NUMBER XIX.

SELECTIONS

FROM

THE PLEADINGS OF D'AGUESSEAU.

SINCE the greater part of this volume was printed, it has occurred to me to embrace the opportunity of inferting the two following specimens of the pleadings of D'Agueffeau, in his character of Advocate Ge

neral.

The nature of thefe compofitions, as being the counfels of an affeffor to the parliament of Paris, is explained in the preliminary obfervations of the preceding number of the Appendix, and alfo in the general Introduction to the prefent work.

The first of the following fele&tions is an entire pleading upon the queftion of legitimacy, in a cafe where the adultery of the wife was clearly manifeft, and there was confiderable reafon to infer, but not abfolute ground to conclude, the non-access of the husband. I have fixed upon this production as an inftance of co-incidence with the English law, and as a perfpicuous explication of the general principles which prevail with respect to the important fubject of the difcuffion.

The other is an abridgment of the two pleadings, in the cafe of the Princes de Conty, from which I had inferted a few extracts in the course of the prefent volume, previous to my forming the intention of giving this more extensive view of them.

The following is a flight sketch of the subjects embraced in this cause : The Duke de Longueville, who was alfo Abbé d'Orleans, being a perSon of a weak frame of mind, but having a teftable capacity, made a will by which he gave his property to his brother the Count de St. Pol, whom he inftituted his heir; and in cafe of his death without iffue, he inftituted his mother Madame de Longueville as heir, praying her at her deceafe, to difpofe of the property in favour of his Coufins German the Princes de Conty; and by a general clause directing that his will should avail as a teftament, a codicil, or in any other way by which it lawfully might. Afterwards he made another will, whereby

the

the right, before intended for the Princes de Conty, would in effect devolve upon Madame de Nemours, his half-fifter as heir by blood, but which latter will was impeached on the ground of infanity; and it was an undifputed fact, that he was in a very short time afterwards in a state of abfolute madness, which continued until his death, during a period of feveral years; the Count de St. Pol, and Madam de Longueville, having died before him,

The first pleading was upon an appeal from a sentence upon a fuit inftituted by the Prince de Conty, and admitting him to prove by wit. neffes, the incapacity of the teftator at the time of the fecond will; it being the course of the law of France not to allow a proof by witnesses, without an exprefs sentence for the purpose.

Upon the hearing of this appeal, the first question was, with respect to the validity of the title of the Princes de Conty, under the former will, and involved a difcuffion of the generalrules of the Roman Law, respecting teftamentary dispositions, which was followed in the Province where the queftion arofe. Originally a will could only be made by the inftitution of an heir, and in cafe of the death of the inftituted heir before the teftator, or his refufal of the fucceffion, the whole will became void; afterwards the use of fubftitutions avas invented, by which a different heir might be appointed, in cafe of the fucceffion not being taken by the first; but this was merely an alternative, and if the first did take the fucceffion, the fubftitution could not attach. At a latter period fideicommiffa' were invented, by which the inflituted heir was directed to restore the fucceffion to a third party. These were analogous, partly to trufis, and partly to limitations in remainder in the English Law, but (reverfing the cafe of a fubftitution) could not take effect, unless the fucceffion had been taken by the inffituted heir.

A codicil (according to one fignification of the term) is of nearly cotempcrary inflitution, and is a prayer, which has an obligatory force addressed to the heir by blood, to perform the difpofitions which it contains; and a claufe directing that a teftament shall take effect, as a codicil (called a codicillary clause) gives the teftament the fame effect as a proper codicil.

The points established in the appeal are, that the difpofition to the Princes de Conty was a fidei commiffum, and as the heir first inftituted, and the heir who was fubftituted, both died before the teflator, it could not take effect in that character, but that by virtue of the codicillary clause, the difpofition was obligatory upon Madame de Nemours, the heir by blood.

This being established, the objections to receiving proof by witneffes, of the incapacity of the teftator at the time of making the fecond will, which were founded upon the reasonableness of the will itself, and upon certain other inftruments executed about the fame time, were taken into confideration, the general principles refpecting the capacity of teflators

were

were expounded, and it was fhewn that a proof by witnesses was necessary to elucidate the fact, and that no conclufion of fanity could be drawn from the inftruments themselves.

The proof by witnesses having been taken, a general sentence was pronounced in favour of the title under the firft will, and fupporting the allegation of infanity as affecting the second. And the fecond pleading is upon an appeal from that fentence. After examining several exceptions to the witneffes, it was firft fhewn that the former fentence had effectively decided upon the validity of the first will; as the proof adduced only related to the fecond, and would have been nugatory, unless the court had established the validity of the firft. It was then shewn that even fuppofing the question to be entire, the fame conclusion ought to be drawn. The general nature of the fanity requifite in cafes of teftaments, and the prin ciples applicable to the proof of it, were flated with more particularity. The inferences arising from written inftruments were examined, and it being then established that the cafe must be decided by witnesses, the particulars of the evidence were obferved upon terminating in a conclufion of the fact of infanity; and laftly, the argument that the will might be made during a lucid interval, was difcuffed and refuted.

It will perhaps be thought that the conclufion of infanity might, under the circumftances, have been drawn with much less difficulty, as the facts feem too frong to be reconciled with any other fuppofition, and the difcuffion may perhaps in other refpects be looked upon as too florid and diffufe; but the knowledge, and ability, and eloquence which it exhibits, will, I hope, through all the imperfections of a tranflation, display the very mafterly talents of its author.

The abridgment which I have made confifts in the omiffion of the arguments of counfel, of the refutation of an argument that the Prince de Conty was entitled to a decifion, independently of the effect of the codicillary claufe, and of the repetition in the fecond pleading of fome of the fatements, and obfervations in the first.

The pleadings as preferved are in fact only preparative notes, found in the poffeffion of the writer at his deceafe, after an interval of 50 years. The pleadings actually pronounced were not read, or repeated, but spoken in the language fuggefting itself at the time. It is faid in a prefatory advertisement, that the fire which animated him at the time of Speaking, excited ftill more brilliant images, more fublime thoughts, more forcible reflections, than those which presented themselves at the time of compofition, fo that the pleadings which strike the most in reading would have even a superior strength and beauty, if it had been possible to print them as they were pronounced.

VOL. II.

Hh

CASE

CASE

OF THE

SIEUR BOUILLEROT DE VINANTES (a),•

The question relates to the fate of a child, whofe mother had concealed her pregnancy, and had been condemned for adultery, without the fentence declaring the child to be a baftard; the husband having been only abfent from his wife three months.

THIS caufe is as much diftinguished by the name and merit of those who have been engaged in it, as by its own importance, which has juftly attracted the attention and concourfe of the public. The arrêt which you are to pronounce will for ever establish the real principles for deciding upon queftions of parentage; which are the folid foundations of the different ftates of civil fociety.

You have heard the fon of a guilty mother, difavowed by him whom he calls his father, imploring in your audience the authority of the laws, the force of prefumptions, the name and favour of marriage.

You have feen an unfortunate hufband, compelled to renew the recollection of the crime of his wife and of his own difhonour; always equally to be commiferated if you pronounce against him, whether blinded by his paffion he difavows his own blood, or obliged by the authority of the law to acknowledge as his fon, one whom adultery has introduced into his family.

A third party appears in the caufe, but it is only to increase the doubt and uncertainty of it; and the deftiny of the child whofe ftate is the fubject in difpute, is so unfortunate that he cannot find a certain father, either in the honourable connection of marriage, or in the criminal engagement of adultery.

Great as his misfortunes are, he fhould look forward to a more favourable destiny, fince in his defence an illuftrious protector has entered upon a career, which will be equally glorious to himself,

(a) This pleading was pronounced in 1693; and is the ad in the printed col

and advantageous to the public (a). His name alone will be a favourable omen to those whofe interefts he supports, and his merit will not require the affiftance of his name, to render him the ftrength of the weak, and the afylum of the unhappy.

What must have been the joy of that great man who revives in him, if he could have been witness of this aufpicious outfet, and feen the heir of his name defend the caufe, of the pupil whom he had taken under his protection, with the fame eloquence which you daily admire in him, who, in the advancement of juftice, fupports with fo much dignity the caufe and the interefts of the public. Such is the recompence which heaven allots to virtue, fuch are the benedictions which the Scripture has promifed to the juft, and has accomplished in the perfon of that great Magistrate, whose name will endure as long as this affembly. Ecclefiaftic. Ch. 35.—4. Mortuus eft, et quafi non eft mortuus; fimilem enim reliquit fibi poft se. The fact which gives rife to the prefent conteft, is as clear as the decifion upon it is important.

Nicholas Bouillerot, fieur de Vinantes, Maitre d'Hotel of the duchefs of Orleans, in the year 1664 married Marie-Anne de Laune, who was then about 12 or 13 years of age. This marriage, which was happy in its commencement, was followed by the birth of feven children whofe ftate is certain: death has taken away five of thefe, two of them only now remain, and the appellant infifts that he is a third.

Whether the conduct of the Dame de Vinantes was for a long time innocent, or whether her irregularities were kept fecret, nothing appears to have difturbed the tranquillity of the marriage until the year 1690, or rather until the birth of the appellant. His birth, which confirmed the fufpicions that the husband had already conceived against his wife, appears to have determined him in preferring an accufation of adultery.

We shall state in the fequel, with more particularity, the circumstances which accompanied the birth of this child, and the inferences which have been drawn from them, to prove that he owes his life to the criminality of his mother. But we cannot forbear obferving at prefent, that his birth was for a long time concealed, and that the knowledge of it was ftudiously withheld from the husband, from the public, and the church; that even the nurse to whom he was intrufted was not informed of the fecret of his origin; and that he would not even yet have received the ceremony of baptism, if the curé (b) of the parish, being apprized of the

(4) M. Chretien de Lamoignon, son of M. de Lamoignon ; then firit Advocate General, and grandson of the first president Lamoignon,

(6) Answering to Rector.

Hh2

neglect,