Code Napoleon

CODE NAPOLEON, the first code of the French civil law, known at first as the Code civil des Francais, was promulgated in its entirety by a law of the 3oth Ventose in the year XII. (March 21, 1804). On Sept. 3, 1807, it received the official name of Code Napoleon, although the part that Napoleon took in framing it was not very important. A law of 1818 restored to it its former name, but a decree of March 27, 1852, re-established the title of Code Napoleon. Since Sept. 4, 187o, the laws have quoted it only under the name of the Code Civil.

Never has a work of legislation been more national in the exact sense of the word. Desired for centuries by the France of the ancien regime, and demanded by the cahiers of 1789, this "code of civil laws common to the whole realm" was promised by the constitution of 1791. However, the two first assemblies of the Revolution were able to prepare only a few fragments of it. The preparation of a coherent plan began with the Convention. The ancien regime had collected and adjusted some of the material. There was, on the one hand, a vast juridical literature which by eliminating differences of detail, had disengaged from the various French "customs" the essential part which they had in common, under the name of "common customary law" ; on the other hand, the Roman law current in France had in like manner undergone a process of simplification in numerous works, the chief of which was that of Domat ; while certain parts had already been codified in the Grandes Ordonnances, which were the work of d'Aguesseau. This legacy from the past, which it was desired to preserve within reason, had to be combined and blended with the laws of the Revolution, which had wrought radical reforms in the conditions affecting the individual, the tenure of real property, the order of inheritance and the system of mortgages. Cambaceres, as the representative of a commission of the Convention, brought for ward two successive schemes for the Code Civil. As a member of one of the councils, he drew up a third under the Directory, and these projected forms came in turn nearer and nearer to what was to be the ultimate form of the code. So great was the interest centred in this work, that the law of the i9th Brumaire, year VIII., which, in ratification of the previous day's coup d'etat nominated provisional consuls and two legislative commissions, gave injunctions to the latter to draw up a scheme for the Code Civil. This was done in part by one of the members, Jacqueminot, and finally under the constitution of the year VIII., the comple tion of the work was taken in hand. The legislative machinery established by this constitution, defective as it was in other re spects, was eminently suited for this task. Indeed, all projected laws emanated from the Government and were prepared by the newly established Council of State, which was so well recruited that it easily furnished qualified men, mostly veterans of the Revolution, to prepare the final scheme. The Council of State naturally possessed in its legislative section and its general as sembly bodies both competent and sufficiently limited to discuss the texts efficiently. The corps legislati f had not the right of amendment, so could not disturb the harmony of the scheme. It was in the discussions of the general assembly of the Council of State that Napoleon took part, in 97 cases out of 102 in the ca pacity of chairman, but, interesting as his observations occasion ally are, he cannot be considered as a serious collaborator in this great work.

Those responsible for the scheme have in the main been very successful in their work ; they have generally succeeded in fusing the two elements which they had to deal with, namely ancient French law, and that of the Revolution. The point in which their work is comparatively weak is the system of hypothec (q.v.), because they did not succeed in steering a middle course between two opposite systems, and the law of March 23, 1855 (sur la transcription en matiere hypothecaire) was necessary to make good the deficiency. A fault frequently found with the Code Civil is that its general divisions show a lack of logic and method, but the division is practically that of the Institutes of Justinian, and is about as good as any other : persons, things, inheritance, con tracts and obligations, and finally, in place of actions, which have no importance for French law except from the point of view of procedure, privileges and hypothecs, as in the ancient coutumes of France, and prescription. It is, mutatis mutandis, practically the same division as that of Blackstone's Commentaries.

Of late years other objections have been expressed ; serious omissions have been pointed out in the code ; it has not given to personal property the importance which it has acquired in the course of the i9th century ; it makes no provision for dealing with the legal relations between employers and employed which mod ern complex undertakings involve; it does not treat of life in surance, etc. But this only proves that it could not foretell the future, for most of these questions are concerned with economic phenomena and social relations which did not exist at the time when it was framed. The code needed revising and completing, and this was carried out by degrees by means of numerous im portant laws. In 1904, after the celebration of the centenary of the Code Civil, an extra-parliamentary commission was nomi nated to prepare a revision of it, and at once began the work.

(J. P. E.) Dissemination of the Code.—The influence of the Code Civil has been very great, not only in France, but also abroad. It should be remembered that when the Revolution broke out France had for a century and a half held, almost without a rival, the leading place among the nations of the world. Her language was well on the way to succeeding Latin as the common speech of civilized men; her literature, her arts, the fascination of her culture, the splendour of her capital city, the devotion of her missionaries, held all mankind spell-bound. Yet her law had no admirers or imitators in other countries. Few foreigners thought it worth while to study her meagre legal literature; few students from abroad sought admission to her law-schools. The Revolution and the empire, by the alarm which they excited and by the spirit of nationalism which they stimulated in other countries, went far to forfeit for France the pre-eminence which she had won and was winning by peaceful penetration. But the code saved the situa tion; and ever since its promulgation (March 21, 1804), France has exerted an incomparable influence upon the institutions and legal culture of the civilized world. Indeed, until the promulga tion of the German civil code (Aug. 24, 1896) the Code Napoleon has been without a competitor as a model for law reformers throughout all parts of the world outside the British empire and the United States. In the absence of an English code, the English common law has, in spite of the great place which it occupies, found acceptance in no country outside the circle of those which, by reason of conquest, or of colonization, possess English-speak ing rulers. The 19th century was pre-eminently an age of nation making. In Europe it saw the creation or the unification of Ger many, Italy, Belgium, Rumania, Bulgaria and Greece; on the American continent it saw the Spanish and Portuguese colonies transformed into 15 new nations; and in the East it witnessed Japan, Siam, Turkey and Egypt attempting with greater or less success to grasp the secret of European pre-eminence. Of these 25 nations almost all sought to mark their succession to political maturity, and to proclaim their adherence to the European world, by a general revision and codification of their laws ; and in most cases the model followed was that furnished by the Code Na poleon. The code was attractive in form ; it was written in French; it was, or seemed to be, easy to understand ; it bore the name of the greatest man of the age; it claimed to be catholic, rational, imperial and universal; it was secular without being irreligious and democratic without being revolutionary. In short, according to the ideas of 19th-century liberalism, it set forth in chapter and verse the fundamental articles of the social contract.

Nor did the code have to rely upon its intrinsic merits alone. The reorganization of the French educational system, and par ticularly of the universities, which constituted one of Napoleon's principal achievements, created law-schools which in their turn produced an imposing literature of exposition and commentary on the code. This literature has been an important factor in pro moting the adoption and assimilation of the code by foreign countries.

The Napoleonic Empire.

When first promulgated in 1804, the French code came automatically into force in all those coun tries which were at that time subject to the empire. These were Belgium, Luxemburg, the Palatinate, those parts of Rhenish Prus sia and Hesse-Darmstadt which were situated on the left bank of the Rhine, the territory of Geneva, Savoy, Piedmont and the duchies of Parma and Piacenza. Napoleon subsequently promul gated the code in the following countries as they were successively conquered: Italy (by decree of March 3o, 1806) ; Holland (Oct. 18, 1810), the Hanseatic departments (senatus-consultum of Dec. 13, 181o) ; grand duchy of Berg (decree of Dec. 17, 181I) . The following countries adopted the code proprio motu, though doubt less under some pressure, before the fall of the empire: West phalia, Hanover, the grand duchies of Baden, Frankfurt, Nassau and Warsaw, several of the Swiss cantons, the free city of Danzig, the Illyrian provinces and the kingdom of Naples.

The blows delivered at Leipzig (1813) and Waterloo (1815 ) to French prestige gave a check, but only for a short time, to the dissemination of the code. In many parts of Italy, for example, the Restoration Governments revived the old laws; but they were speedily compelled to recognize that the clock could not be put back in so violent a fashion, and to revert to codes on the French model. The code of the two Sicilies (1819), the code of Parma, promulgated by the ex-empress, Marie-Louise, in 1820, the im portant Sardinian or "Albertine" code promulgated for Piedmont in 1848, and the civil code of Este (1851) all bear the mark of French influence. These essays in legislation led up to and were replaced by the general civil code for the new kingdom of Italy which came into force on Jan. 1, 1866. The similarity of this code, which is still in force, to the French code is particularly marked in all those parts in which both remain closest to Roman law, i.e., in the sections treating of obligations and real rights. The degree of this similarity may be judged by the fact that for some years past a committee composed of French and Italian jurists has been engaged in the preparation of drafts with a view to a uniform re vision of those parts of the two codes which relate to the law of obligations.

Europe After Waterloo.

The restitution, after Waterloo, of their possessions on the left bank of the Rhine, to Prussia and the German States, was not followed by the abandonment of the French code, which remained in force until replaced in 1900 by the general code for the German empire. In Baden the Code Napoleon was transmuted and preserved, without substantial change, in the Badisches Landrecht and in this form had a simi larly long lease of life. The code not only remained in force in this country, but was the subject of influential exposition. The Com mentary of Zachariae, a Heidelberg professor, published in 1808 was the first general treatise on the code in any language. Not only was it destined to reappear in numerous successive editions in German, but it served as the basis for the French Commentary of Aubry and Rau, of which the last edition, completed in 1922, still bears on the title page "d'apres la methode de Zachariae." Puchelt's Zeitschri f t f iir franzosisches civilrecht, founded in 187o and published at Mannheim, continued to appear till early in the present century.

Egypt.

Egypt offers an example of the reception not only of the Code Civil, but of its four companion codes, by a people totally alien to Europe in all cultural traditions. When, in the Egyptian Government obtained the consent of the Powers to the institution of the mixed tribunals, it was agreed without de bate that the only possible law with which to equip them was that of the French code. The Code Civil, as adapted for application by the new tribunals, was shorn of all matters relating to personal status and to the effects on property of marriage and death. In 1883, the year following the British occupation, the French codes were extended, in a form almost identical with that adopted by the mixed courts, to the newly organized native jurisdiction. The result of this twofold "reception" of the French codes has been that for the last 5o years Egypt has looked to French text-books, to French judicial decisions and in a large measure to French professors, for the progressive elucidation of the law. It is largely for this reason that in spite of the British occupation the social and cultural influence of France has remained supreme in that country. It has been remarked that proposals for innovation made by English advisers have as often met with opposition on the ground that they offended against the principles of French law as on the ground that they trespassed against the sacred law of Islam.

Japan.

The course of events in Japan has been different, and even more instructive. One of the first acts of the Restoration Government, so early as 1870, was to cause the Code Napoleon to be translated, and to send for French jurists to supervise the administration of justice and to organize legal education. Though not promulgated as law, the French code in this way and in the absence of any serious rival, either indigenous or foreign, acquired great authority from the beginning of the new regime. In 188o there was published a draft civil code, prepared by M. Boissonade, a member of the French legal mission. This code, though it, too, was not promulgated as law, exercised for 16 years as great an influence in the country as if it had been legally in force, and was treated by the judges as a statement of the principles of natural reason and equity. Meanwhile, concurrently with the academic teaching of French law, provision had been made by the Japanese Government for instruction in Anglo-American law at the Uni versity of Tokyo.

In 1892 M. Boissonade's code was on the eve of being put into force, when the Diet voted that it should be submitted to a further revision. This decision appears to have been due to dissensions between the French and English schools of legal thought. The result was that when the revised code was finally promulgated in 1896 it was found to be neither English nor French but German in inspiration.

Competition of German Civil Code.

This dénouement was symbolic. The German civil code, published in its final form in 1895, was the first serious rival which Napoleon's code had had to encounter. As compared with its French predecessor, the German code had the advantage derived from a century of progress in legal science; it was a more carefully thought out piece of work; it was greatly superior in arrangement; it distinguished more clearly between substance and accident, between principle and ap plication; in short, it was a more scientific piece of work. There are strong indications that it may now be taken to have replaced the French code as the model for future essays in codification. The Swiss civil code, for example, which bears date Dec. 1 o, 1907, is largely modelled on the German code, though in form it is shorter and simpler. The Turkish republic has adopted it, almost without alteration, as the civil code of Turkey. (M. S. A.) BIBLIOGRAPHY .-V. A. and P. A. Dalloz, Code civil (3 vols., 1873Bibliography.-V. A. and P. A. Dalloz, Code civil (3 vols., 1873- 90) and Additions au code civil (1911, etc.) in Jurisprudence Generale (1873, etc.) ; Le code civil: llvre du centenaire vol. ii. (19o4) ; E. Black wood Wright, The French Code Civil as amended up to 1906 (trans. with notes, 1908) ; M. Planiol, Traite elementaire de droit civil francais, 6th ed. vol. i. pp. S3 et seq.