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names shall be placed on a list of distinction, made out by the prefects, and approved by the minister of the interior. This mode ought to ensure the continuance of a good choice.
The question whether the presidents and judges may be indefinitely re-elected has been determined in the negative. The law provides that they shall not be re-elected until after a year's interval.
It is not to be dissembled that in pronouncing this decision, the law may sometimes deprive, during a year, a tribunal of one, or more of its most distinguished members; nor can it be concealed that a tribunal very near us, in which probity and intelligence for a long time have presided, may most sensibly feel this privation; but ought we to place some other judges, equally upright and enlightened, in the situation of elective incapacity ? For it cannot be denied, that if a re-election without any interval were permitted, every judge who should not obtain it, would consider himself wounded in his honour. Now, ought the law to place in this situation men who abandon their personal affairs to devote themselves to a painful and gratuitous service? It has moreover appeared to us that if the perpetuity of functions, in the civil and criminal tribunals, was a benefit to suitors, it were more conforme able to the interests of commerce, that merchants should be successively called to judge their peers. It is then for the interest of commerce and of merchants, who are called by public esteem to the function of judges, that the law has decided that question.
That same interest demands prompt decisions, certain execution; the form of procedure ought to be simple as well in the first instance, as in case of appeal; the facts should be reported with clearness and simplicity, and as much as possible by the parties themselves, in order that the judge may be the better enabled to appreciate their probity. It is in this spirit that the third and fourth titles of the book, now under consideration, are framed. Article 647. of the fourth title, forbids the courts of appeal to grant prohibitions or delays, in the execution of the judgments of the commercial tribunals, even when their competency should be called in question; it is in this spirit that article
627. of the law which we now present to you, interdicts the employment of advocates; a provision, gentlemen, which has already received your sanction, in the code of civil procedure, article 414.; but the article 627. just cited, organizes the execution. It is in this spirit, that article 625. establishes, for the city of Paris solely, commercial guards for the execution of judgments authorizing personal imprisonment. The law only restores life to an establishment regretted by the commerce of Paris, because the guards procured security in the execution, without employing means too severe.
The organization of the tribunals of commerce, the form of procedure before them, was the easiest part of the law which we now submit to you. The second title, relating to competency, has presented more important questions.
Since the publication of the ordinance of 1673, but particularly since 1789, commerce has become the profession of a very great number of Frenchmen; the will alone gives the right of carrying on commerce. Some devote themselves habitually to trade; others are only accidentally engaged in transactions which, under certain relations, are really commercial. Hence, it had been concluded, that the competency of the tribunals of commerce should be determined by the fact which gave rise to the controversy ; that if this fact was a commercial transaction, he who was a party to it, whatever might be the cause, whatever might be its character, was justiciable by a tribunal of commerce; that in defining commercial acts, the competency of the tribunals of commerce would be invariably regulated; that afterwards passing to the consideration of those commercial acts, the followlowing ought to be regarded as such, namely, all acts of buying, selling, and exchanging of produce and merchandise-all signatures given on bills of exchange, or promissory notes-all enterprises in manufactures, &c. &c. Thus, the competency would have been determined by the fact alone, without exception.
The rigorous application of this principle has appeared to present serious inconveniences, inasmuch as every Frenchman, performing any act of traffic, more or less extensive, would be, by this single fact, subject to the jurisdiction of the tribunals of commerce.
For example, a magistrate buys goods for the use of his family; some circumstance induces him to dispose of a part of them. In this instance there has been a buying and selling, and, consequently, a trade in merchandise: the principle, then, that the fact determines the competency, would render any dispute which might arise in consequence of the sale made by the magistrate cognizable by the tribanal of commerce; yet in itself the act of the magistrate is not a real commercial transaction; it is a civil act, which, in case of controversy, ought to bring the parties be fore the civil tribunals.
The law then could not admit the general principle, but it has considered that the Frenchman, not a merchant, exercising a civil or military profession, that the capitalist who purchases merchandise or produce beyond his real wants, does an act com. mercial in its nature, since the quantity of the article bought shows the intention of reselling; which constitutes traffic. Ne vertheless there is yet only a presumption; the fact that he has bought beyond his real wants, is not recognised; the law must have considered this bargain as an act of trade, and leave to the judges the examination of the fact, and the consequences thence to be drawn.
But if the law must have declared that such an act is reputed to be a commercial transaction, are there not certain others which are so evidently of that character, that there is no examination necessary to determine them ?-Yes, undoubtedly; but it is in considering, as the law does, the quality of the persons who have contracted and, in effect, it is clear that the engagements and transactions between merchants, traders and bankers are positive acts of commerce, unless they relate to produce and merchandise bought for their private use; for, in the latter case, it is not as merchants that they have contracted, but as citizens.
It follows, from these copsiderations, that the competency of the tribunals of commerce must be determined, either by the pature of the act, about which there may be a controversy, or by the quality of the person.
Thus the tribunals of commerce will have jurisdiction of all controversies relative to the engagements and transactions between merchants, traders and bankers-between all persons for acts relative to commerce ;--and the law defines what are reputed to be commercial acts.
It would be superfluous to detail to you the definitions comprised in articles 632. and 633. of the law; their clearness renders it unnecessary, and we pass on to the provisions in articles 636. and 637. which relate to what is declared in article 632. on bills of exchange. We are obliged to refer to article 112. of the first book of this code; it declares that all bills of exchange containing either a fictitious name, quality, domicil, place where drawn or where payable, are reputed only simple promises. motives for this article are, that certain circumstances change the Dature of the engagement subscribed, under the title of a bill of exchange; that then it is only a civil obligation, the cognizance of which appertains to the civil tribunals; consequently, article 636. provides that in such cases, upon the demand of the defendant, the tribunal of commerce shall be bound to remit the cause to the civil tribunal.
But it may happen that the bill of exchange, reputed a simple promise, conformably to the terms of article 112. bears, at the same time, the signature of individuals who are merchants, and also of others who are not merchants; article 637. then requires, that the tribunal of commerce should take cognizance of it, but that it shall not pronounce judgment of personal imprisonment against the individuals who are not merchants, unless they should have engaged themselves for some operation of commerce, traffic, exchange, banking, or brokerage. In this second case, except that of a commercial engagement, there is a civil obligation on the part of the signature not mercantile, and a commercial obligation on the part of the mercantile signature; it has appeared to us that the latter ought to draw the other with it before the commercial judges.
The same articles 636, and 637. the provisions of which we have just noticed, in relation to bills of exchange, considered as simple
promises, also regulated the competency of the tribunals of commerce, as to what concerns promissory notes.
It was demanded that promissory notes should, in every thing, be assimilated to bills of exchange, both in respect to jurisdiction and imprisonment of the person, whatever may be the character of the signature.
After a long discussion, the reasons in favour of this opinion have appeared to be more specious than just, and in consequence of the principles adopted in the regulation of the competency of the tribunals of commerce, the following rules have been orJained.
Promissory notes bearing the signatures of individuals, not merchants, and not originating in operations of commerce, traffic, exchange, banking, or brokerage, are civil obligations which cannot be cognizable by the tribunals of commerce.
Promissory notes bearing, at the same time, the signatures of mercantile individuals and of those not mercantile, are, at the same time, commercial obligations for the former, and civil obligations for the latter; the interest of commerce requires, in this case, that the tribunals of commerce should have cognizance of them; but they must not pronounce judgment of personal imprisonment against the individuals not merchants, unless they have engaged themselves for some operation of commerce, traffic, er. change, banking, or brokerage.
The application of these principles grants to commerce every thing that its interest, well understood, required of the law.-To go further, would be to place individuals, who are not merchants, in the situation of not being able any longer to make use of a negotiable instrument, which, when used in moderation, may be advantageous to them in social transactions.--To go further, would be to extend the right of personal imprisonment, when it is for the interest of the state, and conformable to our moral habits, that it be limited.
Finally, this right of imprisonment of the person, would, if extended, give another direction to loans for civil purposes, a direction contrary to the interests of families, inasmuch as it