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CODES, LES CINQ. 



CODES, LES CINQ. 



low 



the order of arrest for an indefinite time. And as by Art. 75 of the 

 Consular Constitution of the year 8, any suit against the agents of 

 government was forbidden without an authorisation from the council 

 of state, there was in fact no redress against arbitrary acts." (' Hist, 

 de France sous Napoleon," vol. vii. pp. 124-9.) 



This last abuse is now corrected, or at least greatly mitigated. 

 Other provisions of the Code d'Instruction, as well as of the Penal 

 Code, have been also altered for the better by the law of 28 April, 



132, entitled ' Modifications aux Codes d'Instruction Criminelle et 

 Pe"nal,' which is found at the end of the later collections of the French 

 codes. 



The Code Penal, or laws defining crimes and punishments, was com- 

 pleted in January, 1810. Its discussion occupied forty-one sittings of 

 the council of state. Of these sittings Napoleon attended only one 

 (21 January, 1809); Carnbace'res presided at all the rest. "Napoleon 

 was therefore a stranger to its discussions ; he only expressed an opinion 

 that the laws ought to be concise, and leave much latitude to the 

 judges and the government in the application of the penalty, ' because,' 

 said he, ' men had feelings of compassion unknown to the law.' " He 

 insisted upon the penalty of confiscation being retained in certain 

 cases, because most nations had sanctioned it in cases of conspiracy, 

 rebellion, and false coining. " But the definition of crimes and offences, 

 the nature of the penalties, and the mode of their application, were 

 the work of criminal jurists, who were generally inclined to severity, 

 and were well acquainted with the ideas of Napoleon, who was per- 

 suaded that criminal legislation ought to be very rigorous in order to 

 maintain order and support the authority of the government." (Thi- 

 baudeau, vol. viii. p. 3.) Hence the penalty of death was fixed in 

 numerous cases, and those of perpetual imprisonment, hard work, or 

 transportation for life, in a still greater number. The pillory is also 

 one of the punishments. 



If we look at book iii. eh. 1, which treats of the crimes and offences 

 against the safety of the state (a term susceptible of indefinite and 

 arbitrary application), we find that the penalties of death and confis- 

 cation are fixed very generally. Confiscation however has been 

 solemnly abolished by a law passed under Louis XVIII. By the head, 

 " Des critiques, censures ou provocations contre 1'autorite" publique 

 dans un discours pastoral," any clergyman found guilty of having, in a 

 pastoral charge, sermon, or other public address, spoken or printed, 

 criticised or censured any act of the government authorities, is subject 

 to banishment, transportation, or even death, according to the con- 

 sequences which have resulted from his act. The following head, 

 "Resistance, de'sobe'issanee, et autres manquemeus envers 1'autoritd 

 publique," is equally severe. The article " Dclits commis par la voie 

 d'e'crits, images ou gravures, distribue's sans nom de 1'auteur," &c., 

 concerns the press, which was under a strict censorship in Napoleon's 

 time. After the Restoration the censorship was abolished, and several 

 laws were enacted to repress abuses of the press, especially in April 

 and October, 1831. An important law on this subject was promul- 

 gated in September, 1835, consisting of five heads : 1. Crimes, dtilits 

 et contraventions. 2. Du giSrant (editor) des journaux ou Merits 

 poriodiques. 3. Des desseins, gravures, lithographies, et emblemes. 

 4. Des theatres, et pieces de thdatre. 5. De la poursuite et du juge- 

 ment. It is printed at the end of a collection of codes, laws, &e., 

 published in 1835, and styled ' Les dix-huit Codes du Royaume.' The 

 last general law relating to the press was published on the 16th of 

 February, 1852, which contains some very stringent provisions, by 

 which, among other things, it is enacted that no journal or periodical 

 relating to political subjects or social economy shall be started or pub- 

 lished without the authorisation of the government ; that no foreign 

 journals on the same subjects shall circulate in France without the 

 same authorisation ; that all proprietors of such journals whose publi- 

 cation is allowed must deposit with the Treasury a certain sum in 

 cash by way of caution money ; and that for infringements of these 

 rules the punishment shall be imprisonment varying from one month 

 to a year, and a fine ranging from 100 fr. to 5000 fr. in each case. In 

 addition to these regulations, a stamp duty is imposed upon all journals 

 or periodical publications ; punishments by imprisonment and fine are 

 decreed for the publication of false news and fabricated documents. 

 Unauthorised accounts of the sitting of the senate, and all reports of 

 trials for press offences (which are merely to be mentioned) are inter- 

 dicted ; and all gerants, or managers of newspapers, are compelled to 

 insert at the head of their journals any official documents, of whatsoever 

 kind, that may be addressed to them by any public authority. The 

 32nd article specifies the regulations on the subject of the official con- 

 demnation of a journal for contraventions or offences of the press, one 

 short extract from which will give the reader a specimen of the spirit 

 of the whole law itself : " A journal may be suspended by ministerial 

 decision even when it has not been the subject of any condemnation, 

 after two formal notifications, and during a period which cannot 

 exceed two months." By the section of the Penal Code entitled ' Des 

 Associations ou Reunions illicites,' which continues in force to this day, 

 every association of more than twenty persons for the purpose of 

 meeting on fixed days to discuss either political, religious, literary, or 

 other subjects, is declared illegal, unless it first obtain the approbation 

 of the government, which can prescribe conditions and fix regulations 

 at its pleasure. The chiefs or directors of any such illegal association 

 are punished by fine. If at the meetings of such assemblies there has 



ABTS AND SCI. DIV. VOL. II. 



been any provocation to crimes or debits, as defined in the other articles 

 of the penal code, the chiefs or directors and administrators are liable 

 to imprisonment from three months to two years, besides fine, although 

 they themselves may not have been guilty of the offence. No indi- 

 vidual can lend his house or apartments for the meeting even of an 

 authorised association, unless he first obtain the permission of the 

 municipal authorities. By a law which passed the Chambers in April, 

 1834, the above regulations have been made even more strict Every 

 member of an illegal association is liable to a fine of 1000 francs, and 

 to imprisonment from two months to one year. For the existing 

 regulations on the subject, as comprised in the Code Pdnal and the law 

 of 1834, the reader is referred to the second volume of 'Les Codes 

 Francais Annote"es ' (edition 1850). Under the heads " Vagabondage " 

 and " Mendicit<5," vagrants are defined to be all those who have no 

 fixed domicile, nor means of subsistence, and who do not follow 

 habitually any trade or profession. On the legal evidence of being 

 such, they are condemned to an imprisonment of from three to six 

 months, after which they are " at the disposal of government." With 

 regard to mendicants or beggars, any person found begging in a place 

 where there is a workhouse or depot for the poor is subject to from 

 three to six months' imprisonment. But the next article is much 

 more liable to objection on the score of justice and humanity ; it runs 

 thus : In places and cantons where there is no depSt for the poor 

 (which is the case in most rural districts of France), able-bodied 

 beggars shall be imprisoned for a period of from one to three months ; 

 and if arrested out of the canton where they reside, they are im- 

 prisoned for a term of from six months to two years. By Article 402, 

 bankrupts not fraudulent are liable to imprisonment from one month 

 to two years. Brokers in the same situation are condemned to hard 

 work for a time. 



The law of France makes a wide distinction between native and 

 foreign insolvents in two important points : first, in the preliminary 

 proceedings of a suit, both as regards the person and the goods and 

 chattels of the foreigner; and secondly, as regards the term of im- 

 prisonment. For, as respects the first of these points, " when a French 

 subject claims a debt, no matter of what amount, of an alien, and pro- 

 duces in support of his claim written evidence, either of a nature held 

 to be conclusive, or of a character to raise a strong presumption in 

 favour of the claim, the French Tribunal witt, upon application, grant a 

 warrant of apprehension against the person of the alleged alien debtor, 

 unless the latter has an establishment in France. The court will also, 

 under the same circumstances, grant the claimant authority to seize 

 and hold in pledge, for his protection, the goods and chattels of his 

 alleged alien debtor." (' The Mercantile and Banking Law of France,' 

 p. 2; Davies and Laurent.) While, with regard to the second, 

 foreigners not domiciled in France, having no commercial establish- 

 ment or real property there, are liable to double the period of 

 imprisonment that a Frenchman is, namely, two years for a debt less 

 than 500 francs; four years for a higher sum under 1000 francs; six 

 under 3000 ; eight for less than 5000 ; and ten years for 5000 and 

 upwards. (Okey, ' Concise Digest of the Law, Usage, and Custom 

 affecting the Commercial and Civil Intercourse of the Subjects of 

 Great Britain anct France.') By the head ' Violations des re'glemens 

 relatifs aux manufactures, au commerce, et aux arts,' any coalition 

 between masters to lower wages is punished by a fine of from 200 to 

 3000 francs, besides imprisonment not exceeding a month. Coalition 

 among workmen, followed by an attempt to stop the works of a manu- 

 factory, is punished by imprisonment of from one to three months ; 

 the leaders or originators of the coalition or attempt are subject to 

 imprisonment from two to five years. By Article 417, any one who, 

 with the view of injuring French industry, has removed to a foreign 

 country the workmen or clerks of a manufactory, may be imprisoned 

 from six months to two years, besides paying a fine of from 50 to 300 

 francs. Article 418 : Any director, clerk, agent, or workman, of a 

 manufactory, who communicates to foreigners or to Frenchmen re- 

 siding abroad, any secret of the fabric in which he is employed, is 

 punished by a fine of from 500 to 20,000 francs, besides imprisonment 

 at the discretion of the court. Article 421 : All wagers or bets upon 

 the rise or fall of the public funds are punishable by imprisonment 

 from one month to one year, besides a fine of from 500 to 10,000 

 francs. The offenders may, after the expiration of their imprisonment, 

 be placed by sentence of the court under the surveillance of the haute 

 police from two to five years. This sentence, " placed under the sur- 

 veillance of the high or government police," which is added at the end 

 of numerous penalties, means that the person so placed is to give secu- 

 rity for his good conduct ; in default of which he is " at the disposal of 

 government," who may fix a particular place for his residence. AU 

 individuals who have undergone the punishment of hard work for a 

 time, or that of banishment or transportation, or those who hay_e 

 suffered a penalty for political crimes, are placed, de jure, under the 

 surveillance of the high police for the rest of their lives. 



The above extracts are sufficient to show the spirit in which the 

 French criminal code has been framed. It is, in fact, as harsh and 

 illiberal in many of its enactments as that of any absolute government 

 in Kurope. In speaking, therefore, of Napoleon's legislation, it is 

 necessary to discriminate between the civil and the criminal laws ; and 

 again between the laws themselves and the practice and rules of pro- 

 ceeding in the courts. The adoption of the French criminal code met 



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