MODELS AND SOURCES 16

The idea of a civil code, i. e., one devoted exclusively to private, substantive law seems to have originated here. Certainly the Roman prototypes furnished no model. The nearest approach to one was probably the Institutes of Justinian with its four books, the first three of which treated respectively of Persons, Property and Obligations - the Gaian 17 order followed in the main by the French draftsmen. But the fourth book of the Institutes treated of actions, which the French now relegated to a separate code, that of Procédure Civile. Similarly the other special codes eventually evolved in France - Penal, Commercial, and Criminal Procedure (Instruction Criminelle) - were all departures from Roman prototypes. Justinian's Code, indeed, contained more public and criminal law than did the Digest, but neither was devoted exclusively to any particular branch, and no clear distinction was made between remedial and substantive law.

But if the scope and arrangement of the draft code were original its contents were not. Even the finished instrument contained little new law, and that seems to have been largely added by Napoleon himself. The original draft, as it came from the hands of the Commission, was mainly a purged reproduction in codified form of the existing French law.

"Little is known of the special training through which the true authors of this work had passed; but in the form which it ultimately assumed, when published as the Code Napoléon, it may be described, without great inaccuracy, as a compendium of the rules of Roman law then practised in France, cleared of all feudal admixture—such rules, however, being in all cases taken with the extensions given to them, and the interpretations put upon them by one or two eminent French jurists, and particularly by Pothier." 18

COMMENTATORS. The last-named author's Traité des Obligations had appeared in 1761, about a generation before these draftsmen began their work, and one writer goes so far as to say

16 On this topic see generally Dufour, Code CIVIL AVEC LES SOURCES OÙ TOUTES SES DISPOSITIONS ONT ÉTÉ PUISÉES (Paris, 1806), four volumes; DARD, CONFÉRENCE DU CCDE CIVIL AVEC LES LOIS ANCIENNES, 4 ed., 1827.

17 "It is, mutatis mutandis, practically the same division as that of Blackstone's Commentaries." Esmein, 6 ENCYCLOPAEDIA BRITANNICA, 11 ed., 634, 635. 18 MAINE, VILLAGE COMMUNITIES, 7 ed., 356-58.

that "three-fourths of the Code were extracted" 19 therefrom, and that "the law of contract is taken almost bodily from Domat and Pothier." 20 Domat, whose work on Lois Civiles had been first published in 1694, was one of the few French counterparts of the English institutional writers like Coke, Hale, and Blackstone, all of whose works were then current in England. In fact, French legal literature then, as compared with English, or even Spanish, was meager. It has even been characterized as "pitiable," 21 though this hardly seems appropriate in view of other equally authoritative estimates of the preceding French jurists,22 to say nothing of the encyclopedists who so profoundly influenced the legal as well as political philosophy of the Revolution. Their themes, however, were mostly remote from the paths followed by the framers of the Civil Code, who seem to have confined their study of commentaries to a few well-known ones which they, nevertheless, utilized thoroughly.

GRANDES ORDONNANCES.-"Certain parts (of the Roman law current in France) had already been codified," observes Esmein,23 "in the Grandes Ordonnances which were the work of D'Aguesseau.' Three of these, framed by that eminent chancellor during the years 1731-47, were especially important sources. "Upon the topics which they covered," it has been said, "-wills, gifts, and entails - he virtually wrote in advance entire chapters of the future Civil Code of Napoleon." 24 Other Royal Ordinances were utilized like that of April, 1667, relating to certificate of civil status, and to evidence; that of Moulins (1566) on the last-named subject, and the Edict of 1771 concerning mortgage redemption.25

19 Professor Fisher in 9 CAMBRIDGE MODERN HISTORY, 161. Of Pothier's works as a whole it has been said: "They extraordinarily simplified the work to be done by the framers of the Civil Code; it has been said of them that they were an advance Commentary upon the Code." I CONTINENTAL LEGAL HISTORY SERIES, 270.

20 9 CAMBRIDGE MODERN HISTORY, 162.

21 Id., 161.

22 "Their juridical tact, their ease of expression, their fine sense of analogy and harmony, and (if they may be judged by the highest names among them) their passionate devotion to their conceptions of justice, were as remarkable as the singular variety of talent which they included, a variety covering the whole ground between the opposite poles of Cujas and Montesquieu, of D'Aguesseau and Dumoulin." MAINE, ANCIENT LAW, 80.

23 6 ENCYCLOPAEDIA BRITANNICA, II ed., 634. 24 I CONTINENTAL LEGAL HISTORY SERIES, 269.

25 Id., 286.

CUSTOM. Then there were the Livres de Coutumes and other sources of customary law. For just as in England there was a Custom of London,26 so in France there arose the Custom of Paris -the legal system of the capital and the surrounding country which gradually acquired a predominance predominance 27 over the other legal systems or "customs" of the realm. The Custom of Paris, e. g., became the form of the French law that found its way to America. when France first became a colonial power, and even acquired some foothold in territory subsequently formed into states of the Union.28 At first these customs, like similar systems elsewhere, were unwritten, but "for at least two centuries before the Revolution, the French Droit Coutumier, though still conventionally opposed to the Droit Ecrit, or Roman law, had itself become written law; nobody pretended to look for it elsewhere than in Royal Ordinances, or in the Livres de Coutumes, or in the tomes of the Feudists." 29 Thus the Custom of Paris had been reduced to writing before 1580, for the revised text of that year was used by the framers of the draft code and was especially familiar to Tronchet and Bigot. From this customary law was largely derived the material relating to the conjugal partnership, the disabilities of married women, and certain provisions as to succession.30

OTHER SOURCES. - The decisions of the parlements were resorted to for subjects like "absence," which bore likewise upon the marriage portion and the conjugal partnership.31 Rules of the canon law governing legitimation and marriage were retained,32 though the last named, as well as legal age and mortgages, had been the subject of revolutionary legislation.33

26 I BLACKSTONE'S COMMENTARIES, 75, 76; 3 Id., 334.

27 "The Code was drafted in Paris, in the very centre of the countries of Customs; most of the Councillors of State came from the provinces of the North; the Parliament of Paris had played a preponderating part in the old law. There is therefore nothing astonishing in the predominance of the spirit of the Customs; the opposite would have been an historical anomaly." I CONTINENTAL LEGAL HISTORY SERIES, 286.

28 As Michigan, Lorman v. Benson, 8 Mich. 18, 25 (1860), and Wisconsin, Coburn v. Harvey, 18 Wis. 147 (1864).

29 MAINE, VILLAGE COMMUNITIES, 7 ed., 363–64. The least use appears to have been made of the latter. 40 AM. L. REV. 851.

30 I CONTINENTAL LEGAL HISTORY SERIES, 286.

This was partly embodied in the BULLETIN DES LOIS DE LA RÉPUBLIQUE FRANÇAISE compiled by order of the convention after 1794 and containing not only the recom

THE DRAFT CODE

Mr. Rose in his Bar Association address observes:

"The draft of the code was finished in four months. It is perfectly plain that such an expeditious result could not have been accomplished if it had not been for the previously accumulated materials and arduous labors of Cambacérès and his committees." 34

The present writer has been unable to find confirmation of this view. "An expeditious result" was one of the conditions upon which the commission was set to work. It was appointed on August 12, 1800,"with instructions to bring the work to a conclusion in the following November." 35 And it seems clear that obedience to these instructions, rather than a feeling that the task was "finished," caused the draft to be reported when it was.

The Code has been called "a hasty piece of work," 36 and this was certainly the view taken in the Tribunate when the draft was before it.37 At any rate the "materials" were limited and were quite as accessible to the draftsmen as to their predecessors. Besides, it was Napoleon's experience with the old committee and his belief that in six years it had accomplished practically nothing which appears to have led him to insist now upon prompt action. Here, as always, he was looking for results. And just as the Austrian generals, whom he had vanquished — sometimes with half their force had complained, "This man violates the principles of strategy," so now the reactionary defenders of the old legal régime saw in expedition only innovation. But Napoleon was equally at home whether opposing an armed force or an outworn jurisprudence, and the outcome in either case usually vindicated his methods.

REFERENCE AND REVISION

The draft was never intended by its promoter to be anything more than what the French call a projet — a mere step toward the final result. Napoleon wanted these men of learning in the old law

mendations of the Cambacérès committee but other legislation. See Smithers, "The Code Napoléon," 40 AM. L. REG. (N. S.) 127, 139, 140.

to construct a framework upon which he and others could labor by dissecting, discussing, testing and remodelling so as to fit modern conditions. Following the same policy he directed the draft to be sent next to the judiciary for comment and criticism to be submitted within three months. This done, the instrument was submitted for examination and revision to the legislative section of the Council of State, and then to the whole Council, where Napoleon's direct participation commenced.

NAPOLEON'S PART

In the opinion of Professor Esmein 38 "the part that Napoleon took in framing it [the Code] was not very important" and "interesting as his observations occasionally are, he cannot be considered as a serious collaborator in this great work." But the same author states that, "in the discussions of the general assembly of the council of state that Napoleon took part, in 97 cases out of 102 in the capacity of chairman" 39 and it seems clear from this that his share in the process of codification was by no means formal or perfunctory - much less a nominal one like Justinian's. Moreover other critics, even if unfriendly to Napoleon, are disposed to place a higher estimate upon the value of his labors in this connection. One 40 of them summarizes Napoleon's direct contributions to the subject matter of the Code as including the articles governing the civil status of soldiers (Arts. 93-98) and aliens (Arts. 11, 726, 912), the latter being discriminatory, and the systems of adoption and divorce by mutual consent. But his influence extended much farther.

A none too friendly critic 41 observes:

"... 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 temper

ament.

38 6 ENCYCLOPAEDIA BRITANNICA, 11 ed., 634.

39 Id. Mr. Rose (40 AM. L. REV. 832, 850) speaks of "102 sessions, over 57 of which he presided," while the CAMBRIDGE MODERN HISTORY (Vol. IX, 151) mentions 35 out of 87.

40 I CONTINENTAL LEGAL HISTORY SERIES, 288.

H. A. L. Fisher in 9 CAMBRIDGE MODERN HISTORY, 151, 164.