The Napoleonic Code, 1804
His legal reforms were encapsulated in the Code Napoleon (Napoleonic Code). This was defined by March 1804 as a codification of new laws established to replace the mish-mash of old feudal, royal and religious laws that had all been overlaid by Revolutionary laws.
There had never been one set of laws in France, before they had been either inherited from Roman Law or established by the feudal system and by local custom, driven by local legal precedent. . These local coutumes had been assembled in various regions in the 13th and 14th century into the coutume de Paris, coutume de Normandie, coutume d’Orléans…
The coutumes were in fact overruled by all manner of royal and local noble dictats in the form of charters, exemptions and privileges. There had also evolved two quite distinct sets of laws in the north and the south of the country, essentially defined by the course of the Loire river.
The 17th and early 18th century had seen the establishment of a plethora of ordinances on the administration of justice, criminal procedures, commerce, mercantile commerce, on wills and gifts… Not to forget the Catholic Church laws on marriage and family life.
But of course the French Revolution had abolished feudalism and stirred up nobles and the Catholic Church. As a result it had also dispensed with the organisations that acted like a slurry to slow or halt change. The Revolution had introduced an intermediate set of laws that focused on individual liberty, equality before the law and the protection of property rights – adding 15,000 new laws.
Jean-Jacques Régis de Cambacérès had therefore been appointed by the Revolutionary National Council to look at rationalising this confusion and had reported several times through the 1790s. His early proposals were rejected as complicated and not sufficiently radical. His later versions were not even considered because the focus of necessity had been on quelling internal rebellion and external wars.
Enlightenment thinkers like Montesquieu and Rousseau had suggested that legislation should be reason made concrete. Plus of course they focused on the Rights of Man, the separation of the major areas of government and that governments should be held to the account of the people.
Other European nations had produced legal codes during the second half of the 18th century, but Napoleon went back to the 6th century for his inspiration and the Corpus Juris Civilis established by the Byzantine emperor Justinian I, or Justinian the Great).
He declared that a new code was required that could be read and understood by every man (who could read!), that would define for every citizen what was expected of them in terms of their conduct.
In 1800 he replaced the elected representatives for each département by a Prefect, that was selected by Napoleon himself. This gave him control at the centre of local taxes and administration. It also gave him valuable roles that he could offer to powerful individuals who might otherwise become opponents.
He appointed four jurists to develop the approach, it was chaired by Cambacérès (also serving as second Consul to Napoleon). The members were François-Denis Tronchet (a Northern lawyer), Jean-Étienne-Marie Portalis (from Provençe and considered something of a philosopher), Félix-Julien-Jean Bigot de Préameneu (from Rennes and pro the coutume laws) and Jacques Maleville (from Bordeaux and favouring Southern Roman Law). However Louis-Joseph Faure (a Parisian judge) is also suggested to have been one of the ‘four’ jurists who worked on the Code (perhaps he took over from Portalis who was virtually blind?).
They met at the home of Tronchet and their watchword was that they wanted to be useful rather than novel. They opined that there had been rather a cult of reforms and changes in recent years. They declared they would leave much to usage, as lawyers could and would argue out the finer points before judges. They had their first draft in just four months.
[Author’s aside: Félix-Julien-Jean Bigot de Préameneu became Minister of Religious Affairs in 1808 – interesting role for a Bigot!]
The Code was presented to others to refine the draft and then to the Conseil d’Etat (Council of State) where it discussed it over six months; over half of the sessions chaired by 32 year-old Napoleon. Because the Code was presented for approval in parts there was much delay and it was formally adopted in March 1804.
The code had 2,281 articles and 120,000 words was separated into books and titles.
Book One was ‘Of Persons’ and its 500+ Articles established that there should be religious freedom and that there should be no privileges based on birth. Anyone appointed to a government role should be based on their qualifications for the role.
Book Two was ‘Of Property, and the Different Modifications of Property’ had circa 200 articles.
Book Three was ‘Of the Different Modes of Acquiring Property’ with a stunning 1500+ articles on forms of contract, wills and gifts…
Clearly with 1,700 of the 2,200 articles relating to property this was the prime concern of the time and of the Code. Napoleon was seeking with these articles to tie the various parts of the fractured French society together and to him.
The Revolution had taken the land from the Church and the nobility and had sold half of this on to the peasantry. Those who had purchased this land were concerned that a return to the monarchy would see them lose their rights in their new land. This was why property ownership was declared in the Code as exclusive and perpetual. They could relax, Napoleon was on their side – provided that they were on his.
The ‘notables’ (the bourgeoisie, merchants, professionals…) were the major taxpayers and he needed them on side too. The Code meant their land ownership rights were also assured. Napoleon went on to offer their sons lucrative roles in his government, to further win them to his cause. Contented notables meant that they would carry the general peasantry along with them.
If you were not a property owner then you were not at all protected, because there was no wage or working conditions’ legislation included in the Code – they had no right of complaint by striking and trade unions had been banned.
Napoleon progressively created a new aristocracy with some 3,600 new titles tactically awarded. As he conquered more provinces and countries he created new governorships and realms that could be distributed. The large majority of these were awarded to military colleagues.
Légion d’honneur – The French Revolution had disbanded all chivalrous orders which had become mistrusted as centres of dissent.
As First Consul in 1802 Bonaparte decided to establish an order of merit that would replace these old systems. He looked back at Roman legions for inspiration and concluded it should be open to all ranks and professions (three women are said to have been inducted in to the Order). He also decided to avoid the past Christian icons in the design of the medals.
He created the Ordre national de la Légion d’honneur (the Legion of Honour) with the motto Honneur et Patrie (Honour and Fatherland).
It has five degrees: Chevalier (Knight), Officier (Officer), Commandeur (Commander), Grand Officier (Grand Officer), and Grand Croix (Grand Cross). The recipients also received generous payments.
Napoleon did little to advance the cause of agriculture which was the most significant employer of the peasantry of France and a major contributor to its GDP. Fortunately, for him, France generally enjoyed good harvests during his reign which kept prices low and the peasantry gainfully employed. There were two poor harvests. In 1802/3 but this coincided with his bringing of peace to Europe which quelled any unrest. The second was in 1811/2 when a poor harvest added to his military setbacks would lead to serious disturbances.
The ‘Of Persons’ part of the Code also suggested that it guaranteed equality before the law; this was true unless you happened to be illegitimate, a wife or a foreigner; none of these had full civil rights.
A wife had to obey her husband, while the husband had to protect the wife. But perhaps the most evident declaration of the difference before the law, was that if a wife was guilty of adultery she could be imprisoned for up to two years, but a husband would just be fined – from as little as one hundred francs. Worse, if a husband found his wife in flagrante delicto he could kill her and not face any court.
Divorce was not really a desirable option, it was decried by the Church and made complicated by the Code (essentially only being permitted for adultery). The rate of divorces sharply declined following the Code to well below prior levels.
The father had to educate their children and he held sway over their property. However in death the Code prescribed how a husband’s property must be passed on proportionately to family members. A son had to seek his father’s permission to marry until he was 25, a daughter until she was 21.
One oddity was that the Code defined certain crimes where the citizen would be punished by morte civile (civil death). This was declared where the accused had fled from arrest or were being tried in absentia. They were not executed but no longer able to own or sell property, any marriage was dissolved, any children declared orphans. This oddity was abandoned in 1854.
The Napoleonic Code was not just about France, based on Napoleon’s military advances it was introduced across Europe. In this he was following the Roman example that applied its laws to its conquered states. It was to be his lasting legacy. He himself commented when imprisoned on St Helena, ‘My glory is not to have won forty battles, for Waterloo’s defeat will blot out the memory of as many victories. But nothing can blot out my Civil Code. That will live eternally.’
The Code was later expanded to include the Code de Procédure civile in 1806, the Code de Commerce in 1807, the Code Pénal in 1810 and the Code d’Instruction Criminelle in 1811. These have mostly been considered as being not as well considered as the original.
Napoleon was himself a keen propagandist and so realised the power of the press. He moved quickly to control it by first reducing the number of permitted political newspapers and magazines to just a list of thirteen. He then proscribed many subjects that they could discuss on their pages. The Ministry of General Police were appointed to monitor them closely. Books, dramas and posters all had to pass the censor before any publication was permitted.
He was himself prodigious in issuing letters and reports that appeared in Le Moniteur, his official government newspaper. In this way he made sure his agenda was out there and that any note of discord was severely constrained.
Le Moniteur – Charles-Joseph Panckoucke was a publisher of repute. He owned the Mercure de France, a gazette and literary magazine that had been published since 1672. He had also resurrected the Encyclopédie méthodique, described as a systematic dictionary of the sciences, arts, and crafts.
He saw the success of Hugues-Bernard Maret’s launch of the Bulletin de l’Assemblée, which reported on the debates and decisions of the National Assembly. He approached Maret and together they expanded this in to the ‘Gazette Nationale ou Le Moniteur Universel’. In December 1799 Napoleon declared it as an official government newspaper.
The Judiciary was shaken up too, as part of Napoleon’s new thinking judges were to be appointed and monitored by the government. This of course drove a ‘coach and horses’ through the Enlightenment’s key principles of separating the powers of government.
The Ministry of General Police was established but this was not what we would consider as policing today. They were there to manage the media censorship, they keep files on all dissidents and to monitor all potential opponents. As Napoleon’s military conscription became ever-more demanding this ministry also took on the role of dealing with deserters.
He received daily intelligence reports from the ministry. But then, just to be sure, he spied on his spies – having the Prefecture of Paris monitor and report on the General Police.
Bonaparte’s vision was becoming ever more evident, it was a dictatorship rather than any form of enlightened democracy. But the various elements of the citizenry were lulled in to accepting this provided he maintained order internally, brought victory and the spoils of war externally.