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634
CODE NAPOLÉON

reported cases. To laymen, of course, the whole law is a sealed book. As there are no authoritative general principles, it happens that the few legal maxims known to the public, being apprehended out of relation to their authorities, are as often likely to be wrong as to be right. It is hopeless to think of making it possible for every man to be his own lawyer, but we can at least try to make it possible for a lawyer to know the whole law. The earlier advocates of codification founded their case mainly on the evils of judiciary law, i.e. the law contained in the reported decisions of the judges. Bentham’s bitter antipathy to judicial legislation is well known. Austin’s thirty-ninth lecture (Lectures, ed. 1869) contains an exhaustive criticism of the tenable objections to judiciary law. All such law is embedded in decisions on particular cases, from which it must be extracted by a tedious and difficult process of induction. Being created for particular cases it is necessarily uncomprehensive, imperfect, uncertain and bulky. These are evils which are incident to the nature of judiciary laws. The defective form of the existing statute law, moreover, has also given rise to loud complaints. Year by year the mass of legislation grows larger, and as long as the basis of a system is judiciary law, it is impossible that the new statutes can be completely integrated therewith. The mode of framing acts of parliament, and especially the practice of legislating by reference to previous acts, likewise produce much uncertainty and disorder. Some progress has, however, been made by the passing from time to time of various acts codifying branches of law, such as the Bills of Exchange Act 1882, the Partnership Act 1890, the Trusts Act 1893, and the Interpretation Act 1889.

The Statute Law Revision Committee also perform a useful work in excising dead law from the statute-book, partly by repeal of obsolete and spent acts and parts of acts, and partly by pruning redundant preambles and words. The construction of a section of an act may depend on the preamble and the context, and the repeal of the preamble and certain parts of the act may therefore affect the construction of what is left. This is provided for by a clause which is said to have been settled by Lord Westbury. It provides (in effect) that the repeal of any words or expressions of enactment shall not affect the construction of any statute or part of a statute. The lawyer, therefore, cannot rely on the revised edition of the statutes alone, and it is still necessary for him to consult the complete act as it was originally enacted.

The process of gradual codification adopted in India has been recommended for imitation in England by those who have had some experience of its working. The first of the Indian codes was the Penal Code (see Criminal Law), and there are also codes of civil and criminal procedure.

Whether any attempt will ever be made to supersede this vast and unarranged mass by a complete code seems very doubtful. Writers on codification have for the most part insisted that the work should be undertaken as a whole, and that the parts should have relation to some general scheme of the law which should be settled first. The practical difficulties in the way of an undertaking so stupendous as the codification uno coëtu of the whole mass of the law hardly require to be stated.

In discussions on codification two difficulties are insisted on by its opponents, which have some practical interest—(1) What is to be done in those cases for which the code has not provided? and (2) How is new law to be incorporated with the code? The objection that a code will hamper the opinions of the court, destroy the flexibility and elasticity of the common law, &c., disappears when it is stated in the form of a proposition, that law codified will cover a smaller number of cases, or will be less easily adapted to new cases, than law uncodified. The French system ordered the judges, under a penalty, to give a decision on all cases, whether contemplated or not by the code, and referred them generally to the following sources:—(1) Équité naturelle, loi naturelle; (2) loi romain; (3) loi coutumier; (4) usages, exemples, jugements, jurisprudence; (5) droit commun; (6) principes généraux, maximes, doctrine, science. The Prussian code, on the other hand, required the judges to report new cases to the head of the judicial department, and they were decided by the legislative commission. No provision was made in either case for incorporating the new law with the code, an omission which Austin justly considers fatal to the usefulness of codification. It is absurd to suppose that any code can remain long without requiring substantial alteration. Cases will arise when its meaning must be extended and modified by judges, and every year will produce its quota of new legislation by the state. The courts should be left to interpret a code as they now interpret statutes, and provision should be made for the continual revision of the code, so that the new law created by judges or directly by the state may from time to time be worked into the code.


CODE NAPOLÉON, the first code of the French civil law, known at first as the Code civil des Français, was promulgated in its entirety by a law of the 30th Ventose in the year XII. (31st of March 1804). On the 3rd of September 1807 it received the official name of Code Napoléon, although the part that Napoleon took in framing it was not very important. A law of 1818 restored to it its former name, but a decree of the 27th of March 1852 re-established the title of Code Napoléon. Since the 4th of September 1870 the laws have quoted it only under the name of the Code Civil.

Never has a work of legislation been more national in the exact sense of the word. Desired for centuries by the France of the ancien régime, and demanded by the cahiers of 1789, this “code of civil laws common to the whole realm” was promised by the constitution of 1791. However, the two first assemblies of the Revolution were able to prepare only a few fragments of it. The preparation of a coherent plan began with the Convention. The ancien régime had collected and adjusted some of the material. There was, on the one hand, a vast juridical literature which by eliminating differences of detail, had disengaged from the various French “customs” the essential part which they had in common, under the name of “common customary law”; on the other hand, the Roman law current in France had in like manner undergone a process of simplification in numerous works, the chief of which was that of Domat; while certain parts had already been codified in the Grandes Ordonnances, which were the work of d’Aguesseau. This legacy from the past, which it was desired to preserve within reason, had to be combined and blended with the laws of the Revolution, which had wrought radical reforms in the conditions affecting the individual, the tenure of real property, the order of inheritance and the system of mortgages. Cambacérès, as the representative of a commission of the Convention, brought forward two successive schemes for the Code Civil. As a member of one of the councils, he drew up a third under the Directory, and these projected forms came in turn nearer and nearer to what was to be the ultimate form of the code. So great was the interest centred in this work, that the law of the 19th Brumaire, year VIII., which, in ratification of the previous day’s coup d’état nominated provisional consuls and two legislative commissions, gave injunctions to the latter to draw up a scheme for the Code Civil. This was done in part by one of the members, Jacqueminot, and finally under the constitution of the year VIII., the completion of the work was taken in hand. The legislative machinery established by this constitution, defective as it was in other respects, was eminently suited for this task. Indeed, all projected laws emanated from the government and were prepared by the newly established council of state, which was so well recruited that it easily furnished qualified men, mostly veterans of the revolution, to prepare the final scheme. The council of state naturally possessed in its legislative section and its general assembly bodies both competent and sufficiently limited to discuss the texts efficiently. The corps législatif had not the right of amendment, so could not disturb the harmony of the scheme. It was in the discussions of the general assembly of the council of state that Napoleon took part, in 97 cases out of 102 in the capacity of chairman, but, interesting as his observations occasionally are, he cannot be considered as a serious collaborator in this great work.

Those responsible for the scheme have in the main been very successful in their work; they have generally succeeded in fusing