Life of Napoleon Bonaparte, Volume III.

by Walter Scott

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.

It follows, also, from the paucity of laws afforded by a code constructed not by the growth of time, but suggested by the ingenuity of theorists suddenly called to the task, and considering its immense importance, executing it in haste, that many provisions, most important for the exercise of justice, must, of course, be neglected in the French Code. For example, the whole law of evidence, the very key and corner-stone of justice between man and man, has been strangely overlooked in the French jurisprudence. It is plain, that litigation may proceed for ever, unless there be some previous adjustment (called technically an issue) betwixt the parties, at the sight of the judge, tending to ascertain their averments in point of fact, as also the relevancy of those averments to the determination of the cause. In England, chiefly during the course of last century, the Law of Evidence has grown up to a degree of perfection, which has tended, perhaps more than any other cause, at once to prevent and to shorten litigation. If we pass from the civil to the penal mode of procedure in France, the British lawyer is yet more shocked by a course, which seems in his view totally to invert and confound every idea which he has received upon the law of evidence. Our law, it is well known, is in nothing so scrupulous as in any conduct towards the prisoner, which may have the most indirect tendency to entrap him into bearing evidence against himself. Law sympathizes in such a case with the frailties of humanity, and, aware of the consequence which judicial inquiries must always have on the mind of the timid and ignorant, never pushes the examination of a suspected person farther than he himself, in the natural hope of giving such an account of himself as may procure his liberty, shall choose to reply to it.

In France, on the contrary, the whole trial sometimes resolves into a continued examination and cross-examination of the prisoner, who is not only under the necessity of giving his original statement of the circumstances on which he founds his defence, but is confronted repeatedly with the witnesses, and repeatedly required to reconcile his own statement of the case with that which these have averred. With respect to the character of evidence, the same looseness of practice exists. No distinction seems to be made between that which is hearsay and that which is direct—that which is spontaneously given, and that which is extracted, or perhaps suggested, by leading questions. All this is contrary to what we are taught to consider as the essence of justice towards the accused. The use of the rack is, indeed, no longer admitted to extort the confession, but the mode of judicial examination seems to us a species of moral torture, under which a timid and ignorant, though innocent man, is very likely to be involved in such contradictions and inextricable confusion, that he may be under the necessity of throwing away his life by not knowing how to frame his defence.

We shall not protract these remarks on the Code Napoleon; the rather that we must frankly confess, that the manners and customs of a country make the greatest difference with respect to its laws, and that a system may work well in France, and answer all the purposes of jurisprudence, which in England would be thought very inadequate to the purpose. The humane institution which allows the accused the benefit of counsel, is a privilege which the English law does not permit to the accused, and may have its own weight in counterbalancing some of the inconveniences to which he is subjected in France. It seems also probable, that the deficiencies in the Code, arising from its recent origin and compressed form, must be gradually remedied, as in England, by the course of decisions pronounced by intelligent and learned judges; and that what we now state as an objection to the system, will gradually disappear under the influence of time.

Considered as a production of human science, and a manual of legislative sagacity, the Code may challenge general admiration for the clear and wise manner in which the axioms are drawn up and expressed. There are but few peculiarities making a difference betwixt its principles and those of the Roman law, which has in most contracts claimed to be considered as the mother of judicial regulation. The most remarkable occurs, perhaps, in the articles regulating what is called the Family Council—a subject which does not seem of importance sufficient to claim much attention.

The Civil Code being thus ascertained, provision was made for its regular administration by suitable courts; the judges of which did not, as before the Revolution, depend for their emoluments upon fees payable by the litigants, but were compensated by suitable salaries at the expense of the public. As France does not supply that class of persons who form what is called in England the unpaid magistracy, the French justices of peace received a small salary of from 800 to 1800 francs. Above them in rank came judges in the first instance, whose salaries amounted to 3000 francs at the utmost. The judges of the supreme tribunals enjoyed about four or five thousand francs; and those of the High Court of Cassation had not more than ten thousand francs, which scarcely enabled them to live and keep some rank in the metropolis. But, though thus underpaid, the situation of the French judges was honourable in the eyes of the country, and they maintained its character by activity and impartiality in their judicial functions.

The system of juries had been introduced in criminal cases, by the acclamation of the Assembly. Buonaparte found them, however, scrupulously restive and troublesome. There may be some truth in the charge, that they were averse from conviction, where a loop-hole remained for acquitting the criminal; and that many audacious crimes remained unpunished, from the punctilious view which the juries took of their duty. But it was from other motives than those of the public weal that Napoleon made an early use of his power, for the purpose of forming special tribunals, invested with a half-military character, to try all such crimes as assumed a political complexion, with power to condemn without the suffrage of a jury.[318] We have already alluded to this infringement of the most valuable political rights of the subject, in giving some account of the trials of Georges, Pichegru, and Moreau. No jury would ever have brought in a verdict against the latter, whose sole crime was his communication with Pichegru; a point of suspicion certainly, but no proof whatever of positive guilt. Political causes being out of the field, the trial by jury was retained in the French Code, so far as regarded criminal questions; and the general administration of justice seems to have been very well calculated for protecting the right, and punishing that which is wrong.

TAXATION—FOREIGN TRADE.

The fiscal operations of Buonaparte were those of which the subjects complained the most, as indeed these are generally the grievances to which the people in every country are the most sensible. High taxes were imposed on the French people, rendered necessary by the expenses of the government, which, with all its accompaniments, were very considerable; and although Buonaparte did all in his power to throw the charge of the eternal wars which he waged upon the countries he overran or subdued, yet so far does the waste of war exceed any emolument which the armed hand can wrest from the sufferers, so imperfect a proportion do the gains of the victor bear to the losses of the vanquished, that after all the revenue which was derived from foreign countries, the continual campaigns of the Emperor proved a constant and severe drain upon the produce of French industry. So rich, however, is the soil of France, such are the extent of her resources, such the patience and activity of her inhabitants, that she is qualified, if not to produce at once the large capitals which England can raise upon her national credit, yet to support the payment of a train of heavy annual imposts for a much longer period, and with less practical inconvenience. The agriculture of France had been extremely improved since the breaking up of the great estates into smaller portions, and the abrogation of those feudal burdens which had pressed upon the cultivators; and it might be considered as flourishing, in spite of war taxes, and, what was worse, the conscription itself.[319] Under a fixed and secure, though a severe and despotic government, property was protected, and agriculture received the best encouragement, namely, the certainty conferred on the cultivator of reaping the crop which he sowed.

It was far otherwise with commerce, which the maritime war, carried on so long and with such unmitigated severity, had very much injured, and the utter destruction of which was in a manner perfected by Buonaparte's adherence to the continental system. This, indeed, was the instrument by which, in the long run, he hoped to ruin the commerce of his rival, but the whole weight of which fell in the first instance on that of France, whose seaports showed no other shipping save coasters and fishing vessels; while the trade of Marseilles, Bourdeaux, Nantes, and other great commercial towns, had, in a great measure, ceased to exist. The government of the Emperor was proportionally unpopular in those cities; and although men kept silence, because surrounded by the spies of a jealous and watchful despotism, their dislike to the existing state of things could not entirely be concealed.[320]