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The Code Napoleon

Napoleon Bonaparte created the first modern code of laws. The Code Napoleon unified French law and became the model for legal systems in most other nations in the world.

Napoleon rose to prominence during the French Revolution.  As a military officer, he drove the British from Toulon in southern France. Promoted to general, he crushed an attempt to restore the monarchy and led the French army to victories in Italy and Egypt. A military hero to the French people, he seized control of the French government in 1799 with two allies. He immediately ordered the drafting of a new constitution. This document guaranteed that all adult males could vote, but it did not provide any bill of rights. “What the French people want,” said Napoleon, “is equality, not liberty.” The Constitution of 1799 also created a complicated form of government called the Consulate. But Napoleon, as “First Consul,” held most of the power. Tired of revolutionary chaos and war, the French people overwhelmingly voted to approve the new constitution, which promised stability if not freedom.

Napoleon quickly set to work taking control of the country by appointing cabinet ministers, provincial governors and councils, police commissioners, mayors, and judges—all loyal to him. To his credit, Napoleon selected appointees who generally proved to be efficient and honest.

Napoleon also established France’s first public education system and financed many public-works projects including the beautification of Paris. To end a violent conflict with the Roman Catholic Church brought on by the revolution, Napoleon negotiated a pact with the pope. The church turned its lands over to the state. In return, the government paid the salaries of Catholic priests (France was mostly a Catholic country).

In 1800, Napoleon led his army over the Alps to defeat the Austrians in Italy. A few months later, he reached agreement with Spain to return Louisiana to France. In 1802, a vote of the people made him “First Consul for Life.” That same year, he signed peace treaties with several countries. The short period of peace that followed allowed Napoleon to complete his plans for unifying the French nation. This included writing a new code of laws to apply equally to all French citizens regardless of class.

The Civil Code

By Napoleon’s time, a confusion of customary, feudal, royal, revolutionary, church, and Roman laws existed in France. Different legal systems controlled different parts of the country. The French writer Voltaire once complained that a man traveling across France would have to change laws as often as he changed horses.

Determined to unify France into a strong modern nation, Napoleon pushed for a single set of written laws that applied to everyone. He appointed a commission to prepare a code of laws. Napoleon wanted this code to be clear, logical, and easily understood by all citizens. The commission, composed of Napoleon and legal experts from all parts of France, met over a period of several years. Enacted on March 21, 1804, the resulting Civil Code of France marked the first major revision and reorganization of laws since the Roman era. The Civil Code (renamed the Code Napoleon in 1807) addressed mainly matters relating to property and families. But these areas of law greatly affected people’s lives.

The Civil Code writers tried to achieve a compromise between the past and the revolution. The Civil Code eliminated feudal and royal privileges in favor of all citizens’ equality before the law. It included some rights such as freedom of speech and worship along with public trial by jury. It allowed individuals to choose their own occupation. But it banned worker organizations, and the employer’s word was to be taken over that of his employee.

Most of the 2,281 articles in the Civil Code dealt with the right of property. This was defined as “the right to enjoy and to dispose of one’s property in the most absolute fashion.” Since the Industrial Revolution had not yet taken hold in France, property mainly referred to land. Although the right to landed property was considered “absolute,” some limitations applied. For example, only the legitimate children of a landowner could inherit his land. Furthermore, the landowner’s children had to share equally in the inheritance. The Civil Code also adopted the old feudal law that a wife could not inherit her dead husband’s land because the “blood family” would then no longer own it.

The Civil Code retained the revolution’s law that a civil authority must conduct marriages. (It did not recognize church marriages as legal.) It based many other family laws on traditional and even ancient Roman law. The father ruled his children. A father could veto his son’s marriage until age 26 and that of his daughter until 21. Fathers even had the right to imprison their children at will.

Like other legal systems of the time, the Civil Code made the wife legally inferior to her husband: “The husband owes protection to his wife, and the wife owes obedience to her husband.” Without her husband’s permission, a wife could not conduct any business. Moreover, she could not make contracts. The Civil Code did provide for the idea of community property. This means that a married couple jointly owns all the wealth they accumulate during their marriage, and in case of divorce, they must divide it equally. But the code limited this progressive (although very old) idea. The husband alone legally controlled all family assets during the marriage, including any property his wife possessed before getting married.

The Civil Code permitted divorce on the grounds of adultery, cruelty, criminal conviction, or the mutual agreement of the spouses and their parents. The revolution had introduced divorce for the first time into France, and the Catholic Church bitterly opposed it. The law of divorce favored the husband. He could get a divorce if his wife committed one act of adultery anywhere. A wife, however, could secure a divorce on grounds of adultery only if her husband committed the act within the family home.

Between 1806 and 1810, Napoleon added a Code of Civil Procedure, Commercial Code, Code of Criminal Procedure, and Penal Code to the ground-breaking Civil Code of 1804. Although they covered a lot, the laws themselves did not go into great detail. Under Napoleon’s system, courts must sometimes use reason and logic to interpret how laws apply to certain cases. But the courts’ decisions generally do not apply to future cases. This is quite unlike common-law systems. In common-law countries like Britain and the United States, court decisions can become precedents with the force of law. In France, the codes that lawmaking bodies enact are supreme. When the codes need amending, the legislature periodically updates them. For example, the French Parliament established legal equality between husband and wife in the Code Napoleon following World War II.

The Legacy

Napoleon made his Civil Code the law in territories he conquered, such as parts of Italy and Holland. After his death, the Code Napoleon inspired many other nations to adopt similar law codes.

The Code Napoleon has even influenced the United States, a country steeped in the traditions of common law. In 1808, soon after President Thomas Jefferson purchased Louisiana from Napoleon, American lawmakers in the new territory wrote a code of laws largely taken from Napoleon’s Civil Code. This territorial code remains as the foundation of Louisiana state law today.

The code’s influence is not limited to Louisiana. Legislators patterned the New York state civil and criminal codes, first completed in 1850, on the Code Napoleon. These codes served as models for similar codes in other states and in the federal government. The old common law was codified, placed in codes.

After defeating Napoleon at Waterloo in 1815, the British imprisoned him on a remote island. Thinking about his career as a general and leader of France, Napoleon remarked: “My real glory is not the 40 battles I won—for my defeat at Waterloo will destroy the memory of those victories. . . . What nothing will destroy, what will live forever, is my Civil Code.” Now approaching its 200th anniversary, the Code Napoleon continues to influence the lives of ordinary people in nearly all parts of the world. Napoleon was right. His most lasting legacy did not turn out to be his military conquests, but rather his foresight in realizing the unifying effect of a code of laws applying to all.

For Discussion and Writing

1. Why did Napoleon believe a new code of laws
     was necessary for France?

2. What features of the Code Napoleon do you agree
     with the most? What features do you agree with the
     least? Why?

3. What are some important differences between code
     law and common law systems?

For Further Information

French Revolution

The French Revolution Home Page—Links on the French Revolution

French Revolution 1789-1793 (moderate phase)—By a group of Modern European History students at Woodberry Forest School.

Encyclopedia.com

Sites Devoted to Napoleon

Institute on Napoleon and the French Revolution at Florida State University

Napoleon Series a web site, or e-magazine, dedicated to Napoleon Bonaparte and his times.

Encyclopedia Entries on Napoleon

Encarta

Encyclopedia.com

Biographies of Napoleon

“Napoleon I: Emperor of France”  From the Lucidcafe

“Napoleon I”  Author unknown

“France During the French Revolution and Under Napoleon Bonaparte”  An annotated chronology of civil and military events by Richard R. Orsinger.

Napoleon and the Law

“The Louisiana Civil Code: A Humanistic Approach”  A Special Collection of the library at the Tulane Law School

“Women and the Code Napoléon”  By Louise Hicks Click on “Readers’ Articles” in the left frame.

Napoleon's Influnce in Spain: The Napoleonic Code and The Bayonne Statute

by chrisjglaser
http://chrisjglaser.hubpages.com/hub/Napoleons-Influnce-in-Spain

Napoleon Bonaparte

Napoleon's Influence in Spain

The French Revolution shaped much of the western world as we know it. The military, social, economic, and political structures of today can oftentimes have their origins traced back to that time period. In particular, all of the countries which Napoleon Bonaparte and his family directly controlled were brought enormous changes. Spain was not left out of this, and felt the blow of the emperor the same as every other country around them. Napoleon had a specific influence on the future of Spain however, since his revolution ideals in the Napoleonic Code shaped the course of Spain’s political future.

             The French Revolution was a time of enormous change in France as well as in the entire Western World. The French people had grown tired of the old hierarchy and feudal system which oppressed the lower classes and decided to take action to work against those institutions. Louis XVI was King of France at the time, but his feeble attempts at controlling the rioting masses were entirely ineffective. In July, 1789 the breaking point was reached when the people of France attacked the Bastille. The declaration of a Republic ended the power of the Monarchy in France, and King Louis XVI was executed in 1793. The following years were utter chaos in France, until in 1795 when the Directory took control and began efforts to stabilize the country. This Directory lasted for four years until Napoleon Bonaparte was named first consul of France.[1]

            Napoleon Bonaparte was born in 1769 in Corsica, France. At a young age he entered military school and was noted for being a unique, solitary student. The French revolution started when Napoleon was a 20 year old artillery officer, and helped by new ideas of position through merit, he rose quickly through the ranks, winning many victories for himself and France under both the Republic and The Directory. In 1799 he overthrew the Directory and made himself First Consul. He was crowned emperor of The French Empire in 1804. At its height, the French Empire and its allies covered virtually all of Western Europe excepting Portugal and Great Britain.

            The main sets of ideals behind the French Revolution were that all men had natural rights to life, liberty, and property. Also included were concepts of equality, tolerance, and advancement through merit. The ideals were organized and drafted by the Marquis de Lafayette and The National Assembly of France, and were finalized in August 1789. Those responsible called this new written set of values the “Declaration of the Rights of Man and of the Citizen”. In it were listed many revolutionary ideas about the role of the government and citizen, and the relationship between the two. A main goal of this declaration was to make the law understandable and available to every citizen, so that he or she could know their rights and responsibilities.

Napoleon, though he had no official education in law, decided to begin helping to write a draft of a constitution that could (he hoped) serve as a framework for many if not all the states which he had dominion over. He and his council took much of the ideals of the Declaration of the Rights of Man and of the Citizen, and added many of the more traditional laws of custom in France, in a format resembling a Roman codification of law. Into this group new Civil Code he put everything which he thought would be in the general interest of the State. It is said that

“What those interests were, Bonaparte knew. They were civil equality, healthy family life, secure bulwarks to property, religious toleration, a government raised above the howls of faction. This is the policy which he stamped upon the Civil Code."[2] This Civil Code later became named The Napoleonic code, which was touted across Europe as the solution to the governments of the time. I achieved its goal as a viable framework as well as being clear enough for all to understand. It was said of it that: ". . . it has diffused the knowledge of law, and made it comparatively easy for the ordinary French man to become acquainted with the leading principles which govern the law of his own country."[3]

Prior to Napoleon’s entrance into Spain, the country had already been slowly soaking in enlightenment ideas from France. The flow of persons between France and Spain during the time of the revolution resulted in many new ideas being brought back with them. Students, teachers, and the aristocracy were particularly likely to attempt to inject these new ideals into the Spanish culture of the time. It is noted that “The upper classes of Spain … had been profoundly influenced by the enlightenment, which experienced a rapid growth in Spain under Carlos III”[4]

Although in Spain those involved were generally not as extreme as groups such as the Jacobins, there were many who did fully support the revolution, and Napoleon’s direction of Europe. The stage had already been set for France to overtake Spain, whether through their new ideals or their newly crowned emperor.

Although they were supposed allies, in May of 1808, Napoleon seized the throne from Charles IV of Spain and handed the crown to his brother Joseph Bonaparte. Napoleon hastily supplied his brother with the Napoleonic Code with which to structure the new constitution of Spain. Joseph gathered a selection of Spanish nobles together at Bayonne and, at the urging of Napoleon, held their own National Assembly. Even though they made it known that they had no actual legal authority, the nobles helped Joseph draft the first Napoleonic constitution of Spain. There were however, many points on which it became clear that Spain would not fully cooperate.

Although large parts of Spain were highly sympathetic with enlightenment ideas, there were many traditions which Spain wished to retain even if under a foreign monarch and the guise of the Napoleonic Code. The major point of contention with Napoleon’s Code was on the subject of religion. The Catholic Church was such a large part of the Spanish identity that it would be impossible to undermine it. Catholicism had still been the only allowed religion up to that point, regardless of ideas of religious toleration coming from the north. Another such impediment to a fully enlightened constitution was that it did not provide any effective checks on the power of the monarch.

What the new Spanish constitution did include were many surprisingly liberal reforms such as the simplification of government, abolishment of the right to succession of property according to age, ridding many clergy of their privileges, ceasing the inquisition, and ending feudalism. This impressive proposed piece of legislature became known as the Bayonne Statute.

The Bayonne Statute never truly went wholly into full effect; it was constantly suspended because the reception by the people was severely limited by the local people and governments, who postponed or even ignored the implementation of it. Although nominally it was the only legal constitution, Spain as a whole tended to reject it as illegitimate. Many aristocrats held to the French position however, as anyone within range of Bonaparte needed to protect themselves. Rodolphe Gasché describes it in this way; “As again the Spanish example demonstrates, even though the legitimate government of Spain (as well as the educated elements of the aristocracy, the higher clergy, and the bourgeoisie) sympathized with the French, the Spanish guerrilla fighters, by recognizing the "Armée d'Espagne" as the "real enemy," fought in the name of values that had been consecrated during the democratic revolution in France.”[5]

The Spanish citizens turned to a new type of guerrilla warfare to hound the French army in the hopes of them abandoning Spain. Even though the Bonapartes had the upper hand of the somewhat legitimate government and military, the Spaniards’ tactics began to work and wear down Napoleon’s army.  Their tactics were described by “With the machinery of government in the hands of the Bonapartes, it was necessary for the Spaniards to improvise some means

of organizing resistance; consequently, local juntas sprang up in a more or less haphazard fashion, acting as de facto governments in their immediate areas.”[6]

The Sixth Coalition finally defeated Napoleon in 1814, which forced Napoleon out of his throne and the French out of Spain. The Bayonne Statute instantly lost whatever recognition and respect it had once had. The sense of nationalism which Spain had after finally driving out France was exhilarating, but now they were once more in need of a new constitution. What resulted what a surprisingly liberal form of a limited monarchy in which much power was held by cortes, and the monarch had to swear to uphold the constitution. In fact, much of this new constitution was taken partially from the French constitution, as well as from the Declaration of the Rights of Man and of the Citizen.

Napoleon was out of Spain, but the revolutionary ideas which were already being carried to Spain from France before Joseph took the throne had stayed. They had been initially promoted through Napoleon himself and his partial contribution to the writing of the Bayonne Statute via the Napoleonic Code. These ideas had been growing with the increase of nationalism within Spain itself. Napoleon thrust Spain into a situation where it needed to revolt, and consequently they found themselves in much the same ideological position as early revolutionary France. The Napoleonic Code was instrumental in proposing the enlightenment ideals to Spain in a viable way, and has since been used by Portugal, Mexico, Italy, Greece, and many other countries of Western Europe. Napoleon himself declared that the Code was his greatest achievement. At mount St. Helena he wrote:

"My true glory is not in having won forty battles; Waterloo will blot

out the memory of those victories. But nothing can blot out my Civil

Code. That will live eternally."[7]

[1] Furet, François. The French Revolution, 1770-1814. Oxford: Blackwell, 1996

[2] Napoleon and His Code, Charles Sumner Lobingier, Harvard Law Review. Vol. 32, No. 2 (Dec., 1918), pp. 114-134

Published by: The Harvard Law Review Association, Article Stable URL: http://www.jstor.org/stable/1327640

[3] Fisher, 9 Cambridge Modern History, 6. Walton, "The New German Code," 6 JURIDICAL REV. I48.

[4] Edward J. Goodman Vol. 20, No. 3 (Jul., 1958), pp. 330-346

Published by: Cambridge University Press for the University of Notre Dame du lac on behalf of Review of Politics

Stable URL: http://www.jstor.org/stable/1404981

[5] CR: The New Centennial Review 4.3 (2004) 9-34 The Partisan and the Philosopher,

Rodolphe Gasché, State University of New York at Buffalo.

Stable URL: http://muse.jhu.edu/journals/new_centennial_review/v004/4.3gasche.html

[6] Ibid. Goodman pp. 334

[7] De Montholon, Recit De La Capntivte De L'empereur Napoleon, 401.

“The Wife is Obliged”

The French Civil Code (Napoleonic Code) 1800-1820

In post Revolution France, the ideas of female equality received a setback in a series of laws known as the Napoleonic Code. Through it, the legal right of men to control women was affirmed. Although most of the basic revolutionary gains - equality before the law, freedom of religion and the abolition of feudalism - remained, the Code ensured that married women in particular owed their husband obedience, and were forbidden from selling, giving, mortgaging or buying property.
This backlash to women’s rights had consequences throughout Europe. In military campaigns, Napoleon carried the Code throughout Europe, where it served as a model to legislators in countries from Italy to Poland. Within France itself, the Code survived basically unaltered for more than 150 years. Only in 1965 did French wives get the right to work without their husband’s permission. Only in 1970 did husbands forfeit the rights that came with their status as head of the family. In many ways, the Code was the most enduring legacy of the French Revolution.
Excerpt from Code Chapters:
Of the respective Rights and Duties of Married Persons.

• The husband owes protection to his wife, the wife obedience to her husband.
• The wife is obliged to live with her husband, and to follow him to every place where he may judge it convenient to reside: the husband is obliged to receive her, and to furnish her with everything necessary for the wants of life, according to his means and station.
• The wife cannot plead in her own name, without the authority of her husband, even though she should be a public trader, or non-communicant, or separate in property.
• The authority of the husband is not necessary when the wife is prosecuted in a criminal matter, or relating to police.
• A wife, although non-communicant or separate in property, cannot give, alienate, pledge, or acquire by free or chargeable title, without the concurrence of her husband in the act, or his consent in writing.
• When the husband is subjected to a condemnation, carrying with it an afflictive or infamous punishment,... the wife, though of age, cannot, during the continuance of such punishment, plead in her own name or contract, until after authority given by the judge...
• The wife may make a will without the authority of her husband.

Divorce:

• The wife may demand divorce on the ground of adultery in her husband, when he shall have brought his concubine into their common residence.
• The married parties may reciprocally demand divorce for outrageous conduct, ill-usage, or grievous injuries, exercised by one of them towards the other.
• A woman cannot contract a new marriage until ten months have elapsed from the dissolution of the preceding marriage.

Conditions required in order to be able to contract Marriage.

• The son who has not attained the full age of 25 years, the daughter who has not attained the full age of 21 years, cannot contract marriage without the consent of their father and mother; in case of disagreement, the consent of the father is sufficient.
• The father, and in default of the father, the mother, and in default of the father and mother, the grandfathers and grandmothers, may oppose the marriage of their children and descendants, although they have accomplished twenty-five years.
• There can be no marriage where consent is wanting.
• A marriage contracted in a foreign county between natives of France, and between a native of France and a foreigner, shall be valid, if celebrated according to the forms used in that country....
• A French woman, who shall espouse a foreigner, shall follow the condition of her husband. If she become a widow, she shall recover the quality of French woman, provided she already reside in France, or that she return thither under the sanction of government...

Of the Guardianship of Father and Mother.

The father is, during marriage, administrator of the personal effects of his Children being minors.
If at the time of the husband’s decease, his wife is with child, a curator for the unborn issue shall be named by a family council. At the birth of the child the mother shall become guardian thereof, and the curator shall be its deputy guardian in full right.
If a mother being guardian desires to marry again, she is required before the act of marriage to convoke a family-council, who shall decide whether the guardianship ought to be continued to her. In defect of such convocation she shall lose the guardianship entirely.

Teaching Women’s Rights From Past to Present

“The Wife is Obliged” The French Civil Code (Napoleonic Code) 1800-1820

In post Revolution France, the ideas of female equality received a setback in a series of laws known as the Napoleonic Code. Through it, the legal right of men to control women was affirmed. Although most of the basic revolutionary gains - equality before the law, freedom of religion and the abolition of feudalism - remained, the Code ensured that married women in particular owed their husband obedience, and were forbidden from selling, giving, mortgaging or buying property.

This backlash to women’s rights had consequences throughout Europe. In military campaigns, Napoleon carried the Code throughout Europe, where it served as a model to legislators in countries from Italy to Poland. Within France itself, the Code survived basically unaltered for more than 150 years. Only in 1965 did French wives get the right to work without their husband’s permission. Only in 1970 did husbands forfeit the rights that came with their status as head of the family. In many ways, the Code was the most enduring legacy of the French Revolution.
Excerpt from Code Chapters:
Of the respective Rights and Duties of Married Persons.

• The husband owes protection to his wife, the wife obedience to her husband.
  
• The wife is obliged to live with her husband, and to follow him to every place where he may judge it convenient to reside: the husband is obliged to receive her, and to furnish her with everything necessary for the wants of life, according to his means and station.
  
• The wife cannot plead in her own name, without the authority of her husband, even though she should be a public trader, or non-communicant, or separate in property.
  
• The authority of the husband is not necessary when the wife is prosecuted in a criminal matter, or relating to police.
  
• A wife, although non-communicant or separate in property, cannot give, alienate, pledge, or acquire by free or chargeable title, without the concurrence of her husband in the act, or his consent in writing.
  
• When the husband is subjected to a condemnation, carrying with it an afflictive or infamous punishment,... the wife, though of age, cannot, during the continuance of such punishment, plead in her own name or contract, until after authority given by the judge...
  
• The wife may make a will without the authority of her husband.

Divorce:

• The wife may demand divorce on the ground of adultery in her husband, when he shall have brought his concubine into their common residence.
  
• The married parties may reciprocally demand divorce for outrageous conduct, ill-usage, or grievous injuries, exercised by one of them towards the other.
  
• A woman cannot contract a new marriage until ten months have elapsed from the dissolution of the preceding marriage.

Conditions required in order to be able to contract Marriage.

• The son who has not attained the full age of 25 years, the daughter who has not attained the full age of 21 years, cannot contract marriage without the consent of their father and mother; in case of disagreement, the consent of the father is sufficient.
  
• The father, and in default of the father, the mother, and in default of the father and mother, the grandfathers and grandmothers, may oppose the marriage of their children and descendants, although they have accomplished twenty-five years.
  
• There can be no marriage where consent is wanting.
  
• A marriage contracted in a foreign county between natives of France, and between a native of France and a foreigner, shall be valid, if celebrated according to the forms used in that country....
  
• A French woman, who shall espouse a foreigner, shall follow the condition of her husband. If she become a widow, she shall recover the quality of French woman, provided she already reside in France, or that she return thither under the sanction of government...

Of the Guardianship of Father and Mother.

The father is, during marriage, administrator of the personal effects of his Children being minors.

If at the time of the husband’s decease, his wife is with child, a curator for the unborn issue shall be named by a family council. At the birth of the child the mother shall become guardian thereof, and the curator shall be its deputy guardian in full right.

If a mother being guardian desires to marry again, she is required before the act of marriage to convoke a family-council, who shall decide whether the guardianship ought to be continued to her. In defect of such convocation she shall lose the guardianship entirely.