Chapter XXXVIII (1)

_View of the Internal Government of Napoleon at the period of the
Peace of Tilsit--The Tribunate abolished--Council of
State--Prefectures--Their nature and objects described--The Code
Napoleon--Its Provisions--Its merits and Defects--Comparison
betwixt that Code and the Jurisprudence of England--Laudable
efforts of Napoleon to carry it into effect._

[Sidenote: INTERNAL GOVERNMENT.]

At this period of Buonaparte's elevation, when his power seemed best established, and most permanent, it seems proper to take a hasty view, not indeed of the details of his internal government, which is a subject that would exhaust volumes; but at least of its general character, of the means by which his empire was maintained, and the nature of the relations which it established betwixt the sovereign and his subjects.

The ruling, almost the sole principle on which the government of Buonaparte rested, was the simple proposition upon which despotism of every kind has founded itself in every species of society; namely, that the individual who is to exercise the authority and power of the state, shall, on the one hand, dedicate himself and his talents exclusively to the public service of the empire, while, on the other, the nation subjected to his rule shall requite this self-devotion on his part by the most implicit obedience to his will. Some despots have rested this claim to universal submission upon family descent, and upon their right, according to Filmer's doctrine, of representing the original father of the tribe, and becoming the legitimate inheritors of a patriarchal power. Others have strained scripture and abused common sense, to establish in their own favour a right through the especial decree of Providence. To the hereditary title Buonaparte could of course assert no claim; but he founded not a little on the second principle, often holding himself out to others, and no doubt occasionally considering himself, in his own mind, as an individual destined by Heaven to the high station which he held, and one who could not therefore be opposed in his career, without an express struggle being maintained against Destiny, who, leading him by the hand, and at the same time protecting him with her shield, had guided him by paths as strange as perilous, to the post of eminence which he now occupied. No one had been his tutor in the lessons which led the way to his preferment--no one had been his guide in the dangerous ascent to power--scarce any one had been of so much consequence to his promotion, as to claim even the merit of an ally, however humble. It seemed as if Napoleon had been wafted on to this stupendous pitch of grandeur by a power more effectual than that of any human assistance, nay, which surpassed what could have been expected from his own great talents, unassisted by the especial interposition of Destiny in his favour. Yet it was not to this principle alone that the general acquiescence in the unlimited power which he asserted is to be imputed. Buonaparte understood the character of the French nation so well, that he could offer them an acceptable indemnification for servitude; first, in the height to which he proposed to raise their national pre-eminence; secondly, in the municipal establishments, by means of which he administered their government, and which, though miserably defective in all which would have been demanded by a nation accustomed to the administration of equal and just laws, afforded a protection to life and property that was naturally most welcome to those who had been so long, under the republican system, made the victims of cruelty, rapacity, and the most extravagant and unlimited tyranny, rendered yet more odious as exercised under the pretext of liberty.

To the first of these arts of government we have often adverted; and it must be always recalled to mind whenever the sources of Buonaparte's power over the public mind in France come to be treated of. He himself gave the solution in a few words, when censuring the imbecility of the Directors, to whose power he succeeded. "These men," he said, "know not how to work upon the imagination of the French nation." This idea, which, in phraseology, is rather Italian than French, expresses the chief secret of Napoleon's authority. He held himself out as the individual upon whom the fate of France depended--of whose hundred decisive victories France enjoyed the glory. It was he whose sword, hewing down obstacles which her bravest monarchs had accounted insurmountable, had cut the way to her now undeniable supremacy over Europe. He alone could justly claim to be Absolute Monarch of France, who, raising that nation from a perilous condition, had healed her discords, reconciled her factions, turned her defeats into victory, and, from a disunited people, about to become the prey to civil and external war, had elevated her to the situation of Queen of Europe. This had been all accomplished upon one condition; and, as we have stated elsewhere, it was that which the Tempter offered in the wilderness, after his ostentatious display of the kingdoms of the earth--"All these will I give thee, if thou wilt fall down and worship me."

Napoleon had completed the boastful promise, and it flattered a people more desirous of glory than of liberty; and so much more pleased with hearing of national conquests in foreign countries, than of enjoying the freedom of their own individual thoughts and actions, that they unreluctantly surrendered the latter in order that their vanity might be flattered by the former.

Thus did Napoleon avail himself of, or, to translate his phrase more literally, play upon the imagination of the French people. He gave them public festivals, victories, and extended dominion; and in return, claimed the right of carrying their children in successive swarms to yet more distant and yet more extended conquests, and of governing, according to his own pleasure, the bulk of the nation which remained behind.

To attain this purpose, one species of idolatry was gradually and ingeniously substituted for another, and the object of the public devotion was changed, while the worship was continued. France had been formerly governed by political maxims--she was now ruled by the name of an individual. Formerly the Republic was every thing--Fayette, Dumouriez, or Pichegru, were nothing. Now, the name of a successful general was of more influence than the whole code of the Rights of Man. France had submitted to murder, spoliation, revolutionary tribunals, and every species of cruelty and oppression, while they were gilded by the then talismanic expressions--"Liberty and Equality--Fraternization--the public welfare, and the happiness of the people." She was now found equally compliant, when the watchword was, "The honour of his Imperial and Royal Majesty--the interests of the Great Empire--the splendours of the Imperial Throne." It must be owned, that the sacrifices under the last form were less enormous; they were limited to taxes at the Imperial pleasure, and a perpetual anticipation of the conscription. The Republican tyrants claimed both life and property, the Emperor was satisfied with a tithe of the latter, and the unlimited disposal of that portion of the family who could best support the burden of arms, for augmenting the conquests of France. Such were the terms on which this long-distracted country attained once more, after its Revolution, the advantage of a steady and effective government.

The character of that government, its means and principles of action, must now be briefly traced.

It cannot be forgotten that Buonaparte, the heir of the Revolution, appropriated to himself the forms and modifications of the Directorial government, altered, in some degree, by the ingenuity of Siêyes; but they subsisted as forms only, and were carefully divested of all effectual impulse on the government. The Senate and Legislative Bodies became merely passive and pensioned creatures of the Emperor's will, whom he used as a medium for promulgating the laws which he was determined to establish. The Tribunate had been instituted for the protection of the people against all acts of arbitrary power, whether by imprisonment, exile, assaults on the liberty of the press, or otherwise; but after having gradually undermined the rights and authority of this body, after having rendered its meetings partial and secret, and having deprived it of its boldest members, Buonaparte suppressed it entirely, on account, as he alleged, of the expense which it occasioned to the government. It had, indeed, become totally useless;[307] but this was because its character had been altered, and because, originating from the Senate, and not from popular election, the Tribunate never consisted of that class of persons, who are willing to encounter the frown of power when called upon to impeach its aggressions. Yet, as the very name of this body, while it subsisted, recalled some ideas of Republican freedom, the Emperor thought fit altogether to abolish it.

[Sidenote: THE COUNCIL OF STATE.]

The deliberative Council of the Emperor existed in his own personal Council of State, of whose consultations, in which he himself presided, he made frequent use during the course of his reign. Its functions were of an anomalous character, comprehending political legislation, or judicial business, according to the order of the day. It was, in short, Buonaparte's resource, when he wanted the advice, or opinion, or information, of others in aid of his own; and he often took the assistance of the Council of State, in order to form those resolutions which he afterwards executed by means of his ministers. Monsieur de Las Cases, himself a member of it, has dwelt with complaisance upon the freedom which Buonaparte permitted to their debates, and the good-humour with which he submitted to contradiction, even when expressed with obstinacy or vivacity;[308] and would have us consider the Council as an important barrier afforded to the citizens against the arbitrary will of the Sovereign. What he has said, however, only amounts to this,--that Buonaparte, desirous to have the advice of his counsellors, tolerated their freedom of speech, and even of remonstrance. Mahmoud, or Amurath, seated in their divan, must have done the same, and yet would not have remained the less absolutely masters of the lives of those who stood around them. We have no doubt that Buonaparte, on certain occasions, permitted his counsellors to take considerable freedoms, and that he sometimes yielded up his opinion to theirs without being convinced; in such cases, at least, where his own passions or interest were no way concerned.[309] But we further read of the Emperor's using, to extremely stubborn persons, such language as plainly intimated, that he would not suffer contradiction beyond a certain point, "You are very obstinate," he said to such a disputant; "what if I were to be as much so as you? You are wrong to push the powerful to extremity--you should consider the weakness of humanity." To another he said, after a scene of argumentative violence, "Pray, pay some attention to accommodate yourself a little more to my humour. Yesterday, you carried it so far as to oblige me to scratch my temple. That is a great sign with me--take care in future not to drive me to such an extremity."[310]

Such limits to the freedom of debate in the Imperial Council of State, correspond with those laid down in the festive entertainments of Sans Souci, where the Great Frederick professed to support and encourage every species of familiar raillery, but, when it attained a point that was too personal, used to hint to the facetious guests, that he heard the King's step in the gallery. There were occasions, accordingly, when, not satisfied with calling their attention to the distant murmurs of the Imperial thunder, Napoleon launched its bolts in the midst of his trembling counsellors. Such a scene was that of Portalis. This statesman, a man of talent and virtue, had been eminently useful, as we have seen, in bringing about the Concordat, and had been created, in recompense, minister of religious affairs, and counsellor of state. In the subsequent disputes betwixt the Pope and Buonaparte, a relation of the minister had been accused of circulating the bulls, or spiritual admonitions of the Pope; and Portalis had failed to intimate the circumstance to the Emperor. On this account, Napoleon, in full council, attacked him in the severest terms, as guilty of having broken his oath as a counsellor and minister of state, deprived him of both offices, and expelled him from the assembly, as one who had betrayed his sovereign.[311] If any of the members of the Council of State had ventured, when this sentence rung in their ears, to come betwixt the dragon and his wrath, for the purpose of stating that a hasty charge ought not instantly to be followed with immediate censure and punishment; that it was possible M. Portalis might have been misled by false information, or by a natural desire to screen the offence of his cousin; or, finally, that his conduct might have been influenced by views of religion which, if erroneous, were yet sincere and conscientious--we should then have believed, that the Council of State of Buonaparte formed a body, in which the accused citizen might receive some protection against the despotism of the government. But when, or in what country, could the freedom of the nation be intrusted to the keeping of the immediate counsellors of the throne? It can only be safely lodged in some body, the authority of which emanates directly from the nation, and whom the nation therefore will protect and support, in the existence of their right of opposition or remonstrance.

The deliberations of the Council of State, or such resolutions as Buonaparte chose to adopt without communication with them, (for it may be easily supposed that they were not admitted to share his more secret political discussions,) were, as in other countries, adjusted with and executed by the ostensible ministers.

[Sidenote: PREFECTURES.]

But, that part of the organisation of the Imperial government, upon which Buonaparte most piqued himself, was the establishment of the Prefectures, which certainly gave facilities for the most effectual agency of despotism that was ever exercised. There is no mistaking the object and tendency of this arrangement, since Buonaparte himself, and his most bitter opponents, hold up the same picture, one to the admiration, the other to the censure, of the world. These prefects, it must be understood, were each the supreme governor of a department, answering to the old lieutenants and governors of counties, and representing the Imperial person within the limits of the several prefectures. The individuals were carefully selected, as persons whose attachment was either to be secured or rewarded. They received large and, in some cases, exorbitant salaries, some amounting to fifteen, twenty, and even thirty thousand francs. This heavy expense Napoleon stated to be the consequence of the depraved state of moral feeling in France, which made it necessary to attach men by their interests rather than their duties; but it was termed by his enemies one of the leading principles of his government, which treated the public good as a chimera, and erected private and personal interest into the paramount motive upon which alone the state was to be served by efficient functionaries. The prefects were chosen in the general case, as men whose birth and condition were totally unconnected with that of the department in which each was to preside; _les dépayser_, to place them in a country to which they were strangers, being an especial point of Napoleon's policy. They were entirely dependent on the will of the Emperor, who removed or cashiered them at pleasure. The administration of the departments was intrusted to these important officers.

"With the authority and local resources placed at their disposal," said Buonaparte, "the prefects were themselves emperors on a limited scale; and as they had no force excepting through the impulse which they received from the throne, as they owed their whole power to their immediate commission, and as they had no authority of a personal character, they were of as much use to the crown as the former high agents of government, without any of the inconveniences which attached to their predecessors."[312] It was by means of the prefects that an impulse, given from the centre of the government, was communicated without delay to the extremities of the kingdom, and that the influence of the crown, and the execution of its commands, were transmitted, as if by magic, through a population of forty millions. It appears that Napoleon, while describing with self-complacency this terrible engine of unlimited power, felt that it might not be entirely in unison with the opinions of those favourers of liberal institutions, whose sympathy at the close of life he thought worthy of soliciting. "My creating that power," he said, "was on my part a case of necessity. I was a dictator, called to that office by force of circumstances. There was a necessity that the filaments of the government which extended over the state, should be in complete harmony with the key-note which was to influence them. The organisation which I had extended over the empire, required to be maintained at a high degree of tension, and to possess a prodigious force of elasticity, to enable it to resist the terrible blows directed against it without cessation."[313] His defence amounts to this--"The men of my time were extravagantly fond of power, exuberantly attached to place and wealth. I therefore bribed them to become my agents by force of places and pensions. But I was educating the succeeding race to be influenced by better motives. My son would have been surrounded by youths sensible to the influence of justice, honour, and virtue; and those who were called to execute public duty, would have considered their doing so as its own reward."

The freedom of France was therefore postponed till the return of a Golden Age, when personal aggrandisement and personal wealth should cease to have any influence upon regenerated humanity. In the meanwhile, she had the dictatorship and the prefects.

The _impulse_, as Napoleon terms it, by which the crown put in action these subordinate agents in the departments, was usually given by means of a circular letter or proclamation, communicating the particular measure which government desired to be enforced. This was subscribed by the minister to whose department the affair belonged, and concluded with an injunction upon the prefect, to be active in forwarding the matter enjoined, as he valued the favour of the Emperor, or wished to show himself devoted to the interests of the crown.[314] Thus conjured, the prefect transmitted the order to the sub-prefect and mayors of the communities within his department, who, stimulated by the same motives that had actuated their principal, endeavoured each to distinguish himself by his active compliance with the will of the Emperor, and thus merit a favourable report, as the active and unhesitating agent of his pleasure.

It was the further duty of the prefects, to see that all honour was duly performed towards the head of the state, upon the days appointed for public rejoicings, and to remind the municipal authorities of the necessity of occasional addresses to the government, declaring their admiration of the talents, and devotion to the person of the Emperor. These effusions were duly published in the _Moniteur_, and, if examined closely, would afford some of the most extraordinary specimens of composition which the annals of flattery can produce. It is sufficient to say, that a mayor, we believe of Amiens, affirmed, in his ecstasy of loyal adoration, that the Deity, after making Buonaparte, must have reposed, as after the creation of the universe. This, and similar flights of rhetoric, may appear both impious and ridiculous, and it might have been thought that a person of Napoleon's sense and taste would have softened or suppressed them. But he well knew the influence produced on the public mind, by ringing the changes to different time on the same unvaried subject. The ideas which are often repeated in all variety of language and expression, will at length produce an effect on the public mind, especially if no contradiction is permitted to reach it. A uniform which may look ridiculous on a single individual, has an imposing effect when worn by a large body of men; and the empiric, whose extravagant advertisement we ridicule upon the first perusal, often persuades us, by sheer dint of repeating his own praises, to make trial of his medicine. Those who practise calumny know, according to the vulgar expression, that if they do but throw dirt sufficient, some part of it will adhere; and acting on the same principle, for a contrary purpose, Buonaparte was well aware, that the repetition of his praises in these adulatory addresses was calculated finally to make an impression on the nation at large, and to obtain a degree of credit as an expression of public opinion.

Faber, an author too impassioned to obtain unlimited credit, has given several instances of ignorance amongst the prefects; many of whom, being old generals, were void of the information necessary for the exercise of a civil office, and all of whom, having been, upon principle, nominated to a sphere of action with the local circumstances of which they were previously unacquainted, were sufficiently liable to error. But the same author may be fully trusted, when he allows that the prefects could not be accused of depredation or rapine, and that such of them as improved their fortune during the date of their office, did so by economising upon their legitimate allowances.[315]

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.

[Sidenote: 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.

[Sidenote: 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.

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.

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.

[Sidenote: TAXATION--FOREIGN TRADE.]