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NAPOLEON AND HIS CODE1

"I will go down to history with the code in my hand." — BONAPARTE.

S we pass the centennial of the great tragedy of Waterloo it may seem surprising to find the fame of its principal victim more secure than ever. Napoleon Bonaparte has unquestionably become the most striking figure in modern history. Others may have been more conspicuous in a single country, as Washington in America, or in some particular line of human activity, as Shakespeare in literature, or Darwin in science; but no modern character has so completely riveted the attention of the entire world for so long a time, and become so distinguished in so many different lines as Napoleon.

We know him best as a strategist. But he was also distinguished as a diplomatist; not less so as a statesman and an administrator, and finally, and most successfully of all, as a lawgiver.

It is with the last-named rôle that we are concerned here. Napoleon's military achievements have largely vanished; they were spectacular and highly successful from a temporary standpoint, but as he himself predicted, they have become "lost in the vortex of revolutions" and yielded no permanent results except to mili

1 BIBLIOGRAPHICAL NOTE. The literature of the Code Napoléon is voluminous and constantly increasing. The CAMBRIDGE MODERN HISTORY alone (Vol. IX, 808, 809) contains a bibliography of about fifty titles, mostly French. The discussions accompanying the Code at its publication filled no less than eight volumes, while the memorial papers published in connection with the observance of its centennial (at which the American government was officially represented) number forty and are contained in two portly tomes.

In English the most complete discussion of the origin and history of the Code appears to be that from the pen of Prof. H. A. L. Fisher, of Oxford University. The translation in the CONTINENTAL LEGAL HISTORY SERIES of Brissaud's Manual has opened a wealth of material to English readers and, with the suggestive, though all too scant, articles of Esmein (Professor of Law in the University of Paris) in the new ENCYCLOPAEDIA BRITANNICA (Vols. VI, X), clarify the subject from the French viewpoint. The centenary of the Code is the subject of an article by Sir Courtenay Ilbert in the JOURNAL FOR THE SOCIETY OF COMPARATIVE LEGISLATION (N. S.), Vol. VI, 218. In 1906, Mr. U. M. Rose delivered an address on the Code before the bar associations of Arkansas and Texas, which was afterward published in 40 AM. L. REV. 833-54, and there are other magazine articles in English on the subject. See, e. g., "The Code Napoléon," by W. W. Smithers, 40 AM. L. REV. (N. S.) 127.

tary science. His diplomacy brought little to France that remains. His statesmanship and administration benefited that country and their results continue there. But his greatest achievement, that which endures to-day, the one feature of Napoleon's career which now influences the world beyond France and which is growing in recognition as the years pass, was his work as a lawgiver and a codifier.

EARLIER SCHEMES OF CODIFICATION

The legal chaos that prevailed in France before the Revolution had engaged the attention of eminent Frenchmen for centuries. A single code for the whole country was the dream of King Louis XI in the fifteenth century, of Dumoulin (1500-66) and Brisson in the sixteenth, of Colbert and Lamoignon in the seventeenth, and of D'Aguesseau in the eighteenth. The four last named made substantial contributions toward such a project - Brisson,2 by his compilation of the Ordinances in force under Henry III, Colbert and Lamoignon, through the more celebrated Ordinances 3 bearing the name of Louis XIV, and D'Aguesseau, whose Ordinances on wills, gifts, and entails appeared between 1731 and 1747, and "were thorough codifications." 4

The States-General of 1560 voted for a code, and those of 1576 and 1614 again recommended one, and when, on June 17, 1789, that body became the National Assembly and seized the sovereign power, these juridical evils of the old régime were among the first to be denounced. Everyone recognized their enormity, but prac

2 "About 1580, a celebrated jurisconsult, BARNABY BRISSON (Brissonius), AdvocateGeneral of the Parliament of Paris, and author of a widely used dictionary of law ('De verborum significatione'), compiled a systematic collection of the principal provisions contained in the Ordinances in force under Henry III. This prince, ambitious, it was said, to rival the glory of such men as Theodosius and Justinian, was about to give it royal sanction; but his death in 1589 prevented this. Brisson's work was published after his death under the title of 'Code Henri III, Basilica."" Brissaud, MANUEL D'HISTOIRE DU DROIT FRANÇAIS, § 3, 346 et seq., translation in 1 CONTINENTAL LEGAL HISTORY SERIES, 264.

These included the Civil Procedure Ordinance of 1667, intended to expedite and cheapen litigation but which also limited judicial discretion; the Criminal Ordinance of 1670, really restricted to procedure and antiquated in many of its provisions though possessing "much merit"; the Ordinance of Commerce (1673), mainly the work of Jacques Savary, a Paris merchant; and the Ordinance of the Marine (1681), a careful codification of maritime law. Id., 264-65, 279.

4 Id., 279. Cf. 269.

tical remedies were wanting. The deputies all said: "We must have a code," and after more than a year they adopted a resolution calling for "a general code of clear and simple laws."

But, notwithstanding the fact that nearly one half the membership of the Assemblée Constituante was composed of lawyers, nothing further in that direction seems to have been accomplished by that body. The Constitution of 1791, framed by the same Assembly, embodied the promise of a code and the short-lived Legislative Assembly of the same year dealt with the problem in a feeble way. Its successor, the National Convention, which contained very few lawyers, took up the subject in 1793, impelled, it is thought, by the accumulating mass of new legislation, and in July of that year, appointed a committee "to replace the chaos of old laws and customs" and ordered it to report a draft within one month. The Committee consisted of Cambacérès, probably the most learned lawyer in the Convention, Treilhard, Berlier, Merlin de Douai, and Thibaudeau, and its draft, mainly the work of the first named, as chairman, was presented,5 pursuant to order on August 9.

"This plan was remarkable for its excessive brevity; there was only one article for certificates of civil status, only one for domicile, and the rest in proportion; the whole consisted of six hundred and ninety-five articles. Such a Code would have been very dangerous, for many important points were not touched upon, and judges would have found themselves without guidance and without control. This feature of it, however, was deliberately adopted by its drafters. The Convention professed a profound contempt for the Roman law and the Customary law, which they looked upon as barbarian and degenerate systems. They aimed (says Barrère) to realize the dream of philosophers — to make the laws simple, democratic, and accessible to every citizen. Besides this defect in form, Cambacérès' draft was too much inspired by the revolutionary ideas of the day." "

Mr. Rose' refers to it as "hardly anything more than a collection of moral maxims and in fact no code at all." On the other hand Mr. Smithers thinks that "the ensemble embraced a

5 "In the bombastic language suited to the time and the occasion." Rose, "The Code Napoléon," 40 AM. L. REV. 833, 845.

• PLANIOL, TRAITÉ ÉLÉMENTAIRE DE DROIT CIVIL, 5 ed., 1908, translation in I CONTINENTAL LEGAL HISTORY SERIES, 280.

7 Supra.

8 "The Code Napoléon," 40 AM. L. REG. (N. S.) 127, 139.

set of positive laws well suited to the whole of France." Be that as it may, the Convention considered the work "too complex" and on November third referred it back to the Committee to be "simplified." Nothing more came of it, however, nor of a subsequent draft of two hundred and ninety-seven brief articles which Cambacérès later presented to the Convention; and after a vain effort by him to interest the Council of Five Hundred in the project, it was allowed to languish for the remainder of the eighteenth century.

NAPOLEON'S CODE COMMISSION

Bonaparte was now first consul, and the victory of Marengo gave him leisure for the pursuits of peace. More than any man in France he saw that its greatest need was a thorough overhauling and unification of its laws. But still more he alone discerned the means by which reform was to be brought about. Napoleon discarded the old committee of the Assembly. He considered that it had demonstrated its incapacity, and on August 13, 1800, he proceeded to appoint a new commission to draft a real code. This was eleven years after the outbreak of the Revolution, one of the purposes of which was to reform the laws. Little had been accomplished in this direction in all that time, though startling changes had been taking place along other lines. Napoleon proceeded to look for the ablest and most competent men in the whole country; he disregarded all other considerations; he appointed no man as a codifier because of political affiliations; and he omitted none because of personal dislike. Of the four who were selected everyone was past middle age and a conservative, at heart attached to the old régime, and Napoleon knew it. He recognized perfectly well that their natural sympathies were with the past.

At the head of the commission he appointed Tronchet, aged seventy-three, and president of the Cour de Cassation. And what were Tronchet's antecedents? He was one of the counsel who had defended Louis XVI when prosecuted and finally executed by the revolutionists. In fact, he was called "The Nestor of the Aristocracy." Can one imagine a more remarkable appointment than that of a man who was practically the legal representative of the

• PLANIOL, supra.

old régime, and who was thus placed at the head of a commission to codify the laws of new France? Yet Napoleon said of him later that he had been "the soul of the debates in the Council of State." 10

11

Next in importance was Portalis, a Provençal, who had suffered imprisonment during the Revolution. He has been called "1 "the philosopher of the commission," for he "was specially distinguished in the art of legal and philosophical exposition." 12

Then came Bigot de Préameneu, a native of Rennes and a mild supporter of the Revolution, but obliged to hide during the Terror. At the time of his appointment he was "government commissioner" in the Cour de Cassation.13 It has been said that his "adroitness and pliancy were destined to be proved in more fields than one."

Finally there was Malleville, who had been a practitioner at Bordeaux and later a judge of the Cour de Cassation. He is said to have been "profoundly versed in the Roman Law" and became "the first of a long line of commentators on the Code," which he assisted in drafting.14

And not only was this commission distinguished in its personnel from the individual standpoint; it was also collectively a representative one. For Tronchet and Malleville came from the bench, bringing to the work of the commission the benefits of judicial experience; Portalis and Bigot, per contra, represented the bar with a training no less valuable. Again Tronchet and Bigot came from "le pays du droit coutumier" and were schooled "in the Parlement and the custom of Paris." On the other hand, "Portalis and Malleville represented the legal traditions of the land of written law." This combination of elements and experience was ideal, and it is easy to understand how the outcome was a "compromise between northern Teutonism and the Latin inheritance of the south." 15

10 I CONTINENTAL LEGAL HISTORY SERIES, 287.

11 Id. The same author adds: "Possibly he has been too highly praised. As a philosopher, he certainly did not possess an original mind; he attained only the heights of mediocrity; and his style, filled with the phraseology of the period, was soon antiquated. But he was not a mere jurist; he was an enlightened man, with an open mind, and a marked moderation; and it is for this that we should especially thank him.” 9 CAMBRIDGE MODERN HISTORY, 150.

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