Ages. As late as 1789 there had been no attempt at a complete codification of it. Under the operation of a succession of royal ordinances, criminal law, civil and criminal procedure, and commercial law, it is true, had been reduced by the opening of the Revolution to a reasonable measure of uniformity. The civil law existed still, however, in the form of "customs" (coutumiers), which varied widely from province to province. A code of civil law which should be established uniformly throughout the realm was very generally demanded in the cahiers of 1789, and such a code was specifically promised in the constitution of 1791.

II. The Courts

366. The Ordinary Courts: Justice of the Peace.—In French practice the distinction which is drawn between private law and public law is so sharp that there have been built up two hierarchies of courts—the ordinary and the administrative—each of which maintains practically exclusive jurisdiction within an independent field. The ordinary courts comprise civil and criminal tribunals, together with certain special tribunals, such as the tribunaux de commerce. At the bottom stands the court of the justice of the peace (juge de paix) of the canton. This tribunal was created by the first of the Revolutionary assemblies and it has existed continuously to the present day. The justice of the peace takes cognizance of disputes where the amount involved does not exceed 600 francs, and of contraventions of law punishable by a fine not exceeding fifteen francs or imprisonment not beyond five days. In civil cases involving more than 300 francs, and in criminal cases involving imprisonment or a fine exceeding five francs, appeal lies to a higher tribunal.

367. The Courts of First Instance.—Next above the court of the justice of the peace stands the tribunal de première instance, or tribunal d'arrondissement. Of such courts there is, with a few exceptions, one in each arrondissement or district. Each consists of a president, at least one vice-president, and a variable number of judges, three of whom form a court with full powers. To each is attached a procureur, or public prosecutor. This tribunal takes cognizance of all kinds of civil cases. In appeals from the justices of the peace, actions relating to personal property to the value of 1500 francs, actions relating to land to the value of sixty francs per year, and all cases of registration, there lies no appeal from its decisions. The jurisdiction of the court in penal cases extends to all offenses of the class known as délits (misdemeanors), i.e., offenses involving penalities which are heavier than those attached to the contraventions dealt with by the justices of the peace, yet less serious than those prescribed for crimes. When sitting as a criminal court, the court of first instance is known as a tribunal correctionnel, or "correctional court." All of its judgments in criminal cases are subject to appeal.

368. The Courts of Appeal and of Assize.—Above the courts of first instance are twenty-six cours d'appel, or courts of appeal, each of which exercises jurisdiction within a territory comprising from one to five departments. At the head of each is a president, and each maintains an elaborate parquet, or permanent staff of officials, in which are included several procureurs-généraux and avocats-généraux. For the transaction of business the court of appeal is divided into chambers, or sections, each consisting of a president and four conseillers, or judges. The primary function of the court is the hearing of appeals, in both civil and criminal causes, from the courts of first instance. Original jurisdiction is limited and incidental.

Closely related to the courts of appeal are the cours d'assises, or courts of assize. These are not separate or permanent tribunals. Every three months there is constituted in each department, ordinarily in the chief town thereof, a court of assize consisting of a specially designated member of the court of appeals within whose jurisdiction the department lies and two other magistrates, who may be chosen either from the remaining conseillers of the court of appeals or from the justices of the local court of first instance. The courts of assize are occupied exclusively with serious offenses, such as in the Penal Code are classified as crimes. In them, and in them only among French tribunals, is the device of the jury regularly employed. A jury consists of twelve men, whose verdict is rendered by simple majority. As in Great Britain and some of the American states, the jurors determine the fact but do not apply the law.

369. The Court of Cassation.—At the apex of the hierarchy of ordinary tribunals is the Court of Cassation. This court sits at Paris, and in all matters of ordinary private law it is the supreme tribunal of the state. It consists of a first president, three sectional presidents, and forty-five judges. Attached to it are a procurator-general and six advocates-general. For working purposes it is divided into three sections: the Chambre des Requêtes, or Court of Petitions, which gives civil cases a preliminary hearing; the Civil Court, which gives them a final consideration; and the Criminal Court, which disposes of criminal cases on appeal. It is within the competence of the Court of Cassation to review the decisions of any tribunal in France, save those of an administrative character. It passes, not upon fact, but upon the principles of law involved and upon the competence of the court rendering the original decision. A decision which is overruled is said to be cassé, i.e., annulled. The purpose of the Court of Cassation is not alone to further the interests of justice, but also to preserve the unity of French jurisprudence.

373. Other Courts.—Between the hierarchy of ordinary courts and that of administrative tribunals stand a variety of courts of special character—courts of commerce, courts of accounts, courts of public instruction. There is a Tribunal des Conflits, or Court of Conflicts, composed of the Minister of Justice, three members of the Court of Cassation, three of the Council of State, and two elected by these seven. Under the presidency of the Minister of Justice, it determines, in the event of doubt or dispute, the competent jurisdiction, ordinary or administrative, to be extended to a particular case. Finally the fact may be recalled that to take cognizance of attacks upon the safety of the state, as well as for the trial of an impeachment proceeding, the Senate may be constituted a high court of justice.

III. Local Government: Development since 1789

374. Stability of Local Institutions.—Students of political science are familiar with the fact that governmental systems are, as a rule, less stable at the top than at the bottom. Local institutions, embedded in the interests of the community and supported by the native conservatism of the ordinary man, strike root deeply; the central, national agencies of law-making and of administration are played upon by larger, more unsettling forces, with the consequence of greatly increased likelihood of change. Of this principle the history of modern France affords notable illustration. Throughout a century of the most remarkable instability in the organization of the central government of the nation the scheme of local government which operates at the present day has been preserved almost intact. The origins of it, it is true, are to be traced to revolution. In most of its essentials it was created by the National Assembly of 1789 and by Napoleon, and it rose upon the wreckage of a system whose operation had been extended through many centuries of Capetian and Bourbon rule. Once established, however, it proved sufficiently workable to be perpetuated under every one of the governmental régimes which, between 1800 and the present day, have filled their successive places in the history of the nation.

376. The Reconstitution of 1789-1791.—One of the earlier performances of the National Assembly of 1789 was to sweep away relentlessly the administrative system of the Old Régime and to substitute therefor an order which was all but entirely new. The communes, to the number of upwards of forty-four thousand, were retained. But the provinces and the généralités were abolished and in their places was erected a system of departments, districts, and cantons. For historic boundary lines, physical demarcations, and social cleavages only incidental allowance was made. Eighty-three departments in all were created. In each there were, on an average, six or seven districts, and in each of these an average of eight or nine cantons. The cantons, in turn, were made up of widely varying numbers of communes. The most striking aspects of the system were its symmetry and its detachment from history and tradition. Departments, districts, and cantons presented, and were intended to present, a tabula rasa upon which the law-makers of France might impress any pattern whatsoever.

At the establishment, in 1848, of the Second Republic, the essentials of the administrative system then prevailing were retained. It was enacted merely that the various councils should be elected on a basis of manhood suffrage, and that in communes of fewer than six thousand inhabitants the council should be permitted to elect the mayor and the deputies, while in the larger ones appointment should be made as heretofore by the central authorities. With the conversion, in 1851-52, of the Second Republic into the Second Empire, this decentralizing tendency suffered a distinct check. Throughout the reign of Napoleon III. the communal council continued to be elected, at least nominally, upon the principle of manhood suffrage; but so thoroughgoing was the prefectorial supervision that there remained to the councils very little of initiative or independence of action. Even the privilege which the smaller communes possessed of choosing their own mayors was speedily lost, while by a decree of March 25, 1852, the powers of the prefect in communal affairs were substantially extended. Many matters pertaining to departmental and communal interests which this official had been accustomed to refer to the authorities at Paris he was now authorized to dispose of at his own discretion. Throughout the Second Empire the prefect, more truly than ever before, was the pivot of the administrative system. Despite the survival of elective councils in the departments, the arrondissements, and the communes, local autonomy all but disappeared.

IV. Local Government To-day

380. The Department: the Prefect.—For administrative purposes, the Republic is divided, first of all, into 86 departments, besides which there is the "territory" of Belfort, a remnant of the department of the Upper Rhine, most of which was acquired by Germany in 1871. Since 1881 the three departments of Algeria have been dealt with substantially as if included within continental France.

At the head of each of the departments is a prefect, appointed and removed nominally by the President of the Republic, but in reality by the Minister of the Interior. The prefect, who is much the most important of all local officials, is at the same time an agent of the general government and the executive head of the department in the administration of local affairs. As agent of the general government he acts, in some instances, upon detailed instructions; in others, he enjoys a wide range of discretion. His powers extend to virtually all public matters affecting the department. He supervises the execution of the laws; maintains a vigorous control over all administrative officials of the department, upon occasion annulling their acts; gives the authorities at Paris information and advice respecting the affairs of the department; nominates to a variety of subordinate offices; exercises an oversight of the communes, some of whose measures become effective only after receiving his assent; and, in certain instances indicated by law, acts as a judge. He is assisted by a secretary and a conseil de préfecture, appointed by the President. This prefectorial council, consisting of from three to nine members, advises the prefect and, in certain cases, exercises jurisdiction as an administrative tribunal. The prefect is essentially a political official. He owes his appointment not infrequently to political considerations, and with the fall of the ministry his tenure is apt to be terminated.

The canton is an electoral and a judicial, but not strictly an administrative, unit. It is the area from which are chosen the members of both the departmental general council and the council of the arrondissement, and it constitutes the jurisdiction of the justice of the peace. The total number of cantons is 2,911. As a rule each contains about a dozen communes, though a few of the larger communes are so populous as to be divided into a number of cantons.

384. The Communal Council.—Except Paris and Lyons, all communes are organized and governed in the same manner. In each is a council, whose members are elected by manhood suffrage and, normally, on the principle of the scrutin de liste, for a term of four years. The body is renewed integrally, on the first Sunday in May in every fourth year. In communes whose population is under five hundred the number of councillors is ten; in those whose population exceeds five hundred the number is graduated on a basis such that a commune of sixty thousand people has a council of thirty-six, which is the maximum. The council holds annually four ordinary sessions—in February, May, August, and November—besides which special meetings may be convoked at any time by the prefect, the sub-prefect, or the mayor. Sessions are held in the mairie, or municipal building, and are regularly open to the public. Except the May session, during which the budget is considered, a meeting may not be prolonged beyond fifteen days, save with the consent of the sub-prefect. The normal maximum of the May sitting is six weeks.

Speaking broadly, the functions of the council may be said to comprise the administration of the purely local affairs of the commune and the formulation and expression of local needs and demands. In the code of 1884 the powers of the body are defined with exceeding minuteness. Some are purely advisory, to be exercised when the council is called upon by the higher administrative authorities for an expression of local interest or desire in respect to a particular question. Advice thus tendered may or may not be heeded. Other powers involve the initiation by the council of certain kinds of measures, which, however, may be carried into effect only with the assent of the higher authorities. Among the thirteen such measures which are enumerated in the code the most important are those pertaining to the purchase, sale, or other legal disposition of property belonging to the commune. Finally, there is a group of powers—relating principally to the various communal services, e.g., parks, fire-protection, etc.—which are vested in the communal authorities (council and mayor) independently. But the predominating fact is that even to-day the autonomy of the commune is subject to numerous and important limitations. Many communal measures become valid only upon receiving the approval of the prefect, and virtually any one of them may be suspended or annulled by that official. Some require the consent of the departmental council, or even of the President of the Republic; and by decree of the President the council itself may be dissolved at any time.

385. The Mayor and his Assistants.—The executive head of the commune is the maire, or mayor, who is elected by the municipal council, by secret ballot, from its own membership, for a term of four years. Associated with the mayor is, in communes of 2,500 inhabitants or fewer, an adjoint, or assistant, similarly chosen. In communes of 2,500 to 10,000 inhabitants there are two assistants, and in those of over 10,000 there is an additional one for every 25,000 people in excess of the figure named. Except in Lyons, however, where there are seventeen, the number may not exceed twelve. The mayor plays the dual rôle of executive head of the commune and representative (though not the appointee) of the central government. The powers which he exercises vary widely according to the size and importance of the commune. But in general it may be said that he appoints to the majority of municipal offices, publishes laws and decrees and issues arrêtés, or ordinances, supervises finance, organizes and controls the local police, executes measures for public health and safety, safeguards the property interests of the commune, and represents the commune in cases at law and on ceremonial occasions.

The functions of the mayoral office are in practice distributed by the mayor among the assistants, to each of whom is assigned a specific department, such as that of streets, of sanitation, or of fire-protection. As a rule, the mayor reserves to himself the control of police. For the acts of the assistants, however, the mayor is directly responsible, and all acts, whether of the mayor or of the assistants, which relate to the interests of the general government are performed under the strictest surveillance of the prefectorial authorities. The mayor may be suspended from office for a month by the prefect, or for three months by the Minister of the Interior; and he may be removed from office altogether by order of the President.