Life of Napoleon Bonaparte, Volume III.

by Walter Scott

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.