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was still subdivided by degrees, ranks, professions; each fraction of the great society had its grade marked, its situation assigned, its circle traced by the law.
But, at that period of glory and of misfortune, when the reason of the many unsuccessfully endeavoured to accomplish what the will of a single person has since effected without effort; at that period of the humiliation and the vengeance of every vanity, all classes were debased or elevated to the same standard, the ties of every community weré severed, the limits of every profession were effaced. The French people at first thought themselves equal in the law; they soon felt themselves equal in misery, and finally became equal in terror. • Then each citizen, isolated by fear, and urged by want, sought the means of subsistence in the only profession which could afford it, in those times of nominal and individual riches, of effectual and general poverty.
Every body was engaged in trade; every house became a warehouse; every ground floor, opening on the street, became a shop, which, set up on hopes, and ornamented at great expense on credit, was soon closed with scandal by bankruptcy; and thus alternately succeeded, ignorance or fraud, imposition or improbity.
Since society has been reorganized upon a new basis, since order has been re-established, every one has either resumed his former state, fixed himself in the profession which he had embraced, or has embarked in a new career; in short, the citizens of their own accord have formed themselves into classes under the insensible impulse of the hand which directs them.
However, the traces of the evil are not yet effaced, its sources are not yet dried up.
Wealth has not yet descended to its just estimation, honour has not yet remounted to its real worth.
Order and economy, these two sources of prosperity in a commercial house, do not yet generally prevail, and are too little observed, particularly in large cities. The splendour of
warehouses or of shops, of dwellings, or of persons, is still the ensign of too many tradesmen, and supply the place of that scrupulous vigilance, that modest probity, that strict fidelity, which formerly made the buyer a customer, the customer a friend.
Merchants have been seen without books, books without accuracy and regularity; and too often books in which the apparent accuracy of a year was only the effective fraud of a week writings arranged in order to mask dishonesty towards creditors, or to bide improbity from justice.
Bankruptcy has been considered as one of the means of grow. ing rich; women have been found creating themselves opulence, at the price of the ruin of their husbands' creditors; and by a concerted separation of property, securing in advance the means of preserving to a single person the enjoyments of a guilty luxury, at the expense of the misery of many families.
And even the morals of society have been, and still are, too indulgent to such conduct; the laws are an insufficient barrier against misdemeanors so grave: his majesty has observed it with regret, and with grief; he has been desirous of administering a prompt and efficacious remedy to the evil.
Hence, gentlemen, the severity of the provisions which you will find in the commercial code, in regard to the keeping of books, the separation of property between husband and wife, the indirect advantages afforded to married women, the failures even which may be acknowledged innocent, the bankruptcies occasioned by imprudence, those which fraud has produced.
Probity re-established, will applaud the rigour of the rules which are about to be adopted; dishonesty will be alarmed at them. Some will at first perform their duties from fear, who soon after will submit from habit, and end in finding pleasure in fulfilling them. Good morals will revive in the bosom of good laws.
These are the observations, gentlemen, that we have thought necessary to offer to you, upon the general classification of the subjects ; upon the collective matter of the commercial code; and upon the principles which have governed its formation.
We bring you to-day the seven first titles of the first book; the other titles will speedily be submitted to you, and a final law will fix the period when the whole code is to take effect, no part of which will be in force separately or successively.
At the commencement of the first book, and under the title of general provisions, the framers of the code had laid down certain rules and definitions, some of which have appeared to be purely theoretic and superfluous; others have been deemed more suitable to a different place.
Thus we have not thought it necessary to say, that in France every body has a right to carry on trade, but truly to determine the character by which a merchant or trader is to be recognised, to pronounce what persons may, and how they can become merchants ; we have therefore made the first title relate to merchants.
We have immediately afterwards, in order completely to establish the foundation of commercial jurisdiction, determined what acts should be deemed commercial.
But their nomenclature has been ultimately transferred to the title of competency and jurisdiction.
As this nomenclature will henceforth be applied to those who follow the profession of a merchant, and to mercantile transactions, by whomsoever they may be practised; as the jurisdiction will result, at the same time from the character of the person and the nature of the transaction, the law will be clear in its definitions and easy in its application.
In speaking of merchants, it was highly necessary to notice married women and minors.
The ordinance of 1673 had bestowed too little attention on these two classes of individuals. A minor and a woman might too easily hazard, the one his own fortune, the other her’s and at the same time that of her husband.
Both of them are now prohibited from engaging in trade unless authorized, the minor by his parents, if they be still living; the wife by her husband, even thouglı she be separated in property from him.
Neither of them, then, the minor nor the married woman, can any longer pledge or sell their real estate, except in the case of the wife, where the property shall have been stipulated as dotal; a stipulation which will preserve to her the privileges established in the Code Napoleon.
The second title treats of the keeping of books, rules for which were established in the third title of the ordinance of 1673.
Those which we prescribe are more strict, and at the same time more extensive.
The ordinance enjoined on the merchant only to insert on his journal, his traffic, his bills of exchange, &c.
But we have perceived that this is not enough; the conscience of the merchant ought to be entirely laid open in his books ; there the conscience of the judge ought always to be sure of finding it. .
Much has, then, been required from the merchant on this essential point.
The eighth article of the code directs him to enter, 1. All that he receives and pays, of whatever nature it may be ; and, consequently, even the marriage portion of his wife, or the produce of inheritances, donations ; in fine, sums arising from causes unconnected with trade.
2. Every endorsement of a bill; for these endorsements have often constituted a considerable part of the debts payable of an insolvent, without being entered on his books, and without affording any traces of their existence, except in the fugitive memorandums of brokers, or among the uncertain notes of the operations and fraudulent circulations which are practised.
The inventory prescribed by the ordinance of 1673 was an isolated instrument which was not subject to transcription on a register, and was to take place only every two years. It is to be made in future every year, and its authenticity will be ensured by a copy on a special register.
The third title treats of partnerships.
general partnership, and a commandite, or limited partnership, ia which one partner furnishes the capital, and the other the labour and attention; nor were the rules in regard to the latter kind well established.
The framers of the present code had added two others : a partnership by shares, and a partnership in participation or joint concern, and thus four sorts were recognised.
We have reduced them to the three first, conformably to the Civil Code, (Book III. Tit. IX.) because a partnership in participation is only a transitory act, a contract which relates to a single object, and does not rest upon the same basis, nor can it have the same results, as the three other kinds of association.
We have been particularly attentive to characterize exactly the divers contracts of partnership.
The definition of a general partnership, or collective name, has presented few difficulties ; it is universally known and adopted.
But if it be important to favour the commandite, or limited partnership, which permits every proprietor of capital to connect himself with the chances of commerce; which gives aliment to circulation ; increases its activity ; multiplies the social ties by a community of interest between the landholder and the manufacturer, between the capitalist and the shipper, between the first personages of the state and the most humble tradesman ; it is of importance to prevent fraudulent speculations audaciously made, under an unknown name, by means of which the most hazardous commercial operations of banking or stockjobbing were undertaken, and when not crowned with success, relief was found in the obscure dishonour of a premeditated bankruptcy.
The prohibition to the commanditary (dormant partner) of all agency in the transactions of the association, under the penalty of absolute responsibility, the publication of the partnership agreement, in order that the capital furnished or promised by the commanditary, and, consequently, the extent of the resources and credit of the partnership may be known, are the principal rules established by the law.