Life of Napoleon Bonaparte, Volume III.

by Walter Scott

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.