Life of Napoleon Bonaparte. Volume III

Faber, an author too impassioned to obtain unlimited credit, has given several instances of ignorance amongst the prefects; many of whom, being old generals, were void of the information necessary for the exercise of a civil office, and all of whom, having been, upon principle, nominated to a sphere of action with the local circumstances of which they were previously unacquainted, were sufficiently liable to error. But the same author may be fully trusted, when he allows that the prefects could not be accused of depredation or rapine, and that such of them as improved their fortune during the date of their office, did so by economising upon their legitimate allowances.315

Such was the outline of Napoleon's provincial administration, and of the agency by which it was carried on, without check or hesitation, in every province of France at the same moment. The machinery has been in a great measure retained by the royal government, to whom it appeared preferable, doubtless, to the violent alterations which an attempt to restore the old appointments, or create others of a different kind, must necessarily have occasioned.

THE CODE NAPOLEON.

But a far more important change, introduced by the Emperor, though not originating with him, was the total alteration of the laws of the kingdom of France, and the introduction of that celebrated code to which Napoleon assigned his name, and on the execution of which his admirers have rested his claim to be considered as a great benefactor to the country which he governed. Bacon has indeed informed us, that when laws have been heaped upon laws, in such a state of confusion as to render it necessary to revise them, and collect their spirit into a new and intelligible system, those who accomplish such an heroic task have a good right to be named amongst the legislators and benefactors of mankind. It had been the reproach of France before the Revolution, and it was one of the great evils which tended to produce that immense and violent change, that the various provinces, towns, and subordinate divisions of the kingdom, having been united in different periods to the general body of the country, had retained in such union the exercise of their own particular laws and usages; to the astonishment, as well as to the great annoyance of the traveller, who, in journeying through France, found that, in many important particulars, the system and character of the laws to which he was subjected, were altered almost as often as he changed his post-horses. It followed, from this discrepancy of laws and subdivision of jurisdiction, that the greatest hardships were sustained by the subjects, more especially when, the district being of small extent, those authorities who acted there were likely neither to have experience, nor character sufficient for exercise of the trust reposed in them.

The evils attending such a state of things had been long felt, and, at various periods before the Revolution, it had been proposed repeatedly to institute a uniform system of legislation for the whole kingdom. But so many different interests were compromised, and such were, besides, the pressing occupations of the successive administrations of Louis XVI., and his grandfather, that the project was never seriously adopted or entered upon. When, however, the whole system of provinces, districts, and feudal jurisdictions, great and small, had fallen at the word of the Abbé Siêyes, like an enchanted castle at the dissolution of a spell, and their various laws, whether written or consuetudinary, were buried in the ruins, all France, now united into one single and integral nation, lay open to receive any legislative code which the National Assembly might dictate. But the revolutionary spirit was more fitted to destroy than to establish; and was more bent upon the pursuit of political objects, than upon affording the nation the protection of just and equal laws. Under the Directory, two or three attempts towards classification of the laws had been made in the Council of Five Hundred, but never had gone farther than a preliminary and general report. Cambacérès, an excellent lawyer and enlightened statesman, was one of the first to solicit the attention of the state to this great and indispensable duty. The various successive authorities had been content with passing such laws as affected popular subjects of the day, and which (like that which licensed universal divorce) partook of the extravagance that gave them origin. The project of Cambacérès, on the contrary, embraced a general classification of jurisprudence through all its branches, although too much tainted, it is said, with the prevailing revolutionary opinions of the period, to admit its being taken for a basis, when Buonaparte, after his elevation, determined to supersede the Republican by Monarchical forms of government.

After the revolution of the 18th Brumaire, Napoleon saw no way more certain of assuring the popularity of that event, and connecting his own authority with the public interests of France, than to resume a task which former rulers of the Republic had thought too heavy to be undertaken, and thus, at once, show a becoming confidence in the stability of his own power, and a laudable desire of exercising it for the permanent advantage of the nation. An order of the Consuls, dated 24th Thermidor, in the year VIII., directed the minister of justice, with a committee of lawyers of eminence, to examine the several projects, four in number, which had been made towards compiling the civil code of national law, to give their opinion on the plan most desirable for accomplishing its formation, and to discuss the bases upon which legislation in civil matters ought to be rested.

The preliminary discourse upon the first project of the Civil Code, is remarkable for the manner in which the reporters consider and confute the general and illusory views entertained by the uninformed part of the public, upon the nature of the task to which they had been called. It is the common and vulgar idea, that the system of legislation may be reduced and simplified into a few general maxims of equity, sufficient to lead any judge of understanding and integrity, to a just decision of all questions which can possibly occur betwixt man and man. It follows, as a corollary to this proposition, that the various multiplications of authorities, exceptions, particular cases, and especial provisions, which have been introduced among civilized nations, by the address of those of the legal profession, are just so many expedients to embarrass the simple course of justice with arbitrary modifications and refinements, in order to procure wealth and consequence to those educated to the law, whose assistance must be used as its interpreters, and who became rich by serving litigants as guides through the labyrinth of obscurity which had been raised by themselves and their predecessors.

Such were the ideas of the law and its professors, which occurred to the Parliament of Praise-God-Barebones, when they proposed to Cromwell to abrogate the whole common law of England, and dismiss the lawyers, as drones who did but encumber the national hive. Such was also the opinion of many of the French statesmen, who, as rash in judging of jurisprudence as in politics, imagined that a system of maxims, modified on the plan of the Twelve Tables of the ancient Romans, might serve all the purposes of a civil code in modern France. They who thought in this manner had entirely forgotten, how soon the laws of these twelve tables became totally insufficient for Rome herself – how, in the gradual change of manners, some laws became obsolete, some inapplicable – how it became necessary to provide for emerging cases, successively by the decrees of the Senate, the ordinances of the people, the edicts of the Consuls, the regulations of the Prætors, the answers or opinions of learned Jurisconsults, and finally, by the rescripts, edicts, and novels of the Emperors, until such a mass of legislative matter was assembled, as scarcely the efforts of Theodosius or Justinian were adequate to bring into order, or reduce to principle. But this, it may be said, was the very subject complained of. The simplicity of the old laws, it may be urged, was gradually corrupted; and hence, by the efforts of interested men, not by the natural progress of society, arose the complicated system, which is the object of such general complaint.

The answer to this is obvious. So long as society remains in a simple state, men have occasion for few and simple laws. But when that society begins to be subdivided into ranks; when duties are incurred, and obligations contracted, of a kind unknown in a ruder or earlier period, these new conditions, new duties, and new obligations, must be regulated by new rules and ordinances, which accordingly are introduced as fast as they are wanted, either by the course of long custom, or by precise legislative enactment. There is, no doubt, one species of society in which legislation may be much simplified; and that is, where the whole law of the country, with the power of enforcing it, is allowed to reside in the bosom of the King, or of the judge who is to administer justice. Such is the system of Turkey, where the Cadi is bound by no laws nor former precedents, save what his conscience may discover from perusing the Koran. But so apt are mankind to abuse unlimited power, and indeed so utterly unfit is human nature to possess it, that in all countries where the judge is possessed of such arbitrary jurisdiction, he is found accessible to bribes, or liable to be moved by threats. He has no distinct course prescribed, no beacon on which to direct his vessel; and trims, therefore, his sails to the pursuit of his own profit.

CIVIL CODE.

The French legislative commissioners, with these views, wisely judged it their duty to produce their civil code, upon such a system as might afford, as far as possible, protection to the various kinds of rights known and acknowledged in the existing state of society. Less than this they could not do; nor, in our opinion, is their code as yet adequate to attain that principal object. By the implied social contract, an individual surrenders to the community his right of protecting and avenging himself, under the reserved and indispensable condition that the public law shall defend him, or punish those by whom he has sustained injury. As revenge has been said, by Bacon, to be a species of wild justice, so the individual pursuit of justice is often a modified and legitimate pursuit of revenge, which ought, indeed, to be qualified by the moral and religious sentiments of the party, but to which law is bound to give free way, in requital for the bridle which she imposes on the indulgence of man's natural passions. The course of litigation, therefore, cannot be stopt; it can only be diminished, by providing beforehand as many regulations as will embrace the greater number of cases likely to occur, and trusting to the authority of the judges acting upon the spirit of the law, for the settlement of such as cannot be decided according to its letter.

The organisation of this great national work was proceeded in with the caution and deliberation which the importance of the subject eminently deserved. Dividing the subjects of legislation according to the usual distinctions of jurisconsults, the commissioners commenced by the publication and application of the laws in general; passed from that preliminary subject to the consideration of personal rights under all their various relations; then to rights respecting property; and, lastly, to those legal forms of procedure, by which the rights of citizens, whether arising out of personal circumstances, or as connected with property, are to be followed forth, explicated, and ascertained. Thus adopting the division, and in some degree the forms, of the Institutes of Justinian, the commission proceeded, according to the same model, to consider each subdivision of this general arrangement, and adopt respecting each such maxims or brocards of general law, as were to form the future basis of French jurisprudence. Their general principles being carefully connected and fixed, the ingenuity of the commissioners was exerted in deducing from them such a number of corollaries and subordinate maxims, as might provide, so far as human ingenuity could, for the infinite number of questions that were likely to emerge on the practical application of the general principles to the varied and intricate transactions of human life. It may be easily supposed, that a task so difficult gave rise to much discussion among the commissioners; and as their report, when fully weighed among themselves, was again subjected to the Council of State, before it was proposed to the Legislative Body, it must be allowed, that every means which could be devised were employed in maturely considering and revising the great body of national law, which, finally, under the name of the Code Napoleon, was adopted by France, and continues, under the title of the Civil Code, to be the law by which her subjects still possess and enforce their civil rights.

It would be doing much injustice to Napoleon, to suppress the great personal interest which, amid so many calls upon his time, he nevertheless took in the labours of the commission. He frequently attended their meetings, or those of the Council of State, in which their labours underwent revision; and, though he must be supposed entirely ignorant of the complicated system of jurisprudence as a science, yet his acute, calculating, and argumentative mind enabled him, by the broad views of genius and good sense, often to get rid of those subtleties by which professional persons are occasionally embarrassed, and to treat as cobwebs, difficulties of a technical or metaphysical character, which, to the jurisconsults, had the appearance of bonds and fetters.

There were times, however, on the other hand, when Napoleon was led, by the obvious and vulgar views of a question, to propose alterations which would have been fatal to the administration of justice, and the gradual enlargement and improvement of municipal law. Such was his idea, that advocates and solicitors ought only to be paid in the event of the cause being decided in favour of their client,316– a regulation which, had he ever adopted it, would have gone far to close the gates of justice; since, what practitioner would have forfeited at once one large portion of the means of his existence, and consented to rest the other upon the uncertainty of a gambling transaction? A lawyer is no more answerable for not gaining his cause, than a horse-jockey for not winning the race. Neither can foretell, with any certainty, the event of the struggle, and each, in justice, can only be held liable for the utmost exertion of his skill and abilities. Napoleon was not aware that litigation is not to be checked by preventing lawsuits from coming into court, but by a systematic and sage course of trying and deciding points of importance, which, being once settled betwixt two litigants, cannot, in the same shape, or under the same circumstances, be again the subject of dispute among others.

The Civil Code of Napoleon is accompanied by a code of procedure in civil cases, and a code relating to commercial affairs, which may be regarded as supplemental to the main body of municipal law. There is, besides, a Penal Code, and a code respecting the procedure against persons accused under it. The whole forms a grand system of jurisprudence, drawn up by the most enlightened men of the age, having access to all the materials which the past and the present times afford; and it is not surprising that it should have been received as a great boon by a nation who, in some sense, may be said, previous to its establishment, to have been without any fixed or certain municipal law since the date of the Revolution.

But while we admit the full merit of the Civil Code of France, we are under the necessity of observing, that the very symmetry and theoretical consistency, which form, at first view, its principal beauty, render it, when examined closely, less fit for the actual purposes of jurisprudence, than a system of national law, which, having never undergone the same operation of compression, and abridgement, and condensation, to which that of France was necessarily subjected, spreads through a multiplicity of volumes, embraces an immense collection of precedents, and, to the eye of inexperience, seems, in comparison of the compact size and regular form of the French code, a labyrinth to which no clue is afforded. It is of the greater importance to give this subject some consideration, because it has of late been fashionable to draw comparisons between the jurisprudence of England and that of France, and even to urge the necessity of new-modelling the former upon such a concise and systematic plan as the latter exhibits.

In arguing this point, we suppose it will be granted, that that code of institutions is the most perfect, which most effectually provides for every difficult case as it emerges, and therefore averts, as far as possible, the occurrence of doubt, and, of course, of litigation, by giving the most accurate and certain interpretation to the general rule, when applied to cases as they arise. Now, in this point, which comprehends the very essence and end of all jurisprudence – the protection, namely, of the rights of the individual – the English law is preferable to the French in an incalculable degree; because each principle of English law has been the subject of illustration for many ages, by the most learned and wise judges, acting upon pleadings conducted by the most acute and ingenious men of each successive age. This current of legal judgments has been flowing for centuries, deciding, as they occurred, every question of doubt which could arise upon the application of general principles to particular circumstances; and each individual case, so decided, fills up some point which was previously disputable, and, becoming a rule for similar questions, tends to that extent to diminish the debateable ground of doubt and argument with which the law must be surrounded, like an unknown territory when it is first partially discovered.

It is not the fault of the French jurisconsults, that they did not possess the mass of legal authority arising out of a regular course of decisions by a long succession of judges competent to the task, and proceeding, not upon hypothetical cases supposed by themselves, and subject only to the investigation of their own minds, but upon such as then actually occurred in practice and had been fully canvassed and argued in open court. The French lawyers had not the advantage of referring to such a train of decisions; each settling some new point, or ascertaining and confirming some one which had been considered as questionable. By the Revolution, the ancient French courts had been destroyed, together with their records; their proceedings only served as matter of history or tradition, but could not be quoted in support or explanation of a code which had no existence until after their destruction. The commissioners endeavoured, we have seen, to supply this defect in their system, by drawing from their general rules such a number of corollary propositions as might, so far as possible, serve for their application to special and particular cases. But rules, founded in imaginary cases, can never have the same weight with precedents emerging in actual practice, where the previous exertions of the lawyers have put the case in every possible light, and where the judge comes to the decision, not as the theorist, whose opinion relates only to an ideal hypothesis of his own mind, but as the solemn arbiter of justice betwixt man and man, after having attended to, and profited by, the collision and conflict of opposite opinions, urged by those best qualified to state and to illustrate them. The value of such discussion is well known to all who have experience of courts of justice, where it is never thought surprising to hear the wisest judge confess, that he came into court with a view of the case at issue wholly different from that which he was induced to form after having given the requisite attention to the debate before him. But this is an advantage which can never be gained, unless in the discussion of a real case; and therefore the opinion of a judge, given tota re cognita, must always be a more valuable precedent, than that which the same learned individual could form upon an abstract and hypothetical question.

It is, besides, to be considered, that the most fertile ingenuity with which any legislator can be endued, is limited within certain bounds; and that, when he has racked his brain to provide for all the ideal cases which his prolific imagination can supply, it will be found that he has not anticipated or provided for the hundredth part of the questions which are sure to occur in actual practice. To make a practical application of what we have stated, to the relative jurisprudence of France and England, it may be remarked, that the Title V. of the 1st Book of the Civil Code, upon the subject of Marriage, contains only one hundred and sixty-one propositions respecting the rights of parties, arising in different circumstances out of that contract, the most important known in civilized society. If we deduce from this gross amount the great number of rules which are not doctrinal, but have only reference to the forms of procedure, the result will be greatly diminished. The English law, on the other hand, besides its legislative enactments, is guarded, as appears from Roper's Index, by no less than a thousand decided cases, or precedents, each of which affords ground to rule any other case in similar circumstances. In this view, the certainty of the law of England compared to that of France, bears the proportion of ten to one.

It is, therefore, a vulgar, though a natural and pleasing error, to prefer the simplicity of an ingenious and philosophic code of jurisprudence, to a system which has grown up with a nation, augmented with its wants, extended according to its civilisation, and only become cumbrous and complicated, because the state of society to which it applies has itself given rise to a complication of relative situations, to all of which the law is under the necessity of adapting itself. In this point of view, the Code of France may be compared to a warehouse built with much attention to architectural uniformity, showy in the exterior, and pleasing from the simplicity of its plan, but too small to hold the quantity of goods necessary to supply the public demand; while the Common Law of England resembles the vaults of some huge Gothic building – dark, indeed, and ill-arranged, but containing an immense store of commodities, which those acquainted with its recesses seldom fail to be able to produce to such as have occasion for them. The practiques, or adjudged cases, in fact, form a breakwater, as it were, to protect the more formal bulwark of the statute law; and although they cannot be regularly jointed or dovetailed together, each independent decision fills its space on the mound, and offers a degree of resistance to innovation, and protection to the law, in proportion to its own weight and importance.

The certainty of the English jurisprudence, (for, in spite of the ordinary opinion to the contrary, it has acquired a comparative degree of certainty,) rests upon the multitude of its decisions. The views which a man is disposed to entertain of his own rights, under the general provisions of the law, are usually controlled by some previous decision on the case; and a reference to precedents, furnished by a person of skill, saves, in most instances, the expense and trouble of a lawsuit, which is thus stifled in its very birth. If we are rightly informed, the number of actions at common law, tried in England yearly, does not exceed betwixt five-and-twenty and thirty on an average, from each county; an incredibly small number, when the wealth of the kingdom is considered, as well as the various and complicated transactions incident to the advanced and artificial state of society in which we live.

But we regard the multitude of precedents in English law as eminently favourable, not only to the certainty of the law, but to the liberty of the subject; and especially as a check upon any judge, who might be disposed to innovate either upon the rights or liberties of the lieges. If a general theoretical maxim of law be presented to an unconscientious or partial judge, he may feel himself at liberty, by exerting his ingenuity, to warp the right cause the wrong way. But if he is bound down by the decisions of his wise and learned predecessors, that judge would be venturous indeed, who should attempt to tread a different and more devious path than that which is marked by the venerable traces of their footsteps; especially, as he well knows that the professional persons around him, who might be blinded by the glare of his ingenuity in merely theoretical argument, are perfectly capable of observing and condemning every departure from precedent.317 In such a case he becomes sensible, that, fettered as he is by previous decisions, the law is in his hands, to be administered indeed, but not to be altered or tampered with; and that if the evidence be read in the court, there are and must be many present, who know as well as himself, what must, according to precedent, be the verdict, or the decision. These are considerations which never can restrain or fetter a judge, who is only called upon to give his own explanation of the general principle briefly expressed in a short code, and susceptible therefore of a variety of interpretations, from which he may at pleasure select that which may be most favourable to his unconscientious or partial purposes.