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 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 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 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 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.
This proposal would have re-established liberty of bequest in its most pernicious form, granting almost limitless discretionary power to the wealthy, while restricting or denying it to the poor.[166] Fortunately for his reputation in France, the suggestion was rejected; and the law, as finally adopted, fixed the disposable share as one-half of the property, if there was but one heir; one-third, if there were two heirs; one-fourth, if there were three; and so on, diminishing as the size of the family increased. This sliding scale, varying inversely with the size of the family, is open to an obvious objection: it granted liberty of bequest only in cases where the family was small, but practically lapsed when the family attained to patriarchal dimensions. The natural result has been that the birth-rate has suffered a serious and prolonged check in France. It seems certain that the First Consul foresaw this result. His experience of peasant life must have warned him that the law, even as now amended, would stunt the population of France and ultimately bring about that [Greek: oliganthrôpia] which saps all great military enterprises. The great captain did all in his power to prevent the French settling down in a self-contained national life; he strove to stir them up to world-wide undertakings, and for the success of his future imperial schemes a redundant population was an absolute necessity.
The Civil Code became law in 1804: after undergoing some slight modifications and additions, it was, in 1807 renamed the Code Napoléon. Its provisions had already, in 1806, been adopted in Italy. In 1810 Holland, and the newly-annexed coast-line of the North Sea as far as Hamburg, and even Lübeck on the Baltic, received it as the basis of their laws, as did the Grand Duchy of Berg in 1811. Indirectly it has also exerted an immense influence on the legislation of Central and Southern Germany, Prussia, Switzerland, and Spain: while many of the Central and South American States have also borrowed its salient features.
A Code of Civil Procedure was promulgated in France in 1806, one of Commerce in 1807, of "Criminal Instruction" in 1808, and a Penal Code in 1810. Except that they were more reactionary in spirit than the Civil Code, there is little that calls for notice here, the Penal Code especially showing little advance in intelligence or clemency on the older laws of France. Even in 1802, officials favoured severity after the disorders of the preceding years. When Fox and Romilly paid a visit to Talleyrand at Paris, they were informed by his secretary that: