Jean-Etienne Portalis (1746 1807),
Author of the Civil Code
by Jean-Luc Chartier, Officier
The First Empire, established just a few weeks after the enactment of the Civil Code on 30 Ventôse of Year XII (March 21, 1804), claimed the Code as one of its greatest glories. Legend in fact tended to attribute it solely to Napoleon’s genius. In a law dated September 3, 1807, the Civil Code of the French was renamed Napoleon Code, just a few days after the death of one of its authors, Jean-Etienne Portalis.
Napoleon himself admitted in his Mémorial de Sainte Hélène, My true glory is not having won forty battles; Waterloo will erase the memory of my many victories. What nothing will erase, what will live forever, is my Civil Code and the proceedings of the Council of State. His prediction was prophetic. The Civil Code of the French has not only governed the French legal system for the last two hundred years, but it is the foundation today of the laws in a large part of Europe Belgium, Luxembourg, Germany, the Netherlands, Italy, Spain, and Poland as well as in South America Argentina and Bolivia and in the Middle and Far East Egypt, and even Japan.
Jean-Etienne Marie Portalis, who became Napoleon‘s closest advisor during the drafting of the Civil Code, came to the First Consul on the recommendation of Cambacérès, Second Consul and future Arch-Chancellor of the Empire. Convinced from the outset of his mission’s importance, Portalis declared, General, there is no greater monument to a nation than a code of laws. For you who have worked with us, and perhaps more than us, this is not news.
It is true that, without the First Consul’s resolve and Portalis’s skill, the Civil Code of the French would probably never have existed. Bonaparte expended as much energy having the texts passed as he did on the battlefield. It is said that, in the middle of the night drafting sessions sometimes lasted until 2:00 a.m. he would roughly shake his exhausted Councilors, Gentlemen, wake up!, he would cry, It is only two o’clock; we must earn the money the people of France are paying us! And he added, speaking of Portalis, Thus assisted, we will accomplish great things.
Born in Provence on April 1, 1746, Jean- Etienne Marie Portalis dedicated his life to law. He became a lawyer in Parliament at the young age of 19 and very quickly acquired a considerable reputation, demonstrating his talent in several high-profile trials, notably against Beaumarchais (the author of Figaro) and Mirabeau (the French Revolution orator), who held it against him the rest of his life.
Early on, various legal authorities consulted him on important subjects. A 1787 decree on the validity of marriages between Protestants, who, at the time, had no legal status, is largely based on his studies. Adviser to the city of Aix and its Representative in Paris in 1782, he opposed Lamoignon’s decrees, intended to diminish the power of provincial Parliaments.
Initially in favor of the Revolution, he quickly denounced its lawlessness, and particularly the mob justice that failed to guarantee the rights of defendants. He was outraged by the trial of King Louis XVI and devised a plan for the monarch’s defense.
During the terrible Jacobin repression that struck Lyon in 1793 Portalis hid in Paris. He was caught and arrested only to be spared the guillotine by an insurgent in Robespierre’s entourage who owed him a debt of gratitude.
Only late in life, at the age of fifty, did he actually enter political life. He was elected to the Council of Elders in 1795 and subsequently chaired this high Chamber of the Directoire. He opposed all measures that, to his mind, were overly rooted in the Revolution and publicly denounced reprisals against émigrés and resistant priests, as well as laws that restricted the freedom of the press.
Classified as a moderate Monarchist, he was sentenced to deportation to Guyana after the coup of Fructidor (September 1797). He fled to Switzerland and Germany and, from his exile, continued to advocate moderation. He used this time to study German philosophy and wrote his masterwork, published posthumously, on “the use and abuse of philosophical thought during the 18th century.”
The Consulate’s policy of pardons allowed him to return to France at the end of 1799. Upon his arrival, Bonaparte appointed him at the head of the Conseil des Prises (Council of Seizures), which ruled on the legality of inspections conducted by French vessels at sea. Later, he named him to the commission formed to draft the Civil Code of the French, which the Constituent Assembly had earlier voted to produce.
As a member of the Council of State’s Legislative Section beginning in September 1800, Portalis is known for having been the one who most often wrote the bills, weighed the pros and cons, and tilted the scales.
The first draft of the Civil Code was submitted to the legislative body on January 21, 1801. For the occasion, Portalis made several remarkable speeches and wrote most of the various articles’ overview. Portalis’s final draft (undoubtedly one of Napoleon’s greatest achievements) was voted into law on March 21, 1804, the very day of the Duc d’Enghien’s execution (perhaps one of his greatest blunders).
Fascinated by the First Consul and later the Emperor, Portalis vowed him absolute loyalty. He wrote, Under Bonaparte, everything good becomes possible and easy. I am always astonished by the man’s genius … He supported the creation of the Legion of Honor, the Consulate for life, and the establishment of heredity. His enemies were few; it was said of him, Many like him, all admire him, none despise him.
Napoleon held him in high esteem, and thus bestowed upon him the highest rewards and honors. He was elevated to the dignity of Grand Aigle of the Legion of Honor (equivalent to today’s Grand’Croix), was elected to the Institut de France in the section of French language and literature (equivalent to today’s Académie Française), and would have been made a Duke had he not died at the age of sixty from complications of cataract surgery.
Jean-Etienne Marie Portalis died on August 25, 1807. He was the first major civilian dignitary of the Imperial Regime to die in office and as such, was given a State funeral and laid to rest in the Pantheon. In November 1808, Napoleon commissioned a statue of the great lawmaker from the sculptor Louis-Pierre Deseine, which was installed in 1812 in the chamber at the Tuileries reserved for sessions of the Council of State. Our intention, he wrote, is for our Ministers, Councilors of State, and magistrates of all our Courts, to see in this decision our wish to exemplify their talent and reward their services. The sculpture was moved from the Council of State to the Château of Versailles in 1834, where it remains today, and subsequently replaced with a bust.
Jean-Luc A. CHARTIER
à la Cour d’Appel de Paris
Author of “Portalis - Le père du Code Civil” Editions Fayard
to be published in January, 2004
English translation courtesy of The American Society of the French Legion of Honor
See also the book by Jean-Luc Chartier : Portalis Père du Code Civil