Вальтер Скотт
Life of Napoleon Bonaparte. Volume III
The answer to this is obvious. So long as society remains in a simple state, men have occasion for few and simple laws. But when that society begins to be subdivided into ranks; when duties are incurred, and obligations contracted, of a kind unknown in a ruder or earlier period, these new conditions, new duties, and new obligations, must be regulated by new rules and ordinances, which accordingly are introduced as fast as they are wanted, either by the course of long custom, or by precise legislative enactment. There is, no doubt, one species of society in which legislation may be much simplified; and that is, where the whole law of the country, with the power of enforcing it, is allowed to reside in the bosom of the King, or of the judge who is to administer justice. Such is the system of Turkey, where the Cadi is bound by no laws nor former precedents, save what his conscience may discover from perusing the Koran. But so apt are mankind to abuse unlimited power, and indeed so utterly unfit is human nature to possess it, that in all countries where the judge is possessed of such arbitrary jurisdiction, he is found accessible to bribes, or liable to be moved by threats. He has no distinct course prescribed, no beacon on which to direct his vessel; and trims, therefore, his sails to the pursuit of his own profit.
CIVIL CODE.
The French legislative commissioners, with these views, wisely judged it their duty to produce their civil code, upon such a system as might afford, as far as possible, protection to the various kinds of rights known and acknowledged in the existing state of society. Less than this they could not do; nor, in our opinion, is their code as yet adequate to attain that principal object. By the implied social contract, an individual surrenders to the community his right of protecting and avenging himself, under the reserved and indispensable condition that the public law shall defend him, or punish those by whom he has sustained injury. As revenge has been said, by Bacon, to be a species of wild justice, so the individual pursuit of justice is often a modified and legitimate pursuit of revenge, which ought, indeed, to be qualified by the moral and religious sentiments of the party, but to which law is bound to give free way, in requital for the bridle which she imposes on the indulgence of man's natural passions. The course of litigation, therefore, cannot be stopt; it can only be diminished, by providing beforehand as many regulations as will embrace the greater number of cases likely to occur, and trusting to the authority of the judges acting upon the spirit of the law, for the settlement of such as cannot be decided according to its letter.
The organisation of this great national work was proceeded in with the caution and deliberation which the importance of the subject eminently deserved. Dividing the subjects of legislation according to the usual distinctions of jurisconsults, the commissioners commenced by the publication and application of the laws in general; passed from that preliminary subject to the consideration of personal rights under all their various relations; then to rights respecting property; and, lastly, to those legal forms of procedure, by which the rights of citizens, whether arising out of personal circumstances, or as connected with property, are to be followed forth, explicated, and ascertained. Thus adopting the division, and in some degree the forms, of the Institutes of Justinian, the commission proceeded, according to the same model, to consider each subdivision of this general arrangement, and adopt respecting each such maxims or brocards of general law, as were to form the future basis of French jurisprudence. Their general principles being carefully connected and fixed, the ingenuity of the commissioners was exerted in deducing from them such a number of corollaries and subordinate maxims, as might provide, so far as human ingenuity could, for the infinite number of questions that were likely to emerge on the practical application of the general principles to the varied and intricate transactions of human life. It may be easily supposed, that a task so difficult gave rise to much discussion among the commissioners; and as their report, when fully weighed among themselves, was again subjected to the Council of State, before it was proposed to the Legislative Body, it must be allowed, that every means which could be devised were employed in maturely considering and revising the great body of national law, which, finally, under the name of the Code Napoleon, was adopted by France, and continues, under the title of the Civil Code, to be the law by which her subjects still possess and enforce their civil rights.
It would be doing much injustice to Napoleon, to suppress the great personal interest which, amid so many calls upon his time, he nevertheless took in the labours of the commission. He frequently attended their meetings, or those of the Council of State, in which their labours underwent revision; and, though he must be supposed entirely ignorant of the complicated system of jurisprudence as a science, yet his acute, calculating, and argumentative mind enabled him, by the broad views of genius and good sense, often to get rid of those subtleties by which professional persons are occasionally embarrassed, and to treat as cobwebs, difficulties of a technical or metaphysical character, which, to the jurisconsults, had the appearance of bonds and fetters.
There were times, however, on the other hand, when Napoleon was led, by the obvious and vulgar views of a question, to propose alterations which would have been fatal to the administration of justice, and the gradual enlargement and improvement of municipal law. Such was his idea, that advocates and solicitors ought only to be paid in the event of the cause being decided in favour of their client,316– a regulation which, had he ever adopted it, would have gone far to close the gates of justice; since, what practitioner would have forfeited at once one large portion of the means of his existence, and consented to rest the other upon the uncertainty of a gambling transaction? A lawyer is no more answerable for not gaining his cause, than a horse-jockey for not winning the race. Neither can foretell, with any certainty, the event of the struggle, and each, in justice, can only be held liable for the utmost exertion of his skill and abilities. Napoleon was not aware that litigation is not to be checked by preventing lawsuits from coming into court, but by a systematic and sage course of trying and deciding points of importance, which, being once settled betwixt two litigants, cannot, in the same shape, or under the same circumstances, be again the subject of dispute among others.
The Civil Code of Napoleon is accompanied by a code of procedure in civil cases, and a code relating to commercial affairs, which may be regarded as supplemental to the main body of municipal law. There is, besides, a Penal Code, and a code respecting the procedure against persons accused under it. The whole forms a grand system of jurisprudence, drawn up by the most enlightened men of the age, having access to all the materials which the past and the present times afford; and it is not surprising that it should have been received as a great boon by a nation who, in some sense, may be said, previous to its establishment, to have been without any fixed or certain municipal law since the date of the Revolution.
But while we admit the full merit of the Civil Code of France, we are under the necessity of observing, that the very symmetry and theoretical consistency, which form, at first view, its principal beauty, render it, when examined closely, less fit for the actual purposes of jurisprudence, than a system of national law, which, having never undergone the same operation of compression, and abridgement, and condensation, to which that of France was necessarily subjected, spreads through a multiplicity of volumes, embraces an immense collection of precedents, and, to the eye of inexperience, seems, in comparison of the compact size and regular form of the French code, a labyrinth to which no clue is afforded. It is of the greater importance to give this subject some consideration, because it has of late been fashionable to draw comparisons between the jurisprudence of England and that of France, and even to urge the necessity of new-modelling the former upon such a concise and systematic plan as the latter exhibits.
In arguing this point, we suppose it will be granted, that that code of institutions is the most perfect, which most effectually provides for every difficult case as it emerges, and therefore averts, as far as possible, the occurrence of doubt, and, of course, of litigation, by giving the most accurate and certain interpretation to the general rule, when applied to cases as they arise. Now, in this point, which comprehends the very essence and end of all jurisprudence – the protection, namely, of the rights of the individual – the English law is preferable to the French in an incalculable degree; because each principle of English law has been the subject of illustration for many ages, by the most learned and wise judges, acting upon pleadings conducted by the most acute and ingenious men of each successive age. This current of legal judgments has been flowing for centuries, deciding, as they occurred, every question of doubt which could arise upon the application of general principles to particular circumstances; and each individual case, so decided, fills up some point which was previously disputable, and, becoming a rule for similar questions, tends to that extent to diminish the debateable ground of doubt and argument with which the law must be surrounded, like an unknown territory when it is first partially discovered.
It is not the fault of the French jurisconsults, that they did not possess the mass of legal authority arising out of a regular course of decisions by a long succession of judges competent to the task, and proceeding, not upon hypothetical cases supposed by themselves, and subject only to the investigation of their own minds, but upon such as then actually occurred in practice and had been fully canvassed and argued in open court. The French lawyers had not the advantage of referring to such a train of decisions; each settling some new point, or ascertaining and confirming some one which had been considered as questionable. By the Revolution, the ancient French courts had been destroyed, together with their records; their proceedings only served as matter of history or tradition, but could not be quoted in support or explanation of a code which had no existence until after their destruction. The commissioners endeavoured, we have seen, to supply this defect in their system, by drawing from their general rules such a number of corollary propositions as might, so far as possible, serve for their application to special and particular cases. But rules, founded in imaginary cases, can never have the same weight with precedents emerging in actual practice, where the previous exertions of the lawyers have put the case in every possible light, and where the judge comes to the decision, not as the theorist, whose opinion relates only to an ideal hypothesis of his own mind, but as the solemn arbiter of justice betwixt man and man, after having attended to, and profited by, the collision and conflict of opposite opinions, urged by those best qualified to state and to illustrate them. The value of such discussion is well known to all who have experience of courts of justice, where it is never thought surprising to hear the wisest judge confess, that he came into court with a view of the case at issue wholly different from that which he was induced to form after having given the requisite attention to the debate before him. But this is an advantage which can never be gained, unless in the discussion of a real case; and therefore the opinion of a judge, given tota re cognita, must always be a more valuable precedent, than that which the same learned individual could form upon an abstract and hypothetical question.
It is, besides, to be considered, that the most fertile ingenuity with which any legislator can be endued, is limited within certain bounds; and that, when he has racked his brain to provide for all the ideal cases which his prolific imagination can supply, it will be found that he has not anticipated or provided for the hundredth part of the questions which are sure to occur in actual practice. To make a practical application of what we have stated, to the relative jurisprudence of France and England, it may be remarked, that the Title V. of the 1st Book of the Civil Code, upon the subject of Marriage, contains only one hundred and sixty-one propositions respecting the rights of parties, arising in different circumstances out of that contract, the most important known in civilized society. If we deduce from this gross amount the great number of rules which are not doctrinal, but have only reference to the forms of procedure, the result will be greatly diminished. The English law, on the other hand, besides its legislative enactments, is guarded, as appears from Roper's Index, by no less than a thousand decided cases, or precedents, each of which affords ground to rule any other case in similar circumstances. In this view, the certainty of the law of England compared to that of France, bears the proportion of ten to one.
It is, therefore, a vulgar, though a natural and pleasing error, to prefer the simplicity of an ingenious and philosophic code of jurisprudence, to a system which has grown up with a nation, augmented with its wants, extended according to its civilisation, and only become cumbrous and complicated, because the state of society to which it applies has itself given rise to a complication of relative situations, to all of which the law is under the necessity of adapting itself. In this point of view, the Code of France may be compared to a warehouse built with much attention to architectural uniformity, showy in the exterior, and pleasing from the simplicity of its plan, but too small to hold the quantity of goods necessary to supply the public demand; while the Common Law of England resembles the vaults of some huge Gothic building – dark, indeed, and ill-arranged, but containing an immense store of commodities, which those acquainted with its recesses seldom fail to be able to produce to such as have occasion for them. The practiques, or adjudged cases, in fact, form a breakwater, as it were, to protect the more formal bulwark of the statute law; and although they cannot be regularly jointed or dovetailed together, each independent decision fills its space on the mound, and offers a degree of resistance to innovation, and protection to the law, in proportion to its own weight and importance.
The certainty of the English jurisprudence, (for, in spite of the ordinary opinion to the contrary, it has acquired a comparative degree of certainty,) rests upon the multitude of its decisions. The views which a man is disposed to entertain of his own rights, under the general provisions of the law, are usually controlled by some previous decision on the case; and a reference to precedents, furnished by a person of skill, saves, in most instances, the expense and trouble of a lawsuit, which is thus stifled in its very birth. If we are rightly informed, the number of actions at common law, tried in England yearly, does not exceed betwixt five-and-twenty and thirty on an average, from each county; an incredibly small number, when the wealth of the kingdom is considered, as well as the various and complicated transactions incident to the advanced and artificial state of society in which we live.
But we regard the multitude of precedents in English law as eminently favourable, not only to the certainty of the law, but to the liberty of the subject; and especially as a check upon any judge, who might be disposed to innovate either upon the rights or liberties of the lieges. If a general theoretical maxim of law be presented to an unconscientious or partial judge, he may feel himself at liberty, by exerting his ingenuity, to warp the right cause the wrong way. But if he is bound down by the decisions of his wise and learned predecessors, that judge would be venturous indeed, who should attempt to tread a different and more devious path than that which is marked by the venerable traces of their footsteps; especially, as he well knows that the professional persons around him, who might be blinded by the glare of his ingenuity in merely theoretical argument, are perfectly capable of observing and condemning every departure from precedent.317 In such a case he becomes sensible, that, fettered as he is by previous decisions, the law is in his hands, to be administered indeed, but not to be altered or tampered with; and that if the evidence be read in the court, there are and must be many present, who know as well as himself, what must, according to precedent, be the verdict, or the decision. These are considerations which never can restrain or fetter a judge, who is only called upon to give his own explanation of the general principle briefly expressed in a short code, and susceptible therefore of a variety of interpretations, from which he may at pleasure select that which may be most favourable to his unconscientious or partial purposes.
It follows, also, from the paucity of laws afforded by a code constructed not by the growth of time, but suggested by the ingenuity of theorists suddenly called to the task, and considering its immense importance, executing it in haste, that many provisions, most important for the exercise of justice, must, of course, be neglected in the French Code. For example, the whole law of evidence, the very key and corner-stone of justice between man and man, has been strangely overlooked in the French jurisprudence. It is plain, that litigation may proceed for ever, unless there be some previous adjustment (called technically an issue) betwixt the parties, at the sight of the judge, tending to ascertain their averments in point of fact, as also the relevancy of those averments to the determination of the cause. In England, chiefly during the course of last century, the Law of Evidence has grown up to a degree of perfection, which has tended, perhaps more than any other cause, at once to prevent and to shorten litigation. If we pass from the civil to the penal mode of procedure in France, the British lawyer is yet more shocked by a course, which seems in his view totally to invert and confound every idea which he has received upon the law of evidence. Our law, it is well known, is in nothing so scrupulous as in any conduct towards the prisoner, which may have the most indirect tendency to entrap him into bearing evidence against himself. Law sympathizes in such a case with the frailties of humanity, and, aware of the consequence which judicial inquiries must always have on the mind of the timid and ignorant, never pushes the examination of a suspected person farther than he himself, in the natural hope of giving such an account of himself as may procure his liberty, shall choose to reply to it.
In France, on the contrary, the whole trial sometimes resolves into a continued examination and cross-examination of the prisoner, who is not only under the necessity of giving his original statement of the circumstances on which he founds his defence, but is confronted repeatedly with the witnesses, and repeatedly required to reconcile his own statement of the case with that which these have averred. With respect to the character of evidence, the same looseness of practice exists. No distinction seems to be made between that which is hearsay and that which is direct – that which is spontaneously given, and that which is extracted, or perhaps suggested, by leading questions. All this is contrary to what we are taught to consider as the essence of justice towards the accused. The use of the rack is, indeed, no longer admitted to extort the confession, but the mode of judicial examination seems to us a species of moral torture, under which a timid and ignorant, though innocent man, is very likely to be involved in such contradictions and inextricable confusion, that he may be under the necessity of throwing away his life by not knowing how to frame his defence.
We shall not protract these remarks on the Code Napoleon; the rather that we must frankly confess, that the manners and customs of a country make the greatest difference with respect to its laws, and that a system may work well in France, and answer all the purposes of jurisprudence, which in England would be thought very inadequate to the purpose. The humane institution which allows the accused the benefit of counsel, is a privilege which the English law does not permit to the accused, and may have its own weight in counterbalancing some of the inconveniences to which he is subjected in France. It seems also probable, that the deficiencies in the Code, arising from its recent origin and compressed form, must be gradually remedied, as in England, by the course of decisions pronounced by intelligent and learned judges; and that what we now state as an objection to the system, will gradually disappear under the influence of time.
Considered as a production of human science, and a manual of legislative sagacity, the Code may challenge general admiration for the clear and wise manner in which the axioms are drawn up and expressed. There are but few peculiarities making a difference betwixt its principles and those of the Roman law, which has in most contracts claimed to be considered as the mother of judicial regulation. The most remarkable occurs, perhaps, in the articles regulating what is called the Family Council – a subject which does not seem of importance sufficient to claim much attention.
The Civil Code being thus ascertained, provision was made for its regular administration by suitable courts; the judges of which did not, as before the Revolution, depend for their emoluments upon fees payable by the litigants, but were compensated by suitable salaries at the expense of the public. As France does not supply that class of persons who form what is called in England the unpaid magistracy, the French justices of peace received a small salary of from 800 to 1800 francs. Above them in rank came judges in the first instance, whose salaries amounted to 3000 francs at the utmost. The judges of the supreme tribunals enjoyed about four or five thousand francs; and those of the High Court of Cassation had not more than ten thousand francs, which scarcely enabled them to live and keep some rank in the metropolis. But, though thus underpaid, the situation of the French judges was honourable in the eyes of the country, and they maintained its character by activity and impartiality in their judicial functions.
The system of juries had been introduced in criminal cases, by the acclamation of the Assembly. Buonaparte found them, however, scrupulously restive and troublesome. There may be some truth in the charge, that they were averse from conviction, where a loop-hole remained for acquitting the criminal; and that many audacious crimes remained unpunished, from the punctilious view which the juries took of their duty. But it was from other motives than those of the public weal that Napoleon made an early use of his power, for the purpose of forming special tribunals, invested with a half-military character, to try all such crimes as assumed a political complexion, with power to condemn without the suffrage of a jury.318 We have already alluded to this infringement of the most valuable political rights of the subject, in giving some account of the trials of Georges, Pichegru, and Moreau. No jury would ever have brought in a verdict against the latter, whose sole crime was his communication with Pichegru; a point of suspicion certainly, but no proof whatever of positive guilt. Political causes being out of the field, the trial by jury was retained in the French Code, so far as regarded criminal questions; and the general administration of justice seems to have been very well calculated for protecting the right, and punishing that which is wrong.
TAXATION – FOREIGN TRADE.
The fiscal operations of Buonaparte were those of which the subjects complained the most, as indeed these are generally the grievances to which the people in every country are the most sensible. High taxes were imposed on the French people, rendered necessary by the expenses of the government, which, with all its accompaniments, were very considerable; and although Buonaparte did all in his power to throw the charge of the eternal wars which he waged upon the countries he overran or subdued, yet so far does the waste of war exceed any emolument which the armed hand can wrest from the sufferers, so imperfect a proportion do the gains of the victor bear to the losses of the vanquished, that after all the revenue which was derived from foreign countries, the continual campaigns of the Emperor proved a constant and severe drain upon the produce of French industry. So rich, however, is the soil of France, such are the extent of her resources, such the patience and activity of her inhabitants, that she is qualified, if not to produce at once the large capitals which England can raise upon her national credit, yet to support the payment of a train of heavy annual imposts for a much longer period, and with less practical inconvenience. The agriculture of France had been extremely improved since the breaking up of the great estates into smaller portions, and the abrogation of those feudal burdens which had pressed upon the cultivators; and it might be considered as flourishing, in spite of war taxes, and, what was worse, the conscription itself.319 Under a fixed and secure, though a severe and despotic government, property was protected, and agriculture received the best encouragement, namely, the certainty conferred on the cultivator of reaping the crop which he sowed.
It was far otherwise with commerce, which the maritime war, carried on so long and with such unmitigated severity, had very much injured, and the utter destruction of which was in a manner perfected by Buonaparte's adherence to the continental system. This, indeed, was the instrument by which, in the long run, he hoped to ruin the commerce of his rival, but the whole weight of which fell in the first instance on that of France, whose seaports showed no other shipping save coasters and fishing vessels; while the trade of Marseilles, Bourdeaux, Nantes, and other great commercial towns, had, in a great measure, ceased to exist. The government of the Emperor was proportionally unpopular in those cities; and although men kept silence, because surrounded by the spies of a jealous and watchful despotism, their dislike to the existing state of things could not entirely be concealed.320
CAPITALISTS – MANUFACTURES.
On the other hand, capitalists, who had sums invested in the public funds, or who were concerned with the extensive and beneficial contracts for the equipment and supply of Napoleon's large armies, with all the numerous and influential persons upon whom any part of the gathering in or expenditure of the public money devolved, were necessarily devoted to a government, under which, in spite of the Emperor's vigilance, immense profits were often derived, even after those by whom they were made had rendered to the ministers, or perhaps the generals, by whom they were protected, a due portion of the spoil. Economist and calculator as he was, to a most superior degree of excellence, Napoleon seems to have been utterly unable, if he really sincerely desired, to put an end to the peculations of those whom he trusted with power. He frequently, during his conversations at St. Helena, alludes to the venality and corruption of such as he employed in the highest offices, but whose sordid practices seem never to have occurred to him in the way of objection to his making use of their talents. Fouché, Talleyrand, and others, are thus stigmatized; and as we well know how long, and upon how many different occasions, he employed those statesmen, we cannot but suppose that, whatever may have been his sentiments as to the men, he was perfectly willing to compound with their peculation, in order to have the advantage of their abilities. Even when practices of this kind were too gross to be passed over, Napoleon's mode of censuring and repressing them was not adapted to show a pure sense of morality on his own part, or any desire to use extraordinary rigour in preventing them in future. This conclusion we form from the following anecdote which he communicated to Las Cases: —
Speaking of generals, and praising the disinterestedness of some, he adds, Massena, Augereau, Brune, and others, were undaunted depredators. Upon one occasion, the rapacity of the first of these generals had exceeded the patience of the Emperor. His mode of punishing him was peculiar. He did not dispossess him of the command, of which he had rendered himself unworthy by such an unsoldier-like vice – he did not strip the depredator by judicial sentence of his ill-won gains, and restore them to those from whom they were plundered – but, in order to make the General sensible that he had proceeded too far, Buonaparte drew a bill upon the banker of the delinquent, for the sum of two or three millions of francs, to be placed to Massena's debit, and the credit of the drawer. Great was the embarrassment of the banker, who dared not refuse the Imperial order, while he humbly hesitated, that he could not safely honour it without the authority of his principal. "Pay the money," was the Emperor's reply, "and let Massena refuse to give you credit at his peril." The money was paid accordingly, and placed to that General's debit, without his venturing to start any objections.321 This was not punishing peculation, but partaking in its gains; and the spirit of the transaction approached nearly to that described by Le Sage, where the Spanish minister of state insists on sharing the bribes given to his secretary.