ality. They purport to embrace within the compass of a single, small volume the law of a variety of subjects, each of which is treated under our legal system, in one or more portly tomes (not to mention statutes), such as Citizenship, Domestic Relations, Contracts, Torts, Real and Personal Property, Bailments, Liens, Wills, Intestate Succession, and many minor topics. Austin, the English analytical jurist, said:

"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."

But the dangers lurking in this method did not escape the penetrating vision of Napoleon. Toward the close of the Council's deliberations on the Code he said:

"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."

It must be remembered, moreover, that the Latin theory of legislative expression is directly opposed to the Anglo-Saxon. According to the former a code or statute should express only general principles and rules applicable to a group of cases, leaving the details to be worked out as they arise in specific instances. The Anglo-Saxon lawmaker too often essays the task (impossible of attainment) of providing for every contingency and including every case that might arise, meanwhile failing to express the general principle at all. The difference is analogous to that existing between the early American state constitution, with its brief bill of rights and frame-work of government, and the latter-day instrument which often goes far into the field of general legislation. There is much to be said in favor of each theory, but the difference must be clearly understood before the French codes and their imitators can be appreciated.

The Code has never lacked critics, however, though they are far less conspicuous than formerly. When under discussion before the Tribunate, as we have seen, it encountered serious and, some still think, well-grounded opposition, including, inter alia, two distinguished jurists, Andrieux and Simeon, the latter a brotherin-law of Portalis, one of the four draftsmen.

"The Code Napoléon," says Brissaud,56 "was attacked with fury, even in France, by certain political parties blinded by hatred of the Empire. Those whose ideals were the Decrees of the Convention could not help looking upon this Code with disdain ...

Outside of France it was criticized by some eminent authorities including Savigny who characterized its framers as "dilettanti" 57 and their work as "only a mechanical mixture of the Revolution and pre-Revolution laws . . . not even a logical whole, a formal unity that might be logically developed to meet new cases.” 58 His main point of attack, however, was political and there, as Brissaud well says, 59 "his patriotism carried him too far."

Moreover this contemporary criticism was levelled chiefly at provisions which, it was charged, were not adapted to France, and this the lapse of time has largely silenced. Surely the French people have had opportunity to judge whether this code is suited to them. And surely also no piece of legislation has ever acquired such permanence in France. The sentiment toward it there is comparable only to the American reverence for the Federal Constitution.

Certain important omissions, indeed, are now recognized by French writers, 60 such as a satisfactory mortgage system, and adequate treatment of the law of movables (personalty), and especially literary or artistic property, of artificial persons, insurance, and bankruptcy, and any attempt to cover the subject of industrial relations. But as Esmein observes:

this only proves that it could not foretell the future, for most of these questions are concerned with economic phenomena and social relations which did not exist at the time when it was framed." 61

SUBSEQUENT CHANGES

After more than a century the number of articles (2281) in the Code remains the same a not insignificant mark of permanence.

56 I CONTINENTAL LEGAL HISTORY SERIES, 290-91, note.

60 I CONTINENTAL LEGAL HISTORY SERIES, 290, 291; Esmein, 6 ENCYCLOPAEDIA BRITANNICA, II ed., 634, 635.

There have been amendments and modifications averaging about one for each year 62 but their importance is not generally recognized.63 At times a general revision has been mooted 64 but as Brissaud 65 says "up to the present time the idea of a general revision seems to find but a cool reception in the world of business. We must hope that the method of partial amendments will suffice for a long time to come."

Thus the identity of the Code as a whole is preserved intact. It has outlived all the dynasties and régimes that waxed and waned in France during the nineteenth century. Not even the restored Bourbons attempted to touch its contents; they merely sought to dim the fame of its chief promoter by omitting his name and calling it simply the Civil Code - an attempt as vain as it was petty.

A PEOPLE'S LAW

It was surely a great achievement to have brought order out of the legal chaos that marked pre-revolutionary France. But to the Code Napoléon belongs an even greater distinction. As one critic observes:

"... 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." 66

Nor has this result been confined to France. If Savigny, founder of the historical school of jurisprudence, thought he saw failure for the Code because it had been "drafted at an unfavorable epoch,"

62 Walton, "The New German Code," 16 JURIDICAL REV. 148, note. Among them was the repeal of the divorce provisions in 1816. These were mainly restored, however, in 1884, the ground of incompatibility by mutual consent being omitted. See Smithers, "The Code Napoléon," 40 AM. L. REG. (N. S.) 127, 147.

63

I COUR DE DROIT CIVIL FRANÇAIS, 5 ed., 13. Esmein, 6 ENCYCLOPAEDIA BRITANNICA, II ed., 634, 635, however, says: "The Code needed revising and completing and this was carried out by degrees by means of numerous important laws."

64 "Its entire revision was demanded at an early period; but this movement found little response until, in 1904, at the celebration of the centennial of the Civil Code, the Minister of Justice appointed a special commission to prepare a first draft of a revision." I CONTINENTAL LEGAL HISTORY SERIES, 298.

65 Id., 298-99.

66 FISHER, 9 CAMBRIDGE MODERN HISTORY, 161. "The Code has been thumbed and discussed till it has become extremely familiar, with the result that there are few countries in which some knowledge of law is so widely diffused as in France." Walton, "The New German Code," 16 JURIDICAL REV. 148.

a successor, and perhaps greater than Savigny, in the same school, testifies to its phenomenal success:

"The highest tribute to the French Codes is their great and lasting popularity with the people, the lay-public, of the countries into which they have been introduced. How much weight ought to be attached to this symptom our own experience should teach us, which surely shows us how thoroughly indifferent in general is the mass of the public to the particular rules of civil life by which it may be governed, and how extremely superficial are even the most energetic movements in favour of the amendment of the law. At the fall of the Bonapartist Empire in 1815, most of the restored Governments had the strongest desire to expel the intrusive jurisprudence which had substituted itself for the ancient customs of the land. It was found, however, that the people prized it as the most precious of possessions: the attempt to subvert it was persevered in in very few instances, and in most of them the French Codes were restored after a brief abeyance. And not only has the observance of these laws been confirmed in almost all the countries which ever enjoyed them, but they have made their way into numerous other communities, and occasionally in the teeth of the most formidable political obstacles. So steady, indeed, and so resistless has been the diffusion of this Romanized jurisprudence, either in its original or in a slightly modified form, that the civil law of the whole Continent is clearly destined to be absorbed and lost in it. It is, too, we should add, a very vulgar error to suppose that the civil part of the Codes has only been found suited to a society so peculiarly constituted as that of France. With alterations and additions, mostly directed to the enlargement of the testamentary power on one side, and to the conservation of entails and primogeniture on the other, they have been admitted into countries whose social condition is as unlike that of France as is possible to conceive. A written jurisprudence, identical through five-sixths of its tenor, regulates at the present moment a community monarchical, and in some parts deeply feudalized, like Austria, and a community dependent for its existence on commerce, like Holland a society so near the pinnacle of civilization as France, and one as primitive and as little cultivated as that of Sicily and Southern Italy." 99 67

And as Esmein 68 observes with evident and just national pride, "Its ascendency has been due chiefly to the clearness of its provisions and to the spirit of equity and equality which inspires them." 67 MAINE, VILLAGE COMMUNITIES, 7 ed., 357-59. 68 6 ENCYCLOPAEDIA BRITANNICA, II ed., 634, 635.

And after comparing it with the German Civil Code "which, having been drawn up at the end of the 19th century, naturally does not show the same lacunae or omissions" he significantly adds:

"It is inspired, however, by a very different spirit, and the French code does not suffer altogether by comparison with it either in substance or in form."

No greater tribute could be paid the ill-fated Corsican than the fact that now, more than a century after its promulgation, his code stands higher in the world's judgment than ever before. Napoleon himself realized that this branch of his work was to be the most enduring. At St. Helena he wrote:

"My true glory is not in having won forty battles; Waterloo will blot out the memory of those victories. But nothing can blot out my Civil Code. That will live eternally." 69

And that prophecy is being literally fulfilled. Men no longer read much about his battles; they have lost interest in his diplomatic triumphs; they give little heed to his display of administrative genius; but they are hearing more and more about his legislation. He is going down to history with the Code in his hand.

It was the writer's privilege once to visit Napoleon's tomb in the Hôtel des Invalides at Paris. It is probably the most magnificent of the world's mausoleums, not excepting the beautiful Taj Mahal at Agra, India — doubtless more delicate in construction, but not so imposing as that which lies beneath the dome of the Invalides. The historic associations, the superb embellishments, the "dim religious light" that falls through the shaded dome directly upon the sarcophagus of the hero - all unite to inspire the visitor with a feeling of awe. But to the writer the most impressive features of that entire structure were the bas-relief representing the Code and the inscription that encircles the great rotunda consisting of this sentence from Napoleon's will: "I desire that my ashes repose on the banks of the Seine, in the midst of the French people whom I have so loved."

Historians who have considered only his wars, the countless lives lost in his campaigns, the misfortunes that befell France after

69

I DE MONTHOLON, RÉCIT DE LA CAPTIVITÉ DE L'EMPEREUR NAPOLÉON, 401.