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CODES, LES CIXQ. 



CODES, LES CIXQ. 



the council of state and the tribunate, rod lastly passed by the legi- 

 Utive body. It was put in force in January, 1807. " An orator ol 

 the government, usin^ the licence of flattery, aaid in hi report that 

 the principal difficulties in definitively settling the code had been 

 cleared up by the emperor himself, who had adapted the forms to the 

 prewnt wants of society. The fact is that Napoleon took no part in 

 the discussion of thin code, which WM conducted during his journeys 

 to Italy and to the camp of Boulogne, and during the campaign of 

 Aurterlitz. Bended, it wai a dry and unattractive subject, very unlike 

 that of the Civil Code, and the emperor finding himself a complete 

 novice in it, gave it up entirely t.. pn.fefwional lawyer*. His general 

 view* would have been to simplify the forms, and to check the source* 

 of chicanery, but he was not heeded. One of his ideas was that soli- 

 citors and counsellors should not be paid unless they gained the cause. 

 The routine lawyers, however, had too much influence in the work." 

 (Thibaudeau, ' Histoire de France sous Napoleon,' vol. v., pp. 124-5.) 

 The government afterwards published a table of the expenses, duties, 

 feet, Ac., attending civil process. The table, which is given at the end 

 of the collection of the codes, presents a formidable appearance by the 

 multiplicity and minutenes of the charges which attend every step of 

 legal proceedings. Indeed this is the principal reproach made against 

 the Code de Procedure, the multiplicity of formalities, written acts, 

 registrations, stamps, Ac. 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 registration, 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 advantage 

 an excellent resume" and criticism of the Code de Procedure, the reader 

 is referred to the ' Law Magazine, or Quarterly Review of Jurispru- 

 dence' (1829), p. 454, eiteq,; and for a practical explanation of its 

 different articles to ' Les Codes Francais annotees ' (Teulet, D'Anvilliers 

 et Sulpicy), vol. 2. 



The CW rf< Commerce was promulgated in January, 1808. Its 

 principal elements were drawn from the two celebrated ordonnances of 

 Jxmis XIV., for which France is indebted to the genius of Colbert ; 

 that of 1673 relating to land commerce, and that of 1680 to maritime. 

 Next to the Civil Code, it is considered the best part of French legis- 

 lation. The institution of the commercial tribunals has been of great 

 advantage to France, and lias been adopted in other countries. These 

 courts, of which there are 213, consist of a president and two or more 

 judges, all chosen by the merchants among themselves, and for a time ; 

 they are not paid, bat the greffier or registrar receives a salary. The 

 Code de Commerce consists of four books: the first treats of com- 

 merce in general, of the various descriptions of commercial men, of the 

 keeping of books, of companies and partnerships, of brokers, commis- 

 sioners, earners, Ac. ; the second treats of maritime commerce, ship- 

 ping, insurances, Ac. ; the third concerns bankruptcies ; and the fourth 

 treats of the commercial tribunals, their jurisdiction and proceedings. 

 Appeals for cases above 1 000 francs lie to the cour impe>iale of the dis- 

 trict. As the subject of French mercantile law generally has no small 

 claim on the attention of the civilised world, more especially on that 

 'f our own merchants and lawyers, a reference to some of the leading 

 French authorities on the Code de Commerce may not be without ito 

 use; of these, the treatises of Pardeania and Boulay-Paty, on com- 

 mercial law ( Cours du droit Commercial '), deserve the first place 

 from the reputation of the authors, and the extent of the subject dis- 

 cussed' in their jnges. On the code itself M. Isidore Alauzet has 

 published a commentary (' Commentaire du Code de Commerce '), in 

 which each article is discussed and illustrated separately. M. Delangle 

 has selected the third title of the 1st book, for a learned explanation 

 of mercantile partnerships; whilst the wdllcnown treatise of M..M*. 

 Locrf, ' Esprit du Code de Commerce,' exhausts the subject as it was 

 known to the public of 1811. Two Kn1i.-H treatises of recent date 

 ought not to be passed over, Mr. Leoni Levy's work on ' Comi< 

 Law,' and a very useful little treatise called ' The Mercantile and 

 Bankrupt Law of Franco,' by H.-nry Hivi,- and I'.inil.- l.:nii.nf. 



rinrtriKiiwi Crlminrllt. The criminal laws of France under 

 the old monarchy were defective, confused, and arbitrary. There was 

 no penal code, but there were various ordonn r punishment 



of particular offences. The ordonnancc of Louis XIV. tor rtxulatini? 

 proceedings in criminal cases, introduced' something like uniformity. 

 but it maintained torture, which in some cases was repeated, secret 

 trial, and other anomalies of the legislation of the middle ages. Torture 

 was abolished l.y I...MH XVI. The first National Assembly in 17'.'! 

 recast the criminal lrxisl.it i..n. introduced the jury, and remodelled the 

 criminal courts after those of England Then came the reign of terror, 

 with its exceptional lawn, or rather no laws at all but the cap 

 the ruling faction. Bonaparte, when first consul, ap|>ointed a com- 

 mission, omfetfau of Viellanl, Target, Oudard, Trcilhard, and Blond.-]. 

 to frame a project for a criminal code. The fundamental laws w.-n- 

 laid down in 1 sftl , and were then discussed in the council of state. 

 Bonaparte took a lively part in these first discussions, especially on 

 the question of the institution of the jury, which he strongly opgiosed 

 on the ground of the probable incapacity or party spirit of juror* : he 

 looked upon the question in a ]x>liticaf rather than a judicial light. 

 Portalis, Simeon, Bigot de Preameneu, and Segur sided with Bonaparte. 



Treilhard, Berlier, Defermon, Crttet, Berenger, Merlin, and Louis 

 Bonaparte defended the jury. There is an interesting account of t hi- 

 discussion in Thibaudeau (vol. vii. p. 88, Ac.); and in 1. 'Kn. -y.-lopddie 

 du droit' (1845), torn. iv. art. Codes Francais, pp. 877-78. The ques- 

 tion being put to the vote, the majority was favourable to 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 token from the electors who are qualified to vote for a 

 member of the legislature, graduates in law, medicine, and 

 sciences, notaries, Ac., and must be 80 years of age, and in the full 

 enjoyment of all political and civil rights. A list of persons so quali- 

 fied is made out by the prefect of the department, from which the 

 President of the Cour Impdriale, 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 (attorney-general), who examines him and simply 

 reports the case to the juge d'instruction, without giving any opinion 

 <i]xn> it. At the same time, if the accused is charged with a crime 

 punishable with personal and degrading penalties, he orders his deten- 

 tion. For mere delita or misdemeanours, bail is allowed. The juge 

 d'instruction summons and examines the witnesses, and then sends 

 back the report to the procureur, who makes his remarks on the 

 cose, 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 

 proceedings. In such cose the report is laid before the chambre 

 d'accusation, composed of five judges of the Cour Imperial.-, who ulti- 

 mately decide for commitment or acquittal. If committed for a crime 

 punishable l.y peines afftictives or infomantes, the prisoner takes his 

 trial before the next cour d'aasise of the department. If for mere 

 delit or misdemeanour, he is sent before the correctional tribunal. Tin- 

 courts of assize consist of a president and three judges, chosen from 

 among the members of the Cour 1 mperiale and of the tribunal de pi < 

 instance, and their sessions are held every three months in the chief 

 lieu of each department. The jury decide by a majority on the fact 

 of the charge ; eight constitute a majority. The court then awards 

 the sentence, having a discretion between a maximum and a minimum 

 penalty. By a law passed since 1830 the court can no longer recon- 

 ,-i'l.T the verdict of the jury, as was the case before. The prisoner, or 

 his counsel for him, may challenge the jurors as they are called pen-nip- 

 torily, but as soon as all the list of jurors, save twelve, is gone through, 

 the challenges, whether on the port of the accused or the prosecution, 

 cease. One or two jnges d'instruction are attached to each court of 

 assize for criminal cases ; they ore generally taken from among the 

 juges de premiere instance, and for a definite time only. The Code 

 d'instruction Criminclle consists of the following books : 1. Of the 

 judiciary police and the various officers whose duty it U to inquire 

 after offences, collect the evidence, and deliver the prisoners to the 

 proper courts. These officers are very numerous, including the raaires 

 and their assistants, the commissaries of police, the rural guards and 

 forest-keepers, the justices of the peace, the procureurs and their 

 substitutes, the jugcs d'instruction, Ac. It also treats of the manner 

 of proceeding by the procureur as already stated, and of the juge 

 d'instmction and his functions, distinguishing between cases of flagrant 

 crime and others. Book 2 treats of the various courts ; tribunaux de 

 simple police, which take cognisance of petty offences, and can inflict 

 imprisonment of jiot more than five days, and a fine not exceeding 

 fifteen francs ; tribunaux en matiere correctionnelle, which are com- 

 posed of at least three judges of the tribunaux de premiere instance, 

 and take cognisance of dt'-litx or misdemeanours, the penalties fur which 

 are defined in the Code Penal ; cours d'assise, already mentioned, from 

 which there is an appeal for informality or want of jurisdiction to the 

 Court of Cassation; lastly, the cours speciales or .exceptional courts, 

 which Najmleon insisted upon having at his disposal, and which li..\ .- 

 been resorted to repeatedly since the Restoration, and still appear on 

 the code. These sjwcial courts are assembled in cases of armed rebel- 

 lion against the authorities, but they also take cognisance of the offence 

 of coining and of crimes committed by vagabonds and convicts who 

 have escaped ; they are composed of a president taken from among the 

 judges of the Cour Impe'riale, four Judges, and three military officers of 

 the rank of captain or above. They try without jury, jud^.- l>y m.i 

 jority and without appeal, and the sentence is executed v* itlun I v 

 four hours. On the subject of the Code d'lnstructiou , ThiUiudeau 

 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 faults ore, the great numlT of uftirrrs, some of 

 them merely administrative; who are charged with the pursuit of 

 is, by which circumstance the citizens are often exposed to 

 i-xatious interference ; the too great extent given to the jurisdiction 

 f the correctional courts, by which, in many cases, the citizens are 

 deprived of the guarantee afforded by the jury ; the restrictions on 

 the choice of jurors, which Is too much in the power of prefects and 

 other local authorities^ the institution of the special OOUrtlj 

 lastly, the frequent abuse of the power of the police, by win 

 agents could issue warrants of arrest. 



" Prefects and commissar}- -generals of police often had individuals 

 arrested, and left them in prison waiting for the decision of the 

 minister of police, who answered at his leisure, or at times confirmed 



