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ART. VII.—1. Code Civil, suivi de l'Exposé des Motifs sur Chaque Loi présenté par les Orateurs du Gouvernement, &c. 11 Tomes, 12mo. à Paris. 1809.
2. Conference du Code Civil avec la Discussion particuliere du Conseil d'Etat et du Tribunat, &c. 8 Tomes, 12mo. à Paris. 1805.
Code de Procedure Civile. 2 Tomes, 12mo. à Paris. 1808.
Code Pénal, suivi des Motifs présentés par les Orateurs du Gouvernement, &c. 2 Tomes, 12mo. à Paris. 1812. Code d' Instruction Criminelle, suivi des Motifs, &c. 12mo. 1809.
6. Code de Commerce. 2 Tomes, 12mo. 1812.
7. Les cinq Codes avec Notes et Traités pour servir à un Cours complet de Droit Français; à l'Usage des Etudians en Droit, et de toutes les Classes de Citoyens cultivés. Par J. B. SIREY. Avocat aux Conseils du Roi, et à la Cour de Cassation. 8vo. Paris. 1819.
We know not the individual to whose character justice is so little likely to be done, as Napoleon Bonaparte. The child of the French Revolution, he is, by most persons, confounded with its active leaders. The criminality of its horrid excesses fixes on him, as on the most prominent individual, that owed his advancement to that Revolution. It is difficult to induce men to reflect, that the most revolting of these excesses were perpetrated while Bonaparte was at school; and that though he did not bring the Revolution to a close, by restoring the Bourbons, he brought it still more effectually to a close, by crushing its parties, reviving many useful institutions, which it had destroyed, and reorganising the government of the country. It is very easy to charge him with being a tyrant and an oppressor; the changes are easily rung upon his ambition, conquest and devastation of foreign states, the conscription, and the murder of the Duke d' Enghien, It is in no degree our design to defend him from the real or imaginary guilt, imputed in these or any similar charges. We are even free to confess, that we do not think Napoleon possessed the true sentiment of greatness.
He was not a Washington. But he was an Alexander, a Cæsar, a Frederick the Great; as brave as the bravest, and as good as the best of them. He governed by no very good title; but it was a better one, than that, by which any prince in Europe sits on his throne. We presume the most enthusiastic friend of legitimate monarchy does not believe, that if the right to reign of Charles Tenth, George Fourth, or Alexander, were put to the vote of the male population of their several states, of the age of twentyone years and upwards, either of these sovereigns would unite as many unbribed suffrages, as those which proclaimed Bonaparte Emperor. He ruled, and they rule, by the right of the strongest and that alone.
But it is too prevalent an impression, that Napoleon owed his advancement, and his continuance in power, solely to his talent as a military chief; that it was merely a military despotism, in which he held France and the continent of Europe enslaved. Fairly analysed and explained, indeed, this impression is just enough. No one can suppose that, but for his military talents and success, he could either have reached or maintained his throne. In a form a little modified, the condition of every prince in Europe is the same. There is not one of the leading sovereigns, who could reign a day, without his standing army. Without the horse guards, London itself would not be habitable. Nor does it seem to us, in point of principle, to matter much, whether the Head of the government be maintained in his power, by an army, fascinated with the splendor of his military qualities—if you please, by the glory and plunder, which that army has acquired under his command; or by a standing army in the legitimate sense of the word, a redcoated rabble, hired out of the jails and the brothels.
difference is not worth a straw.
To an American citizen the
Nevertheless it is true, that Napoleon Bonaparte rose to his greatness by many qualities, besides and above those of the military chieftain; and which, had his fame in war been less, would unquestionably have given him a great name as an administrator, a financier, and a statesman. We presume there is nothing paradoxical in this remark; nothing violently absurd in the intimation, that, because he did not emanate from the Faubourg St Germain, he was therefore as stupid and senseless as the handle of his own sword. We are
willing to grant, that the nature of the part, which he was called to play, led to a far more imposing development of his military, than of his political talents. Much still and
secluded meditation is necessary for the formation of a sound politician. This advantage Napoleon did not enjoy; but here again we doubt, whether the noble stir of camps and battles be more unfriendly to true philosophical meditation on politics or on anything else, than the importunate gossipings and small intrigue, that eat up the life of a cabinet politician. The Duke of Marlborough was a truly great man. One sordid vice only weighed down his soul to the dust; and makes it impossible to love, admire, or praise him, without a woful parenthesis. But he was a great man, and more like Napoleon Bonaparte, in the versatility of his greatness, than any other person of the last century or of this. The reader of his life may judge what part of his career was best adapted to form and mature the statesman; the contemptible intrigues in the cabinet of St James, or the wars in Germany and Flanders. The truth seems to be that action,-the responsible control and management of great interests,-is the school of great minds. Small caballing, even in the offices of a department, does not form a good discipline for anything, not even for the business of the department itself.
It is well known to those, who have read any of the late memoirs and journals of Napoleon, that he prided himself on nothing more, than his Code of Law. Mr Butler, in his Reminiscences, observes, that a friend of his had heard Napoleon say, that he could wish to be buried with his Code in his hands. Various anecdotes in the books of O'Meara and Las Cases will readily occur to the memory of our readers, illustrative of the same complacency. Yet we imagine, that it is not every one, who is aware of all the right of Bonaparte to pride himself upon the Code, which bore his name. We suppose, that the prevalent opinion may be, that he at best ordered it to be drawn up, commissioned the lawyers, whom his minister may have designated for the purpose, and finally perhaps honored the manuscript copy with his imperial signature. In short, that in claiming to be another Justinian, he contented himself with doing what Justinian did, and that was nothing.
This, however, is an impression wholly false. The agency of Bonaparte, in the formation of the Code, was of the most efficient kind. Its provisions were discussed in his presence; these discussions were presided over and shared by himself; and the Reports, which were made of them, and which are now before the public, furnish the most satisfactory proof of his real and energetic participation, in the drafting of the Code; and justify the pride, which he took in it, as a monument to his memory. As his character and talents are here presented in a point of view, which to many of our readers may be novel, and to none we trust uninteresting, we propose to devote an article to the subject. We must go back pretty far, for our point of departure, but this we shall despatch in a very few words.
At the earliest periods of our acquaintance with France, we find the country inhabited for the most part by the Gauls, a barbarous people, differing altogether, in national stock, from their neighbors beyond the Rhine, the Germans. We know little of the Gauls in France before they were invaded and subdued, and their country made a province, by the Romans. The southern part of Gaul was earliest conquered and reduced to the provincial form; but before the birth of our Savior, the whole country was made to submit to the Roman yoke. It remained in this subjection between four and five centuries, gradually introducing and adopting the language, the manners, the religion, and the jurisprudence of Rome. This was the original introduction of the Roman law into the country.
Gaul was successively and partially invaded and wrested from the Romans by the Visigoths, the Burgundians, and finally and most effectually by the Franks. These barbarous nations found the Gauls in a state of comparative civilisation, as Roman subjects, speaking the Latin language and governed by the Roman law. This was more extensively the case in the southern, than in the northern provinces, in respect to the predominance of the Roman law. So considerable was the difference in reference to this point that, as far back as the history of French jurisprudence goes, the southern provinces were recognised as the Pays du Droit Ecrit; and the northern the Pays du Droit Contumier. The causes of this marked difference are but imperfectly known, in the remoteness of
antiquity, and the paucity of historical data. It may have been the consequence of the earlier colonisation of the southern provinces, by the Romans; though that event took place, when the Roman jurisprudence was too much in its infancy at home, to be propagated, as a permanent system, into remote colonies.
The written law of the southern provinces, and the Coutumes of the northern, were the the basis of the French jurisprudence in the middle ages. On the revival of the study of the Roman law in modern Europe, France was one of the first countries, which cultivated that study, without distinction of the countries of the written and customary law. Alciati was the first distinguished jurist of the new race; and under Cujas in the sixteenth century, the law schools of France became the most renowned in Europe. These two celebrated lawyers,* of whom the first was not a native of France, principally wrote on the Roman law. With equal diligence, if with less renown, Du Moulin, also in the sixteenth century, devoted himself to the Droit Coutumier, and among the most famous of his works is his commentary on the Coutume de Paris. This work is not without its interest to the well instructed American jurist, inasmuch, to borrow the words of a contributor to our journal for July, 1821, as the Coutume de Paris formed a sort of supplement to the rest, was applied to all the French colonies, and in that way has become interwoven into the laws of one of the states of this Union.'t
With the expansion and growth of France, at a period somewhat later, a new species of law, under the name of etablissements, édits, and ordonnances grew up. Some of these were the productions of l'Hopital and d'Aguesseau, and to some of them Louis Fourteenth himself is supposed to have been an efficient contributor. Several of these ordonnances, being of a considerable length, and of the nature of a compilation of the whole existing law on important points, received in common parlance the name of Codes. Such were the Code Marchand, the Code Civile and the Code Noir.
* Alciati was a Milanese, but taught at Avignon and elsewhere in France. An interesting life of Cujas may be found in Hugo's Civilistisches Magazin B. iii. s. 190.
North American Review, vol. xiii. p. 6.