Napoleonic code excerpt
Published on: Mar 3, 2016
Transcripts - Napoleonic code excerpt
NAPOLEONIC CODE EXCERPTPreliminary Title: Of the Publication, Effect, and Application of the Laws in General 1. The laws are executory throughout the whole French territory, by virtue of the promulgation thereof made by the First Consul. They shall be executed in every part of the Republic, from the moment at which their promulgation can have been known. The promulgation made by the First Consul shall be taken to be known in the department which shall be the seat of government, one day after the promulgation; and in each of the other departments, after the expiration of the same interval augmented by one day for every ten myriameters (about twenty ancient leagues) between the town in which the promulgation shall have been made, and the chief place of each department. 2. The law ordains for the future only; it has no retrospective operation. 3. The laws of police and public security bind all the inhabitants of the territory. Immovable property, although in the possession of foreigners, is governed by the French law. The laws relating to the condition and privileges of persons govern Frenchmen, although residing in a foreign country. 6. Private agreements must not contravene the laws which concern public order and good morals.Book I: Of PersonsTitle I: Of the Enjoyment and Privation of Civil Rights 1. The exercise of civil rights is independent of the quality of citizen, which is only acquired and preserved conformably to the constitutional law. 8. Every Frenchman shall enjoy civil rights.Chapter VI: Of the Respective Rights and Duties of Married Persons 212. Married persons owe to each other fidelity, succor, assistance. 213. The husband owes protection to his wife, the wife obedience to her husband. 214. 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 every necessity for the wants of life, according to his means and station. 215. The wife cannot plead in her own name, without the authority of her husband, even though she should be a public trader, or noncommunicant, or separate in property. 216. The authority of the husband is not necessary when the wife is prosecuted in a criminal manner, or relating to police. 217. A wife, although noncommunicant or separate in property, cannot give, pledge, or acquire by free or chargeable title, without the concurrence of her husband in the act, or his consent in writing. 218. If the husband refuses to authorize his wife to plead in her own name, the judge may give her authority. 219. If the husband refuses to authorize his wife to pass an act, the wife may cause her husband to be cited directly before the court of the first instance, of the circle of their common domicil[e], which may give or refuse its authority, after the husband shall have been heard, or duly summoned before the chamber of council. 220. The wife, if she is a public trader, may, without the authority of her husband, bind herself for that which concerns her trade; and in the said case she binds also her husband, if there be a community between them. She is not reputed a public trader if she merely retails goods in her husband’s trade, but only when she carries on a separate business. 221. When the husband is subjected to a condemnation, carrying with it an afflictive or infamous punishment, although it may have been pronounced merely for contumacy, 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, who may in such case give his authority without hearing or summoning the husband. 226. The wife may make a will without the authority of her husband.Title VI: Of DivorceSection II: Of the Provisional Measures to Which the Petition for Cause Determinate May Give Rise 267. The provisional management of the children shall rest with the husband, petitioner, or defendant, in the suit for divorce, unless it be otherwise ordered for the greater advantage of the children, on petition of either the mother, or the family, or the government commissioner. 271. Every obligation contracted by the husband at the expense of the community, every alienation made by him of immovable property dependent upon it, subsequent to the date of the order mentioned in article 238, shall be declared void, if proof be given, moreover, that it has been made or contracted in fraud of the rights of the wife.Title IX: Of Paternal Power 375. A father who shall have cause of grievous dissatisfaction at the conduct. of a child, shall have the following means of correction. 376. If the child has not commenced his sixteenth year, the father may cause him to be confined for a period which shall not exceed one month; and to this effect the president of the court of the circle shall be bound, on his petition, to deliver an order of arrest. 377. From the age of sixteen years commenced to the majority or emancipation, the father is only empowered to require the confinement of his child during six months at the most; he shall apply to the president of the aforesaid court, who, after having conferred thereon with the commissioner of government, shall deliver an order of arrest or refuse the same, and may in the first case abridge the time of confinement required by the father. 379. The father is always at liberty to abridge the duration of the confinement by him ordered or required. If the child after his liberation fall into new irregularities, his confinement may be ordered anew, according to the manner prescribed in the preceding articles.Book III: Modes of Acquiring PropertyTitle I: Of Successions818. The husband may, without the concurrence of his wife, claim a distribution of objects movable orimmovable fallen to her and which come into community; with respect to objects which do not come intocommunity, the husband cannot claim the distribution thereof without the concurrence of his wife; he can onlydemand a provisional distribution in case he has a right to the enjoyment of her property. The co-heirs of thewife cannot claim final distribution without suing the husband and his wife.Title II: Donations and Wills905. A married woman cannot make donation during life without the assistance or the special consent of herhusband, or without being thereto authorized by the law, conformably to what is prescribed by articles 217 and219, under the title “Of Marriage.?She shall not need either the consent of her husband, or the authorization ofthe law, in order to dispose by will.Chapter IV: Of Donations During Life
Section II: Of the Administration of the Community, and of the Effect of the Acts of Either of the MarriedParties Relating to the Conjugal Union 1421. The husband alone administers the property of the community. He may sell it, alienate and pledge it without the concurrence of his wife. 1424. Fines incurred by the husband for a crime not importing civil death, may be sued for out of the property of the community, saving the compensation due to the wife; such as are incurred by the wife cannot be put in execution except out of her bare property in her personal goods, so long as the community continues. 1427. The wife cannot bind herself nor engage the property of the community, even to free her husband from prison, or for the establishment of their children in case of her husband’s absence, until she shall have been thereto authorized by the law.1428. The husband has the management of all the personal property of the wife. He may prosecute alone all possessory actions and those relating to movables, which belong to his wife. He cannot alienate the personal immovables of his wife without her consent. He is responsible for all waste in the personal goods of his wife, occasioned by the neglect of conservatory acts.Section II: Of the Rights of the Husband over the Property in Dowry, and of the Inalienable Nature of the Fundsof the Dower1549. The husband alone has the management of the property in dowry, during the marriage. He has alone theright to use the debtors and detainers thereof, to enjoy the fruits and interest thereof, and to receivereimbursements of capital. Nevertheless it may be agreed, by the marriage contract, that the wife shall receiveannually, on her single acquaintance, a part of her revenues for her maintenance and personal wants.[Source: E. A. Arnold, ed. and trans., A Documentary Survey of Napoleonic France (Lanham, MD: UniversityPress of America, 1993), pp. 151-164, quoted in Laura Mason and Tracey Rizzo, eds., The French Revolution:A Document Collection (New York: Houghton Mifflin, 1999), pp. 340-347.]
NAPOLEON’S CIVIL CODE – ARTICLE OVERVIEWThe Code itself, following the plan of Roman law, is divided into "books," each book is then divided into"titles" dealing with specific aspects of the law such as successions, marriage, etc. The Civil Code, comprising2,281 articles (120,000 words) has a Preliminary Title of six articles and three books. The Preliminary Titlewas intended by Portalis to be a longer, 39 article, "philosophical" consideration and justification of the Code.Book One, entitled "Of Persons," contains Articles 7 through 515, and deals with the status of aliens in France,marriage, divorce, paternal power, guardianship, emancipation, incapacities, the family council, etc. Book Two,entitled "Of Property, and the Different Modifications of Property," contains Articles 516 through 710, concernsthe ownership property, usufruct, servitudes, etc. Book Three, the longest, is entitled "Of the Different Modesof Acquiring Property," contains Articles 711 to 2281. This book covers successions, gifts and wills,obligations, contracts, matrimonial property systems, liens, mortgages, etc. This book has been criticized asbeing a bit of a catchall.The Civil Code is, in the view of one commentator, "a literary as well as a legal masterpiece; its language isclear and precise, concise and direct….The provisions of the Code are neither vague nor subtle; qualifications,limitations, and exceptions are kept down to a bare minimum; confusing casuistry and sterile abstractions areentirely absent….Its provisions are neither too reactionary nor too revolutionary and strike a successful balancebetween a prudent liberalism and an enlightened conservatism…" Portalis observed that, "The function of thelaw is to determine, by means of basic concepts, the general precepts of the law, and to establish principlesfertile in consequence, rather than to go into the details of questions that may arise with regard to each particularmatter. It is for the judge and the lawyer, who are imbued with the spirit of a legal system, to attend to itsimplementation."The Code Civil guaranteed equality before the law. The law was the same for all throughout France. But thatequality was not absolute. Foreigners, for instance, were not granted civil rights, nor was a wife equal to herhusband, nor legitimate and illegitimate children. Property was of first importance, it was freed of feudalburdens and the owner enjoyed exclusive rights to it. Property ownership was absolute, exclusive andperpetual. The Code also instituted the punishment of "civil death" (morte civile), a legal fiction by which theperpetrators of certain classes of crimes were held to be legally dead. Their marriages were dissolved, theirchildren considered orphans and the legally dead were unable to own, purchase or dispose of property. Civildeath was pronounced in cases where the condemned had escaped or were tried in absentia. Civil death wasabolished in 1854.Article 544 defined property as the "right of enjoying and disposing of things in the most absolute manner,provided they are not used in a way prohibited by the laws or statutes." The absolute right to property benefitedthe peasant landowner as much, if not more, than the large landowner. But the Code did not protect, to the sameextent, the interests of those without property or of groups. To protect property the Code safeguarded the estatesof minors and married women and limited property-owners from squandering their estates. Those withoutproperty were not so protected, for example, contracts for hire and rural wage labor were not regulated, nor wassharecropping, and Article 1781 stated that in labor disputes, "the master is believed on his affirmation." Tradeunions and strikes were declared illegal. Robert B. Holtman has pointed out that the "bourgeois protection ofproperty, which some of the French looked on as reactionary—and these were due not to Bonaparte, but to thelawyers—were progressive or even revolutionary for the rest of Europe."