CHAPTER VI.

THE NAPOLEONIC CODES.

 

 

The codification of French law, if it was probably the most durable, was certainly not the most surprising manifestation of Napoleon’s energy. It was the fulfilment of an aspiration, as old at least as the fifteenth century, and partially realised by the ordinances of kings and the text­books of jurists, an aspiration for the legal unity of France, for “one weight, one measure, one law”. To this ideal the Revolution imparted a fresh and powerful impulse. The birth of the new nation, the triumph of the new civic enthusiasm, the victory of philosophic reason, seemed to demand a code of uniform laws suitable to an enlightened people. At the same time, all those social obstacles which had hitherto stood in the path of legal unity were swept away—provincialism and feudalism, caste and corporation, the wealth and influence of the Church, the power and prestige of the Crown. The whole law of property and of persons was remodelled by the Revolutionary Assemblies under the stress of a democratic theory as coherent as it was imperious.

The land was liberated from feudal dues and tithes; and its freedom was secured by the prohibition of all perpetual and irredeemable rents. The corporate property of the Church and of the rural communities passed almost entirely into the hands of the State, and was thrown piecemeal into the market. Again, as the land was freed to guard against tyranny, so it was divided to promote equality. The Roman law of succession, which was favourable to testamentary freedom and therefore to inequality, was set aside; and the egalitarian tendencies of the Custumals were developed and sharpened. Wills were almost entirely forbidden; the distinction between moveables, acquisitions, and patrimonial property was abolished; and the inheritance, considered as a uniform mass of property, was to be divided equally among the heirs. Still further to promote territorial equality, representation was declared to be infinite in the direct line ; donations were to be returned to the donor ; natural children were recognised, and gifts to the rich prohibited. Thus, while the law fortified the proprietor during his lifetime, it weakened his influence after death.

Equally sweeping were the changes which came over the law of persons. Under the monarchy, sex and nationality, social status and professional calling, had created legal inequalities between French subjects. In virtue of the droit d’aubaine, a foreigner could not inherit a legacy or execute a will, or transmit his property save to children born in France. The division of persons into three orders: clergy, nobility, and tiers état, carried with it fiscal and political inequalities and also some differences of civil status. The monk was dead to civil life; and in the mountains of the Jura there lingered a last remnant of serfdom. In several Custumals, the rule of inheritance differed according as the person concerned was noble or roturier. Religion, which gave privileges to the Catholic, brought penalties to the Protestant and the Jew. The civil disabilities of women were many. But all these intricate, manifold, and unreasonable distinctions were swept away by the Revolutionary Assemblies. The droit d'aubaine was suppressed ; the division between the three orders was effaced; and monks were restored to civil life. Religious toleration took the place of the intolerant privilege of the Catholic religion. The clergy were permitted to marry; and marriage itself, being declared a civil contract, passed into the domain of state control. Divorce and adoption were introduced, to the scandal of the Catholic world; and the care of the registers of births, marriages, and deaths was transferred from the Church to lay officials. A secular State based upon a large peasant proprietary, a civil law emancipated from religious influences, a system of land-tenure devised to secure the maximum of equality, a law of persons, which proclaimed that all men had equal rights—such were the main results of a period of legislation unprecedented in history for its volume, its violence, its idealism, its splendid achievements, and its deplorable mistakes.

An atmosphere of great legislative fertility, of high passions and quick changes, is unfavourable to codification; and the draft codes of the Convention and the Directory received so little attention from the preoccupied Assemblies to which they were successively submitted, that the revolution of Brumaire found France still waiting for that body of simple and clear laws which had been promised in the Constitution of 1791. Yet no one could doubt but that a code would eventually be enacted, even if three successive drafts had been consigned to limbo. Every Assembly had regarded the task as a solemn charge upon its energies; and every sensible man felt—no one more than Cambacérès, the chief draftsman of the Convention—that in the Revolutionary legislation there was much to revise, to coordinate, and to secure. At the first calm moment the task could be completed. Indeed, immediately after the revolution of Brumaire, a committee was appointed to consider the reform of the Code and to report to the Legislative Commission.

There is perhaps no single document more significant of the temper of France upon the morrow of Brumaire than the speech made by Jacqueminot in submitting his draft to the Commission. The reporter fully acknowledged that the work of his committee had been hasty and imperfect, but urged in extenuation that it was necessary to put an end to the scandal of the Revolutionary divorce laws, to restore to parental power its lawful authority, and to widen the liberty of testamentary bequest. So instantaneous was the reversion from Revolutionary excesses to the old and pertinacious tradition of French jurisprudence! The draft of Jacqueminot was in itself of no consequence. Composed in the brief and unsettled interlude between the fall of the Councils and the establishment of the Consulate, and far inferior in elaboration and technique to the earlier work of Cambacérès, it was not even discussed for five minutes. The Legislative Commission was confronted with larger and more pressing problems; but it is well to remember that, before their task had been completed, and while the lineaments of the Consular Constitution were still under discussion, the spirit which was destined to inform the Code Napoleon had spoken and revealed itself. The laws of France, as they had been left by the Revolutionary Assemblies, were to be coordinated and reduced to system; but philosophical idealism was to be corrected by juristic tradition, and the political extravagance of the passing hour utterly effaced. Law was to be the expression of settled national character, not of every passionate and casual mood.

 

The Civil Code.

 

The desired moment of calm came after the battle of Marengo had secured the frontier of France, established the prestige of the Consulate, opened the avenue to an honourable peace, and liberated the energies of Bonaparte for the civil organisation of the State. On August 12, 1800, a committee of four lawyers, Tronchet, Portalis, Bigot de Preameneu, and Maleville, was appointed to draw up a project of a Civil Code, with instructions to bring the work to a conclusion in the following November. Every committee has a head and a tail. Though Maleville was a capable lawyer and afterwards distinguished as the first of a long line of commentators on the Code, and though Bigot’s adroitness and pliancy were destined to be proved in more fields than one, the driving power in this committee lay with Tronchet and Portalis. Of these two men, Tronchet, the venerable president of the Cour de Cassation, stood for massive learning, sound judgment, and conservative caution; while Portalis, if less eminent in knowledge than “the Nestor of the aristocracy”, was specially distinguished in the art of legal and philosophical exposition. “He would have been”, said Napoleon, “the most eloquent orator in the Council if he had known when to stop”; but, save for its fluency, the chastened eloquence of the great Provencal jurist had little in common with the exaggerated rhetoric of the Clubs. Portalis was a thinker, a Catholic, and a conservative. A true parliamentarian, in the French sense of the term, he had opposed legal unification in 1789 on the ground that a code would be the precursor of despotism; and ten years later, when the Directory was tottering to its fall, he expressed to a friend his earnest desire that a liberator might be found to free France from the toils of Revolutionary legislation. It was certain that he viewed divorce with aversion, and that his will would be cast into the scale of moderate reaction towards the past. While Portalis and Maleville represented the legal traditions of the land of written law, Tronchet and Bigot had been trained in the Parlement and the Customs of Paris; and the Civil Code, which was the result of their labours, exhibits many traces of compromise between northern Teutonism and the Latin inheritance of the south.

The draft of the Civil Code was completed in four months and printed on January 1,1801. It was then, by order of Bonaparte, sent to the law-courts, which were invited to submit their criticisms and observa­tions in the course of the next three months. In the light of this commentary the draft Code was then examined and revised by the legislative section of the Council of State, composed of Boulay, Berber, Emmery, Portalis, Réal, and Thibaudeau; and, when this process was completed, it was submitted title by title to the whole body of the Council. It was at this stage that the provisions of the Code first came under the notice of Bonaparte.

Eyewitnesses have described the vivid and animated drama which was enacted whenever Bonaparte came down to preside over the Council­chamber in the Tuileries. A clink of arms, a roll of the drum under the arcades, and then, as the door opens, and the usher calls, and the councillors rise in salutation, the master steps briskly up to his green table on the dais, nods to Cambacérès on his right, to Lebrun on his left, signs to his Council to be seated, and with his “Allons, Messieurs, commençons”, sets the debate aflame. Under the Consulate, these discussions were free, vivacious, and unembarrassed; and, when the First Consul presided in person, and he presided over thirty-five of the eighty-seven sittings devoted to the Civil Code, they were generally prolonged till a late hour in the evening. His too was the most quickening spirit in debate. With little legal learning, save what he had gathered from snatches of reading or from the talk of Tronchet and Portalis, and devoid of the scholarly temper of the professional draftsman, he possessed so luxuriant an intellectual nature, so lively a power of concrete vision, so keen an instinct for the large issues of politics, that his contributions to the discussion were a series of splendid surprises, occasionally appropriate and decisive, occasionally involved in the gleaming tissues of a dream, but always stamped with the mark of genius and glowing with the impulses of a fresh and impetuous temperament. Lanfrey has indeed urged that the official report of the proceedings drawn up by Locré, the clerk of the Council, has imparted a correctness to Bonaparte’s language which did not belong to it, and has effaced the eccentricities which would have betrayed the novice in legislation. This is true. Bonaparte often talked at random, and some of his warmest admirers in the Council complained that he fatigued the attention of his audience by the confused abundance and the unexpected turns of his thought. On the other hand, it is equally true to say that the grave and chilly language of the official reporter has robbed the First Consul of all his peculiar verve and most of his originality.

“He spoke”, says Thibaudeau, “without embarrassment and without pretension. He was never inferior to any member of the Council; he often equalled the ablest of them by the ease with which he seized the point of a question, by the justice of his ideas and the force of his reasoning; he often surpassed them by the turn of his phrases and the originality of his expression”. At one moment he would embark upon the most adventurous of intellectual cruises; at the next he would propound some prim legal definition. Here would be a flash of anger ; here a string of anecdotes; here a friendly passage of badinage punctuated by snuff-taking; here a flight of gaudy rhetoric. But the prevailing impression left on the reader of these debates is the union in the mind of the chief debater of hard-headed common sense with imaginative vision. He thinks, not in legal rules but in concrete cases, keeping always in sight the gain and loss to the whole State, the political advantages and disadvantages to France. “You act as law-makers”, he cried once, “not as statesmen. It is by speaking to the soul that men are electrified”. He was in fact the amateur of genius, learning as he went along, throwing off opinions as sparks fly from the anvil, shaking himself free from the views of yesterday if they embarrassed him or were plainly overpowered, but always capable of making a contribution to the discussion by his sheer power of seeing principles as they would work themselves out in the life of the individual or the State. “I first thought”, he confessed, “that it would be possible to reduce laws to simple geometrical demonstrations, so that whoever could read and tie two ideas together would be capable of pronouncing on them; but I almost immediately convinced myself that this was an absurd idea”; and in one of the last sittings of the Council he pronounced what legal opinion has felt to be the trite criticism on the Code itself. “I often perceived that over-simplicity in legislation was the enemy of precision. It is impossible to make laws extremely simple without cutting the knot oftener than you untie it, and without leaving much to incertitude and arbitrariness”. Yet Bonaparte’s appreciation of the complexity of the task was only equalled by his impatience to despatch it without delay.

As each Title of the Code passed the Council, it was submitted successively to the Tribunate and the Legislative. The spirit of these two assemblies was in the early days of the Consulate tolerably indepen­dent; and the debates of the Tribunate were often distinguished by eloquence and courage. As the Tribunes had been provided with copies of the first draft, they had ample leisure to mature their objections ; and it was expected that they would assail the Code for its lack of originality, its deference to tradition, and its departure from some of the Revolu­tionary innovations. To disarm criticism of this kind, Portalis pointed out that the Prussian Code had respected historic forces and even local custom; that moderation was a quality essential to the legislator; and that the temporary laws of the Revolution were like piles wavering in a stormy sea. Nevertheless, the Tribunes proceeded to level a volley of well-aimed criticism against the first two “Titles”, or laws, which were presented to them. It was objected against the First—which dealt with the publication, the effects, and the application of laws in general—that its scope was too wide; that its character, consisting largely of moral and legal maxims, was inappropriate; and that the arrangement of the clauses was incoherent. These objections were so strongly felt that the law was thrown out by a majority of sixty-five to thirteen in the Tribunate, and by a hundred and fifty-two to a hundred and thirty-nine in the Legislative. The Second Title, on the enjoyment and loss of civil rights, shared the same fate; and the Council was obliged to withdraw both laws. The First Consul was deeply chagrined. “When I see a man like Simeon”, he said, “doubting if persons born in the colonies are French­men, I ask myself whether my head has turned”; and, announcing that the time had not yet come when one could “import into these great discussions the calm and unity of intention which they demanded”, he decreed (April 1, 1S02) a revision of procedure. An end was put to open debate in the full House. The Titles of the Code were henceforward to be submitted to the legislative section of the Tribunate, which was invited to tender its comments to the section of the Council responsible for that portion of the draft. In case of non-agreement, a conference was held under the presidency of Cambacérès; and, when the clauses had been there settled, they were referred back to the whole body of the Council, discussed anew, and then in their final shape expounded to the silent legislature by three selected Councillors. Under the new arrange­ment the work proceeded swiftly; and on March 21, 1S04, the Civil Code in its entirety passed into law.

It has been often said that the spirit displayed by the Tribunate in these legal debates was captious and unsteady, and that it was well for France that the rhetoricians were silenced. This view is untenable. The speeches of Andrieux and Simeon, who took the lead in opposition, are serious and weighty ; and nearly all the criticisms of the Tribunes were well-founded. One speaker protested against the droit d’aubaine, another against civil death, a third against confiscation. All three have the verdict of posterity on their side. When Simeon, the brother-in-law of Portalis, urged that there was no pressing hurry, and that every effort should be made to bring the Code to perfection, he was only talking common sense. But Bonaparte was impatient of delay; and, through no fault of its own, the action of the Tribunate was bound to wear the aspect of obstruction. By an inept clause of the Constitution, that body was debarred from proposing amendments to the laws which were submitted to it. If, then, the Tribunes were to give practical effect to their criticism of an article, they were forced to throw out the whole Title of which that article formed perhaps only an inconsiderable part. The alternative was one which no self-respecting public men could accept; and, refusing to accept it, the Tribunate was deprived of the power of publicly debating the Civil Code.

The First Book of the Civil Code treats of “Persons”, the Second of “Goods and the various kinds of Property”, the Third of “The various modes in which Property is acquired”.

The French Revolution was justly charged with having disturbed the foundations of family life. In order to stimulate the subdivision of property, it had, by its encouragement of adoption and its recognition of natural children, introduced new members into the family, while, with the same clear intention, it had restricted the testamentary powers of the father, equalised the sexes in marriage, and facilitated divorce. In the strong reaction which had set in against these ideas Bonaparte fully participated. He held that the legislator, far from encouraging the indefinite subdivision of property, should aim at securing a nation of moderate fortunes. He was a keen advocate of the subjection of women. He thought that it was the function of law to chasten loose morals, to exhibit the solemnity and sanctity of marriage, to strengthen the authority of the father, and to maintain the cohesion of the family group. All these views—and they were by no means the exclusive property of Bonaparte—are reflected in the provisions of the Code. If adoption was retained, the institution was accompanied by so many precautions that it could no longer be regarded as a deterrent to matrimony or a menace to family life. The adopter must be childless and over fifty years of age; and the adopted is not to sever the ties which bind him to his natural family. Nor can adoption take place so long as the adopted is a minor. Again, a clear line of separation was traced between the lawful and the natural child. “Natural children are not heirs. The law only accords them a claim upon the goods of their deceased father and mother when they have been legally recognised”. Even so their share is reduced to a third, a half, or three-fourths of what it would have been had they been born in wedlock; a third if the father and mother have left lawful descendants; a half, if they have only left ascendants, brothers or sisters; and three-fourths where there are neither descendants nor ascendants, to claim the inheritance. In vain Cambacérès pleaded that in certain cases the parent should be compelled to recognise the child. “Society”, replied Bonaparte, “has no interest in the recognition of bastards”; and he set his face against facilitating investigations into questions of paternity. Save in one eventuality, la recherche de la paternité is forbidden in the Civil Code.

In one of those large moral precepts, which are plentifully sown about the Code, it is laid down that the “child at every age owes honour and respect to his father and mother”. The power of the father was restored, and the despotism of the State repeated in the structure of the family. While the mother has no voice in the control of her children, the father is absolute. He can imprison his child, if under sixteen years of age, for a period not exceeding one month; if between sixteen and twenty-one, for a period not exceeding six months. In neither case is any writing or judicial formality required. The president of the Court of the arrondissement is bound to grant the order for detention. The father is not even required to state his motives. It is merely demanded of him that he shall sign an undertaking to pay all the expenses, and to furnish a suitable support to the prisoner. There is no more significant tribute to the continuity of French jurisprudence than this curious revival of the lettres de cachet, which, in the later half, at any rate, of the eighteenth century, were almost exclusively used to protect family honour by enabling a parent to incarcerate his troublesome offspring, without any disagreeable process of washing dirty family linen in open court. In the south of France, no doubt, where the Roman law bad always been a living force, the paternal power was the corner-stone of society; but all over the country, partly owing to the pride of the aristocracy, partly owing to a delicate sensitiveness which is a feature of the national temperament, and partly owing to the general dislike of the royal tribunals as intrusive novelties, the strongest prejudice existed against dragging family affairs into court. Indeed it is a singular fact that many of the cahiers of 1789, while denouncing the lettres de cachet, express a hope that some less objectionable provision may be made for maintaining domestic discipline. To this aspiration the Code responds.

Nor are these the only stones in the edifice of domestic monarchy. A marriage may not be contracted without consent of the parents by a son who has not reached his twenty-sixth year, or by a daughter who has not reached her twenty-first. The parents have the usufruct of their children’s property until they have entered upon their nineteenth year. They have the right to choose a guardian without the intervention of the relations or of a magistrate; and, if the father may not disinherit his son, he is given a larger power of devising his property by will. “Even in the most absolute governments”, said Bonaparte, “despotism stops short at the threshold of the home. It weighs upon the head of the household; and, as the head of the family is absolutely at the disposition of the Government, so is the family absolutely at the disposition of its head.”

In accordance with these principles, the civil status of woman was carefully depressed. A woman cannot be accepted as a witness to the acts of the Civil State, nor can she act as guardian or form part of the family council unless she is the mother or one of the ascendants. As a wife she is subject to her husband, and has no voice in the administration of their common property. She cannot give, sell, or mortgage; she cannot acquire by sale or gift without the husband’s written consent. Only if she is carrying on a separate trade can she make a contract without her husband’s authority. The woman of the Civil Code is regarded as a fickle, defenceless, mindless being; and her lapses from virtue are punished more severely than those of a man. “A husband”, said Napoleon, “ought to have the right to say to his wife: you shall not go out, you shall not go to the play, you shall not see such and such a person”. When a Councillor asked whether wifely obedience had been prescribed in the old laws of France, the First Consul turned upon him sharply: “What a question!” he cried. “Do you not know that the angel told Eve to obey her husband?... Morality has written this article in all languages. A fortiori should it be written in French in our Code”.

A law of September, 1792, had abolished judicial separation and admitted divorce, not only by mutual consent, but also for incompatibility of temper upon the allegation of one of the parties. That a contract should be abolished at the will of one of the parties was in itself an anomaly; and in this instance it was clearly subversive not only of religious tradition but of the most elementary principles of social order. Some of the law-courts, when consulted upon the first draft of the Code, declared against divorce altogether, and asserted that, as a matter of fact, no recourse had been made to it in the provinces. With the single exception of the Tribunal of Paris, every Court in France rejected divorce for incompatibility; and the Tribunal of Paris stipulated that incompatibility should be proved in court. It was a question upon which Bonaparte himself was profoundly interested. On the one hand, with his strong views as to the subjection of the weaker sex and the value of family cohesion, he was averse from any provision which might encourage the levity or augment the liberty of woman; and so powerful was this feeling in him that he subsequently prohibited divorce for members of the imperial family. On the other hand, he recognised that divorce might serve his own turn, and that within certain prescribed bounds it was necessary to society. As he said at St Helena, “to make marriage indissoluble is to provoke ennui, and to put the village cure above the law”. The Council too was substantially agreed upon the necessity of admitting the principle of divorce, though it was willing to yield to Catholic susceptibilities so far as to restore judicial separation (omitted in the first draft) as an alternative. Nor was there any doubt that, while divorce for grave specific causes should be admitted, divorce for incompatibility at the demand of one of the parties should be eliminated from the Code. The main contest raged over divorce by mutual consent; and, but for the strong advocacy of the First Consul, this would not have been received into the Code. Bonaparte’s contention was that divorce for specific causes would not be sufficient. The offences contemplated were not only difficult to prove, but, in the attempt to prove them, the wronged and the wrong-doer were alike dragged into publicity. “Few men are so lost to shame as to proclaim the turpitude of their wives. It would be scandalous and against the honour of the nation to reveal what passes in some households”.

Practical and political considerations therefore concurred in suggesting that this form of dissolving the marriage union should be supplemented by an alternative expedient which should be at once more private, more honourable, and more popular. Bonaparte was willing to concede that unions should not be dissolved after they had endured ten years; he was willing to prevent the same person from divorcing twice; he urged that the law should forbid divorced persons from remarrying within five years. But, hedged round by these safeguards, divorce by mutual consent for incompatibility of temper was in his view essential to marital happiness. Girls married young; and, though he had succeeded in raising the age from thirteen to fifteen, he had not raised it as high as he wished. In most cases, a young girl fresh from school or convent could not know whether her husband would prove congenial; in most cases a marriage was an affair of convenience. It was well that, when mistakes had been made, they should be capable of being corrected without noise or scandal. Accordingly he proposed that the affair should be brought before a family council presided over by a magistrate; that the relations on both sides should be unanimous; and that with their consent the Court should pronounce the divorce without examination. “I do nothing against the married persons”, he said, “since I require mutual consent. I do nothing against marriage, since I demand the adhesion of the relations”. Judicial separation was in his view a bad expedient, for it involved publicity and favoured immoral conduct. At St Helena he added, with penetration, that it was “a mezzo termine which could only be applied to the upper classes”. All things then conspired to commend the adoption of some provision for divorce by mutual consent. After long debate the First Consul prevailed; and, surrounded with a large number of restrictions, divorce by mutual consent passed into law.

No less jealous was the attitude of the Council towards divorce for “specified motives”. The possible causes were reduced from seven to three: adultery, cruelty, and the conviction of one of the parties for a grave criminal offence; and the investigation into the facts was transferred from the family council to the law-court. It is a curious fact in human nature that the experiment of entrusting these delicate enquiries to the family council broke down, not so much by reason of the incompetence of its members as because of their sheer indifference to an issue in which their sentiments should have been most closely involved.

The sentiment of equality, which had shaped the family law of the Revolution, had also moulded its conception of civic rights. The Con­stituent Assembly, in a fit of cosmopolitan generosity, had unconditionally abolished the droit d'aubaine, and the droit de detraction, a ten per cent, succession duty levied by the Treasury upon the property of foreigners. But the clouds of war had obscured the clear sky of philanthropy; and the draft Code proposed a return to the earlier system of reciprocity, which secured to the alien in France just such treatment as was accorded to the Frenchman in the alien’s country. Though sharply attacked in the Tribunate, this clause passed into the Code. In favour of the change it was argued that the generous policy of the Constituent Assem­bly had failed to induce other countries to relax their alien laws, and that, by retaining something to give away in return for concessions, France could secure better terms for her emigrants. Animated by the same spirit of traditional nationalism, the framers of the draft Code had proposed to accord civil rights to such persons only as were born in France and were the children of French parents. This proposition seemed to Bonaparte far too narrow. On political and on military grounds, he held that the privileges and duties of French citizenship should be as widely diffused as possible. He insisted that civil rights should be granted to the children of an alien father if they were born in France, and to the children of a French father born abroad. So too he urged that the child born abroad of a French father who had renounced his nationality should always be able to recover his French citizenship. “As for me”, he said long afterwards when recalling his share in this debate, “I desired that a Frenchman by origin should find himself a Frenchman again even if his family had been for ten generations abroad. If he should appear on the further bank of the Rhine, saying, ‘I wish to be a Frenchman’, I desired that the barrier should fall before him and that he should return triumphant to the bosom of the common mother”. It is also due to the First Consul that special dispositions were inserted in the Code to facilitate the registration of births, marriages, and deaths occurring in the French army while it was serving beyond the frontiers. Où est le drapeau, là est la France.

The fundamental principles of the Revolutionary law of property were too clearly based on sound economic principles to be shaken by the lawyers of the Consulate. Nobody dreamed of restoring feudalism or the dead hand of the great corporations. A proposal to revive the rentes foncières, a contract resembling the Roman emphyteusis by which a proprietor may let out waste land at a perpetual and irredeemable charge, was indeed discussed, but only to be rejected. The First Consul saw no advantage in it; and Portalis urged that, however useful it might have been in days when there was much waste to be reclaimed, such a contract would now create “inextricable embarrassment”. But, while the law of tenure underwent no sensible modification, the law which regulated the transfer of property was modified in several important particulars. A sale of immoveable property could be rescinded pour cause de lésion, if the seller had been defrauded of more than seven- twelfths of the price; and that, too, even if he had expressly renounced his right to take action for the rescission of the contract. Such a provision implies that there is a just price, the result of common opinion; and that, if property is sold for less than it is worth, the State should step in to protect the ignorant vendor. The doctrine had been repudiated by the Convention, which had abolished the action for rescission in 1795; but it was hotly championed by the First Consul, whose hatred of the Stock Exchange and of army contractors led him to welcome any expedient for repudiating a contract.

With a similar aim of defeating the machinations of financiers, it was intimated in the Code that the rate of interest would be fixed by law. “Interest”, so runs the text, “is legal or contractual. Legal interest is fixed by law. Contractual interest may exceed legal interest whenever the law does not prohibit”. It was urged in defence of the principle of regulation that, ever since the Convention had declared money to be merchandise, it had been loaned out at usurious rates. Nevertheless, it was not until September, 1807, that the rate was actually fixed—by a law which, as Napoleon remarked to Mollien, did not belong “to the system of your idéologues”.

Two questions arose with regard to liens and mortgages. Should the law require them to be publicly registered? Should the law require them to be specially attached to a particular piece of immoveable property? The Convention, which desired to facilitate land-transfer to the furthest extent possible, decided on 11 Brumaire, year VII (Nov. 1, 1798) both for the principle of publicity and for that of specialty. But these rules seemed too violent a departure from previous custom. It is true that in the Low Countries mortgages had long been publicly inscribed and specially allocated; but in France the secretiveness of an embarrassed aristocracy had resisted so obvious a method of facilitating credit. Of thirty Courts of Appeal consulted upon the point, only nine were in favour of maintaining the Law of Brumaire. The legislative section of the Council was divided, and two plans were submitted. It was alleged that the Law of Brumaire violated family secrets, destroyed credit, and injured the circulation of wealth; that inscription was costly and in­effectual ; that the principle of specialty was inconsistent with the rights of property, because the debtor was bound to fulfil his engagements upon all his property and not upon some special part of it. But the most valid practical objection to the law, as it stood, was the injury which might be inflicted upon wives and minors who had not taken the step of inscribing their legal claims upon the property of their respective husbands or tutors. The division of opinion pointed to a compromise ; and, while the publicity and specialty of liens and mortgages were recognised, a particular exception was made in favour of women and minors who had omitted the formality of registration.

Curious as was the debate upon mortgages, as revealing unsuspected depths of timid conservatism, it was far less important than the discussion provoked by the law of inheritance. The theory of the French Revolution had been that the State, having conferred testamentary rights upon the individual, could abridge or expand them at will; and that in the interests of social equality it was necessary to abridge them. Conse­quently entails (substitutions) were forbidden; the devisable portion was limited to a tenth; and equality of division was prescribed. The Code exhibits a sensible but cautious modification of this extreme position. The devisable portion was augmented, rising to a half if the testator had but one child, and never falling below a fourth. The father may bequeath all or any of this portion to one of his natural heirs, or give it to a relation in trust for children who may be yet unborn. Entails, owing to the vigorous advocacy of Bonaparte, are permitted to one degree. The arguments used in debate were both economic and moral. On economic grounds, urged Maleville, it was undesirable that property should be excessively divided, especially in the poorer departments where corn and moveable wealth were scarce. On moral grounds, urged Portalis, it was well that the father should be placed in a position in which he “could punish and recompense his children, redress inequalities between them, and satisfy obligations of gratitude towards strangers.” While Bonaparte was fully in accord with the spirit of these contentions, he proposed, as an alternative plan for giving effect to them, that the devisable portion should be graduated according to the amount of the heritable property rather than according to the number of the children, in such a way that, the wealthier the testator, the less should be the ratio which the devisable portion should bear to the sum total of his property. This suggestion, however, was overruled, as entailing expensive and inquisitorial researches; and the First Consul acquiesced in his defeat. The concession could be afforded; for, though the Code favours the subdivision of property, it is far more lenient to inequality than was the Convention, whose doctrine still numbered some vigorous exponents in the Council of State.

Napoleon once said at St Helena that his glory consisted, not in having won forty battles, but in the Civil Code and in the deliberations of his Council of State. Judged by external tests, the fortunes of the Civil Code have indeed been brilliant, and its influence has been wide. Yet it has been subjected to much severe criticism. Savigny, the founder of the historical school of European jurists, and Austin, the chief exponent of the analytical school in England, attacked it with vigour and knowledge. The Civil Code, said Savigny, was drafted at an unfavourable epoch, at a time of uncertainty and conflict, when the ideas of the Revolution were fast passing away and the ideas of the Empire were secretly growing; and this uncertainty is reflected in its provisions. To take one instance—the system of entails, rejected in 1803 was restored in 1806, and included in the Code in 1807. The Council of State had no part in the technical discussion of the Code, which was left to the four draftsmen, who were ignorant of Roman law. The judicial literature of France, consisting almost entirely of Pothier, from whose treatise three-fourths of the Code were extracted, was pitiable; and the selection of subjects was not determined by experience and practical knowledge, but by the Institutes of Justinian. The Code was incomplete; it had to be supplemented by external authority, and, far from being an organic product, was but a mechanical mixture of the results of the Revolution and the old regime of Roman law and the customs. Austin, too, condemned the haste and ignorance of the drafts­men, the absence of definitions of technical terms and of any provision for amendment. The Council of State, he pointed out, often devoted great attention to points of no importance, while neglecting many vital questions of arrangement and expression. The Code must not be regarded as a body of law forming a substantive whole, but as an index to an immense body of jurisprudence existing outside itself.

The Civil Code has also been criticised, upon economic grounds, as too favourable to the subdivision of property. From this cause some have deduced the lack of commercial enterprise, the fondness for safe investments, and the stationary census returns which they regard as characteristic of France. Thus Le Play contended that, before the reign of Louis XIV, the French peasantry made use of their testamentary freedom to keep their properties together; and that these habits resulted in an admirable social organisation and great agrarian prosperity. By degrees, however, the old traditions of work and economy declined; and it was found more difficult to make pecuniary endowments for the younger children. The habit of territorial subdivision acquired strength ; and it was intensified by the legislation of the Revolution and the Consulate. It may be sufficient here to point out that the economic criticism is more properly directed against the Revolutionary law of succession than against the Civil Code, which travelled as far back on the road to testamentary freedom as public opinion would then allow.

The criticisms of the jurists are no doubt largely true; but some of them would be equally applicable to any code framed at any time. The most elaborate system of legal casuistry is poor beside the inexhaustible power of life to produce new combinations; and no code can be more than a legal alphabet. It is doubtful whether the Civil Code has reduced the bulk of French case-law, or materially lightened the labours of French judges. On the other hand, it has diffused the knowledge of law, and made it comparatively easy for the ordinary Frenchman to become acquainted with the leading principles which govern the law of his own country. Again, its simplicity and elegance of form have made it a convenient article of exportation; and these qualities have perhaps helped to secure for it a wider acceptance outside the frontiers of France than upon its intrinsic merits it deserves. In France, the Code has perhaps commanded an excessive deference and stood in the way of useful legislative changes. There the glamour which attaches to it is due not only to the circumstances of its production, to the fact that it is at once the summary and the correction of the French Revolution, as well as the legal formula of the most dazzling period of French national history, but also and more especially to the circumstance that it is the abiding symbol of that unity of law which was first made possible by the meeting of the States General in 1789. So long as law was unified, it did not so much matter whether the text was scrupulous or clumsy, whether the principles were collected in a code or left to be inferred from legislative acts, custom, and judicial decisions. The Civil Code was a hasty piece of work; and the First Consul imported a strong gust of passion and of politics into the laboratory of legal science. Civil death, a super­annuated, unjust, and immoral fiction, confiscation, and the position of women, are bad blots upon the page. Could anything be more monstrous than that a widow should not be allowed to succeed to her husband, until all his relations, even his natural children, have taken their share ? There is also much disproportion and omission. There are instances of a subject being discussed in the Council, then forgotten and allowed to lapse. The law of contract is taken almost bodily from Domat and Pothier. But, when all deductions have been made for haste, negligence, and political perversion, it remains a great achieve­ment. It was a single code for the whole of France, substantially based upon the broad historic instincts of the race, while preserving the most valuable social conquests of the Revolution. It is vain to say that the moment was unfavourable. Ideally favourable it certainly was not, but it was the one moment which had never occurred before and would never occur again. A few years earlier, the Code would have been steeped in Revolutionary extravagance; a few years later, it would have borne the hard imprint of despotism. Fortunately for France, the Code was composed at the only time since the Revolution when the government of the country had been both glorious and even-handed. And to the strictures of the chair it is at least some reply, that the Code has proved adequate to the needs and congenial to the temper of France.

The share taken by Bonaparte himself in the construction of this famous monument has been variously estimated according to the political prepossessions of historians. Lanfrey believed that, if the First Consul advocated divorce and adoption, this was because he was thinking of his own possible requirements; and that his interference with the legal discussions of the Council, being dictated in the main either by strictly political or by strictly private considerations, was a positive disservice to French law. Such a view is a great exaggeration. It is perfectly true that the quidnuncs of Paris were speculating upon a possible divorce of Bonaparte even then regarded the divorce as a conceivable and odious contingency. But his attitude upon the question is quite explicable without reference to any dishonourable hypothesis; and the safeguards with which he proposed to surround adoption clearly show that in that matter at least he was not thinking of his own case. Again, it would be a wild paradox to assert that the Code gained nothing by Bonaparte’s slashing intrusions. That he had little interest in the technical side of law; that he had none of that patient and trained sagacity which slowly worries out the heart of an intricate subject; that he was often grossly irrelevant; that he took no part whatever in the composition of the Second Book of the Code and only an intermittent part in the composition of the Third; that he was mainly interested in the larger social and political aspects of every legal problem which came before his notice—all this may be admitted. Nor can any fair apologist deny that Bonaparte was directly responsible for some of the worst features of the Code; that he admitted without a word of censure other features which were hardly less objectionable; and that, if he had always had his way, some provisions would have been inserted which every sound lawyer and statesman would have deplored. He was solely responsible for the admission of confiscation; he was largely responsible for the gross inequality of treatment meted out to the two sexes. If his will had prevailed, all émigrés would have been declared civilly dead, and their marriages regarded as null and void by the law.

All this notwithstanding, the Civil Code owes much to Bonaparte. Without his driving power it would certainly not have come into existence so soon, and it might not have come into existence at all. To his glowing imagination and fertile intelligence are due several small changes of a humanitarian character and some technical improvements. “Would you allow a father to drive a daughter of fifteen from his house or to thrust out his heir into misery? A well-to-do father always owes maintenance to his children”, he cried; and this eloquent protest against the doctrine that alimony was not due to majors was embodied in the Code. In another passage he argued that the deaf and dumb should be permitted to marry. “He has known through his father and mother the marriage union. He can declare his will to live like them. Why then aggravate his misfortune?”. And here again the argument went home. He suggested several improvements in the law of absence; he framed the definition of “domicile” which has found its way into the Code; he advocated, in the interests of the race, that the age at which marriage could be legally contracted should be more advanced than that sanctioned by the old French law. But, over and above these specific contributions, the presiding intelligence of Bonaparte gave scope and dignity to the work. Professional lawyers may easily lose sight of the wider implications of their professional studies; though perhaps this was not the greatest danger in a Council where men like Berber and Treilhard championed at every turn the large political faith of the Revolution. Yet it was a danger; and to Bonaparte’s presence we may ascribe the fact that the civil law of France was codified, not only with more scrupulosity than other portions of French law, but also with a livelier sense of the general interests of the State. What those interests were, Bonaparte knew. They were civil equality, healthy family life, secure bulwarks to property, religious toleration, a government raised above the howls of faction. This is the policy which he stamped upon the Civil Code.

 

The Code of Civil Procedure.

 

By turn feudal and ecclesiastical, royal and democratic, civil procedure in France has earned, in its successive phases, the bad opinion of laymen. The venality of judges, the costliness, the delays, and the cumbrous forms of the law have been denounced or satirised by a long succession of writers, from Theodulf of Orleans to Rabelais, Montaigne, Moliere, and Saint-Pierre. In its feudal stage, procedure was public and oral; its proofs were characterised by extreme rigidity and formalism, and also by the barbarous method of the combat. But, in the twelfth and thirteenth centuries, the Church began to extend her influence over the whole realm of legal forms, softening the rigour of the old Germanic codes, introducing written proofs and secret enquiry, and appealing to reason rather than to force. In the thirteenth century, the usage of secret inquest, diffused specially through the medium of the Inquisition, found its way into the “Olim” and the official registers of the Parlement of Paris; and the influence of St Louis, who in 1260 suppressed judicial combat in the royal domain, was exerted to promote this tendency.

The triumph of the Canon Law invested the civil procedure of France with a higher degree of unity than existed in the department of Civil Law. The Custumals, at any rate in their later stages, generally contained no rules relating to forms ; and, although each Parlement had its own “style of procedure”, there was a large measure of uniformity through France, always excepting those provinces which had lately been conquered. When, therefore, in the fifteenth, sixteenth, and seventeenth centuries, the Kings of France undertook the task of correcting the vices which had crept into the administration of justice, they were able with comparatively little trouble to secure general acceptance for their ordinances. Several important partial reforms were effected in the sixteenth century, as for instance by the Ordinance of Villers-Cotterets in 1539, which prescribed the use of the French language in legal documents, simplified procedure in cases of default, and restrained the number of dilatory exceptions; and by the Ordinance of Orleans (1561), which introduced into lay Courts the canonical distinction between ordinary and summary affairs. But all these ordinances were welded together in the Grand Ordinance of 1667, which aimed at establishing a uniform “style” in all the Courts of the kingdom, public, feudal, and ecclesiastical. Supplemented by local usages, this elaborate code, for code it was, ruled France till the Revolution. It abolished some abuses; but, since its object was rather to codify existing rules than to introduce reforms, it was often subjected to sharp criticism. The eighteenth century was filled with complaints of the delays, the costs, and the technicalities of justice; but, unfortunately for legal progress, the aversion from formalism characteristic of the age was unaccompanied by an accurate knowledge of forms. With the exception of d’Aguesseau’s two Ordinances of 1737 and 1738, no definite ameliorations were proposed. The works of Lange and Bornier, who had commented upon the Ordinance of 1667 in the reign of Louis XIV, were reprinted; and the reform of French judicial procedure failed to attract a single mind of high quality. Indeed, it is well to note that the eminent Pothier, whose lectures had so large an influence on the Civil Code, left only one unimportant treatise upon the subject of civil procedure, and that composed only in extreme old age. Thus, when the Revolution broke out, the lawyers, whose gaze was restricted within the four corners of seventeenth century formalism, were confronted with a public that wished all formalism at the bottom of the sea. The public said in effect, “Let justice be speedy, unprofessional, governed by natural laws, divested of technicalities, affording large facilities for arbitration”; and what the fashionable theory proclaimed the Revolutionary Assemblies enacted. The Constituent Assembly promised a code, organised the procedure to be followed before the newly created juges de paix, and curtailed some judicial expenses. In the Constitution of 1793 it was decreed that public arbitrators were to decide upon verbal pleadings without formality or expense; and this principle was translated into practice by a law passed in October of that year, which suppressed attorneys, and enjoined that procedure should be simple and inexpensive, “founded upon a verbal defence or on a simple memoir read to the Court by one of the judges”.

The attempt to infuse simplicity and sentiment into transactions which are necessarily complicated and dry is unlikely to command success. Treilhard said that justice was never so costly as during the temporary eclipse of the legal profession, when every litigant was making large and irregular payments for underhand and unauthorised advice. Nor was this the only vessel in the fleet of amiable intentions which suffered shipwreck. While theory proclaimed the juge de paix as “arbiter”, “father”, and “angel of conciliation”, practice too often exhibited him as a venal, violent, and ignorant politician. The conciliatory procedure, from which Voltaire had hoped so much, failed for a reason which a man of letters could not have been expected to foresee. If it was a means of averting litigation in tranquil country districts, it broke down in the exciting atmosphere of the towns; and, so early as 1800, it was clear that the belief in trained legal intelligence and settled formality had experienced a revival. The attorney was reestablished by law; the old procedure was restored pending the preparation of a new code; and men of weight held conciliation to be a thing of proved futility and a specious source of delay and expense.

While the Council of State was elaborating the Civil Code, a Commission was at work upon civil procedure. Nominated on March 24, 1802, this Commission was composed of Treilhard, President of the Court of Appeal of Paris; Try, substitute of the Commissioner of the Republic in the same Court; Berthereau, President of the Court of First Instance of the Seine; Seguier, government Commissioner in the same Court; and Pigean, formerly a practitioner in the Court of the Châtelet and a recognised expert upon procedure. The work of the Commission was published in 1804, submitted to the Courts of Appeal and the Cour de Cassation for their observations, amended by the Commission, examined by the legislative section of the Council of State, and then, after a discussion in full Council, communicated privately to a section of the Tribunate, and finally voted on in the Legislative Body (April 14-29, 1806). In the case of the Civil Code, far the most interesting stage in the proceedings had been the debate in full Council; but this cannot be predicated of the Code of Civil Procedure. Most of the Councillors were unversed in minute technicalities; and the Commission, composed as it was of practising judges and lawyers with little sense of philosophical or literary finish, presented their work in a somewhat abstruse and forbidding shape. Once only, on February 22,1806, was Napoleon present; and his personal influence was restricted to obtaining the insertion of two clauses which modified the law relating to the inscription of mortgages in the interests of the Treasury. So languid, indeed, was the interest of the Council, that a code containing no less than 1042 articles was despatched in twenty-three sittings (April 20,1805, to March 29, 1806).

The Commission decided to exclude from its purview all questions affecting judicial competence. It did not attempt to settle the procedure of the commercial Courts, for this would properly belong to the framers of the Commercial Code; nor that of the Cour de Cassation, which still substantially follows, in civil cases, the regulation issued by the Conseil des Parties in 1738. It was also determined to leave the settle­ment of a tariff of judicial costs to subsequent regulation, rather than to include it in the Code. Nevertheless, the task of Treilhard and his colleagues was sufficiently arduous. They had to bring the civil procedure of the ordinary Courts into harmony with the Civil Code, to simplify and amend the ancient forms, and to review the Revolutionary legislation as to the juges de paix, conciliation proceedings, and the various processes of distraint. Yet, when all allowance has been made for the difficulty of the task, it must be confessed that the arrangement of topics is singularly illogical and disorderly. The first part is entitled “Procedure before the Courts,” and the second “Diverse Procedures.”

The former is by no means a model of systematic treatment; while the latter, as its title implies, comprises a miscellaneous assortment of regulations dealing with such varied subjects as offers of payment by a debtor, judicial separation, and the procedure incidental to arbitrations or the opening of a succession.

Yet, however faulty its arrangement, the Code of Civil Procedure contains some useful innovations upon the law as d’Aguesseau left it. The provisions in the First Book as to the procedure to be followed before the juge de paix are substantially based upon the law of 1790, but comprise a few marked improvements in detail, such as a simplification of procedure on appeal, and the prohibition of viva voce objections to witnesses after evidence given. It was decided to take over from the Revolution the principle that access should not be given to the law­courts until all attempts at conciliation had been exhausted; but the exceptions to the general rule of obligatory conciliation were multiplied. The law of 1790 had decided that affairs which interested the State, the communes, and public order need not in the first instance be brought before the juge de paix for conciliation. The Code extends the privilege, exemption from nugatory proceedings is nothing else, to minors, to commercial affairs which admit of no delay, to actions incidental to pending suits, and to actions directed against .two persons. Even these concessions have been regarded as insufficient. The Commission on the revision of the Code of Civil Procedure in 1893 revealed the presence of considerable dissatisfaction with compulsory conciliation. It was described as a formality “useless in three-fourths of the cases which arise, and always long and burdensome”. It was pointed out that the number of cases settled by conciliation was only 23 per cent, of those brought before the juge conciliateur; that ten or twelve days were consumed by the process; and that, where conciliation had failed, the record of the proceedings was often prejudicial to the interests of bona fide litigants in the Court to which the case was subsequently removed. It would, however, have been folly in 1806 to reject a promising experiment simply because it had broken down under the stress of abnormal circumstances. The Commission rightly held that conciliation proceedings had never had a fair trial; and that the conditions in regard to the temper of the country and the qualifications of the Bench were so far changed as to admit of these proceedings being continued with a good prospect of success.

This was the boundary beyond which the influence of the French Revolution was not permitted to pass. The rest of the Code is founded on the rules of the ancien régime, though some useful additions were made with a view to curtailing expenses, reducing formality, and abridging delay. The Court was given power to disallow the right of a party to conduct his case in person, whenever it had reason to believe that the course of justice would suffer from the passion, the inexperience, or the obscurity of the pleader. In order to defeat fraudulent attempts to win a judgment by default by intercepting the summons, it was laid down that execution could not be taken save “after an act necessarily known to the defaulting party”. Some excellent provisions were added concerning the examination of experts; but, save for two slight changes, the whole procedure to be followed when the genuineness of a document was questioned in a civil trial (faux incident civil) was taken from d’Aguesseau’s Grand Ordinance of 1737. Indeed the First Book of the Code of Civil Procedure may be roughly described as a reissue of the Ordinances of 1667 and 1737 with some improvements and such additions as were rendered necessary by the institution of conciliation and other proceedings before the juge de paix. Like the Civil Code, the Code of Civil Procedure was a synthesis of old and new law; but the old law was here the dominating factor. The rules relating to the examination of witnesses direct that they shall be examined in camera, but in the presence of the parties to the suit. The secrecy of 1667 is substantially preserved. The witnesses are not examined in each other’s presence; nor is the public admitted to hear the examination. But the presence of the parties is a guarantee that the judge will not tamper with the depositions. In the compilation of the Second Book, the Commission found less guidance in the great code of the seventeenth century; and recourse was had to the “edicts and declarations of kings, to local statutes, and case-law”. Here some considerable changes were effected, partly in order to bring the procedure into harmony with the Civil Code, and partly to correct some suspected tendencies of Revolutionary legislation. Whether these changes were always wise is a matter of grave doubt; and it has been alleged that the Code, by too sharply reacting against the easy Revolutionary law of distraint (November 1, 1798), has damaged credit and rendered property almost impregnable.

In the main, then, the Code is an almost literal reproduction of the ancient ordinances and of the practice of the Chatelet. Even the most conservative lawyers criticise the luxury of precautions, the profusion of documents, the extreme slowness and costliness which it enjoins or entails. It may be regarded as a blemish that it reverts to imprisonment for debt, though, in view off the fact that the contrainte par corps en matière civile et commerciale was not abolished till 1867, this step was clearly in accordance with opinion and manners. That a bolder and more drastic treatment was not applied to civil procedure is a matter for regret, but readily admits of explanation. The writers of the eighteenth century were either too vague or else too satirical to afford any practical guide to the reformer. There was no French Jeremy Bentham, nor had the Revolutionary Assemblies produced a draft code of civil procedure which might serve as a corrective to the Grand Ordinance of 1667; and a reversion to the cautious formalism of that and other legal monuments of the ancien régime seemed especially imperative to men just escaped from a period of turbulence and corruption, when judges were ignorant and venal, and justice was frequently perverted to political ends. Personal influence may have contributed its quota; something may have been due to the absence of Napoleon and to the activity of Pigean, a conservative Châtelet lawyer whose Court had been abolished by the Revolution, and who now took a modest revenge by importing the practice of the Chatelet into the Code. But though public and lawyers alike have grumbled over the Code of Civil Procedure, though the Academy has offered prizes for the best suggestions for reforming it, though two commissions have reconstructed it on paper, and nine statutes have amended it in detail, the course of business in a French civil Court is still substantially determined by the work of Napoleon’s commission.

 

Criminal Procedure and Penal Laws.

 

As in civil, so in criminal procedure, the jurists of the Consulate and the Empire were presented with two sharply contrasted systems, the one the product of the monarchy, and the other of revolution. The salient features of the older criminal procedure, as first tabulated in 1539 by the Ordinance of Villers-Cotterets and afterwards incorporated in the Grand Ordinance of 1670, were, first, that the procureur of the King or the lord is a party to every criminal proceeding; next, that the case is divided into two parts of unequal length, the instruction, a long secret enquiry before a single judge, and the jugement, given in secret by the whole Court upon the written evidence submitted to it; thirdly, that the accused is not permitted to be represented by counsel or to see the charges brought against him; and lastly, that he is on oath to answer all questions truly. In other words, the procedure was secret, inquisi­torial, and highly unfavourable to the accused; and many flagrant violations of justice drew attention to its obvious defects. Towards the end of the eighteenth century, the movement in favour of a reform of criminal procedure spread through the whole educated class in France. It had been preached by Beccaria, Voltaire, and Dupaty; it was encouraged by Louis XVI, who carried through some elementary but precious reforms, such as the abolition of torture; and it led to some remarkable and comprehensive changes during the Revolution.

The lines upon which these changes were effected were English rather than French. All the legal reformers were loud in praise of the English system: the English jury, the English public trial, the English practice of allowing the prisoner to employ counsel, the English principle that no prisoner is to be examined on oath. The Constituent Assembly there­fore addressed itself to the task of a radical reform of criminal procedure upon English lines. Two juries were introduced: the jury d’accusation, corresponding to the English grand jury, and the jury de jugement, corresponding to the English petty jury. The secret preliminary instruction, which had been the longest and most important part of the proceedings under the ancien régime, was whittled down to a summary examination by the police-officer, to the possible hearing of witnesses by the jury de accusation, and to the interrogation of the accused by the director of the jury, who was always one of the judges of the district Court. Further, although the instruction was held with closed doors, the public were now represented by the accusing jury, which examined the documents submitted to it by the juge de paix, and decided whether to bring in or to throw out the bill. Greater facilities were given to private persons to initiate criminal proceedings; there was more oral examina­tion and less writing. An important change also comes over the second stage of the proceedings, the trial proper. The procedure is oral and public instead of written and private. The accused has the assistance of counsel; the judge reads out the charge to him; he is put upon oath only if he wishes to advance charges against the witnesses. He is condemned or acquitted by the verdict of a jury of twelve men, but he is given a practically unlimited right of rejecting jurymen. The criminal prosecutions are no longer exclusively initiated by the Government; and no prosecution proceeds to the second stage unless the accusing jury sees fit to draw up an acte d'accusation. In a word, the system of the Constituent Assembly was as favourable to the defence as the Ordinance of 1670 had been favourable to the prosecution.

During the Revolution these rules proved unworkable. At the best, a system so alien to French tradition, and making such large drafts upon the judicial temper of the populace, could only have succeeded in quiet times. As it was, the jury was introduced into the country during the one decade of its history in which it was almost certain to be valueless. The excesses of Revolutionary law-courts and the prevalence of crimes of violence exhibited the weakness of the new procedure; and Merlin’s Code of Delicts and Penalties (October 25, 1795), heightening the importance of the written instruction, marks an early stage in reaction.

The rise of Bonaparte sharply closed the epoch of generous excursions and airy latitude. Anarchy, rife in many departments, supplied pretexts congenial to a soldier’s temperament. An article of the Constitution of 1799 decreed that the public prosecutor was to be the agent and the nominee of the executive power. A law, of January 27, 1801, provided for the appointment of government prosecutors in every arrondissement, gave them power to imprison pending the report of the accusing jury, restored the secret examination of witnesses in the absence of the prisoner, and substituted written for oral procedure before the jury accusation. On Jan. 7, 1801, in spite of the terms of the Constitution which guaranteed trial by jury for all crimes, special criminal tribunals were established exempt from the restraint of jury or appeal. The orators of the Tribunate were loud in their indignation. These new Courts, they said, were only the Cours prévôtales of 1670 revived; it was vain to urge that they were limited as to function, space, or time. In a short time all France would be covered with these tribunals; and what kind of tribunals were they? They denied the prisoner time and opportunity to prepare his defence; they deprived him of the right of being heard on questions of importance, of objecting to his judges, of being released on bail. Since the Bench was relieved of the necessity of explaining the grounds of its judgment, there was no guarantee that the judgment would be reached by any competent intellectual process at all; and, since the law denied the right to appeal, there was no redress if the procedure should be tainted by informality or injustice. To these criticisms the government orators replied that the disorder of the country demanded exceptional measures; that the Courts were to be abolished two years after the conclusion of peace; that the procedure was to be public and oral; that the prisoner was to have the benefit of counsel and to be acquainted with the act of accusation; that it was impossible to obtain a verdict of guilty in the west or the south, where the jury had become the “safeguard of brigands”; that military tribunals had been established to deal with brigandage under the Convention and the Directory; that exceptional Courts were generally demanded by the prefects; and that the Constitution itself had sanctioned the suspension of the jury in case of armed revolt. The measure was carried in the Tribunate by 49 votes to 44, and in the Legislative by 292 to 88.

Meanwhile (May 28,1801) a Commission had been appointed to draw up a criminal code. Their labours resulted in a draft comprising both penal law and criminal procedure (Code criminel correctionnel et de police), which preserved the jury and was still prevailingly English in character. But no sooner was this draft submitted to the law-courts than it became clear that Anglomania was falling out of fashion. Of the seventy-five Courts whose observations were published, only twenty-six pronounced in favour of the retention of the jury; twenty-three did not refer to the subject; while twenty-six, mainly from the south of France, were adverse. Of the Courts of Appeal, twelve were adverse, and seven favourable. The problem of the jury became a burning question.

The Criminal Code first came before the Council of State on May 22, 1804. The Emperor, in order to clear the ground, ordered the legislative section of the Council to prepare and print a list of fundamental questions relating to criminal law and procedure which might be debated before the articles of the draft Code came to be discussed in detail. Accordingly, on June 5, fourteen questions were submitted. Should the jury be preserved? Should there be a jury of accusation and a jury of judgment? How should the jury be constituted? On what grounds should objection be taken to a juror? Should the instruction be purely oral, or partly oral and partly written? Should several questions be put to the jury of judgment, or one only—“Guilty or not guilty?” Should the verdict be given by unanimity or majority Should there be criminal circuits? Should the penalty of death be preserved? Should there be life penalties? Should confiscation be admitted in certain cases? Should the judges have a certain latitude in the application of penalties? Should condemned persons who have finished their term of punishment be placed under supervision? Should condemned persons of subsequent good conduct be rehabilitated?

The debate extended over three days, and was characterised by great ability and acuteness. Capital punishment and imprisonment for life were passed without discussion. Confiscation was contested, but advocated by Napoleon and carried through. The main debate centred round the Jury; and here Napoleon, after listening to a number of speeches, most of them adverse to the retention of the institution, unfolded his views with characteristic decision. A tyrannical govern­ment, as the experience of the Revolution showed, could influence a jury more easily than it could influence a judge; and, given public trial and counsel for the defence, the jury was a superfluous guarantee. Besides, a jury would always acquit a man who could afford an advocate, and always condone an offence against the gendarmerie. Still, if it were well composed, and provided that counsel should not be permitted to address it, a jury might be allowed; but exceptional Courts would always be needed to chastise organised crime. If, however, a jury were allowed, the verdict should be given by a majority vote, for so the chance of escape would be diminished. In these views the Council only partially concurred. The retention of both Juries—that of Accusation and that of Judgment—was voted in principle; but it was decided that they should be named by the prefect from the Electoral Colleges, and that the verdict should go by an absolute majority. If injustice were done, it might be remedied by the right of pardon.

With these large principles determined, the Council, under the presidency of Cambacérès, settled down to discuss the draft Code. Twelve sessions were held; and the work was proceeding fast, when it was disturbed by an intervention of the Emperor. In the great June debate, Napoleon had argued, for the establishment of large Courts like the old Parlements in order to give greater authority to the magistrature. “Did one not”, he said, “see judges, even of the Cour de Cassation, dine with advocates, and contract habits of familiarity with them which destroyed the moral independence and prestige of their office?”. But his idea found no favour with the Council. On October 30, however, the legislative section was presented with a draft law on the amalgama­tion of civil and criminal justice which was to give effect to Napoleon’s intention. The Council of State was again summoned to Saint-Cloud; and five days were devoted to the discussion of the Emperor’s plan in his presence. “It is necessary”, urged Napoleon, “to form great corporations, strong in the reputation conferred by a knowledge of civil law, strong in numbers, above private fears and considerations, in order that they may cause the guilty to turn pale and may communicate their energy to the prosecution. It is necessary, in fact, to organise the prosecution of crime. At present there is no such thing”. It was argued on the other side that it had been difficult enough to gather the departmental juries, and that under the proposed plan of wider judicial areas the Jury would be impossible. Napoleon replied that his Court might send judges on assize; but this did not satisfy the Council, whose view was shared and supported by the magistrates then present in Paris for the Imperial coronation. They reported that the proposed change would extinguish the Jury, and that the Jury was working better every day. At this Cambacérès confessed his surprise; and Napoleon tacitly withdrew his plan. After December 20 the work of the Commission was mysteriously intermitted. Twenty-five sittings of the Council had been held, over eleven of which Napoleon had presided ; but opinion was not yet ripe for the changes which he had in mind, and he was content that opinion should ripen. Thus all the questions relating to criminal law and procedure which had engaged the public, the law-courts, the Institute, and the Council, were allowed to fall into oblivion for three years.

It was not till January 23, 1808, that the legislative section of the Council of State was commanded to resume its labours on criminal procedure. Their recollection of past proceedings was confused and unrefreshed; and the great questions which had excited so much controversy in 1804 were debated anew as if they had never arisen. A close and crushing criticism from Napoleon settled the fate of the Jury of Accusation; but the Jury of Judgment successfully weathered the storm. Napoleon himself advanced arguments in its favour, provided that it were properly constituted. “The real interest of the accused”, he said, “is to be judged by enlightened and not by ignorant men”; and this object would be obtained if the jurors were drawn from the Judges of First Instance and the Electoral Colleges. There remained the great question of the amalgamation of civil and criminal justice; and into this Napoleon threw himself with passionate energy. He had to vanquish an old prejudice against itinerant judges, and a suspicion that the scheme might revive the Parlements of the ancien régime in a new shape. Never did he wield the rapier of controversy with a more persuasive brilliance. He touched on the need of curtailing the powers of the prefect, already excessive; on his desire for a vigorous local life, for more decentralisation; on the respect due to the magistrature, which was now to receive greater dignity; on the sheer necessity of coercing crime; on the humanising influence which a turn at civil business would exert upon the temperament of a criminal judge. Nor was Napoleon rich in principles only; he drew from his pocket two draft laws for consideration, and presided day after day till the scheme passed through.

The system of Assize Courts once safely secured, Napoleon could afford to admit the Jury, and to allow the Code of Criminal Procedure to proceed quietly on its way. In thirty-seven sittings (Jan. 30 to Oct. 30, 1808), the Council cut the Gordian knots over which they had fumbled in 1804.

In the Code of Criminal Procedure (Code d’Instruction criminelle) the jury of accusation is suppressed. The depositions of witnesses are taken secretly in the presence of the juge d’instruction and his clerk, and in the absence of the prisoner; and all the guarantees of 1789 disappear. The defence cannot contest the choice of an expert made by a judge; the juge d’instruction is not compelled to hear the witnesses for the defence; and, during the whole of the instruction, the prisoner may remain in complete ignorance of the steps which are being taken against him. The regulations as to bail are so illiberal as to be almost prohibitive; and they were contested in the Council. And yet, with this exception, this portion of the Code, utterly subversive though it was of the Revolutionary law, was passed almost without discussion. So great a change had been wrought by the advancing palsy of despotism.

But while the Code of Criminal Procedure borrows from the Ordinances of 1670 almost all its rules of preparatory instruction, the rules for the trial in court were based upon the legislation of the Revolution. The accused was to be tried in public; he was allowed to produce witnesses, to be assisted by counsel, and to be heard in his own defence. A jury of well-to-do persons was permitted to return a verdict by a majority vote. The Code however maintained the special Courts which were authorised to decide without recourse to a jury upon cases of rebellion, false coinage, assassination if committed by armed bands, and armed smuggling; nor was any resistance offered in the Council of State to the permanent incorporation within the judicial system of France of these tyrannous and autocratic tribunals.

It cannot be denied that the apparatus set up in the Code for performing the preliminary business of penal judicature was, though complicated, highly effective as an instrument of exploration. Whereas in England no judicial functionary was then obliged to attend to any evidence except such as was voluntarily offered to him, in France the power of the State was at once put in motion to search out everything that could illuminate the case. On the other hand, the rule which required every question to the witnesses to be put through the medium of the presiding judge sacrificed much of the extractive force of the English cross-examination. The questions framed by the judge for the jury admitted a more delicate consideration of circumstances than the mere alternative “guilty” or “not guilty”. But the Code of Criminal Procedure, though on the whole well adapted for the detection of crime and for the speedy trials of prisoner’s, presented hardly any barrier against the arbitrary use of executive authority. There was no adequate machinery to correspond to the English proceedings upon a writ of habeas corpus, the juries were nominated by the prefects; the prefect might act as a juge d’instruction; and, in the secrecy of the preliminary instruction, a case might be prepared for the jury which the innocent prisoner would find it difficult to rebut.

 

The Penal Code.

 

The Code of Criminal Procedure could not be put into force until the completion of a Penal Code; and on October 4, 1808, this task was taken in hand. Some fundamental questions had already been decided in the June debate four years earlier. It had been settled that there should be capital punishment and imprisonment for life; that discharged convicts might be placed under police supervision; that a convict might be rehabilitated; that a minimum and a maximum penalty should be fixed for each crime, with latitude of choice within the boundary. It remained to revise the Code of 1791 in detail under the influences of the moral climate of 1808. The work was accomplished in forty-one sittings; and the Penal Code was decreed on February 2, 1810. On the single occasion upon which Napoleon presided, he expressed his desire for short laws, which left a large discretion to the judges and the Government, on the pretext that “men had bowels and the law had not”; but his general views of penal law did not err on the side of clemency. In 1801 he had advocated with enthusiasm the penalty of branding, especially for forgery. “The forger is generally rich”, he remarked. “If only condemned to irons, he returns to society, keeps a fine salon, and people dine with him. This would not happen if he were branded by the hand of the executioner”. And his defence of confiscation was equally characteristic; it would, he said, tempt the relatives of a conspirator to betrayal.

“Punishment”, said Target, “is certainly not vengeance. It is not the object of law that a guilty man should suffer, but that crimes should be prevented”. This theory of punishment had recently been made famous in Bentham’s Treatise on Legislation which was once alluded to in the course of the discussion. It is not however probable, considering the prevailing Anglophobia of the time, that the influence of Bentham upon the Commission was great; and such influence would never have been acknowledged. The memory of the crimes of the Revolution and the administrative needs of a strong despotism were far more potent influences. The Penal Code is severe, suspicious, and in places barbarous. The penalty of confiscation, which had been condemned by Montesquieu and excluded from the Code of 1791, was restored. The Legislative Section agreed almost unanimously to restore the penalty of branding, on the ground of “political reason and the general interest.” The parricide was to lose his hand before undergoing the penalty of death. Men condemned to forced labour were to be employed upon the most painful tasks. “They shall drag a ball at their feet, and shall be tied two and two with a chain when the nature of the work on which they are employed shall permit.” The penalty of death was to be inflicted for murder and arson, for theft and brigandage endangering life and personal security, for corruption and false witness in cases which imperil the life of the innocent. Penal servitude for life was meted out to those who organise and command associations of malefactors against persons or property, even where no actual crime has been committed; against unprovoked acts of violence which were of a nature to cause death; and against rebellion, armed gatherings, and “grave crimes”. Deportation for life was assigned to “state crimes due to false political ideas, the spirit of party, or an ill-understood ambition”, as well as to grave cases of forgery and peculation. So great was the suspicion of political meetings that it was provided that “no association of more than twenty persons, whose aim is to unite every day or on certain fixed days to occupy itself with religious, literary, political, or other objects, can be formed, except with the consent of the Government or under such conditions as public authority may impose”.

The Penal Code and the Code of Criminal Procedure bear very strongly the imprint of the times in which they were composed. Unlike the Civil Code, they belong to the later epoch of the Empire, when despotism had assumed its harsher forms, and the ideals of the Revolution had ceased to be serious factors in political life. Napoleon intervened only in the most crucial questions; but his attitude was understood, and his purposes were fulfilled. No despotism could have wished for a more powerful or terrible instrument than the combination of these two branches of penal law. It has been truly said of the compilers of the Penal Code that “they were far less concerned with devising means of repression sufficient for public safety, than with compensating the horror of crime by the horror of punishment.” And, while the Penal Code displays its long catalogue of terrible penalties for offences against public order or the political principles of the Empire, the Code of Criminal Procedure furnishes the Government with the most ample means for the exploration of criminal charges and for the packing of the juries by whom these charges are to be tried.

 

The Commercial Code.

 

A Commercial Code crowns the ordered structure of Napoleonic law. This was in the national tradition; for, ever since the days of L’Hôpital, France had possessed separate commercial Courts established “for the public good and the shortening of all suits and differences between merchants”. Two great Ordinances, due to the initiative of Colbert, had fixed the outlines of French commercial law—the Edict of 1673 touching inland, and the Ordinance of 1681 touching marine commerce. So excellent was the Ordinance of 1681 that it became the common maritime law of Europe.

A commission was sitting in 1789 to investigate the commercial law of France. Commerce had grown; new wants were urgent; and the two great edicts of the seventeenth century, variously interpreted and overspread with a luxuriance of local custom, needed pruning and adaptation. Bonaparte commanded the suspended task to be resumed; and on April 3, 1801, a committee of six was appointed to prepare a Code. Their draft was submitted not only to the law-courts but also to the commercial councils and tribunals, and duly revised in the light of their comments. By some mistake, however, this revised Code was handed in, not to the legislative section of the Council of State, but to the section of the Interior, where it slumbered peacefully in its pigeon­hole for several years. A curious incident served to disinter it. In the autumn of 1806, while the Emperor was campaigning in Germany, Paris was startled by a scandalous and signal case of fraudulent bankruptcy. The firm of Recamier had failed. A rescript came from the camp demanding a severe law; and an answer went back that such a law would properly form part of the Commercial Code. The Code then, replied Napoleon, must be instantly pushed forward. Accordingly, the draft was produced, and submitted to all the processes employed in the case of the other Codes. The discussion began on November 4, 1806, occupied sixty-eight sessions, and ended on August 29, 1807. The Emperor was absent during the greater part of this period; but, on his return, he demanded a general account of the proceedings, and held four sessions at Saint-Cloud (July 28, 29, August 1, 8, 1807) which began at 7 a.m. and lasted till the evening.

Two points riveted his attention; and on these he poured out his rich and effervescent eloquence. The first concerned the question whether the commercial Courts should take cognisance of all cases arising out of promissory notes, where the signatories had declared their intention of being bound by the law of commerce. Napoleon argued strenuously that no one, save a merchant, should be liable to imprisonment for failing to meet an obligation contracted by a promissory note. The obligations of private individuals were not so precise as those of merchants; for the former, credit was a misfortune and a lure to dissipation. For his part, he was unwilling to see bills of exchange or other negotiable instruments used by those who were not in business. Such a practice would lead to the mobilisation of fortunes, and spread alarm among the fathers of families. “A courtesan who had extorted a promissory note from a young man might drag him before the commercial Court and get him sent to prison”. This vehement advocacy, inspired by a hatred of speculation and of the free transfer of land, produced its due effect upon the Code; and, by Clauses 636 and 637, uncommercial persons and uncommercial transactions were exempted from the severe penalties by which the commercial Courts were empowered to enforce the payment of negotiable instruments.

The second point which specially interested Napoleon was bankruptcy. The old law had assumed misfortune until fraud was proved; and in other respects it was characterised by objectionable laxity. The Council proposed, in the first instance, to expropriate the bankrupt and to vest the administration of his property in the hands of provisional syndics; then, to subject his conduct to strict examination; after which he might be brought before a correctional or a criminal Court according as his offence was one of negligence or fraud. In any case, action was to be taken by the public prosecutor and not by the creditors. These proposals were severe, but they were not severe enough for Napoleon. “Bankruptcies”, he said, “take away men’s fortunes without destroying their honour; and that is what it is important to destroy”. He argued in favour of incarceration in order to prevent the bankrupt flaunting his triumph of indifference. The creditors could not be trusted to humiliate the bankrupt, for their sole interest was to recover their debts as soon as possible But prison would do it, even if it were but for an hour. It was also desirable that in every case the woman should share the misfortune of her husband. It was pointed out by more than one member of the Council that the proposals were too severe; and that to suppose every failure to be the result of fraud until the contrary had been established would injure credit, and bear harshly upon merchants and traders in the country districts. The clauses in the Code represent a somewhat softened version of Napoleon’s views. The administration of the debtor’s affairs is entrusted first to agents named by the Court of Commerce, and then to syndics named by the creditors; and the magistrate must be kept fully informed of the proceedings, so that on any indication of misconduct or fraud he may send the bankrupt before the correctional or the criminal Court.

Pardessus has complained that the Code of Commerce was more carelessly drafted than any of the other Codes; and yet it was the Code for which there existed the most abundant materials. In the First Book, entitled Du Commerce Général, the whole question of purchase and sale is disposed of in a single unimportant clause. There is not a word concerning price, promise of sale, or earnest money; nothing upon the conditions of weights, measures, and assay; nothing on patents or copyrights, on contracts of apprenticeship, or contracts between workmen and manufacturers or shopkeepers, on bank commissions or on the various kinds of loans which are used in commerce. The Second Book, Du Commerce Maritime, being copied from the Ordinance of 1681 with little alteration save what was derived from later experience or later laws, is pronounced to be the best Book of the Code, though here again several topics are omitted, for instance, quays and ports, shipwrecks, and fishing. The Third Book, on bankruptcy, is said by Pardessus to contain some excellent dispositions, with others so full of objectionable matter that it is difficult to believe they could have passed uncorrected; and this verdict is confirmed by Locre, who shows how the Law of Bankruptcy broke down. The Fourth Book, on the competence and procedure of the commercial Courts, is far from being either clear or precise, and is distinguished by the curious omission of any clause dealing with imprisonment for debt. No part of the Napoleonic legislation has required or received more amendment.

The Five Codes, a Sixth: the Code Rural, was drafted but never passed, represent a great idea, the unity and comprehensiveness of French law. When it is remembered that a task demanding the most massive learning, the calmest and most scrupulous enquiry, was accomplished in the midst of unparalleled excitement and strain; that it was begun in the reverberation of a great war, when all the organs of government were being simultaneously recreated; and that it was continued and brought to a close while the country was involved in a series of gigantic and perilous foreign enterprises, we need not wonder that the expert has detected signs of perfunctory work and political passion. The print of despotism is stamped harsh and deep on the Penal Code, the subjection of woman on the Civil Law. It was left for future generations to make adequate provision for the needs of an industrial society, to regulate labour contracts, to protect the interests of the working classes against the tyranny of capital, and to expand the sphere of company law, so jealously contracted by the middle-class individualism of the Civil Code. Nevertheless, the Codes preserve the essential conquests of the revolutionary spirit—civil equality, religious toleration, the emancipation of land, public trial, the jury of judgment. Original they were not, but rather a hasty amalgamation of royal and revolutionary legislation, governed by the genius of Napoleon, divining, traversing, and penetrating all complications in order to make law subservient to his rule. But, if in France herself the Codes were a symbol of a strict but enlightened despotism, in Germany and Italy they stood for liberty. Here they were the earliest message, as well as the most mature embodiment, of the new spirit. In a clear and compact shape, they presented to Europe the main rules which should govern a civilised society.

 

 

THE CONCORDATS.