"My
true glory is not to have gained forty battles; Waterloo will erase the
memory of so many victories; what nothing will erase, what will live
eternally, my Civil law.." (Napoleon Bonaparte,
Saint-Helen's memorial)
As regards civil jurisprudence, are opposed France of statute law, including
the southern half of the country and Alsace, which applies a right inspired
of the Roman law (Justinien Code), and France of oral law, applying a common
law, which varies from one area to another. It is estimated that there are
60 general customs (the most important is the Paris custom) and approximately 300 local
customs.
Taking
as a starting point the various attempts at coding tried under Ancient Regim
(Drafting of the habits by the ordinance of Montilz-les-Tours in 1454, Code
Henri in 1585, Code Marillac in 1614), the French National Assembly issues
on April 5,1790 that it will be made a Code of the civil laws of the
kingdom. The Convention quite naturally instructs the Committee of
Legislation to present to her a Civil law project. Cambaceres, its
president, is harnessed with a task which was to last ten years.
Lawyer of
formation and man of the Lights, Cambaceres seems according to Vialles to
have taken as a starting point three principles in the drafting of the first
civil law :
- to approach the
natural right as much as possible, because the natural laws are higher
than all the others.
- to maintain
a unit complete in the legislation, because the truth is one and
indivisible.
- to bring
most extreme simplicity in the legal regulations, because few laws are
enough for the honest men.
FIRST PROJECT
This project made
up of 695 articles divided into two parts: the people and the goods,
included many innovative provisions on social matters.
The right of the people regulates the births,
the majority fixed at 21 years, the marriage, the divorce and the death. The
ideas of the Lights are illustrated in particular in the definition of the
relationship between the parents and the children: “Monitoring and
protection here are rights of the parents; to nourish, raise, establish
their children, here are their duties. The children will be equipped by
learning, as of their tender childhood, a trade of agriculture or mechanical
art. (...) The children of the fatherland will show their harvests, their
cultures, their work and they will say emulously astonished : here are our
treasures.” (Cambaceres).
The text removes,
for the same reasons the concept of illegitimacy and reform the principles
of the adoption: “The adoption is the foreign branch graft on an ancient
trunk; it revives the sap of it; it embellishes its stem of new kids; and,
by this happy insertion, it crowns the tree of a new harvest of flowers and
fruits. Admirable institution that you had the glory to renew and which
binds so naturally to the Constitution of the Republic, since it brings
without crisis the division of great fortunes.” (Cambaceres). The
project institutes the divorce, which can be required by one of the husbands
near the board of guardians, the marriage being dissolved 15 days
after the request, as well as the payment of an alimony to the ex-husband
who assumes the guard of the children. The right of the people finishes by
treating supervision, interdicts and the absent ones.
In the second part, Cambaceres treats means of
acquiring and of preserving the property, then rules of provision of the
goods. In particular the rules of succession, conventions and the mortgages
are reformed. As regards succession, the project keeps only two testamentary
forms: the donation inter vivos and the hereditary donation. All the
children share the family inheritance equally, except for a negligible share
whose head of household can lay out with his own way.
On August 9,1793, he presents, in the name of
the committee of legislation, his first civil law project. But the
Convention issues the adjournment at eight days and the discussion begins
only on August 22. In the preliminary speech, Cambaceres says “Citizens,
it finally arrived this so desired time which must fix forever the empire of
freedom and the destinies of France. The Constitution required everywhere
with transport, was received from all the good citizens with the feeling of
admiration and the recognition. (...) Your work is not still finished. For
having gone a long time on ruins, it is necessary to raise the large
building of the civil legislation; simple in its structure, but majestic
building in its proportions; large by its simplicity even and all the more
solid that, not being built on the sand driving of systems, it will rise on
the firm ground of the natural laws and on the virgin ground of the
Republic.” (Cambaceres).
The Convention begins the reading and the
discussion of the various articles. The discussion stumbles on the equality
of the husbands, and under the impulse of Merlin of Douai, the conventional
ones reject the article instituting the joint management of the goods of the
household. Some articles are then voted, in particular on the divorce, but
the Montagnards taken along by Levasseur and Fabre d'Eglantine find
too much the project inspired by the spirit of the men of law and make vote
a decree establishing a commission of 6 philosophers charged to reform the
project. Here the examination of the first project of Civil law finishes.
SECOND PROJECT
After Thermidor, Cambaceres presents a new
Civil law project . In accordance with the wishes of the Convention, this
Code is very brief (287 articles). Cambaceres divided the civil
legislation into 3 parts according to a ternary articulation which prevails
still today (people, goods and obligations). This principle of division is
explained in his preliminary speech: “Three things are necessary and are
enough with the alive man in company : to be a master of his person ; to have
goods to fill his needs ; to be able to lay out, for his greater interest, of
his person and his goods. All the civil laws are thus reduced to the rights
of freedom, property and to contract.” (Cambaceres).
The project contains some innovations compared
to the precedent. The equality of the husbands is reinforced by the
suppression of the paternal authority and its replacement by a joint
authority on the children. The adoption is favoured by extending the right
to adopt with any citizen: man or woman, married single person or (with the
assent of the spouse), but it are framed, because there must be "the
distance from puberty between adopting and the adopted child."
On September 9,1794, Cambaceres goes up to the
platform to defend his project, Vialles notes that the tone changed :
“legal science replaced the philosophical tenderizing there”. The
Convention rather quickly votes the first 9 articles. The discussion takes
again three days later, it tramples and only the tenth article is voted. The
unit is returned for revision before the Commission of the Eleven to
which Cambaceres and Merlin of Douai are assistant, which causes to close
the discussion of the second project of Civil code.
THIRD PROJECT
Extremely of the experiment of the rejection of
his second project considered as contents, Cambaceres presents a more
detailed law (1104 articles) always divided into 3 parts (people,
goods and obligations). He defends the drafting at the present: “The laws
of Moïse are with the future; that of the Twelve-Tables are with the
requirement. The French language could not comprise this mode.” (Cambaceres)
On August 26,1796, Cambaceres goes up again to
the platform to defend his civil code law: “Today that all is changed in
the political order, it is essential to substitute for the old laws a code
of simple laws.” (Cambaceres). He is attacked by the
conservatives of Five hundreds, which considers certain provisions immoral
(divorce, rights granted to the children born except marriage and the
principle of equality of the heirs). On January 22,1797, he succeeds in
making adopt the plan of the Civil law, several articles are adopted in the
tread, in particular on filiation. But on February 26, certain deputies
reconsider the plan adopted previously and Cambaceres understands that the
examination of the project will not progress any more (on May 23,1798, the
Council of Five hundreds still discusses the preparatory indications on the
order to follow to examine the project of Civil code).
FINAL PROJECT
After the second Italian campaign, Bonaparte
convenes Cambaceres and says to him: “You made several codes, you do not
think that it would be useful to remelt them and of present at the
legislative Assembly a project which was with the height of this century and
worthy of the government?”. The second Consul gives his three projects
to him. Enthusiastic, Bonaparte proposes to entrust the recasting at a
commission and asks Cambaceres: “Indicate to me the men who are in a
position to do this work and write a decree in this direction.”. On
August 12,1800, a consular decree sets up a commission charged to prepare a
project of civil code, it is made up of four members :
- Bigot de Preameneu
Felix-Julien-Jean (1747-1825) :
Lawyer at the Parliaments of Rennes then of Paris, it is named to
adviser of State in 1801. President of the legislation section in the
Council of State, it succeeds Portalis as minister of religion.
- Maleville Jacques de
(1741-1824) : Elected with the
Council of Ancients, it is named in 1801 with the Cassation Court, of
which it chairs the civil section. Maleville is named senator in 1806,
then count of the Empire in 1808.
- Portalis
Jean-Etienne-Marie (1745-1807) :
Lawyer at the Parliament of Aix, Portalis is elected with the Council of
Ancients. Condemned to the exile, it returns after the 18 Brumaire.
Commissioner the government to the Council of the catches, then to
advise State in 1800, he becomes minister of religion in 1804.
- Tronchet François-Denis
(1726-1806) : Lawyer and
jurisconsult, Tronchet is elected in the Estates-General. Defender of
Louis XVI, then elected with the Council of Ancients, he becomes
president of the Cassation Court in 1800. Appointed senator in 1801, it
rests in the Pantheon.
On January 21,1801, the commission submits his
report for opinion to the cassation court and the courts of Appeal. The
discussion of the Civil law starts in plenary assembly of the Council of
State on July 17,1801. The texts are forwarded to the Tribunate
progressively progress of the work. On December 12,1801, the Tribunate
rejects the preliminary title: Publication of the laws by 142 votes
against 139, this rejection is confirmed by a vote of the Legislative
Assembly. On January 2,1802, the government withdraws the bill and allows
the tribuns to make observations before the vote of the texts.
On
September 9,1802, the discussion is resumed with the Council of State, the
meetings are chaired by the First Consul or the Second Consul in his
absence. Cambaceres prepares all work by communicating the documents
relating to the agenda, as well as the extracts of his three codes, which is
worth to him some criticisms on behalf of the advisers of State who find
these preceding projects too impregnated of the ideas of the Lights or the
Revolution. It carries out practically all the debates, Bonaparte known as
of him: “Cambaceres makes the lawyer general; it speaks sometimes for,
sometimes against”. On the 109 meetings of the Council of State
necessary to the discussion of the Civil code, 52 are chaired by Cambaceres.
The influence of the First Consul results in a very Mediterranean design of
the family subjected to the authority of the father of family, while the
influence of Cambaceres allows the introduction of the divorce by consent
and a recognition of the adoption in conformity with the preceding projects.
On March 8,1804, one carries out the
classifications of the 36 laws and the numbering of the standard articles
single. Bigot of Preameneu proposes a complete revision of work,
Cambaceres is opposed to it: “The correction of the faults and
typographical errors is of right ; but a general revision would have serious
disadvantages. One would amount from there remaking the entire Civil code,
and independently of the delay which this work would involve, it would have
of another effect to only substitute for provisions adopted after ripe
examination, of the provisions of which all the merit, perhaps, would be to
be new, and who would not have more than the reformed provisions not
received the sanction of time and the experiment.” (Cambaceres).
On March 10, he suggests melting the various laws in only one called
“French Civil law”. The law which contains 2281 articles divided into 4
parts : the application of the laws, the goods, the people and the property,
are promulgated on March 21,1804.
Maleville proposes to repeal all the old laws
and to prohibit with the courts to quote them “like written reason”.
The first proposal receives the approval of the Second Consul who regards it
as useless, but he is opposed to the second: “It is impossible that the
Civil code contains the solution of all the questions which can arise.
Consequently, one should not deprive the courts of the advantage of drawing
their decisions in other authorities.” (Cambaceres). Thus is
completed a task started here are almost thirteen years.