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Georgia Historical Society

THE CODE NAPOLEON Author(s): JUDGE BEVERLY D. EVANS Reviewed work(s): Source: The Georgia Historical Quarterly, Vol. 6, No. 1 (MARCH, 1922), pp. 28-34 Published by: Georgia Historical Society Stable URL: http://www.jstor.org/stable/40575708 . Accessed: 25/07/2012 04:26
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THE CODE NAPOLEON


JUDGE BEVERLY D. EVANS UnitedStates Court, District Georgia of Southern

The law is neithera trade, nor a solemnjugglery,but a science. It is founded greatphilosophical on bases, although that part of it which receivesits sanctionfromlegislative assembliesnotinfrequently if confuses, it does not confound, some fundamentalprinciple of civilization which should governman in his relationto his fellowmen. There exists and ever has existedamonglawyers,publicists, and philosoover the propriety and the beneficent phers a controversy of consequencesof the reduction the law into a single body of of law or code. One conception the originof law rests on the theoreticassumptionof a social contractsupposed to intoby menin a state of nature. Another have been entered is that law emanates only froma supremecivil conception that which what is rightand prohibiting powercommanding all law is of divine is is wrong.Still anotherconception that origin,whetherderivedfromnature or ordainedby God as revealedin the Holy Scriptures. But all schools of thought concurin the idea that the law should be so expressed as of to be mosteasily withinthe grasp and comprehension the and governedby it. The people intendedto be controlled law should never be, as the edicts of Caligula, hung upon high pillars beyondthe power of the people to read and to of know; nor be buried in the labyrinths hidden mystery in and development individresultingfromits formulation ual instances. of beforethe codification the French About two centuries between the heads of there was a sharp controversy law, the English equityand law courts Bacon and Coke as to cases. The the best formof judicial expressionof reported scholarly logician of the Chancery Court advocated the

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enunciation thecontrolling of of in principle theform maxto be appliedin thedecision subsequent of cases. The ims, that of was oftheopinion Justice theLaw Court greatChief each case was m{ generisan(*that onlyconfusion could result from application a maxim seriesof maxims, the or of eachofwhich couldnotextend all themultiform features to of the particular case. One greatadvantageof the code is thatit furnishes of like something a standard authority where noneexists. is Themostcelebrated before CodeNapoleon the the code the CodeofJustinian. furnished material This codelargely of theCodeNapoleon, a passingreference it is justito and fiable. In the earlyyearsof his reign, commisJustinian sioned withtheasthe of Tribonian, ablestlawyer his time, of of sistance Theophilus, professor thelaw school Cona in and a in stantinople, Dorotheus, professor the law school ofBerythus, other and to the associates, codify Romancivil law. Theyundertook do thisby collecting imperial to the constitutions the Romanemperors, of remodelled as to so eliminate and contradiction, confusion, repetition disorder. to the commentaries Supplementarythiswork, authoritative ofthejurists and wereharmonized published under title the of Pendects Digests. Based on the foregoing, comor the mission evolved systematic a on treatise thewholebodyof law in elementary formforthe guidance students of and which putforth was under titleof "Institutes." the lawyers, Thesebooks werefollowed the"Novels"or newlaws,and by the wholeconstitutes what is known the Corpus as Juris of The was Civilis Justinian. Romanlaw as thusexpressed thebestand noblest of development theRomancivilization. with It hada longcontest, over extending a thousand years, of of the theforces barbarism.It survived blindbrutality the MiddleAges and now dominates greaterpart of the world. thecivilized of after greatwork Justinian the About twelve centuries was giventhe sanction law by imperial of edict,the Code
Napoleonwas promulgated.It was on March 31, 1804, that the FrenchCivil Code was declaredto be the law of France.

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On September 1807,it received official the titleof the 3, downfall lawwas passed CodeNapoleon.After a Napoleon's the but of restoring original 27, name, a decree March 1852, reestablished titleof CodeNapoleon.It goesnowunder the thenameoftheFrench CivilCode. of cause for the preparation the Perhapsthe inducing an was CodeNapoleon established authoritative oflaw, body all and to remove uncertainties to legal doctrines.The as acof revolutions Francewhichpreceded Napoleon's great conof theancient had overthrown cessionto power many of manyof theroyalordinances ceptions law; had rejected eminence. to individualism a dangerous and had advanced had oftheoldregime beenalleviaof The severities thelaw to ted in certain by provinces exceptions generallaws and and usages. The local customs of the recognition binding had The law of Francewas in greatconfusion. old regime a to plan attempted prepare comprehensive of law basedon and and of theresults thelaborsofTribonian, had collected of assemblies adjustedsomeof thematerial.The twofirst to themselves thetaskof unifying addressed theRevolution of the law,butwereable to prepare onlya fewfragments it. There existedwhen the great Corsicanbecame first of a consul vast juridical literature, expository thecommon and decrees law of Franceand manydiscordant customary fromthe disturbed political resulting naturally statutes, Volof conditions.This condition affairs quite justified laws in Francehad to change thata traveler taire'ssarcasm horses. The wantof a triaboutas oftenas he changed as bunal whosedecisions mightbe received of authority cause of theretenhad beena principal France, throughout in tion of those diversities local customs,which had of divisions the territorial the regulated different formerly the undertook removal The NationalConvention country. of ofthecauseoftheseuncertainties doctrine, theestabby of the Courtof Cassationforthe reviewof the lishment of of departjudgments theCourt Appealofall theseveral a ments. But this courthad been in existence littleover
ten years when Napoleonappointedhis code commissioners,

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andbesides, remedy correcting of theseevilsbyjudicial the decision was inadequate. Verysoonafterhis accessionto poweras First Consul, or a Napoleonappointed commission, councilof state, to preparea code of laws for the FrenchEmpire. In comto noticeof theirappointmunicating the commissioners the themthatthe First of informed ment, Minister Justice in Consuldesiredthat the workshouldbe performed the of manner.The arrangement titleswas promptest possible soonsettled adopting planoftheInstitutes Justinof the by ian in thegeneral of divisions the code. The subjecttitles were(1) OfPersons, OfProperty ofdifferent kinds and (2) of acquiring of ownership, (3) Of the different and ways the this Following general arrangement, prelimproperty. of inary draught the CivilCodewas madein fourmonths. of in This draught, themain,was an adoption the textof the Romanlaw,or its approved glosses,exceptwherethe old local jurisprudence adheredto. By this judicious was the were plan the commissioners enabledto complete prewithin sucha shortperiod. The draught liminary draught was nextsubmitted thelocalcourts appealof each of to of the departments, then one hundred more in number. or These tribunals theirobjections, reported freely proposed and amendments madesuggestions.The draught was also submitted theCourt Cassation, also revised and to of who it in detail theirviews. Afterwards, original the reported of with draught thecommissioners, all thesereports, passed under revision thesection legislation theCouncil the of of of of State,composed the President theCourtof Cassaof of tionand sevenothereminent jurists. The wholematter the of before Council State,whereeach thenwas brought or titlewas either by passedas reported amended a majorof overby Napovote. The Council Statewas presided ity his by leon,or during absence, ConsulCambaceres.Thirty in members participated thediscussions.Napoleon personof in in allyengaged many them. His intervention thedisor cussionwas usuallyupon questionsin whichdirectly or was interest more less concerned* some indirectly political

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He gavehisreasons his opinionsthey for werecogent, and, ; to report, withclearness precision. and according expressed The form thelaw having it of beenthusdetermined, was fromthe Councilof State to the Tribunate, transmitted where was againthesubjectof consideration discusit and sion. The viewsoftheTribunate to werethenreported the Council State,who passed on such amendments the of as had Tribunate suggested.After proposed had been law the thusagain passeduponin the Council State,it was preof sentedto the legislative chamber. Beforethis finalstate of thebusiness, laws "themotives" each of theproposed of formby "oratorsof the had been set forthin pamphlet the fouryearsof discussion, different After government." into acts wereconsolidated a single bodyof laws. The code of was as thusexpressed a fusion customary laws,of royal and and laws of the Revolution, of the vital ordinances, withremarkable law of private expressed principles Roman of are clearness and brevity. So dominant the principles is element noteven theRoman thatthepeculiar law French of characteristic thework. than in more complete Never was Napoleon'striumph withered of his codeof law. The laurels Marengo longago forever and the sun that blazedin gloryuponAusterlitz set on the fatal fieldof Waterloo. Exiled upon a lonely that thoughhe of island,he had the satisfaction feeling worldcould was shearedof political the combined empire notshakeoff empire law. his of has The influence the CodeNapoleon beenverygreat of not onlyin France but also abroad. Belgiumwas living underit, whenthe ruthless of successor Attillalaid his armsuponthatprosperous country.The Dutch, desolating codeshavetakenit fora model.The Italianand Portugese and SouthAmerica Spanishcode and the codesof Central influence of are virtual reproductionsit. It has hada potent and manyof the law on the boastedcommon of England, law of principles the Englishcommon have been restated of withsomeof its greatpostulates natural in consonance the equity. In ourowncountry, lawsof theStateof Louis-

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iana are but its reflection the greatstateof California and has incorporated of muchof it in its system jurisprudence. When feuof burst cerements itsancient the Japan suddenly dalismand copiedenthusiastically political institutions the of Englandand America, repudiated Englishcomthe she monlaw and turned theCodeNapoleon guidance and for to direction theformulation hersystem jurisprudence. in of of the Withthe exception the UnitedStates and England, of o on withmore less qualification account or CodeNapoleon, worldthe local circumstances, governs civilized practically and for It is especially noteworthy its simplicity clearness* of statement.It has beenthesubjectof heatedcontroverin Europe,in sies, but its adoption Centraland Southern of is evidence its Centraland SouthAmerica, irrefutable greatmerit. the solvedtheproblem prescribing of The CodeNapoleon covered its provisions, law in thosecases not expressly by on the byrequiring judgesto givedecision all caseswhether or them genercontemplated notby theCodeand referring loi sources: (1) "Equit naturelle, ally to the following law, (3) Ancient customs, Usages, (4) naturelle, Roman (2) and jurisprudence, Droitcommon, decisions (5) examples, and doctrines science. The Codehas produced (6) Maxims, whichhas developed system of a a number commentaries, to of of equitable extension its basic principles conditions for. In this way the Code undernot expressly provided thatmayarisein thecomplextakesto meetevery question civilization. itiesof modern of edition of literaltranslation the original An excellent was made by a barrister the Inner of the Code Napoleon in and It London, maybe found theStatelibrary. Temple, and 2281sections in bulkit is aboutthree-fourths contains of the size of one of our GeorgiaReports. I was particuof withthe amount space givento the matter larlystruck and the under title"Of Persons/' to the subject of divorce of of "Contracts Marriage"underthe titleof "Modesof diProperty."The Code Napoleonrecognized Acquiring where vorceby mutualconsent. This was onlyallowable

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the marriagerelationhad continued two years and for the where husband was overtwenty-five and thewife years was"betweentwenty-one forty-five and years. The provisionfor a consentient withmanyreis divorce guarded strictions. It was underthese provisions that the great to a divorced childless his wifein order contract Emperor secondmarriage thehopeto establish dynasty. in a -Inthecourseof myreading have examined I essaysand the in the booksin which motive Napoleon causing Code of to be prepared in was brought question. One prominent of writer attributes inducing the cause forthepreparation this monumental workto the vanity the First Consul. of The emperors Justinian Theodosius and had promulgated codesthat had perpetuated theirglory and names. These codeshad beenfollowed the Prussian bore by Code,which the name of the greatFrederick, whomalone of modern as to strategists, Napoleon regarded entitled beara comparison with himself. But the prevalent is opinion that the of a Consulforesawthe necessity providing stable First warshould ceaseandhis prodigious mind statewhen appreciated that such a resultcouldonlybe securedby laws and in certain statement, and equitable just in theirscope, motiveis impartialin their execution. The Emperor's in becausewhenan ratherto be found the latterconcept, that the best monument exile at St. Helena he declared was for which had erected himself thepromulgation of he theCodeNapoleon.