The Napoleon exhibition at the National Gallery of Victoria has pictures of him crossing the St Bernard and the Battle of Marengo and an original copy of the Code Napoleon, now “the most widespread and important legal tradition in the modern world”. In an extract from Our Corrupt Legal System, Evan Whitton explains how there would have been no Code except for a fluke of timing at Marengo.
Sir Ludovic Kennedy noted, and Napoleon demonstrated, that justice is too important to be left to judges. European courts adopted a truth-seeking (inquisitorial) system after a conference in Rome in November 1215, but judges believed that torture is a reliable way of finding the truth. English judges made different mistakes: they rejected truth as the basis of justice in 1219, and began to let lawyers control the process in 1460.
Judicial torture was abolished in Prussia in 1754, in Italy in 1786, and in France in 1789. Revolutionary France proposed a fair society and laws based on rational principles. Jean Jacques Cambacéres spent the decade from 1789 grappling with a legal code but all his drafts were rejected. Except for an accident of history at Marengo, in North Italy, on Saturday, 14 June, 1800, the inquisitorial system might still be a shambles of local variations and interpretations.
There were two battles that day. The first was between a French army under First Consul Napoleon Bonaparte and an Austrian army under General Michael von Melas. Bonaparte, wrongly believing that Melas would retreat to Genoa, sent General Louis Desaix to cut him off, but Melas attacked at 9 am, and Bonaparte sent a message to Desaix at 11 am: “For God’s sake, come back, if still you can.”
A.G. Macdonell, author of the hilarious England, Their England, noted in Napoleon and His Marshals (Macmillan 1934, Prion 1996) that one of Bonaparte’s generals, Nicolas Soult, had been wounded and captured in a skirmish outside Genoa and was taken to an Austrian hospital at Alessandria, 5 km south-east of Marengo. Macdonell wrote:
All day long on June 14, 1800 Soult … listened to the sound of the guns at Marengo. He knew very well that the fortune of France was at stake, and that the First Consul, by coming over the St Bernard instead of making a frontal attack along the coast route, was staking everything on a single battle. For hours there was no news at Alessandria, but Soult’s expert ear told him all he needed to know. The bombardment was getting fainter and fainter, and that could only mean that the First Consul was being driven back. A French victory meant that Melas was fatally cut off from Vienna. But the coin had two sides, and an Austrian victory meant that Bonaparte was fatally cut off from France.
By 2pm that afternoon, Melas had forced the French to retreat for two miles. Macdonell: “In the afternoon of that thundery summer’s day, the first Austrian wounded began to come in to Soult’s hospital with their stories of victory all along the line, and at 4 pm there was a terrible silence in the east.”
With the battle won, Melas, who was slightly wounded, handed over command to General Anton von Zach, and retired to Alessandria. Rumours shortly reached Paris that Bonaparte was probably dead and certainly finished.
But Desaix had arrived on the field at 3pm and breezily advised the First Consul: “This battle is completely lost, but it is only two o’clock [sic]; there is time to win another.”
Macdonell: “Auguste Marmont, commanding the guns, had fought furiously all day until he had only five pieces left. Five more were brought up from the reserve and Desaix had eight.”
The so-called (at least by me) Battle of Chicken Marengo began at 5 pm with a 20-minute bombardment by Marmont’s artillery. Bonaparte’s greatest achievement, the reform of the inquisitorial system, turned on what happened in a few minutes after 5.20 pm. Macdonell briskly reported:
The French counter-attack was, by chance, one of the most perfectly timed tactical operations by combined infantry, artillery, and cavalry in the whole history of warfare … Suddenly, through the dense smoke, [Marmont] saw, not 50 yards in front, a battalion of Austrian Grenadiers advancing in perfect formation to counter the counter-attack, and some of Desaix‘s men were tumbling back in confusion. Marmont, whatever his faults might be, was a quick thinker, and he unlimbered his four guns and fired four rounds of canister at point-blank range into the compact battalion, and at that precise moment, while the Austrians were staggering under the blow and an Austrian ammunition-wagon was exploding with a monstrous detonation, Desaix went forward with a shout [and was killed by a bullet to his head], and young [Francois] Kellermann, son of old Valmy [Francois Christophe] Kellermann, came thundering down on the flank, through the mulberry trees and the tall luxuriant vines, with a handful of heavy cavalry. A minute earlier, or three minutes later, and the thing could not have succeeded, but the timing was perfect, and North Italy was recovered in that moment for the French Republic … at eight o’clock … the Austrian surgeons came rushing to their distinguished guest [Soult] with the news of the utter rout of their men.
Bonaparte, who did not eat before a battle, was famished. His cook, Dunand, invented a meal from the materials to hand, a scrawny chicken, tomatoes, mushrooms, eggs, prawns, and a crayfish, all cooked in brandy flames. Today’s Pollo Marengo is essentially chicken, mushrooms and tomatoes.
Austria sued for peace. Bonaparte hastily showed himself in Paris, falsely claimed credit for the victory and, in the breathing space acquired by the Austrian capitulation, applied his intellect and energy to drafting a code of civil law. He said he wanted everyone to be able to read and understand the code and so know his duty.
In August 1800, Napoleon set up a committee of four lawyers, of whom the most significant were Jean-Étienne-Marie Portalis, nearly blind, 54, and François-Denis Tronchet, 73. They met in Tronchet’s house, and had a draft printed by 1 January 1801. Judges added their comments and the draft was discussed clause-by-clause at more than 90 meetings of the Council of State (Conseil d’Etat) between July and December 1801.
Napoleon read law books to prepare himself and chaired more than half the meetings. A council member, Antoine Thibaudeau, said Bonaparte “‘took a very active part in the debates, beginning, sustaining, directing, and reanimating them by turns”. General Marmont, 26, hero of Marengo, attended a number of sessions. He said Napoleon was:
… silent at first, until members had put forward their opinions, he would then begin to speak, and often presented the question from an entirely different point of view. He commanded no eloquence, but had a flowing delivery, a compelling logic, and a forcible manner of objection. He was extremely fertile in ideas, and his speech gave evidence of a wealth of expression which I have experienced in no one else. His extraordinary intellect shone out in these debates, where so many topics were entirely foreign to him.
Bonaparte himself said:
In these discussions I have sometimes said things which a quarter of an hour later I have found were all wrong. I have no wish to pass for being worth more than I really am … Tronchet, I admire your intelligence and the strength of your memory. For a man of your age, it is exceptional and deserves to be pointed out. Portalis, you would be the greatest of speakers if you only knew when to stop … Cambacéres, I sometimes suspect you of behaving like a talented lawyer who can defend a case or reject an idea without the slightest reference to his own personal feelings.
Portalis presented the first eight articles of the Code to the Tribunate on 24 November 1801, but it was rejected 65-13. Napoleon withdrew the draft on 3 January 1802 and removed obstructive Tribunes. The 36 sections of the Civil Code, largely written by Portalis, were enacted, one after the other, from March 1803 through to March 1804. In all, the code had 2,281 clauses.
Other codes produced at Bonaparte’s instigation were the Code de Procedure Civile (1806), Code de Commerce (1807), Code d’Instruction Criminelle (Code of Criminal Investigation 1808), and Code Penal (1810). Along with the Civil Code, they are regarded as the Napoleonic Code. The Criminal Code invented the juge d’instruction (investigating judge) and reinforced the objective, “the manifestation of the truth”.
Napoleon said: “My glory is not to have won forty battles, for Waterloo’s defeat will blot out the memory of as many victories. But nothing can blot out my Civil Code. That will live eternally.” Yale law professor Morris L. Cohen wrote in Law: The Art of Justice (Levin, 1992):
The Napoleon codification successfully achieved a number of goals. The law was to be accessible to all, uniform throughout France and based on democratic principles and economic liberalism. The code is still considered a masterpiece of French prose, and has been called the greatest book of French literature by the poet Paul Valery. The Civil Code was supposed to have been read regularly by the novelist Stendahl as a stylistic model for his own writing. It was quickly translated into many languages and its popularity spread throughout Europe. Similar codes were enacted in most of the countries of the world which were not under the common law system. What had started as a French achievement became a model for a worldwide legal revolution.
Professor George Dargo, of the New England School of Law, says Napoleon’s system “is the most widespread and important legal tradition in the modern world”.
US law professor Darien McWhirter placed Napoleon a distant 36th in his list of 100 persons who most influenced the law.
Footnote: Except for another accident of history, our legal system might be better (not to mention the anthem and the food). When England, which had bankrolled two previous anti-French coalitions, declared war on France in May 1803, Napoleon determined to settle its hash once and for all, but had to call off his planned invasion in 1805 when Admiral Villeneuve failed to follow his instructions.
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