LEGAL HISTORY: CONTINENTAL LEGAL HSTORY

Professor Donahue

May 8-22, 1998

May 8: 11:00 a.m. -- May 22: 3:30-4:30 p.m.

This is a take-home exam. It will be distributed on May 8 (the last class) at 11:00 a.m. You may, if you wish, also pick it up in my secretary's office (Hauser 518) any time after the last class. The exam should not be returned to the exam window in the registrar's office. Rather, it should be turned in to my secretary, Jody Clineff, in Hauser 518, any time that she is there, but no later than 4:30 p.m. on May 22. You should staple the final draft of your paper to the back of the exam.

You may not discuss this exam with anyone between 11:00 a.m. on May 7 and 4:30 p.m. on May 22. If you have not picked up the exam, you may, of course, discuss the course with anyone who has also not picked up the exam.

This is an open-book exam. You may use any materials that you want. The exam is not, however, intended to be a library exercise. You should be able to do it with just the books assigned for the course and your class notes.

There is no limit on words, but conciseness will be rewarded and verbosity penalized. One way to be concise is not to recite at length material that was contained in the lectures. By and large, I know that material, and in a take-home exam I can assume that you do too. What I am interested in is your ideas, how you put the material together.

There are three questions on the exam. The second question has two parts, and you are to answer only one of them. Question II and Question III will be given approximately equal weight. Question I will be given less weight. The paper will count for one-third of your grade in the course.

Briefly identify the following and say how they are related to the overall themes of this course. (In a take-home exam, I can assume that you can do the identification [heck, if you have to, you can look them up in an encyclopaedia]. If you find yourself stumped, remember that historians find it very difficult to list things in other than chronological order. The purpose of the exercise is to see how you relate what you have identified to the some of the larger ideas that we have discussed in the course. If you find yourself writing more than three or four sentences, you are probably writing too much.)

Trebatius

Dionysiana (by Dennis (Lat. Dionysius) the Little)

Bulgarus

Conciliarism

Michel de l'Hôpital

François Laurent

[Answer either Question II.A. or Question II.B.]

Write a commentary on the following quotation from the decretal Veniens ad nos written by Alexander III to the bishop of Norwich sometime between 1176 and 1181 (X 4.1.15; Materials X-15):

"A certain William appealed to us, and showed in his report that he received in his house a certain woman by whom he had children and to whom he swore before many people that he would take her as wife. In the meantime, however, spending the night at the house of a neighbor, he slept with the neighbor's daughter that night. The girl's father finding them in the same bed at the same time compelled him to espouse her with present words. Recently, William standing in our presence, asks us to which woman he ought to adhere. Since he could not inform us whether he had intercourse with the first woman after he had given his oath, we therefore order you to examine into the matter carefully, and if you find that he had intercourse with the first woman after he had promised he would marry her, then you should compel him to remain with her. Otherwise, you ought to compel him to marry the second one unless he was compelled by a fear which could turn a steadfast man."

A good commentary will be organized in the form of a coherent essay. It will not simply outline everything that we have said in this course on the topic of marriage. Rather, it will seek to outline what can be discerned about the circumstances of the decretal, what doctrine it announces, how that doctrine fits into what came immediately before and immediately after Alexander, and what, if any, effects that doctrine had.

Write a commentary on the following quotation from the Ordonnance du roi pour la proc‚dure civile [Ordinance of the king for civil procedure] (1667), title 23 "Reproaches against witnesses" (Materials, XVIII-5 to 6):

"Tit. 23: Reproaches against witnesses

"art. 1: Reproaches against witnesses shall be circumstantial and pertinent and not in vague and general terms; otherwise they will be rejected.

"art. 2: If it is alleged in the reproaches that the witnesses have been imprisoned, subject to decree, condemned or taken by justice, the facts will be regarded as calumny if they are not justified before the judgment of the process by the calendar of imprisonment, decrees, condemnations or other acts.

"art. 3: He who has had the inquest made can, if it seems good to him, furnish answers to the reproaches, and the responses will be provided to the party, otherwise we forbid that they be considered; all this without delaying the judgment.

"art. 4: Judges cannot appoint the parties to inform them about the matter of the reproaches unless they have examined the process [and determined] that the means of reproach are pertinent and reasonable.

"art. 5: The reproaches of the witnesses will be judged before the process and if they are found pertinent and that they are sufficiently justified, the depositions will not be taken.

"art. 6: We forbid proctors from furnishing any reproach against witnesses if the reproaches are not signed by the party, or if they cannot show a special written power given to them to propose them."

A good commentary will be organized in the form of a coherent essay. It will not simply outline everything that we have said in this course on the topic of witnesses. Rather, it will seek to explain why the ordinance says what it says about witnesses, what there was in the tradition that is missing from the ordinance, and what effect the ordinance may have had.

Write a commentary on the following quotation. You may agree with it or disagree with it or remain neutral, but you should illustrate whatever you say with specific examples drawn from the material that we have studied in this course. (The author is not, by the way, a patriotic Frenchman, but a distinguished Belgian comparative lawyer of the last generation.) While your essay may seek to put the Napoleonic Code into a somewhat different historical setting from the one offered by Limpens, it should not neglect to evaluate his statements that the Code is "a signpost on the journey toward social peace and liberty" and that it is a "most perfect expression of ... equilibrium of sources, equilibrium of thought, [and] equilibrium of form."

Jean Limpens,
"Territorial Expansion of the Code",
in THE CODE NAPOLEON AND THE COMMON-LAW WORLD (B. Schwartz ed., 1956) 102-3

Such briefly is the amazing trip that the Code Napoleon has made around the world. Introduced in thirty-five states, translated, copied, and adapted in thirty-five others, it might have been expected one day to have been extended throughout the entire world. ...

Napoleon himself did not conceal his pride: "My true glory," he said to Montholon one night in St. Helena, "is not to have won forty battles.... Waterloo will erase the memory of so many victories.... But what nothing will destroy, what will live forever, is my Civil Code."

Realism prevents one from believing that a code, perfect though it may be, can govern a nation for all time. However, by the same token, it can readily be assumed that the Napoleonic Code will dwell forever in the memory of men as a brilliant signpost on their journey toward social peace and liberty.

Once the success of the Code was established, scholars, in their avid desire to explain everything, tried to discover the reasons for its success.

Some argued that the Napoleonic Code is a code, emphasizing the truism that only codified law can attain some penetration outside its own boundaries. One can hardly imagine a body of case law such as the English common law, for example, seeking expansion. Of course, it can be applied wherever a judge may introduce it. But generally speaking, it has no power of attraction whatsoever. ... [A] foreigner can absorb a code, [but] how can he be able suddenly, even to understand the swarming diversities of a judicial tradition?

Others remarked that the Code was born at a most opportune time. If born before 1789, it would have been destroyed by the Revolution. If born the day after 1789, it would have been deemed a revelation of the "Supreme Being," the new God of the Revolution, and as such would have been swept away by the Restoration. It came instead to a world weary of the excesses of the Revolution, when the French people had found their traditional equilibrium once again.

The Code is indeed the most perfect expression of this equilibrium: equilibrium of sources, equilibrium of thought, equilibrium of form.

URL: http://www.coursestest.law.harvard.edu/spring_00/lhist_claw_donahue/EXAM98L.clh.html

last modified: 01/07/2000

Copyright © 2000 Charles Donahue, Jr.