296 



CODES. 



of 1791. Yet the three projects of Cambaceres, then 

 deputy, afterwards second consul, and finally grand 

 chancellor of the empire, in 1793, and 1795, did not 

 meet with approbation. The code of civil law was 

 prepared with the greatest care; its defects must, 

 therefore, be attributed to the then state of legal sci- 

 ence in France. The restoration has caused no essen- 

 lial changes in it, but only deprived it of its name, 

 Code Napoleon. A new official edition was prepared in 

 the Bulletin de$ Lois (vii. ser. ii. 109), in which, how- 

 ever, nothing but tin- expressions referring to Napoleon 

 and the imperial constitution was changed. A simi- 

 lar alteration had been made by Napoleon when he as- 

 sumed the imperial dignity. The only essential change 

 in the civil code down to the present time, is the aboli- 

 tion of the law of divorce, which, contrary to the prin- 

 ciples of the Catholic church, had been made entirely 

 free during the revolution, but had been subjected to 

 some restrictions during the reign of Napoleon. I f we 

 leave out of the question ecclesiastical considerations, 

 and examine the subject only in a moral point of view, 

 there can be no doubt that the sanctity and moral 

 dignity of matrimony are better secured by declaring 

 it dissoluble, under certain circumstances and with 

 the observance of proper restrictions, than by in- 

 creasing the mutual dislike of the parties, by making 

 the bond indissoluble, preserving thus the appear- 

 ance only, and not the essentials of marriage. Next 

 to the code of civil law, the code of criminal proce- 

 dure is particularly the creation of the spirit of the 

 time. The criminal ordonnance of 1670, by its se- 

 verity (allowing a double torture, the question pre- 

 paratoire, to compel confession, and the question pre- 

 alable, before the execution, to discover the accom- 

 plices), but still more by the manner in which it was 

 administered by the tribunals, had excited universal 

 indignation. The ambition of the higher courts, 

 winch aspired not only to the securing of independ- 

 ence for the judicial authority, but also to political 

 influence ; the pride of the judges in their infallibility, 

 and the esprit du corps, united the higher and lower 

 courts in endeavours to conceal and defend their 

 errors. The principle that confession was not neces- 

 sary for condemnation, but that circumstantial evi- 

 dence alone was sufficient (the exclusion of which 

 was the chief trait of the German code of criminal 

 procedure of 1532), was accompanied by many re- 

 volting abuses, and the execution of innocent per- 

 sons Lebrun, Langlade, Calas, Sirwen, Montbailli, 

 Labarre, Lally, and others. The authority of Bec- 

 caria and Voltaire, and the example of the English 

 criminal law, eulogized by Montesquieu and his dis- 

 ciples, were instrumental in bringing about a better 

 state of things. The abolition of torture, the com- 

 plete reform of the criminal courts and procedure, 

 was one of the first objects of the revolution. The 

 courts were modelled on the plan of the English, juries 

 were introduced, and an order of criminal procedure 

 (Sept. 29, 1791), which was followed (Oct. 6) by a 

 penal code, and (Oct. 21) by a complete instruction 

 on criminal procedure, was among the labours of'the 

 constituent assembly. Though several changes 

 have been made in the later laws on criminal pro- 

 cedure, in the Code des Delits et des Peines of Oct. 

 25, 1 795, and in single ordinances (see Dupin's Lois 

 criminelles extraites de la Collection du Louvre et du 

 Bulletin des Lois, Paris, 1321), nevertheless the rule 

 requiring, after a preliminary written trial, oral pro- 

 cess anot the verdict of a jury, remained unaltered, 

 and was preserved in the Code d 1 Instruction criminelle 

 of Napoleon, of Nov. 27, 1808. Still a general dis- 

 satisfaction prevails in France in regard to this 

 branch of the law, particularly as it is thought that 

 too much influence is left to the officers of govern- 

 ment in the choice of jurymen. Among many writ- 



ings against the French criminal law, some are very 

 distinguished (for instance, Berenger De la .fustic* 

 criminelle en France, Paris, 1818 ; Dupin's Observa- 

 tions sur plusicurs Points iwportans de notre Legisla- 

 tion criminelle, Paris, 1821). A greater conformity 

 with the English law is wished for by many, and is, 

 of course, much opposed by another party. The 

 penal law (Code penal) of the 22d of Feb., 1810, is a 

 modification of the earlier code of the 8th Oct., 1771, 

 and of the Code des Delits et des Peines, of the 25th 

 Oct., 1795. Before the revolution, there was no 

 penal code, but disconnected ordinances, and a theory 

 constructed chiefly on the Roman law, which, with 

 some mitigations of its severity in particular cases, is 

 also the foundation of the modern codes. The 

 penal code has also been repeatedly attacked ; the 

 codes being, of course, among the most prominent 

 subjects of party controversy. (Bavoux, in his 

 Lemons Preliminaires sur le Code penal, Paris, 1821.) 

 The code of civil procedure (Code de Procedure civile] 

 of April 24, 1806; is only a new version of the ordi- 

 nance of procedure of 1617, resting on the same 

 basis. The accusation, answer, replication, and the 

 statement of the points at issue, are managed by the 

 advocates, without the interference and direction of 

 the court. Written evidence is required by the 

 laws ; but the insufficiency of this kind of proof is 

 supplied by the liberty of demanding from the oppo- 

 site party, at every stage of the process, an explicit 

 statement respecting facts and circumstances (inter- 

 rogation fnr faits et articles'). This statement has 

 the same force, and is subject to the same conditions, 

 as if delivered on oath. The last declaration of the 

 parties is made verbally before the court, and, ac- 

 cording to rule, is followed immediately by the 

 judgment. The basis of this process is the same as 

 that of the German in earlier times, particularly be- 

 fore 1654, until the courts were obliged to examine 

 the accusation and defence, and the last oral pro- 

 cess was changed into a -written one. The Code de 

 Commerce, of the 20th and 21st September, 1807, is 

 a modification and extension of the above mentioned 

 ordinances of 1673 and 1681, on commerce and na- 

 vigation. These five codes have had a number of 

 commentators and editors. They are founded on 

 the basis of usage and experience, though it is evi- 

 dent, at least in the civil code, that it has been an 

 object to avoid the particular and incidental, and to 

 establish general principles. The ancient laws of 

 France are as indispensable for their illustration as 

 the history of their origin, the projects, the observa- 

 tions of the courts and of the tribunate, the discus- 

 sions in the council of state, and the speeches in the 

 legislative body. Most of these materials are 

 printed. At the same time, the history and study 

 of the French codes are indispensable for a right un- 

 derstanding of the French revolution, its real cha- 

 racter and tendency, as well as of the extraordinary 

 man whom it produced. It is worthy of notice, that, 

 in the discussions of the articles of the codes, we find 

 the consul Bonaparte, who usually partook in the 

 discussions, inclining, generally, to the milder side. 

 Besides the official editions, we have several editions 

 of single codes, and of the five codes together, of 

 which two deserve to be particularly mentioned, as 

 they contain, at the same time, useful annotations 

 and additions : Les Cinq Codes, annotes par Sirey 

 (1818, 5 vols. 4to.) ; and, as a manual, Manual du 

 Droit Francois, contenant la Charte Constitutionnelle et 

 les Cinq Codes, etc., par Pailliet (Paris, 5th edit., 

 August, 1821, 4to and 12mo). The history of the 

 French law has been given by Fleuri of Silberrad (in 

 his edition of Heineccius's Hist. Jur.), and by Ber- 

 nardi (De fOrigine et des Progrus de la Legislation 

 Fran$aise: Paris, 1818). The Code Forestier, 01 



