The same quality of almost pyramidal solidity characterizes another great enterprise of the Napoleonic period, the codification of French law.
The difficulties of this undertaking consisted mainly[pg.288] in the enormous mass of decrees emanating from the National Assemblies, relative to political, civil, and criminal affairs. Many of those decrees, the offspring of a momentary enthusiasm, had found a place in the codes of laws which were then compiled; and yet sagacious observers knew that several of them warred against the instincts of the Gallic race. This conviction was summed up in the trenchant statement of the compilers of the new code, in which they appealed from the ideas of Rousseau to the customs of the past: "New theories are but the maxims of certain individuals: the old maxims represent the sense of centuries." There was much force in this dictum. The overthrow of Feudalism and the old monarchy had not permanently altered the French nature. They were still the same joyous, artistic, clan-loving people whom the Latin historians described: and pride in the nation or the family was as closely linked with respect for a doughty champion of national and family interests as in the days of Cæsar. Of this Roman or quasi-Gallic reaction Napoleon was to be the regulator; and no sphere of his activities bespeaks his unerring political sagacity more than his sifting of the old and the new in the great code which was afterwards to bear his name.
Old French law had been an inextricable labyrinth of laws and customs, mainly Roman and Frankish in origin, hopelessly tangled by feudal customs, provincial privileges, ecclesiastical rights, and the later undergrowth of royal decrees; and no part of the legislation of the revolutionists met with so little resistance as their root and branch destruction of this exasperating jungle. Their difficulties only began when they endeavoured to apply the principles of the Rights of Man to political, civil, and criminal affairs. The chief of these principles relating to criminal law were that law can only forbid actions that are harmful to society, and must only impose penalties that are strictly necessary. To these epoch-making pronouncements the Assembly added, in 1790, that crimes should be visited only on the guilty individual, not on the family; and that [pg.289] penalties must be proportioned to the offences. The last two of these principles had of late been flagrantly violated; but the general pacification of France now permitted a calm consideration of the whole question of criminal law, and of its application to normal conditions.
Civil law was to be greatly influenced by the Rights of Man; but those famous declarations were to a large extent contravened in the ensuing civil strifes, and their application to real life was rendered infinitely more difficult by that predominance of the critical over the constructive faculties which marred the efforts of the revolutionary Babel-builders. Indeed, such was the ardour of those enthusiasts that they could scarcely see any difficulties. Thus, the Convention in 1793 allowed its legislative committee just one month for the preparation of a code of civil law. At the close of six weeks Cambacérès, the reporter of the committee, was actually able to announce that it was ready. It was found to be too complex. Another commission was ordered to reconstruct it: this time the Convention discovered that the revised edition was too concise. Two other drafts were drawn up at the orders of the Directory, but neither gave satisfaction. And thus it was reserved for the First Consul to achieve what the revolutionists had only begun, building on the foundations and with the very materials which their ten years' toil had prepared.
He had many other advantages. The Second Consul, Cambacérès, was at his side, with stores of legal experience and habits of complaisance that were of the highest value. Then, too, the principles of personal liberty and social equality were yielding ground before the more autocratic maxims of Roman law. The view of life now dominant was that of the warrior not of the philosopher. Bonaparte named Tronchet, Bigot de Préameneu, and the eloquent and learned Portalis for the redaction of the code. By ceaseless toil they completed their first draft in four months. Then, after receiving the criticisms of the Court of Cassation and the Tribunals of Appeal, it came before the Council of State for the decision of [pg.290] its special committee on legislation. There it was subjected to the scrutiny of several experts, but, above all, to Bonaparte himself. He presided at more than half of the 102 sittings devoted to this criticism; and sittings of eight or nine hours were scarcely long enough to satisfy his eager curiosity, his relentless activity, and his determined practicality.
From the notes of Thibaudeau one of the members of this revising committee, we catch a glimpse of the part there played by the First Consul. We see him listening intently to the discussions of the jurists, taking up and sorting the threads of thought when a tangle seemed imminent, and presenting the result in some striking pattern. We watch his methodizing spirit at work on the cumbrous legal phraseology, hammering it out into clear, ductile French. We feel the unerring sagacity, which acted as a political and social touchstone, testing, approving, or rejecting multifarious details drawn from old French law or from the customs of the Revolution; and finally we wonder at the architectural skill which worked the 2,281 articles of the Code into an almost unassailable pile. To the skill and patience of the three chief redactors that result is, of course, very largely due: yet, in its mingling of strength, simplicity, and symmetry, we may discern the projection of Napoleon's genius over what had hitherto been a legal chaos.
Some blocks of the pyramid were almost entirely his own. He widened the area of French citizenship; above all, he strengthened the structure of the family by enhancing the father's authority. Herein his Corsican instincts and the requirements of statecraft led him to undo much of the legislation of the revolutionists. Their ideal was individual liberty: his aim was to establish public order by autocratic methods. They had sought to make of the family a little republic, founded on the principles of liberty and equality; but in the new code the paternal authority reappeared no less strict, albeit less severe in some details than that of the ancien régime. The family was thenceforth modelled on the idea dominant [pg.291] in the State, that authority and responsible action pertained to a single individual. The father controlled the conduct of his children: his consent was necessary for the marriage of sons up to their twenty-fifth year, for that of daughters up to their twenty-first year; and other regulations were framed in the same spirit.[[162]] Thus there was rebuilt in France the institution of the family on an almost Roman basis; and these customs, contrasting sharply with the domestic anarchy of the Anglo-Saxon race, have had a mighty influence in fashioning the character of the French, as of the other Latin peoples, to a ductility that yields a ready obedience to local officials, drill-sergeants, and the central Government.
In other respects Bonaparte's influence on the code was equally potent. He raised the age at which marriage could be legally contracted to that of eighteen for men, and fifteen for women, and he prescribed a formula of obedience to be repeated by the bride to her husband; while the latter was bound to protect and support the wife.[[163]]
And yet, on the question of divorce, Bonaparte's action was sufficiently ambiguous to reawaken Josephine's fears; and the detractors of the great man have some ground for declaring that his action herein was dictated by personal considerations. Others again may point to the declarations of the French National Assemblies that[pg.292] the law regarded marriage merely as a civil contract, and that divorce was to be a logical sequel of individual liberty, "which an indissoluble tie would annul." It is indisputable that extremely lax customs had been the result of the law of 1792, divorce being allowed on a mere declaration of incompatibility of temper.[[164]] Against these scandals Bonaparte firmly set his face. But he disagreed with the framers of the new Code when they proposed altogether to prohibit divorce, though such a proposition might well have seemed consonant with his zeal for Roman Catholicism. After long debates it was decided to reduce the causes which could render divorce possible from nine to four—adultery, cruelty, condemnation to a degrading penalty, and mutual consent—provided that this last demand should be persistently urged after not less than two years of marriage, and in no case was it to be valid after twenty years of marriage.[[165]]
We may also notice here that Bonaparte sought to surround the act of adoption with much solemnity, declaring it to be one of the grandest acts imaginable. Yet, lest marriage should thereby be discouraged, celibates were expressly debarred from the privileges of adopting heirs. The precaution shows how keenly this able ruler peered into the future. Doubtless, he surmised that in the future the population of France would cease to expand at the normal rate, owing to the working of the law compelling the equal division of property among all the children of a family. To this law he was certainly opposed. Equality in regard to the bequest of property was one of the sacred maxims of revolutionary jurists, who had limited the right of free disposal by bequest to one-tenth of each estate: nine-tenths being of necessity divided equally among the direct heirs. Yet so strong was the reaction in favour of the Roman principle of paternal authority, that Bonaparte and a majority of the drafters of the new Code scrupled not to assail that maxim, and to claim for the father larger discretionary[pg.293] powers over the disposal of his property. They demanded that the disposable share should vary according to the wealth of the testator—a remarkable proposal, which proves him to be anything but the unflinching champion of revolutionary legal ideas which popular French histories have generally depicted him.