Much has been written on the merits and defects of this celebrated code. In order to judge of its value, we ought to read the reports of the discussions in the council of state by the most distinguished jurists of France. (Locr6, Esprit du Code Napoleon tire de la Discussion, 6 vols. 8vo., 1805; and Malleville, Analysis raisonnee de la Discussion du Code Civil an Conseil d'Etat, 4 vols., 8vo., 1807.) On the other side, several distinguished German jurists have pointed out its im perfections. (Savigny, On the Aptitude of our Age for Legislation, translated from the German by a barrister of Lin coln's Inn ; Rehberg, Lieber den Code Napoleon, Hanover, 1814 ; Thibaut, Schmidt, &c.) With regard to the part which Bonaparte took in its discussion, not as a professional man, but as a quick sighted observer and critic, a lively ac count is given in Thibaudcau's Memoires sur le Consulat, in which his own original expressions are preserved.
Code de Procedure Civile.—The Code de Prooddure is divided into two parts. The first part treats of the various courts • 1st. Uf the justices of peace and their jurisdiction. There are about 2840 of these magistrates in France, whose powers are very similar to those of magistrates in England in matters of police ; but they also decide petty cases not exceeding 200 francs, and in certain cases not exceeding 100 francs their decision is without appeal. They also act as conciliators between parties at variance, who are not allowed to take proceedings in a court without having first appeared before the juge de paix. 2nd. Of the process before the tribunaux de premiere instance, which try civil cases without jury. There is one of these courts in every arrondisse ment. 3rd. Of appeals to the Cours Royales, of which there are 27 estab lished in the larger towns, each having several departments under its jurisdic tion : these courts try cases by jury. 4th. Of various modes of judgment. 5th. Of the execution of judgments. The second part treats of the various processes for the recovery of property, separation be tween husband and wife, interdiction and cession of property by an insolvent debtor. Foreigners are excluded from the benefit of the cessio bonorum. The code then passes to the subject of inheritance, the affixing of seals, taking inventories, &c. The last book treats of arbitration.
The Code de Procedure was in great measure founded on the ordonnance pro mulgated in 1667 by Louis XIV., but with considerable ameliorations. It was framed by a commission appointed in 1800, then discussed in the council of state and the tribunate, and lastly passed by the legislative body. It was put in force in January, 1807. The expenses, duties, fees, &c. attending civil process are now regulated by the Code des Frais. The principal reproach made against the Code de Procedure is the multiplicity of formalities, written acts, registrations, stamps, &c. Another objection is, that in actions in which the state is concerned, it has advantages over private parties. But the publicity of the discussions, the security to all civil proceedings by means of regis tration, the well-defined authority of the various courts, the independence of the judges, and the establishment of local courts all over the country, and above all the institution of the supreme Court of Cassation—these are essential and lasting advantages.
The Code de Commerce was promul gated in January, 1808. It was founded in some measure upon the ordonnances of 1673-81 of Louis XIV. On account of the many modifications which the Code of 1805 had undergone, a new text of the Code was promulgated in January, 1841. The Code de Commerce is considered the best part of French legislation. The insti tution of the commercial tribunals has been of great advantage to France, and has been adopted in other countries. These courts, of which there are 213, consist of a presi dent and two or more judges, all chosen by the merchants among themselves, and for a limited time ; they are not paid, but the greffier or registrar receives a salary. The Code de Commerce consists of four books : the first treats of commerce in general, of the various descriptions of commercial men, of the keeping of books, of companies and partnerships, of brokers, commissioners, carriers, &c. ; the second treats of maritime commerce, shipping, insurances, bankruptcy, &c. ; the third concerns bankruptcies ; and the fourth treats of the commercial tribunals, their jurisdiction and proceedings. By a law of April, 1839, appeals in matters above 1500 francs (formerly 1000 francs) lie to the Cour Royale of the district.
Code d' Instruction Criminelle.—The criminal laws of France under the mo narchy were defective, confused, and arbi trary. There was no penal code, but there were various ordonnances for the punishment of particular offences. The ordonnance of Louis XIV. for regulating proceedings in criminal cases introduced something like uniformity, but it main tained torture and secret trial. Torture was abolished by Louis XVI. The first National Assembly in 1791 recast the cri minal legislation, introduced the trial by jury, and remodelled the criminal courts after those of England. Bonaparte, when First Consul, appointed a commission, consisting of Viellard, Target, Oudard, Treilhard, and Blondel, to frame a crimi nal code. The fundamental laws were drawn up in 1801, and were then dis cussed in the council of state. Bonaparte took a lively part in these first discussions, especially on the institution of the jury, which he strongly opposed on the ground of the probable incapacity or party spirit of jurors : he looked upon the question in a political rather than a judicial light. Portalis, Simeon, Bigot de Preameneu, and Segur sided with Bonaparte. Treil hard, Berlier, Defermon, Cretet, Bdrenger, Merlin, and Louis Bonaparte defended the jury. There is an interesting account of this discussion in Thibaudeau (vol. vii. pp. 88, &c.). The question being put to the vote, the majority was in favour of the jury. The matter, however, was finally settled by suppressing the jury d'accusation, or grand jury, and retaining the jury de jugement. The jurors are
taken from the electors who are qualified to vote for a member of the legislature, graduates in law, medicine, and other sciences, notaries, members of the Insti tute, and of other learned bodies recog nised by the State, officers on half-pay who have been domiciled for five years in the department, and whose pay amounts to 1200 francs a-year, &c. A list of per sons so qualified is made out by the pre fect of the department, from which the President of the Cour Royale, or of the Cour d'Assise, selects the number required to serve. The proceedings in criminal trials are partly written and partly oral. The accused is first brought before the procureur du roi (king's attorney), who examines him, and simply reports the case to the juge d'instruction, without giving any opinion upon it. At the same time, if the accused is charged with a crime punishable with personal and de grading penalties, he orders his detention. For mere delits or misdemeanors, bail is allowed. The juge d'instruction summons and examines the witnesses, and then sends back the report to the procureur du roi, who makes his remarks on the case, which is then laid before the chambre de conseil, consisting of three judges of the tribunal de premiere instance. These judges investigate the case minutely, and decide if there is ground for further pro ceedings. In such case the report is laid before the chambre d'accusation, composed of five judges of the Cour Royale, who ultimately decide for commitment or ac quittal. If committed for a crime punish able by peines afffictives or infamantes, the prisoner takes bis trial before the next tour d'assise of the department. If for mere debt or misdemeanor, he is sent before the correctional tribunal. The courts of assize consist of two of the judges of the Court of First Instance of the town, and the president is a member of the Cour Royale of the department. Their sessions are held every three mouths in the chef lieu of each department. The jury vote by ballot, and decide by a majority on the fact of the charge ; eight constitute a majority. The mode of voting was regu lated by a new law, May, 1836. The court then awards the sentence, having a discretion between a maximum and a minimum penalty. By a law passed in 1831 the court was prohibited from setting aside the verdict of the jury and referring the case to a new trial ; but by the law of September, 1835, the judges can order the case to be tried at the next assizes by a new jury, when they must pronounce sen tence according to the verdict, although it may not differ from that of the first jury. The prisoner may challenge twelve jurors. One or two juges d'instruction are attached to each court of assize for criminal cases ; they are generally taken from among the juges de premiere instance, and for a definite time only. The Code d'Instruc bon Criminelle consists of the following books : 1. Of the judiciary police and the various officers whose duty it is to inquire after offences, collect the evidence, and deliver the prisoners to the proper courts. These officers are very numerous, includ ing the maires and their assistants, the commissaries of police, the rural guards and forest-keepers, the justices of the peace, the king's attorneys and their sub stitutes, the juges d'instruction, &c. It also treats of the manner of proceeding by the king's attorney, as already stated ; and of the juge d'instruction and his functions. Book 2 treats of the various courts ; tri bunaux de simple police, which take cog nizance of petty offences, and can inflict imprisonment of not more than five days, and a fine not exceeding fifteen francs ; tribunaux en matiere correctionelle, which are composed of at least three judges of the tribunaux de premiere instance, and take cognizance of ddlits or Jibs& ineanurs, the penalties for which are defined in the Code Penal ; and tours d'assise, already mentioned, from which there is an appeal for informality or want of jurisdiction to the Court of Cessation. The corers ape claim, or exceptional courts, which Napo leon insisted upon having at his disposal, and which were often resorted to after the Restoration, are abolished by Art. 54 of the Charts of 1830. These special courts were assembled in cases of armed rebellion against the authorities, and they also took cognizance of the offence of coining, and of crimes committed by vagabonds and convicts who have escaped ; they were composed of a president taken from among the judges of the Cour Royale, four judges, and three military officers of the rank of captain or above. They tried without jury, judged by majority and without appeal, and the sentence was executed within twenty-four hours. The Chamber of Peers, by virtue of Art. 28 of the Charte, sits as a court of justice in matters of high treason and attempts against the safety of the State. On the subject of the Code d'Instruction, Thibau dean observes that it retained many of the ameliorations introduced by the National Assembly, especially the publicity of trial and the institution of the jury. Its chief Wilts are, the Feat number of officers, whose business it is to follow up offenders, by which circumstance the citizens are often exposed to vexatious interference ; the too great extent given to the jurisdic tion of the correctional courts, by which, in many cases, the citizens are deprived of the security of the jury ; the restrictions on the choice of jurors, which is too much in the power of prefects and other local authorities ; and, lastly, the frequent abuse of the power of the police, by which its agents could issue warrants of arrest. This last abuse is now corrected, or at least greatly mitigated. Other provisions of the Code d'Instruction, as well as of the Penal Code, have been also altered for the better by the law of April 28, 1832, entitled 'Modifications aux Codes d'In struction Criminelle et Penal,' which is found at the end of the later collections of the French codes.