Chapter 21

THE CODE AND THE UNIVERSITY[21]

[Footnote 21: Blanc: Napoleon Ier, ses institutions civiles et administratives; Sabatier: Le Code Civil; Aucoc: Le conseil d'état; Duvergier de Hauranne: Histoire du gouvernement parlementaire en France; Bignon: Histoire de France; Ernouf: Maret, duc de Bassano; Hélie: Les constitutions de la France; Duruy: L'Instruction et la Révolution; Hahn: Unterrichtswesen in Frankreich; Cambacérès: Éclaircissements inédits--quoted at length in Vandal: L'Avènement de Bonaparte, tome II; Nougaret de Fayet: Notice sur la vie et les travaux de M. le comte Bigot de Préameneu; Locré de Roissy: Procès-verbaux du conseil d'état, contenant la discussion du projet de Code Civil.]

The Preparation of the Code -- The Men who Made it -- Its Defects -- The Changes it Wrought -- The Benefits it Conferred -- French Education under Royalty -- Schemes of the Revolution -- Bonaparte's Aims in Education -- His Preliminary Measures -- The University of France.

The climax of these beneficent changes was a corresponding reform and simplification of the laws. The name of Napoleon has been erased from many of his institutions, but it still endures on that splendid system of jurisprudence known as the Code Napoléon, and in the annals of law-making it vies in luster with that of Justinian. The monarchy, before its fall, had become aware of the inconvenience attaching to the diversity of legal practice in the various French provinces. At one extreme was the old customary law of the northern inhabitants, at the other was the nearly pure Roman law of the south, and between them every variety of peculiar and complicated local practice. One of the meanings of the Revolutionary watchword "Equality" was the reform of this inequality; but the turmoil prevalent during the years of the Assembly, the Convention, and the Directory had made it impossible to complete the work. Nevertheless, those years had been full of discussion, and Cambacérès had a project in readiness. So convinced was Bonaparte of the urgency of reform that on the very night in which he assumed the reins of government the two commissions were charged with the performance of the repeated promises which every republican government had made. A statute was formulated, and passed on August twelfth, 1800. In accordance with its provisions, a committee of three great jurists--Tronchet, Bigot de Préameneu, and Portalis, with Malleville as secretary--was appointed to make a draft. This was completed in four months, submitted to the courts of appeal for suggestions, and then in the council of state, the sessions of which Bonaparte regularly attended, was speedily revised into its final form. In the following year the code was promulgated.

The famous body of laws owes its solid value to its historical foundation; for it is a compound of the ancient customs, the Roman law, and the experiences of the Revolution, the third element dominating the other two. Cambacérès's project is its basis, the deliberations of the commissions molded its form, its paragraphs were polished in the council of state according to the opinions of Boulay de la Meurthe, Berlier, Treilhard, Cambacérès, and Lebrun, and Bonaparte himself was the author of many radical regulations concerning marriage, divorce, and property. Simplicity, directness, comprehensibility, and appropriateness are the marks of the entire structure, as they are confessedly characteristic of the First Consul's mind. His good sense and his diligence are stamped on every page. On the other hand, in many places it bears also the marks of his unscientific and untrained intellect; and Savigny, the Prussian jurist, went so far as to characterize it as a "political malady."

This remark is true, but only in the sense that, as in the Roman empire, so in Napoleonic France, civil liberty developed in an inverse ratio to political liberty. Austin thought the code was compiled in haste and ignorance, and that its lack of definitions to the terms employed, together with the absence of expositions either of principles or of distinctions, gave it a "fallacious brevity." Nevertheless, this very simplicity and brevity have been its strength, and to this day--with, of course, many substantive modifications, but still in an undisturbed identity--it successfully dominates France, Italy, Holland, Belgium, and many important parts of Germany. Believing it to be the most enduring portion of his labors, Bonaparte to the latest day of his life claimed the exclusive credit of its creation, to the unjust disparagement of the other great minds which coöperated in its formation.

A few of the more easily comprehensible changes which it wrought will illustrate its character. There are four divisions--one introductory, the other three treating respectively of the law of persons, the law of things, and the law of property and inheritance. The subject of the civil law, the ego, the object of the civil law, the objective or natural world, the relation between the two, or property--such is, in a word, the method; the equality of all men before the law is its principle; the respect for property and the directness of litigation are its aims. Hereditary nobility and primogeniture were definitely abolished--every child, of either sex, having equal rights of inheritance before the law. The right of testamentary disposition was extended so as to give greater liberty while not interfering with the principle of family solidarity. To Jews were given the complete rights of all other citizens, under a series of far-seeing and wise provisions, set forth in special statutes, which destroyed many of their antiquated customs, and all the shifts by which they had hitherto avoided many civil obligations and still evaded the performance of duties which weighed heavily on others. Every religious confession was recognized, and all were alike supported by the state; but the members of all were obliged to submit to official registration, and to consent to the rite of civil marriage. While, on the one hand, the necessity of divorce under certain conditions was recognized and provisions were made for it; on the other, a series of stringent and even barbarous regulations knitted the family more closely together than ever before, or elsewhere in the world, and made it a social rock against which political storms beat in vain to shake the established order. Napoleon's iron will alone realized the notions of regenerating feudal society which philosophers had formed and agitators had sought in vain to establish.

The evils of both absolute royalty and feudalism were thus removed from a vast population in western Europe which had groaned under their burdens long after they had ceased to have any meaning or historical vitality; and besides, the process of assimilation in life and thought was measurably assisted by the adoption of identical laws among millions of men differing in blood and language. The good work was further promoted by a series of complementary codes of criminal procedure and of commerce which are as potent and beneficent to-day as when they were enacted. It is useless in this connection to compare the respective merits of corresponding institutions among the Latin and Teutonic state systems of Europe, or to enter on the long and bitter controversy waged between French and English publicists. The essential thing is a comparison between what Napoleon found and what he left among the same peoples, and this proclaims him one of the great social reformers of the world.

In no respect was the work of the Revolution more complete than in regard to education. Royal France had a pompous list of academies, scientific and special schools, universities, colleges, and common schools. Their arrangements were haphazard, their origin and management for the most part were ecclesiastical, and their patronage was strictly ordered by social rank. Primary education, being dependent altogether on the parishes, was in the main contemptible. There were many great scholars and teachers, and a few choice institutions; but the dependence of all on either the royal favor or on the Roman hierarchy, or on both, rendered the measure of their efficiency proportionate to the interest taken in them by crown and church. There was consequently no general system efficacious either in all its parts or even in all branches of one division.

The passion for national unity manifested itself, among other things, in a demand for a system of national education. The great men of the Assembly and of the Convention bent their shoulders to the task. For the first time in the history of the nation it was recognized that after the leveling of classes, the only guarantee for social order in the future was to be found in the education of the masses. Accordingly, they outlined a grand scheme of graded instruction. The foundation was popular education by the primary school; then came a system of middle or secondary schools; and then instruction by professional faculties, including a magnificent normal school for the training of teachers, and a polytechnic institution of the first order. The whole was to be crowned by a museum, the College of France, and the Institute. Education was to be gratuitous and obligatory. The essential feature of the entire plan was the character of the primary school, which was not to teach merely the necessary rudiments of reading, writing, and ciphering, but the introductory elements of the complete encyclopedia of instruction. The whole structure was purely secular, and no account was taken of the education of females after the age of eight. It was declared that young girls should be trained by their parents, and entirely at home. Condorcet alone believed in the intellectual equality of the sexes. Lakanal secured a decree for mixed schools, under certain conditions, in which the daughters of the republic should have the same instruction as its sons "as far as their sex would permit"; but they were to be chiefly occupied with spinning, dressmaking, and the domestic arts then considered the chief ones proper to their sex. Some parts of the enormous design were put into operation, but it was found to transcend the abilities of an unsettled people. Talleyrand pared down its dimensions, but at the fall of the Directory nothing had been accomplished except the foundation of the polytechnic school.

It is well known that Bonaparte prepared himself for the rôle of lawgiver by devouring the books lent him by Cambacérès, and by studying the memorials already prepared by the Convention. Even then, however, he was in the main guided by his instinct, combined with his profound knowledge of men. The latter was his sole guide in elaborating his scheme of public instruction. Talleyrand's plan was before him, but the conclusion was his own. He was not at all concerned to make scholars or to increase knowledge. He was stubbornly determined to make citizens, as he understood the word. In a time of utter chaos he professed himself indifferent to ideals, and was animated by a purely practical spirit, doing nothing but what appeared immediately essential. For this reason, in carrying out his plan, he selected as an agent no expert with wide experience and settled convictions, but an excellent chemist who had been a member of the notorious Committee of Public Safety, and within a narrow horizon had good capacities. To Fourcroy alone was intrusted the formulation of a measure which, as Roederer said in its support, was a political institution intended to unite the present generation with the rising one, to bind the fathers to the government by their children and the children by their fathers--in short, to establish a sort of public paternity.

The religious societies which still retained their hold on such instruction as there was had no connection with the state, and very little with the new society. The new system was ingeniously devised to bind up the youth of the nation with both the political and social life of the new France. There was to be in every commune a primary school with teachers appointed by the mayor, under supervision of the subprefect. Next in order were secondary schools in the chief town of every department, under supervision of the prefect; and coördinate with these were such private schools as would submit to government regulations. The next stage was composed of a limited number of lyceums or colleges with both a classical and a modern side. These were open only to such students as had gained distinction in the grade below, and from them in turn a fifth were promoted to the professional schools. Of these there were nine categories: law; medicine; natural science; mechanical and chemical technology; higher mathematics; geography, history, and political economy; the arts of design; astronomy; music and the theory of composition. The First Consul would listen to no more comprehensive or enlightened plan until this should first be put into successful execution, as it soon was under his impulse and Fourcroy's guidance.

Thereupon his ultimate object was unveiled. A few years later came into existence the so-called University of France, whereby all instruction was as perfectly centralized as administration had been. There were three articulated degrees, primary, secondary, and superior, controlled by a complete and rigid system of central inspection. All institutions of each degree were divided by vertical lines of territorial division into academies, each of which had its own rector. These were in turn controlled by a superior council and a grand master. The normal school was revived, military uniform and discipline were introduced into the lyceums, and the instruction was carefully directed toward imbuing the mind with notions suited to the new conditions of French life, as Bonaparte meant to mold them. The corporate university, as a whole, was not a portion of the ministry, but while subordinate was distinct. This provision has probably been the cause of a permanence which no political revolution has been able to destroy. It is only since the Church secured permission for the erection of faculties supported and controlled by itself that there have been signs of any change of organization or any return to academic liberty in the state institutions.