¡Descarga NAPOLEONIC CIVIL CODE IN SPAIN y más Apuntes en PDF de Administración de Empresas solo en Docsity!
NAPOLEONIC
CIVIL CODE IN
SPAIN
Guillermo Martín Correa
The Napoleonic Code is the French civil code established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs should go to the most qualified.
It was drafted by a commission of four eminent jurists and entered into force on 21 March 1804. The Code, with its stress on clearly written and accessible law, was a major step in replacing the previous patchwork of feudal laws. Historian Robert Holtman regards it as one of the few documents that have influenced the whole world.
The Napoleonic Code was not the first legal code to be established in a European country with a civil legal system; it was preceded by the Codex Maximilianeus bavaricus civilis (Bavaria, 1756), the Allgemeines Landrecht (Prussia, 1794), and the West Galician Code ( Galicia, then part of Austria, 1797). It was, however, the first modern legal code to be adopted with a pan-European scope, and it strongly influenced the law of many of the countries formed during and after the Napoleonic Wars. The Napoleonic Code was very influential on developing countries outside of Europe, especially in the Middle East, that were attempting to modernize their countries through legal reforms.
The categories of the Napoleonic Code were not drawn from earlier French laws, but instead from Justinian's sixth-century codification of Roman law, the Corpus Juris Civilis and, within it, the Institutes. The Institutes divide law into the law of:
- persons
- things
- actions.
Similarly, the Napoleonic Code divided law into law of:
- persons
- (^) property
- acquisition of property
- civil procedure (removed into a separate code in 1806).
Napoleonic reforms
Napoleon set to reform the French legal system in accordance with the ideas of the French Revolution, because the old feudal and royal laws seemed confusing and contradictory to the people. Before the Code, France did not have a single set of laws; law consisted mainly of local customs, which had sometimes been officially compiled in "customals" ( coutumes ), notably the Coutume de Paris. There were also exemptions, privileges, and special charters granted by the kings or other feudal lords. During the Revolution, the last vestiges of feudalism were abolished.
Specifically, as to civil law, the many different bodies of law used in different parts of France were to be replaced by a single legal code. Leading this drafting process was Jean-Jacques Régis de Cambacérès. His drafts of 1793 (for which he had been given a one-month deadline), 1794, and 1799, however, were adopted only piecemeal by
of communication available at the time). Thus, no secret laws were authorized. It prohibited ex post facto laws (i.e. laws that apply to events that occurred before their introduction). The code also prohibited judges from refusing justice on grounds of insufficiency of the law, thereby encouraging them to interpret the law. On the other hand, it prohibited judges from passing general judgments of a legislative value.
With regard to family, the Code established the supremacy of the man over the wife and children, which was the general legal situation in Europe at the time. A woman was given fewer rights than a minor. Divorce by mutual consent was abolished in 1804.
The Bayonne Statute
The Bayonne Statute also Bayonne Constitution or Bayonne Charter and, officially in French, “Acte Constitutionnel de l’Espagne” was a constitution or a royal charter approved in Bayonne, France, 6 July 1808, by Joseph Bonaparte as the intended basis for his rule as king of Spain.
The statute was Bonapartist in overall conception, with some specific concessions made in an attempt to accommodate Spanish culture. Few of its provisions were ever put into effect: Joseph Bonaparte's reign as Joseph I of Spain was a period of continuous conventional and guerrilla war
In 1808, after a period of shaky alliance between the Spanish Antiguo Régimen and the Napoleonic French First Empire, the Mutiny of Aranjuez (17 March 1808) removed the king's minister Manuel de Godoy, Prince of the Peace, and led to the abdication of king Charles IV of Spain (19 March 1808). His son Ferdinand VII briefly held the reins of power, but Napoleon determined to settle the monarchy of Spain on a member of his own family, his older brother Joseph.
On 5 May 1808, Charles IV renounced his rights to the Spanish Crown in favor of Napoleon. Later the same day, Ferdinand VII, unaware of Charles's abdication, abdicated in favor of his father, effectively passing the Crown to Napoleon. Along with other Spanish members of the House of Bourbon, including Infante Antonio Pascual of Spain, they went into a comfortable, if forced, exile in France, at the Château de Valençay.
In an attempt to conform at least mildly to the tradition of legal continuity, Napoleon ordered his general Joachim Murat, Grand Duke of Berg, to convene in Bayonne a Cortes of thirty deputies chosen from among the notables of Spain to help draft and to approve the constitutional basis for the new regime. However, in the context of the Dos de Mayo Uprising in Madrid and various other uprisings elsewhere in Spain, only about a third of the invited Spanish notables attended.[4]^ On 4 June 1808, Napoleon designated his brother Joseph
as king of Spain;[4]^ he was proclaimed king at Madrid on 25 July. The rump Cortes began meeting in Bayonne on 15 June to begin drafting a "constitution",for which Napoleon provided them with an extensive initial draft; it was promulgated July 8.
The Bayonne Statute placed many nominal limits on royal power, but few effective ones. There was to be a tricameral legislature; nine ministers (as against five or six in recent Bourbon governments); an independent judiciary; and various individual liberties were recognized, though not freedom of religion. Although generally Bonapartist in conception, the statute shows clear influence by the few Spanish notables who were involved in drafting it that it retained Catholicism as a state religion, and banned all other religions. In the Spanish tradition, it was promulgated "In the name of God Almighty" ( "En el nombre de Dios Todopoderoso" ).
In the event, most provisions of the Statute were never put into practice: throughout the entire Bonapartist period in Spain, the constitution was effectively suspended by French military authorities. Most decisions were made by Napoleon and his generals, not by King Joseph. Nonetheless, French-controlled Spain saw some serious attempts at liberalreform, though many of them ignored the Bayonne Statute and, of course, this legislation was not recognized after the Bourbons were restored. The new regime abolishedfeudalism , the Inquisition, and the Council of Castile; suppressed numerous convents and monasteries as well as all military orders; declared that no new mayorazgos could be created; divided the country into French- style departments; abolished internal customs borders and many state monopolies; abolished the Mesta (a powerful association of sheep holders) and the tax known as the Voto de Santiago ; privatized numerous state-owned factories; and began to introduce the Napoleonic code into Spain's system of law.
on the night of 2 May 1808, and was immortalized by Francisco Goya 's painting The Second of May 1808 , also known as The Charge of the Mamelukes.
Napoleon's forces faced both Spanish regular troops and partisans and later British troops under the Arthur Wellesley. The Spanish partisans organized an interim Spanish government, the Supreme Central Junta and called for a Cortes to convene with representatives from all the Spanish provinces throughout the worldwide empire, in order to establish a government with a firm claim to legitimacy. The Junta first met on 25 September 1808 in Aranjuez and later in Seville, before retreating to Cádiz.
The Supreme Central Junta, originally under the leadership of the elderly Count of Floridablanca, initially tried to consolidate southern and eastern Spain to maintain continuity for a restoration of the Bourbons. However, almost from the outset they were in physical retreat from Napoleon's forces, and the comparative liberalism offered by the Napoleonic regime made Floridablanca's enlightened absolutism[3]^ a likely basis to rally the country. In any event,
Floridablanca's strength failed him and he died on 30 December 1808.
When the Cortes convened in Cádiz in 1810, there appeared to be two possibilities for Spain's political future if the French could be driven out. The first, represented especially by Gaspar Melchor de Jovellanos , was the restoration of the absolutist Antiguo Régimen ("Old Regime"); the second was to adopt some sort of written constitution.
Retreating before the advancing French and an outbreak of yellow fever, the Supreme Central Junta moved to Isla de León, where it was protected by the British Royal Navy, and abolished itself, leaving a regency to rule until the Cortes could convene.
The origins of the Cortes did not harbor any revolutionary intentions, since the Junta saw itself simply as a continuation of the legitimate government of Spain. The opening session of the new Cortes was held on 24 September 1810 in the building now known as the Real Teatro de las Cortes. The opening ceremonies included a civic procession, a mass, and a call by the president of the Regency, Pedro Quevedo y Quintana, the bishop of Ourense, for those present to fulfill their task loyally and efficiently. Still, the very act of resistance to the French involved a certain degree of deviation from the doctrine of royal sovereignty: if sovereignty resided entirely in the monarch, then Charles and Ferdinand's abdications in favor of Napoleon would have made Joseph Bonaparte the legitimate ruler of Spain.
The representatives who gathered at Cádiz were far more liberal than the elite of Spain taken as a whole, and they produced a document far more liberal than might have been produced in Spain were it not for the war. Few of the most conservative voices were at Cádiz, and there was no effective communication with King Ferdinand, who was a virtual prisoner in France. In the Cortes of 1810-1812, liberal deputies, who had the implicit support of the British who were protecting the city, were in the majority and representatives of the Church and nobility constituted a minority. Liberals wanted equality before the law, a centralized government, an efficient modern civil service, a reform of the tax system, the replacement of feudal privileges by freedom of contract, and the recognition of the property owner's right to use his property as he saw fit. Three basic principles were soon ratified by the Cortes: that sovereignty resides in the nation, the legitimacy of Ferdinand VII as king of Spain, and the inviolability of the deputies. With this, the first steps towards a political revolution were taken, since prior to the Napoleonic intervention, Spain had been ruled as an absolute monarchy by theBourbons and their Habsburg predecessors. Although the Cortes was not unanimous in its liberalism, the new Constitution reduced the power of the crown, the Catholic Church (although Catholicism remained the state religion), and the nobility.
The Cortes of Cádiz worked feverishly and the first written Spanish constitution was promulgated in Cádiz on 19 March 1812. The Constitution of 1812 is regarded as the founding document of liberalism in Spain and one of the first examples of classical liberalism or conservative liberalism worldwide. It came to be called the "sacred code" of the branch of liberalism that rejected the French Revolution, and during the early nineteenth century it served as a model for liberal constitutions of several Mediterranean and Latin American nations. It served as the model for the Norwegian Constitution of 1814, thePortuguese Constitution of 1822 and the Mexican one of 1824, and was implemented with minor modifications in various Italian states by the Carbonari during their revolt of 1820 and 1821.
As the principal aim of the new constitution was the prevention of arbitrary and corrupt royal rule, it provided for a limited monarchy which governed through ministers subject to parliamentary control. Suffrage, which was not determined by property qualifications, favored the position of the commercial class in the new parliament, since there was no special provision for the Church or the nobility. The constitution set up a rational and efficient centralized administrative system for the whole monarchy based on newly reformed and uniform
nation is the collectivity of the Spaniards of both hemispheres." Voting rights were granted to Spanish nationals whose ancestry originated from Spain or the territories of the Spanish Empire. This had the effect of changing the legal status of the people not only in peninsular Spain but in Spanish possessions overseas. In the latter case, not only people of Spanish ancestry but also indigenous peoples as well were transformed from the subjects of an absolute monarch to the citizens of a nation rooted in the doctrine of national, rather than royal, sovereignty. At the same time, the Constitution recognized the civil rights of free blacks and mulatos but explicitly denied them automatic citizenship. Furthermore, they were not to be counted for the purposes of establishing the number of representatives a given province was to send to the Cortes. That had the effect of removing an estimated six million people from the rolls in the overseas territories. In part, this arrangement was a strategy by the peninsular deputies to achieve equality in the number of American and peninsular deputies in the future Cortes, but it also served the interests of conservative Criollo representatives, who wished to keep political power within a limited group of people.
The peninsular deputies, for the most part, were also not inclined towards ideas of federalism promoted by many of the overseas deputies, which would have granted greater self-rule to the American and Asian territories. Most of the peninsulares , therefore, shared the absolutists' inclination towards centralized government. Another aspect of the treatment of the overseas territories in the constitution (one of the many that would prove not to be to the taste of Ferdinand VII) that by converting these territories to provinces, the king was deprived of a great economic resource. Under the Antiguo Régimen , the taxes from Spain's overseas possessions went directly to the royal treasury; under the Constitution of 1812, it would go to the state administrative apparatus.
The influence of the 1812 Constitution on the emerging states of Latin America was quite direct. Miguel Ramos Arizpe of Mexico, Joaquín Fernández de Leiva of Chile, Vicente Morales Duárez of Peru and José Mejía Lequerica of Ecuador, among other significant figures in founding American republics, were active participants at Cádiz. One provision of the Constitution, which provided for the creation of a local government (an ayuntamiento ) for every settlement of over 1, people, using a form of indirect election that favored the wealthy and socially prominent, came from a proposal by Ramos Arizpe. This benefited thebourgeoisie at the expense of the hereditary aristocracy both on the Peninsula and in the Americas, and in the Americas, it
was particularly to the advantage of the Criollos, since they came to dominate the ayuntamientos. It also brought in a certain measure of federalism through the back door, both on the peninsula and overseas: elected bodies at the local and provincial level might not always be in lockstep with the central government.
